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CIVIL SERVICE COMMISSION CITY PITTSBURGH v. COMMONWEALTH PENNSYLVANIA (03/31/89)

decided: March 31, 1989.

CIVIL SERVICE COMMISSION OF CITY OF PITTSBURGH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION, RESPONDENT



Appeal from the order of the Pennsylvania Human Relations Commission in the case of Perry DeMarco v. City of Pittsburgh, No. E-19088.

COUNSEL

Joseph F. Quinn, Assistant City Solicitor, with him, D. R. Pellegrini, City Solicitor, for petitioner.

Theresa Homisak, with her, Elisabeth S. Shuster, Chief Counsel, for respondent.

Judges Craig, Doyle, Barry, Colins, Palladino, McGinley and Smith. Opinion by Judge McGinley. Dissenting Opinion by Judge Palladino.

Author: Mcginley

[ 124 Pa. Commw. Page 519]

The Civil Service Commission of the City of Pittsburgh (City) appeals a decision of the Commonwealth of Pennsylvania, Pennsylvania Human Relations Commission (HRC) awarding monetary relief to Perry DeMarco (Complainant) for lost wages pursuant to the Pennsylvania Human Relations Act (Act).*fn1

In March of 1980 Complainant applied for a transfer from his job as a Public Service Enrollee*fn2 laborer-watchman for the City to a position of Laborer with the City. Because the City considered the new position to be "arduous, non-sedentary," Complainant was required to submit to a pre-employment medical examination. Complainant was advised that he did not meet the City's height and weight standards which had been adopted from the Metropolitan Standard Life Insurance Table. Complainant was advised that he would be allowed to transfer contingent upon his losing 37 pounds in 19 weeks, and he was placed on a weight reduction program which was designed to bring him within the required range. On August 19, 1980, Complainant was advised that he had failed to progress as required on the weight reduction program and he was suspended without pay. During his suspension, Claimant applied for and received unemployment compensation. On or about October 24, 1980, the City notified Complainant that as a result of a preliminary injunction issued by the Court of

[ 124 Pa. Commw. Page 520]

Common Pleas of Allegheny County, the City had discontinued use of its height and weight standards, and that, consequently, Complainant could resume his employment.

Also in that month, on or about October 16, 1980, Complainant filed a complaint with the HRC alleging that the City had unlawfully regarded him as handicapped or disabled due to his obesity. After a public hearing,*fn3 the HRC found that the City had engaged in unlawful employment discrimination when it suspended Complainant without pay because of obesity. The HRC entered an order awarding Complainant back pay for the period during which he had been suspended, without an offset for the unemployment compensation which Complainant received.

The City raises two issues. First, the City contends that the HRC erred when it concluded that Complainant's condition constituted a non-job related handicap or disability within the meaning of the Act.*fn4 Second, assuming arguendo that this Court finds that the suspension constituted unlawful discrimination under the Act, the City contends that the HRC erred by not deducting from the back pay award the amount of money which Complainant received in unemployment compensation.

We may not disturb an order of the HRC unless its adjudication is in violation of constitutional rights, is not in accordance with the law or if necessary findings of fact are not supported by substantial evidence. Beaver Cemetery v. Human Relations Commission, 107 Pa. Commonwealth Ct. 190, 528 A.2d 282 (1987).

[ 124 Pa. Commw. Page 521]

The City sets forth three arguments in support of its contention that Complainant's condition did not constitute a non-job related handicap or disability. Firstly, the City contends that Complainant failed to establish, as part of his prima facie case, that he was a "handicapped or disabled person."*fn5 Noting that 16 Pa. Code § 44.4(i)(A) defines a "handicapped or disabled person" as a person who "has a physical or mental impairment which substantially limits one or more major life activities," the City states that there was no evidence of record which would indicate that Complainant's condition impaired any major life activities.*fn6 To the contrary, the City contends that Complainant's testimony supports the opposite conclusion, i.e. that his condition represented no such impairment.*fn7 Furthermore, the City contends that Complainant's suspension due to obesity does not represent such an impairment, because a single rejection from employment does not constitute a limitation of a major life activity. The City thus concludes that Complainant failed to meet his burden to show that he "has a physical or mental impairment which substantially limits one or more major life activities."

The City has set forth a red herring. The City would have us believe that we are reviewing a decision by the HRC that Complainant has a "physical . . . impairment which substantially limits one or more major life activities," pursuant to 16 Pa. Code § 44.4(i)(A). The City thus misstates the HRC's conclusion. The HRC determined

[ 124 Pa. Commw. Page 522]

    not that Complainant has such an impairment, but rather that Complainant "is regarded as having such an impairment" pursuant to 16 Pa. Code § 44.4(i)(C). The ...


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