COMMONWEALTH OF PENNSYLVANIA

Duane A. Hobbs : State Civil Service Commission

:

v. :

:

Pennsylvania Department of :

Transportation : Appeal No. 29955

Duane A. Hobbs Heather M. Sharp

Pro Se Attorney for Appointing Authority

ADJUDICATION

This is an appeal by Duane A. Hobbs challenging his removal from

regular Roadway Programs Coordinator employment with the Pennsylvania

Department of Transportation. A hearing was held on October 18, 2018, at the

Strawberry Square Complex in Harrisburg, 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 the appointing authority established just

cause for appellant’s removal and whether appellant has established that his removal

was the result of discrimination.

2

FINDINGS OF FACT

1. By letter dated June 1, 2018, appellant was notified

of his removal from regular Roadway Programs

Coordinator employment with the appointing

authority, effective June 4, 2018. Comm. Ex. A;

AA Ex. 4.

2. The letter provided:

The reason for your removal is your

Unsatisfactory Work Performance.

Specifically, you failed to properly

procure the correct quantities and

types of materials for county

maintenance projects.

A Pre-Disciplinary Conference was

held with you on April 2, 2018, and the

responses you gave were not

acceptable. Prior related discipline

includes a Level 2 Alternative

Discipline in Lieu of Suspension

(ADLS) with a Final Warning for

Unsatisfactory Work Performance

issued on October 12, 2017, and a

Level 1 ADLS for Unsatisfactory

Work Performance, Failure to Follow

Procurement Policies, and Violation of

Purchasing Card Procedures issued on

August 17, 2017.

Comm. Ex. A; AA Ex. 4.

3

3. The appeal was properly raised before this

Commission and was heard under Section 951(a)

and Section 951(b) of the Civil Service Act, as

amended.

4. Appellant was employed by the appointing

authority as a Roadway Programs Coordinator

(hereinafter “RPC”) from May 8, 2017 to June 4,

2018. N.T. pp. 15-16, 297-298.

5. Appellant has a prior progressive disciplinary

history with the appointing authority. On

August 17, 2017, appellant received a Level-One

Alternative Discipline in Lieu of Suspension

(hereinafter “ADLS”), which served as a one-day

suspension for unsatisfactory work performance,

failure to follow procurement policies, and violation

of purchasing card procedures. On October 12,

2017, appellant received a Level-Two ADLS with a

final warning for unsatisfactory work performance

due to appellant’s failure to satisfactorily perform

purchasing and payroll processing duties. N.T. pp.

247-248, 249; AA Exs. 8, 9.

4

6. When he started in the RPC position, appellant

received formal and informal training on how to

perform the RPC duties from Roadway Programs

Specialist Timothy Noel and Roadway Programs

Manager Scott Chronister. N.T. pp. 57-58.

7. As a RPC and pursuant to his training, appellant was

responsible for determining the correct quantity and

type of materials needed for an assigned paving

project and for performing the following paving

related duties:

Estimates quantities of materials and

time needed to assure county

operations will run without

interruption, which includes bidding of

rented equipment, ordering bituminous

and aggregates, and ordering winter

materials.

Manages the materials component of

Plant Maintenance, E-Procurement

and SRM Systems for the County.

Oversees the ordering and

management of all bulk materials for

field maintenance, including but not

limited to, aggregate, blacktop, liquid

bituminous, and salt.

N.T. pp. 51-52, 54-55; AA Ex. 1.

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8. Appellant was also trained and responsible for

communicating with the assistant managers to

determine what materials are needed for a project.

N.T. pp. 49, 59; AA Ex. 5.

9. Appellant was responsible for calculating and

procuring the final, correct quantities and types of

materials for the Interstate 83 Project and the State

Route 425 Project pursuant to the District’s bid

cycle. N.T. pp. 71, 136, 145-146, 183-185, 186-

187, 190-191; AA Ex. 2.

10. The bid cycle is the appropriate timeframe for a

RPC to order the required materials for his assigned

projects in order to prevent rash decisions,

difficulties, and errors in completing the projects.

N.T. pp. 67-68, 186-187; AA Ex. 2.

11. The Interstate 83 Project was a base repair job

designed to fix the roadway’s potholes between

Exits 10 and 16. N.T. pp. 142-143, 145.

12. Assistant County Maintenance

Manager Clint Leakway worked with appellant on

the Interstate 83 Project, where Leakway calculated

the project’s initial estimates. N.T. pp. 142-143.

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13. The Interstate 83 Project’s initial estimates were

3,000 tons of nine-and-a-half-millimeter “E mix”

for the project’s base repair, where the northbound

and the southbound roadways required 1,500 tons

of blacktop. N.T. pp. 142-143.

