COMMONWEALTH OF PENNSYLVANIA

Farzin Afrasiabipour : State Civil Service Commission

:

v. :

:

Pennsylvania Department :

of Transportation : Appeal No. 291231

Farzin Afrasiabipour Joanne Steinke Faul

Pro Se Attorney for Appointing Authority

ADJUDICATION

This is an appeal by Farzin Afrasiabipour challenging his Level-One

Alternative Discipline in Lieu of a one-day suspension from regular Civil Engineer

Transportation employment with the Pennsylvania Department of Transportation. A

hearing was held on February 28, 2017, at the Eastern Regional Office in

Philadelphia, Pennsylvania before Commissioner Gregory M. Lane.

The Commissioners have reviewed the Notes of Testimony and

exhibits introduced at the hearing, as well as the Briefs submitted by the parties. The

issues before the Commission are whether there is good cause for Alternative

Discipline in Lieu of Suspension (hereinafter “ADLS”)2 and whether appellant has

established that the disciplinary action was the result of discrimination.

1 Appeal Nos. 29123 and 29223 were consolidated for purposes of a hearing. During the October 27, 2017 hearing

on Appeal No. 29686, appellant requested separate adjudications for each of his appeals. Appeal No. 29686 (hearing

date October 27, 2017), N.T. p. 19. The Commission granted appellant’s request. Id. Therefore, the present

adjudication will only address Appeal No. 29123.

2 Under the ADLS, there was no effect on appellant’s pay, seniority, or other benefits. The Level-One ADLS carries

the same weight as if appellant served a one-day suspension. Comm. Ex. A.

2

FINDINGS OF FACT

1. By letter dated August 15, 2016, appellant was

issued a Level-One ADLS from his position as Civil

Engineer Transportation, regular status. The

appointing authority charged appellant with a

violation of Minor Work Rule #6—unsatisfactory

work performance. Specifically, the appointing

authority alleged that appellant received an overall

“unsatisfactory” employee performance review

(hereinafter “EPR”). Comm. Ex. A.

2. The appeal was properly raised before this

Commission and was heard under Sections 951(a)

and (b) of the Civil Service Act, as amended.

3. Appellant’s duties as a Civil Engineer

Transportation include reviewing highway

occupancy permit applications and any

accompanying attachments that are submitted to the

appointing authority. As part of that review,

appellant is responsible for generating comments in

the appointing authority’s electronic permitting

system which detail any deficiencies in the

submitted documentation. Appellant is also

expected to conduct onsite visits, take site distance

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measurements, assess drainage features, and

compare the submitted plans to the physical site.

N.T. pp. 39-42, 45; AA Ex. 1.

4. Prior to completing his review in the electronic

permitting system, appellant is required to submit a

draft of his comments to his immediate supervisor.

Appellant’s immediate supervisor reviews this

draft, notates any necessary corrections, returns the

notated draft to appellant, and discusses the

corrections with appellant. Appellant then makes

the corrections, and if his immediate supervisor is

satisfied with those corrections, appellant “hits

complete” in the electronic system. Once appellant

“hits complete,” appellant’s portion of the review is

done. After the application has been approved by

appellant’s immediate supervisor and the Traffic

Services Manager, a letter is generated in the

electronic system and forwarded to the permits

office for processing. This letter is then sent to the

applicant electronically. N.T. pp. 42-43.

5. The comments detailing the identified deficiencies

are presented to the applicant, and the applicant or

their engineer may revise their plans accordingly to

become compliant. N.T. p. 43.

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6. Appellant received an overall rating of

unsatisfactory on his EPR for rating period

October 1, 2014 to October 1, 2015. This rating

was based on appellant’s poor performance in

reviewing highway occupancy permits. Fifteen

applications, which were reviewed by appellant

during this rating period, required extensive

corrections. N.T. pp. 46-48, 54; AA Ex. 2.

7. As a result of the unsatisfactory EPR for rating

period October 1, 2014 to October 1, 2015,

appellant was placed on a corrective action plan.

This corrective action plan was presented to

appellant on December 23, 2015. N.T. pp. 51-52,

219; AA Ex. 3.

8. When the corrective action plan was presented to

appellant, the specific standards and measures by

which appellant would be rated were explained to

him. It was also explained to appellant that the

corrective action plan would remain in place until

appellant’s performance ratings reached, at

minimum, a satisfactory level. N.T. pp. 52, 55-56,

235-236, 269-270.

9. The areas in which appellant was rated under the

corrective action plan were as follows: (1) job

knowledge/skills; (2) work results; (3)

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communications; (4) initiative/problem solving; (5)

interpersonal relations/equal employment

opportunity; and (6) work habits. AA Ex. 3. The

standards for each of these areas mirrored the EPR

standards. N.T. pp. 55-56; AA Exs. 3, 4a, 4b, 10.

10. The corrective action plan set forth the following

specific standard necessary for satisfactory

performance in the area of job knowledge/skills:

Develop an understanding and

proficient working knowledge of

department regulations and policies

and exercising of effective engineering

judgement to completely perform

duties as a civil engineer transportation

in the Traffic Services Section. A

reduction in the incidents where

corrections must be made to reviews

based on lack of understanding policy

or a personal rejection of policy.

AA Ex. 3 (p. 1). This standard was measured as

follows:

Limitation to 1X within the rating

period the # of instances where

corrections to basic policy or routine

engineering judgment issues are

ignored or missed with the goal of

eliminating all instances.

AA Ex. 3 (p. 1).

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11. The corrective action plan set forth the following

specific standard necessary for satisfactory

performance in the area of work results:

Be able to adequately execute any and

all of the requisite tasks essential to the

position of Civil Engineer

Transportation in the Traffic Services

Section. Reviews of [highway

occupancy permits] will not be in

conflict with District and Unit Policy

specifically related to sight distance.

Non-value adding review comments

which increase the number of review

cycles will be reduced. Demonstration

of the ability to give attention to detail

such as reviewing scoping comments

and meeting minutes to maintain

consistency between those and the

application reviews.

AA Ex. 3 (pp. 1-2). This standard was measured as

follows:

Limitation to 1X within the rating

period of instances where reviews are

delayed and where extensive

corrections must be made where basic

policy or engineering judgement issues

are ignored or missed with the goal of

eliminating all instances. Limitation to

1X within the rating period of

instances where supervisory

corrections to application reviews are

required due to a failure to review all

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preliminary documents or meeting

minutes with the goal of eliminating all

instances.

AA Ex. 3 (p. 2).

12. The corrective action plan set forth the following

specific standard necessary for satisfactory

performance in the area of communications:

Written communication must convey

information applicable to the assigned

project. The employee will use

appropriate and professional oral

communication skills when receiving

direction from supervisor or

communicating to fellow employees.

Employee will maintain a regular

dialogue with supervisor regarding

review progress and to receive

direction on reviews. Employee will

respectfully follow direction of all unit

supervisors when performing reviews

within that supervisor’s area of

responsibility. Employee will have

direct verbal discussion of review

comments with his supervisor in lieu

of email only communication.

AA Ex. 3 (p. 2). This standard was measured as

follows:

Maintaining direct communications

with supervisors and management.

Zero instances where communications

are disrespectful, terse or of an

inflammatory nature.

AA Ex. 3 (p. 2).

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13. The corrective action plan set forth the following

specific standard necessary for satisfactory

performance in the area of initiative/problem

solving:

The Employee must function as a team

player. The employee must

demonstrate a willingness to work

with others in a professional and

collaborative manner to achieve the

goals of the unit. Employee must take

the initiative to structure his review

comments to provide insight to

[Highway Occupancy Permit]

Applicants that could reduce the

number of review cycles. Employee

must have better interaction with his

supervisor and other co-workers.

Employee must demonstrate his

understanding of unit policy thereby

improving confidence that he can work

and make decisions independently.

AA Ex. 3 (p. 3). This standard was measured as

follows:

Limitation to 1X within the rating

period of non-value adding review

comments with the goal of eliminating

all non-value adding review

comments.

AA Ex. 3 (p. 3).

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14. The corrective action plan set forth the following

specific standard necessary for satisfactory

performance in the area of interpersonal

relations/equal employment opportunity:

No incidents come to your

supervisor’s attention during this

evaluation which involves you having

demonstrated disruptive behavior of

any kind including inappropriate

comments, offensive noises, indiscreet

or insensitive remarks made to your

supervisor, management or to other

employees inconsistent with the

professional demeanor you are

expected to maintain.

AA Ex. 3 (p. 3). This standard was measured as

follows:

Zero incidents of disruptive,

unprofessional or threatening behavior

towards other employees, supervisors

or management. Clearly demonstrate

through his actions, the ability to be a

team player.

AA Ex. 3 (p. 3).

15. The corrective action plan set forth, in pertinent

part, the following specific standard necessary for

satisfactory performance in the area of work habits:

The employee is expected to

demonstrate proper conduct and

behavior. No incidents come to your

supervisor’s attention during this

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rating period which demonstrates

failure to follow work rules or

established procedures….

AA Ex. 3 (p. 3). This standard was measured, in

pertinent part, as follows:

Zero incidents of disruptive,

unprofessional or threatening behavior

towards other employees, supervisors

and management….

AA Ex. 3 (p. 4).

16. Under the corrective action plan, interim EPRs were

issued to appellant. N.T. pp. 56-57, 63-64; AA Exs.

4a, 4b, 10.

17. For each of the standards set forth in the corrective

action plan, appellant would be rated as satisfactory

on the interim EPRs only if all objectives were

satisfactorily accomplished during the rating period.

AA Ex. 3.

18. The first interim EPR was issued for the period of

December 23, 2015 through February 3, 2016. N.T.

p. 57; AA Ex. 4a.

19. The second interim EPR was issued for the period

of February 4, 2016 through March 17, 2016. N.T.

p. 57; AA Ex. 4b.

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20. The overall rating for both the first and second

interim EPRs was unsatisfactory. N.T. pp. 57-58;

AA Exs. 4a, 4b.

21. On February 4, 2016 and March 17, 2016,

appellant’s immediate supervisor met with him to

discuss the first and second interim EPRs,

respectively. N.T. p. 58.

22. A pre-disciplinary conference (hereinafter “PDC”)

was initially scheduled for March 29, 2016. This

PDC was rescheduled for April 5, 2016. N.T. pp.

282-283; AA Exs. 5, 6.

23. On April 5, 2016, the PDC was held regarding

appellant’s poor work performance. N.T. pp. 223-

224, 283.

24. At the April 5, 2016 PDC, appellant denied any

misconduct, claimed that his actions were correct,

and asserted that his supervisors were wrong. N.T.

pp. 224-225.

25. At the April 5, 2016 PDC, appellant was informed

that the corrective action plan would remain in place

and his performance would be reviewed on an

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interim basis. Appellant was also informed of the

expectation that his job performance and behavior

would improve. N.T. p. 62.

