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COMMONWEALTH OF PENNSYLVANIA
Leslie P. Dubich : State Civil Service Commission
:
v. :
:
Department of Military and Veterans :
Affairs : Appeal No. 30319
Leslie P. Dubich Leonard Cowitch, Jr.
Pro Se Attorney for Appointing Authority
ADJUDICATION
This is an appeal by Leslie P. Dubich challenging her removal from
regular Licensed Practical Nurse employment with the Department of Military and
Veterans Affairs. A hearing was held on February 24, 2020, at the Western Regional
Office, in Pittsburgh, Pennsylvania, before Hearing Officer Odelfa Smith Preston.
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 had just cause
for appellant’s removal and whether appellant established her removal was based
upon discrimination.
2
FINDINGS OF FACT
1. On July 17, 2019, appellant was informed she was
removed from her regular Licensed Practical Nurse
employment with the appointing authority, effective
July 17, 2019. Comm. Ex. A; AA Ex. 6.
2. The July 17, 2019, removal letter provides the
following reason for appellant’s removal:
The reason for your termination is your
violation of the Department’s
Standards of Conduct and Work Rules,
the DMVA Workplace Violence and
Bullying Prevention Policy, and the
Southwestern Veterans Center
Nursing Policies and Procedures.
Specifically, on May 17, 2019, you
made a comment in the workplace that
you have a gun in your purse.
Additionally, on numerous occasions,
you neglected your duty when you
failed to communicate with staff as
necessary and refused to do
medication counts as required. You
had a charge nurse count and take
ownership of the medication cart
during shift change and would then
take control of it from her after the
other shift had left.
Furthermore, on or about June 1, 2019,
you made a post on social media that
referenced Southwestern Veterans
Center and its employees making
remarks that affect the credibility of
the Commonwealth, the DMVA and
3
SWVC. Your comments were explicit
and without merit, referencing that
SWVC kills people and specifically
calling out the Director of Nursing.
This post was made on a public forum.
Your violation of the DMVA
Workplace Violence and Bullying
Prevention Policy standing alone
would result in your termination.
Comm. Ex. A; AA Ex. 6.
3. The appeal was properly raised before this
Commission and was heard under Sections
3003(7)(i) and Section 3003(7)(ii) of Act 71 of
2018. Comm. Exs. C, D, E.
4. Appellant was employed by the appointing
authority as a Licensed Practical Nurse located at
the Southwestern Veterans Center (hereinafter
“SWVC”) and worked during the evening shift.
N.T. pp. 112-113, 114-115, 153, 256.
5. As a Licensed Practical Nurse, appellant signed,
acknowledged, and agreed to abide by the
appointing authority’s Standards of Conduct and
Work Rules (hereinafter “Work Rules”) on
September 17, 2017. N.T. p. 29; AA Ex. 1.
4
Workplace Violence and Workplace Bullying: Appellant’s Gun Statement
6. On May 17, 2019, while entering the facility and
after being asked about the weight of her purse,
appellant stated a gun was inside her purse. N.T.
pp. 117, 121, 155, 181; AA Exs. 18, 20.
7. On May 17, 2019, at 3:20 p.m., Director of Nursing
Ronna Stewart received a report from Registered
Nurse Sherry Walters informing her that appellant
made the gun statement. N.T. p. 155; AA Ex. 20.
8. Stewart informed Assistant Director of Nursing
Shannon Phillips about appellant’s gun statement
and instructed her and security to approach
appellant to investigate if the allegation was true.
N.T. p. 124; AA Ex. 18.
9. A gun was not found inside appellant’s purse. N.T.
pp. 124, 169.
10. Pursuant to the Work Rules, it is unauthorized
behavior to perform any action which violates the
Commonwealth or Department Workplace
5
Violence and Workplace Bullying Policies during
working hours or while on any Department
property, including but not limited to: inflicting
bodily harm, threatening, intimidating, coercing, or
interfering with fellow employees, supervisors,
residents, or the general public. N.T. p. 192; AA
Ex. 1.
11. The appointing authority’s Workplace Violence and
Workplace Bullying Prevention Policies defines
violence as threats in person and defines bullying as
repeated, health-harming mistreatment, verbal
abuse, or conduct which is threatening, humiliating
and or intimidating. AA Ex. 2.
12. On May 21, 2019, Human Resource
Analyst 2 Jamie Cuthbert conducted appellant’s
first due process conference (hereinafter “DPC”).
N.T. p.- 66; AA Ex. 19.
13. On May 30, 2019, appellant was suspended pending
investigation based on allegations of violations of
Workplace Violence and Workplace Bullying. N.T.
pp. 69, 71; AA Ex. 5.
6
Neglect of Duties: Failure to Communicate with Staff
14. Licensed Practical Nurse Jeanette Myers observed
appellant consistently ignore and not communicate
with her coworkers during the shift exchange. N.T.
pp. 97-98.
15. Clerk 2 Timothy Oleniacz saw how the work
environment would become toxic when appellant
failed to communicate to staff members between
shifts. N.T. p. 139.
16. Appellant made false accusations against Oleniacz
of purposefully destroying a fax and spreading a
false rumor that he reported her gun statement. N.T.
pp. 70, 72, 137; AA Exs. 19, 24.
17. Phillips noticed the work environment of the
SWVC’s 2 South Unit, where appellant worked,
was tense and hostile between the dayshift and
evening shift coworkers due to a failure to
communicate as a team. N.T. pp. 153, 167.
7
Neglect of Duties: Refusal to Perform Medication Count
18. During the investigation of whether appellant
committed Workplace Violence and Workplace
Bullying, Stewart received a report of appellant
failing to perform a medication count at the dayshift
and evening shift exchange with the off-going
nurse. N.T. pp. 157, 170; AA Ex. 16.
19. Pursuant to the SWVC Narcotic Reconciliation
record, during the shift exchange at 6:00 a.m.,
2:00 p.m., and 10:00 p.m., the oncoming
medication nurse and the outgoing medication
nurse, jointly count and certify the correct amount
of each Controlled drug. Both licensed nurses are
required to document and certify the count was
correct on the Narcotic-Sedative Record. Any
discrepancies are documented and reported to the
Nurse Supervisor. N.T. p. 161; AA Ex. 3.
20. The Work Rules characterize an employee’s failure
to perform assigned tasks or a legitimate work
assignment, and an employee’s dishonesty as a
neglect of his or her duties or responsibilities. N.T.
p. 194; AA Ex. 1.
8
21. During shift exchanges, Licensed Practical
Nurse Jeanette Myers observed appellant refusing
to complete her assigned medication counts. As a
result, Registered Nurse Kim Watson completed
appellant’s medication counts for her during the
shift exchange while appellant left the unit. N.T.
pp. 97-98, 109158-159; AA Ex. 30.
22. Watson admitted appellant refused to complete her
assigned medication counts and she completed
appellant’s medication counts for her. N.T. p. 247.
Appellant’s Facebook Post
23. On June 3, 2019, shortly after appellant’s
suspension pending investigation began, Stewart
received an email from Phillips, who received a
forwarded message from Sean Lukachyk, with an
attached Facebook post made by appellant in
response to Andy Knapp’s Facebook post. N.T.
p. 174; AA Ex. 31.
24. On June 1, 2019, Andy Knapp posted “SWVC just
cut loose one of, if not the most knowledgeable
LPN’s I have ever had the pleasure of working
9
with!!! That’s their loss. Take your talents
elsewhere. You are better than that place!!!” AA
Ex. 31.
25. In response to Andy Knapp’s Facebook post,
appellant posted the following:
That’s a cesspool of toxicity! They
want a bunch of sheep working there
who will bow @ their every whim.
Want me 2 cover-up their gross
negligence. They’re gonna kill
sum1….oh w8….they already have
more than once with their
incompetence. Yeah... they would
rather have nurses who cover shit up,
double dose patients, & make errors
literally every single day than people
who actually care about the residents.
Because the DON doesn’t want the bad
light shining on her princess ass after
she walked n after the lovely episode
of leaving a pt. on a bedpan 4 3 days.
