Burns Intern. Sec. Services, Inc. v. Com., Pennsylvania Human Relations Com'n

• Decision Date: 14 September 1988
• Citation: 119 Pa.Cmwlth. 418,547 A.2d 818
• Parties: BURNS INTERNATIONAL SECURITY SERVICES, INCORPORATED, Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA HUMAN RELATIONS COMMISSION, Respondent. Denise L. ROSS, Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA HUMAN RELATIONS COMMISSION, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 818

547 A.2d 818

119 Pa.Cmwlth. 418

BURNS INTERNATIONAL SECURITY SERVICES, INCORPORATED, Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA HUMAN RELATIONS

COMMISSION, Respondent.

Denise L. ROSS, Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA HUMAN RELATIONS

COMMISSION, Respondent.

Commonwealth Court of Pennsylvania.

Argued May 25, 1988.

Decided Sept. 14, 1988.

Michael L. Foreman, Theresa Homisak, Pittsburgh, for Pennsylvania Human Relations Com'n.

Hayes C. Stover, Charles E. Steele, Kirkpatrick & Lockhart, Pittsburgh, for Burns Intern. Sec. Systems, Inc.

Gregory Gleason, Hugh & Gleason, P.C., Pittsburgh, for Denise L. Ross.

Before CRUMLISH, Jr., President Judge, and CRAIG, DOYLE, BARRY, PALLADINO, McGINLEY and SMITH, JJ.

PALLADINO, Judge,

In this consolidated appeal, Burns International Security Services Incorporated (Burns) appeals an order of the Pennsylvania Human Relations Commission (Commission) determining that Burns had violated section 5(a) of the Pennsylvania Human Relations Act (PHRA) ¹ by discriminating against Denise L. Ross (Ross) on the basis of disability/handicap and awarding backpay. Ross appeals that portion of the Commission's order denying her reinstatement and determining that she had not established that Burns had discriminated against her on the basis of gender. For the reasons set forth below, we vacate in part and affirm in part.

Ross was employed by Burns and worked as a watchman at the Beaver Valley Power Station in Shippingport, Pennsylvania. The Beaver Valley Power Station is a fully operable nuclear power station operated by Duquesne Light Company. The job duties of a watchman include monitoring persons throughout the power station, conducting surveillance of the site, and guarding the doors of the facility. Watchmen are often required to work overtime, both voluntary and forced. ²

In 1980, Ross began to suffer from endometriosis and intermittently experienced symptoms of severe pain, high fever, nausea, and cramping. Although Ross' physician prescribed medication to relieve her condition, Ross continued to experience the symptoms. On June 11, 1981, Ross' physician supplied her with a sick certificate which stated that she could only work eight (8) hours because of the nature of her illness. Complainant's Exhibit 2. Ross received a second sick certificate on July 23, 1981, which stated that she should "not be on her feet more than eight hours at a time unless she feels okay." Complainant's Exhibit 3. During the period between June 6, 1981 and July 23, 1981, Ross twice requested permission to be relieved from working overtime because of the symptoms of endometriosis. ³ Ross worked approximately one hundred and six (106) hours of overtime from April 17, 1981 to July 23, 1981, her last day of work. Complainant's Exhibit 9.

On August 6, 1981, Burns sent a letter to Ross informing her that she would be placed on an involuntary medical leave of absence for a period of six (6) months and that her employment would be terminated at the expiration of the leave if she did not receive unrestricted permission to return to work. ⁴ On August 17, 1981, a Burns' representative telephoned Ross to inquire about her medical status. Upon learning that Ross was unwilling to disregard her physician's instructions, Burns' representative advised Ross that she was being placed on involuntary medical leave. Ross then filed her complaint with the Commission on August 31, 1981, alleging discrimination on the basis of gender and disability/handicap.

On September 10, 1981, Ross received medical confirmation that she was pregnant. Her pregnancy had the effect of putting the symptoms of endometriosis into remission. Ross delivered a child on April 27, 1982. On May 17, 1982, a Burns' representative telephoned Ross to notify her that her medical leave had expired and requested that she return to work. ⁵ Ross responded that "[i]t would have to be up to the Human Relations Commission." Notes of Testimony at 70-71. During this same conversation, Ross did not inform the Burns' representative that she had been pregnant nor that she had given birth to a child. By letter dated May 19, 1982, Burns notified Ross that her employment was terminated. On June 30, 1982, Ross informed Burns that she had unrestricted permission to return to work.