26. Based on the first and second interim EPRs,

appellant received a written reprimand, dated

April 12, 2016, for unsatisfactory work

performance. N.T. pp. 61-62, 294; AA Ex. 7.

27. A third interim EPR was issued for rating period

March 18, 2016 through June 20, 2016. Appellant

received an overall rating of unsatisfactory on this

interim EPR. N.T. pp. 63-65; AA Ex. 10.

28. On the third interim EPR, appellant was rated

“unsatisfactory” in the areas of job knowledge/skills

and work results based on corrections that needed to

be made to the highway occupancy permits that

appellant reviewed during this rating period. AA

Ex. 10.

29. During the rating period for the third interim EPR,

appellant reviewed nineteen highway occupancy

permit applications. Fourteen of these applications

required extensive corrections. N.T. pp. 64-65; AA

Ex. 10.

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30. One of the fourteen applications that required

extensive corrections was for a proposed housing

development subdivision, which would access a

state highway via two driveways to local roads.

One of the driveways was a right-in, right-out

driveway. The sight distance for this driveway did

not comply with the appointing authority’s policy.

Appellant failed to identify this issue in his

comments and failed to explore alternative options

to increase the safety of the intersection. Appellant

also failed to correctly identify the townships to be

notified. N.T. pp. 65-66, 72-73, 133-142, 145; AA

Exs. 19a, 19b.

31. Another application that required extensive

corrections during the rating period for the third

interim EPR, was for a small pharmacy that was

requesting a minimal use driveway. During the fifth

cycle review for this application, appellant included

three unnecessary comments. Specifically,

appellant requested documents that had already

been submitted by the applicant and were

acceptable. N.T. pp. 77-81, 160-164, 169; AA Ex.

20.

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32. The fifth cycle review means that this is the fifth

time that the application went back and forth

between the applicant and the appointing authority.

This is excessive for a small pharmacy with a

minimal use driveway. N.T. p. 78.

33. On the third interim EPR, appellant was rated

“unsatisfactory” in the areas of communications,

interpersonal skills, and work habits based on his

unprofessional behavior and failure to

communicate. Specifically, during this rating

period, appellant failed to interact with his

immediate supervisor during the review process,

failed discuss his work until after he had handed in

his comments, directed a disrespectful remark

toward his immediate supervisor and another

supervisor, and engaged in disruptive behavior that

affected another unit. N.T. pp. 82-84, 127-128; AA

Ex. 10.

34. On the third interim EPR, appellant was rated

“needs improvement” in the area of

initiative/problem solving based on his failure to

recognize and seek help with resolving issues

pertaining to sight distance and drainage. N.T. p.

274; AA Ex. 10.

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35. A meeting was held, at which appellant’s immediate

supervisor reviewed with appellant the

unsatisfactory rating for the third interim EPR and

explained to appellant his concerns with appellant’s

work performance. At this meeting, appellant failed

to provide adequate explanations regarding his poor

performance and relationships with others. N.T. pp.

85-86.

36. On July 26, 2016, a PDC was held, at which

appellant was represented, to address appellant’s

unsatisfactory work performance, which was

detailed in his third interim EPR. N.T. pp. 86, 227;

AA Ex. 10.

37. The appointing authority’s standard procedure for

issuing EPRs is as follows. EPRs are initially

drafted by the employee’s immediate supervisor.

The immediate supervisor then reviews the draft

EPR with the reviewing officer. The reviewing

officer provides his edits, changes, and observations

to the immediate supervisor. After the immediate

supervisor and reviewing officer agree on the

language and rating, a meeting is arranged with the

employee and the EPR is presented to the employee.

N.T. pp. 112-113, 228.

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38. Appellant’s immediate supervisor and the Traffic

Services Manager, who is the reviewing officer for

appellant’s EPRs, followed the standard procedure

when issuing the EPR for rating period March 18,

2016 through June 20, 2016 to appellant.

Appellant’s immediate supervisor also followed

this procedure when he issued EPRs to his other

subordinate employee. N.T. pp. 113, 228-229.

39. On appellant’s yearly and interim EPRs, it was

noted that appellant would benefit from taking

courses directly related to the review of highway

occupancy permits as well as trainings in coworker

relations and team building. Appellant was not

mandated to take the suggested trainings. N.T. pp.

118-119, 121; AA Exs. 2, 4a, 4b, 10.

40. Appellant was offered all available trainings

including webinars and routine trainings, which

were transmitted to all employees via their

computers. These trainings included the following

topics: drainage; stormwater management; and

analysis. N.T. pp. 240-241.

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41. Appellant attended roundabout trainings, which

address intersection control through the use of

roundabouts. There are highway occupancy

permits that involve roundabouts. N.T. pp. 241-

242.

42. The appointing authority’s staff repeatedly received

instruction that right-in, right-out driveways are not

safe because people ignore them; therefore, they

typically are not approved for residential use. The

Traffic Services Manager also discussed this policy

at highway occupancy permit staff meetings, which

appellant attended. N.T. pp. 74, 255-256, 258.

43. Appellant’s immediate supervisor was available on

a daily basis to help appellant with any issues. N.T.

p. 55.

44. Appellant was encouraged to ask questions of his

immediate supervisor before providing his draft

comments. N.T. pp. 253-254.

45. The appointing authority’s Working Rules establish

that unsatisfactory work performance is a minor

rule violation. Pursuant to the Working Rules,

minor rule violations can result in either verbal or

written warnings, as well as a suspension or more

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stringent disciplinary action if such violations

continue after verbal and written warnings. AA Ex.

17.

46. Appellant signed an acknowledgement in June 2010

indicating that he received a copy of the Working

Rules. This acknowledgment cautioned appellant

to read and become familiar with the contents of the

Working Rules since violations may result in

disciplinary action. N.T. pp. 279-280; AA Ex. 18.

DISCUSSION

The issues before the Commission are: (1) whether the appointing

authority established good cause for appellant’s Level-One ADLS from appellant’s

regular status position of Civil Engineer Transportation; and (2) whether appellant

established that the discipline was the result of discrimination. The appointing

authority notified appellant that he was being issued the Level-One ADLS due to his

“violation of Minor Work Rule #6: Unsatisfactory work performance. Specifically,

you received an overall ‘unsatisfactory’ employee performance review.” Comm.

Ex. A.

In an appeal challenging the suspension of a regular status employee,

the appointing authority bears the burden of establishing good cause for the

personnel action. White v. Commonwealth, Department of Corrections, 110 Pa.

Commw. 496, 532 A.2d 950 (1986); 71 P.S. §§ 741.803, 741.951(a); 4 Pa. Code

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§ 105.15. Good cause must be based upon meritorious criteria and be related to

one’s competency and ability to execute job duties properly. White, 110 Pa.

Commw. at 498, 532 A.2d at 951.

Concerning the discrimination claim, appellant bears the burden of

establishing that the personnel action was due to discrimination. Henderson v. Office

of the Budget, 126 Pa. Commw. 607, 560 A.2d 859 (1989) petition for allowance of

appeal denied, 524 Pa. 633, 574 A.2d 73 (1990). In analyzing claims of

discrimination3 under Section 905.1 of the Act, appellant has the burden of

establishing a prima facie case of discrimination by producing sufficient evidence

that, if believed and otherwise unexplained, indicates that more likely than not

discrimination has occurred. 71 P.S. § 741.951(b); 4 Pa. Code § 105.16; Department

of Health v. Nwogwugwu, 141 Pa. Commw. 33, 38, 594 A.2d 847, 850 (1991). The

burden of establishing a prima facie case cannot be an onerous one. Henderson, 126

Pa. Commw. at 616, 560 A.2d at 864. Once a prima facie case of discrimination has

been established, the burden of production then shifts to the appointing authority to

advance a legitimate non-discriminatory reason for the personnel action. If it does,

the burden returns to appellant, who always retains the ultimate burden of

persuasion, to demonstrate that the proffered merit reason for the personnel action is

3 The Act addresses both “traditional” and “procedural” discrimination. “Traditional discrimination” encompasses

only those claims of discrimination based on race, sex, national origin or other non-merit factors. “Procedural

discrimination” refers to a technical violation of the Act. In a case where an employee alleges a technical violation,

no showing of intent is required. There must be evidence, however, to show that the employee was harmed by the

technical noncompliance or that because of the peculiar nature of procedural impropriety that he or she could have

been harmed, but there is no way to prove that for certain. Pronko v. Department of Revenue, 114 Pa. Commw. 428,

439, 539 A.2d 456, 462 (1988); 71 P.S. § 741.905a.

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merely pretext. Id. at 614-615. In particular, an employee claiming disparate

treatment must demonstrate that he or she was treated differently than others.

Nwogwugwu, 141 Pa. Commw. at 40, 594 A.2d at 851. Here, appellant alleged

discrimination based upon race, national origin, disability, violation of the Civil

Service Act/Rules, and other non-merit factors. Comm. Ex. B. Specifically,

appellant alleged a non-merit factor based on retaliation for filing prior equal

employment opportunity complaints. Comm. Ex. B.

In support of its charges, the appointing authority presented the

testimony of John Otten, Francis Hanney, Cheryl Babiarz, Sharion Fletcher, and

Karen Brown.4 In support of his appeal, appellant testified on his own behalf. The

evidence provided by the parties has been reviewed by the Commission and has been

summarized below.

I. The Appointing Authority’s Evidence

A. John Otten’s Testimony

Otten is presently employed by the appointing authority as a senior civil

engineer transportation supervisor. N.T. p. 36. Otten has worked for the appointing

authority for approximately twenty-three years. N.T. p. 37. Otten has held his

current supervisory position since 2003. N.T. pp. 37-38. Prior to holding his present

4 Anthony Reda also testified on behalf of the appointing authority. However, his testimony was limited to the Level-

Two ADLS, which is the subject of Appeal No. 29223, and will not be discussed as part of this adjudication.

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supervisory position, Otten worked for the appointing authority as a civil engineer

in transportation. N.T. p. 38. When Otten worked as a civil engineer in

transportation, his job duties were the same as appellant’s current job duties. N.T.

p. 38.

Otten testified he became appellant’s direct supervisor in

February 2008. N.T. p. 39. Otten stated he supervised three persons in addition to

appellant. N.T. pp. 38-39. Otten stated Suzanne LaPenta was appellant’s prior

supervisor. N.T. p. 39.

Otten testified from 2015 to 2016, appellant was responsible for

reviewing highway occupancy permit applications. N.T. pp. 39-40. Otten

explained, for example, a coffee shop seeking to construct a driveway would

electronically submit an application for a highway occupancy permit. N.T. p. 40.

This application would be received by the traffic unit and sent to Otten’s supervisor,

Francis Hanney. N.T. pp. 40-41. Depending on the county where the application

originated and the current workload, Hanney would give the application to either

LaPenta or Otten. N.T. p. 41. Otten stated he would then assign it to one of his

subordinates or consult a contractor, depending on the workload and the county in

which the application is presented. N.T. p. 41.

