Alley
v.
State Civil Serv. Comm'n

COMMONWEALTH COURT OF PENNSYLVANIADec 12, 2013
No. 493 C.D. 2013 (Pa. Cmmw. Ct. Dec. 12, 2013)

No. 493 C.D. 2013 No. 494 C.D. 2013

12-12-2013

Michael J. Alley, Petitioner v. State Civil Service Commission (Wernersville State Hospital, Department of Public Welfare), Respondent


BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE COLINS

Michael J. Alley (Petitioner) petitions for review of two orders issued by the State Civil Service Commission (Commission) on March 4, 2013 pursuant to Section 803 and Section 807 of the Civil Service Act (Act). The first order dismissed Petitioner's appeal and sustained the action of Wernersville State Hospital, Department of Welfare (Hospital) that suspended Petitioner from his employment as a regular semi-skilled laborer for three days effective April 4, 2012. The second order dismissed Petitioner's appeal and sustained the action of the Hospital that removed Petitioner from his employment as a regular semi-skilled laborer effective May 31, 2012. For the following reasons, we affirm the orders of the Commission.

Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.803, 741.807.

This Court, sua sponte, consolidated Petitioner's appeals in a July 11, 2013 order. By letters docketed at 493 C.D. 2013 and 494 C.D. 2013 on September 9, 2013, the Department stated that it would not be participating in either of the two appeals now before this Court.

On March 29, 2012, the Hospital hand-delivered a letter to Petitioner notifying him that he was being suspended for three days including April 4, April 5, and April 6, 2012 for inappropriate conduct and that this suspension represented his final warning. (Appeal No. 27388 Certified Record Item (27388 R. Item) 1, September 14, 2012 Hearing Transcript (H.T.), Exhibit Comm. A.) Petitioner appealed his suspension and a hearing was held before a hearing officer on September 14, 2012. (27388 R. Item, H.T. & Exhibit Comm. B.) Before the hearing officer, Petitioner testified on his own behalf and Kevin Furness, Marc Cuzupe, Nancy Eichberger, and Valerie Henne-Hallman testified for the Hospital. (27388 R. Item 1, H.T.)

Following the hearing, the Commission issued a March 4, 2013 Adjudication, in which it made findings of fact and conclusions of law based upon the testimony and exhibits submitted into the record before the hearing officer. (27388 R. Item 2, Commission Adjudication.) The Commission found that on February 9, 2012, Kevin Furness, Marc Cuzupe, and Greg Pinatore were in the employee break room when Petitioner entered to have lunch. (27388 R. Item 2, Board Adjudication Findings of Fact (F.F.) ¶¶6-7.) Petitioner engaged Pinatore in conversation, during which Petitioner mentioned being paid for days he had taken off and Furness commented that "in the real world" Petitioner would be fired for taking so much time off work. (27388 R. Item 2, F.F. ¶¶8-9.) Petitioner, upset, walked toward Furness, cursed at him, and asked Furness to "step outside where we could resolve the situation." (27388 R. Item 2, F.F. ¶¶10.) Furness refused, stated that it was not worth losing their jobs, and continued to eat his lunch; Petitioner then walked over to within an inch of Furness's face and said, "we'll take this outside and we'll settle this outside." (27388 R. Item 2, F.F. ¶¶11-13.) Furness backed away, at which point Mr. Cuzupe intervened and said to Petitioner, "Cool out, dude. You need to settle down"; Petitioner then left the break room. (27388 R. Item 2, F.F. ¶¶14-15.) Following a request, Furness wrote a witness statement concerning the incident. (27388 R. Item 2, F.F. ¶16.)

On February 16, 2012, Nancy Eichberger answered a phone call from Petitioner on behalf of her supervisor, the Chief Operating Officer. (27388 R. Item 2, F.F. ¶17.) Petitioner spoke loudly and quickly, told Eichberger that Furness "had better watch out," that Furness was paid more than Petitioner was, that Furness better not go near Petitioner's truck, that Petitioner did not have any money, and that Petitioner was going to do something bad to himself. (27388 R. Item 2, F.F. ¶¶18-20.) While on the phone, Eichberger emailed a colleague to ask what the colleague knew about Petitioner and was instructed by the colleague to forward Petitioner's call to Valerie Henne-Hallman in human resources. (27388 R. Item 2, F.F. ¶¶21-22.) When Petitioner calmed down, Eichberger advised him that she was going to forward his call to Henne-Hallman, but Petitioner told her not to forward his call and became emotional, his speech becoming loud and fast. (27388 R. Item 2, F.F. ¶¶23-24.) When Petitioner again calmed down, Eichberger forwarded his call to Henne-Hallman and when Henne-Hallman spoke with Petitioner, he was very upset, loud, and he spoke quickly, jumping from one topic to another. (27388 R. Item 2, F.F. ¶¶25-26.) Petitioner mentioned Furness several times and stated that he would, "kick Kevin's ass." (27388 R. Item 2, F.F. ¶27.) Henne-Hallman responded by attempting to get Petitioner to take back his comment utilizing training she had received. (27388 R. Item 2, F.F. ¶28.) Henne-Hallman was concerned because the initial incident between Furness and Petitioner had taken place a week before, and Petitioner was still very upset. (27388 R. Item 2, F.F. ¶29.) Once Petitioner ended the phone call, Henne-Hillman spoke with the Chief Executive Officer, the Chief Operations Officer, and the Facility Manager and, Henne-Hillman and the Chief Executive Officer notified Furness that they believed a threat had been made against him. (27388 R. Item 2, F.F. ¶¶30, 32.) Henne-Hallman also contacted Berks County Crisis Intervention and asked that someone do a home check on Petitioner. (27388 R. Item 2, F.F. ¶31.)

