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Employment discrimination plaintiffs who want to include any state tort claims in their suits cannot simply wait for the day when the discrimination suit is ready to file because the statutes of limitations on tort claims are not tolled during the time that the Equal Employment Opportunity Commission or a state agency is processing their claim, a federal judge has ruled. In his 12-page opinion in Bacone v. Philadelphia Housing Authority, senior federal Judge Thomas N. O’Neill Jr. of the U.S. District Court for the Eastern District of Pennsylvania also ruled that the Pennsylvania Human Relations Act does not allow for individual liability against an alleged sexual harasser who is not a supervisor, but merely a co-worker. In the suit, Stanley Bacone, a PHA police officer, claims that he was sexually harassed by Angela Allen, a female officer, who exposed her breasts to him in public and repeatedly suggested that he “go home” with her. Bacone, who is represented by attorneys Joseph R. Podraza Jr. and David L. DaCosta of Sprague & Sprague, claims that he complained several times to his sergeant, who ignored his complaints about Allen’s unwanted advances and unwelcome touching. When the PHA did finally investigate his complaint, Bacone claims, it conducted a “sham” investigation and took no action against Allen. Instead, Bacone claims, the PHA retaliated against him by transferring him to a dead-end job and harassing him with unfounded disciplinary charges. Bacone filed discrimination charges in July 1998 with both the EEOC and the Pennsylvania Human Relations Commission (PHRC). In April 1999, the PHRC found there was probable cause that Bacone had been discriminated against on the basis of his sex by both the PHA and Sgt. Toney Miller, but said Allen could not be held liable since she was merely a co-worker. Bacone later attempted to obtain a public hearing before the PHRC, but the hearing was canceled when Bacone refused to accept a remedy proposed by the PHA that the PHRC deemed appropriate. Bacone then filed suit in federal court, citing claims under Title VII and the PHRA as well as a state tort claim for intentional infliction of emotional distress and a loss of consortium claim on behalf of his wife. Allen was named as an individual defendant for “aiding and abetting” the PHRA violation. The PHA’s lawyers, Frank A. Chernak, David E. Brier and Dena B. Calo of Montgomery McCracken Walker & Rhoads, asked the court to dismiss all claims against Allen and to dismiss the state tort claim as time-barred. Judge O’Neill found that the “plain language” of the PHRA statute appears to allow liability against “any person.” Bacone’s lawyers argued that under Wein v. Sun Co., a 1996 decision from the Eastern District, claims of aiding and abetting under Section 955(e) of the PHRA are not limited to supervisory employees. But O’Neill found that “subsequent cases have held otherwise,” and that the weight of authority now holds that “only supervisory employees can be held individually liable under section 955(e).” In Destefano v. Henry Mitchell, O’Neill said, another Eastern District judge said that courts “have distinguished between non-supervisory 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.” Although the 3rd U.S. Circuit Court of Appeals has never squarely addressed the question, O’Neill found that the appellate court suggested the same result in Dici v. Pennsylvania, holding that allegations of direct incidents of harassment were not covered by the terms of Section 955(e). As a result, O’Neill said, “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).” Another reason for dismissing the claim against Allen, he said, is that “courts have generally construed the PHRA to be in conformity with Title VII” and that law does not allow for individual liability. But O’Neill found that Bacone has a valid claim against the PHA under Section 955(e) because his allegations “raise questions about the effectiveness of PHA’s corrective actions.” In the suit, Bacone alleges that in the sham investigation of his charges, a captain attempted to improperly manipulate witnesses to discredit Bacone. O’Neill ruled that Bacone could win on the claim if he can prove that “management level employees had actual or constructive knowledge about the existence of a sexually hostile environment, and failed to take prompt and adequate remedial action.” TORT CLAIM DISMISSED The PHA’s lawyers urged O’Neill to dismiss Bacone’s claim of intentional infliction of emotional distress for three reasons. First, they said, the claim is time-barred by Pennsylvania’s two-year statute of limitations. And under the Political Subdivision Torts Claim Act, they said, the PHA and its employees are immune from such a claim. Finally, they said, the allegations in the suit are not sufficiently “outrageous” to state such a claim. O’Neill agreed with all three arguments. The PHA argued that the limitation period began with Allen’s alleged infliction of emotional distress in March 1998 and had therefore run when the suit was filed in January 2001. Bacone’s lawyers argue that the limitation period didn’t begin until April 1999 when the PHRC issued its finding of cause letter. O’Neill found that the statute of limitations was not tolled during the time that the PHRC was processing the claim. In the 1975 decision in Johnson v. Railway Express Agency, O’Neill said, the U.S. Supreme Court held that the statute of limitations for a Section 1981 claim was not tolled by the processing of a Title VII claim before the EEOC. And in Mincin v. Shaw Packing Co., a Western District of Pennsylvania judge held in 1997 that the Pennsylvania Supreme Court “would not toll the statute of limitations for related state tort claims because of the pendency of a discrimination charge before the PHRC [or] EEOC.” O’Neill found that Bacone didn’t meet any of the requirements for “equitable tolling” of the statute since he was never misled by the defendants or prevented from asserting his rights. Bacone’s lawyers argued they were foreclosed from bringing suit within the limitations period unless they abandoned a possible administrative remedy. The PHRC, they said, would have closed its investigation if Bacone had filed a state law claim of emotional distress in state court within two years of the last alleged act of discrimination by Allen. O’Neill disagreed, saying, “Bacone’s claim of infliction of emotional distress is independent from his discrimination, hostile work environment and harassment claims. Even if the statute of limitations were tolled for the latter by filing with the PHRC and EEOC, the two-year statute of limitations for the emotional distress claim was not.” The claim was also doomed, O’Neill found, since the PSTCA grants immunity to state employees acting within the scope of their employment. CONDUCT NOT ‘OUTRAGEOUS’ And it was triply doomed by the nature of the facts, he said, since they were not outrageous enough to meet Pennsylvania’s heavy burden. “In the employment context, emotional distress claims rarely succeed because the alleged conduct does not usually rise to the necessary level of outrageousness,” O’Neill wrote. The Pennsylvania Supreme Court, he said, held in Hoy v. Angelone that “sexual propositions, physical contact with the back of appellant’s knee, the telling of off-color jokes and the use of profanity on a regular basis, as well as the posting of a sexually suggestive picture” is not outrageous enough to allow for recovery. Having dismissed Bacone’s only tort claim, O’Neill found that his wife, Judy Bacone, cannot pursue a claim for loss of consortium because “under Pennsylvania law, recovery for loss of consortium is limited to occasions where the other spouse may recover in tort.”

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