liability under the common law and Pennsylvania's Political
Subdivision Tort Claims Act ("PSTCA"), 42 Pa.Cons.Stat.Ann. §
8541 et seq. (1998). The PSTCA provides a comprehensive statutory
framework for analyzing official immunity claims by local
governmental agencies and their employees. See Centennial School
District v. Independence Blue Cross, 885 F. Supp. 683, 689-90
(E.D.Pa. 1994); Weinstein v. Bullick, 827 F. Supp. 1193, 1205-07
(E.D.Pa. 1993). An employee of a local agency, such as Gamble
here, is entitled to immunity, see 42 Pa.Cons.Stat.Ann. §
8545 (1998), so long as the harm was not caused by the employee's
willful misconduct. See 42 Pa.Cons.Stat.Ann. § 8550 (1998). In
other words, an employee remains personally liable for
intentional torts. In addition, the PSTCA has no force when
applied to 42 U.S.C. § 1983 suits. See Wade v. City of
Pittsburgh, 765 F.2d 405, 407 (3d Cir. 1985). Since Michelle
brought only such claims, Gamble is not entitled to immunity
IX. Constructive Discharge Claims
Rosetree and Gamble move for summary judgment on the
allegations that Michelle was constructively discharged from
employment when she resigned on June 5, 1998 arguing that: (1)
the allegations of misconduct do not amount to conduct so
intolerable that a reasonable person would be forced to resign,
and (2) Rosetree was not given an opportunity to redress the
situation. A claim for constructive discharge is established by
showing that the employer knowingly permitted conditions of
discrimination in employment "so intolerable that a reasonable
person would be forced to resign." Levendos v. Stern
Entertainment, Inc., 860 F.2d 1227, 1232 (3d Cir. 1988)
(Levendos I), quoting Goss v. Exxon Office Systems Co.,
747 F.2d 885, 887 (3d Cir. 1984). To make this showing, more than
subjective perceptions of unfairness or harshness or a
stress-filled work environment are required. See Clowes v.
Allegheny Valley Hospital, 991 F.2d 1159, 1162 (3d Cir.), cert.
denied, 510 U.S. 964, 114 S.Ct. 441, 126 L.Ed.2d 374 (1993);
Gray v. York Newspapers, Inc., 957 F.2d 1070, 1083 (3d Cir.
1992). However, the U.S. Court of Appeals for the Third Circuit
has held that a constructive discharge may exist "when the
employer is aware that the employee has been subjected to a
continuous pattern of harassment and the employer does not take
any action to stop it." Aman v. Cort Furniture Rental Corp.,
85 F.3d 1074, 1084-85 (3d Cir. 1996).
Here Michelle has produced evidence to show that she was
subjected to a continuous pattern of harassment from Simpson and
later from Hopkins. See (McLaughlins' Mem. Opp'n Mot.
Summ.J.Ex. 18 at unnumbered pages 1-2); (Amended and Supplemented
Complaint Ex. A). Moreover, there is evidence to indicate that
Rose Tree and Gamble were aware of this pattern of harassment.
See Id.; (McLaughlins' Mem. Opp'n Mot. Summ.J.Ex. 21 at 16,
19-21). Finally, evidence exists to show that no action was taken
to stop the pattern of harassment. See (McLaughlins' Mem. Opp'n
Mot. Summ.J.Ex. 18 at unnumbered pages 1-2; Ex. 21 at 16, 19-21);
(Amended and Supplemented Complaint Ex. A). Consequently, the
court cannot say as a matter of law that the pattern of abuse
Michelle alleges would not enable the jury to find that she was
X. Intentional Infliction of Emotional Distress Claim Against
Gamble moves for summary judgment on the intentional infliction
of emotional distress claim (Count VII) alleging that his conduct
subject to this suit was not sufficiently "outrageous."
Michelle's claim for intentional infliction of emotional distress
is governed by the law of Pennsylvania. The Pennsylvania courts,
which have recognized the tort of intentional infliction of
emotional distress, have nevertheless approached this area of law
cautiously, particularly in the employment
context. See Andrews v. City of Philadelphia, 895 F.2d 1469,
1486 (3d Cir. 1990). In order to state a cognizable claim, the
conduct "must be so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
society." Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d
Cir. 1988). Moreover, in the employment context, "sexual
harassment alone does not rise to the level of outrageousness
necessary to make out a cause of action for intentional
infliction of emotional distress." Andrews, 895 F.2d at 1487.
According to Andrews, the "extra factor that is generally
required is retaliation for turning down sexual propositions."