The Commission concluded that the Hospital presented substantial evidence in support of its charge of inappropriate conduct and that it had good cause to suspend Petitioner for three days, because Petitioner's "inability to control his temper and his unprofessional conduct impact his ability to work with his coworkers and, therefore, negatively impacts upon his competency and ability to perform his job duties." (27388 R. Item 2, Commission Adjudication Discussion at 12.)

After the incidents giving rise to Petitioner's suspension, another incident occurred at work, which prompted the Hospital to mail a letter to Petitioner on May 25, 2012, notifying him that he was being removed from employment due to inappropriate behavior and workplace violence. (Appeal No. 27449 Certified Record Item (27449 R. Item) 1, September 14, 2012 Hearing Transcript (H.T.), Exhibit Comm. A.) Petitioner appealed his suspension and a hearing was held before a hearing officer on September 14, 2012, directly following his suspension hearing. (27449 R. Item 1, H.T. & Exhibit Comm. B.) Before the hearing officer, Petitioner testified on his own behalf and Richard Webber, Joseph Ciotti, Charles Galzarano, and Valerie Henne-Hallman testified for the Hospital. (27449 R. Item 1, H.T.)

Following the hearing, the Commission issued a March 4, 2013 Adjudication, in which it made findings of fact and conclusions of law based upon the testimony and exhibits submitted into the record before the hearing officer. (27449 R. Item 2, Commission Adjudication.) The Commission found that on April 26, 2012, Richard Webber and other coworkers of Petitioner were working in the garage, when Petitioner arrived in his pick-up truck, slammed the door behind him, and angrily approached his coworkers. (27449 R. Item 2, F.F. ¶¶9-11.) Webber said to Petitioner, "I see you graced us with your presence today." (27449 R. Item 2, F.F. ¶12.) Petitioner was agitated and made comments about his coworkers making more money than he did, to which Webber responded, "we don't need to hear about your problems. Everybody's got a problem. We don't want to hear it." (27449 R. Item 2, F.F. ¶¶13-14.) Petitioner became red in the face and cursed at Webber, who backed up a few feet, and Petitioner walked off in a different direction, talking to himself. (27449 R. Item 2, F.F. ¶¶15-16.) Soon after, Petitioner explained to Joseph Ciotti that he had been reprimanded by his supervisor for being late and stated that he was "going to kick [the supervisor's] ass." (27449 R. Item 2, F.F. ¶17.) That afternoon, Charles Galzarano asked Petitioner why he was upset and Petitioner told Galzarano that he wanted to hit Webber in the back of the head with a shovel, "but I didn't." (27449 R. Item 2, F.F. ¶¶18-19.) Following the incidents on April 26, 2012, Henne-Hallman gathered witness statements and consulted Labor Relations, and Labor Relations determined that a suspension pending investigation was appropriate to prevent the situation from escalating and to ensure employee safety. (27449 R. Item 2, F.F. 21-22.) Following the investigation, the Hospital determined that Petitioner's misconduct warranted removal from employment.

The Commission found that prior to the April 26, 2012 incidents under review, Petitioner received an orientation that included an explanation of the workplace violence policy; that Petitioner received annual email reminders of the policy; that in 2010 Petitioner received an oral reprimand for inappropriate conduct; and that in March 2012 Petitioner received a three-day suspension and final warning for making threats and exhibiting aggressive behavior. (27449 R. Item 2, F.F. ¶¶4-8.) The Commission concluded first, in response to Petitioner's assertion that he had been harassed by coworkers who were not disciplined as he was, that Petitioner had not demonstrated a prima facie case of discrimination, because he had failed to offer any evidence that similarly situated individuals were treated differently than he was. (27449 R. Item 2, Adjudication Discussion at 9.) Second, the Commission concluded that the Department presented substantial evidence of Petitioner's inappropriate behavior and workplace violence, and that Petitioner's inability to work cooperatively with coworkers without making threats negatively reflects upon his competency and ability to perform his job duties, amounting to just cause for Petitioner's removal. (27449 R. Item 2, Adjudication Discussion at 11.)

