IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Larry Bowser, :
Appellant :
: No. 653 C.D. 2018
v. :
:
Clarion County : Argued: February 14, 2019
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE McCULLOUGH FILED: March 18, 2019
Larry Bowser (Bowser) appeals from the April 25, 2018 order of the Court
of Common Pleas of Clarion County (trial court) that granted summary judgment in
favor of Clarion County (County) on his claim alleging age discrimination under the
Pennsylvania Human Relations Act (PHRA).1
Background
On April 25, 2015, Bowser filed a complaint against the County, averring
that he was terminated from his position as a probation officer in the Probation Office
for the Court of Common Pleas of Clarion County (CPP) and alleging that the County
was his “employer” for purposes of the PHRA.
On January 2, 2018, after the close of discovery, the County filed a motion
for summary judgment, asserting that Bowser failed to produce evidence to sustain a
1
Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§951-963.
claim against it because the County and the CCP were separate governmental entities
and the CCP was Bowser’s sole employer. The County also contended that it
articulated legitimate, nondiscriminatory reasons for terminating Bowser and that
Bowser had insufficient evidence to establish that the reasons were a pretext for age
discrimination. Bowser filed a response to the motion on January 26, 2018. Both
parties also filed briefs. At oral argument on the summary judgment motion, the parties
agreed on the record that there were no factual disputes at issue and that the motion
could be decided as a matter of law. (Trial court op. at 2.)
That said, the pertinent facts of this case, as recounted by the trial court,
are as follows:
[Bowser] began working as a Juvenile Probation Officer in
1993. [Bowser] interviewed for the position with then-
President Judge Alexander and his secretary. Following his
second interview, [Bowser] was hired by Judge Alexander.
As a Juvenile Probation Officer, [Bowser’s] work was done
for the Court. The President Judge was “head boss” over the
probation offices according to [Bowser]. Probation Officers
were subject to a Collective Bargaining Agreement (CBA)
which indicated that they were court[-]appointed employees.
Probation Officers were subject to the Unified Judicial
System (UJS) Code of Conduct for Employees. [Bowser]
received a copy of the Code of Conduct when he was hired.
The Personnel Requisition form reflecting [Bowser’s] hire
shows that the County Commissioners and the County
Treasurer approved the hire. During [Bowser’s] employment
as a Juvenile Probation Officer, [the] County was the sole
employer listed on his pay stubs and W-2 statements. The
check issued after his termination to compensate him for
unused benefits was issued by [the] County. His earning
statements list [the] County as his employer, as does the W-
4 form generated at the start of his employment. The annual
statements concerning his accrued benefits were issued and
signed by the [] County Commissioners.
2
The President Judge handled all discipline, hiring, and
termination decisions of probation officers. [Bowser] had a
history of disciplinary issues. In 1999, [Bowser’s] business
cellphone had $89.80 in personal call charges, which was
considered improper use of the Probation [Office’s] cell
phone policy. [Bowser] was notified of the improper cell
phone use by a memo issued by Judge Alexander and
disciplinary action was taken by Judge Alexander. During
Judge Alexander’s time as President Judge, [Bowser] often
called Judge Alexander at home to discuss work issues. At
one point, Judge Alexander took senior status and Judge
Arner came in as President Judge. During this time, both
judges were involved in decision making for disciplinary
purposes. Eventually, Judge Arner became the sole decision
maker for discipline.
* * *
When Judge Arner was President Judge, now-Probation
Director Jayne Smail and her Deputy Director [Mike Blum]
would interview candidates for job openings and would pick
one or two applicants to interview with Judge Arner. Judge
Arner would then make the decision to hire. If there were
disciplinary issues, [] Smail or [] Blum would discuss it with
Judge Arner, and Judge Arner made all [disciplinary]
decisions.
(Trial court op. at 2-5) (internal citations to the record omitted).
