Dici v. Pennsylvania

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

7-31-1996

Dici v. Comm of PA

Precedential or Non-Precedential:

Docket 95-3579

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 95-3579

__________

JUDITH S. DICI,

Appellant,

v.

COMMONWEALTH OF PENNSYLVANIA;

PENNSYLVANIA STATE POLICE BUREAU

OF LIQUOR CONTROL ENFORCEMENT;

FRANK H. MONACO; STEVEN B. BRISON

__________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(Civil Action No. 93-1845)

__________

Argued May 23, 1996

Before SLOVITER, Chief Judge, SAROKIN and OAKES,

Circuit Judges

(Filed July 31, 1996)

__________

Andrew L. Levy, Esq. (argued)

Dara A. DeCourcy, Esq.

Zimmer Kunz, P.C.

Pittsburgh, PA 15219

Attorneys for Appellant

Thomas W. Corbett, Jr.

Attorney General

Gloria A. Tischuk (argued)

Deputy Attorney General

Calvin R. Koons

Senior Deputy Attorney General

John G. Knorr, III

Chief Deputy Attorney General

Pittsburgh, PA 15219

Attorneys for Appellees

Commonwealth of Pennsylvania,

Pennsylvania State Police, Bureau

of Liquor Enforcement and Frank H.

Monaco

Bryan Campbell, Esq. (argued)

Shelly Bould Campbell, Esq.

Pittsburgh, PA 15219

Attorneys for Appellee Steven

Brison

_______________

OPINION OF THE COURT

_______________

OAKES, Senior Circuit Judge:

Judith S. Dici ("Dici") appeals from a summary judgment

entered on September 27, 1995, by the United States District

Court for the Western District of Pennsylvania in favor of

Appellees Commonwealth of Pennsylvania, Pennsylvania State

Police, Bureau of Liquor Enforcement, Frank H. Monaco ("Monaco"),

and Steven Brison ("Brison"). Dici sought monetary and

injunctive relief under Title VII of the Civil Rights Act of

1964, 42 U.S.C. 2000e et seq. (1994), and the Pennsylvania

Human Relations Act, 43 Pa. Cons. Stat. Ann. 951 et seq. (1991

& Supp. 1994) ("PHRA"), for several alleged incidents of sexual

harassment and racial bias. On appeal, Dici contends that the

district court erred in finding her claims precluded by a

previous state workmen's compensation determination arising out

of many of the same incidents alleged by Dici in this case. Dici

further claims that genuine issues of material fact prevent entry

of summary judgment in favor of the Appellees. For the reasons

stated below, we affirm in part, reverse in part, and remand.

BACKGROUND

Dici began working as a liquor enforcement officer for the

Commonwealth of Pennsylvania on October 19, 1975. In 1978, Dici

became an employee of the Pennsylvania State Police when it

assumed the responsibilities of the Bureau of Liquor Enforcement.

Dici's duties included conducting undercover investigations of

premises licensed by the Commonwealth for violations of the

liquor law and patrolling for underage drinkers. In 1989 and

1990, Dici taught driver training to Liquor Control Enforcement

cadets at the State Police Academy. Appellee Brison was also a

liquor enforcement officer during the time period at issue.

Appellee Monaco supervised Dici during her employment with the

State Police.

Dici claims that on August 26, 1990, she became physically

ill and totally disabled as a result of the Appellees' conduct.

On June 14, 1991, Dici sought state workmen's compensation for

the mental and physical disorders she alleged to have suffered as

a result of sexual and racial harassment on the job. In both the

case presently before us and the state workmen's compensation

proceeding, Dici alleged the following incidents of harassment

and bias:

(1) In November 1988, at a graduation party for

transitional training, fellow employee Jerome Farmer,

who dated Dici in the past, said to Dici "Why don't you

and I get together and I'll show you just how much I

like you." Dici walked away and reported the incident

the next day. Farmer denied the incident occurred.

(2) In August 1989, Farmer said to Dici, "Jude, we'll

get together and I'm sure we can work something out."

Dici declined, and later reported the incident to

Monaco. Monaco informed her that she could not

directly contact the Affirmative Action Officer (whose

duties included handling reports of sexual harassment).

