             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lazer Spot, Inc.,                               :
                              Petitioner        :
                      v.                        :
                                                :
Pennsylvania Human Relations                    :
Commission,                                     :    No. 459 C.D. 2017
                      Respondent                :    Argued: December 7, 2017


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                          FILED: February 2, 2018

               Lazer Spot, Inc. (Lazer Spot) petitions this Court for review of the
Pennsylvania Human Relations Commission’s (PHRC) March 27, 2017 Final Order
directing Lazer Spot, inter alia, to cease and desist denying reasonable
accommodations to employees with disabilities and terminating employees’
employment because of their disabilities; to pay Matthew A. Harrison (Harrison)
$104,364.23 plus additional interest of 6% per annum from February 7, 2013 until
payment is made; to reimburse Harrison $10,880.00 for costs incurred pursuing his
claim; and to offer to reinstate Harrison as a yard jockey.1 Lazer Spot presents four

       1
          The PHRC further directed that if Harrison’s gross earnings from September 2016 to
March 27, 2017 were less than what Harrison would have made as a Lazer Spot employee, Lazer
Spot is to pay Harrison the difference; unless and until Lazer Spot reinstates Harrison, Lazer Spot is
to continue to pay the difference between what Harrison is currently earning and what Harrison
would make as a Lazer Spot employee; if Harrison declines Lazer Spot’s offer of reinstatement, all
front pay obligations cease; if Lazer Spot fails to reinstate Harrison during the two-year period
following March 27, 2017, Harrison shall make diligent efforts to find comparable work; and within
thirty days of the effective date of the PHRC’s order, Lazer Spot shall report to the PHRC on the
manner of its compliance with the terms of its order.
issues for this Court’s review: (1) whether Harrison has a non-job-related handicap or
disability; (2) whether Harrison was capable of driving an 18-wheeled tractor-trailer
over public roads without an accommodation; (3) whether participation in cross-
training that involved driving an 18-wheeled tractor-trailer over public roads or being
subject to temporary shuttle work assignments are essential functions of Lazer Spot’s
driver position; and, (4) whether Harrison mitigated his damages when he attended
the York Technical Institute (YTI) and did not look for work during that time period.
               On May 18, 2011, after seeing an internet advertisement specifically
seeking to fill a yard jockey position with Lazer Spot, Harrison submitted a job
application. Harrison interviewed with the Carlisle Area Manager Richard Klinger
(Klinger), and was informed that, as advertised, yard jockey was the available
position. When told he needed a Class A Commercial Driver’s License (CDL) and a
Pennsylvania Department of Transportation (DOT) medical card, Harrison showed
the requisite documentation. Lazer Spot hired Harrison on June 3, 2011.
               When Harrison completed Lazer Spot’s Post-Hire Questionnaire
(Questionnaire), Harrison indicated that he never had a disability outside those
specified on the Questionnaire, but did reveal he had experienced a neck injury and
surgery in 2005, knee surgery in 1989 and shoulder surgery in 1985. In response to
the question that asked whether he ever had a mental condition, Harrison responded
no. At this point, Harrison had not yet been diagnosed with Post Traumatic Stress
Disorder (PTSD). Subsequent to being hired, Klinger tested Harrison’s skills driving
a yard jockey tractor (Ottawa) in one of Lazer Spot’s customer’s lot, Reckett
Benckiser. During this driving test, Harrison was not asked to drive out of Reckett
Benckiser’s lot and, despite that the test was conducted entirely within Reckett
Benckiser’s lot area, Klinger checked off a number of items relating to Harrison’s
performance competency on a public road even though the items checked had not
been tested.
                                          2
             Harrison’s first assignment was as a yard jockey2 at Reckett Benckiser,
where he moved trailers from a ready-line to Reckett Benckiser’s dock and back.
The Reckett Benckiser site required the yard jockeys to drive the Ottawa3 and trailers
a short distance off-site to turn around. Harrison worked at the Reckett Benckiser
location for approximately four to five months, before he asked Klinger to transfer
him to the customer Americold’s site. The effective date of Harrison’s transfer to
Americold was February 6, 2012. At Americold, Harrison strictly moved trailers
with an Ottawa tractor from a ready-line to the customer’s dock and back within
Americold’s fenced area. He did not perform shuttle work.4
             While at both Reckett Benckiser and Americold, Harrison was a safe
driver and performed well. In a September 2011 evaluation, his supervisor noted that
Harrison was very helpful and that he would make a good lead.                  Harrison’s
September 2011 evaluation also indicated that he had been cross-trained at three to
four sites. At that point, Harrison had already cross-trained at Reckett Benckiser,
Caterpillar and Americold. Klinger testified that, in 2011, the purpose of cross-
training was to benefit employees. Klinger also reported that, prior to 2013, cross-
training had only occasionally been done in the Carlisle area, and that Klinger kept
informal records of which employees could be sent to other locations when
substitutes were needed.
             In the fall of 2012, Harrison attended a meeting with Klinger, Lazer
Spot’s North East Regional Manager David Mumbauer (Mumbauer), and Lazer
Spot’s North East Regional Vice President of Operations Jerry Edwards (Edwards),
during which cross-training was discussed, including cross-training spotters to

