Opinion
No. 137 C.D. 2013
08-27-2013
Housing Authority of the County of Butler, Petitioner v. State Civil Service Commission (Huber-Brown), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
The Housing Authority of the County of Butler (Authority) petitions for review of the order of the State Civil Service Commission (Commission) sustaining the appeal of Jennifer Huber-Brown; and directing the Authority to amend its records to remove the five-day suspension and to reimburse Huber-Brown for such wages and emoluments as she would have received during the suspension pursuant to Section 952(c) of the State Civil Service Act (Act). We affirm.
Act of August 5, 1971, P.L. 752, added by the Act of June 26, 1989, P.L. 47, as amended, 71 P.S. §741.952(c). Section 952(c) states, in pertinent part:
(c) In the case of any employe ... suspended, ... 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.
Because Huber-Brown did not testify before the Commission or offer other evidence, the facts are not in dispute. Huber-Brown is employed full-time by the Authority as a Therapeutic Activities Aide and her normal work hours are 8:30 a.m. to 4:30 p.m. Her primary job duties are working with families that receive a notice of foreclosure; assisting them with obtaining credit counseling; and supporting them in negotiating loan modifications with lenders. Kevin Boozel (Boozel) is the Authority's Resident Initiative Director and is Huber-Brown's supervisor. Perry O'Malley (O'Malley) is the Authority's Executive Director.
In February 2011, Huber-Brown was given a raise based on her excellent performance. However, in September 2011, Huber-Brown was counseled regarding her failure to timely report for work and work performance and received a list of corrective actions. In November 2011, Huber-Brown reported to Boozel that she was receiving vulgar cell phone calls from an unknown caller. She told Boozel that her husband was extremely upset by the phone calls and that they were working with the State Police on the matter.
On December 2, 2011, the Authority had an in-house staff meeting scheduled for 9:00 a.m. in the conference room next to Boozel's office. The Authority usually has employees on assigned duty bring in snacks for staff meetings and Huber-Brown was bringing in chili. At 8:35 a.m., Huber-Brown called Boozel and told him that she needed to stop to buy some additional items for the meeting and he told her that she was already late for work and needed to get in to work now and she hung up. When Huber-Brown came into Boozel's office after she arrived at 8:45 a.m., she was upset and yelling, stating "motherf*cker," that she was "tired of this sh*t," and that she was "stressed out." (Reproduced Record (R.R.) at 53a.) Boozel stated that because he was the only person there, he assumed that her statements were directed at him. Boozel closed the door and told her to sit down and to calm down. After they discussed the harassing phone calls, she said that maybe she should just quit, and he told her that that was a very personal decision that she would have to make. She stated that she was thankful for being able to talk to him, but that it was a very disheartening time for her. While she planned on going to the staff meeting, Boozel felt that she needed time to compose herself so he gave her the option of going home if she needed to do so. She took a personal day and left the office and he wrote a statement documenting what happened. He testified that he met with O'Malley and Karen Grabbe-Listisen (Grabbe-Listisen), the Authority's Human Resources Manager, and that O'Malley ultimately decided to issue Huber-Brown the five-day suspension that day.
Boozel verbally reported the incident to O'Malley and completed a written account of the incident with Grabbe-Listisen. After reviewing the written report and discussing the matter with Boozel and Grabbe-Listisen, O'Malley sent Huber-Brown notice that she was suspended for five days based on the items identified in the attached Employee Disciplinary Notice. While the Employee Disciplinary Notice listed as violations attendance, chronic lateness or early quit, unsatisfactory work performance, insubordination and failure to follow instructions, the notice stated that the date of the incident underlying the disciplinary action was December 2, 2011, at 8:50 a.m. Huber-Brown appealed the five-day suspension to the Commission.
The Commission initially found that the Authority's Employee Disciplinary Notice stated that the five charges underlying Huber-Brown's suspension were based on an incident that occurred on December 2, 2011, at 8:50 a.m. and limited its inquiry to Huber-Brown's conduct on that date in determining whether or not the Authority established the charges and had good cause for the suspension.
