IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rachel L. Carr, :

Petitioner :

:

v. : No. 380 M.D. 2017

: Argued: May 8, 2018

Commonwealth of Pennsylvania, :

Department of Transportation and :

Commonwealth of Pennsylvania, :

State Civil Service Commission, :

Respondents :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY JUDGE BROBSON FILED: June 12, 2018

Before this Court is the petition for review (Petition) of Rachel L. Carr 

(Carr), which invokes this Court’s original and appellate jurisdictions, and an 

application for summary relief filed by the State Civil Service Commission 

(Commission). In our appellate jurisdiction, Carr petitions for review of an 

adjudication and order of the Commission (Adjudication), which dismissed her 

challenge of the Commonwealth of Pennsylvania, Department of Transportation’s 

(Department) termination of her employment. In our original jurisdiction, Carr 

alleges that the Department and Commission violated her constitutional rights when 

the Department terminated her employment and the Commission failed to issue the

Adjudication in a timely manner. In response, the Commission filed an application 

for summary relief. We now reverse the Adjudication and remand the matter to the 

Commission. We also grant the Commission’s application for summary relief as to 

the original jurisdiction claims and dismiss the Commission from this matter. 
2

Following a promotion, Carr began working as a Roadway Programs 

Technician I within the Department on March 5, 2016. (Reproduced Record (R.R.) 

at 3a, 73a-74a.) As part of this promotion, the Department imposed upon Carr 

a 180-day probationary period of employment. (Id. at 3a.) On May 24, 2016, while 

Carr was off-duty and at home, she used her personal Facebook account to post a 

“rant” in a Facebook group “Creeps of Peeps.” (Id. at 16a.) Carr, frustrated with 

the quality of school bus drivers in her area, posted the following:

Rant: can we acknowledge the horrible school bus 

drivers? I’m in PA almost on the NY boarder [sic] bear 

[sic] Erie and they are hella scary. Daily I get ran off the 

berm of our completely wide enough road and today one 

asked me to t-bone it. I end this rant saying I don’t give a 

flying shit about those babies and I will gladly smash into 

a school bus. 

(Id.) Over the course of approximately five hours following her original post, Carr 

responded to comments from members of the Facebook group. In one response, 

Carr asked another member of the group: “If you see a vehicle coming perpendicular 

[to] you with no turn signal on, do you pull out from your stop sign anyways? [Let 

me know] when you’re done [G]oogling perpendicular[.]” (Id. at 20a.) In another 

response, Carr stated: “Your children and your decision to chance them with a driver 

you’ve never been a passenger with is your problem. A vehicle pulls out in front of 

me or crosses the yellow line, that’s their problem. A sedan, school bus or water 

truck. You’re [sic] kids your problem. Not mine[.]” (Id. at 23a.) When one group 

member responded and suggested that Carr should be more concerned with the 

safety of the children, Carr reiterated that she cared about herself and her safety more 

so than the safety of the children. (Id. at 20a-22a.) Carr emphasized that she should 

not be forced to put herself at risk due to the unsafe driving of the school bus driver. 

(Id. at 21a.) 
3

Thereafter, members of the Facebook group sent screenshots of her 

interactions to the Department’s Facebook page, expressing concern with the content 

of Carr’s statements. (Id. at 17a-19a.) Carr’s Facebook profile identified the 

Department as her employer. (Id. at 14a.) The Department’s human resources office 

thereafter scheduled a pre-disciplinary conference with Carr for May 27, 2016. 

(Id. at 89a-90a.) 

At the pre-disciplinary conference, Carr admitted to posting the rant, 

but she asserted that her comments were taken out of context and that she was merely 

expressing her frustrations with the unsafe driving habits of local school bus drivers. 

(Id. at 26a.) Carr stated that she would not intentionally crash into a school bus, but 

that the poor driving of the school bus driver may necessitate her doing so to avoid 

injury to herself. (Id. at 27a.) Following the pre-disciplinary conference, the 

Department suspended Carr pending a further investigation. (Id. at 29a.) 

By letter dated June 14, 2016, the Department terminated Carr’s 

employment due to her inappropriate behavior. (Id. at 31a.) Carr filed an appeal 

with the Commission under Section 951(b) of the Civil Service Act1(Act). In so 

doing, Carr asserted that the Department discriminated against her in violation of 

Section 905.1 of the Act.

2 The Commission scheduled a hearing on the matter. 

(R.R. at 33a.) 

 

1 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).

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

the Act, relating to the 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

At the hearing, Carr presented her own testimony and that of Robert 

Chiappelli (Chiappelli), the Department’s Human Resources Officer. The 

Department presented the testimony of Anthony Reda (Reda), its Labor Relations 

Supervisor. 

