H.R. Garten v. PHRC ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Harold Richard Garten, :
Petitioner :
:
v. : No. 621 C.D. 2019
: Submitted: February 14, 2020
Pennsylvania Human Relations :
Commission, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: December 10, 2020
Harold Richard Garten, sole owner of Above All Chimney & Masonry
(Employer), petitions for review from an order of the Pennsylvania Human Relations
Commission (PHRC) adopting the hearing examiner’s findings and conclusions that
enforcement of his dress code to refuse David Riccardi’s (Complainant) requested
accommodation to wear sweatpants at work constituted disability discrimination
under Section 5(a) of the Pennsylvania Human Relations Act (Act),1 43 P.S. §955(a).
The PHRC awarded backpay, plus interest, for the six months Complainant collected
unemployment compensation (UC) benefits. Employer asserts Complainant was not
qualified to perform masonry work if he could not refrain from wearing sweatpants. He
also argues neutral enforcement of his dress code did not evince discrimination.
Because the PHRC did not assess the reasonableness of the accommodation, or make
related findings, we vacate and remand so it may do so on the existing record.
1
Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§951-963.
I. Background
Complainant was born with exstrophy of the bladder requiring
rerouting of his urethra through his anus and the loss of a kidney and part of his
colon. Surgeries in his late teens resulted in severe scarring and a hole in his pubic
area that remains open. Polyps develop around the hole which are surgically
removed. When chafed by tight clothing, and zippers in particular, the area becomes
irritated and may bleed. Complainant generally wears sweatpants to prevent
irritation.
Complainant held different unskilled jobs (landscaper, commercial
truck driver, and factory worker) before he began working for Employer in March
2013. He operated his own landscaping business between 1998 and 2007.
Employer, sole proprietor of his small business, is a certified chimney
sweep and manages four employees generally. He hires additional employees during
the mowing season. Reproduced Record (R.R.) at 118a-19a. Employer’s business
is comprised of two parts, landscaping work and chimney/masonry work. The
masonry part involves some customer interaction and is performed at times in their
homes, whereas the landscaping part is performed only outdoors and is seasonal.
For both parts of the business, Employer has a dress code which requires all workers
to wear a company shirt with a logo. R.R. at 48a. Relevant here, for the masonry
work, Employer’s dress code also requires workers to wear either jeans or workpants
to project a “professional” image of the company. Hr’g Examiner Recommendation
(Exam’r R.), 3/6/19, Finding of Fact (F.F.) No. 44. For landscaping, employees are
permitted to wear sweatpants or shorts; as a result, Complainant was able to wear
sweatpants for his first several months of working for Employer without incident.
See R.R. at 56a.
2
Employer hired Complainant as a landscaper in March 2013. Primarily,
Complainant mowed grass. At the end of the season, Employer could have laid off
Complainant. However, Employer retained Complainant to perform masonry work,
mixing concrete and bringing materials to the work site in customers’ homes.
Employer increased his pay to $13.00 per hour in October 2013.
Initially, Complainant continued to wear sweatpants while working on
the masonry side. After Employer told Complainant about the dress code, however,
Complainant wore workpants for a couple of days. He stopped because the zipper
irritated his abdominal scarring and pubic area. In November 2013, Complainant
informed Employer he needed to wear pants without a zipper based on his medical
condition. Employer advised Complainant he was not permitted to wear sweatpants
because the job involved customer interaction. Despite the dress code, Complainant
came to work in sweatpants. Employer sent Complainant home, telling him to return
when he was wearing suitable pants. Complainant did not return.
Following his last day of work in November 2013, Complainant filed
for and received UC benefits for six months. Shortly thereafter, in May 2014,
Complainant filed a complaint for disability discrimination with the PHRC, stating
he “cant [sic] ware [sic] [a] zipper.” Suppl. R.R. (S.R.R.) at 13b.
Subsequently, the PHRC investigated and found probable cause for
Complainant’s discrimination claims. After three years of attempted conciliation, in
2017, the PHRC scheduled a public hearing. In June 2018, a hearing examiner held
a hearing at which Complainant and Employer testified.
