the complaint is arguably a matter of private interest only. See Swineford, 15 F.3d at 1272 (speaker's motivation is factor to be considered).
Where, however, one complains to her employer of alleged sexual harassment and abuse of a position of trust by an agency physician, implicating his fitness for continuing in public employment, not to secure personal gain but to expose and protect herself and other female employees in the future from such conduct, the court concludes that it does touch upon a matter of legitimate public concern.
In Connick, a statement in a questionnaire which was only transmitted internally to the speaker's co-workers was held to relate to a matter of public concern. See Connick, 461 U.S. at 148-49. See also Smith, 28 F.3d at 653 (private or discreet nature of statement does not obviate fact that it may address matter of public concern); Tao, 27 F.3d at 640 (statement does not lose protection because it is communicated privately to employer); Yoggerst v. Hedges, 739 F.2d 293, 296 (7th Cir. 1984)(distinguishing expression of personal dislike of official from comment implicating his qualification for continuing in office).
More persuasive is defendants' argument that plaintiff has failed to adduce evidence sufficient to sustain a finding that she was deprived of her right to speak or was discharged for exercising it. Plaintiff's statement was received by Ms. Blankley and Ms. Pierce who told plaintiff that she could lodge a formal complaint with the Office of Civil Rights. Plaintiff acknowledged at her deposition that no one told her she could not relate her complaint to the District Attorney's Office or anyone else. A public employee is not denied the right to speak because a supervisor questions the veracity of what he or she has said. As noted, there is no competent evidence to show that Ms. Pierce participated in the decision to terminate plaintiff six months after she reported her experience with Dr. Van de Beek.
D. Plaintiff's Procedural Due Process Claim
Defendants do not dispute that plaintiff had a cognizable property interest in her employment. They do contend, however, that they provided plaintiff with adequate due process by affording her notice and an opportunity to be heard prior to her termination. Plaintiff avers that while she was aware of the stated reason for the termination, she was not given an adequate opportunity before the termination to refute the allegations against her.
Plaintiff had a due process right to at least an informal pretermination hearing to present reasons why the proposed action should not be taken. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985); Perez v. Cucci, 725 F. Supp. 209, 243 (D.N.J. 1989), aff'd., 898 F.2d 142 (3d Cir. 1990). There is a genuine issue of material fact as to whether she was afforded such a hearing. There is, however, no evidence that defendants Van de Beek or Pierce were involved in the termination decision or were responsible for providing pretermination hearings for transit police officers.
E. Plaintiff's Hostile Work Environment Claim
To sustain her hostile work environment claim, plaintiff must show that she suffered intentional discrimination because of her sex, that the discriminatory conduct was severe or pervasive enough to alter the conditions of her employment and create an environment reasonably perceived by her as sexually hostile, and the existence of direct or respondeat superior liability of a defendant for such conduct. Harris v. Forklift Systems, Inc., 126 L. Ed. 2d 295, 114 S. Ct. 367, 370-71 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 72, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986); Andrews v. City of Philadelphia, 895 F.2d 1469, 1485-86 (3d Cir. 1990); Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1558 n.4 (11th Cir. 1987).
While the conduct alleged by plaintiff is deplorable, it was isolated and certainly not pervasive. Plaintiff points to two incidents several days apart, the examination by Dr. Van de Beek and the interview by Ms. Pierce. Further, plaintiff does not contend that she was harassed by Ms. Pierce because of sex, but rather contends that Ms. Pierce was acting to protect Dr. Van de Beek because of a personal friendship between them.
The court believes that a single act of harassment because of sex may be sufficient to sustain a hostile work environment claim if it is of such a nature and occurs in such circumstances that it may reasonably be said to characterize the atmosphere in which a plaintiff must work. In virtually all of the reported cases in which a sexually hostile work environment claim has been sustained, however, the plaintiff was subject to repeated if not persistent acts of harassment in the environs in which she performed her duties. See e. g., King v. Board of Regents of Univ. of Wis. System, 898 F.2d 533, 535 (7th Cir. 1990)(plaintiff forcibly kissed and fondled, touched and rubbed against and subject to lewd remarks over three month period); Andrews, 895 F.2d at 1485-86 (repeated destruction of plaintiff's work product and pervasive use of obscenity and insults directed at female employees in squadroom in which plaintiff worked); Bohen v. City of East Chicago, Ind., 799 F.2d 1180, 1188 (7th Cir. 1986)(plaintiff constantly subjected to lurid sexual remarks and repeatedly touched in sexually offensive manner); Skadegaard v. Farrell, 578 F. Supp. 1209, 1212 (D.N.J. 1984)(plaintiff subjected to repeated crude sexual advances and sexually assaulted).
The law prohibits acts of harassment. Indeed, plaintiff was convicted of violating that law. The law prohibits battery which includes offensive touching. At the heart of a Title VII claim, however, is intentionally discriminatory conduct that effectively alters the terms or conditions of the victim's employment and creates a hostile or abusive climate in which she must work.
Reasonable persons in plaintiff's position would be offended and angered by the conduct alleged. Plaintiff, however, cannot reasonably have perceived the encounter with Dr. Van de Beek and the exchange with Ms. Pierce as constituting a sexually hostile working environment.
F. Plaintiff's Intentional Infliction of Emotional Distress Claim
To sustain a claim for intentional infliction of emotional distress, a plaintiff must show extreme and outrageous intentional or reckless conduct that causes severe emotional distress. Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988); Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 190, 527 A.2d 988, 991 (1987); Hackney v. Woodring, 424 Pa. Super. 96, 101, 622 A.2d 286, 288 (1993). The conduct complained of must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Kazatsky, 515 Pa. at 191, 527 A.2d at 991; Daughen v. Fox, 372 Pa. Super. 405, 412, 539 A.2d 858, 861 (1988).
It has been noted that such conduct will rarely be found in the employment context. Cox, 861 F.2d at 395. It has become almost axiomatic that under Pennsylvania law acts of sexual harassment will not support an intentional infliction claim except where an employer takes an adverse employment action against an employee for rebuffing sexual advances and refusing to engage in sexual relations. See e.g., Andrews, 895 F.2d at 1487 (3d Cir. 1990); Shaffer v. National Can Corp., 565 F. Supp. 909, 916 (E.D. Pa. 1983). See also Fawcett v. IDS Financial Services, Inc., 41 Fair Empl. Prac. Cas. (BNA) 589, 1986 WL 9877 at * 5 (W.D. Pa. Jan. 7, 1986) (advancement conditional on submission to sexual relations).
Virtually all of the Pennsylvania intentional infliction cases, however, involve conduct of a sexual nature or otherwise that is not physical. This is not surprising since in Pennsylvania an intentional offensive touching is a battery and few plaintiffs would assume the burden of proving atrocious conduct when they could recover with a far less stringent showing on a battery claim. This, however, is what plaintiff in the instant case has elected to do.
If a jury were to find that in a physician-patient relationship a doctor used a physical examination intentionally and unnecessarily to thrust his pelvic area into his patient's buttocks, the court believes that such conduct would be sufficiently egregious to sustain a claim for intentional infliction of emotional distress. While Ms. Pierce might have conducted her investigation in a more sensitive and dignified manner, her alleged conduct cannot fairly be said to exceed "all possible bounds of decency" and to be "utterly intolerable." As to defendants Sharpe and Cabanes this claim is clearly deficient. Even an ill-motivated or callous termination of employment will not support an intentional infliction claim. See Cox, 861 F.2d at 390.
As defendants note, there is no independent jurisdictional basis for plaintiff's emotional distress claim against defendant Van de Beek. This claim is not based on the same incident, injury or evidence as plaintiff's remaining claims against SEPTA, Captain Cabanes and Chief Sharpe for denial of procedural due process and for discriminatory termination because of gender. The scope and even the recognition of a cause of action for intentional infliction of emotional distress in Pennsylvania remain uncertain. See Andrews, 895 F.2d at 1487 n.7.
The court concludes that under the circumstances, this claim should be adjudicated in the state courts which should be permitted formally to determine whether the conduct alleged by plaintiff is sufficiently egregious to sustain her emotional distress claim against defendant Van de Beek. The court will thus dismiss this claim without prejudice to plaintiff to pursue it in a state court. See 28 U.S.C. §§ 1367(c), (d) and 42 Pa.C.S.A. § 5103(b)(1).
The motion for partial summary judgment will be granted except on plaintiff's conspiracy and due process claims against defendants Sharpe, Cabanes and SEPTA, and her claim for intentional infliction of emotional distress against defendant Van de Beek. That claim will be dismissed without prejudice. An appropriate order will be entered herewith.
AND NOW, this day of October, 1994, upon consideration of defendants' Motion for Partial Summary Judgment and plaintiff's response thereto, consistent with the accompanying memorandum, IT IS HEREBY ORDERED that said Motion is DENIED as to plaintiff's conspiracy and due process claims against defendants Sharpe, Cabanes and SEPTA and as to plaintiff's claim for intentional infliction of emotional distress against defendant Van de Beek and is otherwise GRANTED and IT IS FURTHER ORDERED that such claim for intentional infliction of emotional distress is DISMISSED without prejudice.
BY THE COURT:
JAY C. WALDMAN, J.