Carr testified that during her new-employee orientation, Department 

representatives advised the new employees that off-duty conduct could negatively 

affect their employment, but Carr could not recall whether the discussion involved 

social media usage. (Id. at 128a-29a.) Carr testified that she never intended to crash 

into a school bus, and that her frustrations with the bus driver acted as the impetus 

for her Facebook post. (Id. at 120a, 122a-24a.) She asserted that her post did not 

affect her ability to perform her job. (Id. at 118a-19a.) She further asserted that she 

never thought her post would become such an ordeal, and she conceded that she 

could see how her post could concern members of the public. 

(Id. at 139a-40a, 142a.) Further, Carr also conceded that if she had the opportunity 

to do it all over again, she would not have posted the rant to Facebook. (Id. at 142a.) 

Chiappelli testified that he is responsible for discussing work rules and 

policies at new-employee orientations. (Id. at 81a.) Chiappelli testified that, as part 

of this discussion, he explains to all new employees that off-duty activities could 

have an adverse effect on their employment, especially if that activity has a nexus to 

the Department. (Id. at 82a-83a.) Chiappelli stated that one of the Department’s 

main goals is to ensure the safety of the traveling public, and Carr’s comments 

undercut that goal. (Id. at 63a.) Chiappelli agreed that Carr’s Facebook post likely 

had no effect on her ability to perform her job function, but he reiterated that her 

views were not in accord with those of the Department. 

(Id. at 53a, 56a, 63a, 97a-98a.) Further, Chiappelli added that the Department did 
5

not treat Carr any differently than other employees in a similar situation. 

(Id. at 98a-99a.) 

Reda concurred with Chiappelli that Carr’s behavior, not her 

performance, is what led to her removal. (Id. at 157a.) Regarding Carr’s Facebook 

post and its nexus to her employment with the Department, Reda testified that Carr’s 

rant “gave the Department a black eye” in the eyes of the public. (Id. at 156a.) 

Expounding on this premise, Reda added that if Carr acted on her threat of crashing 

into a school bus, the Department could be exposed to liability for her actions. (Id.) 

Reda further asserted that the Department did not treat Carr any differently than other 

similarly-situated employees. (Id. at 159a.) In support of this assertion, Reda 

provided examples of when the Department removed other employees for similar 

inappropriate behavior. (Id. at 160a-62a.) 

By Adjudication mailed on August 1, 2017, the Commission affirmed

the Department’s termination of Carr’s employment and dismissed Carr’s appeal. 

(Adjudication at 21.) In so doing, the Commission explained:

Upon review of the record, the Commission finds [Carr] 

has not presented sufficient evidence to support her claim 

of discrimination or a violation of her First Amendment 

free speech. [Carr] has not presented any evidence to 

establish she was treated differently than any other 

probationary employee who made disparaging remarks 

bringing disrepute to the [Department] and its mission. 

The Commission finds the testimony of Chiappelli and 

Reda credible that [Carr’s] Facebook remarks brought 

disrepute to the [Department] and raised issues of trust. 

(Id. at 20.) 

Carr then filed the instant Petition, invoking this Court’s original and 

appellate jurisdictions. Carr’s Petition contains three separate counts, all of which 

request relief in the form of this Court reversing the Adjudication and reinstating 
6

Carr with back pay. Count I of Carr’s Petition challenges the Adjudication in the 

Court’s appellate jurisdiction. Count II of the Petition sets forth a claim in the 

Court’s original jurisdiction against the Department, alleging that the Department 

violated Carr’s free speech rights under the First Amendment of the United States 

Constitution and Article I, Section 7 of the Pennsylvania Constitution.3 Count III of 

the Petition sets forth a due process claim in the Court’s original jurisdiction against 

the Commission, alleging that the Commission failed to provide Carr adequate due 

process, in violation of Article I, Section 11 of the Pennsylvania Constitution.4 

Additionally, Count III seeks declaratory and injunctive relief in the form of an order 

 

3 Article I, Section 7 of the Pennsylvania Constitution, relating to freedoms of speech and 

the press, provides:

The printing press shall be free to every person who may undertake to examine the 

proceedings of the Legislature or any branch of government, and no law shall ever 

be made to restrain the right thereof. The free communication of thoughts and 

opinions is one of the invaluable rights of man, and every citizen may freely speak, 

write and print on any subject, being responsible for the abuse of that liberty. No 

conviction shall be had in any prosecution for the publication of papers relating to 

the official conduct of officers or men in public capacity, or to any other matter 

proper for public investigation or information, where the fact that such publication 

was not maliciously or negligently made shall be established to the satisfaction of 

the jury; and in all indictments for libels the jury shall have the right to determine 

the law and the facts, under the direction of the court, as in other cases.

Pa. Const. art I, § 7.

