R. DuBoice v. PA HRC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert DuBoice, :

Petitioner :

:

v. :

:

Pennsylvania Human Relations :

Commission, : No. 53 C.D. 2019

Respondent : Argued: December 10, 2019

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE FIZZANO CANNON FILED: January 23, 2020

Robert DuBoice (DuBoice) petitions for review of the December 18,

2018 final order of the Pennsylvania Human Relations Commission (Commission)

dismissing his complaint against Arrowhead Lake Community Association

(Employer),1 which alleged that Employer unlawfully discriminated against him on

the basis of his disability in violation of Section 5(a) of the Pennsylvania Human

Relations Act (PHRA).2 Upon review, we affirm.

1

Employer intervened in this matter, and the Commission joined Employer’s appellate

brief. See Cmwlth. Ct. Order, 5/2/09; Joinder in Brief Request 6/14/19.

2

Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 955(a).

Employer hired DuBoice in October 1999 as Director of Maintenance

with supervisory authority over two departments—the Roadway and Surface Water

Drainage Maintenance Department and the Facilities Maintenance Department.

Commission’s Final Order at 2-3, Finding of Fact (F.F.) 5 & 11, Reproduced Record

(R.R.) at 66a-67a.3 Employer is a private gated community situated on three square

miles and containing approximately 2,500 homes and 4,000 lots. F.F. 6-7.

Employer also has approximately 49 miles of roadways, comprised of 12 paved

roads and 29 dirt roads. F.F. 9.

In 2012, Employer split the duties of DuBoice’s maintenance director

position between two director positions, with DuBoice retaining some of these duties

as Roads and Ditches Director. F.F. 12. After the maintenance director position was

split, the two new directors had fewer non-physical tasks to perform. F.F. 18.

DuBoice’s duties as Roads and Ditches Director included maintaining roads and

equipment, such as by installing speed bumps and repairing potholes; operating plow

trucks, graders and a backhoe; interfacing with vendors; cutting grass; applying for

permits; and interacting with homeowners about their complaints and concerns with

the roads and ditches. F.F. 13 & 48. Employer expected that physical tasks would

comprise 70% of DuBoice’s work in this role, with non-physical tasks making up

the remaining 30%. F.F. 15.

On October 14, 2013, DuBoice sustained an injury at work to his neck

and right shoulder when he fell backwards while attempting to close the tailgate of

a truck at a dump site. F.F. 24 & 26-27. Thereafter, it was determined that DuBoice

had sustained an injury to his right shoulder and multiple cervical and thoracic

3

We have added the letter “a” following citations to pages within the Reproduced Record,

as per Pennsylvania Rule of Appellate Procedure 2173.

2

vertebrae. F.F. at 31. DuBoice did not work until he received clearance from his

doctor, Dr. Edward Carey, to return on June 3, 2014. F.F. 32-33 & 37-38.

Upon his return to work, DuBoice asked to return to his position as

Roads and Ditches Director, but Lonnie Howard (Howard), Employer’s general

manager, informed him that the position of Roads and Ditches Director had been

eliminated and only a maintenance worker position was available. F.F. 22 & 39-40.

Physical tasks comprised 100% of the work performed by maintenance workers.

Commission’s Final Order at 17, R.R at 23a. DuBoice did not express concern

regarding any physical limitations at the time, as he did not know which tasks

Howard would assign to him. F.F. 44. Employer assigned DuBoice and another

maintenance worker the task of installing speed bumps, which required drilling a

hole into the surface of the road with a hammer drill and then using a sledge hammer

to drive one-inch spikes through the speed bump into the roadway. F.F. 45-46.

DuBoice was also assigned tasks involving bending and heavy lifting, such as

pulling tires off of trucks, removing generators and using a pick axe. F.F. 47. This

work caused DuBoice’s neck and shoulder to spasm. F.F. 49. DuBoice then

obtained a second note from Dr. Carey indicating that he could not perform heavy

physical work, which DuBoice provided to Howard on June 13, 2014. F.F. 50-51.

Howard informed DuBoice that the maintenance worker position was the only work

available. F.F. 53. DuBoice left his job because he was unable to perform the

physical work assigned to him. F.F. 55.

