§ 105.16. Procedure under 71 Pa.C.S. § 3003(7)(ii).
(a) The appellant shall go forward to establish the charge or charges of discrimination. If at the conclusion of this presentation, the appellant has, in the opinion of the Commission, established a prima facie case, the appointing authority shall then be afforded the opportunity to reply to the charges.
(b) Apart from the order of going forward, the remainder of the procedure shall follow that prescribed in § 105.15(c) (relating to procedure under 71 Pa.C.S. § 3003(7)(i). If an appellant fails to attend the hearing, the appeal may be immediately dismissed for failure to prosecute.
Source The provisions of this § 105.16 adopted October 18, 1961; amended October 15, 1964 and April 16, 1970; amended March 29, 1985, effective March 30, 1985, 15 Pa.B. 1151; amended November 15, 1991, effective November 16, 1991, 21 Pa.B. 5334. Immediately preceding text appears at serial pages (142740) and (153411).
Notes of Decisions Burden of Proceeding
An employe who appeals a nonselection for promotion may do so only on the basis of discrimination as provided by section 905.1 of the Civil Service Act (71 P. S. § 741.905.1). The burden of prosecuting a discrimination appeal under the Act rests with the employe and discrimination cannot be inferred. There must be affirmative factual support to sustain the allegations. Price v. Luzerne/Wyoming Counties Area Agency on Aging, 672 A.2d 409 (Pa. Cmwlth. 1996); appeal denied 688 A.2d 174 (Pa. 1997).
A correctional officer trainee met his burden of proving discrimination on the basis of a nonmerit factor by demonstrating the Department of Corrections’ mistake of fact which served as the grounds for his dismissal. Department of Corrections v. Morse, 596 A.2d 897 (Pa. Cmwlth. 1991).
Applicant, who claims his name was removed from the list of persons eligible for position of corrections officer trainee for discriminatory reasons due to family connections, carries the burden of presenting evidence to support the charge. Department of Corrections v. Colyer, 576 A.2d 416 (Pa. Cmwlth. 1990).
A probationary civil servant may appeal a personnel action before the Commission only by alleging discrimination and that employe bears the burden of proof. Department of Public Welfare v. Sanders, 518 A.2d 878 (Pa. Cmwlth. 1986).
A letter setting forth details of alleged discrimination following an appeal request from which lacked sufficient facts may provide information sufficient to entitle a civil service employe to a hearing. Pannacci v. Civil Service Commission, 516 A.2d 1327 (Pa. Cmwlth. 1986); appeal after remand 560 A.2d 288 (Pa. Cmwlth. 1989).
In any action challenging nonselection, the party seeking to prove discrimination has the burden of proof. Liquor Control Board v. Venesky, 516 A.2d 445 (Pa. Cmwlth. 1986).
Employe who presented evidence of county’s financial state and testimony to establish improper motive met burden to go forward in establishing discrimination. Beaver County Children and Youth Services, v. Funk, 492 A.2d 118 (Pa. Cmwlth. 1985).
Three instances of falsification of training records constituted substantial evidence in support of the Commission’s findings of good cause for suspension under this section. Wagner v. Department of Transportation, 463 A.2d 492 (Pa. Cmwlth. 1983).
The furloughed employe bears the burden of going forward and of proving a discriminatory basis for the furlough. Insurance Department v. Tracz, 466 A.2d 269 (Pa. Cmwlth. 1983).
If a petitioner fails to sustain her burden of proving charges of discrimination before the Commission, court review is limited to a determination of whether the Commission capriciously disregarded competent evidence in its resolution of that issue. The burden of proving a discriminatory basis for suspension and removal from employment rests with the petitioner. Laws v. Philadelphia County Board of Assistance, 412 A.2d 1377 (Pa. Cmwlth. 1980).
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