4 Article I, Section 11 of the Pennsylvania Constitution, relating to open courts and suits 

against the Commonwealth, provides:

All courts shall be open; and every man for an injury done him in his lands, goods, 

person or reputation shall have remedy by due course of law, and right and justice 

administered without sale, denial or delay. Suits may be brought against the 

Commonwealth in such manner, in such courts and in such cases as the Legislature 

may by law direct.

Pa. Const. art I, § 11.
7

declaring that the Commission violated Carr’s due process rights and compelling the 

Commission to comply with governing procedures in issuing decisions. 

In response, the Commission filed an application for summary relief

seeking dismissal of Carr’s petition insofar as it attempts to set forth any original 

jurisdiction claims against the Commission.

5

 By order dated October 23, 2017, this 

Court directed the parties to address the Commission’s application for summary 

relief in their principal briefs on the merits,

6

and the Commission filed a brief 

addressing the original jurisdiction counts to the extent that they apply to the 

Commission.

7

 The Department did not file an application for summary relief, 

although it did file a brief addressing the merits of Carr’s appeal of the Adjudication. 

Similarly, Carr did not file an application for summary relief, although Carr filed a 

brief addressing the Commission’s application and the merits of the appeal. Before 

proceeding to the merits of the appeal, we will first evaluate the Commission’s 

application for summary relief. 

As previously mentioned, Count II of Carr’s Petition alleges that the 

Department violated Carr’s free speech rights under the First Amendment of the 

United States Constitution and Article I, Section 7 of the Pennsylvania Constitution. 

In its application for summary relief, the Commission correctly avers that Count II of 

 

5 An application for summary relief may be granted if a party’s right to judgment is clear 

and no material issues of fact are in dispute. Pa. R.A.P. 1532(b). When ruling on an application 

for summary relief, “we must view the evidence of record in the light most favorable to the 

non-moving party and enter judgment only if there is no genuine issue as to any material facts and 

the right to judgment is clear as a matter of law.” Cent. Dauphin Sch. Dist. v. Dep’t of Educ., 

598 A.2d 1364, 1366-67 (Pa. Cmwlth. 1991). 

6 When referencing the parties’ principal briefs on the merits, it appears that the Court 

intended to refer to the merits of the appeal. 

7 The Commission is not a party to the appellate jurisdiction portion of this matter.
8

the Petition alleges violations on behalf of the Department only and does not allege

any violation on behalf of the Commission, which Carr does not dispute. 

Count III of Carr’s Petition alleges that the Commission failed to 

provide Carr adequate due process in violation of Article I, Section 11 of the 

Pennsylvania Constitution. Specifically, Carr alleges that the Commission violated 

her due process rights by failing to report its findings from Carr’s appeal hearing 

within 90 days, as required by Section 952(a) of the Act.8 In support of her 

argument, Carr points out that the Commission held her appeal hearing on 

November 17, 2016, and did not report its findings until August 1, 2017—257 days

after the Commission’s hearing. Carr argues that this Court should read 

Section 952(a) as a mandatory provision, which would serve to invalidate any 

proceeding wherein the Commission fails to report its findings within 90 days. Carr 

argues that reading Section 952(a) as directory permits excessive delays in the 

Commission’s reporting of its findings, and such delays undercut the stated purpose 

of the Act.

9

 In response, the Commission argues that it did not violate Carr’s due 

process rights, as it avers that this Court has previously determined that the 90-day 

provision in Section 952(a) is directory, not mandatory. 

 

8 Added by the Act of June 26, 1989, P.L. 47, 71 P.S. § 741.952(a). Section 952(a) of the 

Act provides: “Within ninety days after the conclusion of the hearing described in 

[S]ection 951[ of the Act], the commission shall report its findings and conclusions to those parties 

directly involved in the action.” 

9 Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§ 741.1-.1005. Section 2 of the 

Act, 71 P.S. § 741.2, outlines the purpose of the Act and provides:

Greater efficiency and economy in the administration of the government of this 

Commonwealth is the primary purpose of this act. The establishment of conditions 

of service which will attract to the service of the Commonwealth qualified persons 

of character and ability and their appointment and promotion on the basis of merit 

and fitness are means to this end.
9

Whether the Commission’s failure to report its findings within 90 days 

invalidates the proceeding depends on whether Section 952(a) is mandatory or 

directory. See Fishkin v. Hi-Acres, Inc., 341 A.2d 95, 99 n.5 (Pa. 1975) (stating that 

distinction between mandatory and directory statutory provisions lies in effect of 

noncompliance upon transaction or proceeding involved). In West Penn Power 

Company v. Pennsylvania Public Utility Commission, 521 A.2d 75

(Pa. Cmwlth. 1987), we explained the difference between mandatory and directory 

statutory provisions as follows:

Whether a statute is mandatory or directory must be 

determined by considering legislative intent gleaned from 

review of the entire statute and from considering the nature 

and object of the statute and the consequences of the 

construction of it one way or the other. If the thing 

directed to be done is the essence of the thing required, the 

statute is mandatory. If, however, the statute merely 

directs that certain proceedings be done in a certain 

manner or at a certain time, it is directory. Failure to 

follow a mandatory statute renders the proceedings void, 

whereas failure to follow a directory statute does not. 

