COMMONWEALTH OF PENNSYLVANIA Natural Resources : …webcontent.oa.pa.gov/legal/documents/29802.pdf · Semi-Skilled Laborer, regular status. Comm. Ex. A. 2. Appellant’s workdays

COMMONWEALTH OF PENNSYLVANIA

Roger L. Morrow : State Civil Service Commission

:

v. :

:

Department of Conservation and :

Natural Resources : Appeal No. 29802

Patrick V. Hammonds Mark C. Baldwin

Attorney for Appellant Attorney for Appointing Authority

ADJUDICATION

This is an appeal by Roger L. Morrow challenging his nineteen-day

suspension from regular Semi-Skilled Laborer employment with Department of

Conservation and Natural Resources. A hearing was held February 27, 2018, at the

State Civil Service Commission’s Western Regional Office in Pittsburgh,

Pennsylvania before Commissioner Odelfa Smith Preston.

The Commissioners have reviewed the Notes of Testimony and

exhibits introduced at the hearing. The issue before the Commission is whether there

is good cause for appellant’s suspension.

FINDINGS OF FACT

1. By letter dated November 30, 2017, appellant was

suspended for nineteen days from his position as

Semi-Skilled Laborer, regular status. Comm. Ex.

A.

2. Appellant’s workdays from October 31, 2017

through November 24, 2017 were converted from

suspension pending investigation to a nineteen-day

suspension without pay with a final warning.

Comm. Ex. A.

2. In the November 30, 2017 letter, the appointing

authority alleged that the reasons for the suspension

and final warning were as follows:

Misuse or removal of personal

property belonging to Brian Flores,

Assistant Park Manager, Moraine

State Park, from his residence

without permission. Specifically, on

or about October 26, 2017, you were

assigned to paint the residence on Big

Run Road, when it was discovered that

you had removed some antique door

hardware from the house that was

stored in a kitchen cabinet. These

items were the property of Brian

Flores, Park Manager.

Failure to follow instruction, policy,

or procedure. Specifically, you had

previously been counselled, and

subsequently disciplined, regarding

taking items that do not belong to you

from anywhere in the park.

Comm. Ex. A (emphasis in original).

3. The appeal was properly raised before this

Commission and was heard under Section 951(a) of

the Civil Service Act, as amended.

4. Appellant is employed by the appointing authority

as a semi-skilled laborer. Appellant is a seasonal

employee and works from March through

October/November. N.T. pp. 25-26, 129-130.

5. Appellant began working for the appointing

authority in 2000. N.T. p. 130.

6. As a semi-skilled laborer, appellant is generally

responsible for “park beautification,” which

includes pruning and clearing trails. N.T. p. 131.

7 Appellant has some discretion in his

responsibilities. N.T. pp. 71-72, 131-132.

8. In October of 2017, the Big Run residence at

Moraine State Park was being completely

renovated. N.T. pp. 17, 19.

9. On October 26, 2017, appellant was assigned to

paint trim and closet doors at the Big Run residence.

N.T. pp. 20, 65, 144.

10. During his 10:00 a.m. break on October 26, 2017,

appellant found door fixtures in the kitchen cabinets

at the Big Run residence. N.T. pp. 150-151.

11. Appellant assumed that the door fixtures belonged

to the doors that came with the house. The door

fixtures actually belonged to the Assistant Park

Manager. N.T. pp. 26-27, 151, 168.

12. Appellant gathered the door fixtures in a grocery

bag and put them behind the seat of his work truck.

N.T. pp. 154, 164-165, 193-194, 216.

13. Appellant intended to take the door fixtures to the

maintenance shop and clean them up. N.T. pp. 151-

152.

14. Sometime after 10:30 a.m. on October 26, 2017, and

after appellant had gathered the door fixtures,

appellant’s supervisor arrived at the Big Run

residence to work on the wiring. Appellant’s

supervisor stayed at the Big Run residence for

approximately two to three hours. N.T. pp. 156-

157.

15. Appellant mentioned to his supervisor that he had

the door fixtures to do. N.T. pp. 157-158.

16. Around 2:30 p.m. on October 26, 2017, the

Assistant Park Manager came to the Big Run

residence. When the Assistant Park Manager

arrived, appellant was working in the bedroom on

the second floor. N.T. pp. 18, 20, 160, 162.

17. The Assistant Park Manager came into the bedroom

and screamed at appellant about an item, which he

believed had been on the windowsill in the

bedroom. Appellant told the Assistant Park

Manager that he never saw the item and may have

unknowingly swept it up. N.T. pp. 162-163, 198-

200.

18. The Assistant Park Manager left the bedroom and

went downstairs to the kitchen. At this time, the

Assistant Park Manager kept saying, “What else is

there? What else is missing?” N.T. pp. 162-163,

218.

19. Appellant followed the Assistant Park Manager

downstairs, and the Assistant Park Manager asked

appellant, “Where are the doorknobs? Where’s the

hardware?” Appellant responded, “Out in the truck

behind the seat.” Appellant also tried to explain to

that Assistant Park Manager what he intended to do

with the door fixtures. N.T. pp. 163, 200.

20. Appellant and the Assistant Park Manager went out

to the truck. Appellant gave the Assistant Park

Manager the grocery bag containing all of the door

fixtures that he had gathered. However, there was a

glass doorknob missing from the bag. The glass

doorknob was later found in appellant’s work truck

on the floor by the center console. N.T. pp. 34-37,

41, 163, 192.

21. When working on painting projects, appellant

always “cleans up” the door fixtures by taking the

fixtures to the maintenance shop and cleaning them

with thin oil, fine steel wool, and fine sandpaper.

Throughout his career, appellant has done such

things without getting specific permission. N.T. pp.

152, 169, 202, 206-207.

DISCUSSION

The issue in the present appeal is whether the appointing authority

established good cause for appellant’s suspension. Appellant was suspended for

nineteen days from his regular status position of Semi-Skilled Laborer on charges

that he removed antique hardware, which belonged to the Assistant Park Manager,

from the Assistant Park Manager’s residence. Comm. Ex. A. The text of the charges

is listed in Finding of Fact 3.

