Allegheny Housing Rehabilitation Corp. v. Commonwealth, Pennsylvania Human Relations Commission

*136LARSEN, Justice, dissenting.

This is a case of employment discrimination under section 5(a) of the Pennsylvania Human Relations Act, 43 P.S. § 955(a). The essence of this case is a question of credibility, a question which was clearly resolved by the trier of fact, the Pennsylvania Human Relations Commission (the HRC) against the employer, the appellant herein. The credibility of the witnesses (appellee-complainant and appellant’s agents and officers) is a matter peculiarly within the province of the HRC as trier of fact. As that tribunal has resolved the crucial issue of credibility against the employer, as that finding is supported by substantial evidence, and as that finding is dispositive of the ultimate issue of employment discrimination in this case, I would affirm the Commonwealth Court’s affirmance of the HRC’s determination and award. Accordingly, I dissent.

Initially, appellee met her burden of establishing a prima facie case of employment discrimination under the McDonnell Douglas/Burdine/Aikens1 evidentiary guidelines and standards. That burden of proof was met when appellee established that she was a member of a protected class (female), that she was qualified for the positions in question (she was, in fact, hired as a security officer and promoted promptly to security manager), that she was discharged, and that, after her discharge, non-members of the protected class (males) of equal or lesser qualifications replaced her. The HRC found that appellee established each of these elements of the prima facie case, and that finding is supported by substantial evidence of record. The majority concedes that appellee met this initial burden of proof, stating that her “evidence was ... sufficient to put the employer in the position of offering a non-discriminatory reason for its action.” Majority op. at 131.

*137The employer, appellant, proceeded to offer three non-discriminatory reasons for discharging appellee. The HRC specifically rejected those reasons, finding them to be unworthy of credence. Thus the HRC did not accept these stated reasons for discharge as “legitimate, non-discriminatory reasons,” and found them to be “pretextual.” This determination of credibility was based upon inferences raised by substantial record evidence, and was fully within the function and competency of the HRC.2

Because appellee established a prima facie case that her discharge was discriminatory and because the employer failed to advance any “legitimate, non-discriminatory” reasons for her discharge (i.e., the employer failed to advance any non-discriminatory reasons which the trier of fact, the HRC, found worthy of belief), appellee has sustained her burden of persuasion under the McDonnell Douglas/Bur-dine/Aikens standards. Those standards were summarized and clarified by the United States Supreme Court in Aikens:

*138By establishing a prima facie case, the plaintiff in a Title VII action creates a rebuttable “presumption that the employer unlawfully discriminated against” him ... To rebut this presumption, “the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiffs rejection.” ... In other words, the defendant must “produce evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason.” ...
But when the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiffs proof by offering evidence of the reason for the plaintiffs rejection, the fact finder must then decide whether the rejection was discriminatory within the meaning of Title VII. At this stage, the McDonnell-Burdine presumption “drops from the case,” ... and “the factual inquiry proceeds to a new level of specificity.” ...
The “factual inquiry” in a Title VII case is “whether the defendant intentionally discriminated against the plaintiff.” ... As we stated in Burdine: “The plaintiff retains the burden of persuasion. [H]e may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." ...

460 U.S. at 713-16, 103 S.Ct. at 1480-82 (citations omitted).

Here, the appellee’s burden of persuasion was met by evidence which established a prima facie case of discrimination and which raised an inference that “a discriminatory motive more likely motivated the employer,”3 and by “indi*139rectly showing that the employer’s proffered explanation [was] unworthy of credence.”

Despite substantial evidence on the record to support the HRC’s determination that appellee’s discharge was discriminatory, the majority vacates the Commonwealth Court’s affirmance because of perceived “flaws” in the application of the McDonnell Douglas/Burdine/Aikens standards by these tribunals. It is true that the HRC’s articulation of these standards was less than exact and left something to be desired. As the Commonwealth Court observed, that articulation came “dangerously close to shifting the ultimate burden of persuading the trier of fact that the employer’s motives were not discriminatory upon the employer.” 88 Pa.Comwlth. at 447, n. 3, 489 at 1003.4 However, as the Commonwealth Court recognized, this erroneous articulation of the standards amounted to harmless error under the circumstances, in light of the HRC’s explicit rejection of the employer’s purported non-discriminatory explanations for appellee’s discharge as not worthy of belief.

The majority formulates the ultimate issue regarding the burden of persuasion as follows:

Has the plaintiff proven discrimination by a preponderance of the evidence? Stated otherwise, once the defendant offers evidence from which the trier of fact could rationally conclude that the decision was not discriminatorily motivated, the trier of fact must then "decide which party’s explanation of the employer’s motivation it believes.’’ Aikens, 460 U.S. at 716, 103 S.Ct. at 1482.

Majority op. at 131. It is clear that the HRC, the trier of fact, has done exactly that, as it decided to believe the appellee’s explanation of the employer’s actions and to disbelieve the employer’s purported non-discriminatory explanations, finding them pretextual. I reiterate that, as the *140United States Supreme Court stated in Athens, the burden of persuasion may be met by the discrimination complainant by “indirectly showing that the employer’s proferred explanation is unworthy of credence,” as was done here. On this basis, I would affirm the Commonwealth Court’s affirmance of the HRC’s determination that appellant’s discharge of appellee was discriminatory, even though the HRC’s formulation of the evidentiary standards governing these cases was in error.

The majority also faults the Commonwealth Court’s articulation of the governing standards, specifically that court’s statement that the employer’s “failure to articulate a legitimate non-discriminatory motive for discharging Complainant obviated the need for Complainant to proceed with the ultimate burden of proving the intent to discriminate against her.” Majority op. at 134, citing Commonwealth Court opinion at 88 Pa.Comwlth. at 451-52, 489 A.2d at 1006 (emphasis in Commonwealth Court opinion). From this statement, the majority concludes:

The court’s emphasis on the word “legitimate”, coupled with its review of the Commission’s findings that the evidence failed to disprove discrimination, betrays a hidden understanding that the probative value of the employer’s explanatory evidence is to be independently weighed; if it is found to be somehow lacking, the explanation may be disregarded as “not legitimate”, thus allowing the presumption arising from the prima facie case to stand as the only proof of the ultimate issue. As we have previously explained, this was error.

Majority op. at 134.

The majority’s concerns that the Commonwealth Court applied some “hidden understanding” of the party’s respective burdens of production of evidence and of persuasion are unfounded. First, as the majority acknowledges, the “offending” passage is evaluated out of its context, which context was the rebuttal of appellant’s argument that appellee had proven her case solely on certain hearsay evidence. Second, and more important, the Commonwealth Court ex*141plicitly and correctly demonstrated its understanding of the proper analysis to be applied in employment discrimination cases when it stated earlier in its opinion:

First, as stated above, Complainant has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. The essential elements of Complainant’s prima facie case of discrimination on the basis of sex are that (1) she is a member of a protected class (female), (2) that she was hired for a job for which she was qualified, (3) that she was discharged, and (4) that she was replaced with one or more males with equal or lesser qualifications.
If the Complainant, succeeds in proving the prima facie case, there is a rebuttable presumption of sex discrimination, and the burden shifts to the defendant to articulate a legitimate non-discriminatory reason for the employee’s discharge. If the defendant succeeds in rebutting the presumption of discrimination, it is the Complainant’s obligation to prove by a preponderance of the evidence that the reasons offered by the defendant were pretextual. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the Complainant is always the Complainant’s.

88 Pa.Comwlth. at 448-49, 489 A.2d at 1004 (emphasis added).

Finally, it seems to me that the majority improperly invades the province of the trier of fact and substitutes its evaluation of the credibility of the evidence in stating:

If the allocation of proof analysis is properly understood, the foregoing [reasons for discharge proferred by the employer] must be considered sufficient evidence of a “legitimate, non-discriminatory reason” for [appellee’s] dismissal to meet [the employer’s] burden of production. Whether or not the evidence is ultimately deemed credible, and whether or not it ultimately withstands the weighing of all the evidence, it is indisputably sufficient *142to raise a question of fact as to whether the employer intentionally discriminated against the employee.

Majority op. at 133.

The employer’s evidence in this case was ultimately deemed incredible by the HRC. The HRC, therefore, determined that such evidence was entitled to little or no weight, and the question of fact was in fact resolved against the employer. Simply because the employer is able to espouse some neutral explanation for an adverse employment decision does not automatically elevate that explanation to a “legitimate, non-discriminatory reason.”

For the foregoing reasons, I would affirm the Commonwealth Court order affirming the order and award of the Pennsylvania Human Relations Commission.

PAPADAKOS, J., joins in this dissenting opinion.

. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); United States Postal Service v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983).

. The Commonwealth Court summarized the HRC’s finding that the employer’s proferred reasons for discharge were pretextual stating:

The HRC in its adopted opinion, listed and disposed of three allegedly non-discriminatory reasons offered for Complainant’s discharge at the hearing. In response to AHRCO's [the employer’s] assertion that it was compelled to discharge Complainant from her position as Security Manager because there was no such position under the rules and regulations provided to AHRCO by the Federal Department of Housing and Urban Development, the HRC stated that such explanation ignores the plain language of Complainant’s letter of termination which advised she was being terminated from the position of Security Manager and was mere pretext. Similarly, it rejected AHRCO's assertion that the "realignment” which it offered as explanation to Complainant in its letter to her informing her of her discharge was prompted by economic necessity as the “realignment” resulted in more rather than fewer security officers working at Second East Hills Park. Finally, it rejected, also as pretext, AHRCO's assertion that it was obligated to discharge Complainant because she was not a member of Certified Police Unit 644 (CPU 644) with whom AHRCO allegedly had an exclusive "hiring hall” arrangement with regard to its security staff. The HRC found as fact that Complainant had never been informed, either prior or subsequent to hire that membership in CPU 644 was a condition of employment and that if, indeed, there was such an exclusive relationship, no documentary evidence to support the assertion had been produced.

88 Pa.Comwlth. at 450-51, 489 A.2d at 1005.

. The majority seems to believe that, simply because the "presumption drops from the case" when an employer offers "legitimate, non-discriminatory reasons" for its actions, the mere articulation of non-discriminatory reasons (even if not believed) nullifies any inference of discrimination that could be raised by the evidence offered to demonstrate a prima facie case. It seems clear that, even though a complainant may not be entitled to rely on a "presumption" of discrimination once an employer advances legitimate, non-discriminatory reasons, nevertheless the evidence which complainant has offered to *139support a prima facie case may still support an inference of discrimination to be weighed along with all of the evidence.

. This "danger” arose from the HRC's eighth conclusion of law, which reads: “Respondent has failed to demonstrate that its conduct in terminating Complainant did not violate the Act. Its explanations for the termination were pretextual."