Gender Discrimination Under Civil Rights Act
1. Title VII of the Civil Rights Act of 1964.
Title VII of the Civil Rights Act of 1964, which went into effect on July 2, 1964, contains a wide range of provisions prohibiting discrimination based upon a person's gender.
Under the Act, it is forbidden for an employer to "fail or refuse to hire or discharge any individual, or otherwise to discriminate with respect to his compensation, terms, conditions, or privileges of employment," or to "limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's . . . sex" Price Waterhouse v. Hopkins, 490 U.S. 228, 57 U.S.L.W. 4469, 4473, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989) citing 42 U.S.C. §§ 2000e-2(a)(1), (2); see generally, Pepper & Kennedy, Sex Discrimination in Employment (1981).
The goal of Title VII is to "eradicate discrimination while preserving workplace efficiency by having employers ignore the attributes of race, religion, sex, or national origin and focus on the qualifications of the applicant or employee. Price Waterhouse, supra, at 4473. "To discriminate is to make a distinction, to make a difference in treatment or favor, and those distinctions or differences in treatment or favor which are prohibited by [Title VII] are those which are based on any five of the forbidden criteria: race, color, religion, sex, and national origin. Any other criterion or qualification for employment is not affected by this title." Id. at 4474 citing 100 Cong. Rec. 7213 (1964).
2. Issues Presented and Preserved for Trial.
From the pleading and briefs which followed, this court has come to recognize that the principal justiciable claim presented by the Plaintiffs lies under Title VII for gender discrimination. In summation, the gist of Plaintiff Kathleen Handley's suit is that over an extended period of time, Defendant Sincavage made unwelcome sexual advances to her, both verbal and physical; that her rejection of such sexually explicit conduct adversely affect her position at the prison and created a hostile work environment; that her failure to submitted to the Warden's advances was used as a basis for employment decisions affecting her tenure at the prison; and that the disciplinary charges, which ultimately lead to her dismissal, were the result of selective enforcement of employment regulations and merely a pretext in order to conceal the illicit motives for her termination. That the Luzerne County Prison Board and its members, James Phillips, Michael Kaminski, and Leonard Falcone, where aware of the improper motivations and wrongful behavior of Warden Sincavage, but acted to condone such conduct by terminating Plaintiff Handley's employment. And finally, that the County of Luzerne is culpable under Title VII as the Plaintiff's employer for ratifying and finalizing the improper decision to terminate Handley's employment with the County.
As such, the above allegations of a "pattern and practice" of gender-based discrimination presents a claim ripe for adjudication and we shall proceed to trial as to the Title VII claims. See generally, Tyson v. Sun Refining & Marketing Co., 599 F. Supp. 136 (E.D. Pa. 1984); Gemmell v. Meese, 655 F. Supp. 577 (E.D. Pa. 1986).
Before leaving this subject, however, two observations must be made as to Plaintiffs' claims concerning disparity in treatment as to other employees and the challenged promotional appointments. First, the specific allegation as to dissimilar treatment resulting from Defendant Sincavage's alleged desire to promote another female to whom he is romantically linked is not the basis for a Title VII claim. DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 1986), cert. denied, 484 U.S. 825, 98 L. Ed. 2d 50, 108 S. Ct. 89 (1987) (Title VII does not prohibit discrimination in favor of boss's lover).
Second, as to the allegation of the failure of the Defendants to promote Handley or others in her class for the positions of corporal and sergeant, we find that the Plaintiffs have failed to satisfy their burden of proof in light of the Defendants' motion for summary judgment. The Plaintiffs first alleged that the positions for sergeant and corporal were open but that Plaintiff Handley was not seriously considered to fill the vacancies and male candidates either less qualified or equally qualified obtained the positions.
The Defendants have challenged that assertion by stressing that the Plaintiffs have not named any individuals, male or female, who were appointed in the time period specified by the Plaintiffs, that there were no vacancies during the period in which the Plaintiffs claim such a violation occurred, and that Kathleen Handley does not explain why she is more qualified than the unnamed corporal or sergeant appointed before her.
We must agree with the Defendants that the allegations of the Plaintiffs are superficial on this point. The fact that female personnel do not hold positions of higher rank or authority in the county prison system, however, may be used as a factor to show a continuing pattern or practice of discrimination.
