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Carr v. Commonwealth, Department of Transportation

Commonwealth Court of Pennsylvania

June 12, 2018

Rachel L. Carr, Petitioner
v.
Commonwealth of Pennsylvania, Department of Transportation and Commonwealth of Pennsylvania, State Civil Service Commission, Respondents

          Argued: May 8, 2018

          BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE DAN PELLEGRINI, Senior Judge.

          OPINION

          P. KEVIN BROBSON, JUDGE.

         Before this Court is the petition for review (Petition) of Rachel L. Carr (Carr), which invokes this Court's original and appellate jurisdictions, and an application for summary relief filed by the State Civil Service Commission (Commission). In our appellate jurisdiction, Carr petitions for review of an adjudication and order of the Commission (Adjudication), which dismissed her challenge of the Commonwealth of Pennsylvania, Department of Transportation's (Department) termination of her employment. In our original jurisdiction, Carr alleges that the Department and Commission violated her constitutional rights when the Department terminated her employment and the Commission failed to issue the Adjudication in a timely manner. In response, the Commission filed an application for summary relief. We now reverse the Adjudication and remand the matter to the Commission. We also grant the Commission's application for summary relief as to the original jurisdiction claims and dismiss the Commission from this matter.

         Following a promotion, Carr began working as a Roadway Programs Technician I within the Department on March 5, 2016. (Reproduced Record (R.R.) at 3a, 73a-74a.) As part of this promotion, the Department imposed upon Carr a 180-day probationary period of employment. (Id. at 3a.) On May 24, 2016, while Carr was off-duty and at home, she used her personal Facebook account to post a "rant" in a Facebook group "Creeps of Peeps." (Id. at 16a.) Carr, frustrated with the quality of school bus drivers in her area, posted the following:

Rant: can we acknowledge the horrible school bus drivers? I'm in PA almost on the NY boarder [sic] bear [sic] Erie and they are hella scary. Daily I get ran off the berm of our completely wide enough road and today one asked me to t-bone it. I end this rant saying I don't give a flying shit about those babies and I will gladly smash into a school bus.

(Id.) Over the course of approximately five hours following her original post, Carr responded to comments from members of the Facebook group. In one response, Carr asked another member of the group: "If you see a vehicle coming perpendicular [to] you with no turn signal on, do you pull out from your stop sign anyways? [Let me know] when you're done [G]oogling perpendicular[.]" (Id. at 20a.) In another response, Carr stated: "Your children and your decision to chance them with a driver you've never been a passenger with is your problem. A vehicle pulls out in front of me or crosses the yellow line, that's their problem. A sedan, school bus or water truck. You're [sic] kids your problem. Not mine[.]" (Id. at 23a.) When one group member responded and suggested that Carr should be more concerned with the safety of the children, Carr reiterated that she cared about herself and her safety more so than the safety of the children. (Id. at 20a-22a.) Carr emphasized that she should not be forced to put herself at risk due to the unsafe driving of the school bus driver. (Id. at 21a.)

         Thereafter, members of the Facebook group sent screenshots of her interactions to the Department's Facebook page, expressing concern with the content of Carr's statements. (Id. at 17a-19a.) Carr's Facebook profile identified the Department as her employer. (Id. at 14a.) The Department's human resources office thereafter scheduled a pre-disciplinary conference with Carr for May 27, 2016. (Id. at 89a-90a.)

         At the pre-disciplinary conference, Carr admitted to posting the rant, but she asserted that her comments were taken out of context and that she was merely expressing her frustrations with the unsafe driving habits of local school bus drivers. (Id. at 26a.) Carr stated that she would not intentionally crash into a school bus, but that the poor driving of the school bus driver may necessitate her doing so to avoid injury to herself. (Id. at 27a.) Following the pre-disciplinary conference, the Department suspended Carr pending a further investigation. (Id. at 29a.)

         By letter dated June 14, 2016, the Department terminated Carr's employment due to her inappropriate behavior. (Id. at 31a.) Carr filed an appeal with the Commission under Section 951(b) of the Civil Service Act[1] (Act). In so doing, Carr asserted that the Department discriminated against her in violation of Section 905.1 of the Act.[2] The Commission scheduled a hearing on the matter. (R.R. at 33a.)

