IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alfred A. Smith, :

Petitioner :

:

v. : No. 1447 C.D. 2017

: Submitted: March 2, 2018

State Civil Service Commission :

(Pennsylvania Department of :

Corrections, State Correctional :

Institution at Mahanoy Appointing :

Authority and Tara L. Owens and :

Patrick J. McDevitt), :

Respondents:

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: March 28, 2018

Alfred A. Smith (Smith) petitions pro se1for review of the order of 

the State Civil Service Commission (Commission) which dismissed his appeal 

challenging his non-selection for promotion to the position of Adult Basic 

Education Teacher (ABET) with the Pennsylvania Department of Corrections, 

 

1 While Smith was represented by counsel before the Commission, his petition for review 

to this Court was filed pro se.
2

State Correctional Institution at Mahanoy (Appointing Authority). For the reasons 

that follow, we affirm.

I.

In 1993, Smith began working as a Personnel Analyst at the State 

Correctional Institution at Mahanoy (SCI-Mahanoy). His job duties included

overseeing a training program for employees at SCI-Mahanoy and SCI-Frackville. 

Smith is Hispanic and he has acted as a Spanish translator at both institutions.

In January 2016, the Appointing Authority posted a notice that 

applications were being sought for an ABET at SCI-Mahanoy. Smith submitted an 

application for the position. A civil service promotion list for the ABET position

was prepared and Smith was one of four individuals appearing on that list. Smith

was scheduled for an interview on April 11, 2016, but all interviews were 

cancelled when the Appointing Authority determined that there were two vacant 

ABET positions at SCI-Mahanoy that needed to be filled.

In April 2016, a second list was prepared for the ABET positions but

Smith was not among the 13 individuals on that list. Nevertheless, Smith 

interviewed for the ABET positions. All six candidates who were interviewed for 

the ABET positions were interviewed by the same panel consisting of Jeffrey 

Chiampi, Educational Administrative Manager/Division Chief for the Bureau of 

Corrections Education; Carl Kmiec, Field Human Resource Officer for SCI-Dallas 

and SCI-Retreat; and Thomas O’Brien (O’Brien), school principal at SCIFrackville. The panel asked each of the six candidates identical questions during 
3

their interviews. Based upon their prior teaching experience and interview 

performances, the panel unanimously selected Patrick McDevitt (McDevitt) as the 

first choice and Tara Owens (Owens) as the second choice. Smith was ranked 

fourth out of the six individuals interviewed. By letter dated September 16, 2016, 

the Appointing Authority notified Smith that he was not selected for the ABET 

positions.

Pursuant to Section 951(b) of the State Civil Service Act (Act),2 Smith

appealed to the Commission alleging that his non-selection constituted both 

technical and traditional discrimination. Smith asserted that the Appointing 

Authority committed technical discrimination because the initial panel composition 

was changed when the interviews were rescheduled and Chester Beggs (Beggs), 

the School Principal at SCI-Mahanoy who was familiar with Smith and his work 

performance, was kept off the interview panel based upon a perceived conflict of 

interest that turned out to be inaccurate. According to Smith, Beggs should have 

been on the interview panel because he was the principal of the school at which 

Smith was seeking to become a teacher and was the most knowledgeable about the 

needs of the students and the type of candidate likely to succeed in the ABET 

positions. Smith also alleged that the Appointing Authority committed traditional 

discrimination based upon national origin as for decades only white males and 

white females have been selected as ABETs at SCI-Mahanoy.

 

2 Act of August 5, 1941, P.L. 752, added by the Act of August 27, 1963, P.L. 1257, as 

amended, 71 P.S. § 741.951(b).
4

Following a hearing, on September 6, 2017, the Commission issued 

an order holding that Smith failed to present evidence establishing discrimination 

in violation of Section 905.1 of the Act3and, accordingly, dismissed his appeal. 

Smith then petitioned this Court for review of the Commission’s decision.4

II.

Pursuant to Section 951(b) of the Act, there are two categories of 

discrimination for which an unfavorable employment action may be appealed to 

the Commission. The first is traditional discrimination, which is based on factors 

such as race, sex, age, disability and national origin. Pronko v. Department of 

Revenue, 539 A.2d 456, 461-62 (Pa. Cmwlth. 1988). The second is technical 

discrimination which occurs when a Commonwealth agency, such as the 

Appointing Authority, violates the procedures established in the Act or the Civil 

Service Rules (Rules). Id. at 462. Proof of a technical violation constitutes 

discrimination per se and no showing of intent is required. Moore v. State Civil 

 

3 Added by the Act of August 27, 1963, P.L. 1257, 71 P.S. § 741.905a. Section 905.1 of 

the Act, titled prohibition of discrimination, provides:

No officer or employe of the Commonwealth shall discriminate 

against any person in recruitment, examination, appointment, 

training, promotion, retention or any other personnel action with 

respect to the classified service because of political or religious 

opinions or affiliations because of labor union affiliations or 

because of race, national origin or other non-merit factors.

4 Our review of the Commission’s decision is limited to determining whether 

constitutional rights have been violated or errors of law have been committed, and whether the 

Commission’s findings are supported by substantial evidence. Moore v. State Civil Service 

Commission (Department of Corrections), 922 A.2d 80, 84 n.3 (Pa. Cmwlth. 2007) (citation 

omitted).
5

Service Commission (Department of Corrections), 922 A.2d 80, 85 (Pa. Cmwlth. 