Monaco claimed that when he later learned that officers

could contact the Affirmative Action Officer directly,

he went to Dici and told her of the mistake. Dici

claimed Monaco never approached her with the

information. Farmer denied the incident occurred.

(3) Dici inquired of Monaco about teaching a public

speaking class in Harrisburg. Monaco, who knew that

Dici had also applied for an auditing position in

Harrisburg, said, "Harrisburg, where you want to be."

Dici interpreted this statement to be a comment on her

dating relationship with Captain Clanaghan, a black

officer stationed in Harrisburg. Monaco denied the

statement was made.

(4) On April 15, 1989 (a weekend day), two officers

took Dici into the men's bathroom at the district

office and showed her a drawing of a nude woman

kneeling down and leaning forward with her mouth open.

Dici's name was scrawled above the drawing. Dici

complained to Monaco the following Monday. Dici

claimed Monaco told her that the drawing was flattering

and there was nothing he could do about the drawing

because the bathroom was public. Monaco claimed never

to have made such a statement and notes that the

drawing was removed on that Monday. Other witnesses

stated that the drawing had been on the wall since 1987

and only recently had been modified to include Dici's

name.

(5) In September or October 1989, Dici was a driving

instructor for Brison, an officer trainee at the time.

Brison told Dici that he did not like being taught how

to drive by a woman.

(6) In April 1990, when Brison and Dici were on patrol

for underage drinkers, Brison told Dici that "the only

[underage drinker] you would catch would be one with a

broken leg."

(7) In July 1990, Dici approached Brison to attempt to

reconcile their differences. Brison told Dici that

women did not belong in law enforcement.

(8) On July 20, 1990, while on patrol, Brison said to

Dici, "a lot of good you would try to be if they run

away." Dici responded, "I've got a lot of patience but

it's wearing thin, maybe your ego needs its ass

kicked." Brison replied, "who higher up in the

department do you have in mind to do it for you?" Dici

said, "no one, I'd try it myself."

(9) On July 29, 1990, Dici was informed by another

officer that Brison had made negative racial comments

about a black trainee under Dici's supervision.

(10) Dici claimed to have heard about, but not seen, a

family photograph brought into the office by Brison

depicting Ku Klux Klan members in full regalia.

The workmen's compensation referee found against Dici. The

referee, after hearing many witnesses from both parties over

several days, determined that Farmer's testimony was credible,

and that the first and second incident listed above did not

occur. The referee also found the following: (1) that Monaco's

testimony was credible and that the comments attributed to him by

Dici did not occur as related by Dici; (2) that the incident of

the drawing on the bathroom wall had occurred, but that the

drawing had been promptly removed when Dici brought it to

Monaco's attention; (3) that Brison's racial remarks and the

display of the Ku Klux Klan photo of Brison's family were not

directed toward Dici; and (4) that Brison had made the statements

alleged by Dici in the fifth, sixth, and eighth incidents listed

above, but that these statements had occurred sporadically. The

referee also noted that Brison had been reprimanded for these

comments as well as for his negative racial remarks.

On the basis of these factual findings, the referee

determined that Dici had not been harassed or subjected to an

abnormal working environment, and thus could not recover

workmen's compensation benefits. The Workmen's Compensation

Appeal Board denied Dici's appeal on September 13, 1994, and the

Pennsylvania Commonwealth Court affirmed the Board on August 3,

1995. The Supreme Court of Pennsylvania denied Dici's Petition

for Allowance of Appeal on April 11, 1996.

Dici filed a federal complaint on November 5, 1993. In

addition to the incidents detailed above, Dici claimed the

following episodes of bias occurred:

(1) In October 1989, Monaco refused to assign Dici to

a temporary supervisory position and instead assigned a

male employee with fewer years of experience to the

position.

(2) In May 1990, Dici's vacation leave was twice

cancelled by Monaco for invalid reasons.

(3) On numerous occasions, Dici would work several

days in a row but then be refused long weekends that

were regularly granted to other officers.

(4) On many occasions, Monaco refused to allow Dici to

attend training classes though he allowed male officers

to attend.

(5) Monaco and several other male employees placed

depictions of scantily clad women on the walls and

desks of the office.

(6) On several occasions, male officers referred to

Dici by various degrading terms and made improper

remarks regarding her relationship with Captain

Clanaghan and her friendship with other black officers.

In her first claim for relief, Dici asserted that the

Appellees' behavior discriminated against Dici based upon sex and

racial affiliation in violation of Title VII. In her second

claim for relief, Dici asserted that this same behavior violated

the PHRA. Following discovery, the Appellees moved for summary

judgment. The district court referred the case to a United

States Magistrate Judge for a Report and Recommendation in

accordance with the Magistrates Act, 28 U.S.C. 636(b)(1)(A)

and (B) (1994), and Rules 72.1.3 and 72.1.4 of the Western

District of Pennsylvania Local Rules for Magistrates. The

magistrate judge recommended that summary judgment be granted to

the Appellees, stating that "both counts of Dici's Complaint are

based upon the exact allegations of her workmen's compensation

claim: viz., that she had experienced harassment which was the

result of discrimination which was based upon her gender and her

association with an Afro-American State Police Captain." The

magistrate judge concluded, "[t]he Commonwealth Court's

determination that Dici was not subject to harassment caused by

gender and racial affiliation discrimination precludes

relitigation of this issue in this court." After hearing

objections and responses from the parties, the district court

adopted the magistrate judge's Report and Recommendation and

granted summary judgment to the Appellees.

DISCUSSION

Dici claims that issue preclusion should not bar this case

because the standard for granting a workmen's compensation claim

on the basis of emotional injury in Pennsylvania is different

from the standard for recovering damages under Title VII. Dici

further claims that genuine issues of material fact prevent entry

of summary judgment in favor of the Appellees.

Summary judgment is mandated when "there is no genuine issue

as to any material fact and . . . the moving party is entitled to

a judgment as a matter of law." Fed. R. Civ. P. 56(c); Childers

v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988). In assessing the

evidence, all factual inferences must be drawn in favor of Dici,

the non-moving party. Arab African Int'l. Bank v. Epstein, 958

F.2d 532, 534 (3d Cir. 1992). A court must determine "whether

the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52 (1986); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). On appeal, our review of the

district court's grant of summary judgment in favor of the

Appellees on the ground of issue preclusion is plenary. Arab

African Int'l Bank, 958 F.2d at 534.

I. Issue Preclusion: "[O]nce a court has decided an issue of

fact or law necessary to its judgment, that decision may preclude

relitigation of the issue in a suit on a different cause of

action involving a party to the first case." Allen v. McCurry,

449 U.S. 90, 94 (1980); see also Restatement (Second) of

Judgments 27 (1982). This doctrine is known as issue

preclusion, or, more traditionally, as collateral estoppel. SeeMigra v.

Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1

(1984). Issue preclusion is based upon the policy that "a losing

litigant deserves no rematch after a defeat fairly suffered, in

adversarial proceedings, on an issue identical in substance to

the one he subsequently seeks to raise." Astoria Fed. Sav. &

Loan Ass'n v. Solimino, 501 U.S. 104, 107 (1991); see also 18

Charles A. Wright et al., Federal Practice and Procedure 4416

(1981) ("later courts should honor the first actual decision of a

matter that has been actually litigated"). The doctrine of issue

preclusion reduces the costs of multiple lawsuits, facilitates

judicial consistency, conserves judicial resources, and

"encourage[s] reliance on adjudication." Allen, 449 U.S. at 94.

A federal court examining the preclusive effect of a state

court judgment must look to the Federal Full Faith and Credit

Act, 28 U.S.C. 1738 (1994):

Such Acts, records and judicial proceedings . . . shall

have the same full faith and credit in every court

within the United States . . . as they have by law or

usage in the courts of such State, Territory or

Possession from which they are taken.

Under 1738, a federal court in a Title VII action should grant

preclusive effect to a state court decision upholding a state

administrative agency determination when the state court's

decision would be barred by issue preclusion in subsequent

actions in that state's own courts. Kremer v. Chemical Const.

Corp., 456 U.S. 461, 476-78 (1982).

