COMMONWEALTH OF PENNSYLVANIA Deniece N. Davis : State Civil Service Commission : v. : : State Correctional Institution at : Albion, Department of Corrections : Appeal No. 29751 Anthony H. Rodriques Laura J. Neal Attorney for Appellant Attorney for Appointing Authority ADJUDICATION This is an appeal by Deniece N. Davis challenging her suspension pending investigation and subsequent removal from regular Corrections Officer 1 employment with the State Correctional Institution at Albion, Department of Corrections. A hearing was held on January 8, 2019, at the Erie Community Corrections Center, in Erie, Pennsylvania before Hearing Examiner David Zurn. The Commissioners have reviewed the Notes of Testimony and exhibits introduced at the hearing, as well as the post-hearing Briefs submitted by the parties. The issues before the Commission are: 1) whether the appointing authority had just cause to remove 1 appellant from her position; and 2) whether the appointing authority removed appellant for reasons motivated by discrimination. 1 When an appointing authority suspends an employee pending investigation and subsequently removes the employee, the period of suspension will be deemed part of the removal action. Woods v. State Civil Service Commission (New Castle Youth Development Center, Department of Public Welfare), 865 A.2d 272, 274 n. 3 (Pa. Commw. Ct. 2004); 4 Pa. Code § 101.21(b)(2). Appellant having been suspended, effective September 13, 2017, pending investigation, and having remained on suspension until her removal by letter dated June 28, 2018, we consider appellant’s removal, effective as of the date of suspension, to be the sole personnel action to be reviewed through this appeal.
38
Embed
Deniece N. Davis : State Civil Service Commission Anthony ...webcontent.oa.pa.gov/legal/documents/29751.pdf · coworker, created a hostile work environment, and violated Department
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
COMMONWEALTH OF PENNSYLVANIA
Deniece N. Davis : State Civil Service Commission
:
v. :
:
State Correctional Institution at :
Albion, Department of Corrections : Appeal No. 29751
Anthony H. Rodriques Laura J. Neal
Attorney for Appellant Attorney for Appointing Authority
ADJUDICATION
This is an appeal by Deniece N. Davis challenging her suspension
pending investigation and subsequent removal from regular Corrections Officer 1
employment with the State Correctional Institution at Albion, Department of
Corrections. A hearing was held on January 8, 2019, at the Erie Community
Corrections Center, in Erie, Pennsylvania before Hearing Examiner David Zurn.
The Commissioners have reviewed the Notes of Testimony and
exhibits introduced at the hearing, as well as the post-hearing Briefs submitted by
the parties. The issues before the Commission are: 1) whether the appointing
authority had just cause to remove1 appellant from her position; and 2) whether the
appointing authority removed appellant for reasons motivated by discrimination.
1 When an appointing authority suspends an employee pending investigation and subsequently removes the employee,
the period of suspension will be deemed part of the removal action. Woods v. State Civil Service Commission (New
Castle Youth Development Center, Department of Public Welfare), 865 A.2d 272, 274 n. 3 (Pa. Commw. Ct. 2004);
4 Pa. Code § 101.21(b)(2). Appellant having been suspended, effective September 13, 2017, pending investigation,
and having remained on suspension until her removal by letter dated June 28, 2018, we consider appellant’s removal,
effective as of the date of suspension, to be the sole personnel action to be reviewed through this appeal.
2
FINDINGS OF FACT
1. By letter dated September 15, 2017, appellant was
advised she had been suspended, effective
September 13, 2017, pending the investigation of a
possible Governor’s Code of Conduct violation
based on criminal charges filed against appellant.
Comm. Ex. A.
2. By letter dated June 28, 2018, appellant was
removed from her position as a Corrections Officer
1, regular status, with the State Correctional
Institution at Albion (hereinafter “SCI”), effective
June 26, 2018. Comm. Ex. C.
3. The Department of Corrections (hereinafter
“appointing authority”) charged appellant with
violating Part III of the Governor’s Code of
Conduct 1980-18, Amended2 (hereinafter
“Governor’s Code of Conduct”), Section B(10) of
its Code of Ethics, and Section 11 of Policy 4.1.1,
which is its workplace violence policy. The
2 The June 28, 2018 removal letter refers to Governor’s Code of Conduct 1990-18, Amended, whereas the policy
entered into evidence is titled Governor’s Code of Conduct 1980-18, Amended. Comm. Ex. C; AA Ex. 21 (emphasis
added). The correct title is Governor’s Code of Conduct 1980-18. Therefore, it appears the reference in the removal
letter is a typographical error.
3
appointing authority indicated the charges were
based on the following conduct:
…on May 15, 2018, you were
convicted and sentenced in
Pennsylvania Court of Common Pleas,
Erie County, to two (2) criminal
charges, Simple Assault (M2) and
Harassment (S), both of which have a
direct nexus to your work at SCI
Albion, arising from an initial,
aggressive verbal altercation with a co-
worker, Ms. Cheek, on September 11,
2017, in the lobby of SCI-Albion, and
which ultimately led to a second
altercation on September 12, 2017,
with Ms. Cheek in the parking lot of a
local Walmart store…An external
investigation of the second altercation,
on September 12, 2017, following the
filing of criminal charges, resulted in
the criminal conviction in the court of
law. Furthermore, SCI-Albion’s
investigation of the September 11,
2017, altercation on state property
substantiated the fact that you had
acted unprofessionally with your
coworker, created a hostile work
environment, and violated Department
policy governing workplace violence.
Comm. Ex. C.
4. In the June 28, 2018 letter, the appointing authority
noted the charge of violating Part III of the
Governor’s Code of Conduct standing alone would
warrant removal. Comm. Ex. C.
4
5. The appeal was properly raised before this
Commission and was heard under Sections 951(a)
and 951(b) of the Civil Service Act, as amended.
6. Appellant was hired by the appointing authority in
2008 as a Corrections Officer Trainee. N.T. p. 208.
7. Correction Officer Trainees are promoted to the
position of Correction Officer 1 after a one-year
period. N.T. pp. 208-209.
