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decided: June 15, 1989.




Gerard M. Mackarevich, Ira H. Weinstock, P.C., Harrisburg, for petitioner.

Arlene F. Klinedinst, Asst. Counsel, Harrisburg, for respondent.

Barry and Palladino (p.), JJ., and Barbieri, Senior Judge.

Author: Barbieri

[ 126 Pa. Commw. Page 609]

Robbie C. Henderson (Henderson) petitions for review of the State Civil Service Commission's (Commission) July 14, 1988 order which upheld the Office of the Budget's (Office) removal of Henderson from his probationary position as audit specialist trainee and dismissed Henderson's appeal for failure to state a prima facie case of racial discrimination

[ 126 Pa. Commw. Page 610]

    under Section 905.1 of the Civil Service Act (Act).*fn1 The primary issue presented for review pertains to the standard of proof to be used to analyze racial discrimination claims brought under Section 905.1 of the Act.*fn2 The Commission's order is affirmed.

Henderson was appointed by the Office as a temporary fiscal assistant in the Liquor Control Board Comptroller's Office, effective November 15, 1984, for a period not to exceed six months. While serving in this capacity, Henderson was transferred to the Department of Transportation Comptroller's Office and promoted to the audit specialist trainee class, a one-year probationary training program, commencing February 7, 1985. By letter dated August 23, 1985, the Office removed Henderson from the training program for alleged unsatisfactory performance and returned him to his previous position as temporary fiscal assistant.*fn3 This temporary position, however, expired

[ 126 Pa. Commw. Page 611]

    on or about May 15, 1985, resulting in Henderson's termination.

Henderson thereafter appealed his removal from the training program to the Commission, alleging discriminatory action by the Office. A hearing followed on January 15, 1986. Henderson testified that he is a black person whose employment was terminated; that he was required to take the auditor specialist training test; that he was the only black person employed in this division of the Office (Division); that none of the white trainees were terminated; and that one of the white trainees, Richard Denny, received an extended training period. Henderson further testified that he received a two hour orientation contrary to the one to three day orientation allowed under the training program and that he was assigned to perform two complete audits without assistance at a date much earlier than outlined in the training program. N.T., January 15, 1986 Hearing, pp. 30-31, 33-34, 43-47.

Henderson testified as well that his immediate supervisor refused to answer his questions; that he was not given evaluations of his performance following each assignment nor did he receive additional training in any area in which he may have been experiencing difficulty as required by the training program; and that he did not initially receive essential documents used in performing audits. Moreover, Henderson knew of no white employe who received an abbreviated orientation, was subjected to accelerated assignments, or did not initially receive the essential documents. N.T., January 15, 1986 Hearing, pp. 36, 38, 49-52, 60-61.

Henderson also called as witnesses Joseph Lubinsky, his immediate supervisor, and Richard Berard, an audit specialist

[ 126 Pa. Commw. Page 612]

II who assisted Henderson in his training. Lubinsky testified that there may have been one other black employe in the Division several years earlier; that matters not covered in the abbreviated orientation at issue were later reviewed with Henderson; that the abbreviated orientation was for Henderson's convenience;*fn4 that he had given some white trainees critical evaluations but they were allowed to complete the training program; that none of the other trainees had the same performance problems as Henderson; and that Henderson was unable to reconcile a checking account after repeated attempts. Lubinsky further testified, as did Berard, that other trainees had been demoted as well as terminated in the past and that Henderson was only assigned to perform specific tasks within the audits. Lubinsky added, however, that completion of the actual testing to prepare the work papers might be described as an entire audit. Lubinsky also stated that Denny's training period was not extended while Berard indicated that Denny's performance was not unsatisfactory. N.T., January 15, 1986 Hearing, pp. 69-72, 74-75, 79-80, 83-86, 88-89, 92, 94.

After presentation of Henderson's evidence, counsel for the Office moved to dismiss Henderson's complaint for failure to establish a prima facie case of racial discrimination. The Commission granted the motion to dismiss and entered an order, stating, inter alia, "[u]pon consideration of the prima facie case presented by the appointing authority [the Office] and the appointing authority's motion to dismiss, IT IS HEREBY ORDERED that the appeal of Robbie C. Henderson be and the same is hereby dismissed with prejudice." Upon Henderson's petition for review, this Court vacated the Commission's order and remanded the case to the Commission with instructions to set forth its

[ 126 Pa. Commw. Page 613]

    findings of fact and reasoning.*fn5

After review of the record on remand, the Commission accepted as credible the testimony of Lubinsky and Berard in finding that Henderson's orientation was proper; that Henderson was not assigned to perform a complete audit; and that Henderson continued to make repeated errors and failed to show improvement despite discussions with his supervisors concerning the same. The Commission further found the fact that Henderson was the only black employe in the Division and the only audit specialist trainee removed during the probationary period insufficient, standing alone, to establish discriminatory intent by the Office. The Commission thus concluded that Henderson failed to provide affirmative evidence of discrimination by the Office and that Henderson's demotion and removal were based solely upon merit factors, whereupon the Commission again dismissed Henderson's appeal for failure to state a prima facie case of discrimination. This petition for review*fn6 followed.

