IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nancy E. Kunsak, :

Petitioner :

:

v. :

:

State Civil Service Commission :

(State Correctional Institute at :

Pittsburgh, Department of Corrections), : No. 746 C.D. 2015

Respondent : Submitted: December 24, 2015

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: May 5, 2016

Nancy E. Kunsak (Kunsak) petitions this Court for review of the State 

Civil Service Commission’s (Commission) April 6, 2015 Adjudication and Order 

dismissing her appeal challenging her removal as a Psychological Services Specialist 

(Specialist) for the Department of Corrections (Department), State Correctional 

Institution at Pittsburgh (SCI-Pittsburgh). The issues for this Court’s review are: (1) 

whether the Commission erred as a matter of law by denying Kunsak’s request for a 

hearing under Section 951(b) of the Civil Service Act (Act);1(2) whether the 

Commission erred as a matter of law by finding that the Department met its burden of 

proving just cause for Kunsak’s removal; and, (3) whether the Commission erred as a 

matter of law by failing to consider Kunsak’s performance reviews.2 After review, 

we affirm.

 

1 Act of August 5, 1941, P.L. 752, as amended, added by Section 27 of the Act of August 

27, 1963, P.L. 1257, 71 P.S. § 741.951(b) (relating to appeals in discrimination cases).

2 Kunsak presented three additional issues: whether the Commission erred by failing to 

consider her workload, by not deciding this case in accordance with a prior decision in a similar 

case, and by finding that Kunsak does not contest the factual charges against her. Because these 
2

Kunsak was employed by the Department as a Specialist at SCIPittsburgh from November 3, 20083

until she was discharged on October 18, 2013 for 

violating the Department’s policy of promptly evaluating and treating inmates 

suffering from mental health issues. Kunsak appealed from her employment 

termination to the Commission under Sections 951(a) and 951(b) of the Act,

4

requesting reinstatement with back pay. A hearing was held on January 8, 2014 

pursuant to Section 951(a) of the Act in order to determine whether the Department 

had just cause for its action. Kunsak’s request for review under Section 951(b) of the 

Act was denied on the basis that she failed to sufficiently plead an employment

discrimination case. On April 6, 2015, the Commission concluded that the 

Department established just cause for Kunsak’s removal and dismissed her appeal. 

Kunsak appealed to this Court.5

Kunsak argues that the Commission erred by denying her request for a 

hearing under Section 951(b) of the Act. We disagree. Section 905.1 of the Act 

mandates: 

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.

 

questions relate directly to whether the Department met its burden of proving just cause for her 

removal, they are subsumed thereunder.

3 Kunsak was previously employed as a licensed psychologist at the Mayview State Hospital 

from August 25, 2003 until October 31, 2008.

4

71 P.S. § 741.951(a), (b).

5

“The Court’s review of a decision of the Commission is limited to determining whether 

constitutional rights have been violated, [whether] errors of law have been committed or whether its 

findings are supported by substantial evidence.” Walsh v. State Civil Serv. Comm’n (Dep’t of 

Transp.), 959 A.2d 485, 488 n.2 (Pa. Cmwlth. 2008).
3

71 P.S. § 741.905a.

6

 Section 951(b) of the Act instructs:

Any person who is aggrieved by an alleged violation of 

[S]ection 905.1 of this [A]ct may appeal in writing to the 

[C]ommission within twenty calendar days of the alleged 

violation. Upon receipt of such notice of appeal, the 

[C]ommission shall promptly schedule and hold a public 

hearing.

71 P.S. § 741.951(b). 

This Court has held:

Affirmative factual allegations must support all claims 

of discrimination because discrimination cannot be 

inferred. The burden of proof is upon the party claiming to 

be aggrieved by the alleged discrimination. The 

Commission is authorized to dismiss an appeal, sua 

sponte, without a hearing if the appeal request form fails 

to state a claim. 

Reck v. State Civil Serv. Comm’n, 992 A.2d 977, 979 (Pa. Cmwlth. 2010) (citations 

omitted; emphasis added). Section 105.12 of the Commission’s Regulations sets 

forth what information is required to state a discrimination claim:

(b) The person appealing shall state clearly and concisely 

the:

(1) Grounds of the interest of the person in the 

subject matter.

(2) Facts relied upon.

(3) Relief sought.

