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. e du/thir dc ir c uit_1996/140UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCU IT

__________

No. 95-3579

__________

JUDITH S. DICI, Appell ant,

v.

COMMONWEALTH OF PENNSYL VANIA;

PENNSYLVANIA STATE POLIC E BUREAU
OF LIQUOR CONTROL ENFOR CEMENT; FRANK H. MONACO; STEVEN B . BRISON

__________

On Appeal from the United States District Court
for the Western District of Pennsylvania (Civil Action No. 93- 1845)

__________

Argued May 23, 199 6

Before SLOVITER, Chief Judge, SAROKIN and OAKE S, Circuit Judges

(Filed July 31, 199 6)

__________

Andrew L. Levy, Esq. (argued) Dara A. DeCourcy , Esq. Zimmer Kunz, P.C

. Pittsburgh, PA 1 5219 Attorneys f or Appellant

Thomas W. Corbet t, Jr. Attorney Genera l

Gloria A. Tischu k (argued) Deputy Attorney General
Calvin R. Koons Senior Deputy A ttorney General John G. Knorr, I II Chief Deputy At torney GeneralPittsburgh, PA 1 5219

Attorneys f or Appellees

Commonwealt h of Pennsylvania, Pennsylvani a State Police, Bureau of Liquor E nforcement and Frank H.

Monaco Bryan Campbell, Esq. (argued) Shelly Bould Campbell, Esq. Pittsburgh, PA 1 5219 Attorneys f or Appellee Steven
Brison

_______________

OPINION OF THE COU RT

_______________

OAKES, Senior Circuit Judge: Judith S. Dici ("Dici") appeals from a summary judgment entered on September 27, 1995, by the United States District Court for the Western District of Pennsylvania in f avor of Appellees Commonwealth of Pennsylvania, Pennsylvani a State Police, Bureau of Liquor Enforcement, Frank H. Mona co ("Monaco"), and Steven Brison ("Brison"). Dici sought monetary and injunctive relief under Title VII of the Civil Righ ts Act of 1964, 42 U.S.C.  2000e et seq. (1994), and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann.  951 et seq. (1991 & Supp. 1994) ("PHRA"), for several alleged inciden ts of sexual harassment and racial bias. On appeal, Dici conten ds that the district court erred in finding her claims preclude d by a previous state workmen's compensation determination arising out of many of the same incidents alleged by Dici in th is case. Dici further claims that genuine issues of material fact prevent entry of summary judgment in favor of the Appellees. For the reasons stated below, we affirm in part, reverse in part, a nd remand.

BACKGROUND Dici began working as a liquor enforcement off icer for the Commonwealth of Pennsylvania on October 19, 1975. In 1978, Dici became an employee of the Pennsylvania State Police when it assumed the responsibilities of the Bureau of Liquo r Enforcement. Dici's duties included conducting undercover invest igations of premises licensed by the Commonwealth for violation s of the liquor law and patrolling for underage drinkers. I n 1989 and 1990, Dici taught driver training to Liquor Control Enforcement cadets at the State Police Academy. Appellee Briso n was also a liquor enforcement officer during the time period a t issue. Appellee Monaco supervised Dici during her employme nt with the
State Police. Dici claims that on August 26, 1990, she becam e physically ill and totally disabled as a result of the Appelle es' conduct. On June 14, 1991, Dici sought state workmen's compe nsation for the mental and physical disorders she alleged to ha ve suffered as a result of sexual and racial harassment on the job . In both thecase presently before us and the state workmen's co mpensation

proceeding, Dici alleged the following incidents of harassment
and bias: (1) In November 1988, at a graduation party f or transitional training, fellow employee Jerome Farmer, who dated Dici in the past, said to Dici "Why don't you and I get together and I'll show you just how much I like you." Dici walked away and reported the incident the next day. Farmer denied the incident occu rred.

(2) In August 1989, Farmer said to Dici, "Jud e, we'll get together and I'm sure we can work somethin g out." Dici declined, and later reported the incident to
Monaco. Monaco informed her that she could no t directly contact the Affirmative Action Office r (whose duties included handling reports of sexual har assment).
Monaco claimed that when he later learned that officers
could contact the Affirmative Action Officer d irectly,
he went to Dici and told her of the mistake. Dici claimed Monaco never approached her with the
information. Farmer denied the incident occur red.

