Spain v. Gallegos ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
6-16-1994
Spain v. Gallegos
Precedential or Non-Precedential:
Docket 93-3467
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 93-3467
ELLEN V. SPAIN,
Appellant
v.
TONY E. GALLEGOS, CHAIRMAN,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION;
UNITED STATES OF AMERICA
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 92-1403)
Argued May 2, 1994
BEFORE: GREENBERG and GARTH, Circuit Judges,
and ROBRENO, District Judge*
(Filed: June 16, 1994)
Stanford A. Segal (argued)
Gatz, Cohen, Segal & Koerner
400 Law & Finance Building
Pittsburgh, PA 15219
Attorneys for Appellant
James R. Neely, Jr.
Deputy General Counsel
Gwendolyn Young Reams
Associate General Counsel
Lorraine C. Davis
Assistant General Counsel
1
*Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
2
John F. Suhre (argued)
Attorney
Equal Employment Opportunity
Commission
1801 L Street, N.W.
Washington, D.C. 20507
Attorneys for Appellee
OPINION OF THE COURT
GREENBERG, Circuit Judge.
A female employee of the Equal Employment Opportunity
Commission brings this appeal from orders of the district court
dismissing her action against the EEOC alleging sexual and racial
discrimination, sexual harassment and unlawful retaliation, all
in violation of Title VII of the Civil Rights Act of 1964.
Immediately before the trial, the district court excluded certain
evidence from the appellant's sexual discrimination and
harassment claims and barred her from proceeding with those
claims on the evidence she had intended to offer. Four days
later, after an intervening weekend, the appellant elected not to
proceed with the balance of her case, as she reasoned that the
district court's ruling precluded her from establishing her
remaining claims. In accordance with warnings the district court
had given the appellant, the court then dismissed her case with
prejudice for failure to prosecute, and it assessed her with jury
costs.
The appellant appeals from the district court's
exclusion of the evidence she intended to offer to prove sexual
3
discrimination and harassment, from the court's judgment against
her on those claims on the basis of her proposed evidence, from
the court's dismissal of the balance of her case predicated on
her decision not to go forward, and from the court's imposition
of jury costs against her. We conclude that in the unusual
circumstances presented in her allegations, the appellant has
alleged a prima facie case of sexual discrimination and
harassment and that material issues of fact remain on these
claims for consideration by a jury. We also conclude that the
court abused its discretion in excluding her evidence.
Consequently, we hold that the district court erred in barring
her from proceeding with her sexual discrimination and harassment
claims.
We also hold that the court did not abuse its
discretion in dismissing the balance of her case after she
decided not to go forward with her remaining claims, as it warned
her that it would dismiss these claims if she did not proceed.
However, in light of the significant impact of the court's
initial rulings on the appellant's case and the short interval
between these rulings and the start of trial on the remaining
issues, we hold that the court abused its discretion in assessing
the jury costs against her. Thus, we will reverse the order of
the district court dismissing the appellant's sexual
discrimination and harassment claims and assessing the jury costs
against her, but we will affirm the order of the district court
dismissing the balance of the case.
4
I. BACKGROUND
The appellant, Ellen V. Spain, is an investigator in
the Pittsburgh Area Office of the EEOC.0 Although she was hired
in 1974 by that office, the EEOC promoted her to the position of
director of the Dayton Area Office in 1979, and she held that
position until approximately 1980 or 1981. She then worked
briefly for the Department of Housing and Urban Development
before returning to the EEOC's Pittsburgh office as an
investigator. App. at 75. Spain currently holds a position with
a GS 1810-12, Step 10 Grade.0
In addition to suing the EEOC, Spain originally named
Eugene Nelson and Johnny Butler as defendants, but they have been
dismissed from the action. Nelson and Butler are the director of
the EEOC's Pittsburgh Area Office and the director of the EEOC's
0
The EEOC points out that much of Spain's brief "is devoted to
discussion of matter which was not before the district court."
Appellee's br. at 3 n.1. Thus, Spain has included depositions in
the appendix not presented to the district court. We recognize
that ordinarily this procedure could present a problem, as Spain
would be expanding the record on appeal. But in the
circumstances of this case, we will consider the affidavits and
depositions in the appendix because the district court entered
judgment for the EEOC on the sexual discrimination and harassment
claims in a proceeding equivalent to a hearing on a motion for
summary judgment. However, the court did so without advance
notice to Spain of the proposed hearing. Thus, Spain had no
opportunity to respond to a formal motion by filing answering
papers attaching germane portions of affidavits and depositions.
Accordingly, fairness requires that we treat the disposition of
the sexual discrimination and harassment claims as the functional
equivalent of the granting of a motion for summary judgment for
the EEOC, and furthermore that we consider all the materials
which Spain could have produced in opposition to that motion if
given the opportunity.
0
Id. at 2. In the course of this opinion, we refer both to GS
and GM level positions in accordance with the parties' briefs.
5
Philadelphia District Office, respectively. Therefore, Butler is
Nelson's superior, and Nelson is Spain's superior. Spain does
not challenge the dismissal of the action as to Nelson and
Butler.
Spain, a white female, alleges that Nelson and Butler,
male African-Americans, have a history of passing over her for
promotions to GM-13 and GM-14 level positions in favor of
allegedly lesser qualified male African-American applicants. Id.
at 2-3. It is undisputed that in 1985, while Spain held a GS-11
position, she unsuccessfully applied for an open GS-12 position,
a rejection that led her to file an internal EEOC complaint
alleging sexual and racial discrimination. Id. at 75-76. Spain
asserts that the events which underlie the present action began
shortly after she filed that complaint.
