McHale v. Commonwealth

514 A.2d 290, 100 Pa. Commw. 148, 1986 Pa. Commw. LEXIS 2476

• Court: Commonwealth Court of Pennsylvania
• Decided: August 28, 1986
• Docket: Appeal, 247 C.D. 1985
• Status: Published

Opinions

Opinion by

Senior Judge Kalish,

Petitioner, James C. McHale, petitions for review of an order of the State Civil Service Commission (Commission), which denied his request for a hearing and dismissed his discrimination charge. Petitioners petition for review seeks to invoke this courts original jurisdiction pursuant to 42 Pa. C. S. §761 and our appellate jurisdiction pursuant to 42 Pa. C. S. §763. In our original jurisdiction, petitioner seeks relief in the nature of mandamus. We note initially that petitioner has improperly sought to invoke our original jurisdiction. Where a Commonwealth agency has finally denied a request for a hearing, review thereof is properly, and solely, addressed to our appellate jurisdiction. O’Brien v. State Employees Retirement System, 503 Pa. 414, 469 A.2d 1008 (1983). We will, therefore, dismiss the petition for review to the extent that it seeks to invoke our original jurisdiction.

Petitioner works for the Department of Transportation (DOT) in Engineering District 4-0. DOT’s Bureau of Personnel conducted a classification and organization survey of petitioners office in October, 1983. As a result of the survey, petitioner, who had previously been classified as a Traffic Control Specialist Supervisor (Pay range 41), was reclassified downward to Traffic Control Specialist (Pay range 38). The reclassification allegedly reflected his current job duties. After receiving notice of his reclassification, petitioner timely notified the Commission of his desire to appeal, and to have a hearing on the reclassification decision. Petitioner filed his appeal using the Commissions appeal request form, and indicated on the form that he was appealing a “demotion” under section 951(a) of the Civil Service Act (Act), Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §741.951(a) (Purd. Suppl. 1985), and an “act of discrimination” under section 951(b) of the Act, 71 P.S. §741.951(b). The Commission, after conducting an investigation, issued an order on December 13, 1984, which denied petitioners request for a hearing and dismissed his appeal.

On appeal, petitioner contends that he was entitled to a hearing since he was demoted and that the change in his employment status constituted an improper and discriminatory demotion because it was based on non-merit factors. Our scope of review of a Civil Service Commission order is limited to a determination of whether constitutional rights were violated, or whether findings of fact are supported by substantial evidence. Johnson v. Department of General Services, 91 Pa. Commonwealth Ct. 96, 496 A.2d 1268 (1985).

A Civil Service employee who appeals to the Commission pursuant to section 951(a) of the Act, on the ground that he or she was improperly demoted, must show first that a demotion and not a reclassification downward, did in fact occur. See Johnson.

In Carr v. Department of Public Welfare, 72 Pa. Commonwealth Ct. 78, 456 A.2d 240 (1983), a state employees duties were reclassified, but his pay classification remained the same. There, this court held that no demotion took place. However, in Lawrence v. Department of Labor and Industry, 69 Pa. Commonwealth Ct. 628, 452 A.2d 108 (1982), where a state employees promotion to a higher class was retracted, this court concluded that the retraction was really a demotion. Where an employee retains his or her classification and salary range, no demotion can be said to have occurred. Shaefer v. West Chester State College, 54 Pa. Commonwealth Ct. 327, 421 A.2d 502 (1980).

DOT contends that petitioner was not demoted since his salary remained the same. However, the feet that petitioners current rate of compensation remained the same is irrelevant to determining whether he was demoted. What is important is that the maximum salary for a Traffic Control Specialist Supervisor during the time when petitioner was reassigned was higher than the maximum salary for a Traffic Control Specialist, a non-supervisory position. Section 3(r) defines a demotion as “a change [in status] to a position in a class carrying a lower maximum salary.” Under the plain meaning of section 3(r), petitioners reassignment was a demotion.

Section 951(a) of the Act, 71 PS. §741.951(a), grants a regular employee the right to a hearing on the merits for a violation of the Act resulting in permanent separation, suspension for cause, furlough or demotion. Having concluded that petitioner was demoted, we find that petitioner had a legal right to a hearing and that the Commission erred in not granting him one. Therefore, we must vacate the Commissions decision on this issue and remand the case for a proper hearing.

Under section 951(b) of the Act, a state employee who is aggrieved by an alleged violation of section 905.1 of the Act, 71 P.S. §741.905(a), relating to discrimination in personnel actions because of non-merit factors, is entitled to a hearing. However, the employee must, on the Commissions appeal request form, allege sufficient facts to indicate a violation of the Acts prohibition against discrimination. Behm v. State Civil Service Commission, 90 Pa. Commonwealth Ct. 207, 494 A.2d 1166 (1985); Sienkiewicz v. Department of Public Welfare, 53 Pa. Commonwealth Ct. 445, 417 A.2d 874 (1980). Appeals under section 951(b) of the Act which do not state specific acts of discrimination may be dismissed. 4 Pa. Code §105.12(c).

We have carefully reviewed the appeal request form submitted by petitioner to the Commission and conclude that petitioner has made no allegations of discrimination. Petitioners appeal request form essentially complains that DOT failed to inform him that the survey was taking place, and that he was not given timely notice of the surveys results. Based on the information presented to the Commission in the form, we cannot say that petitioner has set forth any allegations of discrimination upon which he would be entitled to a hearing. We therefore must affirm the Commissions decision to dismiss petitioners appeal under section 951(b) of the Act.

Order

Now, August 28, 1986, the order of the State Civil Service Commission in Appeal No. 5407, dated December 13, 1984, is affirmed insofar as it denies petitioners request for a hearing under section 951(b) of the Act. Insofar as the Commissions order denies petitioners request for a hearing under section 951(a) of the Act, the decision is vacated and the matter remanded for a hearing on the merits. Jurisdiction relinquished.

To the extent that petitioners petition for review invokes our original jurisdiction, it is dismissed.