14. Leakway provided the Interstate 83 Project’s initial

estimates and start date of April 2, 2018, to

appellant during the staff meeting on February 28,

2018. N.T. pp. 65, 66, 147-148.

15. The State Route 425 Project required base repair,

which involves rutting, cracking, and milling the

pavement to provide the proper blacktop onto the

roadway. N.T. p. 62.

16. Assistant County Maintenance

Manager Gary Ishman worked with appellant on

the State Route 425 Project, where Ishman

calculated the project’s initial estimates. N.T. pp.

97, 103-104, 135.

17. The State Route 425 Project’s initial estimate 1,600

tons of the twenty-five-millimeter blacktop for the

project’s base repair and 8,700 tons of the nineteen-

millimeter blacktop for the project’s surface

treatment. N.T. pp. 103, 104, 135.

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18. Ishman provided the calculations to appellant

during the staff meeting on February 28, 2018. N.T.

pp. 65, 66, 100-101, 104-105, 106, 108-109.

19. Once he received the Assistant County Maintenance

Managers’ calculations, appellant was responsible

for ordering the appropriate type and amount of

materials for both District projects by March 2,

2018 pursuant to the bid cycle. N.T. pp. 72, 101-

102, 106, 109-110, 112-113; AA Ex. 2.

20. On March 16, 2018, Ishman discovered appellant

failed to order the twenty-five-millimeter blacktop

required for the State Route 425 Project’s base

repair. N.T. pp. 63-64, 115, 119-120, 168; AA Ex.

7.

21. After discovering appellant’s failure, Ishman and

Senior Highway Maintenance Manager Glenn

Rowe contacted Roadway Programs Specialist

Timothy Noel informing him about appellant’s

failure to procure the State Route 425 Project’s

materials. N.T. pp. 198-199, 217; AA Ex. 7.

22. Similarly, Rowe and Leakway contacted Noel

regarding the status of the Interstate 83 Project’s

materials after learning appellant failed to procure

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the State Route 425 Project’s materials. Noel

learned appellant failed to timely procure the

required 3,000 tons of nine-and-a-half-millimeter

blacktop called “E-mix” for the Interstate 83

Project. N.T. pp. 62-63, 198-199, 201; AA Ex. 6.

23. Rowe contacted Assistant District

Executive David Rock and Human

Resource Analyst Angela Kreiser to discuss

appellant’s work performance. N.T. p. 74.

24. After meeting with Rock and Kreiser, Rowe

gathered witness statements from the involved

Assistant County Maintenance Managers and

concluded appellant’s failures warranted a pre-

disciplinary conference (hereinafter “PDC”). N.T.

p. 75; AA Ex. 3.

25. Appellant attended his PDC on April 2, 2018. N.T.

pp. 30, 76-77; AA Ex. 3.

26. After appellant’s PDC, Human Resource

Analyst Angela Kreiser, Rock, and Rowe

concluded removing appellant from regular RPC

employment was appropriate. N.T. pp. 255-256.

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27. Human Resource Analyst 3 Brian Okuniewski

informed Kreiser that appellant’s removal was

approved and Kreiser prepared appellant’s removal

letter. Comm. Ex. A; N.T. pp. 259, 280; AA Ex. 4.

DISCUSSION

The issues in the present appeal are whether the appointing authority

established just cause for appellant’s removal and whether appellant has established

that his removal was the result of discrimination. The appointing authority charged

appellant with unsatisfactory work performance for failing to properly procure the

correct quantities and types of materials for county highway maintenance projects.

Comm. Ex. A.

The Commission will first consider whether the appointing authority

had just cause to remove appellant. The appointing authority bears the burden of

proving just cause for removal of a regular status employee and must prove the

substance of the charges underlying the removal. Long v. Commonwealth of

Pennsylvania Liquor Control Board, 112 Pa. Commw. 572, 535 A.2d 1233 (Pa.

Commw. 1988). Factors supporting the just cause removal of a civil service

employee must be related to the employee's job performance and touch in some

logical manner upon the employee's competency and ability to perform his job

duties. Woods v. State Civil Service Commission, 590 Pa. Commw. 337, 912 A.2d

803 (2006).

10

In support of its charge, the appointing authority presented the

testimony of Assistant District Executive David Rock, Senior Highway Maintenance

Manager Glenn Rowe, Assistant County Maintenance Manager Gary Ishman,

Assistant County Maintenance Manager Clint Leakway, Roadway Programs

Manager Scott Chronister, Roadway Programs Specialist Timothy Noel, Human

Resource Analyst Angela Kreiser, and Human Resource Analyst 3 Brian

Okuniewski. In response, appellant testified on his own behalf.

