1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-31-1996

Dici v. Comm of PA

Precedential or Non-Precedential:

Docket 95-3579

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Recommended Citation

"Dici v. Comm of PA" (1996). 1996 Decisions. Paper 140.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 __________ 

 

 No. 95-3579 

 __________ 

 

 

 

 JUDITH S. DICI, 

 Appellant, 

 

 v. 

 

 COMMONWEALTH OF PENNSYLVANIA; 

 PENNSYLVANIA STATE POLICE BUREAU 

 OF LIQUOR CONTROL ENFORCEMENT; 

 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, 1996 

 

 Before SLOVITER, Chief Judge, SAROKIN and OAKES, 

 Circuit Judges 

 

 

 (Filed July 31, 1996) 

 

 __________ 

 

 

 Andrew L. Levy, Esq. (argued) 

 Dara A. DeCourcy, Esq. 

 Zimmer Kunz, P.C. 

 Pittsburgh, PA 15219 

 Attorneys for Appellant 

 

 Thomas W. Corbett, Jr. 

 Attorney General 

 

 Gloria A. Tischuk (argued) 

 Deputy Attorney General 

 Calvin R. Koons 

 Senior Deputy Attorney General 

 John G. Knorr, III 

 Chief Deputy Attorney General 
 Pittsburgh, PA 15219 

 Attorneys for Appellees 

 Commonwealth of Pennsylvania, 

 Pennsylvania State Police, Bureau 

 of Liquor Enforcement and Frank H. 

 Monaco 

 Bryan Campbell, Esq. (argued) 

 Shelly Bould Campbell, Esq. 

 Pittsburgh, PA 15219 

 Attorneys for Appellee Steven 

 Brison 

 _______________ 

 

 OPINION OF THE COURT 

 _______________ 

 

 

 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 favor of 

Appellees Commonwealth of Pennsylvania, Pennsylvania State 

Police, Bureau of Liquor Enforcement, Frank H. Monaco ("Monaco"), 

and Steven Brison ("Brison"). Dici sought monetary and 

injunctive relief under Title VII of the Civil Rights 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 incidents of sexual 

harassment and racial bias. On appeal, Dici contends that the 

district court erred in finding her claims precluded by a 

previous state workmen's compensation determination arising out 

of many of the same incidents alleged by Dici in this 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, and remand. 

 BACKGROUND 

 Dici began working as a liquor enforcement officer 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 Liquor Enforcement. 

Dici's duties included conducting undercover investigations of 

premises licensed by the Commonwealth for violations of the 

liquor law and patrolling for underage drinkers. In 1989 and 

1990, Dici taught driver training to Liquor Control Enforcement 

cadets at the State Police Academy. Appellee Brison was also a 

liquor enforcement officer during the time period at issue. 

Appellee Monaco supervised Dici during her employment with the 

State Police. 

 Dici claims that on August 26, 1990, she became physically 

ill and totally disabled as a result of the Appellees' conduct. 

On June 14, 1991, Dici sought state workmen's compensation for 

the mental and physical disorders she alleged to have suffered as 

a result of sexual and racial harassment on the job. In both the 
case presently before us and the state workmen's compensation 

proceeding, Dici alleged the following incidents of harassment 

and bias: 

 (1) In November 1988, at a graduation party for 

 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 occurred. 

 (2) In August 1989, Farmer said to Dici, "Jude, we'll 

 get together and I'm sure we can work something out." 

 Dici declined, and later reported the incident to 

 Monaco. Monaco informed her that she could not 

 directly contact the Affirmative Action Officer (whose 

 duties included handling reports of sexual harassment). 

 Monaco claimed that when he later learned that officers 

 could contact the Affirmative Action Officer directly, 

 he went to Dici and told her of the mistake. Dici 

 claimed Monaco never approached her with the 

 information. Farmer denied the incident occurred. 

 (3) Dici inquired of Monaco about teaching a public 

 speaking class in Harrisburg. Monaco, who knew 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 comment on her 

 dating relationship with Captain Clanaghan, a black 

 officer stationed in Harrisburg. Monaco denied the 

 statement was made. 