Her & HR going around asking certain
people 2 write statements against me
because she told the charge nurse she
wants me fired because my
documentation is a legal issue.
Meanwhile ur supposed 2 practice
defensive charting. I’ve never had a
job defensive charting. I’ve never had
a job EVER criticize my charting. In
fact they’ve all praised it & it’s saved
the asses of many n the past. And it’s
save my ass 3 times when being a
witness n depositions.
AA Ex. 31.
10
26. The Work Rules prohibit inappropriate conduct or
any action which would reflect unfavorably on or
discredit the Commonwealth or Department of
Military and Veterans’ Affairs, including but not
limited to: public posts on social media, news
outlets, or websites. N.T. p. 193; AA Ex. 1.
27. On June 14, 2019, appellant received a letter
notifying her that based on the conducted
interviews, witness statements, and evidence
collected, the investigation found allegations about
appellant’s Workplace Violence and Workplace
Bullying were substantiated. N.T. pp. 70-71; AA
Ex. 7.
28. On June 17, 2019, Human Resource
Analyst 3 Bryan Bender conducted appellant’s
second DPC. N.T. pp. 72; 190-191; AA Ex. 10.
29. After appellant’s second DPC, Human Resource
Analyst 2 Jamie Cuthbert’s disciplinary packet was
compiled with witness statements, DPC notes,
appellant’s prior disciplinary actions, and
correspondence. N.T. pp. 73-74.
11
30. Cuthbert sent the disciplinary packet to Bender in
Labor Relations. N.T. pp. 73-74.
31. After reviewing the disciplinary packet, Bender
recommended appellant’s removal and drafted
appellant’s removal letter. Comm. Ex. A; N.T.
p. 187; AA Ex. 6.
DISCUSSION
The issues before the Commission are whether the appointing authority
established just cause for appellant’s removal from regular Licensed Practical Nurse
employment and whether appellant’s removal was motivated by discrimination.
Specifically, the appointing authority charged appellant with violating its Standards
of Conduct and Work Rules (hereinafter “Work Rules”), its Workplace Violence
and Bullying Prevention Policies, and the Southwestern Veterans’ Center
(hereinafter “SWVC”) Nursing Policies and Procedures.
On May 17, 2019, appellant made a statement in the workplace that she
had a gun in her purse. Also, the appointing authority noted appellant neglected her
duties by failing to communicate with staff and refusing to complete medication
counts as required. Furthermore, on June 1, 2019, appellant made a social media
post on Facebook referencing the SWVC and its employees that affected the
credibility of the Commonwealth, the appointing authority, and the SWVC.
12
Appellant’s charge of violating the appointing authority’s Workplace
Violence and Bullying Prevention Policies standing alone would warrant her
removal. Comm. Ex. A. Nonetheless, appellant asserts her removal was motivated
by discriminatory reasons. Namely, appellant is alleging discrimination based on
retaliation, disparate treatment, and a violation of her First Amendment Right of
freedom of speech.1 The Commission will review the just cause issue first and then
address appellant’s discrimination claims.
Just Cause Analysis
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).
1 Appellant also raised a claim of technical discrimination on her appeal request form, in that she generally asserted
the appointing authority violated the Civil Service Act and Rules, as well as denied due process for types of
discrimination alleged. Comm. Ex. B. However, at the hearing, appellant did not present any evidence regarding a
violation of the Civil Service Act or Rules, nor did she argue any form of technical discrimination within her submitted
Brief. Ap. Br. As such, we consider appellant’s technical discrimination claim as waived and will limit our review
to appellant’s claims of retaliation, disparate treatment, and the alleged violation of her First Amendment Rights.
13
In support of the removal, the appointing authority presented the
testimony of Human Resource Analyst 2 Jamie Cuthbert,2 Licensed Practical
Nurse Jeanette Myers,3 Assistant Director of Nursing Shannon Phillips,4
Clerk 2 Timothy Oleniacz,5 Director of Nursing Ronna Stewart,6 and Human
Resource Analyst 3, Bryan Bender.7 Appellant8 testified on her own behalf and
presented the testimony of Registered Nurse Supervisor Immanuel Divakar,9
Registered Nurse Kimberly Watson,10 Director of Nursing Ronna Stewart, and
Human Resource Analyst 2 Jamie Cuthbert. Upon rebuttal, the appointing authority
presented the testimony of Registered Nurse Supervisor Immanuel Divakar and
Commandant Richard Adams.11 The evidence presented by the parties, as it relates
to each violation, is discussed below.
2 As a HR Analyst 2, Cuthbert is responsible for collecting and maintaining employee records and the appointing
authority’s and SWVC’s policies. N.T. p. 26.
3 Myers is employed by the appointing authority as a Licensed Practical Nurse stationed at SWVC. N.T. p. 93. Myers
knew appellant from working at the SWVC. Myers worked during the dayshift from 6:00 a.m. to 2:00 p.m. N.T.
pp. 94-95.
4 As an Assistant Director of Nursing, Phillips runs the SWVC facility, especially during the evening shifts, and assists
in investigations. N.T. pp. 111-112. Phillips reports to her supervisor Director of Nursing Ronna Stewart. N.T.
p. 112.
5 Oleniacz is employed as a Clerk 2 at SWVC’s 2 South Unit. N.T. p. 132. Oleniacz works from 8:30 a.m. to 4:30 p.m.
N.T. pp. 133, 141.
6 As Director of Nursing, Stewart oversees the daily operation of the Nursing Department, Pharmacy, and Therapeutic
activities. N.T. p. 152.
7 As a Human Resource Analyst 3, Bender is assigned to process disciplinary requests coming from the SWVC, review
the investigation’s findings, and make disciplinary recommendations. N.T. p. 186.
8Appellant was employed by the appointing authority as Licensed Practical Nurse within the SWVC and worked the
evening shift until her removal on July 17, 2019. N.T. pp. 112, 153, 256.
9 As a Registered Nurse Supervisor, Divakar supervises all staff who are assigned to him for the evening shift. N.T.
pp. 216, 219.
10 As a Registered Nurse, Watson supervised Licensed Practical Nurses. N.T. p. 247.
11 As a Commandant, Adams oversees the SWVC nursing staff, dietary staff, housekeeping staff, and maintenance.
N.T. p. 353. Adams also holds a Nursing Home Administrator’s License. N.T. p. 353.
14
Workplace Violence and Workplace Bullying: Appellant’s Gun Statement
On May 17, 2019, at 3:20 p.m., Director of Nursing Ronna Stewart
received a phone call from Registered Nurse Sherry Walters, informing her that
appellant stated she had a gun in her purse. Walters further explained to Stewart the
gun comment was made in response to another staff member’s comment that
appellant’s purse was heavy. N.T. pp. 155, 181; AA Ex. 20. As Stewart spoke with
Walters, she wrote a note to Assistant Director of Nursing Shannon Phillips,12 who
was in her office. The note read: “[appellant], gun in purse,” meaning appellant had
a gun inside her purse. N.T. p. 117; AA Ex 18.
Both Stewart and Phillips were concerned by appellant’s statement that
she had a gun in her purse. Stewart explained appellant’s gun statement startled her
because seven months prior to the statement, there had been a shooting at the Tree
of Life Synagogue, which is only five miles away. N.T. p. 155. Phillips was also
concerned by appellant’s statement because she previously overheard appellant
speaking to Registered Nurse Kimberly Watson about a fight with another woman.
Appellant had told Watson that she threw the woman down the stairs. N.T. pp. 118,
124. Based on that incident, Phillips believed appellant may have a gun in her purse.
N.T. pp. 118, 124.
12 Phillips was appellant’s supervisor. N.T. p. 113. Director of Nursing Stewart explained the rankings of nurses
within the SWVC. First, Certified Nursing Assistants report to Licensed Practical Nurses. Second, Licensed Practical
Nurses report to Registered Nurses. Third, Registered Nurses report to Registered Nursing Supervisors. Fourth,
Registered Nursing Supervisors report to Assistant Director of Nursing. Lastly, Assistant Directors of Nursing report
to Stewart as the Director of Nursing. N.T. pp. 151-152.
