and with which she disagreed accounted for some of the criticism.
41. Plaintiff disagreed with the changes implemented, thought them impractical, and expressed her disapproval to Botsford.
42. After returning from vacation September 10, 1990, plaintiff worked only nine days.
43. At the beginning of the work day on Friday, September 21, 1990, Botsford began criticizing plaintiff for her failure to submit a salad bar schedule for the following week as he had previously directed her to do, and to handle certain salad bar scheduling matters in accordance with the new scheduling directives.
44. Plaintiff became angry and upset at what she perceived to be undue harassment or retaliation for her reporting the sexual harassment.
45. Plaintiff announced that she was not going to take any more harassment from Botsford, announced that she was quitting and left the store.
46. She never returned to the store.
47. Immediately after leaving the store, plaintiff telephoned Shaffer and Norman S. Rich, Weis' Director of Store Operations, to report what had happened, and to inform them that she had quit her job because of Botsford.
48. After speaking with plaintiff, Rich contacted Shaffer and directed him to resolve the problem and stated that if the problem was a personality conflict, Shaffer should offer to transfer her to another Williamsport Weis Markets store located on River Avenue, a few miles from the Lycoming Creek Road store.
49. Shaffer telephoned plaintiff the next day and offered her the same position at the same pay and benefits at the River Avenue store.
50. Plaintiff declined the offer of continuing employment at the River Avenue Weis Markets store.
51. She refused to take the position because she had heard negative comments about the produce department manager at the River Avenue store and thought that she would be no better off under his supervision than she had been under Botsford's.
52. Plaintiff did not have any further communications with Weis Markets regarding her possible return to its employ.
53. When she resigned, plaintiff was earning $ 4.40 per hour and worked approximately 30 hours per week..
54. After leaving the employ of Weis Markets, Stewart diligently searched for other employment, but did not obtain another position until November, 1991 when she was hired as a companion aide at the rate of $ 5.00 per hour. By the time of trial, her rate of pay had increased to $ 5.50 per hour.
Sexual harassment under the PHRA
Plaintiff is seeking compensatory damages for the sexual harassment which she endured while working under Botsford's supervision. Such damages were not available under Title VII prior to the November 21, 1991 effective date of the 1991 Civil Rights Act, the United States Supreme Court ruled in Landgraf 128 L. Ed. 2d at 245, 265.
Compensatory damages were, however, recoverable for sexual harassment under the PHRA when plaintiff's cause of action arose. As with Title VII, the PHRA prohibits discrimination in employment on the basis of gender. With the exception of the unavailability of compensatory damages for sexual harassment prior to enactment of the 1991 civil rights amendments, case law decided under Title VII is equally applicable to a PHRA claim. Kryeski v. Schott Glass Technologies, 426 Pa. Super. 105, 626 A.2d 595, 598 (Pa. Super. Ct. 1993).
In construing Title VII and the PHRA, federal courts and Pennsylvania courts have recognized two forms of sexual harassment: "hostile environment" harassment and "quid pro quo" harassment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986) (Title VII case) and Kryeski, 626 A.2d at 598-99.
Stewart has not asserted a cause of action for "quid pro quo" sexual harassment, and is proceeding solely under a "hostile environment" theory.
In Harris, the Supreme Court addressed the "hostile work environment" theory of harassment, reaffirming its earlier ruling in Meritor Savings Bank v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). Under those decisions, such harassment is actionable if: it affects a "term, condition, or privilege of employment within the meaning of Title VII," and is so severe or pervasive that it alters the conditions of employment and creates an "abusive working environment". Id., 477 U.S. at 67. See also: Drinkwater v. Union Carbide Corporation, 904 F.2d 853, 859-860 (3d Cir. 1990) (Title VII case).
The "five constituents" which the United States Court of Appeals for the Third Circuit held in Andrews v. Philadelphia, 895 F.2d 1469 (3d Cir.1990), "must converge to bring a successful claim for a sexually hostile work environment under Title VII" and, by extension, under the PHRA, were substantially adopted by the United States Supreme Court in Harris. See: Spain v. Gallegos, 26 F.3d 439, 446 (3d Cir. 1994).
Under Andrews and Harris, the claimant must establish that: 1) employees suffered intentional discrimination because of their sex; 2) that the discrimination was pervasive and regular; 3) that the discrimination detrimentally affected the plaintiff; 4) that the discrimination would detrimentally affect a reasonable person of the same sex in that position; and 5) the existence of respondeat superior liability. Andrews, 895 F.2d at 1482. These factors are to be reviewed in combination to determine whether the totality of the circumstances indicate the existence of an abusive work environment. Harris, 126 L. Ed. 2d at 302.
These factors include both a subjective standard and an objective standard. Neither Title VII nor the PHRA is designed to protect the overly sensitive plaintiff. See Andrews, 895 F.2d at 1483. "Title VII does not serve as a vehicle for vindicating the petty slights suffered by the hypersensitive." Zabkowicz v. West Bend Company, 589 F. Supp. 780, 784 (E.D. Wis. 1984). However, the Supreme Court explained in Harris:
But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII's broad rule of workplace equality. The appalling conduct alleged in Meritor, and the reference in that case to environments "'so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers, '"...merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable.
. . . .Certainly Title VII bars conduct that would seriously affect a reasonable person's psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, Meritor... 477 U.S. at 67...there is no need for it also to be psychologically injurious."