(N.D. Ohio 1991) ("Whenever a government agency wants to order mandatory testing of its employees, the burden is on that agency to prove that mandatory testing is necessary . . . ."). Considerable thought was apparently given to the design of SEPTA's fitness program; thus, SEPTA presumably had some basis for believing that the program could not easily be designed in such a way as to avoid any risk to the health of pregnant women. (The fact that SEPTA apparently later "discontinued" pregnancy testing, see Defendant's Reply Brief at 16, does call this hypothesis into question, however.) Had SEPTA made such a showing, it might well have prevailed on its motion for summary judgment, at least as to the question of probable cause.
B. Warrant Requirement.
Turning to the warrant requirement, the inquiry focuses on whether, in the circumstances at issue, the warrant requirement's purpose of protecting individuals against arbitrary governmental action outweighs the burden that obtaining a warrant would impose upon SEPTA.
To begin with the latter element, requiring SEPTA to obtain a warrant before testing its employees for pregnancy would certainly impose some burden upon SEPTA: SEPTA would need to familiarize one or more of its employees with warrant procedures, and would need to obtain a warrant in those cases in which its employees did not grant their consent for the pregnancy test. This burden falls far short of that at issue in many other "special needs" cases, however. SEPTA cannot argue that it is important that a pregnancy test be administered unexpectedly; this distinguishes SEPTA's testing program from those at issue in the many "special needs" cases that have involved circumstances in which an element of surprise was necessary to achieving the purpose of the search. These include, for instance, cases permitting warrantless searches by probation officials of a probationer's home, see Griffin v. Wisconsin, 483 U.S. 868, 876, 97 L. Ed. 2d 709, 107 S. Ct. 3164 (1987), and permitting warrantless inspections of automobile junkyards for stolen cars, New York v. Burger, 482 U.S. 691, 710, 96 L. Ed. 2d 601, 107 S. Ct. 2636 (1987). Nor is there any urgent need to administer the test quickly, unlike the test at issue in Skinner, which had to be administered to railroad employees after an accident before traces of drugs or alcohol were fully metabolized. See Skinner, supra, 489 U.S. at 623. Nor is the need to conduct the pregnancy tests likely to be so frequent or to arise so unexpectedly as to render a warrant requirement extraordinarily burdensome, in contrast, for instance, with employers' frequent need to seek documents in employees' offices, see O'Connor v. Ortega, 480 U.S. 709, 721-722, 94 L. Ed. 2d 714, 107 S. Ct. 1492 (1987).
Turning to the purposes of the warrant requirement, the Supreme Court identified the principal functions of a warrant in Skinner as (a) that of limiting the enforcement discretion of the officials involved, and (b) that of "assuring the citizen that the intrusion is authorized by law, and that it is narrowly limited in its objectives and scope." 489 U.S. at 622. In Skinner, the Court found that the warrant's purpose of limiting enforcement discretion was served by the existing testing scheme, which defined the circumstances under which testing would occur very specifically, for instance requiring testing after certain specified rule violations, see id. at 622 & n.6; see also von Raab, 489 U.S. at 667. The testing scheme at issue here seems to have been similarly nondiscretionary in nature.
As to the second function of the warrant requirement, that of providing persons with notice of the official character and permissible scope of a search, the Court has not always required some functional equivalent of this purpose of a warrant in permitting a warrantless search. For instance, the Court did not cite any substitute for this function of a warrant in permitting school officials to search schoolchildren without a warrant or probable cause, see New Jersey v. T.L.O., 469 U.S. 325, 340, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985). However, in many cases the Court has cited some substitute for this function of a warrant as an important reason for permitting a warrantless search. In Skinner and Von Raab, for instance, the Court noted that the drug testing schemes at issue involved rules that "doubtless are well known to covered employees," Skinner, 489 U.S. at 622; see also Von Raab, 489 U.S. at 1394 n.2. In Von Raab, the employees were also provided with individual notice of the forthcoming test, see id. In the latter case, the Court explained that the fact that employees had advance notice of the testing requirement "reduced to a minimum any 'unsettling show of authority.'" associated with the test. Id. (quoting Delaware v. Prouse, 440 U.S. 648, 657, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979)). By contrast, SEPTA concedes that Ascolese was told only after her urine sample was taken that it would be used for a pregnancy test, and there is no indication that SEPTA employees were notified generally of the existence of a pregnancy-testing requirement.
