MEMORANDUM OPINION

BY JUDGE DUMAS FILED: November 14, 2023

Angela M. Allen (Petitioner) has filed a petition for review, challenging the adjudication of the State Civil Service Commission (the Commission), which upheld her removal from probationary employment as a Corrections Officer Trainee (COT) with the State Correctional Institution at Somerset (SCI-Somerset). Petitioner contends that her removal was motivated by retaliation and/or disparate treatment. After careful review, we affirm.

I. BACKGROUND1

Petitioner was employed as a COT on October 5, 2020, at SCI- Somerset. As a condition of employment, all COTs are required to abide by the appointing authority’s policies. These policies include an employee’s responsibility conference (PDC) notice and participated in the PDC on July 1, 2021. At the PDC, Petitioner testified in her own defense and presented the testimony of former COT Kristy Lambert,4 Correctional Food Service Instructor Tiffany Thompson, and Corrections Officer 2 Eric Huber. The Department presented the testimony of Corrections Officer 3 Robert Munion. Petitioner claimed that she had experienced retaliatory and disparate treatment from supervisors and coworkers following her participation in the administrative interview held on March 5, 2021. In response, Officer Munion testified to Petitioner’s failures to follow security protocols despite repeated warnings and that he was unaware of Petitioner’s participation in the administrative interview.

Following the PDC, on July 15, 2021, Petitioner was dismissed from employment. The Department cited, as reasons for her removal: (1) failure to report a lost key chit; (2) failure to report that she was missing her personal vehicle keys for several hours; (3) admission to keeping keys in her pockets; (4) failure to pay close attention to all information presented by the training staff; (5) failure to execute each duty on her posts faithfully and conscientiously, (6) failure to strive to improve identified areas of performance deficiency, and (7) failure to observe and follow Department policies, procedures, and local procedures.

Petitioner filed a petition for reinstatement and appealed her dismissal to the Commission. On June 27, 2022, the Commission issued its final decision, dismissing Petitioner’s appeal and concluding that Petitioner did not establish a prima facie case of disparate treatment or retaliation, and even if she had established a prima facie case, the Department had provided legitimate, non-discriminatory reasons for her removal. See Adjudication, 6/27/22, at 23-26. Petitioner timely petitioned this Court for review.

II. ISSUES

Petitioner raises two issues for review. First, she contends that the Commission erred when it denied her petition for reinstatement, because prison officials had retaliated against her for participating in an Equal Employment Opportunity (EEO) investigation involving a colleague’s sexual harassment/assault case. See Pet’r’s Br. at 4, 8-9. Second, Petitioner contends that there was substantial evidence in the record supporting her claim that her discharge was based upon discriminatory intent and disparate treatment.^[5] See id. at 4, 8.

III. DISCUSSION6

The statute commonly known as the Civil Service Reform Act prohibits discrimination by officers or employees of the Commonwealth against any individual in “recruitment, examination, appointment, training, promotion, retention, or any other personnel action” with respect to “the classified service because of race, gender, religion, disability or political, partisan or labor union affiliation or other non-merit factors.” See 71 Pa.C.S. § 2704. Traditional discrimination, as asserted in this instance, encompasses claims of discrimination based on various non-merit factors. See Price v. Luzerne/Wyoming Cntys. Area Agency on Aging, 672 A.2d 409, 411 n.4 (Pa. Cmwlth. 1996).

A. Retaliation

Petitioner first argues that her petition for reinstatement should have been granted because she provided supporting evidence that correctional officers had acted in a retaliatory manner against her. See Pet’r’s Br. at 9. Petitioner contends that this harassment was the reason she lost her keys and chit and that this would not have happened if the harassment was not taking place. See id. at 10-11. Further, Petitioner contends that she has “after-discovered evidence” in her case, which proves that witnesses were untruthful about the circumstances surrounding her lost keys and that several supervisory officers and administrators wanted Petitioner terminated. See id. at 12. Finally, she contends that the statements of Officers Matthew J. Foster and Washabaugh7 were not made available to her at the first proceeding. See id.

The Department responds that Petitioner’s retaliation claim is without merit. See Dep’t’s Br. at 8-9. According to the Department, Petitioner cannot establish a prima facie case of retaliation because she cannot prove a causal connection between her participation in the administrative interview and her subsequent dismissal. See id. The Department avers that the Commission correctly found the temporal proximity between these events too attenuated and that Petitioner did not provide sufficient evidence to otherwise establish causation. See id. at 9-10. Further, the Department asserts that Petitioner was dismissed for legitimate, non-discriminatory, merit-based reasons. See id. at 10.

A petitioner may establish a prima facie case of retaliation by proving the following: 1) she engaged in a protected activity; 2) the appointing authority was aware of the protected activity; 3) that subsequent to participation in the protected activity, she was subjected to an adverse employment action by the appointing authority; and 4) that there is a causal connection between participation in the protected activity and the adverse employment action. Robert Wholey Co. v. Pa. Hum. Rels. Comm’n, 606 A.2d 982, 983 (Pa. Cmwlth. 1992). Further, “[w]hen participation in a protected activity and the occurrence of an adverse employment action occurs within close proximity in time, causation is inferred.” See id. at 984 (citation omitted).

