Commonwealth v. Thorp, Reed & Armstrong

Opinion by

Judge Blatt,

This is a case of first impression involving a question of alleged discrimination in employment under Section 5(d) of the Pennsylvania Human Relations Act¹ (Act), which provides:

“It shall be an unlawful discriminatory practice unless based upon a bona fide occupational qualification ....

“(d) For any employer, employment agency or labor organization to discriminate in any manner against any individual because such individual has opposed any practice forbidden by this act, or because such individual has made a charge, testified or assisted, in any manner, in any investigation, proceeding or hearing under this act.” (Emphasis added.)

We have previously, of course, considered many cases of alleged discrimination in employment under Section 5(a) of the Act,² and an issue of discrimination as prohibited under that section of the Act and as between the same parties here concerned may yet come before us if and when either party appeals from a still pending decision of the Pennsylvania Human Eelations Commission (Commission) as to whether or not there was also discrimination in employment in this case because of the claimant’s age or sex. Here, however, we are concerned only with the employer-appellant’s appeal from the decision of the Commission that the employee-appellee, because of her original complaint of discrimination under Section 5(a) which has not yet been adjudicated, was later discriminated against under Section 5(d), and, if so, whether or not the Commission’s order should be affirmed as issued.

The facts may be briefly stated. Marcella Phelps Hanson, then a 49-year-old woman attorney, who had then been employed as an associate of the law firm of Thorp, Eeed & Armstrong (Thorp Eeed) since November 1970, filed a complaint with the Commission on December 20, 1974 charging discrimination in employment because of age and sex. Thorp Eeed was not informed of this complaint, either by the Commission or by Ms. Hanson, until Thursday, March 6, 1975 when Ms. Hanson advised Mr. Ealph DeStefano, a partner in the firm, that the Commission would be serving a complaint on the firm the following day. About one hour later, after Mr. DeStefano had reported the matter to Mr. Clyde W. Armstrong, a partner and secretary of the firm’s Executive Committee, Mr. Armstrong directed Ms. Hanson by a written memorandum to prepare a list of the files which she was handling on matters concerning clients of the firm, so that such matters could be reassigned. On the following Monday, March 10, 1975, a letter was drafted and delivered in behalf of the firm to Ms. Hanson placing her on an indeterminate leave of absence with pay but otherwise completely disassociating her from the firm. She responded two days later, on March 12, 1975, by filing a second complaint with the Commission, charging therein that Thorp Eeed’s actions on March 10, 1975 amounted to another unlawful discriminatory practice under Section 5(d) of the Act. The Commission, which had as yet scheduled no hearing on the first complaint, scheduled and held hearings on the second complaint before three hearing commissioners on April 10 and 11, 1975, and issued its adjudication on June 1, 1975, determining that Thorp Eeed had violated Section 5(d) of the Act. Its order directed that Ms. Hanson be restored to the full status which she enjoyed with the firm on March 6, 1975.³ Thorp Eeed here appeals from that adjudication.

The Administrative Agency Law ⁴ limits onr scope of review here to a determination as to whether or not the findings of fact necessary for the Commission’s adjudication were supported by substantial evidence, whether or not the adjudication was made in accordance with law, and whether or not the Commission abused its discretion either in reaching its decision or in directing appropriate relief. Freeport Area School District v. Pennsylvania Human Relations Commission, 18 Pa. Commonwealth Ct. 400, 335 A.2d 873 (1975), Midland Heights Homes v. Pennsylvania Human Relations Commission, 17 Pa. Commonwealth Ct. 563, 333 A.2d 516 (1975). And, of course, our review must be limited to the adjudication here under appeal, which, as previously noted, concerns only Ms. Hanson’s second complaint charging Thorp Reed with Section 5(d) discrimination. We are not here concerned with her first complaint which charged age and sex discrimination under Section 5(a) of the Act.

Thorp Reed first raises a procedural due process challenge to the hearings held by the Commission on April 10 and 11, 1975. It argues that, at those hearings, an assistant attorney general who was attached to the legal branch of the Commission presented the charges, while, at the same time, the General Counsel, who was also attached to the legal branch of the Commission, served as legal advisor to the hearing commissioners. Unquestionably this commingling of prosecutorial and adjudicatory functions in the legal office of the Commission “comes perilously close” to a violation of due process. State Board of Medical Education and Licensure v. Grumbles, 22 Pa. Commonwealth Ct. 74, 347 A.2d 782 (1975). We clearly do not have the constitutionally permissible circumstances where prosecutorial and adjudicatory functions are handled by separate branches of an administrative entity, see State Dental Council and Examining Board v. Pollock, 457 Pa. 264, 318 A.2d 910 (1974) ; nor do we have the constitutionally impermissible circumstances where prosecutorial and adjudicatory functions are commingled in the same individual, Dussia v. Barger, Pa. , 351 A.2d 667 (1975) ; Horn v. Township of Hilltown, Pa. , 337 A.2d 858 (1975); Gardner v. Repasky, 434 Pa. 126, 252 A.2d 704 (1969); English v. North East Board of Education, 22 Pa. Commonwealth Ct. 240, 348 A.2d 494 (1975); In re: Appeal of Feldman, 21 Pa. Commonwealth Ct. 451, 346 A.2d 895 (1975); and most notably Pennsylvania Human Relations Commission v. Feeser, 20 Pa. Commonwealth Ct. 406, 341 A.2d 584 (1975). Instead, we have two individuals who are both within the same branch of an administrative entity, one handling a prosecutorial function and the other separately handling an adjudicatory function. These circumstances place us at the interface between a constitutionally permissible and a constitutionally impermissible commingling of prosecutorial and adjudicatory functions. See State Board of Medical Education and Licensure v. Grumbles, supra.