We initially note the inherent fairness in subjecting those who are alleging traditional*fn7 employment discrimination to a uniform, yet flexible, standard of proof, when possible. In Allegheny Housing Rehabilitation Corp. v. Pennsylvania Human Relations Commission, 516 Pa. 124, 532 A.2d 315 (1987), the Pennsylvania Supreme Court applied a modified version of the standard of proof developed by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36

[ 126 Pa. Commw. Page 614]

L.Ed.2d 668 (1973),*fn8 to a sex discrimination claim brought under Section 5(a) of the Pennsylvania Human Relations Act*fn9 (PHRA) wherein the complainant's employment was terminated due to an alleged personnel realignment.

In analyzing the matter before it, the Pennsylvania Supreme Court stated that:

If the plaintiff produces sufficient evidence that, if believed and otherwise unexplained, indicates that more likely than not discrimination has occurred, the defendant must be heard in response. Absent a response, the 'presumption' of discrimination arising from the plaintiff's prima facie case stands determinative of the factual issue of the case. In other words, if the employer rests without producing evidence, the plaintiff must prevail if he or she has produced sufficient evidence to make out a

[ 126 Pa. Commw. Page 615]

    all of whom were male, worked a greater number of hours after her dismissal.

Here, Henderson presented evidence that he is a black person who was removed from a probationary position for which he was qualified; that none of the white trainees were removed; and that greater toleration was extended to the white trainees' performance shortcomings. Henderson's evidence may also support the inference that any inadequacies in his performance were due to improper acceleration of his training. Given the critical role of circumstantial evidence in discrimination proceedings, the prima facie case cannot be an onerous one. Allegheny Housing Rehabilitation Corp. Moreover, in comparing the evidence found sufficient to support the complainant's prima facie case in Allegheny Housing Rehabilitation Corp. with that presented here, we believe that Henderson established a prima facie case of racial discrimination under Section 905.1 of the Act. It must be stressed, however, that the prima facie proof of discrimination here may not necessarily be required in all respects in a factually dissimilar case and must be tailored to accommodate differences in the types of traditional discrimination alleged and in the action claimed to be improper, keeping in mind that the function of the prima facie case is to eliminate the most common non-discriminatory grounds for the employer's action. Id.

Because Henderson met his initial burden of proof, the burden ordinarily would have shifted to the Office to clearly advance a legitimate non-discriminatory explanation for removing Henderson from the training program through the introduction of admissible evidence. This burden of production does not require an employer, such as the Office, to persuade the factfinder that it was actually motivated by the proffered reason or reasons. All that is required is that the employer's evidence raise a genuine issue of fact as to whether it discriminated against the complainant. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

[ 126 Pa. Commw. Page 617]

For the reasons that follow, we believe that, in this case, the employer has been relieved by Henderson of the employer's usual burden to advance a non-discriminatory explanation for removing him. In short, Henderson, by calling witnesses who rebutted his prima facie case and whose testimony the Commission was privileged to accept, clearly rendered unnecessary and sheer futility any effort by the Office to call witnesses or produce rebuttal testimony. The Commission, in accepting the adverse testimony adduced in Henderson's own case, had a firm foundation for its determination that Henderson's removal was not for a discriminatory reason or for a pretextual one.

Lubinsky testified on direct examination that he had no recourse but to remove Henderson from the training program in view of Henderson's inability to reconcile a checking account after repeated attempts. Lubinsky further testified on cross-examination that none of the other trainees exhibited the same performance problems as Henderson. Documentary evidence of record also demonstrates that Henderson received unsatisfactory performance evaluations based upon poor work habits, repeated errors and failure to show improvement. Exhibits AP-15, AP-16, AP-17. This evidence clearly raises a genuine issue as to whether the Office intentionally discriminated against Henderson and is sufficient to satisfy the Office's burden of production. See, e.g., United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); Texas Department of Community Affairs.

Accordingly, we must reject Henderson's contention that the Commission's dismissal was premature. We are aware, of course, that a complainant's counsel should be extended wide latitude since discrimination proceedings must often rest upon inferences drawn from acts. See Thomas v. Pennsylvania Human Relations Commission, 106 Pa. Commonwealth Ct. 598, 527 A.2d 602 (1987); Lynch v. Department of Public Welfare, 30 Pa. Commonwealth Ct. 235, 373 A.2d 469 (1977). However, trial science does not

[ 126 Pa. Commw. Page 618]

    call upon an adversary to produce unnecessary evidence when his case is adequately presented by his opponent. Obviously, the ultimate absurdity would be for the Office to go through the motions of offering into evidence the testimony adduced by Henderson to complete what Henderson believes to be its responsibilities in order to rebut his prima facie case.

For the reasons stated, we will affirm the Commission's order.


AND NOW, 15th day of June, 1989, the order of the State Civil Service Commission dated July 14, 1988 is affirmed.


For the reasons stated, we will affirm the Commission's order.

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