This is an employment discrimination case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.C.S.A. §§ 951, et seq. Plaintiff, Carmela P. Durko ("Durko"), has named as defendants her employer, OI-NEG TV Products, Inc. (hereinafter referred to as the "Employer"), and her collective bargaining representative, Glass, Molders, Pottery, Plastics & Allied Workers International Union AFL-CIO, CLC No. 243 (hereinafter referred to as the "Union").
The Employer has moved for summary judgment on the ground that res judicata effect should be given to the determinations of the Regional Director of the National Labor Relations Board ("NLRB") that matters of which plaintiff complains in this action did not warrant the filing of a complaint by the NLRB. Because it is evident that the decisions of a Regional Director of the NLRB to refuse to issue complaints are not entitled to preclusive effect, the Employer's summary judgment motion will be denied.
The Employer has alternatively moved for partial summary judgment, asserting that plaintiff may not seek to recover damages for emotional distress or punitive damages. Because the 1991 Amendments to Title VII authorize an award of damages for emotional distress and punitive damages, 42 U.S.C. § 1981a, and inasmuch as Durko has presented sufficient evidence to support such claims, partial summary judgment will also be denied.
The Employer hired Durko in March of 1986. At all times relevant to this action, Durko was a member of the Union. The collective bargaining agreement between the Employer and the Union govern matters such as seniority and rights of "recall," i.e., the right to return to an employment position that an employee previously held without requiring posting of the position and bidding for the position on the basis of seniority.
In May of 1991, the Employer posted notice of an opening on the "D Shift" for the position of Assistant Furnace Operator. Durko successfully bid this position and began training for it in June of 1991.
Shortly after Durko began training as an Assistant Furnace Operator, the Union filed a grievance with the Employer, contending that the position should not have been posted because Walter Snopeck was entitled to recall rights for that position. As explained to the Court during a pretrial conference, the Employer is expected to afford employees with recall rights the opportunity to fill a vacancy before posting it for bidding on the basis of seniority. Only if there are no recall rights exercised for a position should the vacancy be posted and awarded generally on the basis of seniority.
By letter dated June 9, 1992, Durko was informed that in light of the favorable resolution of the grievance pursued on behalf of Snopeck, Durko would be removed from her position as an Assistant Furnace Operator.
On July 20, 1992, Durko filed with the NLRB charges against her Employer and Union. Durko's charges, inter alia, asserted:
The Employer has refused to honor Ms. Durko's rights under the Collective Bargaining Agreement . . . despite clear contractual provisions which would allow her to remain as Assistant Furnace Operator on D Shift and which would have prevented her being bumped from D Shift by Mr. Snopeck. The Employer's actions were done with an intent to discriminate against Ms. Durko based on her gender, with such discrimination further having the effect of discouraging membership in Ms. Durko's union . . . . [Exhibit "A" to the Employer's Summary Judgment Motion (Dkt. Entry #18).]
By letter dated September 14, 1992, the Director of Region 4 of the NLRB informed Durko that following an investigation he had concluded that her "charges lack merit." (Exhibit "B" to the Employer's Summary Judgment Motion (Dkt. Entry #18).) The Regional Director further wrote that "with respect to the charge against the Employer, there was no evidence that the Employer discriminated against you because of any Union or other protected concerted activity in which you may have engaged." (Id.) The Regional Director refused to issue a complaint, and Durko did not seek further administrative agency review of the matter.
On February 24, 1993, Durko again filed charges against her Employer and Union with the NLRB. (Exhibit "C" to the Employer's Summary Judgment Motion (Dkt. Entry #18).) The basis for these charges was the failure of the employer to recognize her right of recall to the position of Assistant Furnace Operator, for which a vacancy had been posted on January 13, 1993. In this second NLRB charge, Durko once again asserted that the Employer's "actions were done with an intent to discriminate against [her] based on her gender, with such discrimination further having the effect of discouraging membership in [her] Union . . . ." (Id.)
By letter dated April 12, 1993, the NLRB Regional Director once again concluded that, based upon an investigation, Durko's charges "lack merit." The Regional Director also wrote that "there was no evidence that the Employer discriminated against you because of any Union or other protected concerted activity in which you may have engaged." (Exhibit "D" to the Employer's Summary Judgment Motion (Dkt. Entry #18).) Durko did not appeal the Regional Director's decision to refuse to issue a complaint with respect to the Employer's refusal to recognize purported recall rights.
On August 4, 1992, while her first charge with the NLRB was pending, Durko filed a complaint against the Union and her Employer with the Pennsylvania Human Relations Commission ("PHRC"). Her Complaint alleged, inter alia, that the Employer had discriminated against her on the basis of her gender. This complaint was referred to the Equal Employment Opportunity Commission ("EEOC") for the purpose of dual filing. On February 13, 1993, Durko filed an amended complaint with the PHRC, which was referred to the EEOC for the purpose of dual filing. On May 21, 1993, Durko received, pursuant to her request, a notice of right to sue from the EEOC. This action was commenced on August 17, 1993.
The Employer's summary judgment motion was filed on May 16, 1994. Briefing was completed on July 5, 1994, and this matter is now ripe for disposition.
A. Res Judicata
The Employer contends that Durko, having failed to appeal the NLRB Regional Director's refusals to issue complaints on her charges, is now foreclosed from pursuing employment discrimination claims under Title VII and the PHRA.
In short, the Employer contends that res judicata effect must be given to determinations of Regional Directors of the NLRB refusing to issue complaints on employee charges of alleged unfair labor practices involving gender discrimination.
The Supreme Court's often-cited case acknowledging the application of res judicata to administrative determinations, United States v. Utah Construction & Mining Co., 384 U.S. 394, 16 L. Ed. 2d 642, 86 S. Ct. 1545 (1966), taught "that giving preclusive effect to administrative [decisions] encompasses both the parties' interest in avoiding the cost and vexation of repetitive litigation and the public's interest in conserving judicial resources." University of Tennessee v. Elliott, 478 U.S. 788, 798, 92 L. Ed. 2d 635, 106 S. Ct. 3220 (1986). The district court's functional application of res judicata can be described as follows:
Administrative proceedings may have preclusive effect on subsequent litigation when the agency "is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate . . . " Pygatt v. Painters' Local No. 277, 763 F. Supp. 1301, 1307 (D.N.J. 1991) (citations omitted).
Res judicata thus applies only when the administrative agency acts in a judicial capacity to resolve disputed issues of fact and the parties had an adequate opportunity to litigate. An agency is said to act "in a judicial capacity when it provides the following safeguards: (1) representation by counsel, (2) pretrial discovery, (3) the opportunity to present memoranda of law, (4) examination and cross-examination at the hearing, (5) the opportunity to introduce exhibits, (6) the chance to object to evidence at the hearing, and (7) final findings of fact and conclusions of law." Reed v. Amax Coal Co., 971 F.2d 1295, 1300 (7th Cir. 1992).
As noted above, defendants rely upon determinations of a Regional Director of the NLRB concerning charges filed by Durko. Justice Douglas, dissenting in Motor Coach Employees v. Lockridge, described the procedures which are pursued after the filing of a charge with the NLRB as follows:
When the charge is received, it is filed, docketed . . . and assigned to a member of the field staff for investigation. . . . Following the investigation, the Regional Director makes his decision. "If investigation reveals that there has been no violation of the National Labor Relations Act or the evidence is insufficient to substantiate the charge, the regional director recommends withdrawal of the charge by the person who filed." If the complaining party does not withdraw the charge, the Regional Director dismisses it. 403 U.S. 274, 303, 91 S. Ct. 1909, 29 L. Ed. 2d 473 (1971).