On the present facts, SEPTA's motion for summary judgment as to the warrant requirement cannot be granted. Denial of the motion does not amount to a determination as a matter of law that SEPTA was required to secure a warrant before administering a pregnancy test to Ascolese without notice. However, at this stage of the case it would be premature to foreclose that possibility. Past cases in which the Supreme Court has found a warrant to be unnecessary have generally noted that a warrant requirement would serve no useful purpose on the facts before them. See, e.g., Skinner, supra, 489 U.S. at 1416. On the present record, by contrast, it is easy to conceive of a reason for a warrant requirement: a warrant would have ensured that SEPTA employees had advance notice of the pregnancy test and of its officially sanctioned character.
SEPTA has now concluded that it will seek its employees' consent before conducting any further pregnancy tests. Were SEPTA required to secure a warrant before conducting no-notice testing, it might have adopted a similar approach from the outset.
V. Section 1985(3) Claim
Ascolese's complaint asserts three broad claims of conspiracy, whose precise legal basis is unclear. The complaint states that "defendants conspired to violate Plaintiff's rights, and did violate them by retaliating against Plaintiff for originally asserting her protected right to be free from sexual harassment and to be free from having to work in a sexually hostile environment," that "defendants conspired to harass and discriminate against Plaintiff based on her being female," and that "defendants conspired to harass and discriminate against Plaintiff based on her being white." Complaint, Count Five, P 2; Count Eight, PP 6, 7.
Despite the vagueness of these allegations, and their failure to identify the members or nature of the conspiracy in question, the court will briefly consider whether they state a claim under 42 U.S.C. § 1985(3), which provides a cause of action for certain conspiracies to violate civil rights. Under that statute, "if two or more persons . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws," the members of this conspiracy shall be subject to an action for damages by any person whom the conspiracy harms. 42 U.S.C. § 1985(3).
Ascolese does not make any showing that any SEPTA employees acted in concert to deprive her of her constitutionally protected rights. At most, she has shown that Evans was aware that Ascolese had filed a complaint after her examination by van de Beek. She has alleged no facts that would suggest that Pierce had any role in her alleged harassment by van de Beek, that other SEPTA employees had any role in Pierce's treatment of her, or that Pierce, Sharpe or van de Beek had any role in Evans's conduct towards her or the handling of her request for light duty. See Santiago v. City of Philadelphia, 435 F. Supp. 136, 155 (E.D. Pa. 1977) ("Conspiracy in this [§ 1985(3)] context means that the co-conspirators must have agreed, at least tacitly, to commit acts which will deprive plaintiff of the equal protection of the law.") Thus, judgment must be entered against her on this claim. It is therefore not necessary to consider SEPTA's arguments that, inter alia, section 1985(3) does not apply because a corporation cannot conspire with itself.
VI. Common-Law Tort Claims
Ascolese appears to allege four common-law tort claims: intentional infliction of emotional distress, negligent supervision, invasion of privacy, and a claim that she characterizes as "conspiracy". (Ascolese's complaint is somewhat unclear as to which common-law claims it asserts. However, Ascolese's papers characterize her complaint as asserting these four claims,
and they can all be broadly discerned in her complaint.) SEPTA asserts that it is immune to these claims under Pennsylvania's official immunity and sovereign immunity statutes, or, in the alternative, that these claims are barred by the underlying substantive law.
