Perry v. State Civil Service Commission

38 A.3d 942, 2011 Pa. Commw. LEXIS 631
CourtCommonwealth Court of Pennsylvania
DecidedNovember 14, 2011
StatusPublished
Cited by36 cases

This text of 38 A.3d 942 (Perry v. State Civil Service Commission) 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
Perry v. State Civil Service Commission, 38 A.3d 942, 2011 Pa. Commw. LEXIS 631 (Pa. Ct. App. 2011).

Opinion

OPINION BY

Judge SIMPSON.

In this appeal of an order of the State Civil Service Commission (Commission), Peter E. Perry (Perry) challenges his removal from the position of Workers’ Compensation Judge (WCJ) Manager with the Department of Labor and Industry (L & I). The Commission determined L & I proved just cause for Perry’s removal based on credible evidence that Perry possessed a handgun in his office, left a handgun in his vehicle while parked on property owned or leased by L & I, and showed the handgun to his subordinate while in his vehicle. The Commission determined this conduct violated L & I’s prohibition on the possession of weapons in the workplace. Perry argues the Commission erred in: (1) determining his pre-termination hearing satisfied the requirements set forth by the U.S. Supreme Court in Loudermill;1 (2) concluding L & I proved just cause for removal; and, (3) dismissing his discrimination claim. Upon review, we affirm.

[946]*946I. Factual and Procedural Background

Perry began Ms employment with L & I in 1972; he retired in 2001. Perry returned to a WCJ position with L & I in 2006.

In August 2008, Perry was promoted to WCJ Manager assigned to the Southeastern District Office2 of L & Ps Workers’ Compensation Office of Adjudication. The Southeastern District includes three facilities, which are located at 8th and Arch Streets in Philadelphia, Northeast Philadelphia and Upper Darby. Perry worked at the Arch Street location. Perry supervised 68 employees, including approximately 24 WCJs.

In May 2003, L & I, through its Secretary, circulated a Weapons Policy Statement. Thereafter, in November 2006, the Secretary reissued the Weapons Policy Statement as an appendix to L & I’s Workplace Violence Manual. The 2003 and 2006 Weapons Policy Statements contain substantively identical language. Both policy statements specifically prohibit the possession of weapons, including, among other things, all forms of firearms, “while in or on property owned or leased by [L & I].” Commission Op., Finding of Fact No. 9; Reproduced Record (R.R.) at 133a-35a; Appointing Authority Exs. AA 2, AA3.

During his orientation after his return to employment, Perry received a copy of L & I’s 2003 Weapons Policy Statement. Also, the statement, when reissued, was distributed to employees.

Since December 2007, Perry held a license to carry a firearm. On occasion, Perry left his firearm in his car while at work. On one occasion in early 2009, Perry’s secretary, Shannon Finnegan, observed Perry in his office with his weapon in its holster. R.R. at 42a-43a, 44a-45a. Also, on another occasion during this time-frame, Perry inadvertently brought his weapon into his office in his briefcase. R.R. at 119a-120a.

On October 27, 2009, Perry attended a monthly executive staff meeting at L & I’s Offices in the Eastgate Building in Harrisburg. Perry drove his personal vehicle to the meeting, and he parked his vehicle in a garage on the ground floor of the Eastgate Building.

Saundra Parker, the Administrative Officer for the Southeastern District, also attended the October 27 meeting. Parker traveled to Harrisburg by train, and she intended to return to Philadelphia by train. At the end of the meeting, Parker accepted a ride to the train station from Perry. Perry subsequently offered to allow Parker to drive back to Philadelphia with him in his vehicle, and she accepted. Five to ten minutes into the ride, Perry advised Parker he had his licensed weapon under the driver’s seat of the vehicle. R.R. at 51a.

On November 16, 2009, Perry’s immediate supervisor, MaryKay Rauenzahn, directed Perry to report to her office in Harrisburg to meet with her the next morning. At that meeting, Perry was advised that the meeting was a factfinding meeting. During the meeting, Perry was given an opportunity to discuss: (1) whether he showed his weapon to Parker while returning to ■ Philadelphia on October 27; (2) whether he left his weapon in his car while parked at the Arch Street office; and, (3) whether he brought the weapon into the Arch Street office.

[947]*947During the meeting, Perry acknowledged, at times, keeping his weapon in his car while it was parked in a lot leased for use by L & I as well as showing his weapon to Parker during the drive from Harrisburg to Philadelphia. R.R. at 65a. However, Perry denied ever bringing the weapon into the workplace. In addition to Rauenzahn, two representatives from L & I’s Office of Human Resources, Roger Williams and Shawn Kupchella, attended the meeting. At the conclusion of the fact-finding meeting, Rauenzahn advised Perry that he was suspended.

Thereafter, by letter dated November 24, 2009, Perry received written notice of his suspension, pending investigation, effective November 17. That letter stated, “[L & I] is investigating allegations of your violation of Management Directive 205.38, workplace violence and [L & I’s] Weapons Policy.” F.F. No. 2; R.R. la; Commission Ex. A. The letter was signed by Neil Cash-man, L & Fs Acting Deputy Secretary for Administration, “FOR: Sandi Vito, Secretary of [L & I].” Id.

Shortly thereafter, by letter dated January 7, 2010, Perry was advised he would be removed from his employment effective at the close of business. That letter provided the following reason for the personnel action:

Specifically, you violated the [L & I’s] Weapons Policy (Information Bulletin 2003-04) and Management Directive 205.33 (Workplace Violence). On October 27, 2009, you showed a gun to your subordinate in your private vehicle while utilizing your vehicle on Commonwealth business, creating fear in your subordinate. You were also observed in possession of a gun in the workplace by another subordinate. During the November 17, 2009 fact-finding meeting, you admitted that you are aware of the policies and that you did, in fact, show a gun to your subordinate in your private vehicle while utilizing it for Commonwealth business and had a gun in your personal vehicle parked on property owned or leased by the Commonwealth. This behavior is strictly prohibited. [F & I] cannot and will not tolerate weapons in the workplace nor violence or threats of violence. Further, your actions have demonstrated that [F & I] can no longer depend upon your judgment to make sound choices and appropriately carry out the goals of the [Workers’ Compensation Office of Adjudication] with integrity.

F.F. No. 3; R.R. at 7a; Commission Ex. C. The letter was signed by Cashman, L & I’s Acting Deputy Secretary for Administration, “FOR: Sandi Vito, Secretary of [L & I].” R.R. at 7a; Commission Ex. C. Perry challenged his removal before the Commission. Hearings ensued.

After the hearings, the Commission issued a decision in which it determined F & I proved just cause to remove Perry. Specifically, the Commission determined F & I presented “credible evidence in support of both the asserted standards — ie., the Management Directive on Workplace Violence and the Weapons Policy Statement— and each of the three actions by [Perry] it claimed as violations of those standards— ie., possession of a firearm in his office, leaving a firearm in his vehicle parked at [L & I] job sites and showing the firearm in his vehicle to his subordinate.” Commission Op. at 23-24. Thus, the Commission dismissed Perry’s appeal.

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Cite This Page — Counsel Stack

Bluebook (online)
38 A.3d 942, 2011 Pa. Commw. LEXIS 631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-state-civil-service-commission-pacommwct-2011.