If the application was assigned to appellant, appellant would be

responsible for reviewing the application and its attachments to determine whether

it complies with the appointing authority’s regulations and policies. N.T. p. 41.

Otten explained the electronic application has numerous attachments, such as plans,

“traffic study calculations, store [sic] management calculations, and right-of-way

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information.” N.T. p. 41. Appellant is responsible for generating comments in the

electronic permitting system, which notate any deficiencies in the application and

attachments. N.T. pp. 41-42.

Prior to completing the review in the electronic permitting system,

appellant must print out a copy of his comments and submit this printout to Otten.

N.T. p. 42. If appellant’s comments are not acceptable, Otten returns the printout to

appellant, with his corrections which are notated in red ink, and discusses the

corrections with appellant. N.T. p. 42. Appellant then makes the corrections, and if

Otten is satisfied with those corrections, appellant “hits complete” in the electronic

system. N.T. p. 42. Once appellant “hits complete,” appellant’s portion of the

review is complete and it is forwarded to Otten, who may add additional comments

or edit the comments. N.T. p. 42. Otten also discusses the application with his

supervisor, Hanney. N.T. pp. 42-43. Once they are satisfied, Otten “hits complete,”

and the application is forwarded to Hanney, who can make additional comments or

edits. N.T. pp. 42-43. After Hanney is satisfied, a letter is generated in the electronic

system and it is forwarded to the permits office for processing. N.T. p. 43. The

letter is then sent to the applicant electronically. N.T. p. 43. Otten explained the

comments are presented to the applicant so that the applicant is aware of the issues

that need to be resolved, and the applicant or their engineer may revise their plans

accordingly to become compliant. N.T. p. 43.

Otten testified appellant’s job duties are set forth in his position

description. N.T. p. 44; AA Ex. 1. Otten stated as part of his duties, appellant is

expected to do the following: conduct onsite visits; take site distance measurements;

assess drainage features; and compare the submitted plans to the physical site. N.T.

p. 45. Otten further explained the primary concerns when conducting an onsite visit

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are whether the access will be acceptable for vehicles to enter and exit safely and

whether the access is compliant with the appointing authority’s regulations. N.T. p.

45.

Otten testified as appellant’s supervisor, he is responsible for annually

preparing appellant’s EPR. N.T. p. 46. Otten testified appellant received an overall

rating of unsatisfactory on his EPR for rating period October 1, 2014 to October 1,

2015. N.T. pp. 46-47; AA Ex. 2. Otten stated he prepared this EPR in conjunction

with his supervisor, Hanney. N.T. p. 47. Otten explained the rating was based on

appellant’s poor performance in reviewing the highway occupancy permits.5 N.T.

p. 48; AA Ex. 2. Specifically, the letters drafted by appellant required extensive and

repeated comments by Otten, and there were fifteen applications reviewed by

appellant that needed extensive corrections, which Otten made to the appellant’s

drafts. N.T. pp. 48, 54; AA Ex. 2. Otten noted that for a person with appellant’s

years of experience, this was a lot of corrections. N.T. pp. 54-55. Additionally,

Otten noted that appellant’s poor work performance began prior to this EPR. N.T.

p. 49.

As a result of the unsatisfactory EPR for rating period October 1, 2014

to October 1, 2015, Otten met with appellant to discuss the rating and his concerns

with appellant’s performance. N.T. p. 49. This meeting, which occurred on

5 Additional reasons for appellant’s unsatisfactory work performance were set forth in the EPR for rating period

October 1, 2014 to October 1, 2015. AA Ex. 2. These reasons included appellant’s failure to abide by the appointing

authority’s policies and regulations, as well as appellant’s unwillingness to function as a team player. AA Ex. 2.

24

December 23, 2015, was also attended by Hanney and Blue Belmont, who at the

time was the district traffic engineer.6 N.T. p. 50, 52. Otten explained the district

traffic engineer is directly above Hanney within the chain-of-command. N.T. p. 50.

Otten testified after preparing the unsatisfactory EPR, he and Hanney

created a corrective action plan to improve appellant’s performance. N.T. pp. 51-

52; AA Ex. 3. This corrective action plan was presented to appellant at the

December 23, 2015 meeting. N.T. p. 52. At that time, Otten, Hanney, and Belmont

explained to appellant the specific standards and measures by which appellant would

be rated. N.T. p. 52.

Otten stated the first section of the corrective action plan sets forth the

standard regarding appellant’s job knowledge and skills. N.T. p. 55; AA Ex. 3. The

standard under this section is as follows: “develop an understanding and proficient

working knowledge of department regulations and policies.” N.T. p. 55; AA Ex. 3.

Otten explained this standard is identical to the standard on the EPR. N.T. p. 55.

Otten stated the purpose of this standard was to help appellant minimize the

comments and issues with his letters for the highway occupancy permit applications.

N.T. p. 55. Additionally, Otten stated he was available on a daily basis to help

appellant with any issues. N.T. p. 55. Otten further noted that he reviewed with and

explained to appellant the comments that he had made on the fifteen applications

reviewed by appellant. N.T. p. 56.

6 Otten noted that Belmont is presently employed by the appointing authority as the Assistant District Executive.

N.T. p. 50.

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Regarding the additional factors set forth in the corrective action plan,

Otten explained he and Hanney designed these factors to mirror the factors on the

EPR. N.T. p. 56; AA Ex. 3. Otten further indicated the corrective action plan

established a time period during which appellant was to correct his work

performance. N.T. p. 56. During this time, interim EPRs were conducted. N.T. pp.

56-57; AA Exs. 4a, 4b. Otten stated the first interim EPR was issued for the period

of December 23, 2015 through February 3, 2016. N.T. p. 57; AA Ex. 4a. The second

interim EPR was issued for the period of February 4, 2016 through March 17, 2016.7

N.T. p. 57; AA Ex. 4b. The overall rating for both reviews was unsatisfactory. N.T.

pp. 57-58; AA Exs. 4a, 4b. Otten further noted that appellant was not rated

satisfactory in any of the factors on either interim EPR. N.T. p. 58; AA Exs. 4a, 4b.

Otten testified he met with appellant to discuss each of the interim

EPRs. N.T. p. 58. These meetings occurred on February 4, 2016 and March 17,

2016. N.T. p. 58. Otten explained before and during these meetings, he showed

appellant the draft letters, which contained his markups to the comments. N.T. p.

59. Otten stated in addition to the issues with the letters, appellant was having

behavioral problems. N.T. pp. 59-60. This issue was also discussed with appellant

during the meetings.8 N.T. p. 60. Otten noted that appellant was not able to give a

rational explanation for his behavior. N.T. p. 60.

7 During his testimony, Otten misspoke and stated the time period for second interim EPR ended on March 17, 2017.

N.T. p. 57. It is clear from the appointing authority exhibit 4b that the rating period ended on March 17, 2016. AA

Ex. 4b.

8 Under the factor “Interpersonal Relations/Equal Employment Opportunity (EEO)” of [the] appointing authority

exhibit 4b, it indicates that appellant exhibited behavior of a threatening nature toward another employee on February

23rd. AA Ex. 4b.

26

As a result of the two interim EPRs, a PDC was scheduled. N.T. pp.

58, 60. Otten stated he attended the PDC, but he was not responsible for making the

decision to discipline appellant. N.T. p. 61. However, Otten noted that based on the

two interim EPRs, appellant received a written reprimand. N.T. pp. 61-62; AA Ex.

7. Additionally, Otten noted that, at the PDC, appellant was informed that the

corrective action plan would remain in place and his performance would be reviewed

on an interim basis. N.T. p. 62. Appellant was also informed of the expectation that

his job performance and behavior would improve. N.T. p. 62.

The next interim EPR was completed by Otten for the period of

March 18, 2016 through June 20, 2016. N.T. pp. 63-64; AA Ex. 10. On this interim

EPR, appellant received an overall rating of unsatisfactory. N.T. p. 64. During the

three-month review period for this EPR, there were fourteen applications that

required significant corrections to achieve compliance with the appointing

authority’s policies and regulations. N.T. pp. 64-65. Otten noted that appellant

reviewed a total of nineteen applications during this period; thus, seventy-four

percent of the applications reviewed by appellant required significant corrections.

N.T. p. 65.

For example, Otten indicated that he reviewed draft comments prepared

by appellant for a proposed housing development subdivision that was seeking

access to the development by a local road. N.T. pp. 65-66; AA Exs. 19a, 19b. Otten

explained the comments were generated by appellant in the electronic permitting

27

system, and appellant provided him with a printout of the comments to review. N.T.

p. 67; AA Ex. 19a. Otten stated he made corrections to the comments in thick red

pen and returned those corrections to appellant.9 N.T. p. 68; AA Ex. 19a.

Regarding the draft comments, Otten testified the developer was

seeking to build thirty-three townhouses. N.T. p. 71; AA Ex. 19b. The developer

proposed accessing a state highway via two driveways to local roads. N.T. p. 72;

AA Ex. 19b. One of the driveways was a right-in, right-out driveway, which means

that a left turn cannot be made into the driveway. N.T. p. 72; AA Ex. 19b. Otten

explained this typically raises a “red flag,” especially when there is a road across

from the driveway that does not have any restrictions. N.T. p. 73.

Otten stated he determined that the right-in, right-out driveway was

implemented by the applicant because there was not sufficient sight distance to the

right. N.T. p. 73; AA Ex. 19b. Otten noted that he determined this by reviewing the

street view images on Google Earth and the appointing authority’s video log, which

are tools accessible to appellant. N.T. p. 73. Otten explained the appointing

authority typically does not want this type of driveway for residential use because

experience has shown the residents ignore it, which is very dangerous because

someone could be hit and killed or injured. N.T. p. 74. Otten explained to remedy

this, the embankment needs to be cut back and trees removed, along with a stone

wall. N.T. p. 75. Otten stated this information should have been included in

appellant’s comments, but it was not. N.T. p. 75.

9 Otten noted that, subsequently, in thin red pen, he noted that he used this document as an example when preparing

the third interim EPR. N.T. p. 68; AA Ex. 19a.

28

Otten further testified on appellant’s draft comments for this

application, he crossed-out those comments pertaining to the signage because these

comments suggest that appellant is accepting the right-in, right-out driveway as it is

proposed. N.T. p. 76; AA Ex. 19a (pp. 3, 4). Otten also noted that appellant’s draft

comments were missing a business partner identification number (hereinafter

“BPID”), which is generally not a “big deal” during a cycle one review. N.T. p. 68;

AA Ex. 19a (p. 1). Otten explained a cycle one review means that this is the first

time the application is being reviewed. N.T. p. 75. Otten stated, pursuant to

Hanney’s instruction, all deficiencies should be brought to the applicant’s attention

during the first review. N.T. p. 75. The applicant should not be blindsided on the

second or third cycle review. N.T. p. 75.