8. Correction Officer Trainees receive extensive
training, including a week-long orientation, during
which they receive training on the appointing
authority’s policies and procedures and the
Governor’s Code of Conduct. N.T. pp. 209-210.
9. During orientation, employees initial a checklist
verifying they reviewed the appointing authority’s
policies and procedures, including the appointing
authority’s Code of Ethics and the Governor’s Code
of Conduct. N.T. pp. 209-210.
5
10. On August 4, 2008, appellant completed the new
employee orientation checklist confirming she
received training on the Governor’s Code of
Conduct and the appointing authority’s Code of
Ethics. AA Ex. 15.
11. On August 4, 2008, appellant signed a receipt
indicating she received, read, and agreed to abide by
a copy of the appointing authority’s pocket-sized
Code of Ethics Handbook. AA Ex. 17.
12. Corrections officers receive training on
interpersonal communication skills and crisis
intervention, as well as other trainings on effective
communication. N.T. pp. 328-329.
13. Corrections officers have daily interactions with
staff and inmates. If a corrections officer fails to
communicate effectively and professionally during
such interactions, it hinders the safe operation of the
facility. N.T. pp. 326-328; AA Ex. 28.
14. On September 11, 2017, appellant was working her
bid post position in the SCI’s visitors lobby. N.T.
pp. 125-126.
6
15. On September 11, 2017 at approximately 2:15 p.m.,
appellant argued loudly with Correction
Counselor 2 Carolyn Cheek in the SCI’s visitors
lobby. During the argument, appellant repeatedly
referred to Cheek as “bitch” and used the expletive
“mother fuckers.” N.T. pp. 58-59, 104.
16. The September 11, 2017 argument occurred in front
of visitors and other coworkers. N.T. pp. 84, 88-90,
96, 98, 158-159, 164-166; AA Ex. 6.
17. On September 12, 2017, appellant was temporarily
removed from her bid post position pending the
outcome of the investigation into the September 11,
2017 incident. N.T. pp. 154-157, 320-321; AA Ex.
13.
18. On September 12, 2017, appellant cut in front of a
vehicle driven by Cheek, exited her car, came up to
Cheek’s window, which was halfway open, and
swung an object at Cheek. Cheek pushed her door
open to block appellant and ran. Appellant chased
after Cheek as she ran out of the parking lot, across
the intersection and into a yard. This occurred in
the parking lot of the Walmart on Elm Street in Erie,
Pennsylvania. N.T. pp. 20, 28, 52-53, 55, 63.
7
19. On September 13, 2017, appellant was arrested and
formally charged based on the September 12, 2017
incident at the Walmart. N.T. pp. 35-36; AA Ex. 4.
20. On March 4, 2018, a non-jury trial was held
regarding the criminal charges for the
September 12, 2017 incident at the Walmart, and
appellant was convicted of Simple Assault, graded
as a misdemeanor of the second degree, and
Harassment, graded as a summary offense. N.T. p.
39; AA Ex. 5.
21. By letter dated May 15, 2018, the appointing
authority notified appellant that a pre-disciplinary
conference (hereinafter “PDC”) was scheduled for
May 25, 2018. AA Ex. 23.
22. Appellant attended the PDC with her union
representative. N.T. p. 246.
23. When determining the level of discipline to be
imposed, aggravating and mitigating circumstances
are reviewed, to include employee performance
reviews (hereinafter “EPR”) and prior disciplines.
N.T. pp. 296-297, 312-313.
8
24. On her EPR for rating period August 2016 to
August 2017, appellant received an overall rating of
needs improvement based on her lack of
professionalism, ineffective communication, and
absenteeism. N.T. pp. 143-146; AA Ex. 11.
25. On June 13, 2017, a written reprimand was issued
to appellant for violating Section B(10) of the
appointing authority’s Code of Ethics because she
created a hostile work environment. N.T. pp. 135-
139; AA Ex. 12.
26. In December 2016, appellant was counseled for her
lack of professionalism toward a coworker. AA Ex.
12.
27. In September 2016, appellant was counseled for her
lack of professionalism toward a Lieutenant. AA
Ex. 12.
28. Cheek received overall ratings of commendable on
her EPRs for rating periods June 2015 to June 2016
and June 2016 to June 2017. AA Exs. 29, 30.
29. On her EPR for rating period June 2016 to June
2017, Cheek was commended for her quality of
work and for being a team player. AA Ex. 30.
9
30. Cheek did not have any discipline in her personnel
file. N.T. p. 293.
31. Part III, Section 2 of the Governor’s Code of
Conduct provides:
As soon as practicable after an
employe has been formally charged
with criminal conduct related to his or
her employment with the
Commonwealth or which constitutes a
felony, such employe shall be
suspended without pay. If such charge
results in conviction in a court of law,
such employe shall be terminated.
AA Ex. 21 (p. 7).
32. Section B(10) of the appointing authority’s Code of
Ethics provides:
Employees are expected to treat their
peers, supervisors, and the general
public with respect and conduct
themselves properly and
professionally at all times;
unacceptable conduct or insolence will
not be tolerated.
AA Ex. 16 (p. 4).
33. Section 11(A)(1) of Policy 4.1.1 provides in
pertinent part:
All forms of violence, threatening
behavior, and/or harassment, which
10
involve or affect employees of the
Department, are prohibited by this
policy. Violence, threats, harassment,
intimidation, and other behaviors that
are disruptive to the Department will
not be tolerated, regardless of
mistakes, ignorance, or other
extenuating circumstances…Violation
of this policy by Department
employees may lead to: the employee
being removed from the premises;
disciplinary action, up to and including
termination from employment; and/or
criminal charges.
AA Ex. 20 (p. 1) (emphasis in original).
34. Section 11(A)(2) of Policy 4.1.1 provides in
pertinent part:
Incidents of workplace violence may
occur either at or away from the
workplace. The determining factors in
assessing whether an incident
constitutes workplace violence are the
individuals involved and the
relationship of the action to the
workplace; the location of the incident;
and/or if the violence is as a result of
Commonwealth business.
