Sch. Dist. of Phila. v. Friedman

Opinion by

Senior Judge Barbieri,

This is the appeal of the School District of Philadelphia (School District) from a final decree in equity of the Court of Common Pleas of Philadelphia County ordering it to reinstate William B. Friedman, with back pay, to his position of Programmer II in its data processing department. After a hearing on Friedmans complaint in equity seeking injunctive relief, the chancellor, the Honorable Berel Caesar, entered a decree nisi directing Friedmans reinstatement because the School Districts action of discharging him was in violation of Section 5 of the Pennsylvania Human Relations Act (Act), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §955(a). Section 5 of the Act, 43 P.S. §955, states in relevant part that “[i]t shall be an unlawful discriminatory practice ... (a) For an employer because of the ... non-job related handicap or disability of any individual ... to bar or to discharge from employment such individual ... if the individual is the best able and most competent to perform the services required — ” The chancellor allowed some, hut dismissed most, of the School Districts exceptions to his adjudication nisi, and he entered his decree nisi as the final decree. This, as we have said, ordered the School District to reinstate Friedman with back pay. This appeal followed.

Friedman began as a volunteer in the School Districts data processing department in 1969. In January 1970, Friedman was hired as a computer programmer trainee and continued in the School Districts employ until May 2, 1980, when he was discharged for chronic lateness. Friedman had failed to arrive for work on time almost everyday of his employment.

Following his discharge, Friedman filed a complaint with the Pennsylvania Human Relations Commission (PHRC) asserting that the School District had discriminated against him by discharging him because of his alleged mental disability, a personality disorder a manifestation of which is chronic lateness, which was not job-related. In accordance with Section 9 of the Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §959, the PHRC, after the filing of the complaint, made an investigation and subsequently determined that no probable cause existed for crediting the allegations of the complaint. As permitted by Section 6 of the Act, 43 P.S. §962(c), Friedman then filed his complaint in equity in the Philadelphia County Court of Common Pleas.

In employment discrimination cases, the complainant, or as in this equity action, the plaintiff, bears the burden of establishing a prima facie case which, in this case, requires proof that Friedman is disabled, that he was appointed to a position for which he was otherwise qualified, that he was discharged, and that his employer replaced him with someone with equal or lesser qualifications. See General Electric Corp. v. Pennsylvania Human Relations Commission, 469 Pa. 292, 365 A.2d 649 (1976). Once the prima facie case is established, the burden then shifts to the employer to establish a legitimate, non-discriminatory reason for the denial of employment. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Thus, provided Friedman has met his burden of establishing that he is disabled under the Act, it becomes the School Districts burden to establish that Friedmans disability is job-related and, therefore, provides a valid basis for the discharge. Amtrak v. Pennsylvania Human Relations Commission, 70 Pa. Commonwealth Ct. 62, 452 A.2d 301 (1982).

After an evidentiary hearing, the chancellor made numerous findings of feet and concluded:

1. Plaintiff William B. Friedman is disabled under the Pennsylvania Human Relations Act, 43 P.S. §955.

2. Mr. Friedmans disability did not interfere substantially with his performance and was therefore non-job related.

3. (a) Mr. Friedmans disability can be, and has been, reasonably accommodated by the School District;

(b) Said reasonable accommodation does not impose undue hardship on the School District.

4. Mr. Friedman is qualified for the position for which he seeks reinstatement. (Footnote omitted.)

On appeal, the School District asserts (1) that the court erred in concluding that Friedman is disabled as provided by Section 5 of the Act, 43 P.S. §955, and further defined by regulation at 16 Pa. Code §44.4, (2) that the court erred in concluding that Friedmans chronic lateness is not job-related, (3) that the court erred in concluding that accommodating Friedmans chronic lateness does not impose undue hardship on the School District, and (4) that the testimony of Friedmans experts was improperly admitted into evidence.

The scope of our review of a chancellors adjudication is very narrow. It has been held that determinations of a chancellor will not be disturbed on appeal unless they are clearly erroneous as a matter of law or are in manifest abuse of the chancellors sound discretion. Borough of Yeadon v. Montgomery, 72 Pa. Commonwealth Ct. 31, 455 A.2d 785 (1983); Quaker City Yacht Club v. Leon B. Williams, 59 Pa. Commonwealth Ct. 256, 429 A.2d 1204 (1981). The chancellors findings of feet are controlling on appeal unless it can be shown that they lack evidentiary support, or that the chancellor capriciously disbelieved the evidence or abused his discretion in arriving at those findings. United States Steel Corp. v. Hoge, 304 Pa. Superior Ct. 182, 450 A.2d 162 (1982), revd and remanded on other grounds, 503 Pa. 140, 468 A.2d 1380 (1983).

As support for the chancellors conclusion that Friedman is disabled under the Act, the chancellor found that the School Districts physician diagnosed Friedmans condition as a “neurotic compulsion for lateness” and that the School District had received from John E. Mock, M.D., Friedmans treating psychiatrist of ten years, a letter which labelled Friedmans chronic lateness a “behavioral aberration.” The chancellor also found that, commencing April 8, 1980, Friedman began being treated by Dr. Susan Jasin, a clinical psychologist trained in behavioral modification therapy. Finally, the chancellor found that “William B. Friedman, at all times relevant hereto, suffered from, and continues to suffer from, a mental disability, as a result of which he is chronically late for virtually all of his life’s activities, including reporting for work.”

Our study of the record leads us to conclude there is no support for the above finding and the chancellor’s conclusion of law in this regard. In order to establish a disability under the Act, reference must be made to 16 Pa. Code §44.4 which defines “handicapped or disabled person” as follows:

(i) A person who:

(A) has a physical or mental impairment which substantially limits one or more major life activities;

(B) has a record of such an impairment; or

(C) is regarded as having such an impairment.

