IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Angela M. Allen, :
Petitioner :
:
v. : No. 839 C.D. 2022
: Submitted: May 12, 2023
State Correctional Institution at :
Somerset, Department of :
Corrections (State Civil Service :
Commission), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: November 14, 2023
Angela M. Allen (Petitioner) has filed a petition for review, challenging
the adjudication of the State Civil Service Commission (the Commission), which
upheld her removal from probationary employment as a Corrections Officer Trainee
(COT) with the State Correctional Institution at Somerset (SCI-Somerset).
Petitioner contends that her removal was motivated by retaliation and/or disparate
treatment. After careful review, we affirm.
I. BACKGROUND1
Petitioner was employed as a COT on October 5, 2020, at SCI-
Somerset. As a condition of employment, all COTs are required to abide by the
appointing authority’s policies. These policies include an employee’s responsibility
1
We base the statement of facts on the Adjudication of the State Civil Service Commission,
which is supported by the record. See Adjudication, 6/27/22, at 1-26.
to secure keys to her person and not in pockets, desks, or purses. Further, an
employee must provide an immediate verbal report to a shift commander upon losing
any keys, key cards, or key rings, and provide a written report at the end of the shift.
Petitioner’s academy training was interrupted from November 2020 through January
2021, and she began to experience issues with staff in March 2021.
On March 5, 2021, Petitioner participated in an administrative
interview regarding allegations of sexual harassment in the workplace initiated by a
fellow COT, Kristy Lambert.2 Petitioner was questioned by superior officers and, at
the conclusion of the interview, made a written statement.
On March 15, 2021, Petitioner was advised that she needed to maintain
appropriate control of her equipment after leaving her utility belt, complete with
pepper spray and handcuffs, in a bathroom accessible by prisoners. On April 8,
2021, Petitioner was relieved from duty on a housing unit after she failed to follow
orders and violated post orders; additionally, she left her utility belt unattended in a
yard bathroom for a second time. On April 26, 2021, Petitioner lost her key chit and
did not immediately report the loss as required by Department of Corrections
(Department) policy.3 On May 5, 2021, Petitioner lost her personal vehicle keys at
the prison’s metal detector for four hours. On May 13, 2021, Petitioner finally filed
the DC-121 report for the chit she had lost seventeen days earlier. The chit was
recovered on May 17, 2021.
On May 25, 2021, Petitioner received a written reprimand for the
incidents that occurred on April 8, 2021. Petitioner received a pre-disciplinary
2
These allegations did not implicate Petitioner; she merely participated as a witness.
3
On May 11, 2021, Petitioner received a “fact-finding meeting” regarding the loss of the
chit and failure to follow procedure and report it lost by filing a DC-121 report. She filed her
report two days after the meeting.
2
conference (PDC) notice and participated in the PDC on July 1, 2021. At the PDC,
Petitioner testified in her own defense and presented the testimony of former COT
Kristy Lambert,4 Correctional Food Service Instructor Tiffany Thompson, and
Corrections Officer 2 Eric Huber. The Department presented the testimony of
Corrections Officer 3 Robert Munion. Petitioner claimed that she had experienced
retaliatory and disparate treatment from supervisors and coworkers following her
participation in the administrative interview held on March 5, 2021. In response,
Officer Munion testified to Petitioner’s failures to follow security protocols despite
repeated warnings and that he was unaware of Petitioner’s participation in the
administrative interview.
Following the PDC, on July 15, 2021, Petitioner was dismissed from
employment. The Department cited, as reasons for her removal: (1) failure to report
a lost key chit; (2) failure to report that she was missing her personal vehicle keys
for several hours; (3) admission to keeping keys in her pockets; (4) failure to pay
close attention to all information presented by the training staff; (5) failure to execute
each duty on her posts faithfully and conscientiously, (6) failure to strive to improve
identified areas of performance deficiency, and (7) failure to observe and follow
Department policies, procedures, and local procedures.
Petitioner filed a petition for reinstatement and appealed her dismissal
to the Commission. On June 27, 2022, the Commission issued its final decision,
dismissing Petitioner’s appeal and concluding that Petitioner did not establish a
prima facie case of disparate treatment or retaliation, and even if she had established
a prima facie case, the Department had provided legitimate, non-discriminatory
4
Lambert resigned on May 11, 2021.