As a second example of appellant’s poor job performance, Otten

discussed appellant’s review of a highway occupancy permit application that was

submitted for a small pharmacy. N.T. p. 77; AA Ex. 20. The pharmacy was seeking

two low-volume accesses. N.T. p. 77. Otten stated this project went five cycles,

meaning that it went back and forth between the applicant and the appointing

authority five times. N.T. p. 78. Otten explained this is excessive for a small

pharmacy with a minimal use driveway. N.T. p. 78.

Otten testified on the fifth cycle, a state representative inquired about

the status of the review. N.T. p. 79. Otten stated he noted this, for his own reference,

on the draft comments so he could refer to it when preparing appellant’s EPR. N.T.

p. 78; AA Ex. 20. Otten explained such inquiries are a “big deal” because it gives

the appointing authority a “black eye.” N.T. p. 79. Otten further explained

29

applicants seek assistance from state representatives or senators to move their

applications along because they feel as if they are not getting anywhere and it is

costing them time and money. N.T. p. 79.

Otten testified upon receiving the call from the state representative, he

pulled the application and investigated. N.T. p. 79. Otten determined the three

remaining comments were not applicable, and the permit should be approved. N.T.

pp. 79-80. Otten explained the first comment requested that the applicant complete

and execute a document that gives an applicant, who does not own the property but

has the right to purchase it, the right to submit the application for the highway

occupancy permit. N.T. p. 80; AA Ex. 20. Otten determined the applicant in this

case had already submitted the requested document and it was in the system. N.T.

p. 80. Otten also noted that the document was signed by the underlying property

owner and notarized. N.T. p. 80. Therefore, Otten determined that appellant’s

comment was unnecessary because the submitted document was acceptable. N.T.

p. 78; AA Ex. 20.

Otten testified, like the first comment, there was no validity to the

remaining two comments entered by appellant. N.T. p. 80; AA Ex. 20. The second

comment addressed the entering and exiting of trucks. N.T. pp. 80-81; AA Ex. 20.

Otten explained this was a small parking lot with small use, and the size of the trucks

entering and exiting would be small single trucks, like UPS trucks. N.T. p. 81. Otten

noted that the applicant provided a truck turning template with its highway

occupancy permit plans. N.T. p. 81. Otten stated this template demonstrated that

30

the truck would not overtake the center lane when exiting. N.T. p. 81. In other

words, the truck was able to safely make a right turn out of the driveway and would

not enter the opposing lane of traffic thereby causing a head-on collision. N.T. p.

81.

Otten testified the above are only two examples out of fourteen

corrected applications. N.T. p. 81. Otten stated there were other issues with

appellant’s job knowledge and work product besides the ones that he detailed above,

as well as behavioral issues. N.T. pp. 81-82; AA Ex. 10. Otten testified under the

communication factor on the interim EPR, he noted that appellant does not interact

with him during the review process, does not discuss his work until after he has

handed in his comments, and directed a “defamatory” remark toward him and

LaPenta. N.T. pp. 82-83; AA Ex. 10. Also, under the factor for interpersonal skills,

Otten again noted the “defamatory” remark which was made toward himself and

LaPenta, as well as appellant’s disruptive behavior that affected another unit. N.T.

p. 84; AA Ex. 10.

Otten stated he met with Hanney before finalizing the unsatisfactory

interim EPR. N.T. p. 85. A meeting was then held with appellant to review the

factors of the interim EPR. N.T. p. 85. Otten testified at this meeting, he explained

to appellant his concerns with the jobs that appellant had worked. N.T. p. 85. Otten

stated appellant failed to provide adequate explanations regarding his poor

performance and relationships with others. N.T. pp. 85-86. Otten stated following

this meeting, a PDC was held at which appellant was represented. N.T. p. 86. Also,

31

at the PDC, appellant was provided an opportunity to explain his low performance

ratings as well as the complaints regarding his interpersonal relationships. N.T. p.

86. However, appellant was unable to provide any satisfactory explanations, and, as

a result, discipline was issued. N.T. pp. 86-87.

Otten stated appellant’s national origin and religion were not

considered when he conducted the EPRs of appellant’s work. N.T. p. 101. Otten

testified the EPRs were based upon appellant work performance. N.T. p. 101.

On cross examination, Otten provided additional information

regarding: (1) his role in addressing the threats made by appellant; (2) the EPR

process; (3) appellant’s corrective action plan; (4) the recommended training; (5)

appellant’s lack of communication; and (6) the review of appellant’s unsatisfactory

projects. Otten testified he addressed the threats made by appellant and the

complaints about appellant with appellant prior to and during the meetings regarding

appellant’s EPRs. N.T. pp. 104-106, 108. Otten could not recall on which dates

these discussions occurred because he did not document it. N.T. pp. 106, 108-109.

However, Otten noted that the incidents were documented in the witness statements

and he found the witnesses to be credible. N.T. pp. 106, 109. Otten stated these

witness statements were shown to and discussed with appellant during the EPR

meetings. N.T. p. 109.

Regarding the EPR process, Otten testified prior to issuing the EPRs,

he met with Hanney and then made any edits suggested by Hanney. N.T. pp. 110-

112. After meeting with Hanney, Otten met with appellant to discuss the EPRs.

32

N.T. pp. 110-111. Otten explained this is the standard operating procedure when

issuing EPRs. N.T. p. 113. Otten stated he uses the same process when issuing

EPRs to his other subordinate employee. N.T. p. 113.

Regarding the corrective action plan, Otten explained the same plan

was used throughout the disciplinary process. N.T. p. 115; AA Ex. 3. It was not

revised or reissued. N.T. p. 115. Further, regarding training, Otten stated on all of

appellant’s interim EPRs, he noted that appellant would benefit from taking courses

directly related to the review of highway occupancy permits as well as trainings in

coworker relations and team building. N.T. pp. 118-119; AA Exs. 4a, 4b. Otten

could not recall if he also noted this on appellant’s yearly EPR but stated he may

have.10 N.T. p. 119. Otten stated the training was not mandatory, and he was not

aware whether appellant was provided or took any such trainings. N.T. pp. 120-121.

Regarding appellant’s lack of communication, Otten stated there were

two instances where appellant’s listing of unnecessary and/or repeated comments

and his lack of coordination with his supervisor resulted in unit inefficiency. N.T.

pp. 127-128. Otten also added that appellant rarely communicates his work results

to his supervisor. N.T. p. 128. For example, Otten stated appellant was satisfied

with the right-in, right-out driveway on the townhouse project, as it has been

10 On the annual EPRs for rating period October 1, 2014 to October 1, 2015, Otten wrote the following under the

section titled “Opportunities for Development”:

Farzin would benefit from taking courses that directly relate to the review of Highway Occupancy

Permits. He could also use training in co-worker relations and team building.

AA Ex. 2 (p. 4).

33

proposed. N.T. p. 151; AA Ex. 19a. As Otten previously explained, this type of

driveway is typically rejected by the appointing authority because it is dangerous.

N.T. p. 74.

Regarding the review of appellant’s unsatisfactory projects, Otten

explained some of the issues stemmed from appellant’s lack of technical knowledge.

N.T. p. 124. Otten stated during the EPR meetings, he did not discuss all of

appellant’s unsatisfactory projects, but he recalled discussing more than one or two.

N.T. pp. 124-125. Otten further stated he and Hanney also offered to discuss with

appellant any other projects that he wanted to discuss. N.T. pp. 124-125. Otten did

not recall and did not write down which specific projects were discussed during the

meeting but noted that Human Resources may have documented it. N.T. p. 125.

Otten also further explained his correction regarding the township

notifications for the townhouse project. N.T. pp. 133-137; AA Ex. 19a. Otten stated

appellant had listed Concord Township in the draft comments for this project. N.T.

p. 134-135; AA Ex. 19a. Otten stated he “x-ed out” Concord Township on

appellant’s draft comments because the proposed work was not in that township.

N.T. pp. 136-137; AA Ex. 19a. Otten stated the plans submitted by the applicant

established that the project bisected Chester Heights Borough and Thornbury

Township. N.T. p. 136; AA Ex. 19b. Concord Township was on the other side of

the state highway from where the project was to be built. N.T. p. 136. Otten stated

appellant revised the letter accordingly. N.T. p. 135.

34

In addition, Otten explained in more detail the issues with appellant’s

draft comments pertaining to the signage for the right-in, right-out driveway on this

project. N.T. pp. 137-145. Otten disagreed with appellant’s assertion that the sight

distance for the right-in, right-out driveway complied with the appointing authority’s

policy. N.T. pp. 138-139. Otten explained site distance values of one through six

are desirable for safe operation of the driveway. N.T. p. 139. Site distance values

less than this are accepted only if it is impossible to achieve the desirable values by

locating the driveway along the property fringe. N.T. p. 139. Otten stated

appellant’s letter should have directed the applicant to place the driveway in a

location that would achieve the desirable values. N.T. pp. 139-140. The letter did

not do this. N.T. pp. 139-140. Rather, based on the way the letter was written, the

right-in, right-out driveway appeared to be acceptable, when it was not. N.T. p. 140.

Otten further explained this was only a cycle one review, and

alternative options had not been explored. N.T. p. 141. Otten stated right-in, right-

out driveways in residential developments present compliance issues, especially

when there are no reasonable means to make a U-turn to travel back down a state

highway. N.T. p. 141. Otten stated residents will disobey the right-in, right-out

restriction, and since they cannot see vehicles approaching up the hill, accidents are

likely. N.T. p. 145. This is an unsafe condition. N.T. p. 150. Otten stated these are

issues that the reviewer should identify during a field visit when the reviewer is

taking site distance measurements. N.T. p. 145.

Otten testified all measures must be taken to make the driveway fully

accessible by providing the required site distance. N.T. pp. 141-142. Otten noted

that such measures include, but are not limited to, tree removal, relocation or

removal of a stone wall, and cutting back the slope. N.T. p. 142. Otten also noted

35

that site line profiles and a site line easement would be required. N.T. p. 142. Otten

added that this improvement would increase the overall safety of the intersection

because the opposing roadway does not have site distance either. N.T. p. 142.

Additionally, Otten stated, since this is a cycle one review, the

developer needs to be given an opportunity to correct the deficient site distance.

N.T. p. 145. Otten stated it appears the features could be adjusted to address the site

distance issue. N.T. p. 142. If it cannot be corrected, the developer needs to explain

why. N.T. p. 142. Otten stated the letter was revised in accordance with the

corrections that were made to appellant’s initial comments. N.T. pp. 148-149. Otten

further indicated that appellant’s failure to appropriately identify the issues was used

to support the assessment provided in the EPR. N.T. pp. 153-154.

In addition to appellant’s poor performance with the townhouse project,

Otten reiterated that the applicant for the pharmacy project submitted acceptable

documentation. N.T. pp. 160-163; AA Ex. 2. Otten explained although the first box

on the form was not complete, the form was signed by the property owners and was

notarized. N.T. pp. 160-161. Otten further explained the form did not need to be

signed by a secretary or president because the property is not owned by a

corporation. N.T. p. 162. Since the actual property owners signed the form and their

signatures were certified by the notary, the requirement was fulfilled. N.T. pp. 161-

163.