Senior Highway Maintenance Manager Glenn Rowe and Assistant

District Executive David Rock described appellant’s responsibilities as a Roadway

Programs Coordinator (hereinafter “RPC”). N.T. p. 15. According to Rock,

appellant began his employment as a RPC in May 2017. N.T. p. 16. Rock explained

a RPC’s duties and responsibilities include procuring all goods and services,

including paving materials; assisting the highway maintenance manager and senior

highway maintenance manager with establishing the budgets and ensuring that

projects are completed; attending weekly staff meetings; and interacting daily with

the manager, the assistant managers, the office staff, and the field crews. N.T. pp.

17-18; AA Ex.1.

Rowe testified a RPC is responsible for determining the amount and

type of materials needed for a paving project. N.T. pp. 51-52. Rowe explained how

appellant’s position description also sets forth the following paving-related duties:

Estimates quantities of materials and time needed to assure

county operations will run without interruption, which

includes bidding of rented equipment, ordering

bituminous and aggregates, and ordering winter materials.

Manages the materials component of Plant Maintenance,

E-Procurement and SRM Systems for the County.

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Oversees the ordering and management of all bulk

materials for field maintenance, including but not limited

to, aggregate, blacktop, liquid bituminous, and salt.

N.T. pp. 54-55; AA Ex. 1 (p.2).

Additionally, a RPC is also responsible for communicating with the

assistant managers to determine what materials are needed for a project. N.T. p. 49.

Rowe explained that upcoming projects are discussed at staff meetings and a

calendar is produced, which sets forth when the materials for a project are needed

pursuant to the bid cycle. N.T. pp. 49-50. The weekly staff meeting reviews the

upcoming projects, the required cover equipment, and the required materials, such

as blacktop, for upcoming projects. Rowe, the assistant managers, the equipment

manager, and RPCs, including appellant, participate in the weekly staff meetings.

Rowe testified during the staff meeting on February 28, 2018, the participating

members discussed the required materials for the Interstate 83 Project and the State

Route 425 Project. N.T. pp. 65, 66.

Rowe explained appellant would have known his ordering

responsibilities for the Interstate 83 Project and the State Route 425 Project through

Ishman’s organized calendar, as well. According to Rowe, Ishman created an

organized calendar listing the appointing authority’s projects and required materials

in accordance with the bid cycle. N.T. pp. 66-67. Ishman distributed the calendar

to appellant. N.T. p. 108. The bid cycle is the appropriate timeframe for a RPC to

order the required materials for his assigned projects in order to prevent rash

decisions, difficulties, and errors in completing the projects. N.T. pp. 67-68, 186-

187; AA Ex. 2. Rowe testified the bid cycle presented the required materials for the

State Route 425 Project but not the Interstate 83 Project because the Interstate 83

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Project’s specialized materials were hauled by the appointing authority. N.T. p. 69;

AA Ex. 2. As a RPC, appellant was responsible for determining the final estimates

regarding the proper type and amount of materials necessary for assigned projects.

N.T. pp. 136, 145-146, 183, 184-185, 190-191. A RPC is then responsible for

contacting the district office to have the materials ordered. N.T. p. 50. Rowe

emphasized the essential functions of appellant’s position require him to

communicate effectively by oral, written, and electronic means. N.T. p. 55; AA Ex.

1 (p. 4). A RPC must provide the materials by the estimate date outlined on the

district’s bid cycle. N.T. p. 71. Rowe testified appellant was responsible for

ordering the projects’ materials by March 2, 2018 in conformity with the bid cycle.

N.T. p. 72; AA Ex. 2.

Assistant County Maintenance Manager Gary Ishman worked with

appellant on the State Route 425 Project. N.T. p. 97. The State Route 425 Project

required base repair. Base repair involves rutting, cracking, and milling the

pavement to provide the proper blacktop onto the roadway. N.T. p. 62. Ishman and

his crew were responsible for the State Route 425 Project’s base repair, surface

treating, paving, guiderail replacement, and total reconstruction of the roadway’s

repairs. N.T. pp. 98-99. Ishman calculated the estimated appropriate measurements

for the State Route 425 Project’s materials. The calculations were 1,600 tons of the

twenty-five-millimeter blacktop for the project’s base repair and 8,700 tons of the

nineteen-millimeter blacktop for the project’s surface treatment. N.T. pp. 103, 104,

135. Ishman emphasized the State Route 425 Project was time sensitive because a

bridge was being repaired in the middle of the project during early May 2018, which

would bring heavy construction trucks onto the newly paved roadway. N.T. pp. 103-

104.