Spain alleges that Nelson, her superior, induced her
not to proceed with the EEOC complaint by promising that she
would receive the next available promotion, so long as she agreed
to lend him money periodically.0 Spain asserts that because
Nelson intimidated her she agreed to his requests, and she did
obtain the next promotion in early 1986. Id. Spain charges that
Nelson began demanding loans at that time and that he repeated
these demands every four to eight weeks over the next few years.
Id. at 76, 241; appellant's br. at 5. Significantly, EEOC
regulations preclude a superior EEOC official from soliciting and
0
Ohio App. at 3-4, 76-77, 238-39; appellant's br. at 5.
6
accepting loans from a subordinate employee. See 29 C.F.R.
§1600.735-203.
The crux of Spain's sexual discrimination and
harassment claims is that over the years rumors developed in the
Pittsburgh office that Spain and Nelson were having an affair,
because his frequent demands for loans led other employees often
to see them together privately in his office, the cafeteria, or
leaving the office.0 Spain charges that because it was improper
for Nelson to solicit the loans, he needed to meet her privately
to ask for loans, to receive the funds, and to pay them back. Id.
at 77. Spain claims that she learned of the rumors during casual
conversations in the office. She alleges that she complained
about the rumors to Nelson approximately four times per year
between 1986 and 1988 and once in 1989 and requested him to put
them to an end. Id. at 230. However, she alleges that the
private meetings and loan requests continued, thereby
perpetuating the rumors. According to Spain, the rumors and
Nelson's continuation of his conduct in the face of the rumors
embarrassed Spain, app. at 231, and caused her co-workers to
ostracize her, thereby straining her relationship with them and
with her supervisors and making her feel miserable and unable to
"deal with the situation." Id. at 77. Spain claims that in late
0
Ohio App. at 228-31. Spain's co-worker, Ronald Dean, testified in
his deposition that he had heard rumors for some time that Spain
and Nelson had a relationship, and he stated that when people
would see them together the rumors would escalate. Id. at 167-
70. He also stated that he was told by a co-worker, "Be careful,
you don't want to rub Ellen Spain the wrong way, because if you
do, then you're going to have problems with the Director" because
there was a relationship between the two of them. Id. at 168.
7
1989 or early 1990 she told Nelson that she would no longer lend
him any money. Id. at 78. Spain alleges that this refusal led
Nelson to escalate his harassment, ultimately resulting in her
being denied a promotion as a result of the rumors.
In 1990, Spain unsuccessfully sought a promotion to GM-
13 Supervisory Investigator. Spain contends that in part Nelson
based his decision not to promote her on evaluations by her
supervisors in the office. Appellant's br. at 7. As evidence of
the impact of the false rumors upon her work environment, Spain
points to an affidavit of one of these evaluating supervisors,
Bruce Bagin, stating that he graded Spain low on the "integrity"
category of the evaluation due to his perception of her conduct
with Nelson based on the rumors and his observations. Bagin also
stated that Spain had complained to him about the false rumors
but that he refused to discuss them because his perception of her
conduct seriously had affected his view of her. App. at 80. The
EEOC contests Spain's assertion regarding the basis for its
decision not to promote her and responds that Nelson considered
much evidence assessing her qualifications, including the
negative opinion of her supervisor in the Dayton Area Office.
Appellee's br. at 4-5.
However, Spain offers as evidence a memorandum from
Nelson to his superior, Butler, which discusses the
qualifications of the candidate selected for the promotion, as
well as the reasons why other candidates were not selected. App.
at 374-76. In the memorandum, Nelson states that although Spain
had "outstanding skills in administrative matters" and was
8
"proficient in the technical aspects" of the position, she ranked
dead last among the candidates due to her consistent "inability
to relate effectively with the supervisor, co-workers and
others." App. at 376. The memorandum further explains that
while all of the candidates had "sufficient technical skills to
perform the supervisory job only Ms. Spain is rated so low in
interpersonal relations to cause her to be ranked so low." Id.
(emphasis added). In contrast to Spain's evidence, the EEOC does
not precisely indicate what role the written evaluations of
Spain's Pittsburgh supervisors played in Nelson's decision not to
promote her.
In June 1990, Spain filed a second complaint with the
EEOC, and it is this complaint which directly led to this action
and thus to this appeal. Spain asserts that the retaliatory
conduct began in earnest after she filed this complaint. App. at
253. Moreover, she alleges that Nelson began coming to her house
when she was working at home, and he continued to pressure her to
make loans to him and to drop the new complaint. Id. at 274-80.
On May 6, 1992, the EEOC issued a proposed disposition finding
that there had not been discrimination against Spain. Id. at 12-
14.
On June 8, 1992, Spain filed her complaint in the
district court against the EEOC, Nelson, and Butler. Count I of
the complaint alleges sexual and racial discrimination, sexual
harassment and unlawful retaliation, all in violation of Title
VII of the Civil Rights Act of 1964, and Counts II and III allege
the state law claim of intentional infliction of emotional
9
distress by Nelson and Butler. Id. at 1-10. In her complaint,
Spain claims that she has been subject to retaliation for having
filed prior grievances and that Nelson had stopped speaking to
her and removed certain supervisory functions from her. Id. at
3. Moreover, Spain charges that she has been subject to sexual
discrimination and harassment stemming from "false rumors being
circulated that she was involved in an intimate relationship with
defendant Nelson." Id. Spain also alleges that even though
Nelson knew the rumors were false, he perpetuated them by
continuing his improper loan solicitation and by not taking steps
to prevent the rumors. Instead, according to Spain, he and
Butler, who also knew about the false rumors, used them to deny
her advancement. Id. at 3-4.
