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A sex discrimination plaintiff cannot be barred from adding a claim under the Pennsylvania Equal Rights Amendment because nothing in case law or the discrimination statutes can be read to pre-empt a state constitutional claim, a federal judge ruled. In Imboden v. Chowns Communications, U.S. District Judge Bruce W. Kauffman found that while the Pennsylvania Human Relations Act pre-empts plaintiffs from bringing common law claims for wrongful discharge, it cannot be read to bar a PERA claim. Kauffman’s decision could lead to widespread use of PERA as an additional claim in any sex discrimination case. But the defense scored some ground with the ruling because Kauffman dismissed the plaintiff’s claims for negligent and intentional infliction of emotional distress. Relying on a line of cases from the 3rd U.S. Circuit Court of Appeals, Kauffman found that claims of negligent infliction of emotional distress are always barred in employment discrimination cases by the exclusivity provisions of the Workers’ Compensation Act. And while claims of intentional infliction are allowed in theory, Kauffman found they are rare because the 3rd Circuit has strictly limited such claims to cases in which the plaintiff says she was retaliated against for rejecting a sexual proposition. In the suit, plaintiff Linda Imboden claims that soon after she was hired in February 2000 as a “general laborer and driver,” three of her supervisors set out to treat her differently from her male co-workers. Imboden claims she was denied assistance by co-workers when loading heavy equipment and moving supplies, and that her supervisors instructed her to perform tasks alone that male employees routinely performed in groups of two or more. Plaintiff’s attorney Martha Sperling of Silver & Sperling alleges Imboden was also paid less than males who performed the same work, and that she was laid off while men with less seniority than she were kept on. When she complained, Imboden claims the company retaliated against her by transferring her to a different post. Morton, Pa.-based defense attorney Ellen K. Pomfret moved to dismiss the claims for negligent and intentional infliction of emotional distress, saying both are barred by the Pennsylvania Workers’ Compensation Act. Kauffman found that the WCA is the exclusive remedy for all injuries suffered by workers with the exception of injuries that are intentionally caused by a third party who is motivated by a personal desire to harm the worker. As a general rule, Kauffman said, the WCA acts as a bar for both intentional and negligent infliction of emotional distress claims that arise out of an employment relationship. Although the 3rd Circuit has carved out an exception for some claims of intentional infliction of emotional distress, Kauffman found there is no such exception for negligent infliction of emotional distress claims. For a claim of intentional infliction to survive, Kauffman said, the 3rd Circuit requires that the plaintiff plead conduct that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Generally, Kauffman said, “sexual harassment alone does not rise to the level of outrageousness necessary to make out a cause of action for intentional infliction of emotional distress.” The 3rd Circuit, he said, requires an “extra factor” — retaliation for turning down sexual propositions. Since Imboden has no such claim, Kauffman found that she cannot pursue any emotional distress claim. Pomfret also moved for dismissal of the PERA claim, arguing that it is pre-empted by the PHRA. But Kauffman found that the PHRA pre-empts only common law claims for wrongful discharge, and that the statute’s preclusion language should not be read more broadly to bar a state constitutional claim. Kauffman noted that PERA was not enacted until 1971 — 16 years after the enactment of the exclusivity provisions in PHRA. The chronology is important, Kauffman said, because the 3rd Circuit held in its 1989 decision in McNasby v. Crown Cork & Seal Co. that the PHRA did not pre-empt claims under Title VII because the PHRA “preceded the enactment of Title VII and the explosion of federal anti-discrimination litigation by a number of years.” The McNasby court concluded that “in light of the chronology, it is impossible to conclude that the Pennsylvania legislature that adopted Section 962(b) intended to preclude actions based on federal laws that did not yet exist.” Adopting that logic, Kauffman wrote: “Similarly, there is no reason why it should pre-empt the PERA, a subsequently-enacted state constitutional provision.” Kauffman found only two previous decisions that addressed the question of whether the PHRA pre-empts a PERA claim, reaching different results. Pomfret urged Kauffman to follow Harker v. Juniata College, a 1989 Pennsylvania common pleas court decision. But Kauffman opted instead to follow McCormack v. Bennigan’s, a 1993 decision from the Eastern District of Pennsylvania. The Harker decision was flawed, Kauffman said, because it “simply states that the PHRA pre-empts all other remedies for discrimination” — ignoring that it does not pre-empt Title VII — and that it was “apparently based on an erroneous interpretation of Pennsylvania precedent.”

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