F.M. Burock v. SCSC (Office of the Budget)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank M. Burock, :

Petitioner :

:

v. :

:

State Civil Service Commission :

(Office of the Budget), : No. 1865 C.D. 2019

Respondent : Submitted: November 13, 2020

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge1

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE FIZZANO CANNON FILED: May 13, 2021

Frank M. Burock (Burock), pro se, petitions for review of the

November 21, 2019 order of the State Civil Service Commission (Commission)

sustaining the decision of the Office of the Budget (Employer) to impose a level one

alternative discipline in lieu of suspension (ADLS-1) from regular Accountant 3

employment with Employer’s Executive Offices, and dismissing Burock’s appeal

therefrom. Upon review, we affirm.

1

This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson

became President Judge.

I. Background

Burock has worked for Employer as an Accountant 3 since 2012.2

Comm’n Adj., 11/21/19 at 3, Finding of Fact (F.F.) 4, Supplemental Reproduced

Record (S.R.R.) at 357b.3 By signature dated April 6, 2017, Burock acknowledged

receipt of Employer’s job performance standards for his position. Id. In August

2017, Burock received an overall rating of “Needs Improvement” in an annual

employee performance review (EPR). F.F. 6-7, S.R.R. at 357b-58b. The August

2017 EPR was retracted, and Burock subsequently received a Mid-Point Progress

Review in September 2017, at which point biweekly meetings were initiated with

Burock to discuss his work performance and to provide guidance. F.F. 8, S.R.R. at

358b. Burock then received an overall rating of “Unsatisfactory” in a January 2018

interim EPR. F.F. 10, S.R.R. at 359b. In February 2018, Burock received a written

reprimand due to his failure to attain a satisfactory level of performance during the

interim EPR period of August 30, 2017 to December 13, 2017. F.F. 12, S.R.R. at

360b. The reprimand advised him that “[f]urther acts of the same or a similar nature

[would] lead to progressive disciplinary action up to and including removal.” Id.

In February 2018, Burock received a performance improvement plan

(PIP) from Paul Jones (Jones), his supervisor at the time, which provided that Burock

had to meet specific standards in order to achieve satisfactory ratings in several

specific job categories, as well as an overall satisfactory rating. F.F. 13-14, S.R.R.

2

Burock avers he was terminated on June 19, 2019. See Burock’s Brief at 14. The record

does not contain any evidence concerning termination.

3

We note that we have added the letter “b” following the page numbers in our citations to

the supplemental reproduced record (S.R.R.), although Employer failed to do so in accordance

with Pennsylvania Rule of Appellate Procedure 2173. See Pa.R.A.P. 2173 (providing that pages

of the S.R.R. shall be numbered separately in Arabic figures followed by a small letter “b”).

2

at 360b-61b. The February 2018 PIP also provided for interim evaluations about

every 60 days and cautioned that progressive discipline, up to and including removal

from employment, could occur if satisfactory ratings were not achieved. F.F. 14,

S.R.R. at 361b.

The February 2018 PIP also provided for weekly meetings to review

and discuss Burock’s progress. F.F. 15, S.R.R. at 361b. Participants at the weekly

meetings included Michelle Baker (Baker), a county manager and Burock’s

immediate supervisor; Andy Cameron (Cameron), Assistant Director of the General

Accounting Division of the Office of Comptroller Operations, who served as

Burock’s second-level supervisor; and, on occasion, Jamie Jerosky (Jerosky), an

administrative officer with Employer who supervised Burock. F.F. 11 & 16, S.R.R.

at 359b & 361b-62b; see also Transcript of Testimony (T.T.) 9/25/18 at 19, 103-04

& 151, S.R.R. at 20b, 104b-05b & 152b.

In July 2018, Burock received an interim EPR examining his job

performance from February 21, 2018 to May 31, 2018 (rating period), based on

performance standards provided in the February 2018 PIP. F.F. 17, S.R.R. at 362b.

Burock received a rating of “Unsatisfactory” in the individual categories of “Job

Knowledge/Skills,” “Work Results,” “Communications” and “Initiative/Problem

Solving”; a rating of “Needs Improvement” in the individual categories of

“Interpersonal Relations/[Equal Employment Opportunity]” and “Work Habits”;

and an overall rating of “Unsatisfactory.” F.F. 18, S.R.R. at 362b; Comm’n Adj.,

11/21/19 at 19, S.R.R. at 373b. In July 2018, Employer imposed an ADLS-1 due to

Burock’s unsatisfactory performance during the rating period. Comm’n Adj,

3

11/21/19 at 2, F.F. 1-2, S.R.R. at 356b. Burock appealed Employer’s disciplinary

action to the Commission. See T.T., 9/25/18 at 8, S.R.R. at 9b.4

In September 2018, the Commission conducted a hearing in which both

Burock and Employer participated. Transcript of Testimony (T.T.), 9/25/18 at 1,

S.R.R. at 2b. Employer offered the testimony of Jerosky, Cameron and Baker.

Comm’n Adj., 11/21/19 at 9 & 12, S.R.R. at 363b & 366b (citing T.T., 9/25/18 at

19, 103-04 & 151, S.R.R. at 20b, 104b-05b & 152b).

