Equal Employment Opportunity Commission v. L.B. Foster Co. , 123 F.3d 746 ( 1997 )


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  •                                                                                                                            Opinions of the United
    1997 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    8-25-1997
    EEOC v. LB Foster Co
    Precedential or Non-Precedential:
    Docket
    96-3469
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    Recommended Citation
    "EEOC v. LB Foster Co" (1997). 1997 Decisions. Paper 206.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1997/206
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    Filed August 25, 1997
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 96-3469
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
    JO ANN WILSON, Intervenor
    v.
    L.B. FOSTER COMPANY
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
    Appellant
    On Appeal from the United States District Court
    for the Western District of Pennsylvania
    (D.C. Civ. No. 90-0758)
    Argued: April 30, 1997
    Before: MANSMANN, MCKEE, Circuit Judges, and
    VANARTSDALEN,* District Judge.
    (Filed August 25, 1997)
    _________________________________________________________________
    *The Honorable Donald W. VanArtsdalen, United States District Court
    Judge for the Eastern District of Pennsylvania, sitting by designation.
    Robert J. Gregory, Esq. (Argued)
    Equal Employment Opportunity
    Commission
    1801 L Street, N.W., Rm. 7032
    Washington, DC 20507
    C. Gregory Stewart, Esq.
    General Counsel
    Equal Employment Opportunity
    Commission
    1801 L Street, N.W., Rm. 7032
    Washington, DC 20507
    Gwendolyn Young Reams, Esq.
    Associate General Counsel
    Equal Employment Opportunity
    Commission
    1801 L Street, N.W., Rm. 7032
    Washington, DC 20507
    Lorraine C. Davis, Esq.
    Attorney General Counsel
    Equal Employment Opportunity
    Commission
    1801 L Street, N.W., Rm. 7032
    Washington, DC 20507
    Attorneys for Appellant
    Elizabeth A. Malloy, Esq. (Argued)
    Klett Lieber Rooney & Schorling
    One Logan Square, 28th Floor
    Philadelphia, PA 19103-6901
    Jill M. Lashay, Esq.
    Klett Lieber Rooney & Schorling
    One Logan Square, 28th Floor
    Philadelphia, PA 19103-6901
    Attorneys for Appellees
    2
    OPINION OF THE COURT
    McKEE, Circuit Judge.
    In this appeal, we are asked to review the district court's
    order awarding attorney's fees pursuant to section 706(k) of
    Title VII to L.B. Foster Co. as the prevailing defendant in
    the Title VII action brought by the Equal Employment
    Opportunity Commission ("EEOC") against that company.
    For the reasons explained below, we will reverse.
    I.
    L.B. Foster manufactures and sells rail construction and
    tubular products. In 1980, Jo Ann Wilson was hired in the
    company's Houston office. She was later promoted to credit
    manager. In 1986, following the reorganization of the
    company's credit department, Wilson relocated to Foster's
    headquarters in Pittsburgh, Pennsylvania.
    A year after her transfer to Pittsburgh, Wilson began
    expressing a desire to return to Houston. However, Wilson
    changed her mind after David Minor, the corporate credit
    manager, was promoted to Assistant Treasurer in December
    1987. Minor's promotion created a vacancy in his former
    position that Wilson was interested in filling. The corporate
    credit manager is responsible for the implementation of the
    company's credit policies and therefore had to possess the
    "ability to understand and . . . interpret financial and credit
    information, . . . correspond with customers and
    salespeople under difficult circumstances . . .[and had to
    have a] complete knowledge of uniform commercial codes,
    financing arrangements, commercial contracts, bankruptcy,
    international trade, bond and lien laws, and various credit
    instruments, [the] ability to manage as well as motivate
    subordinates and the ability to interact with management."
    App. at 565.
    In January 1988, Wilson approached Minor and
    expressed an interest in his old position. She was
    disappointed to learn that Minor was also considering
    Steven Hahn for the promotion. Hahn had also transferred
    3
    to the company's headquarters after the reorganization of
    its credit department, and, like Wilson, he was a regional
    credit manager in the Pittsburgh office. Minor supervised
    both Hahn and Wilson and, although he regularly
    interacted with both of them, he was more familiar with
    Hahn's work. Minor considered Hahn's management style
    very professional, his credit presentations well constructed,
    his financial analysis very strong, and his interactions with
    customers and sales representatives courteous and
    professional.
    Minor interviewed Wilson and Hahn for the position.
    During her interview, Wilson criticized Hahn and
    challenged Minor to identify her shortcomings. Minor had
    criticized Wilson's credit presentations on several prior
    occasions because information and documents had been
    missing. Minor was also critical of Wilson's long lunches
    and telephone mannerisms. Overall, however, Minor
    regarded Wilson as a valued employee. Wilson did not
    acknowledge any of these deficiencies in her interview.
    Instead, she only discussed problems she perceived in
    Hahn. Minor was generally disappointed by Wilson's
    interview and regarded her criticism of Hahn as
    unprofessional.
    After considering the qualifications of both candidates,
    Minor recommended that Hahn receive the promotion
    because Minor thought that Hahn's analytical,
    management, and interpersonal skills were superior to
    Wilson's. Minor also thought that Hahn had demonstrated
    greater dedication to the company. After Human Resources
