Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-31-1996

Dici v. Comm of PA
Precedential or Non-Precedential:

Docket 95-3579




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                      UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                __________

                               No. 95-3579
                                __________



                             JUDITH S. DICI,
                                       Appellant,

                                     v.

                      COMMONWEALTH OF PENNSYLVANIA;
                     PENNSYLVANIA STATE POLICE BUREAU
                      OF LIQUOR CONTROL ENFORCEMENT;
                    FRANK H. MONACO; STEVEN B. BRISON

                                __________

             On Appeal from the United States District Court
                 for the Western District of Pennsylvania
                        (Civil Action No. 93-1845)
                                __________

                           Argued May 23, 1996

Before SLOVITER, Chief Judge, SAROKIN and OAKES,
                               Circuit Judges


                          (Filed July 31, 1996)

                               __________


                             Andrew L. Levy, Esq. (argued)
                             Dara A. DeCourcy, Esq.
                             Zimmer Kunz, P.C.
                             Pittsburgh, PA 15219
                                  Attorneys for Appellant

                             Thomas W. Corbett, Jr.
                              Attorney General

                             Gloria A. Tischuk (argued)
                              Deputy Attorney General
                             Calvin R. Koons
                              Senior Deputy Attorney General
                             John G. Knorr, III
                              Chief Deputy Attorney General
                                   Pittsburgh, PA 15219
                                        Attorneys for Appellees
                                        Commonwealth of Pennsylvania,
                                        Pennsylvania State Police, Bureau
                                        of Liquor Enforcement and Frank H.
                                        Monaco
                                   Bryan Campbell, Esq. (argued)
                                   Shelly Bould Campbell, Esq.
                                   Pittsburgh, PA 15219
                                        Attorneys for Appellee Steven
                                        Brison
                                   _______________

                                 OPINION OF THE COURT
                                   _______________


     OAKES, Senior Circuit Judge:
     Judith S. Dici ("Dici") appeals from a summary judgment
entered on September 27, 1995, by the United States District
Court for the Western District of Pennsylvania in favor of
Appellees Commonwealth of Pennsylvania, Pennsylvania State
Police, Bureau of Liquor Enforcement, Frank H. Monaco ("Monaco"),
and Steven Brison ("Brison"). Dici sought monetary and
injunctive relief under Title VII of the Civil Rights Act of
1964, 42 U.S.C.    2000e et seq. (1994), and the Pennsylvania
Human Relations Act, 43 Pa. Cons. Stat. Ann.    951 et seq. (1991
& Supp. 1994) ("PHRA"), for several alleged incidents of sexual
harassment and racial bias. On appeal, Dici contends that the
district court erred in finding her claims precluded by a
previous state workmen's compensation determination arising out
of many of the same incidents alleged by Dici in this case. Dici
further claims that genuine issues of material fact prevent entry
of summary judgment in favor of the Appellees. For the reasons
stated below, we affirm in part, reverse in part, and remand.

                            BACKGROUND
     Dici began working as a liquor enforcement officer for the
Commonwealth of Pennsylvania on October 19, 1975. In 1978, Dici
became an employee of the Pennsylvania State Police when it
assumed the responsibilities of the Bureau of Liquor Enforcement.
Dici's duties included conducting undercover investigations of
premises licensed by the Commonwealth for violations of the
liquor law and patrolling for underage drinkers. In 1989 and
1990, Dici taught driver training to Liquor Control Enforcement
cadets at the State Police Academy. Appellee Brison was also a
liquor enforcement officer during the time period at issue.
Appellee Monaco supervised Dici during her employment with the
State Police.
     Dici claims that on August 26, 1990, she became physically
ill and totally disabled as a result of the Appellees' conduct.
On June 14, 1991, Dici sought state workmen's compensation for
the mental and physical disorders she alleged to have suffered as
a result of sexual and racial harassment on the job. In both the
case presently before us and the state workmen's compensation
proceeding, Dici alleged the following incidents of harassment
and bias:
     (1) In November 1988, at a graduation party for
     transitional training, fellow employee Jerome Farmer,
     who dated Dici in the past, said to Dici "Why don't you
     and I get together and I'll show you just how much I
     like you." Dici walked away and reported the incident
     the next day. Farmer denied the incident occurred.