Petitioner appeals to this Court for review of his three-day suspension and final warning and for review of his removal from employment. Petitioner argues before this Court that his conduct was due to harassment by his coworkers, that he attempted to raise his issues with those higher in the chain of command and that this venting of his anger and frustration and his usage of slang was misconstrued by the Hospital as expressing threats and the intention to carry out those threats. Petitioner also argues that he performed his job duties competently.

This Court's standard of review is limited to determining whether an error of law was committed, whether constitutional rights were violated, and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Bazargani v. State Civil Service Commission (Haverford State Hospital), 711 A.2d 529, 531 n.2 (Pa. Cmwlth. 1998). Substantial evidence is such relevant evidence as a reasonable mind, without weighing evidence or substituting its judgment for that of the Commission, might accept as adequate to support a conclusion. Western Center, Department of Public v. Hoon, 598 A.2d 1042, 1044 (Pa. Cmwlth. 1991). --------

Section 803 of the Act provides that "[a]n appointing authority may for good cause suspend without pay for disciplinary purposes an employee holding a position in the classified service." 71 P.S. § 741.803. Section 807 of the Act provides that "[n]o regular employe in the classified service shall be removed except for just cause." 71 P.S. § 741.807. "Just cause" and "good cause" have been interpreted to require that removal is merit-based, such as an employee's failure to execute his or her duties or behavior that hampers or frustrates the execution of those duties, and that the criteria used as a basis for removal must touch upon the employee's competency and ability in a rational and logical way. Thompson v. State Civil Service Commission (Beaver County Area Agency on Aging), 863 A.2d 180, 184 (Pa. Cmwlth. 2004) (defining "just cause"); McCain v. Department of Education, East Stroudsburg State College, 454 A.2d 667, 669 (Pa. Cmwlth. 1983) (defining "good cause"). Although what constitutes "just cause" for removal is largely a matter of discretion on the part of the head of the department seeking removal, to be sufficient, the cause need be personal to the employee and must render the employee unfit for his or her position, thereby making dismissal good for the service. Pennsylvania Board of Probation and Parole v. State Civil Service Commission (Manson), 4 A.3d 1106, 1112 (Pa. Cmwlth. 2010)

Questions of credibility and the weight to be accorded evidence are determined by the Commission, and this Court will not re-weigh the evidence or substitute its judgment even though it might have reached a different factual conclusion. Thompson, 863 A.2d at 184; Ellerbee-Pryer v. State Civil Service Commission (Department of Corrections), 803 A.2d 249, 254 (Pa. Cmwlth. 2002). Petitioner's argument regarding his suspension is asking this Court to engage in just such an analysis. We cannot and will not do so. The Commission credited Furness's testimony that he felt threatened, and the testimony of Eichberger and Henne-Hallman that Petitioner made threats against Furness over the telephone. Petitioner does not deny what happened in the break room or the substance of his phone call to the Hospital. The Hospital had a policy that an employee could be disciplined up to and including discharge for "[use of] abusive language or offensive language or that he quarreled or created a disturbance on the job site (or off) where such conduct adversely affected the work situation." (27388 R. Item 1, H.T. Exhibit AA-1.) The Commission concluded that the Hospital used this policy as a guideline to issue Petitioner a three day suspension and final warning, and that the Hospital demonstrated by substantial evidence that the conduct alleged did in fact occur. The Commission concluded that Petitioner's expression of anger, threats, and cursing toward his coworkers amounted to good cause because in order to ably and competently perform his job duties, Petitioner needed to be able to work with his coworkers. We agree.

For much the same reason, we conclude that the Commission properly determined that the Hospital had just cause to remove Petitioner from his employment. Following his suspension, Petitioner was again unable to control his anger at work and again made threats against his coworkers. Under the Hospital's workplace violence policy, Petitioner's comment that he wanted to hit one of his coworkers over the head with a shovel was an indirect threat and constituted workplace violence. In addition to the fact that the Commission credited the testimony of the Hospital witnesses, Petitioner also testified that the events leading to his removal took place. The Hospital repeatedly attempted to assist Petitioner in gaining control over his instability and anger issues and maintaining his employment by: (i) giving him the opportunity to recant when he made his initial threat against Furness; (ii) seeking the assistance of Berks County Crisis Intervention; (iii) issuing warnings to and suspending Petitioner prior to removal; and (iv) once he returned from suspension, counseling Petitioner on how to remove himself from a situation if he became upset and offering assistance with deescalating. Petitioner's inappropriate behavior continued unabated. Petitioner's unprofessional and threatening behavior made his colleagues feel unsafe at work and disrupted his coworkers' ability to do their jobs, thereby negatively impacting his fitness for continued employment with the Hospital. Accordingly, the Commission did not err in concluding that the Hospital had just cause to remove Petitioner from employment.

The orders of the Commission are affirmed.

/s/ _________


JAMES GARDNER COLINS
, Senior Judge ORDER

And now this 12th day of December, 2013, the orders of the State Civil Service Commission in the above-captioned matters is affirmed.

/s/ _________


JAMES GARDNER COLINS
, Senior Judge