11 Pa. Commw. 501 | Pa. Commw. Ct. | 1974
Opinion by
TMs is an appeal from an order of the Pennsylvania Human Relations Commission directing appellants to offer Dolores Barracano Schmidt, complainant, a contract of employment as a full-time assistant professor as of the 1971-1972 academic year; permit complainant to fulfill any contractual obligations she might have at another institution before she returns; pay her full salary beginning with the 1971-1972 academic year, less any salary paid by appellants or others during that period; pay interest on the sum determined to be due beginning 30 days from the date of the order; and to cease and desist from discriminating in hire, tenure, promotions, and any other incidents of employment in any manner whatsoever against any persons.
The Commission based its order on a determination that appellants committed an unlawful discriminatory practice in violation of Section 5(a) of the Pennsylvania Human Relations Act, Act of October 27, 1955, P. L. 744, as amended, 43 P.S. §955(a), in that they failed to hire complainant at the rank of full-time assistant professor for the 1971-1972 academic year, and failed to renew her contract for the 1972-1973 academic year because of her sex.
Appellants base their appeal on two grounds: first, the record does not contain substantial evidence to support the Commission’s decision; and, second, the Commission exceeded its authority. We must sustain appellants’ first ground and reverse the Commission.
Complainant was hired in the English Department at Slippery Rock State College in 1968 as a part-time
It is equally clear that it was the policy of the English Department, in order to upgrade the Department, to require a doctorate degree of new full-time employees. Indeed, the Commission so found in Finding of Fact 24: “In August, 1971, the English Department, as well as other Departments in the College of Arts and Humanities, determined to upgrade its full-time faculty by hiring only persons who held terminal degrees in their field.” (Emphasis supplied.) Nevertheless, complainant testified clearly and affirmatively that she would not say she planned to complete the requirements of the doctorate.
Appellee appears to rest its case on two grounds: first, that Slippery Rock State College did not have a requirement that an otherwise qualified applicant for a full-time faculty position have a doctorate and, second, such a policy in the English Department was a mere screen behind which to hide its sex discrimination against women. The Commission found as a fact to the contrary — in 1972-73, five people were hired for full-time positions in the English Department, four with doctorates, two of whom were women. The fifth person was a man who was hired, according to the explanation
There is no difference of opinion on the law applicable to this case. The Commission’s order must be affirmed if it is in accordance with law and if there is substantial evidence to support it. Goodman Appeal, 425 Pa. 23, 227 A. 2d 816 (1967), Chester Housing Authority v. Human Relations Commission, 9 Pa. Commonwealth Ct. 415, 305 A. 2d 751 (1973). If there is no substantial evidence to support it, the order must be reversed. St. Andrews Development Co., Inc. v. Pennsylvania Human Relations Commission, 10 Pa. Commonwealth Ct. 123, 308 A. 2d 623 (1973); Pennsylvania Human Relations Commission v. Altman, 42 Pa. D. & C. 2d 317 (1967).
We have read and reread this record and can find no substantial evidence that there was sex discrimination in the failure of the appellants to renew complainant’s part-time contract or to give her a full-time contract. We are not unmindful that there is great difficulty in obtaining affirmative, positive evidence of discrimination based on sex or other improper considerations. In most instances, conduct and action must necessarily be relied upon. However, when those individuals responsible for the decisions testify, put their reasons in writing to the complainant, and make themselves available for cross-examination, as was done here, and when the basis given for these decisions is reasonable and proper and communicated to the complainant prior to and at the time the decisions were being made, in the absence of evidence that the explanations are fabricated, they cannot be disregarded. Reasonable minds may differ as to whether the Department of English at Slippery Rock State College should have a poli
It is significant that, although there are 31 Findings of Fact, there is no Finding of Fact that appellants engaged in sex discrimination. There is a Conclusion of Law to this effect, but there is no Finding of Fact on which it can be based.
As to the second reason relied upon by appellants, i.e., that the Board has exceeded its authority, appellants’ reasoning is not clear and appears to be repetitious of its first reason. Certainly the Commission would have authority to enter a proper order in this case if there was substantial evidence to support it. However, whether the order in this case, assuming there was substantial evidence to support it, is overly broad, was not argued and need not be decided.
Accordingly, we enter the following
Order
Now, January 7, 1974, the order of the Pennsylvania Human Relations Commission, dated February 26, 1973, is reversed and the complaint, dated February 29, 1972, and the amended complaint, dated May 2, 1972, are dismissed.
At one point in complainant’s testimony, slie stated that she had not completed her dissertation and did not intend to do so. Later she said it was written but denied that she ever said she intended to submit it.