The opinion of the court was delivered by: Johnny J. Butler, Judge
Submitted: August 12, 2011
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge
Louis G. Daily (Daily) petitions this Court, pro se, for review of the March 21, 2011 order of the State Civil Service Commission (Commission) sustaining his non-selection by the Northampton County Area Agency on Aging (Agency) for promotion to Aging Care Management Supervisor 1 (ACMS1). The issues before this Court are: (1) whether the Commission erred by finding that the Agency could make the appointment in this case by promotion without examination; and, (2) whether the Commission erred by finding insufficient evidence of age discrimination. Based upon the following, we affirm the order of the Commission.
Effective January 4, 2010, the position of ACMS1 within the Agency was
made available due to the retirement of the prior ACMS1. In light of
that, on December 15, 2009, the Agency‟s Administrator, John R. Mehler
(Mehler), posted an announcement of the opening of the position on all
county bulletin boards. The announcement stated: "This position may be
filled by the following options:
appointment from the PA State Civil Service Eligibility List, lateral
transfer, reinstatement from resignation, or promotion without
examination." Notes of Testimony, June 17, 2010 (N.T.) at Ex. AA-1.
The announcement specified, depending upon the option, the methods by
which applicants could apply, and specifically set forth the selection
criteria for promotion without examination.
By email to Mehler dated December 22, 2009, Robert Martin (Martin), requested an opportunity to interview for the posted position, then supplied his formal application for promotion without exam. Mehler and Senior Aging Care Manager 1, Delores Miller (Miller), interviewed Martin on January 6, 2010. Although Mehler had complete confidence in Martin‟s clinical decision-making and supervisory abilities, he felt an obligation to interview additional candidates, particularly to see if there was someone more knowledgeable relative to computers. Mehler, therefore, obtained a list of eligible candidates from the Commission, and availability surveys were sent to those candidates. Mehler and Miller interviewed three individuals on the eligibility list who returned surveys relative to their availability for an interview, G.S. Newhard, A. Dubrow and Daily.
Following the interviews, Mehler determined that Martin was the most qualified candidate for the ACMS1 position. Martin was offered and accepted the position. By letter dated March 17, 2010, Newhard, Dubrow and Daily were notified that they were not selected for the job. Daily filed an appeal with the Commission challenging his non-selection for the position on the basis that he was discriminated against due to his age, in violation of Section 905.1 of the Civil Service Act (Act).*fn1
Martin notified the Commission that he would participate in the proceeding. A hearing was held on June 17, 2010, at which Mehler and Daily offered testimony. On March 21, 2011, the Commission issued its order sustaining the Agency‟s non-selection on the basis that Daily failed to present evidence establishing discrimination. Daily filed a petition for review of the Commission‟s order with this Court.*fn2
Daily argues on appeal that the Commission erred by concluding that the appointment for the ACMS1 position could be made by promotion without examination under circumstances in which applicants on a competitive civil service list were simultaneously considered. We disagree.
The Act affords appointing agencies with the opportunity to fill vacancies in positions in the classified service by several methods. Section 601 of the Act, 71 P.S. § 741.601, specifically states in relevant part:
Whenever a vacancy is likely to occur or is to be filled in the classified service, the appointing authority shall submit to the director a statement indicating the position to be filled. Unless the appointing authority elects to follow one of the alternative procedures provided for in this act . . . the director shall certify to the appointing authority the names of the three eligibles who are highest on the appropriate promotion list or employment list, whichever is in existence, or from the one, which under the rules of the commission, has priority.*fn3
(Emphasis added). Thus, in addition to obtaining an employment list from the Commission of persons eligible for employment based upon employment examinations pursuant to Section 501 of the Act (71 P.S. §§ 741.501, 741.602; 4 Pa. Code § 95.51), alternative methods of selection provided for in the Act include: lateral transfer (Section 705 of the Act, 71 P.S. § 741.705; 4 Pa. Code § 99.21), reinstatement from resignation (Section 806 of the Act, 71 P.S. § 741.806), demotion (Section 706 of the Act, 71 P.S. § 741.706; 4 Pa. Code § 99.32), promotion by examination (Sections 501, 601 and 602 of the Act, 71 P.S. §§ 741.501, 741.601, 741.602; 4 Pa. Code § 95.7(a)-(b)), and promotion without examination (Section 501(a) of the Act, 71 P.S. § 741.501(a); 4 Pa. Code § 95.7(c)). There is nothing in the Act or the Commission‟s Rules that makes these lists mutually exclusive. In fact, Section 97.1 of the Commission‟s Rules, 4 Pa. Code § 97.1, provides that "[a]n eligible list shall be composed of as many lists as necessary to meet employment needs in locations where the jobs are available." Therefore, the Agency was permitted to fill the ACMS1 position using an employment eligibility exam list and/or by promotion without examination, which was made clear to Daily in the job announcement. The Commission did not, therefore, err by concluding that the appointment for the ACMS1 position could be made by promotion without examination.
Daily also argues on appeal that the Commission erred by concluding that there was insufficient evidence of age discrimination on the part of the Agency. Daily specifically argues that the Agency‟s failure to appoint someone over 60 years of age constituted traditional and procedural age discrimination. We disagree.
Section 905.1 of the Act provides that "[n]o officer or employe of the Commonwealth shall discriminate against any person in recruitment, examination, appointment, training, promotion, retention or any other personnel action with respect to the classified service because of . . . race, national origin or other non-merit factors." This Court has stated that ""[t]raditional‟ forms of discrimination focus upon such factors as race, sex or age." Masneri v. State Civil Serv. Comm'n (W. Ctr., Dep't of Pub. Welfare), 712 A.2d 821, 823 n.3 (Pa. Cmwlth. ...