(c) Appeals alleging discrimination which do not include 

specific facts relating to discrimination may be 

dismissed. Specific facts which should appear on the 

appeal form include:

(1) The acts complained of.

 

6 Added by Section 25 of the Act of August 27, 1963, P.L. 1257.
4

(2) How the treatment differs from treatment of 

others similarly situated.

(3) When the acts occurred.

(4) When and how the appellant first became aware 

of the alleged discrimination.

4 Pa. Code § 105.12 (emphasis added). On the Commission’s Appeal Request Form

(Request Form), under “REASONS,” is the instruction to “ANSWER THE FOLLOWING

QUESTIONS AS COMPLETELY AS POSSIBLE. FAILURE TO DO SO MAY RESULT IN DENIAL OF 

YOUR APPEAL. (Attach additional sheets if necessary.)” Reproduced Record (R.R.) at 

323a. 

In Kunsak’s discrimination hearing request portion of the Request Form, 

she averred that she was discriminated against based upon her sex and disability as 

follows:

A. What action(s) occurred which led you to believe you were 

discriminated against?

Management did not equally distribute workloads, after 

numerous requests. When an inmate suicide occurred, 

despite [Department] past practices in other institutions 

with male psychology staff; I, as female staff, was fired.

B. Where and when did this action occur? 

April 30 – October 18, 2013.

C. Who discriminated against you? Provide name(s) and job 

title(s).

Superintendent Mark Capozza

Deputy William Woods

D. Do you believe the [Act] and/or Rules were violated? If so, 

what section(s)?

Yes. Section 807 [relating to removal for just cause], 

905.1 [sic], Section 950 ([notice] beyond time limits)
5

E. Provide any other information which you believe is 

relevant. 

Dr. Robert Dietz, SCI[-]Greene, provides onsite 

supervision one day a week. Dr. Kenneth Caion

provided supervision as he was onsite, as a Regional 

Manager. In the month of June, I covered for every 

psychology staff in their multiple absences, but coverage 

for me was [undecipherable handwriting].

R.R. at 323a (emphasis added). In the Commission’s Notice of Public Hearing, it 

stated: “The reason for the denial under Section 951(b) [of the Act] is insufficient 

allegation of discrimination.”7 Certified Record, Notes of Testimony, Commission 

Ex. C.

Thus, despite the Commission expressly instructing in its Regulations 

and Request Form to do so, and advising of the risk of having her discrimination 

appeal request denied, Kunsak did not proffer any facts regarding how she may have 

been discriminated against based upon a disability. Moreover, Kunsak’s only 

statement that could even remotely support a sex discrimination claim was: “When an 

inmate suicide occurred, despite [Department] past practices in other institutions with 

male psychology staff; I, as female staff, was fired.” R.R. at 323a. In the absence of 

“[a]ffirmative factual allegations” to support Kunsak’s claims, and since 

“discrimination cannot be inferred,” the Commission properly denied Kunsak’s

request for a hearing under Section 951(b) of the Act.8 Reck, 992 A.2d at 979. 

 

7 Kunsak’s specific issue was whether the Commission’s failure to consider her request for 

a hearing under Section 951(b) of the Act constitutes an error of law. However, since the 

Commission clearly considered and denied the request due to insufficient discrimination 

allegations, as evidenced by its Notice of Public hearing and its Adjudication (see Commission Adj.

at 2 n.1), we restated the issue accordingly.

8

[T]he employee must present sufficient evidence that, if believed and 

otherwise unexplained, indicates more likely than not that 

discrimination occurred. Moore v. State Civil Serv. Comm’n (Dep’t of 

Corr.), 922 A.2d 80 (Pa. Cmwlth. 2007). 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 
6

 Kunsak next contends that the Commission erred as a matter of law by 

finding that the Department met its burden of proving just cause for Kunsak’s 

removal. We disagree. 

Initially, 

[c]ivil servants may only be terminated for ‘just cause.’ 71 

P.S. § 741.807.[9] Although not defined in the . . . Act, our 

court has indicated that just cause ‘must be merit-related 

and the criteria must touch upon competency and ability in 

some rational and logical manner.’ Galant v. Dep[’]t of 

Env[tl.] Res[.], . . . 626 A.2d 496, 497 ([Pa.] 1993).

Pa. Game Comm’n v. State Civil Serv. Comm’n (Toth), 747 A.2d 887, 892 (Pa. 2000).

