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THOMAS M. MCCAIN v. COMMONWEALTH PENNSYLVANIA (01/13/83)

decided: January 13, 1983.

THOMAS M. MCCAIN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION, EAST STROUDSBURG STATE COLLEGE, RESPONDENT



Appeal from the Order of the Pennsylvania State Civil Service Commission in the case of Appeal of Thomas M. McCain v. East Stroudsburg State College, Appeal No. 3162.

COUNSEL

Michael S. Ramage, for petitioner.

Wayne M. Richardson, Regional Legal Counsel, for respondent.

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

Author: Rogers

[ 71 Pa. Commw. Page 166]

Thomas McCain, an electronic system technician employed by East Stroudsburg State College, appeals from an order of the State Civil Service Commission dismissing his appeal from a three day disciplinary suspension.

Two issues are raised; whether the petitioner's conduct which we are about to describe constituted insubordination within the meaning of the Commission's regulations found at 4 Pa. Code ยง 101.21*fn1 and whether this conduct was constitutionally protected

[ 71 Pa. Commw. Page 167]

    speech on which no disciplinary action could be properly based. The pertinent factual findings of the Commission are as follows:

3. On April 7, 1980, appellant's immediate supervisor convened a counseling session with appellant for the purpose of discussing appellant's job performance.

4. At the close of the meeting, appellant challenged the supervisor's qualifications to counsel him; appellant's shop steward was in attendance at the meeting.

5. Subsequent to the meeting, appellant informed the director of personnel that his immediate supervisor was a liar and incompetent as a supervisor.

6. The general areas of appellant's performance under scrutiny at the meeting had repeatedly been brought to appellant's attention at ...


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