HARLAN I. JOHNSON, SR.
DELAWARE COUNTY JUVENILE DETENTION CENTER
Stewart Dalzell, J.
Harlan I. Johnson, Sr. brings this employment discrimination action against the Delaware County Juvenile Detention Center. Johnson alleges that in firing him the Detention Center discriminated against him based on his race in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., based on his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 626, and based on both race and age in violation of the Pennsylvania Human Relations Act.
The Detention Center moved to dismiss Johnson’s amended complaint in its entirety. On March 16, 2012, we denied this motion except with respect to Count II of Johnson’s amended complaint, alleging a violation of the 1866 Civil Rights Act, and Count V, alleging a violation of Johnson’s rights under the First Amendment. Johnson informed the Court that he would not pursue either claim, and so we dismissed these counts.
I. Procedural History and Undisputed Facts
In our March 26, 2012 Memorandum we relied on the facts as pled in the complaint, and we now consider the undisputed facts in the record before us.
Johnson is an African-American man born in 1957, and he began work as a detention officer at the Detention Center on June 13, 1994. Joint Pretrial Stipulation (hereinafter “Stip. Facts”) at 1-2. The Detention Center is governed by the Board of Judges of the Court of Common Pleas of Delaware County --Pennsylvania’s Thirty-Second Judicial District -- and it provides temporary detention of young people who are alleged to have committed crimes. Id. at 2. From January 1999 until December 2010, Ronald Berry was the Director and highest officer at the Detention Center. Id.
Detention Center employees work under a collective bargaining agreement (CBA) with the American Federation of State, County and Municipal Employees, District Council 88 (AFSCME) which provides that employees may only be discharged for cause. Pl. Resp. in Opp. Ex. 1 at 35. A Supplementary Agreement governs the economic terms of the subset of Judicial District employees within the larger bargaining unit of county employees. Id. at 44-45. For employees covered by this supplemental agreement, the Delaware County Court of Common Pleas, rather than an arbitrator, hears their discharge grievances. Stip. Facts at 2.
Because the role of judges in the employment of Judicial District employees plays a significant role in our determination here, we will explain that role further. In Ellenbogen v. County of Allegheny, 479 Pa. 429 (Pa. 1978), the Pennsylvania Supreme Court explained that the General Assembly had recently amended the County Code to give county commissioners the exclusive authority to represent managerial interests “in representation proceedings and at the bargaining table” when employees paid from the county treasury exercised their collective bargaining rights. Id. at 435. Specifically, the amendment to the County Code provided that “with respect to representation proceedings before the Pennsylvania Labor Relations Board or collective bargaining negotiations involving any or all employe[e]s paid from the county treasury, the board of county commissioners shall have the sole power and responsibility to represent judges of the court of common pleas”, Id. (quoting 16 P.S. § 1620). Though some employees “paid from the county treasury” are employees of Pennsylvania’s judicial districts, the General Assembly gave county commissioners -- rather than judges -- this bargaining responsibility in order to advance several policy aims, which the Pennsylvania Supreme Court described at length. Id. at 436-37 (explaining that this system promotes fiscal responsibility, consolidates decision-making authority during bargaining, allows judges to focus on judicial responsibilities, and avoids the potential impropriety of “judges deciding appeals arising from proceedings in which they sat . . . at the bargaining table”).
But the General Assembly provided within this amendment that judges would retain their “hiring, discharging, and supervising rights and obligations with respect to such employe[e]s.” Id. at 435 (quoting 16 P.S. § 1620). Section 1620 does not explain whether judges’ discharge rights require that Judicial District employees work “at-will.” It does not explain, for example, whether retaining the judges’ discharge authority means that Judicial District employees covered by collective bargaining agreements that provide for “for cause” discharge are nevertheless at-will employees, or whether judges merely retain the discretion to determine whether there exists cause for termination. We will return to this question below.