As to his disability, Complainant testified that due to scarring around his
abdomen and an open hole in his pubic area, he cannot wear tight clothing or pants
with a zipper. He emphasized the zipper aggravates this area whereas he can wear
3
sweatpants comfortably. He admitted he did not reveal his disability to Employer
when he started since landscapers could wear sweatpants. He agreed Employer told
him sweatpants were unacceptable for masonry, and to wear jeans or workpants to
look professional. He recalled Employer told another employee to stop wearing
sweatpants at the time. When Complainant tried to show his pubic area to prove his
medical condition, Employer did not look and insisted Complainant wear workpants.
As to damages, Complainant testified he looked for employment to
meet the eligibility requirements for UC benefits, but after the first six months, he
“didn’t really look.” F.F. No. 65; R.R. at 96a. Complainant did not work again until
he reopened his landscaping business in 2016.
Employer testified about Complainant’s noncompliance with the dress
code despite repeated discussions. See R.R. at 142a. He did not question
Complainant’s disability. Employer also did not require workers to wear jeans; in
his discussions with Complainant about his attire, Employer suggested alternatives
to jeans and sweatpants, including pull-up workpants. See R.R. at 144a. After
sending Complainant home to change his pants on his last day, Employer thought he
would return to work.
Based on the evidence presented at the hearing, the hearing examiner
found that Employer has a dress code requiring employees to look presentable when
representing the company. F.F. No. 44. He also found the parties “argued about
[Complainant’s] medical condition and, for several days, went back and forth
regarding what [Complainant] could wear to work,” F.F. No 49, and Complainant
admitted Employer told him not to wear sweatpants for masonry work. Nonetheless,
“[u]pon returning to work [after discussions], [Complainant] was wearing sweatpants.”
F.F. No. 59. Then, “[o]n November 20, 2013, [Employer] sent [Complainant] home,
4
in effect, telling him he was not permitted to return to work unless he changed into
appropriate pants that look professional.” F.F. No. 61. Complainant “did not return
as he considered that he had been terminated.” F.F. No. 62.
Ultimately, the hearing examiner concluded that Employer terminated
Complainant based on his disability. See R.R. at 143a-72a. Because Complainant
only looked for work for the first six months of his unemployment, the hearing
examiner awarded backpay for the six-month period at the rate of $520.00 per week.
In April 2019, the PHRC issued an order approving the hearing
examiner’s findings and conclusions, adopting his opinion. As such, the PHRC’s
order directed Employer’s payment of $13,520.00 in backpay, plus interest of 6% per
annum, and parking expenses. R.R. at 173a-75a. Employer petitioned for review.
II. Discussion
On appeal,2 this Court must consider whether Employer refused a
reasonable accommodation to Complainant for his disability when he denied
Complainant’s request to wear sweatpants for the masonry job.
A. Reasonable Accommodation Standard
The PHRC concluded Employer discriminated against Complainant
based on disability when he enforced the dress code, refusing to allow Complainant
to wear sweatpants on the masonry job. Section 5(a) of the Act states:
It shall be unlawful discriminatory practice . . . for any employer
because of the . . . non-job related handicap or disability . . . of any
individual to refuse to . . . employ . . . such individual, or otherwise
discriminate against such individual . . . if the individual . . . is the
best able and most competent to perform the services required . . . .
2
Our review is limited to determining whether there was a violation of constitutional rights,
or an error of law, or whether the findings of fact necessary to support the decision are supported
by substantial evidence. Consol. R.R. Corp. v. Pa. Hum. Rels. Comm’n, 582 A.2d 702 (Pa.
Cmwlth. 1990).
5
43 P.S. §955(a). PHRC regulations require consistent construction “with other
relevant Federal and State laws and regulations except where the construction would
operate in derogation of the purposes of the Act . . . .” 16 Pa. Code §44.2(b).
To show a prima facie case of discrimination, a complainant must
prove that: (1) he is disabled; (2) he is a “qualified individual”;3 and (3) he was
discriminated against because of his disability by way of the employer’s failure to
provide a reasonable accommodation. See Hr’g Exam’r R., Conclusion of Law (C.L.)
No. 5. See also Canteen Corp. v. Pa. Hum. Rels. Comm’n, 814 A.2d 805, 811 (Pa.
Cmwlth. 2003); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999);
Mengine v. Runyon, 114 F.3d 415 (3d Cir. 1997).
“Disability[,]” as defined in the Americans with Disabilities Act
(ADA), 42 U.S.C. §§12101-12213, is virtually identical to the Act. Lazer Spot, Inc. v.
Pa. Hum. Rels. Comm’n (Pa. Cmwlth., No. 459 C.D. 2017, filed Feb. 2, 2018), 2018
WL 670621 (unreported).4 Thus, “Pennsylvania courts generally interpret the [Act] in
accordance with its federal counterparts.” Id., slip op. at 7-8, 2018 WL 670621, at *4.
Like the federal courts, the ‘‘reasonable accommodation standard’’ is the standard we
apply to discern whether an employer committed disability discrimination under the
Act. Canteen, 814 A.2d at 811.
An employer has a duty to afford a reasonable accommodation to a
disabled employee, not a duty to provide an employee’s requested accommodation.
See Hofacker v. Wells Fargo Bank Nat’l Ass’n, 179 F. Supp. 3d 463 (E.D. Pa. 2016);
3
A “qualified individual” “has the requisite skill, experience, education and other job-related
requirements of the position sought; and . . . with or without reasonable accommodation, can perform
the essential functions of that position.” DuBoice v. Pa. Hum. Rels. Comm’n (Pa. Cmwlth., No. 53
C.D. 2019, filed Jan. 23, 2020), slip op. at 8, 2020 WL 373514, *4 (unreported) (citation omitted).
4
We cite this case for its persuasive value in accordance with Section 414(a) of this Court’s
Internal Operating Procedures, 210 Pa. Code §69.414(a).
6
Yovtcheva v. City of Phila. Water Dep’t, 518 F. App’x 116 (3d Cir. 2013); Huber v.
Wal-Mart Stores, Inc., 486 F.3d 480, 484 (8th Cir. 2007) (“[A]n employer is not
required to provide a disabled employee with an accommodation that is ideal from the
employee’s perspective, only an accommodation that is reasonable.”). Providing the
requested accommodation is not the legal standard; “the employer need only provide
some reasonable accommodation.” Yovtcheva, 518 F. App’x at 122. Despite that the
hearing examiner recognized the correct legal standard, see C.L. No. 5, the word
“reasonable” is conspicuously absent from his other conclusions, stating “an
accommodation” without the crucial modifier “reasonable.”5 Omission of one word
of a two-word legal standard matters. By not assessing the reasonableness of the
accommodation, the factfinder neglected a critical part of the analysis that may affect
the outcome.6
5
In pertinent part, the hearing examiner made the following conclusions of law.
6. [Complainant] established a prima facie case of disability discrimination.
a. [Complainant] established that he has a disability.
b. [Complainant] established that he was qualified to do the job of laborer in
Employer’s Chimney/Masonry business.
c. [Complainant] established that on November 20, 2013, he suffered an adverse
employment action in the form of Employer's denial of an accommodation and
termination of him.
7. [Employer] articulated that [Complainant] was denied an accommodation and
terminated because [Complainant] refused to adhere to [Employer]’s dress code
policy.
8. [Complainant] has proven by a preponderance of the evidence that [the] denial of
an accommodation of his medical condition and . . . termination of him were because
of his disability.
Hr’g Exam’r R., C.L. Nos. 6-8.
6
Compounding the problem, in its brief, the PHRC used the modifier “requested” instead
of reasonable multiple times. See PHRC Br. at 23, 24, 25.
7
Further, the reasonableness of a requested accommodation is gleaned
through the interactive process, which requires both parties to discuss the options in
good faith in light of their respective interests. Mengine. An employer’s dress code
is one such interest.7 “This process should identify the precise limitations resulting
from the disability and the potential reasonable accommodations that could overcome
those limitations.” Taylor, 184 F.3d at 316 (citing 29 C.F.R. §1630.2(o)(3)).
The import of the modifier “reasonable” as opposed to “requested” is
clear; the former evinces an objective standard reached by mutual negotiation during
the interactive process whereas the latter is subjective, elevating the chosen
accommodation from the perspective of the disabled employee alone.8
Ultimately, the PHRC decision does not enable this Court to evaluate
the critical issue of whether Employer refused a “reasonable” accommodation. The
reasonableness of an accommodation is vital to any determination that disability
discrimination (based on refusal of a reasonable accommodation) occurred. Similarly,
the assessment of whether the requested accommodation is reasonable is part of the
7
The Equal Employment Opportunity Commission (EEOC) guidelines recognize a dress
code imposed to “promote a certain image” is permitted, and weighs in the assessment of the
accommodation. Reproduced Record at 141a. Significantly, federal courts analyzing the distinction
between a reasonable accommodation and requested attire held an employer is not required to waive
its dress code to allow specific clothing that does not comply when other clothing options
accommodate an employee’s disability. See Kintz v. United Parcel Serv., Inc., 766 F. Supp. 2d 1245
(M.D. Ala. 2011) (employer’s refusal of requested accommodation of wearing shorts over leg brace
was not rejection of reasonable accommodation); Alpert v. Dekalb Office Env’ts, Inc., 206 F. Supp.