In essence, Spain's claims of sexual discrimination and
harassment are traceable to Nelson's alleged conduct, which both
caused and perpetuated the rumors that, in turn, resulted in the
treatment she received from both her co-workers and supervisors.
Spain also claims that there was retaliation against her for
refusing to continue to lend Nelson money, a practice which she
asserts had been instituted because of her sex and race. Id. at
4. In addition to alleging that she was bypassed improperly for
a promotion, Spain claims that Nelson had begun downgrading her
evaluations, and that Butler had rescinded an award due her. Id.
After depositions were taken, Spain's complaint against
Butler was dismissed on November 10, 1992, with her consent. The
United States then filed a Certificate of Substitution of itself
for Nelson as a defendant under 28 U.S.C. § 2679, and the
10
district court permitted the substitution on March 3, 1993.
Thereafter, on April 6, 1993, Spain filed a motion in limine
seeking to exclude evidence that her supervisors in the Dayton
office evaluated her negatively and evidence that she had not
been forthcoming about her education on her employment
application. On April 9, 1993, the EEOC filed a motion in limine
pursuant to Fed. R. Evid. 401-03 to prevent Spain and her
attorney from referring to or offering as evidence any testimony
regarding the alleged loans by Spain to Nelson. On April 12,
1993, Spain agreed to dismiss the United States as a defendant.
Thus, as Nelson and Butler were no longer parties, the case went
forward solely against the EEOC.
On Thursday, July 15, 1993, the day set for jury
selection, the district court ruled sua sponte that it would not
permit Spain to proceed with her claims of discrimination based
on a sexually hostile working environment. In reaching this
conclusion the court held that Spain could not base her claims on
Nelson's failure to stop the false rumors in the workplace that
he and Spain were having an affair. The court reached this
decision despite Spain's allegations that the rumors caused her
to be shunned by her co-workers and to be evaluated poorly for
promotion purposes by her supervisors with respect to her
integrity and ability to work with others. App. at 29-40. When
the court asked Spain's attorney what type of evidence she
intended to present to establish the sexual harassment claim, he
replied that he would point to "the failure of the superior[s] to
11
put an end [to] the rumors when they knew about them." Id. at
30. The district court then responded:
I don't think that's recognizable under Title
VII. I don't know that an individual who has
had no relationship with someone has to
embarrass himself by going forward and
denying such a relationship just because some
other person wants him to do that . . . . And
I am not going to let you proceed on that, if
that is the basis of that claim.
Id. at 31. Spain's attorney then remarked that "[i]t is clearly
the basis of the claim" and that he could not "present the case
without the testimony of the rumors." Id.
Spain then attempted to argue orally that the case
should be viewed as similar to Jew v. University of Iowa, 749 F.
Supp. 946 (S.D. Iowa 1990). App. at 34-39. The court in Jew
found that there was a sexually hostile work environment where
there were rumors that a female professor and her male superior
were having an affair, and other faculty members in the position
of evaluating her for promotion purposes spread the rumors and
conducted a campaign of open slander and innuendo of a sexual
nature against her.
However, the district court, agreeing with the EEOC's
attorney, distinguished Jew on several grounds. The court first
stated that in Jew, unlike in this case, the supervisor was
spreading the rumors.0 The court then asked Spain's attorney how
0
Actually nothing in Jew indicates that the supervisor was
spreading the rumors. On the other hand, Spain argues that
Nelson created the conditions in which the rumors developed and
then did nothing to stop them after being informed of them, and
even continued the conduct which resulted in the rumors being
perpetuated.
12
the rumors could have been corrected without Nelson telling
people that he was not having an affair with Spain. Id. at 34-
35. The attorney responded that Title VII requires a supervisor
on notice of sexual harassment to take corrective action promptly
and that Nelson or Butler could have told the concerned employees
that the rumors were false. Id. In response, the EEOC's
attorney argued that the obligation to correct a hostile work
environment presupposes that the employer has notice of the
environment, and that there was no evidence that Spain complained
to Butler about the rumors or evidence that Butler was otherwise
on notice of the situation.0
The court then asked Spain what evidence she had that
the comments made to her created a hostile environment. Id. at
36. Spain responded that she was treated as an outcast by other
employees, and she proffered testimony that a co-worker had
warned another employee to stay away from Spain because she was
the "boss' lover." Id.; see note 4, supra. The attorney for the
EEOC responded that the testimony was that Spain had "got the
boss' ear and [would] get you into trouble, which is not the same
thing." Id. However, Spain disputed the EEOC's recollection of
the co-worker's testimony.
The district court then distinguished Jew on the ground
that the rumors in that case were that the professor was having
an affair with her supervisor and was using the sexual
relationship to gain favor, influence and power with her
0
Ohio App. at 35-36. Butler has admitted being asked about the rumors
by the employees. App. at 340.
13
superior. The court asked Spain whether she had similar
evidence. Id. at 36-37. Spain's attorney replied that the EEOC
also denied Spain the promotion because she had poor
interpersonal relationships with her co-employees. Id. at 37.