West Penn Power Co., 521 A.2d at 78 (internal citations omitted).

In Baker v. Department of Public Welfare, 588 A.2d 1337 (Pa. 

Cmwlth. 1991), this Court previously held that the 90-day provision in 

Section 952(a) of the Act is directory, not mandatory. In so holding, we opined:

This Court has previously held that statutes which seek to 

impose time limitations on adjudicating tribunals are 

directory only. Such an interpretation is not only logical 

but almost compelled because otherwise the parties would 

bear the consequences for the adjudicating body’s 

tardiness. In the context of this appeal this would amount 

to a “deemed decision” with complete disregard for the 

merit concept which forms the cornerstone of civil service 

law. For example, an employee who was removed for 

attacking a co-worker might need to be reinstated because 

the Commission’s adjudication was not timely rendered. 
10

And, from the other point of view, an employee denied a 

promotion because of racial or ethnic reasons would not 

be placed in the job because the Commission failed to act 

promptly. Such results would clearly be contrary to the 

Act’s purpose of rendering personnel decisions on the 

basis of merit criteria. Accordingly, we conclude that the 

ninety-day provision in Section 952(a) [of the Act] must 

be read as directory and thus the adjudication is not 

invalid.

Baker, 588 A.2d at 1340-41 (internal citations omitted). Accordingly, we reject 

Carr’s argument that the 90-day provision in Section 952(a) is mandatory.10

We now turn to Count I, which Carr filed in our appellate jurisdiction.

11

In Count I, Carr challenges the Commission’s adjudication and order affirming her 

removal. In so doing, Carr essentially argues that the Commission erred as a matter 

of law by concluding that her speech did not qualify as protected speech, and the 

Commission should have concluded that the Department violated Carr’s 

 

10 Despite this holding, the Court is nonetheless concerned with the extent of the 

Commission’s failure to adhere to the 90-day provision found in Section 952(a) of the Act. In 

promulgating this provision, the General Assembly specifically designated 90 days as its expressed 

legislative intent of the reasonable time for the Commission to report its findings. Although failure

to adhere to a directory provision does not invalidate the proceedings, it “does not mean that [the 

provision] is optional—to be ignored at will. Both mandatory and directory provisions of the 

legislature are meant to be followed.” Dep’t of Transp., Bureau of Driver Licensing v. Claypool, 

618 A.2d 1231, 1232 (Pa. Cmwlth. 1992). While the Act seeks to render personnel decisions 

based on merit criteria, using nearly three times the statutorily prescribed time in order to do so 

appears excessive. To that end, we note that Carr was not without a remedy. At any time after the 

expiration of the 90-day window, Carr could have filed an action in mandamus to compel the 

Commission to report its findings. As previously held by this Court, the purpose of “maximum 

delay provisions having no deemed approval provision is to form the basis for an action in 

mandamus to compel the performance of official duties.” Appeal of Crossley, 432 A.2d 263, 265 

(Pa. Cmwlth. 1981).

11 This Court’s standard of review is limited to determining whether constitutional rights 

were violated, whether an error of law was committed, or whether necessary findings of fact are 

supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.

C.S. § 704.
11

constitutional rights when it terminated her employment for engaging in protected 

speech.

12

 In response, the Department argues that the Commission correctly 

concluded that Carr’s Facebook posts were not protected speech. 

At the outset, we note Carr’s status as a probationary employee and its 

relevance, or lack thereof, to the issue currently before us. “It is well established 

that a probationary status civil service employee does not enjoy the job security 

afforded to regular status employees who may be removed only for just cause.” 

Pers. Dep’t, City of Phila., v. Hilliard, 548 A.2d 354, 356 (Pa. Cmwlth. 1988). 

Section 603(a) of the Act, 71 P.S. § 741.603, provides, in part, that “[a]t any time 

during the probationary period, the appointing authority may remove an employe if 

in the opinion of the appointing authority the probation indicates that such employe 

is unable or unwilling to perform the duties satisfactorily or that the employe’s 

dependability does not merit continuance in the service.” This, however, is not a 

situation where Carr lost her position due to her ability or dependability. Instead, 

this is a situation where the Department terminated an employee for non-merit based 

activity. Although probationary status civil service employees do not enjoy the same 

job security as regular status employees, they still enjoy the same constitutional 

rights as their regular status counterparts. Accordingly, Carr’s status as a 

probationary employee is of no consequence to the instant matter. 