13

After several staff meetings related to the State Route 425 Project

beginning in fall of 2017, Ishman provided the calculations to appellant on

February 28, 2018. N.T. pp. 100-101, 104-105, 106, 108-109. Roadway Programs

Specialist Timothy Noel and Ishman testified once appellant received his

calculations, appellant was responsible for ordering the appropriate type and amount

of materials to the District by March 2, 2018. N.T. pp. 101-102, 106, 109-110, 112-

113, 216; AA Ex. 2. Specifically, for the State Route 425 Project, Noel explained

how appellant was responsible for submitting a job form to Noel in “XL” format

describing the material’s type, quantity, location, and specifications. N.T. p. 211.

Noel explained the bid cycle’s deadline was on March 21, 2018, because the material

requests must be submitted before the deadline or the secure drive holding the

requests would lock down and not allow any further material requests. N.T. pp. 212-

213, 238; AA Ex. 2.

Ishman explained according to the bid cycle, the State Route 425

Project’s materials bid must be awarded and posted by April 6, 2018. N.T. pp. 112-

113. According to Ishman, appellant did not return to him for any questions or to

confirm what materials were required for the State Route 425 Project. N.T. pp. 111,

124. Ishman testified appellant had all the information required to order the correct

type and amount of materials for the State Route 425 Project. N.T. p. 123. On

February 28, 2018, Roadway Programs Manager Scott Chronister sent an email

correspondence reminding appellant to submit the request for the State Route 425

Project’s materials. N.T. pp. 219, 221; AA Ex. 7. According to Roadway Programs

Specialist Noel, appellant initially submitted a request for 8,250 tons of nineteen-

millimeter blacktop for the State Route 425 Project on February 28, 2018. N.T. pp.

224-225.

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On March 16, 2018, Ishman realized there were issues regarding the

State Route 425 Project’s materials. Ishman was training in Uniontown Gap,1 where

he encountered Chronister. According to Ishman, Chronister informed him that he

did not have the State Route 425 Project’s materials. N.T. pp. 115, 168. Once

informed by Chronister, Ishman returned to the York County office and approached

appellant. According to Ishman, when asked if he ordered the twenty-five-

millimeter blacktop for the State Route 425 Project, appellant, “said he didn’t know

anything about it. And I told him, I said we discussed it at multiple staff meetings,

that, you know, we have to do the base repair first.” N.T. p. 116.

Ishman expressed how he felt in a panic because the March 2, 2018,

deadline for ordering the materials had passed and he was unsure how the materials

would arrive to the project site before the bridge would be under construction. N.T.

pp. 116-117. While speaking to appellant, Ishman noticed appellant’s notes, which

“said 19 millimeter, 25 millimeter, and nine and a half millimeter.” N.T. p. 117.

Ishman testified how appellant suggested the State Route 425 Project could simply

use the nineteen-millimeter blacktop for the base repair. However, Ishman corrected

appellant by explaining if the nineteen-millimeter blacktop was used for the base

repair, then the project would be 1,600 tons short of the required nineteen-millimeter

blacktop for the required paving. N.T. p. 118. Ishman explained to appellant how

the State Route 425 Project is on a timeline because the bridge will be under

construction causing a detour. N.T. pp. 118-119. Shortly thereafter, on March 16,

2018, appellant submitted an amended request for an additional 1,000 tons of

1 The location for the described training session has been called “Uniontown Gap,” “Indiantown Gap,” and “Fort

Indiantown Gap.” N.T. pp. 115, 168, 198. All are presumed to reference the same training.

15

nineteen-millimeter blacktop and 1,600 tons of twenty-five-millimeter blacktop for

the State Route 425 Project’s materials to Noel. N.T. pp. 221-222, 225, 227-228;

AA Ex. 7.

Meanwhile, Assistant County Maintenance Manager Clint Leakway

worked with appellant on the Interstate 83 Project. N.T. pp. 142-143. Leakway

explained the Interstate 83 Project was a base repair job between Exits 10 and 16.

Leakway calculated estimates for how much material and what type of material was

required for the Interstate 83 Project. N.T. p. 145. Leakway’s calculated estimate

was 3,000 tons of nine-and-a-half-millimeter “E mix” for the project’s base repair,

because both the northbound and the southbound roadways each required 1,500 tons

of blacktop. N.T. p. 143. The Interstate 83 Project required the nine-and-a-half-

millimeter “E-mix” because of the volume of the Interstate’s daily traffic. N.T. p.

144.

Leakway provided his calculated estimates and the Interstate 83

Project’s start date of April 2, 2018 to appellant during the staff meeting on

February 28, 2018. N.T. pp. 147-148. Additionally, Leakway told appellant the

appointing authority would itself haul the 3,000 tons of nine-and-a-half-millimeter

“E-mix” to the project’s site. N.T. p. 148. Due to his history of working on

Interstate 83, Leakway was familiar with the roadway’s “E-mix.” N.T. pp. 146, 151.