     (2) In August 1989, Farmer said to Dici, "Jude, we'll
     get together and I'm sure we can work something out."
     Dici declined, and later reported the incident to
     Monaco. Monaco informed her that she could not
     directly contact the Affirmative Action Officer (whose
     duties included handling reports of sexual harassment).
     Monaco claimed that when he later learned that officers
     could contact the Affirmative Action Officer directly,
     he went to Dici and told her of the mistake. Dici
     claimed Monaco never approached her with the
     information. Farmer denied the incident occurred.

     (3) Dici inquired of Monaco about teaching a public
     speaking class in Harrisburg. Monaco, who knew that
     Dici had also applied for an auditing position in
     Harrisburg, said, "Harrisburg, where you want to be."
     Dici interpreted this statement to be a comment on her
     dating relationship with Captain Clanaghan, a black
     officer stationed in Harrisburg. Monaco denied the
     statement was made.

     (4) On April 15, 1989 (a weekend day), two officers
     took Dici into the men's bathroom at the district
     office and showed her a drawing of a nude woman
     kneeling down and leaning forward with her mouth open.
     Dici's name was scrawled above the drawing. Dici
     complained to Monaco the following Monday. Dici
     claimed Monaco told her that the drawing was flattering
     and there was nothing he could do about the drawing
     because the bathroom was public. Monaco claimed never
     to have made such a statement and notes that the
     drawing was removed on that Monday. Other witnesses
     stated that the drawing had been on the wall since 1987
     and only recently had been modified to include Dici's
     name.

     (5) In September or October 1989, Dici was a driving
     instructor for Brison, an officer trainee at the time.
     Brison told Dici that he did not like being taught how
     to drive by a woman.

     (6) In April 1990, when Brison and Dici were on patrol
     for underage drinkers, Brison told Dici that "the only
     [underage drinker] you would catch would be one with a
     broken leg."

     (7) In July 1990, Dici approached Brison to attempt to
     reconcile their differences. Brison told Dici that
     women did not belong in law enforcement.

     (8) On July 20, 1990, while on patrol, Brison said to
     Dici, "a lot of good you would try to be if they run
     away." Dici responded, "I've got a lot of patience but
     it's wearing thin, maybe your ego needs its ass
     kicked." Brison replied, "who higher up in the
     department do you have in mind to do it for you?" Dici
     said, "no one, I'd try it myself."

     (9) On July 29, 1990, Dici was informed by another
     officer that Brison had made negative racial comments
     about a black trainee under Dici's supervision.

     (10) Dici claimed to have heard about, but not seen, a
     family photograph brought into the office by Brison
     depicting Ku Klux Klan members in full regalia.
     The workmen's compensation referee found against Dici. The
referee, after hearing many witnesses from both parties over
several days, determined that Farmer's testimony was credible,
and that the first and second incident listed above did not
occur. The referee also found the following: (1) that Monaco's
testimony was credible and that the comments attributed to him by
Dici did not occur as related by Dici; (2) that the incident of
the drawing on the bathroom wall had occurred, but that the
drawing had been promptly removed when Dici brought it to
Monaco's attention; (3) that Brison's racial remarks and the
display of the Ku Klux Klan photo of Brison's family were not
directed toward Dici; and (4) that Brison had made the statements
alleged by Dici in the fifth, sixth, and eighth incidents listed
above, but that these statements had occurred sporadically. The
referee also noted that Brison had been reprimanded for these
comments as well as for his negative racial remarks.
     On the basis of these factual findings, the referee
determined that Dici had not been harassed or subjected to an
abnormal working environment, and thus could not recover
workmen's compensation benefits. The Workmen's Compensation
Appeal Board denied Dici's appeal on September 13, 1994, and the
Pennsylvania Commonwealth Court affirmed the Board on August 3,
1995. The Supreme Court of Pennsylvania denied Dici's Petition
for Allowance of Appeal on April 11, 1996.
     Dici filed a federal complaint on November 5, 1993. In
addition to the incidents detailed above, Dici claimed the
following episodes of bias occurred:
     (1) In October 1989, Monaco refused to assign Dici to
     a temporary supervisory position and instead assigned a
     male employee with fewer years of experience to the
     position.

