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FRANK MCCLOSKEY v. NU-CAR CARRIERS (08/23/89)

filed: August 23, 1989.

FRANK MCCLOSKEY, APPELLEE,
v.
NU-CAR CARRIERS, INC., APPELLANT



Appeal from Decree of the Court of Common Pleas, Civil Division, of Allegheny County, No. Misc. 10 - Oct. 1980.

COUNSEL

Gerri L. Sperling, Pittsburgh, for appellant.

Timothy P. O'Reilly, Pittsburgh, for appellee.

Wieand, Del Sole and Melinson, JJ. Melinson, J., dissents.

Author: Wieand

[ 387 Pa. Super. Page 467]

The issue in this appeal is whether a laborer whose left eye has been injured in an accident but whose vision therein is correctable to 20/40 by lenses is a handicapped person for purposes of applying the Pennsylvania Human Relations Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 951 et seq.

[ 387 Pa. Super. Page 468]

Frank McCloskey was employed as a yardman by Automobile Transport, Inc. (ATI) for eleven years at ATI's terminal in Pittsburgh. McCloskey's duties required that he inspect and unload new automobiles which arrived by train or tractor-trailer and drive them to designated area automobile dealers. In 1972, McCloskey was injured when a steel splinter became lodged in his left eye, requiring several surgical procedures. These procedures were successful, however, and the vision in McCloskey's left eye was restored to 20/40 with the aid of a contact lens and eyeglasses. McCloskey returned to work after an absence of less than six months and resumed his duties as a yardman.

In April, 1979, Ford Motor Company terminated its relationship with ATI and engaged Nu-Car Carriers, Inc. (Nu-Car) to transport its vehicles to the local dealerships. Although Nu-Car took over the ATI terminal, it was not required to hire any of the former ATI employees. Nevertheless, it agreed to accept applications for employment from former ATI employees, and fourteen former ATI yardmen applied, including McCloskey. When interviewed, McCloskey was asked, inter alia, about his length of service with ATI, his driver's license, and his workmen's compensation history. McCloskey explained that he had received workmen's compensation benefits for his eye injury and also for an earlier knee injury. McCloskey held a valid driver's license and had passed a physical examination which certified that he was not prevented physically from performing the duties of employment as a yardman.

Of the fourteen ATI yardmen who applied for employment by Nu-Car, eight were hired. Four additional persons were hired from ATI's pool of casual employees to replace yardmen who were not hired. McCloskey was not hired. Nu-Car's evidence was that he had been reported to be part of a group of employees who were unproductive. McCloskey also had a record of absenteeism and was reported to have had a poor attitude.

McCloskey filed a complaint with the National Labor Relations Board, alleging that Nu-Car's refusal to hire him

[ 387 Pa. Super. Page 469]

    had been in retaliation for the workmen's compensation claims which he had made during his employment by ATI. He also filed a complaint with the Pennsylvania Human Relations Commission in which he alleged unlawful discrimination in Nu-Car's refusal to hire him. Both claims were denied. McCloskey then filed an ...


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