Louise HOY, Appellant, v. Dominick ANGELONE, Gregory Thomas and Village Super Market, Inc. d/b/a Shop-Rite of Easton, Appellees.
Supreme Court of Pennsylvania.
Argued Feb. 3, 1998. Decided Nov. 24, 1998.
720 A.2d 745
Richard E. Stabinski, Philadelphia, for Dominick Angelone, et al.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
OPINION
CAPPY, Justice.
In this appeal, we address important issues regarding sexual harassment litigation under the Pennsylvania Human Relations Act (the Act)1 and under the common law tort of the intentional infliction of emotional distress. For the reasons that follow, we affirm the decision of the Superior Court and
We granted allocatur to address four issues. The first issue involves the availability of punitive damages under the Act. The second and third issues raise the propriety of the award of counsel fees and costs to a prеvailing plaintiff under the Act, and the relevance of weighing the financial resources expended by a defendant as a factor in denying the award of such fees. The final issue is whether it is proper to consider the absence of retaliatory conduct when evaluating a claim of intentional infliction of emotional distress.
A brief recitation of the facts is necessary to resolve the issues raised in this appeal. Appellant, Ms. Louise Hoy, was employed by Appellee, Village Super Market, Inc. d/b/a Shop-Rite of Easton (Shop-Rite), as the only female meat wrapper in the store‘s meat department. Appellant‘s tenure with Shop-Rite began in September of 1972 and continued through August of 1994, when the store closed. Appellee Dominick Angelone‘s (Angelone) employment with Shoр-Rite began in 1972. Angelone was first employed as a meat cutter and, in 1980, was promoted to the position of “chief journeyman.” He also held the title of “meat manager.” Defendant, Gregory Thomas,2 became the store manager of Shop-Rite in 1980 and remained in that position at all times relevant to this case. Thomas’ responsibilities included supervision of the meat department.
The testimony at trial established that Angelone subjected Appellant to various forms of abusive treatment. Such behavior included sexual propositions, vile and filthy language, off-color jokes, physical contact with the back of Appellant‘s knee, and the posting of sexually suggestive pictures. Angelone did not disagree that the conduct occurred, rather, he asserted that such behavior was accepted and welcomed by Appellant.
In 1992, Appellant took medical leave from her job in order to receive psychiatric treatment. Appellant‘s treating physi
On May 13, 1993, Appellant filed a two count complaint against Shop-Rite, Angelone, and Thomas. Count one alleged unlawful discrimination in violation of the Act. Count two alleged an intentionаl infliction of emotional distress. After a trial by jury, a verdict was returned in favor of Appellant. Specifically, the jury found that Angelone engaged in conduct constituting sexual harassment toward Appellant; that Angelone was a supervisory employee during the alleged incidents; that Thomas was aware, prior to February, 1992, of the sexual harassment of Appellant and failed to remedy the situation; and that Appellant had proven by a preponderance of the evidence that Angelone intentionally inflicted emotional distress upon her.
The jury awarded Appellant $51,000 for her claims under the Act, $25,000 in damages against Angelone for the intentional infliction of emotional distress, $50,000 in punitive damages against Angelone, $25,000 in punitive damages against Thomas, and $250,000 in punitive damages against Shop-Rite.
Subsequently, the trial court granted judgment n.o.v. and struck the punitive damages awards against Angelone and Thomas. Judgment was entered on the remaining verdicts.
Appellant and Appellees Shop-Rite and Angelone appealed to the Superior Court. In a panel decision with one dissent, the Superior Court, finding sexual harassment by Angelone to be so pervasive that Thomas and Shop-Rite had constructive knowledge of the conduct, affirmed the judgment against Shop-Rite under the Act. However, the Superior Court vacated and reversed the judgment against Shop-Rite for punitive damages, finding that punitive damages were not available
The Superior Court also rejected Appellant‘s contention that the trial court abused its discretion in failing to award attorney‘s fees and costs under the Act. Judge McEwen concurred in the result but departed from the rationale of the majority, finding that consideration of the amount of financial resources expended by Appellees was not relevant to the issue of entitlement of counsel fees. We granted Appellant‘s petition for allowance of appeal.