The Delaware County Juvenile Detention Center Policies and Procedures handbook explains that under the CBA, “Any employee shall be subject to an immediate discharge without notice” for reasons including “[a]bsenting one’s self without supervisory permission from the customary place of his work assignment”, Policies and Procedures Manual at 3.1.13; Def. MSJ Ex. A at 16. The manual also provides that
Detention Officer[s] . . . are not permitted to bring cellular phones . . . into the facility. Supervision of the residents can not be accomplished by someone who has their attention focused on personal phone calls . . . Staff who violate this policy are subject to discipline up [to] and including termination.
Id. at 3.1.15.
On May 15, 2006, in an incident not directly in issue here, Berry fired Johnson for absence from his assigned duty station. Stip. Facts at 2. Johnson and AFSCME grieved his termination. Judge Edward J. Zetusky, Jr. presided over a hearing on the grievance and issued an order on December 11, 2006 setting aside Johnson’s termination. Id. As a condition of Johnson’s reinstatement, Judge Zetusky ordered that if in the future Johnson “absents himself from his assigned duty station, for any reason, without permission, he will be subject to immediate termination”, Id. at 3.
On January 11, 2010, while Johnson was on duty in Unit C-1, he conducted a cellular phone call for about five minutes in an area containing a stairwell and staff lockers. Id. at 3. That area is inaccessible to inmates and the phone conversation took place in front of surveillance cameras. Id. On January 19, 2010, Berry fired Johnson for violating Judge Zetusky’s Order and the Detention Center’s cellular phone policy. Id.
Johnson filed a grievance of that termination, and Judge Chad F. Kenney, Sr. of the Delaware County Court of Common Pleas presided over the hearing. Judge Kenney affirmed Berry’s decision and issued an order in which he found (1) “Mr. Johnson may have stayed within the confines of the ‘C-1 Unit’, however, the surveillance video clearly showed that Mr. Johnson left the place of his work assignment”, and (2) “Harlan Johnson is found to have absented himself from his assigned duty station without supervisory permission”. Id.
Johnson filed a charge of discrimination based on race and age with the Equal Employment Opportunity Commission (EEOC) in April of 2010 and with the Pennsylvania Human Relations Commission within 180 days of his termination date. Id. at 4.
Johnson argues that a similarly situated, younger, white employee –- Nicholas Bellosi -- was not disciplined as severely as he was in 2006 and 2010. Bellosi, who was born in 1982, began working with the Detention Center in 2004. Pl. Resp. in Opp. Ex. 9 at 1-2. According to a report from the Detention Center, on December 13, 2009, a resident assaulted Bellosi, leaving scratches and bruises on his face. Id. at 3. A nurse at the Detention Center treated Bellosi and released him to return to work. Id. at 4-5. His supervisor wrote, “Mr. Bellosi was instructed to call his Union Rep for further instruction on whether he should leave or stay for the end of his 3-11 shift”, and he noted that he “felt Mr. Bellosi did not suffer any physical, shift altering injuries to prevent him from staying.” Id. Mr. Bellosi then left for the day, apparently without supervisory permission. Id. He returned to work the next day with a note from a doctor saying that he was “medically cleared to return to work.” Id. at 6. Berry acknowledged that Bellosi did not have supervisory permission to leave, Pl. Resp. in Opp. Ex. 12 at 54:23-25, but he says it was his understanding that Bellosi “felt that the treatment that he got from the nurse was inadequate, that he was hurt, and that he was going to go to his own doctor.” Id. at 54:7-9.
Johnson avers that before he was fired, no one had ever been fired for violating the cellular phone policy. Pl. Resp. in Opp. at 9. In his deposition, Berry said he “believed” he had fired someone for use of a cell phone, but he could not recall the employee’s name. Id. Ex. 12 at 63:9-13. Berry recalled, “one of the staff had given his cell phone to one of the kids to make a phone call. And I believe I terminated him.” Id. at 63:16-18. Johnson testified that a resident had used the cell phone of an employee whose name he thought was Al Harrington, but that Johnson did not believe Harrington was fired. Id. Ex. 11 at 105:21-106:14. According to Johnson, Al Harrington was African American. Id. at 106:2. Johnson’s counsel explains that an African American employee named Alan Herring was suspended without pay for five days when a resident used Herring’s cell phone to call his girlfriend. Id. Ex. 13 at 1. Berry did not fire Herring; instead, Herring resigned more than two years later. Id. at 3. After Johnson began grieving his termination, Mark Murray, the director who succeeded Berry, terminated two employees -- Christopher Guille and Michael Fortune -- for violating the cell phone policy, see Id. at 6-7. Neither party provides information about Guille or Fortune’s race.