Jerosky testified that Burock’s duties included reviewing accounting

processes for accuracy. Comm’n Adj., 11/21/19 at 10, S.R.R. at 364b (citing T.T.,

9/25/18 at 29, S.R.R. at 30b). Agencies rely on the information contained in

financial statements, and inaccuracies create the potential for an agency to overspend

or underspend. See Comm’n Adj., 11/21/19 at 10-11, S.R.R. at 364b-65b (citing

4

Section 951(a) of the former Civil Service Act of 1941 (Civil Service Act), applicable

during the time period at issue here, permitted any regular employee in the classified service to

appeal to the Commission within 20 calendar days of receipt of notice from the appointing

authority of certain forms of disciplinary action, including suspension for cause, “on the grounds

that such action has been taken in his case in violation of the provisions of this act . . . .” Section

951(a) of the former Civil Service Act, Act of August 5, 1941, P.L. 752, No. 286, as amended,

added by the Act of August 27, 1963, P.L. 1257, 71 P.S. § 741.951(a). Section 951(b) of the

former Civil Service Act also governed Burock’s appeal to the extent he alleged discrimination in

violation of former Section 905.1 of the Civil Service Act. See former 71 P.S. § 741.951(b).

Effective March 28, 2019, the Act of June 28, 2018, P.L. 460, No. 71 (Act 71), repealed

and replaced the Civil Service Act. “The purpose of [Act 71] is to create and sustain a modern

merit system of employment within the Commonwealth workforce that promotes the hiring,

retention and promotion of highly qualified individuals, ensuring that government services are

efficiently and effectively delivered to the public.” 71 Pa.C.S. § 2102. Further, “the amendments

in Act 71 . . . are not intended to change or affect the legislative intent, judicial construction or

administration and implementation of the Civil Service Act.” 49 Pa.B. 1297 (2019) (Civil Service

Reform), available at http://www.pacodeandbulletin.gov/Display/pabull?file=/secure/pabulletin/d

ata/vol49/49-11/414.html#:~:text=Effective%20March%2028%2C%202019%2C%20the,of%20

August%205%2C%201941%20(P.L.&text=The%20adoption%20of%20temporary%20regulatio

ns,769%2C%20No (last visited May 12, 2021).

4

T.T., 9/25/18 at 51, S.R.R. at 52b). Jerosky testified that Burock had failed to meet

Employer’s job performance standards since August 2017. Id. (citing T.T., 9/25/18

at 39, 45, S.R.R. at 40b, 46b). Jerosky stated that Burock’s “lack of basic knowledge

of the reconciliation5 process” caused him to erroneously delete necessary

information, thereby compromising the accuracy of reconciliations for the following

month. T.T., 9/25/18 at 52, S.R.R. at 53b. Jerosky attested that “[w]e would

verbally explain this process again to him,” but that “the understanding was [not]

there,” even though Burock had been doing reconciliations since 2012. Comm’n

Adj., 11/21/19 at 11, S.R.R. at 365b (quoting T.T., 9/25/18 at 52, S.R.R. at 53b).

Burock struggled to reconcile differences in financial statements between “outside

investment agency mail-ins” and Employer’s accounting records, even though

procedures had not changed in years. Id. (quoting T.T., 9/25/18 at 53, S.R.R. at

54b). Further, Burock experienced “issues with the accrual methodologies utilized

to prepare financial statements,” and although Employer did “make a change in the

accrual methodology,” Burock “didn’t seem to understand the change at all.” Id.

Jerosky testified Burock’s recurring mistakes were not minor, nor were they

expected of someone employed as an Accountant 3, a senior-level accountant. Id.

(citing T.T., 9/25/18 at 53-54, S.R.R. at 54b-55b).

On cross-examination, Jerosky acknowledged that the financial

statements he had reviewed “were done consistently with how they were done in the

past” and had been previously accepted using the same process; however, Jones’s

subsequent review of these statements gave rise to “numerous questions,” as he

5

Jerosky explained that treasury reconciliations involve matching “our accounting books .

. . up to treasury accounting books . . . to verify that the systems both align.” T.T., 9/25/18 at 28,

S.R.R. at 29b.

5

“pointed out different aspects that were lacking[.]” See Comm’n Adj., 11/21/19 at

12, S.R.R. at 366b (quoting T.T., 9/25/18 at 73-74, S.R.R. at 74b-75b).

Cameron testified that he tasked Burock with preparation of a

“statement of funds available” (also referred to as an “SFA”),6 an assignment which

he viewed as typical for an Accountant 3. Comm’n Adj., 11/21/19 at 12, S.R.R. at

366b (quoting T.T., 9/25/18 at 106-07, S.R.R. at 107b-08b). Cameron assisted

Burock by providing him with a copy of a similar statement, which had been

prepared by an Accountant 2. Id. (citing T.T., 9/25/18 at 107-08, S.R.R. at 108b-

09b). Cameron testified that Burock’s work product was unsatisfactory, as “it

contained a $5 million plug[7] to get to the ending cash and investment balance.”

Comm’n Adj., 11/21/19 at 12-13, S.R.R. at 366b-67b (citing T.T., 9/25/18 at 108,

S.R.R. at 109b). Cameron testified that although he provided “direction” during

weekly meetings and simplified the process by instructing Burock to “just focus on

the treasury balance,” Burock’s attempt to rectify the SFA was nevertheless

“unsatisfactory,” as it included a “plug” of $1.3 million—a material amount for the

indemnification fund at issue. Id. (citing T.T., 9/25/18 at 112-14, S.R.R. at 113b-

15b). Cameron further attested that Burock had improperly included accruals in cash

flow statements. Comm’n Adj., 11/21/19 at 13, S.R.R. at 367b (citing T.T., 9/25/18

6

Cameron attested that an SFA “is essentially a cash flow statement where you start with

the beginning cash investment balance for a period,” and that “you account for the activity, coming

to the ending cash investment balance for [] the period of the report.” Comm’n Adj., 11/21/19 at

12, S.R.R. at 366b (citing T.T., 9/25/18 at 106, S.R.R. at 107b).

