Beaver Cemetery v. Com., Pennsylvania Human Relations Com'n

• Decision Date: 15 September 1987
• Citation: 528 A.2d 282,107 Pa.Cmwlth. 190
• Parties: , 45 Empl. Prac. Dec. P 37,769 The BEAVER CEMETERY and James I. Wallover, Petitioners, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA HUMAN RELATIONS COMMISSION, Respondent. 1202 C.D. 1986
• Court: Pennsylvania Commonwealth Court

Page 282

528 A.2d 282

107 Pa.Cmwlth. 190, 45 Empl. Prac. Dec. P 37,769

The BEAVER CEMETERY and James I. Wallover, Petitioners, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA HUMAN RELATIONS COMMISSION, Respondent.

1202 C.D. 1986

Commonwealth Court of Pennsylvania.

Argued March 23, 1987.

Decided June 30, 1987.

Reargument Denied Sept. 15, 1987.

Robert X. Medonis, Pittsburgh, for petitioners.

William R. Fewell, Jr., Harrisburg, Joseph J. Janos, III, Janos & Gardner, Philadelphia, Gregory Gleason, Hough & Gleason, P.C., William R. Fewell, Jr., Elisabeth S. Shuster, Pennsylvania Human Relations Com'n, Pittsburgh, for respondent.

Before CRAIG and DOYLE, JJ., and NARICK, Senior Judge.

NARICK, Senior Judge.

The Beaver Cemetery (Cemetery) has appealed from the decision and order of the Pennsylvania Human Relations Commission (Commission) which adopted the recommendation of the Hearing Examiner who found that the Cemetery had discriminated against Kathryn Berardi (Berardi) on the basis of her sex by demoting her from the position of manager and replacing her with a male, in violation of Section 5(a) of the Pennsylvania Human Relations Act (Act), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 955.

We must decide three issues: whether the complaint should have been dismissed on the grounds of laches, whether the Hearing Examiner committed an error of law in her allocation of the burden of proof and whether her findings are supported by substantial evidence.

The Cemetery is a non-profit, non-sectarian cemetery located in Beaver, Pennsylvania. It is directed by a Board of Managers, which appoints a manager to handle the day-to-day operations.

In 1968, the Board appointed Mr. Albaugh as manager. Berardi had been Albaugh's secretary at his previous position, and she accepted his offer to become the Cemetery's secretary. She served in this capacity from 1968 until Albaugh's death in 1970.

From 1970 to 1973, the Board of Managers took no action to replace Albaugh. His tasks were assumed by Berardi, however, and in 1973, the Board officially appointed her as manager, and increased her salary. In October of 1977, Berardi was replaced by Mr. Cornell as manager of the Cemetery. Although her salary was not decreased, Cornell's salary was higher.

Berardi filed a complaint with the Pennsylvania Human Relations Commission on November 17, 1977. Hearings were held in June 1985 before a Hearing Examiner, who determined that there was a violation of the Act. The Hearing Examiner's findings were adopted by the Commission, which entered its final order on March 26, 1986. It is from that order which the Cemetery has appealed.

First, the Cemetery contends that Berardi's complaint should have been dismissed on the grounds of the equitable doctrine of laches. The complaint was filed in November of 1977 and not heard until June 1985. In the interim, one of the Cemetery's witnesses, Mr. Prothero, died. The Cemetery argues that the loss of this testimony was prejudicial to its case, and that the Commission ignored the evidence it presented in the form of a letter written by Prothero.

Initially, we note that it is unsettled whether the doctrine of laches may be applied in this type of administrative proceeding. ¹ While similar arguments have been considered by this Court in some cases, see, e.g., Farrell Area School District v. Deiger, 88 Pa.Commonwealth Ct. 431, 490 A.2d 474 (1985) (a human relations case under the Act), the applicability of the doctrine to these types of administrative actions has been questioned. Churchill Area School District Appeal, 30 Pa.Commonwealth Ct. 413, 374 A.2d 1000 (1977) (a case arising under Section 1505 of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.1505); Department of Transportation v. Pennsylvania Human Relations Commission, 84 Pa.Commonwealth Ct. 98, 480 A.2d 342 (1984) rev'd on other grounds, 510 Pa. 401, 508 A.2d 1187 (1986) (another case under the Act).