15
After speaking with Walters, Stewart instructed Phillips and security to
investigate the matter. Stewart then proceeded to Human Resource Analyst 2 Jamie
Cuthbert’s office, where she reported appellant’s gun statement to Cuthbert and
Commandant Richard Adams. N.T. pp. 79, 155. While Stewart was consulting with
Cuthbert and Adams, Phillips and the security guard approached appellant and asked
her to talk to them. N.T. p. 124; AA Ex. 18. Appellant immediately became
defensive, to which Phillips reiterated she needed to talk to her in private. N.T.
p. 120. They then went into the laundry room, after which Phillips said to appellant,
“Please tell me this is not true. Did you say you have a gun in your purse?” N.T.
p. 120. Appellant responded, “This is ridiculous,” and offered to let Phillips and the
security guard search her purse. N.T. p. 120. Security searched appellant’s purse.
N.T. p. 120. No gun was found inside appellant’s purse. N.T. pp. 124, 169.
Phillips attempted to explain to appellant that as an employee, she
cannot make statements about having a gun inside her purse, especially given the
incident at the Tree of Life Synagogue and because they are in a public building.
N.T. pp. 120, 121; AA Ex. 18. Appellant responded the comment was a joke because
Rita Thomas asked her why her purse was so heavy. N.T. p. 121; AA Ex. 18.
Appellant also admitted she said to Thomas, “Yeah. That’s because I got a Glock
in there.” 13 N.T. p. 121.
13 Licensed Practical Nurse Jeanette Myers recalled hearing Thomas ask appellant why her purse was so heavy. N.T.
p. 96; AA Ex. 23. Myers did not hear appellant’s response because she was engaged in conversation with a coworker.
N.T. pp. 96, 100-101. However, she later learned what appellant said from Thomas. Myers explained it was the end
of the shift and she, Thomas, and Walters were in the breakroom. N.T. p. 96; AA Ex. 23. Myers recalled Thomas
told them appellant said, “Because my Glock’s in the bag.” N.T. p. 96; AA Ex. 23.
16
As appellant spoke with Phillips, she accused Clerk 2 Timothy Oleniacz
of reporting her to management. N.T. p. 121; AA Ex. 18. Oleniacz was nearby
when appellant made the gun statement, but he did not hear what she said. N.T.
pp. 138, 140, 226; AA Ex. 25. Oleniacz explained he is deaf in his right ear, which
makes it difficult to hear. N.T. p. 138. With that said, Oleniacz noted appellant’s
false accusation about him spread through the building creating a hostile work
environment for him. N.T. pp. 137-138; AA Ex. 24.
Although Oleniacz did not hear what was said, Watson was present for
the conversation and was able to recall the incident.14 N.T. p. 226. Watson testified
she observed Thomas lifting appellant’s purse and characterizing it as heavy.
Watson overheard appellant respond that the weight of the purse was her gun. N.T.
p. 226.
On May 21, 2019, Cuthbert conducted appellant’s first due process
conference (hereinafter “DPC”) based on the gun comment. N.T. p. 66; AA Ex. 9.
During the DPC, Cuthbert asked appellant whether it was appropriate for her to make
a comment about a gun. Appellant responded “It was in a joking matter. I wouldn’t
carry a gun to work. Nor would I tell anyone I had a gun if I carried it anywhere
else.” N.T. p. 67; AA Ex. 9 (p. 3).
14 Initially, Watson declined to write a witness statement when asked to do so by Stewart and Cuthbert because she
was doing a narcotic medication count. N.T. p. 227. Watson explained she later wrote a witness statement after she
was “threatened discipline if I didn’t give a statement.” N.T. pp. 227-228. Watson recalled there was an error in the
witness statement and indicated she never said appellant had a gun on her person. N.T. p. 231; AA Ex. 22.
17
Additionally, during her DPC, appellant asserted:
They want me out of this building because my charge
nurse (Kim Watson) told me that Ronna does not like that
my charting, it could get the facility in trouble. I turn in
med errors daily. The RNS asks if I fixed them. I told him
yes, (David Divakar) he would get rid of the med error
paperwork it was never addressed again. I went to Ronna
several times. I have also emailed Ronna, the RNS’ [sic],
HR, and I have never gotten any response. So, I guess if
your [sic] fire me for saying “like a gun”, then it will be
one big problem out the door. You won’t have people
finding errors daily. I guess it works in your favor.
AA Ex. 9 (p. 5). In response, Cuthbert asked appellant if she believed the
disciplinary investigation and proceedings was all about paperwork. Appellant
responded:
No I believe it is all about retaliation. Ronna called
Kim Watson, my charge nurse, in her office a few weeks
ago and told her that we need to speak to people. I guess
because I don’t talk to them (day shift employees) about
anything except patient care. I don’t have to even say hello
to them.
N.T. p. 68; AA Ex. 9.
On May 30, 2019, appellant was suspended pending investigation for
alleged violations of the appointing authority’s Work Rules and allegations of
Workplace Violence and Workplace Bullying. N.T pp. 69, 71; AA Ex. 5. At the
conclusion of the investigation, a second DPC was scheduled for June 17, 2019.
Appellant was notified of the second DPC on June 11, 2019.
18
On June 14, 2019, prior to the second DPC appellant received a letter
notifying her that the allegations of Workplace Violence and Workplace Bullying
were substantiated, based on the conducted interviews, witness statements, and
evidence collected.15 N.T. pp. 70-71; AA Ex. 7. Attached to the June 14, 2019,
letter, was a Report by Cuthbert substantiating the finding.16 The Report provided
the follow:
On May 17, 2019, it was alleged that [appellant] stated that
it was the gun in her purse that caused it to be so heavy.
While she stated that it was stated in a joking manner, it
was taken seriously by several co-workers and caused
them anxiety. In an effort to stop the incidents between
co-workers, nursing administration has moved [appellant]
to 3 separate units. On each unit, [appellant] has had an
incident occur with a co-worker that has caused tension
and an unpleasant work environment. This began with
Tiphanee Lankford in July 2018. The next incident
occurred with CNA Visokey in February 2019. HR spoke
with the resident and he stated that he had been given food
and that he does tell staff that he does not always want to
be awakened when dinner or lunch is served. He does not
have a problem with staff not serving him. I made the
decision to move the CNA off of the unit in the absence of
the DON and Commandant. The final incident which has
been occurring since March 2019, has led to a full blown
incident which is affecting everyone on the unit. The
15 After the investigation into whether Workplace Violence or Workplace Bullying concludes with a finding, a letter
detailing the results of the investigation is sent to the employee. N.T. p. 70.
16 Human Resource Analyst 3 Bender explained the disciplinary process when a Workplace Violence or Workplace
Bullying allegation is made. Once one is made, a Workplace Violence Coordinator for the SWVC conducts an
investigation and makes a determination based on their findings. The Coordinator submits their findings to Labor
Relations for the findings to be reviewed or incorporated into an ongoing investigation. N.T. pp. 190, 205. Once an
employee receives the determination from the investigation, the employee has an opportunity to rebut the finding in
his or her DPC. N.T. p. 206. A finding from the Coordinator does not constitute as a disciplinary action. N.T. p. 207.
19
tension of 2 South is extreme between shifts. The amount
of tension is creating much anxiety and stress between co-
workers. The possibility of a gun on the unit was taken
very seriously and was not taken as a joke.
AA Ex. 7. This finding was subsequently submitted to Labor Relations for
consideration as part of the already ongoing investigation, and appellant was
provided an opportunity to rebut the findings at the second DPC, which was held on
June 17, 2019. N.T. pp. 190-191; Ex. 10.
Appellant’s responses at the second DPC were consistent with the
explanations she provided at the first DPC. Human Resource Analyst 3 Bryan
Bender, who conducted appellant’s second DPC, recalled appellant again asserted
she made the statement in a joking manner. N.T. pp. 190-191; AA Ex. 10. Bender
testified appellant also clarified she said, “like a gun,” as opposed to she had a gun.
N.T. pp. 191, 198. Regardless of the exact words used, Bender noted the statement
was still a violation of the Work Rules because appellant referenced a gun in the
workplace. N.T. p. 198. Bender also noted he took into consideration appellant’s
belief that this was a joking matter. N.T. p. 188.
