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Peter E. Perry v. State Civil Service Commission (Department of Labor and Industry

November 14, 2011

PETER E. PERRY, PETITIONER
v.
STATE CIVIL SERVICE COMMISSION (DEPARTMENT OF LABOR AND INDUSTRY), RESPONDENT



Per curiam.

ORDER

AND NOW, this 25th day of January, 2012, it is ordered that the above-captioned opinion filed on November 14, 2011, shall be designated OPINION, rather than MEMORANDUM OPINION, and it shall be reported.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Peter E. Perry, : Petitioner : : v. : State Civil Service Commission (Department : of Labor and Industry), : Respondent

: Submitted: September 9, 2011

No. 2751 C.D. 2010 :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge

MEMORANDUM OPINION BY JUDGE SIMPSON

In this appeal of an order of the State Civil Service Commission (Commission), Peter E. Perry (Perry) challenges his removal from the position of Workers‟ Compensation Judge (WCJ) Manager with the Department of Labor and Industry (L&I). The Commission determined L&I proved just cause for Perry‟s removal based on credible evidence that Perry possessed a handgun in his office, left a handgun in his vehicle while parked on property owned or leased by L&I, and showed the handgun to his subordinate while in his vehicle. The Commission determined this conduct violated L&I‟s prohibition on the possession of weapons in the workplace. Perry argues the Commission erred in: (1) determining his pre-termination hearing satisfied the requirements set forth by the U.S. Supreme Court in Loudermill;*fn1 (2) concluding L&I proved just cause for removal; and, (3) dismissing his discrimination claim. Upon review, we affirm.

I. Factual and Procedural Background

Perry began his employment with L&I in 1972; he retired in 2001. Perry returned to a WCJ position with L&I in 2006.

In August 2008, Perry was promoted to WCJ Manager assigned to the Southeastern District Office*fn2 of L&I‟s Workers‟ Compensation Office of Adjudication. The Southeastern District includes three facilities, which are located at 8th and Arch Streets in Philadelphia, Northeast Philadelphia and Upper Darby. Perry worked at the Arch Street location. Perry supervised 68 employees, including approximately 24 WCJs.

In May 2003, L&I, through its Secretary, circulated a Weapons Policy Statement. Thereafter, in November 2006, the Secretary reissued the Weapons Policy Statement as an appendix to L&I‟s Workplace Violence Manual. The 2003 and 2006 Weapons Policy Statements contain substantively identical language. Both policy statements specifically prohibit the possession of weapons, including, among other things, all forms of firearms, "while in or on property owned or leased by [L&I]." Commission Op., Finding of Fact No. 9; Reproduced Record (R.R.) at 133a-35a; Appointing Authority Exs. AA 2, AA 3.

During his orientation after his return to employment, Perry received a copy of L&I‟s 2003 Weapons Policy Statement. Also, the statement, when reissued, was distributed to employees.

Since December 2007, Perry held a license to carry a firearm. On occasion, Perry left his firearm in his car while at work. On one occasion in early 2009, Perry‟s secretary, Shannon Finnegan, observed Perry in his office with his weapon in its holster. R.R. at 42a-43a, 44a-45a. Also, on another occasion during this timeframe, Perry inadvertently brought his weapon into his office in his briefcase. R.R. at 119a-120a.

On October 27, 2009, Perry attended a monthly executive staff meeting at L&I‟s Offices in the Eastgate Building in Harrisburg. Perry drove his personal vehicle to the meeting, and he parked his vehicle in a garage on the ground floor of the Eastgate Building.

Saundra Parker, the Administrative Officer for the Southeastern District, also attended the October 27 meeting. Parker traveled to Harrisburg by train, and she intended to return to Philadelphia by train. At the end of the meeting, Parker accepted a ride to the train station from Perry. Perry subsequently offered to allow Parker to drive back to Philadelphia with him in his vehicle, and she accepted. Five to ten minutes into the ride, Perry advised Parker he had his licensed weapon under the driver‟s seat of the vehicle. R.R. at 51a.

On November 16, 2009, Perry‟s immediate supervisor, MaryKay Rauenzahn, directed Perry to report to her office in Harrisburg to meet with her the next morning. At that meeting, Perry was advised that the meeting was a fact-finding meeting. During the meeting, Perry was given an opportunity to discuss:

(1) whether he showed his weapon to Parker while returning to Philadelphia on October 27; (2) whether he left his weapon in his car while parked at the Arch Street office; and, (3) whether he brought the weapon into the Arch Street office.

During the meeting, Perry acknowledged, at times, keeping his weapon in his car while it was parked in a lot leased for use by L&I as well as showing his weapon to Parker during the drive from Harrisburg to Philadelphia. R.R. at 65a. However, Perry denied ever bringing the weapon into the workplace. In addition to Rauenzahn, two representatives from L&I‟s Office of Human Resources, Roger Williams and Shawn Kupchella, attended the meeting. At the conclusion of the fact-finding meeting, Rauenzahn advised Perry that he was suspended.

