Appeal from the Order of the Pennsylvania Human Relations Commission, in the case of Almando Carrasquillo v. Pennsylvania State Police, No. E-24312.
Joseph S. Rengert, Assistant Counsel, for petitioner.
Ellen K. Barry, Assistant Chief Counsel, with her, Elisabeth S. Shuster, Chief Counsel, for respondent.
Judges Craig and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.
[ 116 Pa. Commw. Page 90]
This is an appeal by the Pennsylvania State Police (Petitioner) from an order of the Pennsylvania Human Relations Commission (Commission) which found that Petitioner had discriminated against Almando Carrasquillo (complainant) in discharging him on the basis of his national ancestry (Puerto Rican) in violation of Section 5(a) of the Pennsylvania Human Relations Act (Act), Act of October 27, 1955, P.L. 74, as amended, 43 P.S. § 955(a).
[ 116 Pa. Commw. Page 91]
This matter was originally heard by a three-member panel appointed by the Commission. Two members of that panel issued findings of fact, conclusions of law and an opinion in support thereof, in which they concluded that the Petitioner had discriminated against Complainant. One panel member dissented. The Commission, by a five-three vote, adopted the hearing panel's conclusions. On appeal to this Court, the matter was remanded for the entire Commission to review the whole record. The Commission then reaffirmed its prior order, adopting the hearing panel's conclusions by a four-two vote.
Before discussing the issues Petitioner now raises, a review of the facts as found by the Commission would be helpful. Complainant is a white Hispanic male of Puerto Rican ancestry. He entered the State Police training academy on May 11, 1981 to begin a five-month training period. Upon graduation from the academy, he was assigned to Troop "S" in Harrisburg, an interstate patrol unit. Prior to arriving for his assignment, however, Complainant served a three-day suspension for failure to respond truthfully to questions regarding an incident of sexual misconduct committed by his roommate at the academy. Complainant arrived at Troop "S" three days after his two academy classmates who had also been assigned there. Notice of his suspension was posted on a bulletin board at the station when he arrived for duty.
After his arrival at Troop "S", Complainant successfully completed a 30-day coach-pupil training period, during which he accompanied Trooper Brenner in a patrol car, first watching Brenner perform various duties and then doing them himself. He was then assigned to regular patrol duty.
According to State Police regulations, all new troopers serve an 18-month probationary period, which
[ 116 Pa. Commw. Page 92]
includes the five months of training spent at the academy. While on probation, troopers can be discharged for rule or other violations through a fairly informal process which involves review by a three-member Probationary Trooper Review Committee (PTRC). If a trooper's supervisor recommends dismissal, the PTRC reviews the matter, and decides whether to hold a hearing. After a hearing, the PTRC votes to retain or dismiss the individual, which decision is not appealable. (After the 18-month probationary period, a formal court-martial is necessary to dismiss a trooper).
Complainant's immediate supervisors were a battery of corporals. Above the corporals were Sergeant Barkofsky and, above him, the area commander, Lieutenant Sharpe.
The first evidence of problems Complainant was having was in January 1982, when he was counseled by Sergeant Barkofsky for the following infractions: 1) unauthorized use of personal relay (getting a ride home in a State Police vehicle), 2) unbecoming radio demeanor (use of "smart alecky" tone), 3) playing pinball while on duty and in uniform, 4) use of coarse language over troop car P.A. system, and 5) reporting late for duty on January 10, 1982.
In March 1982, Complainant received his first performance evaluation, in which he was rated "good" overall. This was true despite the fact that Complainant testified to receiving an increasing number of "discrepancy notices" during that period. (Discrepancy notices are forms used by the corporals to indicate errors in filling out reports. The notices were to be signed and returned to the issuing corporal to indicate that the corrections had been made).
In June of 1982, Sergeant Barkofsky again counseled Complainant. The violations were 1) a lack of military courtesy in displaying a negative attitude towards a superior
[ 116 Pa. Commw. Page 93]
officer who had returned reports to Complainant for correction and 2) failing to comply with regulations pertaining to the proper way to indicate "not guilty" on a traffic citation. (Complainant had written "not guilty" vertically rather than horizontally across the face of the citation). Complainant was warned at that time that further violations could result in formal disciplinary action.
Later that same month, a motorist who had run out of gas lodged a complaint against Complainant for rude treatment. The incident was investigated and the ultimate result was the issuance of a disciplinary action report on September 7, 1982.
In the interim, however, in July 1982, Corporal Lanier, in completing general performance evaluations on the probationary troopers, recommended nonretention of Complainant. Corporal Lanier concluded that
Tpr CARRASQUILLO has a problem in conducting himself properly while performing tasks/duties as a Penna State Policeman. Tpr CARRASQUILLO has not progressed to a point whereby he could be left alone, without supervision, and perform duties routinely expected of him.
In this officers (sic) opinion, Tpr CARRASQUILLO's efforts in trying to grasp prescribed patrol and reporting procedures have been, at best, below standards. This writer believes that Tpr CARRASQUILLO does have the capacity to understand what has been taught to him, but does not retain this information, as a whole, in carrying out functions as a state police officer. Tpr CARRASQUILLO has been argumentative, he refuses to accept constructive criticism, and he, also, attempts to circumvent reporting systems.
[ 116 Pa. Commw. Page 94]
It appears that Tpr CARRASQUILLO cannot accept the prescribed rules and regulation (sic) outlined by this department, simply, because he does not wish to! This writer does not ...