Opinion
Civil Action Nos. 05-3787, 06-2235.
July 11, 2006
ORDER AND OPINION
I. Introduction
The first of these cases was filed in the Court of Common Pleas for Philadelphia County and removed to this Court on June 21, 2005. It was originally assigned to the Honorable Bruce W. Kauffman, and subsequently referred to the undersigned. As it currently, stands, following decisions on several defense motions, it asserts counts under 42 U.S.C. § 1983 by plaintiffs Carmen Clemente and Dionne Drayton, alleging discrimination on the basis of sex and race.
The second case was also filed in the Court of Common Pleas, and removed here by defendants on May 26, 2006. Defendants have moved to dismiss this case. Plaintiffs have filed a motion to consolidate the two cases. I will grant both motions in part and deny them in part, as specified below, ordering the cases consolidated and certain counts in the second case dismissed.
II. The Motion to Consolidate
Cases in this court may be consolidated under the following federal rule:
When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
Fed.R.Civ.Pr. 42.
The power of a court to order consolidation of cases under Rule 42 is purely discretionary, but is generally exercised when it is clear that consolidation will serve policies such as judicial economy and expedition of litigation. Turner v. Transportacion Maritima Mexicana S., 442 F.R.D. 412, 415 (E.D. Pa. 1988). However, these interests must be balanced against the prejudice to any party opposed to the consolidation. Id.
The fact that the factual underpinnings of these two actions, as well as their parties, are completely identical warrants their consolidation on the basis of judicial economy and expedition of litigation. The Defendants' objections to consolidation are principally concerned with the possibility that Plaintiffs seek to file two identical complaints in order to "expand the procedural rights [they] would have otherwise enjoyed." Walton v. Eaton, 563, F.2d 66, 71 (3d Cir. 1977). This will not occur here. As discussed below, all of the claims set forth in the second case which are consistent with the decisions already made in the first action case will be dismissed, whether on the basis of res judicata or simply for the same reasons as in the first case. Given my decision to consolidate the two cases, the portion of Plaintiffs' motion seeking amendment of the first complaint will be denied as moot.
III. The Motion to Dismiss
A. Counts I and II: The Title VII Actions
Defendants ask that the Title VII counts, Count I and II, be dismissed as they pertain to individual defendants Gary Scicchitano, Maria Marcinko, Ed Jones and Mark Weinstein. Individual Daniel Solla has filed a separate motion asking that he, too, be dismissed as a Title VII defendant.
Clearly, dismissal of these counts as to the individual defendants is warranted. Individual employees are not liable under Title VII. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002); Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077-78 (3d Cir. 1996). Plaintiffs' argument notwithstanding, it is irrelevant whether those individuals could be found to have acted as agents for the Board.
B. Count III: § 1981 and § 1983 Actions Based on Racial and Sexual Discrimination
1. The § 1981 Actions
In an Order of January 6, 2006, Judge Kauffman dismissed the § 1981 actions brought by all plaintiffs in the case captioned 05cv3787, finding that there was no private right of action under that statute, and that the rights granted by the statute were only enforceable through § 1983. Principles of collateral estoppel compel the same result in 06cv2235. See Allen v. McCurry, 449 U.S. 90, 94 (1980). All § 1981 actions will, therefore, be dismissed.
2. The § 1983 Actions
Drayton and Clemente have § 1983 claims pending in 05cv3787. Claims brought under § 1983 by Holman and Roadcloud were dismissed in my Order and Opinion of April 13, 2006, for failure to meet the applicable statute of limitations.
Obviously, principles of collateral estoppel would require that I dismiss § 1983 claims brought by Holman and Roadcloud in 06cv2235 on the statute of limitation grounds. See Allen v. McCurry, 449 U.S. 90, 94 (1980). In any event, however, it is undesirable for any plaintiff to have two § 1983 claims pending at the same time, based on identical facts. See Walton v. Eaton, supra. I will, therefore, dismiss all § 1983 claims set forth in the later filed action. This will have little practical effect, since the § 1983 claims remain pending in 05cv3787.
C. Count IV: The PHRA Claims
1. Clemente and Drayton
Clemente and Drayton have adequately set forth a prima facie case for retaliation under the PHRA. However, Solla has pointed out that, unlike Roadcloud and Holman, these plaintiffs did not allege in their complaint that they filed their EEOC complaints dually with the PHRC, or that they waited one year from the filing of a PHRA complaint to file a civil action. See Complaint at ¶¶ 37-41.
A plaintiff who wishes to bring a PHRA claim in civil court must first file an administrative complaint with the PHRC, which has exclusive jurisdiction over the claim for a period of one year, in order to investigate and, hopefully, conciliate the claims. Tlush v. Manufacturers Resource Center, 315 F. Supp. 2d 650, 656 (E.D. Pa. 2002).
