Opinion
No. 1803 C.D. 2012
06-07-2013
Tyrone Cook, Appellant v. Big Beaver Falls School District
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge (P) HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Tyrone Cook, who commenced the underlying civil action against his employer, the Big Beaver Falls School District (School District), asserting causes of action for wrongful termination and retaliation, currently appeals from the judgment entered in favor of the School District following denial of his post-trial motions. In rendering judgment in favor of the School District, the Court of Common Pleas of Beaver County (trial court) found that Cook failed to meet his burden of proving that the School District fired him because he was an African American or that the School District terminated him in retaliation for filing claims of discrimination and harassment against the School District. On appeal, Cook contends that the trial court employed the wrong analytical framework to adjudicate his discrimination claims, erred in admitting evidence of several arbitration awards determining that the School District had just cause to discipline him, and rendered a decision against the sufficiency of the evidence. We affirm.
Cook was suspended from his position as Assistant Head Custodian with the School District following an incident that occurred in September 2003, and ultimately terminated when his subsequent grievance was denied. Believing that his termination violated the Pennsylvania Human Relations Act (Act), Cook commenced a civil action against the School District. Following a five day bench trial, judgment was entered in favor of the School District.
Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963.
Cook exhausted his administrative remedies before the Pennsylvania Human Relations Commission prior to commencing his civil suit.
A large portion of Cook's evidence at trial centered on Cook's perceived relationship with his supervisor, Robert Pelaia, and detailed various interactions between the two men.
According to the facts set forth in the trial court's opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), Cook was hired by the School District in 1997, and shortly thereafter, he was promoted to Head Custodian. Cook was unable to obtain the requisite certification to maintain that position and was subsequently reassigned to the Assistant Head Custodian position. While an assistant head custodian, Cook received numerous disciplinary warnings regarding his failure to properly perform his job or follow procedure. Specifically, he was disciplined for: (1) failing to program air handlers for a volleyball game in September 1998; (2) failing to call in a replacement custodian in October 1998; (3) failing to clean around the swimming pool in September 1999; and (4) failing to abide by an agreement regarding cleaning and sweeping duties in December 1999. A disciplinary conduct meeting also occurred in August of 2000 because Cook pled guilty to disorderly conduct and possession of marijuana. Although the School District could have terminated Cook for that criminal conduct, he was not discharged at that time.
However, Cook was discharged in light of his past disciplinary record and particular conduct on April 5, 2002, and September 23, 2003. Specifically, on April 5, 2002, a custodian was needed to secure the school building after a school dance. The credited evidence established that if the head custodian and "floater" custodian were not available to close the school, the assistant head custodian assumed the responsibility. Because the head and floater custodians were not available to close the school on that occasion, Cook was informed that he was responsible for closing the school after the dance. Cook disagreed that it was his responsibility and engaged in a verbal and physical altercation with Robert Pelaia, his supervisor, following which he left work before the end of his shift, claiming that he was sick. According to procedure, Cook was required to follow his superior's directive and pursue a grievance later; Cook knew the required procedure and that he failed to follow it. Thus, he disobeyed his supervisor and failed to follow the grievance process. The School District imposed a five day suspension without pay; an arbitrator denied the subsequent grievance, upholding the discipline imposed.
The testimony adduced at trial indicated that Cook's regular shift ended at 10:30 p.m. and the dance would require the school to be closed sometime around 11:00 p.m.
Cook did not seek medical attention after leaving work.
Cook was involved in another altercation with Pelaia on September 23, 2003. On that day, Cook again refused to perform requested tasks and engaged in a heated exchange with Pelaia about the matter, during which he threatened Pelaia and used profane language. Cook similarly asserted after the altercation that he wasn't feeling well and left the school. The School District's superintendent, Dr. Bayat, conducted an investigation and thereafter suspended Cook with notice that his termination would be pursued. Cook grieved the suspension and an arbitrator eventually found just cause for his dismissal in 2004. The trial judge specifically noted that she disbelieved Cook's assertions of illness as justification for leaving work on April 5, 2002, and September 23, 2003.