Likewise, the truck turning templates, which were provided with the

pharmacy project, were acceptable. N.T. pp. 163-164. Otten explained it is clear on

the plans in the appointing authority’s system that the trucks do not cross into the

other lane. N.T. p. 164. Otten further noted that the applicant provided the stopping

36

site distance calculations, which were uploaded and archived in the final permit.

N.T. 169. Based on his review, Otten determined that appellant’s comment was not

warranted. N.T. pp. 164-165. Lastly, Otten noted that many engineers contact him

about appellant’s unnecessary comments. N.T. p. 197.

B. Francis Hanney’s Testimony

Hanney is employed by the appointing authority as the Traffic Services

Manager. N.T. p. 215. Hanney has held this position since June 2004 and worked

for the Commonwealth since 1997. N.T. pp. 216-217. Hanney obtained his

engineering degree from Temple University. N.T. p. 265.

Hanney testified he is Otten’s direct supervisor, and Otten is appellant’s

immediate supervisor. N.T. p. 217. Hanney stated Otten began supervising

appellant in 2008. N.T. p. 217. Prior to that, LaPenta was appellant’s immediate

supervisor. N.T. p. 217. Hanney explained appellant was transferred from

LaPenta’s supervision because he refused to work for a woman supervisor. N.T. p.

217. Hanney noted that appellant has been under his supervision since June 2004.

N.T. p. 217. Hanney stated he is the reviewing officer for the employees, such as

appellant, who work for the three supervisors in his unit. N.T. p. 218.

Hanney testified he attended the meeting regarding appellant’s EPR for

rating period October 1, 2014 to October 1, 2015, and he confirmed the information

contained in the EPR. N.T. pp. 218-219; AA Ex. 2. Hanney stated as a result of this

unsatisfactory EPR, a corrective action plan was instituted, in which he participated.

N.T. p. 219; AA Ex. 3. Hanney stated the purpose of the corrective action plan was

to improve appellant’s performance to at least a satisfactory level. N.T. pp. 219,

37

235. Hanney stated this was explained to appellant, and appellant was asked to sign

the corrective action plan, but he did not agree with it and refused to sign. N.T. pp.

220, 235; AA Ex. 3 (p. 4). It was also explained to appellant that the corrective

action plan would remain in place until appellant’s performance ratings reached, at

minimum, a satisfactory level. N.T. pp. 235-236.

Hanney testified after instituting the corrective action plan, appellant

received two subsequent EPRs. N.T. p. 221; AA Exs. 4a and 4b. Hanney stated he

participated in the preparation of both of these EPRs and attended the meetings at

which the EPRs were discussed with appellant. N.T. p. 221. Hanney testified the

problems with appellant’s work performance were discussed with him during these

meetings and he was informed that the corrective action plan would continue. N.T.

pp. 221-222. Hanney further testified as a result of these EPRs, PDC notices were

issued to appellant. N.T. pp. 222-223; AA Exs. 5, 6.

Hanney explained generally, at a PDC, Human Resources explains to

the employee the reasons why he or she is there and offers the employee an

opportunity to comment, respond, and ask questions. N.T. p. 224. Hanney noted

that at the PDC, he and the supervisor do not explain the EPR. N.T. p. 224.

However, they may ask questions after Human Resources explains everything to the

employee. N.T. p. 224.

38

Hanney testified he was present at a PDC, which was held on April 5,

2016. N.T. p. 223. At this PDC, appellant’s EPR was discussed. N.T. p. 223.

Hanney recalled that at this PDC, and at all of the PDCs regarding appellant’s

performance, appellant denied any misconduct, claimed that his actions were

correct, and asserted that his supervisors were wrong. N.T. pp. 224-225.

Hanney testified another PDC was held on June 17, 2016. N.T. p. 226.

This PDC had previously been rescheduled at appellant’s request. N.T. pp. 225-226;

AA Exs. 8, 9. After the June 17, 2016 PDC was held, they reconvened on July 26,

2016. N.T. pp. 226-227; AA Exs. 11, 12. Appellant attended both the June 17, 2016

and July 26, 2016 PDCs. N.T. p. 227.

Hanney testified the June 17, 2016 PDC addressed appellant’s misuse

of the appointing authority’s vehicle. N.T. p. 227; AA Ex. 9. The July 26, 2016

PDC added a charge pertaining to appellant’s unsatisfactory work performance,

which was set forth in his EPR for rating period March 18, 2016 to June 20, 2016.

N.T. p. 227; AA Ex. 10. Haney noted that he participated in completing the EPR for

rating period March 18, 2016 to June 20, 2016. N.T. pp. 227-228; AA Ex. 10.

Hanney explained EPRs are initially drafted by the employee’s

immediate supervisor. N.T. p. 228. The immediate supervisor then reviews the draft

EPR with the reviewing officer, which was Hanney in this matter. N.T. p. 228. The

reviewing officer provides his edits, changes, or observations to the immediate

supervisor. N.T. p. 228. After the immediate supervisor and reviewing officer agree

on the language and rating, a meeting is arranged with the employee and the EPR is

presented to the employee. N.T. p. 228. Hanney stated this is standard operating

procedure when issuing EPRs. N.T. p. 228.

39

Hanney stated he and Otten followed the above procedure when issuing

the EPR for rating period March 18, 2016 to June 20, 2016. N.T. pp. 228-229; AA

Ex. 10. Hanney further stated he confirmed the information contained in this EPR,

and a meeting was held with appellant to discuss the EPR. N.T. p. 229. Hanney

noted that there were a number of application reviews that required excessive

corrections, despite appellant’s many years of experience and the established

policies. N.T. p. 229. This was discussed with appellant as a part of this EPR. N.T.

p. 229.

Hanney testified he has repeatedly made it clear to the unit he

supervises that, when possible, issues with the application, such as site distance,

should be resolved informally, provided the engineer and applicant cooperate and

provide the requested information. N.T. pp. 229-230. Hanney stated he has

addressed this with appellant multiple times over the years. N.T. pp. 230-231.

Hanney further stated the main issue with appellant’s work is the value of the

comments and manner in which it is processed. N.T. p. 231. The issue is not

whether Otten was correct in his assessment. N.T. p. 231. Hanney explained if there

is confusion as to which direction to proceed, the employee should discuss the matter

with his supervisor or Hanney. N.T. p. 231.

Hanney testified appellant also exhibited disruptive behavior. N.T. p.

232. Hanney explained he received numerous complaints from employees in his

unit and staff, who work in other units, that appellant is engaging in threatening

actions, looks, and gestures toward other employees, as well as making disrespectful

statements and spreading false information. N.T. p. 232. Hanney testified such

40

actions impact the morale, safety, and well-being of his staff and hurt relations with

other units. N.T. pp. 232-233. Hanney stated some of these incidents were

documented in appellant’s interim EPR. N.T. p. 232.

Hanney testified during his discussions with appellant, appellant failed

to provide any meritorious explanations for his unsatisfactory work product or his

actions. N.T. p. 233. Hanney stated appellant raised the same arguments during

these discussions that he presented during the hearing on the instant appeal. N.T. p.

233. Hanney added that no progress has been made by appellant because appellant

refuses to listen no matter how many times it is explained to him. N.T. p. 234.

Rather, according to Hanney, appellant continues to argue and disagree with the

instruction given to him by his supervisors. N.T. p. 234. Hanney testified as a result

of the PDC, a “one-day ADLS suspension” was issued to appellant; however,

Hanney noted that he is not responsible for determining the appropriate level of

discipline.11 N.T. pp. 234-235; AA Ex. 13. Further, Hanney denied that the negative

reviews of appellant were in any way based on appellant’s religion, race, or

discrimination of any kind. N.T. pp. 237-238. Hanney added that he was focused

on the work and getting the job done correctly. N.T. p. 238.

Lastly, Hanney testified as to opportunities for training. N.T. pp. 240-

242. Hanney stated his unit does not control when training is scheduled or offered,

nor does he have the ability to send appellant to outside courses unless such courses

are approved by the appointing authority and specifically offered. N.T. p. 240.

Hanney stated whenever he learns of a training that is being offered, he informs the

11 Hanney misspoke when he agreed that a “one-day ADLS suspension” was issued to appellant. The documentation

entered into evidence established that appellant was issued a Level One ADLS Letter, which carries the same weight

as a one-day suspension. AA Ex. 13.

41

employees about the training and provides them with a fair opportunity to attend the

training. N.T. p. 241. Hanney also stated he always signs the necessary approvals

for employees to attend such trainings. N.T. p. 241.

Hanney explained they noted on appellant’s EPR which trainings

would be beneficial in the hopes that those particular trainings would arise. N.T. p.

240. Hanney further stated appellant was offered all available trainings including

various webinars and roundabout trainings, as well as routine trainings, which were

transmitted to all employees via their computers. N.T. p. 240-241. Hanney stated

there have been trainings on drainage, storm-water management, and analysis. N.T.

p. 241. Hanney also noted that the roundabout trainings address intersection control

through the use of roundabouts. N.T. p. 241. Hanney stated there are highway

occupancy permits that involve roundabouts. N.T. p. 242.

On cross examination, Hanney provided additional information

regarding: (1) the transfer of appellant from LaPenta’s supervision; (2) the threats

made by appellant; (3) appellant’s failure to communicate; and (4) appellant’s

repeated mistakes. Regarding appellant’s supervision by LaPenta, Hanney

explained appellant made it clear to LaPenta that he did not want her as his

supervisor for various reasons. N.T. pp. 242-243. Hanney stated LaPenta informed

him that one of those reasons was because LaPenta is a woman. N.T. pp. 242-243.

Hanney added that there were also witness statements. N.T. p. 243.

Additionally, Hanney testified he did not investigate whether appellant

was scheduled for a PDC prior to transferring him from LaPenta’s supervision. N.T.

p. 245. Hanney stated he does not have any knowledge regarding appellant’s

performance prior to June of 2004, which was when he began supervising

42

appellant’s unit. N.T. p. 244. Hanney explained he was only concerned with

appellant’s performance under his supervision and did not investigate anything

occurring prior to that. N.T. p. 244.

Regarding the threats made by appellant, Hanney stated he received

numerous witness statements complaining about appellant’s behavior. N.T. p. 249.

Hanney stated upon receiving the complaints, he followed the appointing authority’s

procedure and turned the complaints over to Human Resources. N.T. pp. 250, 252.

Hanney explained Human Resources is responsible for investigating the allegations.

N.T. pp. 250, 252. Hanney stated he does not conduct such investigations, but he

does respond to any requests from Human Resources for information or testimony.

N.T. pp. 250, 252-253. Concerning the specific complaints against appellant,

Hanney noted these complaints were discussed with appellant during appellant’s

multiple interim EPR reviews. N.T. pp. 250-251.

