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Burney v. Pennsylvania Dep't of Revenue

June 29, 2009


The opinion of the court was delivered by: (Chief Judge Kane)



Pending before the Court is Defendants' motion for summary judgment on Plaintiff's claims that the termination of her probationary part-time employment with the Pennsylvania Department of Revenue ("Revenue") constituted unlawful racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Fourteenth Amendment to the United States Constitution. Plaintiff also claims that her discharge from employment constituted a violation of the Pennsylvania Human Relations Act, 43 P.S. §§ 951 et seq. ("PHRA").

On August 6, 2008, Magistrate Judge Smyser issued a report and recommendation in which he found that there remain disputed issues of fact regarding whether Defendants' proffered non-discriminatory reasons for terminating Plaintiff's employment were pretextual, and, accordingly, the Magistrate Judge recommended that the Court deny Defendants' motion for summary judgment.*fn1 Defendants filed objections to the report and recommendation, together with a supporting brief. Plaintiff filed a brief in opposition to Defendants' objections. Following a full review of the pending motion, the report and recommendation, Defendants' objections thereto, and the evidence of record, the Court agrees that there remain disputed facts in the record that preclude the entry of summary judgment. Nevertheless, the Court finds the issue to be very close and explains its decision in further detail below.


The relevant factual background of this action, as supplied by the undisputed facts provided by the parties, is set forth in detail in the report and recommendation. To provide context for the Court's opinion, certain of these facts are set forth below.

Plaintiff Brenda Burney, an African American woman, was hired as a permanent part-time Clerk I by the Commonwealth of Pennsylvania's Department of Revenue ("Revenue"), effective April 3, 1999. Plaintiff was hired to work in Revenue's Imaging and Document Division, which processes, controls, and deposits tax payments. Defendant Nancy Hughes, a white female, was Plaintiff's direct supervisor categorized as a Clerical Supervisor II.

At the time in question, the Imaging and Document Division employed six to eight full-time employees; four to six part-time employees; and, during tax season, approximately 15 temporary employees who worked only four to six weeks. Between April and September 1999, the division hired six to eight employees, of whom four to six were hired as "permanent part-time" employees. Typically, permanent part-time employees worked full-time from January through June and approximately 10 days per month between July and December. Full-time employment consisted of working 7.5 hours, Monday through Friday.

New employees in the division begin their employment with a zero balance in all leave categories. New full-time employees begin to earn leave at the rate of 5% per pay period for sick leave and 2.03 hours of annual leave per pay period. Permanent part-time employees, when working less than full-time, earn a pro-rated amount of leave. Supervisors maintain records of each employee's use of leave time.

Revenue uses the following designations for time off taken by employees:

A -- Annual Leave

P -- Personal Leave S -- Sick Leave SF -- Sick Family S EX -- Sick with Doctor's Excuse EA -- Emergency Annual EP -- Emergency Personal AO -- Approved Leave Without Pay AW -- Disapproved Leave Without Pay In most cases, a doctor's note is required only for absences of three days or more, but when an employee is working during her probationary period it is considered best to provide a doctor's excuse for all sick absences. Revenue supervisors are directed to review sick leave usage and if a pattern of abuse is noted, to counsel the employee that a pattern has been observed and that if improvement is not shown, disciplinary action may be taken.

Employees must pre-schedule annual and personal leave with their employer. Full-time and permanent part-time employees are permitted four absences for emergencies per calendar year. Emergency leave is to be used when an employee has no control over the situation that necessitates an absence from work.

Pursuant to a union contract, new Revenue employees are on probation for a period of 180 days. During this time, if a probationary employee appears to be having difficulty with attendance or job performance, an interim evaluation will be provided to inform the employee of the problems and to afford the employee an opportunity to improve. These interim evaluations typically are conducted approximately three months into the probationary period. Interim evaluations are not provided for employees who do not exhibit performance or attendance problems during their probationary periods. Probationary employees who receive interim evaluations almost always improve following their review.

Plaintiff began work as a permanent part-time employee with the Imaging and Document Division on April 5, 1999, and was assigned to the proof unit. Also on or about April 5, 1999, Mollie Rossi, a Caucasian woman hired as a permanent part-time employee, was assigned to work in the division's proof unit. After Plaintiff's hire, Defendant Hughes reviewed with her a comprehensive employee orientation checklist and reviewed Revenue's job standards, work objectives, the performance review process, and the attendance policy, including: punctuality; leave requests; reporting off; and the critical nature of the probationary period.

At least initially, both Plaintiff and Rossi were assigned to perform identical work under Defendant Hughes's supervision. Plaintiff's work required her to key in dollar amounts from tax returns and balance checks with tax returns by entering a taxpayer's social security number and the taxpayer's initials. Plaintiff believed that her job was simple and not challenging.

Notwithstanding her opinion that the work she was hired to perform was simple and that the job was so "[m]ediocre" that she "could train [her] seven year old grandson to do it," Plaintiff actually had considerable difficulty meeting her employer's expectations. (Doc. No. 23, Exhibits to Defendant's Statement of Material Facts, Ex. B, Testimony of Brenda G. Burney before Pennsylvania Human Relations Commission at 114) (hereafter, "PHRA Transcript ___".)

Between April 5, 1999, and August 10, 1999, Plaintiff's average PC entry was 1324.*fn2 The standard PC entry that employees were expected to attain was 1800. Additionally, Plaintiff's average paperwork e-voucher was 213 per hour, whereas the standard for paperwork e-voucher was 450 per hour.

Plaintiff also had difficulty adhering to the leave system during her probationary period. Between April 5, 1999, and August 10, 1999, Plaintiff used the following leave:

April 19 7.5 hours AO

April 21 1.0 hours AO

April 26 1.75 hours AW

May 7.08 hours EA

May 10 7.5 hours EP

May 13 1.5 hours A

May 28 3.0 hours A

June 7 7.5 hours Sick

June 29 2.0 hours Sick

June 8 4.0 hours Sick

July 12 7.5 hours Sick

July 19 7.5 hours A

July 20 4.39 ...

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