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Reck v. State Civil Service Commission

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


April 14, 2010

DENNIS G. RECK, PETITIONER
v.
STATE CIVIL SERVICE COMMISSION (PENNSYLVANIA LIQUOR CONTROL BOARD), RESPONDENT

The opinion of the court was delivered by: President Judge Leadbetter

SUBMITTED: February 26, 2010

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge.

OPINION

Petitioner, Dennis G. Reck, appeals from an order of the State Civil Service Commission (Commission) denying his request for reconsideration and affirming the dismissal of his appeal without a hearing. The Commission dismissed Reck's request because he failed to allege specific acts of discrimination by his employer as required by 4 Pa. Code § 105.12(c). We affirm.

According to Reck's completed request appeal form, he has been employed by the Pennsylvania Liquor Control Board (Employer) as a Liquor Store General Manager 2A for 15 years. Reck was assigned to Store #0222 when on April 17, 2009, Store #0222 was downgraded from a Grade 2A to Grade 1B. On May 31, 2009, Reck was involuntarily transferred to Liquor Store #0247 as a Liquor Store Manager 3 (assistant manager), which precluded him from transferring in grade to Store #0234 or Store #0288, both Grade 2A stores.

Reck filed an appeal request contending that his transfer and reassignment were due to non-merit factors in violation of Civil Service Act*fn1 and/or rules. On July 17, 2009, the Commission denied Reck's request for a hearing due to an insufficient allegation of discrimination. Reck filed a request for reconsideration, which repeated the allegations in his appeal request, in addition to asserting that: Employer failed to provide him with proper written notice of his reassignment or transfer pursuant to 4 Pa. Code § 105.2, he is prohibited from transferring back to Store #0222 if that store is upgraded in the future, and that he has been discriminated against based upon his over fifteen years of experience and twenty years of "active union involvement." On August 6, 2009, the Commission denied Reck's request for reconsideration. Thereafter, Reck filed a petition for review with this court appealing the Commission's denial of his request for reconsideration.*fn2

Reck argues that the Commission abused its discretion in denying his request for reconsideration and a hearing because he alleged sufficient facts to satisfy the requirements of 4 Pa. Code § 105.12(c). Section 105.12(c) provides:

(c) Appeals alleging discrimination which do not include specific facts relating to discrimination may be dismissed. Specific facts which should appear on the appeal form include:

(1) The acts complained of.

(2) How the treatment differs from treatment of others similarly situated.

(3) When the acts occurred.

(4) When and how the appellant first became aware of the alleged discrimination.

The Commission states that Reck failed to allege sufficient facts in his appeal request and request for reconsideration to satisfy the requirements of Section 105.12(c) and articulate a claim of discrimination based on involvement in union activity.

Affirmative factual allegations must support all claims of discrimination because discrimination cannot be inferred. Craig v. State Civil Service Comm'n (Dep't of Envtl. Protection), 800 A.2d 364, 365 (Pa. Cmwlth. 2002). The burden of proof is upon the party claiming to be aggrieved by the alleged discrimination. Id. The Commission is authorized to dismiss an appeal, sua sponte, without a hearing if the appeal request form fails to state a claim. Id. The decision to grant or deny a request for reconsideration is a matter of administrative discretion and as such will only be reversed for an abuse of discretion. Muehleisen, 443 A.2d at 869.

The facts alleged by Reck in his original appeal and his request for reconsideration fail to comply with the requirements of Section 105.12(c) of the Code because they fail to allege any specific discriminatory action. Reck clearly states the acts complained of, i.e., transfer and reassignment. However, Reck's central allegation that he was transferred and reassigned due to non-merit factors, union involvement in particular, is unsupported by any facts. Reck also failed to allege facts that showed how his treatment differed from treatment of others similarly situated or how he first became aware of the alleged discrimination. See 4 Pa. Code § 105.12(c)(2),(4).*fn3 A general and conclusory allegation of discrimination based upon union involvement without additional facts is insufficient to satisfy the requirements of the Code and we find that the Commission did not abuse its discretion in denying Reck's request for reconsideration. Craig, 400 A.2d at 365-66.

ORDER

AND NOW, this 14th day of April, 2010, the order of State Civil Service Commission in the above-captioned matter is hereby AFFIRMED.

BONNIE BRIGANCE LEADBETTER, President Judge


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