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Hanes v. Columbia Gas of Pennsylvania Nisource Co.

August 15, 2008

JEFFREY L. HANES, PLAINTIFF
v.
COLUMBIA GAS OF PENNSYLVANIA NISOURCE COMPANY, DEFENDANT



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

This is an employment discrimination action filed by Jeffrey L. Hanes ("Hanes") against his employer, Columbia Gas of Pennsylvania ("Columbia Gas").*fn1

Hanes, who is an African-American male, alleges that Columbia Gas discriminated against him on the basis of his gender and race. Presently before the court is defendant's motion for summary judgment (Doc. 38). For the reasons that follow, the motion will be granted in part and denied in part.

I. Statement of Facts*fn2

Hanes began his employment with Columbia Gas on May 8, 1989 as a laborer in the plant department in the company's York, Pennsylvania facility. (Doc. 40 ¶ 5; Doc. 45 ¶ 5.) All non-supervisory employees at Columbia Gas are represented by the United Steelworkers union. (Doc. 40 ¶ 9; Doc. 45 ¶ 9.) All unionized positions are subject to a bidding process. Pursuant to this process, each available position is posted on a union bulletin board. Interested applicants submit a bid, and the position is awarded to the qualified individual with the most seniority. (Doc. 40, Ex. E at 33-35.) On February 4, 2001, Hanes bid on and was awarded a Customer Service B position in the customer service department. (Doc. 40 ¶ 10; Doc. 45 ¶ 10.) At the time, he was the only African-American male in the department. (Doc. 40, Ex. S at 10.)

A collective bargaining agreement between Columbia Gas and the union dated June 15, 1982 purports to apply to all customer service department employees.*fn3 (Id., Ex. G.) The agreement establishes three classifications of customer service department employees, namely, Customer Service B, Customer Service A, and Customer Service Senior. Customer Service B is described as an "entry level job for the service department." (Id. at 1.) According to the agreement, all employees entering the service department are "required to remain in this classification for a period of two (2) years and then must progress to Customer Service A through demonstrating their proficiency by passing a qualification test." (Id.) Should an employee fail the first qualification test, "the employee will be given the time to continue in the B classification for an additional six (6) month period and would then be given the opportunity to be retested."*fn4 (Id. at 1-2.) If an employee fails the second qualification test, "the employee would be required to move out of the Service Department to an available position to which his experience, training and seniority would entitle him under the labor agreement." (Id. at 2.)

Hanes finished numerous training courses before unsuccessfully completing the first qualification test on April 24, 2003. (Doc. 40 ¶¶ 17, 20; Doc. 45 ¶¶ 17, 30.) When Hanes took the examination, he had not yet received a basic electricity course that was a required component of his training. (Doc. 40 ¶ 18; Doc. 45 ¶ 18.) Hanes alleges that he advised the individual responsible for his training, Mike Breighner ("Breighner"), of this deficiency but was still compelled to take the test. (Doc. 40, Ex. S at 217.) After Hanes' initial failure, his immediate supervisor, Charles M. Zambito ("Zambito"), and Operations Center Manager Ronald H. Blymire ("Blymire") attempted to schedule the basic electricity course for him. Their efforts to do so were allegedly delayed because of scheduling problems, the relocation of the company's York office, and the need for updated course materials. (See Doc. 40 ¶¶ 6-7, 19; Doc. 45 ¶¶ 6-7, 19; Doc. 40, Ex. C at 101-02.) In the interim, Hanes completed a variety of additional training courses. Ultimately, Hanes completed the basic electricity course on May 4, 2004. (Doc. 40 ¶ 20; Doc. 45 ¶ 20.) Hanes failed the qualification test for a second time on May 5, 2004. (Doc. 40 ¶¶ 20-21; Doc. 45 ¶¶ 20-21.)

