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COMMONWEALTH OF PENNSYLVANIA
Tricia L. Rivers : State Civil Service Commission
:
v. :
:
Department of Health and :
Office of Administration, :
Executive Offices : Appeal No. 30301
Tricia L. Rivers Jonathan D. Koltash
Pro Se Attorney for Appointing Authority
Anthony R. Holbert
Attorney for Office of Administration
ADJUDICATION
This is an appeal by Tricia L. Rivers challenging her removal from
probationary Administrative Officer 1 employment with the Department of Health
and return to regular Clerk Typist 2 employment with the Department of
Environmental Protection. A hearing was held on October 30, 2019 at the State Civil
Service Commission’s Western Regional Office in Pittsburgh, Pennsylvania, before
Hearing Officer Odelfa Smith Preston.
The Commissioners have reviewed the Notes of Testimony and
exhibits introduced at the hearing, as well as the arguments of the parties. The issue
before the Commission is whether the appointing authority removed appellant for
reasons motivated by discrimination.
FINDINGS OF FACT
1. By letter dated June 26, 2019, appellant was notified
she was being removed from her probationary
Administrative Officer 1 position with Department
of Health (hereinafter “the appointing authority”),
effective July 5, 2019. Comm. Ex. A.
2. In the June 26, 2019 letter, the appointing authority
stated the following reason for removing appellant:
The reason for this action is that the
experience you listed on your
application for the Administrative
Officer 1 position # 50567232 with the
Bureau of Health Statistics and
Registries, specifically, the operation
of a child care [sic] business was not
verifiable by the Office of
Administration. Without the
experience obtained through the
operation of a business, you do not
meet the minimum experience and
training required for the
Administrative Officer 1 job title.
Therefore, you are not eligible to hold
the position and must be removed.
Comm. Ex. A.
3. The appeal was properly raised before this
Commission and was heard under Section
3003(7)(ii) of Act 71 of 2018.
4. Appellant was employed as an Administrative
Officer 1 with the Department of Health from
February 2, 2019 through July 4, 2019. N.T. p. 16.
5. The job specification for the Administrative
Officer 1 classification requires the following
minimum experience and training: “Two years of
experience in varied office management or staff
work; and a bachelor’s degree; or any equivalent
combination of experience and training.” OA Ex. 7
(p. 2).
6. The Office of Administration’s (hereinafter “OA”)
Evaluation Standards and Procedures Manual
provides thirty semester hours is equivalent to one
year of experience. OA Ex. 8.
7. The Evaluation Guide for the Administrative
Officer series (hereinafter “Evaluation Guide”)
defines “office management/staff work” as
“paraprofessional level or above.” Paraprofessional
work “occurs in occupations in which the worker
performs some of the duties of a professional, but in
a supportive role.” This type of work requires less
formal training or experience than what is normally
required of a professional. N.T. p. 262; OA Ex. 9
(p. 2).
8. The Evaluation Guide sets forth the following
examples of “office management/staff work”:
“interviewing and evaluating clients in order to
make a determination…information management,
records management, financial management,
purchasing, and public relations.” OA Ex. 9 (p. 2).
9. There is no requirement that this work experience
be paid to qualify as “office management or staff
work.” N.T. p. 272.
10. On her application for the Administrative Officer 1
position, appellant indicated she was the self-
employed owner of a childcare service from
January 1993 through January 2008. OA Ex. 2.
11. During the time she ran the childcare service,
appellant managed all areas of the business,
including interviewing, scheduling, facilitating the
care, balancing accounts, collecting payments,
transportation, addressing complaints, and meal
services. N.T. p. 104; OA Ex. 2.
12. Based on the duties she performed as owner of a
childcare service, appellant was initially found
eligible for the Administrative Officer 1 position,
and her name was sent to the appointing authority
for consideration. N.T. pp. 263-266.
13. By email dated January 23, 2019, the appointing
authority informed appellant it received all
approvals and was extending an official job offer to
her. Ap. Ex. 6.
14. By email dated January 30, 2019 and letter dated
February 1, 2019, the appointing authority
confirmed the effective date of appellant’s
promotion to the Administrative Officer 1 position,
which was February 2, 2019. Ap. Exs. 7, 8.
15. By email dated February 19, 2019, appellant was
informed of the following:
It is the policy of the Office of
Administration to ensure that
verification of education and/or
employment has been completed for
newly appointed or promoted
employees to show that the employee
does, in fact, possess the minimum
experience and training required for
the job title. When we finalized your
hire, this verification process was not
required for current Commonwealth
employees so they are completing it
retroactively. As of now, they are
currently looking for verification of
your self-employment/ownership of a
childcare service from January 1993 to
January 2008. Examples of acceptable
forms of proof would be self-
employment tax records including
Schedule C; notarized statements from
tax preparers or accountants; or
notarized statements from suppliers,
vendors or clients stating the type of
business and years of business
operation.
Ap. Ex. 9.
16. By email dated March 12, 2019, appellant received
a second request for documentation to verify her
employment history. Ap. Ex. 10.
