Opinion
No. 2214 C.D. 2011
04-09-2013
John D. Zechman, Petitioner v. Pennsylvania Human Relations Commission, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Petitioner, John D. Zechman, appeals from the order of the Pennsylvania Human Relations Commission (Commission), which dismissed his complaint for failure to prove discrimination under the Pennsylvania Human Relations Act. We affirm.
Act of October 27, 1955 P.L. 744, as amended, 43 P.S. §§ 951-963. --------
Petitioner was born on May 13, 1947. The Pennsylvania State Police (PSP) hired Petitioner as a cadet on May 22, 1969. Following graduation from the PSP training academy, Petitioner was assigned to Troop G and later assigned to a troop in Bedford. Petitioner's next assignment was to a troop in McConnellsburg where he served as a patrol trooper, investigator and a deputy fire marshal. In 1984, Petitioner was promoted to corporal and transferred to Millersburg where he served as a patrol supervisor. While working as a corporal, Petitioner was assigned to McConnellsburg barracks where he served as a criminal investigation unit supervisor, and on occasion served as acting station commander for extended periods. In 1997, he was transferred to PSP headquarters in Harrisburg where he served as supervisor of the Criminal Records Section, Bureau of Records and Identification. On March 21, 1998, he was promoted to sergeant. He remained with the Bureau of Records and Identification until he retired on April 21, 2007. His primary job at PSP headquarters was to create and purge criminal history records and maintain the central repository of all criminal records.
In 2003, Petitioner notified his immediate supervisor that he wanted to take the examination for lieutenant. PSP periodically announces promotional examinations for the position of lieutenant. Sergeants who have one year in grade may apply for the position of lieutenant. The promotional examination for lieutenant consists of two parts, an oral exam before a board of review, and a written examination. For each test there are two score bands for promotion: the immediately eligible list, and the eligible list. Candidates scoring 80 or more were placed on the immediately eligible list. Candidates from the eligible list would not be selected for promotion until all candidates from the immediately eligible list were promoted. Petitioner took the examination, received a score of 87 and was placed on the 2003 immediately eligible list.
The 2003 eligibility list for lieutenant consisted of 115 troopers with their employee identification number, date of last promotion, date of enlistment, date of birth, gender, and race of each candidate. A promotion list is usually good for two years. Upon the creation of the 2003 eligibility list for lieutenant, a copy was sent to Col. Jeffrey Miller, Commissioner of the PSP, electronically in an Excel spreadsheet. Miller sorted the list first based on time in grade and then based on time of enlistment. The date of birth field on the eligibility list was not necessary although the dates could be used to distinguish between candidates with the same name. Eligibility lists published after the expiration of the 2003 eligibility list did not include the date of birth field.
In March 2005, Miller promoted four sergeants to the rank of lieutenant: Mark Lavelle, age 46, Thomas McClung, age 47, David Buckley, age 37 and Dennis Hile, age 51. Members of the PSP may retire after 25 years of service or reaching age 50 and are subject to mandatory retirement at age 60. At all relevant times the PSP was an "employer" as defined by Section 4(b) of the Pennsylvania Human Relation Act. 43 P.S. § 954(b).
In September 2005, the Petitioner filed a timely complaint with the Commission, alleging age discrimination. Petitioner alleged that Lavelle, McClung, Buckley and Hile were less qualified for promotion as they had less time as supervisors, less service time, and less time in leadership than him. Petitioner alleged that he was not promoted based upon his age of 57. The Commission conducted a multi-day hearing at which seventeen witnesses testified.
The testimony most relevant to the issues in this appeal was provided by the former PSP Commissioner, Miller. Miller testified that he received the eligibility list in Excel format. He first sorted the list by time in grade and then by date of enlistment. Miller stated that he announced to his deputies that he was considering promotions and asked the deputies to talk with directors and commanders for recommendations regarding outstanding candidates and whose skills and abilities would best suit the available positions. Miller testified that he met with his deputies on several occasions to discuss promotions. Although Miller had the final decision on promotions, the deputies were free to relay the recommendations garnered from directors and commanders and their own opinions regarding candidates. Miller stated that age was not a factor in his decisions. Miller testified that when Petitioner was discussed, Henry Oleyniczak, Deputy Commissioner of Staff, relayed that Petitioner's supervisor, Major Theirwechter, had said that he should be considered for promotion based upon his longevity in his current position. Miller testified that based on this brief discussion he formed the opinion that Petitioner was an adequate performer, but not an outstanding performer.