Although not a part of the trial court's findings, Cook adduced evidence at trial that he filed two grievances: one in July 2003 after Pelaia refused to give him the security code to enter a building and another in August 2003, alleging harassment and discrimination. See Reproduced Record (R.R.) at 16, 18, respectively. He also wrote to the Equal Employment Opportunity Commission at the end of August 2003, asserting that he was given unfair or discriminatory work assignments. See R.R. at 21-22.
The evidence demonstrated that Cook, as well as the other custodians, were asked to perform additional tasks in order to prepare for visitors coming to view the school's new fitness center. According to the School District's evidence, the additional tasks assigned to Cook were not arduous or overly time-consuming.
Pursuant to School District policy and the applicable collective bargaining agreement, Cook could not be terminated unless an arbitrator found just cause for dismissal.
Notably, in her Rule 1925(a) opinion (Opinion), the trial judge opined that the burdens of proof announced in McDonnell Douglas v. Green, 411 U.S. 792 (1973) applied. The court concluded that Cook failed to meet his burden of proof because he failed to demonstrate that he was terminated because of his race or that persons who were not members of a protected class were treated more favorably than he was treated. The court further held that even if Cook had met his initial burden, the School District presented legitimate, non-discriminatory reasons for terminating Cook and Cook did not demonstrate that such reasons were a pretext for discrimination. The court also found that Cook failed to meet his burden of proof on his claim of retaliation.
Notably, the trial court stated:
Mr. Cook contends that he was fired because [Pelaia] is racist. Mr. Pelaia is a crude man and seems to have a low level of maturity. However, he indiscriminately treated all of his employees, including Mr. Cook, poorly. In fact, one of Mr. Cook's witnesses, Mike McKinney, who is not an African-American, testified that he too was mistreated by [Pelaia].Trial Court's Opinion Pursuant to Rule 1925(a) (Opinion) at 3 (attached to Cook's appellate brief). The court further noted that it found "Mr. Cook's excuse that he went home because he was sick on both . . . occasions . . . simply not credible . . . ." Id. at 4.
Cook first argues that the trial court employed the wrong burden of proof when it followed the analytical model set forth in McDonnell Douglas, which applies to circumstantial or pretextual cases of discrimination. According to Cook, the court should have employed a "mixed-motive" analysis, applicable when a plaintiff can demonstrate that an impermissible characteristic, such as race, was a motivating or determinative factor in an employment decision. In the alternative, Cook maintains that under McDonnell Douglas, he demonstrated that the School District's proffered reasons for terminating him were pretextual.
See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). See also Garner v. Pa. Human Rels. Comm'n, 16 A.3d 1189, 1201 (Pa. Cmwlth. 2011).
To begin, it is an unlawful discriminatory practice for an employer because of race to discharge an individual or otherwise discriminate against him with respect to terms, conditions or privileges of employment. Section 5(a) of the Act, 43 P.S. § 955(a). It is also an unlawful discriminatory practice for any employer to discriminate in any manner against an individual because such individual opposed any practice forbidden by the Act or made a charge under the Act. Section 5(d), 43 P.S. § 955(d).
Pennsylvania has adopted the analytical model set forth in McDonnell Douglas for evaluating a claim that an employer has engaged in unlawful discrimination. Garner v. Pa. Human Rels. Comm'n, 16 A.3d 1189, 1198 (Pa. Cmwlth. 2011). Under this model, the plaintiff demonstrates a prima facie case of discrimination by showing that: "(i) he is in a protected class; (ii) he is qualified for the position; (iii) he suffered an adverse employment action; and (iv) he was discharged under circumstances giving rise to an inference of discrimination." Id. Once the plaintiff meets this burden, a rebuttable presumption of discrimination is established. The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for its action. Id. If the employer does so, the burden shifts back to the plaintiff to demonstrate that the employer's articulated reason for the employment decision was pretextual. Id. The fact-finder must then decide which party's explanation of the employer's action it credits. Accord Montour Sch. Distr. v. Pa. Human Rels. Comm'n, 530 A.2d 957 (Pa. Cmwlth. 1987). Although the burden of going forward shifts, the ultimate burden of persuasion remains with the plaintiff.
