holding that Pa. Stat. Ann. tit. 43, § 962 [c] [West 1991] does not authorize punitive damages, despite broad language with respect to remedies, on basis of comparison with other statutes that expressly award punitive damages, and concluding that use of phrase " 'affirmative action' " to describe remedies phrase limits financial remedies to those that "[serve] to achieve the remedial goals of the [statute]," such as "make-whole measures, i.e., reinstatement, hiring, and back pay," given primarily punitive purpose of punitive damages
How later courts described this case
- holding that Pa. Stat. Ann. tit. 43, § 962 [c] [West 1991] does not authorize punitive damages, despite broad language with respect to remedies, on basis of comparison with other statutes that expressly award punitive damages, and concluding that use of phrase " 'affirmative action' " to describe remedies phrase limits financial remedies to those that "[serve] to achieve the remedial goals of the [statute]," such as "make-whole measures, i.e., reinstatement, hiring, and back pay," given primarily punitive purpose of punitive damages
- explaining that to rise to the level of extreme and outrageous for purposes of a claim for intentional infliction of emotional distress the conduct alleged must be “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 society”
- explaining that “a degree of aggravation that would entitle the plaintiff to punitive damages” can be insufficient to support a claim for IIED (quoting Restatement (Second) of Torts § 46 cmt. d; Daughen v. Fox, 539 A.2d 858, 861 (Pa. Super. Ct. 1988))
- finding the plaintiff could not recover on IIED claim, where the record established “highly offensive and unacceptable” sexual harassment, including sexual propositions, “physical contact with the back of [the plaintiff’s] knee,” “the telling of off-color jokes and the use of profanity on a regular basis,” and “the posting of a sexually suggestive picture”
Written by the judges who cited it.
The 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 infliction 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. *155 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, Appellant 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.
*156 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 and 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?
*157 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.