In an appeal challenging the suspension of a regular status employee,

the appointing authority bears the burden of establishing good cause for the

personnel action. White v. Commonwealth, Department of Corrections, 110 Pa.

Commw. 496, 532 A.2d 950 (1986); 71 P.S. §§ 741.803, 741.951(a); 4 Pa. Code

§ 105.15. Good cause must be based upon meritorious criteria and be related to

one’s competency and ability to execute job duties properly. White, 110 Pa.

Commw. at 498, 532 A.2d at 951.

In support of its charges, the appointing authority presented the

testimony of Brian Flores, Greg Patterson, Dustin Drew, Jeffrey Anna, and

Joseph Powell. In response, appellant testified on his own behalf.

Brian Flores is an Assistant Park Manager at Moraine State Park in

Butler County. N.T. pp. 14, 16. Flores has held this position since February 2017.

N.T. pp. 14, 16. Prior to that, Flores was a Park Manager for thirteen years at Tyler

State Park in Bucks County. N.T. pp. 15-16.

Flores testified that there are 120 state parks. N.T. pp. 17-18. Flores

explained that management responsibilities for each park are ranked based on the

size or location of the park. N.T. p. 18. Flores stated that Moraine State Park is a

higher ranked park than Tyler State Park. N.T. p. 18. By effect, Flores’ acceptance

of the Assistant Manager position at Moraine State Park was considered a lateral

move because Moraine State Park is a bigger, higher-ranked park than Tyler State

Park. N.T. pp. 17-18.

Flores testified that his duties include overseeing park operations,

supervising staff, law enforcement, programming, ensuring safety of visitors,

managing projects, grants, finances and budgets. N.T. pp. 16-17.

Flores testified that he lives at Moraine State Park in a residence owned

by the Commonwealth, which is referred to as the Big Run residence. N.T. pp. 17-

19. Flores testified that on October 26, 2017 at around 2:30 p.m., he stopped at the

Big Run residence before returning to his office after a quarterly manager’s meeting.

N.T. p. 18. Flores stated that he stopped at the residence to check on the progress of

the work that was being done there. N.T. pp. 18-19. Flores explained that the

residence had been completely renovated, but there were still some finishing

touches, such as painting, spackling, and carpentry work, that needed to be done.

N.T. p. 19.

Flores stated that when he arrived at the residence, appellant was on the

second floor. N.T. p. 20. Flores explained that appellant is a semi-skilled seasonal

worker, which means that he works at Moraine State Park during its peak season,

which is from March through October/November. N.T. pp. 25-26.

Flores further explained that appellant had been assigned to paint closet

doors at the residence. N.T. p. 20. Flores stated that he noticed that an antique door

handle that had been sitting on the windowsill was missing. N.T. pp. 21, 43. Flores

explained that the previous evening, he had been at the residence until 6:00 p.m. or

7:00 p.m. painting, at which time, he took the door fixture off the wall and placed it

on the windowsill. N.T. pp. 21-22, 44-45. Flores stated that he asked appellant if

he knew anything about the door fixture. N.T. p. 21. According to Flores, appellant

responded, “I don’t know what you are talking about.” N.T. p. 21. Flores stated that

he asked appellant again, “Where is it? I know it was here.” N.T. p. 23. Flores

stated that he explained the situation to appellant and said, “I know exactly where it

was at.” N.T. p. 24. According to Flores, appellant responded, “It must have fell on

the ground while I was cleaning up or sweeping.” N.T. p. 24.

Flores testified that he then proceeded to search downstairs because he

had some other fixtures in the house that were in a cabinet. N.T. p. 24. Flores stated

that the fixtures in the cabinet were also missing. N.T. p. 24. Flores stated that he

asked appellant a third time, “Where are my fixtures?” N.T. p. 24. Flores explained

that this time, he became more assertive and said, “Where are they at? This is your

last chance. I need to know.” N.T. p. 24. Flores stated that appellant responded, “I

have them in my work truck. They’re in a bag. I was told to clean them.” N.T. p.

24. Flores asked appellant who told him to clean the fixtures, to which appellant

responded “Greg,” meaning Greg Patterson, who is appellant’s supervisor. N.T. pp.

24-25. Appellant explained to Flores that Patterson had given him permission to

take the fixtures to clean them. N.T. p. 31.

Flores testified that he became upset at the situation, and asked

appellant multiple times to leave. N.T. pp. 31-32. Flores stated that he said, “Please

leave,” but as he tried to walk away and go back into the house, appellant approached

him and said, “I just want to explain. I want to explain. I want to explain.” N.T. p.

32. To which Flores responded, “I don’t want to hear it. Please leave.” N.T. p. 32.

Flores stated that, after asking appellant to leave three or four times, he said to

appellant, “Nobody likes you. I hope you don’t come back next year,” and then

appellant left. N.T. p. 32. Flores testified that after appellant left, he went back into

the house and noticed a few other little things that were missing, including some

coatrack hangers and another doorknob. N.T. p. 32.

Flores testified that the fixtures were his personal belongings. N.T. pp.

26-27. Flores stated that he likes antiques and has collected different types of antique

fixtures from his father’s estate, his father-in-law’s house, and his travels. N.T. p.

26. Flores explained that he was temporarily adding the fixtures to the residence

because he wanted to put some historical touches on the house, which was built in

1870. N.T. pp. 26-27. Flores described the fixtures as follows: (1) a glass doorknob;

(2) a pearl doorknob; (3) a brass doorknob; (4) a hinge pin; (5) two door handle

covers; (6) an ornate lock; and (7) a pearl handle. N.T. pp. 28-29; AA Exs. 4 and 5.