We first consider Appellant‘s claim that she is entitled to punitive damages under the Act. As with all statutory construction, our analysis begins with the language of the statutе. The Act provides in relevant part that:
If the court finds that the respondent has engaged in or is engaging in an unlawful discriminatory practice charged in the complaint, the court shall enjoin the respondent from engaging in such unlawful discriminatory practice and order affirmative action which may include, but is not limited to, reinstatement or hiring of employes, granting of back pay, or any other legal or equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than three years prior to the filing of a complaint charging violations of this act.
While this provision makes no reference to punitive damages, Appellant asks us to interpret the Act to contain an implied right to exemplary damages.
Initially, we note that our Legislаture was free to provide for punitive damages under the Act. Indeed, even a cursory survey of other statutory enactments by our Legislature makes clear that it knew how to provide for punitive damages
In requesting this court to read into the Act the remedy of punitive damages, Appellant focuses on that portion of the above-quoted statute, “any other legal or equitable relief” and submits that in accord with the Act‘s requirement of liberal construction, the Legislature intended a broad reading of the Act‘s remedies. Appellant argues that legal reliеf under the Act includes punitive damages.
We believe that Appellant‘s focus on only one part of the Act‘s remedy section is unduly limiting. Rather the entire relevant language of the statute must be considered to ascertain the Legislature‘s intent. When read in full,
It is critical to note that the Act is remedial in nature. The purpose of the Act is to foster the employment of all individuals in accordance with their fullest capаcities, regardless of their, inter alia, sex, and to safeguard their rights to obtain and hold employment without such discrimination.
Punitive damages are not consistent with this goal of achieving the remedial purposes of the statute and are not a make-whole remedy. Punitive damages are not awarded as an аdditional compensation but are purely penal in nature. G.J.D. v. Geraldine T. Johnson, 713 A.2d 1127, 1998 Pa. Lexis 1275 (1998). As punitive damages are based on a defendant‘s culpability, they are inconsistent with redressing injury. While punitive damages also serve to deter, simply put, we do not consider punitive damages to be consistent with the remedial nature of the Act. We believe that when interpreted in the context of contemplated affirmative action, the phrase “any other legal or equitable relief” does not include punitive damages.
Our interpretation of the Legislature‘s use of the limiting phrase, affirmative action, is buttressed by federal case law.
In sum, we are of the view that the Legislature‘s silence on the issue of punitive damages, together with the statutory language, interpreted consistent with the laws of statutory construction and in the context of the nature and purpose of the Act, requires the conclusion that the Legislature did not intend to permit the award of exemplary damages. Although we believe that our interpretation of the Act disposes of the issue of punitive damages, we will nevertheless address the other arguments advanced by the parties.
Appellant relies upon this court‘s decision in Pennsylvania Human Relations Commission v. Zamantakis, 478 Pa. 454, 387 A.2d 70 (1978) for support. Appellant contends that the Zamantakis court‘s assertion that “[l]egal or equitable relief includes damages for humiliation and mental anguish”
Appellant and amici also point to federal decisional law interpreting the Act with respect to punitive damages. The federal courts that have addressed this issue are split, however, the recent trend is to find that punitive damages are a permitted award under the Act.6 While we often turn to decisions by our brethren on the federal bench to seek their interpretation of state law that we have not had the opportunity to address, it is axiomatic that these decisions are not binding and that this court is the final arbiter of state law. Additionally, none of the federal courts have undertaken the kind of detailed statutory analysis that we have engaged in
Both parties point to federal anti-discrimination statutes and argue that federal law supports their respective positions. While reference to federal enactments regarding discrimination is often instructive, with respect to the specific issue before us, we find that federal enactments are distinguishable from the unique language of the Act and are of limited assistance.7
We are not convinced that the Act is now stripped of sufficient means to redress and eliminate discrimination. The courts have broad authority to fashion remedies without resort to punitive damages. Indeed, the Act permits, inter alia, injunctive relief, reinstatement, hiring and an award of back pay which “serves the dual purpose of discouraging discrimination and of restoring the injured party to his or her pre-injury status.” Williamsburg Community School District v. Pennsylvania Human Relations Commission, 99 Pa.Cmwlth. 206, 212, 512 A.2d 1339, 1342 (1986). Thus, punitive damages are not absolutely necessary to achieve the Act‘s goals of eliminating discrimination and redressing injury.