     (2)   In May 1990, Dici's vacation leave was twice
     cancelled by Monaco for invalid reasons.

     (3) On numerous occasions, Dici would work several
     days in a row but then be refused long weekends that
     were regularly granted to other officers.

     (4) On many occasions, Monaco refused to allow Dici to
     attend training classes though he allowed male officers
     to attend.

     (5) Monaco and several other male employees placed
     depictions of scantily clad women on the walls and
     desks of the office.

     (6) On several occasions, male officers referred to
     Dici by various degrading terms and made improper
     remarks regarding her relationship with Captain
     Clanaghan and her friendship with other black officers.

     In her first claim for relief, Dici asserted that the
Appellees' behavior discriminated against Dici based upon sex and
racial affiliation in violation of Title VII. In her second
claim for relief, Dici asserted that this same behavior violated
the PHRA. Following discovery, the Appellees moved for summary
judgment. The district court referred the case to a United
States Magistrate Judge for a Report and Recommendation in
accordance with the Magistrates Act, 28 U.S.C.    636(b)(1)(A)
and (B) (1994), and Rules 72.1.3 and 72.1.4 of the Western
District of Pennsylvania Local Rules for Magistrates. The
magistrate judge recommended that summary judgment be granted to
the Appellees, stating that "both counts of Dici's Complaint are
based upon the exact allegations of her workmen's compensation
claim: viz., that she had experienced harassment which was the
result of discrimination which was based upon her gender and her
association with an Afro-American State Police Captain." The
magistrate judge concluded, "[t]he Commonwealth Court's
determination that Dici was not subject to harassment caused by
gender and racial affiliation discrimination precludes
relitigation of this issue in this court." After hearing
objections and responses from the parties, the district court
adopted the magistrate judge's Report and Recommendation and
granted summary judgment to the Appellees.

                            DISCUSSION
     Dici claims that issue preclusion should not bar this case
because the standard for granting a workmen's compensation claim
on the basis of emotional injury in Pennsylvania is different
from the standard for recovering damages under Title VII. Dici
further claims that genuine issues of material fact prevent entry
of summary judgment in favor of the Appellees.
     Summary judgment is mandated when "there is no genuine issue
as to any material fact and . . . the moving party is entitled to
a judgment as a matter of law." Fed. R. Civ. P. 56(c); Childers
v. Joseph, 

, 693-94 (3d Cir. 1988). In assessing the
evidence, all factual inferences must be drawn in favor of Dici,
the non-moving party. Arab African Int'l. Bank v. Epstein, 

, 534 (3d Cir. 1992). A court must determine "whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law." Anderson v. Liberty Lobby,
Inc., 

, 251-52 (1986); see also Celotex Corp. v.
Catrett, 

, 322 (1986). On appeal, our review of the
district court's grant of summary judgment in favor of the
Appellees on the ground of issue preclusion is plenary. Arab
African Int'l 

.
I. Issue Preclusion: "[O]nce a court has decided an issue of
fact or law necessary to its judgment, that decision may preclude
relitigation of the issue in a suit on a different cause of
action involving a party to the first case." Allen v. McCurry,

, 94 (1980); see also Restatement (Second) of
Judgments   27 (1982). This doctrine is known as issue
preclusion, or, more traditionally, as collateral estoppel. SeeMigra v.
Warren City Sch. Dist. Bd. of Educ., 

, 77 n.1
(1984). Issue preclusion is based upon the policy that "a losing
litigant deserves no rematch after a defeat fairly suffered, in
adversarial proceedings, on an issue identical in substance to
the one he subsequently seeks to raise." Astoria Fed. Sav. &
Loan Ass'n v. Solimino, 

, 107 (1991); see also 18
Charles A. Wright et al., Federal Practice and Procedure    4416
(1981) ("later courts should honor the first actual decision of a
matter that has been actually litigated"). The doctrine of issue
preclusion reduces the costs of multiple lawsuits, facilitates
judicial consistency, conserves judicial resources, and
"encourage[s] reliance on adjudication." 

