50 Pa. Commw. 340 | Pa. Commw. Ct. | 1980
Opinion by
Peggy Laws (Petitioner) appeals from an order of the State Civil Service Commission (Commission), which sustained the action of the Philadelpha County
Petitioner was employed by the Department of Public Welfare (DPW) through the Philadelphia County Board of Assistance (Board of Assistance) as an Income Maintenance Worker II from September, 1977, when she was transferred from the Neighborhood Service Center to the Delancey District Office, until July 17,1978, when notified of her discharge. As an Income Maintenance Worker II, Petitioner was required to do “field work,” such as visiting homes to verify eligibility of applicants for assistance. Petitioner has suffered from degenerative arthritis for several years and this debilitating condition made difficult her walking, which was necessary in the performance of the field work involved in her job. Petitioner also suffered during employment at the Delancey District from chest pains and other angina-like symptoms.
On the basis of one or both of these physical conditions, Petitioner several times beginning in September, 1977, requested a transfer or reassignment to the “applications” department, which required no field work. All such requests were rejected by the Board of Assistance. In April, 1978, following her most severe angina attack, Petitioner requested a leave without pay, which was granted. Prior to and upon returning to work on June 12,1978, Petitioner again requested a transfer, even if it meant a voluntary demotion. On returning to work, Petitioner was instructed by her supervisor to read her cases and “prepare to go into the field. ’ ’ She replied to her supervisor that she was unable to perform the field work because of her arthritis, and she was sent home.
Petitioner subsequently received from the district administrator a suspension notice, on June 15, 1978,
Petitioner appealed her suspension and removal to the Commission, which dismissed the appeal after arriving at three conclusions of law adverse to her interests: (1) that Petitioner was properly suspended under Section 803 of the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §741.803, (2) that Petitioner was properly removed under Section 807 of the Civil Service Act, 71 P.S. §741.807, and (3) that DPW did not discriminate against Petitioner in violation of Section 905.1 of the Civil Service Act, added by the Act of August 27, 1963, P.L. 752, 71 P.S. §741.905a.
Petitioner argues to this Court that the Board of Assistance discriminated against her on the basis of her physical condition, and that her suspension and removal were thus in violation of the antidiscrimination provision of Section 905.1 of the Civil Service Act.
In the alternative, Petitioner asserts that DPW violated Sections 803 and 807 of the Civil Service Act, for suspending and removing her without “just cause.”
The burden of proving a discriminatory basis for a suspension and removal from employment rests on the Petitioner. 4 Pa. Code §105.16(a). “One asserting that an unfavorable personnel action was the result of discrimination has the burden of proof; and we may not disturb findings adverse to the claimant unless the fact-finder has capriciously disregarded competent evidence of such discrimination.” Department of Public Welfare v. Mawn, 28 Pa. Commonwealth Ct. 377, 381, 368 A.2d 1316, 1318 (1977). Therefore, because the Petitioner failed to sustain her burden of proof on charges of discrimination before the Commission, our review is limited to a determination of whether the Commission capriciously disregarded competent evidence in its resolution of that issue. Department of Public Welfare v. Mawn, supra.
Handicapped by her arthritis, Petitioner is protected under Section 955(a) of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744,
Here, the Commission found that “field work” was a requirement for Petitioner’s position as Income Maintenance Worker II and that Petitioner refused to go into the field. The Commission found that the Board of Assistance made every reasonable effort to continue Petitioner, offering her a disability retire
The burden of proving a proper suspension and removal is placed on the employer, DPW. The “rules of the Commission, 4 Pa. Code §105.15(a), impose upon the appointing authority (here the DPW) the duty to go forward in the establishment of the charges upon which its personnel action is based and in so doing to establish a prima facie case in justification of that action.” McClelland v. State Civil Service Commission, 14 Pa. Commonwealth Ct. 339, 342, 322 A.2d 133, 135 (1974). Since the party with the burden of proof prevailed below, our review of the Commission’s decision on the issue of just cause is “limited to a determination of whether constitutional rights were violated, an error of law was committed, or a necessary finding of fact was unsupported by substantial evidence.” Gibson v. Department of Public Welfare, 35 Pa. Commonwealth Ct. 27, 30-31, 384 A.2d 1030, 1032 (1978).
The Civil Service Act establishes that an appointing authority may suspend for “good cause” an employee holding a position in the classified service, Section 803 of the Civil Service Act, and that an appointing authority may only remove a regular employee in
We hold that the Commission based its findings on substantial evidence and made no errors of law in concluding that Petitioner was properly removed under Sections 803 and 807 of the Civil Service Act. DPW had just cause to remove Petitioner when she refused to perform field work; for an appointing authority can remove for failure to properly execute one’s duties— a merit-based criteria. Her inability to walk and to do field work certainly touched upon her competency and ability to function as an Income Maintenance Worker II.
As stated earlier, the Commission found that the Board of Assistance made every effort to reasonably accomodate Petitioner’s request for transfer because of her condition. These findings were supported by substantial evidence. There being non-discriminatory good and just cause for suspension and removal of Petitioner, based on the evidence, we affirm the Commission’s order.
Order
And Now, this 8th day of April, 1980, the order of the State Civil Service Commission sustaining the suspension and removal of Peggy Laws from her po
Section 905.1 of the Civil Service Act, 71 P.S. §741.905a:
No officer or employe of the Commonwealth shall discriminate against any person in recruitment, examination, appointment, training, promotion, retention or any other personnel action with respect to the classified service because of political or religious opinions or affiliations because of labor union affiliations or because of race, national origin or other non-merit factors.
16 Pa. Code §44.14(a):
An employer shall make reasonable accommodations by modifying a job, including but not limited to modification of duties, scheduling, amount or nature of training, assistance provided, and the like, provided that such modification shall not impose an undue hardship.
Section 955(a) of the Pennsylvania Human Relations Act, 43 P.S. §955(a):
It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification ...:
(a) For any employer because of the race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability of any individual to refuse to hire or employ, or to bar or to discharge from employment such individual, or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment, if the individual is the best able and most competent to perform the services required....