IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pamela Kolega, :

Petitioner :

:

v. : No. 2056 C.D. 2014

: Argued: September 17, 2015

State Civil Service Commission :

(Department of Education), :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE PELLEGRINI FILED: October 15, 2015

Pamela Kolega petitions for review of the order of the State Civil 

Service Commission (Commission) dismissing her appeal and affirming her 

furlough by the Department of Education (Department) from her position of 

English Language Education Advisor 2 (ELEA 2) under the Civil Service Act 

(Act).

1

 We affirm.

 

1 Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§741.1-741.1005. Section 3(s)

of the Act defines “furlough” as “the termination of employment because of lack of funds or of 

work.” 71 P.S. §741.3(s). See also Section 101.1(a) of the Commission’s regulations, 4 

Pa. Code §101.1(a) (“Furloughs shall occur only because of lack of funds or lack of work.”).
2

I.

Kolega is an older female, aged 65, and is disabled by chronic 

rheumatioid arthritis. In May 1995, the Department hired her in the position of 

Basic Education Associate 1 (BEA 1) in the Department’s Bureau of Teaching and 

Learning (Bureau), Migrant Education Division. In June 2000, Kolega was 

promoted to the position of World Language Education Advisor 2 in the Bureau’s 

Curriculum Division. In June 2011, she was furloughed and was reassigned as the

only employee in the ELEA 2 position in the Bureau’s Curriculum Division. 

Positions in the Curriculum Division are funded through the Commonwealth’s 

general government operations (GGO) fund.

In February 2013, the Governor’s Budget Office issued the proposed 

budget for the 2013-2014 fiscal year, which indicated that the Department would 

be required to eliminate 21 GGO-funded positions. The Department chose to 

abolish 18 vacant positions, and three Deputy Secretaries were directed to 

eliminate one GGO-funded position each. The Department concluded that 

Kolega’s duties could be performed by other employees based on a reorganization 

plan and her GGO-funded ELEA 2 position was eliminated.

Kolega’s ELEA 2 position was covered by the collective bargaining 

agreement (CBA) between the Commonwealth and the Federation of State Cultural 

and Educational Professionals (Union), and the furlough procedures under the 

CBA permit bumping to positions in classifications previously held in a seniority 

unit.2 In August 2013, Kolega was advised of her furlough from the ELEA 2 

 

2

Section 802(a), (c) of the Act provides, in relevant part:

(Footnote continued on next page...)
3

position and she accepted a bump to a vacant BEA 1 position in the Bureau’s 

Student Services Division, a position that she had previously held.

II.

In August 2013, Kolega filed an appeal of the furlough and the bump 

demotion.

3 She alleged that the demotion was improper because: her ELEA 2 

 

(continued...)

An employe shall be furloughed only if at the time of furlough, the 

employe is within the lowest quarter among all employes of the 

employer in the same class on the basis of their last regular service 

ratings, and within this quarter the employe shall be furloughed in 

the order of seniority unless there is in existence a labor agreement 

covering the employes to be furloughed, in which case the terms of 

such labor agreement relative to a furlough procedure shall be 

controlling: Provided, That the appointing authority may limit the 

application of this provision in any particular instance to employes 

in the same class, classification series or other grouping of 

employes as referred to in any applicable labor agreement, and 

which are in the same department or agency within the same 

bureau or division.... Under the rules a regular employe 

furloughed shall for a period of one year be given preference for 

reemployment in the same class of position from which furloughed 

and shall be eligible for appointment to a position of a similar class 

in other agencies under this act unless the terms of an existing 

labor agreement preclude the employe from receiving the 

preferential treatment contained in this section in which event the 

terms of the labor agreement shall be controlling.

71 P.S. §741.802(a), (c). See also Section 101.1(l) of the Commission’s regulations, 4 Pa. Code 

§101.1(l) (“If there is a labor agreement covering the employees to be furloughed, the terms of 

the agreement as to furlough and reemployment procedures shall be controlling.”).

3

Section 3(r) of the Act defines “demotion” as the “voluntary or involuntary movement 

of an employee to a class assigned to a pay range with a lower maximum salary.” 71 P.S. 

§741.3(r).
4

position was federally funded and should not have been affected by the state 

budget; the Department never implemented the proposed reorganization supporting 

her furlough; the Department lacked the authority to eliminate the ELEA 2 position 

because it was “critical;” and the position was never really eliminated because it 

appeared as “Vacant” on the Department’s website as of November 2013.

