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SEPTA did not discriminate against a black man when it refused to hire him as a plumber, even though the transit authority didn’t follow its affirmative action hiring policy when it rejected his applications for two openings, the state Human Relations Commission has ruled. In a 9-2 vote, the commission adopted the opinion of a hearing examiner in Cobbs v. Southeastern Pennsylvania Transportation Authority, deciding that despite Eugene J. Cobbs’ prima facie case of racial discrimination against the area’s mass transit authority, there was neither direct evidence of discriminatory intent nor sufficient circumstantial evidence of such intent. “The hearing officer and the commissioners looked beyond the difficult fact that there were no minority plumbers and saw that the people involved were colorblind,” said Gino J. Benedetti of Miller Alfano & Raspanti, who represented SEPTA. Two commissioners dissented from the majority, contending that the makeup of SEPTA’s plumbing staff, which was all white at the time Cobbs applied, proved that the transit authority supported a discriminatory environment. The two commissioners were also upset that SEPTA had admittedly not followed its affirmative action hiring policy because the plumber jobs were not managerial positions – even though the vacant positions had been earmarked as jobs “underutilized for minorities.” Investigators for the commission had looked into Cobbs’ complaint against SEPTA, filed in 2001. According to the complaint, the transit authority hired two white applicants who were less qualified than Cobbs. The investigators found that at least a prima facie case of discrimination existed against the transit authority, according to the opinion. Lawyers for the parties argued before a hearing examiner in March, and the examiner forwarded his opinion to the commission, which it adopted Nov. 25. Section 5 of the state Human Relations Act requires employers to provide legitimate, nondiscriminatory reasons for not hiring a minority to overcome the presumption of discrimination in a prima facie case. If the employer can provide the necessary explanation for its actions, the plaintiff must then prove the reasons were not true but merely a pretext for discrimination. Cobbs, a plumber with at least 30 years of experience, applied in 2000 and 2001 for plumbing positions with SEPTA that were advertised in The Philadelphia Inquirer, according to the opinion. Two white supervisors who tested and interviewed Cobbs rejected his application in part because, during his job interview, Cobbs indicated that he was looking for a place where he could “cruise” until retirement. However, during his testimony, Cobbs denied making that comment, according to the opinion. Cobbs’ lawyer argued that the commissioners should believe Cobbs over his interviewer because the interviewer never made a notation specifically about the comment in his file. But the commissioners, according to the opinion, pointed to where the interviewer wrote, “It seems Mr. Cobbs is looking for a place to retire early,” on one form. Also, instead of ranking Cobbs among the other applicants, the interviewer outright rejected Cobbs as an applicant. The interviewer had previously hired black applicants and supervised a number of black employees over his years with SEPTA; no minority employee had ever complained about him, according to the opinion. “Considering the totality of the circumstance, it is more likely that Cobbs made a comment at the 2000 interview . . . that caused [the interviewer] to set aside Cobbs’ vast experiences and to form the opinion that Cobbs was more interested in job security, benefits and taking it easy rather than being an employee that could be counted on to have a commitment to performing tasks to the best of his ability,” the commission opinion stated. This factor was the overwhelming reason the supervisors rejected Cobbs’ application in 2000 and in 2001, the commission determined. Therefore, SEPTA had shown its reason for not hiring Cobbs was justified and not just a pretext for race-based discrimination, the commission concluded. The commission also said it did not matter that SEPTA didn’t follow its written affirmative action policy in this case. Under the policy, a hiring manager was supposed to consider affirmative action goals when a job was designated as “underutilized for minorities” and when two applicants were equally qualified for a position, according to the opinion. The plumbing positions were designated underutilized for minorities, but the transit authority said that it had consistently applied the policy only to supervisory openings. “Without question, SEPTA’s policy was neither applied to the positions Cobbs applied for, nor to other hourly positions,” the commission opinion stated. “While this may be troubling as a general point of interest, even if policy had been followed in the 2000 or 2001 openings at issue here, it would not have made a difference.” It would not have made a difference, the commission said, because the law doesn’t require companies to treat minorities more favorably than non-minorities but that they not treat them less favorably. “The two guys that didn’t hire Mr. Cobbs had no idea of the affirmative action policy and had hired other minorities in the past,” said Benedetti, who worked on the case with fellow Miller Alfano attorney Jennifer A. Parda. “Even though there was a technical problem with the language of the policy, I think there was recognition from the commission that SEPTA bends over backward to hire minorities.” Staff attorney for the commission, Charles L. Nier III, could not be reached for comment yesterday. Nier argued the case for Cobbs before the hearing examiner in March. In their dissent, Commissioners Sylvia A. Waters and Theotis W. Braddy disputed whether it mattered if Cobbs made a statement about wanting to “cruise” until retirement. Assuming arguendo that Cobbs had made the comment, “we find that the complainant was very qualified for the position in question,” the dissenters wrote. “It is hard to believe that one word, ‘cruise,’ would erase all the years of experience and expertise accumulated by the complainant. It is far more likely that the reasons offered by SEPTA for its action are pretexual, nor do we know that the word, even if used, was intended to infer something less than a full day’s work for a full day’s pay.” (Copies of the 22-page opinion in Cobbs v. Southeastern Pennsylvania Transportation Authority , PICS NO. 03-1906, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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