Leakway testified that in his experience, providing appellant with the Interstate 83

Project’s materials on February 28, 2018, would give appellant enough time to

acquire the materials before the project’s start date on April 2, 2018. N.T. p. 152.

Leakway explained once a purchase order is requested, it is processed within two to

three weeks based on what type of material is requested. N.T. p. 152. After Leakway

gave appellant the Interstate 83 Project’s estimated calculations and material details,

16

appellant never asked any follow up questions or requested assistance with the

project. N.T. pp. 152, 158. Leakway expected appellant to communicate to him

when he requested the purchase order. N.T. pp. 152-153.

According to Roadway Programs Specialist Noel, the materials

involved for the Interstate 83 Project were not on the appointing authority’s source

pickup list. As a result, appellant was responsible for sending out an individual bid

for the specific, specialized materials. N.T. p. 199. Once a RPC submits the

individual bid for the specialized materials, Noel forwards the request to different

entities for approval. According to Noel, a specialized request for materials would

take two and a half weeks to three weeks at a minimum to acquire a project’s

materials. N.T. p. 200.

In early March 2018, Leakway encountered Ishman, who informed him

how appellant failed to acquire the State Route 425 Project’s materials. N.T. p. 154.

After speaking with Ishman, Leakway contacted Noel and asked him to check on the

status of the Interstate 83 Project’s purchase order for its materials. Within a half

hour, Noel reported the Interstate 83 Project’s purchase order was never requested.

N.T. pp. 155-156. Later, on March 19, 2018, appellant requested 3,000 tons of the

nine and a half millimeter “E-mix.” N.T. pp. 205, 207; AA Ex. 6. Noel was

informed appellant was told in February 2018 to request the materials for the

Interstate 83 Project’s start date in April 2018. N.T. p. 208.

Upon learning the project’s purchase order was never requested,

Leakway approached Senior Highway Maintenance Manager Rowe and informed

him about appellant’s failure to properly acquire the Interstate 83 Project’s materials.

N.T. p. 156. Similarly, Ishman approached Rowe, Ishman’s supervisor, and reported

17

appellant’s failure to properly order the State Route 425 Project’s materials. Ishman

testified appellant never told anyone in the county he did not order the twenty-five-

millimeter blacktop for the State Route 425 Project. N.T. pp. 120-121. Chronister

discussed with Noel and Ishman about how to acquire the materials and who would

transport the materials to the jobsite. N.T. p. 169. Chronister testified appellant

never contacted him about having issues procuring the materials for the State Route

425 Project and the Interstate 83 Project. N.T. pp. 170-171. Based on his meetings

with Ishman, Chronister, and Leakway, Rowe explained appellant did not timely

order the required 3,000 tons of nine-and-a-half-millimeter blacktop called “E-mix”

for the Interstate 83 Project. N.T. pp. 62-63. Appellant also failed to order the

twenty-five-millimeter blacktop required for the State Route 425 Project’s base

repair. N.T. pp. 63-64.

Rock, Rowe, Ishman, Leakway, and Noel emphasized how appellant’s

failures to procure the materials for the Interstate 83 Project and the State Route 425

Project adversely impacted operations. Rock emphasized appellant’s unsatisfactory

work performance affected operations because other employees had to help do

appellant’s job, which prevented these employees from performing their own work.

N.T. pp. 28-29. Rowe explained how appellant’s failure to properly order the

projects’ materials caused an “immediate panic because you actually have a pretty

tight schedule. So a lot of panic happened at that point. It causes a lot of people in

the district to get involved in trying to get this material ready as soon as possible.”

N.T. pp. 73-74. Rowe provided if materials are not timely ordered for a project,

other projects suffer due to the district’s tight project schedule. N.T. pp. 79-80.

Ishman emphasized how appellant’s failures in ordering the State Route 425

18

Project’s materials led the team into a “panic mode.” N.T. p. 123. Since appellant

failed to submit the State Route 425 Project’s job request by March 2, 2018, Noel

only had three business days to acquire the project’s materials. N.T. p. 231.

Leakway testified the Interstate 83 Project’s start date was pushed back

to April 12, 2018 due to appellant’s failure to acquire the materials. N.T. p. 157.

Noel explained appellant’s failure to timely request the Interstate 83 Project’s

material shortened the timeframe for procuring materials, which normally takes

three weeks with an available vendor. N.T. p. 209. Noel described how appellant’s

failure to procure materials affected the projects’ timing, the media releases which

informed the public about the projects’ roadway closures, and the vendors. N.T. pp.

150, 201-202, 203, 204. Noel emphasized that shortening the bid period affected

vendors because “[s]ome vendors might not have the time or the manpower to

actually put in a legitimate bid within that timeframe.” N.T. pp. 202-203.