Flores noted that the pearl handle was the fixture that was missing from

the windowsill. N.T. pp. 30, 37, 43-44; AA Ex. 5. Flores stated that the other

fixtures were organized by type of fixture in the kitchen cabinets, which would have

been closed. N.T. pp. 37-39, 41-42, 47; AA Ex. 6. Flores explained that he had all

of the handles in one area, door locks in another, and hinges in another. N.T. p. 41.

Flores stated that the fixtures were not in bags or boxes, but “were just laying on the

counter --- or on the --- in the cupboard.” N.T. p. 41. Also, nearby were other

fixtures removed from the doors, which were not Flores’ personal property. N.T. p.

50. Flores noted that the kitchen is located on the first floor, and the only reason for

appellant to be on the first floor would be to use the sink or the bathroom. N.T. pp.

38, 40. Flores also noted that appellant would not have had any reason to go in the

cabinets because everything he may have needed, such as paper towels or soap, were

on the counter. N.T. p. 40.

Flores testified that, prior to appellant leaving the residence, he had

instructed appellant to remove the fixtures from his work vehicle. N.T. p. 33. Flores

stated that appellant gave him a plastic grocery bag containing all of the above listed

fixtures, except for the glass doorknob. N.T. pp. 34-37, 41. Flores also stated that

a brush and cleaning tool were recovered from appellant’s work vehicle. N.T. p. 37;

AA Ex. 5. Flores explained that after finding the items in appellant’s work vehicle,

he wanted appellant to leave because he was upset and felt violated. N.T. pp. 52-54.

Flores stated that he had no interest at the time of listening to appellant’s version of

what happened. N.T. p. 52.

Flores stated that he planned to call his supervisor and then figure out

what they were going to do. N.T. p. 52. Flores further stated that he wanted

appellant to leave because it was a contentious situation and he did not want

something to be said or to happen. N.T. p. 53. Flores also noted that he did not

believe appellant’s justification for taking the fixtures, that being to clean them,

because he felt appellant gave him three different stories. N.T. pp. 55-56.

Flores testified that, after appellant left the residence, he went to the

maintenance area to check appellant’s work vehicle again for additional missing

items. N.T. pp. 32-33. Flores explained that the maintenance area is only about a

one-minute drive, less than 200 yards, from the residence. N.T. p. 34. Flores stated

that the only other item he found in the work vehicle was the glass doorknob, which

was on the floor by the center console. N.T. pp. 33-35, 40-41; AA Ex. 4. Flores

added that when he went to the maintenance area, Patterson was there and he spoke

to him about what had happened with appellant. N.T. p. 33. Flores stated that he

pointed out the glass doorknob to Patterson, and asked Patterson whether he had

given appellant instructions or permission to take any of the items listed above or to

clean those items. N.T. pp. 33-34. According to Flores, Patterson responded, “No.”

N.T. p. 34.

Greg Patterson is a Maintenance Supervisor 2 at the Moraine State Park

Complex. N.T. p. 62. Patterson has held this position for approximately eight years.

N.T. p. 62. As a Maintenance Supervisor 2, Patterson oversees approximately

seventeen employees, including seasonal and full-time staff. N.T. p. 63. Patterson

is also responsible for assigning daily tasks to the employees, calculating cost

estimates, facilitating purchasing, conducting safety meetings and talks, and

working alongside the employees. N.T. p. 63.

Patterson testified that during the afternoon of October 26, 2017, Flores

came to the maintenance building. N.T. pp. 63-64. Patterson stated that when Flores

arrived, he said, “I want to continue my investigation. I want to look inside his work

truck.” N.T. p. 64. Patterson explained that appellant was already on-site when

Flores arrived. N.T. p. 64.

Patterson testified that appellant has worked for the appointing

authority for approximately seventeen seasons. N.T. p. 65. Patterson stated that on

October 26, 2017, he had assigned appellant to work at the Big Run residence,

painting trim and closet doors. N.T. p. 65. Patterson stated that he did not give

appellant permission to remove any items from the residence, including doorknobs

or antique items. N.T. pp. 65-66. However, Patterson acknowledged that he does

not micromanage the employees because he “want[s] to give people some ownership

over their work to create stewardship within the Department of Conservation and

Natural Resources.” N.T. pp. 71-72. Patterson also acknowledged that slight

deviations may occur from the specific work orders that have been given to an

employee. N.T. p. 72. For example, if an employee were on his way to a specific

task and noticed that a tree needed to be pruned because it was posing a danger along

a walking path, the employee could deviate from his specific job duty and prune the

tree. N.T. p. 76.

Patterson testified that appellant signed acknowledgement forms on

April 23, 2013 and March 20, 2017, indicating that he received a copy of the Work

Rules. N.T. p. 70; AA Exs. 2 and 3. Patterson indicated that he is able to recognize

appellant’s signature because he reviews appellant’s time sheets every two weeks.

N.T. p. 66.

Dustin Drew is the Park Operations Manager at the Moraine State Park

Complex. N.T. p. 80. Drew has held this position for approximately four years.

N.T. p. 80. As the Park Operations Manager, Drew is responsible for the operation

and maintenance of the park. N.T. p. 81. To that end, Drew administers and

manages the budget, oversees the maintenance tasks and operations, and “basically

oversees the entire park.” N.T. p. 81. Drew also either directly or indirectly

supervises the entire park staff because everything comes to him through the chain

of command. N.T. pp. 81-82.

Drew stated that, when employees are hired, they are provided an

opportunity to review the Work Rules that they are expected to follow. N.T. pp. 86-

87; AA Ex. 1. The employees also sign an acknowledgement upon reviewing the

Work Rules. N.T. p. 87; AA Exs. 2, 3.

Drew testified that during the afternoon of October 26, 2017, Flores

came to his office and told him what happened with appellant. N.T. p. 82. Drew

directed Flores to write a written statement. N.T. p. 83. Drew stated that appellant

also came to speak with him, and he, likewise, directed appellant to provide a written

statement. N.T. pp. 83-84. Drew explained that it is normal practice to request

written statements anytime there may be an investigation for a workplace policy

violation. N.T. pp. 83-84.