The Commission also noted that the primary charge against Huber-Brown was insubordination which the Authority's Employee Handbook defines as "[o]pen defiance to a supervisor, including refusal to perform work or follow directives." (See R.R. at 226a.) Based on that definition, the Commission found that Huber-Brown was not insubordinate because she did not refuse to perform work or follow a directive on that date because she came to work when instructed to do so by Boozel. With respect to Huber-Brown's "open defiance," the Commission found that her profanity was not directed at Boozel and, while inappropriate, it was merely "venting" and an "outburst" that did not rise to the level of insubordination, and that she used a personal day to leave the office after Boozel had expressly authorized her to do so.
Specifically, the Commission stated the following, in pertinent part:
[C]oncerning [Huber-Brown]'s profanity, when asked to whom it was aimed, Boozel testified that he "assumed it was toward" him because he was the only person present. [(R.R. at 53a.)] We do not believe that the record supports this assumption. When Boozel was asked on direct examination whether [Huber-Brown] indicated what, in particular, she was "tired of" and was causing her to be "stressed out," he testified that [she] indicated it was due to receiving additional harassing phone calls—something [she] had previously advised Boozel of, and which resulted in [her] contacting the police for assistance. There is no dispute that [she] was very upset and emotional during this incident. But we do not believe her comments and initial profanity were directed at Boozel. [Our conclusion is supported by Boozel's own written statement concerning the incident submitted by [the A]uthority in support of its case. [(Id. at 50a-51a; 194a.)] The statement indicates that [she] "stormed into [Boozel's] office," and that she "[was] physically upset, crying, used profanity, and very physically animated." [(Id. at 194a.)] This supports a conclusion that [she] had an outburst, but not that Boozel was the target of the outburst or profanity]....(Commission Adjudication at 18-19.)
Finally, the Commission determined that the Authority did not present evidence establishing that Huber-Brown's conduct on December 2, 2011, substantiates the charges of attendance or chronic lateness or early quit. The Commission noted that she called Boozel at 8:35 a.m. to report that she was picking up additional items at the store for the staff meeting in accordance with her assigned work duty, and that she arrived at work ten minutes later after Boozel had instructed her to come to work. Moreover, the Commission found that because she eventually took an entire day of personal leave, any 15-minute tardiness at the start of the workday does not constitute a lateness or attendance infraction meriting a five-day suspension. The Commission also found that the Authority did not present any evidence regarding "unsatisfactory work quality" during her excused absence. Accordingly, the Commission concluded that the Authority failed to present evidence establishing good cause for Huber-Brown's five-day suspension under Section 803 of the Act and issued the instant order overruling the suspension and directing her reinstatement with back pay. The Authority then filed this appeal.,
71 P.S. §741.803. Section 803 states, in pertinent part:
An appointing authority may for good cause suspend without pay for disciplinary purposes an employe holding a position in the classified service.... What shall constitute good cause for suspension may be stated in the rules. An appointing authority shall forthwith report to the director in writing every suspension, together with the reason or reasons therefor, and shall send a copy of such report to the suspended employe....In turn, Section 101.21(a) of the Rules of the Civil Service Commission define "good cause" as: (1) insubordination; (2) habitual lateness in reporting for work; (3) misconduct amounting to violation of law, rule or lawful and reasonable Departmental orders; (4) intoxication while on duty; (5) conduct either on or off duty which may bring the service of the Commonwealth into disrepute; and (6) similar substantial reasons. 4 Pa. Code §101.21(a).
Our standard of review of a Commission adjudication is limited to determining whether Commission findings are supported by substantial evidence; whether errors of law have been committed; and whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Pennsylvania Game Commission v. State Civil Service Commission (Toth), 561 Pa. 19, 26, 747 A.2d 887, 890-91 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Bowman v. Department of Environmental Resources, 549 Pa. 65, 68 n.4, 700 A.2d 427, 428 n.4 (1997).
Huber-Brown was precluded from filing an appellate brief by order dated June 27, 2013.
The Authority argues that the Commission erred in overruling its disciplinary action because the evidence shows that it had good cause to suspend Huber-Brown because her use of profanity constitutes insubordination and she was habitually late for work. The Authority also claims that the Commission's finding that the profanity was not directed at Boozel is not supported by substantial evidence and the Commission erred in determining that the Employee Disciplinary Notice limited consideration of Huber-Brown's actions to the incident that occurred on December 2, 2011, at 8:50 a.m. More specifically, the Authority argues that "[b]ecause Huber-Brown's habitual lateness, unsatisfactory work quality, and failure to follow instructions was properly identified in the notice letter, the Commission should have accepted the evidence of record presented through testimony and documentary evidence by the [Authority]...." (Brief for Appellant at 17.)
