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 : Instituti on 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 REPOR TED

MEMORANDUM OPINION BY SENIOR JUDGE PELLEGRINI FILED: March 28, 2018

Alfred A. Smith (Smith) petitions pro se 1 for review of the order of the State Civil Service Commission (Commission) which dismissed his appeal
chal lenging his non

- selection fo r promotion to the position of Adult Basic Education Teacher (ABET) with the Pennsylvania Depart ment 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 workin g as a P ersonnel Analyst at the State
Correctional Institu tion at Mahanoy (SCI

- Mahanoy) . His job duties include d 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 a n ABET at SCI

- Mahanoy

. Smith submitted an application for the position

. A civil service promotion list for th e ABET position

was prepa red 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
cancel l ed when the Appointing Authority determined that there were two vacant ABET positions at SCI

- Mahanoy t hat needed to be filled.

In April 2016, a second list was prepared for the ABET positions but
Smith was not amo ng the 13 individuals on that list. Nevertheless, Smith
interv iewed for the ABET positions

. All six candidates who were interviewed for
the A BET positions were intervi ewed by the same panel consisting of Jeffrey Chiampi, Educational Administrative Manager/Division Chief for the Bureau of
Correction s Education; Carl Kmiec, Field Human Resource Office r for SCI

- Dallas
and SCI

- Retreat; and Thomas O ’Brien (O’Brien)
, s chool p rincipal at SCI

Frackville. The panel asked each of the six candidates identical questions during3

their interviews

. Based upon their prior teaching experience and interview performances, the panel unanimously selected Patrick Mc Devitt (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 Se ptember 16, 2016, the Appointing Authority notified Smith that he was not selected for th e ABET position s

.

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 P rincipal 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 w as 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 on ly white males and
white females have been selected as ABET s 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 Act 3 and, accordingly, dismissed his appeal. Smith then petitioned this Court for review of the Commission’s decision. 4

II.
P ursuant to Section 951(b) of the Act, there are t wo ca tegories of
discrimination for which an unfavorable employment act ion 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 t ec hnical
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 A dded 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, appo intment, 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

- mer it 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. S tate 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 non

compliance 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 u nder 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 an other individu al who was int erviewe d 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, a s the Commission correctly noted, nothing in the Act or Rules requires that specific employees be members of interview panels. While6

there was testimony that certain employees , including s chool p rincipal s , are usually members of interview panels for the A BET position s , 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 serve d on the interview panel, is a s chool p rincipal, 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 i n concluding that the Appointing Authority did not engage in traditional discrimination based up on 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 info rmation 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); Fatzing er v. City of Allentown , 591 A.2d 369, 371 (Pa. Cmwlth. 1991).7

traditional discriminatory reasons has the sole burden of pro of. 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. Lu zerne/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 reli es 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

- Mahan oy. 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 evidenc e of legitimate, non

- discriminatory reasons for selecting McDevitt and Owens over
Smit h for the ABET positions. The Appointing Authority considered McDevitt
and Owens the most suitable candidates given their significant teaching histories
and the fact tha t 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 ski lls and experience to perform the
functions and d uties of an ABET or that he possessed far superior skills. To the8

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 experien ce, which Smith did not possess

.

Accordingly, we affirm the Commission’s order.

___________________________________ DAN PELLEGRINI, Senior JudgeIN 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 : Patric k J. McDevitt), : Respondents :

O R D E R

AND NOW, this 28 th day of March , 201 8 , the order of the State Civil
Service Commission in the above

- captioned matter is hereby affirmed.

___________________________________ DAN PELLEGRINI, Senior Judge