Freeport Area School District v. Commonwealth

Concurring and Dissenting Opinion by

Judge Rogers:

I concur in the majority’s holdings that the school district’s prematernity leave policy is discriminatory, that its post maternity reentry policy is not discriminatory, that the Commission improperly directed payment to Mrs. Szul of pay for sick leave as well as back salary and, of course, its affirmance of the Commission’s order for the payment of back salary to Mrs. Szul for the time she spent on prematernity leave pursuant to the Board’s discriminatory policy on this subject. I respectfully dissent from the majority’s holding that the Board was without power to grant the affirmative relief of ordering the district to pay Mrs. Harrison and Mrs. Ippolito back pay because they had not filed complaints.1

*413The record shows that a Commission investigator ascertained before the Commission hearing that Mrs. Ippolito and Mrs. Harrison, as well as Mrs. Szul, had been placed on maternity leave in pursuance of the school board’s policy. The investigator asked them if they had objections to being included in the case as objects of relief and their reply was, of course, that they did not. They testified at the hearing. In addition, as we point out later, the school district was fully aware that the cases of Mrs. Ippolito and Mrs. Harrison were involved in the proceedings.

The Commission contends that, where a practice of discrimination against a protected class or activity is alleged and proved, it has the power to take affirmative action to grant the redress of back pay to employes injured by the practice regardless of whether they have filed complaints. It advances in support of its contention the known evils of discrimination and the general direction given the Commission by the Pennsylvania Human Relations Act to investigate and eliminate discrimination. I agree with the Commission’s conclusion. I do not agree that its order must depend on the amorphous support it advances. I find authority for the Commission’s action in Section 9 of the Human Relations Act, as amended, 43 P.S. §959 (Supp. 1974-1975), pertinent provisions of which are as follows:

“Any individual claiming to be aggrieved by an alleged unlawful discriminatory practice may make, sign and file with the Commission a verified complaint in writing, which shall state the name and address of the person, employer, labor organization or employment agency alleged to have committed the unlawful discriminatory practice complained of, and *414which shall set forth the particulars thereof and contain such other information as may be required by the Commission. The Commission upon its own initiative or the Attorney General may, in like manner, make, sign and file such complaint. . . .”
“After the filing of any complaint, or whenever there is reason to believe that an unlawful discriminatory practice has been committed, the Commission shall make a prompt investigation in connection therewith.”
“If, upon all the evidence at the hearing, the Commission shall find that a respondent has engaged in or is engaging in any unlawful discriminatory practice as defined in this act, the Commission shall state its findings of fact, and shall issue and cause to be served on such respondent an order requiring such respondent to cease and desist from such unlawful discriminatory practice and to take such affirmative action including but not limited to hiring, reinstatement or upgrading of employes, with or without back pay. . . .”
“. . . Any complaint filed pursuant to this section must be so filed within ninety days after the alleged act of discrimination. . . .” (Emphasis supplied.)

The provisions, paraphrased, require that proceedings leading to orders of the Commission be commenced by complaint which may be filed by an individual, or the Attorney General or by the Commission itself. If, after an investigation and hearing, a practice of unlawful discrimination is found to have been engaged in, the Commission is empowered to require the employer to take affirmative action, including reinstatement of employes with back pay. While the Section requires that a complaint be filed, it does not restrict the Commission in ordering reinstatement with pay only to persons who have filed complaints. To construe the Act to provide that only formal complainants may be given such relief would, *415in the case of actions commenced by the Commonwealth or the Attorney General, deny the Commission’s power to afford affirmative action in the form of redress for affected employes — a result which the Legislature neither expressed nor, in my judgment, intended. That a complaint happens to have been brought by an individual, as in this case, should make no difference. The Section provides that if upon the hearing of any complaint, the Commission finds a practice of discrimination, it may order the employer to take affirmative action with respect to employes who have been victims of the unlawful practice.

What then of the requirement that the complaint must be filed within ninety days after the alleged act of discrimination? It means, we believe, that an act of discrimination, not alleged to be the result of a practice, must be the subject of a complaint filed within that period and that an act of discrimination in pursuance of a practice must likewise have occurred not more than ninety days before the filing of complaint. It speaks to the time for commencing an action, not to the content of the Commission’s order; it is a form of absolution for employers who have amended their practices to conform to law, not a limitation on the power of the Commission to redress wrongs to employes committed by an employer engaging in a discriminatory practice as late as ninety days before the filing of complaint. Section 9, in my opinion, does not mean that the Commission is without power to order affirmative action with respect to employes who have been subjected to discrimination by application of an unlawful practice, merely because they have not filed complaints. Nor, although not pertinent to the cases of Mrs. Harrison and Mrs. Ippolito who were placed on leave after the filing of the Szul complaint,2 does it mean that the Commission may not grant *416relief by ordering affirmative action with respect to employes who have been victimized by a discriminatory practice at a time longer than ninety days previous to the filing of a complaint alleging an act of discrimination to another within the period.

I would hold therefore that the Commission may grant affirmative relief to employes identified as affected by a proved unlawful discriminatory practice who have not filed complaints, in a proceeding filed by another employe within ninety days from the act of discrimination committed upon the complainant in pursuance of the practice, whether the acts of discrimination toward non-complainants occurred more than ninety days before the filing of the complaint or, as in this case, after the filing of the complaint and pending the cause.

The school district objects that it had no notice of the inclusion in the case of employes other than Mrs. Szul until their testimony at the hearing and that it was thus prejudiced in the presentation of its defense. Clearly, due process requires that employers have reasonable notice of the nature and extent of the charges against them,3 including, in this kind of case, the identities of persons, not complainants, who may be included as objects of relief in the Commission’s order. However, I learn from the record that the school district here received ample notice that others than Mrs. Szul were involved by (a) her complaint so alleging, which averment it denied, and (b) the fact that the respondent was requested to and did supply to Commission investigators prior to hearing the names and other facts concerning the cases of Mrs. Harrison and Mrs. Ippolito.

I would set aside the Commission’s order directing the payment of sick pay to Linda Szul and Karen Harrison, *417and of back pay and other sums to be ascertained to Darlaine Thompson; and I would affirm the Commission’s order as so modified.

. The Commission ordered the district to pay Mrs. Thompson back pay only for the post maternity period. Since I believe *413the district’s policy in this regard was not discriminatory, this portion of the Commission’s order was, in my view, properly set aside by the majority and, for this reason alone, she is not mentioned in this dissenting opinion.

. Mrs. Szul’s complaint was filed December 23, 1972; Mrs. Harrison was placed on maternity leave on February 14, 1973, *416her baby was due May 29, 1973; Mrs. Ippolito was placed on leave February 23, 1973, her baby was due June 9, 1973.

. Straw v. Pennsylvania Human Relations Commission, 10 Pa. Commonwealth Ct. 99, 308 A.2d 619 (1973).