(3) Dici inquired of Monaco about teaching a public speaking class in Harrisburg. Monaco, who kne w that Dici had also applied for an auditing position in Harrisburg, said, "Harrisburg, where you want to be." Dici interpreted this statement to be a commen t on her dating relationship with Captain Clanaghan, a black officer stationed in Harrisburg. Monaco denie d the

statement was made.

(4) On April 15, 1989 (a weekend day), two of ficers
took Dici into the men's bathroom at the distr ict office and showed her a drawing of a nude woma n kneeling down and leaning forward with her mou th open. Dici's name was scrawled above the drawing. D ici complained to Monaco the following Monday. Di ci claimed Monaco told her that the drawing was f lattering and there was nothing he could do about the dr awing because the bathroom was public. Monaco claim ed never

to have made such a statement and notes that t he drawing was removed on that Monday. Other wit nesses stated that the drawing had been on the wall s ince 1987 and only recently had been modified to include Dici's

name.

(5) In September or October 1989, Dici was a driving instructor for Brison, an officer trainee at t he time. Brison told Dici that he did not like being ta ught how to drive by a woman.

(6) In April 1990, when Brison and Dici were on patrol for underage drinkers, Brison told Dici that " the only [underage drinker] you would catch would be on e with abroken leg."

(7) In July 1990, Dici approached Brison to a ttempt to
reconcile their differences. Brison told Dici that women did not belong in law enforcement.

(8) On July 20, 1990, while on patrol, Brison said to Dici, "a lot of good you would try to be if th ey run away." Dici responded, "I've got a lot of pat ience but it's wearing thin, maybe your ego needs its as s kicked." Brison replied, "who higher up in th e department do you have in mind to do it for yo u?" Dici said, "no one, I'd try it myself."

(9) On July 29, 1990, Dici was informed by ano ther officer that Brison had made negative racial c omments about a black trainee under Dici's supervision

.

(10) Dici claimed to have heard about, but no t seen, a family photograph brought into the office by B rison depicting Ku Klux Klan members in full regalia

. The workmen's compensation referee found again st Dici. The referee, after hearing many witnesses from both par ties over several days, determined that Farmer's testimony wa s credible,
and that the first and second incident listed above did not occur. The referee also found the following: (1) that Monaco's testimony was credible and that the comments attrib uted to him by Dici did not occur as related by Dici; (2) that the incident of the drawing on the bathroom wall had occurred, but that the drawing had been promptly removed when Dici brought it to Monaco's attention; (3) that Brison's racial remark s and the display of the Ku Klux Klan photo of Brison's famil y were not directed toward Dici; and (4) that Brison had made the statements alleged by Dici in the fifth, sixth, and eighth inc idents listed above, but that these statements had occurred spora dically. The referee also noted that Brison had been reprimanded for these comments as well as for his negative racial remarks

. On the basis of these factual findings, the re feree determined that Dici had not been harassed or subje cted to an abnormal working environment, and thus could not re cover workmen's compensation benefits. The Workmen's Compensation Appeal Board denied Dici's appeal on September 13, 1994, and the Pennsylvania Commonwealth Court affirmed the Board on August 3, 1995. The Supreme Court of Pennsylvania denied Dic i's Petition for Allowance of Appeal on April 11, 1996. Dici filed a federal complaint on November 5, 1993. In addition to the incidents detailed above, Dici clai med the following episodes of bias occurred: (1) In October 1989, Monaco refused to assign Dici to a temporary supervisory position and instead a ssigned a male employee with fewer years of experience t o the position.

(2) In May 1990, Dici's vacation leave was tw icecancelled by Monaco for invalid reasons.

(3) On numerous occasions, Dici would work se veral days in a row but then be refused long weekend s that were regularly granted to other officers.

(4) On many occasions, Monaco refused to allo w Dici to attend training classes though he allowed male officers

to attend.

(5) Monaco and several other male employees p laced depictions of scantily clad women on the walls and
desks of the office.

