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CITY PITTSBURGH COMMISSION ON HUMAN RELATIONS v. U.S. STEEL CORPORATION. APPEAL JOSEPH BONDI AND JAMES CAVANAUGH (07/31/89)

decided: July 31, 1989.

CITY OF PITTSBURGH COMMISSION ON HUMAN RELATIONS, JOSEPH J. BONDI AND JAMES CAVANAUGH
v.
U.S. STEEL CORPORATION. APPEAL OF JOSEPH BONDI AND JAMES CAVANAUGH



Appeal from Common Pleas Court, Allegheny County, Honorable Robert A. Doyle, Sen. Judge.

COUNSEL

David F. Weiner, Robert O. Gallo, Gallo, Weiner & Michael, Pittsburgh, for appellants.

Dawne S. Hickton, Pittsburgh, for appellee, United States Steel Corp., now USX Corp.

John Gabriel, for appellee, City of Pittsburgh Commission on Human Relations.

Barry and McGinley, JJ., and Narick, Senior Judge. Smith, J., did not participate in the decision in this case. Narick, Senior Judge, concurring and dissenting.

Author: Mcginley

[ 127 Pa. Commw. Page 648]

The City of Pittsburgh Commission on Human Relations (Commission), Joseph J. Bondi (Bondi) and James Cavanaugh (Cavanaugh) appeal an order of the Court of Common Pleas of Allegheny County (Court of Common Pleas) which reversed the findings and adjudication of the Commission and sustained the appeal of the USX Corporation (USX), formerly known as United States Steel Corporation.

Complainants Bondi and Cavanaugh, both white male printing press operators formerly employed by USX, filed complaints with the Commission on February 10, 1983, alleging sex discrimination in violation of the City of Pittsburgh Human Relations Ordinance (Ordinance), Section 659.02(a).*fn1 Bondi and Cavanaugh were discharged from their positions as printing press operators on December 20, 1982, as a consequence of their refusal to work mandatory overtime on December 10, 1982. Bondi and Cavanaugh

[ 127 Pa. Commw. Page 649]

    alleged that female employees refused overtime assignments requested by USX on December 10, 1982, and on other occasions, but their refusal did not result in termination of employment. On December 20, 1982, a public hearing was held before a Commission Hearing Panel. The Commission issued a decision on July 11, 1984, ordering reinstatement of Bondi and Cavanaugh to their former positions with back wages from the date of discharge to the date of reinstatement, including reinstatement of all employee medical, life insurance and pension benefits.

The Commission's conclusions of law which are relevant to this issue are:

1. The Complainants have met their burden of proving a prima facie case of discrimination by showing that Respondent discharged Complainants on the basis of their male sex.

2. Complainants' termination from employment for refusing overtime when female employees who similarly refused overtime were not discharged constitutes a violation of the Code, Chapter 651.02.

3. Respondent has failed to carry its burden of persuading the Commission that reasons advanced by Respondent for the differences in treatment of Complainants were for a legitimate and non-discriminatory purpose.

4. Complainants are entitled to full remedy allowed by law for the unlawful discrimination against them on account of their sex which shall include reinstatement to their positions as press operators with full back pay and employee benefits (Code, Chapter 655.06).

Opinion of the Commission, July 11, 1984, at 7.

On August 10, 1984, USX filed a statutory appeal in the Court of Common Pleas. After briefing and oral argument,

[ 127 Pa. Commw. Page 650]

    the Court issued a decision reversing the Commission's order. On March 9, 1988, the Court issued an opinion supporting the reversal of the Commission's decision because it was based upon legally insufficient evidence. The Commission, Bondi and Cavanaugh now appeal arguing that the Court of Common Pleas erred in reversing the decision of the Commission because the Commission's determination that USX discriminated against Bondi and Cavanaugh because of their sex was supported by substantial evidence.

USX argues that the Court of Common Pleas properly reversed the Commission's decision because it was not supported by substantial evidence. It argues also that even assuming arguendo that Bondi and Cavanaugh were discriminated against on the basis of their sex, the Commission improperly awarded back pay beyond April 1983.

Our scope of review herein is limited to a determination of whether there was a violation of constitutional rights, an error of law, or whether the findings of fact necessary to support the adjudication are supported by substantial evidence. Harrisburg School District v. Pennsylvania Human Relations Commission, 77 Pa. Commonwealth Ct. 594, 466 A.2d 760 (1983). The task of weighing the evidence, both direct and circumstantial, to credit and discredit testimony, to draw inferences and make ultimate findings of fact as to whether a violation of the Act occurred is for the Commission. Pennsylvania State Police v. Pennsylvania Human Relations Commission, 116 Pa. Commonwealth Ct. 89, 542 A.2d 595 (1988).

