Bowser v. Clarion Cnty.

206 A.3d 68

Larry BOWSER, Appellant

v.CLARION COUNTY

No. 653 C.D. 2018

Commonwealth Court of Pennsylvania.

Argued February 14, 2019

Decided March 18, 2019

Neal A. Sanders, Kittanning, for appellant.

Marie Milie Jones, Pittsburgh, for appellee.

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE McCULLOUGH

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 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.

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 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 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 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...