Regarding appellant’s failure to communicate, Hanney explained

appellant has been encouraged to ask questions of his supervisor before providing

his draft comments. N.T. pp. 253-254. Hanney disagreed with appellant’s assertion

that he does not have anything to discuss with his supervisor. N.T. p. 254. Hanney

reasoned that if appellant truly did not have any questions, his work would not need

so many corrections. N.T. pp. 252-255. For example, Hanney noted that upon

receiving an application for a right-in, right-out residential driveway, appellant

should have discussed the matter with his supervisor prior to accepting it as proposed

because the staff had received instruction that such driveways are not safe because

people ignore them. N.T. p. 255. Hanney stated he has discussed the policy

regarding right-in, right-out driveways at highway occupancy permit staff meetings,

which appellant attended. N.T. p. 256. Nonetheless, despite repeatedly reviewing

43

the policies for site distance and right-in, right-out driveways, appellant continued

to make the same mistakes. N.T. pp. 255, 257. Hanney stated these repeated

mistakes are why appellant continues to receive poor performance reviews. N.T. p.

257.

Hanney testified the examples of appellant’s work, which were

discussed by Otten, all exhibit repeated mistakes with regard to policy issues, as well

as appellant’s failure to communicate. N.T. pp. 257-258, 260. Hanney explained

regarding the townhouse project, appellant ignored or missed the policy issue

regarding the right-out, right-in driveway. N.T. p. 258. Appellant also failed to

communicate with his supervisor prior to finalizing his draft comments on this

project. N.T. p. 258. Additionally, Hanney noted that the draft comments for the

small pharmacy project added no value, and the release form, while not filled out

completely, was acceptable. N.T. p. 259. Hanney explained had appellant

communicated with his supervisor or him, these issues could have been avoided.

N.T. p. 259. For example, the applicant for the small pharmacy project could have

been offered an opportunity to complete the release form, which would have avoided

the call to the legislator and the involvement of the District’s executive management,

thereby saving time and resources. N.T. pp. 259-260. Hanney further explained

appellant’s handling of these projects was in contravention of the direction that

appellant was repeatedly given. N.T. pp. 260, 263-264.

C. Cheryl Babiarz’s Testimony

Babiarz is employed by the appointing authority as a Human Resource

Analyst II. N.T. p. 267. Babiarz has held this position since October 2010. N.T. p.

267. Prior to holding this position, Babiarz was a Human Resource Analyst I. N.T.

44

p. 267. Babiarz began working for the appointing authority in March 2003. N.T. p.

267. Prior to her employment with the Commonwealth, Babiarz worked as an HR

assistant for the Philadelphia Protestant Home, which is a continuing care retirement

home. N.T. pp. 267-268.

Babiarz testified she attended the EPR meetings that occurred in

December 2015, February 2016, March 2016, and June 2016. N.T. p. 269. Babiarz

explained her role at these meetings was to serve as a neutral party and ensure that

the meetings were conducted appropriately. N.T. p. 269. Babiarz stated at the first

meeting, the reasons for the performance improvement plan were explained and

appellant was informed that Otten and Hanney were there to help him. N.T. p. 269.

At the beginning of each subsequent meeting, Otten and Hanney went over what

they had discussed at the previous meeting and any new issues. N.T. p. 270. Babiarz

observed that Otten and Hanney did not appear adversarial during these meetings;

rather, her impression was that they were providing assistance. N.T. p. 270.

Babiarz stated Hanney would begin the meetings on a positive note and

commend appellant for anything he did that was positive, then Otten would review

the issues with appellant’s work and provide examples. N.T. p. 270. During the

discussion, appellant was provided an opportunity to make comments and ask

questions. N.T. pp. 270-271. Babiarz stated “there was always give and take in the

meetings.” N.T. p. 271. Babiarz recalled that appellant would comment on why he

did something or ask questions. Babiarz also recalled that, at times during the

meetings, appellant stated the criticisms of his work were “nitpicking” and

“harassment.” N.T. p. 271.

45

Babiarz testified Hanney offered appellant constructive opportunities

to correct his behavior and work product. N.T. p. 271. Babiarz explained that,

during the meetings, Hanney reiterated to appellant the appointing authority’s

longstanding policies. N.T. pp. 271-272. Hanney also told appellant, “I know you

can be a team player,” and “I know we can work through this.” N.T. p. 272. Babiarz

stated she heard a lot of positive things during the meeting and thought it was going

in a positive direction. N.T. p. 272.

During cross-examination, Babiarz confirmed that she does not have an

engineering background. N.T. p. 272. Babiarz stated she only has a very basic

understanding of the technical issues that were being discussed in the meetings, and

because she is not an engineer, she cannot testify as to who was right or wrong. N.T.

pp. 272-275. Babiarz stated her role at the meetings was to ensure that everyone had

an opportunity to ask and answer questions. N.T. p. 273. Babiarz added that it was

her impression that Otten went to great lengths to explain everything to appellant.

Babiarz also recalled that drainage and site distance issues were repeatedly discussed

at the meetings. N.T. p. 274.

D. Sharion Fletcher’s Testimony

Fletcher is employed by the appointing authority as a Human Resource

Analyst. N.T. p. 276. The working title for her position is Labor Relations

Coordinator. N.T. p. 278. In that capacity, Fletcher assists management in the

implementation of the master agreement and is the lead retirement planning

46

supervisor. N.T. p. 278. Fletcher is also the custodian of records for important HR

documents and Labor Relations files. N.T. p. 278. Fletcher has worked for the

appointing authority for nineteen years and has served as a Human Resource Analyst

for the Commonwealth for twenty-six years. N.T. pp. 276-277.

Fletcher testified the appointing authority has written work rules that

all employees are expected to follow. N.T. p. 279; AA Ex. 17. These work rules

were revised in May 2010 and issued to all employees at that time. N.T. pp. 279-

280. Appellant signed an acknowledgement in June 2010 indicating that he received

a copy of the work rules. N.T. pp. 279-280; AA Ex. 18.

Fletcher testified she is familiar with corrective action plans. N.T. p.

280. Fletcher explained if an employee’s work performance is deficient and the

employee receives an EPR rating of needs improvement or below, the manager is

typically instructed to implement a corrective action plan. N.T. p. 280. Upon

implementing a corrective action plan, the employee is given ninety days to improve

in the deficient areas. N.T. p. 280. After ninety days, an interim performance

evaluation is issued. N.T. p. 280. If the employee has improved, the employee may

come off the corrective action plan. N.T. pp. 280-281. If there is no improvement,

the corrective action plan is continued for another sixty days. N.T. p. 281. If the

employee improves during this time, the corrective action plan is discontinued;

otherwise, the corrective action plan is continued for another thirty days. N.T. p.

281. Fletcher explained after each interim period, a PDC is held, at which the

employee is provided an opportunity to provide his or her explanations. N.T. p. 281.

After the PDC is held, appropriate discipline is issued. N.T. p. 281.

47

Fletcher testified she did not assist Otten in preparing appellant’s

corrective action plan. N.T. p. 282. Fletcher recalled that she received a request for

information on how to write a corrective action plan. N.T. p. 282. Based on this

request, Fletcher stated she likely provided sample corrective action plans to Otten

and provided him with a document that sets forth the process outlined above. N.T.

p. 282. Fletcher noted that she would have provided this information to Otten in

2014. N.T. p. 282.

Fletcher stated she prepared the two notices for appellant’s PDCs,

which were dated March 25, 2016 and March 31, 2016. N.T. pp. 282-283; AA Exs.

5, 6. Fletcher explained the second notice rescheduled appellant’s PDC for April 5,

2016, which is the day that it occurred. N.T. p. 283; AA Ex. 6. Fletcher further

explained both notices informed appellant that he was being charged with

unsatisfactory work performance in that appellant received an overall rating of

unsatisfactory on his EPR. N.T. p. 283.

Fletcher testified she attended appellant’s April 5, 2016 PDC, at which

his EPR was reviewed. N.T. pp. 283-284. Fletcher stated appellant was provided

an opportunity to explain his performance; however, he failed to provide a

satisfactory explanation for his unsatisfactory performance review. N.T. p. 284.

Additionally, Fletcher noted that appellant was represented at the PDC by his union.

N.T. p. 284.

Fletcher stated subsequently the PDC was reconvened to address the

additional charge of using the appointing authority’s vehicle for personal use. N.T.

pp. 285-286; AA Exs. 8, 9. Fletcher stated the PDC was initially scheduled to

reconvene on June 8, 2016; but later, it was rescheduled for June 17, 2016. N.T. p.

48

286; AA Ex. 8, 9. Fletcher stated the PDC did occur on June 17, 2016; however,

following the PDC, appellant began to ask Fletcher additional questions. N.T. p.

287. Instead of responding to these questions, Fletcher asked appellant if he wanted

to reconvene the PDC so that he could place his additional questions and any

responses on the record. N.T. p. 287. Appellant responded, “Yes.” N.T. p. 287.

Based on appellant’s response, the PDC was scheduled to reconvene on July 14,

2016. N.T. p. 287.

Fletcher testified prior to reconvening the PDC on July 14, 2016,

another interim EPR was issued to appellant. N.T. p. 287. Therefore, the PDC notice

was amended to add an additional charge based on this interim EPR and rescheduled

for July 26, 2016.12 N.T. p. 287; AA Exs. 11, 12. Fletcher stated at the July 26,

2016 PDC, both the unauthorized use of the vehicle and appellant’s interim

unsatisfactory EPR were discussed with him. N.T. p. 288. Fletcher also noted that

the reasons for appellant’s unsatisfactory work performance were explained to him;

however, he was unable to provide a satisfactory explanation for his poor

performance.13 N.T. p. 288. As a result, discipline was imposed. N.T. p. 288.

Specifically, a Level-One ADLS was issued to appellant. N.T. p. 288; AA Ex. 13.

Fletcher explained a Level-One ADLS is the equivalent of a one-day suspension, but

the employee does not lose any money. N.T. p. 289. Fletcher stated a Level-One

ADLS is the appropriate level of discipline at this stage in the process and is

consistently applied to all employees. N.T. p. 289.

12 Fletcher testified she prepared the PDC notices, which were dated July 11, 2016 and July 14, 2016. N.T. p. 284;

AA Exs. 11, 12.

13 Fletcher noted that appellant was represented at all of the PDCs, which were held to address his work performance.

N.T. p. 290.

49

On cross-examination, Fletcher provided additional testimony

regarding the EPR process and appellant’s written reprimand. Regarding the EPR

process, Fletcher explained unsatisfactory EPRs are brought to the attention of

Human Resources. N.T. pp. 291-292. Fletcher stated, upon being informed of an

unsatisfactory EPR, she contacts the supervisor to discuss the corrective action that

the supervisor wishes to take to help the employee reach a satisfactory performance

level. N.T. p. 292. As to the accuracy of the EPR, Fletcher explained at the PDC,

which is part of the investigatory process, the employee is provided an opportunity

to respond to the EPR. N.T. pp. 293-294. Additionally, Fletcher clarified that the

PDC notice is generated by her and signed by the supervisor. N.T. p. 298.

