             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Department of Public Welfare,                :
                       Petitioner            :
                                             :
              v.                             :    No. 846 C.D. 2013
                                             :    Submitted: November 8, 2013
State Civil Service Commission               :
(Butler),                                    :
                        Respondent           :


BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                  FILED: July 21, 2014

              Petitioner Department of Public Welfare (DPW) petitions for review
of an order of the State Civil Service Commission (Commission).1                        The
Commission sustained the appeal of Edward M. Butler (Butler), which challenged
the downward reclassification of his position with DPW from Aging Services
Specialist to Human Services Program Specialist. For the reasons set forth below,
we affirm.
              The facts as found by the Commission are as follows.                 Prior to
July 2007, Butler worked within the classified service with the Department of


       1
         By order dated November 1, 2013, this Court precluded Respondent from filing a brief
in this matter.
Labor & Industry, occupying the position of Vocational Rehabilitation Specialist at
pay scale group 8. (Finding of Fact (F.F.) nos. 3-4.) At some point in time, Butler
and Jay Bausch, an employee in DPW’s Human Resources Office, discussed a
position within the senior management service with DPW. (F.F. no. 5.) Butler and
Mr. Bausch specifically discussed how Butler’s acceptance of the position would
affect Butler’s 16 years of service with civil service status. (Id.) During the
conversation, Mr. Bausch assured Butler that Butler could take a leave of absence
from civil service and then an extended leave of absence to accept the senior
management service position, which meant that Butler would have a right to return
to an equivalent civil service status position with DPW at pay scale group 8 when
his leave ended. (F.F. no. 6.)
             Butler was eventually selected for the position, and he entered the
senior management service with DPW as an Executive Assistant at pay scale
group 9, with an approved one-year leave of absence from the civil service. (F.F.
nos. 7-9.) Butler began working in this position on July 7, 2007, with the working
job title of “Executive Director, Governor’s Cabinet and Advisory Committee on
People with Disabilities” (Executive Director).        (F.F. nos. 10, 12.)     Butler’s
appointment letter provided that “[he] will have return rights to any class and status
previously held, or to any class and status at the same or lower level for which [he
is] qualified.” (F.F. no. 11.)
             After working as the Executive Director for a year, Butler became
concerned that he would not get an extension of his civil service leave of absence
and, thus, not retain his right to return to a pay scale group 8 civil service position.
(F.F. no. 13.) In March 2009, Butler exercised his return right and was placed into
the position of Aging Services Specialist at pay scale group 8, with a salary save to


                                           2
allow him to retain his pay scale group 9 salary, within DPW’s Office of
Long-Term Living’s (OLTL) Bureau of Individual Support. (F.F. nos. 14-15.) By
letter dated May 8, 2009, Butler was returned to the pay scale group 8 civil service
classification of Aging Services Specialist with the OLTL, with the salary save. 2
(F.F. no. 15.)
                 When Butler returned to his Aging Services Specialist position with
DPW, the Executive Director position was not eliminated. (F.F. no. 19.) In fact,
from May 2009 through July 2011, Butler performed the job duties of both an
Aging Services Specialist and the Executive Director. (Id.) In May 2011, Butler
was relocated out of OLTL, and he exclusively assumed the duties of Executive
Director. (F.F. no. 20.) Subsequently, on October 26, 2011, Butler received a
letter thanking him for his service as Executive Director and advising him that he
would be returning to DPW as an Aging Services Specialist in OLTL. (F.F.
no. 22.) Butler returned to this position in November 2011, at which point he
ceased to perform Executive Director job duties. (Id.) On May 23, 2012, Butler
was provided with a position description for Aging Services Specialist, to which he
added the following information:                “Pay Scale 08 per return rights and

       2
          By way of further background, OLTL operates under a “dual deputate,” in that some of
its staff are employees of the Department of Aging (Aging) and some are employees of DPW.
(F.F. no. 16.) DPW and Aging both have employees performing essentially the same function in
OLTL’s Bureau of Direct Services, but each agency uses its own classification for its own
employees who work there. (F.F. no. 17.) Specifically, DPW uses the classification of Human
Services Program Specialist, at pay scale group 7, and Aging uses the classification of Aging
Services Specialist, at pay scale group 8. (F.F. nos. 17, 33.) When DPW needed to find a pay
scale group 8 civil service classification for Butler, it placed him in OLTL as an Aging Services
Specialist, even though this was a classification that, until that point, had been used exclusively
by Aging. (F.F. no. 18.) Moreover, this classification was not the same classification that DPW
used for three of its other employees in OLTL doing similar work. (Id.)