In Kremer, the specific issue before the Court was whether a

state court decision reviewing a state employment discrimination

agency determination should be preclusive in a later Title VII

case. Though Dici urges that we limit Kremer to cases involving

state employment discrimination agencies, nothing in Kremersuggests such a

narrow reading. Indeed, we have extended Kremerto state court review of

agency decisions in areas other than

employment discrimination. See Edmundson v. Borough of Kennett

Square, 4 F.3d 186, 189-90 (3d Cir. 1993) (state court review of

an unemployment compensation board decision); Rider v.

Pennsylvania, 850 F.2d 982, 994 (3d Cir.) (state court review of

an arbitrator's collective bargaining agreement determination),

cert. denied, 488 U.S. 993 (1988); Gregory v. Chehi, 843 F.2d

111, 121 (3d Cir. 1988) (state court review of Township Council's

wrongful discharge determination). These extensions are

supported by Kremer's statement that "[n]othing in the

legislative history of [Title VII] suggests that Congress

considered it necessary or desirable to provide an absolute right

to relitigate in federal court an issue resolved by a state

court." 456 U.S. at 473. As the Court noted, "[s]tate

authorities are charged with enforcing laws, and state courts are

presumed competent to interpret those laws." Id. at 478.

Thus, by the terms of 1738 and Kremer, the prior state

workmen's compensation decision, affirmed by the Pennsylvania

Commonwealth Court, may preclude Dici's Title VII action. In

order to determine whether issue preclusion applies, we must look

to Pennsylvania law to discover the extent to which the workmen's

compensation decision would be granted preclusive effect in a

later state court proceeding.

In Pennsylvania, issue preclusion "'forecloses re-litigation

in a later action[] of an issue of fact or law which was actually

litigated and which was necessary to the original judgment.'"

Hebden v. Workmen's Compensation Appeal Bd. (Bethenergy Mines,

Inc.), 534 Pa. 327, 330, 632 A.2d 1302, 1304 (1993) (quoting City

of Pittsburgh v. Zoning Bd. of Adjustment, 522 Pa. 44, 55, 559

A.2d 896, 901 (1989)); see also Restatement (Second) of

Judgments, 27 cmt. c (1982) ("An issue on which relitigation is

foreclosed may be one of evidentiary fact, of 'ultimate fact'

(i.e., the application of law to fact), or of law."). Issue

preclusion is appropriately invoked if:

(1) the issue decided in the prior adjudication was

identical with the one presented in the later action,

(2) there was a final judgment on the merits, (3) the

party against whom the plea is asserted was a party or

in privity with a party to the prior adjudication, and

(4) the party against whom it is asserted has had a

full and fair opportunity to litigate the issue in

question in a prior action.

Safeguard Mut. Ins. Co. v. Williams, 463 Pa. 567, 574, 345 A.2d

664, 668 (1975) (citations omitted); Shaffer v. Smith, 673 A.2d

872, 874 (Pa. 1996). The party asserting issue preclusion, here

the Appellees, bears the burden of proving its applicability to

the case at hand. See United States v. Nicolet, Inc., 712 F.

Supp. 1193, 1200 (E.D. Pa. 1989) (citing Allen v. Zurich Ins.

Co., 667 F.2d 1162, 1165-66 (4th Cir. 1982) and Hernandez v. City

of Los Angeles, 624 F.2d 935, 937-38 (9th Cir. 1980)).

There can be no dispute that the second and third criteria

for issue preclusion listed above have been fulfilled. The

judgment of the Commonwealth Court, affirming denial of workmen's

compensation to Dici, became final in August 1995, and the

Pennsylvania Supreme Court denied Dici's Petition for Allowance

of Appeal in April 1996. Also, Dici was clearly a party to the

workmen's compensation proceeding. Thus, the applicability of

issue preclusion in this case depends upon the first and fourth

criteria: whether the issues presented in the workmen's

compensation proceeding are identical to those now before us, and

whether Dici enjoyed a full and fair opportunity to litigate the

issues in the prior proceeding. If either criterion is not met,

we will not apply issue preclusion in this case.

The district court, adopting the Magistrate's Report and

Recommendation, found that "both counts of Dici's complaint are

based upon the exact allegations of her workmen's compensation

claim . . . . [t]he Commonwealth Court's determination that Dici

was not subject to harassment caused by gender and racial

affiliation discrimination precludes relitigation of this issue

in this court." We disagree with the conclusion of the district

court and find that the legal issues presented in the

Pennsylvania workmen's compensation hearing were not identical to

the issues of Dici's Title VII case.