Regarding appellant’s written reprimand, Fletcher clarified for

appellant that his written reprimand is not “still in process.” N.T. p. 294. Fletcher

testified the written reprimand had been issued and was part of appellant’s

employment record. N.T. p. 294; AA Ex. 7. Fletcher further clarified that, if there

was a pending grievance, it would not preclude the appointing authority from

progressing discipline based upon the written reprimand. N.T. pp. 295-297.

E. Karen Brown

Karen Brown is a Field Human Resource Officer III with the appointing

authority. N.T. p. 301. Brown has worked for the Commonwealth for thirty-two

years. N.T. p. 301. Brown noted that all of her years of service with the

Commonwealth have been in Human Resources. N.T. p. 301. Brown further noted

that, in her capacity as a Field Human Resource Officer III, she is responsible for all

aspects of human resources within Engineering District Six and the five counties

within that district. N.T. p. 302. Brown stated this includes implementing and

50

imposing disciplinary measures for the employees within that district. N.T. p. 303.

Additionally, Brown agreed that Fletcher’s testimony regarding corrective action

plans was accurate. N.T. p. 303.

Brown testified she attended a PDC in April 2016, at which appellant’s

EPR for rating period February 4, 2016 through March 17, 2016 was reviewed with

him. N.T. pp. 303-304. Brown stated, at this PDC, appellant failed to provide

satisfactory explanations for his behavior or the unsatisfactory rating. N.T. p. 304.

Brown noted that she did not attend any of appellant’s other PDCs because appellant

was uncomfortable with her presence. N.T. p. 304. However, Brown noted that she

was responsible for issuing the discipline that resulted from the PDCs. N.T. pp. 304-

305. Brown explained prior to issuing the discipline she reviewed a disciplinary

packet that was prepared by Fletcher and included the prior discipline, PDC notes, a

recommendation, and appellant’s responses. N.T. pp. 305-306, 313. In addition to

reviewing the disciplinary packet, Brown met with Fletcher and discussed the

matter. N.T. p. 305. Brown stated, in this matter, she approved the recommendation

and issued a Level One ADLS, which is equivalent to a one-day suspension without

the loss of salary.14 N.T. p. 305-306; AA Ex. 13.

14 Brown authenticated her signature on the Level-One ADLS and explained she is authorized to sign all discipline

letters for Kenneth McClain who is the District Executive. N.T. pp. 307-308; AA Ex. 13.

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II. Appellant’s Response

Appellant testified on November 18, 2015, he was found unfit for duty

and suspended.15 N.T. pp. 20, 342-343; Ap. Ex. 1. Appellant simultaneously claims

this discipline was removed from his employment record and remains on his record.

N.T. p. 342. Appellant claims that this discipline remains on his record because he

did not receive an official letter indicating that it was removed. N.T. p. 342.

Appellant further claims that this disciplinary matter “is connected to physical,

mental, or both physical and mental illness, which is connected to disability.”16 N.T.

p. 342. Therefore, appellant argues that the appointing authority regarded him as

disabled. N.T. pp. 345-346, 350. Appellant further argues that because the

appointing authority regarded him as disabled, he cannot be suspended for any

reason. N.T. p. 22.

15 By letter dated December 14, 2015, the appointing authority confirmed that appellant was suspended from

November 20, 2015 through December 1, 2015 for being unfit for duty and for inappropriate behavior. Ap. Ex. 1.

The December 14, 2015 letter further explained on November 18, 2015, appellant was found unfit for duty and on

November 20, 2015, appellant engaged in inappropriate behavior. Ap. Ex. 1.

16 On rebuttal, Hanney explained appellant was found unfit for duty based on threatening behavior that appellant

directed toward him. Hanney testified on November 18, 2015, he walked over to appellant’s cubicle, handed appellant

a PDC notice, and told appellant that he needed to report on the date scheduled. N.T. p. 355. Hanney stated after

returning to his cubicle, appellant came over, threw the paper down on his desk, and violently started pounding on the

desk. N.T. pp. 355-356. Hanney noted that he was sitting at his desk when appellant was pounding on it. N.T. p.

356. Hanney stated appellant glared at him, pumped out his chest, and said, “This has got to stop.” N.T. p. 356.

Hanney asked appellant to stop and return to his desk. Hanney also told appellant that he needed to calm down and

that he was “getting out of line.” N.T. p. 356. Appellant glowered, pulled back his arms, puffed out his chest, and

said in a menacing tone, “Good luck to you.” N.T. p. 356. Hanney again directed appellant to calm down and return

to his cubicle, to which appellant repeated, “Good luck to you.” N.T. p. 356. Hanney twice asked appellant whether

his statement was a threat, to which appellant responded, “Good luck to you,” and walked back toward his cubicle.

N.T. p. 357. Hanney notified his manager, who notified Human Resources. N.T. p. 357. Appellant was then escorted

from the building, at which time, appellant repeated the statement to Hanney’s manager. N.T. p. 357. Hanney stated

a PDC was subsequently held after which the discipline set forth in the December 14, 2015 letter was imposed. N.T.

p. 357; Ap. Ex. 1. Additionally, Hanney noted that he has received witness statements regarding numerous incidents

in which appellant has threatened others or acted inappropriately in the workplace. N.T. pp. 357-358.

52

Additionally, appellant testified he filed a discrimination claim with the

appointing authority’s Equal Opportunity Division. N.T. p. 23. Appellant stated his

discrimination complaint was approved on January 20, 2016.17 N.T. p. 23; Ap. Ex.

2. Appellant testified after filing the discrimination complaint, he received

unsatisfactory EPRs, attended PDCs, and was suspended. N.T. p. 23. Appellant

argues that the Level-One ADLS was issued in retaliation for filing the

discrimination complaint. N.T. p. 23.

Lastly, appellant testified he received a written reprimand for

unsatisfactory work performance, which he is currently grieving through his union.

N.T. pp. 25-26. Appellant argues that the pending grievance precludes the

appointing authority from progressing discipline. N.T. pp. 294-297.

III. Good Cause for Level-One ADLS

Good cause must relate to an employee’s competence and ability to

perform his job duties, Department of Corrections v. Ehnot, 110 Pa. Commw. 608,

532 A.2d 1262 (1987), or must result from conduct that hampers or frustrates the

execution of the employee’s duties. McCain v. Department of Education, 71 Pa.

Commw. 165, 454 A.2d 667 (1983). Having carefully reviewed the evidence, we

17 In support of his contention that his discrimination complaint was approved, appellant referred to a letter dated

January 20, 2016 from the appointing authority’s Labor Relations and Equal Opportunity Division. N.T. pp. 22-23;

Ap. Ex. 2. Contrary to appellant’s testimony, the January 20, 2016 letter merely acknowledges receipt of appellant’s

complaint and notes that the complaint will be reviewed in accordance with Management Directive 410.10, Amended.

Ap. Ex. 2.

53

find that the appointing authority has established the charge against appellant and

established good cause for the Level-One ADLS. In support of our conclusion, we

find credible18 the testimony provided by the appointing authority’s witnesses.

As a Civil Engineer in Transportation, appellant’s duties include

reviewing highway occupancy permit applications and any accompanying

attachments that are submitted to the appointing authority. See Finding of Fact 3.

As part of that review, appellant is responsible for generating comments in the

appointing authority’s electronic permitting system which detail any deficiencies in

the submitted documentation. See Finding of Fact 3. Here, the credible testimony

of the appointing authority’s witnesses established that appellant failed to

satisfactorily discharge this duty. See Findings of Fact 27-34. Additionally, the

credible testimony of the appointing authority’s witnesses established that appellant

failed to interact with his immediate supervisor during the review process, failed

discuss his work until after he has handed in his comments, directed a disrepsectful

remark toward his immediate supervisor and another supervisor, and engaged in

disruptive behavior that affected another unit. See Finding of Fact 33. Appellant

also failed to recognize and seek help with resolving issues pertaining to sight

distance and drainage. See Finding of Fact 34. As a result, appellant was issued an

overall rating of “unsatisfactory” on his interim EPR for rating period March 18,

2016 through June 20, 2016. See Finding of Fact 27. This unsatisfactory EPR was

the basis for the Level-One ADLS issued to appellant. N.T. p. 288; Comm. Ex. A.

18 It is within the purview of the Commission to determine the credibility of the witnesses. State Correctional

Institution at Graterford, Department of Corrections v. Jordan, 505 A.2d 339, 341 (Pa. Commw. Ct. 1986).

54

The appointing authority’s Working Rules establish that unsatisfactory

work performance is a minor rule violation. AA Ex. 17. Pursuant to the Working

Rules, minor rule violations can result in either verbal or written warnings, as well

as a suspension or more stringent disciplinary action if such violations continue after

verbal and written warnings. See Finding of Fact 45. Prior to receiving the Level-

One ADLS, which is the subject of the instant appeal, appellant received a written

reprimand, dated April 12, 2016, for similar misconduct—an overall unsatisfactory

EPR. See Finding of Fact 26. After being issued the written reprimand, appellant

was provided a second opportunity to improve his work performance through the

corrective action plan. See Finding of Fact 25. Appellant failed to improve, and as

a result, a Level-One ADLS was issued to appellant. See Findings of Fact 27-34.

Thus, the appointing authority established good cause for the discipline.

Nevertheless, appellant argues: (1) the evidence presented by the

appointing authority was insufficient to establish good cause; (2) the pending

grievance of his written reprimand precludes the appointing authority from

progressing discipline; and (3) he was not provided, nor was he encouraged or

mandated to participate in trainings that address highway occupancy permits or

working as a team player. N.T. pp. 120-121, 294-297; Ap. Brief. The Commission

is not persuaded by these arguments.

Regarding the sufficiency of the evidence, appellant asserts that his

EPR was fabricated and unjustified. Ap. Brief. We are not persuaded by this

allegation. Appellant provides no credible testimony to support this claim.

Furthermore, contrary to appellant’s claim, we find that the appointing authority

presented credible evidence that fourteen out of nineteen highway occupancy permit

applications reviewed by appellant required extensive corrections despite prior

55

related instruction being given to appellant. See Finding of Fact 29. We further find

that the appointing authority provided credible evidence detailing the specific

corrections that were made to two of these fourteen applications. See Findings of

Fact 30-32. These specific corrections alone are sufficient to establish an

unsatisfactory performance rating.

Pursuant to the corrective action plan, one instance during the rating

period where corrections to basic policy or routine engineering judgment are ignored

or missed is sufficient to establish that appellant failed to satisfactorily perform in

the areas of job knowledge/skills and work results. See Findings of Fact 10, 11. The

appointing authority presented credible evidence that appellant failed to identify the

basic policy issue with a right-in, right-out driveway for a proposed housing

development subdivision and failed to explore alternative options to increase the

safety of the intersection. See Findings of Fact 30, 42. Thus, appellant failed to

meet the standard for satisfactory performance in the areas of job knowledge/skills

and work results.

