Opposition Brief — OI-NEG TV Products, Inc. v. Durko

Foy Y

MAR 14 1997

No. 96-1273 CLERK

In The

Supreme Court of the United States

“>

October Term, 1996

GLASS MOLDERS, POTTERY, PLASTICS & ALLIED

WORKERS INTERNATIONAL AFL-CIO, CLC NO. 243,

Petitioner,

VS.

CARMELA F. DURKO,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circui:

RESPONDENT’S BRIEF IN OPPOSITION

KIMBERLY D. BORLAND

Counsel of Record

DAVID P. TOMASZEWSKI

BORLAND & BORLAND

Attorneys for Respondent

1100 PNC Bank Building

69 Public Square

Wilkes Barre, Pennsylvania 18701

(717) 822-3311

> 74 utz

oe (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21 “ late

ervices, inc.

i

QUESTIONS PRESENTED

1. Whether a union can be held liable for punitive damages

pursuant to Title VII of the Civil Rights Act and the Pennsylvania

Human Relations Act?

2. Whether the previous determinations of the National

Labor Relations Board dealing with Ms. Durko’s allegation of

discrimination regarding the Union’s handling of her grievance

involving a seniority dispute were irrelevant to her claims that

the Union discriminatorily failed to process her sexual

harassment grievances, therefore causing any issue as to the

propriety of exclusion of such evidence moot?

3. Whether the courts below properly upheld the factual

finding of the jury that the Union discriminatorily failed to pursue

sexual harassment grievances on behalf of Ms. Durko?

4. Whether the courts below properly refused to remit the

twenty-five thousand ($25,000) dollar punitive damage award

against the Union, considering the Union’s deliberate and

discriminatory failure to pursue sexual harassment grievances

on Ms. Durko’s behalf?

il

TABLE OF CONTENTS

Page

a PP eee i

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BD. FRC DAGON .ncccsccscvtsunceerees 2

Reasons for Denying the Writ ...........ccccecee. 6

Standard for Granting Writ of Certiorari .......... 6

I. A Union Can Clearly Be Held Liable For Punitive

Damages Pursuant To Title VII Of The Civil

Rights Act And The Pennsylvania Human

OEE AGE. 2 occcscvacsdepenepeueuamans 7

II. The Prior Determinations Of The National Labor

Relations Board Were Properly Excluded As Their

Prejudicial Effect Outweighed Their Probative

Value. Also, Such Determination Did Not Address

The Issue Of Whether The Union Discriminatorily

Failed To File Sexual Harassment Grievances On

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Contents

Ill. The Evidence At Trial Was Sufficient To Support

The Jury’s Determination That The Union

Discriminatorily Failed To Pursue Sexual

Harassment Grievances On Behalf Of Ms. Durko.

IV. The Evidence Presented At Trial Was Sufficient

To Support The Jury’s Award, And The Amount

Of Punitive Damages Against The Union, Thereby

Making Remittitur Improper. ...............

NUNS She Oa vad ok. oe Cuca dvucedws

TABLE OF CITATIONS

Cases Cited:

Arnold v. United Association of Journeymen, 388 F. Supp.

1105 (W.D. Pa. 1975), aff’d, 529 F.2d 511 (3rd Cir.

ES SESS es Ae BX Se ne ee

Baker v. Detroit Riverview Hospital, 834 F. Supp. 216

eee ee Lack aA Gave he's ds os

Bolden v. Southeastern PA Transp. Auth., 820 F. Supp.

949 (E.D. Pa. 1993), affirmed, 1994 U.S. App. LEXIS

ee Ue oe ice sic cneabe se

Brown Transport Corp. v. Commonwealth of Pa., PHRC,

133 Pa. Com. 545, 578 A.2d 555 (1990) ........

Page

16

19

22

15, 16

16

20

iv

Contents

Page

Chavaro v. Local 241, Div. of the Amalgamated Transit

Union, 787 F.2d 1154 (7th Cir. 1986) ........... 1]

Clark v. Pennsylvania, 885 F. Supp. 694 (E.D. Pa. 1995)

ji aeh PACA A eee Re eed oaks os bee 13

Davis v. United States, 417 U.S. 333 (1974) ........ 7

Doty v. Sewall, 908 F.2d 1053 (1st Cir. 1990) ....... 20

Frazier v. Southeastern Pennsylvania Transp. Auth., 785

Pian Ge Le ee Se nv a ho kbeea anaes 17, 18

Galeone v. American Packaging Corp., 764 F. Supp. 349

Be Oe | ey res igre ear ace an 13

General Copy Pictures Corp. v. Western Electric Co., 304

U.S. 175, 82 L. Ed. 1273, 58 S. Ct. 849 (1938)... 6, 7

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) .. 18

Griffiths v. Cigna Corp., 857 F. Supp. 399 (E.D. Pa.

i SOV OP ET EU TT TET ETE TO PCT TOE PEE: | ee 13

Keck v. Commercial Union Insurance Co., 758 F. Supp.