2d 1280, 1287 (N.D. Ga. 2001) (visible biker shorts not a reasonable accommodation for employee’s
knee injury when long dress or loose pants to same end consistent with professional image; reasoning
“[t]he ADA does not provide a legal right to wear biker shorts”); Jackson v. Analysts Int’l Corp.,
956 F. Supp. 1568 (D. Kan. 1997) (assessing dress shirt and tie requirement against broken clavicle).
8
Complainant also bore the burden to prove: “1) the employer knew about the employee’s
disability; 2) the employee requested accommodations or assistance for [his] disability; 3) the employer
did not make a good faith effort to assist the employee in seeking accommodations; and 4) the
employee could have been reasonably accommodated but for the employer’s lack of good faith.”
Moore v. CVS Rx Servs., Inc., 142 F. Supp. 3d 321, 335 (M.D. Pa. 2015).
8
assessment of whether an employer failed to engage in the interactive process in
good faith. As such, a remand to the PHRC to make pertinent findings and legal
conclusions regarding the reasonableness of the accommodation is appropriate. See,
e.g., Vista Health Plan, Inc. v. Dep’t of Hum. Servs. (Pa. Cmwlth., No. 660 C.D. 2017,
filed May 31, 2018), 2018 WL 2436329 (unreported); Bell Beverage v.
Unemployment Comp. Bd. of Rev., 49 A.3d 49 (Pa. Cmwlth. 2012); Pike Cnty. Light
& Power Co. v. Pa. Pub. Util. Comm’n, 487 A.2d 118 (Pa. Cmwlth. 1985).
B. Backpay
As it is unclear whether the findings on remand will support a
determination of disability discrimination under the reasonable accommodation
standard, we do not reach the backpay issue.
III. Conclusion
In seemingly conflating a requested accommodation with a reasonable
accommodation, the PHRC erred. Because this Court cannot evaluate whether the
PHRC correctly concluded Employer engaged in disability discrimination without
an examination of the reasonableness of the requested accommodation, we vacate
the PHRC’s order and remand this matter to the PHRC with instructions to make
appropriate findings and conclusions on the reasonable accommodation analysis on
the existing record. On remand, in determining whether the requested accommodation
of sweatpants was reasonable, the PHRC is directed to consider the medical necessity
here, which is the need to wear pants without a zipper. The PHRC shall also consider
the interactive process, and whether an accommodation was feasible without requiring
a complete waiver of Employer’s dress code policy.
______________________________
J. ANDREW CROMPTON, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Harold Richard Garten, :
Petitioner :
:
v. : No. 621 C.D. 2019
:
Pennsylvania Human Relations :
Commission, :
Respondent :
ORDER
AND NOW, this 10th day of December 2020, the order of the
Pennsylvania Human Relations Commission (PHRC) is VACATED, and the matter
is REMANDED to the PHRC with instructions to issue a new decision containing
additional findings of fact and conclusions of law regarding the reasonableness
aspect of the “reasonable accommodation” standard based on the existing record.
Jurisdiction relinquished.
______________________________
J. ANDREW CROMPTON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Harold Richard Garten, :
Petitioner :
:
v. : No. 621 C.D. 2019
: Submitted: February 14, 2020
Pennsylvania Human Relations :
Commission, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY PRESIDENT JUDGE LEAVITT FILED: December 10, 2020
Respectfully, I dissent. The majority holds that the Pennsylvania
Human Relations Commission’s (PHRC) adjudication does not enable this Court to
evaluate whether Harold Garten, the sole proprietor of Above All Chimney &
Masonry (Employer), refused to provide his employee, David Riccardi, with a
“reasonable” accommodation for his medical condition. The majority remands so
the PHRC can tell the Court whether Riccardi’s request to wear sweatpants to
perform masonry work was reasonable. A remand is unnecessary, however, in light
of Garten’s failure to negotiate in good faith with Riccardi. I would affirm.