DuBoice filed a complaint with the Commission on or about December

16, 2014. Joint Stipulation of Facts at 1, No. 3, R.R. at 806a. DuBoice then filed an

amended complaint on or about March 26, 2015, alleging that Employer unlawfully

discriminated against him in violation of Section 5(a) of the PHRA, 43 P.S. § 955(a),

3

by failing to engage in the interactive process regarding his request for a reasonable

accommodation, resulting in his constructive discharge. Amended Complaint at 2-

5, R.R. at 716a-19a. On May 20, 2016, the Commission approved a finding of

“probable cause” and scheduled mandatory conciliation. Joint Stipulation of Facts

at 1, No. 7, R.R. at 806a.

On July 13, 2016, the parties’ attempt at conciliation proved

unsuccessful and the matter was approved for public hearing on March 29, 2017.

Joint Stipulation of Facts at 1, Nos. 8-9, R.R. at 806a. The parties voluntarily agreed

to participate in mediation with the Commission’s permanent hearing examiner, Carl

Summerson (Summerson), serving as mediator. Mediation and Confidentiality

Agreement (Agreement) at 1-4, R.R. at 740a-43a. Prior to mediation, DuBoice had

signed the Commission’s mediation and confidentiality agreement, which provided,

in relevant part, as follows:

Currently, the [Commission] has only one Permanent

Hearing Examiner. If mediation fails to reach a

settlement, Hearing Examiner Summerson will continue

to have direct involvement in this case. The parties are

advised that should the scheduled Public Hearing be held

in this case, Hearing Examiner Summerson may act as the

Hearing Examiner or Panel Advisor to a three member

panel of . . . Commissioners.

Agreement at 2, R.R. at 741a. The parties failed to resolve their dispute through

mediation, and a public hearing was held on April 18, 2018. Certified Record, Joint

Stipulation of Facts at 2, No. 10; Hearing Transcript (H.T.), 4/18/18 at 1, R.R. at

90a; Agreement at 2, R.R. at 741a.

On December 4, 2018, Hearing Examiner Summerson issued his

recommendation to dismiss DuBoice’s complaint, which the Commission adopted

4

on December 18, 2018. Commission’s Final Order at 23-24, R.R. at 87a-88a. The

Commission found that DuBoice failed to establish a prima facie case of disability

discrimination because he was unable to demonstrate that he was a “qualified

individual.” See Commission’s Final Order at 16-17 & 21, R.R. at 80a-81a & 85a.

The Commission determined that DuBoice was unable to establish that he was

qualified to perform the essential functions of his job, because he “did not show a

reasonable accommodation would have allowed him to perform the physical duties

of his position.” Commission’s Final Order at 9, Conclusion of Law (C.L.) 8, R.R.

at 73a; Commission Final Order at 20, R.R. at 84a. Thus, the Commission found

that DuBoice “failed to prove he was discriminatorily denied an accommodation, in

violation of Section 5(a) of the PHRA[.]” Commission Final Order at 23-25, R.R.

at 87a-89a. DuBoice then petitioned this Court for review.

In the statement of questions involved in his appellate brief, DuBoice

presents two questions for this Court’s consideration:

[1.] Whether the . . . Commission erred in determining []

DuBoice was not a qualified individual.

[2.] Whether [DuBoice’s] due process rights were violated

because the hearing examiner acted as mediator prior to

the close of discovery having private conversations with

the opposing side.

DuBoice’s Brief at 4.4

4

Our review of an order of the Commission is limited to determining whether

constitutional rights have been violated, an error of law has been committed or findings of fact are

supported by substantial evidence. Doral II Condo. Ass’n v. Pa. Human Relations Comm’n, 779

A.2d 605, 607 n.3 (Pa. Cmwlth. 2001), aff’d, 810 A.2d 634 (Pa. 2002); see also Section 704 of

Administrative Agency Law, 2 Pa. C.S. § 704.

5

I. Whether DuBoice was a qualified individual.

Regarding this first question, DuBoice argues that the Commission

erred in determining he was not a qualified individual for purposes of his disability

discrimination claim and, therefore, requests that this Court reverse and remand the

matter. See DuBoice’s Brief at 24 & 30. DuBoice asserts that he met his burden of

demonstrating he was capable of performing his pre-injury position of Roads and

Ditches Director, which included operating heavy equipment, such as plow trucks,

graders and backhoes, and that the hearing examiner erred in considering only the

heavy duties of the post-injury maintenance worker position. Id. at 26-27 (citing

