The opinion of the court was delivered by: Senior Judge Flaherty
Submitted: February 20, 2009
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Concern Professional Services (Concern) petitions for review of an order of the Pennsylvania Human Relations Commission (Commission) which adopted the opinion of the Hearing Panel, finding that Concern violated Section 5(a) of the Pennsylvania Human Relations Act (Act).*fn1 We vacate and remand.*fn2
Concern is a non-profit child welfare organization licensed and regulated by the Pennsylvania Department of Public Welfare (DPW). Concern deals mainly in foster care and adoption but also provides services for adjudicated youth in a unit called the "CONCERN Treatment Unit for Boys" which was located at a facility in Westfield, Pennsylvania. Concern closed the Westfield facility in August of 2005.
Concern hired Wilson on May 10, 2000, as a supplemental counselor. Supplemental counselors did not work a regular shift schedule but worked as needed and as available. Supervisors at Westfield urged all counselors to attend regularly--scheduled staff meetings and required them to read the daily reports posted by Concern in two different places in the Westfield facility, both of which were accessible to supplemental counselors. The daily reports included information on job vacancies.
Memos from supervisors to staff asked employees who were interested in specific positions that were available to apply in writing for those positions. Concern also announced job vacancies at staff meetings and circulated memos and a newsletter that included job vacancy information. Concern required supplemental counselors who did not attend a staff meeting to read and sign the meetings' minutes, which included job vacancy information.
Wilson knew that the primary purpose of staff meetings was to disseminate information, including announcements of job vacancies, to employees. He was aware of full-time counselor vacancies that became available during his employment. Wilson's semi-annual employee evaluation for the period ending on May 10, 2001 pinpoints Wilson's primary goal for the following six-month period as "increase[d] participation in staff meetings, trainings, and supervision."
Reproduced Record (R.R.) at 345a. His supervisor discussed this evaluation with Wilson, who was aware of this goal.
Wilson's subsequent semi-annual employee evaluation, for the period from May 10, 2001 until November 10, 2001, describes Wilson's "entrepreneurial adventure" that took away "a considerable amount of time for availability to work" for Concern. R.R. 333a, 149-150a. Wilson told his supervisor that he had become too busy to work more hours for Concern due to his new business venture, which included a fitness center and later an aerobic boxing program and a line of fitness clothing. Wilson started these business ventures prior to May 10, 2001 and starting in March of 2001, his hours worked for Concern dropped dramatically. During January-February 2001, Wilson worked an average of 19 hours per week for Concern. Starting in March of 2001, Wilson did not work any hours for as many as twelve weeks in a row for Concern.
Wilson signed both of his evaluations and Concern's policy permitted him to dispute their accuracy at that time, but he did not. Wilson discussed the content of his evaluations at the time with his supervisors. Also, Wilson was aware of Concern's formal grievance procedures but did not file a grievance over either of his evaluations or about any other issues, including any complaint of discrimination or unfair treatment.
On or about February 1, 2002, during Wilson's employment, two full-time counseling positions became available and were filled by white individuals. Wilson never applied either orally or in writing for either of these specific full-time counselor positions. Although he expressed interest from time to time in a full-time position, he never actually applied for the available positions. Concern believed that Wilson's other obligations prevented him from committing to a routine full-time counselor's schedule. On May 3, 2002, Wilson was discharged for being unavailable to work and unavailable for contact, such resulting in his failure to submit verification of medical eligibility as required by the DPW.
On July 23, 2002, Wilson filed a complaint with the Commission against Concern. The Commission approved the case for a public hearing before three Commissioners of a Hearing Panel which conducted hearings on January 24 and 25, and June 27, 2007. After the hearings but before a decision was issued two of the Commissioners left the Commission. The only Commissioner remaining authored the findings of fact, conclusions of law ...