IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Luis G. Rosa, :
Petitioner :
:
v. :
:
State Civil Service Commission, : No. 111 C.D. 2021
Respondent : Submitted: June 3, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: December 5, 2022
Luis G. Rosa (Rosa) petitions for review of the January 25, 2021 order
of the State Civil Service Commission (Commission) denying his request for a
hearing on the basis that his appeal request form contained insufficient allegations
of discrimination. Upon review, we affirm.
I. Background
In December 2017, while serving as Director of Reentry and Quality
Assurance with the Pennsylvania Parole Board (Board), Rosa attended sexual
harassment training provided for employees of the Board and the Pennsylvania
Department of Corrections (Department). See Appeal Request Form at 3,
Reproduced Record (R.R.) at 4a. Rosa alleged that John Wetzel, Secretary of the
Department (Secretary Wetzel), authorized the use of “vile and inappropriate”
examples of sexual assault in the prison setting, causing certain employees to leave
the training. Id. Rosa subsequently confronted Secretary Wetzel at a meeting
regarding the assertedly inappropriate training. Id.
In February 2018, Rosa was promoted to the position of Deputy
Secretary for Reentry. Appeal Request Form at 3, R.R. at 4a. Rosa was
subsequently terminated, learning of his discharge on April 25, 2018 by means of
correspondence signed by Ty Stanton, Public Safety Human Relations Manager.1
Id. at 4, R.R. at 5a.
In December 2018, Rosa submitted an application for a parole hearing
officer position with the Board. Id. at 4, R.R. at 5a. In June 2019, Rosa received
notice of the Board’s decision not to fill the posted position. See id. at 4, R.R. at 5a.
In August 2019, Rosa applied for two additional positions with the
Board.2 Id. In November 2019, the Board informed Rosa of its intention not to fill
the two positions. Id.
Rosa also unsuccessfully applied for a parole hearing officer position
in October 2020. Id. at 3, R.R. at 4a. Rosa alleged that he received near perfect
1
Confusingly, despite alleging that he was promoted to the position of Deputy Secretary
for Reentry in February 2018, Rosa stated that he worked “most recently” as Director of Reentry
and Quality Assurance for the Board until March 29, 2018, prior to his April 2018 termination.
See Appeal Request Form at 3, R.R. at 4a. However, Rosa listed the position of Regional
Institutional Parole Director in Part I(G) of the appeal request form, titled ‘What is/was your latest
civil service job title?’. Id. at 1, R.R. at 2a. Rosa also avers in his appellate brief that he was
terminated by Secretary Wetzel, thereby suggesting that the Department was his most recent
employer. See Rosa’s Br. at 9.
2
These positions were presumably also parole hearing officer positions. See Appeal
Request Form at 4, R.R. at 5a.
2
scores on all relevant examinations in connection with his applications. See id. at 4,
R.R. at 5a.
On November 30, 2020, Rosa learned that four positions had been
posted, internally only, for employees of the Board and the Department. Appeal
Request Form at 4, R.R. at 5a. Rosa’s appeal request form provided the position
numbers utilized in the posting but did not otherwise describe the nature of these
positions, nor did it otherwise explain their relevance to Rosa’s claim. See id. at 3,
R.R. at 4a.
On December 10, 2020, Rosa submitted the appeal request form with
the Commission. See id. at 1, R.R. at 2a. Rosa alleged racial discrimination,
retaliation, disparate treatment and a “[v]iolation of Act 71 of 2018 (Civil Service
Reform)3 or Rules.”4 Id. Rosa checked boxes indicating that the challenged
personnel actions involved “eligibility,” “list removal,” and “reinstatement,” and
requested remedies of reinstatement, lost wages and benefits, and “repeat hiring
process.” Id. at 1-2, R.R. at 2a-3a.
Rosa alleged that the following four individuals discriminated against
him: Theodore Johnson, Chairman of the Board (Chairman Johnson); Secretary
3
Act of June 28, 2018, P.L. 460, No. 71, § 1 (Act 71), 71 Pa.C.S. §§ 2101-3304.