.
     A federal court examining the preclusive effect of a state
court judgment must look to the Federal Full Faith and Credit
Act, 28 U.S.C.   1738 (1994):
     Such Acts, records and judicial proceedings . . . shall
     have the same full faith and credit in every court
     within the United States . . . as they have by law or
     usage in the courts of such State, Territory or
     Possession from which they are taken.
Under   1738, a federal court in a Title VII action should grant
preclusive effect to a state court decision upholding a state
administrative agency determination when the state court's
decision would be barred by issue preclusion in subsequent
actions in that state's own courts. Kremer v. Chemical Const.
Corp., 

, 476-78 (1982).
     In Kremer, the specific issue before the Court was whether a
state court decision reviewing a state employment discrimination
agency determination should be preclusive in a later Title VII
case. Though Dici urges that we limit Kremer to cases involving
state employment discrimination agencies, nothing in Kremersuggests such a
narrow reading. Indeed, we have extended Kremerto state court review of
agency decisions in areas other than
employment discrimination. See Edmundson v. Borough of Kennett
Square, 

, 189-90 (3d Cir. 1993) (state court review of
an unemployment compensation board decision); Rider v.
Pennsylvania, 

, 994 (3d Cir.) (state court review of
an arbitrator's collective bargaining agreement determination),
cert. denied, 

(1988); Gregory v. Chehi, 

, 121 (3d Cir. 1988) (state court review of Township Council's
wrongful discharge determination). These extensions are
supported by Kremer's statement that "[n]othing in the
legislative history of [Title VII] suggests that Congress
considered it necessary or desirable to provide an absolute right
to relitigate in federal court an issue resolved by a state

. As the Court noted, "[s]tate
authorities are charged with enforcing laws, and state courts are
presumed competent to interpret those laws." 

     Thus, by the terms of    1738 and Kremer, the prior state
workmen's compensation decision, affirmed by the Pennsylvania
Commonwealth Court, may preclude Dici's Title VII action. In
order to determine whether issue preclusion applies, we must look
to Pennsylvania law to discover the extent to which the workmen's
compensation decision would be granted preclusive effect in a
later state court proceeding.
     In Pennsylvania, issue preclusion "'forecloses re-litigation
in a later action[] of an issue of fact or law which was actually
litigated and which was necessary to the original judgment.'"
Hebden v. Workmen's Compensation Appeal Bd. (Bethenergy Mines,
Inc.), 

, 330, 

, 1304 (1993) (quoting City
of Pittsburgh v. Zoning Bd. of Adjustment, 

, 55, 

, 901 (1989)); see also Restatement (Second) of
Judgments,   27 cmt. c (1982) ("An issue on which relitigation is
foreclosed may be one of evidentiary fact, of 'ultimate fact'
(i.e., the application of law to fact), or of law."). Issue
preclusion is appropriately invoked if:
     (1) the issue decided in the prior adjudication was
     identical with the one presented in the later action,
     (2) there was a final judgment on the merits, (3) the
     party against whom the plea is asserted was a party or
     in privity with a party to the prior adjudication, and
     (4) the party against whom it is asserted has had a
     full and fair opportunity to litigate the issue in
     question in a prior action.
Safeguard Mut. Ins. Co. v. Williams, 

, 574, 

, 668 (1975) (citations omitted); Shaffer v. Smith, 

, 874 (Pa. 1996). The party asserting issue preclusion, here
the Appellees, bears the burden of proving its applicability to
the case at hand. See United States v. Nicolet, Inc., 712 F.
Supp. 1193, 1200 (E.D. Pa. 1989) (citing Allen v. Zurich Ins.
Co., 