7

The use of “plugs” is the dubious practice of utilizing a number to reach the correct final

balance of cash investments when an employee cannot “account for everything . . . .” T.T., 9/25/18

at 113, S.R.R. at 114b. Cameron testified that he expressed concern to Burock regarding his use

of a plug. See T.T., 9/25/18 at 117-18, S.R.R. at 118b-19b.

6

at 109, S.R.R. at 110b).8 Cameron stated that Burock’s job performance “showed a

lack of understanding and actual problem-solving abilities,” and that he would have

expected Burock, an Accountant 3 as well as a [certified public accountant (CPA)]

with more than 30 years’ experience, to be able to prepare an SFA, which is

“essentially a cash flow statement.” Id. (quoting T.T., 9/25/18 at 114-15, S.R.R. at

115b-16b). Cameron testified that he discussed Burock’s failure to demonstrate any

improvement during the rating period and the resulting decision to impose the

ADLS-1 with Jerosky and Baker. Id. (citing T.T., 9/25/18 at 119-20, S.R.R. at 120b-

21b). Comm’n Adj., 11/21/19 at 14-15, S.R.R. at 368b-69b (citing T.T., 9/25/18 at

123, S.R.R. at 124b). Cameron opined that Burock failed to perform at the level

expected of an Accountant 3. See Comm’n Adj., 11/21/19 at 13, S.R.R. at 367b

(citing T.T., 9/25/18 at 111, S.R.R. at 112b).

Baker testified that the purpose of the weekly meetings with Burock

was to assist him in attaining a satisfactory job performance rating, and that Burock

received “very clear” notice of Employer’s expectations through review of prior

unsatisfactory ratings and receipt of suggestions for improvement. Comm’n Adj.,

11/21/19 at 15-16, S.R.R. at 370b (citing T.T., 9/25/18 at 160-62, S.R.R. at 161b-

63b). Baker attested that Burock exhibited “lack of understanding on an Accountant

3 level” as well as an “inability to really analyze data.” Comm’n Adj., 11/21/19 at

16, S.R.R. at 370b (citing T.T., 9/25/18 at 162-63, S.R.R. at 163b-64b). Baker

attested that as an Accountant 3 with roughly six years’ experience working for the

Commonwealth, Burock should have been able to handle these types of tasks. Id.

(citing T.T., 9/25/18 at 163, S.R.R. at 164b). With respect to Burock’s

“Unsatisfactory” ratings in various EPR categories, Baker testified that Burock

Cameron testified that accruals “are basically expenses that [] have not [been] paid yet[.]”

8

Comm’n Adj., 11/21/19 at 13, S.R.R. at 367b (citing T.T., 9/25/18 at 109, S.R.R. at 110b).

7

failed to exhibit the independence expected of an Accountant 3 or to analyze, review

or understand his own work; submitted untimely work statements, misnamed files,

failed to complete checklists, and neglected to update time periods and references in

financial statements; failed to document steps taken to update old account

reconciliations; did not adapt well to change; referenced outdated information in

financial statements; failed to remove lines from financial workups following

program changes; and was unable to independently revise spreadsheets without

“strong guidance.” Comm’n Adj., 11/21/19 at 16-18, S.R.R. at 370b-72b (citing

T.T., 9/25/18 at 168-71, S.R.R. at 169b-72b).

Concerning Burock’s ratings of “Needs Improvement” in other EPR

categories, Baker explained that Burock was not amenable to constructive criticism

and had to be reminded repeatedly to implement changes in processes. See Comm’n

Adj., 11/21/19 at 19, S.R.R. at 373b (citing T.T., 9/25/18 at 171-73, S.R.R. at 172b-

74b). Regarding Burock’s overall rating of “Unsatisfactory,” Baker referenced

Burock’s failure to function as a “team leader” or suggest ideas for improvement, as

would be expected of an Accountant 3, and noted that Burock in fact sought guidance

from a subordinate accountant. See Comm’n Adj., 11/21/19 at 19-20, S.R.R. at

373b-74b (citing T.T., 9/25/18 at 171-73, S.R.R. at 172b-74b). Baker attested that

she bears no personal animosity toward Burock and that she based her decision to

impose the challenged ADLS-1 solely on her observations of Burock’s failure to

satisfactorily perform his job duties. Comm’n Adj., 11/21/19 at 20, S.R.R. at 374b

(citing T.T., 9/25/18 at 177-78, S.R.R. at 178b-79b).

Burock, on his own behalf, testified that after receiving an initial

probationary EPR in December 2012, he did not receive another until August 2017.

