S. Smith v. St. CSC (Phila. County Assistance Office, Dept. of Public Welfare) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Stanley B. Smith, : Petitioner : : v. : : State Civil Service Commission : (Philadelphia County Assistance Office, : Department of Public Welfare), : Respondents : BEFORE: No. 256 C.D. 2008 Submitted: May 2, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: July 10, 2008 Stanley B. Smith (Smith) petitions for review from an order of the State Civil Service Commission (Commission) which denied his request for a hearing, determining that there was an insufficient allegation of discrimination. We affirm. In a letter dated December 3, 2007, the Philadelphia County Assistance Office, Department of Public Welfare removed Smith from his probationary position of income maintenance caseworker trainee. On December 11, 2007, Smith filed an appeal request with the Commission challenging his removal. On his appeal request form, Smith marked pre-printed boxes indicating that his removal resulted from discrimination based on race, age, sex and disability. Smith provided the following responses with respect to questions on the appeal form: REASONS: ANSWER THE FOLLOWING QUESTIONS AS COMPLETELY AS POSSIBLE. FAILURE TO DO SO MAY RESULT IN DENIAL OF YOUR APPEAL. (Attach additional sheets if necessary.) A. What action(s) occurred which led you to believe you were discriminated against? Employee probationary 11/13/07 was wrong. performance review dated B. Where and when did this action happen? Ridge Cao 11/13/07 + 11/28/07 C. Who discriminated against you? Provide name(s) and job title(s). Supervisor Dynah Davis Nichols D. Do you believe the Civil Service Act and/or Rules were violated? If so, what section(s)? Civil Service Section 804. They falsified facts to justify removal. Smith also provided attachments, including charts, certificates and calendars. Additionally, Smith attached his employee performance review (review) for the time period of June 11, 2007 through December 7, 2007. Smith received an overall rating of unsatisfactory on the review. In the comment section of the review, Smith wrote These comments are discriminatory because we are required to review policy & procedures & ask questions. When I ask questions, I m always written up as being ignorant. 2 In an order dated January 16, 2008, the Commission denied Smith s request for a hearing because he has not indicated acts, which, if proven, would constitute discrimination, although requested to do so on the Appeal Request Form. (Commission s January 16, 2008 order.) On January 29, 2008, Smith sent to the Commission a request for reconsideration, submitting additional information to support his discrimination claim. Petitioner wrote in pertinent part: I first became aware of the problem this past November 13, 2007, when I was asked to come with my supervisor Ms. Nichols. It was at this time that she presented [me] with the Employee [P]erformance Review Probationary. I told her that she knew and I knew that these comments were not true. But the form said, I had to sign [ ] where it said, I read the review, but did not agree, I complied. I of course had no idea, that it would lead to this. Smith, in addition to including a copy of his original appeal and attachments, also included a statement explaining the discrimination. The letter provides: There were three people in my training group, 2 females, both middle thirties, and myself, sixty years old; plus two females in a different group. With the females in my group; we were all being trained at the same time, but I was the only student rated unsatisfactory. The supervisor, was secretly writing me up, while at the same time training us. I became aware of the discrimination on November 13, 2007, when I was given the evaluation. This discrimination was reinforced November 28, 2007 at the Pre-disciplinary Conference. It was at this hearing that I was labeled an Idiot and made fun of. The most disturbing thing about this is, I sincerely believe, that my treatment was planned and that I was supposed to react in a non-professional manner and lose my cool. 3 The Commission, in a letter mailed February 6, 2008, denied Smith s reconsideration request. Thereafter, Smith filed a petition for review with this court.1 With respect to probationary employees such as Smith, Section 603(a) of the Civil Service Act (Act), provides that the appointing authority may remove an employe if in the opinion of the appointing authority the probation indicates that such employe is unable or unwilling to perform the duties satisfactorily or that the employe s dependability does not merit continuance in the service. 