      2
        A yard jockey is a term used to describe employees that work within a yard. See
Reproduced Record at 412a.
      3
        An Ottawa is a truck used for jockeying services. See Reproduced Record at 415a.
      4
        Shuttling is moving product from one warehouse to another. See Reproduced Record at
404a.
                                            3
shuttle. At the meeting, Harrison revealed that he would not be able to shuttle with
an 18-wheeled tractor-trailer due to difficulties he has with PTSD and that he would
not endanger the lives of others or himself because of his PTSD. Given Harrison’s
request that he not be assigned driving over the public roads with an 18-wheeled
tractor-trailer, Mumbauer informed Harrison that he could cross-train at Reckett
Benckiser. Mumbauer told Harrison that his issue was not a problem, and that they
can work with him. Mumbauer agreed that it was possible to cross-train Harrison in a
way that did not require him to operate an 18-wheeled tractor-trailer over the public
roads.
             In February 2013, another meeting was held at which Harrison,
Mumbauer, Edwards and Klinger attended. The subject of the meeting was again
cross-training that included shuttle driving and that the prior arrangement with
Harrison had changed. Again, Harrison expressed concern about driving an 18-
wheeled tractor-trailer over the public roads and refused to do so. Harrison asked to
be permitted to continue cross-training without driving an 18-wheeled tractor-trailer
over the public roads. Klinger told Harrison that he would have to drive over the
public roads or be fired. Klinger then gave Harrison Lazer Spot’s General Counsel
Rhonda Wilcox-McCurtain’s (Wilcox-McCurtain) telephone number and told
Harrison to call her.
             Harrison called Wilcox-McCurtain and told her about his PTSD
symptoms and why they prevented him from driving an 18-wheeled tractor-trailer
over the public roads. During the conversation, Harrison relayed that Lazer Spot had
accommodated his PTSD since the fall of 2012.          Wilcox-McCurtain informed
Harrison that if he would not perform the assigned job, Lazer Spot would deem him
to have resigned from his employment. Harrison responded that he would not quit, to
which Wilcox-McCurtain replied, then it could be called an employment termination.


                                         4
When Harrison informed Wilcox-McCurtain that he would report to work, she replied
that he cannot because he does not work there any longer.
               Wilcox-McCurtain, Edwards and Lazer Spot’s Safety Vice President
Mark Clayton held a conference call and decided to terminate Harrison’s
employment. During the conference call, Wilcox-McCurtain expressed a possible
safety concern regarding Harrison continuing to work in a yard, spotting trailers.
This concern had been relayed to her from Edwards.                    After Wilcox-McCurtain
instructed Klinger to inform Harrison that his employment was terminated, Klinger
called Harrison to tell him of the decision. On the next scheduled work day, Harrison
appeared at the Americold gate and was denied access.                    Lazer Spot issued an
employment termination notice to Harrison reflecting that Harrison had resigned.
Upon receiving this notice, Harrison called Wilcox-McCurtain, insisted that he did
not quit and asked to be reinstated.
               On July 18, 2013, Harrison filed a Complaint with the PHRC. A public
hearing was held before a permanent hearing examiner (Hearing Examiner) on June
28, 29 and 30, 2016. On February 21, 2017, the Hearing Examiner concluded that
Harrison had proven that Lazer Spot discriminatorily denied an accommodation of
his disability, PTSD, and terminated his employment because of his disability in
violation of Section 5(a) of the Pennsylvania Human Relations Act (PHRA).5 On
March 27, 2017, the PHRC issued an Opinion and Final Order adopting the Hearing
Examiner’s Findings of Fact, Conclusions of Law, and Opinion. PHRC directed
Lazer Spot, inter alia, to: cease and desist denying reasonable accommodations to
employees with disabilities and terminating employees’ employment because of their
disabilities; pay Harrison $104,364.23 plus additional interest of 6% per annum from
February 7, 2013 until payment is made; reimburse Harrison $10,880.00 for costs


      5
          Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 955(a).
                                                 5
incurred pursuing his claim; and offer to reinstate Harrison as a yard jockey. Lazer
Spot appealed to this Court.6
              Lazer Spot first argues that Harrison does not have a non-job-related
handicap or disability because he is not substantially limited in the major life
activities of sleeping and working.              The PHRC and Harrison7 (collectively,
Respondents) rejoin that substantial evidence supports the PHRC’s conclusion that
Harrison was substantially limited in the major life activities of sleeping and working
under the Americans with Disabilities Act (ADA)8 Amendments Act of 2008
(ADAAA).9
              Initially, Section 5 of the PHRA states, in relevant part:

              It shall be an unlawful discriminatory practice, unless based
              upon a bona fide occupational qualification . . . :
              (a) For any employer because of the . . . non-job[-]
              related handicap . . . of any individual . . . to discharge
              from employment such individual . . . or to otherwise
              discriminate against such individual . . . with respect to
              compensation, hire, tenure, terms, conditions or privileges
              of employment . . . , if the individual . . . is the best able and
              most competent to perform the services required.