Kolega also alleged traditional discrimination due to her age and 

disability, as well as that her furlough was taken in retaliation for prior actions she

brought before the Pennsylvania Human Relations Commission (PHRC). Kolega 

also alleged technical discrimination because: the Department failed to 

demonstrate lack of funds or lack of work as required by the Act; the Department 

failed to comply with the requirements of Section 101.1(c) and (d) of the 

Department’s regulations regarding furloughs;4and the Department targeted her as 

 

4

4 Pa. Code §101.1(c), (d). Section 101.1(c) and (d) state:

(c) Furlough units. Furloughs will be conducted within approved 

furlough units. For purposes of this section, a furlough unit shall 

be defined as all employees in the classification within an affected 

institution, division, bureau or a combination of the institutions, 

divisions or bureaus within an agency. Each appointing authority 

will submit recommended furlough units to the Director. Once 

approved by the Director, these furlough units will be used for 

subsequent furloughs. Changes to the approved furlough units 

shall be submitted to and approved by the Director prior to their 

use in subsequent furloughs.

(d) Order of furlough. When a furlough is necessary, the last 

annual or probationary performance evaluations, as applicable, of 

regular employees in the same furlough unit and class shall be 

converted to categories or relative ranks. The employees will be 

placed into quarters, and those in the lowest quarter will be 

furloughed or returned under subsection (e), in the inverse order of 

(Footnote continued on next page...)
5

a unit of one because there were 50 or more other GGO-funded employees in the 

Office of Elementary and Secondary Education that could have been furloughed.

At hearing, Rita Perez (Perez), the Bureau’s Director at the time of the 

furlough, testified that she managed the Curriculum, Federal Programs, Student 

Services and Planning Division, including each division’s program and personnel. 

She stated that there were a total of 21 positions that were abolished in August 

2013, 18 of which were vacancies and three actual positions that were furloughed 

which included Kolega’s position. Perez testified that Kolega was furloughed as 

part of an overall Department deputate reorganization plan that included collapsing 

the Bureau of Assessment into the Bureau of Teaching and Learning to repurpose 

two divisions in each bureau. Perez stated that following review, they determined 

that they had the staffing necessary in both bureaus in English Language Arts and 

did not need the third Language Arts position, Kolega’s position, to accomplish 

necessary tasks because there were already two federally-funded Education 

Assessment Specialists in the Assessment Bureau. She explained the 

appropriateness of Kolega’s furlough as follows:

It was appropriate because we already had two 

folks in the Bureau of Assessment who focused on 

English Language Arts type of assessments. Moving 

forward in that position, the Department is to focus more 

on the assessment part of curriculum and assessment. 

 

(continued...)

classified service seniority. Seniority for this purpose shall be the 

length of continuous service in the classified service if there has 

been no break in service.
6

We had two people filling that position, and we did not 

need a third person.

(Reproduced Record (RR) at 88a-89a).

Perez testified that she first became aware of the furloughs during 

budget discussions with the Department’s Deputy Secretary at that time, Carolyn 

Dumaresq (Dumaresq), and the Chief of Staff at that time, David Folkman. She 

stated that she made the decision to furlough Kolega in collaboration with 

Dumaresq. She testified that she did not discriminate against Kolega on the basis 

of age, disability or any other non-merit factor and did not retaliate against Kolega.

Diane Hershey (Hershey), the Director of the Bureau of Human 

Resources, testified that the Governor’s Budget Office issued a proposed budget in 

February 2013 requiring the elimination of 21 GGO positions. She stated that she 

found 18 vacant GGO positions that were eliminated and that three program 

deputies recommended the remaining three GGO positions that would be 

eliminated: an Education Executive 1 position in the Office of Child Development 

and Early Learning; a clerk typist from the Office of Post-Secondary Education; 

and Kolega’s ELEA 2 position in the Office of Elementary and Secondary 

Education. She testified that Kolega’s position “[w]as not federally funded. It was 

GGO funded from July 1st, 2006. I can’t remember exactly when [Kolega’s 

predecessor] started. But the federal money was dried up, was eliminated. So we 

moved the job to general government operations, GGO money July 1st, 2006.” 

(RR at 158a). Hershey acknowledged that Kolega’s Exhibit 16 showed that the 

Department’s website listed Kolega’s ELEA 2 position as “Vacant,” but that the 
7

Department’s press office prepares the website and that that position had been 

abolished. (Id. at 159a, 160a).

