Opinion
No. 1999 C.D. 2003.
Submitted: February 13, 2004.
Filed: June 9, 2004. Order Filed: August 12, 2004.
BEFORE: COLINS, President Judge; SMITH-RIBNER, Judge; McCLOSKEY, Senior Judge.
ORDER
AND NOW, this 12th day of August, 2004, having considered the application for reargument filed by petitioner, the application is denied.
Reconsideration is granted, and our opinion and order filed June 9, 2004, are withdrawn. A new decision will be issued.
No new briefs will be accepted.
Petitioner, Susan Kelly, requests the Court to review an order of the State Civil Service Commission (Commission), which affirmed the decision of the Department of Environmental Protection (DEP) to deny Petitioner's promotion to the Air Quality Program Specialist Supervisor (AQPSS) position at the South Central Regional Office (SCRO). Petitioner contends that DEP violated Section 905.1 of the Civil Service Act (Act), Act of August 5, 1941, P.L. 752, as amended, added by Section 25 of the Act of August 27, 1963, P.L. 1257, 71 P. S. § 741.905a, by enforcing a decision that was flawed due to discrimination in the selection process. Petitioner contends that DEP violated the Act by its expansion of the "prior experience" requirements for the AQPSS position to include two pay ranges below the vacant position; that the Commission committed an error of law by failing to find discrimination when DEP's response to Petitioner's prima facie case was found to be incredible; and that DEP violated the Act by allowing the interview process to override the requirement that promotion without examination be based upon employee service and seniority.
Section 905.1 of the Act provides:
No 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 political or religious opinions or affiliations because of labor union affiliations or because of race, national origin or other non-merit factors.
The Commission found that Petitioner was employed by DEP for approximately sixteen years, beginning in 1987 as an Air Quality Specialist and rising by 1992 to the position of Environmental Protection Compliance Specialist. In December 1995 she was promoted to her current position of Air Quality District Supervisor. From July 31 to August 15, 2002, DEP posted an announcement for the vacant AQPSS position at the SCRO. The posting required eligible candidates to have "[t]wo years of experience as an Air Quality Program Specialist; or any equivalent combination of experience and training." Appellant's Exhibit, AP-5. The eligibility criteria was restricted to applicants who "[h]ave held regular civil service status in one of the following classifications: Air Quality District Supervisor, Air Quality Program Specialist or Air Pollution Control Engineer 3." Id. The posting also indicated that "[w]e will consider applications from commonwealth employees who currently occupy or have previously held regular Civil Service status in Pay Range 8 job titles for which there are logical occupational, functional, or career development relationships to this position. All applicants must meet the minimum experience and training requirements." Id.
Six candidates, including Petitioner and Respondent, William R. Weaver, submitted bids in response to DEP's first posting. Weaver had worked as an Environmental Protection Compliance Specialist for six years, and he had succeeded Petitioner in that position at the SCRO. Three of the candidates were determined to be ineligible under the listed criteria. Weaver was among the ineligible class because the posting did not include the position of Environmental Protection Compliance Specialist among the eligibility criteria.
On October 15, 2002, Petitioner was interviewed by Environmental Protection Manager Leif Ericson and Patricia Robbins. Later that day Petitioner was notified by Robbins that the AQPSS position would be reposted with altered eligibility criteria to include candidates from more job classifications. Petitioner was informed that she need not reapply for the position. From October 16 through October 30, 2002, DEP posted a second announcement for the AQPSS position. The second announcement differed from the first in that three additional civil service classifications were included to satisfy the eligibility requirements: Environmental Chemist 2, Environmental Protection Compliance Specialist and Environmental Chemist 1. Weaver was certified eligible under the second posting for the AQPSS position, and in December 2002 he was appointed to the position.
The Commission further found that Leif Ericson, DEP's local manager at the SCRO, made the decision to repost the vacancy to expand the list of eligible candidate classifications and that the decision was predicated on DEP's belief that the candidate pool had been unnecessarily limited. The Commission found that none of the other job postings for AQPSS positions throughout the Commonwealth included the Environmental Protection Compliance Specialist position as an eligible job classification from which a candidate might be promoted to AQPSS, but it noted that none of the job descriptions in any two locations were alike. When filling a vacancy, the local manager of the appointing authority submits the request to the Bureau of Human Resources, which develops the job posting and determines the eligible candidates for a position based on their qualifications. The local manager determines when and if interviews will be held and has sole authority to select an appointee among the eligible class so long as the appointment complies with equal employment opportunity and civil service laws.
