I. Employment Law

Private Right of Action for Damages Against a Private Employer Does Not Exist Under Pennsylvania Equal Rights Amendment

In Dillon v. Homeowner's Select, --- A.2d ---, 2008 WL 4380866 (Pa. Super. September 29, 2008), the Pennsylvania Superior Court was faced with an issue of first impression: whether a plaintiff may assert a cause of action against a private employer for gender-based discrimination under the Equal Rights Amendment of the Pennsylvania Constitution.

Plaintiff, Lisa Dillon, began her employment with Homeowner's Select, Affinity Insurance Services, Inc. ("Homeowner's") in July 2002. In or around December 2003, plaintiff's immediate supervisor, allegedly began making sexually offensive comments to plaintiff and engaging in sexually offensive conduct towards her. Despite plaintiff reporting these actions to Homeowner's customer service manager, the behavior continued until March 2004, when plaintiff voluntarily transferred to another department.

Plaintiff filed a civil complaint against Homeowner's in the Court of Common Pleas of Montgomery County, alleging gender discrimination in violation of the Pennsylvania Equal Rights Amendment. Prior to filing her complaint in state court, she did not exhaust potential administrative remedies under the Pennsylvania Human Rights Act, 43 Pa.C.S.A. §§ 951-963 (the "PHRA"). Homeowner's filed preliminary objections arguing (1) that no cause of action exists against a private employer under the Equal Rights Amendment, and (2) even if such a cause of action does exist, state courts would have jurisdiction to consider it only if the complainant first exhausted all available administrative remedies under the PHRA with the Pennsylvania Human Rights Commission (the "PHRC"). The trial court granted Homeowner's preliminary objections and dismissed plaintiff's complaint for lack of jurisdiction.

Plaintiff appealed raising the following issue of whether the trial court erred in dismissing her complaint and determining that she was required to exhaust administrative remedies through the PHRC in order to assert her claims of sexual harassment and sex discrimination under the PERA.

The Superior Court declined to address the question because it concluded that no private right of action for damages exists against a private employer for sex discrimination under Pennsylvania's Equal Rights Amendment.

In its decision, the court noted that the Pennsylvania Supreme Court has defined the scope of application of the Equal Rights Amendment to gender-based discrimination by state or local entities or officials, including through statutes, official policies, and the rulings of its courts and administrative agencies. The court provided that while it is not necessary for a plaintiff to allege "state action" to invoke the Equal Rights Amendment, a plaintiff must assert that the discriminatory conduct at issue was perpetrated by a state or local entity or official "in their formulation, interpretation and enforcement of statutes, regulations, ordinances and other legislation as well as decisional law." Applying this to plaintiff's complaint, the court held that plaintiff could not bring a cause of action against her private employer under the Pennsylvania Equal Rights Amendment.

Only "Eligible Employee" Can Bring FMLA Interference Claim

In the unpublished opinion, Sinacole v. iGate Capital, 2008 WL 3166000 (3d Cir. August 5, 2008), plaintiff, Patricia Sinacole, brought action against her former employer iGate Capital for, among other things, interference with her rights under the Family Medical Leave Act. The United States District Court for the Eastern District of Pennsylvania granted defendant's summary judgment and plaintiff appealed.

Plaintiff and iGate entered into an employment contract in 1998. In 1999, she chose to change her job from a salaried position to work as needed on an hourly, part-time basis for iGate and its subsidiary companies. She continued to work on this basis for iGate, but also performed work for subsidiary companies of iGate.

On November 28, 2000, Sinacole submitted to iGate the specified paperwork requesting FMLA leave for a pregnancy. She specified that the leave would likely commence on April 4, 2001. iGate did not respond to Sinacole's application.

Sinacole took her leave on April 6, 2001. Sinacole submitted to iGate her "Notice of Intent to Return from Leave" on May 23, 2001 identifying her return date as July 2, 2001. On June 22, 2001, iGate sent a letter to Sinacole terminating her employment with iGate based on the fact that it was experiencing significant financial difficulties that resulted in a reduction in force. Two of three employees who performed policy and special project work that was similar to Sinacole were terminated: both were men.

On appeal, plaintiff relied on "the expectation raised in the FMLA that those who are legitimately on leave under the FMLA have the right to return to their former position upon concluding leave." The Third Circuit Court of Appeals provided that to assert an interference claim, "the employee only needs to show that he was entitled to benefits under the FMLA and that he was denied them." iGate claimed that plaintiff could not raise an FMLA interference claim because she worked an insufficient number of hours to be an "eligible employee." iGate introduced evidence that plaintiff did not work the 1250 hours that are required to be entitled to FMLA. Plaintiff did not dispute this fact. Therefore, plaintiff was unable to proffer facts that she had FMLA rights and could not support her interference claim.

Plaintiff also argued that her reliance on iGate's silence after she applied for FMLA benefits eliminated her opportunity to either delay leave until she did become eligible under the FMLA. The court rejected this argument noting it was unreasonable to infer that plaintiff could have worked more hours before the birth of her child since she worked at the discretion of iGate and therefore, did not have control over the number of hours for which iGate requested her to work. Also, the court noted that while plaintiff had control over refusing work offered by iGate, she did not provide any facts to reasonably infer that she actually did so in the time period relevant to this claim.

Therefore, the Third Circuit Court of Appeals held "under every scenario that Sinacole submitted, her interference claim could not have survived summary judgment because she could not produce evidence that she was eligible for any FMLA benefits."

II. PRODUCTS LIABILITY

New Jersey Courts Recognize a Distinction Between a Manufacturer of a Product and an Owner that Provides Specifications for its Manufacture

In Aly v. Federal Express, Inc., 2008 WL 4378233 (D.N.J. September 23, 2008), plaintiff, a mechanic employed by Omni Tech, was injured while performing maintenance on a machine know as an Adjustoveyor. The Adjustoveyer was manufactured by Stewart Glapat Corp. Fed Ex purchased the machine from Stewart Glapat, was owned and on the premises of the Fed Ex facility at the Newark Airport. Stewart Glapat maintained that it manufactured the machine according to Fed Ex's specifications. In addition, Fed Ex added support legs to the machine which left it installed in an elevated position. It is the position of the machine which led to plaintiff's injuries. As a result of the injuries, Plaintiff brought suit against Federal Express alleging, among other things, harm caused by the Adjustoveyor, which the court construed as a claim under the New Jersey Products Liability Act.

Under New Jersey law, the New Jersey Products Liability Act (N.J.S.A. 2A:58C-1 and 2), which provides the sole legal basis for recovery for harm caused by a defective product, is limited to manufacturers and sellers of a product. Despite the fact that Fed Ex is not a manufacturer and, therefore, not subject to the Products Liability Act, plaintiff argued that Fed Ex was within the statutory definition of manufacturer because Fed Ex's addition of the support legs transformed it from a mere purchaser into a manufacturer of the machine or its mounting components. According to Plaintiff, Fed Ex had a role in designing and formulating the machine, triggering the Product Liability Act's definition of manufacturer.

The Products Liability Act provides that a manufacturer is "any person who designs, formulates, produces, creates, makes, packages, labels or constructs any product or component of product." The court concluded that Plaintiff's position that Fed Ex is a manufacturer for purposes of the Product Liability Act stretches the definition of manufacturer beyond recognition. The court provided that "[t]he conduct described by Plaintiff concerns product usage or alteration, not creation. Nor does Fed Ex's input regarding its consumer preferences with regard to the Adjustoveyor that was manufactured for Fed Ex bring it within the Product Liability Act. New Jersey courts recognize a distinction between a manufacturer of a product and an owner that provides specifications for its manufacture." As such, the court held that plaintiff could not prevail on his product liability claim against Fed Ex as a matter of law.