Opinion
No. 404 C.D. 2011
12-30-2011
Carolyn Oravitz, Appellant v. Saxonburg Borough
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Carolyn Oravitz (Oravitz) appeals the order of the Court of Common Pleas of Butler County (common pleas court) which sustained the preliminary objections of Saxonburg Borough (Borough) and dismissed Oravitz's complaint.
On or about April 13, 2006, Oravitz telephoned the Borough Police Department and requested help in obtaining proof of service for some legal papers. Officer Erik Bergstrom (Officer Bergstrom) of the Borough Police Department answered the phone and agreed to assist her. According to Oravitz's complaint against the Borough, Officer Bergstrom began a campaign of sexual harassment which included late night telephone calls and obscene text messages. Oravitz filed a complaint with the Borough in August of 2006. In January and February 2007, Oravitz started to receive anonymous harassing phone calls. The sexual harassment was specific and graphic in nature and highly offensive. On February 10, 2007, at 3:12 a.m., Officer Bergstrom called Oravitz to sexually harass her. Complaint, September 6, 2010, (Complaint), Paragraph Nos. 7-10 at 4; Reproduced Record (R.R.) at 4a. According to Oravitz, after the Borough received Oravitz's complaint, the Borough "turned the matter over to Officer Bergstrom, the officer in charge. . . . Officer Bergstrom's investigation of his own misconduct started on or about February 13, 2007. It consisted of intimidating Mrs. Oravitz by stalking her by driving past her house." Complaint, Paragraph Nos. 11-12 at 4; R.R. at 4a. Officer Bergstrom began to drive past Oravitz's house to harass and intimidate her. On March 8, 2007, Oravitz filed a second complaint of sexual harassment with the Borough. Again, Officer Bergstrom was put in charge of the investigation of his own conduct. Officer Bergstrom interviewed Oravitz's husband's employer, Jim Dlubak (Dlubak), and attempted to have her husband suspended from his job. He subsequently was suspended. Complaint, Paragraph Nos. 13-14 at 4-5; R.R. at 4a-5a.
Officer Bergstrom is not a party here.
Oravitz originally filed this action in the Court of Common Pleas of Allegheny County. The complaint included some questions of federal law. The Borough had the action removed to federal court. The U.S. District Court for the Western District of Pennsylvania dismissed the federal counts and declined to exercise jurisdiction over the state claims. Oravitz filed a new complaint in the common pleas court.
On March 29, 2007, Oravitz again filed a sexual harassment complaint. The Borough again placed Officer Bergstrom in charge of the investigation. On April 19, 2007, Officer Bergstrom again interviewed Dlubak. Dlubak came to Oravitz's home in an attempt to stop Oravitz from proceeding with her claims against the Borough. On April 23, 2007, Dlubak fired Oravitz's husband. Complaint, Paragraph Nos. 15-17 at 5; R.R. at 5a.
On July 2, 2007, Oravitz filed a complaint with the Pennsylvania Human Relations Commission (PHRC). In response to Oravitz's request, the Borough confirmed that Officer Bergstrom made late night phone calls to Oravitz's number. On January 7, 2009, the PHRC recommended to the Borough that Officer Bergstrom receive additional training and advised Oravitz that it had completed its investigation and that Oravitz had a right to sue the Borough. On January 30, 2009, the Borough suspended Officer Bergstrom pending an investigation. In November 2009, Officer Bergstrom resigned from the Borough Police Department. Complaint, Paragraph Nos. 19-23 at 5-6; R.R. at 5a-6a.
Officer Bergstrom applied for a job with the police department of Fawn Township, where Oravitz lived. Officer Bergstrom received a recommendation from the Borough, and Fawn Township hired Officer Bergstrom. Complaint, Paragraph Nos. 26-28, 30 at 6; R.R. at 6a.
In her complaint Oravitz alleged that the Borough discriminated against Oravitz on account of her sex because she was solicited for sex as she requested help in gathering legal papers, she was solicited for sex and sexually harassed and intimidated when she made her complaints, while requests from her male counterparts were handled differently. Oravitz also alleged that the Borough violated Section 5(i)(1) of the Pennsylvania Human Relations Act (Act), 43 P.S. §§955(i)(1). Complaint, Paragraph Nos. 37-38, and 46 at 7-8; R.R. at 7a-8a.
Act of October 27, 1955, P.L. 744, as amended.