We are mindful, of course, that a fair trial in a fair tribunal is the basic requirement of due process and that fairness requires the absence of actual bias in the trial of cases. In re Murchison, 849 U.S. 133 (1955); accord, Dussia v. Barger, supra. We also recognize that the most critical function in the prosecution and adjudication of administrative cases is in the resolution of disputed facts because the findings of fact which result from administrative proceedings are subject to only limited appellate review. The fact finding process, therefore, must be afforded the broadest dimensions of constitutional protection.

We have, however, meticulously examined the proceedings before the hearing commissioners in this case and we cannot find that the Commission and its counsel have crossed here into unconstitutional realms. In this respect, it is significant that the facts of this case are largely undisputed and that the findings of the Commission which were necessary to support a violation of Section 5(d) of the Act are not challenged by the appellant. The possible absence of constitutional protections during the critical fact finding phases of this case, therefore, was not a factor which resulted in any unfairness to Thorp Reed. The issue, consequently, is a matter of legal determination, not of determination of fact. And, while it may be extremely difficult to uncover bias or unfairness among an agency’s findings of fact, a reviewing court unquestionably has power to examine the legal conclusions drawn therefrom (which we have done,) whether such conclusions were affected by bias or otherwise.⁵ View-ing the case in this light, we do not believe that Thorp Reed has been denied due process of law.

Thorp Reed also argues that, even if the procedure can be held constitutional, Section 5(d) of the Act was not actually violated in this case. It contends first that what it did was actually not discriminatory under the Act. It must be noted, however, that an unlawful discriminatory practice may be established upon a well supported finding that an employer has taken “any manner” of discriminatory action against an individual because he or she has filed a charge under the Act, and that neither animosity nor resentment need be shown to establish a violation. Here the Commission has found that, when, on March 6, 1975, Thorp Reed learned that Ms. Hanson had filed a charge under the Act, a determination was then made by Thorp Reed that she should no longer continue to represent “firm clients”⁶ and she was directed, therefore, to list the files which she had been handling for those clients so that the files conld be reassigned. The Commission also found that Thorp Reed’s executive committee met on Saturday, March 8, 1975, and further agreed that, as of March 10, 1975, Ms. Hanson would be (and she was) ;■ (1) placed on an indeterminate leave of absence with full salary and insurance coverage; (2) relieved of the split fee arrangement with respect to her personal clients so that she would handle those clients under her name alone as her exclusive accounts; (3) directed to relocate her personal files to some other facility; and (4) directed to refrain from using the firm stationery or from otherwise holding herself out as an associate or representative of the firm in any way whatsoever. As of that date, therefore, Ms. Hanson, was deprived of the prestige which comes through an association with a law firm of good standing and of whatever benefits she might have gained through continuing to handle the matters of any firm clients. More obviously, she lost the use of office space and the services of a secretary and a messenger as well as the use of the firm library and of various copying and other office machines. Thorp Reed’s action, therefore, as the Commission found, was clearly discriminatory conduct, and as such, unlawful under Section 5(d) of the Act.

■ Thorp Reed next attempts to excuse the action it took, even if such, could be categorized as discriminatory, on the ground that the Code of Professional Responsibility (Code) applicable to lawyers ⁷ required such action. This Code is designed as an inspirational guide to the legal profession and as a basis for disciplinary action by our Supreme Court where the conduct of a lawyer falls below the required minimum level.⁸ It has nine Canons which provide the general ethical concepts from which nine sets of Ethical Considerations and Disciplinary Rules are derived, all of which have been adopted by our Supreme Court in accordance with the Constitution of Pennsylvania and the Pennsylvania Rules of Civil Procedure. Thorp Reed argues that these operate to suspend all laws inconsistent with their provisions, citing Article Y, Section 10(c) of the Constitution of Pennsylvania and Pa. R. C. P. No. 205 and Thorp Reed claims that, to the extent its actions were made necessary by the Code, it must be exonerated from any liability under the Human Relations Act, vigorously asserting that the Code’s Canons 4 and 5 made the action necessary which it took with respect to Ms. Hanson. These Canons provide as follows: Canon 4: “A lawyer should preserve the confidence and secrets of a client. ’ ’ Canon 5: “A lawyer should exercise independent professional judgment on behalf of a client.” According to Thorp Reed, when Ms. Hanson filed her original complaint on December 20, 1974, and, from that time forward, she necessarily stood in an adversary relationship to the firm which might result either in the impairment of her professional judgment in the continued handling of matters involving firm clients or in her disclosure of client confidences at any hearings to be held by the Commission concerning the original age and sex discrimination charge. It is also possible, however, that, if Thorp Reed had permitted Ms. Hanson to retain the use of the firm’s office space, service personnel, and other conveniences and facilities previously available to her, she might well have represented all firm clients to their complete satisfaction and also to the complete satisfaction of the firm. There is no more reason to assume that she would not fulfill her professional responsibilities than there is to believe that Thorp Reed itself would fail to adhere to the same professional guidelines. Moreover, if any actual conflict should arise, appropriate disciplinary sanctions could be invoked.