Id. But see Solomon v. City of Philadelphia, 1996 WL 20651,
*3-*4 (E.D.Pa.) (finding that the case law does not restrict the
retaliatory conduct "only to retaliation for refusing direct
Michelle argues that the evidence of Gamble's alleged knowledge
and acquiescence of Simpson's conduct is sufficient for an
intentional infliction of emotional distress claim. She is wrong.
It is clear that this evidence alone falls considerably short of
the requisite outrageousness.
XI. Loss of Consortium Claim Against Gamble
Gamble moves for summary judgment on the loss of consortium
claim (Count IX) contending that Tommy and Michelle's marital
problems were not due to Gamble's conduct. "A loss of consortium
claim arises from the marriage relationship and is grounded on
the loss of a spouse's services after injury." Tiburzio-Kelly v.
Montgomery, 452 Pa. Super. 158, 681 A.2d 757, 772 (1996). When a
defendant injures a married individual, his spouse may recover
for the deprivation of whatever "aid, assistance, comfort, and
society [one spouse] would be expected to render or bestow upon
[the other]." Burns v. Pepsi-Cola Metro., Bottling Co.,
353 Pa. Super. 571, 510 A.2d 810, 812 (1986) (quoting Hopkins v.
Blanco, 224 Pa. Super. 116, 302 A.2d 855, 856 (1973), aff'd
457 Pa. 90, 320 A.2d 139 (1974)). Because there is evidence that
Tommy suffered a loss of Michelle's society and services as a
result of the alleged discriminatory activity at Penncrest which
would include Gamble's conduct in his official capacity, see
(McLaughlins' Mem. Opp'n Mot. Summ.J.Ex. 41 at 2-4), the loss of
consortium claim will not be dismissed.
VII. Punitive Damages
Gamble moves for summary judgment on the requests for punitive
damages contending that the plaintiffs have failed to establish
the outrageousness of Gamble's conduct to entitle them to
punitive damages.*fn7 The request for punitive damages under the
PHRC claim has been withdrawn in light of the decision of the
Pennsylvania Supreme Court in Hoy v. Angelone, 554 Pa. 134,
720 A.2d 745, 751 (1998). Punitive damages requests remain for the
42 U.S.C. § 1983 and the loss of consortium claims against Gamble.
Punitive damages are available in 42 U.S.C. § 1983 actions "when
the defendant's conduct is shown to be motivated by evil motive
or intent, or when it involves reckless or callous indifference
to the federally protected rights of others." Smith v. Wade,
461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983).
Assessment of punitive damages is proper when a person's actions
are of such an outrageous nature as to demonstrate intentional,
willful, wanton or reckless conduct, see Pittsburgh Outdoor Adv.
Co. v. Virginia Manor Apts., Inc., 436 Pa. 350, 260 A.2d 801
(1970), and are awarded to punish that person for such conduct.
See Feingold v. Southeastern
Pa. Transp. Auth., 512 Pa. 567, 517 A.2d 1270, 1276 (1986).
The McLaughlins argue that, as in Feldman v. Philadelphia
Hous. Auth., 43 F.3d 823, 833 (3d Cir. 1994), it should be for
the jury to decide whether Gamble's conduct involved reckless
indifference. The Feldman case, however, is distinguishable. The
court in Feldman determined that the record contained evidence
from which a reasonable jury could reasonably have concluded that
the defendant not only knew about and acquiesced in, but also
directed the violative conduct. See Feldman, 43 F.3d at 833.
Here there is no evidence that Gamble directed Simpson to act as
he did. The evidence of Gamble's knowledge and acquiescence of
Simpson's conduct alone is insufficient to show the requisite
outrageousness for requests for punitive damages against Gamble.
An appropriate Order follows.
AND NOW, this 16th day of June, 1999, upon consideration of
Defendants'*fn8 Motion for Summary Judgment and Plaintiffs'
Response thereto, it is hereby ORDERED that, in accordance with
the foregoing Memorandum, the Motion is DENIED IN PART and
GRANTED IN PART as follows:
1) Defendant Rose Tree's Motion for Summary Judgment
on Counts I, II, III, IV, V and VI is DENIED;
2) Defendant Gamble's Motion for Summary Judgment on
Counts IV, V and IX is DENIED;
3) Defendant Gamble's Motion for Summary Judgment on
Count VI is GRANTED as to personal capacity and
DENIED as to official capacity;
4) Defendants' Motion for Summary Judgment on the
constructive discharge claims is DENIED;
5) Defendant Gamble's Motion for Summary Judgment on
Count VII is GRANTED;
6) Defendant Gamble's Motion for Summary Judgment on
the punitive damages claims is GRANTED.