2. Defendant's Legitimate, Non-Discriminatory Reasons
Defendant asserts as its legitimate, non-discriminatory reason
for Plaintiff Kelly's written reprimand the fact that he failed
to call in sick on a day he did not report to work. As to
Plaintiff Schmidt, Defendant claims that Plaintiff Schmidt's
assignments were no more difficult than those of any other
employee in Plaintiff Schmidt's job classification.
3. Plaintiffs' Evidence of Pretext
Once the employer produces a legitimate, non-discriminatory
reason, Plaintiffs must show both that the offered reason is
false and that retaliation was the real reason for the adverse
employment action. Krouse v. American Sterilizer Co.,
126 F.3d 494, 501 (3d Cir. 1997). At this point, Plaintiffs point to the
same evidence that was used to establish the causation element of
the prima facie case. This evidence consists of testimony by Mr.
Lippman that he would not normally have issued a reprimand letter
to an employee who failed to call in sick just one time, but that
he did so in Plaintiff Kelly's case because of the pending EEOC
charges, and testimony by Mr. McKeever that MK retaliated against
Plaintiff Schmidt by assigning him difficult or dangerous jobs
with the intent that he would resign after a time of performing
such assignments. (See Pl.'s Resp., Ex. A., p. 192-93, Ex. J.,
p. 21) A reasonable fact finder could conclude from this evidence
that retaliation was the true reason for MK's conduct.
C. Intentional Infliction of Emotional Distress Claim
Plaintiff Schmidt, but not Plaintiff Kelly, contends that
Defendant intentionally inflicted extreme emotional distress upon
him when it "embarked on a premeditated campaign to force his
constructive discharge." (Pl.'s Resp., p. 37).
In Chuy v. Philadelphia Eagles Football Club, the Third
Circuit predicted that the Pennsylvania Supreme Court would adopt
the Restatement (Second) of Torts as the governing law in
analyzing the tort of intentional infliction of emotional
distress. Chuy v. Philadelphia Eagles Football Club,
595 F.2d 1265, 1274 (3d Cir. 1979). Section 46(1) of the Restatement
outlines this intentional tort as follows: "One who by extreme
and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from
it, for such bodily harm." Restatement (Second) of Torts § 46(1)
(Main Vol. 1963-64). The Third Circuit has indicated that the
standard for bringing such a claim is significant. The conduct
charged 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) cert. denied 498 U.S. 811, 111 S.Ct. 47, 112 L.Ed.2d
In this case, Plaintiff Schmidt alleges instances of particular
conduct coupled with retaliatory animus taken by Defendant.
First, Plaintiff Schmidt alleges that he was assigned to more
difficult tasks than he had previously been assigned. Second,
Plaintiff Schmidt alleges that because he was not given equipment
necessary to effectively and safely perform his assigned tasks,
he was placed in physical danger. It is sufficient to examine
only Plaintiff Schmidt's second allegation.
Plaintiff Schmidt alleges that, in retaliation for his filing
EEOC and PHRC charges, he was assigned to a job that exposed him
to serious physical injury. Specifically, Plaintiff Schmidt
contends that he was sent to repair a "flooded elevator" without
equipment necessary to determine whether there was an electrical
current in the water. (Def.'s Mem., Ex. H., p. 68-69).
Consequently, when Plaintiff Schmidt attempted to repair the
elevator, he received an electrical shock. Id.
Taking the facts in a light most favorable to Plaintiff
Schmidt, Defendant's conduct is not only retaliatory, but in
disregarding the risk of physical injury to Plaintiff Schmidt, it
also contains the necessary element of outrageousness to sustain
an intentional infliction of emotional distress claim. Cox, 861
F.2d at 395.*fn6
An appropriate order follows.
AND NOW, this 22nd day of October, 1999, it is hereby
ORDERED that Defendant's Motion for Summary Judgment (doc. no.
33) and Plaintiffs' Motion to Strike Defendant's Reply Brief in
Support of its Motion for Summary Judgment (doc. no. 40) are
AND IT SO ORDERED.