Thorp Reed has cogently argued further, however, that it must always be in a position to assign or reassign legal matters to those attorneys among its associates and members who are in its opinion best qualified to handle them, and we believe that it may be justified in believing that the Commission order would interfere with this right. Clearly the Code is intended to protect both clients and the general public from the effects of any possible conflict which might impair the judgment of an otherwise competent attorney, and normally a law firm would have the absolute discretion to consider any reasonably possible conflicts when making assignments of cases. We believe, therefore, that Thorp Reed should not be directed or required to assign or to reassign firm clients to Ms. Hanson in any case where a potential conflict affecting the interests of those clients is reasonably believed to exist. On the other hand, we do not believe that Thorp Reed should be permitted to discriminate in the assignment of cases of firm clients for any other than such sound professional reasons, for Ms. Hanson’s interests in the pending discrimination charge are not per se adverse to the interests of Thorp Reed’s clients. Nor can it be assumed that any interest she may have adverse to Thorp Reed as her employer would necessarily result in anything less than a complete exercise of independence of judgment toward Thorp Reed’s clients, against whom she clearly has no grievance and bears no grudge.

Believing, therefore, that the Commission properly found an incidence of discrimination in employment which is prohibited under Section 5(d) of the Act in this case but that its order requires modification, we issue the following

Order

And Now, this 24th day of June, 1976, the decision and order of the Pennsylvania Human Relations Commission is hereby affirmed and modified as hereinabove indicated.

1 Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §955(d).

2 Section 5(a) of the Act, 43 P.S. §955(a), provides in part as follows: '

“It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification . . .

“(a) For any employer because of the race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability of any individual to refuse to hire or employ, or to bar or to discharge from employment such individual, or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment, if the individual is the best able and most competent to perform the services required.”

3 The order of the Commission directed Thorp Reed as follows:

“1. The Respondent shall rescind all action it took with regard to Complainant’s status with the firm as [a] result of her filing the complaint with the Commission and shall forthwith restore her to the position she was in at the time she informed Respondent she had filed the complaint.

“2. Respondent shall take no action to disturb Complainant’s restored position with the firm, and shall provide her with all of the facilities and advantages she had previously enjoyed, and shall continue to make assignments to her without regard to the pendency of her complaint and consistent with the quality she could reasonably have expected prior to the time Respondent learned she had filed a complaint.

“3. Respondent shall take affirmative steps to insure that Complainant is not harassed or subjected to any diseomforture by any of the partners or employes of the firm.

“4. The fact that Complainant filed a charge with the Commission against Respondent shall not be considered by the Respondent in any employment action or decision it takes in regard to Complainant.

“5. The Respondent shall within two weeks of the effective date of this order inform the Commission of the manner of compliance with this Order.”

4 Act of June 4 1945, P.lj. 1388, as amended, 71 P.S, §1710.1 et seq.

5 For example, one of the instances alleged by Tborp Reed to be violative of due process occurred when the assistant attorney general prosecuting the case for the Commission objected to Thorp Reed’s offer to present W. Edward Sell, Dean of Admissions for the University of Pittsburgh School of Law, as an expert on the subject of legal ethics and agency law. After consulting with the General Counsel to the Commission, the hearing commissioners refused to allow Mr. Sell’s testimony. Such testimony, of course, would have been directed to the legal issue concerning the applicability of the Code of Professional Responsibility rather than to factual determinations, and that issue has had full consideration by this Court in this appeal.

6 Firm clients are those clients handled by associates on assignment from the firm and should be distinguished from an associate’s personal clients who are acquired by personal contact rather than by assignment from the firm. At Thorp Reed, an associate received a salary for handling “firm” clients and split his or her personal fee with the firm for handling matters involving personal clients.

7 Pennsylvania Rules of Court, p. 175 (1975), adopted by our Supreme Court on February 27, 1974.

8 Pennsylvania Rules of Court, p. 181 (1975).