Kryeski v. Schott Glass Technologies, Inc.

• Decision Date: 14 June 1993
• Citation: 626 A.2d 595,426 Pa.Super. 105
• Parties: , 72 Fair Empl.Prac.Cas. (BNA) 821 Sarah A. KRYESKI and Ronald A. Kryeski, Her Husband, Appellants, v. SCHOTT GLASS TECHNOLOGIES, INC. a Corporation.
• Court: Pennsylvania Superior Court

Page 595

626 A.2d 595

426 Pa.Super. 105, 72 Fair Empl.Prac.Cas. (BNA) 821

Sarah A. KRYESKI and Ronald A. Kryeski, Her Husband, Appellants, v. SCHOTT GLASS TECHNOLOGIES, INC. a Corporation.

Superior Court of Pennsylvania.

Argued March 10, 1993.

Filed June 14, 1993.

Ruth S. Borland, Wilkes-Barre, for appellants.

John J. Myers, Pittsburgh, for appellee.

Before McEWEN, JOHNSON and HOFFMAN, JJ.

HOFFMAN, Judge:

This appeal is from the September 15, 1992 order granting appellee Schott Glass Technologies' motion for summary judgment and dismissing all counts of appellants', Sarah Kryeski and Ronald Kryeski, complaint. Appellants present the following six issues for our review:

A. DID THE COURT BELOW ERR IN FINDING THAT THE PLEADINGS AND THE EVIDENCE OF RECORD FAILED TO INDICATE THAT A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER MS. KRYESKI WAS DISCRIMINATED AGAINST BASED ON HER SEX?

B. DID THE COURT BELOW ERR IN FAILING TO FIND THAT THE APPELLEE EMPLOYER COULD BE HELD LIABLE FOR THE TORTIOUS ACTS OF THE EMPLOYEE DIRECTED AT MS. KRYESKI, UNDER THE THIRD PARTY ATTACK EXCEPTION OF THE WORKERS' COMPENSATION ACT?

C. DID THE COURT BELOW ERR IN FINDING THAT THE SEXUAL HARASSMENT AND RETALIATORY BEHAVIOR BY THE APPELLEE EMPLOYER WERE NOT SUFFICIENTLY OUTRAGEOUS CONDUCT AS A MATTER OF LAW TO SUPPORT MS. KRYESKI'S CLAIM OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS?

D. DID THE COURT BELOW ERR IN FINDING THAT MS. KRYESKI'S ALLEGATIONS OF LIBEL AND SLANDER ATTRIBUTED TO THE APPELLEE EMPLOYER (COUNT IV OF COMPLAINT) IN WHICH MS. KRYESKI WAS LABELED AS "CRAZY AND EMOTIONALLY UNSTABLE" WERE INCAPABLE OF BEARING A DEFAMATORY MEANING?

E. DID THE COURT BELOW ERR IN FINDING THAT MS. KRYESKI HAS FAILED TO DEMONSTRATE THE ELEMENT OF PUBLICITY IN HER CLAIM OF INVASION OF PRIVACY?

F. DID THE COURT BELOW ERR IN GRANTING SUMMARY JUDGMENT REGARDING RONALD KRYESKI'S

CLAIM FOR LOSS OF CONSORTIUM IN LIGHT OF THE VALIDITY OF SARAH KRYESKI'S CLAIMS OF PERSONAL INJURY, SEVERE EMOTIONAL DISTRESS, LIBEL AND SLANDER, AND INVASION OF PRIVACY?

Appellants' Brief at 3. for the following reasons, we affirm.

The present action arose as a result of several experiences at appellant Sarah Kryeski's workplace. The incidents involved an unsolicited sexual advance from Dr. Alex Marker, appellant's laboratory supervisor; an affair between appellant's co-worker Christine Yordy and Robert Scheller, appellant's immediate supervisor; and derogatory comments made by Christine Yordy about appellant.

On June 19, 1989, appellant filed a complaint with the Pennsylvania Human Relations Commission. On September 15, 1989, the Commission held a fact-finding conference, but no subsequent action was taken. On February 8, 1991, appellants filed an eight-count complaint against appellee alleging sexual harassment and discrimination, personal injury, intentional infliction of emotional distress, conspiracy, libel and slander, invasion of privacy, and loss of consortium and seeking punitive damages. On January 18, 1991, the trial court granted appellee's preliminary objections in the nature of a demurrer to appellants' civil conspiracy count and appellee's motion for a more specific pleading as to appellants' libel and slander count. In accordance with the court's order, appellants filed an amended six-count complaint. On April 30, 1991 and June 14, 1991, appellee deposed appellant Sarah Kryeski. On March 12, 1992, appellee filed a motion for summary judgment as to all six counts of appellants' complaint. The trial court granted summary judgment as to all counts on September 15, 1992. This timely appeal followed.

Our standard of review of an order granting summary judgment is well-settled. Summary judgment may be properly entered only if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Pa.R.Civ.P. 1035(b).