         At the hearing, Carr presented her own testimony and that of Robert Chiappelli (Chiappelli), the Department's Human Resources Officer. The Department presented the testimony of Anthony Reda (Reda), its Labor Relations Supervisor.

         Carr testified that during her new-employee orientation, Department representatives advised the new employees that off-duty conduct could negatively affect their employment, but Carr could not recall whether the discussion involved social media usage. (Id. at 128a-29a.) Carr testified that she never intended to crash into a school bus, and that her frustrations with the bus driver acted as the impetus for her Facebook post. (Id. at 120a, 122a-24a.) She asserted that her post did not affect her ability to perform her job. (Id. at 118a-19a.) She further asserted that she never thought her post would become such an ordeal, and she conceded that she could see how her post could concern members of the public. (Id. at 139a-40a, 142a.) Further, Carr also conceded that if she had the opportunity to do it all over again, she would not have posted the rant to Facebook. (Id. at 142a.)

         Chiappelli testified that he is responsible for discussing work rules and policies at new-employee orientations. (Id. at 81a.) Chiappelli testified that, as part of this discussion, he explains to all new employees that off-duty activities could have an adverse effect on their employment, especially if that activity has a nexus to the Department. (Id. at 82a-83a.) Chiappelli stated that one of the Department's main goals is to ensure the safety of the traveling public, and Carr's comments undercut that goal. (Id. at 63a.) Chiappelli agreed that Carr's Facebook post likely had no effect on her ability to perform her job function, but he reiterated that her views were not in accord with those of the Department. (Id. at 53a, 56a, 63a, 97a-98a.) Further, Chiappelli added that the Department did not treat Carr any differently than other employees in a similar situation. (Id. at 98a-99a.)

         Reda concurred with Chiappelli that Carr's behavior, not her performance, is what led to her removal. (Id. at 157a.) Regarding Carr's Facebook post and its nexus to her employment with the Department, Reda testified that Carr's rant "gave the Department a black eye" in the eyes of the public. (Id. at 156a.) Expounding on this premise, Reda added that if Carr acted on her threat of crashing into a school bus, the Department could be exposed to liability for her actions. (Id.) Reda further asserted that the Department did not treat Carr any differently than other similarly-situated employees. (Id. at 159a.) In support of this assertion, Reda provided examples of when the Department removed other employees for similar inappropriate behavior. (Id. at 160a-62a.)

         By Adjudication mailed on August 1, 2017, the Commission affirmed the Department's termination of Carr's employment and dismissed Carr's appeal. (Adjudication at 21.) In so doing, the Commission explained:

Upon review of the record, the Commission finds [Carr] has not presented sufficient evidence to support her claim of discrimination or a violation of her First Amendment free speech. [Carr] has not presented any evidence to establish she was treated differently than any other probationary employee who made disparaging remarks bringing disrepute to the [Department] and its mission. The Commission finds the testimony of Chiappelli and Reda credible that [Carr's] Facebook remarks brought disrepute to the [Department] and raised issues of trust.

(Id. at 20.)

         Carr then filed the instant Petition, invoking this Court's original and appellate jurisdictions. Carr's Petition contains three separate counts, all of which request relief in the form of this Court reversing the Adjudication and reinstating Carr with back pay. Count I of Carr's Petition challenges the Adjudication in the Court's appellate jurisdiction. Count II of the Petition sets forth a claim in the Court's original jurisdiction against the Department, alleging that the Department violated Carr's free speech rights under the First Amendment of the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution.[3] Count III of the Petition sets forth a due process claim in the Court's original jurisdiction against the Commission, alleging that the Commission failed to provide Carr adequate due process, in violation of Article I, Section 11 of the Pennsylvania Constitution.[4]Additionally, Count III seeks declaratory and injunctive relief in the form of an order declaring that the Commission violated Carr's due process rights and compelling the Commission to comply with governing procedures in issuing decisions.

