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09/18/97 MICHAEL D. BOWMAN v. COMMONWEALTH

September 18, 1997

MICHAEL D. BOWMAN, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLEE, ELSIE M. GIBSON, INTERVENOR



Appeal from the Commonwealth Court Order entered November 20, 1995, at No. 2814 C.D. 1994 Reversing the Order of the Commonwealth of Pennsylvania, State Civil Service Commission, filed October 7, 1994 at No. 17417 Before: Flaherty, C.j., Zappala, Cappy, Castille, Nigro, JJ. Mr. Justice Cappy files a Concurring and Dissenting opinion in which Mr. Justice Castille joins. Madame Justice Newman did not participate in the consideration or decision of this case.

The opinion of the court was delivered by: Nigro

JUSTICE NIGRO

DECIDED: SEPTEMBER 18, 1997

This case presents the question of whether the Commonwealth Court exceeded its scope of review by reweighing the facts presented rather than determining whether substantial evidence supported the findings of the State Civil Service Commission ("Commission").

Appellant, Michael D. Bowman ("Bowman"), began employment at Ricketts Glen State Park ("Ricketts Glen") as a Seasonal Park Ranger 1 in June of 1983. Elsie M. Gibson ("Gibson") started work at Neshaminy State Park ("Neshaminy") as a Seasonal Park Ranger 1 in August of 1983. Bowman was promoted to a Seasonal Park Ranger 2 in 1989, while Gibson was promoted to a Seasonal Park Ranger 2 in 1986. *fn1

In March of 1992, a permanent Park Ranger 2 ("PR2") position became available at Ricketts Glen. Bowman and Gibson both met the minimum education and training requirements for the permanent PR2 position and applied for the job along with seventeen other qualified applicants. However, only Bowman and Gibson were eligible to be interviewed. Bowman's eligibility stemmed from the fact that he was already employed at Ricketts Glen while Gibson became eligible pursuant to a ranking process which combines seniority and performance evaluation.

In July of 1992, Ricketts Glen supervisor Bruce Semmel ("Semmel") interviewed Bowman and Gibson, asking each applicant the same questions. After the interviews, Semmel recommended Bowman for the PR2 position based on his belief that Bowman's nine years of experience at Ricketts Glen, a much larger park than Neshaminy, made him better qualified for the position than Gibson. *fn2

After Semmel submitted his recommendation of Bowman, Semmel was contacted in October of 1992 by Donald Mains, Assistant Director of the Department of Environmental Resources ("Department") Bureau of State Parks. Donald Mains directed the Department to place Gibson in the PR2 position, stating there was no significant justification for non-selection of the affirmative action candidate. On October 28, 1992, Bowman was informed verbally that the Department had selected Gibson. Bowman appealed to the Commission under § 951(b) of the Civil Service Act ("Act"), 71 P.S. § 741.951(b), and a hearing was held before three commissioners. *fn3

Following the hearing, the Commission concluded that Gibson had been hired entirely on the basis of her sex, and the Department had, therefore, discriminated against Bowman in violation of § 905.a of the Act, 71 P.S. § 741.905(a). The Commonwealth Court reversed, finding the record did not contain substantial evidence to support the Commission's findings. Department of Environmental Resources v. Bowman, Pa. Commw. , 667 A.2d 499 (1995).

The standard of review involving agency adjudications is limited to a determination of whether constitutional rights have been violated, errors of law have been committed, or whether the findings of the agency are supported by substantial evidence. Bethenergy Mines, Inc. v. Workers' Compensation Appeal Board (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992); See 2 Pa.C.S. § 704. The reviewing court is not directed to inquire into the administrative agency's adjudication, but rather only to determine whether it was supported by substantial evidence. *fn4 Bethenergy Mines, Inc. 531 Pa. at 291, 612 A.2d at 436 (citations omitted). Further, this Court has stated that:

courts will not review the actions of governmental bodies or administrative tribunals involving acts of discretion in the absence of bad faith, fraud, capricious action or abuse of power.... That the court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion.

Norfolk and Western Railway Company v. Pennsylvania Public Utility Commission, 489 Pa. 109, 128, 413 A.2d 1037, 1047 (1980), citing Blumenschein v. Pittsburgh Housing Authority, 379 Pa. 566, 573, 109 A.2d 331, 334-35 (1954), appeal dismissed, 350 U.S. 806, 100 L. Ed. 724, 76 S. Ct. 68 (1955). This Court finds the Commonwealth Court erred in reversing the Commission's finding, as substantial evidence was presented to support the Commission's decision, and, therefore, we reverse.

Instantly, after a March 24, 1994 hearing, the Commission overturned Gibson's appointment, ordering the appointment of Bowman to the position of PR2 at Ricketts Glen. As the Commission properly noted, Bowman's primary argument was that the Department discriminated against him by hiring a less qualified individual on the basis of her sex. The Commission found Bowman presented sufficient evidence that he was better qualified than Gibson and was discriminated against on the basis of non-merit factors, i.e., the selection of a female. They found that Bowman had "spent nearly nine years at [Ricketts Glen], a significantly more geographically demanding park with more exposure to the camping public than the park in which [Gibson] spent her time." Commission Opinion at p. 6. Moreover, the Commission emphasized that it appeared to them that Gibson was hired entirely on the basis of her sex as there was no record evidence presented establishing that Gibson was even equally qualified. Id.

The Commonwealth Court agreed with the Commission that Bowman gained his experience in a much larger park than Gibson. The court stated "a reasonable person might conclude from this evidence alone that Bowman was better qualified for the Ricketts Glen position." Bowman, Pa. Commw. at , 667 A.2d at 502. Nevertheless, the Commonwealth Court rejected that finding, indicating that Bowman's experience at Ricketts Glen is only one factor a reasonable person would consider in determining whether Bowman is more qualified for the PR2 position, noting ...


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