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PENNSYLVANIA STATE POLICE v. COMMONWEALTH PENNSYLVANIA (10/31/84)

decided: October 31, 1984.

PENNSYLVANIA STATE POLICE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION AND GOVERNOR WILLIAMS, RESPONDENTS



Appeal from the Order of the Pennsylvania Human Relations Commission in case of Governor Felton Williams v. Pennsylvania State Police, Docket No. E-20510.

COUNSEL

Joseph S. Rengert, Assistant Counsel, for petitioner.

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

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Rogers. Concurring and Dissenting, Opinion by Judge MacPhail.

Author: Rogers

[ 85 Pa. Commw. Page 623]

Governor Felton Williams (complainant) applied for admission as a cadet to the Pennsylvania State Police Academy on February 17, 1981. Candidates for acceptance must pass in sequence: (1) an initial screening; (2) a written examination administered by the Pennsylvania Civil Service Commission; (3) a medical examination by the candidate's personal physician; (4) a strength and agility test; (5) a medical examination by the State Police medical officer; (6) an oral interview; and (7) a background investigation. The complainant successfully completed all phases of the selection process up to and including the strength and agility test but was eliminated at the stage of his medical examination by the State Police medical officer.

Williams filed a complaint with the Pennsylvania Human Relations Commission (Commission) alleging that the Pennsylvania State Police had engaged in an unlawful discriminatory practice contrary to Section 5(a) of the Pennsylvania Human Relations Act (Act), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 955(a) by rejecting his application for admission to the Pennsylvania State Police Academy because of a non-job related handicap or disability, the loss of his right kidney. Finding probable cause for the complaint, the Commission ordered a hearing after efforts to conciliate the complaint were unsuccessful.

After a hearing, the Commission found that the State Police had rejected the complainant because he had only one kidney; that the risk to the complainant posed by the activities of State Police cadets or troopers is not greater than the risk to any other cadet or trooper; and that the loss of one kidney did not limit the complainant's ability to perform the physical activities required of State Police cadets. The Commission

[ 85 Pa. Commw. Page 624]

    concluded that the State Police regarded the complainant as having a physical impairment which substantially limited a major life activity, that is, working; that the State Police had not established that the complainant's handicap or disability was job-related; and that the State Police had not established that the complainant would not have been hired absent the discrimination. It ordered that the State Police process the complainant for placement in the next cadet class and pay him back pay in a lump sum in the amount that he would have earned had he been placed in the May 11, 1981 cadet class less any amount he has earned since May 11, 1981 or will earn until he has either been placed in a cadet class or eliminated from further consideration.

The State Police have appealed, contending: (1) that the Commission erred in concluding that the complainant was a handicapped person; (2) that assuming the Commission's conclusion that the complainant was a handicapped person to be correct, it erred in concluding that the handicap was not job-related; (3) that the Commission's findings that the complainant was rejected because he had only one kidney and that the risk to him posed by the activities of State Police cadets or troopers was not greater than the risk to any other cadet or trooper were not supported by substantial evidence; and (4) that the Commission abused its discretion by awarding back pay to the complainant. None of these arguments is convincing.

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

[ 85 Pa. Commw. Page 625]

Section 5 of the Act, 43 P.S. § 955, provides that:

It shall be an unlawful practice, unless based upon a bona fide occupational qualification . . .:

(a) For any employer because of the . . . non-job related handicap or disability of any individual to refuse to hire or employ . . . or to otherwise discriminate against such individual with respect to . . . hire . . . or privileges of employment, if the individual ...


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