Summary
In Williams we held that where an appointing authority utilizes non-uniform PERs for purposes of compiling furlough rankings an appealing employee need not show actual prejudice to sustain his burden because the non-uniform PERs themselves prejudiced the employee.
Summary of this case from Pronko v. CommonwealthOpinion
Argued September 14, 1983
December 14, 1983.
Civil service — Furlough — Performance evaluation reports.
1. The State Civil Service Commission erred when it sustained the furlough of an employee on the basis of a comparison of factors common to all relevant performance evaluation reports once it was established that all employees were not rated on identical factors, and that therefore an impermissible furlough rating procedure was used and the furlough was invalid regardless of the prejudice or lack thereof to the employee resulting from the irregularity. [116]
Argued September 14, 1983, before Judges WILLIAMS, JR., DOYLE and BARBIERI, sitting as a panel of three.
Appeal, No. 2991 C.D. 1982, from the Order of the Pennsylvania State Civil Service Commission in case of Richard F. Williams v. Department of Transportation, Appeal No. 2787.
Employee furloughed by Department Transportation. Employee appealed to the State Civil Service Commission. Appeal dismissed. Employee appealed to the Commonwealth Court of Pennsylvania. Case remanded to Commission. ( 64 Pa. Commw. 153) Furlough affirmed. Employee appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Employee ordered reinstated. Case remanded.
David A. Johnston, Jr., for petitioner.
Michael J. McCaney, Jr., Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for respondent.
Petitioner appeals from the order of the State Civil Service Commission which affirmed the action of the Department of Transportation in furloughing the Petitioner from his position as Transportation Construction Manager I.
As required under Section 802 of the Civil Service Act, Petitioner's furlough was determined by a ranking system under which the Department compared employees' scores derived from recent performance evaluation reports (PERs). In compiling the scores which were the basis for Petitioner's furlough ranking, the department used PERs which were not based upon the same number of performance factors.
Act of August 5, 1941, P.L. 752, as amended, 71 P. S. § 741.802.
Each PER contains ten evaluation factors: Quality of work, work habits, relationship with people, dependability, quantity of work, initiative, analytical ability, ability as supervisor, administrative ability, and safety. Scores are determined by assigning numerical values to each factor evaluated and dividing the sum of the values by the number of factors considered. Employees within the same rating class are then equally divided into quarters based on their scores, with the least senior employee in the lowest quarter to be furloughed first. See Collins v. Department of Transportation, 37 Pa. Commw. 292, 390 A.2d 333 (1978).
Within Petitioner's furlough unit of ten employees, four PERs were based upon ten factors, five were based upon nine factors, and one was based upon eight factors.
In Petitioner's initial appeal to our Court, Williams v. Department of Transportation, 64 Pa. Commw. 153, 439 A.2d 233 (1982) (Williams I), we remanded this case for further evidence, citing with approval the Commission's case of Weikal v. Department of Transportation, in which the Commission found the Department's practice of comparing PERs based upon different performance factors to be discriminatory, requiring reinstatement of the employee.
Weikal v. Department of Transportation, Appeal No. 2786, April 13, 1980.
On remand to the Commission, it was established that the furlough determination in this case was made by comparing PERs based upon different factors. The Commission distinguished this case from their decision in Weikal, however on the basis of additional evidence indicating that the Petitioner would still have been furloughed had only common PER factors been considered. On the basis of this evidence, the Commission found that the Petitioner suffered no prejudice by the Department's error, and refused reinstatement.
The Department recalculated the scores omitting those rating factors not held in common by all employees: analytical ability, ability as supervisor, and administrative ability. Under the new scores, Petitioner was still ranked among those to be furloughed.
The Commission's decision on remand is not consistent with this Court's prior opinion, in which we concluded that the Department's procedure was itself invalid as contrary to statute. In Williams I we stated:
Section 802, requiring furlough rankings to be based upon grouping "regular" ratings, cannot be read as tolerating the inclusion of irregular rating(s) in the determination.
Id. at 156, 439 A.2d at 235. From this language it is clear that any determination involving an impermissible comparison of dissimilar PERs shall be considered invalid. There is no additional requirement that such a determination be shown to be prejudicial to the party involved, nor is such a requirement mentioned in Weikal. Our Court remanded this case solely for the factual determination of whether the impermissible furlough rating procedure used in Weikal was present here. Once that fact was established, the Commission should have found that Petitioner's furlough was itself invalid, regardless of the prejudice or lack of prejudice which resulted from the procedure.
In Weikal, there was no finding that the Petitioner would not have been furloughed had a valid procedure been followed. Petitioner met his burden of proof by simply showing that the Department used dissimilar PERs in making its determination.
Accordingly, we must reverse the decision of the Commission.
ORDER
NOW, December 14, 1983, the decision and order of the State Civil Service Commission in the above referenced matter, dated October 29, 1982, is hereby reversed. The Petitioner is hereby ordered reinstated and this matter is remanded to the State Civil Service Commission for the appropriate proceedings to determine backpay and benefits owed Petitioner for the period of his furlough. Jurisdiction is relinquished.