AA Ex. 20 (p. 1)
11
DISCUSSION
The current appeal challenges the appointing authority’s decision to
remove appellant from regular status employment as a Corrections Officer 1. The
issues in the present appeal are: 1) whether the appointing authority established just
cause to remove appellant from her position; and 2) whether appellant has
established her removal was based on discrimination.
The appointing authority charged appellant with violating Part III of the
Governor’s Code of Conduct, Section B(10) of the Code of Ethics, and Section 11
of Policy 4.1.1, which is the workplace violence policy. See Finding of Fact 3.
Specifically, the appointing authority asserted appellant engaged in an aggressive
verbal altercation with a coworker on September 11, 2017, which led to a second
altercation on September 12, 2017. See Finding of Fact 3. As a result of the second
altercation, appellant was convicted of Simple Assault and Harassment. See Finding
of Fact 3.
In support of its charges, the appointing authority presented the
testimony of Patrolman Mark Schroeck, Corrections Counselor 2 Carolyn Cheek,
Personnel Director Theresa Croll, and Major of the Guard Christopher Meure. In
support of her appeal, appellant testified on her own behalf. The evidence provided
by the parties has been reviewed by the Commission and is summarized below.
12
Summary of Evidence Presented
Mark Schroeck is a Patrolman with the Erie Police Department. N.T.
p. 19. Schroeck stated he has held this position for five years. N.T. p. 20. Schroeck
testified he was working on September 12, 2017 when he was dispatched to the
Walmart on Elm Street in Erie, Pennsylvania, based on a report that a female was
being chased by another female, who had a knife in her hand. N.T. p. 20. Schroeck
stated the two females involved in the incident were Carolyn Cheek and the
appellant. N.T. pp. 21-22. Schroeck stated Cheek was the only party present when
he arrived at the Walmart. N.T. p. 22. Schroeck described Cheek as distraught and
upset. N.T. p. 23. Schroeck stated Cheek appeared to have been crying because she
had redness underneath her eyes. N.T. p. 23. Schroeck stated Cheek identified
appellant as the other person involved in the incident and provided a written witness
statement. N.T. pp. 29, 34-35; AA Ex. 2.
Schroeck testified he obtained video footage of the September 12, 2017
incident from Walmart. N.T. p. 24; AA Ex. 6. While watching this video during the
hearing regarding the instant appeal, Schroeck testified it depicts a car driven by
appellant cutting in front of a car driven by Cheek. N.T. p. 28. Schroeck stated the
video further shows appellant exiting her vehicle and going to the side door of
Cheek’s vehicle after which Cheek is seen running away. N.T. p. 28. Schroeck
further stated, while the video shows Cheek and appellant arguing, it is too blurry to
determine whether appellant possessed a knife. N.T. p. 44.
13
Schroeck testified he interviewed appellant about the Walmart incident
on September 13, 2017. N.T. p. 30. Schroeck stated during this interview, appellant
denied brandishing a knife, but admitted she had a stick in her hand during the
Walmart incident. N.T. pp. 46-47.
Schroeck testified appellant was arrested on September 13, 2017 and
formally charged. N.T. pp. 35-36; AA Ex. 4. Schroeck stated a non-jury trial was
held on March 4, 2018 and appellant was found guilty of Simple Assault and
Disorderly Conduct.3 N.T. p. 39. Schroeck explained the charge of Simple Assault
was graded as a misdemeanor of the second degree, which means the perpetrator
intentionally, knowingly or recklessly caused bodily injury to another. N.T. p. 38.
Schroeck stated the other charges against appellant were dismissed.4 N.T. p. 39.
Schroeck also noted appellant testified at the March 4, 2018 trial and played a video
of an incident between her and Cheek that occurred at the SCI. N.T. p. 41.
Carolyn Cheek is a Correction Counselor 2 at the SCI. N.T. pp. 50-51.
Cheek has been employed as a Corrections Counselor 2 for twenty-three years. N.T.
p. 52.
Cheek testified that, on September 12, 2017, she pulled into the
Walmart parking lot and a few minutes later a vehicle driven by appellant pulled up
next to her. N.T. p. 52. Cheek stated appellant exited the vehicle, came up to her
3 The Sentencing Order establishes appellant was convicted of Simple Assault, graded as a misdemeanor of the second
degree, and Harassment, graded as a summary offense. AA Ex. 5. Pursuant to the Sentencing Order, appellant was
not convicted of Disorderly Conduct. AA Ex. 5.
4 The information filed by the District Attorney’s office indicates appellant was charged with: two counts of Simple
Assault, which were both graded as misdemeanors of the second degree; two counts of Terroristic Threats, which
were graded as misdemeanors of the first degree; and two counts of Harassment, one of which was graded as a
summary offense and the other of which was graded as a misdemeanor of the third degree. AA Ex. 4.
14
window, which was halfway open, and swung a knife.5 N.T. p. 52. Cheek stated
she pushed her door open to block appellant and ran. N.T. pp. 52-53. Cheek stated
appellant chased after her as she ran out of the parking lot, across the intersection
and into a yard. N.T. pp. 53, 55. Cheek stated there was a lady in the yard working
who she asked for help. N.T. pp. 53, 55. Cheek further stated she was fearful for
her life because she did not know what appellant was capable of doing and because
appellant chased her down the street with a knife. N.T. pp. 55-56, 64. Cheek also
noted appellant knew where she lived, which caused her to be afraid for herself and
her daughter. N.T. pp. 56, 65-66.
Cheek testified the September 12, 2017 incident occurred the day after
she and appellant had an argument at work. N.T. p. 56. Cheek stated she was
working the 7:30 a.m. to 4:30 p.m. shift on September 11, 2017. N.T. p. 59. Cheek
stated during her shift, she was directed to retrieve something for her supervisor
from the women’s locker room.6 N.T. pp. 58, 380. Cheek stated she was having
trouble locating the item; so, she attempted to call her supervisor from the officer’s
desk out front. N.T. p. 58. Cheek stated as she was trying to call her supervisor, she
kept hearing appellant say the word “bitch.”7 N.T. p. 58. Cheek stated, at first, she
questioned whether appellant was talking to her and she asked appellant, “Are you
talking to me?” N.T. p. 58. Cheek stated appellant replied, “Yes,” and then said,
“I’m tired of you old bitches thinking that y’all running stuff around here.” N.T. p.
