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decided: April 18, 1978.


Appeal from the Order of the Pennsylvania Civil Service Commission in case of Coy Gibson v. Department of Public Welfare, No. 1900.


Richard P. Perna, for petitioner.

Robert E. Kelly, Assistant Attorney General, with him Robert B. Hoffman, Assistant Attorney General, for respondent.

President Judge Bowman and Judges Crumlish, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 35 Pa. Commw. Page 28]

An order of the Pennsylvania Civil Service Commission (Commission) sustaining a decision of the Department of Public Welfare (Appellee/Appointing Authority) finding just cause for the dismissal of Coy Gibson (Appellant) from his Civil Service position with the Commonwealth is the subject of this appeal.

[ 35 Pa. Commw. Page 29]

Appellant was an employee of the Philadelphia State Hospital with eight years of experience in its power plant facility. During that period, Appellant was promoted through the ranks from a laborer to a Utility Plant Supervisor I (UPS I). As a UPS I, Appellant was responsible for the daily operation of the plant and in charge of its engineers and firemen. He was dismissed from that position for the stated reasons of incompetence, inability to cope with managerial responsibilities, and poor work performance.

Appellant appealed the Appointing Authority's decision to the Commission alleging that his removal was motivated by racially discriminatory and other nonmerit reasons and was, therefore, without just cause. After a hearing, the Commission found that there was no evidence of dismissal for non-merit reasons*fn1 and

[ 35 Pa. Commw. Page 30]

    made the following conclusions of law: "(1) Appellant was properly removed under Section 807 of the Civil Service Act [Act]*fn2 . . . , [and] (2) [t]he [A]ppointing [A]uthority did not violate Section 905(a) [sic] of the Civil Service Act*fn3 . . . by discriminating against [A]ppellant."

Appellant now brings his appeal to us.

It is argued that the Commission's findings and conclusions are not supported by the record and that Appellant was denied the right to fully develop his case below. Appellant contends that none of the Commission's findings of fact, alone or in combination, support its conclusion that he was unable to perform the duties of a UPS I. It is also asserted that the Commission erred in refusing to hear evidence establishing a pattern of harassment and discrimination dating back to 1971.

The Appointing Authority answered by stating that the Commission's decision is supported by substantial evidence and that the Commission properly excluded evidence which was remote and unrelated to Appellant's dismissal.

In reviewing decisions of the Commission, we are governed by Section 44 of the Administrative Agency Law*fn4 and limited to a determination of whether constitutional rights were violated, an error of law was committed, or a necessary finding of fact was unsupported

[ 35 Pa. Commw. Page 31]

    by substantial evidence. See Bureau of Employment Security v. Schreider, 24 Pa. Commonwealth Ct. 297, 355 A.2d 838 (1976). We may not weigh the evidence or substitute our judgment for that of the Commissioner's. Schreider, supra. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Philadelphia County Board of Assistance v. Cahan, 24 Pa. Commonwealth Ct. 543, 358 A.2d 440 (1976).

In determining whether Appellant was dismissed for just cause, his conduct must be examined in the light of merit criteria which are job-related and which touch upon competency and ability in some rational and logical manner. See Department of Justice v. Grant, 22 Pa. Commonwealth Ct. 582, 350 A.2d 878 (1976).

A careful review of the record discloses that the Commission's findings and conclusions are supported by substantial evidence. We, therefore, must affirm.

It is shown that Appellant had received unsatisfactory performance ratings from the time he assumed the duties of a UPS I; that he did not deal with job-related problems in a competent manner; and that he was unable to adequately perform the duties of a UPS I.

Also, the record fails to sustain Appellant's allegations of racial discrimination. Appellant has the burden of establishing discrimination by the preponderance of the evidence. See Armstrong v. Governor's Council on Drug and Alcohol Abuse, 26 Pa. Commonwealth Ct. 550, 364 A.2d 967 (1976). This he has failed to do. Appellant, however, claims that he was unable to prove discrimination by a preponderance of the evidence because he was wrongfully precluded from introducing such evidence by the Commission. This argument is without merit. In an effort to establish a pattern of discrimination and harassment against him

[ 35 Pa. Commw. Page 32]

    by the Appointing Authority, Appellant attempted to introduce evidence of events which occurred as early as 1971; four years prior to the events here in question. The Commission ruled that the evidence was too remote and therefore not relevant to Appellant's dismissal. There is no error of law in this ruling, and we so hold.

Accordingly, we


And Now, this 18th day of April, 1978, the decision of the Pennsylvania Civil Service Commission is affirmed.



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