Pennsylvania has adopted an objective test for determining

whether a psychic injury may qualify an employee for workmen's

compensation. Philadelphia Newspapers, Inc. v. Workmen's

Compensation Appeal Bd. (Guaracino), 675 A.2d 1213, 1215 (Pa.

1996). When, as in Dici's case, no physical injury triggers the

psychic injury,

the claimant must prove either (a) that actual

extraordinary events occurred at work which caused the

trauma and that these specific events can be pinpointed

in time or (b) that abnormal working conditions over a

longer period of time caused the psychic injury.

North Huntingdon Township v. Workmen's Compensation Appeal Bd.

(Noble), 165 Pa. Commw. 33, 37, 644 A.2d 227, 229, appeal denied,

539 Pa. 659, 651 A.2d 545 (1994). It appears from the workmen's

compensation record that Dici proceeded under the second of these

prongs, the "abnormal working conditions" theory. The phrase

"abnormal working conditions" is used by the Pennsylvania courts

to distinguish psychiatric injuries that are

compensable because the necessary causal relationship

between the employment and mental disability has been

established from those psychiatric injuries that arise

from the employee's subjective reactions to normal

working conditions.

Martin v. Ketchum, Inc., 523 Pa. 509, 518, 568 A.2d 159, 164

(1990).

In order to meet the objective test for abnormal working

conditions, a worker must show that the employment circumstances

would, by their nature, cause mental injury to one with a

"healthy psyche." Calabris v. Workmen's Compensation Appeal Bd.

(American General Cos.), 141 Pa. Commw. 405, 413, 595 A.2d 765,

769 (1991); see also Marsico v. Workmen's Compensation Appeal Bd.

(Dept. of Revenue), 138 Pa. Commw. 352, 359, 588 A.2d 984, 987-88

(1991) (no compensation for a psychic injury arising from

harassment unless the alleged harassment qualifies as "abnormal

working conditions"). Under the Pennsylvania workmen's

compensation scheme, then, Dici was required to show that the

harassment she suffered was conduct that would cause mental

injury in an average worker with a "healthy psyche."

By contrast, in order to recover under Title VII, a worker

need not demonstrate that the conduct alleged caused a tangible

psychological injury. Harris v. Forklift Systems, Inc., __ U.S.

__, 114 S. Ct. 367, 370 (1993). In Harris, the Court reversed a

lower court's decision that Harris could not recover Title VII

damages. The lower court had found that the conduct Harris

alleged "was not so severe as to be expected to seriously affect

plaintiff's psychological well-being." Id. at 371. Reversing,

the Court held that

[c]ertainly Title VII bars conduct that would seriously

affect a reasonable person's psychological well-being,

but the statute is not limited to such conduct. So

long as the environment would reasonably be perceived,

and is perceived, as hostile or abusive, there is no

need for it also to be psychologically injurious.

Id. (emphasis added) (citing Meritor Savings Bank v. Vinson, 477

U.S. 57, 67 (1986)).

Thus, the legal issues in Dici's workmen's compensation

proceeding are not identical to those in the Title VII context.

In the Pennsylvania workmen's compensation framework,

"harassment" and "abnormal working conditions" are defined in

terms of objective mental injury; in the Title VII context,

psychological injury is not required. We therefore find that

issue preclusion cannot apply to the legal questions presented in

Dici's case.

Though the legal issues are distinct, many of the factual

allegations in the workmen's compensation proceeding and this

case are identical. The workmen's compensation referee credited

as true only a few of the incidents alleged by Dici, and found as

a matter of fact that the remainder had not occurred, or had not

occurred as Dici alleged. Mindful that preclusion may apply to

both legal and factual issues, Hebden, 534 Pa. at 330, 632 A.2d

at 1304; Restatement (Second) of Judgments 27 cmt. c (1982), we

must consider whether Dici may relitigate in federal court those

factual issues already determined not credible by the workmen's

compensation referee. Reviewing Pennsylvania law, we believe

that a Pennsylvania court would not apply issue preclusion to the

facts of Dici's case.

