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Wolk v. Saks Fifth Avenue

March 1, 1984


On Appeal from the United States District Court for the Western District of Pennsylvania

Author: Adams

Before: ADAMS, GARTH, Circuit Judges, and BROTMAN, District Judge*fn*


ADAMS, Circuit Judge

The evolution of the common law is marked by the gradual emergence of new doctrine. The field of employment rights, particularly for employees formerly dismissible at will, requires special re-evaluation in light of present developments. This appeal requires us to turn our attention to the rapidly evolving common law governing employment relations and especially to the tort of wrongful discharge and the implied contractual guarantee of employment security.

In the present controversy, suit was originally brought in the Allegheny County Court of Common Pleas and then removed to federal district court by the out-of-state defendant on the basis of diversity jurisdiction. After extensive discovery was allowed on both counts, the district court held that no issue of material fact was in dispute and granted summary judgment for the defendant. In its view, the tort claim was precluded by state statutory remedies and, under Pennsylvania law, which concededly controls here, a unilaterally adopted employer's personnel manual could not create enforceable contractual rights for employees. This appeal followed.


The plaintiff is Judith Wolk, who was employed as a fashion director at the Saks Fifth Avenue store in Pittsburgh from June 1977 until her discharge in June 1981. According to her averments, Ms. Wolk's work while at Saks was satisfactory and won her high job performance ratings. She asserts that her problems began in August 1980 when the store hired a new supervisor. Wolk alleges that she was sexually approached on the job by this supervisor on two separate occasions*fn1 and then discharged in retaliation for her refusal to submit to his advances.

We are mindful of the seriousness of the problems of sexual harassment on the job. As more and more women are employed, the possibilities for discriminatory conduct, both subtle and overt increase. Innuendo, intimidation, and direct confrontation are obstacles to the integration and advancement of women in the workplace. The issue before this Court is not, however, whether sexual harassment resulting in dismissal from employment may be the predicate for a successful action against job termination. Rather, we must determine whether the state law tort and contract claims were, under the present circumstance, the proper legal avenues to challenge Wolk's dismissal. For the reasons set forth, we now affirm.


In Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3d Cir. 1983), we elaborated upon the emergence of the tort of wrongful discharge under Pennsylvania common law. Applying the logic of Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (Pa. S. Ct. 1974), we held "that Pennsylvania law permits a cause of action for wrongful discharge where the employment termination abridges a significant and recognized public policy." 721 F.2d at 898. A discharge in retaliation for the refusal by a woman employee to succumb to sexual advances would abridge a significant and recognized public policy against sexual discrimination in employment.

Novosel, however, must be understood against the backdrop of the limited role of a federal court sitting in diversity jurisdiction. While a federal court must be sensitive to the doctrinal trends of the jurisdiction whose law it applies, it is beyond the authority of a federal court in such circumstances to create entirely new causes of action. See Becker v. Interstate Properties, 569 F.2d 1203, 1206 (3d Cir. 1977). Unlike Novosel, the issue before us today is not whether a wrongful discharge action may be maintained under state law, but rather the narrower one of determining whether such a common law action may be maintained in spite of the availability of other remedies under state law. As this Court pointed out in Bruffett v. Warner Communications, Inc., 692 F.2d 910, 912 (3d Cir. 1982), the "only Pennsylvania cases applying the public policy exceptions have done so where no statutory remedies were available."

There is no doubt that in the present situation a state law cause of action was available unde the Pennsylvania Human Relations Act, Pa. Stat. Ann. tit. 43 ยงยง 951 et seq. (Purdon 1964 & Supp. 1982) [hereinafter PHRA],*fn2 as well as potentially ...

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