Bacone v. Philadelphia Housing Authority, CIVIL ACTION No. 01-CV-419 (E.D. Pa. 6/27/2001)
| Decision Date | 27 June 2001 |
| Docket Number | CIVIL ACTION No. 01-CV-419. |
| Parties | STANLEY BACONE and JUDY BACONE, h/w, v. PHILADELPHIA HOUSING AUTHORITY, TONY MILLER, and ANGELA ALLEN. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Stanley Bacone ("Bacone" or "plaintiff"), a PHA Police Officer, and his wife Judy Bacone have sued the Philadelphia Housing Authority ("PHA"), Angela Allen, a former PHA Police Officer, and Tony Miller, a former PHA Police Sergeant. Plaintiffs allege that Bacone was subjected to hostile work environment discrimination and retaliation while employed by the PHA Police Department. Count I of the complaint alleges that PHA violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et. seq. (West 1994 & Supp. 2000). Count II alleges that PHA discriminated against plaintiff in violation of Section 955(e) of the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. §§ 951 et seq. (West 1991 & Supp. 2000). Count III alleges that Allen and Miller violated section 955(e) of the PHRA. Count IV alleges that PHA and Miller aided and abetted the harassment practices of Allen in violation of the PHRA. Count V alleges intentional infliction of emotional distress under Pennsylvania law against Allen and Miller. Count VI alleges loss of consortium under Pennsylvania Law against PHA, Miller, and Allen. Defendants PHA and Allen now move to dismiss Count III of the complaint against Allen, Count IV against PHA, and Counts V and VI in their entirety.
Officer Allen is alleged to have committed several acts of sexual harassment against Officer Bacone, including exposing her breasts to him in public, making uninvited physical contact with his person and making repeated and suggestive requests that Bacone "go home" with her. In addition to direct incidents of harassment, Bacone also alleges that unwelcome sexual comments made by Allen to other department police officers contributed to a hostile work environment at the PHA. The first alleged act of sexual harassment took place in a radio patrol car while Bacone and Allen were on duty on March 5, 1998. The alleged acts of harassment continued until March 19 of that year.
On three occasions Bacone reported Allen's alleged acts of harassment to Miller, who had supervisory authority over Bacone and Allen. It is alleged that Miller did not take action to eradicate the hostile work environment purportedly created by Allen. Only after Bacone filed a written report of Allen's behavior with PHA officials superior to Miller did the PHA begin an investigation of the matter. The investigation was conducted by then-Captain Rosenstein of the PHA police. Plaintiffs claim the investigation was a sham because the PHA should have known Rosenstein was a perjurer and therefore of questionable integrity. No action was taken against Allen following the investigation, and Bacone claims that following the investigation he was transferred to a dead-end job and harassed with unfounded disciplinary charges.
Bacone made a joint filing of his charges against Allen, Miller, and the PHA with the Pennsylvania Human Relations Commission ("PHRC") and the EEOC on July 28, 1998. The PHRC returned a finding of cause letter to Bacone on or about April 19, 1999, confirming there was probable cause to credit his allegations of unlawful discrimination based on his sex by Miller and the PHA.1 Following receipt of the letter, Bacone attempted to obtain a public hearing on his charges through the administrative procedures of the PHRC. The hearing was canceled when Bacone refused to accept a remedy proposed by the PHA that the PHRC deemed appropriate. Bacone then filed his complaint in this Court.
In examining a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the question is whether the plaintiff is entitled to introduce evidence in support of his claims, not whether he will ultimately succeed in presenting them. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Redden v. ContiMortgage Corp., et al., No. 99-4535, 1999 WL 1257280 at *2 (E.D.Pa. Dec. 22, 1999). The Court must accept as true all well pleaded factual allegations in the complaint and all reasonable inferences that can be drawn from them and must view them in the light most favorable to the non-moving party. Scheuer 416 U.S. at 236, see also Rocks v. City of Philadelphia, 868 F.2d 644,645 (3d Cir. 1989). City of Pittsburgh v. West Penn. Power Comp., 147 F.3d 256, 263 (3d Cir. 1998). Since granting a motion to dismiss results in a determination on the merits early in the case, dismissal is limited to instances where "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." H.J. Inc. v. Northwestern Bell Tel. Co. 492 U.S. 229, 249-250, see also Demuro v. Philadelphia Housing Authority, No. 98-3137, 1998 WL 962103, at *2 (E.D.Pa. Dec. 22, 1998).