Bender explained the Work Rules prohibit:
[a]ny action which violates the Commonwealth or
Department Workplace Violence and Bullying Policies17
during working hours or while on any Department
17 The appointing authority’s Workplace Violence and Workplace Bullying Prevention Policy specifically prohibits
acts of violence, such as threats in person. This Policy also prohibits bullying, which is defined as “repeated, health-
harming mistreatment, verbal abuse, or conduct which is threatening, humiliating and or intimidating.” AA Ex. 2
(p. 2).
20
property, including but not limited to: inflicting bodily
harm, threatening, intimidating, coercing, or interfering
with fellow employees, supervisors, resident, or the
general public.”
N.T. p. 192; AA Ex. 1. Additionally, the Work Rules prohibit “threatening,
intimidating, interfering with, or using abuse or profane language” toward
coworkers, supervisors, residents, or the general public while on any Department
property. N.T. p. 192; AA Ex. 1. Appellant signed, agreed, and acknowledged to
abide by the appointing authority’s Work Rules on September 17, 2017. N.T. p. 29;
AA Ex. 1.
Upon careful review of the record, the Commission finds the appointing
authority has presented sufficient evidence to support the charge of appellant stating
she had a gun in her purse on May 17, 2019. We find Cuthbert, Phillips, Stewart,
and Bender credible18 that appellant’s gun statement was unauthorized behavior for
a Licensed Practical Nurse because the threatening and intimidating statement
interfered with her fellow employees and supervisors in violation of the appointing
authority’s Work Rules, and Workplace Violence and Workplace Bullying
Prevention Policies. While Phillips and Stewart confirmed appellant did not possess
a gun inside her purse, we are not persuaded the lack of the presence of a gun lessens
the impact of appellant’s comment. It is unacceptable that appellant considered her
gun statement as a joke in the workplace.
18 It is within the purview of the Commission to determine the credibility of the witnesses. State Correctional
Institution at Graterford, Department of Corrections v. Jordan, 505 A.2d 339, 341 (Pa. Commw. Ct. 1986).
21
Neglect of Duties: Appellant’s Failure to Communicate with Staff
As a Licensed Practical Nurse, appellant is required to communicate
effectively with other staff members to provide good patient care, particularly during
shift exchanges. Additionally, the Work Rules prohibit poor on-the-job relations,
personal conflicts, and disruptive behavior. AA Ex. 2 (p. 2). Myers, Phillips,
Stewart, and Oleniacz provided specific examples of appellant’s failure to
effectively communicate, as well as other disruptive behaviors.
Myers observed appellant did not speak to her coworkers during the
dayshift and evening shift exchange. N.T. p. 97-98. Myers testified appellant
ignored her dayshift coworkers unless she was required due to work. N.T. pp. 97-
98. Myers also believed appellant falsely reported dayshift employees for
medication errors. N.T. p. 99. However, Myers noted her belief that appellant
falsely reported the dayshift employees was based on what she heard through the
“grapevine.” N.T. p. 105. Nevertheless, Myers characterized the work environment
inside SWVC as hostile because of appellant’s behavior. N.T. p. 99.
Appellant’s supervisor, Phillips, also observed appellant’s failure to
communicate with staff members. While Phillips acknowledged, appellant is a
“wonderful L.P.N.” and cares about her patients, there were some issues with her
documentation, as well as personality conflicts with coworkers, that were a problem.
N.T. p. 114. For example, Phillips recalled, on May 15, 2019, she approached
appellant and Registered Nurse Walters about an incident with HIPAA protocol.
N.T. p. 113-115. During this conversation, appellant pointed at Walters and said,
“the problem is that stupid idiot right there.” N.T. pp. 115, 126.
22
Additionally, Phillips noted appellant avoided communicating with her
after a disagreement which occurred shortly after Phillips started. N.T. p. 116. For
several months following the disagreement, appellant turned and walked away from
Phillips, refused to talk to her, and when she did talk to Phillips, she used a defensive
tone. N.T. p. 116. This made it difficult for Phillips, who is appellant’s supervisor,
to get information from appellant. N.T. p. 116.
Like Myers and Phillips, Stewart also observed the tense working
environment during the time appellant worked at 2 South Unit within the SWVC.
Stewart noted this tense, and at times hostile working environment, was the result of
the dayshift and evening shift staff members not communicating as a team. N.T.
pp. 153, 167. Clerk 2 Oleniacz corroborated Stewart’s observation. N.T. p. 134;
AA Ex. 19. Oleniacz characterized the work environment as toxic, particularly
because appellant did not communicate with staff members. N.T. p. 139. Oleniacz
noted after appellant left, the work environment improved, and staff began
effectively communicating with one another. N.T. p. 139.
In addition to the lack of communication, Oleniacz noted appellant
made two false accusations against him, which intensified the already hostile
environment. N.T. p. 145. Oleniacz stated appellant falsely accused him of
purposefully destroying a fax and spread a false rumor that he reported her gun
statement. N.T. pp. 71-72, 137; AA Exs. 19, 24. Oleniacz further testified, based
on the false rumor, staff members approached him and accused him of reporting
appellant, which made the environment even more toxic. N.T. pp. 138, 144-145;
AA Ex. 24.
23
Upon review of the record, the Commission finds the appointing
authority has presented sufficient evidence to support the charge of appellant
neglecting her duties as a Licensed Practical Nurse by failing to communicate with
staff. We find Myers, Oleniacz, and Phillips credible that appellant ignored and
failed to communicate with staff members not only during her shift but also during
the shift exchange. This is in contradiction to her responsibilities and duties as a
Licensed Practical Nurse, as well as the appointing authority’s Work Rules.
Neglect of Duties: Appellant’s Refusal to Perform Medication Counts
During the workplace violence and workplace bullying investigation,
Stewart received a report that appellant also failed to perform medication counts in
accordance with the SWVC Narcotic Reconciliation Record Policy. N.T. pp. 157,
170. The SWVC Narcotic Reconciliation Record Policy provides in relevant part:
At 6:00 a.m., 2:00 p.m., and 10:00 p.m., the on-coming
medication nurse and the out-going medication nurse,
jointly count and certify the correct amount of each
Controlled drug…. Both licensed nurses will document
and certify the count was correct on the Narcotic-Sedative
Record. Any discrepancies are documented and reported
to the Nurse Supervisor.
N.T. p. 161; AA Ex. 3. Therefore, based on this policy both licensed nurses are
required to certify the count. Registered Nurse Walters informed Stewart that
appellant had Registered Nurse Watson conduct the medication count in her place,
in violation of this Policy. N.T. pp. 157, 162, 170; AA Ex. 16.
24
Upon investigation, Watson admitted she conducted the medication
count in appellant’s place. N.T. pp. 158, 247; AA Ex. 30. At a DPC on June 17,
2019, Watson stated: “I would rather do the count and keep the peace. I would give
her the keys and she would either count it or not count it.” N.T. pp. 158-159; AA
Ex. 30. While Watson was unsure whether she signed as the on-coming nurse for
appellant, she acknowledged she would ultimately be responsible for any errors that
resulted upon taking the medication cart from appellant. N.T. pp. 159, 247-248; AA
Ex. 30. Watson further noted she completed medication counts for appellant “to
deescalate the conflict.” N.T. pp. 232, 246. Watson was removed, in part, for
completing medication counts for appellant. 19 N.T. p. 232.
As the on-coming medication nurse, appellant was responsible for
conducting the medication count and signing the chart. N.T. pp. 162, 172. By
having Watson complete the medication count in her place, both appellant and
Watson violated the SWVC Shift Narcotic Reconciliation Record Policy. N.T.
p. 162; AA Ex. 3. This was also a violation of the appointing authority’s Work
Rules, which require employees to adhere to policies related to medication/treatment
administration, notification, and documentation. AA Ex. 1 (p. 1). Additionally,
appellant violated the provision of the Work Rules prohibiting employees from
neglecting their duties or responsibilities by failing to perform assigned tasks or a
legitimate work assignment, as well as the prohibition against dishonesty. N.T.
p. 194; AA Ex. 1 (p. 1). Bender explained appellant’s failure to conduct medication
reconciliation counts during the shift exchange exhibits her failure to perform her
legitimate work assignments as a Licensed Practical Nurse. N.T. p. 195.
