Wilson v. Concern Professional Services

Filing 25

MEMORANDUM (Order to follow as separate docket entry) re 19 MOTION for Summary Judgment filed by Ezekiel V. Wilson, 17 MOTION for Summary Judgment filed by CONCERN Professional Services for Children, Youth, and Families. Signed by Honorable Matthew W. Brann on 10/20/15. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
EZEKIEL V. WILSON,

Plaintiff,
v.
CONCERN PROFESSIONAL
SERVICES,
Defendant.

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Civil Action No. 4:14-cv-1409

(Judge Brann)

MEMORANDUM
October 20, 2015
Pending before this Court are two motions for summary judgment, one filed
by Plaintiff Ezekiel V. Wilson and the other filed by Defendant CONCERN
Professional Services. Plaintiff’s motion seeks to preclude re-litigation of the issue
of Defendant’s liability for Plaintiff’s termination based upon the doctrine of issue
preclusion. Defendant’s motion seeks to preclude requests for compensatory
damages based on the doctrine of claim preclusion and to dismiss all claims of
punitive damages. Though only one motion has been fully briefed, the time for
briefing on the other has passed and consequently both motions are now ripe for
disposition. In accordance with the following reasoning, Plaintiff’s motion for
summary judgment is granted. Defendant’s motion for summary judgment is
granted in part and denied in part. Plaintiff is precluded by his previous action
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before the PHRC from seeking compensatory damages in the current federal
action.
I. BACKGROUND
CONCERN Professional Services (hereinafter “CONCERN”) is a non-profit
child welfare organization which provides, inter alia, foster care and adoption
services. Pl.’s Statement of Facts ¶ 2, September 14, 2015, ECF No. 19-2
(hereinafter “Pl.’s SOF”). CONCERN employed Mr. Wilson, who is AfricanAmerican, as a supplemental counselor from May 10, 2000 until his termination on
May 3, 2002. Def.’s Statement of Facts ¶ 3, September 19, 2015, ECF No. 17-16
(hereinafter “Def.’s SOF”); Pl.’s SOF ¶ 1.
On July 23, 2002, following his termination, Mr. Wilson filed a complaint of
racial discrimination with the Pennsylvania Human Relations Commission
(hereinafter the “PHRC”), which was cross-shared with the Equal Employment
Opportunity Commission (hereinafter the “EEOC”). Def.’s SOF ¶ 5; Pl.’s SOF ¶ 4.
On July 22, 2007, the PHRC issued an Opinion and Final Order, which was
appealed to the Commonwealth Court. Def.’s SOF ¶ 6-7; Pl.’s SOF ¶ 6-8. The
Commonwealth Court found reversible error and remanded for a new hearing.
Def.’s SOF ¶ 7; Pl.’s SOF ¶ 8.
Upon remand, the PHRC held new hearings and issued a Final Order dated
October 26, 2010. Def.’s SOF ¶ 9; Pl.’s SOF ¶ 9. These proceedings ultimately
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determined that CONCERN had terminated Mr. Wilson’s employment as a result
of unlawful discrimination. Def.’s SOF ¶ 10; Pl’s SOF ¶ 7. However, the PHRC
did not award back pay. Def.’s SOF ¶ 10. The Order was therefore appealed and
the Commonwealth Court reversed in part, directing the PHRC to fashion a
remedy. Def.’s SOF ¶ 13; Pl.’s SOF ¶ 10. Thereafter, on April 26, 2012, the
PHRC held additional hearings and, on June 25, 2012, it awarded Mr. Wilson back
pay in the amount of $28,416.00 together with interest at a rate of 6% per annum
from August 2005 until the date of the award. Def.’s SOF ¶ 14-15; Pl.’s SOF ¶ 11.
CONCERN has paid Mr. Wilson the full back pay award. Pl.’s SOF ¶ 13. Mr.
Wilson subsequently initiated the instant litigation to obtain damages that were
unavailable under the Pennsylvania Human Relations Act (hereinafter, the
“PHRA”).
II. LEGAL STANDARD
Summary judgment is appropriate where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” where it “might affect
the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute is “genuine” where “the evidence is such that
a reasonable jury,” giving credence to the evidence favoring the nonmovant and

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making all inferences in the nonmovant’s favor, “could return a verdict for the
nonmoving party.” Id.
The burden of establishing the nonexistence of a “genuine issue” is on the
party moving for summary judgment. See In re Bressman, 327 F.3d 229, 237 (3d
Cir. 2003) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986) (Brennan,
J., dissenting)). The moving party may satisfy this burden by either (i) submitting
affirmative evidence that negates an essential element of the nonmoving party’s
claim; or (ii) demonstrating to the Court that the nonmoving party’s evidence is
insufficient to establish an essential element of the nonmoving party’s case. See id.
at 331.
Where the moving party’s motion is properly supported, the nonmoving
party, to avoid summary judgment in his opponent’s favor, must answer by setting
forth “genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.” Anderson, 477
U.S. at 250. For movants and nonmovants alike, the assertion “that a fact cannot
be or is genuinely disputed must” be supported by “materials in the record” that go
beyond mere allegations, or by “showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1); see also
Anderson, 477 U.S. at 248–50.
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“When opposing summary judgment, the non-movant may not rest upon
mere allegations, but rather must ‘identify those facts of record which would
contradict the facts identified by the movant.’” Port Auth. of N.Y. and N.J. v.
Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003). Furthermore, “[i]f a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e)(2).
In deciding the merits of a party’s motion for summary judgment, the
Court’s role is not to evaluate the evidence and decide the truth of the matter, but
to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at
249. Credibility determinations are the province of the factfinder, not the district
court. See BWM, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
III. DISCUSSION
A. Preclusive Effect of the PHRC’s Liability Determination
Plaintiff argues that this Court must give preclusive effect to the PHRC’s
determination as to Defendant’s liability for Plaintiff’s termination. Defendant
does not respond to this argument. This Court now determines that Defendant is
precluded from contesting its liability for racial discrimination, although it is
unclear that such was Defendant’s intention at all.