What constitutes just cause for removal is largely a matter 

of discretion on the part of the head of the department. 

Woods [v. State Civil Serv. Comm’n, 912 A.2d 803 (Pa. 

2006)]; Pa. Bd. of Prob. & Parole v. State Civil Serv. 

Comm’n [(Manson)], 4 A.3d 1106 (Pa. Cmwlth. 2010). 

‘However, to be sufficient, the cause should be personal to 

the employee and such as to render the employee unfit for 

his or her position, thus making dismissal justifiable and for 

the good of the service.’ [Manson], 4 A.3d at 1112. 

Whether the actions of a civil service employee constitute 

just cause for removal is a question of law fully reviewable 

by this Court. Id.

 

from the appointing authority, a presumption of discrimination arises

and the employee’s prima facie case stands determinative of the 

factual issue of the case. Id.

If, however, the appointing authority 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 appointing authority’s 

motivation it believes. Id.

Perry v. State Civil Serv. Comm’n (Dep't of Labor & Indus.), 38 A.3d 942, 957-58 (Pa. Cmwlth. 

2011).

9

Section 807 of the Act states: “No regular employe in the classified service shall be 

removed except for just cause.” 71 P.S. § 741.807.
7

Perry v. State Civil Serv. Comm’n (Dep’t of Labor & Indus.), 38 A.3d 942, 951 (Pa. 

Cmwlth. 2011). “The appointing authority bears the burden of proving just cause and 

the substance of the charges underlying the employee’s removal.” Dep’t of Transp. v. 

State Civil Serv. Comm’n, 84 A.3d 779, 783 n.1 (Pa. Cmwlth. 2014). Finally, 

“[w]hen reviewing a Commission decision, we view the evidence, and all reasonable 

inferences arising from the evidence, in a light most favorable to the prevailing 

party.” Perry, 38 A.3d at 948.

Admitted into evidence at the hearing without objection were the 

Department’s Policy Statement and its Procedures Manual relating to inmate access 

to mental healthcare. The Department’s Policy Statement, effective June 14, 2014, 

states that the Department shall “establish a systematic method of delivering 

psychological services to every inmate” under its supervision “to ensure that 

regardless of how major or minor the emotional disturbance, services are available to 

every inmate[.]” R.R. at 331a-332a. To that end, Section 2.A.4.b of Policy No. 

13.8.1 in the Department’s Procedures Manual, also effective June 14, 2004,

provided:

Since any inmate may report or demonstrate mental health 

issues whether or not [he/she is] currently receiving mental 

health treatment, all contact staff must be trained and able 

to recognize signs of potential mental illness, suicidality or 

elevated risk of violence. Observations or concerns about 

any inmate with such issues shall be relayed to the 

appropriate treatment staff for evaluation and follow-up 

using the DC-97 [Mental Health Referral Form]. In urgent 

cases, a phone call shall be made to the psychology 

department (or the infirmary if after hours) or the inmate 

shall be escorted to the infirmary area. Under supervision 

of the [licensed psychology manager (]LPM[)], 

[p]sychology staff will interview the inmate as soon as 

possible after receipt of referral, but no later than one 

week. This interview will be documented on a DC-560. 

The LPM will evaluate the need for immediate psychiatric 
8

evaluation and/or [psychiatric observation cell (]POC[)]

placement. If the LPM/designee determines psychiatric 

evaluation is warranted but not an emergency, a DC-97

along with a copy of the DC-560 [Mental Health Contact 

Note] shall be forwarded to psychiatry the same day. The 

inmate shall be seen by the psychiatry provider within two 

weeks of receipt of this referral from psychology staff or 

sooner if possible.

R.R. at 355a (footnote omitted; text emphasis added). 

The Department’s Deputy Superintendent for Centralized Services at 

SCI-Pittsburgh William Woods (Woods) testified that he supervises approximately 

half of the operations at SCI-Pittsburgh, including the facility’s inmate mental health 

services. He explained that when he took the position at SCI-Pittsburgh in April 

2012, Kunsak’s immediate supervisor was LPM Sandy Vujnovic (Vujnovic). Woods 

explained that since Vujnovic retired in August or September 2012 and her position 

had not yet been filled as of June/July 2013, Woods was the immediate supervisor to 

Kunsak and four other Specialists in 2013. 

