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JAMES L. KEALY v. COMMONWEALTH PENNSYLVANIA (07/19/85)

decided: July 19, 1985.

JAMES L. KEALY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, RESPONDENT



Appeal from the Order of the State Civil Service Commission in case of James L. Kealy v. Pennsylvania Liquor Control Board, Appeal No. 4601.

COUNSEL

Henry F. Coyne, for petitioner.

Eileen S. Maunus, Assistant Counsel, for respondent.

Judge Colins, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Williams, Jr., did not participate in the decision in this case.

Author: Barbieri

[ 90 Pa. Commw. Page 478]

James L. Kealy appeals here an order of the State Civil Service Commission (Commission) which dismissed his appeal and sustained the personnel action taken by the Pennsylvania Liquor Control Board (LCB) with respect to him. That personnel action denied his request for transfer to the Kulpmont store and promotion to General Manager.

[ 90 Pa. Commw. Page 479]

The pertinent facts of this case are as follows. Kealy commenced his full-time employment with the LCB in March of 1974 as a Liquor Store Clerk I in Montour County. As his residence was located in Northumberland County, since 1975 he has been requesting a transfer to a store in Northumberland County. In December of 1978, Kealy was promoted to Liquor Store Clerk II, Assistant Manager. On October 11, 1982, he took the Civil Service promotion examination for the position of Liquor Store Manager 1-A, pursuant to Commission Announcement No. 237-82. At that time, he duly indicated his availability to work in Northumberland County.

When the LCB requested a certification list from the Commission for a General Manager vacancy at its Kulpmont, Northumberland County store, according to prior LCB policy, it requested that the list contain only the names of candidates who were currently employed in Northumberland County.*fn1 Therefore, despite scoring at the top of the promotion examination, Kealy was excluded from the certification list for the Kulpmont vacancy solely by virtue of his employment outside of Northumberland County. On February 2, 1983, he specifically requested a transfer to the Kulpmont store along with a promotion to the position of General Manager. This request was denied by the LCB on or about March 25, 1983, in that the LCB had decided to fill the Kulpmont vacancy by promoting a county-of-vacancy employe without examination.*fn2 Kealy filed an appeal with the Commission

[ 90 Pa. Commw. Page 480]

    on April 12, 1983 and a hearing on that appeal was held on September 13, 1983. On February 23, 1984, the Commission issued an adjudication in which it dismissed Kealy's appeal and sustained the action of the LCB which denied his request for transfer and promotion. Specifically, the Commission found that the LCB's policy of favoring county-of-vacancy employees for promotions did not violate Section 905.1 of the Civil Service Act (Act)*fn3 nor did the LCB's promotion of a county-of-vacancy employe without examination violate Section 501 of the Act.*fn4 A timely petition for review was filed with this Court.

In this appeal, Kealy contends that the LCB policy of giving preference to county-of-vacancy employees for promotions discriminates against out-of-county employees in violation of Section 905.1 in that it bases personnel decisions on non-merit factors. We initially note that in discrimination cases under Section 905.1, the civil service employe bears the burden of proof of showing that the challenged personnel actions of the state agency were motivated by non-merit factors. Snipas v. Department of Public Welfare, 46 Pa. Commonwealth Ct. 196, 405 A.2d 1366 (1979). Where the employe has failed to prevail ...


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