all have clear public-safety goals. Its physical examinations and fitness testing are linked less closely with public safety, but do have a public-safety purpose. See Affidavit of Paul O. Davis, Ph.D., Exhibit E to the Defendants' Motion for Reconsideration ("Law Enforcement officers have a public trust to uphold and enforce the law and to effect the arrest of any person committing a felony in their presence. The physical demands of these types of activities can be considerable."). The reasonable expectations of privacy of SEPTA police officers as to the foregoing intrusions "are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees." Skinner, 489 U.S. at 627.
The Skinner Court was careful to note, however, that "we do not suggest . . . that the interest in bodily security enjoyed by those employed in a regulated industry must always be considered minimal." Id. at 628. Likewise, in Von Raab, the Court emphasized the close link between the nature of the customs employees' work and the intrusion at issue: it stated that the employees are "directly involved in the interdiction of illegal drugs" and carry firearms, and so "reasonably should expect effective inquiry into their fitness and probity." 489 U.S. at 672. SEPTA's employees, too, must necessarily expect some intrusions upon their privacy that are clearly related to public safety. But a pregnancy test with no public-safety objective is a form of intrusion upon an employee's privacy quite different from most of those to which SEPTA's employees routinely submit.
It is true that the pervasive regulation of Ascolese's workplace may modestly reduce her expectations of privacy even as to information unrelated to public safety. But this modest reduction does not lead me to change my conclusion that the privacy interests at stake in this case are considerably stronger than SEPTA's interest in protecting the health of its employees and their prospective children.
C. The Warrant Requirement
My previous opinion also noted that SEPTA appears not to dispute Ascolese's claim that she was given no notice before her physical examination that it would include a pregnancy test.
I found in that opinion that SEPTA had no reason (other than perhaps a modest bow to administrative convenience) for conducting its pregnancy test without notice, and concluded that SEPTA's failure to give Ascolese notice greatly weakened the case for dispensing with the warrant requirement as to this test. The defendants' motion for reconsideration asserts that it would be burdensome for SEPTA to be required to obtain a warrant before administering a pregnancy test to its employees, and that the absence of any "special" facts for a magistrate to evaluate in considering SEPTA's request for a warrant argues against the application of the warrant requirement. Cf. Von Raab, 489 U.S. at 665.
As described by the Court in Von Raab, the purpose of the warrant requirement is "to advise the citizen that an intrusion is authorized by law and limited in its potential scope and to interpose a neutral magistrate between the citizen and the law enforcement officer." 489 U.S. at 667. The Supreme Court has repeatedly found that the infringement upon privacy associated with a search is reduced when there is advance notice. See, e.g. Skinner, 489 U.S. at 622 (in finding the warrant requirement inapplicable, noting that the testing rules at issue were well-defined and "doubtless are well known to covered employees," which suggested that the formal assurance of a warrant was not necessary); see also Von Raab, 489 U.S. at 667 (reasoning similarly). Advance notice is valuable because it helps to reduce the "'unsettling show of authority,' Delaware v. Prouse, 440 U.S. 648, 657, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979), that may be associated with unexpected intrusions on privacy," see Von Raab, 489 U.S. at 672 n.2. For these reasons, I concluded in my previous opinion that a warrant might have reassured Ascolese that the pregnancy test was being conducted lawfully.
SEPTA's objections are unpersuasive. The burden associated with obtaining a warrant is relatively small,
particularly in comparison with the protection a warrant would afford to the privacy interests of SEPTA employees. Moreover, although it is true that there would be few (or no) facts for a magistrate to evaluate in determining whether to issue a warrant, that argument is only relevant to the warrant requirement's function of limiting official discretion. A warrant would still serve the purpose that I identified as important in this case, that of providing SEPTA employees with notice that the pregnancy test is authorized by law.
III. Ascolese's Sexual Harassment Claim against van de Beek
Van de Beek also contests the denial of his previous motion for summary judgment as to Ascolese's section 1983 sexual harassment claim against him. He argues, first, that there is no evidence that his conduct was intentional; second, that Ascolese has not made a sufficient showing that his conduct amounted to discrimination; and, finally, that he is entitled to qualified immunity as to Ascolese's claim.
A. Evidence that van de Beek's Conduct was Intentional
Ascolese cannot make out a section 1983 sexual harassment claim against van de Beek in the absence of evidence that van de Beek's conduct was intentional. See Bohen v. City of East Chicago, Ind., 799 F.2d 1180, 1187 (7th Cir. 1986). In my previous opinion in this case, I found that Ascolese had presented some evidence that van de Beek had acted intentionally. The principal evidence to that effect was Ascolese's allegation that van de Beek had pressed against her during a portion of his examination. This contact allegedly occurred while van de Beek conducted a spinal examination of Ascolese which required her to bend over, with her hands on the examination table, and move her hips from left to right, with van de Beek standing behind her. Ascolese alleges that, during this process, van de Beek's body from his waist to his knees was in contact with her. Van de Beek denies that this contact occurred. In the absence of any information as to whether such contact was likely to occur inadvertently during a spinal examination, I concluded that it was possible that a jury might indeed find that the alleged contact was intentional, particularly in light of van de Beek's other alleged conduct during the examination.