2 However, no employe shall be discriminated against because of political or religious opinions or affiliations because of labor union affiliations or because of race, national origin or other non-merit factors. Section 905.1 of the Act, added by the Act of August 27, 1963, P.L. 1257, 71 P.S. § 741.905a. To prevail on a discrimination charge, a person challenging the adverse personnel action must first allege with specificity the underlying bases of the alleged discriminatory acts. Norristown State Hospital v. Bruce, 450 A.2d 1093, 1094 (Pa. Cmwlth. 1982). Discrimination cannot be inferred, there must be affirmative factual support to sustain the allegation. Craig v. State Civil Service Commission (Department of Environmental Protection), 800 A.2d 364 (Pa. Cmwlth. 2002). The Commission may dismiss an appeal when the aggrieved party fails to allege discrimination with sufficient specificity. Id. 1 Our review is limited to determining whether constitutional rights have been violated, an error of law committed or whether the Commission s findings are supported by substantial evidence. Balas v. Department of Public Welfare, 563 A.2d 219 (Pa. Cmwlth. 1989). 2 Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §741.603(a). 4 In determining whether Smith s appeal to the Commission stated sufficient facts to establish a claim of discrimination, this court is guided by 4 Pa. Code § 105.12(c) which provides: (c) Appeals alleging discrimination which do not include specific facts relating to discrimination may be dismissed. Specific facts which should appear on the appeal form include: (1) The acts complained of. (2) How the treatment differs from treatment of others similarly situated. (3) When the acts occurred. (4) When and how the appellant first became aware of the alleged discrimination. In this case, Smith s appeal request form to the Commission did not include specific allegations of discrimination as is required by 4 Pa. Code § 105.12(c). Although Smith marked pre-printed boxes indicating that his removal resulted from discrimination based on race, age, sex and disability, Smith did not provide any facts, which if proven, would support a claim of discrimination. Specifically, Smith s appeal form did not state his race nor the race of others. Smith also did not list his sex or age or the sex and age of others. Additionally, Smith did not identify any alleged disability. Mere allegations of discrimination are insufficient to state a cause of action on the basis of Section 905.1 of the Act. Bellew v. State Civil Service Commission, 543 A.2d 1266 (Pa. Cmwlth. 1988). Smith s complaints, instead, are focused on his unsatisfactory performance review. In Kelly v. Jones, 419 Pa. 305, 312, 214 A.2d 345, 350 (1965), the Court stated that if a probationary employee cannot sustain his allegations of discrimination, 5 then his dismissal must stand without any right of appeal as to the validity of the determination of unsatisfactory work performance. (Citation omitted.) Moreover, Smith s request for reconsideration did not set forth a sufficient allegation of discrimination. As previously stated, Smith included the following in his reconsideration request: There were three people in my training group, 2 females, both middle thirties, and myself, sixty years old; plus two females in a different group. With the females in my group, we were all being trained at the same time, but I was the only student rated unsatisfactory. The supervisor was secretly writing me up, while at the same time training us. I became aware of the discrimination on November 13, 2007, when I was given the evaluation. Although Smith mentions that there were two females in his training group and two females in the other group, without more, such is insufficient to state a claim. In Keim v. Department of Health, 543 A.2d 1261 (Pa. Cmwlth. 1988), Keim alleged that she was denied a position based on her sex. She claimed that her nonselection for the position was discriminatory because she is a female while the appointee was a male. This court held that Keim s allegation that a male was appointed, standing alone, was insufficient to state a claim for discrimination. Similarly here, Smith s additional claim that two of the other trainees were in their mid-thirties, standing alone, is insufficient to state a claim for discrimination. In accordance with the above, the decision of the Commission is affirmed. JIM FLAHERTY, Senior Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Stanley B. Smith, : Petitioner : : v. : : State Civil Service Commission : (Philadelphia County Assistance Office, : Department of Public Welfare), : Respondents : No. 256 C.D. 2008 ORDER Now, July 10, 2008, the Order of the State Civil Service Commission, in the above-captioned matter, is affirmed. JIM FLAHERTY, Senior Judge

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