Appealed From No. 18768. State Agency State Civil Service Commission.
Before: Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Senior Judge Mirarchi.
The opinion of the court was delivered by: Mirarchi
OPINION BY SENIOR JUDGE MIRARCHI
Lisa E. Naso (Naso) petitions for review of the October 5, 1995 order of the State Civil Service Commission (Commission), denying Naso's request for a "just cause" hearing pursuant to Section 951(a) of the Civil Service Act (Act). *fn1
Naso was employed as an Intermittent Intake Interviewer with the Department of Labor and Industry. Naso had achieved regular classified service status at this position, by successfully completing the requisite period of probationary employment. On July 30, 1994, Naso was promoted to the position of Personnel Analyst I, with the Department of Corrections at the State Correctional Institution at Muncy (DOC). As a Personnel Analyst, Naso was again required to serve a probationary term of employment. Her probationary term with the DOC was scheduled to last six months, but the DOC extended her probation for an additional three months.
On April 28, 1995, the DOC notified Naso that she was being removed from her Personnel Analyst position and returned to her Intake Interviewer position with the Department of Labor and Industry. *fn2 On May 9, 1995, Naso appealed the DOC's removal decision and on July 7, 1995, the Commission granted Naso a hearing pursuant to Section 951(b) of the Act, 71 P.S. § 741.951(b).
By letter dated September 18, 1995, Naso questioned why the Commission had granted a Section 951(b) or "discrimination" hearing and made no mention of her request for a "just cause" hearing pursuant to Section 951(a) of the Act, 71 P.S. § 741.951(a). *fn3 In her letter, Naso reasserted the position that because she was a probationary employee by promotion, she could not lose her status as a regular employee in classified service without the protection of a causation hearing. On October 5, 1995, the Commission denied Naso's request for a just cause hearing, reasoning that:
This personnel action did not remove Ms. Naso from classified service and, therefore, she is not entitled to the protection afforded by Section 804(a) of the Act which requires "just cause" for such actions. Having been removed only from the probationary status position to which she had been promoted, the only right she has in this instance is pursuant to Section 951(b) of the Act.
On February 5, 1996, the parties were notified that the Section 951(b) hearing would be conducted on March 21, 1996. However, on March 14, 1996, Naso withdrew her request for the Section 951(b) hearing and renewed her request for a Section 951(a) hearing. On May 10, 1996, the Commission accepted Naso's withdrawal of the 951(b) hearing and deemed final their denial of the 951(a) hearing. Naso petitions this Court for review of the Commission's denial of a just cause hearing. *fn4
On appeal, Naso contends that her probationary status of employment with the DOC resulted from a promotion. Relying upon Section 804.1 of the Act, added by Section 3 of the Act of September 29, 1951, P.L. 1636, 71 P.S. § 741.804a, Naso further contends that when the DOC removed her from probationary employment after promotion, they were required to return her to her previously held position. *fn5 In the instant case, Naso submits that she was never returned to her Intake Interview position, but instead, suffered a de facto removal from classified service without the benefit of a just cause hearing. Because the Commission's decision violates Section 804.1 of the Act, Naso urges, this Court should vacate the Commission's decision.
Conversely, the DOC contends that Naso was a probationary employee with the DOC and, like other probationary employees, she does not enjoy the right to a just cause hearing upon removal. Furthermore, while the DOC concedes that it did remove Naso from her probationary position on April 30, 1995, it submits that it returned Naso to her former position in regular classified service as an Intake Interviewer with the Department of Labor and Industry and thus, Naso was not removed from classified service by the DOC's actions. Finally, because it was the Department of Labor and Industry who put Naso on "no pay" status and subsequently terminated her from classified service after no position was made available, the DOC argues that Naso's conflict lies with that agency, and that she should be requesting a hearing from their determination.
It is the duty of the Commission to ensure compliance with the provisions of the Act. 71 P.S. § 741.203(3). Section 804 of the Act, "removal during probationary period," provides, that the "appointing authority may remove an employe from the classified service at any time before the expiration of the probationary period." 71 P.S. § 741.804. The corollary ...