    approved Minor's recommendation, Hahn was informed,
    and, two days later, Wilson resigned from her position and
    told Minor that she intended to file a sex discrimination
    suit against him and the company. However, Wilson
    apparently had second thoughts about doing so, and, the
    very next day, she told Minor that, while her resignation
    was still effective, she had changed her mind about suing.
    A few months after Wilson left the company, a
    representative of Johnston Pump and Valve Co., one of L.B.
    Foster's largest customers, called Minor and requested a
    job reference for Wilson. Minor had provided such
    references in the past, but he refused to provide the
    4
    requested reference for Wilson and instead referred the call
    to the personnel department. Personnel did not give Wilson
    a reference but merely furnished her dates of employment.
    Wilson did not receive a job offer from Johnston Pump.
    The EEOC brought a Title VII action against the L.B.
    Foster Co. in 1990 alleging that Wilson had not been
    promoted because of sexual discrimination. The complaint
    also alleged that the company had refused to provide the
    job reference for Wilson in retaliation for her threat to sue
    after she resigned. Wilson later intervened in the action and
    asserted similar claims. L.B. Foster Co. moved for summary
    judgment but that motion was denied, and the case
    proceeded to a bench trial in the district court.
    The EEOC presented evidence suggesting that L.B.
    Foster's proffered explanation for giving Hahn the
    promotion--that he was better qualified--was pretextual.
    That presentation included evidence that Hahn had been
    criticized for deficiencies prior to his promotion to Minor's
    former position and that L.B. Foster had reassigned certain
    territories to Wilson because of those deficiencies. After the
    close of the EEOC's evidence, the company moved for
    judgment as a matter of law, but the court deferred ruling
    on that motion. The court, however, ultimately found in
    favor of L.B. Foster on both the failure-to-promote and
    retaliation claims and entered judgment for the company.
    Thereafter, the company moved for attorney's fees as the
    prevailing party under section 706(k) of Title VII. The court
    awarded the requested fees based upon its conclusion that
    the EEOC's action was meritless, frivolous, unreasonable
    and without foundation. Both parties agreed that, if Foster
    were entitled to any counsel fees, the reasonable amount of
    those fees would be $142,628.50. Accordingly, the court
    entered judgment in that amount in favor of L.B. Foster.
    This appeal challenging only the court's determination that
    L.B. Foster was entitled to any attorney's fees followed.
    The district court had jurisdiction pursuant to 28 U.S.C.
    SS 1331, 1345. We have jurisdiction pursuant to 28 U.S.C.
    S 1291.
    II.
    This Court reviews a district court's award of attorney's
    fees for abuse of discretion. See Washington v. Philadelphia
    5
    County Court of Common Pleas, 
    89 F.3d 1031
     (3d Cir.
    1996); Brown v. Borough of Chambersburg, 
    903 F.2d 274
    (3d Cir. 1990). "We must defer to the district court's fee
    determination unless it has erred legally, or the facts on
    which the determination rests are clearly erroneous."
    Quiroga v. Hasbro, Inc., 
    934 F.2d 497
    , 502 (3d Cir.
    1991)(citations omitted). The EEOC contends that the
    district court erred in finding that its suit was"frivolous,
    unreasonable, or without foundation" and awarding
    attorney's fees on that basis.
    III.
    42 U.S.C. S 2000e-5(k) provides:
    In any action or proceeding under this subchapter the
    court, in its discretion, may allow the prevailing party,
    other than the Commission or the United States, a
    reasonable attorney's fee (including expert fees) as part
    of the costs, and the Commission and the United
    States shall be liable for costs the same as a private
    person.
    42 U.S.C. S 2000e-5(k). The "prevailing party" can be either
    the plaintiff or the defendant. However, in Christiansburg
    Garment Co. v. EEOC, 
    434 U.S. 412
     (1978), the Supreme
    Court clarified that the standard for awarding attorney's
    fees to prevailing defendants is not the same as the
    standard for prevailing plaintiffs.
    In Christiansburg, the Court recognized that while a
    liberal fees standard should be used for those parties
    whose suits Congress wished to encourage, and who
    needed this encouragement to bring the suits, a
    stricter standard was appropriate for defendants, who
    needed no encouragement to defend suits against them
    and who were not vindicating an important public
    policy.
    Dorn's Transp., Inc. v. Teamsters Pension Trust Fund, 
    799 F.2d 45
    , 49 (3d Cir. 1986).
    Prevailing plaintiffs "should ordinarily recover an
    attorney's fee unless special circumstances would render
    such an award unjust." Id. at 416-17 (internal quotations
    6
    omitted). The rationale for this rule is twofold. First, "the
    plaintiff is the chosen instrument of Congress to vindicate
    ``a policy that Congress considered of the highest priority.' "
    Id. at 418. Second, "when a district court awards counsel
    fees to a prevailing plaintiff, it is awarding them against a
    violator of federal law." Id.
    These considerations are wholly absent when the
    prevailing party is a defendant, and, therefore, a higher
    standard applies. In Christiansburg Garment, the Court
    defined that standard as follows:
    [A] district court may in its discretion award attorney's
    fees to a prevailing defendant in a Title VII case upon
    a finding that the plaintiff's action was frivolous,
    unreasonable, or without foundation, even though not
    brought in subjective bad faith.1