Defendants have not specifically addressed Solla's argument in their response to the motions to dismiss. Given the apparent failure to exhaust administrative remedies, therefore, I will dismiss the PHRA claims brought by Clemente and Drayton. They may move to reinstate these claims if they can show that, in fact, they exhausted their administrative remedies.
2. Roadcloud and Holman
Solla also maintains that the PHRA claims brought by Roadcloud and Holman should be dismissed because of their failure to allege any particular personal involvement on his part. All plaintiffs have, however, alleged — in at least a general sense — that Solla had a part in creating and/or enforcing a discriminatory system where women and non-whites were treated unfavorably. Discovery will test the basis for their allegations. At this point, however, I will not conclude that plaintiffs have not set forth a basis upon which relief can be granted. For this reason, I will not dismiss the PHRA claims against Solla.
D. Counts V and VI: Intentional and Negligent Infliction of Emotional Distress
I will dismiss Counts V and VI, for intentional and negligent infliction of Emotional Distress. It is quite clear that all Defendants are protected from these claims under 42 Pa. C.S.A. § 8521, which grants sovereign immunity from claims of intentional tort to Pennsylvania parties acting within the scope of their employment.
Putting aside Plaintiffs' argument that "discrimination is not within the scope of defendants' employment", which is too obviously jejune to merit much discussion, it is clear that all of the acts alleged by Plaintiffs to have been taken by Defendants were taken within the scope of their employment. Thus, Defendants are immune.
In accordance with this, it has been held in numerous cases that Commonwealth agencies and their employees cannot be sued for intentional infliction of emotional distress. Bond v. Rhodes, 2:05cv241, 2006 WL 1617892 at *4 (W.D. Pa. Jun. 8, 2006);Valensky v. Laughlin, 2:94cv1356, 2005 WL 2250686 at *12 (W.D. Pa. Sep. 14, 2005); Rodriguez v. Smith, 03cv3675, 2005 WL 148491 at *8 (E.D. Pa. Jun. 21, 2005); Frazier v. Southeastern Pennsylvania Transportation Authority, 868 F.Supp. 757 (E.D. Pa. 1994).
D. Attorney's Fees and Costs
Defendants Scicchitano, Marcinko, Jones and Weinstein have asked that counsel for Plaintiffs pay their costs and fees associated with removing the second case, 06cv2235, to federal court, and for preparing the present Motion to Dismiss. They point out that an attorney who "multiplies the proceedings in any case unreasonably and vexatiously" may be required by the court to pay costs and fees incurred as a result of his conduct. 28 U.S.C. § 1927.
Counsel for Plaintiffs made extra work for the Defendants, to some extent. Notably, he included claims in 06cv2235 which a minimum of legal research would have revealed to be without a legal basis — such as the Title VII claims against individuals, and the claims for intentional and negligent infliction of emotional distress. However, I do not find that, as a whole, counsel's actions were "so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose." Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986). I will not, therefore, order the payment of costs and attorney's fees.
III. Conclusion
In summary, following the entry of my Order, as set forth below, these consolidated cases include (a) § 1983 counts asserted by Clemente and Drayton against the Board; (b) counts asserted by all plaintiffs against the Board, under Title VII; and (c) PHRA counts asserted by Roadcloud and Holman against all defendants.
ORDER
AND NOW, this day of July, 2006, upon consideration of Plaintiffs' Motion to Consolidate and Amend, filed in Action No. 05-3787 as Document No. 43, and Defendants' response thereto, and upon consideration of Defendants' Motion to Dismiss, filed in Action No. 06cv2235 as Document No. 6, and Plaintiffs' response thereto, it is hereby ORDERED that:
(1) Plaintiffs' Motion to Consolidate and Amend is GRANTED IN PART and DENIED IN PART. Actions 05cv3738 and 06cv2235 are ORDERED CONSOLIDATED; and it is further ORDERED that
(2) Defendants' Motion to Dismiss, filed in Action 06cv2235 is GRANTED IN PART and DENIED IN PART;
(a) Plaintiffs' Title VII actions against the individual defendants are DISMISSED WITH PREJUDICE;
(b) Plaintiffs' actions under 42 U.S.C. § 1981 are DISMISSED WITH PREJUDICE;
(c) Plaintiffs' actions under 42 U.S.C. § 1983 are DISMISSED WITH PREJUDICE in 06cv2235 ONLY. (They remain pending in action 05cv3787;
(d) Actions brought by Plaintiffs Drayton and Cruz under the PHRA are DISMISSED without prejudice to refile upon a showing of the exhaustion of administrative remedies;
(e) Plaintiffs' claims for intentional infliction of emotional distress and negligent infliction of emotional distress are DISMISSED WITH PREJUDICE.
The Motions are otherwise DENIED.