Dep’t of Corr. v. Lynn, 2023 Pa. LEXIS 1694, 2023 WL 8723690 (S. Ct. December 19, 2023) (Wecht, J.).
This case involves an arcane and convoluted intersection of two statutes related to public employment. The Civil Service Reform Act (“CSRA”) establishes and governs the classified service, which is a merit-based system of public employment, and prohibits discrimination based upon non-merit factors. Chapter 71 of the Military and Veterans Code, commonly known as the Veterans’ Preference Act (“VPA”), provides veterans with certain advantages when seeking public employment.
Lynn and Novotnak each took and passed an examination for the classified service position of Correctional Welding Trade Instructor (“CWTI”). The pay range assigned to the CWTI position had a higher maximum salary than Lynn and Novotnak’s current pay range. Because Lynn sought to advance within the classified service, OA and DOC deemed the CWTI position a promotion for Lynn and did not apply veterans’ preference. Novotnak, on the other hand, sought to enter the classified service for the first time. As such, notwithstanding the pay increase, OA and DOC deemed the CWTI position an appointment for Novotnak. After applying veterans’ preference, DOC selected Novotnak for the position.
Lynn appealed his non-selection to the Commission. From the Commission’s perspective, treating Lynn differently from Novotnak because of Lynn’s classified service status constituted discrimination based upon a non-merit factor, which section 2704 of the CSRA prohibits. The Commission sustained Lynn’s appeal, ruling that the OA and the DOC should have treated Lynn as a veteran who “qualified for veterans’ preference for appointment to” the CWTI position. The Commission ordered the DOC to return Novotnak to his prior position and to place Lynn in the CWTI position. OA and DOC appealed, and the Commonwealth Court affirmed.
We must decide whether the ascension of an unclassified service employee to a classified service position with higher pay with the same public employer is a promotion under the CSRA and the VPA. We hold that it is not. Rather, such an ascension via the merit examination process is an appointment. Thus, it is not discriminatory under section 2704 of the CSRA to award a veterans’ preference to an unclassified service employee seeking an appointment but not to a classified service employee seeking a promotion. We affirm the order of the Commonwealth Court in part and reverse in part.
We hold that it is not discriminatory under Section 2704 of the CSRA for a public employer to apply veterans’ preference to the initial appointment of a veteran into the classified service from the employer’s unclassified service, but not to apply veterans’ preference to a veteran who is being promoted within the classified service. Because Lynn was seeking a promotion within the meaning of the CSRA and VPA, the Commission and the Commonwealth Court erred by determining that Lynn was entitled to veterans’ preference. Furthermore, the Commission and the Commonwealth Court erred by determining that Lynn was subject to non-merit discrimination under the circumstances in this case, and that, as a remedy, Lynn was entitled to be installed in the CWTI position.
Despite this error, however, Lynn will remain in the CWTI position based upon the procedural posture of this case. The Commission had ordered the DOC to install Lynn into the position based upon the alternate grounds that displacing Lynn from the position after the OA amended the eligible list constituted technical discrimination in violation of Section 2307(a) of the CSRA, and the Commonwealth Court affirmed. The OA separately sought allowance of appeal as to whether the Commonwealth Court erred in affirming the Commission’s order on the grounds of technical discrimination. We did not grant review of this issue. Because it is outside the scope of our limited grant of allowance of appeal, we do not consider the propriety of the Commonwealth Court’s order on technical discrimination grounds. Accordingly, we leave undisturbed the Commonwealth Court’s order affirming the Commission’s October 26, 2022 order reinstating Lynn in the CWTI position and returning Novotnak to his prior position as a remedy for technical discrimination.
We affirm the order of the Commonwealth Court in part and reverse in part.