17. By email dated March 18, 2019, appellant was
informed she could provide any of the following
types of documentation as proof of her self-
employment: “tax records including Schedule C;
notarized statements from tax preparers or
accountants; or notarized statements from suppliers,
vendors or clients stating the type of business and
years of business operation.” Additionally, the
email stated: “Employees who do not have tax
records typically obtain statements from vendors or
clients so it would seem that is your best option in
this case.” Ap. Ex. 11.
18. On March 21, 2019, appellant provided a notarized
statement from herself listing some of her clients,
who paid for her childcare services through a barter
system. N.T. p. 30; Ap. Exs. 12, 13 (p. 2); OA Ex.
3.
19. By email dated March 26, 2019, appellant was
informed her notarized statement was not sufficient.
N.T. p. 30; Ap. Ex. 13.
20. On April 1, 2019, six notarized statements from
appellant’s former clients were provided to OA.
N.T. p. 31; Ap. Exs. 16-23; OA Ex. 4.
21. On April 3, 2019, appellant was advised the six
notarized statements had been forwarded to the
evaluator for review. N.T. p. 31; Ap. Ex. 25.
22. OA determined the six notarized statements were
insufficient to verify appellant’s self-employment
because they did not reflect that appellant ran a
financially successful business. N.T. p. 222.
23. After it was determined the notarized statements
were insufficient, OA’s Evaluation Unit reviewed
appellant’s application to determine if there was any
other qualifying education or work experience by
which appellant could be deemed eligible for the
Administrative Officer 1 position. N.T. p. 223; OA
Ex. 5.
24. The reevaluation determined the other positions
appellant listed on her application did not meet the
level of paraprofessional work required to meet the
minimum experience and training for the
Administrative Officer 1 position. N.T. pp. 268-
270; OA Ex. 5.
25. OA determined appellant was not eligible for the
Administrative Officer 1 position because she did
not run a financially successful business and
because she failed to provide documentation, to
include tax documentation and Social Security
records, establishing she operated a financially
successful business. N.T. pp. 242-243.
26. By memo dated June 5, 2019, Michael Sullivan, the
Director of OA’s Bureau of Talent Acquisition
informed the Manager of the Health and Human
Services Delivery Center that appellant submitted a
notarized statement acknowledging she offered
childcare that functioned primarily on a barter
system. Sullivan further indicated in the memo that,
because appellant did not actually operate a
business, she did not meet the minimum experience
and training requirements for the Administrative
Officer 1 job title; therefore, she was not eligible to
hold that position. N.T. pp. 229-230; OA Ex. 6.
27. The procedures for conducting employment-related
verifications and background checks are set forth in
Management Directive 515.15 Amended
(Employment-Related Verification and
Background Checks).
28. Section (5)(a)(2) of Management Directive 515.15
Amended1 provides:
Prior to selecting the final candidate
for employment, the agency is to
ensure that all appropriate and required
1 The version of Management Directive 515.15 Amended entered into evidence by appellant is dated March 6, 2019.
Ap. Ex. 28. This was not the version of the directive in effect at the time appellant was hired; however, it took effect
during the post-hire verification process initiated by OA. The March 6, 2019 directive replaced, in its entirety,
Management Directive 515.15, dated September 6, 2017. Ap. Ex. 28. Section (5)(a)(2) of the March 6, 2019 directive
and section (5)(a)(2) of the September 6, 2017 directive are identical. Likewise, the procedure set forth in section 7(b)
of both management directives is the same in that both versions of the directive require the verification to occur after
the interview and prior to the final selection. Thus, for purposes of the present analysis, it is immaterial which version
of the directive is used. See Falasco v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole,
104 Pa. Commw. 321, 326 n.6, 521 A.2d 991, 994 n.6 (1987) (holding that an administrative agency may take official
notice of facts which are obvious and notorious to an expert in the agency’s field and those facts contained in reports
and records in the agency’s files, in addition to those facts which are obvious and notorious to the average person).
pre-employment and background
checks have been completed and are in
accordance with applicable laws and
commonwealth policies.
Ap. Ex. 28 (p. 3).
29. Section (7)(b)(2) of Management Directive 515.15
Amended requires the agency to confirm the
information provided by the candidates on the
application, including whether the candidate
possesses the experience necessary for the position.
This is to be done following the interview and prior
to the final selection, unless there is sufficient
information to assess the candidate without further
verification. Ap. Ex. 28 (p. 8).
DISCUSSION
The current appeal challenges the appointing authority’s decision to
remove appellant from probationary status employment as an Administrative
Officer 1. Before this Commission, appellant could only bring this challenge
through section 3003(7)(ii) of the Act 71 of 20182 based upon an allegation that the
decision to remove her from that position was due to discrimination in violation of
2 Act of June 28, 2018, P.L. 460, No. 71, § 1.
section 2704 of Act 71.3 71 Pa.C.S.A. §§ 2704, 3003(7)(ii). Appellant alleges she
was discriminated against because the verification of her experience, which resulted
in her removal, was not conducted in accordance with the procedures set forth in
Management Directive 515.15 Amended. Comm. Ex. B.
In an appeal alleging discrimination, the burden of presenting evidence
in support of all allegations of discrimination lies with the appellant. Nosko v.
Somerset State Hospital, 139 Pa. Commw. 367, 370-371, 590 A.2d. 844, 846 (1991).