 

12 Carr’s Petition also sought to challenge four factual findings in the Adjudication, set 

forth as statements, as being unsupported by record evidence. Carr’s brief provides no argument, 

however, supporting these challenges. Accordingly, these issues are waived. See Tyler v. 

Unemployment Comp. Bd. of Review, 591 A.2d 1164, 1167 (Pa. Cmwlth. 1991) (“When a claimant 

appeals an issue, but fails to address the issue in his brief, the issue is waived.”).
12

Whether Carr’s speech is constitutionally protected is a question of 

law.13 United States Supreme Court precedent has identified two inquiries to 

determine the constitutional protections accorded to public employee speech. The 

first requires determining whether the employee spoke as a citizen on a matter of 

public concern.14 Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (citing Pickering 

v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cty., Ill., 391 U.S. 563 (1968)). 

Speech implicates a matter of public concern “if the content, form, and context 

establish that the speech involves a matter of political, social, or other concern to the 

community.” Miller v. Clinton Cty., 544 F.3d 542, 548 (3d Cir. 2008) (citing 

Connick v. Myers, 461 U.S. 138, 140 (1983)). “In contrast, speech on matters of 

purely private concern is of less First Amendment concern,” because “[t]here is no 

threat to the free and robust debate of public issues; there is no potential interference 

with a meaningful dialogue of ideas concerning self-government; and there is no 

threat of liability causing a reaction of self-censorship by the press.” Dun & 

Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-60 (1985) (internal 

quotations omitted). When determining whether speech is of public concern, the 

speaker’s motive is important but not dispositive. Azzaro v. Cty. of Allegheny, 

110 F.3d 968, 978 (3d Cir. 1997).

 

13 Due to the lack of applicable jurisprudence from the courts of this Commonwealth, we 

will rely on federal jurisprudence for guidance in analyzing the issue of public concern. Although 

our Supreme Court has analyzed a similar issue in Sacks v. Department of Public Welfare, 

465 A.2d 981 (Pa. 1983), the focus of the inquiry did not involve whether the speech touched on 

a matter of public concern. Rather, Sacks focused on analyzing the issue of when a public 

employee may be punished for speaking on a matter of public concern. Sacks, 465 A.2d at 987. 

Sacks offers little in terms of guidance as to the threshold inquiry of whether speech addresses 

matters of public concern.

14 Here, it is undisputed that Carr spoke as a citizen and not as an employee. 
13

If the answer to the first inquiry—whether the speech implicates a 

matter of public concern—is in the negative, the inquiry ends there. Garcetti, 

547 U.S. at 418. Alternatively, if the answer is yes, the focus then shifts to the 

second inquiry, which asks “whether the relevant government entity had an adequate 

justification for treating the employee differently from any other member of the 

general public.” Id. A government entity is granted broader discretion to inhibit 

speech when acting as an employer, but the restrictions it imposes “must be directed 

at speech that has some potential to affect the entity’s operations.” Id. In resolving 

this inquiry, a court must balance the employee’s interest in engaging in free speech 

with the employer’s countervailing interests, including the employer’s prerogative 

of removing employees whose conduct impairs performance, concerns for the 

morale of the workplace, harmonious relationships among co-workers, and the 

regular operation of the workplace. Connick, 461 U.S. at 151. 

With the foregoing in mind, we first must determine whether Carr’s 

speech involved a matter of public concern. In asserting that her speech involved a 

matter of public concern, Carr argues that she commented on the “appropriateness 

and quality of local bus drivers, which is an important function of her local 

government.” (Carr’s Br. at 26.) In retort, the Department labels Carr’s speech as 

an expression of personal frustration with a specific bus driver, and it argues that 

such speech only addresses matters of private concerns.

Here, the Commission determined that Carr’s Facebook post did not 

touch on any matter of public concern. Further, the Commission noted that to 

whatever extent Carr’s speech implicated a public concern, the Department’s 

interests outweighed those of Carr. In so doing, the Adjudication provides:

Moreover, the Commission is at a complete loss to find 

any reasonable public interest in a rant about harming 
14

children or a bus driver. [Carr’s] remarks do not provide 

any educational information to the public or serve to 

inform them [sic] about any public matter. Furthermore, 

even if the Facebook rant contains an inkling of public 

interest, we find Chiappelli and Reda credible that [Carr] 

presented herself as a[] [Department] employee and her 

rant completely disregards the basic safety mission put 

forth in its mission statement. [Carr’s] Facebook rant 

caused disruption to the [Department’s] reputation and 

mission that outweighed [Carr’s] interest in her free 

speech. Thus, [Carr’s] Facebook rants do not constitute 

protected free speech.

