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MONTOUR SCHOOL DISTRICT v. COMMONWEALTH PENNSYLVANIA (08/26/87)

decided: August 26, 1987.

MONTOUR SCHOOL DISTRICT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION, RESPONDENT



Appeal from the Order of the Pennsylvania Human Relations Commission, in case of Johnnie Renner v. Montour School District, No. E-28299.

COUNSEL

Peter J. King, for petitioner.

Theresa Homisak, Assistant Counsel, with her, Marianne Sara Malloy, Assistant Chief Counsel, for respondent.

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

Author: Doyle

[ 109 Pa. Commw. Page 3]

This is an appeal by the Montour School District (District) from an order of the Pennsylvania Human Relations Commission (Commission), which adopted the recommendations, opinion and conclusions of a hearing examiner, who determined that Johnnie Renner (Renner) had been discriminated against by the District on the basis of his age in violation of 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).

The hearing examiner found that Renner was employed by the District as a school bus driver and that he was mandatorily retired on March 19, 1984, his seventieth birthday. During his term of employment, which had commenced in January 1974, Renner had never received a traffic citation and had had only one minor accident several years before his 1984 retirement date, which accident caused neither personal injury nor injury to another vehicle. She further determined that he had never been disciplined except for occasional lateness, and that in December 1983, he had obtained a physician's certificate attesting to his physical ability to perform his job duties. Finally, the hearing examiner determined that Renner was forced to retire because of his age.

In resolving the issues, the hearing examiner made the following legal determinations: (1) Renner on the date of his seventieth birthday was within a protected class under the Act; (2) the District had not met its burden to show that Renner's discharge was based on anything other than age; (3) the District had not met its burden to show that its policy of mandatory retirement at age seventy was a bona fide occupational qualification (BFOQ). Accordingly, she found that the Act's prohibition against age discrimination had been violated by the District and recommended that the District cease its

[ 109 Pa. Commw. Page 4]

    discriminatory practices and pay Renner his lost wages, totaling $6,012.25. The Commission adopted this recommendation and the District appealed to this Court.

We begin our review by recognizing that in an appeal from the adjudication of a state agency, our review is limited to determining whether there has been a constitutional violation or an error of law, or whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.

In General Electric Corp. v. Pennsylvania Human Relations Commission, 469 Pa. 292, 365 A.2d 649 (1976), our state Supreme Court enunciated the appropriate allocation of the burdens of proof and the elements to be established in a prima facie case of employment discrimination when it adopted the United States Supreme Court's analysis as set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). The McDonnell-Douglas case involved a failure to hire. General Electric, however, recognized that the McDonnell-Douglas criteria were flexible and should be adapted to fit the particular personnel action in question. General Electric, 469 Pa. at 304-05, n. ...


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