, 1165-66 (4th Cir. 1982) and Hernandez v. City
of Los Angeles, 

, 937-38 (9th Cir. 1980)).
     There can be no dispute that the second and third criteria
for issue preclusion listed above have been fulfilled. The
judgment of the Commonwealth Court, affirming denial of workmen's
compensation to Dici, became final in August 1995, and the
Pennsylvania Supreme Court denied Dici's Petition for Allowance
of Appeal in April 1996. Also, Dici was clearly a party to the
workmen's compensation proceeding. Thus, the applicability of
issue preclusion in this case depends upon the first and fourth
criteria: whether the issues presented in the workmen's
compensation proceeding are identical to those now before us, and
whether Dici enjoyed a full and fair opportunity to litigate the
issues in the prior proceeding. If either criterion is not met,
we will not apply issue preclusion in this case.
     The district court, adopting the Magistrate's Report and
Recommendation, found that "both counts of Dici's complaint are
based upon the exact allegations of her workmen's compensation
claim . . . . [t]he Commonwealth Court's determination that Dici
was not subject to harassment caused by gender and racial
affiliation discrimination precludes relitigation of this issue
in this court." We disagree with the conclusion of the district
court and find that the legal issues presented in the
Pennsylvania workmen's compensation hearing were not identical to
the issues of Dici's Title VII case.
     Pennsylvania has adopted an objective test for determining
whether a psychic injury may qualify an employee for workmen's
compensation. Philadelphia Newspapers, Inc. v. Workmen's
Compensation Appeal Bd. (Guaracino), 

, 1215 (Pa.
1996). When, as in Dici's case, no physical injury triggers the
psychic injury,
     the claimant must prove either (a) that actual
     extraordinary events occurred at work which caused the
     trauma and that these specific events can be pinpointed
     in time or (b) that abnormal working conditions over a
     longer period of time caused the psychic injury.
North Huntingdon Township v. Workmen's Compensation Appeal Bd.
(Noble), 

, 37, 

, 229, appeal denied,

, 

(1994). It appears from the workmen's
compensation record that Dici proceeded under the second of these
prongs, the "abnormal working conditions" theory. The phrase
"abnormal working conditions" is used by the Pennsylvania courts
     to distinguish psychiatric injuries that are
     compensable because the necessary causal relationship
     between the employment and mental disability has been
     established from those psychiatric injuries that arise
     from the employee's subjective reactions to normal
     working conditions.
Martin v. Ketchum, Inc., 

, 518, 

, 164
(1990).
     In order to meet the objective test for abnormal working
conditions, a worker must show that the employment circumstances
would, by their nature, cause mental injury to one with a
"healthy psyche." Calabris v. Workmen's Compensation Appeal Bd.
(American General Cos.), 

, 413, 

,
769 (1991); see also Marsico v. Workmen's Compensation Appeal Bd.
(Dept. of Revenue), 

, 359, 

, 987-88
(1991) (no compensation for a psychic injury arising from
harassment unless the alleged harassment qualifies as "abnormal
working conditions"). Under the Pennsylvania workmen's
compensation scheme, then, Dici was required to show that the
harassment she suffered was conduct that would cause mental
injury in an average worker with a "healthy psyche."
     By contrast, in order to recover under Title VII, a worker
need not demonstrate that the conduct alleged caused a tangible
psychological injury. Harris v. Forklift Systems, Inc., __ U.S.
__, 

, 370 (1993). In Harris, the Court reversed a
lower court's decision that Harris could not recover Title VII
damages. The lower court had found that the conduct Harris
alleged "was not so severe as to be expected to seriously affect
plaintiff's psychological well-being." 

Reversing,
the Court held that
     [c]ertainly Title VII bars conduct that would seriously
     affect a reasonable person's psychological well-being,
     but the statute is not limited to such conduct. So
     long as the environment would reasonably be perceived,
     and is perceived, as hostile or abusive, there is no
     need for it also to be psychologically injurious.

(citing Meritor Savings Bank v. Vinson, 

, 67 (1986)).
     Thus, the legal issues in Dici's workmen's compensation
proceeding are not identical to those in the Title VII context.
In the Pennsylvania workmen's compensation framework,
"harassment" and "abnormal working conditions" are defined in
terms of objective mental injury; in the Title VII context,
psychological injury is not required. We therefore find that
issue preclusion cannot apply to the legal questions presented in
Dici's case.
     Though the legal issues are distinct, many of the factual
allegations in the workmen's compensation proceeding and this
case are identical. The workmen's compensation referee credited
as true only a few of the incidents alleged by Dici, and found as
a matter of fact that the remainder had not occurred, or had not
occurred as Dici alleged. Mindful that preclusion may apply to
both legal and factual issues, 