43 P.S. § 955 (emphasis added). Further, Section 4(p.1) of the PHRA provides:



       6
          “Our scope of review is limited to determining whether the PHRC violated constitutional
rights, made findings of fact which are not supported by substantial evidence, or committed an error
of law.” Pa. Bd. of Prob. & Parole v. Pa. Human Relations Comm’n, 66 A.3d 390, 395 n.9 (Pa.
Cmwlth. 2013).
        7
          By July 5, 2017 order, this Court granted Harrison’s application to intervene.
        8
          42 U.S.C. §§ 12101-12213.
        9
          On September 25, 2008, Congress enacted the ADAAA, effective January 1, 2009, in order
to reinstate a broad scope of protection under the ADA. Significantly, the ADAAA amended the
definition of “disability,” making it easier for an individual to establish that he or she has a
disability under the ADA. “Although . . . the ADAA[A] [ ] made it easier to prove a disability,
[Harrison] must still show a substantial limitation. See [Section 4(a)(1)-(2) of the ADA,] 42 U.S.C.
§ 12102(1)-(2).” Cunningham v. Nordisk, 615 Fed. App’x 97, 100 (3d Cir. 2015).
                                                 6
             The term ‘handicap or disability,’ with respect to a person,
             means:
             (1) a physical or mental impairment which substantially
             limits one or more of such person’s major life activities;
             (2) a record of having such an impairment; or
             (3) being regarded as having such an impairment, but
             such term does not include current, illegal use of or
             addiction to a controlled substance, as defined in section
             102 of the Controlled Substances Act (Public Law 91-513,
             21 U.S.C. § 802).

43 P.S. § 954(p.1) (text emphasis added).         Section 44.4(ii)(B) of the PHRC’s
Regulations defines “‘[m]ajor life activities’ [as] functions such as caring for one’s
self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning
and working.” 16 Pa. Code § 44.4(ii)(B) (emphasis added).

             In order to make out a prima facie case of disability
             discrimination under the ADA and PHRA, a plaintiff must
             establish that s/he (1) has a ‘disability,’ (2) is a ‘qualified
             individual,’ and (3) has suffered an adverse employment
             action because of that disability. Gaul v. Lucent Techs.
             Inc., 134 F.3d 576, 580 (3d Cir. 1998).

Buskirk v. Appollo Metals, 307 F.3d 160, 166 (3rd Circ. 2002) (emphasis added;
footnote omitted). Substantially identical to the PHRA, Section 4(a)(1) of the ADA
defines “disability” as “(A) a physical or mental impairment that substantially limits
one or more major life activities . . . ; (B) a record of such an impairment; or (C)
being regarded as having such an impairment (as described in paragraph (3)).” 42
U.S.C. § 12102(1) (emphasis added). “For purposes of paragraph (1), major life
activities include, but are not limited to . . . sleeping . . . and working.” 42 U.S.C. §
12102(2)(A) (emphasis added).
             Lazer Spot maintains that the ADAAA does not apply to the instant
matter because the Pennsylvania General Assembly did not amend the PHRA to
match the ADAAA’s changes. Although this Court is not bound in its interpretation
                                           7
of the PHRA by federal interpretations of parallel provisions, Pennsylvania courts
generally interpret the PHRA in accordance with its federal counterparts. Kelly v.
Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996); see also Toth v. Slippery Rock Univ.
of Pa. (Pa. Cmwlth. No. 351 C.D. 2010, filed October 20, 2010);10 Stultz v. Reese
Bros., Inc., 835 A.2d 754, 759 (Pa. Super. 2003) (“Moreover, the PHRA definition of
‘disability’ is substantially identical to the definition of ‘disability’ under the ADA.”);
Imler v. Hollidaysburg Am. Legion Ambulance Serv., 731 A.2d 169, 173 (Pa. Super.
1999) (“The PHRA and ADA are interpreted in a co-extensive manner. This is
because the PHRA and ADA deal with similar subject matter and are grounded on
similar legislative goals.”).    Indeed, Section 44.2(b) of the PHRC’s Regulations
expressly provides: “This chapter will be construed consistently with other relevant
[f]ederal and [s]tate laws and regulations except where the construction would
operate in derogation of the purposes of the [PHRA] and this chapter.” 16 Pa. Code §
44.2(b).
             Having determined that “disability” is substantially the same under the
PHRA and the ADA, this Court now examines whether substantial evidence supports
the PHRC’s conclusion that Harrison suffered a non-job-related handicap or disability
under both the PHRA and the ADA. Specifically, we address whether Harrison’s
PTSD substantially limits his major life activities of sleeping and working.
“Substantial evidence is such relevant evidence that a reasonable mind might accept
as adequate to support the conclusion reached.” New Corey Creek Apartments, Inc.
v. Pa. Human Relations Comm’n, 865 A.2d 277, 280 (Pa. Cmwlth. 2004).
             First, Section 1630.2(j)(3)(iii) of the Equal Employment Opportunity
Commission’s (EEOC) Regulations expressly deems “[PTSD] . . . [as] substantially


      10
           We acknowledge that this Court’s unreported memorandum opinions may be cited “for
[their] persuasive value, but not as a binding precedent.” Section 414(a) of the Commonwealth
Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
                                             8
limit[ing] brain function, [and] . . . [possibly] substantially limit[ing] additional major
life activities not explicitly listed above.” 29 C.F.R. § 1630.2(j)(3)(iii).11 Here, the
parties do not dispute that Harrison has PTSD. With respect to whether his PTSD
substantially limits his sleeping, a review of the record reveals that Harrison
presented extensive evidence concerning the effect of his PTSD on his sleeping.
However, Harrison did not offer any evidence to prove that Lazer Spot was aware of
said limitations, nor do Respondents now argue that Lazer Spot had any knowledge
of the same.

