decided: June 24, 1988.
ALLEGHENY COUNTY HEALTH DEPARTMENT, PETITIONER
EDWARD BANDYK, RESPONDENT
Appeal from the Order of the State Civil Service Commission in the case of Edward Bandyk v. Allegheny County Health Department, No. 6671.
Robert G. Borgoyn, Jr., Assistant County Solicitor, with him, James J. Dodaro, County Solicitor, for petitioner.
Christopher M. Swart, with him, Samuel A. Moore, for respondent.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.
[ 117 Pa. Commw. Page 276]
The Allegheny County Health Department (department) appeals from a decision of the State Civil Service Commission (commission) that sustained the appeal of Edward Bandyk from the department's removal of Bandyk from his position as a probationary status employee and ordered the department to reinstate him, as a regular status employee, with back pay.
The central issue presented is whether a probationary employee's proof of procedural errors relating to his employment constitutes affirmative proof of discrimination based on non-merit factors.
The commission found that the department hired Bandyk in the position of Health Services Coordinator I, effective September 30, 1985, and notified him that he would be required to serve a six-month probationary period due to expire on March 30, 1986 (Findings of Fact Nos. 2 and 3). During his probationary period, the
[ 117 Pa. Commw. Page 277]
department changed Bandyk's job classification from Health Services Coordinator to Environmental Health Services Coordinator; the department provided Bandyk with a formal job description for the latter position on March 5, 1986 (F.F. No. 7).
On March 25, 1986, Michael J. Diskin, one of Bandyk's supervisors, prepared a formal evaluation of Bandyk's performance during his probationary period (F.F. No. 5). Diskin's memorandum accompanying his evaluation recommended that Bandyk not be placed on permanent status. The department's director removed Bandyk from the position of Health Services Coordinator I, probationary status, by letter dated March 25, 1986, effective at the close of business on the next day, citing unsatisfactory performance as the reason for the termination (F.F. No. 1).
Bandyk appealed his removal to the State Civil Service Commission, alleging that the department's action was discriminatory because it was based on the non-merit reasons of "my outside employment and exercise of free speech." After a hearing, the commission sustained Bandyk's appeal and issued the order noted above. The commission concluded that Bandyk proved "violations of mandated appointing authority procedures," which it deemed to be "indicative of a negative attitude against the appellant which pervaded the appointing authority's removal action."
Section 905.1 of the Civil Service Law
The department contends that Bandyk failed to meet his burden before the commission of going forward with affirmative evidence that his discharge was based on non-merit factors. Therefore, the department asserts, the commission erred as a matter of law by not dismissing Bandyk's appeal at the close of his evidence.*fn1
[ 117 Pa. Commw. Page 278]
Section 951(b) of the Civil Service Law*fn2 grants a right to a hearing, upon appeal to the commission, to "[a]ny person who is aggrieved by an alleged violation of section 905.1 of this act . . . ." Section 905.1*fn3 provides:
No officer or employe of the Commonwealth shall discriminate against any person in recruitment, examination, appointment, training, promotion, retention or any other personnel action with respect to the classified service because of political or religious opinions or affiliations[,] because of labor union affiliations or because of race, national origin or other non-merit factors. (Emphasis added.)*fn4
Allegheny County created its health department by action authorized under the Local Health Administration
[ 117 Pa. Commw. Page 279]
Law.*fn5 Section 10(b) of that law*fn6 provides in part that a county department of health:
shall have the power to employ personnel to assist the board of health and the health director. The recruitment, selection, tenure, removal and working conditions of all personnel shall conform to the standards of personnel administration prescribed by the State Department of Health. . . .
Thus the prohibition of discrimination found in section 905.1 of the Civil Service Law clearly applies to actions taken by the Allegheny County Health Department.
In Hunter v. Jones, 417 Pa. 372, 207 A.2d 784 (1965), the Pennsylvania Supreme Court explained the section 951(b) grant of a hearing when probationary employees claim violations of section 905.1, by stating:
What the Act permits is for each appellee to challenge his dismissal by specifically reciting the basis underlying his claim of discrimination and thereafter factually substantiating that claim upon hearing. If the complainant cannot sustain his allegations of discrimination, then his dismissal must stand without any right of appeal as to the validity of the determination of unsatisfactory work performance.
Hunter v. Jones, 417 Pa. at 379, 207 A.2d at 788-89.*fn7
This court interpreted that direction from Hunter v. Jones in Tempero v. Department of Environmental Resources,
[ 117 Pa. Commw. Page 28044]
Pa. Commonwealth Ct. 235, 403 A.2d 226 (1979). There public employees argued that, because the commission found that their reassignments were not based on their inability to perform their duties satisfactorily, the commission should have sustained their challenges to the reassignments under section 905.1.*fn8 The court rejected that argument as follows:
The fallacy of this argument is that the issue before the Commission was not the details of Petitioners' work performance. The [§ 951(b)] hearing was singularly concerned with the presence or absence of discriminatory influences on their reassignments. Skowronski v. Governor's Council on Drug and Alcohol Abuse, 28 Pa. Commonwealth Ct. 236, 368 A.2d 852 (1977). Discrimination cannot be inferred merely because of the existence of good performance ratings. There must be some affirmative support adduced to sustain the allegations of discrimination.
Tempero, 44 Pa. Commonwealth Ct. at 238-39, 403 A.2d at 228-29 (emphasis added).
[ 117 Pa. Commw. Page 281]
evaluation of the employee's performance and a recommendation regarding permanent employment, which should be submitted to the director for final action. Section 108C, "Dismissal During Probation," provides that at any time during the probationary period the director may separate an employee without right of appeal, except regarding allegations of discrimination, but the reasons for the dismissal must be submitted in writing to the personnel officer, and a copy should be filed with the state health department.
The department contends that section 108C, only, applies to its dimissal of Bandyk, and that it met the requirements of that section because it filed a written statement of reasons. Bandyk contends, and the commission agreed, that section 108B also applies, and that the department violated that section by failing to conduct an evaluation of him until some four days before the end of his probationary period. The commission also concluded that the department violated its own rules by failing to provide Bandyk with a written job description for the position for which he was evaluated until three weeks before the end of his probationary period.
This court consistently has recognized that "the probationary status civil service employee does not enjoy the job security afforded persons on regular status, who may be removed only for just cause." Cunningham v. State Civil Service Commission, 17 Pa. Commonwealth Ct. 375, 377, 332 A.2d 839, 840 (1975) (footnote omitted). The court has held that "[a]s long as the reasons for removal are job related and not tainted by discriminatory motives, the safeguards given in the Act to probationary employees are met." Department of Health v. Graham, 58 Pa. Commonwealth Ct. 409, 412, 427 A.2d 1279, 1281 (1981).
As the department correctly notes, in order to hire personnel effectively under a merit system, an agency
[ 117 Pa. Commw. Page 284]
must use the probationary period effectively. During this period procedural requirements are at a minimum, and the employer has great flexibility to terminate at any time, subject only to the requirement that such termination not be the result of discrimination. This flexibility permits the civil service employer to remove a probationary employee who demonstrates in any manner that he is unwilling or unable to perform his duties adequately before the procedural safeguards accorded regular status employees (including the burden on the employer to show "just cause" for the removal, see, n.8, supra) come into effect.
This court has recognized that proof of procedural errors can constitute the affirmative proof of discrimination based on non-merit factors in violation of section 905.1 required by Hunter v. Jones:
[S]uch non-merit factors can include employment of a discriminatory procedure in the implementation of a personnel action. See, e.g., Williams v. Department of Transportation, 64 Pa. Commonwealth Ct. 153, 439 A.2d 233 (1982) (use of non-uniform performance evaluation reports for purposes of computing furlough order held discriminatory); Alterman v. Baker, 71 Pa. Commonwealth Ct. 124, 454 A.2d 1154 (1983) (use of unauthorized testing procedures, even if applied to all applicants, is discriminatory).
Pannacci v. State Civil Service Commission, 101 Pa. Commonwealth Ct. 602, 609, 516 A.2d 1327, 1330 (1986).
However, this court also has held that an agency's committing procedural error with regard to an employee is not necessarily the equivalent of discrimination. Insurance Department v. Tracz, 77 Pa. Commonwealth Ct. 502, 466 A.2d 269 (1983); Silverman v. Department of Education, 70 Pa. Commonwealth Ct. 444,
[ 117 Pa. Commw. Page 285454]
A.2d 185 (1982). That is, as to some procedural errors, proof of the error, without more, is not sufficient to establish discrimination.
In an effort to eliminate confusion in this area, this court recently adopted a comprehensive approach to procedural error problems in Pronko v. Department of Revenue, 114 Pa. Commonwealth Ct. 428, 539 A.2d 456 (1988).
[W]here a technical violation of the [Civil Service] Act is alleged and the only appeal route open is via Section 951(b), the case must be analyzed in the context of a discrimination claim. . . . We recognized in Baker I [Pennsylvania Board of Probation and Parole v. Baker, 51 Pa. Commonwealth Ct. 501, 414 A.2d 1117 (1980)] and Baker II [Alterman v. Baker, 71 Pa. Commonwealth Ct. 124, 454 A.2d 1154 (1983)] that in such a case a technical violation of the Act constitutes discrimination per se. We reiterate that view today, but hold, in addition, that in order to gain some type of relief there must be evidence that the complaining individual was, in fact, harmed because of the technical non-compliance with the Act or evidence that because of the peculiar nature of the procedural impropriety he could have been harmed but there is no way to prove that for certain. . . .
We also take this opportunity to clear up the confusion on the question of intent by holding that in cases brought under Section 951(b) where a technical violation of the Act (sometimes referred to as a procedural error, procedural impropriety or procedural 'discrimination') constitutes the alleged discrimination, no showing of intent is required. Accord State Correctional Institution at Graterford v. Goodridge, 87 Pa. Commonwealth Ct. 527,
[ 117 Pa. Commw. Page 286487]
A.2d 1036 (1985) (holding that in a case where the appointing authority makes a 'factual,' as opposed to 'procedural' mistake, intent need not be shown). The reason for our holding is that often in cases of technical non-compliance what has occurred is administrative error or mistake. Thus, intent to discriminate could not be shown because it is frequently non-existent. See [Rand, An Examination of Discrimination under the Pennsylvania Civil Service Act, 25 Duq. L. Rev. 209, 232-36 (1987)]. We believe that the Act's purpose, promoting the making of unbiased personnel decisions based upon job-related criteria, would not be furthered were we to permit a mistake which causes a deserving employee to be passed over for promotion to go unrectified. We wish to emphasize, however, that our holding does not excuse the complaining individual from proving intent in the traditional type of discrimination case.
Pronko, Id. at 438-39, 539 A.2d at 462 (1988).
The commission's decision in the present case reflects the commission's belief that the department used such abnormally poor management in orienting and training this probationary employee that those errors "effectively discriminated against the appellant." However, poor management and incompetent supervision in general do not constitute technical or procedural violations of the sort outlined in Pronko. Therefore, we must examine each of the alleged procedural errors to determine first, whether the error alleged constituted a "technical violation of the Act" or its equivalent, and then, if it did, whether the employee was harmed by the violation or whether absence of harm cannot be determined with certainty.
[ 117 Pa. Commw. Page 287]
The department is correct in its assertion that where the local rules expressly address a particular subject matter, they constitute the applicable law. However, the corollary to this proposition is that a technical violation of the local rules is the equivalent of a technical violation of the Civil Service Act.
The commission concluded that the department's failure to provide Bandyk with a written job description for the position of Environmental Health Services Coordinator until three weeks before his termination violated section 104, "Classification Plan," of the department's rules, which requires that positions in the merit system be properly classified. The commission stated: "Presumably, such mandate includes the requirement that the employee be apprised of the classification and concomitant duties prior to having performance assessed." Obviously, an employee should not be terminated or otherwise penalized for failing to perform duties that were never explained to him. However, the commission's conclusion that an adequate explanation of one's duties must include a written job description was error. No other provision either of the local rules or of the commission's regulations expressly requires that a formal, written job description be given to the employee before he may be evaluated. The necessary information regarding a job's responsibilities may be conveyed orally. Indeed, if an employee is confused on this point, the duty to make inquiries is his. In the present case the department's failure to provide Bandyk with a new job description until sometime near the end of his probationary period did not constitute the equivalent of a technical violation of the Civil Service Act.
The commission also concluded that the department committed procedural error by failing to evaluate Bandyk until some four days before the end of his probationary period, instead of four weeks before the
[ 117 Pa. Commw. Page 288]
end of the period, as provided in section 108B of the local rules. On this point, the commission was correct. Contrary to the department's characterization, the commission's conclusion does not imply that a probationary employee has a right to employment for six months, but rather simply means that if his employment lasts as long as five months, the department's rules require an evaluation of him at that time. The department did not evaluate Bandyk at the five-month point; hence, the department committed a technical procedural error that was the equivalent of a technical violation of the Civil Service Act.
Consequently, we must determine whether Bandyk was harmed by this procedural error. The section 108B procedure mandating an evaluation of a probationary employee and a recommendation regarding permanent appointment four weeks before the end of the probationary period appears to be designed to serve the dual purposes of allowing sufficient time for an orderly disposition of the matter by the personnel officer and of providing an opportunity for an employee who receives a negative evaluation but is retained after that point to attempt to improve his performance so as to conform to the department's standards. This opportunity is not a matter of right. Because of the section 108C provision that an employee may be separated at any time during the probationary period, the department could conduct an evaluation at five months and dismiss the probationary employee at that time without committing a technical violation. Nevertheless, where, as here, a probationary employee was kept on for a full six months, but the five-month evaluation was not performed and (as the commission found in this case) the employee had no other basis for believing he was not performing satisfactorily, then the failure to conduct the evaluation deprived the employee of the opportunity to improve.
[ 117 Pa. Commw. Page 289]
Obviously, we cannot say with certainty that Bandyk was not harmed by the loss of this opportunity.
Of course, this analysis assumes that the employee would be notified of the contents of the performance evaluation. Although section 108B does not expressly provide that the five-month evaluation must be shown to the employee, and the local rules do not otherwise address the question, the commission's regulation relating to notice of personnel actions, 4 Pa. Code § 105.2, provides:
(a) Written notice shall be required for:
(14) Performance evaluation.
(b) The signature of the employee on the performance evaluation shall be evidence of written notice of performance evaluation.
The department would be required to notify the probationary employee of the contents of his performance evaluation.
Under the analysis of technical procedural violations adopted by this court in Pronko v. Department of Revenue, Bandyk has proved the equivalent of a technical violation of the Civil Service Act, which constitutes discrimination per se. Because the circumstances of this case, unlike those in Pronko, are such that we cannot say with certainty that Bandyk was not harmed by the procedural error, he is entitled to relief. Bandyk's satisfying the two-prong test of Pronko constitutes the affirmative proof of discrimination required by Hunter v. Jones.
Accordingly, we affirm the decision of the Civil Service Commission.
Now, June 24, 1988, the order of the State Civil Service Commission, at Appeal No. 6671, dated February 20, 1987, is affirmed.