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March 30, 1995


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

 Plaintiff Maria Sudimak has moved for a new trial on her retaliatory discharge claim against Dorr-Oliver Incorporated ("Dorr-Oliver") under the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.C.S.A. §§ 951, et seq. Ms. Sudimak contends that, in light of the jury's affirmative response to the special verdict question of whether she had "met her burden of proving that Dorr-Oliver's stated reason for terminating her was not true," the jury's negative answer to whether Ms. Sudimak had "met her burden of proving that the determinative factor in the decision to terminate her employment . . . was the filing of a complaint of discrimination," cannot stand. She asserts that because "the jury rejected all possible explanations for [her] termination other than unlawful retaliation, . . . the only conclusion the jury could have reached on the evidence presented was that [she] was terminated unlawfully in retaliation for her filing of a complaint with the Pennsylvania Human Relations Commission." (Plaintiff's Supporting Brief (Docket Entry 54 at 8-9).

 Ms. Sudimak has also requested that judgment be entered in her favor by the Court on her employment discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, etseq.1 Essentially, she contends that preclusive effect must be given to the jury's rejection of Dorr-Oliver's proffered reason for her discharge, but that the jury's finding on the retaliation issue must be ignored. Consistent with her challenge to the jury's verdict, Ms. Sudimak argues that "once Dorr-Oliver's stated reason is eliminated, it is illogical to reach any conclusion other than that Dorr-Oliver was motivated by unlawful discrimination." ("Argument in Favor of Maria Sudimak's Title VII Claim" (Docket Entry 55) at 5.)

 Dorr-Oliver, relying upon Saint Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993), argues that, while the jury may not have believed that the reason articulated by Dorr-Oliver for terminating Ms. Sudimak was not the true reason, it does not necessarily follow that a desire to retaliate against Ms. Sudimak was a determinative factor in her firing. With respect to the Title VII claim, Dorr-Oliver argues that under controlling precedents of the United States Court of Appeals for the Third Circuit, the jury's rejection of Ms. Sudimak's PHRA claim is conclusive as to the parallel federal law claim.

 Because it is evident that the Court's decision in Hicks requires a plaintiff to convince the factfinder both that the employer's proffered reason for termination was false and that discrimination was the real reason for the discharge, 125 L. Ed. 2d at 422, Ms. Sudimak's challenge to the jury verdict must be rejected. Furthermore, under Andrews v. City of Philadelphia, 895 F.2d 1469, 1483 (3rd Cir. 1990), and Roebuck v. Drexel University, 852 F.2d 715, 737 (3rd Cir. 1988), the jury's verdict in favor of Dorr-Oliver on the PHRA claim is controlling on Ms. Sudimak's Title VII claim. Accordingly, the Motion for a New Trial will be denied and judgment will be entered in favor of Dorr-Oliver on the Title VII claim.


 Ms. Sudimak commenced this action against Dorr-Oliver in the Court of Common Pleas of Luzerne County, asserting claims of sexual harassment and discrimination under the PHRA and Title VII. *fn2" Essentially, Ms. Sudimak alleged that unwelcomed sexual advances and comments at Dorr-Oliver created a hostile, offensive and intimidating work environment. She further alleged that she had been terminated from her employment in retaliation for her refusal to submit to sexual advances or to tolerate sexual harassment. Finally, she claimed her discharge was in retaliation for having filed a complaint with the Pennsylvania Human Relations Commission ("PHRC")

 Dorr-Oliver removed the action to this Court on September 4, 1991. By Memorandum and Order filed August 27, 1992, (Docket Entry 19), the Hon. Richard P. Conaboy granted summary judgment in favor of Dorr-Oliver on Ms. Sudimak's claims of sexual harassment and discrimination. Judge Conaboy denied summary judgment on the retaliatory discharge claim.

 In early 1989, Mr. Pillus perceived a decline in Ms. Sudimak's performance and attitude. By memorandum dated October 9, 1989, Mr. Pillus issued a warning to Ms. Sudimak concerning her work attitude. (Defendant's Exhibit 14.) *fn3" Mr. Pillus complained that Ms. Sudimak's attitude was unacceptable, that her attendance had "dropped off," and that she was spending so much time socializing on the job that she was "on the verge of insubordination." Mr. Pillus warned that "if your attitude and performance don't improve immediately, I plan to give you five (5) days off, without pay. The step after that is dismissal."

 Despite this written warning, Ms. Sudimak received a budgeted pay increase of 2.7% in November of 1989. A "Performance Rating Sheet" completed by Mr. Pillus on December 1, 1989 gave Ms. Sudimak an over-all rating of satisfactory, while noting that she needed improvement in the areas of cooperativeness, judgment, and planning and organization. (Plaintiff's Exhibit 5.)

 In February of 1990, Ms. Sudimak was given a disciplinary suspension of three days. In March, 1990, Mr. Pillus and George Hardish, Dorr-Oliver's Manager of Industrial Labor Relations and Manufacturing, developed a written "Plan for Improvement" for Ms. Sudimak. (Plaintiff's Exhibit 25.) This plan was presented to Ms. Sudimak on March 14, 1990, and identified specific actions that she should take in the areas of productivity, attitude, and attendance.

 On March 28, 1990, Ms. Sudimak filed a complaint with the Pennsylvania Human Relations Commission. The complaint was also filed with the Equal Employment Opportunity Commission. The parties stipulated that Dorr-Oliver did not receive notice of the discrimination complaint until April 17, 1990.

 Mr. Pillus testified that he was dissatisfied with Ms. Sudimak's progress under the "Plan for Improvement." He referred to a departmental meeting in which she made an unsatisfactory presentation and exhibited boredom by openly yawning and stretching in an exaggerated manner. He further testified that she berated him in front of other workers and referred to bizarre conduct on the part of Mrs. Sudimak, such as carrying her briefcase around the Dorr-Oliver offices. In an April 17, 1990 "progress review" on the "Plan for Improvement" (Plaintiff's Exhibit 12), Mr. Pillus documented his criticism of Ms. Sudimak's productivity, attitude and attendance. He concluded:

Her attitude continues to be unacceptable. She is defiant, makes snide remarks, mumbles under her breath when she is asked to do something. The musical good-mornings are obviously intended to antagonize. Again, there are no improvements in productivity and her attitude continues to regress.

 Ms. Sudimak was terminated on April 18, 1990, the day after Dorr-Oliver received notice that she had filed a complaint with the PHRC. Dorr-Oliver contended, however, that the decision to fire Ms. Sudimak had actually been made on April 11, 1990. Dorr-Oliver attributed the delay between the decision to terminate and its implementation to such factors as the press of other business and the unavailability of a Dorr-Oliver official prior to the termination date.

 Following four days of testimony, the case was submitted to the jury on May 13, 1994 on "special verdict questions." (Docket Entry 49.) The first three questions called for yes or no answers, with a negative answer to any of the three ending the deliberations. The special verdict questions and responses were:

1. Do you find that Plaintiff has met her burden of proving that Mr. Skitka, Mr. Hardish, or Mr. Pillus was aware at the time they made the decision to terminate Plaintiff's employment that she had filed a complaint of discrimination with the Pennsylvania Human Relations Commission?
Yes x No
2. Do you find that Plaintiff has met her burden of proving that Dorr-Oliver's stated reason for ...

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