Oravitz alleged that as a result of the harassment she suffered anxiety and distress, discomfort, and embarrassment, impairment of her reputation, the loss of much of the companionship of her spouse, and loss of employment income. Further, she was required to spend substantial sums of money and time with filings and pursuit of a remedy. In addition to compensatory damages, attorney fees, and costs, Oravitz sought injunctive relief to prevent the Borough from offering police review board services that were less than the services contractually provided by the Pittsburgh Police Review Board for municipalities within and outside Allegheny County, to prevent the Borough from offering police training programs that were less than the programs contractually provided by Allegheny County for other municipalities within and outside Allegheny County, to prevent the Borough from providing references for Officer Bergstrom which did not disclose the reasons for his suspension and termination, and to prevent the Borough from rehiring Officer Bergstrom without a full review and proper consideration of the reasons for his suspension and termination. Complaint, Paragraph Nos. 47-48 at 8-9; R.R. at 8a-9a.
The Borough preliminarily objected in the nature of a demurrer on the basis that Oravitz's complaint failed to state a claim upon which relief could be granted under the Act. The Borough asserted that there was no cause of action under the Act for non-workplace alleged sexual harassment because no Pennsylvania Court had ever interpreted the "Public Accommodation" provisions of the Act as applying to non-workplace sexual harassment and the language of the Act does not provide for it.
After hearing oral argument, the common pleas court sustained the preliminary objections and dismissed the complaint:
Plaintiff [Oravitz] does not cite to any case which holds that the public accommodation section of the PHRA [Act], 43 P.S. § 955(i)(1), applies to non-workplace sexual harassment. However, in interpreting the PHRA [Act], Pennsylvania courts may use federal court decisions interpreting parallel federal statutes as persuasive authority; i.e., when examining sexual harassment or discrimination in the workplace under PHRA [Act], 43 P.S. § 955(a), Pennsylvania courts may look to federal court decisions interpreting Title VII of the Civil Rights Act. . . .Common Pleas Court Opinion, February 14, 2011, (Opinion) at 4-5; R.R. at 96a-97a.
The public accommodation section of the federal Civil Rights Act . . . prohibits discrimination because of 'race, color, religion, or national origin.' Title II of the Civil Rights Act . . . which prohibits discrimination in public accommodations, has not been interpreted as applying to sexual harassment or sexual discrimination claims. . . . Therefore, the public accommodation section of the PHRA [Act] regarding sex discrimination . . . has no federal corollary. (Citations omitted).
The common pleas court found cases cited by Oravitz to be inapplicable because they were not sexual harassment cases under either the public accommodation section of the Act or the federal public accommodation statute. The common pleas court also determined:
The Pennsylvania Legislature has not enacted legislation that explicitly states sexual discrimination in public accommodations includes sexual harassment. . . . If the Pennsylvania legislature had intended to enact such legislation, it could have applied language as was utilized
in the Michigan legislation, which expressly includes sexual harassment as covered by the public accommodation sex discrimination provisions of that Act. . . .This Court is without authority to create a cause of action, where the legislature and judiciary has not. . . . Thus, Plaintiff's [Oravitz] allegations of sexual harassment under the public accommodation provision of the PHRA [Act] . . . are legally insufficient; there is no cause of action available for sexual harassment under said Act.Opinion at 6-7; R.R. at 98a-99a.
Oravitz contends that the Act provides protection to patrons, in places of public accommodation, from sexual harassment by public officials. Oravitz asserts that under Section 5(i)(1) of the Act, 43 P.S. §955(i)(1), the Borough discriminated against her on account of her sex in the provision of services. She asserts that her request of proof of service from the Borough was answered with a demand for sex by a Borough police officer. She argues that Officer Bergstrom demanded sex because she was a female.
This Court's review is to determine whether on the facts alleged the law states with certainty that no recovery is possible. Hawks by Hawks v. Livermore, 629 A.2d 270, 271 n.3 (Pa. Cmwlth. 1993). This Court must accept as true all well pled allegations and material facts averred in the complaint as well as inferences reasonably deducible therefore and any doubt should be resolved in favor of overruling the demurrer. Id.
Section 5(i)(1) of the Act, 43 P.S. §955(i)(1), provides:
It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, or in the case of a fraternal corporation or association, unless based upon such membership in such association or corporation, or except where based upon applicable
security regulations established by the United States or the Commonwealth of Pennsylvania:
. . . .
(i) For any person being the owner, lessee, proprietor, manager, superintendent, agent or employe of any public accommodation, resort or amusement to:
(1) Refuse, withhold from, or deny to any person because of his race, color, sex, religious creed, ancestry, national origin or handicap or disability, or to any person due to use of a guide or support animal because of the blindness, deafness or physical handicap of the user or because the user is a handler or trainer of support or guide animals, either directly or indirectly, any of the accommodations, advantages, facilities or privileges of such public accommodation, resort or amusement.