The PSP submitted evidence showing that (1) ten of the 39 sergeants promoted had more time in grade than Petitioner; (2) 7 candidates had the same amount of time in grade as Petitioner; and (3) Petitioner had less than 2 years more time in grade than 11 candidates. The PSP also submitted evidence that during Miller's tenure he promoted 32 individuals over the age of 50 to lieutenant, captain or major and that 15 of those 32 individuals were promoted in the 2003-2005 timeframe. Further, 4 individuals over the age of 50 were promoted to lieutenant in 2003-2005 timeframe.
The Commission found that Petitioner had established a prima facie case of age discrimination because: (1) his age placed him in a protected class, (2) he took all the appropriate steps to apply for promotion and was placed in the immediately eligible category, (3) he was not promoted and (4) the candidates of similar qualifications who were promoted were younger than Petitioner.
The Commission then concluded that the PSP presented several legitimate and non-discriminatory reasons why Petitioner was not promoted. First, the PSP's retirement policies permitting retirement as early as age 50 results in a much smaller pool of candidates over the age of 50. Second, only 39 of the 116 immediately eligible sergeants were promoted from the 2003 promotion list. Third, the PSP presented evidence that promotions were made at the sole discretion of Miller. The Commission found that Miller credibly testified that age was not a factor in awarding promotions. The Commission also credited Miller's testimony that he met with his deputy commissioners to discuss promotions and that the deputies provided information regarding candidates based upon their own experiences and recommendations from directors and commanders in their chain of command. The Commission accepted Miller's testimony that when he questioned deputy Oleyniczak about Petitioner, Oleyniczak stated Petitioner should be considered for longevity in his current position. Miller further credibly testified that based on this information he formed the opinion that Petitioner was adequate but not excellent performer.
The Commission then determined that Petitioner had failed to establish that the PSP's non-discriminatory reasons for not promoting him were pretextual. The Commission rejected Petitioner's contention that his qualifications were equal to or better than the named comparators, Buckley, Lavelle, McClung and Hile. The Commission also rejected Petitioner's suggestion that an adverse inference should be drawn from the fact that neither Miller nor Oleyniczak sought additional information regarding Petitioner from anyone in his chain of command. The Commission found that there was no evidence that Miller or Oleyniczak ever followed such a procedure. The Commission entered judgment in favor of the PSP. This appeal followed.
The Pennsylvania Supreme Court has adopted the burden-shifting model for determining the merits of an employment discrimination case established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Allegheny Housing Rehab. Corp. v. Pa. Human Relations Comm'n, 516 Pa. 124, 532 A.2d 315 (1987). Under McDonnell Douglas, as applied in this context, a plaintiff must offer a prima facie case demonstrating that he is a member of a protected class, suffered an adverse employment action, and others not in the protected class have been treated differently, which would raise an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the action. Id. Once this burden is met, the plaintiff has an opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the employer were not its true reasons, but were a pretext for discrimination. Id. at 804. To the extent the burden shifts to the employer, it is a burden of production. The ultimate burden of persuasion always remains with the claimant. Pa. State Police v. Pa. Human Relations Comm'n, 583 A.2d 50, 55 (Pa. Cmwlth. 1990). The Commission is the sole judge of the credibility of witnesses and decides what evidence should be accepted as fact and what weight should be given to the evidence. Id. This Court may not substitute its judgment for that of the Commission and it must accept its findings, if they are supported by substantial evidence. Naso v. State Civil Serv. Comm'n (Dep't of Corr.), 696 A.2d 923, 926 (Pa. Cmwlth. 1997).