, 632 A.2d
at 1304; Restatement (Second) of Judgments   27 cmt. c (1982), we
must consider whether Dici may relitigate in federal court those
factual issues already determined not credible by the workmen's
compensation referee. Reviewing Pennsylvania law, we believe
that a Pennsylvania court would not apply issue preclusion to the
facts of Dici's case.
     In Odgers v. Commonwealth Unemployment Compensation Board of
Review, 

, 

(1987), the Pennsylvania
Supreme Court refused to grant preclusive effect to an earlier
Commonwealth Court ruling. In the first action, the Commonwealth
Court found that the school district employees' work stoppage was
a strike within the meaning of the Pennsylvania Public Employee
Relations Act ("PERA"). When individual employees later applied
for unemployment compensation, the Unemployment Compensation
Board of Review determined that the Commonwealth Court's
characterization of the work stoppage as a strike precluded the
employees from relitigating the nature of the work stoppage under
Pennsylvania's unemployment compensation laws.
     The Pennsylvania Supreme Court reversed the Board's finding,
however, holding that the PERA issue before the Commonwealth
Court was not identical to the issue presented in the
unemployment compensation proceeding. As the court stated, PERA
and the unemployment compensation laws "embody different policies
and involve different rights." 

364. Subsequent to
Odgers, several other Pennsylvania cases have denied preclusive
effect to both the facts and law of an earlier judgment when the
policies and procedures applicable to the first action were
different from those of the later action. See Verbilla v.
Workmen's Compensation Appeal Bd. (Schuylkill Nursing Ass'n), 

(Pa. Commw. Ct. 1995) (unemployment compensation
referee's factual findings that hospital worker was not abused by
patient did not preclude later workmen's compensation proceeding
regarding whether worker was injured in the course of employment
because the policies and procedures of the two legal schemes were
not similar); Johnsonbaugh v. Department of Pub. Welfare, 

(Pa. Commw. Ct. 1995) (unemployment compensation hearing
determination that worker did not engage in willful misconduct
did not preclude later Civil Service Commission decision
regarding whether the employer dismissed the worker for just
cause because the two issues were distinct as were the policies
of the two legal schemes); Bortz v. Workmen's Compensation Appeal
Bd. (Renzor Div. of FL Indus.), 

(Pa. Commw. Ct.)
(unemployment compensation finding regarding willful misconduct
not preclusive in later workmen's compensation hearing regarding
unsatisfactory job performance because the issues and the
procedures in the two proceedings were distinct), appeal granted,

, 

(1995).
     The Appellees contend that Odgers and its progeny apply only
to issue preclusion decisions in cases involving two agency
determinations, rather than to cases involving an earlier agency
determination and a later civil suit. We do not find merit in
this argument. Nothing in Odgers purports to limit its effect to
cases involving preclusion between agencies. Indeed, the
rationale behind Odgers is as applicable to agency/civil suit
preclusion as it is to agency/agency preclusion. We have
recognized this by applying the principles of Odgers to cases
where preclusion was asserted between an earlier state agency
determination and a later federal civil action. See Swineford v.
Snyder County Pennsylvania, 

(3d Cir. 1994)
(unemployment compensation hearing findings not preclusive in a
later   1983 action); Kelley v. TYK Refractories Co., 

(3d Cir. 1988) (factual findings of unemployment
compensation hearing not preclusive in later   1981 suit);
Tukesbrey v. Midwest Transit, Inc., 

(W.D. Pa.
1993) (unemployment compensation hearing determination regarding
wrongful misconduct not preclusive in a later Veteran's
Reemployment Rights Act case regarding just termination).
     As we stated in Swineford, "[u]nder Odgers, reviewing courts
must look beyond the superficial similarities between the two
issues to the policies behind the two actions. Only where the
two actions promote similar policies will the two issues be
identical for purposes of issue preclusion." 