The EEOC then argued, and the court agreed, that in Jew there was
additional evidence of open harassment on the basis of sex in the
form of cartoons and in other ways. Spain responded that her
supervisors evaluated her negatively with respect to integrity
because of the rumors about the affair. Id. at 38.
At first, the district court stated that it would allow
evidence supporting these allegations inasmuch as a failure to
promote due to the rumors had "a sexual connection." Id. at 39.
However, on reconsideration, the court concluded that the poor
ratings related to sexual activity and not gender. Consequently,
the court ruled that the evidence could not be admitted unless
there was evidence that males who did the same thing were treated
differently. Id. at 44.
The court thus held that Title VII does not require
that a supervisor deny rumors that he is having an affair with a
subordinate. Therefore, the district court barred Spain from
proceeding on her sexual discrimination and harassment claims
based on the evidence she intended to offer. This ruling
effectively granted summary judgment to the EEOC on these claims,
and accordingly we review the case as if the court formally
granted summary judgment.0
0
See note 1, supra.
14
The district court also ruled on the motions in limine.
It denied Spain's motion but granted the EEOC's motion to exclude
any evidence regarding whether Nelson solicited and accepted
loans from Spain. Id. at 40-43. In opposition to the motion,
Spain argued that the private meetings at which Nelson obtained
the loans were the source of the false rumors that they were
having a relationship and that Nelson could have stopped the
rumors by ceasing to meet with Spain to borrow money. Id. at 42-
43. However, the court found no evidentiary value in the fact
that "other people interpreted meetings . . . in the wrong way."
Id.
As the district court prepared to adjourn, Spain's
attorney asked whether taking a voluntary non-suit based on the
court's ruling would eliminate her appeals. The court responded
in the affirmative with respect to the issues on which Spain
still was able to proceed. Id. at 45. The court stated that
reversal of its ruling regarding the rumor-based sexual
discrimination and harassment claims would permit Spain to try
those claims, but reversal would not revive her remaining claims.
Id. at 45-46. Moreover, the court and Spain's attorney discussed
the fact that the evidentiary rulings regarding the sexual
discrimination and harassment claims had no bearing on the
remaining claims of racial discrimination and retaliation.0
Four days later, on Monday, July 19, 1993, as the
0
Id. at 46-47. While district courts are entitled to their
opinions as to what is and is not appealable, and what are the
likely consequences of an appellate decision, these views do not
bind a court of appeals.
15
parties were about to start the trial on the remaining claims,
Spain's attorney again suggested that Spain might not continue
with the litigation. The court then warned him that if Spain did
not proceed on her remaining claims, it would dismiss her case
with prejudice for failure to prosecute. App. at 51. Noting the
court's intentions, Spain then declared her decision not to
proceed with the remaining allegations regarding failure to
promote on the basis of race, failure to promote in retaliation
for filing prior EEOC charges, and retaliation for filing this
suit. App. at 52. The district court then followed through with
its warnings and dismissed Spain's case. Furthermore, the court
found that Spain could have advised the court of her decision not
to proceed during the previous three days. Accordingly, it taxed
the $375 costs of the jury against Spain. App. at 52-54.
Spain then appealed. The district court had
jurisdiction under 28 U.S.C. §§ 1331, 1343, and we have
jurisdiction under 28 U.S.C. § 1291.0
0
In our review of the record, we noted that there is some
question as to whether we have jurisdiction. The problem derives
from the fact that the district court's orders in effect granting
summary judgment to the EEOC on Spain's sexual harassment and
discrimination claims, excluding evidence from her case,
dismissing her case for failure to prosecute, and assessing the
jury costs against her were issued orally from the bench and not
reduced to writing. This omission raises the question whether
the district court has entered a final order for the purposes of
28 U.S.C. § 1291, inasmuch as it did not enter an order in a
separate document pursuant to Fed. R. Civ. P. 58. See Bankers
Trust Co. v. Mallis, 435 U.S. 381, 387-88, 98 S. Ct. 1117, 1121
(1978); Temple Univ. v. White, 941 F.2d 201, 216 (3d Cir. 1991),
cert. denied, 112 S. Ct. 873 (1992).
Yet, as in Bankers Trust, the district court clearly
intended that its dismissal of the case would be its final
decision, as the court designated the transcript as the order of
16
II. DISCUSSION
A. Sex-Based Title VII Claims
We first address the district court's grant of summary
judgment against Spain on her Title VII claims, including the
rejection of her promotion application, arising from a sexually
hostile working environment. Inasmuch as the court in effect
granted summary judgment against her, our standard of review is
plenary. Thus,
[we] review the district court's summary
judgment determination de novo, applying the
same standard as the district court . . . .
[I]n all cases summary judgment should be
granted if, after drawing all reasonable
inferences from the underlying facts in the
light most favorable to the non-moving party,
the court concludes that there is no genuine
issue of material fact to be resolved at
trial and the moving party is entitled to
judgment as a matter of law. Where the
movant has produced evidence in support of
its motion for summary judgment, the
nonmovant cannot rest on the allegations of
pleadings and must do more than create some
metaphysical doubt.
Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998
F.2d 1224, 1230 (3d Cir.), cert. denied, 114 S. Ct. 554 (1993).
the court, and the judgment of dismissal was recorded on the
clerk's docket. App. at XII, 55. The transcript of the
proceeding in which the court entered summary judgment on Spain's
claim also was entered on the docket, although we believe that a
typographical error was made regarding the date of the
proceeding, as it records that the session took place on Sunday
rather than on Thursday. App. at XI. In light of Bankers Trust,
we thus conclude that we have jurisdiction over the appeal
pursuant to 28 U.S.C. § 1291, as no objection was made to the
taking of the appeal, and the parties, therefore, are deemed to
have waived the separate-judgment requirement of Rule 58. 435
U.S. at 387-88, 98 S.Ct. at 1121.
