J-A20007-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANTOINETTE CANDELARIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THE HOSPITAL OF THE UNIVERSITY :
OF PENNSYLVANIA, THE UNIVERSITY :
OF PENNSYLVANIA HEALTH SYSTEM : No. 2197 EDA 2021
AND THE TRUSTEES OF THE :
UNIVERSITY OF PENNSYLVANIA, :
:
Appellants :
Appeal from the Order Entered April 9, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 180901319
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 16, 2022
The Hospital of the University of Pennsylvania, the University of
Pennsylvania Health System, and the Trustees of the University of
Pennsylvania (collectively, Appellants), appeal from the order entered in the
Philadelphia County Court of Common Pleas on April 9, 2021, denying their
motion for summary judgment. After careful review, we reverse and remand
for the entry of summary judgment in favor of Appellants.
We glean the following factual and procedural history from the record.
Antionette Candelaria (Appellee) initiated this civil action on December 2,
2019, with the filing of a complaint against Appellants, her former employer,
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* Retired Senior Judge assigned to the Superior Court.
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alleging negligence and loss of consortium. The loss of consortium claim was
dismissed on February 17, 2021, leaving only the negligence claim at issue.
Appellee alleged in her complaint that Appellants failed to investigate her
allegations regarding the inappropriate conduct of her then co-worker, James
Esposito. Specifically, Appellee alleged that in November of 2016, Mr.
Esposito “grabbed his crotch and exposed his naked penis” to her. Complaint,
12/2/19, at ¶ 17. Appellee “immediately expressed her revulsion at his
behavior” and reported him to her department manager. Id. at ¶ 18. Her
manager then allegedly reported the incident to Appellants’ human resources
department; however, no one from human resources ever contacted Appellee.
Id. at ¶¶ 19-20. She further averred that no disciplinary actions were taken
against Mr. Esposito. Id. at ¶ 21. Appellee stated Mr. Esposito “continued
his vulgar verbal taunting and sexual [sic] inappropriate gestures” throughout
the remainder of November 2016 and into January 2017. Id. at ¶¶ 23-24.
She also alleged “[Mr.] Esposito even had the audacity to shoulder check [her]
in the hallway while she was with a patient.” Id. at ¶ 25. Appellee submitted
that despite her “numerous reports of sexual harassment and discrimination,
[Appellants] took no meaningful action to curtail [Mr. Esposito’s] behavior[,]”
causing her to resign in January of 2017. Id. at ¶¶ 27-28.
On March 1, 2021, Appellants moved for summary judgment seeking
dismissal of the complaint on the grounds that “[Appellee’s] action is premised
on conduct that falls squarely within the scope of the Pennsylvania Human
Relations Act (“PHRA”), 43 Pa.C.S. §[§] 951[-963], and the jurisdiction of the
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Pennsylvania Human Relations Commission (“PHRC”). Motion for Summary
Judgment (“MSJ”), 3/1/21, at ¶ 2. Appellants asserted that Appellee had
“attempted to bypass the legislature’s carefully crafted administrative
framework by asserting a common law negligence claim rather than asserting
a proper claim under the PHRA[,]” and that the complaint must be dismissed,
as the PHRA preempts common law causes of action. Id. at ¶¶ 3-5.
Alternatively, Appellants argued that Appellee “cannot establish a claim for
negligence as a matter of law[,]” as Pennsylvania courts have not recognized
“an employer’s duty to provide a workplace free of sexual harassment outside
of the PHRA (or the analogous Title VII of the Civil Rights Act of 1964[, 42
U.S.C. §§ 2000e-1 to 2000e-17]).” Id. at ¶¶ 6-7.
On April 9, 2021, the trial court denied Appellants’ motion for summary
judgment, finding that a genuine issue of material fact persisted, i.e., whether
the actions of Mr. Esposito were targeted towards women. See Order, 4/9/21
(single page); Trial Ct. Op., 4/4/22, at 2-3 (unpaginated). On June 30, 2021,
Appellants timely filed a petition for permission to appeal,1 which was granted
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1 On May 6, 2021, pursuant to Pa.R.A.P. 1311(b), Appellants filed a motion to
amend the language of the April 9, 2021, order to include the language
specified in 42 Pa.C.S. § 702(b) that would permit them to appeal. See 42
Pa.C.S. § 702(b) (“When a court . . ., in making an interlocutory order in a
matter in which its final order would be within the jurisdiction of an appellate
court, shall be of the opinion that such order involves a controlling question
of law as to which there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially advance the ultimate
termination of the matter, it shall so state in such order.”). The trial court
denied Appellants’ motion to amend on June 3, 2021. See Pa.R.A.P.