58. Cheek stated she responded, “I don’t talk to you like that. Please stop referring
to me like that,” but appellant continued to badger her by calling her “all types of
5 Cheek recalled that, at the trial regarding this incident, appellant testified she pulled her windshield wiper off her
car and claimed this is what she had in her hand, not a knife. N.T. p. 63. 6 On redirect, Cheek explained she was retrieving a Fitbit for her supervisor that was to be given to another officer.
N.T. p. 381. Cheek stated she did not know whether her supervisor was selling the Fitbit to the officer. N.T. p. 381.
7 Cheek noted that, at the trial on the September 12, 2017 incident, appellant testified she started referring to Cheek
as “bitch” because she felt disrespected that Cheek did not ask her to use the phone. N.T. p. 62.
15
bitches and mother fuckers,” at which point they began to argue. N.T. pp. 58-59.
Cheek stated this occurred around 2:15 p.m. N.T. p. 59. Cheek noted she never had
an argument with appellant prior to this, and she denied calling appellant a “bitch”
or “little girl” or touching appellant. N.T. pp. 68, 74-75.
Cheek testified she did not see appellant at work after the September 11,
2017 incident, nor did she see appellant at work on September 12, 2017. N.T. pp.
59-60. Cheek stated she left work early on September 12, 2017 because her blood
pressure was very elevated. N.T. p. 60. Cheek explained she was not feeling well
when she came to work because of the argument she had with appellant the day
before. N.T. pp. 60, 72-73. Cheek stated her supervisor took her to the nurse’s
station and the nurse checked her blood pressure twice and determined it was very
elevated. N.T. p. 60. Cheek stated she was instructed to go to the emergency room
or her doctor, and her supervisor drove her home around 11:30 a.m. N.T. pp. 60-61.
Cheek stated she then called the doctor and got an appointment that same day. N.T.
p. 60. Cheek stated her supervisor drove her to the appointment. N.T. p. 60.
Cheek stated she had another encounter with appellant on
December 19, 2018, which was approximately a month before the hearing on the
instant appeal. Cheek stated she and her daughter were at the same Walmart that
day, when appellant pulled up beside them, rolled down her window, screamed,
“Merry Christmas,” and then laughed before pulling out of the parking lot. N.T. pp.
56-57.
16
Giovanny Perez is currently a Corrections Officer 1 at the State
Correctional Institution in Cambridge Springs. N.T. p. 78. In September 2017,
Perez was working at the SCI. N.T. p. 78. Perez has been employed as a Corrections
Officer 1 for nineteen years. N.T. p. 77.
Perez testified that, on September 11, 2017, he was assigned to work
the ion scanner at the SCI’s main gate when he heard loud talking. N.T. pp. 78-80.
Perez stated he came out from the room in which the ion scanner was located to see
what was going on. N.T. p. 80. Perez stated appellant and Cheek were arguing;
however, when he watched the video of the incident, he could not recall at which
point the arguing started. N.T. pp. 86-92; AA Ex. 6. Perez stated when the argument
intensified, he walked away to get the Lieutenant, who is the supervisor, but the
Lieutenant did not come down to diffuse the situation. N.T. pp. 94-95, 106-107.
Perez stated before he went to get the Lieutenant, he asked appellant and Cheek to
stop, but they continued to argue. N.T. pp. 106-107. Perez stated both Cheek and
appellant were loud during the argument. N.T. p. 104. Perez also noted another
officer and visitor were in the area during the argument and can be seen on the video.
N.T. pp. 84, 88-90, 95-96, 98.
Additionally, Perez stated the video shows that Cheek was on the phone
and stayed behind the counter after she was done using the phone. N.T. pp. 102-
104. Perez further noted the desk where the phone was located was appellant’s post
at the time. N.T. pp. 104-105.
17
Timothy Anderson is a Security Lieutenant, which is a Corrections
Officer 3, at the SCI. N.T. pp. 111-112. Anderson has held the position of
Lieutenant for five years and worked in the security office for three of those years.
N.T. p. 112. Anderson has worked for the appointing authority for thirteen years.
N.T. pp. 112-113.
Anderson testified that, as a Security Lieutenant, he conducts internal
investigations of staff and inmate misconduct and tracks inmate activity, to include
gang activity and contraband, such as drugs and weapons. N.T. pp. 114-115.
Anderson stated when he conducts a fact-finding investigation regarding employee
misconduct, he reviews the employee’s past disciplines and EPRs, the video of the
incident, and interviews witnesses. N.T. pp. 117-119. Anderson stated once the
investigation is completed, a report is generated and forwarded to the administrative
staff, after which a PDC may be held. N.T. pp. 119-121.
Anderson testified he was responsible for investigating appellant’s
misconduct, which occurred on September 11 and 12, 2017. N.T. p. 116. Anderson
stated the investigation of September 11, 2017 incident was assigned to him by the
Major of the Guard. N.T. pp. 116-117. Anderson explained the September 12, 2017
incident came to light during the course of the investigation of the September 11,
2017 incident. N.T. p. 125.
18
Anderson stated he began his investigation of the September 11, 2017
incident by first obtaining the video of the September 11, 2017 incident to ensure
that it was not overwritten. N.T. p. 123; AA Ex. 6. Anderson stated he also
contacted Walmart and obtained video of the September 12, 2017 incident, which
Anderson believes is the same as the video obtained by Schroeck.8 N.T. pp. 128-
130, 133.