Where an employee alleges the appointing authority lacked good cause for suspension, the Commission hearings are governed by Section 951(a) of the Act and Section 105.15 of the Rules of the Civil Service Commission. Chittister v. State Civil Service Commission (Department of Community and Economic Development), 789 A.2d 814, 817-18 (Pa. Cmwlth. 2002). The burden of proving a prima facie case of good cause is upon the appointing authority. Section 105.15(a) of the Rules of the Civil Service Commission; Hargrove v. State Civil Service Commission (Department of Corrections), 851 A.2d 257, 260 (Pa. Cmwlth. 2004). Good cause has been interpreted as merit-related and touching upon the employee's competency and ability to do the job in some rational and logical manner. Id.
Added by the Act of August 27,1963, P.L. 1257, as amended, 71 P.S. §741.951(a). Section 951(a) provides that any regular employee in the classified service who has been suspended for cause may appeal in writing to the Commission within 20 calendar days of receipt of notice of the action from the appointing authority. Id.
Section 105.15(a) states:
(a) The appointing authority shall go forward to establish the charge or charges on which the personnel action was based. If, at the conclusion of its presentation, the appointing authority has, in the opinion of the Commission, established a prima facie case, the employee shall then be afforded the opportunity of presenting his case.4 Pa. Code §105.15(a).
In addition, questions of credibility and the weight to be accorded evidence are determined by the Commission, and this Court will not re-weigh the evidence or substitute its judgment even though it might have reached a different factual conclusion. Thompson v. State Civil Service Commission (Beaver County Area Agency on Aging), 863 A.2d 180, 184 (Pa. Cmwlth. 2004), appeal denied, 583 Pa. 685, 877 A.2d 463 (2005). Thus, this Court must accept the Commission's findings if they are supported by substantial evidence. Daily v. State Civil Service Commission (Northampton County Area Agency on Aging), 30 A.3d 1235, 1239-40 (Pa. Cmwlth. 2011), appeal denied, ___ Pa. ___, 48 A.3d 1250 (2012). As fact finder, the Commission is free to reject uncontradicted evidence as not credible. See Adonizio Brothers, Inc. v. Department of Transportation Board of Review, 529 A.2d 59, 61 (Pa. Cmwlth. 1987), appeal denied, 518 Pa. 627, 541 A.2d 1138 (1988) citing Williams v. State Civil Service Commission, 306 A.2d 419 (Pa. Cmwlth. 1973). On appeal, the prevailing party before the Commission is entitled to every inference that can be logically and reasonably drawn from the evidence viewed in a light most favorable to that party. Western Center, Department of Public Welfare v. Hoon, 598 A.2d 1042, 1045 (Pa. Cmwlth. 1991). --------
Regarding the Authority's claim that it proved that Huber-Brown was insubordinate, while Boozel testified before the Commission regarding Huber-Brown's profanity and his assumption that it was directed at him, his statement immediately following the incident could support the Commission's determination that she was merely venting regarding the harassing cell phone calls at that time and that her profanity was more subdued. (R.R. at 194a.)
As to the fact that the Employee Disciplinary Notice listed Huber-Brown's attendance, chronic lateness or early quit, unsatisfactory work performance, and failure to follow instructions as violations, it also specifically stated that the incident underlying the disciplinary action occurred on December 2, 2011, at 8:50 a.m., thereby supporting the Commission's limited view of what conduct precipitated the suspension. (R.R. at 193a.) While there is record evidence supporting a finding of Huber-Brown's insubordination and habitual lateness for work as alleged by the Authority, the Commission was free to find it not credible even though it is uncontradicted. In sum, all of the Authority's claims in this appeal relate to the Commission's findings regarding the evidence that was presented and we will not accede to the Authority's request to reconsider or reweigh the evidence offered in support of its burden of proof.
Accordingly, the Commission's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 27th day of August, 2013, the order of the State Civil Service Commission, dated January 2, 2013, at No. 27266 is affirmed.
/s/_________
DAN PELLEGRINI, President Judge