1311(a)(1) (allowing an appeal by permission from an interlocutory order for
which certification pursuant to 42 Pa.C.S. § 702(b) was denied).
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by this Court on November 4, 2021. The trial court directed Appellants to file
a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
They timely complied. On April 4, 2022, the trial court filed its Rule 1925(a)
opinion.
Appellants now present the following sole issue for our review on appeal:
“Whether [Appellee]’s negligence claim—premised on an alleged sexually
hostile work environment—must be dismissed because the [PHRA] preempts
such a claim as a matter of law and because no common law duty exists to
support [her] negligence claim?” Appellants’ Brief at 4.
We review the merits of Appellants’ claim mindful of the following, well-
settled principles:
Our scope of review of a trial court’s order granting or
denying summary judgment is plenary, and our standard of review
is clear: the trial court’s order will be reversed only where it is
established that the court committed an error of law or abused its
discretion.
Summary judgment is appropriate only when the record
clearly shows that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.
The reviewing court must view the record in the light most
favorable to the nonmoving party and resolve all doubts as to the
existence of a genuine issue of material fact against the moving
party. Only when the facts are so clear that reasonable minds
could not differ can a trial court properly enter summary
judgment.
Michael v. Stock, 162 A.3d 465, 472-73 (Pa. Super. 2017) (citation omitted).
Instantly, Appellants claim that the trial court erred in denying its
motion for summary judgment, because Appellee’s “negligence claim” is
essentially a sexual harassment claim which falls squarely within the scope of
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the PHRA and the jurisdiction of the PHRC. Appellants’ Brief at 10. In support
of its argument, Appellants note that Appellee references sexual harassment
and the creation of a hostile work environment numerous times in her
complaint. Id. at 16. Additionally, they point to Appellee’s deposition
testimony, in which she stated that “Mr. Esposito sexually harassed her and
that her negligence claim was premised on Mr. Esposito’s behavior and
[Appellants’] failure to respond to her reports of sexual harassment . . . .” Id.
at 17, citing N.T. Deposition, 10/26/20, at 70-71. Despite her admission that
her claim is based on alleged sexual harassment, Appellants argue that
Appellee “has ignored the fact that the PHRA is the exclusive remedy for her
claims and, instead, attempted to assert a common law claim for negligence
against [them].” Id. at 10. Moreover, they assert that her negligence claim
fails, as there is no common law duty to provide a “safe workplace,” as alleged
by Appellee. Id. at 20-21. Finally, Appellants contend that, “[b]ecause no
duty exists at common law for an employer to maintain a safe workplace that
is free from sexual harassment, [Appellee] cannot establish . . . negligence .
. . as a matter of law[,]” and the trial court’s denial of its request for summary
judgment should be reversed. Id. at 21-22. We agree.
Section 955 of the PHRA provides, in relevant part: “It shall be an
unlawful discriminatory practice, unless based upon a bona fide occupational
qualification, … [f]or any employer because of . . . sex . . . to otherwise
discriminate against such individual . . . with respect to . . . conditions or
privileges of employment . . . .” 43 P.S. § 955(a). The PHRA establishes a
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right to a remedy for discrimination in employment because of sex and
prescribes the exclusive procedures by which such rights shall be enforced.
See 43 P.S. § 953 (“The opportunity for an individual to obtain employment
for which he is qualified . . . without discrimination because of . . . sex . . . is
hereby recognized as and declared to be a civil right which shall be enforceable
as set forth in this act.”); 43 P.S. § 962(b) (providing, as to acts declared
unlawful by Section 955 of the PHRA, “the procedure herein provided shall . .
. be exclusive”).
In Clay v. Advanced Computer Applications, Inc., 559 A.2d 917 (Pa.
1989), the Pennsylvania Supreme Court made it clear that an employee must
exhaust the remedies provided for under the PHRA before commencing an
action in state court. It explained that to allow otherwise would frustrate the
statutory scheme of the PHRA and “would result in the very sort of
burdensome, inefficient, time consuming, and expensive litigation that the
PHRC was designed to avert . . . .” Id. at 920. The Court further reasoned
that,
by requiring initial utilization of administrative remedies,
aggrieved parties are not deprived of their ultimate resort to the
courts. It is provided in [S]ection 962(c) of the PHRA that the
rights of a complainant thereunder shall not be foreclosed from
being pursued in the courts, if, within one year after the filing of
a complaint, the PHRC dismisses the complaint or fails to enter a
conciliation agreement to which the complainant is a party. 43
P.S. § 962(c). The purpose for providing final, rather than initial,
resort to the courts was described in Lukus v. Westinghouse
Electric Corp., 419 A.2d 431, 455 ([Pa. Super.] 1980) (citation
omitted):
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The legislative history of [S]ection 962(c) shows that the
Legislature intended that the PHRC should have exclusive
jurisdiction of a complaint alleging violations under the
PHRA for a period of one year in order to conduct an
investigation of the charges and, if possible, conciliate the
matter. 1974 Pa.Legis.J. 6396-98. The reasons the
Legislature chose . . . to postpone a complainant’s right to
seek redress by an action in court are clear. The PHRC
possesses a “particular expertise” in the area of unlawful
discrimination not possessed by the courts. By requiring a
complainant first to [report] to the PHRC, the Legislature
ensured maximum use of the PHRC’s expertise, thereby
minimizing the inefficient use of judicial resources (and its
attendant expense and embarrassment of the parties). In
other words, the rationale of the principle of exhaustion of
administrative remedies, applicable to other areas of
administrative law, is also applicable to actions brought
under section 962(c) of the PHRA.