                                                3
documentation from DPW in accordance with Civil Service.” (F.F. no. 24.) Butler
then signed the document and returned it to his supervisor, Aging Services
Supervisor Brian Lester. (Id.)
              At some point in time, three OLTL employees, who were classified as
Human Services Program Specialists at pay scale group 7, requested desk audits,3
because they felt that they were performing the same work as the Aging Services
Specialists, who were pay scale group 8 employees. (F.F. no. 25.) Romaine
Yeager, Human Resource Analyst, completed the desk audits and determined that
the employees were properly classified as Human Services Program Specialists at
pay scale group 7. (F.F. no. 26.) In June or July 2012, Mr. Lester told Butler that
his position was going to be desk audited. (F.F. no. 27.) Ms. Yeager performed
the desk audit of Butler’s position, after which she advised Butler that if he was
reclassified from a pay scale group 8 Aging Services Specialist to a pay scale
group 7 position, it would provide him with “a whole array of opportunities.” (F.F.
nos. 27, 30.) Ms. Yeager also stressed that Butler would be receiving a salary
save. (F.F. no. 30.)
              By letter dated August 14, 2012, Butler was informed that his position
was reclassified downward from an Aging Services Specialist to a Human Services
Program Specialist at pay scale group 7 with a salary save.4 (F.F. no. 31.) On



       3
          It is not clear whether the audits and subsequent appeals were either initiated or
resolved before or after Butler’s return to OLTL in November 2011. (Reproduced Record (R.R.)
at 132a n.2.)
       4
         Butler was granted a salary exception, as his salary was above the pay scale for pay
scale group 7. (F.F. no. 35.) Ms. Yeager explained that Butler was granted a salary save in
accordance with the applicable management directives because “you don’t want to penalize an
(Footnote continued on next page…)

                                             4
August 20, 2012, Butler received an email advising him that his reclassification
was completed, with his description for Human Services Program Specialist
attached. (F.F. no. 38.) Aside from the job title, Butler’s position description as an
Aging Services Specialist was “basically the same” as his position description as a
Human Services Program Specialist. (F.F. no. 39.)                Notably, the reclassification
was not the result of Butler’s qualifications, personal abilities, or job performance.5
(F.F. no. 37.)
                 On August 28, 2012, Butler requested an appeal of his downward
reclassification with the Commission, alleging, inter alia, that the reclassification
was discriminatory. After granting and holding a hearing on the matter pursuant to
Section 951(b) of the Civil Service Act (Act),6 the Commission issued an
adjudication and order sustaining Butler’s appeal. In so doing, the Commission
reasoned that if it only evaluated the singular transaction that occurred in
August 2012, when Butler was reclassified7 as the result of a desk audit, it would

(continued…)

employee for management assigning [him] different work if it turns out that [he is] working at a
lower [classification] level.” (F.F. no. 32.)
       5
         The Commission further found that the change to a lower pay scale group may affect
Butler’s ability to seek advancement to other higher class civil service positions, but it does not
preclude Butler from advancing to higher-classified civil service positions in the future. (F.F.
no. 34.) The Commission also found that Butler’s future salary may be affected for future
promotional activity because of the salary exception. (F.F. no. 36.)
       6
         Act of August 5, 1941, P.L. 752, as amended, added by the Act of August 27, 1963,
P.L. 1257, 71 P.S. § 741.951(b).
       7
        Reclassification is addressed in Section 707.1 of the Act, Act of August 5, 1941, as
amended, added by the Act of June 26, 1989, P.L. 47, 71 P.S. § 741.707a, which provides:
                     When an employe’s job changes or the Executive Board
               changes a classification and a reallocation of the position becomes
(Footnote continued on next page…)