17
Spain argues that the district court erred in preventing her from
proceeding with her claims because she proffered evidence to
support a case of sexual discrimination and harassment under
Title VII. Comparing her situation to that of the plaintiff in
Jew, and arguing that the district court erred in distinguishing
that case, Spain argues that she belongs to a protected group,
she was harassed and discriminated against because of her sex,
the harassment affected a term or condition of employment, and
the EEOC knew about the harassment but failed to take appropriate
corrective action. Appellant's br. at 18-19.
Title VII of the Civil Rights Act of 1964 makes it "an
unlawful employment practice for an employer . . . to
discriminate against any individual with respect to his
compensation, terms, conditions or privileges of employment
because of such individual's race, color, religion, sex or
national origin." 42 U.S.C. § 2000e-2(a)(1). Recently, the
Supreme Court in Harris v. Forklift Sys., Inc., 114 S. Ct. 367
(1993), discussed the foundation of a sexually hostile work
environment claim:
As we made clear in Meritor Savings Bank v.
Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91
L. Ed. 2d 49 (1986), this language 'is not
limited to "economic" or "tangible"
discrimination. The phrase "terms,
conditions, or privileges of employment"
evinces a congressional intent "to strike at
the entire spectrum of disparate treatment of
men and women" in employment,' which includes
requiring people to work in a
discriminatorily hostile or abusive
environment. Id., at 64, 106 S.Ct., at 2404,
quoting Los Angeles Dept. of Water and Power
v. Manhart, 435 U.S. 702, 707, n. 13, 98
18
S. Ct. 1370, 1374, 55 L. Ed. 2d 657 (1978) (some
internal quotation marks omitted). When the
workplace is permeated with 'discriminatory
intimidation, ridicule, and insult,' 477
U.S., at 65, 106 S.Ct., at 2405, that is
'sufficiently severe or pervasive to alter
the conditions of the victim's employment and
create an abusive working environment,' id.,
at 67, 106 S.Ct., at 2405 (internal brackets
and quotation marks omitted), Title VII is
violated.
Harris, 114 S. Ct. at 370. Furthermore, the Court stated that to
determine whether an environment is "hostile" or "abusive" a
court must look at "all the circumstances." Id. at 371.
In Andrews v. Philadelphia, 895 F.2d 1469 (3d Cir.
1990), we discussed the requirements for establishing a claim
predicated on a sexually hostile work environment:
[F]ive constituents must converge to bring a
successful claim for a sexually hostile work
environment under Title VII: (1) the
employees suffered intentional discrimination
because of their sex, (2) the discrimination
was pervasive and regular, (3) the
discrimination detrimentally affected the
plaintiff, (4) the discrimination would
detrimentally affect a reasonable person of
the same sex in that position; and (5) the
existence of respondeat superior liability.
895 F.2d at 1482 (footnote and citations omitted). As we noted,
"these factors include both a subjective standard (No. 3) and an
objective standard (No. 4)."0 Since our decision in Andrews, the
Supreme Court in Harris has affirmed that a hostile work
0
Id. at 1483. We further explained: "The subjective factor is
crucial because it demonstrates that the alleged conduct injured
this particular plaintiff giving her a claim for judicial relief.
The objective factor, however, is the more critical for it is
here that the finder of fact must actually determine whether the
work environment is sexually hostile." Id.
19
environment claim must involve both subjective and objective harm
to the employee.0
In this case, Spain asserts that the harassment she
suffered led to her work environment being sexually hostile and
to the denial of a promotion. Quite clearly, she presents an
atypical sexually hostile work environment claim in that the
alleged wrongful conduct does not include the type of blatantly
sexist behavior that is frequently the hallmark of such claims.
For example, this case differs from Meritor Sav. Bank v. Vinson,
477 U.S. 57, 60, 106 S. Ct. 2399, 2402 (1986), in which an
employee testified that her employer "fondled her in front of
other employees, followed her into the women's restroom when she
went there alone, exposed himself to her, and even forcibly raped
her on several occasions." See also King v. Hillen, No. 92-3601,
1994 U.S. App. LEXIS 7124, at *3 (2d Cir. Apr. 13, 1994). But an
employee can demonstrate that there is a sexually hostile work
environment without proving blatant sexual misconduct. Indeed,
in commenting on the Andrews elements, we noted that the intent
0
In Harris, 114 S. Ct. at 370, the Court explained:
Conduct that is not severe or
pervasive enough to create an
objectively hostile or abusive work
environment -- an environment that
a reasonable person would find
hostile or abusive -- is beyond
Title VII's purview. Likewise, if
the victim does not subjectively
perceive the environment to be
abusive, the conduct has not
actually altered the conditions of
the victim's employment, and there
is no Title VII violation.
20
to discriminate on the basis of sex could be demonstrated through
actions which "are not sexual by their very nature," although we
stated that a more fact intensive analysis would be necessary in
such a case. Andrews, 895 F.2d at 1482 n.3.
Consequently, we recount Spain's allegations and
evidence thereof and then consider them in light of the elements
of a sexually hostile work environment claim under Andrews.0 As
we discuss above, Spain charges that she was the subject of false
rumors that she was having a sexual relationship with Nelson and
had gained influence over him as a result of their relationship.