Van de Beek has now presented a supplemental affidavit from an expert witness, Dr. Eliot Nierman, addressing the question of van de Beek's intent. Dr. Nierman's previous report in this case concluded that van de Beek had "conducted a complete medical examination . . . in a manner that was reasonable, acceptable, and within the usual standard of medical care." Defendants' Motion for Summary Judgment, exh. E, at 3. That report did not, however, address Ascolese's allegation that van de Beek had pressed against her during his examination. Van de Beek has now presented the court with a letter from Dr. Nierman addressing that claim. It states: "This is likely to be inadvertent, incidental contact. I do not feel it represents any departure from usual standards of physician behavior. Therefore, my assessment of this case, that Dr. van de Beek did nothing that would be inappropriate during a medical examination, stands." Defendants' Motion for Reconsideration, exh. F.
Dr. Nierman's statement that this contact is likely to have been "inadvertent" or "incidental" does not eliminate all questions of material fact as to van de Beek's intent. First, Dr. Nierman says only that this contact is "likely" to have been inadvertent, suggesting that there may be doubt on this score. Moreover, van de Beek's other conduct, including his suggestion that Ascolese call him "Louie" and his comment on Ascolese's tattoo, can be interpreted either as an unsuccessful effort to put his patient at ease or as evidence of an intent to harass her.
I therefore find that there remains a genuine issue of material fact as to whether van de Beek intended to discriminate against Ascolese.
B. Evidence that van de Beek's Alleged Conduct Amounted to Discrimination
Van de Beek also asserts that Ascolese has not demonstrated that his alleged conduct amounted to discrimination. In Bedford v. Southeastern Pennsylvania Transportation Authority, 867 F. Supp. 288 (E.D. Pa. 1994), Judge Waldman analyzed a Title VII sexual harassment claim brought by another SEPTA transit police officer, Sherrie Bedford, against SEPTA. Bedford was examined by van de Beek at approximately the same time that Ascolese was, and alleged quite similar conduct by van de Beek.
Judge Waldman concluded that, although most reported sexual harassment cases have involved multiple acts of harassment, "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 said to characterize the atmosphere in which a plaintiff must work." 867 F. Supp. at 297. He found that Bedford "cannot reasonably have perceived the encounter with Dr. van de Beek . . . as constituting a sexually hostile work environment." Id.
The present claim is brought under section 1983, and is therefore subject to a different analysis from the Title VII claim at issue in Bedford. The focus of an analysis under section 1983 is on "whether the sexual harassment constitutes intentional discrimination," not on whether "the sexual harassment altered the conditions of the victim's employment," the standard under Title VII. See Bohen, 799 F.2d at 1187; see also Andrews v. City of Philadelphia, 895 F.2d 1469, 1482, 1483 & n.4 (3rd Cir. 1990) (comparing the elements of Title VII and section 1983). In order to demonstrate that she has been subjected to sex discrimination under section 1983, Ascolese must show that she was treated differently than a similarly situated person of the opposite sex would have been. Moreover, the sex discrimination at issue in this case is discrimination by a public official in the course of performing his duties (in this case, a medical examination), rather than discrimination at Ascolese's workplace generally.
Thus, there is no need to consider the alleged discrimination in the context of Ascolese's entire work experience, as there would be under Title VII, and as Judge Waldman did in Bedford; the relevant context is only that of the examination itself.
There remains the question of what Ascolese must demonstrate to show that sexual harassment by van de Beek amounted to discrimination in the provision of a medical examination. In Meritor Savings Bank v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986), the Court found that sexual harassment in the workplace rose to the level of discrimination if it created a "hostile or abusive" working environment. Id. at 66. By analogy, I find that harassment in the course of a physical examination will amount to sex discrimination if the harassment renders the environment during that examination "hostile" or "abusive." Cf. Andrews, 895 F.2d at 1483 n.4 ("Proof of some [elements of section 1983 and Title VII], particularly discrimination based upon sex and subjective harm[,] is identical . . . .").
In Harris v. Forklift Systems, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993), Justice O'Connor, writing for a unanimous Court, provided some guidance as to how the courts should approach the question whether a work environment is "hostile" or "abusive":
But we can say that whether an environment is "hostile" or "abusive" can be determined only by looking at all of the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.