Under the legal analysis applicable to this case, once an employee
informs his employer of his “need for a reasonable accommodation,” the employer
has “the obligation to initiate an interactive process.” Canteen Corp. v.
Pennsylvania Human Relations Commission, 814 A.2d 805, 813 (Pa. Cmwlth. 2003)
(emphasis added). The interactive process is “aimed at determining the disabled
employee’s limitations and any possible way of accommodating them.” Id. at 812.
Further, “[a]ll that is necessary to request a reasonable accommodation is that the
disabled employee makes clear his or her want of assistance or accommodation.” Id.
at 813. Thereafter, if the interactive process fails, a reviewing court “must isolate
the cause of the breakdown and then assign responsibility. … ‘[C]ourts should look
for signs of failure to participate in good faith or failure by one of the parties to help
the other party determine what specific accommodations are necessary.’” Id.
(quoting Taylor v. Phoenixville School District, 184 F.3d 296, 312 (3d Cir. 1999)).
The PHRC found, as fact, that Riccardi informed Garten of his need for
a reasonable accommodation. It also found, as fact, that Garten shirked his
responsibility to engage in the interactive process. These findings are supported by
the record and binding on this Court.
According to Riccardi’s credited testimony, he informed Garten of his
medical condition and explained how it prevented him from wearing jeans or other
tight fitting pants. In doing so, Riccardi “ma[de] clear his … want of assistance or
accommodation.” Canteen, 814 A.2d at 813. However, Garten was uninterested in
learning about Riccardi’s medical condition and never requested a doctor’s note or
an independent medical examination. Riccardi also credibly testified that Garten
told him that “if you can’t wear jeans you cannot have a job.” Hearing Transcript,
6/7/2018, at 67; Reproduced Record at 62a. The PHRC rejected Garten’s version of
events, including his testimony that he discussed other clothing options with
Riccardi.
In short, the factual findings of the PHRC support its conclusion that
Garten was responsible for the breakdown in the interactive process by giving
Riccardi an ultimatum. Whether Riccardi’s request to wear sweatpants was a
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reasonable accommodation is beside the point given the PHRC’s finding that Garten
refused to enter into a discussion of their options.
Even so, the reasonableness of Riccardi’s request is a legal question
that can be decided on the existing record. As explained by the PHRC, Garten
offered no evidence that the dress code was a job-related requirement. His testimony
that he wanted all of his employees to have the same professional appearance is
insufficient. As the PHRC noted, more convincing evidence would be necessary,
such as customer complaints about underdressed employees having a negative
impact on Employer’s revenue stream, or evidence that wearing jeans enhances
worker safety. Garten did not present a legitimate business-related justification for
his prohibition on Riccardi wearing sweatpants.
Employer raises an additional issue, i.e., that the PHRC erred in
awarding Riccardi back pay in the absence of substantial evidence that he attempted
to mitigate his damages. “The burden of mitigation imposed on a complainant is not
onerous and does not require success.” Canteen, 814 A.2d at 815. “All that is
required is an honest, good faith effort.” Id. Here, the PHRC credited Riccardi’s
testimony that during the six-month period after his separation from Employer, while
he was collecting unemployment benefits, he applied for masonry and landscaping
jobs through the Department of Labor and Industry’s computer system. Employer
cites no authority for the proposition that Riccardi had to offer documentary
evidence of his job search. Based upon Riccardi’s credited testimony, the PHRC did
not abuse its discretion to fashion a remedy by awarding him back pay for the six
months following the termination of his employment.
Riccardi informed Garten of his “need for a reasonable
accommodation.” Canteen, 814 A.2d at 813. This triggered the interactive process
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in which Garten refused to participate. The majority reverses the order of the process
by requiring the PHRC to determine whether Riccardi’s request to wear sweatpants
was a reasonable accommodation even though Garten did not engage in the
interactive process. The majority conflates the concepts of “requested
accommodation,” which triggers the process, and “reasonable accommodation,”
which is the result of the process. Stated another way, it is the interactive process
that determines whether a requested accommodation is reasonable.
_____________________________________
MARY HANNAH LEAVITT, President Judge
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