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Plaintiffs in Title VII sexual harassment suits cannot also sue for negligent infliction of emotional distress — but they can include a claim for intentional infliction of emotional distress — because the former claim is pre-empted by the exclusivity provisions of the Pennsylvania Workers’ Compensation Act but the latter is not, a federal judge has ruled. In his nine-page opinion in Brooks v. Mendoza, U.S. District Judge Jan E. DuBois of the Eastern District of Pennsylvania granted a defense motion for reconsideration and reversed a prior ruling that had allowed the plaintiff to proceed with both claims. In doing so, DuBois was forced to predict how the Pennsylvania Supreme Court would rule on an issue that has resulted in a split among the lower courts. DuBois found that generally, the PWCA provides the “sole remedy” for workplace injuries and therefore pre-empts any tort claim. But the law also provides “one very narrow exception,” DuBois found, that allows claims relating to injuries that were allegedly inflicted as the result of “personal animus.” After reviewing case law from both the federal and state courts, DuBois concluded that a claim for intentional infliction of emotional distress (IIED) qualifies for the personal animus exception but that a claim for negligent infliction of emotional distress (NIED) can never qualify and, therefore, must always be dismissed. DuBois found that neither the 3rd U.S. Circuit Court of Appeals nor the Pennsylvania Supreme Court had ever ruled on the issue of whether a sexual harassment plaintiff can pursue a claim of intentional infliction of emotional distress. But DuBois found that the Pennsylvania Superior Court and several other judges in the Eastern District of Pennsylvania had allowed IIED claims in sexual harassment suits that are premised on a supervisor’s alleged harassment. In Hoy v. Angelone, the Superior Court held that such harassment is “personal in nature and not part of the proper employer/employee relationship.” DuBois found that three of his Eastern District colleagues — U.S. District Judges Herbert J. Hutton, Jay C. Waldman and John R. Padova — reached the same conclusion, while Senior U.S. District Judge Robert F. Kelly broke the trend and held that IIED claims must be dismissed. The 3rd Circuit “expressed skepticism” about whether an IIED claim fits within the personal animus exception in its 1999 decision in Durham Life Insurance Co. v. Evans, DuBois found. But in the end, DuBois said, the Durham Life court dodged the question and explicitly declined to comment on previous court decisions that had allowed such claims. DuBois decided to follow Hoy and the majority of his colleagues after finding that the harassment alleged by plaintiff Elizabeth Brooks was “personal in nature and sufficiently disconnected from the work situation … to fit within the exception to the PWCA.” Brooks, a former hostess at a Denny’s restaurant in Allentown, Pa., claims in the suit that her manager, Chris Mendoza, taunted and humiliated her with a “vibrating object” he had shoved down his pants, that he pursued her around the restaurant despite her protests and that he uttered obscene remarks. Mendoza denied some of the claim and testified that the incident with the vibrator was an accident. Another employee had given him a portable back massager, he said, and it simply “went off” in his pocket when Brooks was near him. Brooks, who is represented by attorney Michael A. Snover of Easton, Pa., says she was fired in June 1999 after she complained about the incident and insisted that she did not want to work with Mendoza but also did not want to be transferred. Originally, DuBois allowed Brooks to pursue three claims — Title VII, IIED and NIED. But Mendoza’s lawyer, Paul J. Dellasega of Thomas, Thomas & Hafer in Harrisburg, Pa., and Denny’s lawyer, Thomas C. DeLorenzo of Philadelphia-based Marshall, Dennehey, Warner, Coleman & Goggin, urged DuBois to reconsider, arguing that both the IIED and NIED claims are pre-empted by the PWCA. Now, DuBois has partially granted the motions, finding that an NIED claim should always be dismissed from a sexual harassment suit. “Unlike plaintiff’s intentional infliction of emotional distress claim, the personal animus exception does not except negligent infliction of emotional distress claims from the bar of the PWCA,” DuBois wrote. On that point, DuBois found that his own Eastern District of Pennsylvania colleagues were in agreement, citing decisions from Judges Herbert J. Hutton, Louis H. Pollak, and Thomas N. O’Neill Jr.

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