Accordingly, the sole question for determination by this Commission is whether
appellant has presented evidence sufficient to establish her claim of discrimination.
Section 2704 of Act 71 provides:
An officer or employee of the Commonwealth may not
discriminate against an individual in recruitment, examination,
appointment, training, promotion, retention or any other
personnel action with respect to the classified service because of
race, gender, religion, disability or political, partisan or labor
union affiliation or other nonmerit factors.
71 Pa.C.S.A. § 2704. The prohibition set forth in this section encompasses two
general types of discrimination—“traditional discrimination,” which encompasses
claims of discrimination based on labor union affiliation, race, sex, national origin
or other non-merit factors; and “technical discrimination,” which involves a
violation of procedures required pursuant to the Act or related Rules.4 Price v.
3 Full implementation of Act 71 of 2018 occurred on March 28, 2019, the date on which all sections of Act 71 of 2018
went into effect. See Act 71 of 2018, Section 3. The removal of appellant from her probationary position occurred
after the full implementation of Act 71 of 2018, which is codified as 71 Pa.C.S.A. §§ 2101-3304. Consequently, the
substantive provisions of Act 71 of 2018 and the implementing regulations apply to the present appeal because that is
the law in effect at the time of the removal.
4 Upon taking effect on March 28, 2019, Act 71 modified the responsibilities and duties of the Commission and
established within the Commonwealth of Pennsylvania, Governor’s Office of Administration (hereinafter “OA”)
duties and responsibilities for civil service employment in Pennsylvania. In accordance with 2203(b) of Act 71, OA
promulgated temporary regulations, which are referred to as the Merit System Employment Regulations, 4 Pa. Code
§§ 601-607. The Commission also maintains its Rules, 4 Pa. Code §§ 91-105.18.
Luzerne/Wyoming Counties Area Agency on Aging, 672 A.2d 409, 411 n. 4 (Pa.
Commw. Ct. 1996), citing Pronko v. Department of Revenue, 114 Pa. Commw. 428,
539 A.2d 462 (1988). Appellant has alleged a technical discrimination claim,
contending the verification process which resulted in her removal was not conducted
in accordance with the procedures set forth in Management Directive 515.15
Amended. Comm. Ex. B.
At the hearing, appellant testified on her own behalf and presented the
testimony of Karen Thompson, a former client. The appointing authority presented
the testimony of Gregory Cowell5 and Tracy Quimby.6 The Office of Administration
presented the testimony of Brenda Fleming7 and Debra Krammes.8
5 Cowell is the Chief of Operations for the appointing authority’s Division of Vital Records. N.T. p. 152. Cowell
was appellant’s direct supervisor during the time she was employed in the Administrative Officer 1 position. N.T.
p. 155.
6 Quimby is an Administrative Officer 2 with the appointing authority’s Division of Vital Records. Appellant and
Quimby were colleagues during the time appellant was employed in the Administrative Officer 1 position. N.T. p.
188. Quimby testified appellant told her that she was instructed to verify her previous business experience. Quimby
stated appellant told her she did not have proper verification; therefore, Quimby assumed appellant did not have tax
documents. N.T. p. 189. Quimby also noted appellant did not indicate to her whether she ran a formal business or
kept accounts receivable or anything of that nature. N.T. p. 190. Quimby stated, in her opinion appellant did not run
a business. N.T. p. 191. Quimby did not evaluate appellant’s application nor did she have any other role in
determining whether appellant met the minimum experience and training for the Administrative Officer 1 position.
Moreover, Quimby did not have any first-hand information about appellant’s business, and there is no evidence the
evaluator took Quimby’s opinion into account when determining whether appellant was eligible for the position.
Therefore, we find that Quimby’s testimony is immaterial, particularly because appellant presented credible evidence
that she provided the requested verification which directly contradicts Quimby’s testimony. 7 Brenda Fleming is employed by OA as a Human Resource Analyst 2. N.T. pp. 196-197. In that capacity, Fleming
is responsible for reviewing and verifying the education and work experience of individuals who are appointed to civil
service positions to ensure that they meet the minimum experience and training requirements of the positions. N.T.
p. 197.
8 Debra Krammes is employed by OA as a Human Resource Analyst 3, and she serves as the Evaluation Unit
Supervisor. N.T. pp. 245-246. In that capacity, Krammes supervises the employees who review applications for civil
service positions and determines whether the applicants meet the minimum experience and training requirements.
N.T. p. 246.
Appellant was employed as an Administrative Officer 1 with the
Department of Health (hereinafter “the appointing authority”) from February 2, 2019
through July 4, 2019. N.T. p. 16. By letter dated June 26, 2019, appellant was
informed she was being removed from her Administrative Officer 1 position and
returned to the position of Clerk Typist 2. Ap. Ex. 26. The June 26, 2019 letter
explained, in relevant part:
The reason for this action is that the experience you listed on your
application for the Administrative Officer 1 position # 50567232
with the Bureau of Health Statistics and Registries, specifically,
the operation of a child care [sic] business was not verifiable by
the Office of Administration. Without the experience obtained
through the operation of a business, you do not meet the
minimum experience and training required for the
Administrative Officer 1 job title. Therefore, you are not eligible
to hold the position and must be removed.
