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05/20/97 ROBERT A. MILISITS v. CITY PITTSBURGH

COMMONWEALTH COURT OF PENNSYLVANIA


May 20, 1997

ROBERT A. MILISITS
v.
CITY OF PITTSBURGH, APPELLANT

Appealed From No. S.A. 94-4252. Common Pleas Court of the County of Allegheny. Judge WATSON.

Before: Honorable Bernard L. McGINLEY, Judge, Honorable Jim Flaherty, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Judge Flaherty.

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY

FILED: May 20, 1997

The City of Pittsburgh (City) appeals from an order of the Court of Common Pleas of Allegheny County (trial court) reversing the decision of the City of Pittsburgh Civil Service Commission (Commission) and ordering the reinstatement of Robert A. Milisits with back pay. We reverse.

On August 5, 1994, Milisits, who is a civil service employee, was laid off from his position as a paralegal in the City's Law Department (Department) pursuant to a reduction in the Department's work force due to economic reasons. Milisits appealed to the Commission, arguing that there was a less senior paralegal who should have been laid off before him. On October 13, 1994, a public hearing was held before the Commission, at which both Milisits and the City presented evidence. At the hearing, the City Solicitor testified that in order to comply with a mandate from the Mayor's Budget Office to reduce the 1994 budget of the Department by ten percent, the tax-related duties performed by one of the Department's paralegals had been transferred to the City's Department of Finance. As a result, the Department laid off Milisits, who was considered to be the least senior "full-time" paralegal employed by the Department.

Before the Commission, Milisits argued that there was a less senior paralegal, David Hickman, who was employed by the Department and should have been laid off before him in accordance with Section 20.1 of the General Civil Service portion of the Second Class City Code (Code). *fn1 Hickman, however, was hired as a "part-time" paralegal by the City. As such, Hickman is paid a lower wage than the full-time paralegals and, unlike them, he does not receive paid health, dental and vision insurance or paid vacation, personal days and holidays. He does, however, work a substantial amount of hours and his duties vary little, if any, from Milisits. *fn2 Before the Commission, Milisits argued that despite the label given to Hickman by the City, Hickman was in fact a full-time employee; therefore, he should have been laid off prior to Milisits.

The Commission denied Milisits' appeal, reasoning that it has relied upon the classification given to employees by the City in the hiring process in determining if an employee is part-time and that, historically, it has no jurisdiction over part-time employees; therefore, the Commission found that Milisits was the least senior person in his position.

On appeal, the trial court reversed and ordered that Milisits be reinstated with full back pay. The trial court concluded that although Hickman was called "part-time," he was in reality a full-time employee due to the hours he worked under Section 180 of the City Code, which the trial court stated defines part-time employees as those who are classified as such and those working less than 180 days per year. *fn3 As such, it found that Hickman and Milisits were in the same classification for purposes of layoffs. The City now appeals to this court. *fn4

On appeal, the City presents the following issues for our review: (1) whether "full-time" and "part-time" employees with the same job title hold the same position for purposes of layoffs during an economic reduction in the work force; (2) whether the trial court erred by determining that the less senior employee was not a part-time employee; (3) whether the trial court erred by ordering reinstatement with full back pay when the record contains no evidence regarding the current existence of paralegal positions in the City's Law Department.

With respect to the first issue raised by the City, Section 20.1 of the Code provides, in relevant part, as follows:

If for reasons of economy, lack of funds, abolition of position or positions, or for any other reasons it becomes necessary for any city of the second class to reduce the number of employes then, the city shall follow the following procedure:

53 P.S. § 23454.

The requirements of Section 20.1 of the Code were refined by this court in Fusaro v. Civil Service Comm'n of Pittsburgh, 16 Pa. Commw. 1, 328 A.2d 916 (Pa. Commw. 1974). In that case we upheld the City's layoff of a "streetlighting engineer" due to the abolishment of his position for economic reasons. The employee argued that the City could not discharge individual employees for economic reasons under Section 20.1 without first discharging any employee hired subsequent to the date the person in the position to be terminated was hired. The employee asserted that once the City determined that a position was economically unfeasible, Section 20.1 required it to reevaluate the economic feasibility of all positions held by city employees hired after the holder of the position to be terminated to see if the termination of those positions would effectuate the desired savings.

