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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (07/19/84)

decided: July 19, 1984.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION, RESPONDENT



Appeal from the Order of the Pennsylvania Human Relations Commission in case of Richard E. Law v. Commonwealth of Pennsylvania, Department of Transportation, Docket No. E-16935.

COUNSEL

Michael J. McCaney, Jr., Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for petitioner.

G. Thompson Bell, Assistant General Counsel, with him, Elisabeth S. Shuster, General Counsel, for respondent.

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

Author: Macphail

[ 84 Pa. Commw. Page 100]

The Pennsylvania Department of Transportation (DOT) has brought this appeal from an order of the Pennsylvania Human Relations Commission (Commission). The Commission concluded that Richard E. Law (Complainant) had been denied a promotion by DOT to the position of Storekeeper II in the Berks County Maintenance Department (Maintenance Department) on the basis of a non-job related handicap or disability. The Commission ordered that Complainant be offered the next available position of Storekeeper II in the Maintenance Department and that he be awarded back pay and seniority status retroactive to November 2, 1979.

The Commission's fact findings, which are supported by substantial evidence,*fn1 establish that Complainant was originally hired by DOT as a laborer in 1974. In 1976, Complainant's back was injured while working as an Equipment Operator. He subsequently reinjured his back in 1979 and was placed on permanent

[ 84 Pa. Commw. Page 101]

    light duty. Complainant was advised by his doctor in 1977 and again in 1978 that he should lift no more than twenty-five pounds and should not operate heavy equipment.

Beginning in March or April of 1979, Complainant began working four hours per day in the Maintenance Department Storeroom, as an assistant to the Storekeeper. When the position of Storekeeper II became available in October, 1979, Complainant applied for the position, but was rejected. Believing his rejection was due to his back condition, Complainant filed a formal discrimination complaint with the Commission on or about October 30, 1979. A staff investigation established probable cause to support the complaint allegations and, following unsuccessful attempts at conciliation, a public hearing was scheduled for November 8, 1982.

Based on the evidence adduced at hearing, the Commission found that DOT had failed to promote Complainant to the position of Storekeeper II because it believed that he would be unable to perform the duties of the job by reason of his back disability. The Commission further found that Complainant was, indeed, physically capable of performing the duties required of a Storekeeper II. In particular, the Commission found that the position did not require heavy lifting and that if such lifting was required, there were numerous people available to assist the Storekeeper.

DOT has raised a plethora of issues in this appeal. Initially, DOT contends that the Commission's findings with regard to Complainant's disability are not supported by substantial evidence. Without addressing each of DOT's many objections individually, suffice it to say that we have carefully reviewed the record in this case and ...


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