                For purposes of proving ADA discrimination, it is
                important to distinguish between an employer’s
                knowledge of an employee’s disability versus an
                employer’s knowledge of any limitations experienced by
                the employee as a result of that disability. This
                distinction is important because the ADA requires
                employers to reasonably accommodate limitations, not
                disabilities. ‘The determination of whether an individual
                has a disability is not necessarily based on the name or
                diagnosis of the impairment the person has, but rather on
                the effect of that impairment on the life of the individual.’
                29 C.F.R. [§] 1630.2(j), App. (1995); [Section 5(a)(a)(5)(A)
                of the ADA,] 42 U.S.C. § 12112(a)(5)(A) (‘[T]he term
                ‘discriminate’ includes . . . not making reasonable
                accommodations to the known physical or mental
                limitations of an otherwise qualified individual with a
                disability. . . .’) (emphasis added); 29 C.F.R. [§] 1630.9,
                App. (1995) (‘Employers are obligated to make reasonable
                accommodations only to the physical or mental limitations
                resulting from the disability that is known to the
                employer.’) (emphasis added).

Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 164 (5th Cir. 1996); see also
Becknauld v. Dep’t of Agriculture (Pa. Cmwlth. No. 678 C.D. 2016, filed January 4,
2017); Toth. Thus, despite whether substantial evidence supports the conclusion that
Harrison’s PTSD substantially limited his sleeping, the fact that Lazer Spot was not

      11
           There is no similar provision in the PHRC’s Regulations.
                                                 9
aware of that limitation precludes a finding of discrimination based thereon.
Accordingly, the PHRC erred in concluding that Harrison was disabled on account of
his PTSD substantially limiting his sleep.12
               Next, this Court addresses whether Harrison’s PTSD substantially
limited his ability to work. Lazer Spot argues that Harrison’s PTSD only prevented
him from performing one specific job and, thus, did not qualify as a non-job-related
handicap or disability. Respondents rejoin that this issue was addressed by the
United States Appeals Court in Best v. Shell Oil Co., 107 F.3d 544 (7th Cir. 1997).
               In Best, the employer argued, as Lazer Spot does,

               that the evidence shows only that Best could not drive
               Peterbilt trucks with a particular clutch configuration, but
               that he was able easily to work as a truck driver in other
               kinds of vehicles. This compels a finding . . . that Best’s
               disability did not interfere with a major life activity, and
               thus that he was not a ‘qualified individual with a disability’
               within the meaning of the ADA.

Id. at 548. However, the Best Court concluded that the allegations (i.e., Best’s knee
injury made it painful for him to drive employer’s trucks with a clutch, a doctor
recommended that Best consider alternative work duties on a full-time basis for the
future, and during a Driver Performance Evaluation Best was told that he was not
safe to drive and should not be driving) were sufficient that a trier of fact could find
that Best’s “injury [impacted] the major life activity of working.” Id.
               Here, the parties do not dispute that Harrison has PTSD and because of
that condition he informed Lazer Spot he could not drive an 18-wheeled tractor-trailer


       12
           Although the ADA did not set forth a list of major life activities prior to the ADAAA, the
EEOC’s Regulations under the ADA defined major life activities to mean functions which included,
inter alia, working but not sleeping. Similarly, the PHRA’s Regulations defined major life
activities as including, inter alia, working but not sleeping. See 16 Pa. Code § 44.4. Given this
Court’s disposition of this issue, the fact that sleeping is not included as a major life activity in the
PHRA’s Regulations is of no moment in the instant case.
                                                  10
on a public roadway. See Reproduced Record (R.R.) at 135a-136a. Neil S. Kaye,
M.D. (Dr. Kaye), who is board certified in psychiatry, forensic psychiatry and
geriatric psychiatry, testified that “Harrison clearly has [PTSD] directly related to his
war experience.” R.R. at 353a. He further confirmed that “Harrison’s PTSD is
triggered when he is in the kind of cab driving in a large vehicle like an 18-wheeler
on an open road, because that reminds him of his experiences in combat.” R.R. at
363a. Although Lazer Spot accommodated Harrison’s disability in 2012, see R.R. at
136a-137a, in 2013, he was told if he did not drive an 18-wheeled tractor-trailer on a
public roadway, he would be deemed to have resigned from his employment. See
R.R. at 698a. Importantly, upon discussing Harrison’s PTSD, as in Best, Wilcox-
McCurtain expressed safety concerns about Harrison operating any vehicles within
the Americold yard. See R.R. at 548a. Lazer Spot’s concern, and final reason for
Harrison’s employment termination, that Harrison’s PTSD makes him unsafe to drive
any vehicle, conflicts with its argument that his ability to work is not substantially
limited because his PTSD only effects his driving of 18-wheelers.
             The Hearing Officer opined:

             In this case, the symptoms of Harrison’s impairment are
             relatively unique as they relate to leaving him unable to
             drive an 18[-]wheeler over the road without attendant
             potential harm. The fundamental idea that Harrison’s
             PTSD could result in harm to either himself or others on the
             road clearly disqualifies Harrison from a broad spectrum of
             trucking industry jobs. Harrison’s real work opportunities
             are substantially limited and his occupational base is largely
             reduced because of his PTSD symptoms. Accordingly,
             Harrison is substantially impaired in the major life activity
             of working.