Comm’n Adj., 11/21/19 at 20, S.R.R. at 374b (citing T.T., 9/25/18 at 205, S.R.R. at

8

206b). Burock attested that “the person who did the [2017] EPR” informed him

that Brian Seno (Seno), Employer’s assistant director for general accounting who

oversaw all employees in Burock’s section, “forced [her] to do it on her last day,”

that she “disagreed with it,” and that she “refused to sign it.” Id. (citing T.T., 9/25/18

at 205, S.R.R. at 206b; see also T.T., 9/25/18 at 25, S.R.R. at 26a). Burock theorized

that Seno influenced his unfavorable 2017 EPR after learning of his interview for

another position. See id. (citing T.T., 9/25/18 at 205, S.R.R. at 206b). Burock

testified that the August 2017 EPR was retracted, but he was then subjected to an

unfavorable mid-point progress review. Id. (citing T.T., 9/25/18 at 205, S.R.R. at

206b). See Comm’n Adj., 11/21/19 at 21, S.R.R. at 375b (citing T.T., 9/25/18 at

206-07, S.R.R. at 207b-08b). Burock also testified that employees were leaving

because of Seno, that by the end of 2016 he and one other employee had to bear the

workload of five employees and that Seno refused to redistribute the workload or to

permit overtime. See Comm’n Adj., 11/21/19 at 22, S.R.R. at 376b (citing T.T.,

9/25/18 at 208, S.R.R. at 209b). Further, Burock attested that one of his superiors,

Director Mike Burns, “put some edict down that they want[ed] to get rid of [Burock]

eventually.” See id. (citing T.T., 9/25/18 at 209, S.R.R. at 210b); see also T.T.,

9/25/18 at 84, S.R.R. at 85a. Burock explained that the “crux” of his claim is that

“Seno initiated” his unfavorable ratings. See Comm’n Adj., 11/21/19 at 22, S.R.R.

at 376b (citing T.T., 9/25/18 at 211, S.R.R. at 212b).

Burock offered the testimony of Tammy Miller (Miller), who worked

as an administrative officer with Employer from 2001 to 2018. See Comm’n Adj.,

11/21/19 at 23, S.R.R. at 377b; see also T.T., 9/25/18 at 231-33, S.R.R. at 232b-34b.

Miller testified that Seno was her immediate supervisor for two years, and that she

left employment with the appointing authority due to “issues” between them. Id.

9

(citing T.T., 9/25/18 at 236-37, S.R.R. at 236b-37b). Miller had not been supervised

or managed by Baker, Cameron or Jerosky. Comm’n Adj., 11/21/19 at 24, S.R.R.

at 378b (citing T.T., 9/25/18 at 248-49, S.R.R. at 249b-50b).

Burock also offered the testimony of Miriam Millan-Heffner (Millan-

Heffner), who worked for Employer until 2009. See Comm’n Adj., 11/21/19 at 24,

S.R.R. at 378b; T.T., 9/25/18 at 254, 257, S.R.R. at 255b, 258b). Millan-Heffner

testified that Seno created a hostile work environment that was “very inappropriate

and unprofessional,” and that the work environment fostered by Seno “[was] why

[she] left.” See id. (quoting T.T., 9/25/18 at 259, S.R.R. at 260b). Millan-Heffner

further testified that her treatment under Seno was similar to that experienced by

Burock. See id. (citing T.T., 9/25/18 at 265-66, S.R.R. at 266b-67b).

When recalled for further questioning, Jerosky testified Seno has a

reputation for providing “very strong, opinionated constructive criticism” to his

subordinates, but that Seno did not foster a hostile work environment. Comm’n Adj.,

11/21/19 at 27, S.R.R. at 381b (citing T.T., 9/25/18 at 326, S.R.R. at 327b).

In its adjudication mailed November 21, 2019, the Commission

identified the issues on appeal as whether Employer had good cause under the Civil

Service Act of 1941 (Civil Service Act) to impose the ADLS-1 upon Burock, and

whether Employer’s disciplinary action was motivated by discrimination.9 Comm’n

9

Section 905.1 of the former Civil Service Act provided:

No officer or employe of the Commonwealth shall discriminate

against any person in recruitment, examination, appointment,

training, promotion, retention or any other personnel action with

respect to the classified service because of political or religious

opinions or affiliations because of labor union affiliations or because

of race, national origin or other non-merit factors.

Added by the Act of August 27, 1963, P.L. 1257, former 71 P.S. § 741.905a.

10

Adj., 11/21/19 at 1-2, S.R.R. at 355b-56b (citing Section 803 of the Civil Service

Act, former 71 P.S. § 741.803; 4 Pa. Code § 101.21).10 After fully reviewing the

testimony, the exhibits introduced at the hearing, and all other party submissions,

the Commission concluded that Employer established good cause to impose the

ADLS-1 upon Burock. Comm’n Adj., 11/21/19 at 1, 27 & 31, S.R.R. at 355b, 381b

& 385b. The Commission observed that the written notice received by Burock based

the challenged ADLS-1 solely upon his unsatisfactory performance during the July

2018 interim EPR. Citing Baker’s testimony explaining Burock’s July 2018 interim

EPR ratings, as well as testimony of Baker and Cameron regarding weekly meetings

with Burock, the Commission determined that Burock “clearly knew his work

performance needed to improve throughout the ratings period.” Comm’n Adj.,

11/21/19 at 28, S.R.R. at 382b. The Commission also found the testimony of Baker

and Cameron established that Burock’s performance failed to improve during the

ratings period. Id.