(6) On several occasions, male officers refer red to Dici by various degrading terms and made impro per remarks regarding her relationship with Captai n Clanaghan and her friendship with other black officers.

In her first claim for relief, Dici asserted t hat the Appellees' behavior discriminated against Dici base d upon sex and
racial affiliation in violation of Title VII. In h er second claim for relief, Dici asserted that this same beha vior violated the PHRA. Following discovery, the Appellees moved for summary judgment. The district court referred the case to a United States Magistrate Judge for a Report and Recommenda tion in accordance with the Magistrates Act, 28 U.S.C.  636(b)(1)(A) and (B) (1994), and Rules 72.1.3 and 72.1.4 of the Western District of Pennsylvania Local Rules for Magistrate s. The magistrate judge recommended that summary judgment be granted to the Appellees, stating that "both counts of Dici's Complaint are based upon the exact allegations of her workmen's c ompensation claim: viz., that she had experienced harassment wh ich was the result of discrimination which was based upon her g ender and her association with an Afro-American State Police Capt ain." The magistrate judge concluded, "[t]he Commonwealth Cou rt's determination that Dici was not subject to harassme nt caused by gender and racial affiliation discrimination preclu des relitigation of this issue in this court." After h earing objections and responses from the parties, the dist rict court adopted the magistrate judge's Report and Recommend ation and granted summary judgment to the Appellees.

DISCUSSION Dici claims that issue preclusion should not b ar this case because the standard for granting a workmen's compe nsation claim on the basis of emotional injury in Pennsylvania is different from the standard for recovering damages under Titl e VII. Dici further claims that genuine issues of material fact prevent entry of summary judgment in favor of the Appellees. Summary judgment is mandated when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56 (c); Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988). In assessing theevidence, all factual inferences must be drawn in f avor of Dici,

the non-moving party. Arab African Int'l. Bank v. Epstein, 958 F.2d 532, 534 (3d Cir. 1992). A court must determi ne "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Libe rty Lobby, Inc., 477 U.S. 242, 251-52 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). On appeal, our review of the district court's grant of summary judgment in favor of the Appellees on the ground of issue preclusion is plen ary. Arab African Int'l Bank, 958 F.2d at 534. I. Issue Preclusion: "[O]nce a court has decided an issue of fact or law necessary to its judgment, that decisio n may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Allen v. McCurry, 449 U.S. 90, 94 (1980); see also Restatement (Secon d) of Judgments  27 (1982). This doctrine is known as issue preclusion, or, more traditionally, as collateral e stoppel. SeeMigra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 7 7 n.1 (1984). Issue preclusion is based upon the policy that "a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in s ubstance to the one he subsequently seeks to raise." Astoria F ed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 107 (1991); see also 18 Charles A. Wright et al., Federal Practice and Proc edure  4416 (1981) ("later courts should honor the first actual decision of a matter that has been actually litigated"). The doc trine of issue preclusion reduces the costs of multiple lawsuits, facilitates judicial consistency, conserves judicial resources, and "encourage[s] reliance on adjudication." Allen, 44 9 U.S. at 94. A federal court examining the preclusive effec t of a state court judgment must look to the Federal Full Faith and Credit Act, 28 U.S.C.  1738 (1994): Such Acts, records and judicial proceedings . . . shall have the same full faith and credit in every c ourt within the United States . . . as they have by law or usage in the courts of such State, Territory o r Possession from which they are taken.

Under  1738, a federal court in a Title VII action should grant preclusive effect to a state court decision upholdi ng a state administrative agency determination when the state court's decision would be barred by issue preclusion in sub sequent
actions in that state's own courts. Kremer v. Chem ical Const. Corp., 456 U.S. 461, 476-78 (1982). In Kremer, the specific issue before the Court was whether a state court decision reviewing a state employment d iscrimination agency determination should be preclusive in a late r Title VII case. Though Dici urges that we limit Kremer to ca ses involving state employment discrimination agencies, nothing i n Kremersuggests such a narrow reading. Indeed, we have extended Kremerto state court review of agency decisions in areas other than employment discrimination. See Edmundson v. Boroug h of Kennett Square, 4 F.3d 186, 189-90 (3d Cir. 1993) (state co urt review of an unemployment compensation board decision); Rider v.Pennsylvania, 850 F.2d 982, 994 (3d Cir.) (state co urt review of

