The opinion of the court was delivered by: J. Andrew Smyser Magistrate Judge
(Magistrate Judge Smyser)
MEMORANDUM OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. Background and Procedural History.
The plaintiff commenced this action by filing a complaint on July 11, 2007.
The defendant is the Commonwealth of Pennsylvania, Department of Transportation (PennDOT).*fn1
The plaintiff, who was born in Nigeria, claimed in his complaint that he was subjected to wrongful discrimination while he was employed by the defendant in District 9-0 as a civil engineer. He alleges that he was discriminated against because of his race, his color and his national origin. He alleges that he was denied promotions as a result of wrongful discrimination. He also alleges that after he filed a complaint with the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission in 2004 involving one particular promotion for which he unsuccessfully competed, the defendant retaliated and discriminated against him by denying other promotions, by denying tuition reimbursement, by denying leave time to him for employment-related education and by denying him compensation for duties he performed above and beyond those assigned to his position and pay grade. The plaintiff claims that throughout his PennDOT District 9-0 employment he was subjected to a hostile work environment because of his race, color and national origin. On April 7, 2006, he resigned. He claims that he was constructively discharged from his employment with PennDOT District 9-0.
The plaintiff brings his claim pursuant to Title VII, 42
U.S.C. § 2000e et seq.*fn2
On August 31, 2007, the defendant filed an answer to the complaint.
The parties consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c). A jury trial was not requested. An eight day non-jury trial began on February 17, 2009. Nine witnesses testified for the plaintiff. Seventeen witnesses testified for the defendant. Eighty-nine exhibits were received into evidence.
Title VII provides that it is an unlawful employment practice for an employer to discriminate against an employee as to compensation, conditions of employment or privileges of employment because of the employee's race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2(a)(1). The plaintiff alleges violations of Title VII in that, he alleges, he was discriminated against as to the matter of equal opportunity to advance through promotions and pay increases because of his race, color and national origin. He alleges, also, that he was discriminated against in violation of Title VII in that he was made to work in a working environment and under working conditions that were hostile to him based upon his race, color and national origin. He alleges, also, that he was constructively discharged in that the hostile working environment was intolerable from a reasonable person's perspective.
As to the plaintiff's claims of wrongful racial discrimination in having been denied promotions, we will analyze this case as a pretext case to which the burden-shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1972), applies. "This framework has three steps: (1) the plaintiff bears the burden of establishing a prima facie case of discrimination; (2) the burden then shifts to the defendant, who must offer a legitimate non-discriminatory reason for the action; and (3) if the defendant satisfies this burden, the plaintiff must then come forth with evidence indicating that the defendant's proffered reason is merely a pretext." McNemar v. Disney Store, Inc. , 91 F.3d 610, 619 (3d Cir. 1996). As to a claim of retaliation, an employee must show protected employee action, an adverse action by the employer after that, and a causal connection between the employee's protected activity and the employer's action. Marra v. Philadelphia Housing Authority, 497 F.3d 286, 300 (3d Cir. 2007).
There is no rigid formulation of a prima facie case under McDonnell Douglas and the requirements may vary with different factual situations. Matczak v. Frankford Candy & Chocolate Co. , 136 F.3d 933, 938 (3d Cir. 1997). Basically, a prima facie case is comprised of the following four elements: (1) the plaintiff belongs to the protected class; (2) the plaintiff was qualified; (3) the plaintiff was rejected; and (4) the employer selected an applicant with the plaintiff's qualifications. Id. at 939. As an alternative to the fourth element, a plaintiff can show that the position was filled with a person not belonging to the protected category. Id .; Olson v. General Elec. Astrospace , 101 F.3d 947, 951 (3d Cir. 1996).
If a plaintiff establishes a prima facie case, the burden of production shifts to the defendant to articulate some legitimate nondiscriminatory reason for the adverse employment decision. Fuentes v. Perskie , 32 F.3d 759, 763 (3d Cir. 1994). An employer satisfies its burden of production by introducing evidence which would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision. Id . "The employer need not prove that the tendered reason actually motivated its behavior, as throughout this burden-shifting paradigm the ultimate burden of proving intentional discrimination always rests with the plaintiff." Id .
