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ASCOLESE v. SEPTA

September 28, 1995

LISA ASCOLESE
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, LOUIS VAN DE BEEK, INDIVIDUALLY AND AS A SEPTA MEDICAL DOCTOR, JUDITH PIERCE, INDIVIDUALLY AND AS SEPTA CHIEF ADMINISTRATIVE OFFICER, RICHARD J. EVANS, INDIVIDUALLY AND AS SEPTA DEPUTY CHIEF OF POLICE, RONALD SHARPE, INDIVIDUALLY AND AS SEPTA CHIEF OF POLICE



The opinion of the court was delivered by: POLLAK

 Pollak, J.

 This action was brought by Lisa Ascolese, who was at the time of the events at issue a police officer for the Southeastern Pennsylvania Transportation Authority (hereinafter "SEPTA"). The defendants include SEPTA itself and various SEPTA employees, sued in their official and individual capacities (Dr. Louis van de Beek, Judith Pierce, Richard J. Evans, and Ronald Sharpe). The defendants have filed a motion for summary judgment, seeking the dismissal, on a variety of grounds, of all of the claims made by plaintiff Lisa Ascolese. For the reasons that follow, this motion will be granted in part and denied in part.

 I. Background

 As is customary in considering a motion for summary judgment, the following scenario is a distillation of the record at this stage of the case which resolves all uncertainties of fact in the light most favorable to the non-moving party, Ms. Ascolese.

 The sequence of events giving rise to Ms. Ascolese's complaint began in 1991, when SEPTA decided to initiate a fitness program for its transit police officers. Under this program, the officers were to undergo a physical examination, including both a medical examination and fitness testing. Officers who were not in appropriate physical condition would then be required to undertake an exercise program.

 A substantial part of the plaintiff's claims in this suit stem from her allegations regarding Dr. van de Beek's examination of her, which occurred on October 4, 1991. He opened the examination by requesting that she call him "Louie," and asking that she wear her gown open in the front; she chose instead to wear her gown open at the back, under which she wore her bra and a pair of boxer shorts. Van de Beek also told Ascolese that she would be tested for pregnancy; Ascolese objected to such a test as an invasion of her privacy. In fact, a technician had already obtained a urine sample from Ascolese before the examination for use in this pregnancy test. It is not clear, however, whether a pregnancy test was actually conducted. *fn3"

 In the course of the examination, van de Beek examined Ascolese's hips and spinal column by having her bend over an examining table and move her hips from left to right. Ascolese asserts that during this process, he stood behind her, with his body in contact with her from his waist to his knees, and touched her hips and spine with his hands. According to Ascolese, van de Beek also complimented her on a tattoo on her shoulder during this process. Later in the examination, he told her that he was going to examine her liver and spleen, then tore her paper gown in the front to do so, placing his hand under her boxer shorts; during this examination, his hand allegedly touched her pubic hairline.

 Ascolese did not immediately bring the alleged events at this examination to SEPTA's attention. Several days afterwards, however, a SEPTA official, Kathy Blankley, called her to ask some questions about her examination. On that occasion, Ascolese expressed her intention to file a complaint. Ascolese was thereafter called to Judith Pierce's office to discuss the matter. According to Ascolese, Pierce attempted to intimidate her into not pursuing the matter; defended van de Beek's conduct; and stated that it was important to protect van de Beek's reputation. Pierce also supplied Ascolese with a copy of SEPTA's sexual harassment policy and with the card of a representative of SEPTA's Office of Civil Rights, the office charged with enforcing that policy. Shortly thereafter, on October 13, Ascolese was subjected to what purported to be a random drug test, which Ascolese claims was in fact scheduled solely to intimidate her.

