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BARB v. MILES

August 25, 1994

SIDNEE BARB, Plaintiff,
v.
MILES, INCORPORATED; and JEFFREY BENNINGER, an individual, Defendants.


Gary L. Lancaster, J.


The opinion of the court was delivered by: GARY L. LANCASTER

LANCASTER, J.

 August 25, 1994

 This is an action in employment discrimination. Plaintiff, Sidnee Barb, alleges that defendant Miles, Incorporated subjected her to a hostile and abusive work environment due to her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Pennsylvania Human Relations Act, 43 P.S. § 951-96e ("PHRA"), and Pennsylvania common law. Plaintiff contends this sexually hostile work environment resulted primarily from the conduct of her immediate supervisor, defendant Jeffrey Benninger. Plaintiff further alleges that when she complained of Mr. Benninger's conduct to the appropriate supervisory personnel, defendants retaliated with a program of increased harassment, intense scrutiny of her work, and other offensive behavior.

 Defendants have filed motions for partial summary judgment. Defendant Benninger argues, among other things, that because he is a co-worker and not an employer, plaintiff cannot maintain a Title VII or PHRA action against him. Further, defendant Benninger argues that plaintiff has not alleged any wrongdoing by him under her retaliation and negligent retention claims.

 Defendant Miles, Inc. ("Miles") moved for partial summary judgment on the basis that plaintiff's negligent retention and negligent infliction of emotional distress claims are barred by the exclusivity provisions of the Pennsylvania Workers' Compensation Act and that plaintiff cannot maintain her PHRA claim because she did not exhaust her administrative remedies. Finally, defendant Benninger contends that plaintiff has failed to make out her negligent infliction of emotional distress claim.

 For the reasons set forth below, the court agrees that co-workers are not personally liable under Title VII or the PHRA and, therefore, will grant defendant Benninger's motion on those counts. All other motions will be denied.

 I. BACKGROUND

 Plaintiff alleges the following.

 Plaintiff started working in April of 1989 as the secretary to Miles's trust investment manager, defendant Benninger. She worked under his direct supervision until April 7, 1992. Plaintiff avers that during that period, Benninger subjected her to a sexually hostile environment. Specifically, he called her derogatory names, improperly touched her, and directed unwelcome sexual innuendos at her. He also invited her to dinner and other social functions. When she refused his invitations, he retaliated by criticizing her work and denying her various work privileges.

 Plaintiff asserts that she complained to Miles's human resources department several times and tried to find other employment both inside and outside of Miles. Plaintiff contends that defendant Benninger thwarted her efforts to find other employment within Miles by refusing to sign applications and criticizing her work once he became aware that she was attempting to look for other employment.

 Plaintiff transferred to another division of Miles in early April of 1992. Plaintiff avers that by this time she had failing health and took the first job transfer within Miles that was offered to her, although it resulted in a loss of benefits.

 II. STANDARD OF REVIEW

 The court will enter summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if it might affect the outcome of the case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). "Factual disputes that are Irrelevant or unnecessary will not be counted." Id. A dispute over a material fact must be "genuine," that is, the evidence must be such "that a reasonable jury could return a verdict in favor of the non-moving party." Id.

 When a party makes a properly supported motion for summary judgment, the adverse party may not rest upon the mere allegations or denials of his pleadings, but the adverse party's response, by affidavits or as otherwise provided in the rule, must set forth specific evidence of record showing that there is a genuine issue for trial.

 If the evidence of the nonmoving party is "merely colorable," or is "not significantly probative," the court may grant summary judgment. Id. at 249-50. Similarly, a nonmoving party may not successfully oppose a summary judgment motion by simply replacing "conclusory allegations of the complaint or answer with conclusory allegations of an affidavit." Lujan v. Nat'l Wildlife Federation, 497 U.S. 871, 888, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990). Rather, the nonmoving party must offer specific evidence found in the record which contradicts the evidence averred by the movant and indicate that there is a genuine issue for trial. Id. If the adverse party does not so respond, the court, if appropriate, will enter summary judgment.

 III. DISCUSSION

 A. Defendant Benninger's Motion - Individual Liability Under Title VII and the PHRA

 Defendant Benninger moves to dismiss plaintiff's claims brought against him under Title VII and the PHRA. He contends that supervisors and co-employees are not individually liable under Title VII, but rather the Act only holds the employer liable. The court agrees.

 Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). The phrase "terms, conditions, or privileges of employment" includes requiring employees to work in a discriminatory, hostile, or ...


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