Pendent State Law Claims
The Plaintiffs have attempted to present pendent state law claims for breach of contract, wrongful termination, intentional violation of Plaintiffs' contract rights and prospective contractual relations, emotional distress, and slander. The Defendants have challenged these claims by asserting their immunity under the Pennsylvania Political Subdivision Tort Claims Act, 42 PA. C.S.A. 8541 et seq. and specifically challenge the substantive merits of plaintiffs' claims for emotional distress and punitive damages.
Plaintiffs have disputed the Defendants immunity defense claiming that their actions were taken with malice and constituted willful misconduct under 42 Pa. C.S.A. § 8550.
As discussed under the due process section of this memorandum, we hold that the only allegation of slander which would apply in this case lies against Defendant Sincavage in his individual capacity. In light of the recent case of O'Donnell v. Yanchulis, 875 F.2d 1059 (3d Cir. 1989), however, the allegation involved here may very well fall as this case progresses. We shall, therefore, preserve the right of Defendant Sincavage to raise the immunity defense again prior to trial.
2. Emotional Distress
In Williams v. Guzzardi, 875 F.2d 46, slip op. at 9-10 (3d Cir. 1989), the Court of Appeals determined that Pennsylvania recognizes the tort of intentional infliction of emotional distress. Specifically, the Court held that although Pennsylvania has been critical of the Restatement formulation of this tort and has otherwise evidenced a restrictive view of it, recovery for emotional distress continues to exist under the law of Pennsylvania.
There are four elements to this tort: the conduct must be extreme and outrageous, it must be intentional or reckless, it must cause emotional distress, and the distress must be severe. Williams, supra, at slip op. p. 13, citing Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir 1979). However, the scope of liability under such a tort is limited by the requirement that competent medical evidence of causation and severity must be provided. Williams, supra, at slip op. p. 13 citing Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987).
The only instances in which courts have found conduct sufficiently outrageous in the employment context, is when an employer engages in both sexual harassment and other retaliatory behavior against the employee. Kelsey-Andrews v. City of Philadelphia, 713 F. Supp. 760 (E.D. Pa. 1989) (1989 U.S.Dist. Lexis 1641); Cox v. Keystone Carbon Co., 861 F.2d 390 (3d Cir. 1988); Bowersox v. P.H. Glatfelter Co., 677 F. Supp. 307 (M.D. Pa. 1988). After analyzing the allegations presented in this complaint with the well reasoned analysis in Kelsey-Andrews, supra, this court must conclude that such a tort will not lie against any of these defendants with the exception of Warden Sincavage.
Specifically, the only conduct which may "lead an average member of the community to exclaim, 'Outrageous!'," is that of the Warden as described, although no authority is cited, in Plaintiffs' opposition brief. Document #42 at 3-4. Although such conduct, if true, is beyond the bounds of decency, the claim by the Plaintiffs remains quite tenuous in light of the fact that no competent medical evidence of causation and severity has been provided by the Plaintiffs. We shall, therefore, dismiss the pendent state claim for emotional distress as to all defendants except Sincavage and preserve the right of the Warden to strike this claim at the close of the Plaintiff's case in chief.
3. Breach of Contract, Interference with Prospective Contractual Relations, and Wrongful Discharge.
The Defendants have not challenged the allegations on these claims, only to stress the immunities defenses under the Political Subdivision Tort Claims Act of Pennsylvania. In light of our finding that any challenge concerning the issue of breach of the collective bargaining agreement, including wrongful termination, is precluded by collateral estoppel, the only matter which remains under this section involves future contractual relations. See Thibodeau v. Foremost Insurance Company, 605 F. Supp. 653 (N.D. Ind. 1985).
Since this concept has not been extensively addressed by either party, we shall allow that portion of the plaintiffs' claim as to interference with future contractual relations to continue with the right of the Defendants to raise any appropriate challenge.
Accordingly, an appropriate order is attached.
ORDER - June 9, 1989, Filed
AND NOW, this 9th day of June, 1989, IT IS HEREBY ORDERED THAT:
1. The Defendants' motion for summary judgment is denied as to:
a. Plaintiffs' equal protection claim pursuant to 42 U.S.C. § 1983;