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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1167

## Text

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
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A. FROG TD 6 os cnccdsidedekadssaeew l
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
DGS. TET 6 UE «0 ono cccdscsesbueaesae 14

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0249%3A2. Public record. Not legal advice.