3
reasons for her removal. See Adjudication, 6/27/22, at 23-26. Petitioner timely
petitioned this Court for review.
II. ISSUES
Petitioner raises two issues for review. First, she contends that the
Commission erred when it denied her petition for reinstatement, because prison
officials had retaliated against her for participating in an Equal Employment
Opportunity (EEO) investigation involving a colleague’s sexual harassment/assault
case. See Pet’r’s Br. at 4, 8-9. Second, Petitioner contends that there was substantial
evidence in the record supporting her claim that her discharge was based upon
discriminatory intent and disparate treatment.5 See id. at 4, 8.
5
Initially, we note the deficiencies of Petitioner’s brief. Pa.R.A.P. 2119 requires that “[t]he
argument shall be divided into as many parts as there are questions to be argued; and shall have at
the head of each part-in distinctive type or in type distinctively displayed-the particular point
treated therein, followed by such discussion and citation of authorities as are deemed pertinent.”
Pa.R.A.P. 2119(a). Although Petitioner lists two questions to be argued, she presents her argument
under a single heading, and does not meaningfully address her claim regarding disparate treatment,
nor provide any legal authority supporting it. See Pet’r’s Br. at 9-12. Further, in her argument
regarding retaliation, she discusses extensively a Ninth Circuit hostile work environment matter,
and a case from this Court concerning an unemployment matter where sexual harassment provided
a necessitous and compelling cause for the claimant to quit her job, both of which are irrelevant to
the matter at hand. See Pet’r’s Br. at 9-10 (citing Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006);
Comitalo v. Unemployment Comp. Bd. of Rev., 737 A.2d 342, 343 (Pa. Cmwlth. 1999)).
While this Court construes pro se filings liberally, Petitioner has the benefit of counsel and,
regardless, it is not this Court’s function to develop a party’s arguments. C.M. v. Pa. State Police,
269 A.3d 1280, 1285 (Pa. Cmwlth. 2022). Accordingly, Petitioner risks waiver due to the severe
deficiencies of her brief. However, as we may make sense of the general claims Petitioner attempts
to raise on appeal, we decline to find waiver in this instance.
4
III. DISCUSSION6
The statute commonly known as the Civil Service Reform Act prohibits
discrimination by officers or employees of the Commonwealth against any
individual in “recruitment, examination, appointment, training, promotion,
retention, or any other personnel action” with respect to “the classified service
because of race, gender, religion, disability or political, partisan or labor union
affiliation or other non-merit factors.” See 71 Pa.C.S. § 2704. Traditional
discrimination, as asserted in this instance, encompasses claims of discrimination
based on various non-merit factors. See Price v. Luzerne/Wyoming Cntys. Area
Agency on Aging, 672 A.2d 409, 411 n.4 (Pa. Cmwlth. 1996).
A. Retaliation
Petitioner first argues that her petition for reinstatement should have
been granted because she provided supporting evidence that correctional officers
had acted in a retaliatory manner against her. See Pet’r’s Br. at 9. Petitioner
contends that this harassment was the reason she lost her keys and chit and that this
would not have happened if the harassment was not taking place. See id. at 10-11.
Further, Petitioner contends that she has “after-discovered evidence” in her case,
which proves that witnesses were untruthful about the circumstances surrounding
her lost keys and that several supervisory officers and administrators wanted
Petitioner terminated. See id. at 12. Finally, she contends that the statements of
6
“The standard of review involving agency adjudications is limited to a determination of
whether constitutional rights have been violated, errors of law have been committed, or whether
the findings of the agency are supported by substantial evidence.” Pennsylvania Dep’t of Corr. v.
State Civ. Serv. Comm’n (Clapper), 842 A.2d 526, 531 n.7 (Pa. Cmwlth. 2004) (citation omitted).
“Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate
to support the conclusion.” Civil Service Commission v. Poles, 573 A.2d 1169, 1172 (Pa. Cmwlth.
1990).
5
Officers Matthew J. Foster and Washabaugh7 were not made available to her at the
first proceeding. See id.
The Department responds that Petitioner’s retaliation claim is without
merit. See Dep’t’s Br. at 8-9. According to the Department, Petitioner cannot
establish a prima facie case of retaliation because she cannot prove a causal
connection between her participation in the administrative interview and her
subsequent dismissal. See id. The Department avers that the Commission correctly
found the temporal proximity between these events too attenuated and that Petitioner
did not provide sufficient evidence to otherwise establish causation. See id. at 9-10.