 The next major chapter in Ascolese's story did not occur until March 15, 1992, when she submitted a memorandum to SEPTA stating that she was pregnant and requesting that SEPTA provide her with a light-duty assignment. Richard Evans, SEPTA's Deputy Chief of Police, responded by requesting through another officer that Ascolese submit a doctor's note containing specific information on her medical condition and listing what limitations should be placed on her activities. Ascolese asserts that the request for specific information on her condition and limitations did not reach her. On March 20, Ascolese obtained a doctor's note which stated merely that she was twelve weeks pregnant and under a doctor's care; she was then told that she needed to submit a more specific note. After having heard that she had complained that her request had been denied, Evans arranged a meeting with Ascolese on March 26 to discuss her request. Ascolese asserts that Evans made a number of remarks at this meeting that expressed a lack of sympathy for her situation, including that she "would look humorous eight months pregnant in uniform," that she should not ask for special treatment, that he did not know why she had to eat every three hours, and that she was a "troublemaker". *fn4" Ascolese responded by filing a grievance on March 27, after which she obtained a second doctor's note on April 3, which stated that she "should be given a desk job for the remainder of her pregnancy." SEPTA asserts that it did not receive this note until April 8. Because the second note failed to state what limitations there were on Ascolese's ability to work, Evans's office called plaintiff's doctor directly. On April 13, the doctor wrote a letter stating that Ascolese could work at a desk job with no further limitations; the letter was mailed on April 16, and Evans received it on April 20. In the interim, SEPTA arranged a medical examination for Ascolese at SEPTA's medical office, scheduling it for April 20. The examination itself apparently did not occur; instead, the examining physician endorsed Ascolese's request on the basis of the new note from Ascolese's physician. Ascolese's request for light duty was finally approved on April 21. *fn5"

 Ascolese brings a wide range of claims, appearing in eight counts, based upon the foregoing sequence of events. For purposes of their consideration here, these claims will be grouped into four general classes: (1) claims based on Title VII (42 U.S.C. 2000e et seq.), including sexual harassment, retaliation, and disparate treatment claims; (2) claims under 42 U.S.C. § 1983; (3) claims under 42 U.S.C. § 1985(3); and (4) state-law tort claims. Ascolese names as defendants SEPTA, Dr. Louis van de Beek, Judith Pierce, Richard Evans, and Ronald Sharpe, SEPTA's Chief of Police.

 II. Title VII Claims

 A. Liability of Individual Defendants to Suit under Title VII

 This case presents an unsettled question of federal law -- namely, whether a Title VII plaintiff can sue, in addition to the allegedly discriminatory employer, an employee of the employer who is alleged to have participated, in his or her individual capacity, in the alleged discrimination. The Third Circuit has not yet considered this question, and, as a recent opinion by my colleague Judge Joyner demonstrates, judges within the Eastern District of Pennsylvania are divided in their approach to this question. See Caplan v. Fellheimer Eichen Braverman & Kaskey, 882 F. Supp. 1529, 1531 (E.D.Pa. 1995). Three of the courts of appeals that have considered the question have concluded that actions against employees are not permitted. *fn6" I agree with that conclusion, but on somewhat more limited grounds than those stated by certain of the other courts that have considered the question. The underlying question arises because of an apparent tension between two statutory provisions each of which seems to have a plausible claim to applicability; in such a case, a court's obligation is to seek an interpretation that accommodates the provisions in a manner that is faithful to the over-all Congressional design and does a minimum of violence -- hopefully, none at all -- to the legislative text.

 The first of the statutory provisions at issue is Title VII's definition of an "employer." Title VII's bar on discrimination in the workplace applies principally to "employers," see 42 U.S.C. § 2000e-2(a); the statute defines an "employer" to be "any person engaged in an industry affecting commerce who has fifteen or more employees . . . and any agent of such a person, " § 2000e(b) (emphasis supplied). Unfortunately, Title VII's legislative history sheds little light on the meaning of the "and any agent" language. However, a literal reading of this provision would appear to permit an action not only against an employer (whether corporate or individual), but also against any entity or person acting for the employer in the course of conduct allegedly violative of Title VII. A person cast in such a role would most likely be an employee -- probably not just any employee, but one operating at a significant policy-making level. The court will refer to these employees as "employee-agents." *fn7" Some courts have indeed found that an employee-agent can be sued under Title VII as the "agent" of a Title VII "employer". See, e.g., Jones v. Continental Corp., 789 F.2d 1225, 1231 (6th Cir. 1986).

