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decided: June 19, 1985.


Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of The Baltimore and Ohio Railroad Company v. Emma Smith, No. SA 143 of 1983.


David B. Washington, with him, Clifford C. Cooper, for appellant.

Theresa Homisak, with her, Gary F. Sharlock, Sharlock, Repcheck & Mahler, for appellee.

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

Author: Macphail

[ 90 Pa. Commw. Page 187]

Emma Smith (Appellant) appeals here from an order of the Court of Common Pleas of Allegheny County reversing an order of the Pittsburgh Commission on Human Relations (Commission).

Appellant, a black female, was hired by the Baltimore and Ohio Railroad Company (Employer) as an extra board clerk on January 11, 1979.*fn1 Extra board clerks provide a pool of clerical employees to fill vacancies (due to vacation or illness) in a variety of clerical positions.

[ 90 Pa. Commw. Page 188]

In June of 1980, Appellant, under the terms of the BRAC agreement, bid for a position as a C-335 Steno-Clerk*fn2 in the Engineering Department. The three most senior bidders were Carol Taylor, a black female hired 7-29-74; Deborah Watkins, a white female hired 7-19-78; and Appellant, hired 1-11-79. The three applicants were given a dictation and typing test by Mr. Fred Haddix, the Employer's Assistant Manager of Engineering. Ms. Taylor's test was found to be unsatisfactory. Mr. Haddix stated that both Appellant and Ms. Watkins' test scores were satisfactory to him, and awarded Ms. Watkins the position of Steno-Clerk based on her seniority.

In September of 1980, Appellant was one of ten applicants bidding on position B-15, Secretary-Division Manager's office.*fn3 All ten applicants were interviewed; none were tested. The position was awarded to Paul Marcinowski, a white male, who had some typing skills. At the time he was awarded the B-15 position, Mr. Marcinowski was enrolled in a stenoscript class.

Appellant was furloughed between September, 1980 and August, 1981. Appellant alleges that the Employer failed to call her for temporary work on certain

[ 90 Pa. Commw. Page 189]

    positions where white female and male employees with less seniority were called in.*fn4

On November 21, 1980, Appellant filed a complaint with the Equal Employment Opportunity Commission which referred the complaint to the Commission. Appellant charged that because of her race, she was not promoted to either the C-335 Steno-Clerk position or the B-15 Secretary-Division Manager's Office position and that the Employer discriminated against her in recalling less qualified white employees while she was furloughed. Hearings were held and, in a decision dated February 9, 1983, the Commission found in favor of Appellant. The Commission ordered the Employer to:

1) pay Appellant the difference in pay between the amount earned and what she would have earned had she been awarded the C-335 Steno-Clerk position on June 16, 1980, giving proper consideration to Appellant's seniority as compared to seniority of the individual who displaced the employee awarded the Steno-Clerk job on June 16, 1980;

2) make the appropriate adjustments in employee benefits to which Appellant would have been entitled had she been awarded the C-335 Steno-Clerk position;

3) employ Appellant in the first C-335 Steno-Clerk or comparable position which becomes available and for which Appellant qualifies; and

4) offer equal job posting and training opportunities to Appellant.

[ 90 Pa. Commw. Page 190]

The Employer appealed to the court of common pleas from the Commission's decision,*fn5 which, without taking additional evidence, reversed the Commission's order. The trial court stated that "[a]lthough [Employer] has established minimum qualifications for entry level stenographic jobs at 45 words per minute typing and 80 words per minute shorthand it is left to supervisory personnel to determine the minimal qualifications for positions above the entry level job." The Commission had found that Ms. Watkins, the white female applicant awarded the C-335 Steno-Clerk position, did not possess these minimal qualifications. The trial court reasoned that "[i]mplicit in this finding is the Commission's assumption that entry level qualifications are threshold qualifications for all upper level positions. The Court has carefully reviewed the record including the labor agreement in effect between the parties and must conclude otherwise." The trial court held that (1) minimum qualifications applicable to entry level positions do not apply to upper level positions; (2) the BRAC Agreement requires Employer to promote the most senior applicant demonstrating sufficient fitness and ability; and (3) the BRAC Agreement vests wide discretion in the Employer in determining what is or is not "sufficient." The court then stated that since the Employer's supervisor who did the hiring was satisfied that Ms. Watkins had sufficient ability to perform the job and was senior to Appellant, the selection of Ms. Watkins over Appellant was not the result of racial discrimination.

[ 90 Pa. Commw. Page 191]

This Court's scope of review, where, as here, the trial court did not take additional evidence, is limited to a determination of whether the Appellant's constitutional rights have been violated, whether there was an error of law or whether any necessary findings of fact made by the Commission are not supported by substantial evidence. Reed v. Miller Printing Equipment Division of Western Gear Corp., 75 Pa. Commonwealth Ct. 360, 462 A.2d 292 (1983).