According to Woods, when he began investigating inmate Jumaul 

Williams’ (Williams) July 10, 2013 suicide, he learned that referrals regarding 

Williams’ mental health had been made to the psychology department and they were

assigned to Kunsak for action. Woods asked Kunsak for copies of the referrals, 

which she provided to him with the following July 20, 2013 written statement:

10

 

Deputy Woods: These are the copies of the referrals I 

received in regards to [] Williams. I did not from the 

information given determine that these evaluations were 

priority, as I believed this Inmate was in the infirmary. I 

did not see him for an assessment. I deeply regret that I did 

not, as I would have hope[d] I could have intervened 

effectively to assist him. As you are aware, I see most of 

the general population inmates with requests and referrals, 

 

10 Woods declared that he did not question Kunsak about the referrals at that time because 

he realized that fact-finding would be necessary to determine whether there was a potential 

disciplinary issue. See R.R. at 173a-174a.
9

as well as new commitments and parole violators. It is

necessary to prioritize when I am aware an inmate has 

pressing issues. I was totally unaware of the extent of []

Williams’ physical problems, the severity of his physical 

pain, and as a result, his state of mind. I will redouble my 

efforts to be of assistance to the officers of F Block and 

Medical when I am aware a critical situation exists, as well 

as the more routine requests of staff and Inmates.

R.R. at 325a. Woods further testified that, with the statement, Kunsak supplied DC97 forms.

11

 One DC-97 form was issued on June 10, 2013 by Sheila Angel in which 

she reported that “[Williams] is a [community corrections center (CCC)] return 

housed in Infirmary – had recent surgery. Reports he is feeling depressed. Affect –

Flat.” R.R. at 326a. Woods recalled that the other DC-97 form was a June 20, 2013 

referral made by Dr. Joseph Mollura regarding Williams’ “frustration.” R.R. at 327a. 

According to the relevant portion of the SCI-Pittsburgh psychology department’s 

mental health tracking form prepared by the Specialist and mental health coordinator 

George Findlay (Findlay), the referrals were assigned to Kunsak on June 13 and July 

2, respectively. See R.R. at 328a. 

Woods explained that he asked SCI-Pittsburgh’s Unit Manager Joseph 

Schott (Schott) to conduct a fact-finding related to Kunsak’s policy violation.

12

 

Schott testified that, as a part of his fact-finding, he took Kunsak’s statement on July

24, 2013, wherein Kunsak admitted that she was familiar with the Department’s 

policy of evaluating inmates no later than one week after referrals are received, and 

that she received the June 10 and June 20, 2013 referrals but did not assess Williams. 

See R.R. at 329a. Kunsak’s statement continued, in relevant part: 

5. Why did you not follow policy?

 

11 Although the Department initially claimed that Kunsak received three referrals for 

Williams, Woods acknowledged that there were two. See R.R. at 178a. 

12 At that time, Schott managed SCI-Pittsburgh’s general population therapeutic community 

housing units A2 and B2. His duties included overseeing behavioral treatment staff, but not the 

psychology department staff. 
10

With the amount of referrals that I had to process and the 

coverage I was providing for our department for the 

[m]onth of June, I prioritized the referrals by the urgency 

associated with them. I did not perceive urgency involved 

with the referral for [] Williams on either date.

6. Are you allowed to do this per policy?

No.

Do you have anything else to add?

Due to the workload and extraordinary circumstances at that 

time[,] I could not assess him.

R.R. at 329a (emphasis added); see also R.R. at 63a-67a. 

According to Woods, based upon Schott’s findings, SCI-Pittsburgh’s 

superintendent determined that a pre-disciplinary conference was necessary.

13

 The 

pre-disciplinary conference was held on August 30, 2013.14 Woods recounted that, at 

the pre-disciplinary conference, Kunsak again admitted that she received two 

referrals, but did not evaluate Williams within a week of either of them. Therefore, 

substantial evidence supports the Commission’s conclusion that Kunsak violated the 

Department’s policy. 

On appeal, Kunsak does not dispute these facts. Rather, Kunsak claims 

that removal was too harsh under these circumstances where SCI-Pittsburgh’s 

psychology department was understaffed, and the facts do not support that Williams’ 

referrals were a priority.15 

In support of Kunsak’s mitigation claims, she testified at the hearing that 

she was the only Specialist assigned to general population, which meant she was 

 

13 There were other disciplinary matters discussed at the pre-disciplinary conference;

however, they are unrelated to this appeal.