                                                5
be compelled to conclude that no procedural impropriety occurred. (R.R. at 136a.)
Nevertheless, the Commission observed that Butler’s situation was unique. (Id.)
The Commission specifically noted that Butler was recruited to work for DPW
with a promise that he would be afforded the protections offered to him as a senior
management service appointment on an approved leave of absence from his former
position in the protected classified service. (Id.) The Commission explained that it
was tasked with determining whether that promise was kept and, if not, if the
resulting downward reclassification was procedurally improper. (Id. at 136a-37a.)
            The Commission continued by explaining that documents produced at
the hearing suggested that the downward reclassification was technically transacted
in May 2009.     (Id. at 137a.)      Nevertheless, undisputed testimony and other
documents in the record indicated that Butler continued to serve as Executive
Director until October 26, 2011, when he was thanked for his service and returned
to work exclusively as an Aging Services Specialist in OLTL.                        (Id.)   The
Commission concluded, therefore, that October 26, 2011, was the date Butler
actually returned to civil service employment with regular status.                  (Id.)   The
Commission further determined that based on the factual circumstances, DPW
knew or should have known that Butler was probably over-classified at the time
Butler was returned to the classification of Aging Services Specialist.                     (Id.
at 139a.) Moreover, the Commission observed that in testifying about Butler’s

(continued…)

            necessary, the employe shall be reclassified to the new
            classification provided the employe meets the established
            requirements for the new classification. This reclassification, if it
            is to a lower level, shall not be construed as a demotion.



                                             6
salary save, Ms. Yeager all but conceded at the hearing that DPW had prior
knowledge that Butler would inevitably be reclassified downward based on his
assigned workload. (Id.)
             The Commission reasoned that Butler’s right to return to a pay scale
group 8 classification was mandatory under Management Directive 580.30 and that
if an appropriate position in an existing classification could not be identified by
DPW, then it was obligated to establish one. (Id.) The Commission observed that
although no testimony was offered on this point, it seemed self-evident that this is
what DPW intended to accomplish in May 2009, when it “established” the Aging
Services Specialist classification as a unique DPW classification for Butler to
return to when his service as Executive Director ended. (Id.) In this case, the
Commission explained, as soon as DPW realized the position it had established for
Butler might become subject to a downward reclassification, it was obligated to
either: (1) not implement the downward reclassification at all, (2) find another
suitable pay scale group 8 classification for Butler, or (3) establish a new pay scale
group 8 classification for Butler. (Id. at 139a-40a.)
             The Commission concluded that Butler had presented sufficient
evidence to establish that his downward reclassification was procedurally improper
in violation of Management Directive 580.30 and his protected rights as an
employee in the senior management service. (Id. at 140a.) The Commission also
concluded that Butler was harmed by this technical violation, finding Butler
credible that the downward reclassification adversely impacted his potential to
seek other Commonwealth employment and his retirement options. (Id.) Thus, the
Commission concluded that Butler had presented evidence establishing procedural




                                          7
discrimination in violation of Section 905.1 of the Act.8 (Id.) The Commission,
therefore, entered an order sustaining Butler’s appeal, thereby overruling DPW’s
downward reclassification of Butler and directing DPW to reinstate Butler to a pay
scale group 8 classification using one of the three options described in the
adjudication. (Id. at 140a-41a.) The Commission further directed DPW to adjust
Butler’s employment records to reflect that he has been employed continuously in
a pay scale group 8 classification from August 14, 2012, to the present. (Id.
at 141a.) DPW then appealed to this Court.
              On appeal,9 DPW essentially argues that the Commission (1) abused
its discretion in adjudicating Butler’s right of return to the classified service,
(2) erred by capriciously disregarding evidence establishing that Butler returned to
the classified service in 2009,10 (3) erred in concluding that the downward


       8
         Act of August 5, 1941, P.L. 752, as amended, added by the Act of August 27, 1963,
P.L. 1257, 71 P.S. § 741.905a. 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.
       9
        This Court’s standard of review of an order of the Commission is limited to considering
whether substantial evidence supports necessary factual findings, whether an error of law was
committed, or whether a violation of constitutional rights occurred. 2 Pa. C.S. § 704.
       10
           DPW also argues that the Commission erred by capriciously disregarding evidence
establishing that Butler returned to the classified service in conformity with the law. As
demonstrated by our discussion below, notwithstanding its observations as to Butler’s return to
the classified service, the Commission did not conclude that DPW failed to return Butler to the
classified service in conformity with the law. Rather, the Commission concluded that the
reclassification of Butler’s position violated his right of return.



                                                8
reclassification of Butler’s position violated the law, and (4) erred in concluding
that DPW engaged in procedural discrimination.
             We first address DPW’s argument that the Commission abused its
discretion in adjudicating Butler’s right of return to the classified service. DPW
argues that the only issue appealed to the Commission was the reclassification of
Butler’s position.         DPW contends that by using Butler’s appeal of his
reclassification to adjudicate Butler’s right of return to the classified service, which
Butler exercised long before the reclassification, the Commission improperly
circumvented the 20-day time limitation set forth for bringing appeals under
Section 951(b) of the Act.           DPW argues that permitting such action by the
Commission         would    create    uncertainty   in   the   administration   of   the
Commonwealth’s operations and go against the purposes of the Act. DPW further
argues that although Butler could have challenged any improprieties in DPW’s
return of Butler to the classified service as an adverse personnel action in and of
itself, he was still required to appeal within 20 days of the accrual of that right and
failed to do so.
             We disagree that in deciding Butler’s appeal, the Commission
improperly adjudicated Butler’s right of return to the classified service in
contravention of the 20-day limitation set forth in Section 951(b) of the Act.
Section 951(b) provides, in part, that “[a]ny person who is aggrieved by an alleged
violation of section 905.1 of this act may appeal in writing to the commission
within twenty calendar days of the alleged violation.” 71 P.S. § 741.951(b).
Simply stated, as evidenced by the facts of this case, there was no adverse




                                             9
personnel action for Butler to appeal until DPW reclassified Butler’s position.11 It
is undisputed that Butler timely appealed the reclassification, alleging that it was
discriminatory.     The Commission clearly decided that issue, concluding that
Butler’s “downward reclassification was improper in violation of [Management
Directive] 580.30 and his protected rights as an employee in the senior
management service.”          (R.R. at 140a (emphasis added).)              Although the
Commission based the violation on Butler’s right of return, this circumstance does
not compel a conclusion that the Commission circumvented the 20-day limitation
in Section 951(b) of the Act in doing so. An individual’s exercise of his right to
return to the classified service does not necessarily result in immediate termination
of that right, particularly under the facts of this case, such that a subsequent
personnel action cannot be found to be discriminatory for violating that right as a
result of the 20-day time limitation in Section 951(b). The Commission, therefore,
did not abuse its discretion in adjudicating Butler’s right to return to the classified
service.

              We next address DPW’s argument that the Commission erred by
capriciously disregarding evidence establishing that Butler returned to the
classified service in 2009. DPW argues that the Commission ignored DPW’s
official notice to Butler of his return from the senior management service to the
classified service, dated May 8, 2009, and the parties’ stipulations to the fact that
Butler had exercised his right of return to the classified service in 2009. DPW
contends that the Commission provided no rationale for discrediting this evidence,

       11
           Consequently, Butler could not have appealed DPW’s initial return of Butler to the
classified service as a separate adverse personnel action in and of itself.



                                             10
instead asserting that testimony and other evidence established that Butler
remained in the senior management service position until October 2011. DPW
argues that, as a consequence, the Commission’s determination that the
reclassification of Butler’s position violated his right of return is premised on the
erroneous belief that Butler did not actually return to the classified service until
October 2011.
             The Commission did not err by capriciously disregarding evidence:
             [T]his Court may conclude that an adjudicator has
             capriciously disregarded competent evidence when the
             unsuccessful party below has presented “overwhelming
             evidence” upon which the adjudicator could have reached
             a contrary conclusion, and the adjudicator has not
             satisfactorily addressed that evidence by resolving
             conflicts in the evidence or making credibility
             determinations that are essential with regard to the
             evidence.
                   In other words, where there is strong “critical”
             evidence that contradicts evidence supporting a contrary
             determination, the adjudicator must provide an
             explanation as to how it made its determination. The
             ultimate question is whether an adjudicator “has failed to
             give a proper explanation of overwhelming critical
             evidence.”

Grenell v. State Civil Serv. Comm’n (Franklin Cnty.), 923 A.2d 533, 538 (Pa.
Cmwlth. 2007) (citation omitted) (quoting Frog, Switch & Mfg. Co. v. Pa. Human
Relations Comm’n, 885 A.2d 655, 667 (Pa. Cmwlth. 2005)). “Further, the express
consideration and rejection of evidence does not constitute capricious disregard of
evidence.” Balshy v. Pa. State Police, 988 A.2d 813, 836 (Pa. Cmwlth. 2010).
             Here, the Commission found that in March 2009, Butler exercised his
return right and was placed into the position of Aging Services Specialist, at pay


                                         11
scale group 8 with a salary save within OLTL’s Bureau of Individual Support.
(F.F. no. 14.) The Commission based this finding on the parties’ joint stipulation
to this fact. (Id.; R.R. at 22a.) The Commission further found that by letter dated
May 8, 2009, Butler was returned to the pay scale group 8 civil service
classification of Aging Services Specialist with the salary save within OLTL. (F.F.
no. 15.) The Commission based this finding on the May 8, 2009 letter itself and
testimony from the hearing. Citing these findings and the May 8, 2009 letter, the
Commission reasoned that Butler’s return to the Aging Services Specialist position
was technically transacted in May 2009. (R.R. at 137a.) The Commission further
observed, however, that “undisputed testimony and other documents in the record
indicate [Butler] continued to serve as Executive Director until October 26, 2011,
when he was thanked for his service and returned to work exclusively as an Aging
Services Specialist in [OLTL].”      (Id.)   In support of this observation, the
Commission cited its findings relating to Butler’s continued performance of
Executive Director duties and service in that capacity after May 2009, which were
based on the hearing testimony and the October 26, 2011 letter issued by DPW.
(Id.) The Commission concluded, therefore, that October 26, 2011, “accurately
identifies the date [Butler] was actually returned to civil service employment with
regular status.” (Id.)
             Based on the above, it is clear that the Commission did not
capriciously disregard the evidence DPW identifies in its argument. Rather, the
Commission considered that evidence and determined that Butler’s return
technically occurred in May 2009.      The Commission, however, continued by
considering other evidence that demonstrated that Butler continued to work as
Executive Director until October 2011. The Commission concluded that, based on


                                        12
that evidence, Butler actually returned to the classified service in October 2011. In
light of the Commission’s analysis, we conclude that the Commission sufficiently
explained its determination as to Butler’s date of return to the classified service.
Thus, DPW is not entitled to reversal of the Commission’s decision on this basis.12
               Next, DPW argues that the Commission erred in concluding that the
downward reclassification of Butler’s position violated the law. DPW’s argument
is twofold.      First, DPW contends that the Commission made an incorrect
assumption not supported by the record in concluding that the reclassification
violated Butler’s right of return because DPW “knew or should have known [in
October 2011] that [Butler] was probably over-classified” based on the work
performed by employees holding the position of Human Services Program
Specialist. (Petitioner’s Br. at 16-17; R.R. at 140a.) Second, DPW contends that
neither Management Directive 580.30 nor the Act prohibits the reclassification of
positions held by employees who have returned to the classified service following
a leave of absence, and neither specifies any time period during which an agency
must wait following an employee’s return from a leave of absence before auditing
a class of positions. Consequently, and regardless of when Butler is deemed to
have returned to the classified service, the reclassification did not violate the law.
               With regard to DPW’s first contention, DPW argues that
Ms. Yeager’s testimony demonstrates that DPW did not know, nor could it have
known, that Butler was or would be over-classified in the Aging Services

       12
           Although we conclude that the Commission did not err in determining that Butler
returned to the classified service in 2011, we also note that whether Butler returned to service in
2009 or 2011 is irrelevant to our analysis of whether the downward classification violated
Butler’s return rights.



                                                13
Specialist position. To the extent that DPW’s argument constitutes a substantial
evidence challenge, we reject it.13 The Commission found that although DPW
returned Butler to the Aging Services Specialist position at pay scale group 8, it
was undisputed that “other DPW employees doing similar work in the same bureau
office and at the same location[] were classified as Human Services Program
Specialists, pay scale group 7.” (R.R. at 138a-39a.) The Commission based this
determination on the undisputed findings regarding DPW’s and Aging’s
classifications of positions in OLTL and DPW’s use of Aging’s classification for
Butler, notwithstanding its use of a different classification for other employees.
(F.F. nos. 17-18.) These facts support the Commission’s finding that at the time
Butler returned to the Aging Services Specialist position, DPW knew or should
have known that he was probably over-classified, “given the fact that the work
assigned to him was lower level work under [its] own classification criteria as
applied to the other employees of DPW already working there.” (R.R. at 139a.)
Further, Ms. Yeager testified that after OLTL was formed, the work being done at
the office “matured” over time, and “it became evident” that the Human Services

       13
          “Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Shade v. Pa. State Civil Serv. Comm’n (Pa. Dep’t of
Transp.), 749 A.2d 1054, 1056 n.5 (Pa. Cmwlth.), appeal denied, 764 A.2d 52 (Pa. 2000). The
Commission is the sole fact finder in civil service cases, and it is axiomatic that the Commission,
not this Court, possesses the exclusive authority to assess witness credibility, weigh evidence,
and resolve evidentiary conflicts. Bosnjak v. State Civil Serv. Comm’n, 781 A.2d 1280, 1286
(Pa. Cmwlth. 2001); Shade, 749 A.2d at 1056. Thus, this Court will not disturb the
Commission’s determinations regarding credibility or weight of the evidence. Bosnjak, 781
A.2d at 1286. In reviewing the Commission’s decision, this Court must view the evidence and
all reasonable inferences arising therefrom in the light most favorable to Butler as the prevailing
party below. See id.




                                               14
Program Specialists and Aging Services Specialists “were all doing the same
work.” (R.R. at 95a-96a, 109a.) This resulted in the Human Services Program
Specialists’ request for a desk audit, which audit revealed that the Human Services
Program Specialists were properly classified as such. (Id. at 96a.) Ms. Yeager
also   testified   that     with   regard   to    Butler’s   downward       reclassification,
“[m]anagement assigned him work that was comparable to the Human Services
Program Specialist[,] which resulted in a lower pay scale group. So in those
instances based upon the Management Directives that [she is] guided by, there is a
salary save because you don’t want to penalize a[n] employee for management
assigning [him] different work if it turns out that [he is] working at a lower level.”
(R.R. at 100a-01a.) Contrary to DPW’s assertions, this testimony supports the
Commission’s determinations that DPW knew or should have known that Butler
was probably over-classified as an Aging Services Specialist and that his position
would inevitably be reclassified downward.
             With         regard   to   DPW’s       second    contention,     Management
Directive 580.30, titled “Civil Service Leave of Absence and Return Rights,”
provides, in relevant part:
             e. An employee on a civil service leave of absence for
             employment in a position in the Senior Management
             Service:
                   (1) Has a guaranteed right of return to a
                   position not below the last pay scale group
                   and civil service status held in the classified
                   service prior to the civil service leave of
                   absence. Should a comparable position not
                   exist at the time of return to the classified
                   service, the appointing authority must
                   establish a position not below the
                   employee’s pay scale group and civil service
                   status prior to entering the Senior
                   Management Service.
                                             15
Management Directive 580.30(5)(e)(1).14              Notably, DPW is correct in that
Management Directive 580.30 and the Act do not expressly prohibit the
reclassification of positions held by employees who have returned to the classified
service following a leave of absence, and that neither specifies a time period during
which an agency must wait following an employee’s return from a leave of
absence before auditing a class of positions.
             Notwithstanding the above, however, “[w]e note that this court has
held that, as an administrative agency, the Commission is regarded as an expert on
matters within its own jurisdiction.”          Price v. Luzerne/Wyoming Cntys. Area
Agency on Aging, 672 A.2d 409, 413 (Pa. Cmwlth. 1996), appeal denied, 688 A.2d
174 (Pa. 1997). In concluding that the downward reclassification of Butler’s
position violated the law, the Commission reasoned:



      14
          Moreover, Section 807.1 of the Act, Act of August 5, 1941, P.L. 752, as amended,
added by the Act of August 27, 1963, 71 P.S. § 741.808, provides:
                     An employe who has been granted a leave of absence at the
             discretion of an appointing authority shall, upon expiration of the
             leave of absence, have the right of return to the class and civil
             service status from which leave was granted, or to any class and
             civil service status which he previously held, provided such class is
             contained in the current class plan of the agency, or to any class
             and civil service status in the same or lower grade, provided that he
             meets the minimum qualifications given in the classification plan
             of the agency, provided that in all three instances there is a
             vacancy with the same appointing authority. If there is no vacancy
             to which the employe on leave can be returned, he shall retain
             priority of return to the class from which the leave of absence was
             granted for a period of one year following the date of expiration of
             the leave, and during this time shall have precedence for
             employment over employes furloughed from the same class.



                                             16
             The record indicates [Butler] served faithfully and did
             everything asked of him by the appointing authority until
             his service as Executive Director ended on October 26,
             2011. At this point, [Butler] commenced serving full
             time as an Aging Services Specialist, pay scale group 8,
             in OLTL. It is undisputed that other DPW employees
             doing similar work in the same bureau office and at the
             same location[] were classified as Human Services
             Program Specialists, pay scale group 7. Therefore, at the
             time [Butler] was returned to this classification, the
             appointing authority knew or should have known that
             [Butler] was probably over-classified as an Aging
             Service Specialist given the fact that the work assigned to
             him was lower level work under their own classification
             criteria as applied to the other employees of DPW
             already working there.         The appointing authority
             acknowledges that the Human Services Program
             Specialists in OLTL were audited by the appointing
             authority, and it was determined that they were properly
             classified in pay scale group 7 classifications based on
             the work they were doing. Within months after his return
             in 2011, [Butler] was advised that his classification was
             going to be audited also. Indeed, [Ms. Yeager] all but
             conceded that the appointing authority had prior
             knowledge that [Butler] would inevitably be reclassified
             downward based on his assigned workload when she
             justified his salary save by saying it was appropriate
             because it would not be fair ‘to penalize an employee for
             management assigning [him] different work if it turns out
             [he is] working at a lower [classification] level.”
(R.R. at 138a-39a (citations omitted)). The Commission further observed that
Butler’s right to return to a pay scale group 8 classification is mandatory under
Management Directive 580.30 and that DPW’s actions in reclassifying Butler’s
position violated that right. (Id. at 139a-40a.) In light of the above analysis, which
is supported by the evidence of record, and the Commission’s expertise on these



                                         17
matters, we hold that the Commission did not err in concluding that the downward
reclassification of Butler’s position violated the law.15
               We next address DPW’s argument that the Commission erred in
concluding that DPW engaged in procedural discrimination.16 DPW essentially
argues that the claims of discrimination Butler asserted in his appeal are meritless.
DPW further argues that the Commission’s conclusion that the reclassification
resulted in discrimination against Butler is unsupported by the evidence. DPW
contends that the Commission’s conclusion rests on mere inferences regarding
DPW’s knowledge and intent as to the inevitability of Butler’s reclassification, in
the absence of any affirmative evidence to support those inferences. Specifically,



       15
           We note that our holding is limited to the facts presently before us. That is, where the
Commission makes supported findings that the appointing authority knew or should have known
that an employee who has exercised his right of return would inevitably be reclassified
downward subsequent to his return, the resulting reclassification will be held to be improper. As
explained by the Commission, in such instances, the appointing authority is obligated to (1) not
implement the downward reclassification at all, (2) find another suitable pay scale group
classification for the employee, or (3) establish a new pay scale group classification for the
employee. (R.R. at 139a-40a.)
       16
            In support of this argument, DPW contends that by concluding that DPW’s
reclassification of Butler’s position violated Butler’s right of return, the Commission fashioned
its own basis for holding that DPW discriminated against Butler. Relatedly, DPW further argues
in its brief that it did not have prior notice that Butler’s right of return would be at issue in the
appeal of his reclassification. DPW, however, failed to raise these issues in its petition for
review and, therefore, they are waived. See United Transp. Union v. Pa. Pub. Util. Comm’n, 68
A.3d 1026, 1042 (Pa. Cmwlth.) (“Issues not raised in the petition for review will not be
addressed.”), appeal denied, 80 A.3d 779 (Pa. 2013).
        Moreover, DPW contends that the record lacks evidence of discrimination in DPW’s
return of Butler to the Aging Services Specialist position. As explained herein, however, the
Commission did not conclude that DPW discriminated against Butler in implementing his initial
return to the classified service.



                                                18
DPW argues that the Commission based its conclusion on a misinterpretation of
Ms. Yeager’s comment to Butler regarding his salary save.
              As previously stated, Section 951(b) of the Act permits individuals to
appeal personnel actions taken by the Commonwealth to the Commission on the
basis of discrimination. There are two categories of discrimination that may be
appealed     to   the    Commission:       traditional    discrimination     and    technical
discrimination. Moore v. State Civil Serv. Comm’n (Dep’t of Corr.), 922 A.2d 80,
84-85 (Pa. Cmwlth. 2007).               Technical discrimination, which constitutes
discrimination per se, involves claims based upon procedural violations under the
Act and related regulations.17          Id. at 85.       “The burden of prosecuting a
discrimination appeal under the Act rests with the employee.” Price, 672 A.2d at
413. “[W]here a technical violation of the Act constitutes the alleged
discrimination, no showing of intent is required. The reason for such a holding is
that often what has occurred is an administrative error or mistake, and thus intent
to discriminate is frequently non-existent.” Id. (citation omitted).                  “For a
complainant to gain some type of relief, the complainant must present evidence
that he or she ‘was, in fact, harmed because of the technical non-compliance with
the Act or evidence that because of the peculiar nature of the procedural
impropriety [the complainant] could have been harmed but there is no way to
prove that for certain.’” Moore, 922 A.2d at 85 (emphasis in original) (alteration in
original) (quoting Pronko v. Dep’t of Revenue, 539 A.2d 456, 462 (Pa. Cmwlth.

       17
          This Court has held that a properly issued management directive has the force and
effect of law, and that a technical violation of that management directive is equivalent to a
technical violation of the Act, since it implemented sections of the Act. See Nosko v. Somerset
State Hosp., 590 A.2d 844, 847 (Pa. Cmwlth. 1991).



                                              19
1988)). “Moreover, discrimination cannot be inferred. There must be affirmative
factual support to sustain the allegations.” Price, 672 A.2d at 413 (citation
omitted).
             We disagree that the Commission’s conclusion is unsupported by
affirmative evidence of discrimination.       As demonstrated by our analysis of
DPW’s third issue on appeal, Ms. Yeager’s testimony, in addition to the factual
circumstances surrounding Butler’s return and subsequent reclassification,
supports the Commission’s determination that DPW knew or should have known
that Butler was probably over-classified and would be inevitably reclassified
downward.      Consequently, as discussed above, the Commission correctly
concluded that the reclassification violated Butler’s right of return under
Management Directive 580.30. Further, DPW does not dispute the Commission’s
conclusion that Butler was harmed by this technical violation.         Thus, the
Commission was correct in concluding that DPW engaged in procedural
discrimination against Butler when it reclassified his position.
             Accordingly, we affirm the order of the Commission.



                                 P. KEVIN BROBSON, Judge




                                         20
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Department of Public Welfare,         :
                       Petitioner     :
                                      :
           v.                         :   No. 846 C.D. 2013
                                      :
State Civil Service Commission        :
(Butler),                             :
                        Respondent    :


                                    ORDER


           AND NOW, this 21st day of July, 2014, the order of the State Civil
Service Commission is hereby AFFIRMED.




                             P. KEVIN BROBSON, Judge
