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THOMAS R. DADEY v. COMMONWEALTH PENNSYLVANIA (12/23/82)

decided: December 23, 1982.

THOMAS R. DADEY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, BUREAU OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, RESPONDENT



Appeal from the Order of the State Civil Service Commission in case of Thomas R. Dadey v. Bureau of Employment Security, Department of Labor and Industry, Appeal No. 2898.

COUNSEL

Thomas R. Dadey, with him Robert F. Frazier and Henry C. Berns, Breman & Berns, for petitioner.

Richard C. Lengler, Assistant Counsel, with him Daniel R. Schuckers, Assistant Chief Counsel, for respondent.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Rogers. Judge Doyle dissents.

Author: Rogers

[ 70 Pa. Commw. Page 514]

This is an appeal by a Commonwealth employee taken pursuant to the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§ 741.1-742.4.

Thomas R. Dadey has filed a petition for review of an adjudication of the State Civil Service Commission dismissing his appeal from the action of the Department of Labor and Industry (L & I) of failing on July 19, 1979 to promote him from his position in the classified service of Employment Security Specialist I, regular status, in L & I's Office of Employment Security to the position of Appeals Referee I, regular status. On that date Florence Phillips was promoted to Appeals Referee I, regular status, instead of the petitioner. The petitioner has himself been working as an appeals referee out of his position of Employment Security Specialist I, apparently by temporary appointment, since October 5, 1979.

In August of 1976, as a result of a holding of a Federal District Court that delays in the processing of unemployment compensation claims of Pennsylvania applicants constituted a denial of due process, the competent authorities of L & I asked its Office of Employment Service in the Pittsburgh district to supply the names of district employees who would be willing to work temporarily in the extra position of appeals referee. The names of the three persons were duly supplied by the district manager of the Pittsburgh office. The petitioner's name was on the list of persons eligible for appointment; Phillips' name was not. L & I's Director of Employment Service in Harrisburg asked the Pittsburgh office to have Phillips submit an application. On September 15, 1976, Phillips,

[ 70 Pa. Commw. Page 515]

    who then held the permanent or regular position of Claims Examiner II, was chosen to work as an appeals referee by temporary appointment. The petitioner filed no appeal from that action.

Phillips continued to work as an appeals referee under temporary appointment until July 19, 1979, when she was promoted, without examination, to the position in the classified service of Appeals Referee I, regular status. This action of L & I, the petitioner says, was an act of discrimination against him.

It seems that at all times relevant there was a civil service promotion list of persons eligible to hold the position of Appeals Referee I, regular status, and that the petitioner's name was on this list. The petitioner timely appealed L & I's failure to appoint him to the position of Appeals Referee I, regular status, claiming that L & I's action of July 19, 1979 appointing Phillips was unlawfully discriminatory as based upon non-merit factors in violation of Sections 501 and 905.1 of the Civil Service Act, 71 P.S. §§ 741.501, 741.905a. Section 501 provides the means by which one may achieve appointment and promotion in the classified service and Section 905.1 forbids discrimination against persons with respect to personnel actions, including promotion because of in addition to other reasons non-merit factors.

The State Civil Service Commission concluded after hearing that the petitioner had introduced no credible evidence to support his charge of discrimination; that the promotion of Phillips to the position of Appeals Referee I, regular status, by the appointing authority was properly effected under Section 501 of the Act; and ...


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