Hearings were then held before a hearing panel. The hearing panel determined that Ross had met her initial burden of establishing a prima facie case of discrimination based upon handicap/disability. The panel further concluded that Burns did not establish that Ross' disability was job-related. After reviewing the findings and conclusions of the panel, by order dated May 1, 1987, the Commission adopted the recommendation of the panel and ordered Burns to cease and desist from engaging in discrimination on the basis of handicap/disability. The Commission also awarded to Ross backpay plus interest for the period of July 22, 1981 to December 1, 1981. However, the Commission declined to order the reinstatement of Ross. The hearing panel also determined that Ross had not proven gender-based discrimination.

On appeal to this court, Burns contends that the Commission erred as a matter of law because PHRA is preempted by federal law. Burns also argues that the backpay award is not supported by substantial evidence and was calculated erroneously. ⁶ Ross argues that the Commission erred in concluding that she had not met her burden of establishing gender-based discrimination. Ross also contends that the Commission erred in failing to order her reinstatement, alleging that her placement on involuntary medical leave and subsequent termination were part of one illegal transaction.

Our scope of review of a Commission order is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether findings of fact are supported by substantial evidence. Williamsburg Community School District v. Pennsylvania Human Relations Commission, 99 Pa.Commonwealth Ct. 206, 512 A.2d 1339 (1986).

A prima facie case of discrimination under PHRA is established by proving that the complainant is a member of a protected class, has suffered adverse employment action, and that others not in the class have been treated differently. Williamsburg. Once a prima facie case has been established, a rebuttable presumption arises that the employer has unlawfully discriminated against the complainant. Id. If the employer offers a non-discriminatory explanation for the employment action, the presumption drops from the case and the entire body of evidence produced by each side is evaluated by the trier of fact according to the preponderance of evidence standard. Allegheny Housing Rehabilitation Corporation v. Pennsylvania Human Relations Commission, 516 Pa. 124, 532 A.2d 315 (1987).

However, before this court can address the Commission's conclusion that Ross established a prima facie case of handicap-based discrimination under PHRA, we must first review the principles of law relevant to the doctrine of federal preemption in order to determine whether state law governs this case.

FEDERAL PREEMPTION

"If Congress evidences an intent to occupy a given field, any state law falling within that particular field is preempted." Silkwood v. Kerr-McGee Corporation, 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984). The intent to occupy a given field may be explicitly stated in the federal statute's language or may be implied from the statute's structure and purpose. Jones v. Rath Packing Company, 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977).

When there is no explicit preemptive language, an intent to preempt can be inferred where (1) the federal scheme of regulation is so pervasive as to create a reasonable inference that Congress left no room for the states to supplement the law in that area or (2) the federal law pertains to an area in which "the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state law on the same subject" or (3) the goal to be obtained by the federal law and "the character of obligations imposed by it may reveal the same purpose."

Carolina Freight Carriers v. Pennsylvania Human Relations Commission, 99 Pa.Commonwealth Ct. 428, 433, 513 A.2d 579, 582 (1986) (citing and quoting Fidelity Federal Savings and Loan Association v. De La Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982)). Even when federal law has not completely displaced state law, state law is nullified if it either conflicts with federal law, an event which occurs when compliance with both state and federal law is impossible, or is an obstacle to the accomplishment and execution of the goals of the federal law. Fidelity Federal.

With the above principles in mind, we now turn to the particular laws involved in this case. Section 5(a) of PHRA provides that it shall be an unlawful discriminatory practice for an employer to discriminate against an individual with respect to terms and conditions of employment on the basis of a non-job related handicap or disability, unless based upon a bona fide occupational qualification, if that individual is the best able and most competent to perform the services required. 43 P.S. § 955(a). Section 4(p) of PHRA defines "non-job related handicap" as "any handicap or disability which does not substantially interfere with the ability to perform essential functions of employment...." 43 P.S. § 954(p). ⁷

Burns contends that these provisions of PHRA and regulations enacted thereunder are preempted by the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2282. ⁸ The United States Supreme Court has addressed the issue of the extent to which the Atomic Energy Act and applicable regulations preempt state law in Pacific Gas and Electric Company v. State Energy Resources Conservation and Development Commission, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (19...