an arbitrator's collective bargaining agreement det ermination), cert. denied, 488 U.S. 993 (1988); Gregory v. Chehi , 843 F.2d 111, 121 (3d Cir. 1988) (state court review of Town ship Council's wrongful discharge determination). These extension s are supported by Kremer's statement that "[n]othing in the legislative history of [Title VII] suggests that Co ngress considered it necessary or desirable to provide an absolute right to relitigate in federal court an issue resolved by a state court." 456 U.S. at 473. As the Court noted, "[s] tate authorities are charged with enforcing laws, and st ate courts are presumed competent to interpret those laws." Id. a t 478. Thus, by the terms of  1738 and Kremer, the prior state workmen's compensation decision, affirmed by the Pe nnsylvania Commonwealth Court, may preclude Dici's Title VII a ction. In order to determine whether issue preclusion applies , we must look to Pennsylvania law to discover the extent to which the workmen's compensation decision would be granted preclusive e ffect in a later state court proceeding. In Pennsylvania, issue preclusion "'forecloses re-litigation in a later action[] of an issue of fact or law whic h was actually litigated and which was necessary to the original j udgment.'" Hebden v. Workmen's Compensation Appeal Bd. (Bethen ergy Mines, Inc.), 534 Pa. 327, 330, 632 A.2d 1302, 1304 (1993) (quoting City of Pittsburgh v. Zoning Bd. of Adjustment, 522 Pa. 44, 55, 559 A.2d 896, 901 (1989)); see also Restatement (Second ) of Judgments,  27 cmt. c (1982) ("An issue on which relitigation is foreclosed may be one of evidentiary fact, of 'ulti mate fact' (i.e., the application of law to fact), or of law." ). Issue preclusion is appropriately invoked if: (1) the issue decided in the prior adjudicatio n was identical with the one presented in the later action, (2) there was a final judgment on the merits, (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudicat ion, and (4) the party against whom it is asserted has had a full and fair opportunity to litigate the issu e in question in a prior action. Safeguard Mut. Ins. Co. v. Williams, 463 Pa. 567, 5 74, 345 A.2d 664, 668 (1975) (citations omitted); Shaffer v. Smi th, 673 A.2d 872, 874 (Pa. 1996). The party asserting issue pre clusion, here the Appellees, bears the burden of proving its appl icability to the case at hand. See United States v. Nicolet, In c., 712 F. Supp. 1193, 1200 (E.D. Pa. 1989) (citing Allen v. Z urich Ins. Co., 667 F.2d 1162, 1165-66 (4th Cir. 1982) and Her nandez v. City of Los Angeles, 624 F.2d 935, 937-38 (9th Cir. 1980 )). There can be no dispute that the second and th ird criteria for issue preclusion listed above have been fulfill ed. The judgment of the Commonwealth Court, affirming denia l of workmen's compensation to Dici, became final in August 1995, and the Pennsylvania Supreme Court denied Dici's Petition f or Allowance of Appeal in April 1996. Also, Dici was clearly a party to the workmen's compensation proceeding. Thus, the appli cability of issue preclusion in this case depends upon the firs t and fourthcriteria: whether the issues presented in the work men's

