53 Pa. Commw. 354 | Pa. Commw. Ct. | 1980
Opinion by
Edna Marsh (petitioner) appeals from a determination of the State Civil Service Commission (Commission) which sustained her removal by the Department of Public Welfare, Mayview State Hospital (employer) from her position as a Psychiatric Aide I.
On February 28, 1978, the petitioner took a leave from work to recover from injuries she had sustained in an automobile accident. After using all of her annual allotment of leave, she was placed on a leave of
The petitioner attacks the order of the Commission on three grounds: 1) she contends that the employer was required under Section 808 of the Civil Service Act (Act)
Section 808 of the Act, 71 P.S. §741.808, designates the rights of an employee returning from a leave of absence as follows:
An employe who has been granted a leave of absence ... shall, upon the expiration of the leave of absence, have the right to return to the class and civil service status from which leave was granted ... or to any class and civil service status in the same or lower grade ... provided that in all [two] instances there is vacancy with the same appointing authority. If there is no*357 vacancy to which the employe on leave can be returned, he shall retain priority of return to the class from which the leave of absence was granted for a period of one year following the date of expiration of the leave, and during this time shall have precedence for employment over employees furloughed from the same class.
In this case, there is no question that the petitioner did not desire to return to her previous classification as a Psychiatric Aide I, but she contends that the record indicates that there were vacancies for jobs involving lighter work to which she was entitled to return, and that the employer denied her the right to return to these vacancies.
As to the contention that the employer failed to place the petitioner on a priority list for employment in a position involving lighter work, which she claims
Her argument that she was removed without just cause and for discriminatory non-merit reasons is equally unpersuasive. It is clear that she refused to return to her prior position after a leave of absence, and she was therefore not removed; instead, she resigned. Section 101.55(b). If she had sought to return to her position and had been refused the right to return to it because of her disability, then the issue would be whether or not the physical disability, in order to be a just cause for removal and nondiscriminatory, was rationally related to the performance of her duties and touched upon her competency and ability to perform her job. Corder v. State Civil Service Commission, 2 Pa. Commonwealth Ct. 462, 279 A.2d 368 (1971). But we must conclude that, because she had resigned from her position, and because there were no vacancies at the hospital for positions of the type she desired, the issues of cause for removal and discrimination do not arise.
The Commission’s order will therefore be affirmed.
Order
And, Now, this 4th day of August, 1980, the order of the State Civil Service Commission in the above-captioned case is affirmed.
Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §741.808.
71 P.S. §741.807.
71 P.S. §741.905a.
We note that the petitioner, upon returning from her leave of absence, had a right to receive hiring preference throughout the Commonwealth for the job classifications designated in Section 808 of the Act, 71 P.S. §741.808. Eash v. State Civil Service Commission, 17 Pa. Commonwealth Ct. 199, 331 A.2d 601 (1975). In this appeal the petitioner contends only that she was denied such preference in the organizational unit at which she was previously employed. It is not clear from the record whether or not she was offered work in other Commonwealth units or agencies.