Id. See also Weaver v. Harpster, 975 A.2d 555, 569 n.13 (Pa. 2009)
(underscoring “the [L]egislature’s clear intention to preempt a common law
cause of action for unlawful sex discrimination”).
Based on the foregoing, there is no question that where an action falls
within its scope, the PHRA preempts a common law tort claim, and a complaint
must first be filed with the PHRC. Hence, the determining factor in this matter
is whether the allegations set forth in Appellee’s complaint constitute an
actionable claim within the ambit of the PHRA. For the following reasons, we
believe that they do.
The prohibition of discrimination on the basis of sex outlined in Section
955(a) of the PHRA “has been interpreted to include sexual harassment that
is severe or pervasive enough to create a hostile work environment.”
Philadelphia Housing Authority v. American Federation of State,
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County and Municipal Employees, 956 A.2d 477, 484 (Pa. Commw.
2008).2 “Hostile environment sexual harassment occurs when unwelcome
sexual advances, requests for sexual favors, and other verbal or physical
conduct of a sexual nature has the purpose or effect of unreasonably
interfering with an individual’s work performance or creates an intimidating,
hostile or offensive working environment.” Hoy v. Angelone, 691 A.2d 476,
480 (Pa. Super. 1997) (citation omitted). See also Renna v. PPL Electric
Utilities, Inc., 207 A.3d 355, 368 (Pa. Super. 2019) (recognizing a hostile
work environment as a form of discrimination and a cognizable claim under
the PHRA).
“The basis of an employer’s liability for hostile environment . . .
harassment depends on whether the harasser is the victim’s supervisor or
merely a coworker.” Renna, 207 A.3d at 368, quoting Huston v. Procter &
Gamble Paper Products Corp., 568 F.3d 100, 104 (3d Cir. 2009).3 Where
the harasser is a coworker, as in the instant matter, employer liability exists
if the employer failed to provide a reasonable avenue for
complaint or, alternatively, if the employer knew or should have
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2 Although decisions made by the Commonwealth Court are not binding on
this Court, they may be considered for persuasive authority. See Kraus v.
Taylor, 710 A.2d 1142, 1144 (Pa. Super. 1998).
3 Generally, PHRA claims are analyzed under the same standards as their
federal counterparts. Thus, while not binding on this Court, in interpreting
the PHRA, we may look to federal court decisions interpreting Title VII of the
Civil Rights Act of 1964. See Kroptavich v. Pennsylvania Power and Light
Co., 795 A.2d 1048, 1055 (Pa. Super. 2002); Hoy v. Angelone, 691 A.2d
476, 480 (Pa. Super. 1997) (citations omitted).
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known of the harassment and failed to take prompt and
appropriate remedial action. That is, an employer may be directly
liable for non-supervisory co-worker . . . harassment only if the
employer was negligent in failing to discover the coworker
harassment or in responding to a report of such harassment.
Renna, 207 A.3d at 368-69, quoting Huston, 568 F.3d at 104.
Thus, it is well-settled:
To succeed on a hostile work environment claim, the plaintiff must
establish that 1) the employee suffered intentional discrimination
because of his/her sex, 2) the discrimination was severe or
pervasive, 3) the discrimination detrimentally affected the
plaintiff, 4) the discrimination would detrimentally affect a
reasonable person in like circumstances, and 5) the existence of
respondeat superior liability.
Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013). See
also Vazquez v. Carr & Duff, Inc., No. CV 16-1727, 2020 WL 3869731, at
*3 (E.D. Pa. July 8, 2020).