compensation proceeding are identical to those now before us, and whether Dici enjoyed a full and fair opportunity to litigate the issues in the prior proceeding. If either criterio n is not met, we will not apply issue preclusion in this case. The district court, adopting the Magistrate's Report and Recommendation, found that "both counts of Dici's c omplaint are based upon the exact allegations of her workmen's c ompensation claim . . . . [t]he Commonwealth Court's determinat ion that Dici was not subject to harassment caused by gender and racial affiliation discrimination precludes relitigation o f this issue in this court." We disagree with the conclusion of the district court and find that the legal issues presented in t he Pennsylvania workmen's compensation hearing were no t identical to
the issues of Dici's Title VII case. Pennsylvania has adopted an objective test for determining whether a psychic injury may qualify an employee fo r workmen's compensation. Philadelphia Newspapers, Inc. v. Wor kmen's Compensation Appeal Bd. (Guaracino), 675 A.2d 1213, 1215 (Pa. 1996). When, as in Dici's case, no physical injury triggers the psychic injury, the claimant must prove either (a) that actual extraordinary events occurred at work which ca used the trauma and that these specific events can be p inpointed in time or (b) that abnormal working condition s over a longer period of time caused the psychic injur y. North Huntingdon Township v. Workmen's Compensation Appeal Bd. (Noble), 165 Pa. Commw. 33, 37, 644 A.2d 227, 229, appeal denied, 539 Pa. 659, 651 A.2d 545 (1994). It appears from the workmen's compensation record that Dici proceeded under the s econd of these prongs, the "abnormal working conditions" theory. The phrase "abnormal working conditions" is used by the Pennsy lvania courts to distinguish psychiatric injuries that are compensable because the necessary causal relat ionship between the employment and mental disability h as been established from those psychiatric injuries th at arise from the employee's subjective reactions to no rmal working conditions. Martin v. Ketchum, Inc., 523 Pa. 509, 518, 568 A.2d 159, 164 (1990). In order to meet the objective test for abnorm al working conditions, a worker must show that the employment circumstances would, by their nature, cause mental injury to one with a "healthy psyche." Calabris v. Workmen's Compensati on Appeal Bd. (American General Cos.), 141 Pa. Commw. 405, 413, 5 95 A.2d 765, 769 (1991); see also Marsico v. Workmen's Compensat ion Appeal Bd. (Dept. of Revenue), 138 Pa. Commw. 352, 359, 588 A. 2d 984, 987-88 (1991) (no compensation for a psychic injury arisin g from harassment unless the alleged harassment qualifies as "abnormal working conditions"). Under the Pennsylvania workm en's compensation scheme, then, Dici was required to sho w that the

harassment she suffered was conduct that would caus e mental injury in an average worker with a "healthy psyche. " By contrast, in order to recover under Title V II, a workerneed not demonstrate that the conduct alleged cause d a tangible

psychological injury. Harris v. Forklift Systems, Inc., __ U.S. __, 114 S. Ct. 367, 370 (1993). In Harris, the Cou rt reversed a
lower court's decision that Harris could not recove r Title VII damages. The lower court had found that the conduc t Harris alleged "was not so severe as to be expected to ser iously affect plaintiff's psychological well-being." Id. at 371. Reversing,

the Court held that [c]ertainly Title VII bars conduct that would seriously affect a reasonable person's psychological wel l-being,
but the statute is not limited to such conduct . So long as the environment would reasonably be pe rceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurio us. Id. (emphasis added) (citing Meritor Savings Bank v . Vinson, 477 U.S. 57, 67 (1986)). Thus, the legal issues in Dici's workmen's compensation proceeding are not identical to those in the Title VII context. In the Pennsylvania workmen's compensation framewor k, "harassment" and "abnormal working conditions" are defined in terms of objective mental injury; in the Title VII context, psychological injury is not required. We therefore find that issue preclusion cannot apply to the legal question s presented in
Dici's case. Though the legal issues are distinct, many of the factual allegations in the workmen's compensation proceedin g and this case are identical. The workmen's compensation ref eree credited as true only a few of the incidents alleged by Dici , and found as
a matter of fact that the remainder had not occurre d, or had not occurred as Dici alleged. Mindful that preclusion may apply to both legal and factual issues, Hebden, 534 Pa. at 3 30, 632 A.2d at 1304; Restatement (Second) of Judgments  27 cmt. c (1982), we must consider whether Dici may relitigate in federa l court those factual issues already determined not credible by t he workmen's compensation referee. Reviewing Pennsylvania law, we believe that a Pennsylvania court would not apply issue pre clusion to the
facts of Dici's case. In Odgers v. Commonwealth Unemployment Compens ation Board of Review, 514 Pa. 378, 525 A.2d 359 (1987), the Penns ylvania Supreme Court refused to grant preclusive effect to an earlier Commonwealth Court ruling. In the first action, th e Commonwealth Court found that the school district employees' wor k stoppage was a strike within the meaning of the Pennsylvania Pub lic Employee Relations Act ("PERA"). When individual employees later applied for unemployment compensation, the Unemployment Compensation
Board of Review determined that the Commonwealth Co urt's characterization of the work stoppage as a strike p recluded the employees from relitigating the nature of the work stoppage under Pennsylvania's unemployment compensation laws. The Pennsylvania Supreme Court reversed the Bo ard's finding, however, holding that the PERA issue before the Commonwealth Court was not identical to the issue presented in t he unemployment compensation proceeding. As the court stated, PERA and the unemployment compensation laws "embody diff erent policiesand involve different rights." Id. at 389, 364. S ubsequent to