Hershey stated that the reason that Kolega’s position was chosen for 

elimination was because “there’s two employees [in the Assessment Bureau] doing 

assessment work relative to English Language” and “[w]e would have duplicative 

... work because there are two positions in assessment, Bureau of Assessment and 

Accountability that are performing the assessment work.” (RR at 156a, 544a). 

She testified that the clerk typist was able to bump into a federally-funded position 

and that Kolega was able to bump into the BEA 1 position under the CBA. She 

stated that she prepared a letter for the acting Department Secretary requesting 

approval of the furlough by the Secretary of Administration; the furlough was 

approved; Kolega was notified that she was to be furloughed and that she could 

bump into the BEA 1 position that she previously held, one pay scale group lower, 

because there were no other ELEA 2 or ELEA 1 positions; and that Kolega elected 

to accept the offered position. Hershey stated that she was involved in various 

efforts to accommodate Kolega’s disability and that she never denied any of the 

requests for accommodation. Hershey denied that she discriminated against 

Kolega based on age, disability or any other non-merit factor and did not retaliate 

against Kolega.

The Union’s President, William Betrand, testified for Kolega that he 

was notified by e-mail of the Department’s decision to furlough Kolega. He stated 

that he met with representatives of the Department and the Office of 
8

Administration to inquire into the reasoning for Kolega’s furlough. He testified 

that he is not aware of any violation of the CBA’s process in Kolega’s furlough.

Kolega testified that at an August 2013 meeting, she was given a copy 

of the written notice of furlough which stated that she “was being furloughed for 

economic reasons,” and that she “would be demoted to an EL[E]A 1 in another 

division.” (RR at 344a). She stated that she was not told that her ELEA 2 position 

was being eliminated at that meeting, but she was told that only the GGO 

complement had been reduced as opposed to federally-funded positions. She 

explained that in her prior position, she was responsible for overseeing the English 

language standards contained in the “Pennsylvania Core Standards,” as provided in 

the Department’s regulations.

5 She testified that the mathematics advisor and a 

number of younger individuals designated as contacts on other areas of study were 

not furloughed, and that contractors and consultants are currently overseeing the 

English language standards. She stated that she was told that the ELEA 2 position 

was going to be federally-funded when she was placed in that position in July 

2011, and that her predecessor in the position, Jo Beth McKee, had been federallyfunded, but that her travel expenses were state-funded. (RR at 372a-375a).

 

5

See Section 4.3 of the Department’s regulations, 22 Pa. Code §4.3 (“Pennsylvania Core 

Standards—Academic standards for English language arts and mathematics based upon a 

Nationwide, state-led process coordinated by the National Governors Association and the 

Council of Chief State School Officers and in collaboration with teachers, content experts and 

other education stakeholders. The standards define the knowledge and skills students should 

have within their K-12 education careers so that they will graduate high school able to succeed in 

entry-level, credit-bearing academic college courses and in work-force training programs.”).
9

Kolega also testified regarding her 2008 and 2013 requests for 

accommodations under the Americans with Disabilities Act6(ADA) and noted that 

some had been accepted based upon her 2008 request. She stated that the 2013 

request reiterated the 2008 request because she had a supervisor who had

complained about her needing assistance, and that in July 2013, the Department 

approved the same accommodations as previously granted. She testified that the 

ADA accommodations were part of her complaint to the PHRC. Kolega 

acknowledged that she is currently the Department’s Refugee Program Officer 

with bi-weekly pay of $2,715.00.

Sarah Flaherty, the Acting Chief of the Curriculum Division, testified 

for Kolega that she was not aware of the planned reorganization and that she was 

not consulted regarding the Department’s furlough decisions. She stated that Perez 

told her over the telephone about Kolega’s furlough and where Kolega was moving 

in the Department. She testified that while she has worked with contractors with 

respect to English Language Arts, the contractor that she has been working with, 

Jean Dyszel, has not been performing English Language Arts duties and she does 

not know who, if anyone, is performing Kolega’s former duties.

Barbara Dychala, the Department’s Labor Relations Coordinator, 

testified that she did not participate in any furloughs, but she coordinated and 

participated in the August 2013 meet and discuss meeting that the Union had 

requested. She stated that the matters discussed at that meeting related to Kolega’s 

 

6

42 U.S.C. §§12101-12213.
10

furlough and that she summarized the meeting and responded to the concerns 

expressed there in a September 2013 letter.