Notably, Rock, Rowe, and Noel presented how appellant’s poor

performance was not due to a lack of training. When appellant started in the position

of RPC, he received formal and informal training on how to perform the RPC duties

from Noel and Chronister. N.T. pp. 57-58. Noel stayed in York County for two to

three weeks to train appellant about a RPC’s daily operations and to oversee

appellant’s smooth transition into the position. N.T. pp. 180-181, 182. Noel trained

appellant about a RPC’s responsibilities for selecting the correct type and quantity

of materials for a project. N.T. p. 185. Noel also developed calculators to assist

appellant to calculate the material’s quantity. N.T. pp. 183-184. Noel provided and

explained the calculators, the SAP tab, which a RPC uses to calculate the final

estimate, and the appointing authority’s “apps” to appellant. N.T. p. 185. Noel

trained appellant regarding the appropriate timeframes, such as bid cycles, for

19

procuring materials for projects. Noel further trained appellant regarding the

required pieces of information for paving projects, such as abiding by the calendar’s

schedule. N.T. p. 189. According to Noel, appellant appeared well-versed in the

SAP system to track and obtain information. Noel explained appellant was told how

the weekly staff meetings were the primary information gathering tool for a RPC.

Noel identified appellant’s Employee Training Transcript. N.T. p. 192;

AA Ex. 5. He also explained appellant completed the following courses related to a

RPC’s duties: RPC/ Business Manager Academy, R3 Purchasing, Account Codes,

Physical Inventory Counter, Physical Inventory Custodian, SAP Plant Maintenance

Overview, Highways Overview, and SAP Materials Overview. N.T. pp. 193, 194,

195, 196; AA Ex. 5. Noel emphasized appellant had the resources available and had

sufficient knowledge in order to procure materials correctly. N.T. p. 196. Noel

testified appellant called him less frequently than other RPCs who call for assistance.

N.T. pp. 197-198.

Appellant also received communications training from Noel to stress

the importance of preparing materials for paving projects. N.T. p. 59. Rock, Rowe,

and Noel suggested to appellant repeatedly he could call for assistance from the

seven RPCs in the District, who volunteer to travel to York to help appellant. N.T.

pp. 27, 35-36, 59-60. Rowe further ensured appellant he could reach out to him if

appellant faced any issues. Nonetheless, appellant did not express having issues

with performing his duties and did not ask for more training to help him perform

properly. N.T. p. 61.

20

Human Resource Analyst Angela Kreiser was involved in appellant’s

prior progressive disciplinary history. N.T. pp. 245-246. First, on August 17, 2017,

appellant received a Level-One Alternative Discipline in Lieu of Suspension

(hereinafter “ADLS”), which served as a one-day suspension for unsatisfactory work

performance, failure to follow procurement policies, and violation of purchasing

card procedures. N.T. pp. 247-248; AA Ex. 8. At the time of appellant’s first pre-

disciplinary conference (hereinafter “PDC”), Assistant District Executive Rock also

became aware appellant was having communication issues because he was not

putting out work orders for the field, which resulted in numerous payroll errors. N.T.

pp. 23-24. Rock advised appellant to call the other RPCs in the county because the

other RPCs had been doing this type of work longer and would be able to give

appellant answers quickly. N.T. p. 23-24. Rock also stopped by a couple of different

times to open a line of communication with appellant in an attempt to help him. N.T.

pp. 24-25. However, appellant did not accept and follow Rock’s advice and his

unsatisfactory work performance issues continued. N.T. pp. 24-25. On October 12,

2017, appellant received a Level-Two ADLS2 with a final warning for unsatisfactory

work performance due to appellant’s failure to satisfactorily perform purchasing and

payroll processing duties. N.T. pp. 248-249; AA Ex. 9. Additionally, Noel

described how throughout the previous season, he would adjust bid cycles because

appellant was incorrectly performing his duties as a RPC. N.T. p. 234. Kreiser

explained appellant’s unsatisfactory work performance relating to the Interstate 83

Project and the State Route 425 Project was more serious than his previous work

performance failures because of the projects’ time sensitivity. N.T. pp. 261-262.

2 At the hearing on the instant appeal, the appointing authority requested that the Commission take administrative

notice of its adjudication of Duane A. Hobbs v. Pennsylvania Department of Transportation, Appeal No. 29769. N.T.

p. 249. Appellant did not object to this request. N.T. p. 249. The Commission takes administrative notice of our

decision in the matter of Duane A. Hobbs v. Pennsylvania Department of Transportation, where we concluded the

appointing authority presented evidence establishing good cause for imposing a Level-Two ADLS under Section 803

of the Civil Service Act, as amended. Duane A. Hobbs v. Pennsylvania Department of Transportation, Appeal No.

29769.