Odgers, several other Pennsylvania cases have denie d preclusive effect to both the facts and law of an earlier judg ment when the policies and procedures applicable to the first act ion were
different from those of the later action. See Verb illa v. Workmen's Compensation Appeal Bd. (Schuylkill Nursi ng Ass'n), 668 A.2d 601 (Pa. Commw. Ct. 1995) (unemployment compen sation referee's factual findings that hospital worker was not abused by patient did not preclude later workmen's compensati on proceeding regarding whether worker was injured in the course of employment because the policies and procedures of the two lega l schemes were not similar); Johnsonbaugh v. Department of Pub. We lfare, 665 A.2d 20 (Pa. Commw. Ct. 1995) (unemployment compens ation hearing determination that worker did not engage in willful misconduct did not preclude later Civil Service Commission dec ision regarding whether the employer dismissed the worker for just
cause because the two issues were distinct as were the policies of the two legal schemes); Bortz v. Workmen's Compe nsation Appeal Bd. (Renzor Div. of FL Indus.), 656 A.2d 554 (Pa. C ommw. Ct.) (unemployment compensation finding regarding willfu l misconduct not preclusive in later workmen's compensation hear ing regarding unsatisfactory job performance because the issues a nd the procedures in the two proceedings were distinct), a ppeal granted, 542 Pa. 675, 668 A.2d 1137 (1995). The Appellees contend that Odgers and its prog eny apply only to issue preclusion decisions in cases involving tw o agency determinations, rather than to cases involving an e arlier agency
determination and a later civil suit. We do not fi nd merit in this argument. Nothing in Odgers purports to limit its effect to cases involving preclusion between agencies. Indee d, the rationale behind Odgers is as applicable to agency/ civil suit preclusion as it is to agency/agency preclusion. W e have recognized this by applying the principles of Odger s to cases where preclusion was asserted between an earlier st ate agency
determination and a later federal civil action. Se e Swineford v. Snyder County Pennsylvania, 15 F.3d 1258 (3d Cir. 1 994) (unemployment compensation hearing findings not pre clusive in a

later  1983 action); Kelley v. TYK Refractories Co., 860 F.2d 1188 (3d Cir. 1988) (factual findings of unemployme nt compensation hearing not preclusive in later  1981 suit); Tukesbrey v. Midwest Transit, Inc., 822 F. Supp. 11 92 (W.D. Pa. 1993) (unemployment compensation hearing determinat ion regarding wrongful misconduct not preclusive in a later Veter an's Reemployment Rights Act case regarding just termina tion). As we stated in Swineford, "[u]nder Odgers, re viewing courts must look beyond the superficial similarities betwe en the two issues to the policies behind the two actions. Onl y where the two actions promote similar policies will the two i ssues be identical for purposes of issue preclusion." Swine ford, 15 F.3d at 1267-68. We believe that Pennsylvania courts wo uld apply this reasoning to the workmen's compensation proceeding in Dici's case. The policy of Title VII is to achieve equali ty of employment opportunities and remedy discrimination in the workplace. By contrast, Pennsylvania's workmen's c ompensationlaw is designed to define the liability of employer s for injuries

to employees occurring in the course of employment. Moreover, the procedures utilized in workmen's compensation p roceedings differ from those employed in federal court. For e xample, "[n]either the board nor any of its members nor any referee shall be bound by the common law or statutory rules of ev idence in conducting any hearing or investigation . . . ." 7 7 Pa. Cons.