This approach was adopted by our Supreme Court in General Electric Corp. v. Pennsylvania Human Relations Commission, 469 Pa. 292, 365 A.2d 649 (1976). Garner, 16 A.3d at 1198 n.5 (Pa. Cmwlth. 2011).
Cook suggests that he presented direct evidence of discrimination, or at least sufficient evidence warranting a mixed-motive analysis, because he demonstrated a work environment hostile to African Americans. According to Cook, he demonstrated, inter alia, that Pelaia used the racial term "nigger" as well as the phrase "you people" when referring to African American workers. He further contends that Pelaia treated him in a harassing manner, unduly monitoring his work, yelling at him, and assigning him inappropriate tasks. Cook maintains that he was disciplined for using profanity when addressing Pelaia when other white workers were not similarly disciplined for use of profanity in the workplace.
Initially, we dismiss Cook's contention that he presented direct evidence that he was terminated because he is African American, requiring application of the analytical framework set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). See also New Corey Creek Apartments, Inc. v. Pa. Human Rels. Comm'n, 865 A.2d 277 (Pa. Cmwlth. 2004) (discussing burdens applicable where direct evidence of discrimination is presented). "Direct evidence of discrimination is evidence that is so revealing of a discriminatory animus that it is not necessary for the plaintiff to rely on a presumption from his or her prima facie case to shift the burden of production to the defendant." Garner, 16 A.3d at 1201 n.10 (Pa. Cmwlth. 2011) (internal quotations and citation omitted). This simply was not a direct evidence case. Cook did not produce any direct evidence that his race played a role in the School District's decision to terminate his employment. Moreover, Superintendent Bayat, not Pelaia, the alleged harasser, terminated Cook after conducting an investigation. Cook does not point to any evidence demonstrating that Bayat acted with overt discriminatory intent. Compare New Corey Creek Apartments; Montour Sch. Dist. v. Pa. Human Rels. Comm'n, 530 A.2d 957 (Pa. Cmwlth. 1987).
Traditionally, a mixed-motive analysis has been applied when the employer has both a legitimate and an improper reason for the adverse employment action. See generally Garner. In such cases, the plaintiff has been required to demonstrate with direct evidence that the discrimination was either a motivating or determinative factor behind the adverse employment action. Garner, 16 A.3d at 1201. There is no merit to Cook's contention in this regard. Even assuming Cook presented evidence that if believed would establish that his race played a role in his dismissal, the trial court did not credit it. The court specifically found that Cook did not show that race was a motivating or determinative factor in his termination. Rather, the trial court found that Pelaia treated all workers in a disrespectful manner, negating any inference that Cook was targeted or harassed because of his race. Moreover, the court's findings indicate that Cook was fired because of his disciplinary history demonstrating increasingly serious infractions; most recently he was twice insubordinate and walked off of the job. Accordingly, the trial court did not err in following McDonnell Douglas to analyze Cook's claim.
The "mixed-motive" analysis stems from the United States Supreme Court's plurality opinion in Price Waterhouse. While not ultimately relevant here, that analytical model and the burdens and remedies thereunder, have been refined and clarified by the Civil Rights Act of 1991, P.L. 102-166, particularly Section 107, 42 U.S.C. § 2000e-2(m), as well as Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).
Cook also contends that if the evidence is viewed under the McDonnell Douglas standard, the trial court "failed to reconcile the ample evidence of discrimination against other employees which was relevant to 'whether one of the principal non-discriminatory reasons asserted by an employer for its actions was in fact a pretext for . . . discrimination.'" Brief at 27 (internal citation omitted). In making this argument, Cook argues his version of the facts, attempting to weaken or discredit the School District's evidence. This contention lacks merit as well.