Ericson was the hiring manager for the AQPSS position and the supervisor of both Weaver and Petitioner. Their Employee Performance Reviews (both executed by Ericson) were attached to their bids for the AQPSS position. Petitioner's review stated that she received an overall "commendable" rating, but she was criticized for being too demanding, becoming unjustifiably frustrated and creating coworker resentment. The Commission noted that Petitioner had utilized the "eFACTS" program for three years, had trained her staff in its use and had conducted a study using the program. Weaver's review stated that he received an overall "outstanding" rating, and Ericson specifically noted that Weaver showed sensitivity and evenhandedness in dealing with coworkers, possessed the best organizational skills of any person he knew and had a complex understanding of eFACTS. Ericson explained his reasons in the Equal Employment Review Certificate for choosing Weaver, and he indicated that the two most important traits for the new AQPSS were a comprehensive view of eFACTS and the ability to positively participate in new initiatives.
eFACTS is the computer database utilized by DEP local offices to track inspections, permit applications and enforcement actions. See Commission Adjudication at p. 12, n6.
The Commission stated the issue as whether Petitioner demonstrated that DEP's reposting of the AQPSS position and her non-selection constituted discrimination in violation of Section 905.1 of the Act. It noted Petitioner's allegations that the reposting with an expanded list of job classifications violated Section 501 of the Act, 71 P. S. § 741.501, 4 Pa. Code § 95.7 and Governor's Management Directive 580.19 and that Ericson favored Weaver for non-merit reasons and selected him based on non-merit criteria.
Section 501 of the Act governs, inter alia, examination, residency and selection requirements for appointment and promotion in the classified service. Relating to promotion without examination, former 4 Pa. Code § 95.7(d)(2)(i) (now § 95.7(c)(2)(i)) provided:
The appointing authority shall post the vacancy, consider the eligible employes who express an interest and make the promotion decision based upon an objective review of each employe's meritorious service and seniority. Seniority for this purpose shall be the length of continuous service of an employe in the designated next lower classes if there has been no break-in-service. Eligibility for consideration for the promotion may be limited by the appointing authority to a particular geographic or program area. The posting shall, whenever possible, specify the classes determined to be next lower. Otherwise, the posting shall state that applications will be reviewed to determine if employes previously held regular status or currently hold regular status in a class for which there is a logical occupational, functional or career development relationship to the posted position or if there is a clear linkage between the required knowledges, skills and abilities of the previously or currently held class with those needed for the posted position.
Governor's Management Directive 580.19(2)(b) provides:
The employee selected for competitive or noncompetitive promotion without examination must: (1) have or have had regular civil service status in the next lower class. (2) meet the minimum requirements for the higher position. (3) receive the unqualified recommendations of both the immediate supervisor and the appointing authority on Form SCSC-5223, Unqualified Recommendation for Promotion. (4) meet agency established criteria for meritorious service and seniority.
The Management Directive implements the provisions of Section 501. See Keim v. Department of Health, 543 A.2d 1261 (Pa.Cmwlth. 1988). Management Directives are tantamount to regulations or executive orders as they are similarly issued under or pursuant to the laws of this Commonwealth. See Housing Authority of the County of Chester v. State Civil Service Commission, 556 Pa. 621, 730 A.2d 935 (1999). Because the directive implements the provisions of Section 501, a technical violation of the directive is equivalent to a technical violation of the Act. Nosko v. Somerset State Hospital, 590 A.2d 844 (Pa.Cmwlth. 1991).
Specifically, the Commission determined that reposting the AQPSS position to include the next lower class of eligible candidates did not amount to a technical violation of the Act, that the reposting was at the discretion of local management and that DEP substantially met all requirements for making an appointment to comport with Section 501 of the Act and Management Directive 580.19. As for traditional discrimination based on factors such as race, sex or age, the Commission indicated that although Petitioner established a prima facie case of discrimination DEP rebutted that showing by establishing a legitimate nondiscriminatory reason for its appointment decision. Petitioner demonstrated that the second posting increased the pool of eligible candidates by only one (Weaver), but the Commission, nevertheless, accepted that Weaver was the better-qualified candidate.
The Court's review is limited to determining whether any constitutional rights were violated, whether an error of law was committed and whether the Commission's findings of fact are supported by substantial evidence in the record. 2 Pa.C.S.A. § 704; Craig v. State Civil Service Commission (Department of Environmental Protection), 800 A.2d 364 (Pa.Cmwlth. 2002).
Petitioner first argues that DEP committed a technical violation of the Act by expanding the class of eligible candidates. Petitioner asserts that the eligible candidates must be derived from the next lower position, and as support she cites Dadey v. Bureau of Employment Security, Department of Labor and Industry, 453 A.2d 702, 704-705 (Pa. Cmwlth. 1982):
The phrase "next lower position" is not defined in the Civil Service Act. The word "Position" is defined in Section 3(f), 71 P. S. § 741.3(f), simply as "a group of current duties and responsibilities assigned or delegated by competent authority requiring the full-time or parttime employment of one person." . . . [T]he word "Class" and the term "class of positions" are defined at Section 3(g), 71 P. S. § 741.3(g), as a "group of positions. . . . sufficiently similar in respect to duties and responsibilities thereof that the same descriptive title may be used for each of such positions, the same requirements as to experience, knowledge and ability are demanded of incumbents, . . . and the same schedule of compensation may be made to apply with fairness under like working conditions."