The Commission determined that he established a prima facie case of age discrimination. Petitioner does not challenge that the PSP articulated legitimate non-discriminatory reasons for its action. Petitioner argues that the Commission erred in concluding that he failed to prove the PSP's articulated reasons were pretextual. Petitioner argues that the Commission's finding that age bias was not a factor in Miller's decision to pass over Petitioner for promotion is not supported by substantial evidence. Petitioner also asserts that the Commission erred in failing to find that Deputy Commissioner Oleyniczak had an age bias. Finally, Petitioner contends that his qualifications were equal to or better than the candidates who were promoted.
First, Petitioner asserts that Miller's testimony that he sorted the promotion list by time in grade and then by enlistment date because those were the two most important factors to him was pretextual because several candidates with less time in grade and less time since enlistment than Petitioner were promoted over Petitioner. The Commission credited Miller's testimony that it was his recognition of Petitioner's time in grade and time in service that prompted him to ask if he was missing anything with regard to Petitioner. Based upon Miller's testimony, the Commission concluded that age did not factor into Miller's decision. Miller's testimony accepted by the Commission supports the Board's conclusion.
Petitioner also argues that the fact that 90% of the candidates, 35 out of 39, promoted were under the age of 50 demonstrates that age was a factor in promotion decisions. The Commission found that PSP officers initially become eligible for retirement after 20 years of service, become eligible for full retirement at age 50 and 25 years of service and are subject to mandatory retirement at age 60. See Commission's Opinion at 5, Findings of Fact Nos. 13-15. The Commission concluded that these PSP's retirement policies had a significant impact on the number of promotion candidates over the age of 50 as many officers retired long before the mandatory retirement age of 60. Id. at 25. The 2003 promotion list contained 12 candidates born in 1953 or earlier. Of those 12 candidates 4 were promoted. Id. at 13, Finding of Fact No. 80. This fact supports the Commission's determinations that PSP's retirement policies impacted the pool of promotion candidate and that age was not a factor in promotion decisions.
Petitioner also asserts that the Commission erred in relying upon Exhibit 2 submitted by the PSP, listing 29 individuals promoted by Miller to lieutenant, captain or major who were over the age of 50. Petitioner argues that PSP Exhibit 2 is misleading, prejudicial, and contrary to well-established law because it does not compare similarly situated candidates, as the criteria for promotion to captain and major is different from the criteria for promotion to lieutenant. The PSP operating manual provides that when considering promotions to lieutenant the commissioner may consider, but is not limited to, reviewing the qualifications of the candidates, including time in grade, discipline or commendations and founded Bureau of Professional Responsibility investigations, and comparing those qualifications with the responsibilities of the vacancies. Joint Exhibits 1a and 1b at 2.4. The PSP operating manual provides that promotions to captain and major are made at the discretion of the commissioner. Id. The Commission found that promotions to lieutenant, captain and major are all made at the discretion of the commissioner. Commission's Opinion at 5, Finding of Fact No. 10. Although the PSP manual provides a more detailed description of the criteria to be considered by the commissioner when promoting to lieutenant, the final decision on promotion to lieutenant, captain or major is ultimately made at the discretion of the commissioner. Consequently, as the commissioner may exercise discretion in all promotions, Exhibit 2 is relevant. Additionally, whether evidence should be accepted as fact and the weight to be given to any evidence is the sole province of the Commission and we cannot disturb such decisions. Pa. State Police, 583 A.2d at 52.
Petitioner argues that the Commission erred in failing to find that Deputy Commissioner Oleyniczak had an age bias. Petitioner asserts that Oleyniczak demonstrated his bias through the promotion of Janet McNeal to a newly created lieutenant position in the Megan's Law Unit. The Megan's Law lieutenant position was located in Bureau of Records and Identification, which was overseen by Oleyniczak. Miller created this position in response to an audit by the Auditor General which found that the Megan's Law unit was not properly functioning. Miller testified that he suggested McNeal as a candidate for the position and that Oleyniczak informed him that he had worked with McNeal and recommended her as an excellent choice for the position. Miller further testified that McNeal had distinguished herself on previous assignments and displayed strong leadership skills, exceptional attention to detail, and outstanding communication skills, all characteristics which were required for the position. Petitioner alleges that Miller and Oleyniczak made no effort to determine whether McNeal had prior Megan's Law experience and ignored the facts that he had 16 years seniority over McNeal, had prior experience with Megan's Law and was also detail oriented. The mere fact that McNeal was eight years younger than Petitioner and had significantly less time in grade does not demonstrate bias. The Commission accepted as credible Miller's and Oleyniczak's testimony that they believed McNeal to be the best candidate for the Megan's Law unit position. We conclude that the Commission's finding is supported by substantial evidence.
