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STATE CORRECTIONAL INSTITUTION AT GRATERFORD v. CYNTHIA NELSON (01/17/86)

decided: January 17, 1986.

STATE CORRECTIONAL INSTITUTION AT GRATERFORD, ET AL., PETITIONERS
v.
CYNTHIA NELSON, RESPONDENT



Appeal from the Order of the State Civil Service Commission in the case of Cynthia Nelson v. State Correctional Institution at Graterford, Bureau of Correction, Appeal No. 4108.

COUNSEL

Theodore G. Otto, III, Assistant Counsel, for petitioners.

Lorrie McKinley, with her, Harold I. Goodman, for respondent.

Judges Rogers, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge MacPhail concurs in the result only.

Author: Palladino

[ 94 Pa. Commw. Page 227]

The State Correctional Institution at Graterford, Bureau of Correction (Graterford) appeals from an order of the State Civil Service Commission (Commission) reinstating the Respondent, Cynthia Nelson (Nelson), to her duties as Corrections Officer Trainee, probationary status, and reimbursing her for wages and emoluments she would otherwise have received from June 26, 1982 to the present. We reverse the order of the Commission.

Nelson was employed, from March 11, 1982 to June 26, 1982, as a Civil Service employee on probationary status. She underwent probationary training from April 19, 1982 to May 14, 1982, completing all training requirements except the .38 caliber handgun qualifying test, which she failed to pass. The handgun qualifying test was instituted just prior to the commencement of Nelson's employment. Trainees were afforded two opportunities to qualify with a handgun, with the proviso

[ 94 Pa. Commw. Page 228]

    that both attempts were to be made within the first nine months of employment. After she failed the first time, Nelson again tried to qualify approximately one month later, but again she failed and, as the Commission notes, she became the only member of her training class to be dismissed for failure to qualify. According to the findings of the Commission, Nelson was absent from class on the day trainees were orally informed that they had two opportunities to qualify within nine months. On the basis of these facts, the Commission found that Graterford had discriminated against Nelson.

On appeal to this Court, Graterford argues that the Commission's finding of fact number six, that Nelson was absent on the day trainees were orally informed that they had two opportunities to qualify in nine months, is not supported by substantial evidence and that, therefore, the Commission's order "must of necessity fall." Graterford also contends that any procedural irregularities present in the instant case are not sufficient, as a matter of law, to support a finding of discrimination.

In addressing these issues, we begin by noting that, where the party with the burden of proof has prevailed before the Commission, this Court's scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or necessary factual findings were unsupported by substantial evidence. Delaware County Board of Assistance v. Balanow, 63 Pa. Commonwealth Ct. 388, 392, 437 A.2d 1312, 1314 (1981).

With these guidelines in mind, after a careful review of the record we conclude that all of the Commission's factual findings, including finding of fact number six, are supported by substantial evidence. ...


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