H.T., 4/18/18 at 21, R.R. at 110a). DuBoice maintains that the responsibilities of

the pre-injury position of Roads and Ditches Director are different than the physical

requirements of his post-injury maintenance worker position, which required him to

use a sledge hammer on 150 to 200 spikes to install speed bumps; pull tires from

trucks; and lift heavy equipment, such as generators. Id. at 27 (citing H.T., 4/18/18

at 32-33, R.R. at 121a-22a). DuBoice asserts that the Commission erred in

determining he would accept nothing less than the non-physical components of the

pre-injury Roads and Ditches Director position, and that a reasonable

accommodation would have enabled him to perform “some of the less physically

demanding but still physical components of the [r]oads and [d]itch[es] [d]irector

position.” Id. at 29-30. DuBoice further maintains that he was physically capable

of performing the managerial aspects of his pre-injury position of Roads and Ditches

Director. Id. at 29 (citing H.T. at 34, R.R. at 123a). DuBoice contends that

Employer subverted its obligation to provide a reasonable accommodation by

eliminating his pre-injury position and assigning him to a job with different essential

6

duties upon his return. Id. at 26. Further, DuBoice contends he “did request a

reasonable accommodation from [Employer],” because he presented Employer with

the note from Dr. Carey and communicated his desire to resume his previous

position. Id. at 28 & 30 (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d

Cir. 1999)).

Employer counters that the Commission did not err in determining that

DuBoice was not qualified for his position and, therefore, failed to establish a prima

facie case of disability discrimination, because DuBoice could not perform the

physical tasks which constituted essential functions of his job, either with or without

reasonable accommodation. See Employer’s Brief at 17 & 19-20. Employer asserts

that DuBoice “mistakenly believes that he could restructure his job and pick and

choose the essential functions of the job he was willing to perform.” Id. at 18.

Employer maintains that DuBoice failed to identify a reasonable accommodation to

help him perform the essential functions of his job, instead demanding a new

position due to “his inability to perform the physical components of any other job.”

Id. at 17 & 20 (citing Cullison v. Dauphin County (M.D. Pa., No. 1:10-CV-00705,

filed May 18, 2012), slip op. at __, 2012 WL 3027776, at *56.

In the absence of direct evidence, a claim of disability discrimination

under the PHRA may be analyzed under the three-part, burden-shifting framework

first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).5 Canal

5

“It is now axiomatic that the familiar analytical framework first pronounced in McDonnell

Douglas . . . for resolution of suits brought under Title VII [of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e-2000e-17] also guides an analysis of claims brought under the [Americans with

Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213].” Olson v. Gen. Elec. Astrospace,

101 F.3d 947, 951 (3d Cir. 1996). “[T]he same legal standard that applies to the ADA applies

equally to disability discrimination claims under the PHRA.” Colwell v. Rite Aid Corp., 602 F.3d

495, 499 n.3 (3d Cir. 2010); see also Imler v. Hollidaysburg Am. Legion Ambulance Serv., 731

A.2d 169, 173 (Pa. Super. 1999) (noting that “[t]he PHRA and ADA are interpreted in a co-

7

Side Care Manor, LLC v. Pa. Human Relations Comm’n, 30 A.3d 568, 570 & 573

(Pa. Cmwlth. 2011). Under this framework, a complainant bears the initial burden

of establishing a prima facie case by a preponderance of the evidence. Id. at 573 n.7

(citing McDonnell Douglas). Once a prima facie case is presented, the burden shifts

to the employer to articulate some legitimate non-discriminatory reason for the

adverse employment action. Id. If the employer does so, the burden then shifts back

to the complainant to prove by a preponderance of the evidence that the articulated

reason was merely pretext for discrimination. Id. However, “[t]hough the burden

of production shifts between the parties, ‘the . . . plaintiff at all times bears the

ultimate burden of persuasion.’” Sorgini v. Wissahickon Sch. Dist., 274 F. Supp. 3d

291, 296 (E.D. Pa. 2017) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

511, (1993) (internal quotation marks omitted)).

A complainant establishes a prima facie case of disability

discrimination under the PHRA by demonstrating: “(1) that he or she is a disabled

person within the meaning of the [PHRA];[6] (2) that he or she is otherwise qualified

to perform the essential functions of the job, with or without reasonable

accommodations by the employer; and (3) that he or she has suffered an otherwise

adverse employment decision as a result of discrimination.” Canteen Corp. v. Pa.

Human Relations Comm’n, 814 A.2d 805, 811 (Pa. Cmwlth. 2003). At issue here is

the second element. The burden is on the complainant to prove that he is an

extensive manner[,] . . . because the PHRA and ADA deal with similar subject matter and are

grounded on similar legislative goals”).