 (4) On April 15, 1989 (a weekend day), two officers 

 took Dici into the men's bathroom at the district 

 office and showed her a drawing of a nude woman 

 kneeling down and leaning forward with her mouth open. 

 Dici's name was scrawled above the drawing. Dici 

 complained to Monaco the following Monday. Dici 

 claimed Monaco told her that the drawing was flattering 

 and there was nothing he could do about the drawing 

 because the bathroom was public. Monaco claimed never 

 to have made such a statement and notes that the 

 drawing was removed on that Monday. Other witnesses 

 stated that the drawing had been on the wall since 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 the time. 

 Brison told Dici that he did not like being taught 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 one with a 
 broken leg." 

 (7) In July 1990, Dici approached Brison to attempt 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 they run 

 away." Dici responded, "I've got a lot of patience but 

 it's wearing thin, maybe your ego needs its ass 

 kicked." Brison replied, "who higher up in the 

 department do you have in mind to do it for you?" Dici 

 said, "no one, I'd try it myself." 

 (9) On July 29, 1990, Dici was informed by another 

 officer that Brison had made negative racial comments 

 about a black trainee under Dici's supervision. 

 (10) Dici claimed to have heard about, but not seen, a 

 family photograph brought into the office by Brison 

 depicting Ku Klux Klan members in full regalia. 

 The workmen's compensation referee found against Dici. The 

referee, after hearing many witnesses from both parties over 

several days, determined that Farmer's testimony was 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 attributed 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 remarks and the 

display of the Ku Klux Klan photo of Brison's family were not 

directed toward Dici; and (4) that Brison had made the statements 

alleged by Dici in the fifth, sixth, and eighth incidents listed 

above, but that these statements had occurred sporadically. 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 referee 

determined that Dici had not been harassed or subjected to an 

abnormal working environment, and thus could not recover 

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 Dici'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 claimed the 

following episodes of bias occurred: 

 (1) In October 1989, Monaco refused to assign Dici to 

 a temporary supervisory position and instead assigned a 

 male employee with fewer years of experience to the 

 position. 

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

 (3) On numerous occasions, Dici would work several 

 days in a row but then be refused long weekends that 

 were regularly granted to other officers. 

 (4) On many occasions, Monaco refused to allow Dici to 

 attend training classes though he allowed male officers 

 to attend. 

 (5) Monaco and several other male employees placed 

 depictions of scantily clad women on the walls and 

 desks of the office. 

 (6) On several occasions, male officers referred to 

 Dici by various degrading terms and made improper 

 remarks regarding her relationship with Captain 

 Clanaghan and her friendship with other black officers. 

 In her first claim for relief, Dici asserted that the 

Appellees' behavior discriminated against Dici based upon sex and 

racial affiliation in violation of Title VII. In her second 

claim for relief, Dici asserted that this same behavior 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 Recommendation 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 Magistrates. 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 compensation 

claim: viz., that she had experienced harassment which was the 

result of discrimination which was based upon her gender and her 

association with an Afro-American State Police Captain." The 

magistrate judge concluded, "[t]he Commonwealth Court's 

determination that Dici was not subject to harassment caused by 

gender and racial affiliation discrimination precludes 

relitigation of this issue in this court." After hearing 

objections and responses from the parties, the district court 

adopted the magistrate judge's Report and Recommendation and 

granted summary judgment to the Appellees. 

 DISCUSSION 

 Dici claims that issue preclusion should not bar this case 

because the standard for granting a workmen's compensation claim 

on the basis of emotional injury in Pennsylvania is different 

from the standard for recovering damages under Title 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 the 
evidence, all factual inferences must be drawn in favor of Dici, 

the non-moving party. Arab African Int'l. Bank v. Epstein, 958 

F.2d 532, 534 (3d Cir. 1992). A court must determine "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. Liberty 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 plenary. 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 decision 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 (Second) of 

Judgments  27 (1982). This doctrine is known as issue 

preclusion, or, more traditionally, as collateral estoppel. SeeMigra v. 

Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 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 substance to 

the one he subsequently seeks to raise." Astoria Fed. Sav. & 

Loan Ass'n v. Solimino, 501 U.S. 104, 107 (1991); see also 18 

Charles A. Wright et al., Federal Practice and Procedure  4416 

(1981) ("later courts should honor the first actual decision of a 

matter that has been actually litigated"). The doctrine of issue 

preclusion reduces the costs of multiple lawsuits, facilitates 

judicial consistency, conserves judicial resources, and 

"encourage[s] reliance on adjudication." Allen, 449 U.S. at 94. 

 A federal court examining the preclusive effect 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 court 

 within the United States . . . as they have by law or 

 usage in the courts of such State, Territory or 

 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 upholding a state 

administrative agency determination when the state court's 

decision would be barred by issue preclusion in subsequent 

actions in that state's own courts. Kremer v. Chemical 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 discrimination 

agency determination should be preclusive in a later Title VII 

case. Though Dici urges that we limit Kremer to cases involving 

state employment discrimination agencies, nothing in 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. Borough of Kennett 

Square, 4 F.3d 186, 189-90 (3d Cir. 1993) (state court review of 

an unemployment compensation board decision); Rider v. 
Pennsylvania, 850 F.2d 982, 994 (3d Cir.) (state court review of 

an arbitrator's collective bargaining agreement determination), 

cert. denied, 488 U.S. 993 (1988); Gregory v. Chehi, 843 F.2d 

111, 121 (3d Cir. 1988) (state court review of Township Council's 

wrongful discharge determination). These extensions are 

supported by Kremer's statement that "[n]othing in the 

legislative history of [Title VII] suggests that Congress 

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 state courts are 

presumed competent to interpret those laws." Id. at 478. 

 Thus, by the terms of  1738 and Kremer, the prior state 

workmen's compensation decision, affirmed by the Pennsylvania 

Commonwealth Court, may preclude Dici's Title VII action. 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 effect in a 

later state court proceeding. 

 In Pennsylvania, issue preclusion "'forecloses re-litigation 

in a later action[] of an issue of fact or law which was actually 

litigated and which was necessary to the original judgment.'" 

Hebden v. Workmen's Compensation Appeal Bd. (Bethenergy 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 'ultimate 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 adjudication 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 adjudication, and 

 (4) the party against whom it is asserted has had a 

 full and fair opportunity to litigate the issue in 

 question in a prior action. 

Safeguard Mut. Ins. Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 

664, 668 (1975) (citations omitted); Shaffer v. Smith, 673 A.2d 

872, 874 (Pa. 1996). The party asserting issue preclusion, here 

the Appellees, bears the burden of proving its applicability to 

the case at hand. See United States v. Nicolet, Inc., 712 F. 

Supp. 1193, 1200 (E.D. Pa. 1989) (citing Allen v. Zurich Ins. 

Co., 667 F.2d 1162, 1165-66 (4th Cir. 1982) and Hernandez v. City 

of Los Angeles, 624 F.2d 935, 937-38 (9th Cir. 1980)). 

 There can be no dispute that the second and third criteria 

for issue preclusion listed above have been fulfilled. The 

judgment of the Commonwealth Court, affirming denial of workmen's 

compensation to Dici, became final in August 1995, and the 

Pennsylvania Supreme Court denied Dici's Petition for Allowance 

of Appeal in April 1996. Also, Dici was clearly a party to the 

workmen's compensation proceeding. Thus, the applicability of 

issue preclusion in this case depends upon the first and fourth 
criteria: whether the issues presented in the workmen'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 criterion 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 complaint are 

based upon the exact allegations of her workmen's compensation 

claim . . . . [t]he Commonwealth Court's determination that Dici 

was not subject to harassment caused by gender and racial 

affiliation discrimination precludes relitigation of this issue 

in this court." We disagree with the conclusion of the district 

court and find that the legal issues presented in the 

Pennsylvania workmen's compensation hearing were not 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 for workmen's 

compensation. Philadelphia Newspapers, Inc. v. Workmen'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 caused the 

 trauma and that these specific events can be pinpointed 

 in time or (b) that abnormal working conditions over a 

 longer period of time caused the psychic injury. 