19 Watson was also removed for violating the appointing authority’s Workplace Violence and Bullying Prevention
Policies for touching a resident’s head. N.T. pp. 233, 246.
25
Not only is this a violation of the appointing authority’s Work Rules,
but Stewart also explained negative consequences could result where only one nurse
counts the medication, as Watson did for appellant. For example, Stewart stated
there could be a drug diversion or a resident could receive the wrong medication.
N.T. p. 159. Such errors could place the SWVC’s staff at legal risk. N.T. pp. 159-
160.
Upon review of the record, the Commission finds the appointing
authority has presented sufficient evidence to support the charge of appellant
neglecting to perform her duties. Despite being assigned to conduct medication
counts, appellant clearly failed to complete her assigned medication counts between
the shift exchange pursuant to the SWVC Nursing Policies and Procedures for the
Shift Narcotic Reconciliation Record, thereby violating the appointing authority’s
Work Rules.
Appellant’s Facebook Post
On June 3, 2019, during appellant’s suspension pending investigation,
Stewart received a forwarded email from Phillips. Phillips received an email from
Sean Lukachyk with an attached Facebook post made by appellant in response to
communications between appellant and Andy Knapp.20 N.T. p. 174; AA Ex. 31. On
June 1, 2019, Andy Knapp posted “SWVC just cut loose one of, if not the most
20 Appellant requested the Commission to take notice of the status of her Facebook post at issue. Appellant asserted
her Facebook post is a private message between her and Andy Knapp and it was made public by Sean Lukachyk. N.T.
pp. 175-176; AA Ex. 31.
26
knowledgeable LPN’s I have ever had the pleasure of working with!!! That’s their
loss. Take your talents elsewhere. You are better than that place!!!” AA Ex. 31. In
response to Andy Knapp’s post, appellant posted the following:
That’s a cesspool of toxicity! They want a bunch of sheep
working there who will bow @ their every whim. Want
me 2 cover-up their gross negligence. They’re gonna kill
sum1….oh w8….they already have more than once with
their incompetence. Yeah... they would rather have nurses
who cover shit up, double dose patients, & make errors
literally every single day than people who actually care
about the residents. Because the DON doesn’t want the
bad light shining on her princess ass after she walked n
after the lovely episode of leaving a pt. on a bedpan 4 3
days. Her & HR going around asking certain people 2
write statements against me because she told the charge
nurse she wants me fired because my documentation is a
legal issue. Meanwhile ur supposed 2 practice defensive
charting. I’ve never had a job defensive charting. I’ve
never had a job EVER criticize my charting. In fact
they’ve all praised it & it’s saved the asses of many n the
past. And it’s save my ass 3 times when being a witness n
depositions.
N.T. pp. 163-164; AA Ex. 31. Stewart explained she was the Director of Nursing
mentioned in appellant’s Facebook post. Stewart confirmed she neither wanted
appellant fired nor was she the Director of Nursing during the alleged bedpan
incident. N.T. p. 164. Stewart recalled corrective actions took place due to the
bedpan incident. N.T. p. 165. Stewart testified the SWVC’s license was never
suspended or lost due to the incident. N.T. pp. 165-166.
When asked about appellant’s allegations in her Facebook post, Adams
confirmed the SWVC has not been suspended from operating. N.T. p. 355. Adams
acknowledged the SWVC self-reported the bedpan incident to the appointing
27
authority. N.T. p. 357. Adams testified due to the referred bedpan incident, the
SWVC was fined and the SWVC prepared and implemented a plan of correction.
N.T. p. 356. Additionally, the SWVC received multiple surveys and the facility was
cleared of any deficiencies. At the time appellant made her Facebook post, Adams
affirmed the SWVC was not under any form of discipline and its license was in good
standing. N.T. p. 357.
Bender explained the content of appellant’s Facebook post was the
foundation for the charge of violating the appointing authority’s Work Rules. N.T.
pp. 195-196, 202; AA Ex. 31. The Work Rules prohibit “[a]ny action which would
reflect unfavorably on or discredit the Commonwealth or Department of Military
and Veterans’ Affairs, including but not limited to: public posts on social media,
news outlets, or websites.” N.T. p. 193; AA Ex. 1. Regarding her Facebook post,
appellant admitted during her second DPC that she did not see any problem with
what she posted by reasoning “No I wasn’t on state time. I wasn’t on a state
computer.” AA Ex. 10. Bender emphasized the content of appellant’s Facebook
post discredited the reputation of the SWVC as it directly alleges poor patient care
within the facility. N.T. p. 196; AA Ex. 31. Bender perceived appellant’s Facebook
post as threatening, intimidating, and interfering with his investigation. N.T. p. 196;
AA Ex. 31.
Upon review of the record, the Commission finds the appointing
authority presented sufficient evidence to support the charge that appellant’s
Facebook post discredited the appointing authority when the appellant flagrantly
alleged SWVC staff caused the death of residents through gross negligence. Bender
28
credibly emphasized how appellant’s comments were intimidating during his
pending investigation and how her allegations damaged the appointing authority’s
reputation in a public forum in direct violation of the appointing authority’s Work
Rules.
At the conclusion of the investigation of all the charges, Bender was
responsible for recommending appellant’s discipline. Before making the decision,
he reviewed Cuthbert’s disciplinary packet. Bender also took appellant’s prior
disciplinary history into account. 21 N.T. p. 197; AA Ex. 8. Based on the findings
of the investigation, the disciplinary packet review, and appellant’s DPCs, Bender
recommended appellant’s removal and drafted appellant’s removal letter dated
July 17, 2019. Comm. Ex. A; N.T. p. 187; AA Ex. 6. Commandant Adams agreed
with the recommendation supporting appellant’s removal. N.T. p. 354.
In summation, we find the appointing authority had just cause to
remove appellant. Appellant made a threatening statement referring to a gun in her
purse while in the workplace on May 17, 2019; she neglected her duties by failing
to communicate with staff and refusing to conduct medication counts; and she posted
an erosive Facebook post impacting the public’s trust in the appointing authority’s
ability to provide adequate patient care within the SWVC. Moreover, there is
sufficient evidence to support the charge of appellant making the gun statement,
which standing alone, would warrant appellant’s removal. Appellant’s failure to
properly execute her job duties and complete disregard to perform some of her duties
negatively impacts her competency and ability as a Licensed Practical Nurse. Long,
supra.
21 On May 8, 2019, appellant received a written reprimand for unauthorized behavior violating the appointing
authority’s Work Rules. N.T. p. 76; AA Ex. 8.
29
Appellant’s Discrimination Claims
Having found the appointing authority had just cause to remove
appellant, the Commission will consider whether appellant established her removal
was based upon discrimination. In an appeal alleging discrimination, the burden of
presenting evidence in support of all allegations of discrimination lies with the
appellant. Nosko v. Somerset State Hospital, 139 Pa. Commw. 367, 370-371, 590
A.2d. 844, 846 (1991). Section 2704 of Act 71 of 2018 provides:
An officer or employee of the Commonwealth may not
discriminate against an 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
nonmerit factors.
71 Pa.C.S.A § 2704. The provisions of Section 2704 are substantially the same as
the provisions in Section 905.1 of Act 286 (71 P.S. § 741.905a), and both sections
of the respective acts use virtually the same language.22 The prohibition set forth in
this section encompasses two general types of discrimination. First, “traditional
discrimination” encompasses claims of discrimination based on labor union
affiliation, race, sex, national origin or other non-merit factors; and second,
22 Section 905.1 provides:
905.1 Prohibition of Discrimination—No officer or employe[e] 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.
30
“technical discrimination” involves a violation of procedures required pursuant to
the Act or related Rules. Price v. Luzerne/Wyoming Counties Area Agency on Aging,
672 A.2d 409, 411 n. 4 (Pa. Commw. Ct. 1996), citing Pronko v. Department of
Revenue, 114 Pa. Commw. 428, 539 A.2d 462 (1988). When there is an allegation
of technical discrimination no showing of intent is required. There must be evidence,
however, to show appellant was harmed by the technical noncompliance or that
because of the peculiar nature of the procedural impropriety that he or she could
have been harmed but there is no way to prove that for certain. Pronko, 114 Pa.