Hearing Officer Op. at 39. We discern no error in this analysis. Accordingly,
pursuant to both the PHRA and the PHRC’s Regulations, and the ADA and the



                                           11
EEOC’s Regulations, because Harrison’s PTSD substantially limits his work, we hold
that Harrison has a non-job-related handicap or disability.
              Notwithstanding whether Harrison’s PTSD substantially limits his
ability to work, substantial evidence supports the conclusion that Lazer Spot regarded
Harrison as having an impairment.13 Section 44.4(ii) (D) of the PHRC’s Regulations
defines
              ‘[i]s regarded as having an impairment’ [as] ha[ving] a
              physical or mental impairment that does not substantially
              limit major life activities but that is treated by an employer
              or owner, operator or provider of a public accommodation
              as constituting a limitation; has a physical or mental
              impairment that substantially limits major life activities
              only as a result of the attitudes of others toward the
              impairment; or has none of the impairments defined in
              subparagraph (i)(A) but is treated by an employer or owner,
              operator or provider of a public accommodation as having
              an impairment.

16 Pa. Code § 44.4(ii)(D). Similarly, Section 4a(3)(A) of the ADA provides:
              An individual meets the requirement of ‘being regarded as
              having such an impairment’ if the individual establishes that
              he or she has been subjected to an action prohibited under
              this chapter because of an actual or perceived physical or
              mental impairment whether or not the impairment limits or
              is perceived to limit a major life activity.

42 U.S.C. § 12102(3)(A).
              An individual rejected from a job because of the ‘myths,
              fears and stereotypes’ associated with disabilities would be
              covered under this part of the definition of disability,

       13
           The PHRC adopted the Hearing Examiner’s Findings of Fact, Conclusions of Law, and
Opinion. See PHRC Final order. Although the PHRC did not address whether Harrison was
unlawfully discriminated against on the basis of being regarded as having an impairment, “where
grounds for affirmance exist,” this Court “may affirm on other grounds.” FP Willow Ridge Assocs.,
L.P. v. Allen Twp., 166 A.3d 487, 496 n.11 (Pa. Cmwlth. 2017) (quoting Kutnyak v. Dep’t of Corr.,
748 A.2d 1275, 1279 n.9 (Pa. Cmwlth. 2000)).


                                               12
             whether or not the employer’s or other covered entity’s
             perception were shared by others in the field and whether or
             not the individual’s actual physical or mental condition
             would be considered a disability under the first or second
             part of this definition. As the legislative history notes,
             sociologists have identified common attitudinal barriers
             that frequently result in employers excluding individuals
             with disabilities. These include concerns regarding
             productivity, safety, insurance, liability, attendance, cost of
             accommodation and accessibility, workers’ compensation
             costs, and acceptance by coworkers and customers.

Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1132 (10th Cir. 2003) (emphasis
added) (quoting Section 1630.2(l) of the EEOC’s Regulations, 29 C.F.R.
§1630.2(l)).14
             Here, Edwards testified:
             Q. And when [] Harrison expressed to you that he [could
             not drive an 18-wheeler on the road] because of PTSD, that
             concerned you, didn’t it?
             A. Yes, it did.
             Q. And it concerned you specifically because it raised a
             safety concern; isn’t that correct?
             A. That’s correct.
             Q. In response to that concern, you didn’t contact []
             Harrison’s doctor at any point, did you?
             A. No, I did not.
             Q. And you didn’t contact Lazer Spot’s doctor at that point
             to discuss your concern, did you?
             A. No, I did not.
             Q. Did you do any [i]nternet research on PTSD and driving
             a spotter truck?
             A. No, I did not.
      14
         As discussed above, because of the substantial similarities between the PHRA and the
ADA, this Court looks to federal law to guide its interpretation. See Kelly; Toth; Imler.
                                             13
Q. Did you review the safety record of [] Harrison to
determine if he was having issues with safely performing
his job?
A. Yes, I did.
Q. You did? And what did you find?
A. Nothing. I mean, he was a safe driver when he was
driving.
Q. So he had been working at Americold or at Lazer Spot
for roughly a year and a half, and there were no safety
concerns on his record?
A. No, there was not.
Q. Did you review any studies pertaining to PTSD and how
that might affect drivers in the yard?
A. No, I did not.
Q. So the concern that you had regarding [] Harrison’s
ability to do his job safely, that was just an assumption on
your part; correct?
A. No, it’s not. In explaining, [] Harrison said that he
couldn’t drive over the road because he may have an
episode on the road. Then my concern became he may have
an episode on the yard as well. That was my safety
concern.
Q. But you were just speculating that he would have
problems in the yard; right?
A. It only came from [] Harrison’s conversation that he
couldn’t drive over the road.
Q. But he didn’t tell you that he had concerns, safety
concerns about driving in the yard, did he?
A. No, he did not.
Q. And you discussed these concerns with your human
resources department; correct?
A. Yes, and general counsel.

                               14
              Q. And you didn’t suggest that your company obtain more
              information about [] Harrison’s condition?
              A. No, I did not.
              Q. And after you conveyed your concerns to the decision
              makers at Lazer Spot, Lazer Spot terminated []
              Harrison’s employment; isn’t that correct?
              A. That’s correct.
              Q. And you were involved in that decision?
              A. It was a joint decision.
              Q. Do you recall exactly what [] Harrison told you about his
              concerns driving over the road?
              A. Not the conversation. I can’t recall every word and
              detail.
              Q. Do you recall him telling you that his concerns were
              specific to driving in a day cab or an 18[-]wheeler?
              A. He just said 18[-]wheeler over the road.