14 The conference panel consisted of Woods, SCI-Pittsburgh’s Major of the Guard Lee Estav 

and Field Human Resource Officer Anya Evans.

15 Under Section 803 of the Act, the Department “may for good cause suspend without pay 

for disciplinary purposes an employe holding a position in the classified service.” 71 P.S. § 

741.803. Thus, the Department had the discretion to suspend rather than discharge Kunsak.
11

responsible for approximately 200 to 300 inmates with mental health needs but who 

could function in general population. She related that, in addition, her other duties 

included conducting and documenting parole assessments, continuity of care plans 

for inmates in the state’s intermediate punishment program, transfers, new 

commitments, parole violators and crisis intervention.16 Kunsak agreed that 

completing referrals and doing them on time was extremely important. Kunsak also 

explained that she prioritized Williams’ first referral based upon the fact that he was 

in the infirmary’s care at the time.

Woods acknowledged that although Williams was “housed in the 

infirmary,” which is where Section 2.A.4.b of Policy No. 13.8.1 in the Department’s 

Procedures Manual requires that inmates with urgent circumstances be placed, R.R. at 

326a, that fact did not negate Kunsak’s duty to timely act on the first Williams’

referral. Woods articulated that a referred inmate could be in the infirmary for a 

medical reason and, “[i]f he’s in there for a medical reason and he’s having mental 

health issues as well, he needs to be followed up with by mental health.” R.R. at 

280a-281a. 

Woods further conceded that SCI-Pittsburgh is a very busy facility, and 

that although the psychology department usually consists of Specialists supervised by 

an LPM, SCI-Pittsburgh’s LPM retired in September 2012 and, despite two 

replacement searches, the position remained unfilled as of June/July 2013, requiring 

him to supervise the psychology department. He acknowledged that LPMs are 

 

16 According to Woods, each Specialist has a primary assignment and other duties, including 

parole assessments, sex offender program evaluations and crisis intervention. Woods estimated that 

there are approximately 1,850 inmates at SCI-Pittsburgh and, although he could not say what 

percentage of those inmates were in general population, he agreed that there are more inmates in 

general population than in the restricted housing unit, the special needs unit and the secure special 

needs unit. See R.R. at 217a. 
12

licensed psychologists, and he was not.17 In addition, Woods admitted that while an 

LPM would regularly have met with psychology staff, he did not. See R.R. at 184a. 

Woods explained that in the absence of an LPM, he was the individual to 

whom Specialists would raise workload concerns. Woods testified that he discussed 

workload issues with the psychology staff, including Kunsak, after Vujnovic retired 

in 2012 and again after Specialist Cindy Farrell retired in May or June 2013. He 

stated:

A. . . . [W]e offered overtime to the [Specialists].

Q. Because there was too much work and not enough 

employees - - - ?

A. At that point in time we were down a lot and yes.

R.R. at 225a. Woods acknowledged that there were ongoing discussions about SCIPittsburgh’s staffing issues after Vujnovic’s departure and following the issuance of 

the Department of Justice’s May 2013 report regarding understaffing and deficient 

mental health services provided at SCI-Cresson. He specified that after he met with 

the psychology staff and they reported what they needed to get their work done, he 

received authorization to give them overtime hours. 

Woods recalled Kunsak reporting to him for the first time at the August 

2013 pre-disciplinary conference that she was four to six months behind on her work. 

See R.R. at 179a. He maintained that, during the time he was Kunsak’s immediate 

supervisor, she did not report an inability to keep up with her referrals. Woods 

further stated that he was not aware of Kunsak having been disciplined prior to this 

incident. See R.R. at 273a.

 

17 Woods stated he occasionally borrowed an LPM from SCI-Greene to come in to review 

reports, assign Specialists work and evaluate the psychology department’s operation, but there had 

not been an LPM at SCI-Pittsburgh for some time.
13

Kunsak admitted that she informed Woods in an August 2013 meeting, 

that she was approximately four months behind on her work, but denied that was the 

first time. See R.R. at 297a. Notwithstanding, she provided no testimony regarding 

when, in the past, she may have expressed them. 