Instantly, Appellee expressly avers in her complaint that Appellants
“created, permitted, tolerated, encouraged and foster[ed] a sexually hostile,
intimidating, demeaning, degrading, and demoralizing environment, which
hostile environment was ongoing and pervasive from November 2016 until
January 2017[.]” Complaint at ¶ 36(a). She further avers: (1) Appellants
“failed to create and/or implement policies/procedures . . . to address
workplace sexual/physical harassment,” id. at ¶ 36(j); (2) they failed to
“investigate sexual harassment claims,” id. at ¶ 36(k); and (3) they “failed to
deal expeditiously and fairly when they had knowledge of sexual harassment
within [its] departments[.]” Id. at ¶ 36(l). Moreover, even in her deposition
testimony, Appellee stated that she believed Mr. Esposito “sexually harassed”
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her and acknowledged that she is suing Appellants because they failed to
respond to her reports of sexual harassment. See N.T. Deposition at 128-29.
Thus, in her own words, Appellee’s claim mirrors most of the requisite
elements to establish a sexual harassment claim by way of hostile work
environment. The only element in dispute is whether Appellee endured
discrimination on the basis of sex. Notably, in her appellate brief, she insists
that her claims are not based on sexual harassment or gender discrimination,
and thus, the PHRA is not applicable. See Appellee’s Brief at 7. She
acknowledges that Mr. Esposito’s behavior was “vulgar” but puzzlingly claims
that his actions were not “of a sexual nature because of gender.” Id. at 12.
Instead, Appellee argues that Mr. Esposito’s actions towards her were the
result of “personal animus” and were not sexually motivated. Id. at 12-13,
15. See also id. at 13 (noting Mr. Esposito’s conduct was “personally
motivated” because Appellee was “well regarded by her peers and patients
and [she] reported him after [his] telling an inappropriate ‘joke’”). She
explains:
[T]here is no evidence that [Mr.] Esposito’s conduct was sexually
motivated. He did not sexually proposition [Appellee]. He did not
make any sexual advances toward [her]. He was never involved
in any type of romantic relationship with [her]. Instead, … [Mr.]
Esposito’s conduct may have been solely motivated by what he
perceived to be criticism by a revered and respected co-worker,
i.e., personal animus.
Id. at 15.
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Similarly, in explaining its finding that a genuine issue of material fact
persisted, i.e., whether Mr. Esposito’s actions were targeted towards women,
the trial court opined:
It is entirely conceivable that [Mr. Esposito] may have randomly
uttered vulgar statements and exposed himself to other
employees regardless of their sex or gender. If [Mr. Esposito] was
opportunistic rather than targeted and [Appellee’s] matter was
dismissed for not initiating a complaint with the PHRC[] because
she is a woman, yet allowing a nonprotected class to proceed
immediately through the courts, such results would inflict greater
harm than that which was intended to be remedied by enactment
of the PHRA.
TCO at 3 (unpaginated).
We reject both Appellee’s argument and the trial court’s reasoning in
support of its refusal to grant Appellants summary judgment. Contrary to
their suggestion, sexual motivation of the harasser is not a prerequisite to
establishing a claim for sexual harassment. In fact, the Third Circuit
pronounced that “[t]he intent to discriminate on the basis of sex in cases
involving sexual propositions, innuendo, pornographic materials, or sexual[ly]
derogatory language is implicit, and thus should be recognized as a matter of
course.” Vazquez, 2020 WL 3869731 at *4, quoting Moody v. Atlantic City
Board of Education, 870 F.3d 206, 214 (3d. Cir. 2017). See also id. (“When
the harassing conduct is sexual or sexist in nature, the but-for element will
automatically be satisfied in determining whether harassment occurred on the
basis of sex.”) (cleaned up; citation omitted). There is no question that Mr.
Esposito’s alleged conduct towards Appellee was of a sexual nature; thus,
discrimination on the basis of sex is implicit.
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Accordingly, we reverse the trial court’s April 9, 2021, order denying
Appellants’ motion for summary judgment and remand with instructions for
the trial court to enter summary judgment in favor of them.4
Order reversed. Case remanded. Jurisdiction relinquished.
Judge Pellegrini joins the memorandum.
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2022
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4 As a result of our determination that Appellee’s claim falls within the scope
of the PHRA, we need not address Appellants’ argument that Appellee failed
to establish a common law claim for negligence. See Clay, supra (clarifying
the PHRA preempts a common law tort action). However, we would agree
with Appellants that her complaint failed to identify a common law duty that
was allegedly breached by them. See Ford v. Oliver, 176 A.3d 891, 905 (Pa.
Super. 2017) (“Under Pennsylvania law[, i]n order to hold a defendant liable
for negligence, the plaintiff must prove[, inter alia,] a legally recognized duty
that defendant conform to a standard of care [and that] the defendant
breached that duty . . . .”).
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