Nevling v. Commonwealth

527 A.2d 610, 106 Pa. Commw. 625, 1987 Pa. Commw. LEXIS 2231
CourtCommonwealth Court of Pennsylvania
DecidedJune 16, 1987
DocketAppeals, Nos. 2376 C.D. 1985 and 2377 C.D. 1985
StatusPublished
Cited by4 cases

This text of 527 A.2d 610 (Nevling v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nevling v. Commonwealth, 527 A.2d 610, 106 Pa. Commw. 625, 1987 Pa. Commw. LEXIS 2231 (Pa. Ct. App. 1987).

Opinion

Opinion by

Judge Barry,

These appeals result from orders of the State Civil Service Commission (Commission), which concluded that Department of Public Welfare (DPW) employees Theresa R. Nevling and Dorothy M. Brennan (petitioners) had been properly furloughed from their jobs. The Commission decisions also concluded specifically that neither petitioner had been the victim of discrimination in the course of the furloughs.

Petitioners were and are presently1 employed by the Southeast Pennsylvania Institutional Area Service Unit, DPW (SPIASU), an agency which prepares food at a central location for delivery and distribution to area DPW facilities requiring food service. Petitioner Brennan, before her furlough, was a principal supervisor at SPIASU, holding the rank of Food Service Manager II (FSM II). Petitioner Nevling, meanwhile, held the rank of Cook II, a kitchen job which included “lead worker” duties of a supervisory nature.

On November 1, 1984 services to one of the facilities which SPIASU served, Woodhaven Center, a men[628]*628tal retardation program, were cancelled pursuant to a prior intra-agency ágreement.- As a result, the' number of “meals per meal”2 served by SPIASU decreased from approximately 850 to 550. This cancellation, as stated above, was predicted, and DPW thus planned a personnel reduction for SPIASU to correct for the loss of Woodhaven. The particulars of that reduction were described by the Commission in the following findings of fact:

7. The appointing authority [DPW] found that the decrease in the overall number of meals served amounted to a reduction in the total amount of work performed by the Dietary Unit-of approximately fifty percent, due to the complicated nature of meals which had been served at Woodhaven.
8. In order to determine the complement necessary to operate the Dietary Unit under the new requirements, the appointing- authority’s Institutional Dietary Consultant (Térefencko) performed two independent staffing studies based on the appointing authority’s workload after the loss of Woodhaven Center.
9. Based on the result of the staffing studies, Terefencko recommended [52]' positions as the necessary complement for the Dietary Unit, and also recommended a corresponding reduction in the staffing level structure to conform with the new total.

Commissions Decisions at 2.

Having concluded that this reduction was appropriate, DPW established an appropriate classification scheme and then implemented a furlough procedure. [629]*629Petitioner Brennan was “furloughed from her position [as FSM II] and subsequently offered a bump into a Food Service Manager I [FSM I] position.” Petitioner Nevling was “furloughed from her position [as Cook II] and subsequently offered a bump into a Cook I position.” Petitioners accepted the new positions but nevertheless appealed the furloughs to the Commission.

At a hearing before the Commission DPW presented witnesses who explained the methodology used in the determination that a personnel reduction and reorganization at SPIASU was appropriate due to the loss of Woodhaven as a major food service client. Petitioners, however, testified that, notwithstanding the loss, the nature of their duties in their new classifications had not changed. Petitioners also submitted testimony in support of their discrimination claims. The Commission, however, dismissed the appeals, concluding that the furloughs were justified and that discrimination had not been shown. Petitioners then instituted the present appeal.

Our own review is limited to determining whether the Commissions findings are supported by substantial evidence, whether an error of law was committed, and whether any constitutional rights were violated. Estate of McGovern v. State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). Petitioners allege on appeal (1) that substantial evidence does not support the existence of a lack of work justifying the furlough action;. (2) that, even if a lack of work existed, DPW acted unlawfully and discriminatorily in furloughing them when the alternative procedure of reclassification with “salary save” was available; and (3) that the Commission erred in concluding that discrimination had not been proven.

[630]*6301. Propriety of the Furlough Demonstration of Lack of Work

When the propriety of a furlough is challenged by a regular status employee, the burden of proof rests with the appointing authority to demonstrate justification for the action by showing either a lack of funds or lack of work. See Department of Public Welfare v. Magrath, 14 Pa. Commonwealth Ct. 257, 261-62, 321 A.2d 403, 404-05 (1974). In the present case, the appointing authority sought to establish the propriety of the. furloughs by showing that a lack of work existed due to the loss of Woodhaven as a food service client. We conclude that the Commission ruled properly in finding that DPW made such a showing.

Toward that end DPW presented testimony from its dietary consultant, Terefencko, who explained the staffing studies she performed which ultimately concluded that a reduction in force and realignment of structure at SPIASU was in order because of the substantial reduction in the number of meals it was responsible for each day. Terefencko explained that the number of “meals per meal” had been reduced from 850 to 550 per day, and that this reduction was especially significant because the preparation of food for Woodhaven was often more involved than that for the other' facilities. Terefencko thus concluded that a total reduction of employees was merited and that the structure of the supervisory staff should be adjusted accordingly. Pursuant to this conclusion, Terefencko and other witnesses explained, Petitioner Brennan, a FSM II, was furloughed, as was Petitioner Nevling from her job as Cook II. Both of these jobs, it is to be noted, included supervisory duties.

Terefenckos testimony was given credence by the Commission, and, indeed, the common-sense inference that a work reduction took place due to the net loss of [631]*631one third of the food for which SPIASU was responsible is not seriously contested by the petitioners. Instead, petitioners argue that DPWs estimate of the work-loss was too high, and that an excess number of furloughs resulted. More to the point involved herein, however, petitioners also argue that the concomitant supervisory realignment was misconceived, because (1) in Brennans case, the Food Service Manager I position she assumed continued to include the same job tasks as did the abolished FSM II job; and (2) in Nevlings case, the Cook I position to which she was “bumped” continued to include the same supervisory powers she possessed while classified as a Cook II, notwithstanding instructions, in her case, that she was no longer to function in any supervisory capacity. In short, petitioners maintain that while a loss of work may have occurred, the loss did not affect their positions, and petitioners hence argue further that the furlough—and subsequent reorganization—was unmerited.

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Bluebook (online)
527 A.2d 610, 106 Pa. Commw. 625, 1987 Pa. Commw. LEXIS 2231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nevling-v-commonwealth-pacommwct-1987.