Given that the purpose of the doctrine is to bar relief "when 'the complaining party is guilty of want of due diligence in failing to institute his action to another's prejudice,' " Leedom v. Thomas, 473 Pa. 193, 200, 373 A.2d 1329, 1332 (1977) (citations omitted; emphasis added), and that, in assumpsit actions, statutes of limitations serve that purpose, see Pennsylvania Railroad Co. v. Brownstein, 182 Pa.Superior Ct. 65, 125 A.2d 618 (1956), it seems that a similar rationale ought to apply here, where the Act specifically provides that complaints must be filed within ninety days after the alleged act of discrimination. 43 P.S. § 959(g). The Cemetery conceded that the complaint in this case was filed within the applicable time period, and has not raised timely filing as an issue before this Court. Rather, it contends that the eight years which elapsed between the filing of the complaint and the hearing is an unreasonable amount of time as a matter of law, and that it has been prejudiced by the inordinate delay. While we agree that an eight-year hiatus is deplorable, we do not believe that the delay is fairly attributable to Berardi. It would be inequitable under these facts to allow the invocation of an equitable doctrine against a complainant who has acted with all due diligence in filing within the relatively short limitations period. Under these circumstances, the complainant has as much to lose as the employer by reason of the delay, in terms of fading memories and loss of witnesses, both for direct and cross-examination purposes. Because this is not an equity case, and the Act contains a limitations period, eliminating the need for a device to protect employers from stale claims, we feel it appropriate to decline to consider the defense of laches.

The Cemetery's next argument is that the Commission erred in its allocation of the parties' respective burdens of proof. Because we are of the opinion that the Commission followed the applicable legal precedent, we reject this argument.

Citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); General Electric Corp. v. Pennsylvania Human Relations Commission, 469 Pa. 292, 365 A.2d 649 (1976), the Commission outlined the respective burdens of proof as follows. First, the complainant bears the burden of making out a prima facie case. Secondly, should she do so, the employer generally must rebut the inference of discrimination thus created by setting forth, through the introduction of admissible evidence, the legitimate, non-discriminatory reasons for its conduct. Finally, the complainant, in order to prevail, is then required to show by a preponderance of the evidence that the proffered reasons were pretextual and that she was, therefore, the victim of intentional discrimination. Under the cases cited, we find this to be a correct statement of the law, and one this Court has consistently followed, as we are bound to do. See e.g., Smith v. B & O Railroad Co., 90 Pa.Commonwealth Ct. 186, 494 A.2d 1161 (1985); Harrisburg School District v. Pennsylvania Human Relations Commission, 77 Pa.Commonwealth Ct. 594, 466 A.2d 760 (1983); Board of Trustees, Luzerne County Community College v. Pennsylvania Human Relations Commission, 33 Pa.Commonwealth Ct. 121, 381 A.2d 201 (1977).

The Cemetery has not disputed, as found by the Commission, that Berardi fulfilled her initial burden of establishing a prima facie case. The Commission determined that Berardi proved: 1) that she was a member of a protected class; 2) that she was performing duties which she was qualified to perform; 3) that she was removed from the manager's position; and 4) that the employer sought a replacement with similar qualifications or replaced her with an employee not in her protected class.

The next level of inquiry then became whether the Cemetery had a legitimate, non-discriminatory reason for replacing Berardi with Cornell. This included a showing that Berardi was not best qualified for the position. Harrisburg School District. While the Cemetery objects to imposition of this greater burden, ² it is clear that the Pennsylvania Supreme Court has construed Section 5(a) of the Act ³ to include such a burden. General Electric; Winn v. Trans World Airlines, Inc., 506 Pa. 138, 484 A.2d 392 (1984). That such a demonstration is required, however, does not mean, as the Cemetery seems to believe, that the Commission altered the Cemetery's ultimate burden, which is one of production of evidence. General Electric; Winn; Harrisburg School District. Once such evidence is presented, the burden again shifts to the complainant for an opportunity to demonstrate pretext. Of course, the ultimate burden of...