In May 2013, Blum obtained information that Bowser was golfing during
the workday. Bowser initially denied the allegation. However, Bowser later admitted
that he golfed on a few days, but maintained that he completed the required number of
work hours. After reviewing Bowser’s field notes, Blum discovered that on May 17,
2013, Bowser did not have any face-to-face contact with his juvenile supervisees and
went golfing. On June 14, 2013, Judge Arner met with Bowser to “obtain his
explanation why he went golfing twice when he was supposed to be working and
visiting juveniles and why he lied to Deputy Director Blum about it.” Id. at 8. During
the meeting, Bowser stated that he had an obsession with golf, had lied to Blum, and
3
had violated policy by not seeking permission to golf or indicating in his schedule that
he was going to golf. Id. at 4-8.
On June 26, 2013, Bowser, then 54 years old, was terminated and issued
a letter stating that his actions violated the UJS Code of Conduct for Employees by
“making false official statements and abusing Court time and resources.” Id. at 9. The
termination letter was signed by President Judge Arner and Trisha Douglas, Human
Resources Director of the County. The letter was typed on the CCP letterhead and
specifically cited Judge Arner’s authority to terminate court-appointed employees. Id.
Sometime prior to his termination, Bowser overheard Smail comment to one of the
secretaries, “Wouldn’t it be nice to get rid of these old POs [probation officers] and get
some young, muscular POs working here?” Reproduced Record (R.R.) at 426a.
At the time of his termination, Bowser occupied the position of Intensive
Probationary Officer, but the position was eliminated after his termination due to lack
of funding. On August 14, 2013, Judge Arner hired a 24-year-old male to fill a vacant
position in the juvenile probation office; on June 25, 2014, Judge Arner hired a 45-
year-old male as an Adult Probation Officer; and, on December 2, 2014, Judge Arner
hired a 25-year-old male as an Adult Probation Officer. (Trial court op. at 9-10.)
By order dated April 25, 2018, the trial court granted the County’s motion
for summary judgment. Thereafter, Bowser filed a notice of appeal with this Court,
and the trial court directed him to file a concise statement of errors complained of on
appeal in accordance with Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.)
1925(b). Bowser complied and alleged in his statement that the trial court erred as a
matter of law in concluding that (1) the County was not an employer or joint employer
for purposes of the PHRA; (2) the County articulated a legitimate, nondiscriminatory
reason for terminating him; and (3) Bowser failed to provide sufficient evidence to
4
create a jury issue that the reason for the termination was pretextual. R.R. at 593a-
608a.
In its Pa.R.A.P. 1925(a) opinion, the trial court concluded that Bowser
was employed solely by the CCP and that the County could not be considered a joint
employer. In so determining, the trial court noted that the County did not have the
authority to hire, discipline, or terminate Bowser and it did not participate in the day-
to-day operations or supervision of the Probation Office. The trial court, therefore,
found that Bowser did not possess a cognizable claim against the County under the
PHRA. (Trial court op. at 11-16.)
The trial court further concluded that, even if the County was an employer
subject to liability under the PHRA, it had a legitimate basis to terminate Bowser. For
support, the trial court quoted language from the termination letter, “[Bowser’s]
violations include using County vehicles to go golfing and then lying to [his] supervisor
about it, golfing with staff of a [juvenile] placement facility and thereby giving an
appearance of impropriety, and not accounting accurately for [his] time.” Id. at 18.
Lastly, the trial court concluded that Bowser failed to submit sufficient
evidence to demonstrate that the County’s proffered reasons were a pretext for age
discrimination. The trial court found that there was no evidence of record that would
permit a fact-finder to disbelieve the reasons for termination because Bowser admitted
that he “golfed during work hours, lied to his supervisor, and golfed with an employee
of one of the placement facilities where at least one of his supervisees was located.”
