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Petsinger v. Dep't of Labor & Industry

January 21, 2010

JOHN W. PETSINGER, PETITIONER
v.
DEPARTMENT OF LABOR & INDUSTRY, OFFICE OF VOCATIONAL REHABILITATION, RESPONDENT



The opinion of the court was delivered by: Judge Simpson

Submitted: October 16, 2009

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

Like a cat with nine lives, this controversy between Petitioner John W. Petsinger and Respondent Department of Labor and Industry (L&I), Office of Vocational Rehabilitation (OVR) returns to us for at least the fourth time. This time, in our original jurisdiction, we review preliminary objections to Petsinger's uncounseled petition for review in the nature of a complaint in mandamus.

By way of introduction, Petsinger is a former OVR employee who was terminated in 1988 following his arrest for terroristic threats against L&I personnel and property. In his current petition, he seeks to compel OVR to direct L&I to undertake "reasonable accommodations" to return him to his former position, and to provide him, as an OVR client, with vocational rehabilitation services. Petsinger also requests L&I "review and correct" its 1988 decision to terminate him in light of a 1997 workers' compensation decision finding him disabled.

OVR raises several preliminary objections to Petsinger's petition. OVR contends 1) the petition is legally insufficient to state a cognizable mandamus claim for the provision of vocational rehabilitation services or review and correction of Petsinger's termination; 2) Petsinger failed to exhaust available statutory and administrative remedies; 3) Petsinger's petition lacks the necessary specificity for mandamus because it fails to identify the specific rehabilitation services to which Petsinger has a clear right, or the reasonable accommodations OVR is supposed to request on Petsinger's behalf; 4) the petition fails to conform to the applicable rules of court because it was not properly verified as required by Pa. R.A.P 1513(e); and, 5) the petition contains scandalous and impertinent matter. For the reasons that follow, we sustain OVR's demurrer and dismiss Petsinger's petition for review.

I. Background

A. Employment History; Disability Awards

Petsinger's petition for review alleges as follows. Petsinger worked for the Department of Public Welfare (DPW) from 1972 to 1978. From September, 1978 to March, 1988, OVR employed Petsinger as a vocational rehabilitation counselor 1. OVR's function is to provide appropriate vocational rehabilitation services to disabled people to enable them to obtain suitable employment. Petsinger left DPW to work at OVR in order to help people become employed rather than to maintain them on public assistance.

Petsinger avers that he soon began to experience workplace problems at OVR. From 1982 to 1988, Petsinger filed a number of complaints with the State Civil Service Commission (Commission) and the Pennsylvania Social Services Union (Union). Petsinger complained his OVR supervisors regularly encouraged him to falsify records regarding OVR closure statistics. He further complained his supervisors publicly harassed him because of his sexual orientation, ancestry and religious beliefs. Petsinger's supervisors progressively isolated him from other OVR employees. Neither the Commission nor the Union addressed these complaints prior to 1987.

Petsinger further avers that he also contacted the Office of Inspector General (OIG) regarding his workplace complaints. In January, 1988, an investigator advised Petsinger OIG would investigate the alleged falsification of records, but would not investigate the non-merit harassment claims. Petsinger advised the OIG investigator he would not return to work until the harassment claims were investigated. That same day, Petsinger called in sick, and he later joined friends for drinks. Petsinger returned home at approximately 8:00 p.m. Shortly thereafter, the police arrested Petsinger for making terroristic threats against L&I personnel and property. Petsinger remained incarcerated for about 12 hours. The next morning, Petsinger received a certified letter from L&I suspending his employment pending an investigation.

According to the petition, L&I's Bureau of Human Resources investigated the incident. Jim Wildeman, now L&I's Bureau of Human Resources Director (BHR Director), met with Petsinger and his then-attorney to discuss the alleged mistreatment at OVR. On March 3, 1988, on BHR Director's recommendation, L&I terminated Petsinger. Ultimately, Petsinger was acquitted of the criminal charges.

Petsinger also avers he appealed his termination to the Commission, which later advised him that it acted on his attorney's request to withdraw his appeal. The Commission then failed to respond to Petsinger's attorney's request for reinstatement of his complaint. In addition, any further action on Petsinger's complaints of discriminatory treatment stopped.

Beginning in 1988, following his termination, Petsinger applied several times to OVR for vocational rehabilitation services necessitated by the workplace harassment he experienced at OVR. L&I, through its attorneys, constantly opposed Petsinger's requests for OVR services. However, in 1990, OVR certified Petsinger disabled due to generalized anxiety disorder, with a depression component, due to stress to meet work demands. Also, in a 1994 interlocutory order, a Workers' Compensation Judge (WCJ) found Petsinger totally disabled due to a compensable psychological injury caused by abnormal working conditions at OVR (continued harassment by his supervisor).

Petsinger avers that in 1995, he and OVR entered an agreement to return him to employment as a vocational counselor and referred him to the Commission for competitive testing and placement. However, OVR refused to incorporate the 1994 WCJ's interlocutory order into Petsinger's application.

The petition also states that following civil service testing, Petsinger placed third on the eligible list for the position of OVR vocational rehabilitation counselor 1, the same position from which OVR previously terminated him. He placed first on the eligible list for the position of vocational counselor for L&I's Bureau of Blindness and Visual Services. He placed second on the eligible list for the DPW position of income maintenance caseworker. However, L&I and DPW took legal action to remove Petsinger from these lists and used "termination for cause" as the reason.

According to other averments in the petition, in February 1997, a WCJ awarded Claimant total disability workers' compensation benefits effective January 25, 1988. Petsinger also receives Social Security benefits as a result of his disability.

B. Most Recent OVR Application

In 2007-08, Petsinger made his most recent application to OVR for vocational rehabilitation services. Regarding this application, Petsinger's petition alleges:

55. [Petsinger's] 'employment handicap' is no longer an 'adverse reaction to [OVR's] abnormal working condition.'

56. [Petsinger's] 'employment handicap' is now an erroneous employment record, based on [BHR Director's] unresearched decision to permit 'almost no access to established appeal processes' for the 'false arrest' arranged to silence [Petsinger].

64. [Petsinger's] most recent application for services was closed as if I requested that it be closed without noting 'OVR failure to cooperate.'

67. [Petsinger] appealed this decision. OVR took nearly twice the amount of time prescribed by law in which to answer that appeal. The 'fair hearing officer' denied [Petsinger's] appeal, and instructed that [Petsinger] not be ...


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