CO. OF ALLEGHENY v. WILCOX ET AL. Nos. 1457 C.D. 1981 and 1464 C.D. 1981.
76 Pa.Commw. 584 (1983)
County of Allegheny, Petitioner v. Evelyn M. Wilcox et al., Respondents. Allegheny County Court of Common Pleas et al., Petitioners v. Commonwealth of Pennsylvania, Pennsylvania Human Relations Commission et al., Respondents.
Commonwealth Court of Pennsylvania.
August 29, 1983.
James H. McLean, County Solicitor, with him David J. Greenberg, Assistant County Solicitor, for petitioner, County of Allegheny.
Thomas J. Dempsey, for petitioners, Court of Common Pleas of Allegheny County and Minor Judiciary Courts of Allegheny County.
Michael L. Foreman, Assistant General Counsel, with him Ellen M. Doyle, Assistant General Counsel, for respondents, Evelyn M. Wilcox et al.
Argued March 1, 1983, before President Judge CRUMLISH, JR. and Judges ROGERS, BLATT, WILLIAMS, JR. and DOYLE.
OPINION BY JUDGE BLATT, August 29, 1983:
In these consolidated appeals, the petitioners, the County of Allegheny (County) and the Allegheny County Court of Common Pleas and its minor judiciary (Court of Common Pleas) challenge an adjudication of the Pennsylvania Human Relations Commission (Commission). The Commission found that the petitioners had violated Section 5(a) of the Pennsylvania Human Relations Act (PHRA)
The dispute here concerned commenced when the female secretaries filed complaints before the Commission contending, inter alia, that they were the victims
The petitioners argue here that no substantial evidence exists which would warrant a finding of sex discrimination with regard to compensation under Section 5(a) of the Act. Our close examination of the record, however, reveals ample testimony and evidence to support the Commission's findings that:
And, in view of these well-supported findings, it would seem obvious that there can be no appreciable variation in skill, responsibility or effort between the jobs which will justify the differential. See Laffey v. Northwest Airlines, Inc., 567 F.2d 429 (D.C. Cir. 1976). The petitioners, however, specifically the Common Pleas Court, however, maintain that the differential is justifiable in that the night clerks work with greater security risks and under a more onerous schedule, including working nights, weekends and holidays.
Additionally, we would note that the record indicates that the County did not maintain a pay differential for its other employees who worked at night as compared to its daytime workers and that this included county employees working for the courts.
Concerning the petitioners' attempt to justify the differential on the basis of the safety of the working conditions, we note the Commission's observation that:
We believe, therefore, that the Commission did not err in concluding that the petitioners violated Section 5(a) of the PHRA with regard to compensation.
PHRC may order affirmative relief for persons other than the named complaint [sic] when (1) the complainant alleges that such other persons have been affected by the alleged discriminatory practice and (2) such other persons entitled to relief may be described with specificity.
Our review of the record here, however, indicates that both conditions of this test have been satisfied.
The petitioners likewise challenge the Commission's failure to give certain persons, who were granted relief under its order notice of the pendency of the actions before it. Any prejudice, however, which was caused by this omission runs to the so-called class members,
At this point the petitioners' arguments diverge.
The County argues next that there was no evidence before the Commission adequate to establish any intent on its part to discriminate with regard to the secretaries' compensation and alleges that it did not participate in the selection, appointment, or control of the night clerks or in determining that the secretaries should be paid less than the night clerks or that they should be predominantly female. The record, however, supports the Commission's findings that "[b]oth district justice secretaries and the night court clerks are paid by the County . . . and their salaries are approved by the County Salary Board, which is composed of three County Commissioners, the County Controller, and the Court's President Judge." And such facts could warrant a conclusion by the Commission that the County was a party to the discrimination here involved.
The Court of Common Pleas argues next that the PHRA does not apply to it because it is not an "employer" covered by the PHRA. Section 5(a) of the PHRA prohibits any "employer" to discriminate, and Section 4(b) of the PHRA, 43 P.S. § 954(b) states in pertinent part that:
The Court of Common Pleas argues that this definition was not intended to include it because there is no specific reference to courts nor even is there a "catchall" category such as "or other instrumentality thereof", which is used in Section 301 of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, 43 P.S. § 1101.301. The Commission, on the other hand, argues that the language of Section 4(b), which is addressed to public employers, is not determinative, and notes that it found the Court of Common Pleas to be under the PHRA because said court "employ[ed] four or more persons within the Commonwealth." The Commission argues, therefore, that, because Section 4(b) specifically excepts certain employers from the PHRA's ambit and the Court of Common Pleas is not so excepted, this indicates a legislative intent that the court be subject to the PHRA, and we agree.
The Court of Common Pleas further argues that, if the PHRA is applied to the courts in situations such as this, it is unconstitutional because it violates the doctrine of separation of powers, by affording the executive and legislative branches control and the potential to intrude upon the judicial branch of the government. In United States v. Nixon, 418 U.S. 683 (1974), however, the United States Supreme Court recognized that a branch of government alleging that it has been intruded upon by another in violation of the separation of powers doctrine must show how its authority
The Court of Common Pleas also contends that it is immune from actions commenced under the PHRA by virtue of sovereign immunity, absolute state immunity, judicial immunity or qualified state immunity. Curiously, as the Commission points out, the brief of
The next assertion of error below which is put forward by the Court of Common Pleas points out that the Office of General Counsel (OGC) for the Commission acted both as counsel for the complainant secretaries and as counsel for the Commission acting in its quasi-judicial capacity. In essence, this represents a due process challenge in that the Commission's action was invalid, and it appears that an OGC staff attorney from one regional office represented the complainants and an OGC staff attorney from another district served as legal advisor to the hearing panel.
We have recognized that such procedures will be subject to close scrutiny. Pennsylvania Human Relations Commission v. Thorp, Reed & Armstrong, 25 Pa.Commw. 295, 361 A.2d 497 (1976). There, however, we upheld this type of procedure by the Commission absent indicia of bias or unfairness. And, in the case at hand, our close review of the record reveals no bias or unfairness toward the interests of the Court of Common Pleas, nor has it in its brief cited any instances where the legal advisor acted in a biased or unfair manner toward it. Compare Thorp, Reed & Armstrong; In Re: Appeal of Redo, 42 Pa.Commw. 468, 401 A.2d 394 (1979); Bruteyn Appeal, 32 Pa.Commw. 541, 380 A.2d 497 (1977)
The Court of Common Pleas argues finally that there can be no liability assessed against it because the doctrine of respondeat superior does not apply under the PHRA. We agree with the Commission, however, that the standard of proof under the PHRA is analogous to that in Title VII cases under the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and that it is clear that in such cases the doctrine of respondeat superior does apply. Miller v. Bank of America, 600 F.2d 211 (9th Cir. 1979); Young v. Southwestern Savings and Loan Association, 509 F.2d 140 (5th Cir. 1975); Anderson v. Methodist Evangelical Hospital, 464 F.2d 723 (6th Cir. 1972); see Flowers v. Crouch-Walker Corp., 552 F.2d 1277 (7th Cir. 1977). The rationale in the above-cited cases is persuasive, and, considering the evil to be remedied
For the foregoing reasons, therefore, we will affirm the Commission's order.
AND NOW, this 29th day of August, 1983, the order of the Pennsylvania Human Relations Commission in the above-captioned matter is hereby affirmed.
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