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AGNES H. LEWIS v. COMMONWEALTH PENNSYLVANIA (12/27/82)

decided: December 27, 1982.

AGNES H. LEWIS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH, RESPONDENT



Appeal from the Order of the Pennsylvania State Civil Service Commission in the case of Agnes H. Lewis v. Department of Health, No. 2764.

COUNSEL

Robert W. Barton, Killian & Gephart, for petitioner.

Christine S. Dutton, Assistant Counsel, for respondent.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig. Dissenting Opinion by Judge Blatt.

Author: Craig

[ 70 Pa. Commw. Page 532]

Agnes H. Lewis appeals the order of the State Civil Service Commission upholding the action of the Department of Health removing her from her position as District Nurse Administrator and Public Health Nurse IV with regular civil service status.

Ms. Lewis' removal was based on a charge of mismanagement and abuse of responsibilities. At the hearing before the commission, the department, to meet its burden of proving just cause for Ms. Lewis' removal,*fn1 alleged that on four separate instances Ms. Lewis had reported hotel stays which she never made and had allowed her supervisor to use her state hotel

[ 70 Pa. Commw. Page 533]

    orders in violation of department regulations. Ms. Lewis denied the allegations, but the commission found that the department had proved all four instances of misconduct and sustained Ms. Lewis' removal.

On appeal, we decided that only one instance of misconduct, involving the use of a hotel order on the nights of August 14 and 15, 1978, was supported by substantial evidence. Lewis v. Department of Health, 63 Pa. Commonwealth Ct. 148, 437 A.2d 811 (1981). We therefore remanded this case to the commission to reconsider whether reinstatement with or without back pay, rather than removal, was warranted.

The commission determined that the single instance of misconduct was just cause for Ms. Lewis' removal and again affirmed the department's action.

Ms. Lewis now asserts that the commission's findings with respect to the August incident, are not supported by substantial evidence. We have, however, already held that, although our conclusion would have differed from that of the commission, there was substantial evidence to support those findings. Lewis, 63 Pa. Commonwealth Ct. at 154, 437 A.2d at 814.

When the commission finds that a charge is true, the commission's power and duty then is to determine if the charge constitutes just cause for removal. If the charge, as established, involves the merits of the employee's work performance, there can be just cause for removal and the commission must uphold the appointing authority's disciplinary action. Only if the charges are not made out may the commission modify the appointing authority's action by reinstating the employee, with or without back pay. Omelchenko v. Housing ...


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