United States District Court, Middle District of Pennsylvania
March 22, 1991
KAREN L. GRUVER, PLAINTIFF,
EZON PRODUCTS, INC., DEFENDANT.
The opinion of the court was delivered by: Rambo, District Judge.
Before the court is defendant's motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) counts III and IV of
plaintiff's complaint. The issues raised have been fully
briefed, and the matter is ripe for consideration.
Plaintiff Karen L. Gruver had been a warehouse worker
employed by defendant Ezon Products. In her complaint, the
allegations of which must be taken as true for the purpose of
this motion, plaintiff states that during the course of her
employment with Ezon she was subjected to various forms of
sexual harassment by her supervisor, which, though reported to
the company, went unpunished. Gruver alleges that this conduct
led to an intolerable work environment, resulting in her
constructive discharge in April 1989.
In November 1990 Gruver brought suit against her former
employer, alleging that the company's conduct violated Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(hereinafter Title VII), and three pendent state law claims.
Count II of the complaint, the first of the state law claims,
posits that plaintiff's rights under the Pennsylvania Human
Relations Act, 43 Pa.Stat.Ann. §§ 951-963 (Purdon 1964)
(hereinafter "PHRA") were violated by the company's conduct. In
Count III, plaintiff argues that defendant, by allowing the
harassment to go unpunished, breached a provision of an
employment contract established by an employee handbook. Count
IV lists a claim for intentional infliction of emotional
Defendant brought this motion to dismiss the latter two
claims under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim upon which relief can be granted.
I. Breach of Employment Contract Claim
In her complaint, plaintiff appears to be asserting that an
employee handbook circulated by defendant established an
employment contract with her. She does not appear to claim that
she was entitled to be discharged without just cause under the
contract, but rather that the company had breached one of the
contract's terms to plaintiff's detriment. The term in
question, excerpted from the handbook, reads:
E. SEXUAL HARASSMENT
It is the policy of Ezon Products Company to
provide a work environment free of sexual
harassment. Sexual harassment is defined as
"unwelcomed sexual advances, requests for sexual
favors and other verbal or physical conduct of a
sexual nature" between any Ezon employees and
extends to those with whom we conduct business,
including outside vendors and customers.
Also, all management employees are strongly
advised to avoid any social relationships with
employees over whom they have supervisory control.
Sexual harassment will result in termination.
Employee Handbook at 23-24.
Plaintiff contends that the terms of the handbook, including
the one cited above, became the guidelines for a unilateral
employment contract when she accepted the job at Ezon. The
clearest and most recent discussion of the standards for when
handbook becomes part of an employment contract appears in
Morosetti v. Louisiana Land and Exploration Co., 522 Pa. 492,
564 A.2d 151 (1989). Morosetti concerned a class action suit by
employees of a company who, when their employer was sold, were
given the option of accepting severance pay or positions with
the purchasing company. After accepting positions with the new
company, the plaintiff employees then claimed that they were
entitled to severance pay as well. The defendant company
admitted having a severance pay policy in place, but that it
was not communicated to employees. The trial court directed a
verdict for the plaintiffs, holding that a corporate handbook
constituted the offer of severance pay, and the acceptance of
employment the acceptance of the severance offer. Morosetti,
564 A.2d at 152.
The Pennsylvania Supreme Court disagreed, and held that there
was no contract for severance pay. The court was swayed by the
fact that, though the defendant company from time to time
issued flyers announcing various employee benefits, it never
made known the severance pay policy. The guidelines for the
policy were outlined in a manual for the use of the personnel
manager, but not put into general circulation.
This court is cognizant that nowhere in Morosetti does the
Pennsylvania Supreme Court hold that a handbook distributed to
employees after the commencement of employment becomes part of
an employment contract. In fact, Justice Zappala, in his
concurrence, takes pains to point out this distinction:
[T]his court has not yet addressed the issue as to
whether an employee handbook unilaterally issued
by an employer constitutes part of an employee's
contract of employment, [nevertheless] the dicta
in the majority's opinion may be construed
prematurely as controlling. . . . Having concluded
that the uncommunicated personnel manual could not
be equated with a handbook, the majority's
statement is of no precedential value. I write
then only to emphasize that the issue of the
effect of the distribution of an employee handbook
has not been resolved by this Court. . . .
Id. 564 A.2d at 153 (Zappala, J., concurring).
The majority opinion appears to narrowly circumscribe the
situations where portions of a handbook may become,
unilaterally, part of an employment contract. The court stated
that an offer must be based on more than a general awareness of
the existence of a policy — the term must be "intended,
definite [and] specific." The court went on to state that "[i]t
is not sufficient to show they had a policy. It must be shown
they offered it as binding terms of employment. A company may
indeed have a policy upon which they intend to act, given
certain circumstances or events, but unless they communicate
that policy as part of a definite offer of employment they are
free to change as events may require." Id. 564 A.2d at 152
In arguing that the Ezon handbook created a binding contract
with her, plaintiff asserts that it was reasonable that she
should interpret the language of the handbook as creating a
contractual provision in her favor. She was a woman entering a
male-dominated warehouse work environment, and the sexual
harassment provision in the handbook states in no uncertain
terms that employees who engage in sexual harassment
will be terminated.
Plaintiff may be correct that this handbook section was
sufficiently definite to create a term of her employment.
However, Morosetti requires that, for a policy to become part
of an employment contract, it must be part of the offer of
employment — an inducement to join the company. Nowhere in her
complaint does plaintiff state that she accepted employment at
Ezon because of the anti-harassment section of the handbook or
that the definite terms of the policy were made known to her
prior to her acceptance. All the court can glean from the
complaint is that Gruver became aware of the provision at some
point in the course of her employment and that the handbook was
distributed to her "upon commencement of her employment."
Complaint at ¶ 17.
Gruver's situation is similar to the plaintiffs in
Morosetti. Like them, she did not accept the benefit as a term
of employment, but instead apparently became aware of the
provision after commencing work. According to the facts
specified in the complaint, a guaranteed harassment-free
workplace was not an inducement to employment. Accordingly,
Gruver has failed to plead that a contract for employment
including an anti-sexual harassment term was in existence, and
thus defendant's motion to dismiss count III must be granted.
II. Intentional Infliction of Emotional Distress Claim
Plaintiff appears to agree with defendant's assertion that
plaintiff's claim for intentional infliction of emotional
distress may be dismissed because § 303 of the Pennsylvania
Workmen's Compensation Act, 77 Pa.Stat.Ann. § 481(a) (Purdon
Supp. 1990) presents the exclusive remedy for such a claim.
Plaintiff, instead, urges the court to accept the theory that
the complaint sets forth a claim for intentional infliction of
emotional distress under retaliatory conduct standards
discussed by this court in Bowersox v. P.H. Glatfelter Co.,
677 F. Supp. 307 (M.D.Pa. 1988). In Bowersox, however, the court
used a "retaliatory conduct" analysis to move a supervisor's
conduct from the realm of the insulting and annoying to the
realm of "outrageous" within the definition of the tort, not as
a means of creating an exception to preemption by the state
workmen's compensation statute.
The court's inquiry does not stop here, however. As a
launching point, the court notes that it has consistently held
that the courts of Pennsylvania recognize the tort of
intentional infliction of emotional distress. See Shoop v.
Dauphin County, No. 3:CV-89-1498, slip op. at 7-9 (M.D.Pa.
April 11, 1990); Bowersox, 677 F. Supp. at 309-10.
The preemption section of the Workmen's Compensation statute
(a) The liability of an employer under this act
shall be exclusive and in place of any and all
other liability to such employes . . . on account
of any injury or death as defined in section
301(c)(1) and (2). . . .
77 Pa.Stat.Ann. § 481(a) (Purdon Supp. 1990). The injuries
covered exclusively by workmen's compensation include "an
injury to an employe . . . arising in the course of his
employment and related thereto. . . ." Id. at § 411(1). The
statute does include some exceptions, though.
The term `injury arising in the course of
employment' . . . shall not include an injury
caused by an act of a third person intended to
injure the employe because of reasons personal to
him, and not directed against him as an employe or
because of his employment; but shall include all
other injuries sustained while the employe is
actually engaged in the furtherance of the
business or affairs of the employer. . . .
In Schweitzer v. Rockwell International, 402 Pa. Super. 34,
586 A.2d 383 (1990), the Pennsylvania Superior Court considered
the preclusive effect of the Workmen's Compensation statute on
a claim for intentional infliction of emotional distress
arising from a sexual harassment situation in a workplace. In
Schweitzer, the plaintiff alleged that her supervisor had made
lewd remarks to her and attempted to fondle her. When she
refused, she was transferred to a different position. The
Schweitzer court recognized that, under the Superior Court case
Mike v. Borough of Aliquippa, 279 Pa. Super. 382, 421 A.2d 251
(1980), a fellow employee may be considered a third person who
intends to injure an employee for personal reasons within the
dictates of the Workmen's Compensation Act. In holding that the
plaintiff's injuries at the hands of her supervisor fit within
that category, and that common law tort claims were thus not
preempted, the court stated that "the alleged emotional
distress arose from harassment personal in nature and not part
of the proper employer/employee relationship."
This court finds the Superior Court's reasoning in
Schweitzer convincing. Here, as in Schweitzer, plaintiff's
claims arise from alleged harassment, including physical
harassment, by a superior. This court, like the
Schweitzer court, believes that harassment of a sexual nature
in the workplace has nothing to do with work, but rather stems
from reasons personal to the party foisting his attentions on a
Defendant's reliance on Poyser v. Newman & Company, 514 Pa. 32,
522 A.2d 548 (1987) is misplaced, as explained in
Schweitzer. Poyser involved a suit against a company for
deliberate derilictions by the company, not by a particular
Therefore, as plaintiff's claim for intentional infliction of
emotional distress stems from alleged harassment by a third
person who is acting from purely personal motivations, the
court will allow the claim to go forward.
Pursuant to the accompanying memorandum, IT IS HEREBY ORDERED
THAT defendant's motion to dismiss as it involves Count III of
plaintiff's complaint is GRANTED; with regard to Count IV of
the complaint, it is denied.
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