Commw. at 439, 539 A.2d at 462. In the instant matter, this appeal involves a claim
of traditional discrimination based on retaliation, disparate treatment, and an
allegation of a Constitutional violation of appellant’s First Amendment Right of
freedom of speech.
Appellant’s Retaliation Claim
In analyzing claims of traditional discrimination under Section 2704 of
the Act, appellant has the burden of establishing a prima facie case of discrimination
by producing sufficient evidence, if believed and otherwise unexplained, indicates
that more likely than not discrimination has occurred. 71 Pa.C.S.A. § 2704;
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 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).
31
A retaliation claim is a specific subcategory of the broader category of
non-merit factor discrimination. In a retaliation case, appellant may establish a
prima facie case by proving 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, appellant was subjected to an adverse employment action by
the appointing authority; and 4) there is a causal connection between participation
in the protected activity and the adverse employment action. Robert Wholey Co.,
Inc. v. Pennsylvania Human Rel. Commn., 606 A.2d 982, 983 (Pa. Commw. 1992)
citing Brown Transport Corp. v. Pennsylvania Human Rel. Commn., 578 A.2d 555
(Pa. Commw. 1990). When participation in a protected activity and the occurrence
of an adverse employment action occurs within close proximity in time, causation is
inferred. Id. at 984.
Appellant believed the appointing authority did not initiate the
disciplinary process because of her gun statement. N.T. p. 258. Appellant argued
her removal was an act of retaliation for reporting medication errors to the appointing
authority. Appellant testified there were patients being sent out to the hospital and
none of the staff knew what was wrong with the patients. Appellant claimed she
reviewed their files and found patients being double dosed with antidepressants, anti-
hypertensives, and Coumadin. Appellant asserted when she reported the medication
errors, “it was frowned upon” and no one from management took any action. N.T.
pp. 259, 320. Appellant expressed her intent was to fix the medication errors for the
sake of the patients. N.T. p. 259.
32
Appellant listed times when she reported medication errors to the
appointing authority and did not receive any further information regarding the
investigations. On February 24, 2019, appellant reported a nurse who failed to give
a patient his dinner tray when it was turned in the next day by the dayshift. N.T.
p. 293; Ap. Ex. 27. On April 29, 2019, appellant reported a medication error
committed by the dayshift staff to Director of Nursing Stewart. N.T. p. 295; Ap.
Ex. 29. Appellant further contended she reported a dayshift staff member
improperly replacing a resident’s oxygen tubing without any labels, which was
against a protocol change regarding respiratory equipment changes. N.T. pp. 296-
297; AA Ex. 30. Appellant further explained she found a medication error
calculation committed by a dayshift employee, where the medication’s dose should
have been recorded as 26.75 ccs instead of the recorded 26.25 ccs. N.T. p. 317.
Director of Nursing Stewart testified she would receive medication
errors to investigate from appellant. Stewart confirmed three out of the five
medication errors were substantiated. As a result, the staff involved in the
medication errors were retrained. Stewart explained she did not communicate the
results of the investigations to appellant because she was not required to disclose the
findings to appellant. N.T. p. 182.
In support of appellant’s allegation, Watson described the procedure for
when she reported a medication error in SWVC. When she found a medication error,
Watson submitted the medication error to her supervisor. N.T. p. 237. Watson
explained she reported medication errors multiple times. Watson asserted
Registered Nurse Supervisor Immanuel Divakar refused and ignored medication
error complaints on several occasions. N.T. pp. 243, 251.
33
Rebutting Watson’s assertion that he refused and ignored Watson’s
medication error complaints, Divakar denied ever ignoring or refusing a medication
error complaint. N.T. p. 254. Divakar explained when he received a complaint of
an alleged violation of policies or medication errors, he investigated whether the
allegation was substantiated. Divakar testified he has experienced many false
allegations and miscalculations when a staff member submitted medication error
complaints to him. If a medication error is substantiated, Divakar contacted the
doctor, the resident’s family, and the resident. N.T. pp. 217, 254.
Appellant further argued her removal was also due in part to a
personality conflict between her and Stewart. N.T. p. 258. Registered Nurse Watson
noticed there was conflict between the dayshift and the evening shift due to the
dayshift staff believing appellant was after their nursing licenses. N.T. p. 232.
Watson stated “[t]here was a certain R.N. that has a personality conflict with
[appellant]. She baited her on a daily basis.” N.T. p. 230. Watson believes the
personality conflict began when appellant reported a medication error. N.T. p. 231.
Watson explained she reported the comment to Registered Nurse
Supervisor Divakar. N.T. p. 230.
Concerning appellant’s discrimination claim, appellant has failed to
present evidence substantiating a prima facie case of retaliation. Appellant asserted
her removal was in retaliation for submitting medication errors and a personality
conflict with Director of Nursing Stewart. The list of reported dates includes
August 3, 2018, February 24, 2019, and April 29, 2019, where her removal was
effective on July 17, 2019. While appellant presented a list of examples of when she
34
reported suspected medication errors to SWVC management, Stewart credibly
explained she did not provide appellant with the results of her reported medication
errors because she was not required to disclose the findings. Furthermore, Stewart
credibly testified she never expressed wanting to fire appellant. For appellant to
establish a prima facie case of retaliation, she must provide evidence of a causal
connection between the protected activity and the adverse employment action.
We find that although appellant engaged in a protected activity of
reporting suspected medication errors, of which three out of the five reports were
substantiated by Stewart, appellant failed to present how her reports had a causal
connection to her removal, especially in consideration of the time between her
reports and the removal. Robert Wholey Co., supra. Moreover, the appointing
authority presented credible evidence concerning the legitimate non-discriminatory
reasons for which appellant was removed. These reasons, detailed above, were
merit-related deficiencies in appellant’s performance as a Licensed Practical Nurse,
and clearly provided just cause to remove appellant. Henderson, supra.
Appellant’s Disparate Treatment Claim
Appellant contended there is a double standard of the application of
discipline at SWVC. Appellant stated on August 3, 2018, Registered Nurse
Kathleen Ibrahim barricaded appellant into a medical room. As a result, appellant
submitted a witness statement through email to Human Resource Analyst 2 Cuthbert.
N.T. p. 290; Ap. Ex. 25.
35
When asked if she was aware of appellant being shoved into a medical
room by a staff member, Stewart testified she was not aware of the incident. N.T.
p. 324. Similarly, Cuthbert testified she was not the person responsible for
addressing appellant’s harassment complaint against Ibrahim because she was on
medical leave. N.T. pp. 336-337, 339; AA Ex. 25. Nevertheless, Cuthbert did recall
appellant filing a complaint about a Nurse Aide putting her finger in appellant’s face
and pulling appellant into a medication room to yell at her. Cuthbert testified in
response to the incident, she removed the Nurse Aide from the unit but did not move
appellant from the unit. N.T. p. 342. In rebuttal, appellant argued the Nurse Aide
was not removed from the unit due to harassing appellant but because she was not
providing care to a resident. N.T. p. 343.
Appellant further presented Registered Nurse Supervisor Divakar’s
testimony regarding an incident that occurred on March 23, 2019. Registered Nurse
Supervisor Divakar went to the 2 South Unit in SWVC after he received a call from
appellant, who told him that “I can’t put up with this, as I am being treated with an
attitude. I was told by a morning staff that my name was run all over the place by
morning staff. Why were they talking about me?” When he approached 2 South
Unit, Divakar did not see any interactions that alarmed him to cause any further
action. N.T. p. 219; AA Ex. 13. After he did not see any alarming interactions,
Divakar told the Registered Nurse on the unit and appellant if there were any
allegations they would like to report, then they would have to submit a written
statement. N.T. p. 220; AA Ex. 13
36
To establish a disparate treatment claim, an employee must demonstrate
that she was treated differently than others who were similarly situated.