Ap. Ex. 26. The unchallenged relevant facts pertaining to these assertions are
summarized below.
The job posting for Administrative Officer 1 position # 50567232 listed
three qualifications. N.T. p. 25; Ap. Ex. 3. These qualifications were: (1)
Pennsylvania residency; (2) two years of experience of varying office management
or staff work and a bachelor’s degree, or any equivalent combination of training and
experience; and (3) the ability to perform the essential job functions. N.T. p. 25; Ap.
Ex. 3; OA Ex. 1. The second qualification mirrors the required minimum experience
and training listed on the job specification9 for the Administrative Officer 1
9 A job specification is a document that outlines the duties of a position, the definition of work, examples of work
performed, and the minimum training and experience required to hold the position. N.T. p. 254.
classification and the Evaluation Guide10 for the Administrative Officer series,
which includes the Administrative Officer 1 job title. N.T. pp. 254-255; OA Exs. 7
(p. 2), 9 (p. 1).
There are two ways an applicant can meet the minimum experience and
training for the Administrative Officer 1 classification: (1) by having two years of
experience of varying office management or staff work and a bachelor’s degree; or
(2) by having any equivalent combination of training and experience. N.T. p. 255;
OA Ex. 7. With the second way, education may be substituted for the required
experience or any acceptable experience may be substituted for the required
education. N.T. p. 255. OA’s Evaluation Standards and Procedures Manual
explains thirty semester hours is equivalent to one year of experience.11 N.T. pp.
256-258; OA Ex. 8.
Additionally, the Evaluation Guide provides examples of work that are
qualifying to establish the required experience in varied office management or staff
work. N.T. pp. 259-260; OA. Ex. 9. The Evaluation Guide defines “office
management/staff work” as “paraprofessional level or above.” N.T. pp. 261-262;
OA Ex. 9 (p. 2). Paraprofessional work “occurs in occupations in which the worker
performs some of the duties of a professional, but in a supportive role.” N.T. p. 262.
This type of work requires less formal training or experience than what is normally
required of a professional. N.T. p. 262. Examples of such work are set forth within
10 The Evaluation Guide is used when determining whether an applicant meets the minimum experience and training
required for a position. It defines applicable terms and provides examples of work that meet the minimum experience
and training requirements. N.T. pp. 246-248.
11 The Evaluation Standards and Procedures Manual entered into evidence is dated May 1, 2019. This date is after
appellant’s hire date and after appellant provided notarized statements to OA. There is no testimony or evidence
indicating whether these standards were also used prior to May 1, 2019. However, it is clear from the testimony that
the equivalency standard of thirty semester hours to one year of experience was applied to appellant.
the definition of “office management/staff work,” and include duties such as
“interviewing and evaluating clients in order to make a determination…information
management, records management, financial management, purchasing, and public
relations.” OA Ex. 9 (p. 2). There is no requirement that this work experience be
paid. N.T. p. 272.
On her application for the position, appellant indicated she had the
following qualifying experience: she was the self-employed owner of a childcare
service from January 1993 through January 2008. N.T. p. 104; OA Ex. 2. During
the time she ran the childcare service, appellant managed all areas of the business,
including interviewing, scheduling, advertising,12 facilitating the care, balancing
accounts, collecting payments, transportation, addressing complaints, and meal
services. N.T. p. 104; OA Ex. 2. Based on these functions, which appellant
performed as a business owner, she was initially deemed to be eligible for the
position.13 N.T. pp. 263-265. Also, appellant was found to have performed these
functions for more than six years, which equates to four years of a bachelor’s degree.
N.T. pp. 265-266.
12 Appellant testified she did not need to advertise her childcare services because people came to her. N.T. pp. 106,
118. Appellant explained there are many ways to advertise, including “public word of mouth.” N.T. pp. 106, 119.
13 Debra Krammes, who supervises OA’s Evaluation Unit, testified the initial evaluation is merely a precursory review
of the application to determine whether the applicant meets the minimum experience and training requirements. N.T.
pp. 246, 252. During this precursory review, the information provided by the applicant is presumed to be true. N.T.
p. 253.
Upon being found eligible for the Administrative Officer 1 position,
appellant’s examination was scored. N.T. p. 266. Appellant received a score of
ninety-seven. N.T. p. 28; Ap. Ex. 4. Appellant’s name was then sent to the
appointing authority for consideration for the Administrative Officer 1 position.
N.T. p. 266.
After appellant was selected for the Administrative Officer 1 position,
she received an email dated January 23, 2019, stating all approvals were received
for her to hold the position. N.T. p. 28; Ap. Ex. 6. In addition to the January 23,
2019 email, appellant received two notifications—an email dated January 30, 2019
and a letter dated February 1, 2019—congratulating her on her promotion to the
position and detailing her shift, wages, and where she was to report. N.T. p. 28; Ap.
Exs. 7, 8.
On February 19, 2019, appellant was notified she needed to provide
additional verification of her prior employment in the form of notarized documents.
N.T. pp. 28, 30; Ap. Ex. 9. This was the first such notification appellant received.
N.T. p. 28. Specifically, it was requested that appellant provide notarized
documentation evidencing six years of self-employment, which she held almost two
decades prior. N.T. pp. 30-31. Additionally, the notice explained this verification
process was not required for current Commonwealth employees; so, it was being
completed retroactively. N.T. pp. 28-29; Ap. Ex. 9. Appellant explained she thought
this was a mistake because she had already been in the position for two weeks and
had received similar erroneous requests regarding training and other tasks that had
previously been completed. N.T. pp. 30, 88, 92, 96. Therefore, she did not respond
to this email. N.T. pp. 88, 95, 97.
Appellant realized the February 19, 2019 notice was not a mistake when
she received a second request for notarized documents in the form of an email dated
March 12, 2019. N.T. p. 30; Ap. Ex. 10. After receiving the March 12, 2019 email,
appellant spoke with her supervisor, who instructed her to provide notarized
statements.14 N.T. pp. 90-91, 155-157. Appellant responded to the March 12, 2019
email and received a follow-up email dated March 18, 2019 explaining the notarized
documents that she needs to provide. N.T. pp. 94, 97; Ap. Ex. 11. The follow-up
email reads, in pertinent part:
I did inform OA of your situation and mentioned that in the past,
the Commonwealth had accepted additional explanation of your
duties as a way to verify your self-employment. They cannot
really comment on what was accepted in the past, there was a
different process and standards in place for verification then.
Currently, it is documents such as self-employment tax records
including Schedule C; notarized statements from tax preparers or
accountants; or notarized statements from suppliers, vendors or
clients stating type of business and years of business operation
that are required for self-employment. Employees who do not
have tax records typically obtain the statements from vendors or
clients so it would seem that is your best option in this case.
Ap. Ex. 11.
On March 21, 2019, appellant provided a notarized statement from
herself listing some of her clients, who paid for her childcare services through a
barter system. N.T. p. 30; Ap. Exs. 12, 13 (p. 2); OA Ex. 3. By email dated
March 26, 2019, appellant was informed her notarized statement was not sufficient.
14 Additionally, appellant’s supervisor testified that, immediately upon being offered a position with the
Commonwealth, he was required to provide documentation of his self-employment to establish his eligibility for the
position. N.T. p. 162. Whether appellant’s supervisor was required to provide such documentation and the type of
documentation he provided are not dispositive of whether there is procedural discrimination in the instant matter. The
focus of the present matter is whether the Department of Health and OA followed the applicable procedures when
evaluating appellant’s eligibility. Therefore, appellant’s supervisor’s experience with providing documentation is
irrelevant and will not be addressed in this adjudication.
N.T. p. 30; Ap. Ex. 13. Additionally, she was informed she needed to establish she
operated the childcare business for at least six years, and she could do so by
submitting notarized statement from clients who paid for her services. N.T. p. 30;
Ap. Ex. 13. That same day, appellant asked for an additional thirty days to submit
the notarized statements because it had been almost two decades since she had talked
to some of her former clients. N.T. p. 30; Ap. Ex. 14. This request was denied, and
appellant was directed to provide proof of at least six full years of self-employment
as indicated on her application. N.T. pp. 30-31; Ap. Ex. 15.
Appellant chose to supply notarized statements, rather than tax returns,
because it was the easiest and quickest way for her to obtain the documentation.
N.T. p. 99. Appellant explained the tax returns would have been disposed of ten or
twenty years ago. N.T. p. 99. Appellant also indicated she no longer has any
evidence of checking accounts, checking statements showing accounts receivable,
or the books she managed because she was not required to keep those records after
ten or twenty years. N.T. p. 107. Additionally, appellant acknowledged she did not
formalize her business. N.T. p. 111.
On April 1, 2019, six notarized statements from appellant’s former
clients were provided to OA. N.T. p. 31; Ap. Exs. 16-23; OA Ex. 4. All six of the
notarized statements included the clients’ contact information.15 N.T. p. 140; Ap.
Exs. 18-23; OA Ex. 4. On April 3, 2019, appellant was advised the six notarized
statements had been forwarded to the evaluator for review. N.T. p. 31; Ap. Ex. 25.
15 At the hearing on the present matter, one of appellant’s clients, Karen Thompson, testified about her notarized
statement. Thompson indicated she paid appellant weekly to watch her grandchildren who she was raising and who
both had medical issues. N.T. pp. 131-132. Thompson indicated there was no written payment contract, but there
was an agreed upon amount that she paid weekly. N.T. pp. 134-136. Further, Thompson noted no one contacted her
about her statement, even though she included her phone number and address. N.T. pp. 127, 136-137; Ap. Ex. 20.
Brenda Fleming, a Human Resource Analyst 2 with OA, was
responsible for verifying appellant’s experience and education after appellant was
hired. N.T. pp. 196-197, 206, 208. Fleming stated verifications are performed for
all applications and generally occur after the applicant is hired. N.T. p. 198. Fleming
testified the purpose of the verification is to ensure the information on the application
which was used to deem an applicant eligible for the position is accurate and correct.
N.T. p. 199. Fleming stated she was unable to verify appellant’s self-employment
from January 1993 to January 2008, which was the work experience used to deem
appellant eligible for the Administrative Officer 1 position. N.T. pp. 210-211.
