by plaintiff as a legitimate choice not to pursue administrative remedies. As the Supreme Court has observed, "the choice is a valuable one." Id. at 461.
Acme's argument that dispensing with an exhaustion requirement would hobble unions in attempting to regulate their internal affairs and inappropriately throw the courts into the collective bargaining relationship also fails. In concrete terms, the defendant contends that once Nichols partook of the union grievance process she bound herself to exhaust all available administrative procedures before resorting to a formal lawsuit. Under Title VII, an employee complaining of employment discrimination does not waive a cause of action by voluntarily submitting the claim to arbitration. Alexander v. Gardner-Denver Co., 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974). A fortiori, under section 1981, the same employee doing the same thing does not by virtue of that fact alone incur an exhaustion penalty. When the employee submits her grievance to arbitration, she seeks to vindicate a contractual right; when she files a lawsuit, she asserts independent statutory rights. Id. at 49-50. The distinction between these separately demarcated rights is not vitiated, as defendant believes, by the federal policy favoring arbitration of labor disputes. Id. at 46-47.
Acme's waiver argument is defeated by the same logic. If the rights created by contract and by statute are distinct, then what the claimant says or doesn't say in one context is of no consequence in the other. By not bringing up the subject of race in the contractual proceeding, plaintiff waived nothing in this one.
III. EMPLOYMENT DISCRIMINATION
There is sufficient basis in the record before me for a reasonable inference that Acme's dismissal of Nichols was the product of mixed motives, both legitimate and illegitimate. When Nichols struck a customer she obviously provided the company with adequate justification for firing her, and on this record there is little doubt that Acme's decision was at least in part predicated on this ground. Yet the fact that Iacaruso, who engaged in behavior far more violent than even punching an elderly customer in the mouth, was merely suspended, suggests that the decision concerning Nichols' fate may have also been impermissibly influenced by Nichols' race.
Section 1981 can be violated only by intentional discrimination. General Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 73 L. Ed. 2d 835, 102 S. Ct. 3141 (1982). The plaintiff bears the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against her. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). The defendant is entitled to summary judgment if it can show that the plaintiff could not carry this burden of proof at trial. In this case, where mixed motives are involved, the defendant can make such a showing in one of two ways: either by demonstrating that the plaintiff would be unable to make out a prima facie case of discrimination; or, if the plaintiff has already established a prima facie case, by demonstrating that the plaintiff could not produce sufficient evidence at the trial that her race played a motivating part in the defendant's employment decision. Jalil v. Avdel Corp., 873 F.2d 701 (3d Cir. 1989).
The allocation of proof in a private, nonclass action alleging employment discrimination
is governed by the general framework set up by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), as most recently developed in the mixed-motives context by Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775, 57 U.S.L.W. 4469 ( 1989) (plurality opinion).
The initial burden of proof falls on the plaintiff, who must establish by a preponderance of the evidence a prima facie case of discrimination. To prove a prima facie case of employment discrimination Nichols must establish that (1) she is a member of a protected class; (2) she was the object of adverse action; and (3) such adverse action occurred because of her race. Hagans v. Budd Co., 597 F. Supp. 89, 94 (E.D.Pa. 1984); Rivers v. Westinghouse Elec. Co., 451 F. Supp. 44, 47-48 (E.D.Pa. 1978). The answers to the first two prongs of this test are self-evident; the essential question as to the third is whether Nichols was fired "under circumstances which give rise to an inference of unlawful discrimination." Burdine, 450 U.S. at 253. For the reasons already described, such an inference can reasonably be made from the record as it now stands. Plaintiff has set out a prima facie case.
The plaintiff having succeeded in making a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's discharge. McDonnell Douglas, 411 U.S. at 802; Jalil, slip op. at 11. Acme has likewise produced a legitimate explanation for its decision fire Nichols.
The defendant having produced such a legitimate reason, the burden shifts back to the plaintiff to show that race played "a motivating part"
in the employment decision. Price Waterhouse, 57 U.S.L.W. at 4474. Though the burden of production may have shifted earlier to the defendant -- i.e., to produce a legitimate reason for the termination decision -- the plaintiff retains the burden of persuasion throughout on the issue of whether race played "a motivating part" in the decision. Id.
Should plaintiff adduce sufficient evidence to meet her burden of proof that race played a motivating part in the employment decision, the employer may avoid liability only by in turn proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's race into account. This burden is in the nature of an affirmative defense.
In sum, the plaintiff must persuade the factfinder on one point, i.e., that race was taken into account, and then the employer, if it wishes to prevail, must persuade it on another, i.e., that the same decision would have been made even if race had not been taken into account. Id. "An employer may not . . . prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of decision. . . . The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision." Id. 490 U.S. at 252.
On this record, the Nichols and Iacaruso incidents in juxtaposition are enough to bring Acme's intent in the Nichols matter into question. "When the defendant's intent[ion] has been called into question, the matter is within the sole province of the factfinder." Jalil, 873 F.2d at 707. Where, as here, intent is a substantive element of the cause of action, "the principle is particularly apt that courts should not draw factual inferences in favor of the moving party and should not resolve any genuine issues of credibility." Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981). Summary judgment is inappropriate because the plaintiff has established a prima facie case of employment discrimination and has "counter[ed] the defendant's proffered explanation with evidence raising a factual issue regarding the employer's true motivation for discharge." Jalil, 873 F.2d at 707. Whether race played a motivating part in Acme's decision to fire Nichols, and, if it did, whether Acme would have made the same decision in its absence, constitute genuine issues of material fact. Accordingly, summary judgment will be denied on the employment discrimination claim.