For support of her position, Oravitz looks to Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board v. Dobrinoff, 471 A.2d 941 (Pa. Cmwlth. 1984), where this Court held that a bar violated Section 5(i)(1) of the Act when it exempted female patrons from a cover charge and charged male patrons. This Court determined that there was a violation of Section 5(i)(1) of the Act's prohibition against discrimination on the basis of sex. In Dobrinoff, there was a clear case of discrimination on the basis of sex: men had to pay a cover charge and women did not. Here, there was alleged sexual harassment and the question was whether such harassment qualifies as sexual discrimination in the context of public accommodations under the Act.
Oravitz argues that the General Assembly in Section 5(i)(1) of the Act prohibited any person who is an agent or employee of any public accommodation to refuse, withhold or deny any person any of the accommodations, advantages, facilities or privileges of such public accommodation because of sex. That is a correct reading of the statute. Oravitz then argues that she has established that Officer Bergstrom was an employee of Saxonburg Borough and that Officer Bergstrom refused, withheld, or denied Oravitz any of the advantages and privileges of the Borough because of her sex. She argues that she met this burden because she has alleged in her complaint that Officer Bergstrom solicited sex because of her gender.
First, this Court must determine whether the Police Department of the Borough constitutes a public accommodation under the Act. Section 4(l) of the Act, 43 P.S. §954(l), provides:
The term 'public accommodation, resort or amusement' means any accommodation, resort or amusement which is open to, accepts or solicits the patronage of the general public, including but not limited to inns, taverns, roadhouses, hotels, motels, whether conducted for the entertainment of transient guests or for the accommodation of those seeking health, recreation or rest, or restaurants or eating houses, or any place where food is sold for consumption on the premises, buffets, saloons, barrooms or any store, park or enclosure where spirituous or malt liquors are sold, ice cream parlors, confectioneries, soda fountains and all stores where ice cream, ice and fruit preparations or their derivatives, or where beverages of any kind are retailed for consumption on the premises, drug stores, dispensaries, clinics, hospitals, bathhouses, swimming pools, barber shops, beauty parlors, retail stores and establishments, theatres, motion picture houses, airdromes, roof gardens, music halls, race courses, skating rinks, amusement and recreation parks, fairs, bowling alleys, gymnasiums, shooting galleries, billiard and pool parlors, public libraries, kindergartens, primary and secondary schools, high schools, academies, colleges and universities, extension courses and all educational institutions under the supervision of this Commonwealth, nonsectarian
cemeteries, garages and all public conveyances operated on land or water or in the air as well as the stations, terminals and airports thereof, financial institutions and all Commonwealth facilities and services, including such facilities and services of all political subdivisions thereof, but shall not include any accommodations which are in their nature distinctly private. (Emphasis added).
Because the Borough is a political subdivision it constitutes a public accommodation. Then the question is whether the Borough denied Oravitz any accommodation, advantage, facility or privilege because of her sex. Oravitz asked that Officer Bergstrom obtain a proof of service for her. He did so. Officer Bergstrom later requested sex from Oravitz. There is no allegation that he would not provide the service to her. It is not clear that the Borough failed to provide a service to her. It appears that Oravitz's complaint fails on this ground.
This Court acknowledges that not every facility of the Commonwealth government or a political subdivision constitutes a public accommodation. In Blizzard v. Floyd, 613 A.2d 619 (Pa. Cmwlth. 1992), this Court held that a state prison was not a public accommodation under the Act.
However, the common pleas court sustained the preliminary objection on the basis that the Act does not encompass non-workplace sexual harassment in the context of public accommodations. Oravitz asserts that the conduct of the Borough constituted a violation of Section 5(i)(1) because sexual harassment constitutes a form of discrimination based on gender. Oravitz argues that Officer Bergstrom demanded sex because of her gender and the law is clear that no employee of a place of public accommodation may exchange services for sex.
The common pleas court determined that the General Assembly has not enacted legislation that explicitly states sexual discrimination in public accommodations includes non-workplace sexual harassment.
A review of Section 5(i)(1) of the Act, 43 P.S. §955(i)(1), confirms that the Act does not contain specific language which includes non-workplace sexual harassment under the definition of discrimination because of sex in terms of public accommodation. Section 4(g) of the Act, 43 P.S. §954(g), provides that "[t]he term 'discriminate' includes segregate." According to the Statutory Construction Act, 1 Pa.C.S. §1903, words in a statute must be construed according to their common and approved usage. Webster's Third New International Dictionary 648 (1986) defines "discriminate" in the definition applicable here as "to make a difference in treatment or favor on a class or categorical basis in disregard of individual merit (~ in favor of your friends) (habitually ~ against a certain nationality." This definition does not encompass sexual harassment as envisioned by Oravitz.