Drew testified that on October 26, 2017, he contacted his supervisor,

Jeffrey Anna, who works at the regional office. N.T. p. 84. Drew stated that he

informed Anna of the information that he knew at that point. N.T. pp. 84-85. Drew

also told Anna that he would continue investigating the matter. N.T. p. 85. Drew

noted that he had not yet spoken to Patterson. N.T. p. 85. Drew further noted that

the investigation continued into the next week. N.T. p. 85.

Drew stated that appellant was off on Friday, October 27, 2017. N.T.

p. 84. During the morning on Monday, October 30, 2017, appellant came to Drew’s

office and asked to add to the statement that he had written on Thursday, October 26,

2017. N.T. p. 85. Drew stated that he allowed appellant to do so. N.T. p. 85. Drew

further stated that Anna also came to his office at which time they explained to

appellant that he was suspended pending investigation. N.T. p. 86. In other words,

appellant was not to report to work until the matter could be fully investigated. N.T.

p. 86. A letter dated October 31, 2017 was subsequently sent by Human Resources

to appellant which provided written documentation of the suspension pending

investigation. N.T. pp. 86, 88; AA Ex. 7.

Drew testified that, by memos dated November 9 and 13, 2017,

appellant was notified of his pre-disciplinary conference. N.T. pp. 88, 90; AA Exs.

8, 9. At the top of the November 13, 2017 memo, it indicates that this is a “corrected

memo.” N.T. p. 88; AA Ex. 9. The November 9, 2017 memo did not list the time

for the pre-disciplinary conference. N.T. pp. 88-89; AA Ex. 8. The November 13,

2017 memo corrected this deficiency. AA Ex. 9. Both memos listed the allegation

against appellant which was being investigated. N.T. p. 90; AA Exs. 8, 9.

Drew testified that the pre-disciplinary conference was scheduled for

November 16, 2017. N.T. p. 89. Drew explained that the pre-disciplinary

conference provides the employee with an opportunity to ask questions, clarify the

matter, and tell their side of the story. N.T. pp. 89-90. Drew stated that the pre-

disciplinary conference took place as scheduled. N.T. p. 90. Present at the pre-

disciplinary conference were appellant, Drew, Anna, and Danyle Verzinskie, who is

the Administrative Officer for the region. N.T. p. 91.

Jeffrey Anna is an Operations Manager 2 with the Department of

Conservation and Natural Resources. N.T. p. 93. The working title for this position

is Assistant Regional Manager. N.T. p. 93. Anna explained that there are four

regions and he is the Assistant Regional Manager for Region 2, which is the western

region of Pennsylvania. N.T. p. 94. Anna has held this position for approximately

fourteen years. N.T. p. 93. As an Assistant Regional Manager, Anna supervises

nine parks, serves as council for operations, and administers several statewide

programs across his region. N.T. p. 94. Anna is also responsible for safety, vehicles,

and resource management, among other things. N.T. p. 94. Anna testified that

Moraine State Park is one of the state parks that he primarily supervises. N.T. p. 95.

Anna testified that between 3:00 p.m. and 3:30 p.m. on October 26,

2017, Drew contacted him about a matter involving Flores and appellant. N.T. p.

96. After speaking with Drew, Anna contacted Verzinskie and Joseph Powell. N.T.

p. 96. Anna explained that he is in Flores and appellant’s chain of command for

disciplinary matters. N.T. 96-97.

Anna testified that on Monday, October 30, 2017, he went to Moraine

State Park and engaged in a discussion with Drew and appellant. N.T. p. 97. Anna

stated that he reviewed and compared the witness statements written by appellant

and Flores. N.T. p. 97. Anna explained that it was determined that appellant should

not return to work until the investigation was completed. N.T. pp. 97-98. Anna

added that this was considered to be a serious matter. N.T. p. 98.

Anna testified that on November 16, 2017, a pre-disciplinary

conference was held. N.T. p. 98. Anna stated that the following persons attended

the pre-disciplinary conference: himself, Verzinskie, Drew, and appellant. N.T. p.

98. Anna noted that, prior to the pre-disciplinary conference, appellant was notified

of the charges in writing. N.T. p. 99.

Anna stated that, after listening to appellant’s side of the story during

the pre-disciplinary conference, he reconvened with Verzinskie and Drew in

Verzinskie’s office, at which time, they discussed the incident. N.T. pp. 99-100. At

the conclusion of that discussion, Anna contacted Powell. N.T. p. 100. Anna

explained that it is beneficial to speak with someone like Powell, who works at the

Central Office in Human Resources, because Powell reviews disciplines on a

statewide basis, is impartial, and has no emotions in the situation. N.T. pp. 100-101.

Joseph Powell reports to the Office of Administration and is assigned

to the Environment and Resource Human Resources Service Center. N.T. p. 102.

Powell explained that his responsibilities and the responsibilities of his staff are to

oversee the Employee Relations/Labor Relations function for the appointing

authority, as well as the Department of Agriculture, Department of Environmental

Protection, and the Milk Marketing Board. N.T. pp. 102-104. To that end, Powell

and his staff provide advice and counsel managers and supervisors who work in the

park system and forestry. N.T. p. 105. When incidents are brought to their attention,

Powell and his staff review the documentation and “advise on the appropriate due

process steps to ensure a level of consistency in the entire process.” N.T. p. 105.

Powell testified that he was notified of the alleged offense involving

appellant and Flores, that being appellant was accused of removing antique items

belonging to Flores. N.T. pp. 105-106. Based on the information that he received,

Powell recommended that a pre-disciplinary conference be conducted. N.T. p. 106.

After the pre-disciplinary conference was conducted, Powell spoke with the persons

who were present and reviewed their notes. N.T. p. 106.

Powell testified that typically progressive discipline is utilized. N.T. p.