Further, the Department asserts that Petitioner was dismissed for legitimate, non-
discriminatory, merit-based reasons. See id. at 10.
A petitioner may establish a prima facie case of retaliation by proving
the following: 1) she engaged in a protected activity; 2) the appointing authority was
aware of the protected activity; 3) that subsequent to participation in the protected
activity, she was subjected to an adverse employment action by the appointing
authority; and 4) that there is a causal connection between participation in the
protected activity and the adverse employment action. Robert Wholey Co. v. Pa.
Hum. Rels. Comm’n, 606 A.2d 982, 983 (Pa. Cmwlth. 1992). Further, “[w]hen
participation in a protected activity and the occurrence of an adverse employment
action occurs within close proximity in time, causation is inferred.” See id. at 984
(citation omitted).
“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
7
Officer Washabaugh’s first name does not appear of record.
6
that the proffered reasons were pretextual.” Spanish Council of York, Inc. v. Pa.
Hum. Rels. Comm’n, 879 A.2d 391, 397 (Pa. Cmwlth. 2005).
Instantly, there is no dispute that Petitioner was engaged in a protected
activity when she participated in the administrative interview; that the appointing
authority was aware of the protected activity; and that she subsequently suffered an
adverse employment action, namely, her dismissal, approximately four months later.
However, the Commission determined that the temporal proximity between her
interview and her dismissal was “too distant in time to infer causation.”
Adjudication at 23. The Commission therefore concluded that Petitioner had not
established a prima facie case of retaliation. Id.
Petitioner has not challenged the Commission’s determination
regarding temporal proximity on appeal. See generally Pet’r’s Br. Further, the
Department’s analysis is cursory. See Dep’t’s Br. at 9 (“[A]s the [Commission] . . .
correctly found, the temporal proximity between these two events [is] too distant in
time in order for the fourth prong, causation, to be inferred.”). On this record, and
in light of the paucity of arguments addressing the Commission’s determination, we
decline to affirm the Commission on this ground.8 See C.M. v. Pa. State Police, 269
A.3d 1280, 1285 (Pa. Cmwlth. 2022) (“[A]ppellate courts are neither obliged, nor
even particularly equipped, to develop an argument for a party. To do so places the
Court in the conflicting roles of advocate and neutral arbiter.”) (cleaned up).
Nevertheless, assuming Petitioner established a prima facie case, the
Department provided legitimate, non-discriminatory reasons for her removal,
supported by substantial evidence of record. The Commission’s adjudication
8
This Court has previously determined that a three-month period between a protected
activity and an adverse employment action is sufficiently close in time to infer a causal connection.
See Robert Wholey Co., 606 A.2d at 984.
7
summarizes in extensive detail Petitioner’s history of misconduct and failure to
secure her equipment, her supervisory officers’ attempts to inform her of her
responsibility to secure said equipment, and her continued failure to adhere to her
responsibilities as a COT. See Adjudication at 23-25; see also Notes of Testimony
(N.T.) 116, 177, 180, 196-98, 201-16, 221, 225-28. Petitioner provided no evidence
that these proffered reasons were pretextual.9 See Spanish Council of York, Inc., 879
A.2d at 397. Accordingly, Petitioner has not proven that her removal from the COT
program was motivated by a retaliatory purpose. See id.; Robert Wholey Co, 606
A.2d at 983.
9
To the extent that Petitioner argues that this Court should consider “after-discovered
evidence” and has attached several written statements dated from May 2021 by staff, we reject her
contention that they should be considered. We review the denial of a request to present after-
discovered evidence for an abuse of discretion. Pawk v. Dep’t of Env’t Res., 395 A.2d 692 (Pa.
Cmwlth. 1978). “It is long settled that a petition to re-open judgment . . . on the basis of after-
discovered evidence, will only be granted where that evidence: (1) is new; (2) could not have been
obtained at trial in the exercise of due diligence; (3) is relevant and non-cumulative; (4) is not for
the purposes of impeachment; (5) and must be likely to compel a different result.” In re Cook, 527
A.2d 1115, 1116 (Pa. Cmwlth. 1987) (emphasis added).