R.R. at 535a-537a (emphasis added). Thus, upon hearing that Harrison’s PTSD
affected his driving an 18-wheeler on the road, Lazer Spot treated him as if his PTSD
limited him from any driving whatsoever.              Consequently, Lazer Spot regarded
Harrison as having an impairment and unlawfully discriminated against him on that
basis in terminating his employment.
              Lazer Spot further argues that Harrison did not need an accommodation
because he was capable of driving an 18-wheeled tractor-trailer on the public road.
Specifically, Lazer Spot contends that because: (1) Harrison never reported his PTSD
to his previous employer KBR Transportation (KBR);15 (2) Harrison passed a 2010
DOT medical examination; (3) Harrison never relinquished his Class A CDL; (4)

       15
          KBR is a civilian contractor that provided services to the United States government,
including truck driving, in Iraq. Harrison worked in a combat zone in Iraq during his employment
with KBR. See R.R. at 87a.
                                              15
Harrison admitted that Lazer Spot required all of its drivers to have a Class A CDL
and a DOT medical card; (5) in 2012, Harrison obtained a two-year DOT medical
card; and (6) in 2013, Harrison submitted to another DOT medical exam, he was
capable of driving an 18-wheeler without accommodation. We disagree.
            First, it was Harrison’s work at KBR that triggered his PTSD symptoms
and made him realize he could no longer drive 18-wheeled tractor-trailers over public
roadways. See R.R. at 90a-91a. Further, his PTSD was not diagnosed until after he
had left KBR. See R.R. at 110a. That Lazer Spot requires a Class A CDL and a DOT
medical card is irrelevant to whether driving an 18-wheeler on a public roadway is an
essential job function. Likewise, Harrison’s mere possession of those items does not
signify that he can drive an 18-wheeled tractor-trailer on a public roadway. This fact
is especially true here, where Lazer Spot required Harrison to obtain said documents,
yet Harrison only applied for and was offered a yard jockey position, which he
successfully worked from 2011 until 2013.
            Within the context of employment discrimination involving
            persons with a disability, it is somewhat intuitive that if a
            person wants and/or needs a reasonable accommodation to
            successfully perform a job, one must first have a disability,
            one must then inform the employer of the existence of the
            disability, and to the extent that one wants/needs a
            reasonable accommodation related to the disability, one
            should request a reasonable accommodation. Thereafter,
            with the assistance of the employer, one must decide what
            would be a reasonable accommodation under the
            circumstances. The ADA is quite explicit in this regard.
            As used in subsection (a) of this section, the term
            ‘discriminate against a qualified individual on the basis of
            disability’ includes—
                .....
                 (5)(A) not making reasonable accommodations to
                the known physical or mental limitations of an
                otherwise qualified individual . . . who is an . . .

                                         16
                   employee, unless such covered entity can
                   demonstrate that the accommodation would impose
                   an undue hardship on the operation of the business
                   of such covered entity[.]
             [Section 5(b)(b) of the ADA,] 42 U.S.C. § 12112(b)
             (emphasis added); see also ADA Regulations, 29 C.F.R. [§]
             1630.9.

Allen v. State Civil Comm’n, 992 A.2d 924, 931-32 (Pa. Cmwlth. 2010).
             These rules are consistent with the statute which says that
             the employer must make reasonable accommodations to an
             employee’s ‘known’ disability. [Section 5(a)(b)(5)(A) of
             the ADA,] 42 U.S.C. § 12112(b)(5)(A). What matters
             under the ADA are not formalisms about the manner of the
             request [for reasonable accommodation], but whether the
             employee . . . provides the employer with enough
             information that, under the circumstances, the employer can
             be fairly said to know of both the disability and desire for
             an accommodation.

Allen, 992 A.2d at 932 (quoting Taylor v. Phoenixville Sch. Dist. 184 F.3d 296, 313
(3d Cir. 1999)).

             Here, Lazer Spot argues Harrison does not need an accommodation
because Harrison’s PTSD does not preclude him from working as a truck driver
generally and driving an 18-wheeler specifically. However, when faced with the
option of giving Harrison a reasonable accommodation, i.e., permitting him to cross-
train at a site with a gated yard and no public roads, see R.R. at 534, which Lazer
Spot had provided the first time it was made aware of Harrison’s PTSD, see R.R. at
532a, suddenly Lazer Spot determined upon Harrison’s refusal to drive an 18-wheeler
on a public road, that Harrison was not safe to drive any vehicle. See R.R. at 535a.
This conclusion was made notwithstanding that: Lazer Spot was aware Harrison had
PTSD; Harrison had requested and received a reasonable accommodation therefor,
see R.R. at 532a; after reviewing Harrison’s safety records, it was determined “he
was a safe driver when driving[,]” R.R. at 535a; and there was no reason Harrison

