Opinion
Civil Action NO. 02-8063
February 12, 2003
MEMORANDUM
Plaintiff William F. Pierce, III, was employed as a Store Keeper for the Southeastern Pennsylvania Transportation Authority ("SEPTA") until he was discharged on February 28, 1996. Pierce's union, the Transportation Communications International Union, invoking the grievance and arbitration machinery provided in the collective bargaining agreement between the Union and SEPTA, filed a grievance challenging Pierce's discipline as without just cause. The grievance was sustained in part. By arbitration award of December 1, 1998, Pierce was reinstated as Store Keeper without back pay.
Pierce now files this action in which he alleges that he was dismissed in retaliation for complaining to his managers about sexual harassment in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Pennsylvania Human Relations Act ("PHRA"). Pierce seeks, inter alia, compensatory damages for loss of pay between February 28, 1996 and December 1, 1998.
Before the Court is SEPTA's motion to dismiss in which SEPTA moves to strike the complaint's prayer for back pay. Invoking the doctrine of issue preclusion, SEPTA contends that the arbitration award reinstating Pierce without any back pay precludes Pierce from arguing that he is entitled to that relief in this case.
INTRODUCTION
Pierce worked at SEPTA until November 13, 1995, when he took a medical leave of absence for psychiatric reasons. On February 18, 1996, while on medical leave, Pierce received a check from SEPTA that he cashed. The check was payable from SEPTA to Pierce but was the result of a SEPTA payroll error. On February 28, 1996, Pierce was informed that he was terminated for accepting a check to which he was not entitled in violation of SEPTA policy, specifically Rule 18. Pierce's union filed a grievance challenging the discipline as unjustified, and an arbitration was held. On December 1, 1998, the arbitrators issued a decision restoring Pierce to his position without back pay.
This Rule provides:
18. Payment Errors
Any discovery of overpayments or irregularity in pay, compensation or benefits must be reported immediately to one's supervisor. Employees are prohibited from accepting and cashing checks, etc., for funds to which they are not entitled under penalty of discharge.
Arb. Award ("Rule 18"), in Def. SEPTA's Mem. L. in Supp. of Partial Mot. to Dismiss, Ex. A.
Specifically, the arbitrators held that Pierce committed a disciplinary infraction but that the discharge was too harsh a sanction:
By cashing the check to which he was not entitled, Grievant violated Rule 18. The rule violation has therefore been demonstrated.
However, we find under the circumstances that discharge was excessive. The check was issued to Grievant as a result of a clerical error. While Grievant was at fault in cashing the check, the confusion under which the check was issued must serve to mitigate the discharge action.
Arb. Award at 1.
The arbitrators also held that Pierce was not entitled to back pay. The arbitrators noted that Pierce told the SEPTA Medical Department on February 1, 1996 that he was unable to return to work because he still had not "worked on his `pain and suffering.'" Though Pierce was cleared by a doctor to return to work effective January 29, 1996, Pierce's testimony at arbitration confirmed that he was not ready or willing to return to work then. The arbitrators recalled:
[I]n testimony before this Board, when asked if he could have returned to work at the time he was cleared, Grievant stated that at the time he did not think it was in his "best interests for safety reasons" if he was put back to work with the previously mentioned employee and, going back to his former job would have, in Grievant's opinion, "put his life and limb at risk".
The arbitrators concluded that:
Giving Grievant the benefit of the doubt, Grievant's testimony shows that he was placing substantial qualifications on his 1996 ability to return to work. . . . Under the circumstances, Grievant was simply not in a position to dictate qualifications upon his return to work. By insisting on such qualifications, Grievant effectively continued to hold himself out of work. If Grievant was unwilling to return to work without such qualifications, this Board cannot order that he receive some form of backpay for periods he would not work. The Organizations' request for back pay is therefore denied. Grievant's reinstatement shall therefore be without back pay entitlement.
Arb. Award at 2.