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 second of these 

prongs, the "abnormal working conditions" theory. The phrase 

"abnormal working conditions" is used by the Pennsylvania courts 

 to distinguish psychiatric injuries that are 

 compensable because the necessary causal relationship 

 between the employment and mental disability has been 

 established from those psychiatric injuries that arise 

 from the employee's subjective reactions to normal 

 working conditions. 

Martin v. Ketchum, Inc., 523 Pa. 509, 518, 568 A.2d 159, 164 

(1990). 

 In order to meet the objective test for abnormal 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 Compensation Appeal Bd. 

(American General Cos.), 141 Pa. Commw. 405, 413, 595 A.2d 765, 

769 (1991); see also Marsico v. Workmen's Compensation Appeal Bd. 

(Dept. of Revenue), 138 Pa. Commw. 352, 359, 588 A.2d 984, 987-88 

(1991) (no compensation for a psychic injury arising from 

harassment unless the alleged harassment qualifies as "abnormal 

working conditions"). Under the Pennsylvania workmen's 

compensation scheme, then, Dici was required to show that the 

harassment she suffered was conduct that would cause mental 

injury in an average worker with a "healthy psyche." 

 By contrast, in order to recover under Title VII, a worker 
need not demonstrate that the conduct alleged caused a tangible 

psychological injury. Harris v. Forklift Systems, Inc., __ U.S. 

__, 114 S. Ct. 367, 370 (1993). In Harris, the Court reversed a 

lower court's decision that Harris could not recover Title VII 

damages. The lower court had found that the conduct Harris 

alleged "was not so severe as to be expected to seriously 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 well-being, 

 but the statute is not limited to such conduct. So 

 long as the environment would reasonably be perceived, 

 and is perceived, as hostile or abusive, there is no 

 need for it also to be psychologically injurious. 

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 framework, 

"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 questions presented in 

Dici's case. 

 Though the legal issues are distinct, many of the factual 

allegations in the workmen's compensation proceeding and this 

case are identical. The workmen's compensation referee credited 

as true only a few of the incidents alleged by Dici, and found as 

a matter of fact that the remainder had not occurred, or had not 

occurred as Dici alleged. Mindful that preclusion may apply to 

both legal and factual issues, Hebden, 534 Pa. at 330, 632 A.2d 

at 1304; Restatement (Second) of Judgments  27 cmt. c (1982), we 

must consider whether Dici may relitigate in federal court those 

factual issues already determined not credible by the workmen's 

compensation referee. Reviewing Pennsylvania law, we believe 

that a Pennsylvania court would not apply issue preclusion to the 

facts of Dici's case. 

 In Odgers v. Commonwealth Unemployment Compensation Board of 

Review, 514 Pa. 378, 525 A.2d 359 (1987), the Pennsylvania 

Supreme Court refused to grant preclusive effect to an earlier 

Commonwealth Court ruling. In the first action, the Commonwealth 

Court found that the school district employees' work stoppage was 

a strike within the meaning of the Pennsylvania Public Employee 

Relations Act ("PERA"). When individual employees later applied 

for unemployment compensation, the Unemployment Compensation 

Board of Review determined that the Commonwealth Court's 

characterization of the work stoppage as a strike precluded the 

employees from relitigating the nature of the work stoppage under 

Pennsylvania's unemployment compensation laws. 

 The Pennsylvania Supreme Court reversed the Board's finding, 

however, holding that the PERA issue before the Commonwealth 

Court was not identical to the issue presented in the 

unemployment compensation proceeding. As the court stated, PERA 

and the unemployment compensation laws "embody different policies 
and involve different rights." Id. at 389, 364. Subsequent to 

Odgers, several other Pennsylvania cases have denied preclusive 

effect to both the facts and law of an earlier judgment when the 

policies and procedures applicable to the first action were 

different from those of the later action. See Verbilla v. 

Workmen's Compensation Appeal Bd. (Schuylkill Nursing Ass'n), 668 

A.2d 601 (Pa. Commw. Ct. 1995) (unemployment compensation 

referee's factual findings that hospital worker was not abused by 

patient did not preclude later workmen's compensation proceeding 

regarding whether worker was injured in the course of employment 

because the policies and procedures of the two legal schemes were 

not similar); Johnsonbaugh v. Department of Pub. Welfare, 665 

A.2d 20 (Pa. Commw. Ct. 1995) (unemployment compensation hearing 

determination that worker did not engage in willful misconduct 

did not preclude later Civil Service Commission decision 

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 Compensation Appeal 

Bd. (Renzor Div. of FL Indus.), 656 A.2d 554 (Pa. Commw. Ct.) 

