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.
2

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 crosstraining 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. 
3

Harrison’s first assignment was as a yard jockey2at 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 Ottawa3and 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 crosstraining was to benefit employees. Klinger also reported that, prior to 2013, crosstraining 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.
4

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. 
5

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).
6

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).
7

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 
8

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). 
9

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.
10

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.
11

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, WilcoxMcCurtain 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 
12

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)).
13

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.
14

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.
15

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.
16

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 . . . 
17

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 crosstrain 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 
18

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). 
19

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 crosstraining 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, 105a106a. 

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;
20

(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 
21

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 
22

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.
23

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 
24

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
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lazer Spot, Inc., :

Petitioner :

v. :

:

Pennsylvania Human Relations :

Commission, : No. 459 C.D. 2017

Respondent :

O R D E R

AND NOW, this 2

nd 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