In rejecting the need for such a city-wide determination of the economic feasibility of all positions, we stated in Fusaro that such an interpretation of Section 20.1 would be absurd and would "fiscally handcuff any city." 328 A.2d at 918. We reasoned that "to adopt appellant's position would prevent a city from terminating an economically unfeasible position. When faced with an economic cutback, the city would be required to retain unneeded employees and discharge potentially essential ones." Id. at 918-19. In so concluding, we cited Gaul v. Philadelphia, 384 Pa. 494, 121 A.2d 103 (1956), for the proposition that "the determination that a position should be abolished for reasons of efficiency and economy is solely within the judgment and discretion of the governing authority in whom the power to eliminate the office is vested." Fusaro, 328 A.2d at 919. As such, the practical effect of our decision in Fusaro was to limit the application of the seniority analysis mandated by Section 20.1 to those employees who hold the same "position" which is sought to be abolished by the City for economic reasons.

Here, the City asserts that although "full-time" and "part-time" paralegals have the same job title, they hold different positions for purposes of determining seniority because: (1) paralegals classified as "part-time" by the City are in the "exempt" civil service classification under the Commission's rules, whereas those classified as "full-time" by the City are in the "non-competitive" classification (R.R. at 52a.); and (2) paralegals considered "part-time" by the City have different terms and conditions of employment than full-timers, including lower wages and no paid insurance benefits or paid time off.

To determine whether the two employees at issue hold the same or different positions for purposes of seniority, we believe that it is crucial to first dispense with the labels of "full" or "part-time" and look to the totality of the circumstances under which the employees were hired and worked. In so doing, we conclude that the terms and conditions of employment for the two employees vary to such a degree as to make the positions held by them different for purposes of a seniority analysis.

While Hickman works a substantial amount of hours and performs the same work as Milisits, Hickman receives a lower wage than Milisits and does not receive any paid vacation, personal days or holidays. In addition, under the terms of Hickman's employment, the City does not provide the paid health, dental or vision insurance that it does for Milisits. In essence, the job for which Hickman was hired should have been more properly labelled since it is more in the nature of an "economy rate" paralegal, rather than "part-time" in the sense that it was to be based on hours worked and rather than the career-oriented position filled by Milisits. As their terms of employment from the outset placed Hickman and Milisits in different tracks of employment, we conclude that when all of the circumstances surrounding each individual's employment with the City are considered, they warrant the Conclusion that Hickman and Milisits held different positions for purposes of seniority under Section 20.1 of the Code.

As such, the determination of whether to abolish one of the "full-time" career paralegal positions or the non-career, exempt "part-time" paralegal position was solely within the judgment and discretion of the City. Fusaro. Having determined that it was necessary to eliminate one of the "full-time" paralegal positions to comply with the mandated budget reduction, the City was required by Section 20.1 to lay off Milisits, who was the least senior "full-time" paralegal in that classification in the Department. Therefore, the Commission's Conclusion was correct, and the trial court erred by concluding, based on an erroneous statement of Section 180 of the Pittsburgh Code, that Hickman and Milisits held the same position for purposes of seniority in times of economic layoffs.

As the trial court's error requires us to reverse, we need not consider the City's remaining assertions of error. For the foregoing reasons, the order of the trial court is reversed.

JIM FLAHERTY, Judge

ORDER

NOW, May 20, 1997, the order of the Court of Common Pleas of Allegheny County, dated May 22, 1996, at No. SA 94-4252, is hereby reversed.

JIM FLAHERTY, Judge


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