Regarding the September 11, 2017 incident, Anderson testified the
video depicts Cheek standing behind the desk in the visitors lobby, where appellant
was working. N.T. pp. 126, 175. Anderson stated it is his understanding that Cheek
remained behind the desk because she was waiting for a return call from her
supervisor regarding a non-work-related transaction between her supervisor and
another officer. N.T. pp. 175-177. Anderson explained employees typically use the
telephone, rather than their radios, for personal matters or professional matters that
are not immediate. N.T. pp. 183-184. Anderson further explained, the radio channel
needs to be open in the event that there is an emergency, which is why it is not used
for personal matters or professional matters that are not immediate. N.T. p. 184.
Anderson testified he also observed on the video that there were two
visitors present during the September 11, 2017 incident. N.T. pp. 158-159, 164-166;
AA Ex. 6. Anderson stated the appointing authority’s Code of Ethics and the
Governor’s Code of Conduct require employees to conduct themselves outside of
the facility in a manner that does not bring negative light to the facility or the
appointing authority. N.T. p. 129. Anderson explained the argument occurred in an
area where the public is present which is a violation of the appointing authority’s
8 The parties stipulated the Walmart video obtained by Anderson is the same as the video obtained by Schroeck. N.T.
pp. 133-134.
19
Code of Ethics. N.T. pp. 166-167. Anderson noted, as a result of the September 11,
2017 incident, appellant was temporarily removed from her bid position at the
visitors lobby on September 12, 2017 and assigned to work a different post. N.T.
pp. 154-157; AA Ex. 13.
In addition to obtaining and reviewing the videos, Anderson stated he
interviewed and obtained statements from the witnesses and appellant. N.T. pp. 124,
148-149, 158; AA Ex. 8. Anderson noted he interviewed appellant on October 16,
2016.9 N.T. pp. 149-150. Anderson stated during this interview appellant indicated
she had a small ice scraper in her hand during the September 12, 2017 incident at
Walmart. N.T. p. 151.
Anderson testified that, during his investigation, he also reviewed
appellant’s prior discipline and EPRs. N.T. p. 134. Anderson stated appellant
previously received a written reprimand for creating a hostile work environment,
which was a violation of Section B(10) of the appointing authority’s Code of Ethics.
N.T. pp. 135-139; AA Exs. 9, 12. Regarding appellant’s EPRs, Anderson noted
appellant received an overall rating of satisfactory on her EPR for rating period
August 2015 to August 2016; however, she received a rating of needs improvement
in the area of work habits. N.T. pp. 140-142; AA Ex. 10. Anderson further noted
appellant received an overall rating of needs improvement on her EPR for rating
period August 2016 to August 2017 based on her lack of professionalism, ineffective
communication, and absenteeism. N.T. pp. 143-146; AA Ex. 11.
9 Anderson’s memorandum summarizing appellant’s interview establishes the interview occurred on October 16,
2017. AA Ex. 8. The signature date on appellant’s witness statement and incident report, which she prepared and
brought with her to the interview, is also October 16, 2017. N.T. p. 152; AA Ex. 8. Therefore, it appears that Anderson
misspoke when he testified that he interviewed appellant on October 16, 2016.
20
Anderson testified he did not review Cheek’s prior disciplinary record
because it was not within the scope of his investigation or necessary at the time.
N.T. pp. 172-173. However, Anderson indicated he did review Cheek’s EPRs for
rating periods June 2015 to June 2016 and June 2016 to June 2017. N.T. pp. 190-
192; AA Exs. 29, 30. Anderson stated Cheek received overall ratings of
commendable on both of these EPRs. N.T. p. 192; AA Exs. 29, 30. Anderson also
noted there were comments on Cheek’s EPRs commending her for the quality of her
work and recognizing her as a team player. N.T. pp. 192-193. Additionally,
Anderson noted he did not receive any information that Cheek was charged with
criminal activity as a result of the September 12, 2017 incident at Walmart. N.T. p.
193.
Anderson testified the fact-finding investigation was closed prior to the
resolution of appellant’s criminal charges for the September 12, 2017 incident at
Walmart. N.T. p. 168. Anderson stated upon completing the fact-finding
investigation, it was submitted to his Captain for review and then forwarded up the
chain of command. N.T. p. 169. Anderson noted he does not make any disciplinary
recommendations when he submits the fact-finding investigation. N.T. p. 169.
Anderson testified that, as a result of the information brought forth by the fact-
finding investigation, a PDC was held. N.T. p. 169. Anderson stated he did not
attend the PDC, but Captain Jones, who is his immediate supervisor, attended. N.T.
pp. 169-170.
Theresa Croll is the SCI’s Personnel Director. N.T. p. 204. Croll has
held this position for seven and a half years. N.T. p. 204. Croll testified that, as the
Personnel Director, she is responsible for all actions pertaining to human resources,
21
including hiring, firing, disciplinary actions, labor relations, benefits, and payroll.
N.T. p. 205. Croll noted employee personnel and training records are maintained by
her office. N.T. pp. 205-208.
Croll testified appellant was hired by the appointing authority in 2008
as a Corrections Officer Trainee. N.T. p. 208. Croll explained Correction Officer
Trainees are promoted to the position of Correction Officer 1 after a one-year period.
N.T. pp. 208-209. Croll further explained that, during the one-year period,
Correction Officer Trainees receive extensive training, which includes a week-long
orientation. N.T. p. 209. Croll stated during orientation employees initial a checklist
verifying they reviewed the appointing authority’s policies and procedures, training
academy procedures, the appointing authority’s Code of Ethics and Code of
Conduct, as well as the Governor’s Code of Conduct. N.T. pp. 209-210. Croll noted
appellant completed this checklist on August 4, 2008, which confirms she received
training on the Governor’s Code of Conduct; Management Directive 205.33, which
is the workplace place violence policy; and the appointing authority’s Code of
Ethics. N.T. pp. 210-212; AA Ex. 15. Croll also noted appellant signed a receipt
indicating she received a copy of the pocket-sized Code of Ethics. N.T. pp. 213-
215; AA Exs. 16, 17.
Croll testified a PDC was held in the instant matter at the request of the
Superintendent. N.T. p. 217. Croll explained the Superintendent is responsible for
determining whether a PDC should be held and appointing a panel to conduct the
PDC. N.T. pp. 217-218. Croll further explained the Superintendent makes this
determination after reviewing the fact-finding investigation. N.T. p. 217.