These rumors developed among her co-workers because they often
saw her and Nelson in private meetings. However, these meetings
allegedly resulted from Nelson's improper solicitation of loans,
a practice which lasted for several years after Nelson initiated
it.
Spain charges that as a result her work environment was
affected in essentially five ways. First, she was subjected to
the spreading of false rumors about her sexual affairs that
impugned the integrity of her job performance. The very
existence of the rumors caused Spain embarrassment. Second, due
to the rumored sexual relationship, Spain's co-workers allegedly
treated her like an outcast, leading to poor interpersonal
relationships between herself and them, and causing Spain to feel
miserable. Third, the rumors and the resulting poor
0
We note that while we evaluate Spain's allegations under the
Andrews standards, the district court seems to have based its
ruling primarily on its interpretation of Jew.
21
interpersonal relationships at work led supervisory personnel to
evaluate Spain negatively for advancement purposes. Spain
proffered testimony from a co-worker and a supervisor regarding
the rumors and these effects on her and on her environment.
Fourth, Spain alleges that Nelson knowingly exacerbated the
situation. After creating the conditions in which the rumors
developed, Nelson perpetuated the rumors by continuing to demand
loans from Spain and to meet with her privately for this purpose,
even after Spain informed him of the rumors and asked him to stop
them. Finally, Spain contends that Nelson denied her a promotion
in 1990 based on the rumors and the resulting effects they had
upon her interpersonal relationships at work and her evaluations
by her supervisors. She offered evidence as well to support this
contention.
The first element of a hostile work environment claim
under Andrews is that the employee have suffered intentional
discrimination because of her sex. 895 F.2d at 1482. Spain's
charge that she suffered such discrimination can withstand a
motion for summary judgment as to this element. We have just
recounted Spain's contentions and the evidence she offered to
prove them concerning the rumors and their multiple effects upon
her environment and advancement. We find that the first Andrews
element is satisfied because the crux of the rumors and their
impact upon Spain is that Spain, a female, subordinate employee,
had a sexual relationship with her male superior. Unfortunately,
traditional negative stereotypes regarding the relationship
between the advancement of women in the workplace and their
22
sexual behavior stubbornly persist in our society. Because we
are cognizant that these stereotypes may cause superiors and co-
workers to treat women in the workplace differently from men, we
find that a reasonable jury could conclude that Spain suffered
the effects she alleges because she was a woman. Consequently,
Spain has made "out a case under Title VII" by showing "that
gender [was] a substantial factor in the discrimination, and that
if [Spain] had been a man she would not have been treated in the
same manner." Andrews, 895 F.2d at 1485 (internal quotation
marks omitted).
We note that there is no suggestion in the record that
males who worked with Nelson were harassed similarly. However,
the district court erred in requiring Spain to produce evidence
that males in a similar position were treated differently. A
jury reasonably could conclude that if Spain had been a male,
rumors would not have started that she had gained influence with
Nelson through physically using her sex, particularly the ability
to create problems for a fellow employee who "rubbed her the
wrong way."0 Our discussion above leads us to believe that even
if a male had a relationship bringing him into repeated close
contact with Nelson, it would have been less likely for co-
workers to have believed that the relationship had a sexual
basis. Thus, the resulting poor interpersonal relationships,
negative evaluations, and denial of advancement might not have
occurred for a male as they allegedly did for Spain, inasmuch as
0
Spain's co-worker, Ronald Dean, testified that he had been
warned not to rub Spain the wrong way. See app. at 168.
23
the situation which caused them simply would not have been
created. Furthermore, while it is true that the rumors also
implicated Nelson, the rumors did not suggest that his
involvement in the alleged relationship had brought him
additional power in the workplace over his fellow employees, and
the employees had no reason for resenting him in the way they did
Spain. Accordingly, he did not have to endure a hostile working
environment brought about due to his sex.
In addition, Spain's allegations that Nelson's improper
conduct first created the conditions under which the rumors
developed and then perpetuated them distinguishes Spain's claims
from claims in other scenarios which might not support a sexually
hostile work environment cause of action. See King v. Hillen,
1994 U.S. App. LEXIS 7124 at *35. Thus, this is not a case in
which the rumors concerned the behavior of a co-worker outside of
the workplace, or in which rumors developed as the result of
other employees' misperception of a supervisor's and an
employee's frequent but necessary, job-related interaction.
Rather, here there are factual questions for trial of whether the
rumors developed and persisted as a result of Nelson's improper
behavior. As in Jew, the situation here was "not merely one of
idle gossip about an alleged office romance." 749 F. Supp. at
959. Consequently, Spain properly has alleged, and supported
with materials developed in discovery, that the rumors directed
at her and her resulting ostracization and adverse evaluation for
advancement purposes were both sex-based and intentional.
24
In reaching our conclusion on this point we have paid
particular attention to the distinction we drew in Andrews
between sexual misconduct in which the intent to discriminate "is
implicit, and thus should be recognized as a matter of course"
and "actions [which] are not sexual by their very nature." 895
F.2d at 1482 n.3. Thus, an employer by its conduct might create
conditions which all its employees, without regard for sex,
reasonably consider as harassing and yet the employer would not
discriminate on the basis of sex. Accordingly, where an employee
claims sex discrimination predicated on sexually neutral conduct
it may be necessary for the employee to establish that the
employer's motives for its actions were sexual. If the
discrimination of which Spain complained was predicated merely on
the demands for loans, her case might be of that nature.
