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decided: March 4, 1986.


Appeal from the Order of the Pennsylvania Human Relations Commission in the case of Wallace M. Swinehart v. The Milton S. Hershey Medical Center, Pennsylvania State University, Docket Nos. E-21734-D and E-21119-D.


R. Mark Faulkner, McQuaide, Blasko, Schwartz, Fleming & Faulkner, Inc., for petitioner.

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

Jeffrey Ivan Pasek, Of Counsel: Cohen, Shapiro, Polisher, Shiekman & Cohen, for Amicus Curiae, The Pennsylvania Chamber of Commerce.

President Judge Crumlish, Jr. and Judges Rogers, Craig, MacPhail, Doyle, Colins and Palladino. Opinion by Judge Craig. Dissenting Opinion by Judge Colins.

Author: Craig

[ 95 Pa. Commw. Page 389]

Where one of the supervisors of a force of patrol officers, who maintain security around the clock seven days a week at a 35-building medical center, is a sergeant who refuses to work on any Saturday because of religious belief, is it a reasonable accommodation, without imposing undue hardship upon the medical center's interests, to require that employer grant the sergeant leave as to his 26 scheduled Saturdays of work each year, while meeting the institution's security needs by

[ 95 Pa. Commw. Page 390]

(a) attempting to replace him with supervisory or non-supervisory officers working his Saturday shift on a volunteer basis for premium pay which otherwise would not be due, or

(b) compelling such other employees to replace him, with premium pay, if insufficient numbers of them volunteer to do so, or

(c) filling his supervisory position on each of those Saturdays with non-employee guards hired from an outside security firm?

The employer, the Milton S. Hershey Medical Center of Pennsylvania State University, has brought this appeal from an order of the Pennsylvania Human Relations Commission which required that the Center (1) reinstate the discharged complainant, Wallace N. Swinehart, to his position as Security Sergeant, (2) never schedule him for work between Friday sunset and Saturday sunset, and (3) repay him the net amount of backpay lost, with interest.

Our review is limited to a determination of whether the commission's adjudication is in accordance with the law and whether the findings of fact supporting its conclusions are based on substantial evidence. Chester Housing Authority v. Human Relations Commission, 9 Pa. Commonwealth Ct. 415, 305 A.2d 751 (1973).

The commission's findings of fact, all supported by substantial evidence in a hearing record, embody the factual background of this case, as follows:

Sergeant Swinehart has a sincerely held religious belief, as a member of the Worldwide Church of God, against working at his job on his Sabbath, observed from Friday sunset until Saturday sunset. Formerly a patrol officer, he had attained the supervisory rank of security sergeant with the Medical Center, which operates a hospital, medical school, research facilities and outpatient treatment clinics occupying 35

[ 95 Pa. Commw. Page 391]

    buildings on 388 acres of land. The Center's security department provides security coverage for the Center around the clock, seven days a week.

Security officers perform routine patrol duties, subdue unruly patients and visitors, respond to emergencies and also transport blood and drugs between the center and other facilities; they participate in drills for various emergency situations, such as fires.

In the fall of 1980, the Center decided to increase weekend security coverage on the daylight shift -- Sergeant Swinehart's shift -- to a minimum of three officers at all times because of increased activity at the Center. At that time four people, including the sergeant, were assigned to the Center's daylight shift, with two or three working on any given day.

When Sergeant Swinehart declined to work on Saturday because of his religion, the Center attempted to accommodate him by seeking volunteers from the security department to cover his assigned Saturdays and, alternatively, by arranging a transfer for him into a position requiring no Saturday work; neither accommodation could be implemented.

Declining to incur additional expense in order to accommodate the sergeant, the Center contacted one of three local security firms to inquire about hiring a guard as a part-time substitute, and learned that the firm could assign two guards consistently, at $5.75 hourly; the sergeant's pay was $58 per day.

After the Center terminated the sergeant following his refusal to work Saturdays, he filed with the commission a complaint against the Center for 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), which declares that it is an unlawful discriminatory practice

(a) For any employer because of the . . . religious creed . . . of any ...

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