(unemployment compensation finding regarding willful misconduct 

not preclusive in later workmen's compensation hearing regarding 

unsatisfactory job performance because the issues and the 

procedures in the two proceedings were distinct), appeal granted, 

542 Pa. 675, 668 A.2d 1137 (1995). 

 The Appellees contend that Odgers and its progeny apply only 

to issue preclusion decisions in cases involving two agency 

determinations, rather than to cases involving an earlier agency 

determination and a later civil suit. We do not find merit in 

this argument. Nothing in Odgers purports to limit its effect to 

cases involving preclusion between agencies. Indeed, the 

rationale behind Odgers is as applicable to agency/civil suit 

preclusion as it is to agency/agency preclusion. We have 

recognized this by applying the principles of Odgers to cases 

where preclusion was asserted between an earlier state agency 

determination and a later federal civil action. See Swineford v. 

Snyder County Pennsylvania, 15 F.3d 1258 (3d Cir. 1994) 

(unemployment compensation hearing findings not preclusive in a 

later  1983 action); Kelley v. TYK Refractories Co., 860 F.2d 

1188 (3d Cir. 1988) (factual findings of unemployment 

compensation hearing not preclusive in later  1981 suit); 

Tukesbrey v. Midwest Transit, Inc., 822 F. Supp. 1192 (W.D. Pa. 

1993) (unemployment compensation hearing determination regarding 

wrongful misconduct not preclusive in a later Veteran's 

Reemployment Rights Act case regarding just termination). 

 As we stated in Swineford, "[u]nder Odgers, reviewing courts 

must look beyond the superficial similarities between the two 

issues to the policies behind the two actions. Only where the 

two actions promote similar policies will the two issues be 

identical for purposes of issue preclusion." Swineford, 15 F.3d 

at 1267-68. We believe that Pennsylvania courts would apply this 

reasoning to the workmen's compensation proceeding in Dici's 

case. The policy of Title VII is to achieve equality of 

employment opportunities and remedy discrimination in the 

workplace. By contrast, Pennsylvania's workmen's compensation 
law is designed to define the liability of employers for injuries 

to employees occurring in the course of employment. Moreover, 

the procedures utilized in workmen's compensation proceedings 

differ from those employed in federal court. For example, 

"[n]either the board nor any of its members nor any referee shall 

be bound by the common law or statutory rules of evidence in 

conducting any hearing or investigation . . . ." 77 Pa. Cons. 

Stat. Ann.  834 (1991). Given this court's admonition that 

"[r]easonable doubt as to what was decided by a prior judgment 

should be resolved against using it as an estoppel," Gregory, 843 

F.2d at 121 (quoting Kauffman v. Moss, 420 F.2d 1270, 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 case are not 

precluded, we do not mean to imply that a Pennsylvania workmen's 

compensation determination should never be given preclusive 

effect in a later suit. Indeed, in many cases preclusion has 

been found appropriate. For example, in Capobianchi 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 worker's injury 

should be given preclusive effect in a later products 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 lighter, 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 silicosis 

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 that 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 presented are the 

same, Pennsylvania courts will not hesitate to grant preclusive 

effect to workmen's compensation proceedings. 

 As is evident from a review of Dici's case, however, the 

issues presented in this Title VII case are different from those 

of the workmen's compensation proceeding. The differences are 

highlighted when one examines the distinct policies underlying 

each legal regime. Therefore, it would be inappropriate to apply 

issue preclusion to this case. We reverse the district court's 

grant of summary judgment to the Appellees on this basis. 