10

Section 803 of the Civil Service Act provided, in relevant part:

An appointing authority may for good cause suspend without pay

for disciplinary purposes an employe holding a position in the

classified service. Suspensions, including suspensions pending

internal investigation, shall not exceed sixty working days in one

calendar year; however, suspensions pending investigation by

external agencies may be maintained up to thirty working days after

conclusion of the external investigation. No person shall be

suspended because of race, gender, religion or political, partisan or

labor union affiliation. What shall constitute good cause for

suspension may be stated in the rules.

Former 71 P.S. § 741.803, repealed by the Act of June 28, 2018, P.L. 460, No. 71, § 2, effective

March 28, 2019. Section 3(e) of the Civil Service Act defined the term “appointing authority” to

include “the officers, board, commission, person or group of persons having power by law to make

appointments in the classified service.” Former 71 P.S. § 741.3(e) (amended by the Act of June

28, 2018, P.L. 460, No. 71, § 2, effective March 28, 2019).

11

The Commission determined that e-mails offered by Burock at the

hearing did not substantially contradict Employer’s determination that his job

performance was inadequate. Comm’n Adj., 11/21/19 at 29, S.R.R. at 383b.

Moreover, the Commission reasoned that even if it were to accept Burock’s claim

that the proffered e-mails supported satisfactory completion of work, these e-mails

did not account for the entirety of Burock’s work product during the rating period.

Id. The Commission noted that Burock failed to introduce evidence regarding his

workload during the rating period. Id. The Commission therefore concluded that

Employer presented credible evidence establishing good cause to impose the ADLS-

1 upon Burock pursuant to Section 803 of the Civil Service Act. Comm’n Adj.,

11/21/19 at 28-29 & 31, S.R.R. at 382b-83b & 385b.11

The Commission also rejected Burock’s allegation that Employer

engaged in gender-based discrimination by permitting a female co-worker to spend

an average of two hours on the telephone each day for six months, concluding he

failed to present any evidence in support of his claim. Comm’n Adj., 11/21/19 at

30, S.R.R. at 384b. Thus, the Commission sustained Employer’s imposition of the

11

Section 105.15(a) of the Commission’s regulations provides as follows:

The appointing authority shall go forward to establish the charge or

charges on which the personnel action was based. If, at the

conclusion of its presentation, the appointing authority has, in the

opinion of the Commission, established a prima facie case, the

employee shall then be afforded the opportunity of presenting his

case.

4 Pa. Code § 105.15(a).

12

July 2018 ADLS-112 and dismissed Burock’s appeal. Id. Burock thereafter

petitioned this Court for review.

II. Discussion

A. The Parties’ Arguments

On appeal,13 Burock requests that this Court reverse the Commission’s

November 21, 2019 order, asserting that the Commission erred in determining that

Employer established good cause to impose the July 2018 ADLS-1. Burock’s Brief

at 11 & 15.14 Burock contends that the Commission failed to give proper weight to

12

The Commission noted that Burock received written notice advising him that while not

affecting his pay, seniority or other benefits, the ADLS-1 carried the same weight as a one-day

disciplinary suspension. Comm’n Adj., 11/21/19 at 1 n.1, S.R.R. at 355a. Thus, the Commission

explained that the ADLS-1 would be the equivalent of and treated as a suspension imposed under

Section 803 of the Civil Service Act for purposes of the hearing. Id. (citing former 71 P.S. §

741.803; Shade v. Pa. State Civ. Serv. Comm’n (Pa. Dep’t of Transp.), 749 A.2d 1054 (Pa.

Cmwlth. 2000)).

13

Our scope of review of a determination of the Commission is limited to determining

whether constitutional rights have been violated, whether an error of law has been committed and

whether necessary findings of fact are supported by substantial evidence. Williams v. State Civ.

Serv. Comm’n (State Corr. Inst. at Pine Grove), 811 A.2d 1090, 1092 n.1 (Pa. Cmwlth. 2002); see

also Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. “[A] court reviewing the

penalty imposed on an employee [within the framework of the Civil Service Act] is not to

substitute its determination for that of the employer. Rather, the court is merely to make certain

that just cause exists and that the appointing authority did not abuse its discretion.” Zuckerkandel

v. Dep’t of Pub. Welfare, 415 A.2d 1010, 1011 (Pa. Cmwlth. 1980).

14

Burock further “requests that a follow up case, 81 C.D. 2020[,] . . . be reversed and

nullified as all of these disciplines have the same Office of the Budget biases . . . running through

them.” Burock’s Brief at 15. The claims levied by Burock in his separate petition for review

docketed at 81 C.D. 20 are not before us here. Burock also requests the reversal of an ADLS-2

suspension and a termination. See id. However, Burock failed to challenge these disciplinary

actions either before the Commission or in his petition for review. Thus, they are waived. See

Walton v. Unemployment Comp. Bd. of Rev., 797 A.2d 437, 438-39 (Pa. Cmwlth. 2002) (claimant

waived claim not included in petition for review); see also Section 703(a) of the Administrative

Agency Law, 2 Pa.C.S. § 703(a) (a “party may not raise upon appeal any other question not raised

before the agency . . . unless allowed by the court upon due cause shown”); Pa.R.A.P. 1551(a)

13

the e-mails proffered at the hearing, which he maintains “clearly show work was

done correctly, on time and with little or no comments from supervisors before being

distributed.” Id. at 11. Highlighting his status as a CPA with more than 30 years’

experience and noting that he performed the same job for over 6 years without

receiving a single “Unsatisfactory” rating, Burock contends that “all of [a] sudden”

Employer deemed his job performance inadequate. Id. Burock asserts that he “laid

out all of the reasons his supervisors could and did go after him with a vengeance.”

Id. Burock contends that his work was “never an issue” until 2017, when Seno was

informed regarding Burock’s interview in 2016 for another position. Id. Burock

alleges that before his manager left in July 2017, Seno influenced her to give him a

poor EPR on her last day.15 Id. at 11-12. Burock further alleges that Burns, Seno’s

boss, dismissed this EPR several weeks later as “patently biased.” Id. at 12.

Burock also casts various aspersions against his supervisors, including

the accusation that two of his superiors committed fraud by utilizing “plugs” totaling

roughly $1 million dollars in a September 2017 financial statement. Burock’s Brief

at 12. Burock alleges that he received an EPR in 2017 rating his job performance as

“Unsatisfactory” in retaliation for reporting his superiors to the Pennsylvania Office

of State Inspector General, Budget Director Randy Albright and Auditor General

Eugene DePasquale. Id. at 12 & 14. Further, Burock asserts that he established

(with regard to review of quasi-judicial orders, “[n]o question shall be heard or considered by the

court which was not raised before the government unit”); Pa.R.A.P. 2117(c) (the statement of the

case shall confirm that issues were raised or preserved below, and shall include specific supporting

references to the record); see also Chapman v. Unemployment Comp. Bd. of Rev., 20 A.3d 603,

611 (Pa. Cmwlth. 2011) (issue was “waived for purposes of appeal” and “[would] not be addressed

for the first time by this Court” where claimant failed to raise the allegation before the referee or

the Board).

15

Burock appears to reference former manager Jennifer Steigelman. See T.T., 9/25/18 at

24, S.R.R. at 25b; Comm’n Adj., 11/21/19 at 3, F.F. 6, S.R.R. at 357b.

14

through witness testimony that Seno fostered a hostile work environment. See id. at

10 & 14.

Employer counters that Burock fails to identify issues that fall within

the Court’s scope of review, asserting that the sole question sub judice is whether

substantial record evidence exists to support the decision to suspend Burock for

unsatisfactory work performance. Employer’s Brief at 3 & 6-8. Further, Employer

contends that the Commission “did not find dispositive or persuasive, any of

[Burock’s] evidence or testimony,” and that Burock’s evidence “did not refute . . .

[E]mployer’s testimony during the hearing.” Id. at 10.

B. Analysis

1. Good Cause

“The only requirement of the [Civil Service] Act with respect to

disciplinary suspensions of civil service employees is that they be for good cause.”

Shade, 749 A.2d at 1057. Section 803 of the former Civil Service Act provided that

“[a]n appointing authority may for good cause suspend without pay for disciplinary

purposes an employe holding a position in the classified service.”16 Former 71 P.S.

§ 741.803.17 The appointing authority bears the burden of proving that it had good

cause to suspend a civil service employee. Toland v. State Corr. Inst. at Graterford,

Bureau of Corr., 506 A.2d 504, 506 (Pa. Cmwlth. 1986).

“It is well established that one’s relationship with the classified service

turns upon a merit concept.” Kanjorski v. Dep’t of Lab. & Indus., 403 A.2d 631,

16

Section 3(d) of the former Civil Service Act defined the term “classified service” to

include various positions in certain government agencies. See former 71 P.S. § 741.3(d).

17

Likewise, Section 2603(c) of Act 71 currently provides that “[e]mployees may only be

suspended for good cause.” 71 Pa.C.S. § 2603(c).

15

632 (Pa. 1979). Accordingly, “[t]his Court has held that good cause must relate to

an employee’s competence and ability to perform his or her job duties, . . . or must

result from conduct that hampers or frustrates the execution of the employee’s

duties.” Bruggeman v. State Civ. Serv. Comm’n (Dep’t of Corr. SCI-Huntingdon),

769 A.2d 549, 552 (Pa. Cmwlth. 2001) (citations omitted); see also Kanjorski, 403

A.2d at 632-33 (holding that merit criteria for evaluating disciplinary suspensions

under Section 803 of the Civil Service Act “must be job-related and in some rational

and logical manner touch upon competency and ability”).

We discern no error in the Commission’s determination that Employer

demonstrated good cause to impose the July 2018 ADLS-1 on the basis of Burock’s

unsatisfactory job performance. The Commission’s Adjudication is in accord with

precedents of this Court sustaining disciplinary action taken against civil service

employees under similar circumstances.

For example, in Shade, the Department of Transportation (Department)

rated an employee as “unsatisfactory” in eight job performance categories. Shade,

749 A.2d at 1056. Roughly two years later, the employee received a final overall

rating of “Unsatisfactory,” despite exhibiting improvement in certain individual job

performance categories. Id. at 1055-56. As a result, the Department disciplined the

employee by imposing an ADLS carrying the weight of a five-day suspension. Id.

at 1055. Upon the employee’s appeal, his immediate supervisor testified at a hearing

held by the Commission that he had provided the employee with a work plan

containing 15 performance standards, and that he had conducted quarterly review

sessions with the employee to discuss his unsatisfactory job performance. Id. at

1055. This Court determined that “[i]t [was] evident from the testimony and

evidence that the Department had good cause to discipline [the employee],”

16

reasoning that an employee’s “failure to follow through with his job responsibilities

and his failure to meet the performance standards in his work plan, even after he had

been advised repeatedly in performance reviews that his performance was

unsatisfactory, constitutes the good cause contemplated by the Commission’s rules

and the case law.” Id. at 1057-58; see also Harper v. Dep’t of Pub. Welfare, Phila.

Cnty. Assistance Off., 553 A.2d 521, 524-25 (Pa. Cmwlth. 1989) (substantial

evidence supported employer’s just cause to remove employee, where employee

failed to demonstrate significant improvement despite meeting regularly with his

supervisor, receiving specific guidance and being afforded multiple opportunities for

improvement).

Likewise, here, Employer presented ample evidence demonstrating

Burock’s failure to remedy his unsatisfactory job performance despite being offered

multiple opportunities for improvement. As recounted in detail above, Employer

provided documentary evidence as well as testimony from supervisors who regularly

met with Burock and reviewed his work, establishing that Burock repeatedly failed

to meet Employer’s job performance standards, despite multiple opportunities for

improvement. See T.T., 4/3/19 at 20-70, 89-91 & 101-06, S.R.R. at 21b-71b, 90b-

92b & 102b-07b.

Burock maintains that he did not receive a single “unsatisfactory” EPR

rating in approximately six years of employment preceding Employer’s issuance of

the ADLS-1. See Burock’s Brief at 11. However, Burock’s contention does not

bear upon his unsatisfactory job performance during the rating period, which gave

rise to the July 2018 ADLS-1. Likewise, Burock’s assertion that reporting the

alleged misdeeds of his superiors resulted in a retaliatory EPR in 2017 has no bearing

on his challenge to the July 2018 ADLS-1 or his job performance during the rating

17

period. Regardless, Burock’s mere allegation that the unfavorable EPR resulted

soon after reporting his superiors fails to support his challenge. See Gibson v. Dep’t

of Pub. Welfare Bureau of Child Welfare, 434 A.2d 213, 214 (Pa. Cmwlth. 1981)

(employee failed to establish that her reassignment within an agency resulted from

filing an affirmative action grievance against employer, where “the only evidence

[employee] submitted indicat[ing] that her reassignment was improper was simply

the fact that she was informed of her reassignment shortly after she filed her

complaint with the affirmative action office”) (emphasis omitted).

Burock also asserts that the Commission failed to give proper weight to

e-mails proffered at the hearing, which he insists demonstrate satisfactory work

product. See Burock’s Brief at 11. “It is axiomatic that the Commission, not this

Court, has the power to resolve questions of credibility and to weigh the

evidence.” Shade, 749 A.2d at 1056 (citing Toland, 506 A.2d at 506); see also Perry

v. State Civ. Serv. Comm’n (Dep’t of Lab. & Indus.), 38 A.3d 942, 948 (Pa. Cmwlth.

2011) (stating that “[i]n civil service cases, the Commission is the sole fact-finder”).

“As such, determinations as to witness credibility and resolution of evidentiary

conflicts are within the Commission’s sole province, and we will not reweigh the

evidence or substitute our judgment . . . .” Perry, 38 A.3d at 948.

This Court is not bound by credibility determinations of the

Commission that are unsupported by substantial evidence. Bruggeman, 769 A.2d at

553. Here, however, Employer presented substantial evidence, as discussed above.

Moreover, “[t]he fact that the Commission gave greater weight to the testimony of

[Burock’s] supervisor[s] than to the testimony of [Burock] is not an error or abuse

of the Commission’s fact-finding function.” Shade, 749 A.2d at 1056. Further,

Burock does not directly challenge the Commission’s credibility determinations; he

18

merely casts unsubstantiated aspersions against his supervisors in an effort to

undermine their testimony. See id. (disciplined employee “relie[d] on his own

version of the facts as opposed to the findings as made by the Commission based

upon its credibility determination,” even though “[i]t [was] clear from the

Commission’s decision that it found credible the testimony from the witnesses of the

[appointing authority], not [the employee’s] testimony, where there was a conflict”).

Accordingly, we will not disturb the Commission’s credibility findings.

2. Discrimination

Next, Burock argues that Baker “favor[ed] another new Accountant 3,

Dhanashree Chitnis (Chitnis) to the extent of allowing her to talk freely on the phone

for approximately two hours per day for their first six months in [her] new job[].”

Burock’s Brief at 13. Burock avers that he reported Baker to her supervisor,

Cameron, after which Baker was “furious” and provided Burock with “a horrible

EPR within a few weeks of being outed to Cameron.” Id. Further, Burock contends

that the Commissioner refused to permit him to question either Baker or Cameron

regarding Chitnis’s purportedly excessive personal calls during working hours. Id.

at 13. Burock also contends that Chitnis benefitted from “a ridiculously easy

workload” and that he prepared a spreadsheet detailing the difference between his

workload and hers, but that the Commission refused to enter the spreadsheet into the

record. Id.

Employer counters that Burock failed to provide any evidence in

support of his claim that Employer’s imposition of the ADLS-1 was discriminatory.

See Employer’s Brief at 11.

19

Section 905.1 of the former Civil Service Act provided, in relevant part,

that “[n]o officer or employe of the Commonwealth shall discriminate against any

person in . . . any [] personnel action with respect to the classified service because

of political or religious opinions or affiliations because of labor union affiliations

or because of race, national origin or other non-merit factors.” Former 71 P.S.

§ 741.905a. “Although the burden of proof for establishing a prima facie case of

employment discrimination is not an onerous one, the burden nevertheless rests with

the employee alleging the discrimination” to establish a prima facie case of disparate

treatment. Bruggeman, 769 A.2d at 553; see also Pronko v. Pa. Dep’t of Revenue,

539 A.2d 456, 461 (Pa. Cmwlth. 1988) (citing 4 Pa. Code § 105.16).18 Satisfying

this burden requires the production of affirmative evidence in support of the

allegation; the Commission may not simply infer discrimination. Id. When

claiming disparate treatment, a complainant must demonstrate that he was treated

differently from other employees similarly situated. Id. If the complainant meets

this burden, “the employer must demonstrate a non-discriminatory reason for its

conduct.” State Corr. Inst. at Pittsburgh v. Weaver, 606 A.2d 547, 549 (Pa. Cmwlth.

1992). A prima facie case of gender discrimination may be established by producing

sufficient evidence that, if believed, indicates that more likely than not

18

Section 105.16 of the Commission’s regulations provides, in relevant part:

The appellant shall go forward to establish the charge or charges of

discrimination. If at the conclusion of this presentation, the

appellant has, in the opinion of the Commission, established a prima

facie case, the appointing authority shall then be afforded the

opportunity to reply to the charges.

4 Pa. Code § 105.16.

20

discrimination has occurred. Cola v. State Civ. Serv. Comm’n (Dep’t of

Conservation & Nat. Res.), 861 A.2d 434, 436 (Pa. Cmwlth. 2004).

Here, Burock essentially asserts that Employer engaged in gender-

based discrimination by taking disciplinary action against him while purportedly

permitting a female co-worker, who was also an Accountant 3, to make excessive

personal calls during working hours and to benefit from a lighter workload. See

Burock’s Brief at 11. The Commission determined at the September 2018 hearing

that the workload spreadsheet offered by Burock was not relevant to the question of

disparate treatment, as it did not pertain to whether Chitnis received similar job

performance ratings and yet was not disciplined. See T.T., 9/25/18 at 225-26, S.R.R.

at 226b-27b.

We agree with the Commission that Burock failed to present relevant

evidence in support of his discrimination claim. See Pa. Game Comm’n v. State Civ.

Serv. Comm’n (Campbell) (Pa. Cmwlth., No 2308 C.D. 2007, filed May 7, 2008),19

slip op. at 8 (testimony provided by employee’s witness was not pertinent to

employee’s disparate treatment claim, where the testimony did not relate to whether

employee’s co-worker similarly received unsatisfactory job performance

evaluations and whether employer thereafter imposed comparable discipline on the

co-worker); Cola, 861 A.2d at 436-38 (employee “presented no evidence to

demonstrate unequal treatment in the interviewing process” and, thus, “failed to

carry his burden of establishing a prima facie case” where employee alleged that

employer discriminated against him on the basis of gender in failing to accept his

application for a different position); Dep’t of Health v. Nwogwugwu, 594 A.2d 847,

19

We cite this unreported opinion as persuasive authority pursuant to this Court’s Internal

Operating Procedures. 210 Pa. Code § 69.414(a).

21

849-52 (Pa. Cmwlth. 1991) (employee, in challenging his termination under the

former Civil Service Act as impermissibly motivated by discrimination on the basis

of race and national origin, “failed to submit sufficient evidence of disparate

treatment so as to meet his burden of persuasion under Section 905.1 of the Act,”

where he “introduced no evidence to compare his treatment with that of others

similarly situated” and “failed to prove his individual allegations”); Harper, 553

A.2d at 523-24 (former employee terminated due to unsatisfactory job performance,

who challenged his removal as impermissibly motivated by age discrimination,

“failed to sustain his burden of establishing a prima facie case of discrimination”

against former employer, where the Commission “found [his] unsubstantiated

assertion not credible”).

Moreover, we note that Burock fails to support either his challenge to

Employer’s imposition of the ADLS-1 or his claim of discrimination with citations

to supporting legal authority in his appellate brief. See Pa.R.A.P. 2119(a) (“[t]he

argument shall be divided into as many parts as there are questions to be argued; and

shall have at the head of each part . . . the particular point treated therein, followed

by such discussion and citation of authorities as are deemed pertinent”) (emphasis

added); Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“where an

appellate brief fails to provide any discussion of a claim with citation to relevant

authority or fails to develop the issue in any other meaningful fashion capable of

review, that claim is waived”) (internal citations omitted) (emphasis added); see also

Shade, 749 A.2d at 1057 (disciplined civil service employee failed to fully develop

his argument by generally asserting without elaboration that his employer failed to

assess each job rating factor in relation to established standards in evaluating his job

performance).

22

For the foregoing reasons, we agree with the Commission that

Employer satisfied its burden of establishing good cause to impose the July 2019

ADLS-1 on the basis of Burock’s unsatisfactory job performance, and that Burock

failed to provide evidence demonstrating that Employer’s disciplinary action was

discriminatory.

III. Conclusion

For the foregoing reasons, we affirm the Commission’s decision.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

23

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank M. Burock, :

Petitioner :

:

v. :

:

State Civil Service Commission :

(Office of the Budget), : No. 1865 C.D. 2019

Respondent :

ORDER

AND NOW, this 13th day of May, 2021, the November 21, 2019 order

of the State Civil Service Commission is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge