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A Harrisburg, Pa., federal jury’s award this week of more than $3.2 million in a sexual harassment suit against Federal Express Corp. — including $2.5 million in punitive damages — is sure to lead to a post-trial battle over how much the plaintiff is entitled to keep in light of a $300,000 federal cap on damages. The battle is also likely to be a complicated one due to Pennsylvania case law that bars awards of punitive damages under the Pennsylvania Human Relations Act and a split among federal judges in Pennsylvania on the question of whether there is a private right of action under the Pennsylvania Equal Rights Amendment. The suit, filed by attorney Cynthia A. Locke of the U.S. Equal Employment Opportunity Commission, originally alleged claims only under Title VII for gender discrimination and sexual harassment. Plaintiff Marion Shaub’s private lawyers, Martha Sperling of Silver & Sperling in Doylestown, Pa., and Ralph E. Lamar IV of Collegeville, Pa., later intervened in the case and added a claim of retaliation under Title VII, as well as sexual harassment, sex discrimination and retaliation claims under the PHRA, and a state law claim for intentional infliction of emotional distress. Shaub, a former FedEx tractor-trailer driver, claimed she was harassed by her supervisor and co-workers and that the brakes on her truck were sabotaged on five occasions in an attempt to intimidate her. In its verdict, handed up Tuesday afternoon, the eight-member jury rejected Shaub’s claim that FedEx discriminated against her on the basis of her gender when some of her routes were re-assigned to male drivers. But the jury found in favor of Shaub on her sexual harassment and retaliation claims and also concluded that FedEx was liable for intentional infliction of emotional distress. Shaub was awarded $101,400 in backpay; $290,000 in front pay; $350,000 in compensatory damages for emotional suffering; and $2.5 million in punitive damages, for a total award of $3,241,400. The jury also apportioned some of the elements in the verdict. It said that 60 percent of the compensatory damages were for the employment discrimination claims and that 40 percent of that sum was for the IIED claim. The punitive damages, the jury said, were evenly split between the employment discrimination and IIED claims. FedEx Corp. spokeswoman Sally Davenport said the company will appeal. “We certainly would have liked to have seen the jury find in favor of FedEx. But this is a process, and we’re going to take advantage of the process, just the same as Ms. Shaub,” Davenport said. In post-trial motions, FedEx’s lawyers are sure to be asking that the verdict be molded to account for Title VII’s $300,000 cap on damages. Lamar said the Title VII damages cap will have no effect on Shaub’s award for back and front pay, but instead applies only to the compensatory and punitive damage awards. Lamar said the federal courts have consistently held that trial judges should “maximize” the plaintiff’s recovery when applying Title VII’s damages cap. As a result, he said, the entire award for back and front pay, as well as 60 percent of the compensatory damage award, should come under the PHRA claim. Since half of the punitive damages were awarded on the IIED claim, Lamar said, the battle is likely to focus on the remaining $1.25 million in punitive damages awarded for the employment discrimination claims. Although Pennsylvania case law bars awards of punitive damages under the PHRA, they are allowed under Title VII — but cannot exceed the cap. As a result, Lamar said, FedEx is likely to argue that the punitive damages must be reduced by $950,000. But Lamar said he will be arguing that the entire award should stand since Shaub also alleged a claim under the Pennsylvania Equal Rights Amendment. However, the issue of whether there is a private cause of action under the Pennsylvania ERA is currently in dispute. In a pair of decisions handed down last year, federal judges in the Eastern District of Pennsylvania split on the question. U.S. District Judge Petrese B. Tucker held in Barrett v. The Greater Hatboro Chamber of Commerce that the plaintiff had the right to pursue a claim of sexual harassment under PERA after concluding that it created a cause of action for sexual harassment independent of the Pennsylvania Human Relations Act. But just two days after Tucker’s opinion was handed down, U.S. District Judge Michael M. Baylson dismissed a PERA claim in Ryan v. General Machine Products — a case in which Lamar and Sperling represented the plaintiff — saying he “respectfully disagrees with Judge Tucker.” Baylson noted that the Pennsylvania Supreme Court has not ruled on the issue of whether there is a private cause of action for damages under the state constitution but that the federal courts within the 3rd Circuit have consistently concluded that “there is no such right.” The verdict in Shaub’s case came after an 11-day trial before U.S. District Judge Yvette Kane. According to court papers, Shaub was the only female tractor-trailer driver at FedEx’s facility at Harrisburg International Airport in Middletown, Pa., from 1997 to 2000. During that period, she claims she was subjected to sexual innuendo and harassment and unfairly given poor assignments. The suit alleged that Shaub’s brakes were loosened, the brake lines were cut and the lines were filled with dirt. In each instance, she was able to retain control of the vehicle and no injuries or property damage resulted, the suit said. In the EEOC complaint, Locke alleged that Shaud was subjected to “anti-female remarks” from her male co-workers, including a comment that women should be “barefoot and pregnant” and that she “looked like a porn star.” One male colleague allegedly told Shaub that if she were his daughter, he would “abort her,” according to the suit. Lamar said FedEx could have avoided the suit if it had responded appropriately and quickly to Shaub’s complaints. “If Federal Express had taken this seriously and made a real effort to make it clear that this sort of behavior was unacceptable, maybe they would have been able to nip it in the bud. But they never took those steps,” Lamar said. EEOC regional attorney Jacqueline McNair said the verdict “sends employers a loud and clear message that sex discrimination and retaliation are simply unacceptable.” The decision was the second time in just over a year that a Pennsylvania federal jury has issued a multi-million-dollar verdict against FedEx in a case involving allegations of sexual harassment. In February 2003, a jury in Philadelphia awarded $2.3 million to Kathleen Talbot-Lima after finding the company retaliated against the former supervisor for making a sexual-discrimination complaint. Two months later, the parties settled the lawsuit. Davenport said terms are confidential but that FedEx did not admit any wrongdoing.

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