Petitioner also asserts that Oleyniczak demonstrated bias by failing to make additional inquiries regarding Petitioner's qualifications for lieutenant when Major Theirwechter recommended Petitioner for lieutenant, failed to ask for Petitioner's personnel file, failed to review his performance evaluations or contact Major Nancy Shaheen, Petitioner's immediate supervisor, who would have recommended him as an outstanding candidate for lieutenant. Petitioner further alleges that Miller showed bias in allowing Oleyniczak to ignore the best sources of information. Such actions articulated by Petitioner, if taken, would have certainly led to a more in depth knowledge of the candidates. However, the record fails to demonstrate that Miller or Oleyniczak more fully investigated other candidates. Rather, the record reveals that Miller heavily relied upon the recommendations of his deputies and assumed that a candidate's superior officer would provide outstanding recommendations to outstanding candidates.
Petitioner alleges that an assessment of his skills and experience would have shown him to be a superior candidate to the candidates who were promoted. With regard to Lavelle, who was promoted to Troop R, Dunmore in charge of criminal investigations, Petitioner asserts that the Miller's reasons for promoting Lavelle were suspect. Petitioner argues that he also had experience in criminal investigation, the record lacked any evidence that a commute to Dunmore would be a hardship on Petitioner and he had more time in grade and more seniority than Lavelle. The Commission found that Lavelle had directly relevant criminal investigation experience, whereas Petitioner's experience was nearly a decade old. A review of the record reveals that Lavelle's criminal investigation experience was more current than Petitioner's experience, Lavelle was already working in similar capacity at Dunmore and was highly recommended for promotion.
With regard to McClung, Petitioner asserts that his criminal investigation experience was ignored and that absent a specific comparison with McClung an inference should have been drawn that his experience was equal to or superior to McClung's experience. A review of the record shows that McClung was promoted in an area where he had worked during nearly his entire career in criminal investigation and that he had been highly recommended for promotion by his troop commander.
With regard to Buckley, Petitioner argues that Buckley was promoted, despite being the youngest and least experienced candidate, primarily because he already worked in Bureau of Training and Education and that Miller failed to adequately explain why Petitioner's longer time in grade and seniority were ignored. The Commission concluded that Buckley's qualifications were superior to Petitioner as his experience perfectly matched the position to which he was promoted. The record demonstrates that Commission correctly assessed Buckley qualifications and that he was highly recommended by both his bureau director and his division director.
With regard to Hile, Petitioner asserts that his criminal investigation experience was ignored and that absent a specific comparison with Hile an inference should have been drawn that his experience was equal to or superior to Hile's experience. Additionally, Petitioner argues that Miller never properly explained how he weighted time in grade versus time in service, thus leaving the Commission with no idea of how Hile's 2 years more of time in grade was weighted against Petitioner's 14 years more of time in service. The Commission concluded that Hile's criminal investigation experience was fresher than Petitioner's and that he was also selected because he was already working in the geographical region. The Commission's conclusions regarding Hile's experience and location are supported by substantial evidence. In addition, he was highly recommended by both his troop commander and area commander.
The record establishes that Miller considered relevant experience, location, time in grade and time in service, but placed the most weight upon the recommendations of the superior officers in a candidate's chain of command. We conclude that the Commission did not err in concluding that Petitioner failed to prove discrimination.
For all of the foregoing reasons, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 9th day of April, 2013, the order of the Pennsylvania Human Relations Commission is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge