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decided: December 20, 1988.


Appeal from the Order of the Pennsylvania Human Relations Commission, in the case of Dawn Marshall v. Newport Township, No. E-26120D.


Charles A. Shaffer, Mahler & Shaffer, for petitioner.

Francine Ostrovsky, Assistant Chief Counsel, with her, Elisabeth S. Shuster, Chief Counsel, for respondent.

Ruth Slamon Borland, Borland and Borland, for intervenor, Dawn Marshall.

President Judge Crumlish, Jr., Judge McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 122 Pa. Commw. Page 229]

In this employment discrimination case brought under Section 5(a) of the Pennsylvania Human Relations Act (Act), Act of October 22, 1955, P.L. 744, as amended, 43 P.S. ยง 955(a), the Pennsylvania Human Relations Commission (Commission) found that Dawn Marshall (Complainant) had been discriminated against on the basis of her sex by Newport Township (Township). The Commission, following its review of the record, adopted the findings of fact, conclusions of law, and recommendation of the hearing examiner, as well as the stipulation of facts entered into by the parties. The Commission's order directed the Township, inter alia, to cease and desist from rejecting job applicants on the basis of sex and stereotyped presumptions, to pay Complainant a lump sum of $31,219.21, which represented back pay and medical insurance expenses, and to offer Complainant the next available police officer position. The Township has petitioned this Court for review. We affirm.

The following facts were stipulated to by the parties. In the fall of 1982, the Township, a first class township,

[ 122 Pa. Commw. Page 230]

    announced a vacancy for a full-time police officer position. In order to apply for the police officer position, an applicant was required to take the civil service examination and be at least eighteen years of age. At the time Complainant applied for the police officer job, she met both these qualifications. Also, at the time in question, no job description existed for the police officer position.

There were three parts to the civil service examination: (1) a written test, (2) an oral interview, and (3) a physical examination by a medical doctor. The Township did not take part in the administration of the examination. Under Section 638 of The First Class Township Code,*fn1 the Township's commissioners were required to notify the Civil Service Commission of a vacancy and request a certified list of eligibles. The Civil Service Commission would thereafter certify from the eligible list the names of the three persons who received the highest average. The Township could then appoint one of the three candidates from the list.

In February 1983, the Civil Service Commission provided the Township with a certified list of eligible job candidates. According to the list, Complainant received the highest score, Philip Roke (Roke) the second highest score and Complainant's husband, Michael Marshall (Marshall), the third highest score.*fn2 The commissioners did not conduct any interviews of the candidates nor did they have their applications available for review. On March 7, 1983, the commissioners voted to award the police officer position to Roke. The last time the Township had hired a police officer was 1979. At that time, the job was awarded to the top scorer on the civil service examination.

[ 122 Pa. Commw. Page 231]

The hearing examiner made the following additional findings of fact. In 1982 and 1983, Newport Township had five commissioners -- Joseph Hillan, John Zyla, Daniel Dule, William Eckrot and Henry Vance. The only objective information used by the commissioners when they were considering who to hire for the police officer position was a civil service list which contained the names of Complainant, Roke and Marshall. The list indicated Complainant was the top scorer. Complainant was interested in and actively sought the police officer position. After her rejection by the Township, Complainant took tests in an effort to become a police officer with either the City of Wilkes-Barre or the Pennsylvania State Police.*fn3

In order to determine the qualifications of the candidates, the commissioners haphazardly collected non-specific information through innuendoes, idle talk and casual conversation regarding the eligible male candidates. During the March 3, 1983 work session whereby job applicants were discussed, Complainant received far less consideration than the eligible male candidates and positive information regarding Complainant which was known by several commissioners was not shared with all the commissioners. Roke's selection was based in part on the fact that he was married and had two young children. The hearing examiner also found that three of the five commissioners involved in the Roke hiring were involved in the 1979 hiring whereby the top scorer on the civil service examination was selected.

The Township's argument before this Court is that: (1) Complainant neither established a prima facie case of discrimination nor did she meet the ultimate burden of ...

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