         In response, the Commission filed an application for summary relief seeking dismissal of Carr's petition insofar as it attempts to set forth any original jurisdiction claims against the Commission.[5] By order dated October 23, 2017, this Court directed the parties to address the Commission's application for summary relief in their principal briefs on the merits, [6] and the Commission filed a brief addressing the original jurisdiction counts to the extent that they apply to the Commission.[7] The Department did not file an application for summary relief, although it did file a brief addressing the merits of Carr's appeal of the Adjudication. Similarly, Carr did not file an application for summary relief, although Carr filed a brief addressing the Commission's application and the merits of the appeal. Before proceeding to the merits of the appeal, we will first evaluate the Commission's application for summary relief.

         As previously mentioned, Count II of Carr's Petition alleges that the Department violated Carr's free speech rights under the First Amendment of the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution. In its application for summary relief, the Commission correctly avers that Count II of the Petition alleges violations on behalf of the Department only and does not allege any violation on behalf of the Commission, which Carr does not dispute.

         Count III of Carr's Petition alleges that the Commission failed to provide Carr adequate due process in violation of Article I, Section 11 of the Pennsylvania Constitution. Specifically, Carr alleges that the Commission violated her due process rights by failing to report its findings from Carr's appeal hearing within 90 days, as required by Section 952(a) of the Act.[8] In support of her argument, Carr points out that the Commission held her appeal hearing on November 17, 2016, and did not report its findings until August 1, 2017—257 days after the Commission's hearing. Carr argues that this Court should read Section 952(a) as a mandatory provision, which would serve to invalidate any proceeding wherein the Commission fails to report its findings within 90 days. Carr argues that reading Section 952(a) as directory permits excessive delays in the Commission's reporting of its findings, and such delays undercut the stated purpose of the Act.[9] In response, the Commission argues that it did not violate Carr's due process rights, as it avers that this Court has previously determined that the 90-day provision in Section 952(a) is directory, not mandatory.

         Whether the Commission's failure to report its findings within 90 days invalidates the proceeding depends on whether Section 952(a) is mandatory or directory. See Fishkin v. Hi-Acres, Inc., 341 A.2d 95, 99 n.5 (Pa. 1975) (stating that distinction between mandatory and directory statutory provisions lies in effect of noncompliance upon transaction or proceeding involved). In West Penn Power Company v. Pennsylvania Public Utility Commission, 521 A.2d 75 (Pa. Cmwlth. 1987), we explained the difference between mandatory and directory statutory provisions as follows:

Whether a statute is mandatory or directory must be determined by considering legislative intent gleaned from review of the entire statute and from considering the nature and object of the statute and the consequences of the construction of it one way or the other. If the thing directed to be done is the essence of the thing required, the statute is mandatory. If, however, the statute merely directs that certain proceedings be done in a certain manner or at a certain time, it is directory. Failure to follow a mandatory statute renders the proceedings void, whereas failure to follow a directory statute does not.

West Penn Power Co., 521 A.2d at 78 (internal citations omitted).

         In Baker v. Department of Public Welfare, 588 A.2d 1337 (Pa. Cmwlth. 1991), this Court previously held that the 90-day provision in Section 952(a) of the Act is directory, not mandatory. In so holding, we opined:

This Court has previously held that statutes which seek to impose time limitations on adjudicating tribunals are directory only. Such an interpretation is not only logical but almost compelled because otherwise the parties would bear the consequences for the adjudicating body's tardiness. In the context of this appeal this would amount to a "deemed decision" with complete disregard for the merit concept which forms the cornerstone of civil service law. For example, an employee who was removed for attacking a co-worker might need to be reinstated because the Commission's adjudication was not timely rendered. And, from the other point of view, an employee denied a promotion because of racial or ethnic reasons would not be placed in the job because the Commission failed to act promptly. Such results would clearly be contrary to the Act's purpose of rendering personnel decisions on the basis of merit criteria. Accordingly, we conclude that the ninety-day provision in Section 952(a) [of the Act] must be read as directory and thus the adjudication is not invalid.

Baker, 588 A.2d at 1340-41 (internal citations omitted). Accordingly, we reject Carr's argument that the 90-day provision in Section ...


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