Fleming explained appellant’s initial notarized statement was found to
be insufficient because it was not independently verifiable since it was a self-written
statement. N.T. p. 217; Ap. Ex. 12; OA Ex. 3. Fleming also stated this notarized
statement was determined to be insufficient because it did not support the
information on her application since it did not refer to her administrative duties,
provide information on her employees, such as their names, or establish that her
business was financially successful. N.T. pp. 219-220. Fleming further indicated
“acceptable examples of verification need to be from other individuals or from the
IRS or a tax preparer or accountant.” N.T. p. 217.
Fleming testified she also reviewed the six notarized statements
appellant provided after she was informed that the initial notarized statement was
insufficient. N.T. pp. 220-222. Fleming testified these notarized statements were
found to be insufficient to verify appellant’s self-employment because they did not
reflect that appellant ran a financially successful business. N.T. p. 222. Fleming
explained the six notarized statements “attest more to [appellant] as being a
wonderful caregiver and to how she performed those duties.” N.T. p. 222.
Therefore, OA determined the notarized statements were not acceptable verification.
N.T. p. 223. After this determination was made, OA’s Evaluation Unit reviewed
appellant’s application to determine if there was any other qualifying education or
work experience by which appellant could be deemed eligible for the Administrative
Officer 1 position. N.T. p. 223; OA Ex. 5.
Debra Krammes, who is the supervisor of OA’s Evaluation Unit,
conducted the reevaluation of appellant’s application. N.T. p. 267. Krammes
determined appellant possessed sixty-eight semester credit hours from community
college which could be accepted toward meeting the six-year requirement under the
equivalency standard. N.T. p. 257. Applying the equivalency standard of thirty
semester hours to one year of experience as set forth in OA’s Evaluation Standards
and Procedures Manual, Krammes determined appellant’s sixty-eight credit hours
were equivalent to two years and three months of experience. N.T. p. 268; OA Ex. 8.
Therefore, appellant needed a little under four years of experience to be eligible for
the position. N.T. p. 268. However, Krammes determined the other positions that
appellant listed on her application did not meet the level of paraprofessional work
required to meet the minimum experience and training for the Administrative Officer
1 position. N.T. pp. 268-270. Thus, Krammes determined appellant did not meet
the minimum experience and training requirements for the Administrative Officer 1
position. N.T. pp. 270-271; OA Ex. 5.
Following the Krammes’ determination, Fleming drafted a report
detailing the steps taken by OA to verify appellant’s experience. N.T. pp. 225-226.
Fleming asserted, because appellant indicated she primarily used a barter system, it
did not support appellant’s statement on her application that she managed all areas
of the business, including interviewing, scheduling, advertising, balancing accounts,
and collecting payments. N.T. pp. 240-241. Fleming further stated appellant was
found not eligible because she failed to provide documentation, to include tax
documentation and Social Security records, establishing she operated a financially
successful business. N.T. p. 242. Fleming reasoned, while the notarized statements
from appellant’s clients establish she was a wonderful caregiver, they do not support
that appellant ran a financially successful business. N.T. pp. 242-243.
The report drafted by Fleming was provided to Michael Sullivan,
Director of OA’s Bureau of Talent Acquisition (hereinafter “the Director”), who is
responsible for determining whether appellant met the eligibility requirements for
the position. N.T. p. 227. The Director determined appellant was not eligible for
the position because there was no other qualifying education or work experience,
and she did not meet the minimum training and experience. N.T. p. 228; OA. Ex. 6.
By memo dated June 5, 2019, the Director informed the Manager of the Health and
Human Services Delivery Center that appellant submitted a notarized statement
acknowledging she offered childcare that functioned primarily on a barter system.
The Director further indicated in the memo that, because appellant did not actually
operate a business, she did not meet the minimum experience and training
requirements for the Administrative Officer 1 job title; therefore, she was not eligible
to hold that position. N.T. pp. 229-230; OA Ex. 6.
Following the presentation of the testimony, OA made a Motion to
Dismiss this appeal. N.T. p. 290. At the hearing, ruling on the Motion was deferred
pending review by the full Commission. N.T. p. 291. Following our review, the
Motion is hereby denied. The Commission finds appellant has presented sufficient
evidence which, if believed and otherwise unexplained, indicates it is more likely
than not procedural discrimination has occurred.
Appellant asserts the appointing authority engaged in procedural
discrimination in that it violated Management Directive 515.15 Amended. To
establish a claim of “procedural discrimination,” the employee must show she was
harmed because of the procedural noncompliance with the Act, or that, because of
the peculiar nature of the procedural impropriety, she could have been harmed, but
there is no way to prove that for certain. Price, supra. No showing of intent is
required. Price, supra. Having carefully reviewed the record, we find appellant
presented credible16 evidence of procedural discrimination.
Section 602.1(b) of the Merit System Employment Regulations
provides in pertinent part:
(1) An applicant shall supply information relevant for
determining whether the applicant possesses the minimum
requisites for appointment or promotion.
(2) The Office of Administration may require an applicant to
supply certificates and other appropriate documents as may be
relevant in assessing the applicant’s fitness and qualifications for
appointment or promotion.
4 Pa. Code § 602.1(b)(1),(2). The Merit System Employment Regulations do not
set forth the procedure for reviewing an applicant’s qualifications. That procedure
is set forth in Management Directive 515.15 Amended.