 Other courts have found, by contrast, that the exclusion of businesses with fewer than fifteen employees from the definition of an "employer" is evidence of a Congressional intent to protect those with limited financial resources, including individuals, from being the targets of Title VII enforcement. See, e.g., Miller v. Maxwell's International, Inc., 991 F.2d 583, 587 (9th Cir. 1993) (asserting, although without stating the basis for this assertion, that the fifteen-employee minimum was included in Title VII because "Congress did not want to burden small entities with the costs associated with litigating discrimination claims"); see also E.E.O.C. v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1281 (7th Cir. 1995) (making a similar argument under the Americans with Disabilities Act). In fact, however, it has been argued that comments made on the floor of the Senate when Title VII was enacted suggest that this limitation had two purposes: first, it was an effort by Congress to avoid legislating beyond the constitutional limits of the Commerce Clause; *fn8" and second, it was intended to avoid the application of the Act to family businesses, or businesses of a similar character *fn9" (perhaps because Congress felt that it would be inappropriate to hold such businesses to federal standards, or felt that policing observance of federal standards in thousands of very small enterprises would be a difficult and relatively unproductive endeavor). The logic of the latter rationales would not appear to preclude treating individuals as "agents" under section 2000e(b): if Congress had found that firms of a certain size (more than fourteen employees) should be required to conform to Title VII standards because they are unlikely to present the characteristics that warrant the exemption of smaller firms from coverage by the statutory mandates, then there would seem to be no compelling reason why the policy-making individuals responsible for a covered firm's non-conformity with federal standards should be insulated from liability. If a case can be made for excluding a covered firm's policy-making employees from "agent" liability, that case must be built upon the wording or evident design of a second, complementary statutory provision, 42 U.S.C. § 1981a.

 Section 1981a was enacted as part of the Civil Rights Act of 1991. Subsection (a) of section 1981a enlarged a successful Title VII plaintiff's entitlement -- which theretofore was limited to equitable remedies (including, in an appropriate case, money awards in the form of back pay and/or front pay) -- to authorize awards of compensatory and punitive damages in instances of intentional discrimination. *fn10" Subsection (a) specifies that such damages are "as allowed in subsection (b) of this section." Subsection (b) then sets forth a sliding scale of maximum awards of those damages, ranging from $ 50,000 "in the case of a respondent who has more than 14 and fewer than 101 employees" to $ 300,000 for respondents with more than 500 employees. *fn11" The point to be noted here is that the scenario subsection (b) describes, in specifying the sliding scale of maximum awards, is one in which the respondent is an employer -- i.e., a "respondent who has . . . employees." Nothing is said in subsection (b) or elsewhere with respect to the liability of respondents who do not have employees, such as employee-agents, or with respect to the limits of that liability. Is this lacuna to be understood as meaning that damage awards may be rendered against an employee-agent and that such awards are not subject to any dollar cap? Or is it not more probable that Congress did not contemplate that employee-agents would be called on to respond in damages? In my view, the latter is the better reading of Congress's delphic silence. *fn12" Thus, the Title VII claims against individual defendants van de Beek, Pierce, Sharpe, and Evans must be dismissed.