“Once the complainant makes this initial case, the burden then shifts to the employer to articulate some legitimate, non-discriminatory motive for its action. If the employer does so, the complainant is then given the opportunity to demonstrate that the proffered reasons were pretextual.” Spanish Council of York, Inc. v. Pa. Hum. Rels. Comm’n, 879 A.2d 391, 397 (Pa. Cmwlth. 2005).

Instantly, there is no dispute that Petitioner was engaged in a protected activity when she participated in the administrative interview; that the appointing authority was aware of the protected activity; and that she subsequently suffered an adverse employment action, namely, her dismissal, approximately four months later. However, the Commission determined that the temporal proximity between her interview and her dismissal was “too distant in time to infer causation.” Adjudication at 23. The Commission therefore concluded that Petitioner had not established a prima facie case of retaliation. Id.

Petitioner has not challenged the Commission’s determination regarding temporal proximity on appeal. See generally Pet’r’s Br. Further, the Department’s analysis is cursory. See Dep’t’s Br. at 9 (“[A]s the [Commission] . . . correctly found, the temporal proximity between these two events [is] too distant in time in order for the fourth prong, causation, to be inferred.”). On this record, and in light of the paucity of arguments addressing the Commission’s determination, we decline to affirm the Commission on this ground.^[8] See C.M. v. Pa. State Police, 269 A.3d 1280, 1285 (Pa. Cmwlth. 2022) (“[A]ppellate courts are neither obliged, nor even particularly equipped, to develop an argument for a party. To do so places the Court in the conflicting roles of advocate and neutral arbiter.”) (cleaned up).

Nevertheless, assuming Petitioner established a prima facie case, the Department provided legitimate, non-discriminatory reasons for her removal, supported by substantial evidence of record. The Commission’s adjudication summarizes in extensive detail Petitioner’s history of misconduct and failure to secure her equipment, her supervisory officers’ attempts to inform her of her responsibility to secure said equipment, and her continued failure to adhere to her responsibilities as a COT. See Adjudication at 23-25; see also Notes of Testimony (N.T.) 116, 177, 180, 196-98, 201-16, 221, 225-28. Petitioner provided no evidence that these proffered reasons were pretextual.^[9] See Spanish Council of York, Inc., 879 A.2d at 397. Accordingly, Petitioner has not proven that her removal from the COT program was motivated by a retaliatory purpose. See id.; Robert Wholey Co, 606 A.2d at 983.

B. Disparate Treatment

Petitioner contends that she provided evidence that correctional officers acted in a discriminatory manner towards her. See Pet’r’s Br. at 4, 9. In her brief to this Court, Petitioner offers no specific argument or evidence to support this contention. See generally id. at 11 (baldly suggesting that she was disciplined for conduct that others were not). Nevertheless, at the PDC, Petitioner described incidents that she believed resulted in disparate treatment of others. See, e.g., N.T. at 95-101 (testifying that other COTs, including Lambert, were not disciplined for permitting inmates on the grass and that other COTs, like Lambert and Brown,10 were not disciplined for lacking a key chit).

The Department responds that this claim is without merit, focusing on Petitioner’s comparison between Petitioner and Lambert. See Dep’t’s Br. at 14-15. According to the Department, Petitioner was not removed simply for losing her key chit, but for a string of misconducts where she continually lost or misplaced her equipment in dangerous areas. See id. Further, the Department asserts that Petitioner and Lambert were not similarly situated. See id. (suggesting that Petitioner lost her key chit and failed to properly document its loss, whereas Lambert never received her key chit; thus no documentation was required).

To establish a prima facie case that her termination resulted from disparate treatment, a petitioner must establish that she was treated differently than a similarly situated coworker. State Corr. Inst. at Graterford, Dep’t of Corr. v. Morse, 596 A.2d 897, 899 n.4 (Pa. Cmwlth. 1991); see also Dep’t of Health v. Ngwogwugwu, 594 A.2d 847, 851 (Pa. Cmwlth. 1991).

Instantly, the Commission credited testimony from Lambert, Huber, and Munion that differentiated the circumstances of Lambert’s misplaced key chit from those of Petitioner. See Adjudication at 24-25. Thus, the Commission concluded that Petitioner was not similarly situated to Lambert. Id. Further, the Commission noted that Petitioner was not disciplined for permitting inmates on the grass. See id. at 25.

The evidence supports the Commission’s conclusion. While Petitioner lost a key chit in her possession for multiple days, Lambert’s key chit was misplaced by the Security Control Center. See, e.g., N.T. at 172-81 (testimony from Huber), 205-10 (testimony from Munion). Further, there is no evidence or testimony that Petitioner was disciplined or terminated for permitting inmates on the grass. See generally N.T. Therefore, Petitioner did not establish a prima facie case of disparate treatment. Morse, 596 A.2d at 899 n.4; Ngwogwugwu, 594 A.2d at 851.

IV. CONCLUSION

For the foregoing reasons, Petitioner did not prove retaliation or that her dismissal was due to discriminatory reasons. We therefore affirm the adjudication of the State Civil Service Commission, dismissing Petitioner’s petition for reinstatement.

LORI A. DUMAS, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Angela M. Allen, :

Petitioner :

: v. : No. 839 C.D. 2022

:

State Correctional Institution at :

Somerset, Department of :

Corrections (State Civil Service :

Commission), :

Respondent :

ORDER

AND NOW, this 14th day of November, 2023, the order of the State Civil Service Commission, dated June 27, 2022, is hereby AFFIRMED.

LORI A. DUMAS, Judge