AOS COED. PU BORG) 6 ie cae ceaeeces 12

Layne & Bowler Corp. v. Western Well Works, 261 U.S.

SOF AEDES) 94 i 0. 00 10 een tener eee 7

Lubin v. American Packaging Corp., 766 F. Supp. 450

Aes Fes. COPED 6 is doe ekkubsbabauctsuancaeeeee 13

Contents

Miller v. Maxwell’s International, Inc., 991 F.2d 583 (9th

Ce SE cincd whekeas sors been e tke eaaee eee

Morrissey v. National Maritime Union of America, 544

Oe 19 CC, TOPE) book hc aescw cheer eeiinwes

Motter v. Everest & Jennings, Inc., 883 F.2d 1223 (3rd

Ce REDS x Ga8 dc cach pa eh ads Kee een ads on ra

NLRB v. Pittsburgh S.S. Co., 340 U.S. 498 (1951) ...

Pennsylvania Glass Sand Corp. v. Caterpillar Tractor

Co.,-652 B26 1165 (aed Cor, 1968). 205.0% fos pases

Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70

4 | rr Pre re ey Peer Cy ry

Rogers v. Mt. Union Borough By Zook, 816 F. Supp.

pF Bee Os rrr rere Cea «

Rudolph v. Wagner Electric Corporation, 68 CCH 12

CRB OB oe: ewer eer rer rer ery frre

Smith v. Local 25, Sheetmetal Workers International, 500

Bae 74) Cae Cie. TSP). vnc vascecccevassaness

Stinson v. Edgemoor Iron Works, Inc., 53 F. Supp. 864

CD, Ta: BIS cies nies a cevncdsicace puscpecceess

Strauss v. Stratojac Corp., 810 F.2d 679 (7th Cir. 1987)

Page

20

13

2, 19

16

15, 16

11

11

vi

Contents

Page

Taliaferror v. Schiro, 669 F. Supp. 763 (W.D. La. 1987)

eT Ee TTT eS Ee eee Oe ees PP ny 21

Taylor v. United States, 493 U.S. 906 .............. 7

Tomka v. Seller Corp., 66 F.3d 1295 (2nd Cir. 1995) . 10

Verde v. City of Philadelphia, 862 F. Supp. 1329 (E.D.

8 CELE PEC eS PETE PR EEE Te Mr mre 9

Wisniewski v. United States, 353 U.S. 901 (1957) .... 7

Yerdon v. Henry, 91 F.3d 370 (2d Cir. 1996) ........ 10

‘Statutes Cited:

RPS ol Fee rr res Pr et 20

ee a De RD i cikues das coven wenin ane 8, 10, 12, 21

ep ea Be UP UMEED ciscissccdscehocncens 8, 9, 10, 11, 19

G2 EBA... § BG-Die), OF BOM. onic a sccsccntaecuss l

Oe ees Fi ee nn case vedc ides caleeeiaeuen 1]

42 U.S.C. § 2000e(n) ....... eee cece eens ee eeeees 9

eS ee ee en 1, 12

ee ok. RN re ns 9

vii

Contents

Page

Rule Cited:

Supreme Court Rule 10 .......--.-+-++++:: 6, 7, 14, 17, 19

Other Authority Cited:

James W. Moore, ed., Moore’s Federal Practice, para.

810.21 at SC 10 (2d ed. 1995) ......... eee eeeee 7

l

STATEMENT OF THE CASE

A. Procedural History

This action was commenced by Complaint filed by Carmela

F. Durko on August 17, 1993, setting forth a cause of action

against OI-NEG TV Products, Inc., hereinafter “Employer,” for

discrimination in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-2(a), et seg., as well as a claim of

discrimination based on sex pursuant to the Pennsylvania Human

Relations Act, 43 Pa. C.S.A. § 951, et seg. (App. 12-94).'

The Complaint further sets forth similar causes of action

against Glass, Molders, Pottery, Plastics & Allied Workers

International AFL-CIO, CLC No. 243, hereafter “Union” for

discrimination in violation of Title VII and the PHRA. (J/d.)

A jury trial commenced on September 20, 1994 and

concluded on September 26, 1994. With respect to the Employer,

the jury found that Ms. Durko proved by a preponderance of the

evidence that she was subjected to hostile environment sexual

harassment, and that the Employer was aware that she was being

subjected to a sexually hostile work environment and failed to

take appropriate corrective action (App. 132-135). The jury

awarded compensatory damages from Employer in the amount

of fifty thousand dollars ($50,000) (App. 133).

With respect to the Union, the jury found that Ms. Durko

proved by a preponderance of the evidence that she was

subjected to hostile environment sexual harassment and that the

Union discriminatorily failed to pursue sexual harassment

grievances on her behalf (App. 134). The jury awarded fifty

1. “App.” refers to the joint appendix filed with the Court of Appeals

for the Third Circuit.

2

thousand dollars ($50,000) in compensatory damages and twenty

five thousand dollars ($25,000) in punitive damages from the

Union (App. 134-135). Judgment was entered by the District

Court on September 28, 1994 (App. 423).

