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CONSUMERS MOTOR MART v. COMMONWEALTH PENNSYLVANIA (07/28/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 28, 1987.

CONSUMERS MOTOR MART, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION, RESPONDENT. JOYCE M. PARR, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION, RESPONDENT

Appeals from the Order of the Pennsylvania Human Relations Commission, in cases of Joyce M. Parr v. Consumers Motor Mart, Docket Nos. E-25670-D, E-26387-D and E-27659-D, dated July 2, 1986.

COUNSEL

Michael R. Ford, Gallagher & Ford, for petitioner/intervenor, Consumers Motor Mart.

Gary M. Davis, Davis & Abramovitz, for petitioner/intervenor, Joyce M. Parr.

William R. Fewell, Jr., Assistant Chief Counsel, for respondent, Pennsylvania Human Relations Commission.

Judges MacPhail and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail. Judge Colins dissents.

Author: Macphail

[ 108 Pa. Commw. Page 60]

Consumers Motor Mart (Employer) petitions for our review of the decision of the Pennsylvania Human Relations Commission (Commission) that Employer impermissibly discriminated against Joyce M. Parr (Complainant) in her employment.*fn1 We affirm.

[ 108 Pa. Commw. Page 61]

Complainant, a black female, was hired in July, 1981 by Employer as a salesperson. Her duties included selling to automobile dealers, and related businesses, advertising, photographing automobiles, and writing and proofreading advertising copy. Complainant's relationship with her Employers, Mr. & Mrs. Ferrone, was satisfactory until the spring of 1983. Suddenly, in April, 1983, Complainant received two written reprimands and in May, 1983, she received another. The only other salesperson employed by Employer in the spring of 1983,*fn2 Christine Guthrie, a white woman, received only one written reprimand.*fn3 In May, 1983, Complainant's sales territory was reduced by approximately fifty percent and reassigned to a part-time white employee. Mr. Ferrone testified that the magazine needed more sales due to increased competition and therefore more salespeople were being hired and territories were being reduced in an effort to more fully cover the magazine's sales area. However, Christine Guthrie's sales territory was not reduced.

On June 3, 1983, Complainant filed a complaint with the Commission alleging racial harassment. Mr. & Mrs. Ferrone were served with the complaint and very shortly thereafter Complainant was discharged. On August 26, 1983, Complainant filed a second complaint alleging retaliatory discharge, and on February 9, 1984,

[ 108 Pa. Commw. Page 62]

She filed a third complaint alleging the Ferrones had impermissibly interfered with her unemployment compensation claim.

A hearing examiner received testimony from the parties for two days and then issued her findings of fact, conclusions of law, and opinion which were adopted in full by the Commission. The hearing examiner concluded that Complainant had proved a prima facie case of racial harassment and of retaliatory discharge but had not proved a prima facie case of impermissible interference with her unemployment compensation claim. Further, the hearing examiner rejected as pretextual the reasons offered by Employer to justify its conduct.

Employer appeals here the Commission's findings of racial harassment and retaliatory discharge. Specifically, Employer argues that the Commission's findings that it engaged in racial harassment and retaliatory discharge are unsupported by substantial evidence. In addition, Employer argues that Complainant failed to prove that the reasons it offered for its actions were pretext. Complainant has cross-appealed from the Commission's order insofar as it failed to award her counsel fees. On motion of Complainant, the two appeals were consolidated on October 22, 1986.

Preliminarily, we note that in a case such as this, Complainant bears the burden of proving a prima facie case. Employer may then rebut the inference of discrimination by producing evidence of a legitimate, non-discriminatory reason for its conduct. If this is done, Complainant must then show, by a preponderance of the evidence, that the reasons offered by Employer to justify its conduct are a pretext. See Beaver Cemetery v. Pennsylvania Human Relations Commission, 107 Pa. Commonwealth Ct. 190, 528 A.2d 282 (1987).

[ 108 Pa. Commw. Page 63]

With this in mind, and aware of our narrow scope of review,*fn4 we shall now address Employer's arguments.*fn5 With respect to the racial harassment claim, Employer argues that there is no substantial evidence to support the Commission's findings that Complainant was subjected to adverse employment consequences and that persons not of Complainant's protected class but otherwise

[ 108 Pa. Commw. Page 64]

    similarly situated were not subject to those same adverse consequences. With respect to the retaliatory discharge claim, Employer believes there is no substantial evidence to support the Commission's findings that subsequent to engaging in a protected activity (filing a complaint with the Commission), Complainant was subjected to an adverse employment consequence that was caused by her filing that complaint.