In Odgers v. Commonwealth Unemployment Compensation Board of

Review, 514 Pa. 378, 525 A.2d 359 (1987), the Pennsylvania

Supreme Court refused to grant preclusive effect to an earlier

Commonwealth Court ruling. In the first action, the Commonwealth

Court found that the school district employees' work stoppage was

a strike within the meaning of the Pennsylvania Public Employee

Relations Act ("PERA"). When individual employees later applied

for unemployment compensation, the Unemployment Compensation

Board of Review determined that the Commonwealth Court's

characterization of the work stoppage as a strike precluded the

employees from relitigating the nature of the work stoppage under

Pennsylvania's unemployment compensation laws.

The Pennsylvania Supreme Court reversed the Board's finding,

however, holding that the PERA issue before the Commonwealth

Court was not identical to the issue presented in the

unemployment compensation proceeding. As the court stated, PERA

and the unemployment compensation laws "embody different policies

and involve different rights." Id. at 389, 364. Subsequent to

Odgers, several other Pennsylvania cases have denied preclusive

effect to both the facts and law of an earlier judgment when the

policies and procedures applicable to the first action were

different from those of the later action. See Verbilla v.

Workmen's Compensation Appeal Bd. (Schuylkill Nursing Ass'n), 668

A.2d 601 (Pa. Commw. Ct. 1995) (unemployment compensation

referee's factual findings that hospital worker was not abused by

patient did not preclude later workmen's compensation proceeding

regarding whether worker was injured in the course of employment

because the policies and procedures of the two legal schemes were

not similar); Johnsonbaugh v. Department of Pub. Welfare, 665

A.2d 20 (Pa. Commw. Ct. 1995) (unemployment compensation hearing

determination that worker did not engage in willful misconduct

did not preclude later Civil Service Commission decision

regarding whether the employer dismissed the worker for just

cause because the two issues were distinct as were the policies

of the two legal schemes); Bortz v. Workmen's Compensation Appeal

Bd. (Renzor Div. of FL Indus.), 656 A.2d 554 (Pa. Commw. Ct.)

(unemployment compensation finding regarding willful misconduct

not preclusive in later workmen's compensation hearing regarding

unsatisfactory job performance because the issues and the

procedures in the two proceedings were distinct), appeal granted,

542 Pa. 675, 668 A.2d 1137 (1995).

The Appellees contend that Odgers and its progeny apply only

to issue preclusion decisions in cases involving two agency

determinations, rather than to cases involving an earlier agency

determination and a later civil suit. We do not find merit in

this argument. Nothing in Odgers purports to limit its effect to

cases involving preclusion between agencies. Indeed, the

rationale behind Odgers is as applicable to agency/civil suit

preclusion as it is to agency/agency preclusion. We have

recognized this by applying the principles of Odgers to cases

where preclusion was asserted between an earlier state agency

determination and a later federal civil action. See Swineford v.

Snyder County Pennsylvania, 15 F.3d 1258 (3d Cir. 1994)

(unemployment compensation hearing findings not preclusive in a

later 1983 action); Kelley v. TYK Refractories Co., 860 F.2d

1188 (3d Cir. 1988) (factual findings of unemployment

compensation hearing not preclusive in later 1981 suit);

Tukesbrey v. Midwest Transit, Inc., 822 F. Supp. 1192 (W.D. Pa.

1993) (unemployment compensation hearing determination regarding

wrongful misconduct not preclusive in a later Veteran's

Reemployment Rights Act case regarding just termination).

As we stated in Swineford, "[u]nder Odgers, reviewing courts

must look beyond the superficial similarities between the two

issues to the policies behind the two actions. Only where the

two actions promote similar policies will the two issues be

identical for purposes of issue preclusion." Swineford, 15 F.3d

at 1267-68. We believe that Pennsylvania courts would apply this

reasoning to the workmen's compensation proceeding in Dici's

case. The policy of Title VII is to achieve equality of

employment opportunities and remedy discrimination in the

workplace. By contrast, Pennsylvania's workmen's compensation

law is designed to define the liability of employers for injuries

to employees occurring in the course of employment. Moreover,

the procedures utilized in workmen's compensation proceedings

differ from those employed in federal court. For example,

"[n]either the board nor any of its members nor any referee shall

be bound by the common law or statutory rules of evidence in

conducting any hearing or investigation . . . ." 77 Pa. Cons.