II. Other Grounds for Summary Judgment: The Appellees moved for 

summary judgment both on the ground of issue preclusion and on 

the merits. Brison moved for summary judgment for the additional 

reason that an individual co-employee cannot be held liable under 

Title VII. On appeal, Dici claims that if issue preclusion does 

not bar her case, genuine issues of material fact exist 

precluding summary judgment. The district court, having found 

that issue preclusion applied, did not address the other grounds 
for summary judgment offered by the Appellees. Though our review 

of a summary judgment motion is plenary, we think that the 

district court is in the better position to consider whether 

summary judgment is proper on the merits of this case given that 

issue preclusion was the focus of the briefs and arguments before 

us. Therefore, we believe the best course is to remand the case 

to the district court. 

 We can, however, on the record and briefs before us, decide 

whether Steven Brison and Frank Monaco are proper defendants to 

Dici's Title VII and PHRA claims. When the issue of individual 

liability was before this court in Sheridan v. E. I. DuPont de 

Nemours, 1996 W.L. 36283 (3d Cir. 1996), vacated, 74 F.3d 1439 

(3d Cir. 1996), the court held that an individual employee cannot 

be liable under Title VII. The majority opinion written by Judge 

Alito noted the great weight of authority from other courts of 

appeals holding an employee cannot be sued under Title 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. 1995); Grant v. 

Lone Star Co., 21 F.3d 649, 653 (5th Cir. 1994); Sauers v. Salt 

Lake Co., 1 F.3d 1122, 1125 (10th Cir. 1993); Miller v. Maxwell 

Int'l Inc., 991 F.2d 583, 587 (9th Cir. 1993). Chief Judge 

Sloviter, who dissented in Sheridan on other grounds, commented 

that, although she found the reasoning of those judges who 

dissented from the opinions in the other circuits convincing, in 

light of the authority otherwise she saw no reason to dissent 

from the Sheridan majority on the issue of individual liability 

under Title VII. 

 The Sheridan opinion was withdrawn when the court voted to 

take the case en banc, and the appeal was argued before the en 

banc court on May 14, 1996. However, the principal focus of the 

en banc briefs and arguments was on Title VII issues other than 

individual liability. In light of this, we conclude, for the 

reasons previously given by the court in Sheridan and the other 

courts of appeals, that individual employees cannot be held 

liable under Title VII. Therefore, Dici cannot sustain her Title 

VII claims against Brison and Monaco. To this extent, then, we 

affirm the district court's grant of summary judgment, though on 

different grounds. 

 Dici argues that even if an individual employee cannot be 

liable under Title VII, the employee is still a proper defendant 

under the PHRA. Generally, the PHRA is applied in accordance 

with Title VII. Davis v. Sheraton Society Hill Hotel, 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 provision 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, contemplates 

liability that extends beyond that of Title VII. Section 955(e) 

forbids "any person, employer, employment agency, labor 

organization or employee, to aid, abet, incite, compel or coerce 

the doing of any act declared by this section to be an unlawful 
discriminatory 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 defendant under 

the section for aiding and abetting the unlawful discriminatory 

practices of Dici's employer. 

 We find that summary judgment in favor of Brison on Dici's 

PHRA claim is appropriate because Brison is not a proper 

defendant under  955(e). Dici's PHRA claim against the 

Appellees rests upon, as her complaint states, their failure "to 

take prompt remedial measures after having notification that 

discriminatory actions had occurred." Dici has alleged no facts 

that would indicate that Brison aided or abetted Dici's employer 

in refusing to take prompt remedial action against any 

discrimination suffered by Dici. Rather, her complaint 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 employee and 

 the employer] share the "intent" to create a 

 discriminatory atmosphere. We believe, however, that 

 the employer's reaction is sufficiently divorced from 

 the employee's conduct that there is no community of 

 purpose between them. A non-supervisory employee who 

 engages in discriminatory conduct cannot be said 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 pleaded facts 

which, if true, could impose liability for violations of the 

PHRA. For example, in paragraph 14 of the complaint, Dici 

states, "[a]lthough Sergeant Monaco knew or should have known 

that the Plaintiff was being subject to . . . harassment . . ., 

he repeatedly refused to take prompt action to end the harassment 

directed at Plaintiff . . . ." Such conduct, if proven, would 

constitute aiding and abetting. 

 However, because Monaco cannot be held liable under Title 

VII, there exists no independent jurisdictional basis 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.