. We believe that Pennsylvania courts would apply this
reasoning to the workmen's compensation proceeding in Dici's
case. The policy of Title VII is to achieve equality of
employment opportunities and remedy discrimination in the
workplace. By contrast, Pennsylvania's workmen's compensation
law is designed to define the liability of employers for injuries
to employees occurring in the course of employment. Moreover,
the procedures utilized in workmen's compensation proceedings
differ from those employed in federal court. For example,
"[n]either the board nor any of its members nor any referee shall
be bound by the common law or statutory rules of evidence in
conducting any hearing or investigation . . . ." 77 Pa. Cons.
Stat. Ann.   834 (1991). Given this court's admonition that
"[r]easonable doubt as to what was decided by a prior judgment
should be resolved against using it as an estoppel," 

(quoting Kauffman v. Moss, 

, 1274 (3d
Cir.), cert. denied, 

(1970)), we find that issue
preclusion should not apply to the facts of Dici's case.
     In holding that the law and facts of Dici's case are not
precluded, we do not mean to imply that a Pennsylvania workmen's
compensation determination should never be given preclusive
effect in a later suit. Indeed, in many cases preclusion has
been found appropriate. For example, in Capobianchi v. Bic
Corp., 

(Pa. Super. Ct.), appeal denied, 

(1995), the court determined that a workmen's compensation
hearing determination regarding the cause of the worker's injury
should be given preclusive effect in a later products liability
action. The court found that the issues presented in both
proceedings, viz., whether the worker's neck injury was caused by
a degenerative condition or by an exploding Bic lighter, were
identical. 

See also Phillips v. A.P. Green
Refractories Co., 

(Pa. Super. Ct. 1993) (workmen's
compensation decision that worker did not suffer silicosis
preclusive in later products liability suit), aff'd, 

,

(1994); Grant v. GAF Corp., 

(Pa.
Super. Ct. 1992) (workmen's compensation finding that worker's
cancer was not caused by asbestos in the workplace preclusive in
later products liability case), aff'd, 

, 

(1994). As the Grant court found, "proximate cause in a personal
injury tort action and causal connection in workmen's
compensation cases are analogous principles." 

These cases demonstrate that when the issues presented are the
same, Pennsylvania courts will not hesitate to grant preclusive
effect to workmen's compensation proceedings.
     As is evident from a review of Dici's case, however, the
issues presented in this Title VII case are different from those
of the workmen's compensation proceeding. The differences are
highlighted when one examines the distinct policies underlying
each legal regime. Therefore, it would be inappropriate to apply
issue preclusion to this case. We reverse the district court's
grant of summary judgment to the Appellees on this basis.
II. Other Grounds for Summary Judgment: The Appellees moved for
summary judgment both on the ground of issue preclusion and on
the merits. Brison moved for summary judgment for the additional
reason that an individual co-employee cannot be held liable under
Title VII. On appeal, Dici claims that if issue preclusion does
not bar her case, genuine issues of material fact exist
precluding summary judgment. The district court, having found
that issue preclusion applied, did not address the other grounds
for summary judgment offered by the Appellees. Though our review
of a summary judgment motion is plenary, we think that the
district court is in the better position to consider whether
summary judgment is proper on the merits of this case given that
issue preclusion was the focus of the briefs and arguments before
us. Therefore, we believe the best course is to remand the case
to the district court.
     We can, however, on the record and briefs before us, decide
whether Steven Brison and Frank Monaco are proper defendants to
Dici's Title VII and PHRA claims. When the issue of individual
liability was before this court in Sheridan v. E. I. DuPont de
Nemours, 1996 W.L. 36283 (3d Cir. 1996), vacated, 

(3d Cir. 1996), the court held that an individual employee cannot
be liable under Title VII. The majority opinion written by Judge
Alito noted the great weight of authority from other courts of
appeals holding an employee cannot be sued under Title VII. See,
e.g., Tomka v. Seiler Corp., 

