IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jennifer Beuchat, : Petitioner :

: v. : No. 988 C.D. 2017
: Submitted: December 1, 2017 State Civil Service Commission : (Department of Corrections), : Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE BROBSON FILED: June 13, 2018

Jennifer Beuchat ( Beuchat ) petitions for review of an order of the State Civil Service Commission ( Civil Service Commission), which dismissed her appeal challenging her non

- selection for a promotion to Corrections Officer 4 with the
Penns ylvania Department of Corrections (Department). T he Civil Service
Commission denied Beuchat’ s appeal as untimely on the basis that it was not filed within 20 days of the date that Beuchat became aware of the challenged action. For
the reasons that follow, we affirm.

Beuchat served a s a corrections officer with the Department at the State
Correc tional Institution at Muncy (SCI

- Muncy). Beuchat applied for a promotion to the position of “Corrections Officer 4 ”

— a position Beuchat also refers to as2

“Cap tain” and “Shift Commander”

— but the Department notified her on April 11, 2017 that it did not select her

. The Apr il 11, 2017 notification of

non

- selection included the name of the successful candidate. On April 18, 2017, Beuchat spoke with the major at S CI

- Muncy with whom she interviewed for the position. According to Beuchat, t he major informed her that she was not selected
for reasons such as biting her fingernails and appearing apathetic during the
interview. (Petitioner ’s Br. at 2.) At that time, 1 3 days remained for Beuchat to file a timely appeal request for m with the Civil Service Commission. Instead, s he filed
her appeal request form on May 3, 2017.

By order dated June 21, 2017, the Civil Service Commission denied Beuchat’s appeal on the ground that she did not file her appeal request within 20 days
of the notification of the non

- promotion as required by the Civil Service Act (Act) 1
and reiterated by the Civil Service Commission rules

. 2 (Certified Record (C. R.), Item No. 2.) This appeal followed.

On appeal, 3 Beuchat argues that the Civil Service Commission erred by dismissing her appeal as untimely. She alleges that she filed the appeal request form
within 20 days of her discovering the discrimination. Mor e specifically, Beuchat

1 Act of August 5, 1941, P.L. 752, as amended , 71 P.S. §§ 741.1

- .1005.

2 Specifically, the Civil Service Commission cited Rule 105.12 (a)(3), which provides: (a) Requests for hearings shall be:

. . . (3) Received or postmarked not more than 20 calendar days after the employee receives notice of the challenged personnel action. 4 Pa. Code § 105.12(a)(3).

3 Our review of a decision of the Civil Service Commission i s limited to whether constitutional rights have been violated, whether errors of law have been committed , and whether the findings of the Commission are supported by substantial evidence. Woods v. State Civil Serv. Comm’n , 912 A.2d 803, 808 (Pa. 2006).3

contends that it was not until April 18, 2017, when she spoke with the major at
SCI

- Muncy , that she learned that she was not select ed for the promotion due to

non

- merit factors , and, th erefore , the 20

- day limit should have started t o run on that
date

. Beuchat further argues that 20 days is an unreasonable timeframe for a person
to determine that discrimination has occurred. Beuchat further contends that a person suspecting discrim ination would first need to acquire detailed information
about the successful candidate : “the other candidate’s test score, employee performance reports, prior discipline, overall service record (including time and attendance), prior discipline, resume or qualifications, and prior personnel actions (demotions, reinstatements, etc.).” (Petitioner ’s Br. at 1.)

As part of her timeliness argument , Beuchat contends that her

non

- promotion was due to discrimination, 4 which is prohibited by Se ction 905.1 of
the Act

. 5 Section 951(b) of the Act , however, p rovides :

4 Beuchat’s arguments appear to pertain to both the Apr il 11, 2017 notification of

non

- selection as well as comparisons to previously successful can didates for Corrections Officer 4. Beuchat posits that successful candidates for Corrections Officer 4 were l ess qualified than her because : (1) she had higher test scores; (2) she had more experience as Acting Shift Commander (temporarily having the responsibility of Corrections Officer 4); and (3) she had fewer incidents of discipline on her record. She provi des several reasons why she believes she was not selected for the promotion, despite her qualifications. She contends that the successful candidate w as selected over her because Beuchat had reported her supervisor for sexual ly inappropriate behavior with a coworker. Beuchat also contends that she was not selected because the misconduct report that she lodged against her supervisor earned her a reputation as a “whiny” employee, a personality trait , and Beuchat argues that the Act prohibits basing an employ ment decision on a candidate’s reputation for being “whiny.” (Petitioner ’s Br. at 5.) Beuchat argues that , aside from reporting sexual harassment and her reputation for being whiny, “all other factors were relatively equal.” ( Id. )