(Adjudication at 19-20 (internal citations omitted).) 

After reviewing the entirety of the content, form, and context of Carr’s 

statements, we conclude that the Commission erred in determining that her 

statements did not address a matter of public concern. Although the sentiments 

within Carr’s posts relating to purposefully colliding with a school bus are 

reprehensible, her original post and subsequent responses show an attempt to discuss 

her frustrations toward the poor driving habits of an individual entrusted to safely 

transport schoolchildren. After posting her comment, Carr can do very little to 

control how people will react. Carr’s subsequent posts defending her position of 

crashing into a bus are largely a product of the Facebook group’s reaction to her 

original statement. Had the other members of this Facebook group agreed with Carr 

that school bus drivers are unsafe at times and proceeded to engage in a substantive 

discussion to that end, there would be little question that her speech touched on a 

matter of public concern. Instead, the Commission judged Carr on the public’s 

reaction to her post, as opposed to the substance of the speech itself.

Speech that is violent and seemingly provides little to the marketplace 

of ideas can still qualify as speech touching on a matter of public concern. In Rankin 

v. McPherson, 483 U.S. 378 (1987), a public employee, after hearing of an attempted 
15

assassination on then-President Ronald Reagan, remarked “if they go for him again, 

I hope they get him” to a co-worker. Another employee overheard this remark and 

informed management. The public employee was fired for this comment and 

subsequently brought suit alleging a violation of her First Amendment rights. In 

concluding that her speech touched on a matter of public concern, the Supreme Court 

opined:

Considering the statement in context, as Connick requires, 

discloses that it plainly dealt with a matter of public 

concern. The statement was made in the course of a 

conversation addressing the policies of the President’s 

administration. It came on the heels of a news bulletin 

regarding what is certainly a matter of heightened public 

attention: an attempt on the life of the President. While 

a statement that amounted to a threat to kill the President 

would not be protected by the First Amendment, the 

District Court concluded, and we agree, that [the 

employee’s] statement did not amount to a threat . . . . The 

inappropriate or controversial character of a statement is 

irrelevant to the question whether it deals with a matter of 

public concern. “[D]ebate on public issues should be 

uninhibited, robust, and wide-open, and . . . may well 

include vehement, caustic, and sometimes unpleasantly 

sharp attacks on government and public officials.” 

Rankin, 483 U.S. at 386-87 (emphasis added) (internal citations omitted).

Even more similar to the instant case is Grutzmacher v. Howard 

County, 851 F.3d 332 (4th Cir.), cert. denied, 138 S. Ct. 171 (2017). In 

Grutzmacher, a paramedic for a fire department engaged in a series of Facebook 

posts while watching news coverage of a gun control debate. One of the paramedic’s 

posts provided: “My aide had an outstanding idea . . . lets [sic] all kill someone with 

a liberal . . . then maybe we can get them outlawed too! Think of the satisfaction of 

beating a liberal to death with another liberal . . . its [sic] almost poetic . . . [.]” 

Grutzmacher, 851 F.3d at 338 (ellipses in original). The paramedic’s employer 
16

informed him that the post violated the employer’s social media policy, and the 

paramedic subsequently deleted the post. Thereafter, in another Facebook post, the 

paramedic vented about the policy and his forced compliance therewith, stating “[a]ll 

it took was one liberal to complain.” Id. at 339. The employer subsequently 

terminated the paramedic’s employment. On appeal, the Fourth Circuit concluded 

that the paramedic’s speech touched on a matter of public concern—gun control. 

Here, just as in Rankin and Grutzmacher, the speech in question 

involved a matter of public concern. The public concern in Rankin involved the 

attempted assassination of the President, and the public concern in Grutzmacher

involved gun control. Here, Carr’s speech touched on the safety of schoolchildren

and the traveling public. Although the manner in which Carr expressed her concerns 

is abhorrent, the controversial character of her statement is “irrelevant to whether it 

deals with a matter of public concern.” Rankin, 483 U.S. at 387. The Commission, 

in concluding Carr’s speech did not touch on matters of public concern, placed 

seemingly a singular focus on the caustic verbiage of Carr’s speech, as opposed to 

the safety issue encompassed therein. The Commission, therefore, erred in 

concluding that Carr’s speech did not touch on matters of public concern. 

As we have concluded that Carr’s speech touched on a matter of public 

concern, we now proceed to the second part of the analysis—balancing Carr’s 

interest in engaging in her free speech with the Department’s countervailing 

interests.15

As previously mentioned, if it is determined that the public employee’s 

speech touched on a matter of public concern, a court must then evaluate whether 

 

15 We note that although the Adjudication provides that the Department’s interests 

outweighed those of Carr, the Commission performed no analysis in coming to such a conclusion. 
17

the government employer “had an adequate justification for treating the employee 

differently from any other member of the general public.” Garcetti, 547 U.S. at 418. 