Stat. Ann. 834 (1991). Given this court's admonition that

"[r]easonable doubt as to what was decided by a prior judgment

should be resolved against using it as an estoppel," Gregory, 843

F.2d at 121 (quoting Kauffman v. Moss, 420 F.2d 1270, 1274 (3d

Cir.), cert. denied, 400 U.S. 346 (1970)), we find that issue

preclusion should not apply to the facts of Dici's case.

In holding that the law and facts of Dici's case are not

precluded, we do not mean to imply that a Pennsylvania workmen's

compensation determination should never be given preclusive

effect in a later suit. Indeed, in many cases preclusion has

been found appropriate. For example, in Capobianchi v. Bic

Corp., 666 A.2d 344 (Pa. Super. Ct.), appeal denied, 674 A.2d

1065 (1995), the court determined that a workmen's compensation

hearing determination regarding the cause of the worker's injury

should be given preclusive effect in a later products liability

action. The court found that the issues presented in both

proceedings, viz., whether the worker's neck injury was caused by

a degenerative condition or by an exploding Bic lighter, were

identical. Id. at 349. See also Phillips v. A.P. Green

Refractories Co., 630 A.2d 874 (Pa. Super. Ct. 1993) (workmen's

compensation decision that worker did not suffer silicosis

preclusive in later products liability suit), aff'd, 542 Pa. 124,

665 A.2d 1167 (1994); Grant v. GAF Corp., 608 A.2d 1047 (Pa.

Super. Ct. 1992) (workmen's compensation finding that worker's

cancer was not caused by asbestos in the workplace preclusive in

later products liability case), aff'd, 536 Pa. 429, 639 A.2d 1170

(1994). As the Grant court found, "proximate cause in a personal

injury tort action and causal connection in workmen's

compensation cases are analogous principles." Id. at 1057.

These cases demonstrate that when the issues presented are the

same, Pennsylvania courts will not hesitate to grant preclusive

effect to workmen's compensation proceedings.

As is evident from a review of Dici's case, however, the

issues presented in this Title VII case are different from those

of the workmen's compensation proceeding. The differences are

highlighted when one examines the distinct policies underlying

each legal regime. Therefore, it would be inappropriate to apply

issue preclusion to this case. We reverse the district court's

grant of summary judgment to the Appellees on this basis.

II. Other Grounds for Summary Judgment: The Appellees moved for

summary judgment both on the ground of issue preclusion and on

the merits. Brison moved for summary judgment for the additional

reason that an individual co-employee cannot be held liable under

Title VII. On appeal, Dici claims that if issue preclusion does

not bar her case, genuine issues of material fact exist

precluding summary judgment. The district court, having found

that issue preclusion applied, did not address the other grounds

for summary judgment offered by the Appellees. Though our review

of a summary judgment motion is plenary, we think that the

district court is in the better position to consider whether

summary judgment is proper on the merits of this case given that

issue preclusion was the focus of the briefs and arguments before

us. Therefore, we believe the best course is to remand the case

to the district court.

We can, however, on the record and briefs before us, decide

whether Steven Brison and Frank Monaco are proper defendants to

Dici's Title VII and PHRA claims. When the issue of individual

liability was before this court in Sheridan v. E. I. DuPont de

Nemours, 1996 W.L. 36283 (3d Cir. 1996), vacated, 74 F.3d 1439

(3d Cir. 1996), the court held that an individual employee cannot

be liable under Title VII. The majority opinion written by Judge

Alito noted the great weight of authority from other courts of

appeals holding an employee cannot be sued under Title VII. See,

e.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995);

Cross v. Alabama, 49 F.3d 1490, 1504 (11th Cir. 1995); Grant v.

Lone Star Co., 21 F.3d 649, 653 (5th Cir. 1994); Sauers v. Salt

Lake Co., 1 F.3d 1122, 1125 (10th Cir. 1993); Miller v. Maxwell

Int'l Inc., 991 F.2d 583, 587 (9th Cir. 1993). Chief Judge

Sloviter, who dissented in Sheridan on other grounds, commented

that, although she found the reasoning of those judges who

dissented from the opinions in the other circuits convincing, in

light of the authority otherwise she saw no reason to dissent

from the Sheridan majority on the issue of individual liability

under Title VII.