John Gasdaska, the Office of Administration’s Director of Labor 

Relations, testified that his primary role in furlough actions is to implement the 

contractual seniority provisions and to provide notification to the relevant union. 

He acknowledged that “the agency has broad discretion in that area to show lack of 

money and how they are going to address it [through furloughs],” (RR at 488a), 

and that he did not discuss with Hershey whether the English Language Arts 

position was critical. He stated that he participated in the August 2013 meet and 

discuss meeting, but that the Department researched the issues that were discussed 

and prepared and sent the response.

Debra Jenkins (Jenkins), a budget analyst in the Department’s Bureau 

of Budget and Fiscal Management, testified that she deals with cost codes which 

are used to charge accounts for payment. She stated that she prepared statements 

recording the cost codes used by the Department for the ELEA 2 position in 2010 

and 2011. She testified that the ELEA 2 position was paid with federal funds when 

it was held by McKee in 2010, and that the ELEA 2 position was paid with GGO 

funds when it was held by Kolega in 2011. (RR at 515a-517a). She stated that 

“[in] 2008, Jo Beth McKe[e] had applied for and received a Striving Reader Grant 

and a Reading Recovery Grant so she was managing federal funding. So it was 

deemed her position could be federally funded and not be in federal audit.” (Id. at 

525a). Nevertheless, she testified that when Kolega went into the ELEA 2 

position, it was state-funded. (Id. at 519a).
11

III.

The Commission dismissed Kolega’s appeal. Regarding Kolega’s 

claim that the ELEA 2 position was federally-funded, the Commission noted that 

the only evidence that she offered in support was her own testimony. However, it 

noted, though, that Kolega’s own witness, Jenkins, testified that even though 

Kolega’s predecessor in the position applied for and received federal funding, her 

position was state-funded through GGO funds as of October 2011. As a result, the 

Commission “conclude[d] that [Kolega] has failed to refute the [Department]’s 

inclusion of her position as subject to the GGO-based reduction.” (RR at 891a).

The Commission also rejected Kolega’s claims that the Department 

relied upon the staffing proposals in a never-fully-implemented reorganization 

plan, and that her ELEA 2 position was “critical” and had not actually been 

eliminated. The Commission determined that the fact that the reorganization plan 

was never fully implemented was irrelevant, because credible evidence was 

proffered that the reason that the Department eliminated her position was because 

there were other personnel who could perform her duties. The Commission also 

rejected Kolega’s assertion that the ELEA 2 position was “critical,” noting that 

“[w]hile the Code clearly emphasizes the importance of the English Language 

Arts, we have found no language dictating that the [Department]’s responsibilities 

be performed by the ELEA 2 or any other designated position.” (RR at 892a n. 

10). The Commission likewise rejected Kolega’s claim that the ELEA 2 position 

was not eliminated, noting her evidence in support and stating that “[t]he 

[Department] has, through Hershey, introduced credible testimony establishing that 

the position has, in fact, been abolished.” (Id. at 892a).
12

The Commission explained that because Kolega brought her age and 

disability traditional discrimination claims under Section 951(b) of the Act, she 

had the initial burden “to present evidence that, if believed and otherwise left 

unexplained, indicates that more likely than not discrimination has occurred” 

thereby establishing a presumption of discrimination requiring the Department to 

“introduce evidence of a ‘non-discriminatory explanation’ for the challenged 

personnel action.” (RR at 892a-893a) (citations omitted). The Commission 

concluded that “[w]hile her presentation may be deemed adequate to meet the 

standard for a prima facie claim, the [Department]’s non-discriminatory

explanation—i.e., credible testimony that the English Language Arts duties could 

be performed by others ([RR at 156a-157a])—was sufficient to persuade this 

Commission that [Kolega]’s age and disability were not the reasons for the 

[Department]’s decision. (Id. at 893a). As a result, the Commission dismissed 

Kolega’s age-based and disability-based discrimination claims because they were 

not “supported by credible evidence of an intent to discriminate.” (Id.).

Regarding Kolega’s technical discrimination claim under the Act that 

its provisions were not followed, the Commission determined that sufficient 

credible evidence establishing a prima facie lack of funds was submitted “through 

the presentation of the Budget proposal withdrawing funding for twenty-one 

positions,” and a prima facie lack of work “through testimony establishing that 

[Kolega]’s position was, in good faith, eliminated in compliance with the proposed 

funding reduction.” (RR at 894a). As a result, the Commission dismissed 

Kolega’s argument in this regard “having found both a lack of funds and a lack of 

work.” (Id.).
13

In regards to Kolega’s technical discrimination claims that the Code

provisions were not followed, the Commission found that they “have not been 

explained either at hearing or in her post-hearing Brief.” (RR at 894a). 