6

The parties do not dispute that DuBoice has a disability, thereby satisfying the first

element of a prima facie case of disability discrimination. See Commission’s Final Order at 15-

16, R.R. at 79a-80a.

8

otherwise qualified individual by means of a two-part test. Gaul v. Lucent Techs.,

Inc., 134 F.3d 576, 580 (3d Cir. 1998). A court must consider “(1) whether the

individual has the requisite skill, experience, education and other job-related

requirements of the position sought, and (2) whether the individual, with or without

reasonable accommodation, can perform the essential functions of that position.”

Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir. 2006) (citing 29

C.F.R. pt. 1630.2(n)). “The purpose of the second step is to ensure that individuals

with disabilities who can perform the essential functions of the position held or

desired are not denied employment opportunities because they are not able to

perform marginal functions of the position.” Lombardo v. Air Prod. & Chemicals,

Inc. (E.D. Pa, No. CIVA 05-1120, filed July 7, 2006), slip op. at 19, 2006 WL

1892677, at *10 (quoting 29 C.F.R. pt. 1630, App. at 368).

The Commission did not err in determining that DuBoice failed to

establish a prima facie case of disability discrimination, as he was unable to

demonstrate that he was an otherwise qualified individual. The Commission found,

and the parties do not dispute, that DuBoice has the requisite skill, experience and

other job-related requirements of the position sought, thereby satisfying the first part

of the two-part test. See Commission’s Final Order at 17, R.R. at 81a. However,

DuBoice fails to meet the second requirement because he is unable to establish he

could perform essential job functions7 with or without reasonable accommodation.

7

“The term essential functions means the fundamental job duties of the employment

position the individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1). This term

“does not include the marginal functions of the position.” Id. “A job function may be considered

essential . . . because of the limited number of employees available among whom the performance

of that job function can be distributed.” 29 C.F.R. § 1630.2(n)(2)(ii). “Evidence of whether a

particular function is essential includes, but is not limited to . . . [t]he amount of time spent on the

job performing the function[.]” 29 C.F.R. § 1630.2(n)(3)(iii).

9

The note DuBoice submitted indicated that he could not do heavy physical work.

F.F. 50. The Commission determined that “[p]erforming physical tasks is an

essential function of both the [d]irector position DuBoi[c]e previously held and the

position to which DuBoi[c]e was assigned upon his return to work on June 3, 2014.”

C.L. 14. The Commission noted that DuBoice admitted he was unable to perform

any of the physical aspects of his post-injury job as a maintenance worker, whether

essential or marginal. Commission’s Final Order at 17-18; R.R. at 81a-82a. The

Commission pointed out that DuBoice was unable to assist in the installation of

speed bumps, use a pick axe, pull tires or remove generators—all of which were

tasks assigned to maintenance workers. Commission’s Final Order at 18, R.R. at

82a. The Commission specifically found that these tasks were essential functions of

the maintenance worker position. Id.

The question, then, is whether DuBoice could have performed the

physical tasks constituting essential job functions of the maintenance worker

position with reasonable accommodation. If an accommodation is needed, the

complainant bears the burden of demonstrating that a reasonable and effective

accommodation exists that would render him otherwise qualified. See Walton v.

Mental Health Ass’n of Se. Pa., 168 F.3d 661, 670 (3d Cir. 1999). A complainant

may demonstrate he is an otherwise qualified individual “if he can make at least a

facial showing that his proposed accommodation is possible.” Gaul, 124 F.3d at

580. “More specifically, [he] must demonstrate that there [was a] vacant, funded

position[] whose [sic] essential duties he was capable of performing, with or without

reasonable accommodation, and that [the] position[] [was] at an equivalent level or

position as [his former job].” Id. at 580 (emphasis added) (internal citation and

quotation marks omitted). Here, no such position existed.

10

While the Commission determined that DuBoice “uncompromisingly

insist[ed] on the single accommodation of assigning him only managerial[,] non-

physical tasks[,]” C.L. 17, and found that DuBoice would have only accepted as an

accommodation being assigned to the 30% non-physical component of his prior,

now eliminated, position as Roads and Ditches Director, Commission’s Final Order

at 19, R.R. at 83a, we note the relevant inquiry is whether DuBoice could perform

the essential functions of the post-injury maintenance worker position with

reasonable accommodation. See Gaul, 124 F.3d at 580. The director position

previously held by DuBoice was eliminated prior to DuBoice’s return to work.