(ii) As used in subparagraph (i) of this paragraph, the phrase:

(A) \.. mental impairment’ means a physiological disorder or condition, ... a mental or psychological disorder, such as mental illness, and specific learning disabilities.

(B) ‘major life activities’ means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

(D) ‘is regarded as having an impairment’ means has a physical or mental impairment that does not substantially limit major life activities but that is treated by an employer ... as constituting such a limitation; has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or has none of the impairments defined in subparagraph (i)(A) of this paragraph but is treated by an employer ... as having such an impairment.

The evidence of record includes a letter from Dr. Mock to the School District in 1976 in response to its request for information regarding Mr. Friedman’s condition in which he stated:

His [Mr. Friedman’s] symptom of persistent and almost invariable lateness, which incidently manifests itself in virtually all situations and is not confined to the work environment, is a behavioral aberration that is deeply rooted in his personality and almost certainly had its origins in conflictual interaction with his parents in early life. It seems to be a rather infen tile and certainly self defeating way of rebelliously asserting his individuality and of refusing to submit to the rules set down by authority. Although I recognize that his lateness is disruptive to an organization that includes a uniform work schedule in its structure, it is a comparatively benign expression of his determination not to be obliterated by a dominating controlling system of which he conceives himself as a victim. I would like to emphasize an obvious feet, namely that his motivation and rationale for this behavior is almost completely unconscious and literally beyond his control.

It is extremely questionable whether this deeply ingrained behavioral pattern will ever be modified by means of psychiatric intervention.

When pressed by the chancellor at the trial to categorize Mr. Friedmans condition, Dr. Mock declined to do so stating that there was no specific diagnostic label that could be used in Mr. Friedmans case. Dr. Mock did state that Mr. Friedman was not psychotic. When questioned regarding whether Mr. Friedman was neurotic, Dr. Mock testified as follows:

Q. Do you have an opinion as to whether he is neurotic?

A. Yes, I have an opinion.

Q. Would you tell us that opinion.

A. Personality disorder.

On cross-examination by appellants counsel, Dr. Mock testified:

Q. (Continuing) Doctor, its true, is it not, that people with what you have termed a personality disorder exists [sic] around us every day in all walks of life; isn’t that correct?

A. I’m not sure any of us are spared that diagnosis.

Dr. Mock also testified on cross-examination that Mr. Friedmans condition did not impair his ability to care for himself, to walk, see, hear, speak, learn or work. In fact, the chancellor found that “Friedman, at all times relevant thereto, performed the duties incumbent upon him as a Computer Programmer in a competent and qualified manner, and with the skills required of a person with his job classification.”

The record is solid that Mr. Friedman has no disability as that term is defined by regulation.¹ There is no evidence of a mental disability as defined by 16 Pa. Code §44.4 on the basis of which Friedman was discriminated against in violation of Section 5 of the Act, 43 P.S. §955(a).² We would note the similar conclusion of the Pennsylvania Human Relations Commission whose expertise in the application of the provisions of the Act is generally accepted.

Having concluded that Mr. Friedman is not disabled under the Act, we need not address the question whether the School District had a legitimate nondiscriminatory reason for discharging Friedman, i.e. whether Friedmans personality disorder was job-related, or whether accommodating the disorder imposed undue hardship on the School District. We note in passing, however, that 16 Pa. Code §44.14,³ which requires an employer to make reasonable accommodations for a disabled worker, precludes application of different attendance standards for the disabled worker. Thus, even had Mr. Friedmans personality disorder been established as a disability under the Act, the School District would not have been required, by virtue of the above regulation, to accommodate Mr. Fried-mans chronic lateness.

We will reverse the order of the Philadelphia County Court of Common Pleas. Mr. Friedman need not be reinstated.

Order

And Now, this 7th day of April, 1986, the order of the Court of Common Pleas of Philadelphia County is hereby reversed.

1 Dr. Jasins testimony is simply a description of the behavioral modification program which she had designed for Mr. Friedman. She made no attempt to diagnose Mr. Friedmans condition.

The testimony of Drs. Mock and Jasin was properly admitted into evidence. While the School District would contend that Dr. Mock’s testimony was inadmissible pursuant to Pa. R.C.P. No. 4003.5(i)(b) which provides that, if the identity of the expert is not disclosed, he “shall not be permitted to testify,” the School District foiled to show prejudice. Where there is no showing of bad foith in late disclosures and no prejudice to the complaining party, the court may admit the expert’s testimony. Kemp v. Qualls, 326 Pa. Superior Ct. 319, 473 A.2d 1369 (1984). The School District also objected at trial to the admission of Dr. Jasins testimony offered through videotape deposition on the ground the testimony lacked proper foundation and that it could not qualify as expert testimony. Pa. R.C.P. No. 4016(b) provides that objections to the competency of a witness or to the competency, relevancy or materiality of testimony are waived by failure to make them during the taking of the deposition if the ground of the objection was known to the objecting party at the time. Both objections could have been made at the deposition and were not.

2 We note that, while a plaintiff may also establish a disability under 16 Pa. Code §44.4 by proving that he is regarded by his employer as having such an impairment, Friedman made no such allegation when he filed his equity action in the common pleas court.

3 16 Pa. Code §44.14 provides:

(a) An employer shall make reasonable accommodations by modifying a job, including but not limited to modification of duties, scheduling, amount or nature of training, assistance provided, and the like, provided that such modification shall not impose an undue hardship.

(b) Nothing in this section shall be construed to require application of different production, attendance,. or disciplinary standards for the handicapped or disabled worker. (Emphasis added.)