Nevertheless, the Commission noted that both the Act and the Code “give[] 

precedence to the terms of labor agreements relative to furlough procedure” and 

that the Department presented credible evidence that Kolega’s ELEA 2 position 

was subject to the terms of the CBA with the Union and that the CBA included a 

statement on the furlough procedures. (Id. at 894a-895a). As the Commission 

explained:

As has been noted the procedure used to determine the 

effect of the decision to abolish [Kolega]’s position and 

[Kolega]’s furlough rights was based upon the [CBA] 

covering that position. The Commonwealth Court of 

Pennsylvania, in Scuoteguazza et al. v. Commonwealth, 

Department of Transportation et al., [368 A.2d 869 (Pa. 

Cmwlth. 1977)], advised the Commission that while the 

Commission retained jurisdiction to determine the 

sufficiency of the agency’s justification for furlough—

i.e., whether the agency has proven the existence of a 

lack of funds or a lack of work sufficient to necessitate a 

furlough—the Commission is not empowered to interpret 

the [CBA] to determine whether the agency adhered to a 

furlough procedure established thereunder.

(Id. at 895a n. 13). As a result, the Commission denied Kolega’s technical 

discrimination claims.

Finally, regarding Kolega’s retaliation claim, the Commission noted 

that she alleged that she had filed three separate age, disability and retaliation 

discrimination complaints with the PHRC, and that her furlough and demotion 
14

were causally related thereto. However, because the Act does not provide a 

standard for reviewing retaliation claims, the Commission applied the standard for 

reviewing traditional discrimination claims and found that Kolega “failed to 

present evidence sufficient to show any causal connection between her PHRC 

complaints and her furlough; without such evidence, [her] allegation of retaliation 

has been deemed unproven.” (RR at 895a-896a). The Commission also applied 

the standard used to establish a prima facie case of retaliation before the PHRC, 

and found that “[b]ased upon our ruling, it is apparent that, even using a specific 

retaliation standard, [Kolega]’s claim would have been dismissed.” (Id. at 896a n. 

14).

IV.

A.

In this appeal,7 Kolega first argues that the Commission’s 

determination that she was properly furloughed under Section 802 of the Act due 

to lack of funds or lack of work is not supported by substantial evidence. 

 

7

This Court’s scope of review of a Commission adjudication is limited to determining 

whether necessary findings of fact are supported by substantial evidence, whether an error of law 

has been committed or whether constitutional rights have been violated. Section 704 of the 

Administrative Agency Law, 2 Pa. C.S. §704; Pennsylvania Game Commission v. State Civil 

Service Commission, 747 A.2d 887, 891 (Pa. 2000). Substantial evidence is such relevant 

evidence as a reasonable mind might accept to support a conclusion. Shade v. Civil Service

Commission, 749 A.2d 1054, 1056 n.5 (Pa. Cmwlth.), appeal denied, 764 A.2d 52 (Pa. 2000). 

The Commission is the sole fact finder in civil service cases, and it has the exclusive authority to 

assess witness credibility and evidentiary weight. Bosnjak v. State Civil Service Commission, 

781 A.2d 1280, 1286 (Pa. Cmwlth. 2001). As a result, this Court will not disturb the 

Commission’s determinations regarding credibility or the weight of the evidence. Id. In 

reviewing a Commission decision, this Court views the evidence and all reasonable inferences 

arising therefrom in a light most favorable to the prevailing party. Id.
15

Specifically, Kolega asserts that there is no credible evidence demonstrating a lack 

of funds because she presented credible evidence that her ELEA 2 position was 

federally-funded. She contends that there is no credible evidence demonstrating a 

lack of work because her ELEA 2 position was not eliminated, the proposed 

Department reorganization never took place, and no reason for the furlough was 

provided at the time that it was implemented.

The Department bears the burden of proof and the burden of going 

forward to make a prima facie showing that there was a lack of funds or lack of 

work. See Dougherty v. Department of Health, 538 A.2d 91, 93 (Pa. Cmwlth. 

