The opinion of the court was delivered by: O'neill, J.
Plaintiff Marie Cange filed a complaint against her former employer, defendant Philadelphia Parking Authority, alleging discrimination based on her national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d and 2000e, the Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071 (Nov. 21, 1991), and the Pennsylvania Human Relations Act, 43 Pa. Stat. § 951 et seq. Both parties have moved for summary judgment.
Plaintiff was born in Haiti and moved to the United States in 1980. Her first language is French and she speaks English with a heavy accent. She came to Philadelphia in 1988 and worked for nineteen (19) years as a cashier at the Philadelphia International Airport. After numerous ownership changes of the airport's parking operations, she eventually came to be employed by the Parking Authority in November 2004. While employed by defendant she received one verbal warning for having a shortage of funds in her cash drawer, but received no disciplinary action against her until the one leading to her termination. Her one performance evaluation conducted by defendant shows she received "satisfactory" to "above average" reviews in all categories.
When defendant assumed control of the parking operation at the Airport, plaintiff along with the other employees of the prior operator became an employee of defendant. The change in control did not affect plaintiff's job title or responsibilities. As part of the change, plaintiff and all of the other employees were required by defendant to complete certain personnel forms. She stated on the Human Resources Information Form that her "ethnicity" is African-American. On the Personnel Data Summary, she indicated "HAITI" where it requested "Name and Location of Educational Institution." Plaintiff and all of the other employees were also required to present "proof of citizenship or one of the following INS issued documents, U.S. citizen ID Card (INS Form I-197), Resident Citizen of the United States (INS form I-179)." Plaintiff presented her passport which indicates Haiti as her country of birth. Plaintiff's personnel file, which included the Personnel Data Summary form, was maintained by defendant's Human Resources Department which included Mr. William Raymond. Raymond "processed" plaintiff when defendant took over the airport parking operations.
Plaintiff was a member of and was represented by the Teamsters Local 115 union. She also was a shop steward for Local 115. Union employees like plaintiff were protected by a Collective Bargaining Agreement ("CBA") which provides that union employees may only be disciplined or discharged for "just cause."
Defendant's Cashier Standard Operating Procedures entitle a cashier to a thirty minute lunch break and two fifteen minute breaks during each eight hour shift with the first break required to be taken in the first half of the shift and the second break during the second half. The Standard Operating Procedures instructs cashiers on how to perform a "Partial End of Shift" function ("partialing out") on their computer terminals before beginning a break. Partialing out registers the start of the cashier's break in defendant's computer system.
Defendant's Standard Operating Procedures' Code of Conduct lists sixty-nine (69) different rules which if violated "may be considered grounds for disciplinary action up to and including termination." Specifically, it provides, "NO EMPLOYEE SHALL:... 44. Sleep or loaf while on duty." Defendant's Employee Manual describes progressive disciplinary actions which may be taken against an employee but also states,
The disciplinary progression just described is illustrative only. Steps in the progression may be omitted if the violations are serious in that they jeopardize the safety of employees or the public, undermine the credibility or reputation of the Authority or create a disruption of the workplace. Some violations are so serious they require immediate suspension with intent to terminate the employee. The following serious violations may lead to immediate termination:... 10. Sleeping on duty.
Plaintiff was aware that pursuant to both the Employee Manual and the Standard Operating Procedures she could be terminated for sleeping while on duty.
Defendant monitors its cashiers with video surveillance; the videotapes are reviewed at random by Video Examiners who prepare Video Incident Reports any time they observe a violation of Standard Operating Procedures. The Manager of Airport Operations reviews Video Incident Reports and related tapes and along with the Director of Airport Operations will determine the appropriateness of disciplinary action.