21

When he became aware of appellant’s failures in procuring the projects’

materials, Senior Highway Maintenance Manager Rowe contacted Rock and Kreiser

to discuss appellant’s unsatisfactory work performance regarding the Interstate 83

Project and the State Route 425 Project. N.T. pp. 74, 250-251. After meeting with

Rock and Kreiser, Rowe gathered witness statements from the involved assistants.

Rowe and Kreiser concluded a PDC was warranted based on appellant’s failures.

N.T. pp. 75, 250.

Rowe, Rock and Kreiser attended appellant’s PDC on April 2, 2018.

N.T. pp. 30, 76-77; 254; AA Ex. 3. Kreiser and Rowe coordinated in creating and

revising the PDC’s questions, which were based on the witness statements

information regarding the projects’ materials. N.T. pp. 76-77, 252, 259. Kreiser

determined what the appointing authority’s charges were going to be presented in

appellant’s PDC notice. Kreiser explained how unsatisfactory work performance is

when an employee fails to perform his job duties as described in the job’s

description. N.T. pp. 262-263. Kreiser selected the charge of unsatisfactory work

performance because appellant’s actions revealed he was not performing his job

duties correctly. N.T. p. 253; AA Ex. 3.

According to Rock, at the PDC, appellant indicated that he did not

believe he did anything wrong because the District managed to get the work done.

N.T. p. 32. Appellant also provided unclear answers by providing details for

Interstate 83 Project’s requirements to questions regarding the State Route 425

Project. N.T. p. 254. After the PDC, Rowe, Rock and Kreiser discussed the severity

of the scenario, appellant’s unsatisfactory work performance, the cost to the county,

and the cost to the district office. N.T. pp. 78, 80, 255-256. Kreiser, Rock, and

Rowe concluded removing appellant from regular RPC employment was appropriate

22

not only because of his prior progressive disciplinary history, but also due to his

failures despite receiving additional time, training, and resources to perform his job

duties as a RPC. N.T. pp. 33-34, 78, 80, 255-256. Consequently, Kreiser submitted

the request recommending appellant’s removal N.T. p. 259.

Human Resource Analyst 3 Brian Okuniewski received and reviewed

appellant’s removal request. The removal request contained witness statements,

documents related to the materials procurements for the Interstate 83 Project and the

State Route 425 Project, and appellant’s prior progressive disciplinary history. N.T.

pp. 275-276. Okuniewski concurred with the recommendation for appellant’s

removal and drafted a request for appellant’s removal to be sent to the appointing

authority’s Deputy Secretary for Administration for final approval. N.T. p. 278.

Okuniewski received the final approval to remove appellant and informed Kreiser

that appellant’s removal was approved. N.T. p. 280. Okuniewski explained

appellant’s removal was the next consistent level of discipline because of appellant’s

prior progressive disciplinary history. N.T. p. 281.

Once she received the final approval from Okuniewski, Kreiser

prepared appellant’s removal letter. Comm. Ex. A; N.T. p. 259; AA Ex. 4. After

preparing appellant’s removal letter, Kreiser arranged with Rock and Rowe to meet

at York County to deliver the letter to appellant. N.T. p. 262. On June 1, 2018,

Rowe hand delivered appellant’s removal notice letter signed by Executive

Director Michael Keiser. Comm. Ex. A; N.T. p. 83; AA Ex. 4.

In response to the appointing authority’s presentation, appellant

testified on his own behalf. Appellant was employed by the appointing authority as

a RPC from May 8, 2017 to June 4, 2018. N.T. pp. 297-298. Appellant contended

23

he submitted the material requests before the Interstate 83 Project’s start date and

the State Route 425 Project’s start date. N.T. pp. 299-300. Appellant asserted since

he submitted the material requests prior to the winter weather conditions and before

the projects’ start dates, he performed his duties. N.T. pp. 300-301.

Appellant explained his experience in creating material requests for

specialized materials and blacktop. N.T. pp. 301-302. Regarding the State Route

425 Project’s blacktop, appellant contended he could adjust beyond the project’s

calculated estimates on a material request. N.T. p. 303. Appellant admitted to

submitting the initial material request for the State Route 425 Project’s blacktop.

N.T. pp. 304-305; AA Ex. 7. Appellant asserted the blacktop plants’ quality control

people would not allow the crews to acquire the blacktop during the winter months

due to the freezing temperatures. N.T. pp. 306-307. Regarding the Interstate 83

Project’s material request, appellant argued “there were so many cold days, that there

wasn’t much interest in starting that early, ahead of the bid cycle that was set up for

April 6th.” N.T. p. 309. Appellant admitted he submitted the Interstate 83 Project’s

material request before the project’s start date. N.T. pp. 310-311, 312; AA Ex. 6.

Having carefully reviewed the record, the Commission finds the

appointing authority met its burden to show just cause to remove appellant. In

support of our conclusion, we find credible the testimonies of David Rock,

Glenn Rowe, Gary Ishman, Clint Leakway, Scott Chronister, Timothy Noel,

Angela Kreiser, and Brian Okuniewski.3

3 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, 95 Pa. Commw. 475, 478, 505 A.2d 339, 341 (1986).

24

As a RPC, appellant was responsible for timely determining the

material’s type and correctly estimating the material’s quantity for an assigned

project. Additionally, as a RPC, appellant was responsible for requesting a project’s

materials in accordance with the bid cycle. The appointing authority emphasized

appellant was required to submit the Interstate 83 Project’s special procurement

request and the State Route 425 Project’s job form by March 2, 2018 for the

materials to be prepared by April 2, 2018. Nevertheless, despite receiving extensive

training and having numerous resources for support, appellant failed to properly

submit the Interstate 83 Project’s special procurement request and the State Route

425 Project’s job form by March 2, 2018.

Appellant contended since he submitted the material procurement

requests prior to the winter weather conditions and before the projects’ start dates,

he essentially performed his duties. The Commission is not convinced by

appellant’s attempted excuses for his unsatisfactory performance. The appointing

authority’s witnesses credibly explained how appellant’s failures to properly request

the projects’ materials caused immediate panic and substantial project delays,

affected the timing of media releases for the public’s safety, and adversely impacted

vendors, the appointing authority’s employees, and its ability to ensure both projects

would be completed. Additionally, appellant’s prior progressive disciplinary history

exhibits appellant’s continuous unsatisfactory work performance leading up to his

removal. Appellant’s failures to properly and timely procure the materials for the

Interstate 83 Project and the State Route 425 Project negatively reflect upon his job

performance and his competency and ability to perform his job duties. Woods,

supra.

25

The Commission now turns to appellant’s discrimination claims.

Specifically, appellant has alleged discrimination based upon his gender, his veteran

status, and from contacting the Bureau of Office Service’s4 (hereinafter “BOS”) help

desk. Comm. Ex. B. In an appeal alleging discrimination, appellant bears the burden

of establishing 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

discrimination5 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 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 merely pretext. Id. at 614-615.

4 BOS provides procurement services, bracket services, and facilities management services for the appointing

authority. N.T. p. 246.

5 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.

26

In particular, an employee claiming disparate treatment must demonstrate he or she

was treated differently than others. Nwogwugwu, 141 Pa. Commw. at 40, 594 A.2d

at 851.

Concerning appellant’s discrimination claims, appellant has failed to

present evidence substantiating a prima facie case of discrimination. Appellant

initially alleged on his Appeal Request Form that his removal was the result of

discrimination on the basis of his gender, veteran’s status, and on other non-merit

related factors, which he asserted were from contacting the BOS help desk. Comm

Ex. B. However, appellant did not present evidence during the hearing in support of

his claims. N.T. pp. 297-322. Appellant only raises his assertions supporting his

discrimination claims in his timely filed Brief. Since appellant has failed to present

any evidence on the record created at the hearing in support of his discrimination

claims, we will not consider his arguments supporting his discrimination claims

advanced within his Brief. Moreover, the appointing authority presented credible

testimonies concerning the legitimate, non-discriminatory reasons for which

appellant was removed.6 These reasons, detailed above, were merit-related

deficiencies in appellant’s performance, and clearly provided just cause to remove

appellant. Henderson, supra.

6 Moreover, the appointing authority’s witnesses consistently and credibly testified appellant’s removal was not based

on appellant’s gender, appellant’s veteran status, or the fact appellant contacted the BOS help desk. N.T. pp. 36-37,

84-85, 265, 285-286.

27

Based on the foregoing, the Commission finds the appointing authority

had just cause to remove appellant due to appellant’s most recent unsatisfactory

work performance and prior progressive disciplinary history. The Commission also

finds appellant has failed to present evidence to support his claims that his removal

was the result of discrimination. Accordingly, we enter the following:

CONCLUSIONS OF LAW

1. The appointing authority has presented evidence

establishing just cause for removal under Section

807 of the Civil Service Act, as amended.

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 two

of its members,7 dismisses the appeal of Duane A. Hobbs challenging his removal

from regular Roadway Programs Coordinator employment with the Pennsylvania

7 Commission Chairman Teresa Osborne, who took office March 22, 2019, did not participate in the discussion of or

decision for this appeal.

28

Department of Transportation and sustains the action of the Pennsylvania

Department of Transportation in the removal of Duane A. Hobbs from regular

Roadway Programs Coordinator employment, effective June 4, 2018.

State Civil Service Commission

Gregory M. Lane

Commissioner

Bryan R. Lentz

Commissioner

Mailed: October 17, 2019