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decided: July 21, 1983.


Appeal from the Order of the State Civil Service Commission in case of Leo Sebastiani v. Department of Transportation, Appeal No. 2824.


Joseph J. Dixon, for petitioner.

Michael J. McCaney, Jr., Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for respondent.

Judges Blatt, MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 75 Pa. Commw. Page 603]

Leo Sebastiani (Petitioner) appeals here from an order of the State Civil Service Commission (Commission) which upheld*fn1 his furlough from his position in District 4-0 as Transportation Construction Manager I (TCM I), regular status, effective at the close of business November 6, 1978.

Due to a large reduction in personnel the Department of Transportation (Department) identified Petitioner to be furloughed from his position. The Appointing Authority presented only one witness, Wayne Marquart, a Personnel Analyst and custodian for the 1978 furlough records. His testimony explained the procedure by which the November 1978 furlough list was compiled. He stated that the Appointing Authority furloughed by classification, after it first determined that there were no emergency, provisional or probationary Civil Service employees in that class. The next step was then to derive an arithmetical score based on the employee's most recent annual performance rating in the TCM I classification. Based on these scores, the employees were ranked from top to bottom with the highest score at the top and the lowest score at the bottom. These scores were divided into quarters. If there were more people to be furloughed than there were in the fourth quarter, the remaining scores would be requartered until the number of needed furloughs was met.

Petitioner was the only person in the fourth quarter, of the third quartering, in his furlough group. Since it was necessary to furlough more employees, Petitioner, based on his performance evaluation rating and as a result of this third quartering, was designated for furlough.

[ 75 Pa. Commw. Page 604]

The only basis for Petitioner's challenge here is his allegation of discrimination.*fn2 He asserts that the Appointing Authority's ratings were artificially inflated as a result of the supervisors' desire to retain certain employees under their supervision when it became apparent that a furlough was imminent. Petitioner alleges that he did not benefit from this artificial inflation of the ratings and was therefore discriminated against, since his rating was issued prior to the rumors of the imminent furlough. Employees are evaluated the month of their anniversary date. Petitioner's anniversary date is in December and he was evaluated in December of 1977. Petitioner was not due for another regular performance rating until December of 1978. The Appointing Authority, however, set October 10, 1978, as the date for the final receipt of performance evaluation ratings to be used in furlough computations. Any performance rating submitted by October 10, 1978, even if for employees with November anniversary dates, was accepted. Since Petitioner's anniversary date was in December, he did not make the cut off and his December 1977 evaluation rating was used.

A civil service employee claiming discrimination in a personnel action has the burden of going forward with evidence to support such charges. Tempero v. Department of Environmental Resources, 44 Pa. Commonwealth Ct. 235, 237, 403 A.2d 226, 228 (1979). Where, as here, the civil service employee has not prevailed below on his discrimination charge, our scope of review is limited to a determination as to whether or not the Commission capriciously disregarded competent

[ 75 Pa. Commw. Page 605]

    evidence.*fn3 Meiler v. Department of Banking, 58 Pa. Commonwealth Ct. 346, 427 A.2d 783 (1981). Questions of credibility are for the Commission to determine. McLaughlin v. Philadelphia County Board of Assistance, 51 Pa. Commonwealth Ct. 364, 414 A.2d 441 (1980). Furthermore, we note that discrimination by the appointing authority against the employee cannot be inferred by the Commission since there must be some affirmative support adduced to sustain the ...

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