On September 12, 2006, plaintiff worked two eight-hour shifts. She did not take her first fifteen minute break. There was no supervisor on duty at the time she took her lunch break. Plaintiff states that her lunch break was supposed to start at 4:00 a.m. per a conversation she had with her co-worker that night, Kim Earland, and Earland was to take her lunch at 4:30 a.m. Video surveillance shows plaintiff with the lights on in her booth and her eyes closed from approximately 4:01 a.m. to 4:04 a.m. At 4:04 a.m. plaintiff "partialed out" which registered in defendant's computer the start of her lunch break. While still on her lunch break plaintiff slept for approximately three minutes beginning at 4:22 a.m. She signed back in on the computer at 4:38 a.m. which marked the end of her lunch break. The video surveillance also shows plaintiff with either her chin or face on the table in her booth for about 21 seconds at 3:24 a.m.*fn2
A Video Examiner reviewed the video surveillance tape from the night of plaintiff's shift and prepared a Video Incident Report on September 19, 2006 which stated that plaintiff was "asleep off and on between 4 & 5 AM and during rest of shift. Note (Cashier working double!)" The Report was transmitted to the Manager of Airport Administration, Joseph Boschetti, who states in his affidavit that he reviewed the video tape and determined that plaintiff was sleeping at various times while on duty between 3:00 a.m. and 5:00 a.m.*fn3 Boschetti discussed the matter with the Director of Airport Operations, Frank Ragozzino, who also concluded plaintiff was sleeping or loafing while on duty. Ragozzino and Boschetti jointly recommended that plaintiff be suspended immediately with intent to terminate.
An Employee Report was issued on September 20, 2006, and signed by Ragozzino and Raymond along with Wren Giddare, Supervisor, and Carl Ciglar, On-Street Director. The report states,
FACTS: On Tuesday, September 12, 2006 you were observed on security cameras sleeping in the cashier booth in lane 71.
ACTION TAKEN: You are charged with conduct unbecoming a PPA employee; failure to complete job duties, and sleeping or loafing while on duty. You are hereby suspended with the intent to dismiss effective immediately....
SUPERVISOR'S COMMENTS (OPTIONAL): refused to sign 9/20/06 at 2:00 pm Boschetti handed plaintiff the Employee Report on September 20 in Giddare's presence. Plaintiff stated that she refused to sign the Employee Report because she did nothing wrong and that she only slept while on her break.
Pursuant to the CBA, plaintiff and the union filed a grievance challenging the discipline. The CBA requires a Step-I hearing to be held when a disciplinary action is challenged. Plaintiff's Step-I hearing was held on September 25, 2006. Before the Step-I hearing commenced and prior to plaintiff viewing the video, Raymond asked plaintiff what was on the video. Plaintiff says she told him, "sometimes I read" and Raymond says she told him that she was praying. Plaintiff, Raymond and Butch Lane, plaintiff's business agent from the union, then viewed video of the incident on a computer outside of the hearing room. It is disputed whether plaintiff was permitted to view the entire video. After viewing the video, plaintiff, Raymond and Lane went to the hearing room and the Step-I hearing officially began. Raymond, Boschetti, plaintiff, her shop steward from the union and Lane were all present at the hearing. Once the hearing commenced Boschetti read the Employee Report. Raymond acted as the hearing officer. Raymond then asked if plaintiff had anything to say about the video and she responded that she was on her lunch break. At no time during the hearing did she mention that she was on medication.
The day after the hearing, Raymond received a printout of the activity from plaintiff's computer from the night of the incident. This report confirmed that plaintiff "partialed out" at 4:04 a.m. and signed back in at 4:38 a.m. This information was not reviewed at the hearing but it is uncontradicted that Raymond received it and reviewed it before issuing his determination. On September 28, 2006, Raymond denied the Step-I grievance challenge and stated:
The facts are that on Tuesday, September 12, 2006, Mrs. Cange was observed on security cameras at various times between 4:00 a.m. and 5:00 a.m. sleeping in a Cashier's booth while on duty.
During the hearing Mrs. Cange testified that she was not sleeping but was praying while on duty. After viewing the videotape with the Union and Mrs. Cange, she then retracted her statement. At that point Mrs. Cange had an opportunity to give the Authority some type of reasonable explanation for her actions.
Unfortunately, Mrs. Cange failed to be truthful regarding her unacceptable behavior.
Clearly, Mrs. Cange has violated the Authority's rules and regulations as it [sic] relates to sleeping while on duty.
The letter concluded by terminating plaintiff effective September 29, 2006.
Plaintiff received Raymond's letter and disagreed with its conclusions that she (1) slept at "various times between 4:00 a.m. and 5:00 a.m.... while on duty;" and (2) stated she was praying. Because of these concerns, she contacted Lane, her business agent at the ...