    Id. at 421. "[F]rivolous, unreasonable, or without
    foundation," in this context, implies "groundless . . . rather
    than simply that the plaintiff has ultimately lost his case."
    Id. "[I]t is important that a district court resist the
    understandable temptation to engage in post hoc reasoning
    by concluding that, because a plaintiff did not ultimately
    prevail, his action must have been unreasonable or without
    foundation." Id. at 421-22. Such post hoc reasoning "would
    substantially add to the risks inhering in most litigation
    and would undercut the efforts of Congress to promote the
    vigorous enforcement of the provisions of Title VII." Id. at
    422. Thus, we have previously stated "It is clear from
    Christiansburg that attorney's fees [to a prevailing Title VII
    defendant] are not routine, but are to be only sparingly
    awarded." Quiroga, 
    934 F.2d at 503
    .
    Several courts of appeals have reversed fee awards to
    prevailing defendants in lawsuits brought by the EEOC
    where these guiding principles have been misapplied. See,
    e.g., EEOC v. Bruno's Restaurant, 
    13 F.3d 285
     (9th Cir.
    1993); EEOC v. Reichhold Chems., Inc., 
    988 F.2d 1564
    (11th Cir. 1993); EEOC v. Kenneth Balk & Assocs., Inc., 
    813 F.2d 197
     (8th Cir. 1987); EEOC v. St. Louis-San Francisco
    Ry. Co., 
    743 F.2d 739
     (10th Cir. 1984). But see EEOC v.
    _________________________________________________________________
    1. The standard is the same when the Commission is the losing plaintiff.
    7
    Pierce Packing Co., 
    669 F.2d 605
     (9th Cir. 1982)(affirming
    award of attorney's fees to employer because the EEOC
    "fail[ed] to comply with both its enabling act and its
    regulations"). In contrast, "[c]ases where findings of
    ``frivolity' have been sustained typically have been decided in
    the defendant's favor on a motion for summary judgment or
    a . . . motion for involuntary dismissal. In these cases, the
    plaintiffs did not introduce any evidence to support their
    claims. [On the other hand, i]n cases where the plaintiffs
    introduced evidence sufficient to support their claims,
    findings of frivolity typically do not stand." Sullivan v.
    School Bd., 
    773 F.2d 1182
    , 1189 (11th Cir. 1985)(citations
    omitted).
    In determining if an award of counsel fees to a Title VII
    defendant is appropriate, courts should consider several
    factors including "(1) whether the plaintiff established a
    prima facie case; (2) whether the defendant offered to settle;
    and (3) whether the trial court dismissed the case prior to
    trial or held a full-blown trial on the merits." Id.2 These
    factors are, however, guideposts, not hard and fast rules.
    "Determinations regarding frivolity are to be made on a
    case-by-case basis." Sullivan, 
    773 F.2d at 1189
    .
    Even though an inquiry into an award of attorney's fees
    to a Title VII defendant is individualized, specific examples
    of awards that have been reversed assist in illustrating the
    policy behind the rule enunciated in Christiansburg. EEOC
    v. Kenneth Balk & Assocs., 
    813 F.2d 197
     (8th Cir. 1987) is
    one example. There, the EEOC filed a Title VII action on
    behalf of a former employee alleging that the employer,
    Kenneth Balk Associates ("KBA"), had discharged her on
    the basis of race. The case was tried for three days before
    being continued to permit the parties to conduct additional
    discovery. The court then heard more evidence and granted
    the parties time to file post-trial briefs and proposed
    _________________________________________________________________
    2. But see Greenberg v. Hilton Int'l Co., 
    870 F.2d 926
    , 940 (2d Cir.
    1989)("Cases that are ultimately viewed as frivolous may well survive
    motions to dismiss under a system of notice pleading that does not
    require factual detail and even motions for summary judgment in which
    the evidence may be presented in sketchy fashion and credibility may
    not be taken into account.").
    8
    findings of fact and conclusions of law. Ultimately,
    judgment was entered in favor of KBA; the court awarded
    counsel fees; and the EEOC appealed.
    The Court of Appeals for the Eighth Circuit ruled that the
    district court had misapplied the Christiansburg standard.
    The procedural history of the case suggested that the
    EEOC's claim was not baseless as KBA neither sought a
    pretrial dismissal nor moved for summary judgment or a
    directed verdict. In addition, the district court had
    permitted the parties to file post-trial briefs and proposed
    factual and legal conclusions. Furthermore, the district
    court's findings of fact and conclusions of law disclosed
    that the court's ruling was based upon its credibility
    determinations. See id. at 198. Thus, the record suggested
    that the EEOC had some basis for its claim, and the court
    of appeals reversed the award of counsel fees. See id. In
    doing so, the court stated "[h]owever unpersuasive the
    EEOC's evidence ultimately proved to be, this evidence
    provided ``some basis' for the EEOC's claim. Accordingly, the
    district court misapplied the Christiansburg standard . . . ."
    Id.; see also Bruno's Restaurant, 
    13 F.3d at 290
     (concluding
    that the "district court failed to exercise its discretion
    within the permissible bounds of 42 U.S.C. S 2000e-5(k)
    and within the requirements of Christianburg in awarding
    fees on the ground that the EEOC presented no credible
    evidence of discriminatory conduct").
    IV.
    Here, the EEOC alleged sex discrimination and illegal
    retaliation against Wilson. We consider in turn the findings
    the district court made with respect to each allegation to
    determine whether those claims were "frivolous,
    unreasonable, or without foundation."