Nwogwugwu, 141 Pa. Commw. at 40, 594 A.2d at 851. We are not convinced
appellant suffered disparate treatment from an incident that took place in 2018.
Specifically, appellant, as a Licensed Practical Nurse, is not similarly situated to
Kathleen Ibrahim, who was a Registered Nurse, or a Nurse Aide. While being
allegedly pulled and barricaded into a medical room is unacceptable conduct, these
actions are not the same offenses appellant committed in this appeal. Since appellant
failed to present how these alleged individuals and incidents are similarly situated to
her own disciplinary action, appellant failed to submit sufficient evidence of
disparate treatment to meet her burden of persuasion. Nwogwugwu, supra.
Appellant’s Freedom of Speech Claim
We now turn to the First Amendment implications of appellant’s
Facebook post on June 1, 2019. During her suspension pending investigation,
appellant and Andy Knapp were communicating through Facebook. In response to
Andy Knapp’s post, appellant’s Facebook post reads as follows:
That’s a cesspool of toxicity! They want a bunch of sheep
working there who will bow @ their every whim. Want
me 2 cover-up their gross negligence. They’re gonna kill
sum1….oh w8….they already have more than once with
their incompetence. Yeah... they would rather have nurses
who cover shit up, double dose patients, & make errors
literally every single day than people who actually care
about the residents. Because the DON doesn’t want the
bad light shining on her princess ass after she walked n
after the lovely episode of leaving a pt. on a bedpan 4 3
37
days. Her & HR going around asking certain people 2
write statements against me because she told the charge
nurse she wants me fired because my documentation is a
legal issue. Meanwhile ur supposed 2 practice defensive
charting. I’ve never had a job defensive charting. I’ve
never had a job EVER criticize my charting. In fact
they’ve all praised it & it’s saved the asses of many n the
past. And it’s save my ass 3 times when being a witness n
depositions.
N.T. pp. 163-164; AA Ex. 31. Appellant argues her June 1, 2021, Facebook post
was protected under her First Amendment Right of Free Speech. Ap. Br. In
response, the appointing authority argues appellant’s Facebook post does not touch
a matter of public concern and her removal was appropriate in relation to her
Facebook post. AA. Br. Both the appointing authority and appellant rely upon the
Pennsylvania Supreme Court’s analysis in Carr v. Department of Transportation,
upholding the Commission’s dismissal of a probationary employee’s appeal of her
removal from probationary Roadway Programs Technician employment due to
inappropriate behavior stemming from her Facebook post on May 24, 2016.23 Carr
v. Department of Transportation, 230 A.3d 1075, 1077-78 (Pa. 2020).
23 In Carr, the appellant posted a “rant” through her personal Facebook account to a closed Facebook group “Creeps
of Peeps”, where she identified herself as an employee of the Department of Transportation. Id. at 1077. The
appellant’s original post was the following:
Rant: can we acknowledge the horrible school bus drivers? I’m in PA almost on
the NY boarder [sic] bear [sic] Erie and they are hella scary. Daily I get ran [sic]
off the berm of our completely wide enough road and today one asked me to t-
bone it. I end this rant saying I don’t give a flying shit about those babies and I
will gladly smash into a school bus[.]
Id. at 1077.
38
It is well settled that “a state has a heightened interest in regulating the
speech of its employees.” Carr, 230 A.3d at 1085; citing Pickering v. Bd. of Educ.
of Twp. High Sch. Dist., 391 U.S. 563, 568 (1968).24 When a citizen enters
government service, the citizen must accept certain limitations on her freedom. Id.
at 1087; citing Garcetti v. Ceballos, 547 U.S. 410, 418 (1951). As such, the
government, as an employer, must “have wide discretion and control over the
management of its personnel and internal affairs. This includes the prerogative to
remove employees whose conduct hinders efficient operation and to do so with
dispatch.” Id. at 1088; citing Connick v. Myers, 461 U.S. 138, 151 (1983).25
When analyzing an employee’s limited freedoms under a First
Amendment claim, the Commission must consider the following: 1) the public
importance of the speech, 2) the nature of the injury to the agency, and 3) factors
which may mitigate or aggravate the injury to the agency. Id. at 1085; citing Sacks
v. Com., Dept. of Pub. Welfare, 465 A.2d 981; 989 (Pa. 1983).
24 In Pickering, a public-school teacher was terminated after submitting a letter to a local newspaper criticizing the
School Board and Superintendent for handling of the former revenue raising measures. Pickering, 391 U.S. at 564.
Determining the teacher’s letter and enclosed statements “were critical of his ultimate employer but which are neither
shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in
the classroom or to have interfered with the regular operation of the schools generally”, the Supreme Court of the
United States held the school did not have a greater interest in regulating the teacher’s speech. Id. at 573.
25 In Connick, an assistant district attorney circulated a survey to fifteen assistant district attorneys regarding the
District Attorney’s Office’s transfer policy, office morale, the need for a grievance committee, the level of confidence
in supervisors, and whether the employees felt pressured to work in political campaigns. Connick, 461 U.S. at 141.
The assistant district attorney’s survey was presented to the District Attorney and the assistant district attorney was
removed from her employment due to her survey being an act of insurrection. Id. Applying the Pickering balancing
test, the Supreme Court of the United States held the survey “touched upon matters of public concern in only a most
limited sense”, which permitted the District Attorney to take appropriate action which he reasonably believed would
disrupt the office, undermine his authority, and destroy close working relationships.” Id. at 154.
39
Turning to the first element, an employee’s speech implicates a matter
of public concern if the speech’s content, or context address a matter of political,
social, or other area of interest to the community. Id. at 1079; citing Miller v. Clinton
Cnty., 544 F.3d 542, 548 (3d Cir. 2008). We find appellant’s Facebook post touched
on a matter of public concern. Specifically, our review of appellant’s Facebook
post’s context and content reveals appellant directly identified the appointing
authority’s SWVC and its employees. Appellant accused SWVC staff of committing
“gross negligence” that allegedly caused the deaths of residents. Like in Carr, where
the appellant’s “rant” identified the poor driving habits of individuals who are
responsible for the safe transportation of school children,26 appellant’s Facebook
post directly alleges gross negligence in patient care performed by the staff of the
appointing authority’s SWVC, identifies the current Director of Nursing, and
describes a bedpan incident that the appointing authority self-reported. We are
convinced appellant’s Facebook post clearly addresses an interest to the community
regarding patient care to veterans within a government operated facility. As such,
appellant’s Facebook post touches on a matter of public concern.
Having found appellant’s Facebook post touches a matter of public
concern, we now turn to the nature of the injury to the appointing authority resulting
from appellant’s Facebook post. To determine whether an injury occurred, and
discipline was appropriate, “there is a calculus of inquiry required in First
26 Considering the appellant’s post highlighted the poor driving habits of an individual entrusted to safely transport
school children, the Court held the appellant’s “rant” raised an issue of public concern. Id. at 1089.
40
Amendment government employee cases in which as the First Amendment interest
in speech rises, so does the government’s obligation to react with caution
disciplining the employee, if at all, only when injury to the agency is more than
speculative.” Id. at 1085; citing Sacks, 465 A.2d at 989. In order to demonstrate an
employee’s speech impaired its efficient operations, “a government employer need
not prove that the employee’s speech actually disrupted efficiency, but only that an
adverse effect was reasonably to be apprehended.” 27 Id. citing Grutzmacher v.
Howard County, 851 F 3d 332, 345 (4th Cir. 2017). Based on the disturbing
references to the SWVC and allegations of gross negligence and the death of
veterans under its patient care, we are convinced appellant’s Facebook post would
reasonably cause an adverse effect to the agency by damaging its reputation to
provide proper patient care to veterans within the SWVC.
In consideration that appellant’s Facebook post touches a matter of
public concern, and that the agency suffered a reasonably apprehended injury, we
look at the extent of the injury by applying the mitigating or aggravating factors set
forth in Sacks. The factors outlined in Sacks28 are as follows:
1. Whether because of the speech, the government
agency is prevented from efficiently carrying out its
responsibilities;
27 Upon review of the appellant’s “rant”, the Court explained “if her words alone could erode the public’s trust in her
employer’s mission, the Department acted reasonably in terminating her employment.” Carr, 230 A.3d at 1088.
28 In Sacks, a Department of Public Welfare employee spoke as a private citizen at a public hearing held by the Health
Systems Agency of Southeastern Pennsylvania, where he asserted the non-profit entity, the Philadelphia Health
Management Corporation, made “an apparent rip-off” by making a profit from a child health screening program.
Sacks, 465 A.2d at 983. As a result, the Department of Public Welfare suspended the employee for ten days. Id. at
985. While the Commission upheld the employee’s suspension and the Commonwealth Court affirmed, the
Pennsylvania Supreme Court reversed explaining since the employee’s statements accurately portrayed matters of
public concern, i.e. a non-profit entity profiting from a child health screening program, they did not harm the agency.
Id. at 989.
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2. Whether the speech impairs the employee’s ability
to carry out his or her own responsibilities;
3. Whether the speech interferes with the essential and
close working relationships;
4. The manner, time, and place in which the speech
occurs;
5. Whether the speaker is in a position in which the
need for confidentiality was so great as to justify
dismissal for even completely accurate public
statements;
6. Whether narrowly drawn grievance procedures
required submission of complaints about the
operation of the agency to superiors for action prior
to taking complaints to the public; and
7. Whether a statement that was knowingly or
recklessly false, if it were neither shown nor could
reasonably be presumed to have harmful effects,
would still be protected by the First Amendment.
Id. citing Sacks, 465 A.2d at 988-89.29 The applicable factors relevant to appellant’s
Facebook post are as follows: 1) whether because of the speech, the government
agency is prevented from efficiently carrying out its responsibilities; 2) whether the
29 While the appellant’s “rant” did not affect her ability to carry out her responsibilities, her essential and close working
relationships, and her time, place, and manner of her post weighed in favor of the Department of Transportation, the
Court held the “rant” prevented the Department from efficiently carrying out its responsibilities. Carr, 230 A.3d at
1090. Since the appellant’s speech touched a matter of public concern and due to the statements being more contrary
to the Department’s mission to providing safe roadways, which detrimentally effected its ability to carry out its
mission, the Court determined appellant’s removal due to her “rant” was appropriate. Id.
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speech impairs the employees ability to carry out his or her own responsibilities;
3) whether the speech interferes with the essential and close working relationships;
and 4) the manner, time and place in which the speech occurs.30
First, we inquire whether because of appellant’s Facebook post, the
appointing authority was prevented from efficiently carrying out its responsibilities.
We take Administrative Notice of the Department of Military and Veterans Affair’s
Mission: “to provide quality service to commonwealth’s veterans and their families,
and to oversee and support the members of the Pennsylvania National Guard.”
Mission, Pennsylvania Department of Military and Veterans Affairs,
https://www.dmva.pa.gov/Pages/Mission.aspx. Appellant’s accusations within her
post regarding “gross negligence” and resident deaths directly discredit the
appointing authority’s ability to provide quality service to veterans and their
families. Appellant did not present evidence to support her accusation.
Additionally, as emphasized by Bender, the timing of appellant’s
Facebook post being so close in proximity to her suspension pending investigation
and ongoing investigation interfered with the appointing authority’s ongoing
operations in investigating appellant’s behavior. Based on the offensive and
unsupported accusations directly identifying the SWVC, it is clear an adverse effect
would reasonably be apprehended which would prevent the appointing authority and
SWVC from carrying out its responsibilities to provide quality patient care to
veterans. As such, we find the first factor weighs in favor for the appointing
authority.
30 We find factors 5), 6), and 7) are not applicable to this appeal.
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Next, we consider whether appellant’s Facebook post impaired
appellant’s ability to carry out her own responsibilities and whether appellant’s
Facebook post interferes with her essential and close working relationships. Like in
Carr, where the appellant’s “rant” did not impair her ability to perform her
responsibilities, appellant’s Facebook post did not impact her ability to perform her
functions as a Licensed Practical Nurse, which weighs in favor of appellant.
However, appellant’s Facebook post does interfere with her close and essential
working relationships. In her post, appellant directly references Director of Nursing
Ronna Stewart and callously refers to Stewart not wanting “bad light shining on her
princess ass.” AA Ex. 31. Stewart credibly testified that the DON referenced in
appellant’s Facebook post was her, but she was not the DON during the referenced
bedpan incident. It is inconceivable how appellant’s Facebook post does not
interfere with her essential working relationship with the acting Director of Nursing.
Moreover, appellant’s Facebook post interferes with her close working relationships
with her fellow coworkers considering her coworkers not only discovered
appellant’s post on a public forum, Facebook, but also, reported it to management.
As such, it is apparent appellant’s Facebook post interfered with her essential and
close working relationships, which weighs in favor for the appointing authority.
Lastly, we analyze the manner, time and place in which appellant’s
Facebook post occurred. Although appellant’s Facebook post was created during
her off-work hours in the privacy of her own home, the time, manner, and place in
which appellant’s speech occurred weighs in favor of the appointing authority.
While the timing of appellant’s post being only one day after her suspension pending
investigation can lead the reader to consider the post may be her reactive,
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opinionated outburst, Bender credibly explained appellant’s post was considered an
attempt to intimidate, threaten, and interfere with appellant’s ongoing investigation.
Notably, the appointing authority’s employees brought appellant’s Facebook post to
Stewart’s attention due to the perceived harm it would cause the agency.
Articulated in his concurring opinion in Carr, Justice Wecht noted “[a]
public employee’s speech on social media has the potential to be broadcast
worldwide within a short period of time. Social media commentary, even posted
during non-working hours, is not immune to adverse employment consequences.”
Carr, 230 A.3d at 1093. Justice Wecht warned “[r]ather than posting without
consideration of consequences, public employees should give deliberate thought to
their social media use, and public employers should provide clear guidelines in this
regard.” Id. Bender credibly identified that the appointing authority’s Work Rules
prohibit public posts on social media which would reflect unfavorably or discredit
the appointing authority. Appellant signed, agreed, and acknowledged to abide by
the appointing authority’s Work Rules; yet despite the clear guidelines, appellant
chose to disregard them.
As articulated by the Court in Carr:
[T]he Government, as an employer, must have wide
discretion and control over the management of its
personnel and internal affairs. This includes the
prerogative to remove employees whose conduct hinders
efficient operation and to do so with dispatch. Prolonged
retention of a disruptive or otherwise unsatisfactory
45
employee can adversely affect discipline and morale in the
work place, foster disharmony, and ultimately impair the
efficiency of an office or agency
Id at 1088 citing Connick, 461 U.S. 151 (quoting Arnett v. Kennedy, 416 U.S. 134
(1974). Based on the egregious and erosive nature of appellant’s post, it is clear to
us that appellant’s post would reasonably foster disharmony in the workplace and
cause an adverse effect on the appointing authority to perform its functions in
providing quality patient care to veterans.
Summary
The Commission finds the appointing authority established just cause
to remove appellant. The Commission also finds appellant failed to present a causal
nexus between her reports of medication errors and her removal as retaliation or
motivated by discrimination. The appointing authority further took appropriate
action in response to appellant’s disruptive Facebook post. Accordingly, we enter
the following:
CONCLUSIONS OF LAW
1. The appointing authority has presented evidence
establishing just cause for removal under Section
2607 of Act 71 of 2018.
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2. Appellant has failed to present evidence
establishing discrimination violative of Section
2704 of Act 71 of 2018.
ORDER
AND NOW, the State Civil Service Commission, by agreement of its
members, dismisses the appeal of Leslie P. Dubich challenging her removal from
regular Licensed Practical Nurse employment with the Department of Military and
Veteran Affairs, and sustains the action of Department of Military and Veteran
Affairs in the removal of Leslie P. Dubich from regular Licensed Practical Nurse
employment, effective July 17, 2019.
State Civil Service Commission
Maria P. Donatucci
Chairwoman
Gregory M. Lane
Commissioner
Bryan R. Lentz
Commissioner
Mailed: September 23, 2021