The moving party has the burden of persuading the court that no genuine issues exist as to the material facts. Summary judgment may be entered only where the case is free from doubt. Hower v. Whitmak, 371 Pa.Super. 443, 445, 538 A.2d 524, 525, allocatur denied, 522 Pa. 584, 559 A.2d 527 (1988). In passing upon a motion for summary judgment, moreover, a court must examine the record in the light most favorable to the non-moving party. Any doubt must be resolved against the moving party. French v. United Parcel Service, 377 Pa.Super. 366, 371, 547 A.2d 411, 414 (1988); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-41, 476 A.2d 928, 930 (1984); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982).

Garcia v. Savage, 402 Pa.Super. 324, 328, 586 A.2d 1375, 1377 (1991) (citing Laventhol & Horwath v. Dependable Insurance Associates, Inc., 396 Pa.Super. 553, 558, 579 A.2d 388, 390 (1990)). We will overturn a trial court's entry of summary judgment only if there has been an error of law or clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988). With these principles in mind, we proceed to examine whether summary judgment was properly granted.

I.

Appellants first assert that the trial court erred in granting summary judgment on the claim for sexual discrimination. Appellants contend that appellee engaged in actions in violation of the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. They claim that they have presented evidence of a discriminatory and "sexually hostile" work environment. This claim is meritless.

"A prima facie case of discrimination under PHRA is established by proving that the complainant is a member of a protected class, has suffered adverse employment action and that others not in the class have been treated differently." Burns Intern. Sec. v. Hum. Rel. Com'n, 119 Pa.Commw. 418, 423, 547 A.2d 818, 820 (1988). Appellants' discrimination claim is twofold.

First, appellant Sarah Kryeski contends that she was discriminated against with respect to the terms and conditions of her employment based on her refusal to accede to sexual advances made by her supervisor, Dr. Marker, at a party in July, 1987. After reviewing this claim in the context of appellant's deposition testimony, we find no issue of material fact that would warrant further proceedings. At her deposition, appellant admitted that "[she and Dr. Marker] spoke about it at work, but I never felt he held it against me." N.T. 4/30/91 at 48. She stated that during a later conversation with Dr. Marker, she told him that "I know what he had tried, and I admired that he never did anything like that or tried anything like that at work." N.T. at 56. She admitted that since July 10, 1987, Dr. Marker had not touched her or made a sexual advance and that she and Dr. Marker had no problems working together. N.T. at 57. Thus, Ms. Kryeski has not demonstrated that a genuine issue exists that she suffered retaliation for her refusing sexual advances of Dr. Marker.

As a second basis for her discrimination claim, appellant asserts that she was discriminated against because of favoritism displayed toward her co-worker whom appellant alleges was having an affair with a supervisor. This allegation alone, however, does not give rise to a claim for gender discrimination. No Pennsylvania state court has yet reviewed a so-called "paramour" sex discrimination allegation. However, the subject has been discussed in the federal courts, and Pennsylvania courts may look to Title VII precedents in interpreting the Pennsylvania statute. Chmill v. City of Pittsburgh, 488 Pa. 470, 491, 412 A.2d 860, 871 (1980) ("Human Relations Act should be construed in light of 'principles of fair employment law which have emerged relative to the federal [statute]' ") (citation omitted)). Accordingly, we will examine the relevant case law.

In Miller v. Aluminum Co. of America, 679 F.Supp. 495 (W.D.Pa.1988), aff'd, 856 F.2d 184 (3d Cir.1988), the plaintiff brought an action similar to the instant one. Miller claimed that her supervisor discriminated against her on the basis of sex by showing favoritism toward another technician, Ms. Hollihan, who was having an affair with the plant manager. Miller did not assert that any of her supervisors conditioned employment benefits on her submission to sexual advances. The district court, following the lead of the Court of Appeals for the Second Circuit, held that "[a]s a matter of law, these assertions do not state a Title VII claim.... [P]referential treatment on the basis of a consensual romantic relationship between a supervisor and an employee is not gender-based discrimination." Id. at 501. The court reasoned that to hold otherwise would underestimate the essential element of disparate treatment based on gender as "male employees in Miller's workplace shared with her the same disadvantage relative to Ms. Hollihan." Id. See also Candelore v. Clark County Sanitation Dist., 752 F.Supp. 956, 959-61 (D.Nev.1990), aff'd, 975 F.2d 588 (9th Cir.1992) (claims of preferential treatment of paramour and harassment for complaining of such treatment not actionable; "preferential treatment of a paramour, while perhaps unfair, is not discrimination on the basis of sex"). Cf. Erickson v. Marsh & McLennan, 117 N.J. 539, 569 A.2d 793 (1990) (in reverse discrimination case, claim that male employee was discharged so that his supervisor's paramour could be promoted combined with single incident of replacing male co-worker with female was insufficient to state claim under New Jersey Law Against Discrimination; consensual, non-coercive relationship between co-worker and supervisor alone does not give rise to hostile environment sexual harassment claim). ¹

Appellants, nonetheless, rely on Drinkwater v. Union Carbon Corporation, 904 F.2d 853 (3d Cir.1990) for the proposition that an office relationship may create a...