The opinion of the court was delivered by: LEE
Before the Court are the following motions: University of Pittsburgh of the Commonwealth System of Higher Education, d/b/a The University of Pittsburgh's Motion for Summary Judgment (Document No. 24) and Anthony R. Petrosky's Motion for Summary Judgment (Document No. 26). After careful consideration of defendants' motions, the extensive supporting material in support of and in opposition thereto, the memoranda in support of and in opposition thereto, the relevant case law, and the record as a whole, the Court will grant, in part, and deny, in part, defendants' motions.
Defendant University of Pittsburgh's motion for summary judgment will be granted with respect to plaintiffs' claims for assault and battery, and those claims brought under 42 U.S.C. §§ 1983 and 2000(e). Defendant University's summary judgment motion will be denied in all other respects.
Defendant Petrosky's motion for summary judgment will be granted with respect to plaintiffs' claims for assault and battery, and plaintiffs' claim brought under Title 42 U.S.C. § 2000e. Defendant Petrosky's summary judgment motion will be denied in all other respects.
Plaintiffs, Lori R. Stilley and Robert Stilley, filed their lawsuit on March 14, 1995, in the Court of Common Pleas of Allegheny County, Pennsylvania. At all relevant times, plaintiff Lori Stilley was, and continues to be, a doctoral candidate at Defendant, University of Pittsburgh of the Commonwealth System of Higher Education, d/b/a University of Pittsburgh (the "University"), in the Department of Instruction and Learning within the School of Education. She has completed her doctoral courses and is working on her dissertation. Additionally, from March, 1990, until August, 1993, and again from February through April, 1994, Ms. Stilley was employed by the University through the School of Education.
Defendant University is an educational institution organized under the laws of the Commonwealth of Pennsylvania. Plaintiffs allege that, at all times pertinent to this lawsuit, Ms. Stilley was a student and employee of the University.
Defendant Anthony R. Petrosky ("Petrosky") is a full tenured professor at the School of Education at the University, with a joint appointment in the Departments of Curriculum and Instruction and English. Plaintiffs allege that Petrosky was acting as the agent, servant and/or employee of the University and, further, that he was also the employer of Lori Stilley.
On March 13, 1995, plaintiffs filed an eight-count Complaint in Civil Action in the Court of Common Pleas of Allegheny County, Pennsylvania. The gravamen of the complaint is that Petrosky, in his concurrent roles of supervisor, academic advisor and chairman of her dissertation committee, sexually harassed and discriminated against Ms. Stilley, while she was a student and employee of the University, and that the University knew or should have known about this harassment and acquiesced and tacitly condoned Petrosky's behavior, harassment and discrimination.
In Count I, plaintiff Lori Stilley alleges that the conduct of defendants constitutes assault and battery under the laws of the Commonwealth of Pennsylvania. Count II alleges that because of defendants' conduct, plaintiff Lori Stilley has suffered intentional and/or negligent infliction of emotional distress under the laws of the Commonwealth of Pennsylvania. In Count III, Plaintiff Robert Stilley contends that as a direct and proximate result of the conduct of defendants he has suffered the "loss of consortium, care, affection, support, [and] protection . . ." of his wife.
Plaintiff, Lori Stilley, sues Petrosky individually and as her employer pursuant to 42 U.S.C. § 2000(e)-2(a)(1) and 42 U.S.C. § 1983 in Counts IV and VI of the Complaint, respectively. The University is sued as plaintiff Lori Stilley's employer pursuant to 42 U.S.C. § 2000(e)-2(a)(1) and 42 U.S.C. § 1983 in Counts V and VII of the Complaint, respectively.
Lastly, in Count VIII of the Complaint, the University is sued by Plaintiff Lori Stilley for violations of 20 U.S.C. § 1681, et seq., commonly referred to as Title IX. The basis for plaintiff's claims against the University, is that Petrosky, while acting as plaintiff's academic advisor, supervisor, and chair of her dissertation committee, sexually harassed her.
