Appeal from the Order of the State Civil Service Commission in the case of Caleb R. Martin v. Mayview State Hospital, Department of Public Welfare, Appeal No. 5633.
James S. Marshall, Assistant Counsel, for petitioner.
Caleb R. Martin, respondent, for himself.
President Judge Crumlish, Jr., and Senior Judges Rogers and Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Dissenting Opinion by President Judge Crumlish, Jr.
[ 101 Pa. Commw. Page 616]
Mayview State Hospital, Department of Public Welfare, petitions for review of a State Civil Service Commission (Commission) order which sustained Caleb R. Martin's appeal from a five day suspension, and ordered that Martin be reimbursed for any loss of wages. We reverse and reinstate the suspension.
Mayview State Hospital is a state facility of the Department of Public Welfare, which provides care to emotionally and psychiatrically disturbed patients. Martin is employed as a Psychiatric Aide I at the hospital.
Martin was informed by a letter signed by the Official in Charge for the Secretary of the Department of Public Welfare, that he was being suspended for five days. The letter further informed Martin that the substance of the charge of patient abuse was that he "verbally threatened patient # 49977 on January 11, 1985 . . . in the dayroom. . . . Investigation reveals that the patient tapped you in a non-threatening manner and calmly asked you to change the television set to another channel. You yelled at the patient saying, 'I have told you before not to touch me. Next time, I'm going to
[ 101 Pa. Commw. Page 617]
punch you.' In addition, your statements were very upsetting to another patient. We cannot and will not tolerate this type of behavior."
The only requirement of section 803 of the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.803, with respect to disciplinary suspensions of Civil Service Employees, is that they be for good cause.*fn1 This has been interpreted to mean that the relationship of the state and the employee is based on a merit concept. Any personnel action by the state must be scrutinized in the light of merit criteria, and must touch upon competency and ability to perform the job. McCain v. Department of Education, East Stroudsburg State College, 71 Pa. Commonwealth Ct. 165, 454 A.2d 667 (1983).
After a hearing, the Commission found that a patient walked into the dayroom, tapped Martin on the shoulder, and asked him to change the television channel, at which Martin jumped back and said, "I told you never to touch me. Next time, I'll punch you"; that Martin's verbal retort did not cause mental or physical harm to the patient, nor was it likely to do so; that the appointing authority (Department of Public Welfare) gave the suspension without good cause; that Martin's conduct was not a threat of violence, but rather one of anger expressed "in the form of hyperbole"; and that the evidence failed to meet the appointing authority's own definition of patient abuse, found in its regulations.
Our scope of review is to determine whether the Commission abused its discretion or committed an error of law in holding ...