4
In alleging a violation of Act 71 or the Commission’s Rules, Rosa likely intended to assert
a claim of technical discrimination. This Court has explained technical discrimination as follows:
Technical discrimination involves a violation of procedures required
pursuant to [Act 71] or related Rules. In order to obtain relief, an
employee must show that he was, in fact, harmed because of the
technical non-compliance with [Act 71] or evidence that because of
the peculiar nature of the procedural impropriety he could have been
harmed but there is no way to prove that for certain.
Reck v. State Civ. Serv. Comm’n, 992 A.2d 977, 980 (Pa. Cmwlth. 2010) (citation omitted).
3
Wetzel; James Barnacle, Director of Investigations and Intelligence for the
Department; and Ty Stanton, for whom Rosa did not specify the agency or other
Commonwealth entity served. See Appeal Request Form at 3, R.R. at 4a. Rosa
asserted that although Chairman Johnson informed him that “OA”5 had not
submitted his name for “some” of the civil service positions, he nevertheless
discovered that his name had been submitted. Id. at 3, R.R. at 4a. Further, Rosa
maintained that even though Chairman Johnson stated that certain of these positions
were not filled, at least two candidates were in fact hired. Id. Rosa also alleged that
Secretary Wetzel’s stated reason for his termination, i.e., pursuing a “change in
leadership,” was pretextual, and that his removal was in fact motivated by
discrimination on the basis of race and national origin, as well as retaliation for his
complaints regarding the 2017 sexual harassment training. Id. at 4, R.R. at 5a.
Rosa maintained that despite informing him it was not filling two of the
parole hearing officer positions for which he had applied, the Board had in fact hired
two parole hearing officers in March and April of 2019. Appeal Request Form at 4,
R.R. at 5a. According to Rosa, this decision followed shortly after a March 2019
meeting at which Chairman Johnson requested from Mr. Barnacle a privileged and
confidential “internal file” pertaining to Rosa without first obtaining authorization
from Rosa, the Office of Administration, the Commission, or legal counsel for either
the Board or the Department. Id. Rosa also alleged that Mr. Barnacle shared “a
verbal statement on his thoughts/beliefs [regarding] Rosa with [] Chairman
Johnson.” Id. Further, Rosa asserted that the March 2019 meeting took place
without the requisite pre-authorization. Id. Rosa also alleged that following the
5
Rosa presumably refers to Pennsylvania’s Office of Administration. See Appeal Request
Form at 3, R.R. at 4a.
4
March 2019 meeting, he was treated as an “outside” hire rather than an “internal”
hire, even though the Office of Administration had previously prioritized the
reinstatement of former employees. Id. Rosa contended that his “opportunity was
tainted once a negative reference was provided,” and that “[t]his defamation was
intentional, discriminatory, and retaliatory.” Id. at 4, R.R. at 5a.
Further, Rosa asserted that the Board’s decision in 2020 to restrict the
four job postings to “internal” applicants constituted “another attempt [by the Board]
to go around the system and deny [him] a fair opportunity to gain Commonwealth
employment” in retaliation for confronting Secretary Wetzel regarding the allegedly
inappropriate sexual harassment training. Appeal Request Form at 3, R.R. at 4a.
Thus, Rosa maintained that the Board “thwarted [his] efforts to seek employment”
by “act[ing] in concert with the [Department] to attempt to retaliate and deny [him]
Commonwealth employment after his [April 2018] termination,” even though he had
been informed that reinstatement was possible as long as he was qualified for the
position he sought. Id. at 4, R.R. at 5a.
By order dated January 20, 2021, and mailed on January 25, 2021, the
Commission declined to grant Rosa a hearing on the basis that he failed to aver acts
which, if proven, would constitute discrimination. Commission Order, 1/25/21, R.R.
at 14a. Rosa petitioned this Court for review.6
6
Our scope of review is limited to determining whether constitutional rights have been
violated, an error of law has been committed, or necessary findings of fact are unsupported by
substantial evidence. Williams v. Civ. Serv. Comm’n, 811 A.2d 1090, 1092 n.1 (Pa. Cmwlth.
