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CAROL A. BELLEW v. COMMONWEALTH PENNSYLVANIA (07/05/88)

decided: July 5, 1988.

CAROL A. BELLEW, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE CIVIL SERVICE COMMISSION, RESPONDENT



Appeals from the Order of the State Civil Service Commission in the case of Carol A. Bellew v. Department of Education, Appeal No. 7147, dated January 8 and January 27, 1987.

COUNSEL

Mark P. Widoff, Widoff, Reager, Selkowitz & Adler, P.C., for petitioner.

Barbara G. Raup, Chief Counsel, for respondent.

Judges Doyle, Barry and McGinley, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 117 Pa. Commw. Page 448]

This is an appeal by Carol A. Bellew (Appellant) from two orders of the State Civil Service Commission (Commission) the first of which dismissed her request for a hearing on the basis that she had not stated acts which, if proven, would constitute discrimination, and the second of which denied her request for reconsideration and, by implication, her petition to amend her Appeal Request Form.

According to her Appeal Request Form Appellant is employed as an Educational Research Associate I, regular status with the Department of Education (Appointing Authority). She appealed to the Commission from her non-selection for promotion without examination to the position of Educational Statistics Supervisor. The Appointing Authority advised her by letter of her non-selection stating that her present classification would not be deemed as the next lower level to the position which she sought. On her Appeal Request Form, in response to directions that she state specifically the acts of discrimination, Appellant alleged only that she believed that her present classification clearly met the requirements of the next lower classification and that the Appointing Authority in deciding to the contrary incorrectly applied the relevant management directive, thereby discriminating against eligible employees. The Commission sua sponte determined that these allegations

[ 117 Pa. Commw. Page 449]

    were legally insufficient to entitle Appellant to a hearing. It therefore dismissed her appeal. Appellant then apparently retained counsel who timely filed a Petition for Reconsideration to which was attached a motion to amend her Appeal Request Form. The Commission denied reconsideration and, therefore, did not specifically rule upon the motion to amend. Appellant now appeals to this Court from both of the Commission's orders.

Our scope of review over appeals from the Commission is limited to determining whether it has committed a legal error or violated constitutional provisions and whether its necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. § 704. An employee contesting his or her non-selection for promotion has a limited appeal right which is restricted to a situation where the employee alleges discrimination. Pannacci v. State Civil Service Commission, 101 Pa. Commonwealth Ct. 602, 604 n.1, 516 A.2d 1327, 1328 n.1 (1986). In such situations the employee bears the burden of proof, Pannacci, and is required to allege with specificity the basis underlying the claim of discrimination. Sienkiewicz v. Department of Public Welfare, 53 Pa. Commonwealth Ct. 445, 417 A.2d 874 (1980). Ultimately to prevail, he or she must substantiate his or her claim factually at the hearing. Id.

We have previously permitted the Commission to dismiss, sua sponte, an appeal for what is, in essence, a failure to state a cause of action under the Civil Service Act in cases where the appeal alleges discrimination under Section 951(b) of the Act,*fn1 71 P.S. § 741.951(b). See Samuel v. State Civil Service Commission, 104 Pa. Commonwealth Ct. 474, 480

[ 117 Pa. Commw. Page 450]

    n.6, 522 A.2d 163, 166 n.6 (1987). Thus, the sua sponte dismissal action taken here is not prohibited per se. Accordingly, we must consider whether the Commission committed legal error in determining that Appellant's allegations were legally insufficient. We are, of course, aware that discrimination cannot be inferred. Delaware ...


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