Additionally, Croll noted the PDC process is outlined in the appointing authority’s
Policy 4.1.1. N.T. p. 218.
22
Croll stated prior to the PDC, appellant was suspended pending
investigation. N.T. p. 219. Croll stated appellant was notified of the suspension
pending investigation by letter dated September 13, 2017. N.T. pp. 219-220; AA
Ex. 18. Croll stated the September 13, 2017 letter informed appellant the
investigation was regarding behavior relating to workplace violence and violations
of the appointing authority’s Code of Ethics. Croll explained the bases for the
investigation were the incidents on September 11 and 12, 2017. N.T. p. 222. Croll
also noted Cheek filed a workplace violence report after the September 12, 2017
incident at Walmart. N.T. p. 222.
Croll testified a second notice of suspension pending investigation was
issued to appellant on September 15, 2017 because criminal charges had been filed
against appellant on September 14, 2017. N.T. pp. 223-225; AA Ex. 19. Croll
explained the notice needed to be reissued to add a violation of the Governor’s Code
of Conduct based on the criminal conduct, which was in connection with appellant’s
employment. N.T. pp. 224-225.
Croll testified a third notice was issued to appellant on November 7,
2017 because the external investigation for the criminal charges was not completed.
N.T. pp. 229-231; AA Ex. 22. Croll explained the period of suspension pending
investigation is typically limited to ninety days unless there is an outside
investigation such as here.10 N.T. pp. 230-231.
10 It is unclear to what rule or policy Croll is referring. We note that, pursuant to Section 101.21(c) of the Civil
Service Rules, “[s]uspensions, to include suspensions pending internal investigation, may not exceed an aggregate of
more than 60 working days in a calendar year.” 4 Pa. Code § 101.21(c). Additionally, Section 101.21(d) of the Civil
Service Rules provides: “[a]n employee suspended, pending investigation by an external agency, may be suspended
for the duration of the external investigation and up to 30 consecutive work days after the conclusion of the external
investigation.” 4 Pa. Code § 101.21(d).
23
Croll testified after the criminal charges were resolved, a PDC notice
was issued to appellant scheduling the PDC and informing appellant of the charges
against her. N.T. pp. 231-233; AA Ex. 23. Croll noted the Superintendent is
responsible for determining the charges. N.T. p. 234. Croll stated she chaired
appellant’s PDC panel, which consisted of Deputy Flinchbaugh, Deputy Ennis, and
Captain Jones, who was the charging officer. N.T. pp. 216, 246. Croll noted
appellant’s union representative and the confidential recorder were also present at
the PDC. N.T. p. 246.
Croll testified she was responsible, as chairperson, for reading the
charges and reminding those present that the panel is responsible for determining
whether the charges are substantiated. N.T. p. 246. Croll stated she is also
responsible for maintaining order during the PDC and ensuring the employee has
time to introduce comments, statements, and evidence to the panel. N.T. pp. 246-
247. Croll explained that, after the PDC is concluded, the panel reviews the evidence
and testimony to determine whether the charges are substantiated. N.T. pp. 248-
249. Croll stated the panel then confers with the Superintendent regarding their
findings, which the Superintendent reduces to writing in a PDC synopsis. N.T. pp.
249-250.
Croll testified the PDC synopsis in the instant matter indicates the
evidence establishes appellant violated Section B(10) of the appointing authority’s
Code of Ethics and Section 11 of the appointing authority’s Policy 4.1.1 based on
the criminal conviction for the Walmart incident and the incident that occurred in
the SCI’s visitors lobby. N.T. pp. 250-254; AA Ex. 25. Croll stated the PDC
synopsis also set forth mitigating and aggravating factors, which included a review
of appellant’s prior discipline, which consisted of a written reprimand for violations
24
of Section B(10) of the appointing authority’s Code of Ethics. N.T. pp. 254-255;
AA Ex. 25. Croll explained the written reprimand arose out of two equal opportunity
complaints which were filed against appellant.11 N.T. pp. 256-259, AA Ex. 12.
Croll testified the Superintendent recommended appellant be
terminated based on the substantiated charges. N.T. p. 259. Croll stated this
recommendation was forwarded to the Office of Administration along with the fact-
finding investigation, PDC minutes, and relevant documentation, including the
video evidence. N.T. pp. 259-261. Croll explained the Office of Administration
reviews the documentation to determine if the recommended discipline is consistent
with the normal range of sanctions imposed. N.T. p. 260. Croll stated that, in this
matter, the Office of Administration responded with a memo indicating the
appropriate sanction normally imposed in such circumstances is dismissal. N.T. pp.
260-262; AA Ex. 26. Croll stated upon receiving this memo, she assisted the
Superintendent in drafting appellant’s dismissal letter. N.T. pp. 262-263; AA Ex.
27.
Croll testified the dismissal letter included three charges for violations
of the Governor’s Code of Conduct, the appointing authority’s Code of Ethics and
the appointing authority’s Policy 4.1.1. N.T. p. 263; AA Ex. 27. Croll noted
Section 11 of the appointing authority’s Policy 4.1.1 informs employees that
workplace violence can occur either at or away from the workplace. N.T. pp. 235-
11 During cross-examination, Croll explained she received an e-mail from appellant regarding issues she had with the
staff members who were referenced in appellant’s written reprimand. N.T. pp. 273-275; Comm. Ex. D. Croll stated
the personality issues appellant had with staff members were investigated multiple times. N.T. p. 275. Croll also
noted appellant continued to have issues with staff members after the written reprimand. N.T. p. 275. Croll could not
recall if the other staff members referenced in appellant’s email were disciplined; however, she indicated the matter
was investigated as evidenced by the written reprimand which was issued to appellant. N.T. pp. 276-281. On redirect,
Croll added that, at the conclusion of the investigation, it was recommended that both appellant and one of staff
members who initiated the complaint be counseled on their professionalism. N.T. p. 311; AA Ex. 9.
