decided: February 24, 1972.
HUMAN RELATIONS COMMISSION
Appeal from the Order of the Pennsylvania Human Relations Commission in case of Joanne B. Rossi v. The City of Philadelphia and The Fairmount Park Commission, No. E-3412.
Albert J. Persichetti, Deputy City Solicitor, with him Levy Anderson, City Solicitor, for appellant.
Stanton W. Kratzok, Assistant General Counsel, with him S. Asher Winikoff, General Counsel, Salvatore J. Cucinotta, Deputy Attorney General, and J. Shane Creamer, Attorney General, and, of counsel, Roy Yaffe, Robert Englesberg and Gerald E. Magaro, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.
[ 4 Pa. Commw. Page 507]
This is an appeal from a "Final Order" of the Pennsylvania Human Relations Commission (Commission),
[ 4 Pa. Commw. Page 508]
dated August 2, 1971, under which the City of Philadelphia (City) was ordered, inter alia, to grant to the complainant, Joanne B. Rossi (Rossi) ". . . the opportunity to apply to be employed as a Fairmount Park policeman . . . by executing an application for the position of policeman. . . ."
On August 8, 1969, Rossi filed a Complaint with the Commission,*fn1 alleging an unlawful discriminatory practice by the City in violation of the Pennsylvania Human Relations Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 951 et seq.*fn2 In the Complaint Rossi averred: "On or about to wit, August 8, 1969, the respondents [City] refused to allow the application for the position of Fairmount Park policeman and the opportunity of employment in that position to the complainant [Rossi] because of the sex (female) of the complainant."
Despite the importance of the case, counsel for the Commission on behalf of Rossi presented a surprisingly brief case in chief.*fn3 This Court, in common with other appellate courts, applauds brevity, but not at the expense of proving a case. The most that can be gained from that portion of the record pertinent to the Complaint is that Rossi appeared at an office of the City, accompanied by a friend, some time during August of
[ 4 Pa. Commw. Page 5091969]
, where she requested an application blank for a position of "a Fairmount Park Policeman."*fn4 A female clerk at the desk advised Rossi that she could not give her an application form because "women were not permitted to apply." At that time Rossi was offered an application for the position of "Policewoman."*fn5
The remainder of the record is taken up with the City's response (1) that there is no provision under the City's Code or Ordinances for an application by anyone for the position of "Fairmount Park Policeman" (or "Guard") and (2) an attempt to justify a bona fide occupational qualification (BFOQ) under the exemption provisions of the Act, supra, 43 P.S. 955. There was also rebuttal testimony.
[ 4 Pa. Commw. Page 510]
The record is devoid of any proof presented by either Rossi or the Commission that a position in the Fairmount Park Police Force is secured through the filling in of an application, distinct and apart from the application forms and procedures utilized in the securing of a position on the Philadelphia Police Force. Quite to the contrary, there is evidence to the effect that the Fairmount Park Police is but one of a number of separate divisions within the Philadelphia Police Department. It is only after one has been accepted as a member of the Philadelphia Police Force, or placed upon the rolls of the eligibility list, that the question of specific assignment to a division arises.
The Fairmount Park Police is a semi-autonomous division commanded by its own superintendent. Its primary duties are within seven specific geographic areas, although it does answer emergency calls outside park areas. All Fairmount Park policemen are drawn from the Philadelphia Police Force. When women are needed for special police work by the Fairmount Police Force, they are called from the ranks of Philadelphia Policewomen.*fn6 The record is very clear that no person presently on the Fairmount Police Force obtained a position thereon by an application directed to the Fairmount Park Police Force.
Because there exists no specific and separate application form for either the Fairmount Park Police Force or the Fairmount Park Guard, the complainant has not presented to this Court a proper complaint with a supporting record whereupon we may determine in review whether or not she has suffered sex discrimination in the manner proscribed by the statute. Several portions of the record clearly indicate that Rossi had no intention
[ 4 Pa. Commw. Page 511]
of ever applying for the position of Policeman on the Philadelphia Police Force, but rather was applying for a position in the mounted "Guard." Logic and the law dictate that one who attempts to challenge a procedure must frame that challenge in a proper manner so as to afford an appellate court a proper scrutiny. We are faced with a complainant who ignored the Philadelphia Police Force appointment procedures and failed to build a record so as to properly bring before this Court an issue of sex discrimination. This failure leaves us no alternative but to reverse the Order of the Commission. Any other course would be improvident and untimely.
The importance of this matter and the apparent lack of understanding manifested by both the Commission and the City relating to the differences between the filing of a complaint and the filing for a BFOQ exemption necessitates comment by this Court.
There can be no doubt that the legislative intent, found in the Act, supra, is to eliminate sex discrimination in job opportunity. This Court, in a very recent opinion, in the case of Pittsburgh Press Company v. Pittsburgh Commission on Human Relations, as yet not reported, but filed on January 27, 1972, has set forth its understanding of the law in this area. We were not given the opportunity in this case to rule on whether a woman is illegally discriminated against by the refusal of an application for the position of a "Policeman." However, we hasten to add that under the Pennsylvania Human Relations Act, supra, every person must be given the opportunity to apply for any job opportunity not legally exempted. It is only after a proper application is filed that the City can apply its standards to determine whether a person is qualified for the job sought.
Although we have acted to reverse the Order of the Commission for the reasons aforementioned, we do,
[ 4 Pa. Commw. Page 512]
however, note with approval the suggestion of the Commission that Rossi be permitted initially to file for the position of Policeman.
We recognize that under the law every municipality must be given the power to establish those reasonable standards under which it will hire people for employment, such as police work. Those standards must be presumed to be valid until attacked and held to be illegal by a proper adjudicature.
The method to challenge or test the legality of those standards is provided by the Act, supra, 43 P.S. 957, through the filing of a complaint with the Commission. It naturally follows that a refusal, because of sex, to accept an application for a job available can also be challenged by the filing of a complaint.
The Act, supra, at 43 P.S. 957, establishes the powers and duties of the Commission with regard to complaints. Section 9 of the Act, supra, 43 P.S. 959, sets forth a mandatory procedure of investigation (on "probable cause"), "conference, conciliation and persuasion." If the matter is not settled, and, on complaint, goes to hearing, the burden is on the complainant and counsel for the Commission to prove their case.
There is nothing in the Act, supra, which permits the Commission to materially alter the charge of the complaint to some other matter, at the hearing, or in the Commission's adjudication, as was done in this case. Here the Commission in its findings and conclusions attempted to place the burden of proof onto the City as though this was an exemption case. This was contrary to the Commission's own "Guidelines."*fn7
[ 4 Pa. Commw. Page 513]
An exemption (43 P.S. 955), on the other hand, is requested by the employer by an application under the Commission's "Guidelines." In such a case, the burden is on the employer to prove his case. See Weeks v. Southern Bell, 408 F. 2d 228 (5th Cir. 1969).*fn8
The Commission cannot transform a complaint proceeding into an exemption proceeding and thereby shift the burden of proof as was attempted in this case.
In any event, the record in this case does not support the charge, because there was no proof offered that the position alleged to have been denied the complainant (either on the Fairmount Park Police Force or the Fairmount Park Guard) was directly available to anyone by the application requested by complainant and therefore, based upon the above analysis, we
And Now, this 24 day of February, 1972, the Final Order of the Pennsylvania Human Relations Commission dated August 2, 1971, in the above-noted case, is hereby set aside.
Reversed. Order set aside.