The McDonnell Douglas framework will also be used in the analysis of plaintiff's claims of wrongful denials of tuition reimbursement, leave time and extra compensations for above-grade work, and we will consider whether there is proof that these employment actions were retalitory.
In order to prevail on his hostile work environment claim, the plaintiff must establish (1) that he suffered intentional discrimination because of his race, color or national origin, (2) that the discrimination was severe or pervasive; (3) that the discrimination detrimentally affected him; (4) that the discrimination would have detrimentally affected a reasonable person in like circumstance; and (5) a basis for employer liability. See Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006), overruled in part on other grounds by Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). "The analysis of the hostile work environment claim has a subjective and an objective component: the evidence must establish that the environment would be perceived by a reasonable person as hostile and that [the plaintiff] did, in fact, perceive it to be so." Martin v. Allegheny Airlines, Inc., 126 F.Supp.2d 809, 820 (M.D.Pa. 2000), aff'd, 261 F.3d 492 (3d Cir. 2001). For harassment to be actionable it must be sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive working environment. Meritor Savings Bank v. Vinson , 477 U.S. 57, 67 (1986). The United States Supreme Court has "made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment." Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1998). "When the workplace is permeated with 'discriminatory intimidation, ridicule, and insult," that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)(quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986)). Whether an environment is hostile or abusive can be determined only by looking at all of the circumstances. Harris, supra, 510 U.S. at 23. The circumstances "may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id.
A person is constructively discharged from a job when "'the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.'" Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1084 (3d Cir. 1996)(quoting Goss v. Exxon Office Systems Co., 747 F.2d 885, 888 (3d Cir. 1984)). To establish a constructive discharge, a plaintiff must demonstrate a greater severity or pervasiveness of harassment than that required to establish a hostile work environment. Id.
The testimony of the witnesses and the contents of the documentary exhibits will not be set forth herein. The following findings of fact, based in part upon the proposed findings submitted by the parties, do not contain every factual inference drawn by the fact finder from a lengthy trial record, but do contain findings upon the material factual issues.
The evidence has been considered in the context of the plaintiff's claims and allegations and in the context of the provisions of Title VII, as further discussed below.
1) The plaintiff, Uche Ikwut-Ukwa, is an adult, naturalized citizen of the United States who was born in Nigeria and whose skin color is black. He came to the United States in 1979 to attend college here. He did not return to Nigeria because of civil war there. He currently resides in Centre County, Pennsylvania.
2) The plaintiff received a Bachelor of Architecture, a five-year professional degree, from the University of Idaho in 1983; a Master of Science in Architectural Engineering degree, with an emphasis in Structural Analysis and Design, from the Pennsylvania State University in 1990; and a Master of Business Administration from Saint Francis University, Loretto, PA in 2003.
3) The plaintiff worked for several architectural and engineering firms for about seven years before, on November 4, 1996, he was hired by PennDOT as a Civil Engineer - Bridges, pay range 7, step 1, in PennDOT District 9-0, at a starting salary of $30,983.14. At the time of hiring, he possessed a professional architectural degree, an architectural engineering degree, and an Engineer-in-Training (EIT) certificate. He had passed the State Civil Service examination for Civil Engineer - Bridges.
4) During his tenure with PennDOT, the plaintiff was the only engineer in District 9-0 who was African-American and the only engineer in that District who was not born in the United States.
5) The plaintiff's work as a PennDOT civil engineer was consistently commendable. He had a thorough knowledge of his job and of related resources. He strived to expand his knowledge. He frequently recommended changes in procedures and methods as dictated by need.
6) On April 7, 2006, the plaintiff quit his PennDOT job, considering himself to have been constructively discharged because he considered himself to have been wrongly denied the opportunity throughout his PennDOT employment to advance according to his abilities and his accomplishments because of his race and his national origin. He felt that he had been subjected to hostile treatment based upon his race, his skin color and his national origin. He had competed for fifteen promotions, but had never been promoted. The plaintiff had filed four separate complaints with the Pennsylvania Human Relations Commission (PHRC) and the United States Equal Employment Opportunity Commission (EEOC). He had received "Right to Sue" letters from the EEOC. His annual salary at the time of his resignation was $49,036.92.
