Ascolese v. Southeastern Pa. Transp. Auth.

• Decision Date: 02 November 1995
• Docket Number: Civ. A. No. 93-1461.
• Citation: 902 F. Supp. 533
• Parties: Lisa ASCOLESE v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Louis Van De Beek, Individually and as a Septa Medical Doctor, Judith Pierce, Individually and as Septa Chief Administrative Officer, Richard J. Evans, Individually and as Septa Deputy Chief of Police, Ronald Sharpe, Individually and as Septa Chief of Police.
• Court: U.S. District Court — Eastern District of Pennsylvania

902 F. Supp. 533

Lisa ASCOLESE v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Louis Van De Beek, Individually and as a Septa Medical Doctor, Judith Pierce, Individually and as Septa Chief Administrative Officer, Richard J. Evans, Individually and as Septa Deputy Chief of Police,

Ronald Sharpe, Individually and as Septa Chief of Police.

Civ. A. No. 93-1461.

United States District Court, E.D. Pennsylvania.

September 28, 1995.

As Corrected November 2, 1995.

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Francis J. McGovern, Jr., Merri R. Lane, P.C., Philadelphia, PA, for plaintiff.

Saul H. Krenzel, Saul H. Krenzel & Assoc., Philadelphia, PA, for defendants.

OPINION

LOUIS H. POLLAK, District Judge.

This action was brought by Lisa Ascolese, who was at the time of the events at issue a police officer for the Southeastern Pennsylvania Transportation Authority (hereinafter "SEPTA"). The defendants include SEPTA itself and various SEPTA employees, sued in their official and individual capacities (Dr. Louis van de Beek, Judith Pierce, Richard J. Evans, and Ronald Sharpe). The defendants have filed a motion for summary judgment, seeking the dismissal, on a variety of grounds, of all of the claims made by plaintiff Lisa Ascolese. For the reasons that follow, this motion will be granted in part and denied in part.

I. Background

As is customary in considering a motion for summary judgment, the following scenario is a distillation of the record at this stage of the case which resolves all uncertainties of fact in the light most favorable to the nonmoving party, Ms. Ascolese.

The sequence of events giving rise to Ms. Ascolese's complaint began in 1991, when SEPTA decided to initiate a fitness program for its transit police officers. Under this program, the officers were to undergo a physical examination, including both a medical examination and fitness testing. Officers who were not in appropriate physical condition would then be required to undertake an exercise program.

SEPTA held a luncheon to explain the program to female officers, who it anticipated might have more difficulty with meeting fitness standards than would males. The lunch was attended by, among others, Louis van de Beek, a SEPTA medical officer, and Judith Pierce, Chief Administrative Officer for SEPTA. At this lunch, Lisa Ascolese (and other officers) expressed reservations about the fact that the medical tests required for the program would be administered by SEPTA's medical staff, who Ascolese felt were "not professionals" and motivated by the desire "to keep you from reporting an injury if you are injured."¹ Because the women at the meeting had not had bad experiences with him, Dr. van de Beek offered to conduct the medical examinations of the women officers himself.²

A substantial part of the plaintiff's claims in this suit stem from her allegations regarding Dr. van de Beek's examination of her, which occurred on October 4, 1991. He opened the examination by requesting that she call him "Louie," and asking that she wear her gown open in the front; she chose instead to wear her gown open at the back, under which she wore her bra and a pair of boxer shorts. Van de Beek also told Ascolese that she would be tested for pregnancy; Ascolese objected to such a test as an invasion of her privacy. In fact, a technician had already obtained a urine sample from Ascolese before the examination for use in this pregnancy test. It is not clear, however, whether a pregnancy test was actually conducted.³

In the course of the examination, van de Beek examined Ascolese's hips and spinal column by having her bend over an examining table and move her hips from left to right. Ascolese asserts that during this process, he stood behind her, with his body in contact with her from his waist to his knees, and touched her hips and spine with his hands. According to Ascolese, van de Beek also complimented her on a tattoo on her shoulder during this process. Later in the examination, he told her that he was going to examine her liver and spleen, then tore her paper gown in the front to do so, placing his hand under her boxer shorts; during this examination, his hand allegedly touched her pubic hairline.