2002); see also Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
5
II. Issues
Before this Court, Rosa argues that the Commission erred in denying
his request for a hearing, because the allegations of discrimination set forth in his
appeal request form were sufficiently specific. See Rosa’s Br. at 10-12. Rosa
contends that he “alleged various forms of discrimination including, inter alia,
retaliation and violations of civil service rules when he applied for multiple open
[p]arole [h]earing [o]fficer positions with the [Board] but [] was not even
interviewed for the openings despite the fact he had scored excellently on the
[Commission’s] tests[.]” Id. at 9. Further, Rosa asserts Secretary Wetzel’s statement
that Rosa was terminated in the interest of pursuing a change in leadership was
merely pretextual, and he was in fact dismissed in retaliation for complaining about
the allegedly inappropriate sexual harassment training authorized by Secretary
Wetzel.7 Id. at 10. Rosa also maintains that his termination was motivated by racial
discrimination. Id. at 9-10. Moreover, Rosa contends that representatives of the
Board and the Department shared privileged and confidential information pertaining
to him without first obtaining his consent, in violation of Management Directive
505.18.8 Id. at 10. Rosa contends that his “quite lengthy averments and explanations
7
Although Rosa alleges that Secretary Wetzel influenced his termination, we note that
Rosa was employed by the Board at the time of his termination. See Appeal Request Form at 3-4,
R.R. at 4a-5a.
8
Presumably, Rosa is referencing Management Directive 505.18 of the Pennsylvania
Governor’s Office, available at https://www.oa.pa.gov/Policies/md/Documents/505_18.pdf (last
visited Dec. 2, 2022).
6
as to the basis for his [] appeal . . . more than sufficiently alleged acts of
discrimination (specifically retaliation).” Id. at 11.9
III. Discussion
Pursuant to Section 105.12(a) of the Commission’s Rules,
“[r]equests for hearings shall be . . . [r]eceived 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). A person alleging discrimination under Act 7110 “shall
appeal within 20 calendar days of the alleged discrimination.”11 Id. Rosa filed his
appeal request form with the Commission on December 10, 2020. See Appeal
Request Form at 1, R.R. at 2a. Thus, Rosa’s appeal is timely only with respect to
9
Rosa also asserted in his petition for review that the Commission violated his due process
rights by failing to advise him of his ability to amend his appeal request form. See Pet. for Rev. at
2, ¶ 5. However, Rosa waived this argument by failing to include it in his appellate brief. See
Dubaskas v. Pa. Dep’t of Corr., 81 A.3d 167, 171 n.6 (Pa. Cmwlth. 2013) (noting that petitioner’s
failure to brief assertion raised in petition for review resulted in waiver); see also Van Duser v.
Unemployment Comp. Bd. of Rev., 642 A.2d 544, 548 n.3 (Pa. Cmwlth. 1994) (stating that
“[i]ssues not briefed are waived”).
10
We note that Section 105.12(a) of the Commission’s rules has not been updated and still
cites the former Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, formerly 71 P.S.
§§ 741.1-741.1005, rather than the current Act 71.
11
Although Section 105.12(a) of the Commission’s Rules states that a person alleging
discrimination “shall appeal within 20 calendar days of the alleged discrimination,” as opposed to
20 days after the person “receives notice” of the alleged discrimination, this Court has observed
that an appeal to the Commission is timely where it is received or postmarked within 20 days of
the date of the discovery of the allegedly discriminatory personnel action. See Seddon v. Pa.
Liquor Control Bd., 609 A.2d 619, 621 (Pa. Cmwlth. 1992) (citing 4 Pa. Code § 105.12(a)(3)
(stating that petitioners had “twenty days from the date of discovering that their non-selections for
promotion were allegedly discriminatory to appeal to the Commission”)).
7
his claim of retaliation premised on the restriction of four job postings to “internal”
applicants, as Rosa alleged that he received notice of the “internal” posting on
November 30, 2020. However, this claim is waived due to omission from Rosa’s
appellate brief. See Pa.R.A.P. 2119(a) (stating that the argument section of the brief
shall be divided into as many parts as there are questions to be argued, followed by
such discussion and citation of authorities as are deemed pertinent); see also
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating, “where an
appellate brief fails to provide any discussion of a claim with citation to relevant
authority or fails to develop the issue in any other meaningful fashion capable of
review, that claim is waived”); Rapid Pallet v. Unemployment Comp. Bd. of Rev.,
707 A.2d 636, 638 (Pa. Cmwlth. 1998) (“Arguments not properly developed in a
brief will be deemed waived by this Court.”).12
Moreover, even if there were no waiver, we observe that Rosa failed to
state a claim of retaliation. Section 105.12 of the Commission’s Rules further
provides:
(b) The person appealing shall state clearly and concisely
the:
(1) Grounds of the interest of the person in the subject
matter.