However, Spain's allegations are not predicated on
sexually neutral conduct. Rather, she alleges that the
harassment resulted from the rumors that she was having an affair
with Nelson. Thus, the harassment directed against her as a
woman had a sexual orientation by its very nature. Overall, we
are satisfied that Spain has offered evidence that she suffered
intentional discrimination because of sex.
The second requirement for demonstrating a sexually
hostile work environment is that the discrimination must have
been pervasive and regular. Andrews, 895 F.2d at 1482. In
determining that Spain's claim can withstand a motion for summary
judgment as to this Andrews element, we note that she has alleged
that the rumors developed over a period of several years between
25
1986 and 1990 and manifested themselves through her continuous
interaction with her colleagues and supervisors. Moreover,
Nelson's loan solicitations and the private meetings allegedly
occurred throughout this time, continuing in particular after
Spain had asked him to put an end to the rumors. Therefore,
there is a fact question for trial as to the pervasiveness and
regularity of Nelson's conduct and the impact of the rumors on
Spain.0
Third, the discrimination must have affected Spain
detrimentally, the subjective requirement of Andrews, as later
recognized in Harris. As we discuss above, Spain has contended
that she perceived herself to be subject to an abusive
environment as manifested through her co-workers' and
supervisors' interaction with her. Thus, determination of the
particular effect of the rumors on Spain is another question of
fact for the jury.
Under Andrews, the fourth requirement to demonstrate a
sexually hostile work environment is that the discrimination must
be such that it would have detrimentally affected a reasonable
person of the same sex in Spain's position. The Supreme Court
explained this requirement in Harris: "Conduct that is not
severe or pervasive enough to create an objectively hostile or
0
We recognized in Bouton v. BMW of N.Am., Inc., No. 93-5296, slip
op. at 5 n.2 (3d Cir. June 10, 1994), that the Andrews
requirement that the discrimination be "pervasive and regular"
differs slightly in form from the Supreme Court's statement in
Meritor Sav. Bank, 477 U.S. at 67, 106 S. Ct. at 2405, that the
discrimination be "severe or pervasive." Regardless of whether
the two formulations substantively differ, both have been met
here for summary judgment purposes.
26
abusive work environment -- an environment that a reasonable
person would find hostile or abusive -- is beyond Title VII's
purview." 114 S. Ct. at 370. In Harris, the Court held that
under Title VII conduct can be actionable as harassment creating
a sexually hostile work environment, even though it does not
affect seriously an employee's well-being or lead the employee to
suffer injury. Id. at 370-71. Spain has alleged that she faced
an environment in which her co-workers treated her as an outcast
and in which her supervisors evaluated her negatively for
advancement. Thus, the alleged workplace hostility manifested
itself both in the immediate interaction between Spain and her
colleagues and in connection with her consideration for a
promotion in 1990.
We recognize, of course, that, as the EEOC points out,
Title VII does not require fellow workers to socialize with an
employee they dislike. Appellee's br. at 11 n.6. However, we
must accept Spain's allegations and draw inferences from them in
her favor, and Spain has alleged more than that her co-workers
disliked her. She has presented proof of injury directly flowing
from the sexually hostile work environment. Consequently, we
find that there is a factual question of whether a reasonable
person in Spain's position would have been affected detrimentally
by the environment she faced.
In Andrews, the final factor for determining whether
there was a sexually hostile work environment is the existence of
respondeat superior liability:
27
'[L]iability exists where the defendant knew
or should have known of the harassment and
failed to take prompt remedial action.'
Steele v. Offshore Shipbuilding, Inc., 867
F.2d 1311, 1316 (11th Cir. 1989); see Hicks
v. Gates Rubber [Co., 833 F.2d 1406, 1418
(10th Cir. 1987)]. Thus, if a plaintiff
proves that management-level employees had
actual or constructive knowledge about the
existence of a sexually hostile environment
and failed to take prompt and adequate
remedial action, the employer will be liable.
Katz v. Dole, 709 F.2d [251, 255 (4th Cir.
1983)].
895 F.2d at 1486. See also Bouton v. BMW of N. Am., No. 93-5296,
slip. op at 4-13 (3d Cir. June 10, 1994). Spain contends that
the EEOC took no action to stop the harassment even though
managers at three levels recognized the situation she faced:
Butler, app. at 340, Nelson, app. at 120, 125, and Spain's
immediate supervisor, Bruce Bagin, app. at 80. In particular,
she charges that she informed Nelson of the rumors and asked him
to put an end to them, app. at 77, 230, but that he did nothing.
App. at 121. Therefore, Spain's allegations and evidence of her
superiors' knowledge of the environment and their indifference to
it are sufficient to withstand a motion for summary judgment as
to this element of her claim.
In its ruling, the district court stated that Title VII
does not require a supervisor who is the object of a rumored
affair between himself and a subordinate to "embarrass himself"
by denying the rumors. App. at 31. Yet, without further
qualification or explanation, this statement is too broad. As we
already have indicated, if the employer knows of the harassment,
it is obligated to take prompt remedial action. We do not
28
suggest that Title VII required that Nelson personally deny the
rumors. However, assuming that Spain's allegations regarding the
rumors are true, the law did require management personnel to take
remedial action. Accordingly, we hold that the district court
erred in granting summary judgment to the EEOC predicated on the
court's interpretation of the EEOC's obligation under Title VII.
Overall, we think that it is clear that Spain has established the
requirements for a claim of a sexually hostile work environment
under Andrews, and that material issues of fact remain for trial.