Stat. Ann.  834 (1991). Given this court's admonition that "[r]easonable doubt as to what was decided by a pri or judgment should be resolved against using it as an estoppel, " Gregory, 843 F.2d at 121 (quoting Kauffman v. Moss, 420 F.2d 127 0, 1274 (3d Cir.), cert. denied, 400 U.S. 346 (1970)), we find that issue preclusion should not apply to the facts of Dici's case. In holding that the law and facts of Dici's ca se are not precluded, we do not mean to imply that a Pennsylva nia workmen's compensation determination should never be given pr eclusive effect in a later suit. Indeed, in many cases prec lusion has been found appropriate. For example, in Capobianch i v. Bic Corp., 666 A.2d 344 (Pa. Super. Ct.), appeal denied , 674 A.2d 1065 (1995), the court determined that a workmen's compensation hearing determination regarding the cause of the wo rker's injury should be given preclusive effect in a later produc ts liability action. The court found that the issues presented in both proceedings, viz., whether the worker's neck injury was caused by a degenerative condition or by an exploding Bic lig hter, were identical. Id. at 349. See also Phillips v. A.P. Green Refractories Co., 630 A.2d 874 (Pa. Super. Ct. 1993 ) (workmen's compensation decision that worker did not suffer si licosis preclusive in later products liability suit), aff'd , 542 Pa. 124, 665 A.2d 1167 (1994); Grant v. GAF Corp., 608 A.2d 1047 (Pa. Super. Ct. 1992) (workmen's compensation finding th at worker's cancer was not caused by asbestos in the workplace preclusive in later products liability case), aff'd, 536 Pa. 429, 639 A.2d 1170 (1994). As the Grant court found, "proximate cause in a personal injury tort action and causal connection in workmen 's compensation cases are analogous principles." Id. at 1057. These cases demonstrate that when the issues presen ted are the same, Pennsylvania courts will not hesitate to gran t preclusive effect to workmen's compensation proceedings. As is evident from a review of Dici's case, ho wever, the issues presented in this Title VII case are differe nt from those of the workmen's compensation proceeding. The diff erences are highlighted when one examines the distinct policies underlying each legal regime. Therefore, it would be inapprop riate to apply issue preclusion to this case. We reverse the dist rict court's grant of summary judgment to the Appellees on this basis. II. Other Grounds for Summary Judgment: The Appel lees moved for summary judgment both on the ground of issue preclu sion and on the merits. Brison moved for summary judgment for the additional reason that an individual co-employee cannot be hel d liable under Title VII. On appeal, Dici claims that if issue pr eclusion does not bar her case, genuine issues of material fact e xist precluding summary judgment. The district court, h aving found that issue preclusion applied, did not address the other groundsfor summary judgment offered by the Appellees. Tho ugh our review