12
Further, we question whether the allegedly retaliatory “internal” job postings constitute
a “personnel action” for purposes of Section 105.12(a)(3) of the Commission’s Rules, 4 Pa. Code
§ 105.12(a)(3). See, e.g., Tempero v. Pa. Dep’t of Env’t Res., 403 A.2d 226, 228 (Pa. Cmwlth.
1979) (noting that “loss of supervisory authority, without more, is not a personnel action” for
purposes of a discrimination claim by a civil service employee); O’Peil v. Pa. State Civ. Serv.
Comm’n, 332 A.2d 879, 881 (Pa. Cmwlth. 1975) (“The adoption of or change in a compensation
plan does not constitute a personnel action.”). “Where there is no personnel action cognizable
under [applicable civil service law], there can be no discrimination over which the Commission
has jurisdiction. Not every occurrence is a personnel action.” Aurand v. State Civ. Serv. Comm’n
(Dep’t of Env’t Prot.), 768 A.2d 353, 356 (Pa. Cmwlth. 2000) (quoting Behm v. State Civ. Serv.
Comm’n, 494 A.2d 1166, 1168 (Pa. Cmwlth. 1985)).
8
(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.
(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(b), (c). “The Commission may dismiss, sua sponte, an appeal
for what is, in effect, a failure to state a cause of action for discrimination under
[Section 2704 of Act 71, 71 Pa.C.S. § 2704].” Craig v. State Civ. Serv. Comm’n
(Dep’t of Env’t Prot.), 800 A.2d 364, 365 (Pa. Cmwlth. 2002). This Court has
explained further:
The burden of prosecuting such an appeal [(i.e., an appeal
based on discrimination)] rests with the employee. The
underlying factual basis of the claimed discrimination
must be enumerated specifically. Discrimination cannot
be inferred; there must be affirmative factual support to
sustain the allegations. . . . [This Court] must determine
whether [an a]ppellant’s appeal[] state[s] sufficient facts
to establish a claim.
Keim v. Dep’t of Health, 543 A.2d 1261, 1264 (Pa. Cmwlth. 1988) (citations
omitted) (citing Section 105.12(c) of the Commission’s Rules, 4 Pa. Code §
105.12(c)); see also Pa. Game Comm’n v. State Civil Serv. Comm’n (Pa. Cmwlth.,
No. 2308 C.D. 2007, filed May 7, 2008), slip op. at 5-6 (holding that where a civil
service employee alleges discrimination in the form of retaliation, “the employee
9
bears the initial burden to show that the employer has acted in a discriminatory
manner”). Thus, assuming Rosa had not waived his claim, the question sub judice
would be whether he stated facts sufficient to establish a discrimination claim on the
basis that restricting the 2020 job postings to “internal” applicants constituted
retaliation.
Act 71 does not provide for a separate statutory claim of retaliation,
independent of a discrimination claim under Section 2704, 71 Pa.C.S. § 2704.
Rather, proving retaliation is one mode of establishing that an appointing authority
engaged in discrimination by basing a personnel action on “nonmerit factors.” See
id.; see also Beaver Cnty. v. Funk, 492 A.2d 118, 121 & 121 n.7 (Pa. Cmwlth. 1985)
(explaining that evidence regarding the financial state of the county at the time the
employer furloughed a probationary status caseworker, coupled with testimony as
to a witness’s belief that the furlough was imposed in retaliation for the bargaining
unit’s refusal to accept a wage freeze, satisfied a caseworker’s burden of establishing
that the furlough was based on nonmerit factors and thus was discriminatory under
Section 905.1 of the former Civil Service Act, 71 P.S. § 741.905(a)).
