Infinity Broadcasting v. Human Relations

• Decision Date: 09 February 2006
• Citation: 893 A.2d 151
• Parties: INFINITY BROADCASTING CORPORATION, Petitioner v. PENNSYLVANIA HUMAN RELATIONS COMMISSION, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 151

893 A.2d 151

INFINITY BROADCASTING CORPORATION, Petitioner v. PENNSYLVANIA HUMAN RELATIONS COMMISSION, Respondent.

Commonwealth Court of Pennsylvania.

Argued November 14, 2005.

Decided February 9, 2006.

Reargument Denied March 29, 2006.

Judith E. Harris, Philadelphia, for petitioner.

Pamela Darville, Asst. Chief Counsel, Philadelphia, for respondent.

Jeffrey Campolongo, Philadelphia, for intervenor, Shawn Brooks.

BEFORE: McGINLEY, Judge, COHN JUBELIRER, Judge, and SIMPSON, Judge.

OPINION BY Judge COHNJUBELIRER.

Infinity Broadcasting Corporation (Employer) petitions for review of a final order of the Pennsylvania Human Relations Commission (PHRC) that found that it had unlawfully discriminated against its employee, Shawn Brooks, based on his race—African American—in violation of Section 5(a) of the Pennsylvania Human Relations Act (PHRA)¹ when it created a hostile work environment which resulted in Brooks' constructive discharge.

The following facts have been taken from the Hearing Panel's adjudication.² Brooks began working for Employer in September 2000 as the only African American account executive, selling advertising on radio station WYSP in connection with its broadcasts of the Philadelphia Eagles football games. His yearly salary was $30,000 with $2,500 a month "draw."³ Brooks and six other account executives reported to Joseph Zurzolo, Sales Manager, who reported to Peter Kleiner, General Sales Manager, who in turn reported to Kenneth Stevens, Vice President/General Manager. Employer had an anti-discrimination/harassment policy in place providing that harassment based on race would not be tolerated and that a complainant could file a complaint with any designated representative for Employer. (Findings of Fact (FOF) ¶¶ 40-44.)⁴

On May 9, 2001, Zurzolo conducted a sales meeting where he distributed a book entitled, "New Dress for Success," (the book) to his account executives in an effort to address the unprofessional manner in which a Caucasian female account executive had been dressing. (FOF ¶¶ 13-14, 91.) He had not read the book prior to distributing it, but the book had been recommended to him by Jeffrey Snodgrass, WYSP's Sports Sales Manager. Zurzolo distributed the book to all account executives in an effort not to single the female account executive out. Id. Brooks took the book home that day but, after reading it, contacted Sandy Shields, Human Resource Director, and complained about the content of the book. Specifically, Brooks was offended by specific passages in the book⁵ that referred to "most blacks being anti-establishment," "afros," "ghettos," "ghetto black," and advised Black salesmen to "dress very white." (See FOF ¶ 18.) Brooks testified that he did not contact Zurzolo or anyone else in the office because he did not trust them and felt that the views of the book were tolerated and accepted. (FOF ¶¶ 19, 20, 25-26.)

Shields spoke to Brooks on several occasions about the book, and she testified that she agreed with Brooks that the contents were offensive. (FOF ¶¶ 45, 49.) Shields, however, did not contact Employer's corporate office about Brooks' concerns, but she did collect the books from all of the account executives the same day the books were distributed. (FOF ¶¶ 49-50.) Brooks testified that none of the supervisors did anything regarding the book and that Zurzolo was not formally disciplined for distributing it. (FOF ¶¶ 53, 96.) However, Zurzolo and Kleiner made several telephone calls to Brooks asking him to return their calls, but he never returned their calls because he did not trust or respect them. (FOF ¶¶ 54-55.) Moreover, Zurzolo testified that he did not read the book prior to it being distributed, and that, in retrospect, he wished he had never distributed the book because he could see how someone would be offended by it. (FOF ¶¶ 93, 95.)

There is no evidence in the record to suggest that, prior to Brooks' complaint to Shields about the content of the book, he had ever before reported any alleged discriminatory conduct.

Brooks filed his complaint with the PHRC on May 16, 2001.⁶ The complaint alleged only that Employer's distribution of the book created a hostile work environment, which caused his constructive discharge. Brooks did not make any other allegations. The PHRC made a subsequent investigation into Brooks' allegations and notified both parties that probable cause existed to credit the allegation that the distribution of the book, alone, violated the PHRA. Thus, the case was approved for a public hearing.

On November 6, 2003, a public hearing was held before a Hearing Panel of three Commissioners. Not only did Brooks testify as to the offensive content of the book, but he also testified that Zurzolo racially harassed him prior to the distribution of the book on several occasions when: 1) Zurzolo made a comment to Brooks about "having to go with [Brooks'] fiancée," which Brooks perceived to mean that Zurzolo wanted to have sex with her; 2) Zurzolo, on several occasions, would put his palm on the head of an older African American receptionist, Edith Mason, which he felt was a racially offensive gesture;⁷ 3) Zurzolo used the ethnic slur "dago" in reference to himself; 4) Zurzolo touched an African American receptionist on a sales call at Comcast; and 5) someone stole a promotional banner relating to his ING Direct account, which he felt was racially motivated. (FOF ¶¶ 21-23, 28-30; Hearing Panel Op. at 30; PHRC Br. at 23.) There is no evidence of record to suggest that Brooks orally, or in writing, requested to amend his Complaint to include these additional allegations of harassment.

The Hearing Panel issued findings of fact, conclusions of law, an opinion, a proposed order and a recommendation finding Brooks had proven racial discrimination in violation of Section 5(a) of the PHRA. Specifically, the Hearing Panel found that Brooks established a prima facie case of harassment based on race because: 1) Brooks was subjected to offensive conduct based on the distribution of the book and the other allegations of harassment; 2) the distribution of the book was severe and the other allegations of harassment were pervasive; 3) Brooks was detrimentally affected by the harassment, negating his ability to work, which was reasonable under the circumstances; and, 4) Brooks' direct supervisor was the individual who distributed the book and also engaged in the other allegations of harassment. (Op. at 29-32.) The Hearing Panel also determined that Brooks was constructively discharged based on the racially offensive conduct at his workplace. (Op. at 33.) The Hearing Panel noted that Brooks' complaint was never taken seriously by Shields or anyone else at the office and that Zurzolo was never formally disciplined in any manner. Id. at 34. Finding that Brooks had shown unlawful discrimination under the PHRA, the Hearing Panel recommended that he be awarded back pay and front pay. Id. at 35-38.

On February 28, 2005, the PHRC adopted, in full, the Hearing Panel's findings and recommendation that Brooks was subjected to a hostile work environment and was constructively discharged. The PHRC awarded Brooks $282,262.00 in back pay and five years of front pay, in the amount of $328,000.00, based on four of the highest paid account executives.⁸ In addition, the PHRC ordered Employer to 1) draft and implement internal policies and procedures, subject to the PHRC's review, for handling employee complaints of discriminatory treatment; and, 2) provide workplace training on harassment and anti-discrimination laws.

On March 30, 2005, Employer petitioned this Court for review. A few days later, the PHRC stayed its Final Order in exchange for Employer's agreement to post a bond in the amount of the monetary damages awarded to Brooks.

On appeal,⁹ Employer raises seven issues for our review. We are asked to determine whether the PHRC: 1) denied Employer due process because one of the members on the Hearing Panel, Commissioner Raquel Otero de Yiengst, was not impartial; 2) erroneously admitted into evidence and relied upon acts of alleged harassment other than the distribution of the book; 3) erred in determining that Employer subjected Brooks to a hostile work environment; 4) erred in determining that Brooks was constructively discharged; 5) erred in determining that Brooks is entitled to recover $282,262.00 in back pay; 6) erred in awarding Brooks more than $300,000.00 in front pay; and, 7) erred in ordering injunctive relief.

Employer first argues that it was denied due process because Commissioner Otero de Yiengst was not impartial. Specifically, Employer argues that the Commissioner had prior knowledge of the book and harbored negative personal feelings toward it when she stated at the end of her questioning that "I'm Hispanic and . . . it is my belief that anybody that would read that book would be greatly offended by that...." (11/6/03 Tr. at 325.) Thus, Employer argues that it was denied due process because the Commissioner publicly expressed her predisposition of bias in favor of Brooks.

It is clear that being afforded a fair trial before a fair tribunal is a basic requirement of due process, and that this requirement applies to administrative agencies. Dayoub v. Com., State Dental Council and Examining Bd., 70 Pa. Cmwlth. 621, 453 A.2d 751, 753 (1982). "It is equally clear that due process is denied where there is a commingling of the prosecutorial and adjudicatory functions before an administrative body, and that administrative tribunals must be unbiased and must avoid even the appearance of bias to be in accordance with principles of due process." Id. (citation omitted). We are mindful that our focus is on the fact finding process, which "must be afforded the broadest dimensions of constitutional protections." Id. (citing Com., Human Relations Comm'n v. Thorp, Reed, Armstrong, 25 Pa.Cmwlth. 295, 361 A.2d 497 (1976)).

However, contrary to Employer's...