90 Pa. Commw. 477 | Pa. Commw. Ct. | 1985
Opinion by
James L. Kealy appeals here an order of the State Civil Service Commission (Commission) which dismissed his appeal and sustained the personnel action taken by the Pennsylvania Liquor Control Board (LCB) with respect to him. That personnel action denied his request for transfer to the Kulpmont store and promotion to General Manager.
When the LCB requested a certification list from the Commission for a General Manager vacancy at its Kulpmont, Northumberland County store, according to prior LCB policy, it requested that the list contain only the names of candidates who were currently employed in Northumberland County.
In this appeal, Kealy contends that the LCB policy of giving preference to county-of-vacancy employees for promotions discriminates against out-of-county employees in violation of Section 905.1 in that it bases personnel decisions on non-merit factors. We initially note that in discrimination cases under Section 905.1, the civil service employe bears the burden of proof of showing that the challenged personnel actions of the state agency were motivated by non-merit factors. Snipas v. Department of Public Welfare, 46 Pa. Commonwealth Ct. 196, 405 A.2d 1366 (1979). Where the employe has failed to prevail before the Commission on his or her discrimination claim, as Kealy failed to do so here, our scope of review of the Commission’s adjudication is limited to
There is no dispute regarding the essential facts. The LCB concedes that Kealy was not considered for transfer and promotion to the Kulpmont vacancy by virtue of its intra-county preference promotion policy. The LCB requested an intra-county certification list from the Commission and that list contained the name of only one person who subsequently declined the promotion. Bather than requesting a new list, the LCB opted to promote a county-of-vacancy employee without examination pursuant to its policy of promoting from outside of the county-of-vacancy only where there are no qualified in-county employees. The LCB argues that this policy fosters career development and strengthens employe morale. The 'Commission concluded that this policy was valid under Section 601 of the Act
This Court has long recognized that, under the Act, personnel actions of the Commonwealth must be based upon merit criteria which are relevant to the proper execution of the employee’s duties, are job re
Having found that the LCB discriminated against Kealy by virtue of its county-of-vacancy promotion preference policy, we must remand this matter to.the Commission for such proceedings on Kealy’s application as are proper and consistent with this opinion.
Now, July 19, 1985, the order of the State Civil Service Commission at Appeal No. 4601, dated February 28, 1984, is hereby reversed and the matter is remanded to the State Civil Service Commission for further proceedings consistent with this opinion.
Testimony presented at tlie September 13, 1983 Commission bearing indicates that tbis practice is no longer followed. N.T. (9/13/83) 61. There' is no mention in tbe LCB’s brief, however, that it bas abandoned tbis policy.
Tbe position of General Manager at tbe Kulpmont store was filled by promoting a Liquor Store Clerk I wbo worked in Northumberland County to that .position after the only person on the intracounty certification list declined tbe promotion. We note, bow-
Act of August 5, 1941, P.L. 752. as amended, 71 P.S. §741.905a.
71 P.S. §741.501.
71 P.S. §741.601. This provision requires the director to provide the appointing authority (here the LCB) with a certified list of three eligible employes who are willing to accept promotion and are the highest on the promotion list. The certification list furnished to the LCB with regard to the Kulpmont store contained only one name in apparent violation of Section 601. However, our resolution of Kealy’s discrimination claim precludes our addressing this issue.