The opinion of the court was delivered by: Senior Judge Friedman
BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
The Pennsylvania Board of Probation and Parole (Board or Appointing Authority) petitions for review of the September 15, 2009, order of the State Civil Service Commission (Commission), which set aside the Board's action removing Rhonda Y. Manson from her position as a Parole Agent II, regular status, and imposed a thirty-day suspension, without back pay or benefits, on Manson. The Commission concluded that the Board did not meet its burden of proving just cause for Manson's removal pursuant to section 807 of the Civil Service Act*fn1, but did establish just cause for Manson's suspension under section 803 of the Act.*fn2 We affirm.
For approximately five years, Manson was employed as a Parole Agent II in the Appointing Authority's Northeast Division. (Findings of Fact, No. 4.) In her position, Manson was authorized to carry a firearm and safety equipment, including Oleoresin Capsicum Spray (OC Spray) and a baton, which were issued to her by the Appointing Authority. (Findings of Fact, No. 7.) On August 14, 2008, Manson completed a "Loss of or Damage to Commonwealth Property or Equipment" form (Form) to report that her firearm was missing as of August 12, 2008. On the Form, Manson indicated that she looked for the firearm all day on August 13, 2008, and questioned everyone that lived in her house, as well as her friend "Robert," but no one knew where the gun was located. (Findings of Fact, Nos. 14-15; Manson's Ex. 3, R.R. at 228a.)
As a result of Manson's missing firearm, the Appointing Authority requested an investigation by its Office of Professional Responsibility (OPR). Frank Margerum, a special investigator with OPR, conducted the investigation, which included three separate interviews with Manson, and an interview with Manson's friend, Robert Thompson, a prior parolee who currently is an inmate at the State Correctional Institution at Rockview. (Findings of Fact, Nos. 16-19.) Based on the investigation, the Appointing Authority determined that Manson had deviated from Board policies regarding inappropriate employee relationships, proper firearm storage and the use of Board-issued firearm and safety equipment. The Appointing Authority then held a fact-finding conference with Manson; in addition to Manson and Manson's union representative, the conference was attended by Dennis Powell, District Director for the Appointing Authority's Philadelphia office, and Nina Ferguson, Deputy Director. When the fact-finding was complete, Brenda Estep, Director of Human Resources, approved Manson's removal. (Findings of Fact, Nos. 35-36; Appointing Authority's Ex. 6, R.R. at 290a.)
By letter dated January 7, 2009, the Board notified Manson that she was being removed from her position, effective at the close of business on January 7, 2009, based on her violation of section B.2 of the Board's Code of Conduct and her violations of Procedure 5.8 of the Board's Operations and Procedures Manual. Specifically, the Board stated as follows:
1. You violated the Board's Code of Conduct, Section B.2 when you maintained a private relationship with an individual under the Board's supervision.*fn3
2. You violated the Board's Operations and Procedures Manual, Procedure 5.8, Resistance and Control when you stored your Board-issued firearm in your home in a manner in which it was accessible to others.*fn4
3. You violated the Board's Operations and Procedures Manual, Procedure 5.8, Resistance and Control when you failed to carry your Board-issued firearm and safety equipment at times required by Board policy.*fn5
(Findings of Fact, Nos. 1-2; Commission's Ex. A, R.R. at 198a.)
Manson appealed her removal to the Commission pursuant to sections 951(a) and (b) of the Civil Service Act, 71 P.S. §§741.951(a) and (b), arguing that she was removed without just cause and that her removal was the result of gender-based discrimination. (Findings of Fact, No. 3; Commission Ex. B, R.R. at 200a-01a.) On March 27, 2009, the Commission held a public hearing on the matter. In support of its removal action, the Appointing Authority presented testimony from Thompson, Margerum, Powell, Gary Holland and Estep. Manson testified on her own behalf.
Regarding his relationship with Manson, Thompson testified that he had known Manson for over twenty years, and they lived next door to each other growing up. Thompson stated that he ran into Manson again in 2006 and learned that she was a parole agent, but he did not tell Manson that he had been incarcerated, and he did not know whether Manson had been told about it. (R.R. at 29a-31a.) Thompson said that he saw Manson more frequently in 2008; for a while, he went to her house more than twice a month and helped her out with various chores. (R.R. at 31a-34a.) According to Thompson, he stayed overnight at Manson's house once or twice, and he had sex with Manson on at least two occasions. (R.R. at 34a-35a.) Thompson testified that he last spoke with Manson in August or September of 2008, when Manson asked him to get his possessions and leave because her gun was missing and there was going to be an investigation. (R.R. at 35a-36a.)
Margerum testified about his investigation of Manson. Margerum stated that, during the first interview, Manson told him that she had received training in the use of the firearm and safety equipment issued to her, but she never carried any of her safety equipment. (R.R. at 47a-49a.) As to the storage of her firearm, Margerum learned that Manson stored it on the floor of her bedroom, in the corner under a blanket. Manson admitted to Margerum that everyone in the house, including visitors, had access to every room in the house. (R.R. at 49a-50a.) Manson told Margerum that, on August 12, 2008, she discovered that her firearm was missing, along with its holster and two out of three magazines issued for the firearm; Manson indicated that she believed her friend Thompson was responsible. (R.R. at 52a-55a.) Although Manson could not give Margerum Thompson's correct address at the time, she described the location of ...