Here, the trial judge obviously rejected any possible inference of discrimination that could have been drawn from Cook's evidence because she found that Cook failed to meet his initial burden of proof under McDonnell Douglas. Therefore, the court's findings regarding the School District's proffered reasons for termination were actually superfluous. Notwithstanding Cook's failure to meet his prima facie burden, the court found that the School District had a legitimate, non-discriminatory basis to terminate Cook: he "walked off the job twice, in defiance of his supervisor." Opinion at 7. In short, Cook bore the burden of persuasion and he simply failed to produce credible evidence demonstrating discriminatory intent or pretext.
Cook also suggests that the trial court erred in rejecting his retaliation claim. According to Cook, he filed a series of complaints with the Equal Employment Opportunity Commission prior to his termination, and several weeks before his termination, he filed a grievance alleging "discrimination and harassment" against the School District, following which his supervisors began to seek his termination. This contention lacks merit for the same reasons as the last. Cook failed to persuade the trial court that he was terminated in retaliation for his complaints of discrimination. Despite the fact that he was fired shortly after he contacted the EEOC, the credited evidence demonstrated that he was fired because he refused to perform assigned tasks, engaged in a verbal altercation with his supervisor, even threatening him, and subsequently walking off the job without good reason.
A prima facie case of retaliation is established when the plaintiff demonstrates that: (1) he was engaged in a protected activity; (2) the employer was aware of the activity; (3) the plaintiff suffered an adverse employment decision after participation in the activity; and (4) there was a causal connection between the participation in the activity and the adverse employment action. Spanish Council of York, Inc. v. Pa. Human Rels. Comm'n, 879 A.2d 391, 399 (Pa. Cmwlth. 2005). When the adverse employment action occurs close in time to the protected activity, causation may be inferred. Circle Bolt & Nut Co. v. Pa. Human Rels. Comm'n, 954 A.2d 1265, 1278 (Pa. Cmwlth. 2005). Once the plaintiff meets his prima facie burden, the employer must demonstrate a legitimate, non-discriminatory reason for its action. Spanish Council, 879 A.2d at 399.
Next, Cook contends that the trial court erred in admitting into evidence the arbitration awards, which demonstrated both that the School District used progressive discipline with Cook and that an arbitrator concluded that it had just cause to suspend Cook in 2002 and terminate him in 2003. Cook seems to imply that since claims of discrimination were not raised or addressed during the arbitration proceedings, the awards were not relevant to the issue of whether the School District had a legitimate reason to terminate him. He also suggests that the awards cannot be given preclusive effect in a claim brought under the Act.
The admission or exclusion of evidence lies within the sound discretion of the trial court and cannot be disturbed absent a clear abuse of discretion. Com. v. TAP Pharmaceutical Products, Inc., 36 A.3d 1112, 1186-1187 (Pa. Cmwlth. 2011). Here, Cook fails to cite to any authority supporting his claim that the decisions were inadmissible. The evidence demonstrated that the School District could not terminate Cook until an arbitrator found just cause for termination. The trial court admitted the arbitration awards for the purpose of demonstrating that the School District followed the grievance process and relied upon the awards in terminating Cook; the court did not consider the arbitrators' reasoning in concluding that just cause existed to terminate. Thus, the awards were relevant to whether the School District acted properly. Contrary to Cook's suggestion, the arbitrators' findings were not given preclusive effect in the civil action contrary to Frog, Switch & Manufacturing Co. v. Pennsylvania Human Relations Commission, 885 A.2d 655 (Pa. Cmwlth. 2005).
Accord Becton v. Detroit Terminal of Cons. Freightways, 687 F.2d 140, 142 (6th Cir. 1982). There, the Sixth Circuit Court of Appeals opined as follows:
We do not hold that the arbitration decision [which addressed only whether the employer had just cause to dismiss the plaintiff] is without significance. Certainly the [District Court] may consider the arbitration decision as persuasive evidence that the grounds found by the arbitrator to be just cause for discharge under the [CBA] are sufficient to amount to just cause. The court should defer to the arbitrator's construction of the contract. Moreover, an arbitration decision in favor of employer is sufficient to carry the employer's burden of articulating "some legitimate, nondiscriminatory reason for the employee's rejection." However, to allow that decision to answer conclusively the questions raised in the final step of the McDonnell Douglas analysis unnecessarily limits the plaintiff's opportunity to vindicate his statutory and constitutional rights.
