Garner v. Pa. Human Relations Comm'n

• Citation: 16 A.3d 1189
• Parties: Dana GARNER, Petitionerv.PENNSYLVANIA HUMAN RELATIONS COMMISSION, Respondent.
• Decision Date: 24 February 2011
• Court: Commonwealth Court of Pennsylvania

16 A.3d 1189

Dana GARNER, Petitioner

v.PENNSYLVANIA HUMAN RELATIONS COMMISSION, Respondent.

Commonwealth Court of Pennsylvania.

Argued Oct. 14, 2010.Decided Feb. 24, 2011.

Yuval Rubinstein, Washington, D.C., for petitioner.Lisa M. Kaplan, Assistant Chief Counsel, Philadelphia, for respondent.Frank A. Chernak, Philadelphia, for intervenor Comcast of Willow Grove, Inc.BEFORE: LEAVITT, Judge, and BROBSON, Judge, and BUTLER, Judge.OPINION BY Judge LEAVITT.

Dana Garner petitions for review of an adjudication of the Pennsylvania Human Relations Commission dismissing his discrimination complaint. The Commission concluded that Garner's evidence did not establish a prima facie case of race-based discrimination on the part of his employer, Comcast of Willow Grove, Inc. (Comcast). Garner contends that Comcast disciplined its employees differently, depending upon the employee's race. The Commission found, however, that Garner's evidence simply did not support the inference that race was a factor in Garner's dismissal and, thus, he did not make a prima facie case. Concluding that the Commission did not err, we affirm.

Background.

On May 13, 2005, Comcast dismissed Garner, a Line Technician, for “unauthorized possession of [Comcast] property ... in direct violation of our policy on employee [c]onduct.” Reproduced Record at 316a (R.R. ___). The written policy in question expressly prohibited the “[u]nauthorized use of Comcast property, including, but not limited to the unauthorized use of Comcast vehicles” and “[t]aking, receiving, selling, concealing or possessing without authorization, property belonging to Comcast, co-workers, customers, contractors or vendors or assisting others in such actions, including failing to report knowledge of such actions.” R.R. 337a. Garner was dismissed for taking a ladder belonging to Comcast and leaving it at his rental property for several weeks.

Garner filed a complaint with the Commission charging Comcast with racial discrimination. Garner's complaint asserted that, as an African–American, he was a member of a protected class; that he was qualified for the position he held; and that he was dismissed for violating the above-cited Comcast policy where a similarly situated person, not a member of this protected class, was not dismissed. The Commission determined that there was probable cause to believe that Garner was the victim of racial discrimination and appointed a hearing examiner to convene a hearing.

At the hearing, Garner testified that he was hired by Comcast in 1990 as a Service Technician, in which position he attended to cable service problems in individual homes and businesses. Nine years later, he was promoted to Line Technician and transferred from the Philadelphia office to the Willow Grove office. Line Technicians address service issues that affect a “whole block or whole neighborhood.” R.R. 61a. Garner was assigned a truck, tools, a 30–foot extension ladder and an A-frame ladder. Garner used the ladder rack to store his 30–foot ladder; it was his practice to keep the A-frame ladder in the office work yard and take it when needed. As did all technicians, Garner took his equipment and truck home nightly.

In April 2005, Garner took his A-frame ladder from work to use to hang drywall at one of his rental properties and left it there. Garner testified that other employees also took ladders home for personal use.

Several weeks later, Comcast held a meeting of Service Technicians at the Willow Grove office. Garner did not participate in the meeting, but he happened to be present in the room and overheard the discussion about an A-frame ladder reported missing by Chris Cocola, a Service Technician. Garner testified that he did not realize that the ladder under discussion was the one he had taken to his rental property. Garner thought that the A-frame ladder he was using was the one issued to him by Comcast.

One week later, Anthony J. DeFabis, Garner's supervisor, held a meeting of the Line Technicians. DeFabis asked if anyone had seen a ladder or taken one from the premises. Garner testified that he did not respond because he did not think the ladder he had taken to his rental property was “missing.”

Thereafter, Garner was called to meet with DeFabis and Anitha Verghese, the human resource manager for Willow Grove. Verghese asked Garner if he knew anything about a missing ladder. He responded that he had taken an A-frame ladder, which he believed to be his own ladder, not the one assigned to Cocola. The next day Verghese dismissed Garner, explaining that he lacked integrity and was “untrustworthy,” having been given a chance to “come clean” and failing to do so. R.R. 79a.