107. Powell explained that this is “potentially a multistep process where

increasingly more severe levels of discipline are applied for similar offenses.” N.T.

p. 107. However, Powell noted that there is a certain amount of discretion wherein

management has the right and responsibility to determine the appropriate level of

discipline for a particular action. N.T. p. 107. Powell also noted that discipline is

to be corrective. N.T. p. 108.

Powell testified that he considered appellant’s prior discipline when

determining the level of discipline in the instant matter. N.T. p. 108. Powell stated

that previously, appellant was disciplined for two incidents of a similar nature that

occurred in 2016. N.T. pp. 108-109. Powell testified that by letter dated October 31,

2016, appellant was suspended for one day for charging unauthorized purchases to

the “DCNR account.” N.T. pp. 109, 114-115; AA Ex. 12.

Powell testified that by letter dated April 13, 2017, appellant received

a Level-One Alternative Discipline in Lieu of Suspension (hereinafter “ADLS”) for

misuse or removal of park property, unauthorized work time, and failure to follow

instructions or procedures. N.T. pp. 109, 112-113, 115-116; AA Ex. 11. Powell

noted that ADLS letters carry the weight of an unpaid suspension without affecting

the person’s pay or benefits. N.T. p. 109.

Powell further explained that an ADLS letter was issued for the second

infraction as a result of changes to the AFSCME contract, which occurred at the end

of 2016 into 2017. N.T. pp. 114-115. Powell explained that these changes expanded

the ADLS program to include infractions other than time and attendance issues. N.T.

p. 115.

Powell testified that appellant was issued a nineteen-day suspension

and final warning for the conduct that is the subject of the instant appeal. N.T. p.

110; AA Ex. 10. Powell testified that the suspension pending investigation was

converted to part of this discipline. N.T. p. 117. Powell noted that termination was

discussed, but it was determined that corrective action was possible through a

suspension. N.T. p. 116. Powell stated that a longer suspension and final warning

were issued because this was the third incident since 2016. N.T. p. 117. Powell

explained that final warnings are issued when no further corrective measures will be

helpful. N.T. p. 111. Powell further explained that a final warning is a statement to

the employee that should additional offenses of a similar nature be committed, it will

result in termination of employment. N.T. p. 111.

Appellant testified that he is a semi-skilled seasonal employee with the

appointing authority. N.T. p. 129. Appellant began working for the appointing

authority in 2000. N.T. p. 130. Appellant stated that annually, he typically works

between seven and a half months and eight and a half month. N.T. p. 130. Appellant

testified that generally, he is responsible for “park beautification,” meaning that he

prunes, clears trails, and “make[s] things look better.” N.T. p. 131. Appellant stated

that he has some discretion in his responsibilities. N.T. pp. 131-132.

Appellant stated that he has never been criticized by a supervisor, but

noted that a couple of his co-workers, who are now retired felt that some of the things

he did were “a little odd.” N.T. p. 132. Appellant stated that before he was hired,

pruning was not possible, but he received permission to start pruning “the North

Shore,” which led him to be able to prune and do other work on both shores as well

as at “McConnells Mills.” N.T. p. 132. Appellant explained that he usually goes to

Patterson when he needs to obtain permission to do something. N.T. pp. 132-133.

Appellant stated that before Patterson, he went to Doug Thompson, and before

Thompson, he went to two other gentlemen, who have retired. N.T. p. 133.

Appellant stated that he frequently communicates with Patterson. N.T.

p. 133. Appellant stated that typically, at the end of the day, he will inform Patterson

of tasks that he has done which were not specifically assigned to him, but that needed

to be done. N.T. pp. 133-134. Appellant explained that he was often assigned to go

to a particular area to do what needed to be done. N.T. p. 134. For example,

Patterson would simply say, “Go to McConnells Mills,” and appellant would go

there and do what needed to be done. N.T. p. 134. Appellant stated that he did keep

Patterson “abreast of the mowing, in particular, because that was paramount.” N.T.

p. 134.

Appellant explained that when he first started, he did mostly “grunt

work,” such as trimming, weed-wacking, and picking up litter. N.T. p. 135.

Appellant stated that as time went on, they saw that he could paint well and do other

things, such as pruning. N.T. p. 135. Appellant explained that the “old regime” did

not permit them to touch the trees or do much of anything, but now, he does more

work on the walking trails, which is paramount for safety and easy access. N.T. pp.

135-136. Appellant stated that when he first started, you could barely get through

the trails because of invasive plant species. N.T. p. 136. Appellant stated that now,

you can drive a truck down the trails because of the work that he and others have

done. N.T. p. 136. Appellant stated that he is proud of the work that he has done.

N.T. p. 137.

Appellant testified that in 2007, he was diagnosed with stage IV colon

cancer. N.T. p. 137. Appellant explained that he missed a great deal of work because

of his illness. N.T. p. 137. Appellant stated that he had five surgeries, two of which

were major, and he was off work intermittently. N.T. pp. 138-139. Appellant stated

that he was able to return after the first surgery, but he had to undergo six months of

chemo. N.T. p. 139. Appellant explained that the appointing authority was good

about accommodating the time off that he needed. N.T. p. 140. For example, there

were times when the chemo was “so heavy” that he could not work, but there were

other times when the chemo schedule would permit him to come to work, which he

did. N.T. p. 140. Appellant stated that coming to work was therapeutic for him

because he enjoyed his co-workers and doing physical labor. N.T. p. 141. However,

appellant noted that because of his illness he experiences short-term memory loss,

which he refers to as “chemo brain.” N.T. p. 137. For example, he has a hard time

remembering what he did first, second, third, and fourth in a given day. N.T. p. 138.

Appellant testified that, on October 26, 2017, he arrived at work at

7:30 a.m. N.T. p. 143. Upon arriving at work, Patterson went over the staff’s daily

duties. N.T. pp. 143-144. Appellant explained that Patterson typically plans the

work that needs to be done the night before and writes it on a sheet, in case he is

absent the next day or as a reminder. N.T. p. 144.