                                          17
could not continue to work specifically at Americold.            See R.R. at 534a.
Accordingly, this Court holds that Lazer Spot, by not providing Harrison a reasonable
accommodation for his PTSD, or demonstrating that a reasonable accommodation
would impose an undue hardship on Lazer Spot’s operations, has unlawfully
discriminated against Harrison. See Allen.
            Lazer Spot next asserts that participation in cross-training that involved
driving an 18-wheeled tractor-trailer over public roads or being subject to temporary
assignments to perform shuttle work are essential functions of Lazer Spot’s driver
position. We disagree.
            The PHRA and the PHRC’s Regulations do not define essential
functions. Pursuant to Section 1630.2(n)(1) of the EEOC’s Regulations, “[t]he term
essential functions means the fundamental job duties of the employment position
the individual with a disability holds or desires. The term ‘essential functions’ does
not include the marginal functions of the position.”       29 C.F.R. § 1630.2(n)(1)
(emphasis added).     Further, Section 1630.2(n)(2) of the EEOC’s Regulations
provides:

            A job function may be considered essential for any of
            several reasons, including but not limited to the following:
            (i) The function may be essential because the reason the
            position exists is to perform that function;
            (ii) The function may be essential because of the limited
            number of employees available among whom the
            performance of that job function can be distributed; and/or
            (iii) The function may be highly specialized so that the
            incumbent in the position is hired for his or her expertise or
            ability to perform the particular function.

29 C.F.R. § 1630.2(n)(2).




                                         18
            Here, the record evidence revealed that Harrison’s yard jockey job did
not require driving an 18-wheeled tractor-trailer over public roads or being subject to
temporary shuttle work assignments. Moreover, Lazer Spot did not present any
evidence that a yard jockey position exists to perform cross-training that involves
driving an 18-wheeled tractor-trailer over public roads or shuttle work. Indeed, Lazer
Spot’s Employee Handbook provides: “Where possible, we attempt to cross-train our
employees so that they can perform as many tasks as possible.”           R.R. at 811a
(emphasis added). Clearly, this language is not mandatory requiring cross-training.
Nor did Lazer Spot establish that there were a limited number of employees available
to perform cross-training involving driving an 18-wheeled tractor-trailer over public
roads or shuttle work, or that Harrison was hired because of his expertise in cross-
training involving driving an 18-wheeler over public roads or shuttle work. To the
contrary, other than providing a CDL, Harrison was never asked about or directed to
drive an 18-wheeled tractor–trailer and/or on a public road. See R.R. at 100a-102a.
He was shown a jockey truck, tested on a jockey truck (without driving on a public
road), and thereafter solely worked as a yard jockey. See R.R. at 102a-103a, 105a-
106a.
            Finally, Section 1630.2(n)(3) of the EEOC’s Regulations sets forth:

            Evidence of whether a particular function is essential
            includes, but is not limited to:
            (i) The employer’s judgment as to which functions are
            essential;
            (ii) Written job descriptions prepared before advertising
            or interviewing applicants for the job;
            (iii) The amount of time spent on the job performing the
            function;
            (iv) The consequences of not requiring the incumbent to
            perform the function;

                                          19
            (v) The terms of a collective bargaining agreement;
            (vi) The work experience of past incumbents in the job;
            and/or
            (vii) The current work experience of incumbents in similar
            jobs.

29 C.F.R. § 1630.2(n)(3) (emphasis added). Here, Harrison expressly testified that
Lazer Spot’s advertisement specified “a vacancy for a yard jockey,” R.R. at 97a-98a,
that he applied for the “[y]ard jockey” position, R.R. at 98a-99a, see also R.R. at
992a (Harrison’s Employment Application), and during his job interview Klinger
specifically offered him the “job as a yard jockey.” R.R. at 100a, 102a. Harrison’s
first assignment was to operate a jockey truck at Reckitt Benckiser. See R.R. at 103a.
On February 6, 2012, Harrison was transferred to Americold. According to the
“Change of Position or Relocation” form, the transfer was a “[r]elocation” not a
change of position. R.R. at 869a. Harrison worked at Americold until his discharge
on February 7, 2013.     Pursuant to the parties’ Joint Stipulations, Exhibits, and
Witness List:
            7. The Americold property is completely enclosed within a
            fence surrounding the property[.]
            8. Americold is a property not considered public roadway or
            a highway open to public travel for CDL purposes.
            9. In connection with his assignment to work in the yard at
            Americold, [Harrison] did not operate a commercial motor
            vehicle on a public roadway or a highway open to public
            travel.

R.R. at 791a. Thus, Harrison was not required at any time during his employment
with Lazer Spot to drive an 18-wheeler on a public roadway or perform shuttle work.
Further, none of Lazer Spot’s witnesses testified as to any consequences Lazer Spot
would face if Harrison did not cross-train on 18-wheeled tractor-trailers over public
roads or perform shuttle work. Rather, Edwards confirmed that there was no reason

                                         20
that “Harrison could not have continued to work specifically at Americold[.]” R.R. at
534a.
              Finally, the United States Appeals Court in Simon v. St. Louis County,
Missouri, 656 F.2d 316 (8th Cir. 1981) held, regarding essential functions: “If not
uniformly required, they should not be considered actual requirements for all
positions.” Id. at 321. In the instant case, the Hearing Officer explained:

              Here, the simple fact is that Lazer Spot had employees who
              were exempt from the more rigorous cross-training
              program. Lazer Spot had several customer sites that were
              generally described as ‘remote isolated’ sites. Employees at
              those sites would never be required to drive 18[-]wheelers
              over the road. . . . Lazer Spot cannot say that driving an
              18[-]wheeler over public roads is mandatory for one
              employee and not others.
              Considering the totality of the circumstances regarding
              spotting and shuttle duties actually performed by Lazer Spot
              employees, neither the requirement of cross-training that
              would include driving an 18[-]wheeler over public roads
              nor being potentially assigned duties of driving an 18[-
              ]wheeler over public roads are deemed essential functions
              of the job Harrison held. Those functions are not
              fundamental but deemed marginal.

Hearing Officer Op. at 52-53.          We discern no error in the Hearing Officer’s
reasoning. Accordingly, under these circumstances, we hold that participation in
cross-training that involved driving an 18-wheeled tractor-trailer over public roads or
being subject to temporary shuttle work assignments are not essential functions of
Lazer Spot’s yard jockey position.
              Lastly, Lazer Spot contends that Harrison did not mitigate his damages
during the time period he attended YTI and did not look for work. Lazer Spot cites
Keller v. Connaught, Inc. (E.D. Pa. No. 96-177, filed February 10, 1997)16 for its

        16
           This Court recognizes that Keller is a non-reported, non-precedential opinion and is
distinguishable from the case sub judice for the reasons stated by the Hearing Examiner. See
                                              21
holding: “The mitigation of damages requirement has been sharpened in the
education-after-termination cases and obligates the plaintiff, when in school, to
remain ready, willing and available to enter the work force.” Id., slip op. at 3. In
support of its position, Respondents rely upon Equal Employment Opportunity
Commission v. Local 638, 674 F. Supp. 91 (S.D.N.Y. 1987), which held that a court
must consider “whether an individual’s furtherance of his education is inconsistent
with his responsibility ‘to use reasonable diligence in finding other suitable
employment.’” Id. at 104 (quoting Ford Motor Co. v. Equal Emp’t Opportunity
Comm’n, 458 U.S. 219, 231 (1982)).
              The Local 638 Court explained:

              An individual who abandons his willingness to search for
              and return to work and opts to attend school instead
              generally does not meet his duty to mitigate damages during
              the time he is in school. On the other hand, one who
              chooses to attend school only when diligent efforts to find
              work prove fruitless, or who continues to search for work
              even while enrolled in school, does meet the duty.

Id. at 104 (citations omitted).
              With respect to his YTI enrollment, Harrison testified:

              Q. What did you do after you left Kloeckner [Metals]?[17]
              Did you continue to look for work?
              A. Yes, sir.
              Q. You didn’t find anything within your skill set; is that
              right?
              A. No, sir.
              Q. So did you enroll in school?
              A. Yes, sir, I went to YTI . . . .

Hearing Officer Op. at 61. However, because Keller is the basis for Lazer Spot’s argument, it is
included for that purpose only.
       17
          Harrison worked at Kloeckner Metals after Lazer Spot discharged him. See R.R. at 148a.
                                              22
            Q. What was your purpose in going back to school?
            A. I figured that since ---. Yeah, I had --- the [Veteran’s
            Administration] was offering me college, basically, free
            college, that I ---.
            Q. A trade, essentially?
            A. Yes, sir, that, you know, I wanted to start up - start
            something new, start something fresh. And I was looking
            through different things, and I saw that they have
            electrician. So I figured, well, why not?
            Because that way, I’ll be able to rewire my house, put a
            fan or light in and I won’t have to pay somebody to do
            that. I’d rather be able to do that myself and get it
            done.
            ....
            Q. Were there other reasons why you enrolled at YTI?
            A. Yes, sir, it’s to start a new life, if you want to call it that.
            You know, start from the ground up, I guess.
            Q. And was that a full[-]time enrollment?
            A. Yes, sir, a full five days a week.
            Q. You weren’t working during the time you were at YTI;
            is that right?
            A. No, sir.

R.R. at 150a-152a (emphasis added). Harrison further related that he did not have
time to look for employment while he matriculated at YTI because his school
enrollment was full-time. See R.R. at 204a. He explained that after he finished the
program, he looked for work as an electrician but discovered that he would first have
to work as a low-paid apprentice, which he could not afford. See R.R. at 152a.
            Based on the above testimony, this Court cannot conclude that Harrison
mitigated his damages while enrolled in school full-time. Considering Harrison
admitted that he was not looking for work while he was enrolled in school and that he

                                            23
chose the electrician trade for personal reasons, without knowing or exploring the
employment opportunities or lack thereof that would follow, this Court holds that
Harrison’s “furtherance of his education [wa]s inconsistent with his responsibility ‘to
use reasonable diligence in finding other suitable employment.’” Local 638, 674 F.
Supp. at 104 (quoting Ford Motor Co., 458 U.S. at 231).
             For all of the above reasons, the PHRC’s March 27, 2017 Final Order is
reversed with respect to Harrison’s mitigation of damages while enrolled in YTI, and
affirmed in all other respects.


                                      ___________________________
                                      ANNE E. COVEY, Judge




                                          24
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lazer Spot, Inc.,                          :
                           Petitioner      :
                    v.                     :
                                           :
Pennsylvania Human Relations               :
Commission,                                :     No. 459 C.D. 2017
                      Respondent           :


                                        ORDER

             AND NOW, this 2nd day of February, 2018, the Pennsylvania Human
Relations Commission’s March 27, 2017 Final Order is reversed with respect to
Matthew A. Harrison’s mitigation of damages while enrolled in York Technical
Institute, and affirmed in all other respects.


                                         ___________________________
                                         ANNE E. COVEY, Judge
