G.M. Kelly-Pimentel, Ph.D. v. SCSC (DOC)
72 C.D. 2016
Pa. Commw. Ct.Feb 1, 2017Background
- Petitioner G. Marisa Kelly-Pimentel (African‑American, Ph.D.) applied for a Department of Corrections Education Administration Manager (EAM) vacancy for the Western Region; Terri Fazio (Caucasian) was later selected.
- Job posting required management/education experience (one year as Education Administration Supervisor or six years professional education experience, incl. four years administration) and listed broad administrative duties.
- Interview panel (two senior Bureau officials) asked identical 13 questions to most candidates; panelists ranked Fazio highest based on her specific, targeted answers and familiarity with Department procedures; Petitioner’s answers were characterized as general and unfocused.
- Petitioner appealed her non‑selection to the State Civil Service Commission alleging technical (procedural) and traditional (race‑based) discrimination; Commission dismissed the appeal and the Commonwealth Court affirmed.
- The Commission found no persuasive evidence of preselection, no improper reliance on non‑job criteria (Central Office familiarity was job‑related), no discriminatory use of union affiliation, and no showing of out‑of‑class preference for Fazio.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Technical discrimination — preselection | Kelly‑Pimentel argued Department preselected Fazio and interviews were pretextual | Department said selection based on interview performance, experience, and job‑related factors; no evidence of calculated preselection | No preselection; Commission’s credibility findings supported non‑preselection conclusion |
| Technical discrimination — use of unposted criteria / flawed interview | Petitioner argued panel relied on Central Office experience and asked Fazio questions not asked of all candidates (e.g., GED) | Department argued Central Office familiarity is reasonably encompassed by job duties; contested GED question was not asked only to Fazio — candidates raised GED in answers | Held job‑related factors were properly considered; no evidence a unique question was posed to Fazio |
| Traditional discrimination — race | Petitioner argued race explained non‑selection and cited statistical underutilization of minorities | Department noted meeting minimums, nondiscriminatory interview rationale, and lack of targeted policy causing disparity | No traditional discrimination; petitioner failed to produce affirmative evidence linking selection to race |
| Burden / pretext (Henderson) and retaliation | Petitioner asserted selection was pretextual and referenced prior grievance (retaliation) | Department produced nondiscriminatory reasons; panel credibility resolved factual disputes; retaliation not raised before Commission | Court: petitioner did not develop pretext argument before Commission; retaliation claim not preserved on appeal; burden remained on petitioner and she failed to meet it |
Key Cases Cited
- Pronko v. Dep’t of Revenue, 539 A.2d 456 (Pa. Cmwlth. 1988) (technical discrimination defined as agency violating Act or Civil Service Rules)
- Price v. Luzerne/Wyoming Cntys. Area Agency on Aging, 672 A.2d 409 (Pa. Cmwlth. 1996) (two‑part test for technical discrimination: violation and harm)
- Nwogwugwu v. Dep’t of Health, 594 A.2d 847 (Pa. Cmwlth. 1991) (burden‑shifting framework after prima facie showing)
- Griggs v. Duke Power Co., 401 U.S. 424 (U.S. 1971) (disparate‑impact theory where neutral requirement targets a protected group)
- Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, 135 S. Ct. 2507 (U.S. 2015) (disparate‑impact claim requires pointing to a defendant policy causing statistical disparity)
- Henderson v. Commonwealth, 560 A.2d 859 (Pa. Cmwlth. 1989) (prima facie proof and employer’s rebuttal; pretext analysis)