On or about October 12, 1994, both Employer and Union

filed post-trial motions (App. 428-438). The motions of the

Employer and Union were denied by the District Court by

Memoranda and Orders dated December 29, 1995 and December

31, 1995 respectively (App. 1653-1691, 1672-1694).

The Employer filed its appeal to this Honorable Court on

January 26, 1996 (App. 1695) with the Union filing its appeal

on January 29, 1996 (App. 1696).

The Employer and Union filed appeals to the Third Circuit

which were denied by Order dated November 12, 1996.

B. Factual Background

Carmela Durko became employed by Employer on or about

March 31, 1986 (App. 15). At all relevant times, Ms. Durko

was a member of Local 243 of the Glass, Molders, Pottery,

Plastic & Allied Workers International Union AFL-CIO-CLC,

hereinafter “Union” (App. 15).

The issues pertinent to the present petitions arise from the

jury’s finding that Ms. Durko was subjected to hostile work

environment sexual harassment of which the Employer was

aware, and failed to take appropriate action, as well as the finding

that the Union discriminatorily failed to pursue sexual

harassment grievances on Ms. Durko’s behalf (App. 132-135).

The jury found for the Employer and Union with respect to

Ms. Durko’s claim that she was removed by the Employer from

3

her position as Assistant Furnace Operator because of her sex,

and that her gender was a determinative factor in the Union’s

decisions involving resolution of Ms. Durko’s grievances relative

to such removal. These verdicts in favor of the Employer and

Union relative to Ms. Durko’s claim of recall rights to the

Assistant Furnace Operator’s position have not been appealed

and therefore are not before this Honorable Court.

The sexual harassment of Ms. Durko began in june of 1991,

when she began working in the Batch and Furnace Department

as an Assistant Furnace Operator (App. 16). Ms. Durko was

initially given a tour by her foreman, Ron Walsh, during which

Ms. Durko was made to crawl under the extremely hot furnace

and go to the batch house to a height of approximately five stories

(App. 541-545). The only protective equipment given to Ms.

Durko to wear during this tour was a pair of paper coveralls,

when the required safety equipment consisted of material

coveralls and a respirator to prevent the inhalation of dangerous

chemicals (App. 541-550).

Ms. Durko testified that from her observations of men being

taken on similar tours, none were taken underneath the furnace

(App. 675).

During the time Ms. Durko worked as an Assistant Furnace

Operator, Mr. Walsh, her foreman and a member of management,

would continually call Ms. Durko vile and disgusting names

containing references to her gender, such as “dumb cunt” and

“stupid bitch” (App. 564). Regarding the time it would take Ms.

Durko to qualify as an Assistant Furnace Operator, Mr. Walsh

stated that it would take her eighteen months to be qualified,

and if she would be “nice to him”, it would take her nine months

(App. 563). Ms. Durko immediately made Mr. Walsh aware of

her anger regarding such comment (App. 564).

4

On one of David Troutline’s tours, Ms. Durko was requested

to push a heavy charger to see if she could handle the job (App.

582). After Ms. Durko pushed the charger with all of her might,

and she could not do it, Mr. Troutline stated “Well, that’s part of

your job duties. If you can’t do that, well then you should turn

down the job” (App. 616). During this incident, Mr. Troutline

purposely neglected to tell Ms. Durko that the brake was on,

with Ms. Durko only finding out that the brake was engaged

when another worker approached her and took the brake off

(App. 582).

Ms. Durko was also sexually harassed by Tom Wozniak, a

Furnace Operator in the Batch and Furnace Department. During

her initial five day trial period at the position of Assistant Furnace

Operator, Mr. Wozniak would tell her that she “broke the barrier”

by being the first woman as an Assistant Furnace Operator, kept

taking her on tours of the “hot spots” of the department and

repeatedly told her “You'll never do it. You’Il never make it”, as

well as telling her “It’s not a job for a woman” (App. 554-555).

While working with Ms. Durko, Mr. Wozniak would remark

that she was “flat chested” approximately once a day for the

eighteen month period Ms. Durko was in the Batch and Furnace

Department (App. 573).

Approximately three months after she had begun the

position in June of 1991, Mr. Wozniak began throwing hard cover

books at her whenever he would get angry, striking her on one

occasion (App. 570, 684).

Walter Snopeck, who was tasked with training Ms. Durko

as an Assistant Furnace Operator, also called her crude names

containing references to her gender, such as “dumb cunt” and

“stupid bitch,” plenty of times during the period of time she

worked in the Batch and Furnace Department (App. 567-568).

5

Regarding the incidents of sexual harassment, Ms. Durko

made reports to Union Stewards Randy Robbins, Mike Lieback,

Joe Thomson, Gene Warnick, and Tom Yankey, as well as Union

President Peter Moska and Union Business Agent Joseph Lutecki

(App. 565-571, 574-585). Although certain Union

representatives filed grievances regarding Ms. Durko’s recall

rights, no Union representative would submit a sexual

harassment charge, despite repeated requests by Ms. Durko

(App. 583).