On March 28, 1995, defendants removed this matter, without objection, to the United States District Court for the Western District of Pennsylvania. Defendants have filed separate motions for summary judgment, with briefs in support thereof, along with statements of undisputed material facts with accompanying appendices. The University presents four grounds in support of its arguments that summary judgment should be granted in its favor: (i) plaintiffs have failed to adduce facts of quid pro quo sexual harassment; (ii) plaintiff's hostile environment sexual harassment claims are time barred; (iii) plaintiff's hostile environment claims against the University fail because plaintiff could not have reasonably believed that Petrosky had authority to act inappropriately; and (iv) plaintiffs' tort claims against the University should be dismissed for lack of respondeat superior liability.
Similarly, Petrosky presents four grounds in support of his arguments that summary judgment should be granted in his favor: (i) plaintiff's claims for assault and battery are barred by the applicable statute of limitations; (ii) plaintiff's claims for intentional infliction of emotional distress are not actionable; (iii) Petrosky was not plaintiff's employer and, therefore, he is not liable under Title VII; and (iv) that plaintiff's claims brought pursuant to 42 U.S.C. § 1983 are barred by the applicable statute of limitations.
This case has its genesis in a relationship between Lori Stilley and a University professor, Anthony R. Petrosky, the exact nature of which is in some dispute. What is known is that Lori Stilley (nee Rittenhouse) matriculated graduate school at the University in its Department of Instruction and Learning, School of Education, in the Fall of 1989. At the suggestion of the chairman of the department, Professor Stephen Koziol, Lori Stilley first met Petrosky in January, 1990, and decided to work with him in applying for a grant for a major research project known as the Assessment Development Laboratory or "ADL" Project. After the grant was awarded, plaintiff was hired to work on the ADL project as a researcher. During her employment on the ADL Project, Lori Stilley attended numerous meetings with Petrosky and traveled with him.
Also, while working on the ADL Project, Lori Stilley began writing her dissertation, utilizing, with permission from Petrosky, data from the ADL Project. During the Spring of 1990, Ms. Stilley decided to change her advisors, from Professor Ogle Duff to Petrosky. From the Spring of 1990 until April 1994, Petrosky served as plaintiff's academic advisor and chair of her dissertation committee.
In October 1992, plaintiff was found to have manipulated the data for her dissertation study. While the record discloses that some members of her Dissertation Committee believed plaintiff should be severely reprimanded,
the Committee, including Petrosky, decided to allow plaintiff the opportunity to complete her dissertation. At that time, plaintiff opted to resume with her original topic; however, in late summer or early fall of 1993, Plaintiff elected to begin a different dissertation topic, with Koziol serving as the chairperson of this committee.
Funding for the ADL Project expired in August, 1993, and the employment of all persons working on the Project was terminated. In September, 1993, however, additional funding was secured by the University and a short-term addition to the Project commenced. Initially, Ms. Stilley was not continued on this additional work, but in February 1994, Petrosky hired her to work on the ADL extension as a consultant.
Plaintiffs moved to Harrisburg, Pennsylvania, in October, 1993. The majority of her work as an independent contractor on the ADL extension was completed from her home in Harrisburg. Accordingly, during her employment as an independent contractor, Ms. Stilley had very little, if any, contact with Petrosky.
Plaintiffs allege that Lori Stilley was subjected to unwelcome acts of verbal and physical sexual harassment and sexual discrimination, both as a student and employee, by Petrosky during the period from January, 1990 through May, 1994. As time progressed, according to plaintiffs, the abuse greatly accelerated both in terms of frequency and in terms of intrusiveness. In addition to an increase in sexual harassment and sexual discrimination by Petrosky, plaintiffs contend that in retaliation for her rejection of his advances, Petrosky began to engage in retaliatory conduct towards her. For example, according to plaintiffs, Petrosky imposed unfair and improper requirements for Ms. Stilley's first dissertation overview and actually sabotaged her second dissertation overview.