While it can be persuasively argued that punitive damages are entirely appropriate, and even necessary, we do not sit as a super legislature. In the absence of express statutory language or any further legislative guidance, we hold that punitive damages are not available under the Act. That being the case, we affirm the decision of the Superior Court.
We now turn to the issue of whether the trial court abused its discretion in refusing to award counsel fees and costs to Appellant as the prevailing plaintiff in her claim under the Act. The gravamen of Appellant‘s argument is that she is entitled to attorney‘s fees and costs as part of the available remedies undеr the Act.8 To resolve this issue we again look to the language of the Act. Section 962(c.2) of the Act specifi-
If, after a trial held pursuant to subsection (c), the court of common pleas finds that a defendant engaged or is engaging in any unlawful discriminatory practice as defined in this act, the court may award attorney fees and costs to the prevailing plaintiff.
Appellant and amici argue that this provision should mandate the award of attorney‘s fees and costs. We disagree. Use of the term “may” signals the legislature‘s intention to rest the award of counsel fees and costs within the discretion of the trial court. This interpretation is in accord with the statutory construction act which mandates that when the terms of a statute are clear and free from ambiguity, the court shall not disregard the letter of the statute to pursue its spirit.
Appellant and amici argue that analogous federal law points to an award of attorney‘s fees. Specifically, Appellant argues that an analogous provision of Title VII of the Civil Rights Act of 1964,
First, we note that we are interpreting a Pennsylvania statute. While we may look to our federal brethren for guidance in interpreting like statutory provisions, we are certainly not bound by these enactmеnts, or decisions relating thereto, in interpreting this Commonwealth‘s statutes. Second, as noted above, we believe that the Act clearly and unambiguously states that an award of attorney‘s fees rests within the sound discretion of the trial court. There is no presumption of attorney‘s fees and costs under the statute. Likewise, the Act does not require the existence of special
The standard for an abuse of discretion has recently been clarified in this court‘s dеcision in Paden v. Baker Concrete Construction, Inc., 540 Pa. 409, 658 A.2d 341 (1995). In Paden, this court set forth the heavy burden that a party complaining of the exercise of a court‘s discretion must meet noting that “an abuse of discretion may not be found merely because the appellate court might have reached a different conclusion, but requires a showing of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.” Paden, 540 Pa. at 412, 658 A.2d at 343.
After review of the record, we do not believe that the trial court committed an abuse of discretion when it denied counsel fees to Appellant. The Superior Court noted that Appellant received a fairly substantial monetary recovery against Shop-Rite for its violation of the Act. Additionally, as noted by Judge McEwen in his concurrence, the violation of the Act was fairly debatable, as the evidence was not overwhelming. The trial court weighed the verdict against the evidence and determined, in its discretion, that an award of counsel fees was not appropriate.
We do not find the trial court‘s determination that attorney‘s fees and costs were not appropriate to show manifest unreasonableness, partiality, prejudice, bias or ill-will, or such lack of support as to be clearly erroneous. Thus, even if we would have reached a different conclusion had the decision been ours in the first instance, it is not for an appellate court to substitute its discretion for that of the trial court. We cannot say that it was an abuse of discretion for the trial court to rule as it did.9
Our final issue under the Act is whether the substantial expenditure of financial resources in defending a sexual harassment lawsuit is a permissible consideration in denying counsel fees and costs to a prevailing plaintiff. In finding that the trial court did not abuse its discretion in not awarding Appellant counsel fees and costs under the Act, the Superior Court noted that Shop-Rite expended a substantial sum of money in defending the law suit. Judge McEwen in the concurrence opined, and Appellant argues, that consideration of the amount of resources exрended by Shop-Rite was inappropriate. We agree.