Appellant also failed to meet the work results standard indicating that

one instance within the rating period of failing to review all preliminary documents

thereby requiring supervisory corrections is sufficient for an unsatisfactory rating.

See Finding of Fact 11. The appointing authority presented credible evidence that,

during the fifth cycle review for an application for a small pharmacy, the appellant

requested documents that had previously been submitted by the applicant. See

Finding of Fact 31. Thus, appellant clearly did not review all preliminary

documents. As such appellant failed to meet the standard for a satisfactory

performance in the area of work results.

56

Further, the appointing authority presented credible evidence of

appellant’s unprofessional behavior and failure to communicate, which is sufficient

to establish his unsatisfactory performance in the areas of communications,

interpersonal skills, and work habits. Regarding these areas, appellant had been

informed that there would be zero tolerance for disrespectful, terse, or inflammatory

communications, as well as disruptive, unprofessional, or threating behavior. See

Findings of Fact 12, 14, 15. However, despite this instruction, appellant failed to

interact with his immediate supervisor during the review process, failed discuss his

work until after he has handed in his comments, directed a disrespectful remark

toward his immediate supervisor and another supervisor, and engaged in disruptive

behavior that affected another unit. See Finding of Fact 33.

Furthermore, we are not persuaded by appellant’s claim that his

supervisors are wrong in their assessment of his performance. The appointing

authority presented credible testimony that appellant repeatedly failed to follow the

appointing authority’s policies and the instructions they had given him. N.T. pp.

229-230, 255-257, 260, 263-264. Nonetheless, appellant suggests this credible

testimony is undermined by Human Resources’ lack of technical engineer

knowledge. We are not persuaded by this argument; nor do we accept appellant’s

argument that a third-party expert witness is necessary to prove that his performance

was unsatisfactory. Ap. Brief, pp. 1-2. We find the instruction given to appellant

by his supervisors was clear and appellant simply disregarded this instruction.

57

Additionally, we are not persuaded by appellant’s argument that there

is a pending grievance of his written reprimand, which would preclude progressive

discipline. There is no credible evidence that a grievance is pending. Furthermore,

the appointing authority presented credible testimony that the written reprimand was

part of appellant’s employment record at the time that the Level-One ADLS was

issued. N.T. p. 294; AA Ex. 7.

Lastly, we reject appellant’s assertion that his training was inadequate.

Contrary to appellant’s claim, the Commission finds that no progress has been made

by appellant because he refuses to listen to the instruction provided by his

supervisors. N.T. p. 234. The appointing authority presented credible testimony

that appellant was offered all available trainings and repeatedly received instruction

regarding right-in, right-out driveways. See Findings of Fact 40, 42. Also,

appellant’s immediate supervisor was available on a daily basis to answer

appellant’s questions and assist him with any issues. See Findings of Fact 43, 44. If

appellant was having difficulty understanding the policies or directives of his

supervisors, he failed to articulate these concerns.

Furthermore, the appointing authority has a reasonable expectation of

employee courtesy, cooperation, and professionalism. Not only is this a reasonable

expectation, of which appellant should have been aware, but there is credible

evidence that appellant had previously been disciplined for unprofessional behavior.

N.T. pp. 355-357. Therefore, we reject appellant’s claim that a lack of training

contributed to his continued unprofessional behavior which resulted in numerous

58

complaints. The Commission finds that the appointing authority has shown that

appellant’s disrespectful and disruptive behavior is a breach of reasonable

performance standards, and thus, good cause for suspension. N.T. pp. 104-106, 108-

109, 232-233, 249; see Finding of Fact 33.

Based on the above, the Commission is not persuaded by appellant’s

attempts to shift his responsibility to others. Misconduct amounting to violation of

law, rule, or lawful and reasonable departmental orders can constitute good cause

when suspending an employee. 4 Pa. Code. § 101.21 (2004). Here, the appointing

authority presented credible evidence that appellant failed to maintain the standards

of the performance outlined in the corrective action plan, which resulted in an

unsatisfactory EPR for rating period March 18, 2016 to June 20, 2016. It was

appellant’s responsibility to generate comments in the appointing authority’s

electronic permitting system detailing deficiencies in applications submitted for

highway occupancy permits. The credible testimony of the appointing authority’s

witnesses established that appellant failed to satisfactorily discharge this duty. We

find that appellant’s failure to perform this responsibility hampered and frustrated

his duties as a Civil Engineer Transportation, thereby providing good cause for a

Level-One ADLS. McCain, supra. We further find that appellant’s disrespectful

and unprofessional behavior violates the reasonable expectation that an employee

conduct himself/herself with courtesy, cooperation, and professionalism, which also

provides good cause for the Level-One ADLS.

59

IV. Appellant’s Discrimination Claims19

Appellant alleged discrimination based upon race, national origin,

disability, violation of the Civil Service Act/Rules, and other non-merit factors.

Comm. Ex. B. Specifically, appellant alleged a non-merit factor based on retaliation

for filing an equal employment opportunity complaint in January 2016. N.T. p. 23,

Comm. Ex. B. Having carefully reviewed the evidence, the Commission finds that

appellant has not met his burden of establishing discrimination based on any of these

factors.

Appellant presented no evidence as to his race or national origin, nor

did he present any evidence showing that the appointing authority treated him

differently from similarly situated employees. Appellant also failed to present any

credible evidence that he was disabled or regarded as disabled. Appellant argues

that the appointing authority regarded him as disabled because he was found unfit

for duty and suspended in 2015. N.T. pp. 20, 342-343, 345-346, 350; Ap. Ex. 1.

There is no credible evidence that the unfit for duty charge is related in any way to

a disability. To the contrary, the appointing authority presented credible evidence

19 Appellant asserts that he was denied due process at the hearing on the instant matter. Specifically, appellant claims

that: (1) he did not have a full and fair opportunity to cross-examine the appointing authority’s witnesses; and (2) he

requested and was denied an extra day to present his evidence. Ap. Brief, p. 1. As evidenced by the above summary

of the testimony, appellant was provided a full and fair opportunity to cross-examine the appointing authority’s

witnesses on relevant issues. Additionally, contrary to appellant’s claim, appellant did not request to schedule another

day for testimony. N.T. pp. 332-333. When asked whether he wanted to provide his testimony on the day of the

hearing or schedule another day, appellant responded, “I’ll give my testimony today.” N.T. pp. 332-333. Appellant

was also provided an opportunity to call additional witnesses; however, he indicated that he did not have any witnesses

other than himself. N.T. p. 335. Upon taking the stand, appellant stated he did not have any testimony, and then

rested. N.T. p. 335. Subsequently, appellant asserted that he forgot to present testimony regarding his disability

discrimination claim, and the record was reopened so that appellant could present additional testimony regarding that

claim. N.T. pp. 341-342, 345. The Commission has thoroughly reviewed the record and after careful consideration,

we find that the appellant’s due process claims are not substantiated.

60

that the unfit for duty charge was based on unprofessional behavior. N.T. pp. 355-

358. Therefore, the Commission finds that appellant’s evidence of discrimination

based on race, national origin, and disability is too vague to show that it is more

likely than not that the appointing authority issued a Level-One ADLS for those

reasons.

Likewise, appellant has failed to present credible evidence establishing

a temporal connection between the complaint that he filed in January 2016 and the

issuance of the Level-One ADLS, which is the subject of the instant appeal.

“[D]iscrimination cannot be inferred…There must be some affirmative support

adduced to sustain the allegations of discrimination.” Tempero v. Dep’t of

Environmental Resources, 403 A.2d 226, 229 (Pa. Commw. 1979). Here,

appellant’s performance problems persisted before he filed the January 2016

complaint. Appellant received his first unsatisfactory EPR in October 2015. See

Finding of Fact 6. As a result of this unsatisfactory EPR, a corrective action plan

was implemented in December 2015. See Finding of Fact 7. Based on appellant’s

repeated resistance to his supervisors’ instructions under this corrective action plan,

appellant received three unsatisfactory interim EPRs. See Findings of Facts 18-20,

27. These unsatisfactory interim EPRs resulted in progressive discipline for

appellant’s continued poor performance. See Findings of Fact 1, 26.

Considering the above, the Commission finds appellant’s evidence of

discrimination related to his race, national origin, and disability, as well as his

evidence of retaliation, is too vague to show that it is more likely than not that the

appointing authority issued the Level-One ADLS for those reasons. The

Commission concludes that appellant did not present evidence of any conduct by the

appointing authority that would be sufficient to make out a case that he was

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suspended for discriminatory reasons. While the Commission recognizes the burden

of establishing a prima facie case cannot be an onerous one, Nwogwugwu, supra., in

this matter, appellant’s evidence is not enough to show that the discipline was

motivated by discrimination.

Furthermore, assuming arguendo that appellant had met his initial

burden of proof, the appointing authority established that there were legitimate non-

discriminatory reasons for discipline.20 Extensive credible evidence was presented

by the appointing authority, which establishes that the EPR which formed the basis

of the Level-One ADLS was based upon appellant work performance. See Findings

of Fact 27-34. Also, there is no evidence of disparate treatment because the process

used to issue EPRs to appellant, is the same process used for all employees. N.T. p.

113. Further, we find credible Hanney and Otten’s testimony that they did not base

appellant’s EPR ratings on discriminatory factors. N.T. pp. 101, 237-238.

Accordingly, we enter the following:

CONCLUSIONS OF LAW

1. The appointing authority has presented evidence

establishing good cause for suspension under

Section 803 of the Civil Service Act, as amended.

20 When the initial burden of proving a prima facie case of employment discrimination is met, the burden of production

shifts to the appointing authority to clearly advance a legitimate non-discriminatory reason for the employment action

through the introduction of admissible evidence. Nwogwugwu, 594 A.2d at 850.

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2. Appellant has failed to present evidence

establishing discrimination violative of Section

905.1 of the Civil Service Act, as amended.

ORDER

AND NOW, the State Civil Service Commission, by agreement of its

members,21 dismisses the appeal of Farzin Afrasiabipour challenging his Level-One

Alternative Discipline in Lieu of a one-day suspension from regular Civil Engineer

Transportation employment with the Pennsylvania Department of Transportation

and sustains the action of the Pennsylvania Department of Transportation in the

Level-One Alternative Discipline in Lieu of a one-day suspension of

Farzin Afrasiabipour from regular Civil Engineer Transportation employment.

State Civil Service Commission

____________________________________

Gregory M. Lane

Commissioner

____________________________________

Bryan R. Lentz

Commissioner

Mailed: May 21, 2019

21 Chairman Teresa Osborne, who took office March 22, 2019, did not participate in the discussion of or decision for

this appeal.