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Issue preclusion prevents a party from re-litigating an issue that was actually
and necessarily determined by a court of competent jurisdiction. See Montana v.
United States, 440 U.S. 147, 154 (1979). In determining the impact of a prior state
adjudication, federal courts must give preclusive effect to state court judgments
whenever the court of the state from which the judgment emerged would do so. See
Allen v. McCurry, 449 U.S. 90, 96 (1980). Moreover, “when a state agency acting
in a judicial capacity resolves disputed issues of fact properly before it which the
parties have had an adequate opportunity to litigate, federal courts must give the
agency’s factfinding the same preclusive effect to which it would be entitled in the
State’s courts.” University of Tennessee v. Elliot, 478 U.S. 788, 799 (1986)
(quoting Utah Construction & Mining Co., 384 U.S. 394, 422 (1966)); see also
Kelley v. TYK Refractories Co., 860 F.2d 1188, 1193 (3d Cir. 1988) (“Although §
1738 does not apply to state administrative agency proceedings, the Supreme Court
has held that preclusive effect must be granted to even unreviewed state agency
decisions in subsequent actions under any of the Reconstruction civil rights
statutes.”).
In Pennsylvania, issue preclusion applies when four elements are
established: (1) the issue decided in the prior adjudication was identical to the one
presented in the current action; (2) there was a final judgment on the merits in the
first action; (3) the party against whom the plea is asserted was a party or in privity
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with a party to the prior adjudication; and (4) the party against whom it is asserted
had a full and fair opportunity to litigate the issue in question in that prior action.
See Safeguard Mut. Ins. Co. v. Williams, 345 A.2d 664, 668 (Pa. 1975); see also
Kelley, 860 F.2d at 1194.
In this case, none of these elements are genuinely in dispute. With regard to
the identity of issues, the parties agree that both actions involve the liability of
Defendant for the discharge of Plaintiff on the basis of his race. Although the
PHRA and Title VII are not identical, state and federal courts interpret them as
applying the same standards of liability. See Goosby v. Johnson & Johnson
Medical, Inc., 228 F.3d 313, 317 n.3 (3d Cir. 2000). Thus, there is clearly an
identity of issues in these two actions.
Next, there was a final judgment on the merits of Plaintiff’s PHRA claim.
After two appeals of the PHRC’s orders, the PHRC determined that Defendant had
discriminated against Plaintiff on the basis of his race, and it fashioned a remedy
for Plaintiff. This determination and award was never appealed. See Restatement
(Second) of Judgments § 13 cmt. g. (commenting that an inquiry into the finality of
a judgment focuses on “whether the conclusion in question is procedurally
definite.”). This constitutes a final judgment on the merits of the action.