In employment discrimination cases such as the one before us, the charging party is first required to establish a prima facie case of discrimination. Our state Supreme Court in General Electric Corp. v. Pennsylvania Human Relations Commission, 469 Pa. 292, 365 A.2d 649 (1976) adopted the United States Supreme Court's analysis in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (a race based refusal to hire case) for establishing a prima facie case. This analysis requires a complainant to establish that: (1) he is a

[ 127 Pa. Commw. Page 651]

    member of a protected minority; (2) he applied for a job for which the employer was seeking applicants; (3) despite his qualifications, he was not hired; and (4) after the rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. McDonnell-Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; General Electric Corp., 469 Pa. at 304-306, 365 A.2d at 655-666. This prima facie test is adaptable to accommodate differences in the nature of the discrimination alleged. Allegheny Housing Rehabilitation Corp. v. Pennsylvania Human Relations Commission, 516 Pa. 124, 532 A.2d 315 (1987). "The form it takes, however, must be appropriate to its function, which is to 'eliminate [ ] the most common nondiscriminatory reasons' for the employer's action." Allegheny Housing, 516 Pa. at 129, 532 A.2d at 318 quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981).

In the case sub judice, the Commission cited Reed v. Miller Printing Equipment Division of Western Gear Corp., 75 Pa. Commonwealth Ct. 360, 462 A.2d 292 (1983) which adapted the McDonnell-Douglas test. In Reed, this Court stated:

Cases involving the alleged discriminatory discharge of an employee also serve as good examples of the need for flexibility insofar as the determination of whether a prima facie case has been made is concerned. In those cases, strict application of McDonnell-Douglas would likely prevent a complainant from satisfying his burden of proof as regards a prima facie case because the situation would, in many instances, not involve the employer's seeking of other "applicants" for the position. To obviate this problem, the courts have instead focused on whether the employer retained employees in similar circumstances as those of the complainant other than being a member of the complainant's class.

Id., 75 Pa. Commonwealth Ct. at 365, 462 A.2d at 294.

In Allegheny Housing, the Supreme Court further explained the evidentiary guidelines to be followed in employment discrimination cases:

[ 127 Pa. Commw. Page 652]

Nothing about the Human Relations Act removes its operation from the bedrock concept of our jurisprudence that one who alleges wrong doing must supply the proof. The stated analysis is no more than an aid to evaluating the proof. 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 prima facie case. If, however, the defendant offers a nondiscriminatory explanation for the dismissal, the presumption drops from the case. As in any other civil litigation, the issue is joined, and the entire body of evidence produced by each side stands before the tribunal to be evaluated according to the preponderance standard: Has the plaintiff proven discrimination by a preponderance of the evidence? Stated otherwise, once the defendant offers evidence from which the trier of fact could rationally conclude that the decision was not discriminatorily motivated, the trier of fact must then "decide which party's explanation of the employer's motivation it believes". The plaintiff is, of course, free to present evidence and argument that the explanation offered by the employer is not worthy of belief or is otherwise inadequate to persuade the tribunal that her evidence does preponderate to prove discrimination. She is not, however, entitled to be aided by a presumption of discrimination against which the employer's proof must 'measure up.' (Citations omitted.)

Allegheny Housing, 516 Pa. at 131, 532 A.2d at 319.

Thus, Bondi and Cavanaugh must initially produce sufficient evidence that, if believed, indicates that more likely than not discrimination has occurred. Allegheny Housing.

[ 127 Pa. Commw. Page 653]

In Conclusion of Law No. 1, the Commission concluded that Bondi and Cavanaugh met their burden of proving a prima facie case of discrimination by showing that USX discharged complainants on the basis of their male sex. The Commission found that from 1980 to 1983, there were eight female press operators and three male press operators, including complainants. (Finding of Fact No. 28, Opinion of the Commission at 6.) The Commission went on to conclude that USX failed "to carry its burden of persuading the Commission that reasons advanced by Respondent for the differences in treatment of Complainants were for a legitimate and nondiscriminatory purpose."*fn2 USX asserts that Bondi and Cavanaugh failed to establish a prima facie case of sex discrimination.

This Court in Farrell Area School District v. Deiger, 88 Pa. Commonwealth Ct. 431, 490 A.2d 474 (1985), recognized the uniqueness of a case in which the Commission has found that a white male was the victim of unlawful employment discrimination and determined the appropriate standard to apply in determining whether a complainant has made out a prima facie case:

[I]n order for a white male to establish a prima facie case of employment discrimination, he 'must prove by a preponderance of the evidence that [he] applied for an available position for which [he] was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.' Burdine, 450 U.S. at 253, 101 S.Ct. at 1094.

The primary reason for having Complainant establish a prima facie case is to eliminate the most obvious nondiscriminatory reasons why he was not hired. Id. at 253-54 [101 S.Ct. at 1093-94].

Johnstown Redevelopment Authority v. Pennsylvania Human Relations Commission, 124 Pa. Commonwealth Ct. 344, , 556 A.2d 479, 484 (1989), quoting Farrell, 88 Pa. ...


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