1988) (stating that the burden of proof is on the employer to establish a lack of 

funds or a lack of work in civil service appeals). In order for a furlough to be 

based upon a lack of funds, there must be insufficient revenue to meet all financial 

demands unless modifications are made in the Department. Bumba v. 

Pennsylvania State System of Higher Education, 734 A.2d 36, 38 (Pa. Cmwlth. 

1999), appeal denied, 757 A.2d 935 (Pa. 2000); County of Beaver v. Funk, 492 

A.2d 118, 121 n.6 (Pa. Cmwlth. 1985); Forbes v. Department of Transportation, 

434 A.2d 892, 894 n.4 (Pa. Cmwlth. 1981). However, a furlough based on a lack 

of funds does not require a showing of bankruptcy; “[a] ‘lack of funds’ exists when 

insufficient revenue is available to meet all financial demands unless modifications 

are made in the system.” Id.

A furlough based on a lack of work is proper when “the amount of 

work the employee is performing does not warrant [her] retention in view of the 

fact that the employee’s work can more efficiently, from a cost or operational 
16

standpoint, be performed through reassignment to others.” Department of State v. 

Stecher, 484 A.2d 755, 758 (Pa. 1984). To show that a furlough was properly 

based upon a lack of work, the employer must show that: (1) a position was 

eliminated; (2) a reorganizational streamlining occurred; and (3) management 

believed in good faith that the employee’s work could be conducted more 

efficiently in the absence of the eliminated position. Id. at 759; Haskins v. 

Department of Environmental Resources, 636 A.2d 1228, 1229 (Pa. Cmwlth. 

1994). However, whether the employer could or should have cut other positions 

instead of the appellant’s is not an issue before us; management, rather than the 

courts, is entrusted with the discretion to determine what actions will best promote 

the efficiency of the agency’s service to the public. Stecher, 484 A.2d at 758; 

Stover v. Department of Environmental Resources, 636 A.2d 1275, 1277 (Pa. 

Cmwlth. 1994); Vovakes v. Department of Transportation, 453 A.2d 1072, 1074 

(Pa. Cmwlth. 1982). “[W]hen an agency determines that necessary work can be 

performed adequately with fewer employees, thus saving Commonwealth funds, 

that agency is obliged to ‘tighten up’ its work force by eliminating excess 

positions.” Haskins, 636 A.2d at 1229.

Contrary to Kolega’s assertion as outlined above, there is ample 

substantial evidence supporting the Commission’s determinations that her furlough 

was due to both lack of funds and lack of work. Perez testified that Kolega was 

furloughed as part of an overall Department reorganization that included collapsing 

the Bureau of Assessment into the Bureau of Teaching and Learning to repurpose 

two divisions in each, and that it was determined that they had the necessary 

staffing in both bureaus in English Language Arts and did not need Kolega’s 
17

position because of the two federally-funded Education Assessment Specialists in 

the Assessment Bureau. (RR at 88a-89a). Jenkins, Kolega’s witness, testified that 

the ELEA 2 position was paid with federal funds when it was held by McKee in 

2010, and that the ELEA 2 position was paid with GGO funds when it was held by 

Kolega in 2011. (Id. at 515a-517a). Hershey also testified that Kolega’s position 

was paid with GGO funds. She also acknowledged that while Kolega’s Exhibit 16 

showed that the Department’s website listed Kolega’s ELEA 2 position as 

“Vacant,” the Department’s press office prepares the website and that that position 

had, in fact, been abolished. (Id. at 159a, 160a). She stated that the reason that 

Kolega’s position was chosen for elimination was because there were already two 

employees in the Assessment Bureau doing assessment work in English Language 

Arts and that there was duplicative work based on those two federally-funded 

positions. (Id. at 156a, 544a).

Additionally, Kolega’s furlough letter stated that she was being 

furloughed “due to a lack of funds.” (RR at 309a). Moreover, it is immaterial 

even if no reason for the furlough had been provided Kolega at the time that it was 

implemented. A furlough, unlike other actions such as a termination for cause, is 

not predicated upon specific acts by the employee but, rather, external economic 

pressures and workplace reorganizations that are not easily distilled; for this 

reason, neither the Act nor the Commission’s regulations require that the notice of 

furlough include a discussion of the justifications which the employer would later 

use if the furlough is challenged. Martin v. State Civil Service Commission 

(Department of Community and Economic Development), 741 A.2d 226, 230-31 

(Pa. Cmwlth. 1999) (stating that a furlough is not an adverse employment 
18

determination requiring notice of the basis for the action); Section 105.3 of the 

Commission’s regulations, 4 Pa. Code §105.3 (providing that only “[n]otices of 

removal, involuntary demotion or suspension issued to regular employees shall 

include a clear statement of the reasons therefore, sufficient to apprise the 

employee of the grounds upon which the charges are based....”). As a result, the 

purported absence of reasons for Kolega’s furlough at the time of its 

implementation does not preclude the Department from raising those issues in her 

Commission appeal.