Nevertheless, the Commission determined that DuBoice’s June 13, 2014 request was

the equivalent of a “request that [Employer] remove an essential function of either

the [d]irector’s position or the position o[f] maintenance worker to which DuBoi[c]e

was assigned” following his work injury. C.L. 12 (emphasis added). Thus, the

Commission determined that DuBoice essentially asked Employer to create an

entirely new position to accommodate his disability. Commission Final Order at 19,

R.R. at 83a (citing Buskirk v. Apollo Metals, 307 F.3d 160 (3d Cir. 2002)). However,

“[t]he [Americans with Disabilities Act (ADA)] does not require an employer to

create a new position in order to accommodate an employee with a disability[.]”

Turner, 440 F.3d at 614 (citing Buskirk, 307 F.3d at 169). Such an accommodation

is, therefore, unreasonable as a matter of law. See Gaul, 124 F.3d at 581 (finding

complainant failed to establish he was an otherwise qualified individual where “his

proposed accommodation was unreasonable as a matter of law”).

Further, the Commission noted that when DuBoice returned to work on

June 3, 2014, only he and one other maintenance worker were the individuals to

whom maintenance work could be assigned. Commission’s Final Order at 18, R.R.

11

at 82a. While DuBoice asserts he is capable of operating equipment, such as plow

trucks, graders and backhoes, see DuBoice’s Brief at 29, these are physical tasks

associated with his pre-injury position. See F.F. 13. DuBoice’s purported ability to

perform some of the physical tasks of his pre-injury position has no bearing on his

ability to perform the physical tasks of the post-injury maintenance worker position

and would still require the reassignment of all physical tasks of the maintenance

worker position to his sole co-worker following DuBoice’s return to work. See F.F.

13 & 48.

The United States District Court for the Eastern District of

Pennsylvania has held as follows:

Though the ADA defines the term reasonable

accommodation to include “job restructuring,” . . . [Equal

Employment Opportunity Commission] regulations

interpreting the ADA state that reasonable

accommodation means “[m]odifications or adjustments to

the work environment, or to the manner or circumstances

under which the position held or desired is customarily

performed, that enable a qualified individual with a

disability to perform the essential functions of that

position.” 29 C.F.R. § 1630.2(o)(1)(ii). The regulations

state that “an employer or other covered entity is not

required to reallocate essential functions” as a reasonable

accommodation. 29 C.F.R. Pt. 1630[,] App. 1630.2(o).

Thus, a reasonable accommodation is a change that helps

a disabled individual perform the essential functions of the

job, not a modification that reinvents the position.

The Third Circuit has stated that “employers are not

required to modify the essential functions of a job in order

to accommodate an employee.” Donahue v. CONRAIL,

224 F.3d 226, 232 (3d Cir. 2000) . . . . “A request to be

exempted from an essential duty” is “not an

12

accommodation designed to help [a disabled individual]

perform” the job. Id.

Lombardo, slip op. at **, 2006 WL 1892677, at *22-23 (citation omitted) (holding

that employee’s request that employer eliminate or reassign physical tasks to other

employees was not a reasonable accommodation, such that he was not a “qualified

individual within the meaning of the ADA”). Further, “[w]here plaintiffs have

sought to lessen their physical duties as a reasonable accomodation [sic] for their

disability, the courts have not required employers to accomodate [sic] their requests

where the physical duties were essential to the position.” Lombardo, slip op. at 23,

2006 WL 1892677, at *12 (citation omitted) (emphasis added). Reallocating

essential job functions involving physical tasks8 to DuBoice’s sole co-worker would

therefore constitute an unreasonable accommodation as a matter of law. See Gaul,

124 F.3d at 581. Thus, the Commission did not err in concluding that DuBoice failed

to satisfy his burden of demonstrating that a reasonable and effective

accommodation exists that would render him otherwise qualified for purposes of

establishing a prima facie case of disability discrimination. See Walton, 168 F.3d at

670.

II. Whether DuBoice’s due process rights were violated because the hearing

examiner acted as mediator prior to the close of discovery and had private

conversations with the opposing side.

8

The Commission noted that “[d]uring the hearing no attempt was made to break the

precise tasks of the positions into those that are essential functions and those that were marginal

functions.” Commission’s Final Order at 17, R.R. at 81a. Thus, some of the physical tasks

associated with the maintenance worker position may constitute only marginal job functions.