 “The Commission is the finder of fact and has exclusive authority to 

assess credibility and resolve evidentiary conflicts.” Szablowski v. State Civil Serv. 

Comm’n (Pa. Liquor Control Bd.), 111 A.3d 256, 261 (Pa. Cmwlth. 2015). Here, the 

Commission concluded:

We are not persuaded by [Kunsak’s] arguments, nor do they 

mitigate her responsibility to such an extent that a lesser 

penalty would be more appropriate. The fact is that 

[Kunsak] was assigned the referrals, never performed 

the required assessments, and was in clear violation of a 

policy that she was aware of, familiar with, and required 

to follow. [Kunsak’s] failure to comply with that policy is 

clearly related to her competency and ability to perform her 

duties as a [Specialist] and establishes just cause for 

removal.

Commission Adj. at 18 (emphasis added).

Section 952(c) of the Act authorizes the Commission to “modify or set 

aside the action of the appointing authority[ and, w]here appropriate, . . . order 

reinstatement, with the payment of so much of the salary or wages lost, including 

employe benefits, as the [C]ommission may in its discretion award.” 71 P.S. § 

741.952(c). However, this Court lacks similar authority to modify the Department’s 

employment action: 

The Court must observe that based on the nature and lack of 

severity of [the employee’s] infraction, the discipline he 

received, termination of employment, seems 

disproportionately harsh. While the Commission has the 

power to modify the action of the appointing authority even 

where the charges brought against the employee are proven, 

this Court will not separately weigh evidence or 

substitute its judgment for that of the Commission even 
14

though we may have reached different factual 

conclusions[.]

Thompson v. State Civil Serv. Comm’n, 863 A.2d 180, 185 (Pa. Cmwlth. 2004)

(citation omitted; emphasis added). 

One of Kunsak’s responsibilities was to timely act on inmate referrals 

for mental health evaluations. Kunsak knowingly violated the policy. If it were true 

that her workload in an understaffed environment made it impossible for her to 

comply with the policy, at the very least, she should have notified Woods. Instead, 

Kunsak designated Williams’ referrals a low priority, and she knowingly failed to 

fulfill her job responsibilities. Under the circumstances, we agree with the 

Commission that Kunsak’s failure to comply with the Department’s policy rendered 

her unfit as a Specialist and her dismissal was “justifiable and for the good of the 

service.”18 Perry, 38 A.2d at 951 (quoting Manson, 4 A.3d at 12). 

This Court has held that a single policy violation, even in the context of 

a long-standing, unblemished work record, may be just cause for removal.19 Perry

 

18 Kunsak relies upon Gibbs v. State Civil Service Commission, 281 A.2d 170 (Pa. Cmwlth. 

1971), to support her contention that her policy violations (i.e., failure to timely interview Williams) 

were insufficient just cause for her removal, particularly where there was evidence of supervisor 

inefficiency associated with staff levels (i.e., Woods was not knowledgeable of or trained regarding 

a Specialist’s duties and the necessary staffing) which resulted in an unreasonable workload. We 

acknowledge that the Gibbs Court held that there was not just cause for Gibbs’ removal where there 

was undisputed testimony that she was given an unreasonable workload and, thus, her removal was 

not the result of her unsatisfactory performance. However, Gibbs is inapposite here because there 

was substantial evidence that the staffing shortage was known and anticipated by Kunsak, and 

Kunsak’s policy violation was due to her failure to effectively prioritize one of her most crucial and 

time-sensitive duties, or to notify someone of her inability to timely carry them out. See Adamovich 

v. Dep’t of Pub. Welfare, 504 A.2d 952, 956 (Pa. Cmwlth. 1986) (Gibbs is not controlling where 

“substantial evidence exists to support the Commission’s determination that understaffing did not 

totally excuse [the employee’s] poor performance[.]”). 

19 Kunsak avers that the Commission’s adjudication in Jagota v. SCI-Graterford (SCSC 

Appeal No. 27518), wherein Jagota received a 5-day suspension for falsifying records and, thus, 

violating an inmate assessment policy, should control this case. However, this Court lacks the 

authority to “substitute its judgment for that of the Commission.” Thompson, 863 A.2d at 185.
15

(wherein this Court affirmed the removal of a Department of Labor and Industry 

manager for violating its policy prohibiting the possession of weapons in the 

workplace). Viewing the evidence, and all reasonable inferences arising therefrom in 

a light most favorable to the Department, as we must, we hold that the Commission’s 

findings are supported by the record, and those findings, in turn, support a conclusion 

that the Department proved just cause to remove Kunsak. Perry. Under the 

circumstances, we are constrained to affirm the Commission’s decision. 