Allen argues that Count III should be dismissed as to her because she cannot be individually liable to Bacone under section 955(e) of the PHRA. Section 955(e) forbids:
any person, employer, employment agency, labor organization or employe [sic], to aid, abet, incite, compel or coerce the doing of any act declared by this section to be an unlawful discriminatory practice, or to obstruct or prevent any person from complying with the provisions of this act or any order issued thereunder, or to attempt, directly or indirectly, to commit any act declared by this section to be an unlawful discriminatory practice."
"The plain language of the PHRA . . . expressly proclaims that `any person' can be liable." Wein v. Sun Co., Inc., 936 F. Supp. 282, 284 (E.D.Pa. 1996). Plaintiffs argue that, under Wein, section 955(e) claims are not limited to supervisory employees. However, subsequent cases have held otherwise, and support defendants' argument that only supervisory employees can be held individually liable under section 955(e). "Courts have distinguished between nonsupervisory and supervisory employees and imposed liability only on the latter, on the theory that supervisory employees can share the discriminatory intent and purpose of the employer." Destefano v. Henry Mitchell, No. 990CV-5501, 2000 WL 433993, at *2 (E.D.Pa. Apr. 13, 2000), citing Dici v. Pennsylvania, 91 F.3d 542 at 553 (3d Cir. 1996), Frye v. Robinson Alarm Co., No. 97-0603, 1998 WL 57519, at *4 (E.D.Pa. Feb. 11, 1998).
Although Allen was an employee of the PHA, she was Bacone's co-worker, not a supervisory employee. Her direct acts of discrimination do not trigger section 955(e). In Dici, the Court of Appeals for the Third Circuit held that allegations of direct incidents of harassment were "not covered by the terms of § 955(e)." Dici, 91 F.3d at 553. Without proof of "intent to aid" the PHA or her supervisor in their discriminatory practices, Allen cannot be held individually liable under section 955(e). Destefano, 2000 WL 433993, at *2; see also Dici, 91 F.3d at 552-553. Also in support of defendants' position, courts have generally construed the PHRA to be in conformity with Title VII. See e.g. Bonora v. UGI Utilities, Inc., No. 99-5539, 2000 WL 1539077 at *1 n. 1 (E.D.Pa. Oct. 18, 2000). Title VII has been held to preclude individual liability. See Dici, 91 F.3d at 553. For the foregoing reasons, I will dismiss Count III as to Allen.
PHA argues that it cannot be held liable because it "cannot aid or abet its own alleged PHRA violation." (Defs.' Mot. at 9) This is contrary to the court's finding in Dici, 91 F.3d at 552-553, where summary judgment was granted in favor of the alleged harassing co-employee because he was not a proper defendant under section 955(e) but summary judgment was not granted for the supervisory employee because he could still have been liable for aiding and abetting discriminatory practices. Here, if the facts as pled by Bacone are true liability may be imposed against the PHA for violations of the PHRA even though the 955(e) claim against Allen is being dismissed.
As Allen's employer, PHA is a proper defendant under section 955(e). PHA's liability for Allen's conduct under the PHRA follows Title VII's employer liability standards. See Knabe v. Boury Corp., 114 F.3d 407, 410 n. 5 (3d Cir. 1997). Following the Supreme Court's decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998), and the Court of Appeals' decision in Durham Life Ins. Co. v. Evans, No. 97-1683, 1999 WL 16779 (3d Cir Jan. 15, 1999) employer liability under Title VII "depends upon whether the harasser is the victim's supervisor or merely a co-employee." Glickstein v. Neshaminy School District, No. CIV. A. 96-6236, 1999 WL 58578 at *10, (E.D.Pa. Jan. 26, 1999). Under Faragher and Ellerth, if a supervisor's sexual harassment falls within the scope of employment, an employer is automatically liable for his conduct. Id. Although, as Bacone alleges in the complaint, Allen "acted . . . in [her] official capacity[] as officer[], agent[], representative[], employee[], and/or servant[] of the Authority" during the alleged harassment, she is not a supervisor so PHA is not automatically liable for her actions. Compl. ¶ 6. However, "where the harasser is a co-employee . . . the appropriate standard remains as previously defined prior to Faragher and Ellerth by the Third Circuit in Bouton: whether the employer took `prompt and effective remedial...
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