Thereafter, by letter dated November 24, 2009, Perry received written notice of his suspension, pending investigation, effective November 17. That letter stated, "[L&I] is investigating allegations of your violation of Management Directive 205.33, workplace violence and [L&I‟s] Weapons Policy." F.F. No. 2; R.R. 1a; Commission Ex. A. The letter was signed by Neil Cashman, L&I‟s Acting Deputy Secretary for Administration, "FOR: Sandi Vito, Secretary of [L&I]." Id.

Shortly thereafter, by letter dated January 7, 2010, Perry was advised he would be removed from his employment effective at the close of business. That letter provided the following reason for the personnel action:

Specifically, you violated the [L&I‟s] Weapons Policy (Information Bulletin 2003-04) and Management Directive 205.33 (Workplace Violence). On October 27, 2009, you showed a gun to your subordinate in your private vehicle while utilizing your vehicle on Commonwealth business, creating fear in your subordinate. You were also observed in possession of a gun in the workplace by another subordinate. During the November 17, 2009 fact-finding meeting, you admitted that you are aware of the policies and that you did, in fact, show a gun to your subordinate in your private vehicle while utilizing it for Commonwealth business and had a gun in your personal vehicle parked on property owned or leased by the Commonwealth. This behavior is strictly prohibited. [L&I] cannot and will not tolerate weapons in the workplace nor violence or threats of violence. Further, your actions have demonstrated that [L&I] can no longer depend upon your judgment to make sound choices and appropriately carry out the goals of the [Workers‟ Compensation Office of Adjudication] with integrity.

F.F. No. 3; R.R. at 7a; Commission Ex. C. The letter was signed by Cashman, L&I‟s Acting Deputy Secretary for Administration, "FOR: Sandi Vito, Secretary of [L&I]." R.R. at 7a; Commission Ex. C. Perry challenged his removal before the Commission. Hearings ensued.

After the hearings, the Commission issued a decision in which it determined L&I proved just cause to remove Perry. Specifically, the Commission determined L&I presented "credible evidence in support of both the asserted standards-i.e., the Management Directive on Workplace Violence and the Weapons Policy Statement-and each of the three actions by [Perry] it claimed as violations of those standards-i.e., possession of a firearm in his office, leaving a firearm in his vehicle parked at [L&I] job sites and showing the firearm in his vehicle to his subordinate." Commission Op. at 23-24. Thus, the Commission dismissed Perry‟s appeal. Perry now petitions for review to this Court.

II. Issues

On appeal,*fn3 Perry argues that his pre-termination hearing did not comply with the requirements set forth in Loudermill. He further contends his single offense of inadvertently bringing a firearm into the workplace, in the context of an unblemished 30 year work history, did not constitute just cause for removal. Finally, Perry asserts that undisputed evidence of hostility and disparate treatment directed toward him satisfied his burden of proving his removal was discriminatory.

III. Discussion

In civil service cases, the Commission is the sole fact-finder. Bosnjak v. State Civil Serv. Comm‟n, 781 A.2d 1280 (Pa. Cmwlth. 2001). As such, determinations as to witness credibility and resolution of evidentiary conflicts are within the Commission‟s sole province, and we will not reweigh the evidence or substitute our judgment even though we might have reached a different factual conclusion. Thompson v. State Civil Serv. Comm‟n, 863 A.2d 180 (Pa. Cmwlth. 2004). When reviewing a Commission decision, we view the evidence, and all reasonable inferences arising from the evidence, in a light most favorable to the prevailing party. Bosnjak.

Further, the Commission is given broad powers in the supervision and administration of the civil service system. State Corr. Inst. at Graterford, Bureau of Corrs. v. Goodridge, 487 A.2d 1036 (Pa. Cmwlth. 1985).

A. Pre-termination Due Process

Perry first argues the Commission erred in determining the "ambush meeting" of November 17, 2009 provided him the pre-termination due process required by Loudermill. Pet‟r‟s Br. at 12. Specifically, he contends he was not advised of the specific charges against him, and he was not provided with any evidence in support of those charges. Therefore, Perry asserts, the pre-termination meeting did not satisfy the due process required by the U.S. Constitution. Antonini v. W. Beaver Area Sch. Dist., 874 A.2d 679 (Pa. Cmwlth. 2005).

As to the applicable requirements under Loudermill, this Court previously explained: [W]here an individual has a property right in employment, he may be suspended prior to a full due process removal hearing, but only after he has been afforded notice of the charges and an opportunity to respond. The very limited pretermination hearing "should be an initial check against mistaken decisions-essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.‟ Id. at 545-46. The process need only include oral or written notice of the charges, an explanation of the employer‟s evidence, and an opportunity for the employee to tell his side of the story. Id. at 546; accord, Gilbert v. Homar, 520 U.S. 924 (1997) (suspension without pay of policeman at East Stroudsburg University after arrest on felony drug charges).

Notice is sufficient, 1) if it apprises the vulnerable party of the nature of the charges and general evidence against him, and 2) if it is timely under the particular circumstances of the case. Gniotek v. City of Philadelphia, 808 F.2d 241 (3rd Cir. 1986). However, advance notice is not required. Id. ""[T]he timing and content of notice . will depend on appropriate accommodation of the ...


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