Even assuming arguendo that the trial court did err as alleged, such error would not constitute sufficient grounds for a new trial. A new trial is warranted only if the error affected the outcome of the case. Cummings v. State Sys. of Higher Educ., 860 A.2d 650 (Pa. Cmwlth. 2004). The trial court found that Cook failed to establish a prima facie case of discrimination. Moreover, the court found legitimate reasons to support termination without reliance on the arbitrator's reasoning. --------
Finally, we discern no merit in the argument that the verdict is against the weight of the evidence. In making this argument, Cook essentially reargues his version of the facts and points to perceived weaknesses or flaws in the case presented by the School District. Specifically, he contends, among other things, that the trial court failed to address or resolve his evidence demonstrating that: (1) he complained of discrimination shortly before he was terminated; (2) he was repeatedly harassed by Pelaia; (3) Pelaia assigned him burdensome and discriminatory work assignments; (4) Pelaia used racially derogatory language when addressing Cook and other African American employees; and (5) white employees used profanity without incurring discipline.
In Commonwealth, Department of General Services v. United States Mineral Products Co., 598 Pa. 331, 341-42, 956 A.2d 967, 973 (2008), our Supreme Court opined that:
In evaluating a claim that a verdict is against the weight of the evidence, Pennsylvania courts employ a shocks-the-conscience litmus. The trial judge's authority to award a new trial on weight-of-the-evidence grounds is narrowly circumscribed on account of the principle that credibility questions are exclusively for the fact finder. . . . Relief is available in an appellate court only if it can be said that the trial court acted capriciously or palpably abused its discretion. [Internal citations, quotations and footnote omitted.]Here, after a review of the record, we conclude that the judgment does not shock the conscience or represent an abuse of discretion. Cook's version of the facts was simply not credited. Consequently, he failed to prove that the School District acted with discriminatory motive when it terminated him or that the articulated reasons for termination were a pretext.
In reaching this conclusion, we also note that the record reveals ample affirmative evidence, implicitly accepted by the trial judge, to support the court's decision. Notably, Cook admitted that he failed to adhere to established procedure when he refused to follow his supervisor's instructions on the last two occasions when he was disciplined and he did not deny that he was confrontational, loud or threatening during these incidents. In addition, after investigating the April 5, 2003, incident involving Cook as well as Cook's claim that Pelaia treated him unfairly because of his race, Dr. Bayat concluded that Pelaia did not monitor African American employees more closely than other employees, and the complaints of racism or unfair treatment stemmed from the fact that Pelaia was a demanding supervisor, not racist. In addition, Dr. Bayat testified that during his tenure, he was unaware of any other employees who abandoned their job or exhibited the same degree of insubordination that Cook committed. Moreover, he specifically stated that Cook was not terminated for using profanity. Rather, according to Bayat, profanity was merely part of the incident, noting that, "there were other things that tipped it. . . . [I]t was the threat towards the supervisor, which is always a concern . . . ." Notes of Testimony (Volume 2) at 471 (October 18, 2011). Pelaia denied using racially derogatory language when addressing the custodial staff or other school employees or treating people differently based upon race. Finally, it bears noting that other employees testified to Cook's inappropriate conduct on September 23, 2003, describing his loud and threatening behavior as well as use of profanity when addressing Pelaia. We will not re-weigh the evidence or substitute our view of credibility for that of the fact finder.
Based upon the foregoing, the judgment is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 7th day of June, 2013, the judgment of the Court of Common Pleas of Beaver County in the above captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge
Id. at 142 (internal citations omitted).