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.