Appellant stated that on October 26, 2017, he was assigned to

paint/prime the closet doors at the Big Run residence. N.T. p. 144. Appellant

explained that after the meeting during which he received his duties for the day, he

went directly to the Big Run residence, which was only a couple of minutes away.

N.T. p. 145. Appellant noted that the Big Run residence is so close to the

maintenance shop that when there are no leaves on the trees, you can see it from the

maintenance shop and vice versa. N.T. p. 145.

Appellant testified that the Big Run residence was under construction

and there were cuttings and sawdust on the floor, along with power tools, and there

was scaffolding everywhere. N.T. p. 146. Appellant stated that on October 26, 2017,

most of his work was relegated to the second floor. N.T. p. 147. Appellant stated

that the bedroom closet doors had been replaced, and they needed to be primed and

finished. N.T. pp. 147-148. Appellant recalled that some of the doors may have

been primed by Flores, but he was not certain. N.T. p. 148.

Appellant testified that his breaks during his workday are scheduled for

10:00 a.m., 12:00 p.m., and 2:00 p.m. N.T. p. 148. Appellant stated that on

October 26, 2017, when it was time to take his 10:00 a.m. break, he was hungry for

more than a snack. N.T. p. 148. So, he drove to the maintenance shop, heated his

lunch in the microwave, and then drove back to the Big Run residence because he

did not want to leave the residence “unmanned.” N.T. pp. 148-149, 189, 195.

Appellant testified that he washed his hands before he ate, but did not

see any paper towels. N.T. p. 150. Appellant stated that there were shop rags on the

counter, but they had been used extensively. N.T. p. 150. Appellant thought that

the paper towels might be in the cabinets, but he did not find any and dried his hands

on his workpants. N.T. p. 151. Appellant recalled that the cabinets were closed.

N.T. p. 196. Appellant stated that he found the doorknobs when he was looking for

the paper towels and assumed that the doorknobs belonged to the doors that came

with the house. N.T. pp. 151, 168. Appellant testified that, at that time, he did not

know that Flores had rented the residence. N.T. p. 149, 168. Appellant stated that

there was no furniture in the house and it was a mess. N.T. p. 168.

Appellant testified that over the years when he worked on painting

projects, he always “cleans up” the door fixtures by taking the fixtures to the

maintenance shop and cleaning them with thin oil, fine steel wool, and fine

sandpaper. N.T. pp. 152, 169, 202. For example, when appellant worked on a

restroom, he stripped down the door closures and redid the faucets and hardware.

N.T. p. 152. Appellant explained that he noticed that the fixtures that were in the

cabinet need to be “cleaned up a little bit.” N.T. p. 152. So, he gathered the fixtures

in a grocery bag and put them behind the seat of his work truck because that was the

safest place. N.T. pp. 154, 165. Appellant explained that he is not the only person

who uses the truck, which is why he puts anything he wants to keep safe, meaning

that he does not want it to “get beat up,” behind the seat. N.T. pp. 154-155.

Appellant noted that he also had other things in the truck on which he intended to

work, but he could not remember specifically what they were. N.T. pp. 154-155.

Appellant testified that, during his 10:00 a.m. break, he also walked

around the residence because he had not seen the work that had been done and he

was curious because the house is part of the state park complex. N.T. pp. 149, 212.

Appellant further added that he needs to walk around because he has a severe case

of neuropathy from his chemo treatment. N.T. p. 150. Appellant explained that

standing and doing painting was a little difficult for him, but noted that the

appointing authority had been accommodating. N.T. p. 150.

Appellant also noted that he found a frame in a garbage bag in the

basement when he was eating his lunch at 10:00 a.m. N.T. p. 161. Appellant stated

that cuttings were also in the garbage bag, but the frame was too nice to be thrown

away, which is why he cleaned it up. N.T. pp. 161-162. Appellant noted that he put

the cleaned-up frame near the register in the bedroom so that it could dry. N.T. pp.

161-162. Appellant noted that the frame was in the bedroom where everyone would

have been able to see it. N.T. p. 162.

Appellant testified that Patterson arrived to work on the wiring

sometime after 10:30 a.m. and after he removed the items from the cabinets. N.T.

p. 156. Appellant stated that Patterson was at the residence for approximately two

to three hours. N.T. p. 157. Appellant recalled having a conversation with Patterson

in the hallway between the bedrooms. N.T. pp. 157-158. During this conversation,

Patterson said that he had to do something else, and appellant commented, “And I

have the hardware to do,” to which Patterson said something like “stay busy.” N.T.

pp. 157-158, 220. Appellant did not remember the specifics of their conversation.

N.T. p. 157. Appellant explained that it was not really a conversation, but rather was

said in passing. N.T. p. 158.

Appellant stated that he told Flores what he had said to Patterson in

passing. N.T. pp. 197-198. Appellant denied telling Flores that Patterson

specifically gave him permission to clean the hardware. N.T. pp. 197-198.

Appellant stated that no one gave him permission to remove the doorknobs, nor

would he need permission from a supervisor to do so. N.T. pp. 205-206, 213-216,

221. Appellant explained that throughout his career, he has done such things without

getting specific permission. N.T. pp. 206-207. Appellant stated that everyone who

works at the park does this. N.T. pp. 214-215. For example, appellant stated that

one of his co-workers chases geese off the beach every day, even though he is not

specifically told to do so. N.T. p. 228. Appellant stated if you are enroute from one

place to another and see something that is unsafe, such as a fallen branch, or

something that needs to be done, you should do it. N.T. p. 228. Appellant explained

that “with experience comes the ability to make decisions about what needs to be

done and when it needs to be done within the confines of making sure that what you

were told to do gets done.” N.T. p. 228.

Appellant recalled that he was away from the residence for a bit to clear

a dead branch that was on Big Run Road, but he was unable to remember whether

anything else took him away from the residence. N.T. p. 160. Appellant stated that

he cannot remember if he cleared the branch before or after his noon break, but stated

that it would have been sometime within that hour. N.T. pp. 210-211. Appellant

stated that he did not go anywhere for his noon break. N.T. pp. 160-161. Appellant

believes that he must have eaten his 10:00 a.m. snack at lunchtime. N.T. p. 161.

Appellant testified that Flores came to the residence at some point in

the afternoon. N.T. p. 160. Appellant stated that, while he was working in the

bedroom, Flores “freaked out” and began screaming at him about an item on the

windowsill. N.T. p. 162. Appellant recalled that Flores twice got in his face. N.T.

p. 162. Appellant stated that he did not understand what Flores was asking him

because he did not remember seeing any hardware on the windowsill. N.T. pp. 163,

218. Appellant stated that he told Flores that he never saw the item and may have

swept it up without knowing because there was “crap” on the floor that he had

cleaned up. N.T. p. 163. Appellant denied saying to Flores that he did not know

where the knob on the windowsill was. N.T. p. 198. Appellant explained that he

assumed if something was missing, he must have swept it up because he never saw

a knob on the windowsill. N.T. pp. 198-200.

Appellant stated that Flores left the bedroom and went to the kitchen

cabinets. N.T. pp. 162-163. At this time, Flores kept saying, “What else is there?

What else is missing?” N.T. pp. 163, 218. Appellant stated that he followed Flores

downstairs. N.T. p. 164. When appellant got downstairs, he tried to explain to Flores

what he was going to do with the fixtures, but Flores just kept screaming. N.T. pp.

163, 200. Appellant described Flores as acting “nuts,” and pacing back and forth.

N.T. pp. 200, 220. Appellant stated that Flores was screaming, “Where are the

doorknobs? Where’s the hardware?” N.T. p. 164. Appellant told Flores that the

door fixtures were in the truck behind the seat, and they went outside to the truck.

N.T. pp. 164, 200.

Appellant stated that the whole time they were at the truck, he

verbalized what he intended to do with the fixtures. N.T. p. 164. When Flores

reached the front door, he said to appellant, “Well, your true colors came out. No

one likes you. And I hope you don’t come back next year.” N.T. pp. 164, 200.

Appellant stated that he was upset, but stayed by the truck. N.T. p. 164.

Appellant stated that later Flores came to the maintenance shop and he

heard Flores tell Patterson that he found something else, which was the glass knob.

N.T. pp. 165, 192. Appellant explained that everything that he had in the truck was

in the bag. N.T. p. 192. When appellant heard Flores say that he found something

else, he assumed that something else fell out of the bag because Flores never came

to him and said, “This is what I found in the bag.” N.T. pp. 192-193. Appellant

believes that the glass knob probably rolled out of the grocery bag and went under

the seat by the console. N.T. pp. 165, 192. Appellant explained that the knob was

not on the console. N.T. p. 165.

Appellant stated that he offered to empty his pockets and his lunch

container, which is a twelve by twelve World War II bag that a friend had given him.

N.T. p. 166. Appellant did not remember whether he emptied his pockets, but

believed that he did not because Flores could tell that he did not have anything in his

pockets. N.T. p. 166. Appellant did recall emptying his lunch container while Flores

was standing there. N.T. p. 166. Appellant stated that there was nothing in his lunch

container, except for empty candy wrappers, a freezer square, and silverware. N.T.

pp. 166-167. Appellant stated that in his lunch container, he sometimes carries a

utility knife and other things that he uses on a daily basis, but he could not remember

if they were in the lunch container that day. N.T. p. 167. However, appellant was

certain that there was no hardware in the lunch container. N.T. p. 167.

Appellant noted that he did not recall putting the pearl handle in the bag

that he put behind the seat in his work truck. N.T. p. 191. Appellant testified that

the pearl handle was not on the windowsill where Flores said it was. N.T. pp. 158-

160. Appellant stated that there was nothing on the windowsill. N.T. p. 159-160.

Appellant testified that all of the hardware in the bag came from one of the cabinets

above the kitchen sink, but he could not remember which cabinet. N.T. pp. 160,

193, 196. Appellant clarified that the bag was a clear shopping bag, like “you would

get at Walmart,” not a black bag. N.T. p. 193.

Appellant recalled that he was not allowed to talk to Drew about the

incident. N.T. p. 205. Appellant stated that he was instructed to “write things

down.” N.T. p. 205. However, appellant noted that Drew was “very kind.” N.T. p.

205.

Appellant argued that there are “X” number of doors in the residence,

which means that there are “X” number of doorknobs that correspond to those doors.

N.T. pp. 202-203. Therefore, appellant reasoned: “Why would I attempt to take

doorknobs when, in fact, they would be noticed? If they were needed, they would

be noticed as missing.” N.T. p. 203. Appellant further reasoned that he did not put

the items in his personal truck. N.T. p. 203. Rather, he put the items in the work

truck and did not take the items off of the park property. N.T. p. 203. Appellant

stated that he does not know the value of the doorknobs because he does not deal in

doorknobs, but he “would think that they hold some value.” N.T. p. 208.

Appellant testified that he likes to work and likes his job at the park.

N.T. pp. 131, 203-204. However, appellant noted that he requested a furlough in

early October of 2017. N.T. p. 204. Appellant stated that he requested the furlough

because he wanted to go grouse hunting and do things that he had not been able to

do because of his cancer. N.T. p. 204.

Having carefully reviewed the record, the Commission finds that the

appointing authority has failed to establish good cause for appellant’s suspension.

The appointing authority has failed to provide credible evidence that appellant

violated a particular work rule, policy, or procedure. Thus, the appointing authority

is unable to establish a meritorious criteria related to appellant’s competency and

ability to execute his job duties properly. See White, 110 Pa. Commw. at 498, 532

A.2d at 951.