There are a number of reasons why the financial expenditures in defense of a complaint of sexual discrimination is not an appropriate consideration in determining an award of attorney‘s fees and costs. Most importantly, such a consideration would discourage victims of discrimination from vigorously
Thus, we hold that in determining an award of attorney‘s fees and costs for a prevailing plaintiff, consideration of the financial resources expended by a defendant in addressing a victim‘s complaint of discrimination is improper.
Finally, we address Appellant‘s common law claim for the intentional infliction of emotional distress. The Superior Court found that the trial court erred in denying Appellee Angelone‘s motion for judgment n.o.v. with respect to this claim. While the court found that the record established a sexually hostile work environment, it found that the record did not establish the requisite outrageousness required to recover under this theory of law. Specifically, the Superior Court found that the record was devoid of any evidence of retaliation against Appellant. Thus, the court found the evidence to be insufficient to allow recovery.
Appellant contends that the Superior Court erred in requiring a showing of retaliatory conduct in order to recover under this theory of law. Appellant argues that the Restatement (Second) of Torts §46 sets forth the requirements of the tort of intentional infliction of emotional distress, otherwise known as the tort of outrageous conduct causing severe emotional distress. This tort is defined as follows:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
Cases which have found a sufficient basis for a cause of action of intentional infliction of emotional distress have had presented only the most egregious conduct. See e.g., Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970)(defendant, after
Cases regarding this tort in the employment context have been few. As the Third Circuit in Cox v. Keystone Carbon, 861 F.2d 390, 395 (3rd. Cir.1988) noted, “it is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress.” In the later case of Andrews v. City of Philadelphia, 895 F.2d 1469, 1487 (1990), the Third Circuit summarized case law regarding this tort in the area of sexual discrimination.
[A]s a general rule, sexual harassment alone does not rise to the level of outrageousness necessary to make out a cause of action for the intentional infliction of emotional distress. As we noted in Cox, 861 F.2d at 395-96, ‘the only instances in which courts applying Pennsylvania law have found conduct outrageous in the employment context is where an employer engaged in both sexual harassment and other retaliatory behavior against an employee.’ See Bowersox v. P.H. Glatfelter Co., 677 F.Supp. 307, 311 (M.D.Pa. 1988). The extra factor that is generally required is retaliation for turning down sexual propositions.
In light of recovery for the tort of intentional infliction of emotional distress being reserved by the courts for only the most clearly desperate and ultra extreme conduct, we believe that the factor of retaliation is an entirely appropriate
To the extent that the Superior Court decision can be interpreted to mandate retaliatory conduct, such a reading of that court‘s opinion is rejected. We hold that consideration of retaliation in the context of a claim for the intentional infliction of emotional distress is one of a number of factors to be used in assessing such a claim. By regarding retaliation as a weighty factor, but not a mandated factor, we allow for the rare case in which a victim of sexual harassment is subjected to blatantly abhorrent conduct, but in which no retaliatory action is taken.
In the case sub judice, the record establishes sexual harassment and a sexually hostile work environment. This harassment included 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. While we are well aware that sexual harassment is highly offensive and unacceptable conduct, the conduct exhibited by Appellees, while unacceptable, was not so extremely outrageous, and not akin to the cases noted above, that would allow for recovery under this most limited of torts. Importantly, there is absolutely no evidence that Appellees retaliated against Appellant. Thus, while we condemn in the strongest terms the type of conduct exhibited by Appellees, we are constrained to find that in applying the requirements of this circumscribed tort to the facts of this case, the Superior Court did not err in finding that Appellees’ behavior did not allow recovery for the intentional infliction of emotional distress.
For the above stated reasons, the decision of the Superior Court is hereby affirmed. The matter is hereby remanded to
Justice NIGRO files a concurring and dissenting opinion.
NIGRO, Justice, concurring and dissenting.
I join the majority‘s decision regarding the availability of punitive damages under the Pennsylvania Human Relations Act and the award of counsel fees under the Act. I dissent from the majority‘s conclusion that the facts of this case are not sufficiently egregious to support the jury‘s finding that Appellant‘s supervisor is liable for intentional infliсtion of emotional distress.
