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CHERYL S. LITNER v. COMMONWEALTH PENNSYLVANIA (12/19/83)

decided: December 19, 1983.

CHERYL S. LITNER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, OFFICE OF BUDGET AND ADMINISTRATION, RESPONDENT



Appeal from the Order of the State Civil Service Commission in case of Cheryl S. Litner v. Office of Budget and Administration, Appeal No. 3568.

COUNSEL

William F. Donovan, for petitioner.

Frank A. Fisher, Jr., Assistant Counsel, with him John D. Raup, Chief Counsel, for respondent.

Judges Rogers, Barry and Barbieri, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 79 Pa. Commw. Page 177]

Cheryl Litner, a former state employee, has filed a petition for review of an order of the Pennsylvania Civil Service Commission sustaining the action of the State's Office of Budget and Administration (her appointing authority) removing her from her position in the classified service of Personnel Analyst III, regular status.

[ 79 Pa. Commw. Page 178]

The petitioner worked in the appointing authority's Group Insurance Unit. Her duties were to participate in preparing and updating administrative manuals and benefit booklets, in communicating information to other agencies receiving group benefit programs and in providing recommendations useful in developing provisions of collective bargaining agreements relating to group benefit programs. This was a responsible position in which the petitioner was expected to perform with a high degree of independence.

The petitioner was dismissed from her position for deficient job performance by letter dated July 31, 1981. The letter set forth thirteen incidents of alleged deficient performance by the petitioner beginning May 8, 1981. These included the late submission of an important article, with the result that it could not be included in a monthly publication; the omission of major points of information in an administrative circular regarding benefits improvements; the submission for final publication, without Blue Cross' review, of an addendum to a manual which contained significant errors; the submission of revisions to a Contracting Procedural Manual a week late; and the changing of her own work hours without notifying her supervisor. The dismissal letter also made reference to previous reprimands, unfavorable evaluation reports and a three-day suspension, all of which resulted from the appointing authority's dissatisfaction with the petitioner's work over a period of more than a year.

Ms. Litner appealed her removal to the State Civil Service Commission, alleging discrimination based on non-merit factors, namely, her health,*fn1 in violation of

[ 79 Pa. Commw. Page 179]

Section 905.1 of the Civil Service Act, as amended, 71 P.S. ยง 741.905a.*fn2 At the Commission's hearing, the petitioner testified that in the spring of 1980, as the result of the propogation of allergens through the air-conditioning system of the building in which she worked, she developed a debilitating respiratory condition. She also testified that in an attempt to have the air-conditioning system corrected or her work site relocated, she and her physician communicated with the appointing authority, certain state legislators and the Department of Health. As a consequence, she was relocated in a different building from July, 1980 until March, 1981, and again from the end of May, 1981 until her removal. Ms. Litner's principal contention is that most of her inadequacies were due to the problems and inconveniences arising from her relocation to another building, and that her efforts to be relocated or to have the system modified caused additional difficulties between herself and the appointing authority.

The Commission, by a vote of 2 to 1, dismissed the appeal, finding that Ms. Litner had failed to sustain her burden of proving discrimination based on her health and concluding that, as her health problems were not the cause of her unsatisfactory work, there was just cause for her removal as is ...


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