retaliation alleged in the Complaint is "retaliation for
complaining about sex discrimination." (Compl. 22.) This,
however, is not the type of retaliation required to maintain a
claim for intentional infliction of emotional harm. Accordingly,
the Complaint fails to state a cause of action for intentional
infliction of emotional harm and that claim will be dismissed.
C. Pennsylvania Equal Rights Amendment Claim
Defendant argues that Plaintiffs PERA claim should be
dismissed because it is preempted by the PHRA (Mem. Supp.
Partial Mot. Dismiss at 9) and because there is no allegation of
state action in the Complaint (Mem. Supp. Partial Mot. Dismiss
Initially, the Court notes that the PERA contains no state
action requirement. See Bartholomew v. Foster, 115 Pa. Commw. 430,
541 A.2d 393, 396 (1988), affd, 522 Pa. 489,
563 A.2d 1390 (1989); Welsch v. Aetna Ins. Co., 343 Pa.Super. 169,
494 A.2d 409, 412 (1985). Accordingly, Defendant's argument that
Plaintiffs PERA fails for this reason is without merit.*fn6
"The PHRA preempts parties from bringing common law claims for
wrongful discharge based on claims of discrimination." King v.
M.R, Brown, Inc., 911 F. Supp. 161, 168 (E.D.Pa. 1995) (citing
43 Pa. Cons.Stat. § 962(b)). The PHRA does not, however, address
preclusion of claims under the PERA. See McCormack v.
Bennigan's, Civ. A. No. 93-1603, 1993 WL 293895, at *4-*5
(E.D.Pa. July 30, 1993). Indeed, the PERA was not enacted until
1971, sixteen years after the version of § 962(b) containing the
preclusion language was passed. Cf. McNasby v. Crown Cork &
Seal Co., 888 F.2d 270, 281 (3d Cir. 1989) (holding that the
PHRA did not preempt claims under Title VII because, among other
reasons, the PHRA "preceded the enactment of Title VII and the
explosion of federal antidiscrimination litigation by a number
of years. . . . In light of the chronology, it is impossible to
conclude that the Pennsylvania legislature that adopted section
962(b) intended to preclude actions based on federal laws that
did not yet exist.").
Thus, while the PHRA preempts common law remedies for
discrimination, it does not preempt state constitutional claims
pursuant to the PERA. Accordingly, Plaintiff can maintain her
For the foregoing reasons, Defendant's Motion will be granted
in part and denied in part. The Court will dismiss Plaintiffs
third cause of action, which alleges negligent and intentional
infliction of emotional distress. The Court will not, however,
dismiss Plaintiffs fourth cause of action, which alleges
violation of the PERA.
An appropriate Order follows.
AND NOW, this 8th day of January, 2002, upon consideration
of Defendant's Partial Motion to Dismiss (docket no. 4) and
Plaintiffs Response thereto (docket no. 6), for the reasons
stated in the accompanying Memorandum, IT IS ORDERED that the
Motion is GRANTED IN PART and DENIED IN PART as follows:
1. The Motion to Dismiss the third cause of action,
which alleges negligent and intentional infliction
of emotional distress, is GRANTED and that cause
of action is DISMISSED.
2. The Motion to Dismiss the fourth cause of
action, which alleges violation of the Pennsylvania
Equal Rights Amendment, is DENIED.