5 Added by the Act of Aug ust 27, 1963, P.L. 1257, 71 P.S. § 741.905a. Section 905.1 of the Act provides: No officer or employe of the Commonwealth shall discriminate against any person in recruitment, examination, appointment, training, promotion, retention or any4 Any person who is aggrieved by an alleged violation of Section 905.1 of this act [ , relating to prohibition of discrimination,] may appeal in writing to the commission within twenty calendar days of the alleged violation. Upon receipt of such not ice of appeal, the commission shall promptly schedule and hold a public hearing. Here, Beuchat appealed the decision of the Department on May 3, 2017, more
than 20 days after notification o f her non

- selection on April 11, 201 7. Thus, her appeal is untimel y under Section 951(b) of the Act.

That is not the end of the inquir y, however, as we determined in Butler
v. State Civil Service Commission , 426 A.2d 239 (Pa. Cmwlth. 1981), that the discovery rule may be applied to toll the 20

- day period for appeals und er the Act. In
Butler , the Department of Health denied three female nurses a promotion to an administrative position. Over a month after notification of the non

- selection, the
three female nurses learned the identity of the successful candidate for the promotion
and that he was the only male applicant . The Civil Service Commission dismissed the appeals as untimely because the female nurses filed their appeals of the decision
more than 20 days after the notification of non

- selection. This Court reversed and
instead held that the 20

- day limit was tolled until the date that the female nurses learned the identity of the successful applicant. We explained that an unsuccessful applicant must know the identity of the successful candidate before suspecting tha t the employer’s decision was not based on merit.

Therein lies the difference between the instan t case and Butler . Here,
the April 11, 2017 notification to Beuchat of her non

- selection included the name of the successful applicant. Beuchat acknowledged as much in her petition for review.

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.5

( See Pet. at ¶ 11.) Unlike the female nurses in Butler , who did not know the identity of the successful applicant, Beuchat possessed the requisite knowledge to suspect
that she w as the victim of discrimination ( if that was the case ). She knew the identity of the successful applicant as of April 11, 2017 , but she did not appeal to the Civil
Service Commission within 20 days as required by Section 951(b) of the Act

. Beuchat provides no authority to support the contention that she did not need to file her appeal until 20 days after acquiring a more detailed employment histor y of the
successful candidate.

The distinction between this case and Butler is bolstered by the reason for the alleged discrimination in each case. Here, Beuchat states that she reported alleged inappropriate behavior by her supervisor , and, as a result, she was reputed to be “whiny. ” Beuchat had knowledge of those circumstance s prior to the April 18, 2017 meeting with the major at SCI

- Muncy

. Thus, the April 18, 2017 meeting , wherein the major identified her demeanor during the interview as her
reason for non

- selection, did not provide the basis for Beuchat’s theory of
discrimi nation

. The facts in this case are in stark contrast to the inferred discriminatory grounds in Butler

— i.e. , discrimination based on the gender of the three female nurses. The female nurses had no reason to suspect they were not promoted due to their gend er until they discovered the identity of the successful applicant and that he was also the only male applicant , which occurred well after the deadline for an appeal

. 6 Beuchat, on the other hand, knew of her own reputation and her history of reporting her supervisor at the time of her non

- selection , well in

6 Beuchat was not required to prove her e ntire case within 20 days; rather, she was required to initiate her case within 20 days. The filing of an appeal request form serves to begin the process of contesting a promotion decision and is followed by a hearing for the purpose of obtaining informat ion on the alleged discrimination.6

advance of the appeal deadline

. Moreover, to the extent Beuchat argues that she was
not hired due to what Beuchat refers to as non

- merit factors or personality traits

— i.e. , her demeanor in the interview, specifically appearing apathetic and biti ng her
nails

— a candidate alleging that such consideration constitute d discrimination must do so within the allotted 20 days.

Accordingly, we affirm the decision of the Civil Service C ommission

.

P. KEVIN BROBSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jennifer Beuchat, : Petitioner :

: v. : No. 988 C.D. 2017
: State Civil Service Commission : (Department of Corrections), : Respondent :

O R D E R

AND NOW, thi s 13 th day of June , 2018 , the order of the State Civil Service Commission is hereby AFFIRMED.

P. KEVIN BROBSON, Judge