B.

Kolega next argues that the Commission erred in determining that the 

Department did not engage in either technical discrimination or discrimination 

based on her age or disability or in retaliation for her complaints to PHRC. We do 

not agree.

There are two categories of discrimination that may be appealed to the 

Commission under Section 951(b) of the Act: “traditional discrimination” and 

“technical discrimination.” Pronko v. Department of Revenue, 539 A.2d 456 (Pa. 

Cmwlth. 1988). Traditional discrimination claims under Section 905.1 of the Act8

are based on factors such as race, sex, age, disability and national origin. Id. at 

462. Technical discrimination claims are based on technical and procedural 

violations of the Act and related regulations. Reck v. State Civil Service 

Commission, 992 A.2d 977, 980 n.3 (Pa. Cmwlth. 2010). In order to obtain relief 

 

8 Added by Act of August 27, 1963, P.L. 1257, 71 P.S. §741.905a.
19

for technical discrimination, an employee must show that she 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, she could have been harmed but 

there is no way to prove that for certain. Price v. Luzerne/Wyoming Counties Area 

Agency on Aging, 672 A.2d 409, 413 (Pa. Cmwlth. 1996), appeal denied, 688 A.2d 

174 (Pa. 1997).

1.

In traditional discrimination claims arising under Section 905.1 of the 

Act, the employee claiming discrimination in personnel actions has the burden of 

presenting evidence to support such a charge. Cola v. State Civil Service 

Commission (Department of Conservation & Natural Resources), 861 A.2d 434, 

436 (Pa. Cmwlth. 2004). In Moore v. State Civil Service Commission (Department 

of Corrections), 922 A.2d 80, 85 (Pa. Cmwlth. 2007), this Court addressed the 

standard of proof for traditional discrimination claims enunciated by the Supreme 

Court in Allegheny Housing Rehabilitation Corp. v. Pennsylvania Human 

Relations Commission, 532 A.2d 315, 319 (Pa. 1987).

First, the plaintiff must produce sufficient evidence to establish a 

prima facie case. Moore, 922 A.2d at 85. To do so, the plaintiff must present 

sufficient evidence that, if believed and otherwise unexplained, indicates more 

likely than not that discrimination occurred. Id. Given the critical role of 

circumstantial evidence in discrimination cases, the prima facie burden of proof is 

not an onerous one. Id. Absent a credible response from the defendant, a 

presumption of discrimination arises and the plaintiff’s prima facie case stands 
20

determinative of the factual issue of the case. Id. If, however, the defendant offers 

a non-discriminatory explanation for the personnel action, the presumption drops 

from the case. Id. As in other civil litigation, the tribunal must then evaluate the 

entire body of evidence under the preponderance standard and determine which 

party’s explanation of the employer’s motivation it believes. Id.

Regarding Kolega’s traditional discrimination claim, the Commission 

found that “the [Department]’s non-discriminatory explanation—i.e., credible 

testimony that the English Language Arts duties could be performed by others 

([RR at 156a-157a])—was sufficient to persuade this Commission that [Kolega]’s 

age and disability were not the reasons for the [Department]’s decision.” (Id. at 

893a). As outlined above, there is ample substantial evidence to support this 

determination that the furlough was purely based on non-discriminatory factors.

2.

Kolega alleges that the Commission erred in failing to find technical 

discrimination because the Department failed to furlough her in accordance with 

the seniority provisions of the Act9and Article 24, Section 7 of the CBA.10 

 

9 As noted above, Section 802(a) of the Act states, in relevant part, “That the appointing 

authority may limit the application of this provision in any particular instance to employes in the 

same class, classification series or other grouping of employes as referred to in any applicable 

labor agreement, and which are in the same department or agency within the same bureau or 

division....” 71 P.S. §741.802(a).