In so doing, a court must “balance the employee’s interest in engaging in free speech 

with the employer’s countervailing interests.” Id. The Supreme Court’s public 

employee First Amendment jurisprudence has provided a non-exclusive list of 

factors to which a court may refer in resolving this inquiry. In Sacks, our Supreme 

Court, citing to Pickering and Connick, identified the following factors:

1. Whether, because of the speech, the government 

agency is prevented from efficiently carrying out its 

responsibilities;

2. Whether the speech impairs the employee’s ability 

to carry out his own responsibilities;

3. Whether the speech interferes with essential and 

close working relationships;

4. The manner, time and place in which the speech 

occurs[;]

. . . . 

5. Whether the speaker was in a position in which the 

need for confidentiality was so great as to justify 

dismissal for even completely accurate public 

statements[;]

6. Whether narrowly drawn grievance procedures 

required submission of complaints about the 

operation of the agency to superiors for action prior 

to taking complaints to the public[; and]

7. Whether a statement that was knowingly or 

recklessly false, if it were neither shown nor could 

reasonably be presumed to have harmful effects, 

would still be protected by the First Amendment.

Sacks, 465 A.2d at 988-89 (internal citations omitted). Of these factors, it appears 

that only the first four are pertinent here. 
18

Regarding the first factor—whether the Department is prevented from 

efficiently carrying out its responsibilities because of the speech—the Department 

argues that Carr’s comments threatened to erode the public’s confidence in the 

Department. In support of this assertion, the Department relies on the Commission’s 

characterization of Carr as being “capable of violent behavior and . . . clearly putting 

the bus driver and any other nearby motorists at risk.”

16

 (Adjudication at 18.) Using 

this questionable characterization, the Department argues that Carr’s words equate 

to a reasonable prediction of disruption, which would prevent the Department from 

carrying out its goal of keeping the traveling public safe. This characterization and 

subsequent prediction, however, is a gross extrapolation of the content of Carr’s 

comments. Despite the incendiary verbiage Carr used, the main thrust of her remarks 

centered on the fact that a bus driver consistently engaged in dangerous driving 

habits, thus necessitating Carr to take evasive maneuvers in response. Carr’s 

comments served as a verbal manifestation of her frustrations in having to do so. 

Any resulting automobile accident would first be dependent on the

bus driver’s failure to drive his vehicle on the proper side of the road. 

(R.R. at 26a-27a, 120a, 122a.) In order for the Department to restrict speech that 

touches upon public concerns, it must direct the restriction at “speech that has some 

potential to affect the entity’s operations.” Garcetti, 547 U.S. at 418. A speculative 

 

16 The Department claims to have a reasonable belief that Carr is “capable of violent 

behavior” and that her comments “directly contradicted the Department’s mission of ensuring 

safety on public highways.” (Department’s Br. at 28.) We note that other than Carr’s Facebook 

posts in question, the Department offered no evidence that would establish Carr as a violent person 

or threat to public safety. If, however, the Department sincerely believed Carr posed a risk to the 

traveling public, one would think that the Department would have done more than merely 

terminate her employment. The record, however, does not reveal any other actions taken by the 

Department.
19

prediction based upon a mischaracterization of Carr’s comments, however, does not 

rise to the level of potentially affecting the Department’s operations. 

Looking to the second factor, we consider whether Carr’s speech 

impaired her ability to carry out her own responsibilities. At the hearing, both 

Chiappelli and Carr testified that Carr’s comments did not affect her ability to 

perform any of her core job functions. (R.R. at 60a-61a, 116a-17a.) Accordingly, 

this factor must weigh in favor of Carr’s interest in engaging in protected speech.

Similarly, the third pertinent factor—whether Carr’s speech interfered

with essential and close working relationships—also weighs in Carr’s favor. At the 

hearing, Carr testified that her comments produced no adverse effects with her 

working relationships. (Id. at 117a-18a.) Chiappelli testified to the same, stating 

that he was not aware of any strained work relationships because of Carr’s posts or 

subsequent removal. (Id. at 55a.) 

Finally, we analyze the time, place, and manner in which Carr’s speech

occurred. As mentioned, Carr’s original post and subsequent responses occurred on 

Facebook while she was off-duty and at home. The Department argues that Carr’s 

use of social media causes this factor to weigh heavily in favor of the Department 

due to the broad audience that her comments reached. Further, the Department 

points to the fact that the place and manner in which Carr made her speech caused 

three individuals to report her to the Department’s official Facebook page, which 

served to diminish the public’s perception of the Department. While we agree that 

the resulting complaints are concerning, we also note the audience to which Carr 

spoke. The Facebook group to which Carr posted her comments, “Creeps of Peeps,” 

is a group consisting of over 1,300 individuals from all over the world. (Id. at 133a.) 