IV. PENDENT STATE CLAIMS
Plaintiff's complaint alleges four pendent state claims -- negligence, defamation, and intentional and negligent infliction of emotional distress -- without properly setting forth the elements of each cause of action. In her response to defendant's motion for summary judgment, she has briefed only the defamation and intentional infliction of emotional distress claims. For this reason, the negligence and negligent infliction of emotional distress counts will be deemed dropped and summary judgment will be granted against her on these two claims.
A. Intentional Infliction of Emotional Distress
To state a claim for the tort of intentional infliction of emotional distress, the conduct complained of must be of an "extreme or outrageous type." Cox v. Keystone Carbon Co., 861 F.2d 390 (3d Cir. 1988), quoting Rinehimer v. Luzerne County Community College, 372 Pa. Super. 480, 494, 539 A.2d 1298 (1988). Prior to submitting the claim to the factfinder, the court must determine, "as a matter of law, whether there is sufficient evidence for reasonable persons to find extreme or outrageous conduct." Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1274 (3d Cir. 1979). Pennsylvania courts have been willing to permit recovery for this tort only in limited circumstances, where the conduct is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Buczek v. First National Bank of Mifflintown, 366 Pa. Super. 551, 558, 531 A.2d 1122 (1987).
Only in very instances has conduct in the employment context risen to this necessary level of outrageousness. Federal courts applying Pennsylvania law have failed to find conduct sufficiently outrageous where the employee was deceived into foregoing other employment even though the employer knew that a change in circumstances might require the employee to relocate his home, Cautilli v. GAF Corp., 531 F. Supp. 71 (E.D.Pa. 1982), and where the employer premeditatedly tried to pressure the employee to quit by making job conditions more difficult. Madreperla v. Williard Co., 606 F. Supp. 874 (E.D.Pa. 1985). Only in cases where the employer has both sexually harassed the employee and engaged in retaliatory behavior has the conduct been found outrageous. E.g., Bowersox v. P.H. Glatfelter Co., 677 F. Supp. 307 (M.D.Pa. 1988) (plaintiff sexually harassed, withheld information necessary to perform job, forbidden to talk to others in office, forbidden from answering phone, and followed by employer throughout plant).
In the instant case, Nichols has failed to demonstrate that Acme engaged in outrageous conduct meeting the extremely demanding standard required under Pennsylvania law. Her argument that there is nothing more outrageous than racial discrimination misses the point. Even were the factfinder to find on her section 1981 claim that she was discriminated against, it would not thus be bound to find in her favor, as plaintiff seems to imply, on this pendent claim. Racial discrimination alone, like sexual harassment alone, does not state a claim for intentional infliction of emotional distress. Neither, by itself, does the employee's bare assertion that she has been depressed since losing her job. Nichols has charged no individual employee of Acme with harassing her. Though there is a factual dispute concerning the true intentions behind Acme's action, the reasons offered by Acme for firing Nichols are legitimate. Under these circumstances, I find as a matter of law that there is insufficient evidence for reasonable persons to find that Acme behaved in an extreme or outrageous manner. Therefore summary judgment against plaintiff will be granted on the claim charging intentional infliction of emotional distress.
It is unclear from the complaint what statements of defendant are alleged to constitute grounds for a defamation action. However, plaintiff's response to defendant's motion for summary judgment refers specifically to the answer in a questionaire apparently prepared by an Acme managerial employee named Agnes O'Neill for submission to the Unemployment Compensation Board of Review and the Philadelphia County Assistance Office. Plaintiff's Brief, Exhibit 10. In response to the question: "Explain fully the circumstances which provoked the discharge," the Acme employee wrote: "Discharged -- disregard of standard of behavior employer has right to expect. Punched customer in mouth. Claimant aware of rules re: customers."
Plaintiff does not dispute the fact that she punched an elderly customer in the mouth and that she was aware of company rules regarding the standard of behavior to be expected of employees towards customers. While as a factual matter it is possible that disregard of company rules was not the ultimate cause of plaintiff's discharge, the potentially defamatory content of this communication -- that Nichols beat up a customer -- is admittedly true. Under Pennsylvania law, truth is an absolute defense to an allegation of defamation, 42 Pa. Cons. Stat. Ann. § 8343(b)(1) (Purdon 1982). See Agriss v. Roadway Express, Inc., 334 Pa. Super. 295, 304, 483 A.2d 456 (1984). Plaintiff has therefore failed to state an actionable defamation claim as a matter of law. Summary judgment against plaintiff on this claim will accordingly be granted.
An appropriate order follows.
AND NOW, this 10th day of May, 1989, upon consideration of defendant's motion for summary judgment and plaintiff's response thereto, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED as follows:
1. The motion is DENIED as to plaintiff's employment discrimination claim.
2. The motion is GRANTED as to plaintiff's pendent state claims.
3. Defendant's request for attorney's fees is DENIED, with leave to renew at the appropriate time.