Plaintiffs contend that the effect of Petrosky's harassment continues as Lori Stilley has been excluded from writing a text book about the ADL Project, such exclusion clearly being in retaliation for her rejection of Petrosky's advances.
Rule 56(c) of the Federal Rules of Civil Procedure reads, in pertinent part, as follows:
[Summary Judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
In interpreting Rule 56(c), the United States Supreme Court has stated:
The plain language . . . mandates entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
An issue of material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court must view the facts in a light most favorable to the non-moving party and the burden of establishing that no genuine issue of material fact exists rests with the movant. Id. at 242. The "existence of disputed issues of material fact should be ascertained by resolving 'all inferences, doubts and issues of credibility against the moving party.'" Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (quoting Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870. 874 (3d Cir. 1972)). Final credibility determinations on material issues cannot be made in the context of a motion for summary judgment, nor can the district court weigh the evidence. Josey v. Hollingsworth Corp., 996 F.2d 632 (3d Cir. 1993); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224 (3d Cir. 1993).
When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing' -- that is, pointing out to the District Court -- that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. If the moving party has carried this burden, the burden shifts to the non-moving party who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Petruzzi's IGA Supermarkets, 998 F.2d at 1230. When the non-moving party's evidence in opposition to a properly supported motion for summary judgment is "merely colorable" or "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.
"One of the most common forms of evidence used on a summary judgment motion is affidavits . . . in support of or opposition to a Rule 56 motion. . . ." Wright, Miller & Kane, 10A Federal Practice and Procedure, § 2722, at 54. Hearsay evidence contained in affidavits and deposition testimony may be sufficient to survive summary judgment motion unless such evidence clearly would not be admissible at trial. Clark v. Commonwealth of Pennsylvania, 885 F. Supp. 694, 709 n.3 (E.D. Pa. 1995)(citing Petruzzi's IGA Supermarkets, 998 F.2d at 1234 n.9).
A. Count I - Assault and Battery
Defendant Petrosky argues that plaintiff's claims should be dismissed as they are barred by the applicable statute of limitations.
The record reflects that plaintiffs have not responded to any of the arguments presented by defendants on this issue.
Because the instant case arose within the Commonwealth of Pennsylvania, the Court must apply the applicable Pennsylvania law and statute of limitations to the state law claims raised in plaintiffs' Complaint. Under common law, any offensive contact, however minor, constitutes a battery. Kedra v. City of Philadelphia, 454 F. Supp. 652, 672 (E.D. Pa. 1978); see also Restatement (Second) of Torts, §§ 13-20 (1965) . "Under Pennsylvania law, an assault occurs when one acts with the unprivileged intent to put another in reasonable and immediate apprehension of a harmful or offensive conduct and which does cause apprehension." Proudfoot v. Williams, 803 F. Supp. 1048, 1054 (E.D. Pa. 1992) (citing Cucinotti v. Ortmann, 399 Pa. 26, 159 A.2d 216, 217 (Pa. 1960)).
In Pennsylvania, an action for assault and battery must be commenced within two years of knowledge of injury. 42 Pa. C.S.A. § 5524(1). The statute of limitations begins to run when a plaintiff knows or reasonably should know that he or she has been injured and that the injuries were caused by the other party. Resolution Trust Corp. v. Farmer, 865 F. Supp. 1143, 1150 (E.D. Pa. 1994).
The record describes numerous incidents of non-consensual touching by Petrosky during the period from 1990 through September 1992. However, the record is devoid of any references to incidents where Plaintiff experienced reasonable apprehension of non-consensual touching and/or actual touchings by Petrosky after September 1992. Plaintiff did not file the instant action until March 13, 1995; more than two years following the last incident of any alleged assault or battery. Therefore, plaintiff's claims for assault and battery are ...