2007). For an individual to obtain relief for technical discrimination, he “must 

present evidence that he [ ] ‘was, in fact, harmed because of the technical noncompliance with the Act or evidence that because of the peculiar nature of the 

procedural impropriety [he] could have been harmed but there is no way to prove 

that for certain.’” Id. at 85 (quoting Pronko, 539 A.2d at 462) (emphasis in 

original).

A.

Smith contends that the Commission erred in failing to conclude that 

the Appointing Authority committed technical discrimination by deciding to 

remove Beggs from the interview panel. Smith argues that Beggs was under the 

impression that he would be on the interview panel since he was the School 

Principal at SCI-Mahanoy where the ABETs were being hired. However, Beggs 

was removed from the panel because there was an alleged conflict between him 

and another individual who was interviewed for the ABET positions – Beggs was 

on the school board that voted to terminate this individual during his previous 

employment as a public school teacher. Smith claims this allegation is not true and

there was no legitimate reason to remove Beggs from the interview panel. Smith 

appears to argue that Beggs’ removal harmed or could have harmed Smith’s 

prospects of being promoted to the ABET position because Smith would have 

known that he was the best candidate for the job.

However, as the Commission correctly noted, nothing in the Act or 

Rules requires that specific employees be members of interview panels. While 
6

there was testimony that certain employees, including school principals, are 

usually members of interview panels for the ABET positions, none of the witnesses 

testified that the employees who ultimately served on Smith’s interview panel were 

incapable of selecting an ABET and no evidence in this regard was presented 

before the Commission. Notably, O’Brien, who actually served on the interview 

panel, is a school principal, just at another institution. In addition, the Commission 

found the Appointing Authority’s witnesses to be credible and they testified that 

O’Brien was assigned to the interview panel because it was believed that Beggs 

had a conflict of interest with one of the candidates being interviewed.

There is no evidence in the record that the Appointing Authority 

violated a procedure established in the Act or Rules by not including Beggs on the 

interview panel, nor is there any evidence that Smith was harmed or could have 

been harmed by Beggs’ exclusion. Therefore, we discern no error in the 

Commission’s conclusion that Smith failed to demonstrate technical 

discrimination.5

B.

Smith also argues that the Commission erred in concluding that the 

Appointing Authority did not engage in traditional discrimination based upon his 

national origin. An individual alleging that a personnel action was undertaken for 

 

5 Smith also asserts in his brief to this Court that the Appointing Authority committed 

technical discrimination by presenting false information regarding the veterans’ preference and 

by not providing him with requested legal documents. Because these issues were not raised 

before the Commission, they have been waived and will not be considered by this Court. See Pa. 

R.A.P. 302(a); Fatzinger v. City of Allentown, 591 A.2d 369, 371 (Pa. Cmwlth. 1991).
7

traditional discriminatory reasons has the sole burden of proof. Keim v. 

Department of Health, 543 A.2d 1261, 1264 (Pa. Cmwlth. 1988). Traditional 

discrimination cannot be inferred or based solely on general statistics; rather, there 

must be affirmative, factual support for the alleged discrimination. Price v. 

Luzerne/Wyoming Counties Area Agency on Aging, 672 A.2d 409, 413 (Pa. 

Cmwlth. 1996).

Here, Smith failed to put forth any evidence to support his argument 

that he was not selected for the ABET position because he was born in Mexico and 

is Hispanic. He relies merely upon his assertion that the ABETs at SCI-Mahanoy 

are all non-Hispanic, white males and white females, and his national origin should 

have been given more weight in the hiring process because of the high percentage 

of Hispanic inmates at SCI-Mahanoy. There is no evidence and no affirmative 

factual proof in the record that Smith was treated differently from the other 

candidates or that his non-selection was motivated by discrimination.

Moreover, the Appointing Authority presented credible evidence of 

legitimate, non-discriminatory reasons for selecting McDevitt and Owens over 

Smith for the ABET positions. The Appointing Authority considered McDevitt 

and Owens the most suitable candidates given their significant teaching histories

and the fact that teaching inmates is the main function of the ABET position. 

Smith did not attempt to counter this finding by presenting evidence or even 

argument that McDevitt and Owens, the individuals selected for the ABET 

positions, did not possess the necessary skills and experience to perform the 

functions and duties of an ABET or that he possessed far superior skills. To the 
8

contrary, the Appointing Authority’s witnesses credibly testified that they chose 

McDevitt and Owens because of their performance during the interview process 

and their previous teaching experience, which Smith did not possess.

Accordingly, we affirm the Commission’s order.

___________________________________

DAN PELLEGRINI, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alfred A. Smith, :

Petitioner :

:

v. : No. 1447 C.D. 2017

:

State Civil Service Commission :

(Pennsylvania Department of :

Corrections, State Correctional :

Institution at Mahanoy Appointing :

Authority and Tara L. Owens and :

Patrick J. McDevitt), :

Respondents:

O R D E R

AND NOW, this 28th day of March, 2018, the order of the State Civil 

Service Commission in the above-captioned matter is hereby affirmed.

___________________________________

DAN PELLEGRINI, Senior Judge