93 Pa. Commw. 639 | Pa. Commw. Ct. | 1985
Opinion by
This is an appeal by Johnnie Corley (Appellant) from an order of the State Civil ¡Service Commission (Commission) sustaining Appellant’s appeal from suspension and subsequent removal from his position as Psychiatric Aide I, regular status, and, hence, reinstating Mm, but denying him hack pay.
^ Appellant was suspended by the PhiladelpMa State Hospital, Department of Public Welfare (Appointing Authority) on January 26, 1984 pending investigation of charges that he inflicted bodily harm upon another employee, one Marilyn Brooks (Brooks) at the work site. By letter dated February 9, 1984 Appellant was removed from his position effective February 10,1984. on the charge of inflicting bodily harm on Brooks.
The Commission found that on January 14, 1984 Appellant struck Brooks on the face and that subsequent to this incident Brooks, left the work site com-' plaining of an ear injury. Brooks was later diagnosed as having a perforated eardrum. The Commission further found that prior to the January 14 incident Brooks had been seen on several occasions with cotton in her ears. Furthermore, Brooks, according to the Commission’s findings, “had a well-established reputation within the appointing authority institution as a ‘bossy’ person and a ‘troublemaker.’ ”
-' The Commission, although it determined that Appellant'had, in fact, hit Brooks, also made findings
No fewer than nine witnesses have credibly testified, to previous confrontations of Brooks with other employes, employes requesting transfers away from her, to Brooks herself being transferred because of problems with employes- and to Brooks’ generally annoying nature .... These same witnesses . . . have additionally testified to appellant’s typically easy-going, agreeable demeanor. ... As a result of this testimony, it appears likely to our reasonable minds .that, although it is clear that the slapping incident occurred, we are nonetheless predisposed to attach greater credibility to appellant’s version of the facts, absent any direct testimony other than that of 'the 'two protagonists. (Citations to the record omitted.).
Finally, the Commission noted that under the Appointing Authority’s manual dismissal is the suggested remedy Where an employee is injured as a result of another employee’s .physical assault. The Commission determined that the Appointing Authority had failed' to establish that Appellant had injured Brooks. It stated, “[t]he clear implication from testimony given at hearing is that Brooks had ear problems some time prior to January 14, 1984.” Based upon its determination that the Appointing Authority had not shown, pursuant to the terms 'in its manual, that Appellant had caused the injury and based upon the mitigating circumstance's it found, the Commission ruled that the Appointing Authority bad failed to show good cause for the suspension pursuant to Section 803 of the Civil Service Act,
We review Appellant’s appeal keeping in mind that our .scope of-review is confined to determining whether thóre’h.a's been a constitutional violation or an error of law and whether the findings of fact are supported by substantial evidence on the record. Cunningham v. State Civil Service Commission, 17 Pa. Commonwealth Ct. 375, 332 A.2d 839 (1975). Appellant first alleges that his reinstatement without backpay' had the effect of imposing a nine month, suspension on him in; ¡violation of Section 803 of the (Civil' Service Act. " Section 803 clearly limits a suspension to “thirty working days in one calendar year. ’ ’ We note first' that two', distinct- personnel actions occurred. Appellant was 'suspended- for the period from January 26, 1984-through February 10, 1984 pending investigation of charges. Thus,- his suspension encompassed á period: of only fifteen days and was well-.within the statutory
Appellant next argues that the Commission’s denial of backpay-for a period of approximately nine
Appellant further argues that the nine month denial of backpay was arbitrary because it was allegedly based upon the time it took- the iCommission to. adjudicate the matter. We are not, however, concerned with- how the Commission arrived at the amount of time for which it denied backpay, but rather with Whether denial for that' period was an .abuse of discretion. Based upon .the record evidence and the previous discussion we hold that it was not:" •
Appellant al'so (alleges error in thé'Oomhússión’s refusal to admit testimony of different treatment 'by the Appointing Authority of another employee in an allegedly similar incident (occurring subsequent to Appellant’s dismissal. This iste-ue was not raised in the petition for review before this. Court and, hence, is not properly before us. But, While it is unnecessary to. decide at- .this time whether evidence of disparate treatment occurring subsequent to personnel actions in dispute is ■ relev,anti iwe feel constrained to caution the Commission that when it-rules Against’the admission of any evidence it should permit counsel to make an offer of proof as to What the evidence' would have shown. A review of the record discloses that the- presiding Commissioner was most ■ reluctant to permit Appellant’s counsel to establish a record' on this point,- although he finally succeeded in doing so. While we -understand the Commission’s reluctance' td permit testimony on the issues it deems irrelevant,-"'allowing an-offer, of proof may well-avoid the necessity of a remand.
The decision of the Commission is affirmed.
Order
•- ' Now, Becemiber 24,1985, the order of the ¡State Civil Service Commission, in appeal No. 5086, dated October 17,1984 is hereby affirmed. '■' '7' "' '
Act of August 5, 1941, P.L. 752, as amended.
We note that while the Commission concluded that no good . cause existed for the suspension it is unclear fr.om its order whether it’denied backpay for the fifteen day suspension period (January 26'through February 10); or merely for the period of removal (February lh through October 17). While it is well settled that one can be. reinstated without backpay wheré no just.causé has been shown for the removal, Fiegenberg v. Department of Labor and Industry, 33, Pa. Commonwealth Ct. 570, 382 A.2d 498 (1978) ; Harp v. Pennsylvania Liquor Control Board, 28 Pa. Commonwealth Ct. 318, 368 A.2d 846 (1977), it would seem that if there were no good cause for .suspension one would be entitled to backpay or an appellant’s victory would be a hollow one indeed. But inasmuch as this point was not specifically raised,- we. do not' rule on it.
. Section 951- was added by Section - 27 of the Act of August 27, 1963 P.L. 1257.
It is well settled that denial of backpay is a penalty. See Baron v. Civil Service Commission, 8 Pa. Commonwealth Ct. 6, 301 A.2d 427 (1973).
Appellant’s reliance on Bey v. Board of Education, 87 Pa. Commonwealth Ct. 571, 488 A.2d 89 (1985) for the proposition that denial of backpay must be based on job related criteria is somewhat misplaced in that Bey was. not a Commission case, although it discussed Commission law.