Here, there is credible evidence that appellant supplied relevant
information, as required under section 602.1(b)(1), establishing she possessed the
minimum requisites for promotion to the Administrative Officer 1 position. Based
on the information she provided on her application, appellant was initially deemed
16 It is within the purview of the Commission to determine the credibility of the witnesses. State Correctional
Institution at Graterford, Department of Corrections v. Jordan, 505 A.2d 339, 341 (Pa. Commw. Ct. 1986).
to be eligible for the position and was subsequently appointed to the position. N.T.
pp. 28, 263-265; Ap. Exs. 6, 7, 8. In fact, appellant received an email dated
January 23, 2019 from the appointing authority indicating it received all approvals
and was extending an official job offer to her. Ap. Ex. 6. By email dated January 30,
2019 and letter dated February 1, 2019, the appointing authority confirmed the
effective date of appellant’s promotion to the Administrative Officer 1 position,
which was February 2, 2019. Ap. Exs. 7, 8. Despite these confirmations,
approximately two weeks after appellant started, she was notified additional
documentation of her prior employment was needed to verify whether she possessed
the minimum experience and training for the position.
As noted above, pursuant to section 602.1(b)(2), OA may require an
applicant to provide documentation relevant to assessing the applicant’s
qualifications for promotion. 4 Pa. Code § 602.1(b)(2). The procedures for
conducting employment-related verifications and background checks are set from in
Management Directive 515.15 Amended. Section (5)(a)(2) of Management
Directive 515.15 Amended provides:
Prior to selecting the final candidate for employment, the agency
is to ensure that all appropriate and required pre-employment and
background checks have been completed and are in accordance
with applicable laws and commonwealth policies.
Ap. Ex. 28 (p. 3). Additionally, section (7)(b)(2) of Management Directive 515.15
Amended requires the agency to confirm the information provided by the candidates
on the application, including whether the candidate possesses the experience
necessary for the position. Ap. Ex. 28 (p. 8). This is to be done following the
interview and prior to the final selection, unless there is sufficient information to
assess the candidate without further verification. Ap. Ex. 28 (p. 8).
Contrary to the above described procedure, OA requested additional
verification of appellant’s qualifications after appellant received and accepted a
formal offer and commenced her employment in the new position. Specifically, by
email dated February 19, 2019, appellant was informed the requisite pre-
employment verification was being completed retroactively because it was allegedly
not required at the time her promotion was finalized. Ap. Ex. 9. OA argues this was
permissible because the above procedure was issued before Act 71 went into effect
and it was not incorporated into Act 71. N.T. pp. 57-58. Additionally, OA claims
since Management Directive 515.15 Amended is not a regulatory or statutory
requirement specific to Civil Service, it cannot be considered by the Commission.
N.T. p. 59, 66. Thus, OA asserts appellant has failed to establish a prima facie case
of procedural discrimination. N.T. p. 290.
We are not persuaded by OA’s argument. It is well established that if
a management directive is violated there may be a cause of action available to an
appellant. Bellew v. Com., State Civil Service Commission, 117 Pa. Commw. 447,
451, 543 A.2d 1266, 1268 (1988). “[N]umbered management directives announcing
detailed policies, programs, responsibilities, and procedures relatively permanent in
nature and which have been signed by the Governor, Lieutenant Governor, Budget
Secretary, Secretary of Administration, or the head of any department or
independent board, commission or council under the Governor's jurisdiction have
the force of law when they are based upon authority or duty conferred by
constitution, statute or regulation.” Reneski v. Com., Department of Public Welfare,
84 Pa. Commw. 226, 228, 479 A.2d 652, 653 (1984). Further, a properly issued
management directive is enforceable if consistent with the statute it implements.
Cutler v. State Civil Service Commission (Office of Administration), 924 A.2d 706,
712 (Pa. Commw. Ct. 2007) petition for allowance of appeal denied by 940 A.2d
366 (Pa. 2007).
Two versions of Management Directive 515.15 Amended were in effect
between when appellant was initially found eligible for and subsequently removed
from the Administrative Officer 1 position—Management Directive 515.15, dated
September 6, 2017 and Management Directive 515.15, dated March 6, 2019. See
Falasco, supra. Both directives were adopted by the Governor’s Office under the
Direction of the Secretary of Administration and there is no evidence that the most
recent version of the directive has been rescinded. Therefore, Management
Directive 515.15 remains applicable to the hiring action presently before this
Commission. Furthermore, OA does not assert and there is no evidence to suggest
that Management Directive 515.15 Amended is inconsistent with Act 71. Thus,
Management Directive 515.15 Amended remains enforceable. Accordingly, we find
Management Directive 515.15 was violated when OA reevaluated appellant’s
qualifications after a formal offer was extended to her and she was informed that all
approvals had been received. With that said, even if the belated reevaluation did not
violate Management Directive 515.15 Amended, we would still sustain appellant’s
appeal because she did provide the requested documentation, which we find
established she possessed the minimum experience and training required.
Nevertheless, the appointing authority argues the documentation
provided by appellant is insufficient to establish she operated a business for six
years, which the appointing authority claims is required to meet the minimum
experience and training requirements for the Administrative Officer 1 position. N.T.
pp. 281-282. The appointing authority further argues appellant’s failure to provide
tax records, insurance records, marketing and advertising plans supports its
determination that appellant did not meet the minimum experience and training
requirements. N.T. pp. 283, 285. Additionally, the appointing authority asserts
appellant did not run a business because she bartered her services. N.T. p. 284. We
are not persuaded by the appointing authority’s arguments and find the appointing
authority failed to establish a legitimate nondiscriminatory reason for removing
appellant.17
Section 602.1(b)(3) of the Merit System Employment Regulations
provides: “The job specification shall be the primary basis and source of authority
for the evaluation of the minimum qualifications of applicants for examinations.” 4
Pa. Code § 602.1(b)(3). The job specification for the Administrative Officer 1
classification requires the following minimum experience and training: “Two years
of experience in varied office management or staff work; and a bachelor’s degree;
or any equivalent combination of experience and training.” OA Ex. 7 (p. 2).
Appellant did not have a bachelor’s degree; therefore, to meet the equivalency
standard, she needed a total of six years of qualifying work. OA Ex. 2, 8. Appellant
possessed sixty-eight semester credit hours from community college which could be
accepted toward meeting the six-year requirement, leaving three years and nine
months of qualifying work experience that appellant needed to establish. N.T.
p. 257.
17 The appointing authority insinuates appellant falsified her application. However, appellant was not charged with
falsification as the reason for her removal. Comm Ex. A. Therefore, we are constrained from opining on that issue.
Appellant was informed she could provide proof of such experience in
a number of ways, including through notarized statements from her clients. Ap.
Exs. 9, 11, 13. Appellant was not required to provide tax records, insurance records,
or marketing and advertising plans, which the appointing authority now argues
should have been provided. Likewise, there was no requirement that appellant either
must have operated a financially successful business or have been paid for her
services to establish she had the required work experience. N.T. p. 272; OA Ex. 9.
Pursuant to the Evaluation Guide, appellant was merely required to have
paraprofessional level work experience, which means she performed duties of a
professional, but in a supportive role. N.T. p. 262; OA Ex. 9 (p. 2). The duties
appellant performed when she ran a childcare service, to include evaluating clients,
scheduling, and financial management, are consistent with the examples of such
work provided in the Evaluation Guide. OA Exs. 2 (p. 2), 9 (p. 2).
Moreover, based on the dates of service set forth in each of the
notarized statements from appellant’s clients, appellant established she performed
the work for more than three years and nine months. Ap. Exs. 18-23; OA Ex. 4.
However, there is no evidence the information contained in these statements was
taken into account during the reevaluation. Indeed, one of appellant’s clients who
testified at the hearing indicated no one contacted her about her notarized statement.
N.T. pp. 127, 136-137; Ap. Ex. 20. Rather, the focus became whether appellant
operated a financially successful business, and appellant was found not eligible on
this basis. N.T. p. 222. Appellant was also found not eligible because she did not
provide other forms of documentation which were not required, such as tax and
Social Security records. N.T. p. 242.
Neither running a financially successful business nor providing other
forms of documentation was required to establish appellant met the applicable
minimum experience and training requirement. By emails dated February 19, 2019
and March 18, 2019, appellant had been informed notarized statements from clients
stating the type of business and years of operation would be acceptable, and this is
what she provided. Ap. Ex. 9, 11. Thus, OA and the appointing authority clearly
held appellant to a standard above and beyond the requirements set forth in the
Evaluation Guide and the instructions she received via email. Consideration of such
superimposed nonmerit factors to disqualify appellant from employment as an
Administrative Officer 1 constitutes procedural discrimination and appellant was
actually harmed in that she was removed from her position. Accordingly, we enter
the following:
CONCLUSIONS OF LAW
Appellant has presented evidence establishing
discrimination violative of Section 2704 of Act 71 of
2018.
ORDER
AND NOW, the State Civil Service Commission, by agreement of its
members, sustains the appeal of Tricia L. Rivers challenging her removal from
probationary Administrative Officer 1 employment with the Department of Health
and return to regular Clerk Typist 2 employment with the Department of
Environmental Protection and overrules the action of the Department of Health in
the removal of Tricia L. Rivers from probationary Administrative Officer 1
employment and return to regular Clerk Typist 2 employment with the Department
of Environmental Protection. We order that the removal be expunged from
appellant’s record and that appellant be returned to probationary Administrative
Officer 1 employment within thirty (30) calendar days18 with reimbursement of
wages and emoluments since July 5, 2019, less wages earned and benefits received
under the Public Laws of Pennsylvania as established by a sworn statement to be
submitted by appellant. We further order that within thirty (30) calendar days of the
mailed date of this opinion, the appointing authority shall submit written notice of
compliance with this Order to the Executive Director of the State Civil Service
Commission.
State Civil Service Commission
Teresa Osborne
Chairman
____________________________________
Gregory M. Lane
Commissioner
____________________________________
Bryan R. Lentz
Commissioner
Mailed: February 21, 2020
18 Appellant will be credited with all of the time she has already accrued from February 2, 2019 to July 4, 2019 while
she was actually employed as an Administrative Officer 1 toward the satisfaction of her entire probationary period for
this position.
Recommended