The opinion of the court was delivered by: Judge Butler
Submitted: January 15, 2010
BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.
Monique Allen, Petitioner (Petitioner), Petitions for Review of the Order of the State Civil Service Commission (SCSC) dated August 10, 2009 that affirmed the previous Order of the SCSC, which denied there were sufficient allegations of discrimination in Petitioner's SCSC Appeal Request Form. The issue before this Court is as follows: whether the SCSC erred as a matter of law by denying Petitioner's request that the SCSC reconsider its Order denying her request for a hearing regarding her demotion and reassignment because she failed to adequately state a claim for disability discrimination. The essence of the issue before this Court is whether Petitioner offered a sufficient allegation of discrimination, i.e., whether the allegations in Petitioner's Appeal Request Form meet the specificity requirements for SCSC appeals involving alleged employment discrimination. For the reasons that follow, we affirm the Order of the SCSC.
Petitioner, a Corrections Officer I, with the Pennsylvania Department of Corrections (DOC), SCI Frackville, was promoted on a probationary basis to the position of Parole Agent I with the Pennsylvania Board of Probation and Parole (PBPP). As a part of the selection process, Petitioner was required to attend and complete a six-week training program at the DOC's Basic Training Academy (BTA) in Elizabethtown, PA. During the third week of the training, the Defensive Tactics week, Petitioner became ill and she was unable to complete the required Defensive Tactics training scenarios. She so informed her instructor, her supervisor and the training coordinator. The training coordinator, Michelle Musser, advised Petitioner: "you have to do the scenarios or you will have to come back." Petitioner agreed to come back, i.e., she agreed to a retest for the scenarios in question. Thereafter, according to Petitioner, she completed all aspects of the BTA, except the Defensive Tactics scenarios, and then returned to SCI Frackville without retesting for the scenarios at issue. Reproduced Record (R.R.) at 26a-27a.
Subsequent to Petitioner's return to SCI Frackville, the PBPP initiated a disciplinary proceeding against Petitioner regarding her actions/conduct while attending the BTA. More specifically, the PBPP informed Petitioner of the following:
You violated the Board's Code of Conduct, Sections B.4
(a), B.4 (b) and B.14 when you displayed inappropriate and unprofessional behavior during the Basic Training Academy and refused to participate fully in all training activities.
Certified Record (C.R.), Doc. 1 at 5. After a fact finding conference, the PBPP further informed Petitioner:
. . . it has been determined that the following actions are warranted for the charges stated above. In lieu of disciplinary action being taken, you are being removed from your probationary Parole Agent 1 position for unsatisfactory work performance in accordance with Chapter 97.37 of the Civil Service Rules. You are being returned to the class of Corrections Officer 1 with the Department of Corrections effective at the close of business on Friday, June 5, 2009.
Petitioner then initiated the SCSC administrative appeals proceedings which have culminated in the Petition for Review which is now before this Court.*fn1
The procedural history of this case is quite straight forward. By letter to Petitioner dated June 3, 2009, the PBPP informed Petitioner that adverse personnel actions were being taken against her for unsatisfactory work performance. Id. Petitioner then filed an Appeal Request Form with the SCSC, requesting an appeal of the June 3, 2009 decision of the PBPP. By Order dated July 15, 2009, and mailed July 17, 2009, the SCSC informed Petitioner that: "the request for hearing [was] denied as there was an insufficient allegation of discrimination." R.R. at 4a (emphasis added). Petitioner then filed, by letter dated July 22, 2009, a Motion for Reconsideration of the SCSC's Order of July 15, 2009. R.R. at 6a. Petitioner also filed, on July 31, 2009, an Amended Appeal Request Form with the SCSC. R.R. at 15a. By Order dated August 10, 2009, the SCSC denied the Motion for Reconsideration and affirmed its previous Order. R.R. at 33a. The SCSC Order of August 10, 2009 states as follows:
The Commission has reviewed all the information presented by you on your request for reconsideration of your client's appeal, including the Memorandum of Law and proposed amendment to this appeal. It is not clear what appellant is alleging to be her disability or if and when she disclosed her disability to the appointing authority and asked for a reasonable accommodation. An attempt to compare appellant to another employee who was permitted to retest is insufficient because: 1) appellant was also offered a retest, and 2) unlike appellant, the other employee was not also cited for "disrespectful and unprofessional behavior" during the probationary period. The Commission, after careful consideration, hereby denies your request and reaffirms its previous Order.
R.R. at 33a. Petitioner has now filed the instant Petition for Review.*fn2
In her argument before this Court, Petitioner directly confronts the over-arching issue in this case -- the specificity, or the lack thereof, of the allegation of employment discrimination on the face of the Appeal Request Form that she filed with the SCSC. She requested a hearing on the Decision by the PBPP to demote her from her probationary Parole Agent I position and reassign her to a Corrections Officer I position. Petitioner contends, contrary to the ruling of the SCSC, that her Appeal Request Form contained the requisite specificity. In that regard, Petitioner, in her brief before this Court, states as follows:
Appellant's Request for Appeal and second Request for Appeal adequately set forth a claim that she was discriminated against on the basis of race and disability, and the Civil Service Commission erred in denying her requests for hearing.
This appeal presents a request for a hearing arising out of a demotion which was motivated by Appellant's request for reasonable accommodation of a disability during her Basic Training Academy. The face of the original appeal states "I was demoted from Parole Agent I at SCI Frackville and reassigned to Corrections Officer at SCI Graterford after I requested reasonable accommodation for a disability. A white employee was given more favorable treatment." Thus, Appellant has raised two issues of discrimination: disability and race. After the Civil Service Commission denied the request for appeal, Appellant filed a second appeal, which set forth with specificity the nature of her disability, and the actions taken against her in violation of the Pennsylvania Human Relations Act.
Petitioner's Br. at 3-4. In this Court's view, neither the law nor the facts support these arguments by Petitioner.
The Governing Legal Principles
As a fundamental precept in litigation, one must "adequately" plead a claim or cause of action. A failure to so do can, and typically does, result in the dismissal of the claim and/or cause of action. The Civil Service Act*fn3 contains an expressed prohibition of discrimination. 71 P.S. § 741.905a. Hence, one can file a claim/cause of action for discrimination under the Civil Service Act. The SCSC Rules (Civil Service Rules), specifically Section 105.12(c),*fn4 address this adequacy of pleading issue within the context of the needed "specificity" when there are claims of employment discrimination raised in SCSC appeals. As demonstrated by the following excerpt, the requirements of the regulations are quite explicit in that regard.
(c) Appeals alleging discrimination which do not include specific facts related to discrimination may be dismissed.
Specific facts which should appear on the appeal ...