25
237; AA Ex. 20. Croll stated the incident on September 12, 2017, at Walmart was
considered workplace violence under this policy because it was connected to the
work-related argument that occurred on September 11, 2017. N.T. pp. 238-239.
Croll noted the Walmart incident occurred less than twenty-four hours after
appellant was temporarily removed from her bid-post position based on the
September 11, 2017 work-related argument. N.T. pp. 243-244; AA Ex. 8.
During cross-examination, Croll provided additional clarification
regarding: 1) the use of phones at the appointing authority’s facilities;12 and 2) the
applicability of the appointing authority’s Policy 4.1.1 to the September 12, 2017
incident. Croll explained pursuant to the Pennsylvania State Corrections Officers
Association contract, employees are permitted to use the phones for reasonable
purposes and to speak with coworkers. N.T. pp. 281-282. Croll further stated
Cheek’s use of the phone on September 11, 2017, did not violate the appointing
authority’s Code of Ethics. N.T. pp. 285-286. Croll explained the appointing
authority’s Code of Ethics prohibits employees from profiting from their
employment as a corrections employee, such as being paid for a speaking event.
N.T. p. 285. Croll stated the policy is not intended to prohibit employees from
selling things to one another, which occurs routinely. N.T. p. 285. Croll explained
Cheek did not profit from the transaction between her supervisor and the other
officer; therefore, her use of the phone was not a violation of the policy. N.T. pp.
286-287. Croll also noted Cheek did not violate Section B(8) of the appointing
authority’s Code of Ethics because that section only applies to uniformed staff and
Cheek is not uniformed staff. N.T. pp. 287-289.
12 Appellant suggests it was inappropriate for Cheek to use the telephone at the desk on September 11, 2017. We
find this has no bearing on the removal action.
26
Regarding the appointing authority’s Policy 4.1.1, Croll indicated this
policy may apply to violence that occurs off of the appointing authority’s premises.
N.T. pp. 290-291; AA Ex. 20. Croll testified the testimony provided by Cheek and
appellant at the PDC established the incidents on September 11 and 12, 2017 were
related. N.T. p. 292. Croll also noted, while Cheek did not receive formal discipline
for the September 11, 2017 incident, she was counseled. N.T. p. 293. Croll
explained Cheek was not formally disciplined because she did not have any prior
discipline during her twenty-year career, whereas appellant had repeatedly engaged
in similar behavior. N.T. pp. 293-295, 312.
Croll testified aggravating and mitigating circumstances are reviewed
when determining the discipline that should be imposed. N.T. p. 296. Croll stated
aggravating circumstances may include poor performance reviews and whether the
same issue has been repeatedly addressed with the employee. N.T. p. 297. Croll
explained when the same issue is repeatedly addressed it means that the behavior is
not being corrected, which is why it is considered aggravating13 and progressive
discipline is taken. N.T. pp. 312-313. Croll stated mitigating circumstances may
include commendable or outstanding EPRs and no prior discipline. N.T. p. 297.
Christopher Meure holds the position of Major of the Guard at the SCI.
N.T. p. 315. Meure has held this position since June 2015 and has been employed
by the Department of Corrections since 1997. N.T. pp. 314-315, 321. As Major of
the Guard, Meure oversees the uniformed security staff. N.T. pp. 315-316.
13 Croll referenced the PDC synopsis written by the Superintendent, in which it is noted that appellant “had a written
reprimand from June 13, 2017, for COE B10 violations. She had been involved with multiple investigations related
to her behavior over the 2017 year. Her most recent EPR from August 2017 reflects an overall ‘needs improvement’
rating.” N.T. p. 295; AA Ex. 25 (p. 2).
27
Meure testified he issued a written reprimand, dated June 13, 2007, to
appellant, which referenced appellant’s continual pattern of unprofessional conduct.
N.T. pp. 316-317; AA Ex. 12. Meure explained discipline progresses from
counseling to a verbal reprimand and then to a written reprimand. N.T. p. 317.
Meure stated prior to receiving the June 13, 2007 written reprimand, appellant was
counseled for her unprofessional behavior toward a Lieutenant in September 2016.
N.T. pp. 317-318. Meure could not recall whether appellant was disciplined prior
to 2016 and noted he did not work at the SCI between 2010 and 2015. N.T. p. 333.
Meure testified appellant was temporarily removed from her bid post
on September 12, 2017, because there was a nexus between her bid post and the
September 11, 2017 incident. N.T. pp. 320-321. Meure explained appellant’s bid
post was located at the visitors lobby and the unprofessional interaction occurred in
front of visitors at this post; therefore, appellant was removed from this public area
pending the outcome of the investigation. N.T. pp. 320-321; AA Ex. 13.
Meure further testified returning appellant to her position was not an
appropriate course of action. N.T. p. 323. Meure explained appellant was provided
multiple opportunities to improve her behavior, which is evidenced by the
progressive discipline issued to her. N.T. p. 324. Meure further explained a
corrections officer must be able to clearly communicate in high stress situations,
which he does not believe appellant is capable of doing. N.T. p. 324. Meure stated
corrections officers have daily interactions with staff and inmates and a failure to
communicate effectively and professionally hinders the safe operation of the facility.
N.T. pp. 326-327. Meure explained if a corrections officer fails to be calm and
collected when dealing with inmates, the corrections officer may become distracted
and fail to observe other issues. N.T. pp. 327-328. Meure noted the SCI houses over
28
900 inmates with mental health issues, which is why corrections officers receive
training on interpersonal communication skills, as well as crisis intervention and
other trainings on effective communication. N.T. pp. 328-329.
In response to the appointing authority’s case, appellant testified prior
to the September 11 and 12, 2017 incidents, she emailed “personnel,” her supervisor,
Captain Sissem, and Deputy Franz regarding Cheek. N.T. pp. 338-339. Appellant
did not testify as to the substance of the emails.
Regarding her interactions with Cheek, appellant stated she does not
know why Cheek has a problem with her. N.T. p. 358. Appellant stated she does
not know Cheek outside of work, but she knows that Cheek lives near her. N.T. p.