Id. at 19. The trial court also noted that the younger individuals who were hired to
work in the juvenile probation department were not treated more favorably by Judge
Arner when making disciplinary and termination decisions. According to the trial
court, this was “evidenced by the fact that [the 24-year-old employee] was subject to
5
an investigation for misuse of his gas account,” “was suspended without pay,” and
“resigned prior to the investigation being completed,” and the fact that the 25-year-old
employee “was terminated by Judge Arner following an allegation of failing to answer
on-call pages.” Id. at 20. With respect to the other employee, a 45-year-old, the trial
court observed that he was over 40 years old at the time of hiring and fell within the
protected class covered by the PHRA. Id.
Bowser filed a notice of appeal with this Court.2
Discussion
Bowser first contends that the trial court erred in concluding that he was
not an employee of the County. Relying principally on Graves v. Lowery, 117 F.3d
723 (3d Cir. 1997), Bowser cites facts that he posits are adequate to support a co-
employment or joint employer relationship with the County. More specifically,
Bowser points to the facts that the County funded his position; was the sole employer
listed on his pay stubs, W-2 statement, and W-4 Form; issued a check after his
termination to compensate him for unused benefits; issued and signed the annual
statements concerning his accrued benefits; and had control over the Probation Office
by exercising budgetary power and, in one instance, eliminating a positon in the
department. Bowser also highlights the facts that the County approved the decision to
hire him; he participated in the County’s pension plan under a CBA; he used the
County’s equipment, including vehicles and cell phones, to perform his duties; and his
termination letter stated that he was being terminated from County employment.
2
“Our standard of review of the grant of summary judgment is de novo and our scope of
review is plenary.” Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011). Summary judgment is
appropriate only in those cases where the record clearly demonstrates that there is no genuine issue
of material fact and that the moving party is entitled to judgment as a matter of law. Atcovitz v. Gulph
Mills Tennis Club, Inc., 812 A.2d 1218, 1221-22 (Pa. 2002).
6
In pertinent part, section 4(b) of the PHRA defines the term “employer”
to include “the Commonwealth or any political subdivision or board, department, [or]
commission[.]” 43 P.S. §954(b). Pursuant to the PHRA, an “employer” may incur
liability for an unlawful discriminatory practice such as discharging an employee on
the basis of age, which is denoted by statute to mean any person who is 40 years of age
or older. See section 5(a) of PHRA, 43 P.S. §955(a); Leibensperger v. Carpenter
Technologies, Inc., 152 A.3d 1066, 1074 (Pa. Cmwlth. 2016) (en banc); Nethken v.
Commonwealth, 885 A.2d 1116, 1118 n.2 (Pa. Cmwlth. 2005). For liability to be
imposed against a governmental entity, that entity must first qualify as an “employer”
of the complainant and, depending on the circumstances of a particular case, it is
possible that there may be more than one employer. See, e.g., Nethken, 885 A.2d at
1119; Graves, 117 F.3d at 727-29; Kemether v. Pennsylvania Interscholastic Athletic
Association, 15 F. Supp. 2d 740, 762 (E.D. Pa. 1998).
This Court has held that a juvenile probation officer is a judicial officer
and employee employed by a court of common pleas. L.J.S. v. State Ethics
Commission, 744 A.2d 798, 802 (Pa. Cmwlth. 2000); see Ward v. Potteiger, 142 A.3d
139, 144 n.8 (Pa. Cmwlth. 2016) (“Article [V], Section 1 of the Pennsylvania
Constitution vests the Commonwealth’s judicial power ‘in a unified judicial system
consisting of the . . . courts of common pleas[.]’ Pa. Const. art. [V], §1. A county’s
adult probation and parole office is considered an arm of the trial court, rather than the
prison system, and thus, the probation department operates under the common pleas
court’s authority.”); McBride v. O’Brien (W.D. Pa., No. 14-1129, filed September 3,
2015) (unreported), slip op. at 12, 2015 U.S. Dist. LEXIS 117800, at **20-21 (“A
county probation department operates under the authority of the court. The courts of
common pleas in Pennsylvania delegate authority to county probation officers to detain
7
defendants who violate probation.”); see also County of Lehigh v. Pennsylvania Labor
Relations Board, 489 A.2d 1325, 1327 (Pa. 1985) (“Since the court has the inherent
right to hire, discharge and supervise, an employer-employee relationship exists by
definition between the judges and their appointees.”).
In Renner v. Court of Common Pleas of Lehigh County, 195 A.3d 1070
(Pa. Cmwlth. 2018) (en banc), we concluded that because a court of common pleas is
a part of the judicial branch of government, “it is not subject to the PHRA” and,
therefore, a probation officer cannot maintain an action against the court as an employer
under the PHRA. Id. at 1078. The rationale for our holding was based on the doctrine
of separation of powers.3 Id. at 1077-78; see also Scrip v. Seneca, 191 A.3d 917, 927
(Pa. Cmwlth. 2018) (en banc) (concluding that if the claim asserted by a juvenile
probation officer under the Whistleblower Law4 could be actionable against the
judiciary, this “would be an affront to the separation of powers”); Thomas v. Grimm,
155 A.3d 128, 137-38 (Pa. Cmwlth. 2017). Pursuant to the tripartite structure of our
state government, “the discharge of a judicial employee is a judicial power vested by
[the Pennsylvania] Constitution in the courts. That power may not, consistent with the
constitutional doctrine of separation of powers, be policed, encroached upon, or
3
“The Constitution of Pennsylvania establishes three separate, equal and independent
branches of government: the General Assembly, the Executive and the Judiciary. Each branch is
clothed with certain exclusive rights and powers. Neither the General Assembly nor the executive
branch of government, acting through an administrative agency may constitutionally infringe upon
the powers or duties of the [county] judiciary.” L.J.S., 744 A.2d at 800. “Among the powers granted
to the judiciary is the responsibility of the Supreme Court to ‘exercise general supervisory and
administrative authority’ and ‘prescribe general rules governing practice, procedure and the conduct’
for the courts of the unified judicial system. Pa. Const. art. 5, §10(a), (c). . . . Our Supreme Court has
held that in order to carry out these powers, courts must have exclusive authority to select, discharge
and supervise court employees.” Russo v. Allegheny County, 125 A.3d 113, 119 (Pa. Cmwlth. 2015).
4
Act of December 12, 1986, P.L. 1559, as amended, 43 P.S. §§1421-1428.
8
diminished by another branch of government.” Beckert v. American Federation of
State, County and Municipal Employees, 425 A.2d 859, 862-63 (Pa. Cmwlth. 1981),
aff’d, 459 A.2d 756 (Pa. 1983).5
Nonetheless, while the courts of common pleas are considered the
employers of judicial personnel, including probation officers, “this fact does not
preclude the possibility that a county may share co-employer or joint employer status
with the courts.” Graves, 117 F.3d at 727; see Nethken, 885 A.2d at 1119 (“[L]iability
under the PHRA can be visited upon multiple entities based on different acts. There is
no basis to conclude that only one entity can be liable for discrimination as a matter of
law.”). In other words, the interrelationship between these two separate entities may
be such that both are regarded as “employers” of the same individual, and the object of
the joint employment doctrine is to determine whether a putative employer “exercise[s]
significant control over the same employee.” Graves, 117 F.3d at 727.6
5
Notably, through a series of statutes, “the General Assembly intended to create a legislative
scheme in which funding of the various judicial districts was primarily a responsibility of the counties,
and that these responsibilities include the funding of salaries, services and accommodations for the
judicial system.” County of Allegheny v. Commonwealth, 534 A.2d 760, 763 (Pa. 1987). However,
“[t]he fact that [judicial] employees are paid by the county does not alter the court’s employer status.”
County of Lehigh v. Pennsylvania Labor Relations Board, 489 A.2d 1325, 1327 (Pa. 1985); see also
Braden v. County of Washington, 749 F. Supp. 2d 299, 311-12 (W.D. Pa. 2010) (“[A] county is
compelled by state law to fund [court employees’] positions, and cannot avoid doing so even if it
wanted . . . .”). Further, as a result of statutory mandate, the county commissioners are the exclusive
representative of management in representation proceedings and collective bargaining involving court
employees paid from county funds. “This exclusive authority, however, does not diminish the right
of judges to ‘hire, discharge, and supervise’ these employees.” Ellenbogen v. County of Allegheny,
388 A.2d 730, 735 (Pa. 1978).
6
Graves involved a claim made by several former clerks (Clerks) who worked for a
magisterial district judge and commenced a sex discrimination suit against Dauphin County under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e-2000e-17. On appeal, the United States
Court of Appeals for the Third Circuit declined to discount the possibility that Dauphin County was
not a joint employer. In rendering its determination, the Third Circuit emphasized that the Clerks
9
Our case law appears to be scant (if not nonexistent) with respect to the
legal issue of a county being a joint employer of a judicial employee, especially in the
context of discrimination claims. However, the joint employment test has been applied
in discrimination cases brought under Title VII, the Age Discrimination in
Employment Act (ADEA),7 the Americans with Disabilities Act,8 and the Family
Medical Leave Act (FMLA).9 See, e.g., Swallows v. Barnes & Noble Book Stores, 128
F.3d 990, 992 n.2 (6th Cir. 1997); Astrowsky v. First Portland Mortgage Corp., 887 F.
Supp. 332, 336-37 (D. Me. 1995). Further, discrimination claims brought under the
PHRA are generally analyzed in the same manner as its federal counterparts. See
Kroptavich v. Pennsylvania Power and Light Company, 795 A.2d 1048, 1055-56 (Pa.
Super. 2002); see also Hoy v. Borough of Cochranton (Pa. Cmwlth., No. 1005 C.D.
asserted that the County “exercised the requisite control over the daily employment activities of the
Clerks to incur liability as a co-employer,” 117 F.3d at 728, by alleging “that they were covered by
the County’s personnel policies, that they were told that they were County employees, that the County
investigated their allegation of sexual harassment, that they were subject to termination and/or
reinstatement by the County and that two of them were hired by the County.” Id. at 729. At the same
time, the Third Circuit acknowledged that the case was “unique,” id. at 727, and concluded that it
should not have been dismissed by the district court on a motion to dismiss:
We decline to speculate as to whether the Clerks will ultimately
succeed in their claim against Dauphin County. We merely note that
the employment relationship between the Clerks and the County was
sufficiently ambiguous that the Clerks’ claim against the County should
not have been dismissed at the pleading stage. Indeed, the County’s
own actions indicate that even it was unsure about its responsibilities
to the Clerks.
Id. at 729.
7
29 U.S.C. §§621-634.
8
42 U.S.C. §§12101-12213.
9
29 U.S.C. §§2601-2654.
10
2015, filed December 21, 2016) (unreported), slip op. at 7 (stating that “claims brought
under the PHRA are analyzed under the same standards as their federal counterparts
and, therefore, Pennsylvania courts use federal interpretations of the federal anti-
discrimination statutes to guide and inform our interpretations of the PHRA”).
In Braden v. County of Washington (W.D. Pa., No. 08-574, filed April 23,
2010) (unreported), the Federal District Court for the Western District of Pennsylvania
addressed a factual pattern that is analogous to the one currently before this Court. In
that case, the plaintiff commenced suit under the FMLA against the County of
Washington (Washington County) after she was discharged following a leave of
absence due to a medical condition. The plaintiff alleged that she was jointly employed
by both Washington County and the Court of Common Pleas of Washington County
(County Court).
Confronted with a motion for summary judgment, the federal district court
set forth the relevant, uncontested facts as follows:
The focus is on the relationship between [the County] and the
Domestic Relations Section (DRS) of the County Court, vis-
a-vis [the plaintiff’s] employment . . . .
[The plaintiff] submitted to the County Human Resources
[HR] Office an application for employment with the [County
Court]. [The plaintiff] interviewed with the Director of DRS,
and a County HR employee was present at the interview.
[The plaintiff] was hired in a position at DRS. The Director
of DRS told [the plaintiff] that she was being employed in a
court-related office, and that she was a Washington County
employee. In the DRS, she was supervised by DRS Deputy
Director, who was supervised by the DRS Director, who was
in turn supervised by the Court Administrator, who was in
turn supervised by the DRS Judge, who was in turn
supervised by the President Judge of the Court of Common
Pleas. The President Judge of the County Court has the
authority to hire and fire people.
11
[The plaintiff] received her day-to-day work assignments
from the Director or Deputy Director of DRS. The County
Court adopted, followed, or borrowed certain policies of
[Washington] County, such as those relating to aspects of
vacation, sick leave, and the FMLA, and DRS has certain of
its own policies, such as a dress code and political activity
policy. Salary increases were approved by [Washington
County], and [Washington County] paid [the plaintiff’s]
salary and provided her employee benefits. There is no
evidence that [Washington County] made, as opposed to
approved, decisions about [the plaintiff’s] compensation.
In October of 2007, [the plaintiff] received a written warning
and a three-day suspension for missing work. The DRS
Director told [Washington County’s] HR Director that they
were going to issue a written warning, and asked the opinion
of the HR Director, who recommended the written warning.
Due to [the plaintiff’s] continued absenteeism, the DRS
Director and Deputy Director recommended that the Deputy
Court Administrator terminate [the plaintiff]. The Deputy
Court Administrator also talked to [Washington County’s]
HR Director, who recommended that the Deputy Court
Administrator fire [the plaintiff]. The Deputy Court
Administrator, DRS Director, and DRS Deputy Director met
with [the plaintiff] to discuss her absences, and whether she
should be terminated. The decision to terminate [the
plaintiff] was made by the Deputy Court Administrator. The
Deputy Court Administrator then fired [the plaintiff] in 2007.
Id., slip op. at __, 2010 U.S. Dist. LEXIS 40084, at **3-4.
In opposition to the motion for summary judgment, the plaintiff argued
that she adduced sufficient evidence to support a finding of joint employment. In
particular, the plaintiff cited the facts that Washington County was involved in payroll
and benefits administration, was present during the hiring process, and provided
support to court-related employees via its HR department. The plaintiff further relied
on the facts that the DRS followed or adopted certain policies of Washington County,
and Washington County recommended that she be suspended, written up, and fired.
12
In rejecting the plaintiff’s position, the federal district court offered the
following analysis and rationale:
In [] Spears v. Choctaw County Commissioners [(S.D. Ala.,
No. 07-0275-CG-M, filed July 30, 2009), 2009 U.S. Dist.
LEXIS 66037], the court considered similar facts and
determined that there was no joint employment
relationship . . . . In that case, absent involvement in the
employee’s daily activities and the power to hire or fire the
employee, a county was not a joint employer, even though
the county handled administrative functions regarding
payroll and benefits; maintained employment records; and
could approve or disapprove of a decision to hire or fire. Id.,
at **33-34. In reaching its conclusion, the court observed a
lack of precedent “in which a court decided that an entity that
was completely uninvolved in the day-to-day activities of a
plaintiff . . . was an ‘employer’ based only on its involvement
in setting salary classifications and handling benefits and
payroll.” Id. at *33. Similarly, in [Moldenhauer v. Tazewell-
Pekin Consolidated Communications Center, 536 F.3d 640
(7th Cir. 2008)], the court determined that there was no joint
employment relationship, although the plaintiff was
considered an employee of the purported joint employer for
purposes of payroll, worker’s compensation, retirement
benefits, and was listed as such on her W-2 forms. Id. at 645-
46.
Here, there is no evidence that [Washington County]
maintained direct or indirect control over [the plaintiff’s]
work schedules or working conditions, determined (rather
than approved) the rate and method of her compensation, or
had the power to determine, or take action, to hire or fire her.
There is no evidence that [the plaintiff] or her supervisors
reported to, or received direction or supervision from,
[Washington County]. To the contrary, the “chain of
command” ended at the President Judge of the County Court.
It is also undisputed that the DRS Deputy Director and
Director gave [the plaintiff] her work assignments. The
evidence shows that the DRS or [County] Court adopted
certain of [Washington County’s] policies; there is no
evidence that [Washington County] was empowered to
13
impose or enforce those policies against DRS workers. DRS
supervisors conducted regular evaluations of [the plaintiff’s]
work. In sum, there is absolutely no evidence that
[Washington County] had any involvement in or control over
[the plaintiff’s] day-to-day work activities, or controlled the
essential details of her employment. As the case law
indicates, funding, and salary and benefits handling, are
relevant but not enough.
[The plaintiff] also relies on the fact that she was told and
otherwise led to believe that she was [Washington County’s]
employee—for example, her employment application read,
“Washington County” at the top. Joint employer status,
however, does not turn on the perceptions of the employee.
Similarly, providing human resource support is akin to an
administrative function, and is not an exercise of the requisite
control.
Braden, slip op. at __, 2010 U.S. Dist. LEXIS 40084, at **23-27 (footnotes and some
internal citations omitted).
Accordingly, the federal district court in Braden granted summary
judgment in favor of Washington County.
On facts that are substantially similar to those presented in Braden, two
other federal district courts have also dismissed plaintiffs’ discrimination claims on
summary judgment, concluding that the plaintiffs were working as judicial employees
and failed to establish joint employment relationships with the counties. In Caso v.
Luzerne County (M.D. Pa., No. 3:13-CV-02253, filed April 28, 2015) (unreported), the
court granted summary judgment predominately for two reasons: First, “while the
County funds the Probation Department and the CBA sets forth the terms for judicial
employee compensation and benefits, the CBA also makes clear that the Court of
Common Pleas ‘retains the sole and exclusive right to discharge, demote, suspend or
discipline Employees’”; and Second, “the Court supervised the day-to-day operations
of the Probation Department” and “the Probation Director performed his duties under
14
the supervision of the Court.” Id., slip op. at __, 2015 U.S. Dist. LEXIS 55543, at
**31-32. In Withers v. Johnson (E.D. Ark., No. 4:11-cv-669-DPM, filed July 1, 2013)
(unreported), the court granted summary judgment because,
Pulaski County couldn’t hire and fire [the plaintiff] or
supervise his schedule. Those powers, [the plaintiff] agrees,
were [Judge] Johnson’s alone. [The plaintiff] has offered no
evidence that the County controlled his employment
conditions, exercised day-to-day control over him, or
managed the details of his work. The County did handle his
payroll and benefits, but purely administrative tasks like this
are not enough to create a joint-employment relationship.
Id., slip op. at ___, 2013 U.S. Dist. LEXIS 92800, at **3-4.
Here, Bowser advances arguments that, in overwhelming part, have been
considered and disavowed by the federal district courts in Braden, Caso, and Withers.10
In this case, the County funded Bowser’s position and made budgetary decisions
related to the Probation Office, was listed as the employer on his W-2 statement and
W-4 Form, issued Bowser paychecks and unused compensation checks, and was the
bargaining representative to the CBA to which Bowser was a member. However, as in
Braden and Caso, the County’s duty and role with respect to issues such as funding,
salary, benefits, and collective bargaining are simply not enough to establish a joint
employer relationship. In Pennsylvania, the General Assembly has mandated that the
counties fund the courts of common pleas, including the salaries of judicial employees,
see County of Allegheny v. Commonwealth, 534 A.2d 760, 763 (Pa. 1987); however,
this “does not alter the court’s employer status.” County of Lehigh, 489 A.2d at 1327.
10
Although these decisions are not binding upon this Court, we find them to be instructive
and persuasive in resolving the legal issue at hand. See Nagle v. Trueblue, Inc., 148 A.3d 946, 959
n.15 (Pa. Cmwlth. 2016) (“Generally, decisions of federal district courts and courts of appeals are not
binding on this Court . . . but they may have persuasive value. Unreported federal court decisions
may also have persuasive value.”) (internal quotation marks and citation omitted).
15
Although the General Assembly designated the county commissioners as the exclusive
representative of management in representation proceedings and collective bargaining
involving court employees, this authority “does not diminish the right of judges to ‘hire,
discharge, and supervise’ these employees.” County of Allegheny, 388 A.2d at 735. In
fact, the CBA in this case expressly stated that, “The parties acknowledge and agree
that as Court[-]Appointed employees, the President Judge . . . has the authority to
demote, suspend and discharge all probation officers and that such action by the
President Judge is not subject to the grievance procedures contained in this
Agreement.” R.R. at 487a.
While the County provided Bowser with equipment, akin to Braden and
Withers, human resource and administrative support of this nature do not militate
toward a finding of a joint employment relationship. Further, the termination letter
stated that Bowser was “hereby terminated from County employment as a regular full
time Probation Officer.” R.R. at 486a. Nonetheless, the termination letter was typed
on CCP letterhead, was signed by Judge Arner, and cited Judge Arner’s authority to
discharge judicial employees. R.R. at 485a-86a. In any event, under Braden, an
employee’s perceptions based on correspondence that describes a county as an
employer is marginally relevant.
Moreover, although the County approved the decision to hire Bowser, the
actual decision to hire was made solely by Judge Alexander. The President Judge in
effect at the time handled all discipline, hiring, and termination decisions of probation
officers, who were subject to the UJS Code of Conduct for Employees. Equally
significant, there is no evidence that the County exercised (or had the right to exercise)
control over the day-to-day operations of the Probation Office or direct the activities
of which Bowser was to complete and/or the manner in which he was to conduct those
16
activities and his job duties. See Borough of Emmaus v. Pennsylvania Labor Relations
Board, 156 A.3d 384, 391 (Pa. Cmwlth. 2017) (en banc) (“[A]n extremely important
component of any employer-employee relationship is the employer’s right to direct the
work to be done and the manner in which the work is done.” (internal quotation marks
omitted)). Rather, all the evidence demonstrates that the Probation Office, through a
chain of command that worked its way through the hierarchy of judicial employees,
ultimately operated under the final supervision and authority of the President Judge of
the CCP, the “head boss” of the Probation Office. (Trial court op. at 2.) Therefore, on
this record, we conclude that, pursuant to the persuasive authority of Braden, Caso,
and Withers, the trial court did not err in granting summary judgment in favor of the
County.
Accordingly, we affirm the order of the trial court. Because our
affirmance is based on the ground that the County is not an employer for purposes of
the PHRA, we need not address Bowser’s remaining arguments concerning pretext.11
________________________________
PATRICIA A. McCULLOUGH, Judge
11
In this regard, Bowser contends that, regardless of the time he spent golfing, he worked the
amount of required hours and did not create an appearance of impropriety by golfing with a counselor
while discussing the progress of a client. Bowser asserts that his infractions were seized upon as an
opportunity to discharge him and he points to the age animus statement made by Smail, her
responsibility to screen-out and refer applicants to Judge Arner for a hiring decision, and her role in
discussing disciplinary matters. Bowser further contends that the 45-year-old, even though over the
age of 40 when he was hired, was still 11 years younger than Bowser.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Larry Bowser, :
Appellant :
: No. 653 C.D. 2018
v. :
:
Clarion County :
ORDER
AND NOW, this 18th day of March, 2019, the April 25, 2018 order of
the Court of Common Pleas of Clarion County is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge