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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (03/11/83)

decided: March 11, 1983.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE POLICE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION AND PHYLLIS M. SWEETING, RESPONDENTS



Appeal from the Order of the Pennsylvania Human Relations Commission in the case of Phyllis M. Sweeting v. Commonwealth of Pennsylvania, Pennsylvania State Police, Bureau of Training & Education and Bureau of Personnel, No. E-16970.

COUNSEL

Joseph S. Rengert, with him John L. Heaton, Chief Counsel, and Francis X. O'Brien, Jr., for petitioner.

G. Thompson Bell, Assistant General Counsel, with him Robert S. Mirin, General Counsel, for respondent, Pennsylvania Human Relations Commission.

President Judge Crumlish, Jr. and Judges Rogers, Blatt, Williams, Jr. and MacPhail. Opinion by Judge MacPhail.

Author: Macphail

[ 72 Pa. Commw. Page 522]

After being rejected as an applicant for admission to the Pennsylvania State Police Academy as a cadet on September 5, 1979, Phyllis M. Sweeting (Complainant), filed a complaint with the Human Relations Commission (Commission) alleging that she had been discriminated against by the Pennsylvania State Police (Employer) as a handicapped or disabled person in violation of Section 5(a) of the Pennsylvania Human Relations Act (Act).*fn1 Finding probable cause, the Commission ordered a hearing after efforts through conference, conciliation and persuasion were unsuccessful.

After a hearing before a panel, the Commission found that Employer had rejected Complainant because it regarded her as having an impairment which would interfere with her ability to breathe due to a medical condition diagnosed as allergic rhinitis for which she had been receiving treatment since 1973. In addition, the Commission found that Complainant would be able to perform the essential duties of a cadet despite her allergy. The Commission concluded that Complainant was a handicapped or disabled person within the meaning of the Act and that Employer had discriminated against her because of her non-job related handicap or disability. The Commission's order directed appropriate relief, the precise nature of which is a matter not at issue in this appeal.

[ 72 Pa. Commw. Page 523]

Employer contends to this Court that: (1) it was denied due process of law at the Commission hearing; (2) the Commission erred when it concluded that Complainant was a handicapped or disabled person under its regulations; (3) the "regarded as" component of the Commission's regulations found at 16 Pa. Code § 44.4*fn2 is an improper extension of the Act and (4) assuming for purposes of argument that Complainant is handicapped or disabled, her disability is job related.

[ 72 Pa. Commw. Page 524]

Our scope of review in these matters is to determine whether the Commission's adjudication is in accordance with the law, whether its findings of fact in support of its conclusions are based upon substantial evidence and whether Employer's constitutional rights were violated. Slippery Rock State College v. Pennsylvania Human Relations Commission, 11 Pa. Commonwealth Ct. 501, 314 A.2d 344 (1974).

In the recent past, this Court has decided two cases*fn3 involving discrimination by reason of handicap or disability, both of which are on appeal to our Supreme Court, and both of which arose prior to the effective date of the Commission's regulations found at 16 Pa. Code §§ 44.1-44.21. This is our first case, then, wherein the Commission's regulations are clearly applicable and wherein a handicap or disability has been determined to exist by reason of the language contained in those regulations.

Factual Background

It appears from the record that Complainant was referred by her family physician to Dr. Winter, a physician specializing in allergies, in 1973. Complainant at that time was in her early teens. Dr. Winter diagnosed her condition as allergic rhinitis due to sensitivity to ragweed pollen, house dust and molds. At that time, she was placed on a regimen of hyposensitization injections and symptomatic medication consisting of the drug drixoral, an antihistamine. She

[ 72 Pa. Commw. Page 525]

    continued with that medication up to the time of her physical examination by Employer with the exception of a few years while she was in college when she did not receive the injections. At the time of the physical examination she was receiving the injections on a weekly basis. At the time of the hearing before the Commission on February 2, 1981 she was receiving two injections every two weeks. When Complainant filled out a medical history form as part of Employer's physical examination requirements she indicated that she had or had had asthma, hay fever and an allergy and that she had or had had nose and sinus trouble.

Employer's examining physician, Dr. Dutlinger, filed a notice of medical rejection of Complainant with Employer's Bureau of Personnel which stated that because of Complainant's allergic condition, which the physician found to be permanent and not correctable, Complainant did not conform to designated standards for acceptance. Dr. Dutlinger also noted on the rejection form:

History of severe allergic condition requiring weekly injection treatments. Condition would probably be aggravated by exposure to ...


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