Ascolese did not immediately bring the alleged events at this examination to SEPTA's attention. Several days afterwards, however, a SEPTA official, Kathy Blankley, called her to ask some questions about her examination. On that occasion, Ascolese expressed her intention to file a complaint. Ascolese was thereafter called to Judith Pierce's office to discuss the matter. According to Ascolese, Pierce attempted to intimidate her into not pursuing the matter; defended van de Beek's conduct; and stated that it was important to protect van de Beek's reputation. Pierce also supplied Ascolese with a copy of SEPTA's sexual harassment policy and with the card of a representative of SEPTA's Office of Civil Rights, the office charged with enforcing that policy. Shortly thereafter, on October 13, Ascolese was subjected to what purported to be a random drug test, which Ascolese claims was in fact scheduled solely to intimidate her.

The next major chapter in Ascolese's story did not occur until March 15, 1992, when she submitted a memorandum to SEPTA stating that she was pregnant and requesting that SEPTA provide her with a light-duty assignment. Richard Evans, SEPTA's Deputy Chief of Police, responded by requesting through another officer that Ascolese submit a doctor's note containing specific information on her medical condition and listing what limitations should be placed on her activities. Ascolese asserts that the request for specific information on her condition and limitations did not reach her. On March 20, Ascolese obtained a doctor's note which stated merely that she was twelve weeks pregnant and under a doctor's care; she was then told that she needed to submit a more specific note. After having heard that she had complained that her request had been denied, Evans arranged a meeting with Ascolese on March 26 to discuss her request. Ascolese asserts that Evans made a number of remarks at this meeting that expressed a lack of sympathy for her situation, including that she "would look humorous eight months pregnant in uniform," that she should not ask for special treatment, that he did not know why she had to eat every three hours, and that she was a "troublemaker".⁴ Ascolese responded by filing a grievance on March 27, after which she obtained a second doctor's note on April 3, which stated that she "should be given a desk job for the remainder of her pregnancy." SEPTA asserts that it did not receive this note until April 8. Because the second note failed to state what limitations there were on Ascolese's ability to work, Evans's office called plaintiff's doctor directly. On April 13, the doctor wrote a letter stating that Ascolese could work at a desk job with no further limitations; the letter was mailed on April 16, and Evans received it on April 20. In the interim, SEPTA arranged a medical examination for Ascolese at SEPTA's medical office, scheduling it for April 20. The examination itself apparently did not occur; instead, the examining physician endorsed Ascolese's request on the basis of the new note from Ascolese's physician. Ascolese's request for light duty was finally approved on April 21.

Ascolese brings a wide range of claims, appearing in eight counts, based upon the foregoing sequence of events. For purposes of their consideration here, these claims will be grouped into four general classes: (1) claims based on Title VII (42 U.S.C. 2000e et seq.), including sexual harassment, retaliation, and disparate treatment claims; (2) claims under 42 U.S.C. § 1983; (3) claims under 42 U.S.C. § 1985(3); and (4) state-law tort claims. Ascolese names as defendants SEPTA, Dr. Louis van de Beek, Judith Pierce, Richard Evans, and Ronald Sharpe, SEPTA's Chief of Police.

II. Title VII Claims

A. Liability of Individual Defendants to Suit under Title VII

This case presents an unsettled question of federal law — namely, whether a Title VII plaintiff can sue, in addition to the allegedly discriminatory employer, an employee of the employer who is alleged to have participated, in his or her individual capacity, in the alleged discrimination. The Third Circuit has not yet considered this question, and, as a recent opinion by my colleague Judge Joyner demonstrates, judges within the Eastern District of Pennsylvania are divided in their approach to this question. See Caplan v. Fellheimer Eichen Braverman & Kaskey, 882 F.Supp. 1529, 1531 (E.D.Pa. 1995). Three of the courts of appeals that have considered the question have concluded that actions against employees are not permitted.⁵ I agree with that conclusion, but on somewhat more limited grounds than those stated by certain of the other courts that have considered the question. The underlying question arises because of an apparent tension between two statutory provisions each of which seems to have a plausible claim to applicability; in such a case, a court's obligation is to seek an interpretation that accommodates the provisions in a manner that is faithful to the over-all Congressional design and does a minimum of violence — hopefully, none at all — to the legislative text.

The first of the statutory provisions at issue is Title VII's definition of an "employer." Title VII's bar on discrimination in the workplace applies principally to "employers," see 42 U.S.C. § 2000e-2(a); the statute defines an "employer" to be "any person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person," § 2000e(b) (emphasis supplied). Unfortunately, Title VII's legislative history sheds little light on the meaning of the "and any agent" language. However, a literal reading of this provision would appear to permit an action not only against an employer (whether corporate...