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RICHARD E. WILLIAMS v. COMMONWEALTH PENNSYLVANIA (01/18/82)

decided: January 18, 1982.

RICHARD E. WILLIAMS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT



Appeal from the Order of the State Civil Service Commission in case of Richard E. Williams v. Department of Transportation, Appeal No. 2787.

COUNSEL

David A. Johnston, Jr., for petitioner.

Mark Hodgeman, Counsel, with him Louis G. Cocheres, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for respondent.

Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig. This decision was reached prior to the expiration of the term of office of Judge Palladino.

Author: Craig

[ 64 Pa. Commw. Page 154]

Richard E. Williams petitions for review of the State Civil Service Commission's order dismissing his appeal from being furloughed from his position as Transportation Construction Manager I (TCM-I) by the Pennsylvania Department of Transportation (PennDOT).

PennDOT furloughed the petitioner effective September 1, 1980 pursuant to staff reduction requirements. Under the provisions of Section 802 of the Civil Service Act,*fn1 PennDOT had prepared quartile rankings of all TCM-I's in June of 1978; the employees' positions were based on numerical scores derived from their last regular performance evaluation reports (PERs) -- pre-printed forms including ten evaluation factors such as safety, dependability and initiative. As we stated in Collins v. Pennsylvania Department of Transportation, 37 Pa. Commonwealth Ct. 292, 390 A.2d 333 (1978), Section 802 requires the total number of employees within a rating

[ 64 Pa. Commw. Page 155]

    class to be equally divided into quarters based upon their respective PERs, with the least senior employee in the lowest quarter to be furloughed first.

Based on those rankings, PennDOT furloughed or demoted six TCM-I's in July of 1979. Thereafter, using the same list of TCM-I's, PennDOT redistributed the remaining names into quarters and furloughed three additional employees, including the petitioner.

Willard Weikel, an employee demoted in lieu of the first set of furloughs, had earlier appealed to the commission, which concluded that his demotion was improper because PennDOT failed to use uniform PER factors in its furlough considerations. Despite PennDOT's firm policy of basing furlough computations upon the ten PER factors pre-printed on the forms, PennDOT had compared one or more PERs using only eight factors with PERs rating employees on ten factors. The commission held that practice to be discriminatory,*fn2 and rightly so, because it obviously involved an apple-orange mingling of noncomparable PERs.

At the commission hearing which led to this appeal, the petitioner, who was not represented by counsel, attempted to raise an issue "based on" his PER. Because he was not permitted to proceed in relation to the PERs at all, we cannot be sure whether the petitioner was (1) attempting to challenge his own rating, which was beyond appeal, Ellis v. Department of Transportation, 33 Pa. Commonwealth Ct. 354, 381 A.2d 1325 (1978), or (2) directing his ...


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