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DURKO v. OI-NEG TV PRODS.

September 14, 1994

CARMELA F. DURKO, Plaintiff,
v.
OI-NEG TV PRODUCTS, et.al, Defendants.


Thomas I. Vanaskie, United States District Judge


The opinion of the court was delivered by: THOMAS I. VANASKIE

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.

 BACKGROUND

 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.

 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. *fn1"

 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. *fn2" 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.


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