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A worker who claims she was fired soon after she announced her pregnancy and was later threatened with criminal charges if she did not drop her lawsuit cannot bring a retaliation claim on the basis of the threat, but does have the right to pursue a claim for abuse of process, a federal judge has ruled. In his 21-page opinion in Walsh v. Irvin Stern Costumes Inc., U.S. District Judge Michael M. Baylson found that such a plaintiff cannot make out a prima facie case of retaliation under Title VII because she cannot show that the threat of criminal charges affected her “current or future employment opportunities.” But Baylson found that plaintiff Karen J. Walsh had nonetheless alleged a valid claim of abuse-of-process — even though the charges were never filed — because “an extortionate threat alone may support an abuse of process claim.” According to court papers, Walsh had worked as the Irvin Stern’s Costumes store manager for nearly 14 years when she informed her bosses on Nov. 3, 2003, that she was expecting her first child. The suit alleges that Walsh was fired less than three weeks later and was told by store owner Richard Williamson that the reason was a 15 percent decline from the previous year in Halloween sales and a 25 percent decline in overall sales. But Walsh claims that, as the store’s manager, she knew that sales were about even with the previous year. And after she was fired, the suit alleges, other workers were given raises and increased responsibilities. The suit also alleges that Joyce Williamson frequently made comments that showed her hostility toward female employees who got pregnant and had told customers and employees that Walsh had left due to a pregnancy. Soon after she filed a discrimination complaint, the suit says, Walsh was threatened that unless she withdrew the lawsuit, the Williamsons would press criminal charges of theft. The suit, filed by attorney Marc E. Weinstein, alleges claims of discrimination and retaliation under the Pregnancy Discrimination Act of 1978 and the Pennsylvania Human Relations Act, as well as claims under the Equal Rights Amendment to the Pennsylvania Constitution and a common law abuse-of-process claim. The store’s lawyer, Brian P. Kirby, moved for dismissal of the entire suit, arguing that Walsh had failed to allege sufficient facts to support a claim of pregnancy discrimination. Kirby also argued that the Title VII claim should be dismissed because the store is not covered by the federal law since it has less than 15 employees, and that the retaliation claim failed because Walsh had not made out a prima facie case. The claim under the Equal Rights Amendment also failed, Kirby argued, because it does not allow a private cause of action. Now Baylson has rejected many of Kirby’s arguments, but agreed to dismiss the ERA claim and adopted Kirby’s criticism of Walsh’s retaliation theory. Since the Williamsons never followed through on their alleged threat to file criminal charges, Baylson found that Walsh cannot premise a retaliation claim on the threat. “Had defendants carried out their threat to file charges, it appears plaintiff would have a colorable retaliation charge. This is because a theft conviction, arrest, or even an investigation could certainly adversely affect plaintiff’s future employment opportunities as a store manager in the retail job market,” Baylson wrote. “However, the mere threat to accuse her of theft and seek criminal charges against her, while questionable, simply did not result in any tangible adverse employment consequences to Walsh,” Baylson wrote. Baylson found that the 1997 decision by the 3rd U.S. Circuit Court of Appeals in Robinson v. City of Pittsburgh held that in order to establish an “adverse employment action,” the plaintiff in a retaliation claim must show a nexus to the plaintiff’s employment, meaning that the action taken must affect the plaintiff’s current or future employment opportunities. That holding was fatal to Walsh’s retaliation claim, Baylson said, because “the very nature of an unfulfilled threat means Walsh cannot prove that the defendants’ conduct impacted her current or future employment opportunities as City of Pittsburgh requires.” But the alleged threat remains in the suit because Baylson found that Walsh had stated a valid claim for abuse of process despite the fact that the criminal charges were never filed. Kirby argued that “mere communication” regarding criminal prosecution is not enough — without tangible action — to establish the improper “use” of a legal process. But Weinstein argued that a threat to bring unauthorized charges — combined with the extortionate element that the charges would not be filed if Walsh withdrew her lawsuit — satisfied the elements of an abuse-of-process claim. Baylson sided with Weinstein, finding that Pennsylvania courts have held that the plaintiff in an abuse-of-process claim must show “some proof of a definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process.” Walsh’s claim also finds support in the 3rd Circuit’s 2003 decision in General Refractories Co. v. Fireman’s Fund Insurance Co., Baylson said, which held that an extortion-like purpose was not required to sustain an abuse-of-process claim, but that conduct with the purpose of forcing a plaintiff to abandon its claim would likely suffice. As a result, Baylson concluded that “while defendants may merely have communicated the possibility of criminal prosecution, if, as [Walsh] clearly asserts, this conduct was undertaken to force her to abandon her claim, then plaintiff has alleged sufficient ‘use’ of process for the purposes of her prima facie claim.” The legitimate objectives in prosecuting a criminal theft include punishment, deterrence, incapacitation and rehabilitation, Baylson noted. Baylson found that Walsh “has clearly alleged the required element that defendants’ threat to prosecute ‘perverted’ these objectives because to get plaintiff to forgo her right to sue is ‘not the purpose which it is intended by the law to effect.’”

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