In addressing the issue of whether Appellant made out a prima facie case of discrimination, Pennsylvania has adopted the four prong test set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). General Electric Corp. v. Pennsylvania Human Relations Commission, 469 Pa. 292, 365 A.2d 649 (1976). Under McDonnell-Douglas, establishing a prima facie case of discrimination requires a complainant to prove that 1) he is a member of a protected minority, 2) he applied for a job for which he was qualified, 3) he was rejected, and 4) the employer continued to seek applicants of equal qualifications. Winn v. Trans World Airlines, Inc., 75 Pa. Commonwealth Ct. 366, 462 A.2d 301 (1983), aff'd per curiam, Pa. , 484 A.2d 392 (1984). "Once the prima facie case is established, a rebuttable presumption of employment discrimination arises. The burden of production then shifts to the employer to show a legitimate non-discriminatory reason for the rejection." Department of Transportation v. Pennsylvania Human Relations Commission, 84 Pa. Commonwealth Ct. 98, 103, 480 A.2d 342, 346 (1984). To satisfy this burden, "the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 257

[ 90 Pa. Commw. Page 192]

(1981). Complainant, in order to prevail, is then required to show by a preponderance of the evidence that the reasons given by the employer were pretextual and that she was therefore the victim of intentional discrimination. Burdine. The burden of persuading the trier of fact that the employer intentionally discriminated against the complainant is always the complainant's. Caterpillar Tractor Co. v. Pennsylvania Human Relations Commission, 78 Pa. Commonwealth Ct. 86, 466 A.2d 1129 (1983).

Initially, we believe that the Commission was correct in finding that Appellant had made out a prima facie case of discrimination as to the C-335 Steno-Clerk position.*fn6 As we have noted, the Employer justified its selection of Ms. Watkins by stating that both Ms. Watkins and Appellant had "sufficient" qualifications for the position, and that being the case, selected Ms. Watkins because she had more seniority.*fn7 However, the Commission chose not to believe the

[ 90 Pa. Commw. Page 193]

Employer's assertion that Ms. Watkins' qualifications were sufficient. That was a question of fact for the Commission to resolve, and we must sustain that finding if it was supported by substantial evidence. Central Blood Bank.

The record reveals that the C-335 Steno-Clerk position required the applicant to have some minimum typing and shorthand skills. Employer's personnel manager testified that a person hired as a stenographer is expected to have stenographic skills and that an employee promoted to a stenographic position should have minimum qualifications for the job. The Employer's minimum qualifications for entry level stenographic positions are 45 words per minute typing and 80 words per minute shorthand. (Hearing No. 1, N.T. at 141-143). The Commission was of the opinion that a promotion reasonably should require at least those minimal skills. Mr. Haddix administered a dictation and typing test to the three senior applicants. Ms. Taylor was disqualified by Mr. Haddix because she did not possess the necessary dictation skills. (Hearing No. 2, N.T. at 95, 104). Appellant's test results indicated that she was qualified for the position. (Hearing No. 2, N.T. at 92). Ms. Watkins' test results, however, indicated that she did not even have the minimum qualifications required by the Employer to fill entry level positions.*fn8 Because there are no specific qualifications for upper level (i.e., other than entry level) positions, it was Employer's contention

[ 90 Pa. Commw. Page 194]

    that supervisors are free to devise their own standards. (Hearing No. 1, N.T. at 90-91; Hearing No. 2, N.T. at 133). Mr. Haddix stated that although Ms. Watkins did not possess the minimum qualifications necessary for an entry level stenographic position, he considered Ms. Watkins' skills "sufficient" for the C-335 Steno-Clerk vacancy. (Hearing No. 2, N.T. at 93-94, 96). On that basis, Ms. Watkins was awarded the position. When Appellant objected because Ms. Watkins was not qualified as a stenographer, Employer gave Ms. Watkins another test,*fn9 which was significantly shorter than the original test. Again, Mr. Haddix awarded Ms. Watkins the position.

The Commission rejected the Employer's justification for Ms. Watkins' selection as pretextual. It further found that Ms. Watkins was promoted to the position even though she did not meet the Employer's minimum qualifications for a stenographer. The Commission concluded that since Appellant was qualified but not selected, the basis for her rejection was racial discrimination.*fn10

Given the record before us, which we have very carefully reviewed, we cannot agree with the trial court that there was not substantial evidence to support the Commission's conclusion.*fn11 We therefore

[ 90 Pa. Commw. Page 195]

    reverse the court of common pleas and reinstate the Commission's order.*fn12


The order of the Court of Common Pleas of Allegheny County in the above captioned matter, dated December 30, 1983, is hereby reversed and the order of the Pittsburgh Human Relations Commission is reinstated.



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