Ms. Durko filed a Complaint with the Pennsylvania Human

Relations Commission on August 4, 1992, containing, inter alia

allegations of a sexually hostile work environment by both

Employer and Union (App. 279).

Margaret Guffrovich, a witness for Employer, stated that

such complaint was served on Employer as early as September,

1992 (App. 1439).

Further, at trial, it was stipulated as fact by the Employer

and all other parties that the Employer had actual notice of Ms.

Durko’s complaints of sexual harassment by Mr. Walsh, a

member of management. The stipulation of fact was as follows:

Union President, Peter Moska, asked

Margaret Guffrovich, from personnel, to

investigate Ms. Durko’s complaints of

harassment against Mr. Walsh. After speaking

with Mr. Walsh, Ms. Guffrovich reported

back to Mr. Moska that there was no basis

for Ms. Durko’s complaints. (App. 525).

Mr. Moska also confirmed the reports of sexual harassment

to the Personnel Department (App. 1325-1335).

6

Mr. Walsh testified that he attended a meeting with Margaret

Guffrovich and Mary Reynolds, another member of

management, regarding the allegations of harassment, after

which he did it not hear back from either member of management

and was not disciplined (App. 991-996).

On January 13, 1993, Ms. Durko was transferred to the

Forming and Selecting Department because her temporary bid

as Assistant Furnace Operator had expired (App. 588). Ms.

Durko was subjected to being called a variety of vulgar names

over the public address system, accompanied by loud moaning,

with her name being loudly screamed (App. 593). It was Ms.

Durko’s unrebutted testimony that she told her foreman, Lenny

Brown, about this (id.), as well as Union President Peter Moska.

Further, Ms. Durko and Mr. Moska both reported the harassment

to William Konopasek, Human Resource Supervisor, a member

of management. (/d.) After meeting with Mr. Konopasek,

speakers were allegedly put in his office, but Ms. Durko testified

that the harassment continued until she left the Forming and

Selecting Department. (/d.) At trial, Mr. Konopasek

acknowledged that he did not investigate the matter, as Ms.

Durko did not provide him information as to who was

responsible for the noises (App. 906-909).

REASONS FOR DENYING THE WRIT

Standard for Granting Writ of Certiorari

The rules of this Court state that a Petition for Writ of

Certiorari “will be granted only for compelling reasons.” Sup.

Ct. R. 10.

In general, the Supreme Court will not grant a Writ of

Certiorari merely to review evidence or inferences drawn from

it. General Copy Pictures Corp. v. Western Electric Co., 304

DN ml

7

U.S. 175, 82 L. Ed. 1273, 58 S. Ct. 849 (1938). Certiorari will

also be denied if the case involves circumstances or issues which

are not likely to be repeated, see Rice v. Sioux City Memorial

Park Cemetery, 349 U.S. 70, 74 (1955) (noting that the Court

reviews issues that are “beyond the academic or the mere

episodic”); 13 James W. Moore, ed., Moore’s Federal Practice,

para. 810.21 at SC 10-23 (2d ed. 1995) (stating that the Court

will not be inclined to review “an issue that is unlikely to recur”

or “results from a unique factual situation”), or if “the asserted

error consists of . . . the misapplication of a properly stated rule

of law.” Sup. Ct. R. 10.

Moreover, certiorari will be granted “only in cases involving

principles, the settlement of which is of importance to the public,

as distinguished from that of the parties, and in cases where

there is a real and embarrassing conflict of opinion and

authority” between the Courts of Appeals. NLRB v. Pittsburgh

S.S. Co., 340 U.S. 498, 502 (1951) (quoting Layne & Bowler

Corp. v. Western Well Works, 261 U.S. 387, 393 (1923)).

Finally, the Court has refrained from resolving conflicts that

arise between panels within the same circuit, on the grounds

that such conflicts should be resolved by the Court of Appeals

internally. See, e.g., Taylor v. United States, 493 U.S. 906,

(198°); Davis v. United States, 417 U.S. 333, 340 (1974);

Wisniewski v. United States, 353 U.S. 901, 902 (1957).

—

I.

A UNION CAN CLEARLY BE HELD LIABLE FOR

PUNITIVE DAMAGES PURSUANT TO TITLE VII OF

THE CIVIL RIGHTS ACT AND THE PENNSYLVANIA

HUMAN RELATIONS ACT.

The Union’s Petition for Writ of Certiorari with regard to

8

its claim that a Union cannot be held liable for punitive damages

as a matter of law must be denied, as, although such issue is of

first impression for the United States Supreme Court, the answer

to such issue is obvious from a plain reading of the Civil Rights

Act of 1964, as amended, as well as by the decision of the highest

state court in Pennsylvania to review the issue with regard to

the application of the Pennsylvania Human Relations Act.

_ The Union asserts that it cannot be liable for punitive

damages under either Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. § 1981a, or the Pennsylvania Human

Relations Act. Importantly, Union cites no provisions of the

above-referenced statutes, nor any case law interpreting such

statutes which supports such proposition.

The 1991 amendments to Title VII impose liability for

compensatory and punitive damages on a “respondent” under

certain circumstances, as follows:

(b) Compensatory and punitive damages.

(1) Determination of Punitive

damages. A complaining party may

recover punitive damages under this

section against a respondent (other

than a government, government

agency, or political subdivision) if the

complaining party demonstrates that

the respondent engaged in a

discriminatory practice or

discriminatory practices with malice

or with reckless indifference to the

federally protected rights of an

aggrieved individual.

42 U.S.C. § 1981a(b).

9

Thus, a plaintiff's right to punitive damages against a

respondent that has engaged in discrimination cannot be denied.

The definition of “respondent” in Title VII includes an

Employer, employment agency, labor organization, joint labor

management committee controlling apprenticeship or other

training or retraining program, including an on-the-job training

program, or Federal entity subject to § 717. 42 U.S.C.

§ 2000e(n) (emphasis added).

The Pennsylvania Human Relations Act prohibits

discrimination by labor organizations on the basis of sex. (See

43 Pa. C.S.A. § 955(c)-(e)).

The Union argues that since punitive damages are not

available under the National Labor Relations Act in some circuits

for breach of a Union’s duty of fair representation, that this

somehow precludes an award of punitive damages under Title

VII of the Civil Rights Act. Union further argues that since an

individual employee cannot be liable for punitive and

compensatory damages under Title VII, that this somehow, by

analogy, absolves a labor union of similar liability. Union also

argues that it cannot be held liable absent evidence that it

employs any employees under the damage limitation section of

the 1991 amendments, 42 U.S.C § 1981a(b).

Union cites Miller v. Maxwell’s International, Inc., 991 F.2d

583 (9th Cir. 1993), and Verde v. City of Philadelphia, 862 F.

Supp. 1329 (E.D. Pa. 1994), for the proposition that individual

employees cannot be held liable for compensatory and punitive

damages under Title VII as Congress did not intend to impose

liability on individuals who had the misfortune to work for large

employers. The Union then equates the status of an individual

employee with that of a labor union, and concludes that labor

unions are also excluded from liability. The Union cites no cases

10

in which a union was excluded from liability based on the

limitations stated in 42 U.S.C. § 1981a(b).

The Union’s reliance on the above cases is misplaced, in

that such cases hold that individuals have no liability for backpay

or any other item of damages under § 706(g) of Title VII. The

courts have recognized that in 1964, Congress did not intend to

hold individuals liable for any damages, and that the 1991 Civil

Rights Act, with its liability limits based on numbers of persons

employed, confirms the original legislative intent. See, e.g.,

Tomka y. Seller Corp., 66 F.3d 1295, 1314-15 (2nd Cir. 1995).

Thus, individual employees are not “respondents” under § 198 1a,

and labor organizations are “respondents” under that section.

The Court of Appeals for the Second Circuit has recently

found that in order to hold a local union liable in its capacity as

a labor organization under Title VII, the plaintiff must allege

that she was discriminated against in her capacity as a union

member as opposed to her capacity as union employee. Yerdon

v. Henry, 91 F.3d 370 (2d Cir. 1996).

Thus, the distinction between the union acting as a labor

organization, and the union acting as an employer, is critical. In

Yerdon, supra, the plaintiff, a secretary to the local union, was

sexually harassed by newly nominated officers of the union in

an effort to force her to resign. Because the union was acting in

its capacity as employer, the threshold number of employees

which must be met before liability is assessed was applicable.

In the present case, there is no dispute that Ms. Durko sued

her Union in her capacity as a Union member rather than an

employee of the Union, which she definitely was not.

Therefore, the numerical requirements relative to

“employer” are not applicable under the present facts. See also

1]

Chavaro v. Local 241, Div. of the Amalgamated Transit Union,

787 F.2d 1154 (7th Cir. 1986) (Under Title VII, a union can be

both an “employer” and a “labor organization.” As a labor

organization, the union is covered under the Act and may be

liable with respect to its dealings with employers or its

membership, see 42 U.S.C. § 2000e-2(c), if it fits the definition

of a labor organization).

Regarding the Union’s assertion that 42 U.S.C. § 1981a(b)

absolves it from liability in the absence of evidence that it

employs any employees, such interpretation ignores the plain

language of that statute, which indicates that such section allows

for limitations of compensatory and punitive damages rather

than an exclusion of such damages.

The Union implies that it is Ms. Durko’s burden to present

evidence of the number of its employees so that she can limit

her own damages. It is respectfully asserted that it is the Union’s

burden to present evidence that would limit its liability. Cf

Strauss v. Stratojac Corp., 810 F.2d 679, 687 (7th Cir. 1987);

Stinson v. Edgemoor Iron Works, Inc., 53 F. Supp. 864, 868 (D.

Del. 1944) (generally burden of proof is on the defendant when

it is seeking to mitigate its liability).

It is also submitted that if the Union presented no such

evidence, no limitation applies.

Alternatively, even if it is deemed that Ms. Durko had the

burden to provide evidence to limit her own damages, evidence

of record indicates that the Union had at least fifty-two paid

employees sufficient to award compensatory and punitive

damages, even under the Union’s theory (App. 70-73, 544, 1153,

1377-1378).

Therefore, based on the above discussion, the Union has

12

sufficient employees to impose liability, even if the Union’s

argument regarding such threshold is adopted.

Even if it is determined that compensatory and punitive

damages are somehow limited under 42 U.S.C. § 1981a, Ms.

Durko is entitled to punitive and compensatory damages under

her claim pursuant to the Pennsylvania Human Relations Act,

43 Pa. C.S.A. § 951, et seg., without limitation.

It has been held that punitive and compensatory damages

are available under the PHRA, Rogers v. Mt. Union Borough By

Zook, 816 F. Supp. 3°8 (M.D. Pa. 1993); Keck v. Commercial

Union Insurance Co., 758 F. Supp. 1034 (M.D. Pa. 1991).

In Keck, supra, the Court stated

... The Pennsylvania Commonwealth Court

has upheld the award of punitive damages,

expressly holding that the PHRA does not

contain the damages limitation expressed in

Title VII. Brown Transport Corp. v.

Commonwealth of Pa., PHRC, 133 Pa. Com.

545, 578 A.2d 555, 562 (1990).

Further, other courts have recognized that

relief under the PHRA is not limited to that

available under Title VII. See e.g. Nestor v.

Quaker State Coca-Cola Bottling Co., 579

F. Supp. 289, 292 (W.D. PA 1984); PHRC v.

Zanmantakis, 478 Pa. 454, 459, 387 A.2d 70,

73 (1978) (under “legal or equitable relief”

provision, the court could award damages for

humiliation and mental anguish).

Id. at 1040.

13

As stated above, the PHRA contains no limitation on an

award of punitive damages. Thus, even if Title VII is interpreted

to limit such damages, the jury was subject to no such constraints

pursuant to Ms. Durko’s state cause of action.

Additionally, numerous other courts within the Third Circuit

have held that punitive damages are permitted by the PHRA.

See, e.g., Clark v. Pennsylvania, 885 F. Supp. 694, 715 (E.D.

Pa. 1995); Griffiths v. Cigna Corp., 857 F. Supp. 399 (E.D. Pa.

1994): Galeone v. American Packaging Corp., 764 F. Supp 349,

352 (E.D. Pa. 1991); Lubin v. American Packaging Corp., 760

F. Supp. 450, 451 (E.D. Pa. 1991).

In the absence of an authoritative pronouncement from the

Pennsylvania Supreme Court, a federal court must predict how

that court would rule. As stated in Pennsylvania Glass Sand

Corp. v. Caterpillar Tractor Co., 652 F.2d 1165 (3rd Cir. 1981):

To make this prognostication, we are not

inflexibly confined by dicta or by lower state

court decisions, although we should look to

such statements as indicia of how the state's

highest court might decide. See, McKenna v.

Ortho Pharmaceutical Corp., 622 F.2d 657,

662 (3rd Cir. 1980).

Id. at 657 (Emphasis added).

It is submitted that the Pennsylvania Commonwealth Court

case of Brown Transport Corp., supra, provides strong indicia

of how the Pennsylvania Supreme Court would rule on the issue

of whether punitive damages are allowed under the PHRA, as

well as the numerous federal court rulings cited above predicting

the same result.

—_—

14

Il.

THE PRIOR DETERMINATIONS OF THE NATIONAL

LABOR RELATIONS BOARD WERE PROPERLY

EXCLUDED AS THEIR PREJUDICIAL EFFECT

OUTWEIGHED THEIR PROBATIVE VALUE. ALSO,

SUCH DETERMINATION DID NOT ADDRESS THE

ISSUE OF WHETHER THE UNION DISCRIMINATORILY

FAILED TO FILE SEXUAL HARASSMENT GRIEVANCES

ON MS. DURKO’S BEHALF.

The Union’s Petition for Writ of Certiorari with regard to

whether the previous determinations of the National Labor

Relations Board were properly excluded from evidence must

be denied as this is again an allegation of error with regard to a

misapplication of or properly stated rule of law. Sup. Ct. R. 10.

The Union’s request that the previous NLRB determination

should have been submitted to the jury was properly denied by

the court below.

It is critical to note that the NLRB has never ruled on the

issue of whether the Union discriminatorily failed to file

grievances regarding sexual harassment on behalf of Ms. Durko.

By letter dated September 14, 1992, the NLRB clearly stated

the allegations against the Local and International Unions as

follows:

The charges against the Unions allege that

they breached their duty of fair representation

by failing to process your grievances over

being bumped from the Assistant Furnace

Operator position ...

(App. 210).

15

In its second ruling on April 12, 1993, the NLRB again

clearly stated the issue upon which it was issuing a ruling as

follows:

... [T]he charge against the Union alleges

that it failed to process a grievance over your

unsuccessful bid for Assistant Furnace

Operator — A Shift in January, 1993, in

violation of the duty of fair representation . . .