In contrast, Section 5(a) of the Act, 43 P.S. §955(a), specifically refers to discrimination by an employer because of the "race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability" in the context of employment. Similarly, in the federal context, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-2, prohibits sexual harassment in the workplace. While this Court in no way condones the alleged conduct of Officer Bergstrom, this Court must agree with the common pleas court that Oravitz has failed to state a claim upon which relief may be granted. If the General Assembly intended for discrimination, based on sex, to include non-workplace sexual harassment in the context of public accommodation, it could have included specific language in the Act.
In its amicus curiae brief, the Pennsylvania Human Relations Commission (Commission) asserts that the language and legislative history of the Act make clear that sexual harassment is a form of sexual discrimination that is prohibited in the context of public accommodation. According to the Commission, the Act was amended to include "sex" as a protected class in 1978 and at that time sexual harassment was recognized as a form of sexual discrimination. While this Court respects the Commission, this Court notes that the Commission has never issued a regulation that has interpreted the public accommodation provisions of the Act to prohibit sexual harassment even though it has the authority to do so under Section 7(d) of the Act, 43 P.S. §957(d). The Commission also asserts that its interpretation of the Act is entitled to deference. An interpretive regulation which construes and does not expand upon the terms of a statute is entitled to deference. Slippery Rock Area School District v. Unemployment Compensation Board of Review, 603 Pa. 374, 983 A.2d 1231 (2009). Here, the Commission has never issued a regulation on this issue. This Court does not have to defer to its position taken in an amicus brief. Further, the Commission cites to LivingWell (North) Inc. v. Pennsylvania Human Relations Commission, 606 A.2d 1287 (Pa. Cmwlth.), petition for allowance of appeal denied, 533 Pa. 611, 618 A.2d 401 (1992) which mentioned sexual harassment in a public accommodation case. LivingWell was factually different. There the issue was whether a health club's practice of limiting its gym membership to women violated the Act. It was more of a traditional discrimination case like Dobrinoff than like the factual situation presented here. The Commission also refers to a New Jersey statute which prohibits sexual harassment in public accommodations. This Court is unpersuaded by the legislation of another state in this regard.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 30th day of December, 2011, the order of the Court of Common Pleas of Butler County in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY JUDGE COHN JUBELIRER
FILED: December 30, 2011
Because I would conclude that it is not certain that Carolyn Oravitz could not recover on her Complaint and would, therefore, reverse the Order of the Court of Common Pleas of Butler County (trial court) granting Saxonburg Borough's (Borough) demurrer, I must respectfully dissent. In concluding that the trial court properly dismissed Ms. Oravitz's complaint, the majority opinion focuses on the facts that: (1) there was no service refused, withheld or denied here because Borough Police Officer Erik Bergstrom (Officer Bergstrom) provided Ms. Oravitz with the proof of service she requested, Oravitz v. Saxonburg Borough, No. 404 C.D. 2011, slip op. at 9, (Pa. Cmwlth., filed December 30, 2011); and (2) the General Assembly did not specifically include "sexual harassment" within its definition of sex discrimination found in Section 5(i)(1) of the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 955(i)(1), Oravitz, slip op. at 10-11. However, the majority opinion does not discuss the other service, i.e., public accommodation, Ms. Oravitz sought from the Borough that she alleges was not performed in accordance with the PHRA. (Complaint ¶ 18, R.R. at 5a.) In her Complaint, Ms. Oravitz asserts that she sought "the review of the Borough of her complaint of sexual harassment" against Officer Bergstrom. (Complaint ¶ 37(b), R.R. at 7a.) Ms. Oravitz filed three complaints with the Borough, each requesting that the Borough investigate Officer Bergstrom's conduct. (Complaint ¶¶ 8, 13, 15, R.R. at 4a-5a.) In each instance, the Borough inexplicably assigned Officer Bergstrom to investigate these complaints against himself. (Complaint ¶¶ 11, 13, 15, R.R. at 4a-5a.) Furthermore, following each complaint, Officer Bergstrom's conduct toward Ms. Oravitz and her husband worsened until Mr. Oravitz was discharged from his employment as a result of Officer Bergstrom's "investigation." (Complaint ¶¶ 12, 14, 16-17, R.R. at 4a-5a.) The Borough cavalierly disregards the seriousness of Ms. Oravitz's allegation by stating that it
In ruling on a demurrer, this Court must determine whether, upon the facts alleged, "the law states with certainty that no recovery is possible." Hawks by Hawks v. Livermore, 629 A.2d 270, 271 n.3 (Pa. Cmwlth. 1993). We must accept as true all well-pled factual allegations and material facts averred in the complaint, as well as inferences reasonably deducible therefrom. Id. All doubts must be resolved in favor of overruling the demurrer. Id.