To begin with Ascolese's claim for intentional infliction of emotional distress, assuming that Pennsylvania recognizes the tort of intentional infliction of emotional distress, a question that appears to still be open,
this claim appears to be barred under applicable Pennsylvania law.
That law requires plaintiffs claiming intentional infliction of emotional distress to present expert medical evidence of harm. See Kazatsky v. King David Memorial Park Inc., 515 Pa. 183, 527 A.2d 988, 995 (1987); Williams v. Guzzardi, 875 F.2d 46, 50-53 (3d Cir. 1989). Ascolese has not presented any such evidence at this stage, and has not provided any more than conclusory allegations of mental and emotional harm.
Turning to Ascolese's claim of "gross negligence," it appears to amount to a claim that SEPTA was negligent in its supervision of van de Beek, or that SEPTA was negligent in failing to assign a nurse to be present during his examination of Ascolese. These claims cannot be sustained, as Ascolese has not presented any factual basis for her claim that SEPTA was aware that van de Beek harassed female patients.
Ascolese's invasion of privacy claim appears to be based upon SEPTA's alleged administration of a pregnancy test to her without her consent. The Third Circuit has found it likely that the Supreme Court of Pennsylvania would, if faced with the question, adopt the definition of the tort of invasion of privacy appearing in the Restatement of Torts. See Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 620 n.8. (3rd Cir. 1993). The Restatement distinguishes between four classes of invasion of privacy claim. See Restatement of Torts § 652A. The type of claim relevant to this case, "intrusion upon seclusion," is an intentional tort claim, according to Section 652B of the Restatement. SEPTA is immune to intentional tort claims, however, as Pennsylvania's waiver of sovereign immunity waives immunity only "for damages arising out of a negligent act," see 42 Pa. Cons. Stat. Ann. § 8522; see also Freedman v. City of Allentown, 128 Pa. Commw. 126, 562 A.2d 1012, 1015 (Pa. Commw. Ct., 1989). SEPTA's employees are also generally entitled to official immunity for actions taken in the course of their duties. See 42 Pa. Cons. Stat. Ann. §§ 8545, 8546. To the extent that the injurious acts of SEPTA's employees constitute "a crime, actual fraud, actual malice, or willful misconduct," they are not entitled to official immunity for their actions. See 42 Pa. Cons. Stat. Ann. § 8550; see also Dobson v. Green, 596 F. Supp. 122, 125 (E.D. Pa. 1984) (finding that charges of assault and battery against police officers for beating plaintiff meet standard for willful misconduct under § 8550). The conduct of van de Beek and Pierce, the SEPTA employees involved in allegedly administering the pregnancy test to Ascolese, cannot be said to amount to "a crime, actual fraud, actual malice, or willful misconduct." Thus, they, too, are immune to an action for invasion of privacy.
Finally, the court must consider the claim that Ascolese characterizes as "conspiracy". This court is not aware of any independent tort of conspiracy. Although it is conceivable that Ascolese intended to allege that the defendants acted in concert to commit some other, unspecified, intentional tort, Ascolese has not made that claim with any precision or detail, and this court does not believe that it is the court's function to tease a cognizable claim out of the complaint's obscure words.
To summarize, SEPTA's motion for summary judgment is granted, except as to: (a) Ascolese's Title VII retaliation and gender-based disparate treatment claims against SEPTA based upon events occurring after November 21, 1991, (b) her section 1983 sex discrimination claims against Evans and van de Beek, and (c) her section 1983 pregnancy testing claim against SEPTA.
An appropriate order accompanies this opinion.
For the reasons set forth in the opinion filed herewith, it is hereby ORDERED that the defendant's motion for summary judgment is GRANTED, except as to the following claims:
(a) Ascolese's Title VII retaliation and gender-based disparate treatment claims against SEPTA based upon events occurring after November 21, 1991;
(b) her section 1983 sex discrimination claims against Evans and van de Beek, and