of a summary judgment motion is plenary, we think t hat the district court is in the better position to conside r whether summary judgment is proper on the merits of this ca se given that issue preclusion was the focus of the briefs and ar guments before us. Therefore, we believe the best course is to re mand the case
to the district court. We can, however, on the record and briefs befo re us, decide whether Steven Brison and Frank Monaco are proper d efendants to
Dici's Title VII and PHRA claims. When the issue o f individual liability was before this court in Sheridan v. E. I . DuPont de Nemours, 1996 W.L. 36283 (3d Cir. 1996), vacated, 7 4 F.3d 1439 (3d Cir. 1996), the court held that an individual e mployee cannot be liable under Title VII. The majority opinion wr itten by Judge Alito noted the great weight of authority from othe r courts of appeals holding an employee cannot be sued under Ti tle VII. See, e.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995); Cross v. Alabama, 49 F.3d 1490, 1504 (11th Cir. 199 5); Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir. 1994); Sa uers v. Salt Lake Co., 1 F.3d 1122, 1125 (10th Cir. 1993); Mille r v. Maxwell Int'l Inc., 991 F.2d 583, 587 (9th Cir. 1993). Chi ef Judge Sloviter, who dissented in Sheridan on other ground s, commented that, although she found the reasoning of those jud ges who dissented from the opinions in the other circuits c onvincing, in light of the authority otherwise she saw no reason to dissent from the Sheridan majority on the issue of individu al liability
under Title VII. The Sheridan opinion was withdrawn when the co urt voted to take the case en banc, and the appeal was argued be fore the en banc court on May 14, 1996. However, the principal focus of the en banc briefs and arguments was on Title VII issue s other than individual liability. In light of this, we conclud e, for the reasons previously given by the court in Sheridan a nd the other courts of appeals, that individual employees cannot be held liable under Title VII. Therefore, Dici cannot sus tain her Title VII claims against Brison and Monaco. To this exte nt, then, we affirm the district court's grant of summary judgme nt, though on different grounds. Dici argues that even if an individual employe e cannot be liable under Title VII, the employee is still a pro per defendant under the PHRA. Generally, the PHRA is applied in accordance with Title VII. Davis v. Sheraton Society Hill Hot el, 907 F. Supp. 896, 899 n.1 (E.D. Pa. 1995). Like Title VII , the definition of an employer under the PHRA cannot be construed to include "employees;" indeed, "employee" is defined as a wholly separate term under the Act. See 43 Pa. Cons. Stat . Ann.
 954(b) & (c). The employment discrimination provi sion of the PHRA declares only that "any employer" may be held liable. See43 Pa.

Cons. Stat. Ann.  955(a). A different section of the PHRA, however, cont emplates liability that extends beyond that of Title VII. S ection 955(e) forbids "any person, employer, employment agency, l abor organization or employee, to aid, abet, incite, compel or coerce the doing of any act declared by this section to be an unlawfuldiscriminatory practice . . . ." 43 Pa. Cons. Stat . Ann.

 955(e). Both Brison and Monaco certainly qualify as "person[s]" and "employee[s]" under  955(e). The question, then, is whether either of them may be a proper def endant under the section for aiding and abetting the unlawful di scriminatory practices of Dici's employer. We find that summary judgment in favor of Bris on on Dici's PHRA claim is appropriate because Brison is not a p roper defendant under  955(e). Dici's PHRA claim against the Appellees rests upon, as her complaint states, thei r failure "to take prompt remedial measures after having notifica tion that discriminatory actions had occurred." Dici has all eged no facts
that would indicate that Brison aided or abetted Di ci's employer in refusing to take prompt remedial action against any discrimination suffered by Dici. Rather, her compl aint alleges only direct incidents of Brison's harassment. Such incidents are not covered by the terms of  955(e). As one court has said in construing a nearly identical provision of the New Jersey Law Against Discrimination:

One might argue, of course, that both [the emp loyee and the employer] share the "intent" to create a discriminatory atmosphere. We believe, howeve r, that the employer's reaction is sufficiently divorc ed from the employee's conduct that there is no commun ity of purpose between them. A non-supervisory emplo yee who engages in discriminatory conduct cannot be sa id to "intend" that his employer fail to respond. Tyson v. Cigna Corp., 918 F. Supp. 836, 841 (D.N.J. 1996). We cannot, however, grant summary judgment to Monaco on Dici's PHRA claim. As Dici's supervisor, Monaco is a proper defendant under  955(e) and might be liable for aiding and abetting discriminatory practices, as Dici has plea ded facts which, if true, could impose liability for violatio ns of the PHRA. For example, in paragraph 14 of the complain t, Dici states, "[a]lthough Sergeant Monaco knew or should have known that the Plaintiff was being subject to . . . haras sment . . ., he repeatedly refused to take prompt action to end the harassment directed at Plaintiff . . . ." Such conduct, if pr oven, would constitute aiding and abetting. However, because Monaco cannot be held liable under Title VII, there exists no independent jurisdictional bas is to maintain a PHRA claim against Monaco in federal court. We, therefore,
leave it to the district court to decide whether to exercise supplemental jurisdiction under 28 U.S.C.  1367 (1994) over Dici's PHRA claim against Monaco.

CONCLUSION For the foregoing reasons, we affirm in part, reverse in part, and remand to the district court the grant of summary judgment in favor of the Appellees.