From the foregoing precept, Petitioner argues that DEP committed a technical violation of the Act when it promoted Weaver from his pay grade 7 position to the pay grade 9 AQPSS position rather than promoting Petitioner from her pay grade 8 position to the AQPSS position. Petitioner also posits that Section 501 of the Act expressly limits DEP from promoting other than a pay grade 8 employee to a pay grade 9 position. In response, DEP stresses that it has broad discretion to determine what the next lower class should comprise, and, citing Nosko v. Somerset State Hospital, 590 A.2d 844 (Pa.Cmwlth. 1991), it argues that the next lower class does not mean next lower pay range but merely contemplates a class having a logical occupational, functional or career development relationship to the posted position. In short, DEP's application of its own directive is entitled to substantial deference. Mack v. Civil Service Commission, 817 A.2d 571 (Pa.Cmwlth. 2003).
Next, Petitioner contends that pursuant to Department of Health v. Nwogwugwu, 594 A.2d 847 (Pa.Cmwlth. 1991), the Commission committed an error of law in determining that DEP's proffered reason for expanding the list of eligible candidates was incredible but did not constitute discrimination. The Commission accepted that circumstantial evidence existed to establish a prima facie case of discrimination when the eligible class was expanded to include only one more individual who became the eventual appointee. From that point, Petitioner asserts, DEP had to proffer non-discriminatory reasons for expanding the eligible class rather than proffer non-discriminatory reasons for Petitioner's nonpromotion. Lastly, Petitioner maintains that DEP violated the Act by overriding meritorious service and seniority with the subjective evaluation of an interview. She cites Price v. Luzerne/Wyoming Counties Area Agency on Aging, 672 A.2d 409 (Pa. Cmwlth 1996), for the proposition that an interview is appropriate only as a tie-breaker between equally qualified personnel and that because she clearly was more qualified an interview was inappropriate and her promotion was warranted. DEP disputes the notion that when two qualified candidates exist that it does not have discretion to conduct interviews to discern the best qualified candidate. See Nosko.
An employee bears the burden of establishing discrimination in a nonselection for promotion case. Price. Proof of a technical violation of the Act constitutes discrimination per se under Section 905.1 of the Act and requires no showing of intent because such violation generally represents the commission of an administrative error or mistake. Pronko v. Department of Revenue, 539 A.2d 456 (Pa.Cmwlth. 1988). The United States Supreme Court established the standard for determining traditional discrimination claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and the Pennsylvania Supreme Court interpreted the McDonnell Douglas Corp. standard in Allegheny Housing Rehabilitation Corp. v. Pennsylvania Human Relations Commission, 516 Pa. 124, 532 A.2d 315 (1987). The Supreme Court held there that a prima facie case of discrimination is made out when a plaintiff offers sufficient evidence which, if believed and is otherwise unexplained, indicates more likely than not that discrimination has occurred. Id. Only after the employee succeeds in establishing a prima facie case does the burden shift to the employer to offer a legitimate, non-discriminatory reason for the employee's non-selection. Id.
From its review of the record and applicable case law, the Court concludes that the Commission did not err in concluding that Petitioner failed to sustain her burden of proof in this case. The Court does not read Dadey to require the interpretation that Petitioner has advanced, i.e., that an appointee promoted two pay ranges beyond his current position does not fall within the definition of next lower class. The Commission correctly reasoned that DEP had the authority to expand the class of eligible candidates provided that it was not for a discriminatory purpose, and pursuant to that authority DEP expanded the class and eventually hired the most qualified candidate for merit-based reasons. The record supports the determination that a logical occupational, functional or career development relationship exists between the appointee and the posted position or that a clear link exists between Weaver's extensive knowledge, skill and ability and the requirements for the AQPSS position. Nosko. Moreover, the Court rejects the argument that the reasons articulated by DEP for its selection precluded the Commission from finding that DEP met its burden to prove a legitimate nondiscriminatory basis for its action. McDonnell Douglas Corp; Allegheny Housing Rehabilitation.
Although Petitioner raised a rebuttable presumption of discrimination, it was overcome by substantial evidence that Weaver was highly qualified and was the best candidate for the AQPSS position. In addition, the holding in Price supports DEP's assertion that it had sole authority to determine whether to conduct an interview to differentiate between the two qualified candidates. In accordance with well-established case law, the Court will defer to DEP's reasonable interpretation of its own directives. Nosko. Because the Commission's findings are supported by substantial evidence in the record, the Court has no basis for rejecting those findings, which support the ultimate conclusion that DEP did not violate the Act. Price. Accordingly, the Court affirms the order of the Commission.
ORDER
AND NOW, this 9th day of June, 2004, the order of the State Civil Service Commission is affirmed.