Petitioner does not provide any information or argument regarding the witness statements
beyond boilerplate assertions of the five factors listed above. The statements are not new, and
Petitioner does not provide reasons they could not be ascertained with due diligence. She claims
that two correctional officers “lied about what transpired when [Petitioner] could not find her keys”
but does not further elaborate on either the lies or, indeed, what happened when Petitioner could
not find her keys, Pet’r’s Br. at 12, nor does it appear that Petitioner ever petitioned the
Commission to re-open the judgment and consider these statements.
An appellate court is limited to considering only facts that have been duly certified in the
record on appeal and, for purposes of appellate review, that which is not part of the certified record
does not exist. City of Pittsburgh Comm’n on Hum. Rels. v. DeFelice, 782 A.2d 586, 593 n.10
(Pa. Cmwlth. 2001). Documents attached to a brief as an appendix or reproduced record may not
be considered by an appellate court when they are not part of the certified record. Stabler Dev.
Co. v. Bd. of Supervisors of Lower Mt. Bethel Twp., 695 A.2d 882, 887 n.5 (Pa. Cmwlth. 1997).
Accordingly, we decline to consider the statements attached to Petitioner’s brief and reproduced
record.
8
B. Disparate Treatment
Petitioner contends that she provided evidence that correctional officers
acted in a discriminatory manner towards her. See Pet’r’s Br. at 4, 9. In her brief to
this Court, Petitioner offers no specific argument or evidence to support this
contention. See generally id. at 11 (baldly suggesting that she was disciplined for
conduct that others were not). Nevertheless, at the PDC, Petitioner described
incidents that she believed resulted in disparate treatment of others. See, e.g., N.T.
at 95-101 (testifying that other COTs, including Lambert, were not disciplined for
permitting inmates on the grass and that other COTs, like Lambert and Brown,10
were not disciplined for lacking a key chit).
The Department responds that this claim is without merit, focusing on
Petitioner’s comparison between Petitioner and Lambert. See Dep’t’s Br. at 14-15.
According to the Department, Petitioner was not removed simply for losing her key
chit, but for a string of misconducts where she continually lost or misplaced her
equipment in dangerous areas. See id. Further, the Department asserts that
Petitioner and Lambert were not similarly situated. See id. (suggesting that
Petitioner lost her key chit and failed to properly document its loss, whereas Lambert
never received her key chit; thus no documentation was required).
To establish a prima facie case that her termination resulted from
disparate treatment, a petitioner must establish that she was treated differently than
a similarly situated coworker. State Corr. Inst. at Graterford, Dep’t of Corr. v.
Morse, 596 A.2d 897, 899 n.4 (Pa. Cmwlth. 1991); see also Dep’t of Health v.
Ngwogwugwu, 594 A.2d 847, 851 (Pa. Cmwlth. 1991).
10
COT Brown’s first name does not appear of record.
9
Instantly, the Commission credited testimony from Lambert, Huber,
and Munion that differentiated the circumstances of Lambert’s misplaced key chit
from those of Petitioner. See Adjudication at 24-25. Thus, the Commission
concluded that Petitioner was not similarly situated to Lambert. Id. Further, the
Commission noted that Petitioner was not disciplined for permitting inmates on the
grass. See id. at 25.
The evidence supports the Commission’s conclusion. While Petitioner
lost a key chit in her possession for multiple days, Lambert’s key chit was misplaced
by the Security Control Center. See, e.g., N.T. at 172-81 (testimony from Huber),
205-10 (testimony from Munion). Further, there is no evidence or testimony that
Petitioner was disciplined or terminated for permitting inmates on the grass. See
generally N.T. Therefore, Petitioner did not establish a prima facie case of disparate
treatment. Morse, 596 A.2d at 899 n.4; Ngwogwugwu, 594 A.2d at 851.
IV. CONCLUSION
For the foregoing reasons, Petitioner did not prove retaliation or that
her dismissal was due to discriminatory reasons. We therefore affirm the
adjudication of the State Civil Service Commission, dismissing Petitioner’s petition
for reinstatement.
LORI A. DUMAS, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Angela M. Allen, :
Petitioner :
:
v. : No. 839 C.D. 2022
:
State Correctional Institution at :
Somerset, Department of :
Corrections (State Civil Service :
Commission), :
Respondent :
ORDER
AND NOW, this 14th day of November, 2023, the order of the State
Civil Service Commission, dated June 27, 2022, is hereby AFFIRMED.
LORI A. DUMAS, Judge