358. Appellant said she has given Cheek rides to work, braided Cheek’s hair, as
well as Cheek’s daughter’s hair, and given Cheek money. N.T. p. 358. Appellant
stated after she told Cheek that she could no longer give her a ride to work, Cheek
began calling her “bitch,” told her she was “a little girl,” and told her that she did
not know what she was doing. N.T. pp. 358-359. Appellant explained she stopped
giving Cheek rides to work because she wanted to distance herself from everyone
after she received the bid post at the visitors lobby. N.T. pp. 359-360. Appellant
explained the bid post was very important to her and she did not want to “hang
around” with staff members who could be “dirty” or bring in contraband. N.T. pp.
359-360.
Regarding the September 11, 2017 incident, appellant argued Cheek
should have given her the same respect that would have been given to the regular
officer assigned to the desk in the visitors lobby. N.T. p. 348. Appellant explained
Cheek should have asked appellant to hand her the phone over the desk, rather than
29
going behind the desk. N.T. p. 348. Appellant stated the regular officer does not
even permit her to go behind the desk. N.T. pp. 348-349. Appellant stated only
security staff has clearance to go behind the desk and noted the other two officers on
the video did not go behind the desk. N.T. p. 350. Appellant explained there is
sensitive information regarding staff members, inmates, and visitors maintained at
the desk, which is not public information and may be confidential. N.T. pp. 350-
352.
Appellant further testified, Cheek could have used the phone in the
lobby or the radio or she could have asked the switchboard operator. N.T. p. 362.
Appellant stated that, by using the phone at the desk, Cheek distracted her from her
duty and a Lieutenant walked directly into the institution. N.T. p. 362. While
appellant maintained she continued to work during the incident, appellant also stated
the mental strain of Cheek calling her names was too much to process. N.T. pp. 362-
363.
Initially, appellant testified she remained at her post and telephoned her
supervisor who told her, “Figure it out amongst yourselves.” N.T. pp. 347-348.
However, later appellant stated she left her post to smoke a cigarette because Cheek
refused to leave. N.T. pp. 363, 374. Appellant stated when she returned, the
argument became heated because Cheek continued to refuse to leave and told
appellant that she was going to beat her up. N.T. pp. 347, 375. Appellant also
claimed she did not yell during the argument, nor did she have any reason to yell.
N.T. p. 376. Appellant noted she picked up the phone on the desk once Cheek left
from behind the desk so that the conversation would be recorded. N.T. pp. 376-377.
Appellant explained the phone begins to record as soon as it is picked up. N.T.
30
p. 377. Additionally, appellant stated she asked personnel whether Cheek was
disciplined for the September 11, 2017 incident to which personnel responded, “it
was none of [her] business.” N.T. p. 347.
Appellant suggests she was disciplined for the above incident because
she reported her supervisor for sexually harassing her in 2009.14 N.T. pp. 355, 360-
361. Appellant testified this occurred approximately one week after she started work
in 2009, and it resulted in her being discipline in 2013. N.T. pp. 355, 368-369.
Appellant also noted she was assaulted in 2009 by an inmate and suspended in 2010
based on this assault. N.T. pp. 356, 366. Appellant stated the suspension was
subsequently overturned and she was awarded back pay. N.T. p. 366. Appellant
stated she was told that she was assaulted because she is an attractive female and
“rallying inmates up.” N.T. p. 356. Appellant stated she was also told she would
not have been assaulted if she did not use certain mannerisms such as putting her
hand on her hip. N.T. p. 356. Appellant stated her supervisors did not “back her
up” any time she went to them. Appellant stated she was told to “just sit and look
pretty” and not to “rock the boat” because other people have worked there longer.
N.T. p. 357. However, appellant acknowledged incidents prior to 2016 were not
considered when determining the level of discipline imposed in the instant matter.
N.T. pp. 370-371.
Appellant testified she is very assertive, which is sometimes mistaken
for aggression. N.T. p. 352. Appellant explained she is a small person and because
of her appearance, she has a lot of problems with staff who come through the visitors
lobby. N.T. pp. 352-353. Appellant stated she is one of the youngest staff members
14 Appellant did not indicate whether she is still supervised by this individual.
31
and she believes a handful of the staff members do not feel she deserves the post at
the visitors lobby. N.T. p. 353. Appellant stated staff members made comments to
her that she is “a skinny little bitch” or “a little girl” and claim they do not have to
listen to her because they have worked for the appointing authority longer than her.
N.T. pp. 353-354.
Appellant stated during a meeting with Meure on June 13, 2017, she
had expressed she was frustrated because no one was listening to her and they were
combative and argumentative with her when she gave direction. N.T. p. 341.
Appellant stated Meure told her that she needed to work on her delivery, but he
understood her frustration. N.T. p. 341.
Appellant testified she received a negative EPR from
Lieutenant Clauson,15 even though “she does not supervise me.”16 N.T. p. 342.
Appellant stated she did not feel this was appropriate and believes her EPR should
have been completed by her direct supervisor, not Clauson, who was a shift
lieutenant. N.T. pp. 342-343. Appellant further stated she reported Clauson prior to
Clauson completing her EPR. N.T. pp. 343-344. Appellant noted she reported
Clauson for bringing her (Clauson’s) husband on the grounds and “making out”
during count. N.T. p. 343. Appellant stated she also complained to her chain of
command regarding Clauson completing her EPRs, but nothing resulted from this
complaint, even though her chain of command assured her they would review the
15 Appellant refers to the person as Lieutenant Scott Clauson. There was no indication of Clauson’s gender in the
record. However, appellant uses female pronouns to refer to Clauson.
16 Appellant did not indicate when this EPR was issued.
32
EPRs and “fix it.” N.T. pp. 344-345. Appellant further testified the complaint she
filed against Clauson was the basis for the counseling mentioned in her June 13,
2007 written reprimand. N.T. pp. 345-346.
Just Cause for Removal
In an appeal challenging the removal of a regular status employee, the
appointing authority has the burden of establishing just cause for the personnel
action. Mihok v. Department of Public Welfare, Woodville State Hospital, 147 Pa.