Pierce now brings this action alleging that he was terminated in retaliation for complaining to his managers about sexual harassment. In particular, Pierce alleges that he complained to two managers on November 8 and 9, 1995 that he was being sexually harassed by a co-worker. Compl. ¶ 13. On November 10, 1995, Pierce told manager Coulson that he needed a leave of absence for psychiatric reasons because he was being sexually harassed by a co-worker and SEPTA was doing nothing to stop it. Compl. ¶ 14.
While on leave of absence, Pierce was terminated, as noted, allegedly for cashing a check to which he was not entitled. Compl. ¶ 15. Pierce asserts that this basis for his dismissal was a pretext and that the real reason he was dismissed was for complaining to his managers about sexual harassment. Compl. ¶¶ 16, 19. He claims unlawful retaliatory termination under Title VII (Count I) and the PHRA (Count II).
Since Pierce has been restored to his position as Store Keeper, Pierce cannot be entitled to front pay if he prevails. The principal relief he requests are compensatory damages for emotional distress and compensatory damages for loss of pay between February 28, 1996 and December 1, 1998.
Ancient history though this may seem, Pierce only received his right-to-sue letter from the EEOC on August 8, 2002.
SEPTA's partial motion to dismiss presents the question of whether the arbitration award denying Pierce back pay precludes Pierce here from seeking back pay. ANALYSIS
SEPTA also moved to strike the request for punitive damages. However, since Pierce, in his response to the partial motion to dismiss, withdrew his request for punitive damages, the portion of the motion to dismiss concerning punitive damages will be denied as moot.
Issue preclusion bars relitigation of issues that have been decided on the merits in a previous adjudication. For issue preclusion to apply, the law requires that:
1) the issue decided in the prior adjudication must be identical with the one presented in the later action;
2) there must have been a final judgment on the merits;
3) the party against whom issue preclusion is asserted must have been a party or in privity with the party in the prior adjudication; and
4) the party against whom issue preclusion is asserted must have had a full and fair opportunity to litigate the issue in the prior adjudication.
Witkowski v. Welsh, 173 F.3d 192, 199 (3d Cir. 1999); see also Del. River Auth. v. Fraternal Order of Police, 290 F.3d 567, 573 n. 10 (3d Cir. 2002).
It is essential that the issue decided in the prior adjudication be the same as the issue later presented. "The party asserting issue preclusion `bears the burden of showing with clarity and certainty what was determined by the prior judgment.'" Gruntal Co., Inc. v. Steinberg, 854 F. Supp. 324, 337 (D.N.J. 1994) (quoting Clark v. Bear Stearns Co., 966 F.2d 1318, 1321 (9th Cir. 1992)). If reasonably in doubt whether the same issue was decided, the Court should decline to grant issue preclusion. Witkowski, 173 F.3d at 206 ("Reasonable doubt as to what was decided by a prior judgment should be resolved against using it as an estoppel.") (quoting Kauffman v. Moss, 420 F.2d 1270, 1274 (3d Cir. 1970)); 18 Moore's Federal Practice § 132.03[d] (Matthew Bender 3d ed. 2001) [hereinafter Moore's Federal Practice] (noting that issue preclusion only applies if the issue was "necessarily decided" in prior adjudication).
The question the arbitrators resolved of whether Pierce is entitled to back pay is a mixed question of fact and law. If the arbitrators decided the same issue and relied on the same rule of law that governs back pay here, then, and only then, would issue preclusion apply.
SEPTA contends that the arbitrators did precisely that. They ruled that "this Board cannot order that [Pierce] receive some form of backpay for periods he would not work." Arb. Award at 2. SEPTA argues that the arbitrators reinstated Pierce without back pay because they found that he was unable or unwilling to work during the period in which he was dismissed.
SEPTA is correct when it asserts that "under Title VII, a plaintiff pursuing an employment discrimination claim is not entitled to back pay for periods of disability or lost compensation attributable to the plaintiff and unrelated to the alleged discriminatory conduct." Def. SEPTA's Mem. L. in Supp. of Partial Mot. to Dismiss at 6. As our Court of Appeals has stated, "`As a general rule, an employment discrimination plaintiff will not be allowed back pay during any periods of disability' and `an employer who has discriminated need not reimburse the plaintiff for salary loss attributable to the plaintiff and unrelated to the employment discrimination.'" Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1101 (3d Cir. 1995) (internal alterations omitted) (quoting Mason v. Ass'n for Indep. Growth, 817 F. Supp. 550, 554 (E.D.Pa. 1993). Put another way, since back pay is a form of compensatory damages which restore one injured to the place he would be were he not harmed by a defendant's unlawful activity, if Pierce would have been out of work even if SEPTA had not dismissed him, he is not entitled to back pay.