At her pre-disciplinary conference, Carr intimated that she did not intend to post her 
20

comments to that group and expressed uncertainty as to how its members saw her 

post. (Id. at 27a.) If Carr sought to discuss her concerns about a local bus driver, 

logic would dictate that a forum with members spanning the globe might not be the 

most effective arena in which to address these concerns and conduct a meaningful 

discussion. As such, this factor weighs in favor of the Department, albeit slightly.

After a thorough review of the record and a conscientious analysis of 

the factors articulated by the United States Supreme Court, we conclude that the 

Department’s generalized interest in the safety of the traveling public does not 

outweigh Carr’s specific interest in commenting on the safety of a particular bus 

driver. While Carr’s comments are undoubtedly inappropriate, such comments still 

receive protection under the First Amendment. With the exception of a speculative 

prediction of future harm, the Department put forward no concrete evidence of 

tangible harm resulting from Carr’s speech. As our Supreme Court opined in Sacks:

There is a calculus of injury required in First Amendment 

government employee cases in which as the First 

Amendment interest in the speech rises, so does the 

government’s obligation to react with caution, disciplining 

an employee, if at all, only when injury to the agency is 

more than speculative.

Sacks, 465 A.2d at 988. Here, the Department has not shown that its concerns rise 

to anything more than speculative. 

Accordingly, we grant the Commission’s application for summary 

relief as to the original jurisdiction claims against it and dismiss the Commission 

from this matter. As to the appellate jurisdiction portion of this matter, we reverse 

the Commission’s Adjudication and remand the matter to the Commission with 

instruction that it reinstate Carr to her probationary status and that it exercise its 

discretion under Section 952 of the Act with regard to payment of salary or lost 
21

wages.17 Count II of the Petition, which purports to assert a claim against the 

Department in this Court’s original jurisdiction, remains pending before this Court.18 

P. KEVIN BROBSON, Judge

 

17 Section 952 of the Act, pertaining to remedies, provides, in part: 

(b) Where such decision is in favor of the employe or the aggrieved person, 

the commission shall make such order as it deems appropriate to assure such rights 

as are accorded the individual under this act.

(c) In the case of any employe removed, furloughed, suspended, or demoted, 

the commission may modify or set aside the action of the appointing authority. 

Where appropriate, the commission may order reinstatement, with the payment of 

so much of the salary or wages lost, including employe benefits, as the commission 

may in its discretion award. 

18 The Court hopes that this matter will serve as a cautionary tale to public and private 

sector employees regarding the pitfalls of social media. A discussion on social media is not 

transient. Indeed, although a user may delete a social media post from her personal page, modern 

technology can propel the post into a state of abject permanence on the Internet. Even when 

posting to the Internet anonymously, a user’s identity is far from exempt from subsequent

discovery and disclosure. See Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 461-62 

(3d Cir. 2015). Private employers exercise wide latitude in terminating employees for their social 

media posts. Fortunately for Carr, her employer’s ability to react is constrained by rights afforded 

her under the United States and Pennsylvania Constitutions. Regardless, individuals should 

exercise great caution in posting to social media and always assume that social media posts can be 

viewed by the public, including current or future employers.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rachel L. Carr, :

Petitioner :

:

v. : No. 380 M.D. 2017

:

Commonwealth of Pennsylvania, :

Department of Transportation and :

Commonwealth of Pennsylvania, :

State Civil Service Commission, :

Respondents :

O R D E R

AND NOW, this 12th day of June, 2018, it is hereby ordered that the

application for summary relief filed by the State Civil Service Commission 

(Commission) as to the original jurisdiction claims against it is GRANTED, and the 

Commission is DISMISSED from this matter. It is further ordered that the 

Commission’s adjudication and order is REVERSED, and the appellate jurisdiction 

portion of this matter is REMANDED to the Commission with instruction that the 

Commission reinstate Rachel L. Carr (Carr) to her probationary status and that the 

Commission exercise its discretion under Section 952 of the Civil Service Act, Act

of August 5, 1941, P.L. 752, added by the Act of June 26, 1989, P.L. 47, 71 P.S. 

§ 741.952, with regard to payment of salary or lost wages. Count II of Carr’s petition 

for review, which purports to assert a claim against the Commonwealth of 

Pennsylvania, Department of Transportation in the Court’s original jurisdiction, 

remains pending before this Court. 
Jurisdiction relinquished with regard to the appellate portion of this 

matter. 

P. KEVIN BROBSON, Judge