We note that substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support the conclusion." Pittsburgh v. Commission on Human Relations, 65 Pa. Commonwealth Ct. 610, 616, 444 A.2d 182, 185 (1982). Further, substantial evidence supporting a finding of racial discrimination may be circumstantial and based on inferences. St. Andrews Development Co. v. Pennsylvania Human Relations Commission, 10 Pa. Commonwealth Ct. 123, 308 A.2d 623 (1973).

In the present case, we have reviewed the record thoroughly and believe there is substantial evidence to support the Commission's factual findings.

With respect to the racial harassment claim, there was evidence of a negative attitude change on the part of the Ferrones toward Complainant in the spring of 1983.*fn6 In addition, it is undisputed that Complainant's

[ 108 Pa. Commw. Page 65]

    sales territory was substantially reduced causing her income to drop significantly,*fn7 yet Employer did not reduce the sales territory of its only other salesperson, Christine Guthrie, a white woman. At about the same time that Employer reduced Complainant's sales territory, it also revised its compensation arrangement so that salespeople whose weekly sales dropped below $1,000.00 received $50.00 weekly base pay rather than $100.00.*fn8 Christine Guthrie, however, testified that when her sales fell below $1,000.00 weekly, her base pay was not reduced.*fn9

We believe this testimony constitutes substantial evidence that Complainant was subjected to adverse employment consequences to which other employees, who were not black, but who were otherwise similarly situated, were not subjected.

With respect to the retaliatory discharge claim, Mrs. Ferrone testified that she had been served with

[ 108 Pa. Commw. Page 66]

Complainant's racial harassment complaint before she discharged Complainant. Further, both Complainant and Mrs. Ferrone testified that just prior to Complainant's discharge Complainant had requested that the McKeesport and Monroeville sales areas be returned to her and that Mrs. Ferrone responded, "I am not giving them back to you, Joyce, I want you to tell me how you can go out there and represent me feeling the way you do, how can you do that?"*fn10 Shortly after this conversation, Complainant was discharged. Furthermore, Complainant testified that during this conversation Mrs. Ferrone told Complainant that since Complainant had filed a complaint against her with the Commission she no longer wanted Complainant working for her.*fn11

We are satisfied that this testimony constitutes substantial evidence that subsequent to engaging in a protected activity (filing a racial harassment complaint), Complainant was subjected to an adverse employment consequence (she was discharged), and that there was a causal connection between her filing the complaint and being discharged.

Employer offered numerous reasons for its actions which, if believed, would have rebutted the inferences of racial discrimination and retaliatory discharge. However, our review of the record reveals that Employer's proffered justifications conflicted sharply with a substantial amount of other testimony in the record. As is her province to do, the hearing examiner simply resolved this credibility conflict in favor of Complainant. Harmony Volunteer Fire Co. v. Pennsylvania Human Relations Commission, 73 Pa. Commonwealth Ct. 596, 459 A.2d 439 (1983). Since the hearing examiner rejected each of Employer's justifications as incredible and

[ 108 Pa. Commw. Page 67]

    therefore pretextual, the burden did not shift back to Complainant to prove by a preponderance of the evidence that Employer's justifications were a pretext.

We now turn to Complainant's argument that the Commission should have granted her counsel fees. Our review of the Act, and specifically of Section 9 of the Act, 43 P.S. § 959(f), reveals that there is no discrete statutory authority for the award of counsel fees by the Commission to a successful litigant.*fn12 We recognize that the Commission has very broad discretionary powers to effectuate the policies of the Act. Pennsylvania Human Relations Commission v. Zamantakis, 478 Pa. 454, 387

[ 108 Pa. Commw. Page 68]

A.2d 70 (1978). We, however, are equally aware that "the Commission, like all administrative agencies, can only exercise those powers which have been conferred upon it by the Legislature." Id. at 457, 387 A.2d at 72. In City of Pittsburgh Commission on Human Relations v. MacBeth, 480 Pa. 524, 391 A.2d 1109 (1978), our Supreme Court rejected a similar request for counsel fees under Section 13(i) of the Pittsburgh Human Relations Ordinance which contained language almost identical to that considered here in Section 9 of the Act, 43 P.S. § 959(f). We conclude that the Board did not err when it denied Complainant's request for counsel fees.

Order affirmed.

Order

The order of the Pennsylvania Human Relations Commission in the above-captioned matters is hereby affirmed.

Judge Colins dissents.

Disposition

Affirmed.


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