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May 22, 1992

ELAINE SAVKO, Plaintiff,


The opinion of the court was delivered by: TIMOTHY K. LEWIS

LEWIS, District J.

 On the eve of trial, defendants Port Authority of Allegheny County ("PAT"), Larry Lutheran and Kathleen Radkoff move this court to strike plaintiff Elaine Savko's demand for damages for emotional distress, and any evidence that may be offered in support of that demand (the "Motion"). The parties agree that Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. did not permit damages for emotional distress at the time of plaintiff's original complaint. The parties further agree that the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071-1100 (the "1991 Act"), enacted on November 21, 1991, now makes such damages available to a Title VII plaintiff. Therefore, determination of the Motion entirely depends upon whether the relevant provisions of the 1991 Act apply retroactively to this case.

 Rule 1 of the Federal Rules of Civil Procedure requires that I manage this court's case load in a just and efficient manner. Therefore, I must decide the retroactivity question in this case, as well as in a number of others, notwithstanding the paucity of guidance provided by the language of the 1991 Act and its legislative history, and without the luxury of waiting for more definitive guidance from a higher court.

 As more fully set forth below, I conclude that the 1991 Act does apply retroactively to plaintiff's suit. The Motion will be denied.


 Plaintiff began her career as a secretary for PAT in January of 1972 and received a promotion to Supervisor of Employment in January of 1980. Her employment was terminated on July 21, 1987. Plaintiff filed this lawsuit in November of 1987 asserting claims under Title VII and a pendent state claim for the alleged intentional infliction of emotional distress.

 Her case encompasses three theories of discrimination. First, in the disparate treatment portion of her case, plaintiff alleges that she did not receive deserved promotions because of her gender. Instead, plaintiff claims, a male supervisor bypassed her for a less qualified male, defendant Larry Lutheran. Second, in the disparate impact portion of her case, plaintiff points to institutional policies at PAT and statistical studies which allegedly establish a pattern of gender discrimination in middle level management positions. Finally, plaintiff claims that PAT terminated her in retaliation for filing EEOC charges. According to plaintiff, defendant Kathleen Radkoff worked closely with defendant Lutheran to exclude her from functions and information necessary for effective job performance and promotion, and eventually to force her out of the organization entirely.

 In an Order and Opinion issued on March 14, 1989, the Honorable Gerald J. Weber partially granted defendants' motion for summary judgment, thereby dismissing plaintiff's pendent state claim for damages based upon emotional distress. For more than two years, plaintiff proceeded under Title VII alone, without a claim for emotional distress.

 On November 13, 1991, one week prior to the enactment of the 1991 Act, plaintiff filed an amended pretrial statement, including a claim for $ 30,000 in compensatory damages for emotional distress and attaching the expert report of Eugene Stevick, a clinical psychologist who has treated plaintiff for this alleged distress. Defendants filed the Motion in response to this eleventh-hour reintroduction of the emotional distress claim.

 I. Applicable Law Prior to the 1991 Act

 At the time that plaintiff filed this lawsuit, Title VII case law clearly prohibited the sort of psychic damages sought by plaintiff. Despite the silence of the United States Supreme Court on the issue, the United States Court of Appeals for the Third Circuit had held consistently that Title VII provided no remedy for infliction of emotional distress. Protos v. Volkswagen of America, Inc., 797 F.2d 129, 138-39 (3d Cir. 1986); Richerson v. Jones, 551 F.2d 918, 926 (3d Cir. 1977). These decisions reflect the traditional position that Title VII claims are equitable in character, making compensatory and punitive damages inappropriate. Protos, 797 F.2d at 138; Richerson, 551 F.2d at 927-28.

 Prior to the 1991 Act, decisions by the district courts within the Third Circuit reflected the Court of Appeals' determination that damages for emotional distress were not available in Title VII cases. See, e.g., James v. International Business Machine Corp., 737 F.Supp. 1420, 1429 (E.D. Pa. 1990); Hooten v. Pennsylvania College of Optometry, 601 F.Supp. 1151, 1154 (E.D. Pa. 1984); and Presseisen v. Swarthmore College, 71 F.R.D. 34, 45-46 n.12 (E.D. Pa. 1976).

 Consequently, if the 1991 Act is not retroactive, plaintiff's damage claim for the infliction of emotional distress, and any evidence offered in support thereof, must be excluded under ...

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