    A. Sex Discrimination Claim
    The EEOC presented a classic pretext-based case of sex
    discrimination. Wilson was obviously a member of a
    protected class; she applied for a promotion for which she
    was qualified; and the promotion went to a male. The
    district court correctly concluded that these allegations
    9
    made out a prima facie case on behalf of Wilson. See
    McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 802
    (1973). The EEOC then presented evidence that L.B.
    Foster's proffered non-discriminatory explanation for its
    decision to promote Hahn, the male applicant, over Wilson
    was a fabrication. This included evidence "that Wilson had
    greater management experience, that Wilson was assigned
    a broader range of job duties, that Hahn had problems in
    performing his job, and that Wilson, on occasion, had to
    assist Hahn with his accounts." Appellant Br. at 17.
    Clearly, a reasonable fact finder could conclude from this
    evidence that L.B. Foster discriminated against Wilson on
    the basis of sex. See Bray v. Marriott Hotels, 
    110 F.3d 986
    ,
    990 (3d Cir. 1997)("The inference [of pretext], along with the
    components of the plaintiff 's prima facie case, allow a jury
    to conclude that the employer was actually motivated by
    illegal bias . . . ."); Sheridan v. E.I. DuPont de Nemours &
    Co., 
    100 F.3d 1061
    , 1066-67 (3d Cir. 1996)(same), cert.
    denied, 
    117 S. Ct. 2532
     (1997).
    It can hardly be said that the EEOC's claim was frivolous
    merely because the court (sitting as the fact finder) rejected
    the EEOC's evidence.3 See app. at 584 ("Wilson has not
    established her burden of proving pretext under Hicks that
    the company's articulated reasons for not promoting her
    are false and that sex discrimination was the real reason.").
    On the contrary, the EEOC's proof, if credited, would have
    been sufficient to support a verdict in favor of the EEOC.
    Accordingly, we cannot agree that the claim was frivolous
    or without foundation. See Bruno's Restaurant, 13 F.3d at
    _________________________________________________________________
    3. The district court's conclusion that "the evidence clearly and
    convincingly established that there was no sexual discrimination
    involved in Foster's [decision]" suggests that it was persuaded by
    Foster's
    evidence that Minor had promoted and retained a number of female
    employees. However, such evidence is not necessarily relevant to whether
    the company discriminated against Wilson. See Furnco Constr. Corp. v.
    Waters, 
    438 U.S. 567
    , 579 (1978)(a racially balanced work force "cannot
    immunize an employer from liability for specific acts of discrimination");
    Bell v. Bolger, 
    708 F.2d 1312
    , 1318 (8th Cir. 1983)("Merely because
    other members of a protected class . . . were recommended [for position
    denied the plaintiff] does not demonstrate an absence of
    discrimination.").
    10
    290 ("The district court failed to exercise its discretion . . .
    within the requirements of Christianburg in awarding fees
    on the ground that the EEOC presented no credible
    evidence of discriminatory conduct." (emphasis added)).
    Here, it appears that the district court "failed to heed the
    Supreme Court's warning in Christiansburg against the
    ``temptation to engage in post hoc reasoning by concluding
    that, because a plaintiff did not ultimately prevail, his
    action must have been unreasonable or without
    foundation.' " Id. at 290 (quoting Christiansburg, 
    434 U.S. at 421-22
    ). "Assessing fees against the EEOC simply
    because it did not prevail undercuts the Congressional
    effort ``to promote the vigorous enforcement of the
    provisions of Title VII.' " Bruno's Restaurant, 
    13 F.3d at 290
    (quoting Christiansburg, 
    434 U.S. at 422
    ). Accordingly, the
    district court abused its discretion in awarding L.B. Foster
    its fees for defending against the substantive claim under
    Title VII.
    B. Retaliation Claim
    The EEOC's retaliation claim alleged that Minor refused
    to provide a reference for Wilson after she had informed
    him that she intended to file a discrimination claim. Wilson
    apparently "assumed that [she] would get a reference just
    like all of the other people who had been at Foster." App. at
    110. However, when Johnston Pump sought a reference for
    Wilson, Minor refused to provide one. See app. at 295. It is
    not disputed that L.B. Foster had routinely provided such
    references for others in the past.
    In his deposition, Minor testified that the reason he did
    not provide a reference for Wilson over the telephone was
    that Linda Terpenning, who worked in the personnel
    department, had instructed him to refer all such calls to
    her. See app. at 100, 152. At trial, however, Minor testified
    that his refusal had more to do with not wanting to hurt
    Wilson by giving her a negative reference: "I felt that I
    would only hurt Jo Ann by giving [Johnston Pump] a
    truthful reference. . . . I discussed it with human resources
    [ ] what would happen if someone called me because I didn't
    want to hurt Jo Ann. It was decided the best thing for me
    11
    to do would be to refer [requests] to the human resources
    area." App. at 295. Minor's testimony was directly
    contradicted by Terpenning: "Q: Did you ever direct Mr.
    Minor that reference calls should be directed to your
    attention, reference calls for Wilson? A: For Wilson, no."
    App. at 355 (Direct Examination of Terpenning). We have
    previously stated that a district court can consider an
    employer's inconsistent explanations for the adverse action
    it took in determining whether that employer discriminated
    against the plaintiff. See Waddell v. Small Tube Prods., Inc.,
    
    799 F.2d 69
    , 73 (3d Cir. 1986). Inconsistencies are no less
    relevant in adjudicating a claim of illegal retaliation under
    Title VII.
    Minor also testified that, when Johnston Pump called, he
    did not believe that Wilson was still contemplatingfiling a
    discrimination charge: "Jo Ann told me when she came in
    the office the following Monday that she had decided that
    she would no longer pursue [a sex discrimination charge]
    and that was not a course of action she was taking. So,
    when the call came from Johnston Pump, there was no
    pending suit against L.B. Foster Company." App. at 293-94.
    The district court apparently credited that testimony. See
    app. at 589. However, Minor had taken notes in which he
    recorded "she was considering filing a [discrimination]
    charge." App. at 377.
    On this record, the district court concluded that Wilson
    had not established a prima facie case of retaliation
    because she had not presented evidence of an adverse
    employment action and, presumably on that basis, the
    district court concluded that the EEOC's retaliation claim
    was frivolous. We disagree.
    The district court improperly focused on the action of the
    prospective employer and not L.B. Foster in determining
    whether the EEOC had presented evidence of an adverse
    employment action. The district court concluded that
    "[t]here is no evidence that Foster's response to the
    telephone call from Johnston Pump negatively influenced
    Wilson's application for employment with Johnston Pump."
    App. at 588. However, that is not the proper test. 4 All that
    _________________________________________________________________
    4. L.B. Foster argues that, "[i]n a case in which a plaintiff alleges
    denial
    of a reference is retaliatory, the plaintiff must demonstrate that the
    12
    is required to establish a prima facie case of retaliatory
    discrimination is proof (1) that the plaintiff engaged in
    protected activity, (2) that the employer took an adverse
    action against her, and (3) that a causal link exists between
    the protected activity and the employer's adverse action.
    Kachmar v. Sungard Data Sys., Inc., 
    109 F.3d 173
     (3d Cir.
    1997). An employer who retaliates can not escape liability
    merely because the retaliation falls short of its intended
    result.
    Here, the EEOC clearly established a prima facie case of
    retaliatory discrimination. Wilson was engaged in protected
    activity when she informed Minor that she intended to file
    a sex discrimination charge. See Barber v. CSX Distribution
    Servs., 
    68 F.3d 694
    , 702 (3d Cir. 1995)(describing indicia of
    protected activity); Sumner v. United States Postal Serv.,
    
    899 F.2d 203
    , 209 (2d Cir. 1990)(same). Wilson's
    subsequent statement to Minor that she had changed her
    mind about filing a charge does not negate her earlier
    _________________________________________________________________
    employer's denial of the reference caused an adverse employment
    action," specifically that the prospective employer would have hired the
    employee but for the absence of the reference. Appellee Br. at 34 (citing
    Sherman v. Burke Contracting, Inc., 
    891 F.2d 1527
    , 1538 (11th Cir.
    1990)). That contention is only true in circumstances--not present here
    --where the plaintiff brings a damages claim against her former
    employer. See 
    id.
     at 2538 n.2 ("[I]n order to make out a damages claim
    against the former employer whose blacklisting has prevented the ex-
    employee from working elsewhere, the ex-employee would have to show
    that a particular employer would have hired him but for the retaliatory
    comments concerning his involvement in activity protected by Title VII."
    (emphasis added)). The issue of whether Johnston Pump would have
    hired Wilson is not at all relevant to whether L.B. Foster is liable for
    retaliatory discrimination. See Hashimoto v. Dalton, __ F.3d __, 
    1997 WL 366013
    , at *3 (9th Cir. 1997)("There is little question that the
    dissemination of adverse employment references can constitute a
    violation of Title VII if motivated by discriminatory intent. Thus, it is
    beside the point that Lowery's dissemination of the negative job reference
    was not the reason Hashimoto did not get the job with the Army."
    (internal quotations and citation omitted)); Smith v. Secretary of Navy,
    
    659 F.2d 1113
    , 1120 (D.C. Cir. 1981)("An illegal act of discrimination
    whether based on race or some other factor such as a motive of reprisal
    is a wrong in itself under Title VII, regardless of whether that wrong
    would warrant an award of [damages].").
    13
    protected activity and does not preclude the EEOC from
    having established a prima facie case as to Minor's attempt
    to retaliate for the threat. Wilson's purported change of
    heart may have been relevant to the district court's
    ultimate determination that the EEOC's evidence was not
    sufficient to prevail on that claim, but it does not establish
    that the claim itself was frivolous or unfounded.
    The EEOC presented evidence that Minor had personally
    given telephone references to prospective employers when
    they called about former employees, and these references
    went beyond merely providing dates of employment. App. at
    293. In fact, such telephone references seemed a matter of
    course until Johnston Pump sought one for Wilson.5
    In addition Wilson's protected activity and Minor's refusal
    to provide a reference are sufficiently close together to allow
    a reasonable fact finder to find the required element of
    causation. See Kachmar, 
    109 F.3d at 177
     ("Cases in which
    the required causal link has been at issue have often
    focused on the temporal proximity between the employee's
    protected activity and the adverse employment action,
    because this is an obvious method by which a plaintiff can
    proffer circumstantial evidence ``sufficient to raise the
    inference that her protected activity was the likely reason
    for the adverse action.' ").
    Nevertheless, the district court concluded that"[b]ecause
    Foster provided a telephone reference which confirmed
    Wilson's dates of employment, and it is undisputed that
    Minor would have given Wilson a poor recommendation due
    to the circumstances under which she left, plaintiffs have
    not established that Foster took adverse action against
    Wilson." App. at 588. However, given the inconsistencies in
    Minor's testimony, the company's conduct on behalf of
    other employees, and the temporal proximity of Wilson's
    threat and Minor's refusal to provide a reference, the
    EEOC's allegation of illegal retaliation is clearly not
    _________________________________________________________________
    5. The district court found that Minor provided such references for only
    two types of employees, those who had previously informed Minor that
    they had given his name as a reference and those employees who had
    been laid off in 1986. App. at 577. Minor's own testimony, however, does
    not suggest these limits. See app. at 293.
    14
    frivolous. See Clark v. Township of Falls, 
    890 F.2d 611
    ,
    618-19 (3d Cir. 1989)("[A] wide panoply of adverse
    employment actions may be the basis of employment
    discrimination suits under Title VII of the Civil Rights Act
    . . . .").
    We offer no opinion on whether this evidence was
    sufficient to carry the day but merely point out that it was
    enough to establish a prima facie case of retaliatory
    discrimination. Accordingly, we conclude that there was
    some factual basis for the EEOC's retaliation claim, and the
    district court therefore abused its discretion in awarding
    L.B. Foster its fees on that claim. See EEOC v. Reichhold
    Chems., Inc., 
    988 F.2d 1564
    , 1572 (11th Cir.
    1993)(concluding that, where plaintiff met her initial
    burden of establishing a prima facie case of retaliatory
    discrimination, "[that claim was] not frivolous and the
    district court abused its discretion in awarding fees against
    the EEOC").
    C. Request for Back Pay
    The district court's only explicit finding of frivolity related
    to the EEOC's request for back pay. See Addendum at 4.
    The EEOC contended that "Wilson was entitled to full back
    pay for the post-resignation period because she would not
    have left her job if not for the discriminatory denial of
    promotion."6 Appellant Br. at 26. The district court
    regarded this contention as frivolous since Wilson was not
    constructively discharged. See Addendum at 4 ("The
    EEOC's arguments that Wilson was entitled to back pay
    even though she was [not] constructively discharged were
    frivolous.").
    The constructive discharge rule to which the court was
    referring provides that "employees are entitled to awards
    _________________________________________________________________
    6. Originally, the EEOC sought back pay "based solely on the difference
    between the amount that Wilson would have received had she been
    promoted and the amount that she made as regional credit manager."
    Appellant Br. at 26. It later amended its request to conform to Wilson's
    requested relief for the full amount she would have received as regional
    credit manager had she not resigned. See Appellant Br. at 26.
    15
    such as back pay past the date of resignation and
    reinstatement only if they were actually or constructively
    discharged from their employment." Ezold v. Wolf, Block,
    Schorr & Soliscohen, 
    758 F. Supp. 303
    , 307 (E.D. Pa. 1991),
    rev'd, 
    983 F.2d 509
     (3d Cir. 1992). The rationale behind
    this rule is that " ``society and the policies underlying Title
    VII will be best served if, wherever possible, unlawful
    discrimination is attacked within the context of existing
    employment relationships.' " 
    Id.
     Courts of appeals "have
    been nearly unanimous in their application of the
    constructive discharge rule, whereby victorious Title VII
    plaintiffs who have left their employment with the
    defendant but who were not constructively discharged by
    the defendant are only entitled to a remedy covering the
    period during which the discrimination occurred up to the
    date of resignation." Id. at 306. However, one court of
    appeals has held that a back pay award is proper, whether
    or not the employer was constructively discharged, when
    the employee "end[s] his employment for reasons beyond
    his control, reasons which were causally linked to the
    [employer's] wrongful denial of a promotion." Wells v. North
    Carolina Bd. of Alcoholic Control, 
    714 F.2d 340
    , 342 (4th
    Cir. 1983)(upholding back pay award to employee who
    terminated his stock-clerk position after he was wrongfully
    denied a promotion to sales clerk and his employer refused
    his request for lighter duties to accommodate a work-
    related back injury); see also Helbling v. Unclaimed Salvage
    & Freight Co., Inc., 
    489 F. Supp. 956
    , 963 (E.D. Pa.
    1980)(rejecting notion that the back pay award to an
    employee discriminatorily denied a promotion on the basis
    of her gender should terminate on the date of her
    resignation)("The back pay award, therefore, must be based
    on the period running from the date she should have been
    promoted to manager to the date the store closed-- the
    period it can be assumed she would have held the job to
    which she was entitled.").
    This Court has not yet taken   a position under the
    circumstances here where the   claim of constructive
    discharge is absent. We have   merely recognized that
    "[c]lassifying a termination   as a constructive discharge
    rather than a voluntary quit   has significant ramifications
    with respect to the scope of   relief." Goss v. Exxon Office
    16
    Sys. Co., 
    747 F.2d 885
    , 887 (3d Cir. 1984). Since we have
    not yet ruled on this precise issue and since one of our
    sister courts of appeals has ruled that back pay would be
    recoverable under the facts alleged by the EEOC, the
    district court's determination that the EEOC's request for
    back pay was frivolous cannot stand.
    V.
    For the reasons set forth above, we will reverse the
    district court's order dated June 20, 1996 granting L.B.
    Foster its attorney's fees.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    17
    

Document Info

Docket Number: 96-3469

Citation Numbers: 123 F.3d 746, 1997 U.S. App. LEXIS 22503, 78 Fair Empl. Prac. Cas. (BNA) 485

Judges: Mansmann, McKEE, Vanartsdalen

Filed Date: 8/25/1997

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (26)

claire-h-sullivan-v-school-board-of-pinellas-county-and-gus-sakkis , 773 F.2d 1182 ( 1985 )

28-fair-emplpraccas-393-28-empl-prac-dec-p-32522-equal-employment , 669 F.2d 605 ( 1982 )

Helbling v. Unclaimed Salvage & Freight Co., Inc. , 489 F. Supp. 956 ( 1980 )

73-fair-emplpraccas-bna-1163-70-empl-prac-dec-p-44755-beryl-bray , 110 F.3d 986 ( 1997 )

david-clark-v-township-of-falls-and-james-kettler-individually-and-as , 890 F.2d 611 ( 1989 )

Lillian Kachmar v. Sungard Data Systems, Inc. Lawrence A. ... , 109 F.3d 173 ( 1997 )

Alice Lisa Greenberg, Cross-Appellant, Phyllis Gelman, ... , 870 F.2d 926 ( 1989 )

William F. BELL, Appellant, v. William F. BOLGER, ... , 708 F.2d 1312 ( 1983 )

51-fair-emplpraccas-bna-1640-52-empl-prac-dec-p-39576-29-fed-r , 891 F.2d 1527 ( 1990 )

Equal Employment Opportunity Commission v. Kenneth Balk & ... , 813 F.2d 197 ( 1987 )

Martin O. Washington v. Philadelphia County Court of Common ... , 89 F.3d 1031 ( 1996 )

41-fair-emplpraccas-988-42-empl-prac-dec-p-36745-peyton-r-waddell , 799 F.2d 69 ( 1986 )

Ezold v. Wolf, Block, Schorr and Solis-Cohen , 758 F. Supp. 303 ( 1991 )

McDonnell Douglas Corp. v. Green , 93 S. Ct. 1817 ( 1973 )

Dorn's Transportation, Inc., and Oneida Motor Freight, Inc. ... , 799 F.2d 45 ( 1986 )

Equal Employment Opportunity Commission, Carolyn Smith, ... , 988 F.2d 1564 ( 1993 )

Earl Smith, Jr. v. Secretary of the Navy , 659 F.2d 1113 ( 1981 )

Clement SUMNER, Appellant, v. UNITED STATES POSTAL SERVICE, ... , 899 F.2d 203 ( 1990 )

equal-employment-opportunity-commission-and-cross-appellee-v-st , 743 F.2d 739 ( 1984 )

Alvaro Quiroga v. Hasbro, Inc. And Playskool Baby, Inc , 934 F.2d 497 ( 1991 )

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