10 Article 24, Section 7 of the CBA states, “In any class within the unit affected by 

layoffs or furloughs, all emergency, temporary and provisional employees shall be laid off or 

furloughed before any other employee.” (RR at 630a).
21

Specifically, she argues that provisional or temporary employees are to be removed 

or furloughed before regular employees and that a consultant was hired to perform 

the duties of her position. However, the Commission found credible Hershey’s 

testimony that “there’s two employees [in the Assessment Bureau] doing 

assessment work relative to English Language” and that “[w]e would have 

duplicative ... work because there are two positions in assessment, Bureau of 

Assessment and Accountability that are performing the assessment work.” (RR at 

156a, 544a). There was no Commission finding that the employees that were 

retained were provisional or temporary employees in violation of either the Act or 

the CBA.

3.

With respect to her retaliation claim, the Commission found that she 

“failed to present evidence sufficient to show any causal connection between her 

PHRC complaints and her furlough; without such evidence, [her] allegation of 

retaliation has been deemed unproven,” and that under the standard used by the 

PHRC to establish a prima facie case of retaliation, “[b]ased upon our ruling, it is 

apparent that, even using a specific retaliation standard, [Kolega]’s claim would 

have been dismissed.” (RR at 895a-896a n. 14). While Kolega cites evidence 

demonstrating, perhaps, that her furlough was temporally related to the retirement 

of her former supervisor against whom she had filed the PHRC complaints, she 

does not cite to any evidence found credible by the Commission which 

demonstrates the causal relation between the reports and her furlough. Simply, the 

Commission accepted as credible the Department’s non-discriminatory motivation 
22

for her furlough and bump into the vacant BEA 1 position in the Bureau’s Student 

Services Division and we will not disturb that determination on appeal.

C.

Finally, Kolega argues that the Commission erred in failing to take 

judicial notice11 that the Department’s website stated that her ELEA 2 position is 

vacant. However, in disregard of Pa. R.A.P. 2117(c) and 2119(e), Kolega has 

failed to include in her brief any statement advising us of the manner in which the 

issue was raised before the Commission and the place in the record where the 

preservation of this issue may be found. Therefore, we deem this argument 

waived.12 Moreover, even if it is assumed that the Commission was required to 

 

11 As this Court has explained:

“Official notice” is the administrative counterpart of judicial notice 

and is the most significant exception to the exclusiveness of the 

record principle. The doctrine allows an agency to take official 

notice of facts which are obvious and notorious to an expert in the 

agency’s field and those facts contained in reports and records in 

the agency’s files, in addition to those facts which are obvious and 

notorious to the average person. Thus, official notice is a broader 

doctrine than is judicial notice and recognizes the special 

competence of the administrative agency in its particular field and 

also recognizes that the agency is a storehouse of information on 

that field consisting of reports, case files, statistics and other data 

relevant to its work.

Falasco v. Pennsylvania Board of Probation and Parole, 521 A.2d 991, 995 n.6 (Pa. Cmwlth. 

1987) (citations omitted).

12 See, e.g., In re Condemnation of Land for South East Central Business District 

Redevelopment Area No.1, 946 A.2d 1154, 1156 (Pa. Cmwlth), appeal denied, 968 A.2d 233 

(Pa. 2008), cert. denied, 556 U.S. 1208 (2009) (“[T]he statement of the case and/or argument 

portion of a brief must contain a ‘specific reference to the places in the record’ where the ruling, 

(Footnote continued on next page...)
23

take notice that the Department’s website stated that the ELEA 2 position was 

vacant, as noted above, Hershey acknowledged that while Kolega’s Exhibit 16 

showed that the Department’s website listed Kolega’s ELEA 2 position as 

“Vacant,” the Department’s press office prepares the website and that that position 

had, in fact, been abolished. (RR at 159a, 160a). As a result, any purported error 

in this regard was harmless as the credible evidence rebutted the information on the 

website.

Accordingly, the Commission’s order is affirmed.

________________________________

DAN PELLEGRINI, President Judge

 

(continued...)

or exception thereto, appears in order to show that the question before the court was timely and 

properly raised below so as to preserve the question on appeal. Pa. R.A.P. 2117(c); Pa. R.A.P. 

2119(e).”).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pamela Kolega, :

Petitioner :

:

v. : No. 2056 C.D. 2014

:

State Civil Service Commission :

(Department of Education), :

Respondent :

O R D E R

AND NOW, this 15th day of October, 2015, the order of the State 

Civil Service Commission dated October 15, 2014, at No. 27958, is affirmed.

________________________________

DAN PELLEGRINI, President Judge