Appeal from the Order of the Court of Common Pleas of Allegheny County in case of City of Pittsburgh, Commission on Human Relations v. Duquesne Light Company, No. SA 356 of 1977.
Thomas D. MacMullan, for appellant.
Robert K. Morris, of Reed, Smith, Shaw & McClay, for appellee.
Judges Wilkinson, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt. President Judge Bowman did not participate in the decision in this case. Judge DiSalle did not participate in the decision in this case.
[ 50 Pa. Commw. Page 260]
The Commission on Human Relations of the City of Pittsburgh (Commission) appeals here from a decision of the Court of Common Pleas of Allegheny County which sustained the appeal of the Duquesne Light Company (Duquesne) from the Commission determination that Duquesne had illegally discriminated against a black employee, George Smith, on account of his race.
Mr. Smith was first employed by Duquesne in April of 1973. After bidding on the position of Radiation Control Technician (RCT) in accordance with
[ 50 Pa. Commw. Page 261]
the applicable provisions of the collective bargaining agreement and after passing an entrance examination, Mr. Smith entered a program calling for over six months of class instruction as part of the training for the job. Although he initially failed both the oral and written tests given at the conclusion of the program of in-class instruction, he was given two additional opportunities to pass these tests and ultimately did so. He then began on-the-job training in September 1974 under the supervision of a Mr. Joseph Kosmal. After approximately two months, Mr. Kosmal informed his supervisor that Mr. Smith was not performing satisfactorily and that it appeared that Mr. Smith would not qualify for the job. At that time the union steward was informed of the situation and the union requested that Mr. Smith be given another chance and that records of his future job performance be kept. Duquesne agreed to the request. In January 1975, another meeting was held between representatives of the union and Duquesne and once again Mr. Kosmal expressed his opinion that Mr. Smith did not qualify for the job of RCT. The union once again requested that Mr. Smith be given another chance with his performance once again documented. This was done. Mr. Smith's performance, however, continued to be unsatisfactory and in February 1975 he was disqualified for the regular appointment to the job in question but remained with Duquesne in another capacity. On January 13, 1975, he filed a complaint with the Commission, which he subsequently amended on March 4, 1975. The complaint as amended charges Duquesne with racial discrimination in employment in violation of Section 8(a) of the Pittsburgh Human Relations Ordinance*fn1 (Ordinance).
[ 50 Pa. Commw. Page 262]
After a hearing held before three Commissioners, the Commission concluded that Mr. Smith had been illegally discriminated against, and its conclusion was based on the following findings:
1. There were no black RCTs at the time Smith sought to be qualified for the position.
2. Smith was the first black person to undergo the RCT training ...