decided: December 23, 1981.
DELAWARE COUNTY BOARD OF ASSISTANCE, DEPARTMENT OF PUBLIC WELFARE, PETITIONER
VICTOR BALANOW, RESPONDENT
Appeal from the Order of the State Civil Service Commission in case of Victor Balanow v. Delaware County Board of Assistance, Department of Public Welfare, Appeal No. 3092.
Marc G. Brecher, Deputy Attorney General, with him John O. J. Shellenberger, Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for petitioner.
No appearance for respondent.
Judges Mencer, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge Williams, Jr. dissents.
[ 63 Pa. Commw. Page 389]
The Delaware County Board of Assistance (County) appeals an order of the State Civil Service Commission (Commission) which sustained the appeal of Victor Balanow (Respondent) from his removal as an income maintenance worker. We reverse the order of the Commission.
In order to maintain his job classification after a nine-month absence from his job, Respondent was required to complete a twelve-week standard training program. Subsequently, the County notified Respondent by letter that, pursuant to Section 807 of the Civil Service Act (Act), Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.807,*fn1 Respondent was to
[ 63 Pa. Commw. Page 390]
be removed from his job for "[f]ailure to meet the Proficiency Standards of the Income Maintenance Worker classification series." The County letter further enumerated specific examples of Respondent's unsatisfactory performance during the standard training program.
In response to the notice of removal, Respondent timely appealed to the Commission by noting on a pre-printed form issued by the Commission, that he elected to appeal his removal under Section 951(b) of the Act, 71 P.S. § 741.951(b),*fn2 which concerns personnel actions precipitated by discrimination or other non-merit factors. Despite Respondent's election to proceed under Section 951(b) of the Act [discrimination or non-merit reasons], at the hearing the Commission placed on the County, over the County's objection, the burden of proving just cause [merit, job performance reasons] for removal of Respondent according to Section 807 of the Act.*fn3
[ 63 Pa. Commw. Page 391]
In its adjudication the Commission stated that Respondent "was improperly removed under Section 807 of the Civil Service Act" and that the County "violated Section 905.1 of the Civil Service Act, . . . by discriminating against [Respondent]." The County promptly appealed the Commission's adjudication, asserting that the Commission improperly assigned the burden of proof to the County.
The initial inquiry before this Court is whether Respondent's election of a basis for appeal controls the conduct and subject of the proceedings before the Commission.
The significance of selecting grounds for appeal is evidenced in the procedural dichotomy between Commission hearings held pursuant to Section 951(a) of the Act, 71 P.S. § 741.951(a),*fn4 and those conducted in accordance with Section 951(b) of the Act. Where an employe alleges lack of just cause for removal, Commission hearings are governed by Section 951(a) of the Act and the attendant Rules of the Civil Service Commission at 4 Pa. Code § 105.15, which place upon the appointing authority [here, the County] the burden of proving a prima facie case of just cause.*fn5 However, where an employe argues that his removal resulted from discrimination or other non-merit factors, Commission hearings are controlled by Section 951(b) of the Act and the concomitant Rules of the
[ 63 Pa. Commw. Page 392]
Civil Service Commission at 4 Pa. Code § 105.16, which allocate to the employe [here, Respondent] the burden of establishing a prima facie case of discrimination.*fn6 Thus, when an employe clearly indicates on an appeal form the section of the Act under which he is appealing and does not allege any acts by the appointing authority outside the purview of the indicated section, the employe is entitled to a Commission hearing only under the indicated section. Sienkiewicz v. Department of Public Welfare, 53 Pa. Commonwealth Ct. 445, 417 A.2d 874 (1980).*fn7
Because Respondent, the party with the burden of proof on the specified appeal issue of discrimination [Section 951(b)], prevailed before the Commission, this Court's scope of review consists of determining whether constitutional rights were violated, an error of law was committed, or necessary factual findings were unsupported by substantial evidence. Laws v. Philadelphia County Board of Assistance, Department of Public Welfare, 50 Pa. Commonwealth Ct. 340, 412 A.2d 1377 (1980); Tempero v. Department of Environmental Resources, 44 Pa. Commonwealth Ct. 235, 403 A.2d 226 (1979).
[ 63 Pa. Commw. Page 393]
Although the Commission's misallocation of the burden of proof to the County constituted an error of law, Respondent's case was not thereby prejudiced.*fn8 The Commission afforded Respondent a full and fair opportunity to adduce evidence concerning alleged discriminatory acts by the County.*fn9 Therefore, in this instance the improper assignment of the burden of proof was harmless error.
[ 63 Pa. Commw. Page 394]
Nevertheless, the Commission's adjudication cannot be affirmed because the Commission failed to make factual findings necessary to substantiate its legal conclusions. The Commission made the following pertinent findings of fact:
4. [Respondent] . . . stated his appeal was under Section 951(b) of the Civil Service Act.
8. [Respondent] was selected for a training class designed to communicate the latest rules and regulations of the appointing authority.
10. During the training period, [Respondent] encountered resistance to the completion of certain case actions; specifically, [Respondent] encountered clients who were attempting to avoid a redetermination visit.
11. [Respondent] complained of these difficulties but there was no action taken by the supervisor. . . .
12. The decision to remove [Respondent] was based solely upon his performance in the training class.
Based upon these findings, the Commission concluded that the County "violated . . . the Civil Service Act . . . by discriminating against [Respondent]."
However, "[d]iscrimination cannot be inferred. . . . There must be some affirmative support adduced
[ 63 Pa. Commw. Page 395]
to sustain the allegations of discrimination." Tempero v. Department of Environmental Resources, 44 Pa. Commonwealth Ct. at 238, 403 A.2d at 229; Shaefer v. West Chester State College Department of Education, 54 Pa. Commonwealth Ct. 327, 421 A.2d 502 (1980). Here, the Commission was unable to make crucial findings concerning the County's alleged discriminatory actions toward Respondent because Respondent failed to affirmatively produce evidence of any discriminatory actions.
Accordingly, we will enter the following
And Now, December 23, 1981, the order of the State Civil Service Commission, Appeal No. 3092, dated December 1, 1980, is reversed.
Judge Williams, Jr. dissents.