However, this does not hinder our analysis because the Commission found that DuBoice could not

perform any of the physical functions required by either his pre- or post-injury position, whether

essential or marginal. See Commission’s Final Order at 17-18, R.R. at 81a-82a.

13

Regarding the second question presented, DuBoice contends that he

was prejudiced because the hearing examiner had also acted as mediator. DuBoice’s

Brief at 30-33. DuBoice asserts that the hearing examiner improperly commingled

the roles of prosecutor and adjudicator. DuBoice’s Brief at 31 (citing Pa. Human

Relations Comm’n v. Thorp, Reed & Armstrong, 361 A.2d 497 (Pa. Cmwlth. 1976)).

DuBoice contends that “[w]hile the hearing examiner did not serve in prosecutorial

and adjudicative functions, the hearing examiner’s role of mediator placed him in

conversations with [] Employer . . . to which [DuBoice’s] attorney was not privy.”

Id. at 32. DuBoice also points out that during mediation, the hearing examiner

recommended that he accept Employer’s offer. Id. DuBoice also asserts that at

mediation, after he refused the hearing examiner’s settlement recommendation and

“after the hearing examiner’s private discussions with Employer’s counsel, the

hearing examiner returned with his coat on and his file under his arm, abruptly

ending settlement discussions.” Id. at 33. Thus, DuBoice maintains the hearing

examiner “fail[ed] to maintain the appearance of impartiality, such that his due

process rights have been violated,” necessitating this Court to vacate the decision

and remand for a new hearing. Id.

Employer contends that DuBoice’s assertion that the Commission

somehow prejudiced him and violated his due process rights by facilitating

mediation between the parties in advance of the public hearing lacks merit. See

Employer’s Brief at 22. Employer points out that the parties knowingly agreed to

participate in mediation facilitated by Hearing Examiner Summerson with the

understanding that Summerson would then later serve as the public hearing examiner

if mediation proved unsuccessful. Id. at 22-23. Employer also notes that the

Commission required the parties to execute a mediation agreement, which indicated

14

that because “the [Commission] ha[d] only one Permanent Hearing Examiner[,] . . .

[i]f mediation fail[ed] to reach a settlement, Hearing Examiner Summerson [would]

continue to have direct involvement in the case” and “may act as Hearing Examiner

or Panel Advisor to a three member panel of . . . Commissioners.” Id. (quoting

Agreement at 2, R.R. at 741a).

We conclude that DuBoice’s claims of prejudice and lack of due

process are meritless. As noted by Employer, DuBoice voluntarily entered into

mediation and signed an agreement which clearly informed him that Summerson,

the mediator, would also serve as hearing examiner should the attempted mediation

fail. See Agreement at 2, R.R. at 741a. Further, though DuBoice does not

specifically argue that Hearing Examiner Summerson should have recused himself,

he contends that Summerson improperly served as both mediator and hearing

examiner. Thus, DuBoice is essentially asserting that Summerson should have

recused himself from serving as hearing examiner.

DuBoice was aware that Summerson would serve as both mediator and

hearing examiner at least as early as June 16, 2017, the date he signed the mediation

and confidentiality agreement. See Agreement at 4, R.R. at 743a. The parties

unsuccessfully attempted to resolve their dispute through mediation and a public

hearing was conducted on April 18, 2018. H.T., 4/18/18 at 1, R.R. at 90a; Agreement

at 2, R.R. at 741a. However, DuBoice first asserted in his petition for review, filed

with this Court on January 16, 2019, that Summerson’s participation in both

mediation and the public hearing prejudiced him. Petition for Review at 1, R.R. at

44a. Thus, this argument is waived. See Lomas v. Kravitz, 170 A.3d 380, 390 (Pa.

2017) (stating, “the law is clear” that a party must seek recusal of a jurist at the

earliest possible moment, i.e., when the party knows of the facts that form the basis

15

for a motion to recuse;” otherwise, “the party’s recusal issue is time-barred and

waived”); see also League of Women Voters of Pa. v. Commonwealth, 179 A.3d

1080, 1086 (Pa. 2018) (noting that “[t]he timeliness of [a recusal] application is

particularly troubling where a party seeks disqualification only after receiving an

adverse judgment”).

Accordingly, we affirm.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

16

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert DuBoice, :

Petitioner :

:

v. :

:

Pennsylvania Human Relations :

Commission, : No. 53 C.D. 2019

Respondent :

ORDER

AND NOW, this 23rd day of January, 2020, the December 18, 2018

final order of the Pennsylvania Human Relations Commission is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge