G. Gold v. Butler Area Sewer Authority ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Greg Gold, :
Appellant :
:
v. :
: No. 1846 C.D. 2015
Butler Area Sewer Authority : Submitted: April 12, 2016
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: May 4, 2016
Greg Gold (Gold) appeals from the Butler County Common Pleas
Court’s (trial court) June 2, 2015 order finding in favor of the Butler Area Sewer
Authority (Authority) and against Gold in his employment discrimination/retaliation
action against the Authority. There are two issues before the Court: (1) whether the
trial court erred in determining that Gold failed to establish a prima facie claim of
gender discrimination; and, (2) whether the trial court erred in ruling that Gold failed
to meet his burden of proving that the Authority’s proffered reason for Gold’s
employment termination was pretextual. After review, we affirm.
Background
The Authority hired Gold as a laborer in 1992. Approximately six
months after his initial hire date, the Authority reclassified Gold as maintenance
personnel. In 2008, after working as maintenance personnel for approximately
fifteen years, Gold began working as a dye tester. Gold was selected for the dye
tester position because he was the most senior Authority employee to bid for that
position. Throughout his employment with the Authority, Gold was a member of the
American Federation of State, County, and Municipal Employees Union (Union).
During his employment with the Authority, Gold was the subject of numerous
disciplinary issues. On December 10, 1998, Gold was suspended for inappropriate
and unacceptable conduct. On October 27, 2003, Gold was suspended for misuse of
Authority property. On January 11, 2007, Gold was suspended, pending employment
termination, for testing positive on a random drug test. On January 18, 2007, the
Authority entered into a Last Chance Agreement (2007 Agreement) with Gold,
whereby, Gold was required to complete a drug rehabilitation program, and was
subject to random drug and/or alcohol testing for a period of 60 months following his
reinstatement. The 2007 Agreement also provided that Gold’s employment could be
terminated without any right to file a grievance or to demand arbitration, should he
fail a drug and/or alcohol test within said time period and/or within the first 12
months of the 60-month term if he violated any policy, work rule, law, statute or
regulation.
On April 16, 2009, the Authority terminated Gold’s employment for
violation of an Authority work rule related to outside employment and conflict of
interest, specifically for replacing sewers outside of his job with the Authority, and
for lying to the Manager and Solicitor regarding the same. The Union filed a
grievance challenging Gold’s employment termination, and on May 27, 2009, Gold
and the Authority entered into a second Last Chance Agreement (2009 Agreement).
The 2009 Agreement provided that Gold’s employment termination was converted to
a 30 work day suspension without pay. By signing the 2009 Agreement, Gold
acknowledged that he willfully engaged in conduct in violation of the Authority’s
outside work rule, and that he willfully lied to the Manager and Solicitor. The 2009
Agreement provided that, in the event of any disciplinary infraction whatsoever for
performance or behavior, or for any violation of any policy, work rule, directive, law,
2
statute or regulation during the first 60 months following reinstatement, Gold was
subject to employment termination without any right to file a grievance or to demand
arbitration. The 2009 Agreement also specifically provided that, after he completed
the 60-month period, Gold would again be vested with the right to file a grievance
relating to any disciplinary action against him, and to demand arbitration.
On June 26, 2012, before the expiration of the 2009 Agreement, Gold
and eleven co-workers attended a voluntary cardiopulmonary resuscitation (CPR)
training at Butler County Community College (BCCC). Jessica L. Bascom, now
Bronder (Bascom), was the CPR instructor. During the class, Gold asked Bascom:
“How would you perform CPR on a well-endowed woman, like yourself?”
Reproduced Record (R.R.), Gold Ex. 5 (Laderer Statement). Bascom appeared taken
aback by the question. After Gold asked his question, a comment was made by
another person in the room, which was followed by snickering and laughter. Bascom
pointed in the direction of the person who made this comment, and said: “you’re not
there to grope them.” Id. Bascom then instructed the class about an alternative CPR
method to be used on larger victims, which involves giving compressions on the
victim’s back. During a break, one or more of the participants apologized to Bascom
for Gold’s question. Gold did not apologize, as he did not feel his question was
inappropriate or offensive. Gold received a CPR certification card at the end of the
day’s training which listed the instructor’s name as Jesse Haas. As Gold was leaving
the building, he blew up a latex glove and attached it to the door exiting to the
parking lot. Gold did this for no other reason than he was “messing around.”
Certified Record (C.R.) at 113, Gold Ex. 36 (Gold Interview). Gold’s supervisor,
Fred Cappuccio (Cappuccio), observed this incident, and told Gold to remove the
glove. Gold complied and removed the glove.
Following the CPR training on June 26, 2012, a member of the
Authority’s management staff who was present at the training, Ronata Lavorini
3
(Lavorini), informed the Authority’s Executive Director Thomas D. Rockovich
(Rockovich) of Gold’s question and its aftermath. Lavorini told Rockovich that Gold
asked Bascom how a person would give CPR “on a distressed female that was well-
endowed,” and that he referenced the instructor as an example of such a person. C.R.
at 110, Gold Ex. 33 (Lavorini Interview). Lavorini indicated that Bascom appeared
“somewhat stunned” by the remark. Id. Lavorini relayed that “she felt
uncomfortable by the incident and embarrassed for the instructor[.]” Id. Rockovich
drafted a written memorandum regarding Lavorini’s account of the CPR training
events, but took no disciplinary action at that time. Rockovich planned to speak with
the other management level employees who attended the training, the next day. On
June 27, 2012, Rockovich spoke with another member of the Authority’s
management who was present at the training, Kerrie Hay (Hay). Hay told Rockovich
that Gold “made an inappropriate remark about the instructor in the form of a
question about performing CPR on well-endowed women.” C.R. at 111, Gold Ex. 35
(Hay Interview). Hay reported that Bascom was visibly taken aback by the remarks.
Rockovich drafted a written memorandum of Hay’s statement.
Rockovich also spoke with Cappuccio, another member of the
Authority’s management staff, who was present at the training and received his
account of the June 26, 2012 events. In addition to telling Rockovich about Gold’s
question, Cappuccio also informed Rockovich of the glove incident. Cappuccio
relayed that he considered Gold’s actions inappropriate for an Authority employee.
The statements of all three individuals, regarding the nature of Gold’s question,
expressed essentially the same information. On Monday, July 2, 2012, Rockovich
spoke with Bascom on the telephone. On July 5, 2012, Gold was called into
Rockovich’s office, and Rockovich informed Gold and the Union Steward Dennis
Kenyon (Kenyon) of the complaint. Rockovich told Gold to make things right by the
end of the next day. Gold attempted to locate/contact Bascom by leaving messages at
4
the Butler Fire Department and the Butler Ambulance Service. Gold was unable to
contact Bascom, in part because the name listed on the CPR card was Jesse Haas.
On July 6, 2012, Bascom received a telephone call from her other place
of employment, Bronder Technical Services (BTS), and was told that Gold called,
asking for her husband. Bascom was informed that when Gold called BTS, he asked
to speak with Jess McGee’s husband. Jess McGee is Bascom’s alias on Facebook.
Bascom was concerned by Gold’s call to BTS and by his attempts to contact her, so
she called Rockovich to inform him of the calls. Later that day, at the request of the
BCCC Human Resources (HR) Director Linda Dodd (Dodd), Bascom prepared a
written account of the events that took place on June 26, 2012 and on July 6, 2012.
With respect to the events of June 26, 2012, Bascom recalled Gold stating, “I don’t
think I would be able to perform CPR on someone if they [sic] were as attractive as
you with big breasts.” C.R. at 108, Gold Ex. 33 (Bascom Statement). Bascom
represented that she was taken aback by this comment, and during the following
break in class, several students apologized to her for his comment.
Also on July 6, 2012, Rockovich and Gold had another meeting, during
which, Gold informed Rockovich that he had attempted, without success, to contact
Bascom. Rockovich told Gold that “[he] wouldn’t try to contact” Bascom because
she may interpret his attempts in the wrong manner. R.R. at 483. Despite
Rockovich’s direction, on the following Monday, July 9, 2012, Gold and his co-
worker Dan Deal (Deal), went to BCCC to look for Bascom, they did so while in
Authority uniforms, driving an Authority vehicle and during their on-duty work
hours. These actions violated Authority policy. Deal stayed in the vehicle while
Gold went inside. Gold was escorted by a security guard to the HR office, where he
met with Dodd. Gold informed Dodd that he was trying to contact Bascom, but he
did not inform Dodd of the reasons for doing so. Dodd informed Gold that they do
not give out contact information.
5
Later that day, Rockovich and Gold met again at which time Rockovich
placed Gold on paid suspension. Gold was accompanied by Kenyon at this meeting.
Following Gold’s July 9, 2012 suspension, Rockovich reviewed Gold’s records and
personnel file. On July 12, 2012, Gold hired outside counsel who filed an
administrative complaint with the Equal Employment Opportunity Commission
(EEOC) and the Pennsylvania Human Relations Commission (PHRC) complaining of
gender discrimination, harassment, hostile work environment, retaliation and
wrongful suspension. In the complaint, Gold alleged that he was subject to gender
discrimination because a female employee filed a complaint of sexual harassment
against him based upon his question at the June 26, 2012 CPR training. Gold alleged
that the complaint of sexual harassment was merely a pretext for gender
discrimination and wrongful suspension.
Rockovich received Gold’s complaint on July 12, 2012. On July 24,
2012, Rockovich sent Gold a Notice of Charges and Loudermill Hearing,1 confirming
the July 9, 2012 paid suspension and outlining the charges against Gold. Despite the
2009 Agreement’s provisions, whereby Gold waived his right to grieve and arbitrate
any disciplinary action, Rockovich provided Gold with a notice of charges against
him and an opportunity to respond to said charges, prior to taking action against him
in the nature of either a suspension without pay or an employment termination.
The Notice of Charges listed five actions for which Gold was being
charged, essentially: (1) referring to Bascom as attractive with big breasts; (2)
blowing up a rubber glove and hanging it on the outside of a building on the college
campus; (3) attempting to contact Bascom at her place of employment and her
1
In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the Supreme Court
held that since a public employee has a property interest in his employment, under the United States
Constitution’s Due Process Clause, the employee must be afforded at least notice and a hearing
before that employment is terminated.
6
residence; (4) traveling to the college campus during work hours, using a work
vehicle, and attempting to contact the instructor; and (5) falsely telling Dodd that he
was directed to apologize to the instructor. Prior to the Loudermill hearing, the
Union did not request, nor did Rockovich provide, a copy of Lavorini’s or Hay’s
statements.
A Loudermill hearing was held on July 31, 2012. After the Loudermill
hearing, the Union requested, and the Authority agreed to allow, additional time for
the Union to gather witness statements. On August 2, 2012, Robert Vormack,
Richard DiBiase (DiBiase), and Steve Laderer each presented the Union with written
statements. On August 3, 2012, Deal, Ricky Price, and Bruce Groom gave the Union
their written statements. Rockovich received the statements before August 10, 2012.
The above witnesses confirmed that Gold personalized his question, and referenced
the instructor as being well-endowed. At some point between July 9, and August 10,
2012, Deal and DiBiase approached Rockovich to inform him that Gold did not use
the phrase attractive with big breasts.
On August 10, 2012, Rockovich sent Gold a Notice of Employment
Termination (Notice). C.R. at 141-143, Authority Ex. D. The Notice advised Gold
his employment was being terminated because: (1) Gold “did not conduct [himself] in
an appropriate manner while participating in the voluntary [CPR] training[;]” (2)
Gold’s remark to the instructor, regardless of whether he referred to her as “attractive
. . . with big breasts” or used the phrase “well-endowed woman, such as yourself,”
was inappropriate and offensive “because [he] personalized” the question by
referencing that particular instructor’s physical attributes; (3) “the remark/question
shocked the instructor[;]” (4) Gold “should have realized that asking [this] question in
the manner that [he did] . . . would have placed a female instructor in an
uncomfortable position[;]” (5) the incident violated the Authority’s harassment policy
“whether or not [Gold] realized the ultimate consequences of [his]
7
remark/question[;]” (6) Gold did not attempt to apologize for the remark “within a
reasonable timeframe,” as other Authority employees did; (7) Gold treated the
incident casually, “from the time of [his] remark . . . to the glove-inflating event[,]”
which demonstrated “a continued cavalier and immature attitude” and improper
behavior “within an employment setting[;]” (8) on July 9, 2012, during his on-duty
working hours, “Gold traveled to the [BCCC] campus” in an Authority vehicle “and
attempted to contact the instructor” and/or obtain her contact information; and (9) on
July 9, 2012, Gold was asked by the BCCC HR Director if he was there on work
time, and he advised her that he was, but “that the Executive Director had directed
[him] to apologize to the instructor[,] [which] was false.” Id.
The Notice further advised Gold that while working for the Authority he
has demonstrated an inability to exercise proper discretion and acceptable behavior.
The Notice referenced Gold’s nine separate disciplinary incidents since 1998, and
referenced the 2009 Agreement. It concluded that Gold’s behavior at the June 26,
2012 CPR training and in subsequent related events, provided just cause to warrant
disciplinary action for inappropriate behavior and policy violation.
On August 14, 2012, Gold filed a second complaint with the EEOC and
PHRC claiming he was fired in retaliation for filing his July 12, 2012 claim. Gold
did not identify anyone within the Authority who was subject to a second Last
Chance Agreement and/or was in a similar factual situation as himself.
Facts
On September 23, 2013, Gold filed a complaint with the trial court
against the Authority alleging in Count I, Unlawful Suspension under the
Pennsylvania Human Relations Act (PHRA)2 - Gender Discrimination/Hostile Work
2
Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963.
8
Environment. In Count II, Gold averred Wrongful Termination under the PHRA -
Retaliation for Protected Activity and Gender. On November 18, 2013, the Authority
filed Preliminary Objections to Gold’s complaint. The Preliminary Objections were
resolved by agreement of the parties, i.e., Gold agreed to withdraw the allegations
concerning a 2009 continuing violation, thereby voiding his hostile work
environment claim. The trial court held a non-jury trial on May 14 and 15, 2015. On
June 2, 2015, the trial court found in favor of the Authority and against Gold on both
counts of Gold’s complaint. Gold did not file post-trial motions. On June 19, 2015,
Gold filed an appeal with the Superior Court. On June 23, 2015, the trial court filed
an order directing Gold to file a 1925(b) statement of matters complained of on
appeal (1925(b) Statement). Gold filed his 1925(b) Statement on July 7, 2015. On
August 5, 2015, the Superior Court transferred the appeal to this Court.3 On August
25, 2015, the trial court filed a 1925(a) memorandum adopting its June 2, 2015
decision as its 1925(a) opinion. Judgment was entered in the Authority’s favor on
October 7, 2015.
Discussion
Before reaching the merits of the case, we must determine if Gold has
preserved any issues for appeal. Pennsylvania Rule of Civil Procedure 227.1(c)
provides: “Post-trial motions shall be filed within ten days after (1) verdict, discharge
of the jury because of inability to agree, or nonsuit in the case of a jury trial; or (2)
notice of nonsuit or the filing of the decision in the case of a trial without jury.”
Pa.R.C.P. No. 227.1(c) (emphasis added). Gold did not file post-trial motions.
3
“Our standard of review of a non-jury trial is to determine whether the findings of the trial
court are supported by competent evidence, and whether an error of law was committed.”
Metropolitan Edison Co. v. City of Reading, 125 A.3d 499, 501 n.3 (Pa. Cmwlth. 2015) (quoting
Swift v. Dep’t of Transp., 937 A.2d 1162, 1167 n.5 (Pa. Cmwlth. 2007)).
9
Even though neither party has raised the issue of whether
this [C]ourt has jurisdiction to consider [Gold’s] appeal
when [he] failed to preserve any issues for review by not
filing post-trial motions pursuant to Pa.R.C.P. [No.] 227.1,
the question of appealability implicates the jurisdiction of
this [C]ourt - a non-waivable matter - so that the failure of
the parties to raise the issue does not prevent this [C]ourt
from doing so sua sponte.
Borough of Harvey’s Lake v. Heck, 719 A.2d 378, 380 n.4 (Pa. Cmwlth. 1998). We
acknowledge that Gold filed a 1925(b) Statement. “However, waiver due to failure to
file post-trial motions will not be remedied by listing those issues in a Rule 1925(b)
[S]tatement.” The Ridings at Whitman’s Homeowners Ass’n v. Schiller, 811 A.2d
1111, 1114 n.4 (Pa. Cmwlth. 2002).
The Pennsylvania Supreme Court has stated: “Under [Pa.R.C.P. No.]
227.1, a party must file post-trial motions at the conclusion of a trial in any type of
action in order to preserve claims that the party wishes to raise on appeal.”
Chalkey v. Roush, 805 A.2d 491, 496 (Pa. 2002) (bolded emphasis added). Our
Supreme Court has further held: “If an issue has not been raised in a post-trial
motion, it is waived for appeal purposes.” L.B. Foster Co. v. Lane Enters., Inc., 710
A.2d 55, 55 (Pa. 1998). Moreover, this Court has consistently ruled: “Where a party
fails to file timely post-trial motions after a bench trial, no issues are preserved for
this Court to review.” Liparota v. State Workmen’s Ins. Fund, 722 A.2d 253, 256
(Pa. Cmwlth. 1999); see also P.S. Hysong v. Lewicki, 931 A.2d 63, 67 (Pa. Cmwlth.
2007) (There is “overwhelming authority that the failure of an appellant to file post-
trial motions in a proceeding to which [Pa.R.C.P. No.] 227.1 applies results in a
waiver of issues[.]”); Schiller, 811 A.2d at 1116 (“[The appellants] failed to file post-
trial motions thus waiving their issues on appeal[.]”); Heck, 719 A.2d at 380 (“A
party’s failure to file post-trial motions results in a waiver of all issues for appellate
review and requires that the appeal be dismissed.”). “Consequently, when [Gold]
10
failed to file post-trial motions within ten days following the trial court’s order, the
issues [he] sought to raise in [his] concise statement of errors complained of on
appeal were waived.” City of Phila. v. New Life Evangelistic Church, 114 A.3d 472,
478-79 (Pa. Cmwlth. 2015).4
For all of the above reasons, the trial court’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
4
This Court has reviewed the trial court’s decision and discerns no error in its reasoning.
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Greg Gold, :
Appellant :
:
v. :
: No. 1846 C.D. 2015
Butler Area Sewer Authority :
ORDER
AND NOW, this 4th day of May, 2016, the Butler County Common
Pleas Court’s June 2, 2015 order is affirmed.
___________________________
ANNE E. COVEY, Judge