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BURNS INTERNATIONAL SECURITY SERVICES v. COMMONWEALTH PENNSYLVANIA (09/14/88)

decided: September 14, 1988.

BURNS INTERNATIONAL SECURITY SERVICES, INCORPORATED, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION, RESPONDENT. DENISE L. ROSS, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION, RESPONDENT



Appeals from the Order of the Pennsylvania Human Relations Commission in the case of Denise L. Ross v. Burns International Security Services, Incorporated, Docket No. E-20994, dated May 1, 1987.

COUNSEL

Hayes C. Stover, with him, Matthew M. Hoffman and Charles E. Steele, Kirkpatrick & Lockhart, for petitioner, Burns International Security Services, Incorporated.

Gregory Gleason, Hough & Gleason, P.C., for petitioner, Denise L. Ross.

Theresa Homisak, Assistant Chief Counsel, for respondent.

President Judge Crumlish, Jr., and Judges Craig, Doyle, Barry, Palladino, McGinley and Smith. Opinion by Judge Palladino. Judge Smith dissents.

Author: Palladino

[ 119 Pa. Commw. Page 419]

In this consolidated appeal, Burns International Security Services Incorporated (Burns) appeals an order of the Pennsylvania Human Relations Commission (Commission) determining that Burns had violated section 5(a) of the Pennsylvania Human Relations Act (PHRA)*fn1

[ 119 Pa. Commw. Page 420]

    by discriminating against Denise L. Ross (Ross) on the basis of disability/handicap and awarding backpay. Ross appeals that portion of the Commission's order denying her reinstatement and determining that she had not established that Burns had discriminated against her on the basis of gender. For the reasons set forth below, we vacate in part and affirm in part.

Ross was employed by Burns and worked as a watchman at the Beaver Valley Power Station in Shippingport, Pennsylvania. The Beaver Valley Power Station is a fully operable nuclear power station operated by Duquesne Light Company. The job duties of watchman include monitoring persons throughout the power station, conducting surveillance of the site, and guarding the doors of the facility. Watchmen are often required to work overtime, both voluntary and forced.*fn2

In 1980, Ross began to suffer from endometriosis and intermittently experienced symptoms of severe pain, high fever, nausea, and cramping. Although Ross' physician prescribed medication to relieve her condition, Ross continued to experience the symptoms. On June 11, 1981, Ross' physician supplied her with a sick certificate which stated that she could only work eight (8) hours because of the nature of her illness. Complainant's Exhibit 2. Ross received a second sick certificate on July 23, 1981, which stated that she should "not be on her feet more than eight hours at a time unless she feels okay." Complainant's Exhibit 3. During the period between June 6, 1981 and July 23, 1981, Ross twice requested permission to be relieved from working overtime

[ 119 Pa. Commw. Page 421]

    because of the symptoms of endometriosis.*fn3 Ross worked approximately one hundred and six (106) hours of overtime from April 17, 1981 to July 23, 1981, her last day of work. Complainant's Exhibit 9.

On August 6, 1981, Burns sent a letter to Ross informing her that she would be placed on an involuntary medical leave of absence for a period of six (6) months and that her employment would be terminated at the expiration of the leave if she did not receive unrestricted permission to return to work.*fn4 On August 17, 1981, a Burns' representative telephoned Ross to inquire about her medical status. Upon learning that Ross was unwilling to disregard her physician's instructions, Burns' representative advised Ross that she was being placed on involuntary medical ...


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