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TIMOTHY BAKER v. COMMONWEALTH PENNSYLVANIA (06/29/83)

decided: June 29, 1983.

TIMOTHY BAKER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION, RESPONDENT. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, INTERVENOR



Appeal from the Order of the Pennsylvania Human Relations Commission in the case of Re: PHRC No. E-8036, Timothy Baker v. Commonwealth of Pennsylvania, Department of Public Welfare.

COUNSEL

Thomas B. Schmidt, III, with him Marjorie C. Marinoff and Steven L. Gross, Pepper, Hamilton & Scheetz, for petitioner.

Michael Hardiman, Assistant General Counsel, for respondent.

No appearance for intervenor.

Judges Craig, MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 75 Pa. Commw. Page 298]

Dr. Timothy Baker, a white employee of the Pennsylvania Department of Public Welfare (DPW), appeals from a determination by the Pennsylvania Human Relations Commission (PHRC or commission) which, on a finding of no probable cause, dismissed his complaint of racial discrimination against DPW. Dr. Baker seeks reversal of the PHRC's investigative determination, asks our court to find that probable cause exists to credit the allegations of his complaint, and petitions for a remand to the commission for a hearing on the merits.

The PHRC, in turn, has filed a motion to dismiss,*fn1 claiming that our court lacks jurisdiction to entertain Dr. Baker's petition because he allegedly failed to exhaust his administrative remedies and because the PHRC's no-probable-cause determination is allegedly not an adjudication. We deny the PHRC's motion to dismiss, vacate its determination of no probable cause,

[ 75 Pa. Commw. Page 299]

    and remand this case (1) for a hearing to determine if probable cause exists to credit the allegations of Dr. Baker's complaint and (2) for findings of fact and conclusions of law to support that determination.

On October 21, 1974, DPW promoted Mr. Willie Johnson, a black individual, to Regional Commissioner for Youth Services, Southeastern Region. Dr. Baker responded by filing a complaint with the PHRC on October 24, 1974, alleging that DPW denied him, and others similarly situated, the regional position because of race, in violation of section 5(a) of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. ยง 955(a) (Act).

Dr. Baker amended his complaint on April 6, 1976, alleging that he had requested an interview for the position, that DPW ignored his request, that DPW failed to post the position, and that Mr. Johnson's appointment was part of DPW's continuing effort to create a predominantly black work force within the Youth Services Division of the Southeastern Region.

The PHRC staff investigated Dr. Baker's allegations and, after three and one-half years, dismissed his complaint on a finding of no probable cause. The PHRC informed Dr. Baker of its decision by letter dated April 28, 1978.

Dr. Baker filed a timely Petition for Reconsideration on May 5, 1978; the PHRC approved that petition on February 25, 1980.

The PHRC staff again investigated Dr. Baker's allegations of racial discrimination and, by letter of July 15, 1981, Compliance Supervisor Stuart M. Gross informed DPW that probable cause existed to credit the allegations of the complaint. A five-page summary of the charge and findings of cause accompanied that preliminary recommendation. According to Mr. Gross' letter and his case-closing recommendation, the PHRC scheduled a conciliation meeting in the Philadelphia

[ 75 Pa. Commw. Page 300]

    regional office; apparently, that meeting was not successful.

By letter of January 22, 1982, Dr. Baker received notice from Mr. Gross that he would rescind the staff finding of probable cause and submit a closing recommendation of no probable cause to PHRC headquarters -- a revised conclusion based upon the recommendation of Assistant General Counsel Claudette Spencer and the "previous legal memoes [sic] contained in the casefile."

On April 26, 1982, the PHRC adopted a finding of no probable cause and, by letter of May 6, 1982, notified Dr. Baker of its decision to dismiss his complaint.

Dr. Baker did not file a second petition for reconsideration.

Reconsideration Petition

In its motion to dismiss, the PHRC contends that we do not have jurisdiction to hear this case because, by refusing to file a second reconsideration petition, Dr. Baker has not yet exhausted his administrative remedies. The PHRC relies upon its letter of May 6, 1982, which informed Dr. Baker of his right to request ...


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