After Hanes' two failures of the qualification test, Columbia Gas representatives discovered that Hanes had not been "provided the training needed" before taking the examination for the first time. (Doc. 40, Ex. N.) Accordingly, on May 11, 2004, the company extended Hanes a written offer to take the qualification test a third time. (Doc. 40 ¶ 22; Doc. 45 ¶ 22.) According to the terms of the offer, the company agreed to provide Hanes with: (1) classroom training "in the areas of room combustion and venting and orifice sizing," (2) "'on the job' training . . . through a 'ride along' program with a qualified Service Tech Sr.," and (3) "the opportunity to retake the test during the week of June 28, 2004." (Doc. 40, Ex. J.) On May 17, 2004, Hanes filed two grievances numbered 259 and 260 and rejected the company's offer of May 11, 2004. (Doc. 40 ¶ 23; Doc. 45 ¶ 23.) Hanes alleges that he rejected only that portion of the company's offer that would have required him to take the third test during the week of June 28, 2004. Instead, he sought an additional six months for the retest. (Doc. 45 ¶ 23; Doc. 40, Ex. S at 145.) After rejecting the company's offer, Hanes was transferred to the meter reading department effective May 16, 2004*fn5 "pending the outcome of Grievances #259 and #260." (Doc. 40, Ex. K.) The offer of additional training and a third examination was held "in abeyance" also pending the results of Hanes' grievances. (Id.) Pryor informed Hanes in writing that his "decision to grieve [the May 11, 2004] offer left the Company no choice but to notify [him] that the offer would be held in abeyance until the grievances are settled." (Id., Ex. N.) Zambito further explained that Hanes' demotion was not motivated by the grievances but rather by a need to comply with the collective bargaining agreement's mandate that an employee be removed from the service department after two examination failures. (Id., Ex. C at 127-28, 133.) Pryor further explained that the company could have faced liability issues if it had continued to allow Hanes to perform service department duties without a successful test result. (Id., Ex. E at 107.) On May 25, 2004, Hanes filed grievance number 261 disputing the company's decision to hold its training and testing offer in abeyance. (Id., Ex. C at 153-54; Ex. D at 144-45; Ex. E at 117.)

Through the grievance process, Hanes disputed the company's decision to place him in the meter reader department rather than in the street service division of the plant department. However, the company responded by informing Hanes that "no street service position [was] currently vacant within the budgeted York complement" and that he had been "placed into an available position for which he [was] qualified" as required by the collective bargaining agreement between the company and the union. (Id., Ex. S at 72-73; see also id., Ex. E at 96.)

When Hanes began his position in the meter reader department, he was subject to certain performance quotas. Specifically, he was required to read 75% of all inside meters and 99% of all outside meters with an error rate of less than 1.5 per 1000 meter reads. (See id., Ex. N.)

On July 13, 2004, Hanes attempted to rebid the position of Customer Service B but was told that he was not permitted to do so because he had twice failed the examination. (Id., Ex. S at 158, 197.) Hanes filed grievance number 268 in response to the company's denial of his attempt to rebid. (Id. at 160-61.)

On August 6, 2004, Columbia Gas modified its retesting offer of May 11, 2004 to provide Hanes with: (1) classroom training "in the areas of room combustion and venting (National Fuel Gas Code) and orifice sizing on Tuesday, August 10, 2004 -- Thursday, August 12, 2004," (2) "'on the job' training . . . through a 'ride along' program with a qualified Service Tech Sr.," and (3) "the opportunity to retake the test at a mutually agreeable time, but not to exceed 6 months from the completion of [his] training." (Id., Ex. P (emphasis added to denote differences from original offer)). On August 8, 2004, Hanes was returned to his previous position of Customer Service B. (Doc. 40 ¶ 27; Doc. 45 ¶ 27.) Hanes was compensated for the difference in pay between the meter reading and Customer Service B positions for the time period between his decrease in pay on June 27, 2004 and his reinstatement on August 8, 2004.*fn6 (Doc. 40 ¶ 28; Doc. 45 ¶ 28.) On February 3, 2005, Hanes successfully completed the qualification test and was promoted to Customer Service A. (Doc. 40 ¶ 29; Doc. 45 ¶ 29.)

On February 13, 2006, Hanes initiated the instant action, alleging that Columbia Gas discriminated against him on the basis of his race and gender in violation of: (1) Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. § 2000e-2(a), (2) 42 U.S.C. § 1981 ("§ 1981"), and (3) the City of York Human Relations Ordinance, YORK, PA., CODIFIED ORDINANCES art. 185 (2006).*fn7 (See Doc. 1.) Initially, Columbia Gas elected not to engage in dispositive motions practice with respect to the claims asserted against it. The case proceeded to pretrial conference on August 23, 2007, at which time Columbia Gas informed the court of several potentially dispositive issues that could obviate the need for a jury trial.*fn8 (See Doc. 35.) In hopes of conserving judicial resources, the court elected to hold the trial schedule in abeyance and permit Columbia Gas to file a motion for summary judgment addressing all potentially dispositive issues. (See Doc. 34.) The instant motion resulted. (See Doc. 38.) In the motion, Columbia Gas asserts that each of Hanes' claims must fail for lack of evidence of pretext.*fn9 (See id.; see also Doc. 41.) The motion has been fully briefed and is ripe for disposition.

II. Standard of Review

Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact," and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). It places the burden on the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. ...


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