7) Shortly after his hire in 1996, the plaintiff began to take actions to enhance his professional standing and to help him to advance in District 9-0. At the instruction of the Assistant District Engineer -- Design, the plaintiff took and passed the State Civil Service examination for the position of the Senior Civil Engineer Supervisor -- Bridges. He took and passed the national Professional Engineer (PE) License examination in or about October, 2003 and he was awarded the PE License in June 2004.
8) At the recommendation of a former District Executive, the plaintiff sought and was granted rotation out of the bridge unit to gain additional experience. He also obtained an MBA degree. Taking the Civil Service examination for promotion, rotating to gain additional experience and seeking and receiving an MBA degree were known to the plaintiff to have been, for others, positive and recommended steps for advancement in District 9-0.
9) The plaintiff is a member of the Structural Engineering Institute, the American Society of Civil Engineers, and the Architectural Engineering Institute.
10) The plaintiff applied for fifteen promotions.*fn3 He was never promoted. He also served in the position of Assistant Structural Control Engineer (ASCE), but he was not offered an opportunity to apply for that position. He had performed the duties of the Structural Control Engineer, but he was not given an opportunity to apply for that position.
11) All persons who were promoted, and the person transferred to the Structural Control Engineer position, are persons with white skin.
12) A three-member panel selected candidates for promotions. The panel system was adopted by former District Executive, Earl Neiderhiser, who was trying to end what he called the "good-old-boy network" system that was seen by Mr. Neiderhiser to be a system in which promotions and hires occurred based upon friendships and other relationships not necessarily related to merit and to bona fide occupational qualifications. Despite Mr. Neiderhiser's efforts which had been implemented before the plaintiff's hire, all members of all promotion panels and all persons in the supervisory chain of command for all promotions involved in this case were white males, and the explanations and standards used by the panels to support selections are general, imprecise and subjective.
13) The District follows a prescribed procedure to review candidates for promotion. The procedure, although since modified, was initially established by Earl Neiderhiser. The procedures were established in part to help integrate the three departments within the district: design, construction and maintenance.
14) The procedure designed by Mr. Neiderhiser was also designed by Mr. Neiderhiser to eliminate bias in promotions and to ensure against employees being promoted simply on longevity without regard to merit.
15) Usually, promotion interviews within the District are conducted by panels of three individuals. One of the individuals is the immediate supervisor of the position to be filled; the other two panel members are usually from other divisions within the Engineering District.
16) The composition of the panels are normally approved by the Human Resources Officer and the District Executive.
17) All eligible candidates are interviewed. Questions to be asked of each candidate are submitted in advance to the Human Resources Officer who must approve the questions along with the District Executive and the particular Assistant District Executive. The same approved questions are asked of each candidate in the same order by the same people.
18) After all candidates are interviewed, the panel meets and makes a recommendation, which has to be justified by the panel. That recommendation goes to the human resources officer and the District Executive who may either accept or reject the recommendation. Most of the successful promotions candidates in the instances where the plaintiff unsuccessfully competed for a promotion were said by the panel members to have "interviewed well." The plaintiff was not found to have interviewed well.
19) In or about January 2004, the plaintiff applied for a promotion to the position of Senior Civil Engineer Supervisor -Transportation to work as a project coordinator. This was the earliest of the promotions for which he competed for which he exhausted administrative remedies.*fn4 The plaintiff did not succeed in his effort to be promoted. He was found to lack a background of responsible management assignments. He was found to lack construction scheduling experience. The white male selected for the position was found to have strong management and construction scheduling experience. The plaintiff had a different, more academic, background. The successful candidate had worked in a county maintenance department and was known to a panel member. Panel members were not restricted in any way as to the factors that they could consider for promotions. The selection process was in essence subjective. There is, ...