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decided: August 7, 1989.




Robert J. Stefanko, Pittsburgh, for petitioner.

Vincent A. Ciccone, Asst. Chief Counsel, Elisabeth S. Shuster, Chief Counsel, Harrisburg, for respondent.

Craig and Doyle, JJ., and Kalish, Senior Judge. Craig, Judge, concurring.

Author: Doyle

[ 128 Pa. Commw. Page 325]

Before this Court is an appeal by the Pittsburgh Board of Education (Board) from an order of the Human Relations Commission (Commission) which found that Samuel Howard (Howard) had been discriminated against by the Board on the basis of his race in violation of Section 5(a) of the Pennsylvania Human Relations Act (Act).*fn1

[ 128 Pa. Commw. Page 326]

Howard was an employee of the Board from 1969 to 1986 and during that time he held numerous positions, such as substitute teacher, teacher, instructional teacher, senior coordinator and principal. On approximately October 10, 1974, Howard filed a complaint with the Commission alleging discrimination in the terms and conditions of his employment. Specifically, he alleged that the Board denied him equal salary, job classifications, promotional considerations and job duties and responsibilities as were granted to white males similarly situated. For inexplicable reasons not apparent in the record, the Commission did not render its decision in favor of Howard until August 1988.

The Board raises three issues for our review. First, it contends that Howard's complaint should have been dismissed on the grounds of the equitable doctrine of laches. Since the complaint was filed in 1974, and was not heard until 1987,*fn2 the Board asserts that this delay has imposed a financial burden upon it that would not have been as great had the Commission concluded its investigation in a "prompt fashion" in accordance with the dictates of Section 9 of the Act, 43 P.S. 959(b)(1).*fn3

This issue has been settled by our Court in Beaver Cemetery v. Pennsylvania Human Relations Commission, 107 Pa. Commonwealth Ct. 190, 528 A.2d 282 (1987), petition for allowance of appeal denied, 518 Pa. 627, 541 A.2d 1138 (1988). In Beaver Cemetery, the complaint was filed in 1977 and was not heard by the Commission until June 1985, and the Commission was solely responsible for the delay. The Court held that when a complainant has acted with all due diligence in filing his/her complaint, the

[ 128 Pa. Commw. Page 327]

    doctrine of laches will not bar relief or lessen the amount of the backpay award. We wrote:

It would be inequitable under these facts to allow the invocation of an equitable doctrine against a complainant who has acted with all due diligence in filing within the relatively short limitations period. Under these circumstances, the complainant has as much to lose as the employer by reason of the delay . . . .

Id., 107 Pa. Commonwealth Ct. at 194, 528 A.2d at 284.

In the case sub judice, Howard timely filed his complaint and the Commission was solely responsible for the delay. Moreover, the burden from this inordinate delay was as great upon Howard as it was upon the Board. Had the Commission rendered a more expeditious decision, Howard would have had the benefit of a pay increment more than a decade ago. Therefore, for the reasons set forth in Beaver Cemetery, we decline to hold that Howard should be precluded from receiving a favorable determination on the basis of laches.

The Board next contends that the amount of backpay awarded to Howard should be reduced because of the Commission's lack of diligence in processing the complaint. After carefully reviewing this contention, we believe the Board has simply restated its first argument. The purpose of the doctrine of laches is to bar relief "when the complaining party is guilty of want of due diligence in failing to institute his action to another's prejudice." Id. (quoting Leedom v. Thomas, 473 Pa. 193, 200, 373 A.2d 1329, 1332 (1977)). Here, the Board argues that due to the Commission's failure to act promptly, it has been significantly prejudiced by the accumulating amount of the award and interest. To reiterate, this issue is controlled by our decision in Beaver Cemetery. We cannot attribute the fault for the delay to Howard, and we do not believe he should suffer for the Commission's lack of due diligence. Therefore, we must reject the Board's argument.

[ 128 Pa. Commw. Page 328]

The Board also argues that the Commission's finding of racial discrimination is not supported in the record. We do not agree. The respective burdens of proof in a disparate treatment case are as follows: First, the complainant must establish a prima facie case of discrimination. Second, if he/she should do so, the employer must rebut the inference of discrimination created by setting forth nondiscriminatory reasons for its conduct. Finally, in order to prevail, the complainant must show by a preponderance of the evidence offered that the reasons proffered by the employer were pretextual and that he or she was the victim of intentional discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Allegheny Housing Rehabilitation Corp. v. Pennsylvania Human Relations Commission, 516 Pa. 124, 532 A.2d 315 (1987).

As found by the Commission, Howard's allegations of discrimination stem from three separate incidents in which he was denied equal salary and position. On March 8, 1973, Howard was placed in the position of Instructional Leader for the Board's Secondary Opportunity School. Howard contends that upon this assignment, the Board improperly classified this job and, as a result, denied him equal pay because of his race. As the Commission properly observed, to make out a prima facie case of unequal pay, Howard had the burden to establish that his duties and ...

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