(App. 213).

Again, the NLRB was never tasked with deciding the issue

as to whether the Union discriminatorily failed to process sexual

harassment grievances on behalf of Ms. Durko, and never issued

a decision on that issue. Also the jury found against the

respondent with regard to her claim that the grievances regarding

the Assistant Furnace Operator’s position were discriminatorily

processed, making the NLRB’ s determinations irrelevant.

In support of its position that the NLRB’s determinations

were improperly excluded, the Union relies on Arnold v. United

Association of Journeymen, 388 F. Supp. 1105 (W.D. Pa. 1975),

aff'd, 529 F.2d 511 (3rd Cir. 1975), and Smith v. Local 25,

Sheetmetal Workers International, 500 F.2d 741 (Sth Cir. 1974).

In the present case, the trial court found that

... the marginal relevance of the NLRB's

determinations was completely outweighed

by the probability of prejudice. A strong

possibility existed that the jury would

improperly substitute the determination of

another fact-finding body, the NLRB, for its

own considered judgment of the evidence or

—_—

16

accord it far too much weight in its ultimate

decision...

(Union’s Petition at A-18).

The possibility of prejudice outweighing the probative value

of such evidence was not an issue in Arnold, supra, in that such

case was a non-jury trial. The possibility of prejudice

outweighing the probative value of such evidence was also not

an issue in Smith, supra, a case which addressed a summary

judgment motion, in which the court considered the NLRB

determination.

Although Union cites cases which allow such

determinations in certain circuits to have res judicata effect in

future actions under Sec. 301 of the NLRA, see, e.g., Baker v.

Detroit Riverview Hospital, 834 F. Supp. 216 (E.D. Mi. 1993);

Rudolph v. Wagner Electric Corporation, 68 CCH 12, 798 (E.D.

Mo. 1972), Union acknowledges that the authorities are split

on such proposition (Union’s Petition at 18). Further, the Union

cites no case in which an adverse NLRB determination was held

admissible in a Title VII action.

Therefore, the exclusion of such evidence was proper and

not prejudicial to the Union in any way.

Il.

THE EVIDENCE AT TRIAL WAS SUFFICIENT TO

SUPPORT THE JURY’S DETERMINATION THAT THE

UNION DISCRIMINATORILY FAILED TO PURSUE

SEXUAL HARASSMENT GRIEVANCES ON BEHALF OF

MS. DURKO.

The Union’s Petition for Writ of Certiorari must be denied

a aes

17

as its allegation with regard to the above issue merely alleges

an erroneous factual finding in the court below. Sup. Ct. R. 1°

Union asserts that Ms. Durko failed to state with adequate

specificity the occasions on which Ms. Durko lodged complaints

with the Union concerning incidents of sexual harassment and

the Union’s failure to respond to such complaints (Union’s

Petition at 17).

Specifically, Ms. Durko testified that she approached Joe

Thomson once per week from June of 1991 through January of

1993 with the complaints of sexual harassment and that he would

run away from her (App. 668-669). Ms. Durko also told Business

Agent Joseph Lutecki and Union President Peter Moska of the

sexual harassment by Mr. Snopeck and Mr. Walsh (App. 568-

569). Ms. Durko also reported being sexually harassed to Union

Stewards Robbins, Lieback, Warnick, and Yankey, with no

grievances subsequently filed on her behalf (App. 686-688,

1250-1257).

Regarding sexual harassment, Mr. Moska stated to Ms.

Durko that she had no grievance (App. 682-683).

Further, on or about January of 1993, Ms. Durko complained

to Union President Peter Moska about being sexually harassed

over the intercom system, with both Ms. Durko and Mr. Moska

informing Human Resources Director, William Konopasek, of

the harassment (App. 594). Although the harassment did not

stop after such meeting, no grievance was filed.

Union cites Frazier v. Southeastern Pennsylvania Transp.

Auth., 785 F.2d 65 (3rd Cir. 1986), for the proposition that:

Conclusory allegations of mishandled

grievances, without providing specificity,

18

leads to the conclusion that the claims are

frivolous and ultimately should lead to the

dismissal of those claims.

(Union’s Petition at 20).

However, Frazier, dealt with the sufficiency of allegations

in a complaint to provide notice to a defendant to prepare an

adequate defense.

As indicated above, specific time frames of Ms. Durko’s

grievance requests were given to the Union both prior to trial

and at trial. Certainly, such information allowed the Union to

investigate and adequately prepare a defense to the charges.

The fact that the Union did file certain other grievances for

Ms. Durko but would not include a specific sexual harassment

charge is indicative that such charges were not included because

of Ms. Durko’s gender.

Union cites the United States Supreme Court case of

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) for the

proposition that a union which intentionally avoids asserting

discrimination claims can be liable under Title VII. Union tries

to distinguish the Goodman case from the case at bar by stating:

However, in that case, unlike here, the black

union members established that the Union

had ignored grievances based on instances

of harassment which were indisputably racial

in nature and that the Union had regularly

refused to include assertions of racial

discrimination in grievances that also

asserted contract violations.

