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

COMMONWEALTH COURT OF PENNSYLVANIA


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. The record contains adequate evidence to support the

[ 94 Pa. Commw. Page 229]

Commission's finding that Nelson was absent on a day when trainees were orally informed of the handgun qualification requirements. Graterford's training coordinator, who was one of Nelson's instructor's during the training period, testified that Nelson's absence was the reason he did not inform her of the qualification requirements. From this statement, the Commission could reasonably infer that Nelson was absent on a day when the other trainees were told of the requirements. This evidence, in conjunction with Nelson's consistent denial that she was ever informed of the nine-month time limit, is more than adequate to support the Commission's conclusion that Nelson lacked sufficient notice.*fn1

While we accept the Commission's finding that Nelson lacked notice, we hold that there is not sufficient evidence on the record to support the Commission's conclusion that the appointing authority thereby discriminated against her. It is well settled that:

     a probationary civil service employee may seek administrative and judicial review of his removal only where he alleges that such removal was based upon discrimination 'because of political or religious opinions or affiliations because of labor union affiliations or because of race, national origin or other non-merit factors.'

[ 94 Pa. Commw. Page 230]

Order

And Now, January 17, 1986, the order of the State Civil Service Commission, dated January 26, 1983, at Appeal No. 4108 is reversed.

Judge MacPhail concurs in the result only.

Disposition

Reversed.


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