Lastly, Kunsak avers that the Commission erred as a matter of law by 

failing to consider Kunsak’s performance reviews. We disagree. The Commission 

permitted testimony at the hearing regarding Kunsak’s August 2012 and August 2013

performance evaluations, and they were admitted into evidence.20 See R.R. at 262a, 

 

20 Woods testified that he reviewed and concurred with Vujnovic’s 2012 overall 

“satisfactory” rating of Kunsak’s performance. See R.R. at 266a, 268a. Therein, under “Work 

Results,” Vujnovic commented: “Dr. Kunsak has demonstrated considerable improvement since last 

review period in attending to time-sensitive reports.” R.R. at 398a. Under “Initiative/Problem 

Solving” is posted, in pertinent part: “Dr. Kunsak has developed procedures to ensure new 

commitments are assessed and needed referrals are made.” R.R. at 398a. That August 2012 

evaluation states that “Dr. Kunsak has managed duties and assignments in an acceptable manner 

during this review period.” R.R. at 400a. 

Woods explained that, in the absence of an LPM, he completed Kunsak’s August 2013 

performance review, and gave her an overall “needs improvement” rating in light of “some 

difficulties during this rating period.” R.R. at 405a. In Kunsak’s August 2013 evaluation, 

completed after her rule violation, Woods commented that she “needs to focus on getting the basic 

function of her job done, she has not been following up with referrals in a timely manner.” R.R. at 

403a. He further reported that Kunsak “usually communicates effectively enough to complete most 

of her assignments,” and that she “appears to be addressing existing problems as she sees them.” 

R.R. at 403a. However, he also noted that Kunsak “does not always carry through with solutions 

and often makes decisions independently that need to show more thought and need to ensure they 

follow policy and procedure.” R.R. at 403a. He further commented under “Work Habits,” in 

relevant part, that “[t]he volume of [Kunsak’s] work is not being completed in a timely manner.” 

R.R. at 404a. Under “Additional Rater Comments,” Woods stated: “[Kunsak] need[s] to complete 

all paperwork in a timely manner, this area will be re-evaluated in 90 days. This is especially 

important with the inmate referrals to psychology. Not only does she need to follow up[,] but her 

documentation . . . needs to be down [sic] correctly.” R.R. at 406a. At Kunsak’s request, Woods 

discussed her 2013 evaluation with her on August 26, 2013.
16

265a, 275a, 290a-314a, 397a-404a. In the Commission’s Adjudication, it specifically 

stated that it “reviewed the entire record.” Commission Adj. at 17. More 

specifically, the Commission recognized therein that “[Kunsak] testified about an 

annual employee performance review (hereinafter ‘EPR’) she received for the rating 

period of August 2012 to 2013[.]” Commission Adj. at 17. The Commission 

concluded:

With regard to the evidence presented concerning

[Kunsak’s] August 2012 to August 2013 annual EPR, we do 

not find this evaluation relevant to our determination. The 

EPR was issued after the fact-finding and [pre-disciplinary 

conference] had been conducted concerning incidents which 

occurred in June and July 2013. Any comments in the EPR, 

consequently, were made after the incidents resulting in 

removal had transpired, and are not probative of whether 

[Kunsak] had been warned prior to the incidents that she 

was behind in her workload and that she failed to heed that 

warning.

Commission Adj. at 18 n.6. Thus, it is clear that the Commission considered

Kunsak’s performance evaluations, but deemed the 2013 evaluation not probative of 

whether she violated the Department’s policy in June/July 2013.

Based upon the foregoing, we affirm the Commission’s Adjudication 

and Order.

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nancy E. Kunsak, :

Petitioner :

:

v. :

:

State Civil Service Commission :

(State Correctional Institute at :

Pittsburgh, Department of Corrections), : No. 746 C.D. 2015

Respondent :

O R D E R

AND NOW, this 5

th day of May, 2016, the State Civil Service 

Commission’s April 6, 2015 Adjudication and Order is affirmed.

___________________________

ANNE E. COVEY, Judge