(Union’s Petition at 23, n.12).

19

In the present case, the jury made a parallel finding, except

that the discrimination complained of was sexual and not racial.

Based on the above evidence, it is clear that the evidence

was more than sufficient to support the jury’s finding that the

Union discriminatorily failed to process sexual harassment

grievances on Ms. Durko’s behalf.

IV.

THE EVIDENCE PRESENTED AT TRIAL WAS

SUFFICIENT TO SUPPORT THE JURY’S AWARD, AND

THE AMOUNT OF PUNITIVE DAMAGES AGAINST THE

UNION, THEREBY MAKING REMITTITUR IMPROPER.

The Union’s Petition for Writ of Certiorari must be denied

as again alleging an erroneous factual finding in the court below,

as well as a misapplication of a properly stated rule of law. Sup.

Ct. R. 10.

Under Title VII, punitive damages are allowed against a

respondent “([I}f the complaining party demonstrates that the

Respondent engaged in a discriminatory practice or

discriminatory practices with malice or reckless indifference to

the federally protected rights of an aggrieved individual.” 42

U.S.C. § 1981a(b).

Under the Pennsylvania Human Relations Act, a defendant

must knowingly and maliciously deprive a plaintiff of her civil

rights for such damages to be awarded. Rogers v. Mt. Union

Borough By Zook, supra.

As indicated earlier, regarding testimony of Ms. Durko’s

efforts to file sexual harassment grievances with her Union

Stewards, malice or reckless indifference to Ms. Durko’s civil

rights cannot be doubted.

20

Ms. Durko’s efforts to have Union officials pursue her sexual

harassment grievances were detailed earlier in this brief and

will not be repeated.

Based on the Union’s conduct, it can be logically concluded

that the Union’s complete ignorance of Ms. Durko’s repeated

sexual harassment complaints amounts to reckless indifference

and malice.

Regarding the issue of remittitur, the Union asserts that the

punitive damages awarded against it were so excessive as to

require such relief.

Remittitur is available only where the verdict is so large as

to offend the conscience of the court. Motter v. Everest &

Jennings, Inc., 883 F.2d 1223, 1230 (3rd Cir. 1989); Bolden v.

Southeastern PA Transp. Auth., 820 F. Supp. 949, 951 (E.D. Pa.

1993), affirmed, 1994 U.S. App. LEXIS 6575 (3rd Cir. 1994).

Union cites four cases regarding punitive damage verdicts

against a union, providing examples of relatively small punitive

damage awards under federal labor law statutes, such as the

Labor-Management Reporting and Disclosure Act, 29 U.S.C.

§ 401, et seg. (Union’s Petition at 24-27). However, Union

conveniently fails to mention other cases under the same statute,

which allowed for significant punitive damage awards against a

union. See, e.g., Morrissey v. National Maritime Union of

America, 544 F.2d 19 (2nd Cir. 1976) (punitive damages against

a union totalled one hundred thousand ($100,000) dollars for

improper disciplinary action against a union member); Doty v.

Sewall, 908 F.2d 1053 (1st Cir. 1990) (punitive damages against

local union of three hundred thousand ($300,000) dollars not

excessive in view of Union member’s exclusion from some types

of Union activities for three years and ultimate removal from

his position as Union Steward because of his inability to secure

21

a transfer); Taliaferror v. Schiro, 669 F. Supp. 763 (W.D. La.

1987) (punitive damages assessed against a union in the total

amount of one hundred twenty thousand ($120,000) dollars, ten

thousand ($10,000) dollars to each plaintiff, based on union’s

breach of its duty of fair representation).

Based on the severity of the actions of the Union, with its

malicious and grossly indifferent attitude toward Ms. Durko’s,

numerous sexual harassment complaints, Ms. Durko was forced

to endure repeated incidents of harassment on almost a daily

basis from numerous employees, suffering repeated crying spells

and loss of sleep (App. 770-772).

The Union contends that due to its size, the damages

awarded are excessive. It must be remembered that in addition

to net assets of approximately one hundred thousand ($1 00,000)

dollars, such Union takes in approximately seven thousand

($7,000) dollars per month in local union dues (App. 778-784).

If the Union wished for its damages to be limited under 42

U.S.C. § 1981a, it should have produced evidence that would

allow such limitations to be implemented.

Based on the facts of this case, it cannot be said that the

conscience of the Court should have been shocked by the jury’s

punitive damage award of twenty-five thousand ($25,000)

dollars, and therefore, the award is proper.

22

CONCLUSION

For the foregoing reasons, the Petition of the Union for a

Writ of Certiorari should be denied.

Respectfully submitted,

KIMBERLY D. BORLAND

Counsel of Record

DAVID P. TOMASZEWSKI

BORLAND & BORLAND

Attorneys for Respondent

1100 PNC Bank Building

69 Public Square

Wilkes Barre, Pennsylvania 18701

(717) 822-3311