I. Standard of Review
A. Summary Judgment
A party moving for summary judgment bears the initial burden of informing the district court of the basis for its argument that there is no genuine issue of material fact by “identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ’ which it believes demonstrate the absence of a genuine issue of material fact”, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets this initial burden, Fed.R.Civ.P. 56 then obliges “the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file, ’ designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324.
A factual dispute is genuine
[I]f the evidence is such that a reasonable jury could return a verdict for the nonmoving party. . . . The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law”. Id. at 248.
We “must draw all reasonable inferences in favor of the nonmoving party, and [we] may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000), cited in Amour v. County of Beaver, PA, 271 F.3d 417, 420 (3d Cir. 2001)).
B. The Pennsylvania Human Relations Act
The same legal standards and analysis govern claims of race discrimination under the PHRA and Title VII and age discrimination claims under the PHRA and ADEA. See, e.g., Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313, 317 n.3 (3d Cir. 2000) (“The analysis required for adjudicating [plaintiff]’s claim under PHRA is identical to a Title VII inquiry, and we therefore do not need to separately address her claim under the PHRA”) (internal citation omitted); Glanzman v. Metropolitan Management Corp., 391 F.3d 506, 509 n.2 (3d Cir. 2004) (“the same legal standards and analysis are applicable to claims under both the ADEA and the PHRA”) (internal quotation omitted). Our Title VII and ADEA analyses will thus apply to Johnson’s PHRA claims as well.
C. Race Discrimination Under Title VII
Under Title VII it is “an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race”, 42 U.S.C. § 2000e-2(a).
As our Court of Appeals has explained, a Title VII plaintiff can sustain a claim of discrimination under either a mixed-motive theory or a pretext theory. Makky v. Certoff, 541 F.3d 205, 213 (3d Cir. 2008). Here, Johnson pursues only a pretext theory. See Pl. Resp. 12-18.
The Supreme Court established the burden-shifting framework for showing pretext in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, a Title VII plaintiff “bears the burden of proof and the initial burden of production, having to demonstrate a prima facie case of discrimination”. Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009). A plaintiff makes a prima facie case of a Title VII violation by showing “(1) that he is a member of a protected class; (2) that he is qualified for the position; (3) that he was either not hired or fired from that position; (4) under circumstances that give rise to an inference of unlawful discrimination such as might occur when the position is filled by a person not of the protected class.” Jones v. School Dist. of Philadelphia, 198 F.3d 403, 410-11 (3d Cir. 1999) (internal quotations and emphasis in original omitted).
Our Court of Appeals has stressed that “[t]he central focus of the inquiry” of whether a plaintiff has made a prima facie case under McDonnell Douglas in a Title VII action is “always whether the employer is treating some people less favorably than others because of their race, color, religion, sex, or national origin.” Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 352 (3d Cir. 1999) (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978) (further internal quotations omitted). As the Supreme Court has explained, the method for making a prima facie case “was never intended to be rigid, mechanized, or ritualistic”, Furnco, 438 U.S. at 577. A prima facie case of racial discrimination in a disparate treatment case such as this one involves a showing that the plaintiff was treated differently from similarly-situated individuals of a different racial group. See, e.g., Whack v. Peabody & Wind Engineering Co., 595 F.2d 190, 193 (3d Cir. 1979).
In Stanziale v. Jargowsky, 200 F.3d 101 (3d Cir. 2000), our Court of Appeals explained that, under McDonnell Douglas, after the ...