A complainant may establish a prima facie case of retaliation by
demonstrating:
(1) that the complainant engaged in a protected activity;
(2) that [the e]mployer was aware of the protected activity;
(3) that subsequent to participation of the protected
activity [the] complainant was subjected to an adverse
action by [the e]mployer; and
(4) that there is a causal connection between participation
of the protected activity and the adverse employment
action.
10
Robert Wholey Co. v. Pa. Hum. Rels. Comm’n, 606 A.2d 982, 983 (Pa. Cmwlth.
1992). “Once the complainant makes this initial case, the burden then shifts to the
employer to articulate some legitimate, non-discriminatory motive for its action. If
the employer does so, the complainant is then given the opportunity to demonstrate
that the proffered reasons were pretextual.” Spanish Council of York, Incorp. v. Pa.
Hum. Rels. Comm’n, 879 A.2d 391, 397 (Pa. Cmwlth. 2005).13
Here, Rosa failed to plead a causal connection between his complaint
regarding the allegedly inappropriate sexual harassment training and the alleged
adverse employment action (restricting certain job postings to “internal” applicants
following his termination). Although Rosa does not specify when he allegedly
confronted Secretary Wetzel regarding the training, presumably he did so sometime
between the December 2017 training and his termination in the spring of 2018. See
Appeal Request Form at 4, R.R. at 5a. Rosa averred that he learned of the
purportedly retaliatory “internal” job postings on November 30, 2020. See id. This
delay of roughly three years does not support an inference of causation, and Rosa
failed to allege any other facts evidencing the requisite causal connection. Cf. Circle
Bolt & Nut Co., Inc. v. Pa. Hum. Rel. Comm’n, 954 A.2d 1265, 1269 (Pa. Cmwlth.
2008) (determining that complainant established prima facie case of retaliation,
13
This Court has previously applied cases involving discrimination claims brought under
the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S.
§§ 951-963, to decide discrimination claims brought by current or former civil service employees.
See Pa. Game Comm’n, slip op. at 9-10 (applying the four-prong test articulated in Robert Wholey
Co. v. Pa. Hum. Rels. Comm’n, 606 A.2d 982, 983 (Pa. Cmwlth. 1992) (reasoning that “[b]ecause
of the similarity in subject matter, the analysis from a Human Relations Commission case provides
valued guidance” regarding a claim of discrimination in the form of retaliation under the former
Civil Service Act); cf. Henderson v. Pa. Off. of the Budget, 560 A.2d 859, 863 (Pa. Cmwlth. 1989)
(adopting for the resolution of traditional discrimination claims brought under the former Civil
Service Act the standard applied by the Pennsylvania Supreme Court to decide such claims under
the Pennsylvania Human Relations Act) (citing Allegheny Housing Rehab. Corp. v. Pa. Hum. Rel.
Comm’n, 532 A.2d 315 (Pa. 1987)).
11
where employer transferred complainant less than 24 hours following her criticism
of a co-worker’s sexually offensive conduct and terminated her several weeks later);
Robert Wholey Co., 606 A.2d at 984 (holding that complainant established prima
facie case of retaliation where employer issued suspension within three months of
the withdrawal of complainant’s initial complaint, reasoning that “[w]hen
participation in a protected activity and the occurrence of an adverse employment
action occur within close proximity in time, causation is inferred”).14
For the foregoing reasons, we affirm.
_________________________________
CHRISTINE FIZZANO CANNON, Judge
14
We note that Rosa’s appeal request form reflects that he was promoted to the position of
Deputy Secretary for Reentry after complaining to Secretary Wetzel regarding the allegedly
inappropriate sexual harassment training. See Appeal Request Form at 3, R.R. at 4a. Assuming
his is correct, Rosa’s promotion further undercuts any causal connection between his complaint
and the alleged retaliation.
Moreover, we observe that Rosa failed to establish that he “was subjected to an adverse
action by [the e]mployer” when certain job postings were restricted to “internal” applicants
following his termination, because neither the Board nor the Department was his employer at that
time. See Robert Wholey Co., 606 A.2d at 983.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Luis G. Rosa, :
Petitioner :
:
v. :
:
State Civil Service Commission, : No. 111 C.D. 2021
Respondent :
ORDER
AND NOW, this 5th day of December, 2022, the January 25, 2021
order of the State Civil Service Commission is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge