         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Vincent Jakes,                       :
                  Petitioner         :
                                     :
            v.                       : No. 1055 C.D. 2016
                                     : Submitted: October 13, 2017
State Civil Service Commission       :
(Torrance State Hospital,            :
Department of Human Services),       :
                    Respondent       :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                            FILED: November 14, 2017


            Before us again is the petition for review filed by Vincent Jakes
(Jakes) from a State Civil Service Commission (Commission) order denying him a
hearing from a personnel action that Jakes characterized as a demotion from his
position at Torrance State Hospital, Department of Human Services (Employer).
The Commission denied Jakes a hearing because it found that he had not been
demoted since his Civil Service Classification had not changed and he had not lost
any wages. However, because Jakes’ personnel records were not part of the
record, we vacated the Commission’s order and remanded the matter for the
Commission to include Jakes’ personnel records establishing that he was not
demoted and to make a new determination. We now affirm.
                As we have previously stated, Jakes filed an appeal with the
Commission alleging that he was demoted from his position in the Sexual
Treatment Program to “Dietary.” (Reproduced Record (R.R.) at 4a.) On the
appeal form, he checked boxes indicating that he was appealing a demotion and
provided a narrative claiming that his demotion was the result of racial
discrimination. The narrative stated:

                Discrimination on the basis of race and other non-merit
                factors. On April 29, 2016, the Appellant was accused of
                sleeping at 4:30 AM on his shift by a resident. A Pre-
                Disciplinary Conference was held on May 4, 2016,
                wherein the Appellant was demoted from his position in
                the Sexual Responsibility Treatment Program to Dietary.
                There was no evidence presented against him other than
                the alleged evidence of a resident patient. The Appellant
                has been with Torrance State Hospital since 2001. He
                was moved to the Sexual Responsibility Treatment
                Program in 2006, and had been at that post for the last ten
                years without incident until this current demotion. The
                Appellant’s long-term tenure in the Sexual Responsibility
                Treatment Program without incident and then to be
                demoted for an alleged sleeping incident witnessed by a
                resident is incongruent.


(R.R. at 4a.)


                The Commission then issued an order that stated, in relevant part:

                The appeal relates to Vincent Jakes’ demotion from
                Sexual Responsibility and Treatment Program Aide,
                regular status, with the Torrance State Hospital,
                Department of Human Services. There is no indication
                that a demotion has occurred as defined by the Civil
                Service Act and Rules. Accordingly, the request for

                                            2
                hearing is denied as there is no personnel action to
                review.


(R.R. at 4a).


                After we vacated that order as described above, on remand, the
Commission entered into the record Jakes’ personnel records that it relied on to
determine that he had not been demoted as defined by the Civil Service Act (Act).1
See Section 3(r) of the Act, 71 P.S. § 741.3(r); 4 Pa Code § 91.3. The Commission
also sent Jakes a “Verification” setting forth the reasons it arrived at the conclusion
that he had not been demoted. Jakes responded that being assigned as a Dietary
Aide rather than an Aide in the Sexual Responsibility Treatment Program for a
period of three weeks after the alleged incident was, in fact, a demotion.


                The Commission, after reviewing the personnel records, again found
that Jakes was not entitled to a hearing on his claim because he was not demoted.
It stated that, although he may have been temporarily assigned for three weeks to
do other duties – which is a matter of managerial discretion and not an appealable
personnel action – his classification (Sexual Responsibility Treatment Program
Aide) and assigned pay range (ST04) did not change. The matter then came back
to us and, though given an opportunity to file supplemental briefs, each party chose
to rely on the briefs already filed.




      1
          Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§ 741.1 - 741.1005.


                                               3
             On appeal, Jakes again contends that the Commission erred in not
granting a hearing because his complaint alleged that race and other non-merit
factors were the true cause of his demotion.


             While Jakes contends that his demotion was the result of racial
discrimination, that begs the question that there still must be a demotion before the
action can be appealed for any reason. Section 3(16)(r) of the Act, 71 P.S. §
741.3(16)(r), states that:

             (r) “Demotion” means the voluntary or involuntary
             movement of an employee to a class assigned to a pay
             range with a lower maximum salary.


See also 4 Pa. Code § 91.3.


             Jakes was not moved to a different classification and did not lose any
pay because of his three-week assignment to a different job, which is a matter of
managerial discretion. Because he was not demoted as that term is defined by the
Civil Service Act, Jakes is not entitled to appeal the Commission’s assignment
determination. Accordingly, the Commission’s order is affirmed.



                                               _____________________________
                                               DAN PELLEGRINI, Senior Judge




                                         4
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Vincent Jakes,                       :
                  Petitioner         :
                                     :
            v.                       : No. 1055 C.D. 2016
                                     :
State Civil Service Commission       :
(Torrance State Hospital,            :
Department of Human Services),       :
                    Respondent       :




                                      ORDER


            AND NOW, this 14th day of November, 2017, the State Civil Service
Commission’s Order of June 8, 2017, in the above-captioned matter is affirmed.



                                           _____________________________
                                           DAN PELLEGRINI, Senior Judge