The Sheridan opinion was withdrawn when the court voted to

take the case en banc, and the appeal was argued before the en

banc court on May 14, 1996. However, the principal focus of the

en banc briefs and arguments was on Title VII issues other than

individual liability. In light of this, we conclude, for the

reasons previously given by the court in Sheridan and the other

courts of appeals, that individual employees cannot be held

liable under Title VII. Therefore, Dici cannot sustain her Title

VII claims against Brison and Monaco. To this extent, then, we

affirm the district court's grant of summary judgment, though on

different grounds.

Dici argues that even if an individual employee cannot be

liable under Title VII, the employee is still a proper defendant

under the PHRA. Generally, the PHRA is applied in accordance

with Title VII. Davis v. Sheraton Society Hill Hotel, 907 F.

Supp. 896, 899 n.1 (E.D. Pa. 1995). Like Title VII, the

definition of an employer under the PHRA cannot be construed to

include "employees;" indeed, "employee" is defined as a wholly

separate term under the Act. See 43 Pa. Cons. Stat. Ann.

954(b) & (c). The employment discrimination provision of the

PHRA declares only that "any employer" may be held liable. See43 Pa.

Cons. Stat. Ann. 955(a).

A different section of the PHRA, however, contemplates

liability that extends beyond that of Title VII. Section 955(e)

forbids "any person, employer, employment agency, labor

organization or employee, to aid, abet, incite, compel or coerce

the doing of any act declared by this section to be an unlawful

discriminatory practice . . . ." 43 Pa. Cons. Stat. Ann.

955(e). Both Brison and Monaco certainly qualify as

"person[s]" and "employee[s]" under 955(e). The question,

then, is whether either of them may be a proper defendant under

the section for aiding and abetting the unlawful discriminatory

practices of Dici's employer.

We find that summary judgment in favor of Brison on Dici's

PHRA claim is appropriate because Brison is not a proper

defendant under 955(e). Dici's PHRA claim against the

Appellees rests upon, as her complaint states, their failure "to

take prompt remedial measures after having notification that

discriminatory actions had occurred." Dici has alleged no facts

that would indicate that Brison aided or abetted Dici's employer

in refusing to take prompt remedial action against any

discrimination suffered by Dici. Rather, her complaint alleges

only direct incidents of Brison's harassment. Such incidents are

not covered by the terms of 955(e). As one court has said in

construing a nearly identical provision of the New Jersey Law

Against Discrimination:

One might argue, of course, that both [the employee and

the employer] share the "intent" to create a

discriminatory atmosphere. We believe, however, that

the employer's reaction is sufficiently divorced from

the employee's conduct that there is no community of

purpose between them. A non-supervisory employee who

engages in discriminatory conduct cannot be said to

"intend" that his employer fail to respond.

Tyson v. Cigna Corp., 918 F. Supp. 836, 841 (D.N.J. 1996).

We cannot, however, grant summary judgment to Monaco on

Dici's PHRA claim. As Dici's supervisor, Monaco is a proper

defendant under 955(e) and might be liable for aiding and

abetting discriminatory practices, as Dici has pleaded facts

which, if true, could impose liability for violations of the

PHRA. For example, in paragraph 14 of the complaint, Dici

states, "[a]lthough Sergeant Monaco knew or should have known

that the Plaintiff was being subject to . . . harassment . . .,

he repeatedly refused to take prompt action to end the harassment

directed at Plaintiff . . . ." Such conduct, if proven, would

constitute aiding and abetting.

However, because Monaco cannot be held liable under Title

VII, there exists no independent jurisdictional basis to maintain

a PHRA claim against Monaco in federal court. We, therefore,

leave it to the district court to decide whether to exercise

supplemental jurisdiction under 28 U.S.C. 1367 (1994) over

Dici's PHRA claim against Monaco.

CONCLUSION

For the foregoing reasons, we affirm in part, reverse in

part, and remand to the district court the grant of summary

judgment in favor of the Appellees.