Upon review of the appointing authority’s Work Rules, we find that

there are only three rules that are arguably applicable to the instant matter.1 These

three rules prohibit the following acts or conduct: (1) “[f]ailure to follow instruction,

policy or procedure;” (2) “[m]isuse or removal of Department property, records, or

other materials from Department premises without proper authorization;” and (3)

“neglect in the care or use of Department property resulting in damage, destruction,

1 The appointing authority failed to identify which, if any, of the Work Rules it relied upon when suspending appellant.

N.T. pp. 126-127; AA-1.

or loss of Department property.” AA Ex. 1. We find that the appointing authority

has failed to present any credible evidence that would establish a violation of these

rules.

First, there is no credible evidence that appellant failed to follow

instruction, policy or procedure because there is no credible evidence that appellant

was required to obtain permission before removing the fixtures from the Big Run

residence to clean them. There is nothing in the appointing authority’s Work Rules

that requires appellant to seek permission to perform duties related to his assigned

task. AA Ex. 1. In fact, appellant credibly2 testified that he has some discretion in

his responsibilities and did not need his supervisor’s permission to take fixtures from

a jobsite for the purposes of cleaning them. N.T. pp. 131-132, 205-206, 213-216,

221.

Appellant also credibly testified that, in the past, he and his co-workers

have performed similar work without permission, such as when he was assigned to

work on a restroom. N.T. pp. 152, 169, 202, 206-207. Indeed, Patterson

acknowledged that he does not micromanage the employees and that deviations may

occur from the specific work orders that have been given. N.T. pp. 71-72. Thus, we

find that appellant did not violate a policy or procedure when he removed the fixtures

from the residence with the intent to return those fixtures to the residence after he

had cleaned them.

2 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).

Additionally, there is no credible evidence that appellant misused or

removed the appointing authority’s property, records, or other materials without

proper authorization. While appellant initially believed that the fixtures were the

appointing authority’s property, there is now no dispute that the fixtures belonged to

Flores. N.T. pp. 26-27, 151, 168. Nevertheless, had the fixtures belonged to the

appointing authority, there is no credible evidence that appellant was required to

obtain specific authorization before removing the fixtures with the intent to return

those fixtures to the residence after he had cleaned them.

As discussed in detail above, appellant has some discretion in

completing assigned tasks. Here, appellant was assigned to paint doors at a residence

owned by the appointing authority. N.T. p. 144. Based on appellant’s past

experiences, cleaning the door fixtures was a natural extension of this assignment.

N.T. pp. 152, 169, 202, 206-207. Thus, appellant was not required to obtain specific

authorization before removing the fixtures to clean them. As such, we find that

appellant did not violate the work rule, which prohibited him from misusing or

removing the appointing authority’s property without proper authorization.

Furthermore, there is no credible evidence that appellant neglected the

appointing authority’s property resulting in damage, destruction or loss of the

property. As previously established there is no dispute that the fixtures belonged to

Flores, not the appointing authority. Moreover, appellant was not negligent in his

handling of the fixtures. Appellant credibly testified that he placed the fixtures,

which he had gathered in a grocery bag, behind the seat in his work truck. N.T. pp.

154, 165. Appellant credibly testified that this was the safest place to store the

fixtures when transporting them to the maintenance shop. N.T. pp. 154-155.

Further, there is no credible evidence that any harm came to the fixtures. Therefore,

we find that appellant did not violate the work rule, which prohibited him from

neglecting the appointing authority’s property.

Nonetheless, the appointing authority insinuates that appellant intended

to abscond with the fixtures. There is no credible evidence to support the appointing

authority’s speculation. Appellant credibility testified that he mentioned to his

supervisor in passing that he had the hardware to do. N.T. pp. 157-158, 220. Also,

as soon as appellant understood what Flores thought was missing, he tried to tell

Flores what he intended to do with the fixtures and he told Flores that the fixtures

were in his work truck. N.T. pp. 163-164, 200. These actions are not indicative of

someone who intended to abscond with something. Moreover, appellant credibly

testified that he only took the fixtures so that he could clean them at the maintenance

shop before installing them on the doors at the residence. N.T. pp. 151-152. Thus,

we are not persuaded by the appointing authority’s conjecture that appellant intended

to abscond with the fixtures.

Furthermore, we do not find credible the appointing authority’s

testimony that appellant told three different stories about fixtures. N.T. pp. 55-56.

Appellant credibly testified that, initially, he did not understand to what Flores was

referring because he never saw a door fixture on the windowsill, which is why he

assumed that he must have swept up whatever was missing. N.T. pp. 163, 198-200,

218. We further find credible appellant’s testimony that, once he understood that

Flores was talking about the door fixtures, he tried to explain to Flores what he was

going to do with the fixtures, but Flores just kept screaming. N.T. pp. 163-164, 200.

In summation, the Commission finds that the appointing authority has

not met its burden of presenting sufficient evidence to support any of the charges.

As discussed in detail above, there is no credible evidence or testimony establishing

a meritorious criteria related to appellant’s competency and ability to execute his job

duties properly. See White, 110 Pa. Commw. at 498, 532 A.2d at 951. Furthermore,

we find appellant’s testimony to be credible. Accordingly, we enter the following:

CONCLUSION OF LAW

The appointing authority has failed to present evidence

establishing good cause for suspension under Section 803

of the Civil Service Act, as amended.

ORDER

AND NOW, the State Civil Service Commission, by agreement of its

members, sustains the appeal of Roger L. Morrow challenging his nineteen-day

suspension and final warning from regular Semi-Skilled Laborer employment with

the Department of Conservation and Natural Resources and overrules the action of

the Department of Conservation and Natural Resources in the nineteen-day

suspension and final warning of Roger L. Morrow from regular Semi-Skilled

Laborer employment. We order that the suspension and final warning be expunged

from appellant’s record within thirty (30) calendar days with reimbursement of

wages and emoluments for the nineteen workdays from October 31, 2017 through

November 24, 2017, 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) 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

Bryan R. Lentz

Chairman

Odelfa Smith Preston

Commissioner

Gregory M. Lane

Commissioner

Mailed: January 29, 2019