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decided: February 9, 1988.


Appeal from the Order of the Pennsylvania Human Relations Commission in the case of Donald Brackbill v. Orweco Frocks, Inc., No. E-28783-D.


Charles E. Friedman, Friedman & Hoch, P.C., for petitioner.

Ellen K. Barry, Assistant Chief Counsel, for respondent.

Dante J. Picciano, Angino & Rovner, P.C., for intervenor, Donald Brackbill.

Judges Doyle and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 113 Pa. Commw. Page 334]

This is an appeal by Orweco Frocks, Inc. (Employer) from an order of the Pennsylvania Human Relations Commission (Commission) that directed Employer to cease and desist from discriminating on the basis of age and to pay to Donald R. Brackbill (Complainant), a former employee, a lump sum of $33,532 plus six percent interest per annum thereon. The Commission's order declined to allow Employer to take a credit for unemployment compensation benefits received by Complainant.

The instant suit began when Complainant filed a complaint with the Commission alleging that he had been dismissed on February 3, 1984 from his position as a shipping room foreman on the basis of his age, then fifty-four years. The Commission found probable cause to credit the complaint and held a hearing. The hearing examiner found that Employer was originally a partnership formed by Joseph Confino, Morris Weiner and Harry Oriole; that it was later incorporated; that during the 1960s the corporation was bought out by the Orioles and then bought out by the Weiners in the 1980s. Mr. Weiner had been running the corporation's Pennsylvania operations, but after the buy-out, this role was filled briefly by Mr. Mevorah, who was replaced in December 1983 by Robert Farber. It was Farber who made the decision to terminate Complainant. Complainant's

[ 113 Pa. Commw. Page 335]

    immediate superior at the time of his termination was Myer Bloom. The hearing officer found that Complainant had established a prima facie case of age discrimination by presenting evidence that he belonged to a protected class; that he was performing duties he was qualified to perform; that he was discharged; and that a continuing need for the services Complainant had been performing existed. At the time the complaint was lodged, Employer was represented by Morton Seidenberg, shipping manager, who, in response to a Commission inquiry, sent a letter to the Commission's investigator advising that individual that Complainant was not terminated because of job performance but for economic reasons (job consolidation) and that Complainant's age was not a factor in Employer's decision to terminate him. During a deposition taken on December 23, 1985 in preparation for this litigation, however, Farber stated that Complainant had been fired for poor job performance. Employer, in rebutting the prima facie case by showing a legitimate reason for its termination action, attempted to reconcile these inconsistent reasons by presenting testimony that Seidenberg had assumed the termination was for economic reasons and had not verified this assumption with Farber. The hearing officer found that Complainant had demonstrated that the asserted reason for his termination -- was poor performance -- was pretextual. In finding that Complainant met his burden to show pretext, the hearing examiner noted that by April 1984, Seidenberg had taken over the shipping room and, as of July or August 1985 (several months before Farber's deposition), Seidenberg had succeeded Farber as Chief Operating Officer; yet Employer asserted Seidenberg was actually unaware whether or not the termination was for economic reasons, that he had assumed that it was, and that he was, in fact, unaware of the real reason, i.e., job-performance.

[ 113 Pa. Commw. Page 336]

The hearing officer also noted that Complainant had never been advised that his performance was inadequate and found that this fact undermined Employer's contention that the firing was based upon poor performance. Other facts found by the hearing officer that caused her to find Employer's reasons for the termination pretextual included statements by other employees to Complainant and his wife that the discharge was for economic reasons and Seidenberg's offer of reemployment to Complainant after he had been fired. Additionally, the hearing officer found that Farber's opinion of Mr. Lower's job performance (Lower replaced Complainant in part) was "curiously lukewarm." Further, the hearing officer found persuasive the fact that several other employees of Employer were terminated within a short period of time for reasons first described as economically-motivated and later as performance-motivated. Having determined that Complainant met his burden to show age discrimination, the hearing officer recommended the relief previously described, and that remedy was adopted by the Commission. Employer's appeal to this Court ensued.

On appeal, Employer presents several arguments that we shall deal with seriatim. We are cognizant, of course, of the fact that our scope of review is limited to determining whether the Commission's necessary findings are supported by substantial evidence, and whether there has been a constitutional violation or ...

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