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REBA ROMAIN v. MIDDLETOWN AREA SCHOOL DISTRICT (03/22/71)

decided: March 22, 1971.

REBA ROMAIN
v.
MIDDLETOWN AREA SCHOOL DISTRICT



Appeal from the adjudication of the Pennsylvania Human Relations Commission to the Court of Common Pleas of Dauphin County in case of Reba Romain v. Middletown Area School District. Appeal transferred September 1, 1970, to the Commonwealth Court of Pennsylvania.

COUNSEL

Thomas D. Caldwell, Jr., with him Caldwell, Clouser & Kearns, for appellant.

S. Asher Winikoff, General Counsel, with him Stanton W. Kratzok, Special Assistant Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Manderino.

Author: Crumlish

[ 1 Pa. Commw. Page 420]

This is an appeal from the final order of the Pennsylvania Human Relations Commission issued pursuant to a complaint filed by Mrs. Reba Romain alleging that the appellant, the Middletown Area School District, was guilty of discrimination in employment because of race in violation of Section 5 of the Pennsylvania Human Relations Act. The Commission, through investigation, found probable cause to credit the allegations, and after a proper hearing concluded that an unlawful discriminatory practice had occurred. The order, therefore, requires the School District to employ Mrs. Romain, and to restructure their hiring practices to eliminate discrimination by, among other things, giving "first consideration for employment" to minority group applicants.

"The Court to which [an] appeal is taken [from the Human Relations Commission] shall hear the appeal

[ 1 Pa. Commw. Page 421]

    without a jury on the record certified by the agency. After hearing, the court shall affirm the adjudication unless it shall find . . . that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence." Administrative Agency Law, 71 P.S. § 1710.44; Pennsylvania Human Relations Commission v. Brucker, 93 Dauph. 8 (1970); Human Relations Commission v. Altman, 87 Dauph. 227, 42 D. & C. 2d 317 (1967). Upon examination of the record, we find that certain findings of fact necessary to support the Commission's conclusion that Section 5 was violated are not supported by substantial evidence. The adjudication of the Commission must therefore be reversed.

Section 5 reads as follows: "It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, . . . (a) for any employer because of the race . . . of any individual to refuse to hire or employ . . . or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment, if the individual is the best able and most competent to perform the services required." 43 P.S. § 955.

The act of discrimination in hiring because of race must necessarily entail either the refusal because of race to hire the person found to be best qualified or the refusal because of race to find a person best qualified. Either situation involves the motivation and determination by the hiring official or body as to the applicant's qualifications.

The Commission found as a fact that Mrs. Romain was best qualified. The fact that the Commission's expert has found the complainant more qualified does not require that the School District come to the same conclusion, provided ...


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