decided: March 10, 1981.
CAROL A. BUTLER, PATRICIA A. PHEASANT AND MARY ANN MCCARTHY, PETITIONERS
COMMONWEALTH OF PENNSYLVANIA, STATE CIVIL SERVICE COMMISSION AND DEPARTMENT OF HEALTH, RESPONDENTS
Appeal from the Order of the State Civil Service Commission in the cases of Carol A. Butler v. Department of Health, Appeal No. 2576; Patricia A. Pheasant v. Department of Health, Appeal No. 2578; Mary Ann McCarthy v. Department of Health, Appeal No. 2577.
Paul L. Zeigler, Goldberg, Evans & Katzman, for petitioners.
Barbara G. Raup, Assistant Attorney General, for respondent, State Civil Service Commission.
John H. Cuthbertson, Assistant Attorney General, for respondent, Department of Health.
Judges Rogers, Craig and Palladino, sitting as a panel of three. Opinion by Judge Craig.
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Petitioners Carol Butler, Patricia Pheasant, and Mary Ann McCarthy seek review of a decision by the
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State Civil Service Commission denying, as untimely, their request for a hearing on their claim that the Department of Health discriminated against them in selecting a candidate for a promotion.
Petitioners, female public health nurses, applied for the position of Public Health Administrator I in April of 1978. On July 7, 1978, a letter from the district executive director informed them that a candidate for the position had been tentatively selected. The letter indicated that none of the petitioners had been chosen, and that the executive director would formally announce "our selection in the near future."*fn1
Not until August 22, 1978, were the petitioners told the identity of the successful candidate, who was the sole male applicant for the position.*fn2
Petitioners appealed to the commission on September 6, 1978, under Section 951(b) of the Civil Service Act,*fn3 alleging that the department had used discriminatory
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practices and non-merit factors to improve the white male applicant's chances in obtaining the position.*fn4 The commission dismissed the appeals on the ground that petitioners had not filed them within twenty days of the notice of nonpromotion, which the commission held was the letter of July 7.
Petitioners, in claiming that their appeal was timely, submit that August 22, was the appropriate date from which to measure the appeal period because they had no grounds upon which to assert the existence of discrimination until they were able to learn the identity of the chosen applicant. We agree.
Our cases consistently hold that an employee must affirmatively support any allegation of discrimination with specific evidence in order to succeed in a claim under Section 905.1 of the Civil Service Act. Sienkiewicz v. Department of Public Welfare, 53 Pa. Commonwealth Ct. 445, 417 A.2d 874 (1980); Snipas v. Department of Public Welfare, 46 Pa. Commonwealth Ct. 196, 405 A.2d 1366 (1979); Tempero v. Department of Environmental Resources, 44 Pa. Commonwealth Ct. 235, 403 A.2d 226 (1977). Clearly, then, the petitioners lacked the legal ammunition with which to pursue their claim until the department had announced its final decision.
In Lynch v. Department of Public Welfare, 30 Pa. Commonwealth Ct. 235, 373 A.2d 469 (1977), we noted that a claim of discrimination is inextricably linked to the issue of comparative merit qualifications; one
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method of proving intent to discriminate is to show that the appointing authority considered non-merit factors in promoting a lesser qualified applicant. Hence, an unsuccessful job applicant who suspects the existence of discrimination is necessarily precluded from any comparison of qualifications until the identity of the chosen applicant is known.
In supporting the central objective of the Civil Service Act, to protect public employees in employment and promotion, we cannot conclude that nebulous correspondence, such as the department's July 7 letter, is sufficient to trigger the running of the appeal time.
We reverse the commission's order and remand for a determination on the merits of petitioners' claim.
And Now, March 10, 1981, the order of the State Civil Service Commission, appeal No. 2577, dated October 19, 1978, is reversed, and the matter is remanded to the commission for disposition on the merits.
Reversed and remanded.