 B. Effect of the Nonretroactivity of Title VII's Compensatory and Punitive Damages Provisions

 In Landgraf v. USI Film Products, 128 L. Ed. 2d 229, 114 S. Ct. 1483, 1505-08 (1994), the Supreme Court found that the provisions of 42 U.S.C. § 1981a which permit awards of compensatory and punitive damages for acts of intentional discrimination were not retroactive. Thus, Ascolese cannot base a claim for compensatory or punitive damages on events occurring before the date of enactment of the Civil Rights Act of 1991, which was November 21, 1991. An allegation that the harassment amounted to a continuing course of conduct beginning before the statute was enacted and continuing thereafter does not suffice to overcome the nonretroactivity rule. See Adams v. Pinole Point Steel Co., No. C-92-1962 MHP, 1995 U.S. Dist. LEXIS 2036 at *19 (N.D. Cal. Feb. 10, 1995) (finding that recovery was barred for acts occurring before the enactment of the Civil Rights Act of 1991, even if the pre-enactment acts were part of the same course of conduct as some post-enactment acts). Thus, Ascolese cannot recover compensatory or punitive damages for Dr. van de Beek's alleged conduct at his examination of Ascolese, which occurred on October 4, 1991; for the alleged conduct of defendant Pierce at her meeting with Ascolese shortly thereafter; or for the drug test administered to Ascolese on October 13, 1991. *fn13" Because Ascolese does not seek any other remedy under Title VII than compensatory or punitive damages based upon these events, her Title VII claims based upon these events must be dismissed. Accordingly, the only remaining factual allegations that could give rise to Title VII liability concern Ascolese's efforts, which began on March 15, 1992, to secure light duty during her pregnancy.

 C. Sexual Harassment Claims.

 We now turn to the question of whether Ascolese can sustain a claim under Title VII for the events described in her complaint that occurred after November 21, 1991, all of which revolve around her difficulties in securing light duty during her pregnancy. SEPTA's light-duty policy appears to have been in some disorder at the time of Ascolese's application for light duty. Officially, SEPTA did not permit any light-duty assignments for disabilities not occurring in the line of duty. In practice, however, SEPTA seems to have sometimes granted light-duty assignments to officers disabled other than in the line of duty. In one instance, SEPTA seems to have granted a verbal request for light duty in such a case, that of an officer who had a "debilitating illness and requested we find some administrative function for him so that he didn't burn up all his sick time so he could remain active." (See Deposition of Richard Evans, Plaintiff's Exhibit No. 42, pp. 95-96) The fact that the request was verbal suggests that SEPTA may have had little or no medical evidence as to, for instance, necessary limitations on the requestor's activities. In other cases, the standard of medical evidence required by SEPTA is unclear. *fn14"

 Construing the facts in the light most favorable to the plaintiff, it appears at least possible that Ascolese's request for light duty was held to an unusually high standard by her superiors. Ascolese was repeatedly required to secure more medical documentation. Most notably, when Ascolese submitted a note from her doctor (apparently on April 8) stating that she should be given a desk job for the remainder of her pregnancy, SEPTA took what a jury might regard as the curious step of leaving her on what was apparently a fairly strenuous active-duty assignment pending the arrival of information that would permit it to give her a desk job tailored to her limitations. The result was a twelve-day delay which a jury might well conclude was unnecessary. *fn15" Ascolese also asserts that she was caused distress by Deputy Police Chief Evans's allegedly humiliating treatment of her at their meeting to discuss her light duty request. This alleged treatment included comments skeptical of whether pregnancy qualifies as a disability. Evans's comments could be interpreted to suggest that it was this skepticism that later made Evans reluctant to grant Ascolese's light duty requests.

 Title VII states that "it shall be an unlawful employment practice for any employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." See 42 U.S.C. § 2000e-2(a). Title VII expressly defines discrimination "because of sex" to include discrimination "because or on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k). The Supreme Court first recognized that Title VII created a cause of action for hostile environment sexual harassment in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). In that case, the Court stated that "for sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. at 67 (internal quotation omitted).

 The principal case interpreting Meritor in the Third Circuit is Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990), which lists five factors that a plaintiff must show in order to establish hostile environment sexual harassment. These factors are: (1) that the employee suffered intentional discrimination because of his or her sex; (2) that the discrimination was "pervasive and regular"; (3) that the discrimination detrimentally affected the plaintiff ("subjective" harm); (4) that the discrimination would detrimentally affect a reasonable person of the same sex in that position ("objective" harm); and (5) the existence of respondeat superior liability. Id. at 1482.


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