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A worker who claims she was sexually harassed and wins a ruling from a Workers’ Compensation judge that grants her benefits on the basis of a mental disability cannot later use those findings in a jury trial of her Title VII claim, a federal judge in Pennsylvania has ruled. In federal court, such findings do not have “preclusive effect,” U.S. Magistrate Judge Jacob P. Hart of the Eastern District of Pennsylvania held in his 10-page opinion in Heath v. Pennsylvania Board of Probation and Parole. Hart also ruled that the jury can never hear about Kim Heath’s hearings before the Workers’ Compensation judge because any mention of them would have an “unduly prejudicial” effect. “As far as the evidence placed before the jurors in the upcoming trial are concerned, it will be as if the Workers’ Compensation proceeding and Civil Service adjudication had never taken place,” Hart wrote. Hart also rejected the suggestion of Heath’s lawyers, Joseph F. Bouvier and Eugene Mattioni of Philadelphia’s Mattioni Mattioni & Mattioni who urged the judge to “fashion a new rule whereby a Title VII jury may be instructed to give those findings the same ‘substantial weight’ that the EEOC must give.” Heath was hired as a parole agent in 1996 and was transferred to Graterford Prison in 1997 where she worked as an institutional parole agent. But almost immediately, Heath claims, her boss’s boss, James Newton, started making sexual advances. The suit says Newton asked Heath to join him in attending a casting call for the Oprah Winfrey movie “Beloved” that was being filmed in Philadelphia at the time. She says she declined but that he persisted in seeking a date, asking her one week later to join him in attending a performance of his brother’s singing group. She refused that date, too, she says, only to find a free ticket to the event on her desk days later. Heath claims Newton often stood behind her desk and made “sucking sounds,” or would sit next to her despite her protestations that she was busy with work. When he finally got the message that he was being rebuffed, Heath claims, Newton responded by retaliating with extra work assignments. Heath complained and claims that the internal investigation at Graterford revealed that Newton had also harassed other women. After the investigation began, Heath claims she received news of a death threat against her from an inmate who, she says, told her she was being “set up” due to her complaints about Newton. Fearing for her life, Heath claims she asked to be transferred and was given a post in South Philadelphia. But when she reported to the new office, she says, she didn’t even have a desk and there was no work for her to do. Heath claims she ultimately sought psychiatric care because she had nothing to do in her new position. When a psychiatrist diagnosed her as suffering from “acute stress,” she took a leave of absence from work. The suit says state officials later assigned Heath to another office but insisted that she sign a release promising not to file any lawsuits. She says she was fired in April 1999 when she refused to return to work. But Heath scored a major victory when Workers’ Compensation Judge Todd Seelig ruled in her favor and issued a scathing, 38-page decision that said she was entitled to benefits due to the mental disability caused by her “abnormal” work environment. “This judge believes that an experienced parole agent who has attempted on multiple occasions to prevent unwanted sexual advances by a superior unsuccessfully and then is forced to take a position that has no substantial work, no direction or training and is required to sign a release of all litigation in order to return to her pre-injury position qualifies as ‘abnormal’ or ‘extraordinary’ working conditions,” Seelig wrote. Seelig found that Heath’s case was unique because the internal investigation at Graterford had concluded that Newton’s actions created a hostile environment. “This judge refuses to make a finding that this type of behavior should be considered expected or normal for employees,” Seelig wrote. Seelig made some especially damning findings when considering the question of whether Heath was suffering from a “work-related disabling psychological illness.” “The evidence shows that the ongoing nature of Mr. Newton’s unwanted attentions, coupled with [Heath's] inability to get anything done about it without resorting to litigation led to other incidents by the employer that were harmful to [Heath] psychologically,” Seelig wrote. Considering the powerful language used by Seelig, it was no wonder that Heath’s lawyers asked permission to use his findings as evidence in her Title VII case. But Hart said the 3rd U.S. Circuit Court of Appeals has already held that “unreviewed state administrative findings” cannot have preclusive effect in a federal Title VII case. The law on the issue, Hart said, begins with the U.S. Supreme Court’s 1986 decision in University of Tennessee v. Elliott