On cross-examination, Garner acknowledged that he had never been the target of racial animus in the workplace, by way of offensive comments or otherwise. He was then asked about four prior disciplinary actions.

The first dated to 1996, when Garner, under the influence of cocaine, caused an accident while driving Comcast's truck. Comcast enrolled Garner in a drug rehabilitation program, after which he returned to his job. The second discipline occurred in 1997, when Garner's New Jersey driver's license was suspended for driving while intoxicated. He did not report his license suspension to his supervisor and continued to drive Comcast's truck without a license. When Comcast discovered the license suspension, it moved Garner to a warehouse job until his license was restored. The third discipline took place in 2004, when he was reprimanded for not wearing his hardhat while working, in violation of company policy. The final discipline also took place in 2004, when Garner left the scene of a fender-bender accident that occurred while Garner was driving his Comcast truck. Garner did not report the accident, and Comcast learned of it from the police. As a result, Comcast issued Garner a written warning, which stated explicitly that the next disciplinary incident could result in discharge.

Gary Lawson, a Service Technician who is African–American, testified for Garner. He testified that Garner was well-liked, respected and regarded as trustworthy. Lawson testified that he, like many employees, took his truck and tools home at night and that no employee, other than Garner, had ever been disciplined for taking and using tools at home without permission. However, Lawson acknowledged on cross-examination that he had never taken his Comcast equipment to a property, not his home, and then left it there for several weeks. Lawson also testified that he did not know about Garner's previous disciplines.

William Hannigan, who is white, next testified. Hannigan had worked as a Line Technician and as a Service Supervisor for Comcast. He testified that the technicians took their trucks and equipment home with them each day. He occasionally used the tools for personal use, citing, for example, the use of the ladder to clean his gutters. He never asked permission to do so and was not aware of a company policy on the issue. Further, he was not aware of any employees being disciplined for putting Comcast tools to personal use. Hannigan never left any tools or equipment at his home during the work day; he immediately returned any tools he used at home to his truck.

Hannigan then testified about the workplace surveillance tapes.¹ Hannigan supervised Cocola, and when Cocola reported the missing ladder to him, Hannigan sought permission to view the tapes. The tape from the day Cocola realized his ladder was gone showed Garner taking an A-frame ladder leaning against the wall, in the spot where Cocola had reported placing his ladder, and putting it in his truck.

Garner offered several exhibits into evidence, which were admitted by the hearing examiner.² These exhibits purported to show disparate treatment of Comcast employees according to their race.

Complainant Exhibits 10 and 11 consisted of copies of two “final written warning” letters issued to employees who had falsified work orders. Both of the recipients of these warnings were white employees.

Garner then offered two statistical exhibits. The first, Complainant Exhibit 9, prepared by Comcast, consisted of two documents. The first document listed, by race, 79 technician employees in the “Philadelphia and Suburban system” who had been dismissed between 2003 and 2005. R.R. 349a. Of the 79 employees, 39 were white, 30 were African–American and 10 were Hispanic. Stated otherwise, 40% of those dismissed over a two-year period were African–American. The second document in Exhibit 9 listed all of the active Service and Line Technicians by their race in the Philadelphia Suburban area as of one point in time: May 2005. The total was 693, of which 195, or 28%, were African–American. The two documents in Exhibit 9 also listed the date of hire of each employee.

The second statistical exhibit offered by Garner, Complainant Exhibit 13, was a letter from Comcast's counsel to the Human Relations Commission responding to the Commission's request for data and information about Garner's dismissal. The letter reported, inter alia, that employees in “Willow Grove and Philadelphia” were diverse in race: 100 (or 44%) were African–American, 41 (or 18.1%) were Hispanic, six (or 2.6%) were Asian, and 80 (or 35.2%) were white. R.R. 375a. The letter identified 11 employees, including Garner, who had been “disciplined” for theft, dishonesty or unauthorized use of Comcast property. Seven were African–American, three were Hispanic and one was white.

At this point in the hearing, Garner's final witness, DeFabis, had not yet arrived. The hearing examiner suggested that Comcast present its case, while the record was kept open for DeFabis' testimony. Comcast responded with a motion for a non-suit, arguing that Garner had failed to make out a prima facie case of discrimination. The hearing examiner announced that he could not rule on the motion because Garner's final witness had not yet...