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 ...