Appellant‘s claim for intentional infliction of emotional distress is based upon her supervisor‘s behavior in the workplace, which included vile language, sexual propositions, off-color jokes, the posting of sexually suggestive pictures and his physically touching her. It was established at trial that as a result of this behavior, Appellant took medical leave from work to receive psychiatric treatment.
The gravamen of the tort of intentional infliction of emotional distress is outrageous conduct on the part of the tortfeasor. Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 190, 527 A.2d 988, 991 (1987). The Restatement (Second) of Torts § 46 provides:
Outrageous Conduct Causing Severe Emotional Distress
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
In describing what constitutes extreme and outrageous behavior, the Restatement provides in part:
Liability has been found only where the conduct has been 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 community.
Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.
Id. § 46, Comment d.
In Kazatsky, this Court reviewed these provisions of the Restatement. However, because the Court found that the plaintiff had presented no evidence that she sought medical assistance as a result of her alleged emotional distress, it decided that a compulsory nonsuit was properly entered against her. 515 Pa. at 197, 527 A.2d at 995. In light of its decision, the Court left to another day whether it would adopt Section 46 of the Restatement. 515 Pa. at 184, 527 A.2d at 989.
In the present case, Appellant established the existence of her alleged emotional distress with competent medical evidence. At issue is whether Appellant‘s supervisor‘s conduct in the workplace was sufficiently outrageous to support the jury‘s finding of intentional infliction of emotional distress.
Appellant testified at trial about her supervisor‘s vile language, sexual propositions, off-color jokes, and physical touching at work. When asked to give the jury some examples of what her supervisor said to her, Aрpellant stated:
A. He called me a fucking cunt, a fucking pussy, a bitch.
Q. Was this—were these isolated instances that only happened three times?
A. No. It happened more than that.
Q. What response did you give to being called these names?
A. On several occasions, I told Dominick [her supervisor] that some day I would have him in court for sexual harassment.
Q. Is that because you wanted him to stop saying these things?
A. I wanted him to stop. I wanted him to realize that was wrong.
Q. And what response did you get from that statement that you made to him?
A. He laughed.
Q. He laughed?
A. He laughed.
Q. Did he keep calling you a fucking pussy?
A. Yes.
Q. A fucking cunt and a bitch?
A. Yes.
N.T. 9/28/95 at 248-49. With respect to sexual propositions, Appellant testified as follows about her supervisor:
A. He would say things like let‘s go to the Budget and I‘ll pay the motel, you bring the pizza. He would make remarks like if you‘ve ever had sex with me, you wouldn‘t want anybody else. It‘s not what you have, it‘s how you use it. Things of that nature.
Q. These things happened only once or twice?
A. No. It happened on many occasions.
Id. at 255. One day at work, Appellant had a cereal box in a basket of groceries in her work area. When she left the area аnd subsequently returned, Appellant found “Hi, Lou. I want to get in your pants” written on the box. Appellant testified that her supervisor was there and she believed he wrote the message based upon the handwriting. Id. at 259-60. On another occasion, Appellant testified that a photograph of her supervisor was posted on the wall in her work area. She described the picture as follows:
A. It was a picture of Dominick in his white meat coat and I think he had his white hat on and he was standing in the meat room and he was holding a tenderloin between his legs.
Q. Was he smiling?
A. Yes.
Q. And was there a caption on that picture?
A. Yes.
Q. What did the caption say?
A. If you want a larger piece of meat, see Dom.
Q. And that was—
A. If you need a larger piece of meat, see Dom.
Q. That was posted near your work station.
A. Yes.
Id. at 264-65. Appellant also testified that there was a poster in the work area of a young girl in a cut-off t-shirt and the t-shirt had the caption “Beer busts are better.” Appellant‘s supervisor told salesmen and other people who came into the meat room that it was a picture of Appellant when she was younger. Id. at 269-70. Furthermore, Appellant testified that her supervisor physically touched her on occasion by grabbing her behind her knee in the back of her leg. Id. at 261.
Appellant‘s supervisor‘s behavior in the workplace goes well beyond mere insults and is utterly intolerable in a civilized society. The record amply supports the jury‘s finding of intentional infliction of emotional distress. Thus, I would reverse the Superior Court‘s ruling on this issue.