The allegations of such egregious conduct involved in this matter are extremely troublesome, particularly where the allegations are levied against an individual who swore to uphold the laws of the United States and the Commonwealth of Pennsylvania.
Act of October 27, 1955, P.L. 744, as amended. Section 2 of the PHRA provides, in relevant part:
(a) The practice or policy of discrimination against individuals or groups by reason of their . . . sex, . . . is a matter of concern of the Commonwealth. Such discrimination foments domestic strife and unrest, threatens the rights and privileges of the inhabitants of the Commonwealth, and undermines the foundations of a free democratic state. The denial of . . . public accommodation opportunities because of such discrimination . . . deprives large segments of the population of the Commonwealth of earnings necessary to maintain decent standards of living, necessitates their resort to public relief and intensifies group conflicts, thereby resulting in grave injury to the public health and welfare . . . thereby threatening the peace, health, safety and general welfare of the Commonwealth and its inhabitants.43 P.S. § 952 (emphasis added).
(b) It is hereby declared to be the public policy of this Commonwealth . . . to assure equal opportunities to all individuals and to safeguard their rights to public accommodation . . . regardless of . . . sex . . . .
(c) This act shall be deemed an exercise of the police power of the Commonwealth for the protection of the public welfare, prosperity, health and peace of the people of the Commonwealth of Pennsylvania.
in fact, investigated her complaints against [Officer] Bergstrom. . . . Her complaint instead is with the alleged manner of the Borough's investigation of her complaints . . . . The gravamen of the Complaint, therefore, is not that the Borough "refuse[d], [withheld] from, or [denied]" her the "service" of an investigation of her complaint on account of her sex, but that she was dissatisfied with how the Borough allegedly performed that service.(Borough's Br. at 10 (quoting 43 P.S. § 955(i)(1) (emphasis and alterations in original).) To say, as the Borough does here, that Ms. Oravitz is merely dissatisfied with how the Borough performed the investigation into her complaints of ongoing, pervasive sexual harassment by Officer Bergstrom is troubling. Although the Borough may have submitted those complaints to the police for an investigation, that investigation essentially never occurred because it was performed by the very person accused of engaging in the offensive conduct. In essence, when the Borough assigned Ms. Oravitz's three separate complaints of ongoing and pervasive sexual harassment to Officer Bergstrom, the Borough refused to investigate those allegations. The reasons for that assignment, which resulted in a refusal to investigate, would, I believe, be a matter for a factfinder to consider. Therefore, I would conclude that, based on these allegations, which we must accept as true when considering a demurrer, it is not clear that there is no recovery possible in this matter., Hawks by Hawks v. Livermore, 629 A.2d 270, 271 n.3 (Pa. Cmwlth. 1993).
I note that, as the Pennsylvania Human Relations Commission (Commission) points out in its brief, a number of states have enacted statutory provisions that include sexual harassment within the definition of sex discrimination. (Commission's Br. at 8-10 (citing The New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:1-1—10:1-12, as interpreted by Doe v. Schwerzler, 2008 WL 4066338, at **4-5 (D. N.J. 2008), and Section 102 of Michigan's Elliott-Larsen civil rights act, MCLA § 37.2102).) Although the Commission urges this Court to interpret these provisions of the PHRA as including sexual harassment, if the Commission believes such interpretation is warranted, it should promulgate regulations pursuant to its authority under Section 7(d) of the PHRA, 43 P.S. § 957(d).
I note that Ms. Oravitz's filed claims against the Borough included violations of federal constitutional rights pursuant to 42 U.S.C. § 1983. The Borough had the matter removed to federal court, which dismissed the federal claims because the district court concluded that she did not allege facts that would establish that Officer Bergstrom was acting under the color of state law or was a state actor, or that there was a violation of a federal right. (Oravitz v. Saxonburg Borough, Civil Action No. 10-125 (W.D. Pa., filed August 31, 2010) (Oravitz I), Borough's Exs. C-D, R.R. at 38a-55a.) The federal court declined to exercise jurisdiction over Ms. Oravitz's state law claims, requiring her to refile in the trial court asserting only state law claims. (Oravitz I at 16, Borough Ex. C, R.R. at 53a.) --------
For the foregoing reasons, I am compelled to dissent and would reverse the Order of the trial court.
/s/ _________
RENÉE COHN JUBELIRER, Judge