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Moreover, there can be no argument whatsoever that the parties are
identical; that is, the only plaintiff in the PHRC action was Mr. Wilson, and the
only defendant in that action was CONCERN.
Finally, Defendant clearly had a full and fair opportunity to litigate the issue
of its liability. To reiterate, there were several hearings before the PHRC and two
appeals taken to the Commonwealth Court. Defendant had a complete opportunity
to investigate the issue and present its case, which it did. Accordingly, issue
preclusion applies and Defendant is prohibited from contesting its liability for the
termination of Plaintiff.
B. Compensatory Damages
Defendant argues that Plaintiff’s request for compensatory damages is
barred by the doctrine of claim preclusion because such damages were available in
the state proceedings. Plaintiff responds that based on certain amendments to the
PHRA and subsequent case law on the topic, compensatory damages were actually
not available during the state proceedings and therefore he should not be precluded
from seeking them in this federal forum.
Claim preclusion is a doctrine which prevents a party from prevailing on
issues that he might have, but did not, assert in a previous action. See Riverside
Memorial Mausoleum, Inc. v. UMET Trust, 581 F.2d 62, 67 (3d Cir. 1978).
Essentially, “[c]laim preclusion gives dispositive effect to a prior judgment if a
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particular issue, although not litigated, could have been raised in the earlier
proceeding.” Churchill v. Star Enterprises, 183 F.3d 184, 194 (3d Cir. 1999); see
also Migra v. Warren City School District Board of Education, 465 U.S. 75, 77 n.1
(1984) (“Claim preclusion refers to the effect of a judgment in foreclosing
litigation of a matter that never has been litigated, because of a determination that
it should have been advanced in an earlier suit.”). A determination of the
preclusive impact of a judgment of a state court or tribunal depends upon the law
of the adjudicating state. See Marrese v. American Academy of Orthopaedic
Surgeons, 470 U.S. 373, 380 (1985) (“It has long been established that [the full
faith and credit statute] does not allow federal courts to employ their own rules of
res judicata in determining the effect of state judgments. Rather, it goes beyond
the common law and commands a federal court to accept the rules chosen by the
State from which the judgment is taken.” (citations omitted)).
The question then becomes whether Plaintiff could have asserted a right to
compensatory damages in his previous action before the PHRC. Both parties make
good arguments on this unresolved legal issue. This Court concludes, in
accordance with the prevailing Pennsylvania statutory and case law, that
compensatory damages were available under the PHRA and therefore Plaintiff
cannot now seek them in the current federal action based upon the doctrine of
claim preclusion.
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The PHRA authorizes various remedies for unlawful discrimination. The
specific language states that the PHRC may “take such affirmative action,
including, but not limited to,” certain enumerated acts. 43 P.S. § 959(f). These
enumerated remedies do not include an explicit provision allowing for the award of
compensatory damages. Id. In 1991, the PHRA was amended to add explicit
language to the effect that compensatory damages are available in cases of housing
discrimination; it made no such amendment to its provisions on other types of
unlawful discrimination. Id.
However, subsequent to this amendment, the Pennsylvania Supreme Court
issued a decision in which it held that punitive damages are not available under the
PHRA. See Hoy v. Angelone, 720 A.2d 745, 751 (Pa. 1998). In so holding, the
court relied upon the remedial nature of the Act, reasoning that “[p]unitive
damages are not consistent with this goal of achieving the remedial purposes of the
statute and are not a make-whole remedy.” Id. at 749. The analysis that the court
employed implicitly recognizes that any damages which are remedial in nature and
contribute to create a “make-whole remedy” would in fact be available under the
PHRA. Compensatory damages are remedial in nature, unlike punitive damages
which are “purely penal in nature.” Id. Such damages are therefore consistent with
the remedial goal of the PHRA, as indicated by the Pennsylvania Supreme Court,
and are accordingly available under that Act.
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Plaintiff makes a sound argument that the Pennsylvania legislature clearly
knew how to authorize an award of compensatory damages, as demonstrated by the
1991 amendment, and therefore consciously chose not to authorize such an award
for other acts of unlawful discrimination. However, this Court cannot contravene
what it views to be very persuasive evidence of how the Pennsylvania Supreme
Court would decide in the instant matter.1 Consequently, because compensatory
damages were available to Plaintiff in the previous action, he is now precluded
from requesting them in the current federal matter.
C. Punitive Damages
Finally, Defendant argues that Plaintiff is not entitled to punitive damages
because the extensive record of the state proceedings demonstrate no
circumstances which would make an award of punitive damages appropriate in this
case. Plaintiff responds that summary judgment on his punitive damages claim is
inappropriate at this stage in the litigation.
Title VII authorizes an award of punitive damages when the employer acts
with “malice or with reckless indifference to the plaintiff’s federally protected
rights.” Kolstad v. American Dental Ass’n, 527 U.S. 526, 535 (1999) (quoting 42
U.S.C. § 1981a(b)(1)). There is no need for a plaintiff to prove egregious
misconduct in order to support such an award. See id. at 538. Moreover, reckless
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Moreover, the PHRC website appears to provide support for Plaintiff’s argument. However, this website is not
law, but rather an interpretation of prevailing law, albeit from a persuasive source. Therefore, the Court will not
consider this argument in its analysis.

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indifference “pertain[s] to the employer’s knowledge that it may be acting in
violation of federal law, not its awareness that it is engaging in discrimination.” Id.
at 535. This means that a plaintiff is entitled to recover punitive damages if he can
demonstrate that his employer “discriminate[d] in the face of a perceived risk that
its actions will violate federal law.” Id. at 536.
Because the PHRA does not authorize an award of punitive damages, Hoy,
720 A.2d at 751, the parties have not had an opportunity to conduct discovery on
this issue and the extensive record from the state proceedings does not focus on
any information which would establish a basis for such an award. At this juncture,
Plaintiff has already proven that Defendant intentionally discriminated against him
because of his race; what is left to be determined is whether Defendant intended to
violate his federal rights in doing so. Plaintiff should have an opportunity to
conduct relevant discovery in order to support his request for punitive damages.
Accordingly, the Court will deny Defendant’s motion for summary judgment on
this basis without prejudice, with leave to raise the issue again at a later stage in the
litigation.
IV. CONCLUSION
In accordance with the foregoing reasoning, Plaintiff’s motion for summary
judgment is granted. Defendant’s motion for summary judgment is granted in part

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and denied in part. Plaintiff is precluded by his previous action before the PHRC
from seeking compensatory damages in the current federal action.

BY THE COURT:

/s Matthew W. Brann
Matthew W. Brann
United States District Judge

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