, 1313 (2d Cir. 1995);
Cross v. Alabama, 

, 1504 (11th Cir. 1995); Grant v.
Lone Star Co., 

, 653 (5th Cir. 1994); Sauers v. Salt
Lake Co., 

, 1125 (10th Cir. 1993); Miller v. Maxwell
Int'l Inc., 

, 587 (9th Cir. 1993). Chief Judge
Sloviter, who dissented in Sheridan on other grounds, commented
that, although she found the reasoning of those judges who
dissented from the opinions in the other circuits convincing, in
light of the authority otherwise she saw no reason to dissent
from the Sheridan majority on the issue of individual liability
under Title VII.
     The Sheridan opinion was withdrawn when the court voted to
take the case en banc, and the appeal was argued before the en
banc court on May 14, 1996. However, the principal focus of the
en banc briefs and arguments was on Title VII issues other than
individual liability. In light of this, we conclude, for the
reasons previously given by the court in Sheridan and the other
courts of appeals, that individual employees cannot be held
liable under Title VII. Therefore, Dici cannot sustain her Title
VII claims against Brison and Monaco. To this extent, then, we
affirm the district court's grant of summary judgment, though on
different grounds.
     Dici argues that even if an individual employee cannot be
liable under Title VII, the employee is still a proper defendant
under the PHRA. Generally, the PHRA is applied in accordance
with Title VII. Davis v. Sheraton Society Hill Hotel, 907 F.
Supp. 896, 899 n.1 (E.D. Pa. 1995). Like Title VII, the
definition of an employer under the PHRA cannot be construed to
include "employees;" indeed, "employee" is defined as a wholly
separate term under the Act. See 43 Pa. Cons. Stat. Ann.
  954(b) & (c). The employment discrimination provision of the
PHRA declares only that "any employer" may be held liable. See43 Pa.
Cons. Stat. Ann.   955(a).
     A different section of the PHRA, however, contemplates
liability that extends beyond that of Title VII. Section 955(e)
forbids "any person, employer, employment agency, labor
organization or employee, to aid, abet, incite, compel or coerce
the doing of any act declared by this section to be an unlawful
discriminatory practice . . . ." 43 Pa. Cons. Stat. Ann.
  955(e). Both Brison and Monaco certainly qualify as
"person[s]" and "employee[s]" under   955(e). The question,
then, is whether either of them may be a proper defendant under
the section for aiding and abetting the unlawful discriminatory
practices of Dici's employer.
     We find that summary judgment in favor of Brison on Dici's
PHRA claim is appropriate because Brison is not a proper
defendant under   955(e). Dici's PHRA claim against the
Appellees rests upon, as her complaint states, their failure "to
take prompt remedial measures after having notification that
discriminatory actions had occurred." Dici has alleged no facts
that would indicate that Brison aided or abetted Dici's employer
in refusing to take prompt remedial action against any
discrimination suffered by Dici. Rather, her complaint alleges
only direct incidents of Brison's harassment. Such incidents are
not covered by the terms of   955(e). As one court has said in
construing a nearly identical provision of the New Jersey Law
Against Discrimination:

     One might argue, of course, that both [the employee and
     the employer] share the "intent" to create a
     discriminatory atmosphere. We believe, however, that
     the employer's reaction is sufficiently divorced from
     the employee's conduct that there is no community of
     purpose between them. A non-supervisory employee who
     engages in discriminatory conduct cannot be said to
     "intend" that his employer fail to respond.
Tyson v. Cigna Corp., 

, 841 (D.N.J. 1996).
     We cannot, however, grant summary judgment to Monaco on
Dici's PHRA claim. As Dici's supervisor, Monaco is a proper
defendant under   955(e) and might be liable for aiding and
abetting discriminatory practices, as Dici has pleaded facts
which, if true, could impose liability for violations of the
PHRA. For example, in paragraph 14 of the complaint, Dici
states, "[a]lthough Sergeant Monaco knew or should have known
that the Plaintiff was being subject to . . . harassment . . .,
he repeatedly refused to take prompt action to end the harassment
directed at Plaintiff . . . ." Such conduct, if proven, would
constitute aiding and abetting.
     However, because Monaco cannot be held liable under Title
VII, there exists no independent jurisdictional basis to maintain
a PHRA claim against Monaco in federal court. We, therefore,
leave it to the district court to decide whether to exercise
supplemental jurisdiction under 28 U.S.C.   1367 (1994) over
Dici's PHRA claim against Monaco.

                            CONCLUSION
     For the foregoing reasons, we affirm in part, reverse in
part, and remand to the district court the grant of summary
judgment in favor of the Appellees.