which discussed the circumstances under which state agency factual determinations are given preclusive effect in subsequent cases brought under federal statutes addressing discrimination. In Elliott, a claimant who had already been determined by a state Administrative Law Judge not to have been subject to racial discrimination, filed a federal action under Title VII and Section 1983. The trial court gave the ALJ’s determinations preclusive effect and granted summary judgment in favor of the university, but an appellate court reversed. The Supreme Court drew a distinction between state administrative decisions which have been reviewed by state courts and those which have not been reviewed. Those that have been reviewed are entitled to “full faith and credit” in federal court, while unreviewed decisions are not. The justices went on to conclude that unreviewed state agency findings are not to be given preclusive effect in subsequent Title VII claims, noting that a Title VII plaintiff is statutorily entitled to a trial de novo after an unfavorable EEOC decision. But the Elliott court went on to decide that the same findings could be given collateral effect in claims brought under Section 1983, or any of the other Reconstruction-era civil rights statutes. As a result, Hart was forced to analyze Pennsylvania law on collateral estoppel because Heath is a state worker and also brought a Section 1983 claim in her sexual harassment suit. In the Pennsylvania courts, Hart said, collateral estoppel is appropriate where: � The issue is decided in the prior adjudication was identical with the one presented in the later action. � There was a final judgment on the merits. � The party against whom the plea is asserted was a party or in privity with a party to the prior adjudication. � The party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action. Heath’s lawyers cited several Pennsylvania cases in which, under this standard, workers’ compensation decisions have been given preclusive effect. But Hart found that none of the cases was “precisely apposite” since none involved a federal statute such as Section 1983. Instead, Hart said, the “more instructive” case was the 3rd Circuit’s decision in Dici v. Commonwealth of Pennsylvania where the court applied the Full Faith and Credit Act to a reviewed Workers’ Compensation decision — as opposed to the unreviewed decision at issue in Elliott — to which the defendant in a Title VII action sought to give preclusive effect. The Dici court refused to give the decision preclusive effect, saying: “The policy of Title VII is to achieve equality of employment opportunities and remedy discrimination in the workplace. By contrast, Pennsylvania’s workmen’s compensation law is designed to define the liability of employers for injuries to employees occurring in the course of employment.” The court went on to note that the procedures used in Workers’ Compensation proceedings are radically different from those used in federal court, since by law, neither state common law nor statutory rules of evidence apply. Hart found the ruling applied well to Heath’s civil rights claims because “like Title VII, the Reconstruction-era civil rights statutes including Section 1983 and Section 1985 seek to remedy discrimination and achieve equality of opportunity. Like Title VII, therefore, the public policies underlying them are completely different than the policy behind the Workers’ Compensation laws.” And the procedural differences between the Workers’ Compensation hearing and Heath’s federal lawsuit “are meaningful,” Hart said. Hart also noted that in the cases in which collateral estoppel was applied to give Workers’ Compensation findings preclusive effect, the findings were usually used defensively, against the plaintiff. “Where, as here, a plaintiff seeks to use collateral estoppel offensively, against the defendant, the United States Supreme Court has decided that a trial court has broad discretion to determine when it should be applied,” Hart wrote. Finally, Hart found that his decision was bolstered by the Pennsylvania Supreme Court’s decision in Rue v. K-Mart Corp. that barred the plaintiff in a defamation case from offensively using the factual findings of an unemployment referee. The Rue court found that “the substantial procedural and economic disparities between unemployment compensation proceedings and later civil proceedings negate the preclusive effect of a referee’s factual findings” due to the “fast and informal nature” of the unemployment compensation proceedings. Hart found that reasoning also applied in the context of workers’ compensation hearings. “Implicit here is the valid concern that the routine use of offensive collateral estoppel will turn administrative hearings which are intentionally designed to be fast and informal for the benefit of the claimant, into full-blown trials, by instilling in defendants a fear that an unfavorable ruling at the administrative stage will preclude any defense in subsequent civil litigation,” Hart wrote.

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