Forceful as these contentions are, we decline to grant issue preclusion. It is not clear on this record that the arbitrators determined the precise issue that governs back pay in this case. Under the strict jurisprudence cited above, it would be improvident not to allow Pierce to litigate whether he is entitled to back pay here.
First, Pierce asserts that SEPTA's allegedly retaliatory dismissal caused him "severe emotional and psychological distress" and requests damages for "mental anguish." Compl. ¶¶ 22, 25, 26(d). Even though Pierce was on medical leave of absence for psychiatric reasons at the time that he was dismissed, the complaint alleges that SEPTA's dismissal caused him added psychological suffering. Id. It follows that some of the time in which Pierce was unable to return to work for psychiatric reasons after February 28, 1996 may have been attributable to SEPTA's unlawful retaliatory conduct. If that is the case, Pierce is not precluded from receiving back pay for that time. See Starceski (quoted supra). The arbitration award does not suggest that the parties litigated, or that the arbitrators decided, whether emotional distress resulting from SEPTA's dismissal contributed to Pierce's unavailability for work.
Moreover, it is not evident that the arbitrators decided that Pierce was not entitled to back pay because he was unable or unwilling to work between February 28, 1996 and December 1, 1998.
In their opinion, the arbitrators never stated that Pierce was unable or unwilling to return to work from medical leave until December 1, 1998. The most they expressly decided is that he was unready to work in 1996. Arb. Award at 2 ("Giving Grievant the benefit of the doubt, Grievant's testimony shows that he was placing substantial qualifications on his 1996 ability to return to work."). This amounts to about one-third of the time that Pierce was out of work.
Nor can we say that the determination that Pierce was unavailable to work during the time of his dismissal necessarily follows from the arbitral judgment. See Moore's Federal Practice § 132.03[3][e] ("An issue that was necessarily implicit in a larger determination is given issue preclusive effect."); Witkowski, 173 F.3d at 201 (approving issue preclusion where determination of issue was inescapably implicit in the arbitrators' decision). This is because there are two possible interpretations of the arbitration award denying Pierce back pay.
One explanation for why Pierce did not receive back pay — the one SEPTA favors — is that the arbitrators determined that Pierce was unable or unwilling to work during the entire period in which he was dismissed. But there is another explanation that is equally plausible. The arbitrators found that Pierce engaged in misconduct. Arb. Award at 1 ("The rule violation has therefore been demonstrated."). They ruled only that "discharge was excessive", and that the circumstances in which the check was issued "must serve to mitigate the discharge." Arb. Award at 1 (emphasis added). The arbitrators thus concluded that some discipline was justified for violation of Rule 18. They could have reinstated Pierce with partial back pay as a suspension. They then could have denied him any back pay at all because he was unable to work during some of the time that he was dismissed (at least, in 1996). Under this reading, the arbitrators elected to deny Pierce back pay both because he committed misconduct warranting discipline and because he was unable or unwilling to work for some of the time that he was dismissed.
Thus, only one of two possible readings of the arbitration award involves the determination that Pierce was unable or unwilling to work during the entire time that he was dismissed. In view of this, and in the absence of an express arbitral finding that Pierce was unavailable to work for that whole period, we cannot say that the arbitrators necessarily resolved an issue that controls back pay in this litigation. That is, we cannot say that the arbitrators necessarily denied Pierce back pay solely because they found that he would have been unavailable to work had he not been dismissed.
Since it is not free from Witkowski's "reasonable doubt" that the arbitrators decided an issue that controls back pay in this case, issue preclusion is inappropriate and the partial motion to dismiss must be denied.