Thus, the district court erred in barring Spain from going
forward based on the evidence she intended to offer to prove
these claims.
While we have predicated our result on Andrews and
Harris, we nevertheless will discuss Jew, as it seems to be the
only reported case dealing with circumstances similar to those
here. The district court first distinguished Jew on the grounds
that the supervisor in this case, Nelson, was not involved in
spreading the rumors and was, in fact, an object of them. App.
at 34. However, as Spain points out, Jew does not suggest that
the supervisor in that case was involved in spreading the rumors,
nor did Jew rely on such a consideration. Furthermore, on the
record, it could be concluded that Nelson personally was involved
in spreading the rumors due to his alleged involvement in
creating the conditions under which they developed and were
perpetuated, and due also to his refusal to take steps to end
them. Thus, with respect to this aspect of the district court's
ruling, it appears that the court seized upon a nonexistent
29
distinction between this case and Jew and then applied it
improperly to Spain's allegations.
The district court also pointed out that in Jew the
rumors suggested that the plaintiff had used a sexual
relationship to gain favor, influence and power with an
administrative superior. Accordingly, the court asked Spain what
evidence there was of that type of situation here.0 Yet, in so
asking, the court ignored Spain's offer of testimony by a co-
worker that another employee warned him to stay away from Spain
because she could get him in trouble with Nelson due to her
relationship with him. Id. at 35-36 (court proceeding of July
15, 1993); id. at 168 (deposition testimony). Thus, there was
evidence that the rumors alleged that Spain had attained
influence with Nelson through the use of a sexual relationship.
As we recount above, however, the attorney for the EEOC
argued that this testimony regarding Spain's alleged influence
was based upon her having the "boss' ears," as opposed to their
having a sexual relationship. Id. at 36. Yet, the record
indicates that the EEOC's recollection of the co-worker's
testimony was incomplete, in that the co-worker testified to the
relationship between Spain and Nelson as the reason for Spain's
potential influence over other employees before further
explaining that Spain had Nelson's "ears." Id. at 168.
Therefore, the district court erred to the extent that it may
0
Ohio App. at 36-37. It was on this ground that the district court in
Jew found that the plaintiff was subject to sex-based harassment
even though the male superior was also the object of the rumors.
30
have accepted the EEOC's account of the co-worker's testimony in
determining that Spain did not allege that the rumors involved
her use of a sexual relationship to attain influence.
Furthermore, Spain offered evidence that a supervisor rated her
poorly for advancement purposes on account of the rumors and her
resulting poor interpersonal relationships. Thus, there was an
additional reason for the court not to have distinguished Jew on
the grounds that the plaintiff in that case used a sexual
relationship to her advantage.0
Finally, while the district court correctly pointed out
that this case does not involve allegations of overt sexual
harassment, such as the posting of cartoons and the other
activities described in Jew, we have noted that "[i]ntimidation
and hostility toward women because they are women can obviously
result from conduct other than explicit sexual advances."
Andrews, 895 F.2d at 1485 (quoting Hall v. Gus Constr. Co., 842
F.2d 1010, 1014 (8th Cir. 1988)). It would have been erroneous,
therefore, for the district court to have barred Spain from going
forward on the grounds that she had not alleged overt instances
of harassment equivalent to those in Jew.
0
Ohio App. at 37-40. Although the district court initially determined
that it would allow such evidence, it later changed its decision
on the ground that the poor ratings had to do with sexual
activity and not gender. Id. at 39, 44. The EEOC argues that
the court's exclusion of this evidence was proper because Spain
claims that she was denied the promotion on account of her race
but not due to her sex. Appellee's br. at 14 n.8. However,
Spain's complaint and her argument before the district court
clearly were that she was subject to a sexually hostile work
environment and denied a promotion on account of her sex. See
id. at 1-6 (complaint), app. at 37-40 (trial transcript).
31
In sum, our analysis of the requirements of Title VII
leads us to hold that the district court erred in barring Spain
from proceeding with her sexual discrimination and harassment
claims. Spain has presented evidence that she was subjected to a
sexually hostile work environment in the form of rumors among her
colleagues that she was involved in a sexual relationship with
her superior. These rumors allegedly developed and continued due
to the superior's conduct. Moreover, they allegedly led her
fellow employees to shun her and her supervisors to evaluate her
poorly for advancement purposes. Furthermore, the management
personnel did not take remedial action to eliminate the rumors.
We are satisfied that considering all the circumstances, and
given Spain's unique allegations, she should be allowed the
opportunity to prove her claims regarding the sexually hostile
work environment she allegedly faced.
B. Evidentiary Rulings
We now turn to the district court's exclusion of
Spain's evidence in support of her sexual discrimination and
harassment claims, a ruling made in conjunction with the court's
decision to prohibit Spain from proceeding with her claims. While
we ordinarily would review an evidentiary ruling before making a
substantive decision depending on whether evidence was admitted,
we have reversed that order because our discussion of the
substance of the sexual discrimination and harassment claims has
cast light on the evidentiary question. We review the district
court's admissibility ruling under an abuse of discretion
32
standard, as we are concerned with an issue of the application of
rather than the interpretation of the Federal Rules of Evidence.
United States v. Console, 13 F.3d 641, 656 (3d Cir. 1993), cert.
denied, 128 L. Ed. 2d 377, 62 U.S.L.W. 3722 (1994); Petruzzi's IGA
Supermarkets, 998 F.2d at 1237.
The EEOC's motion in limine sought to exclude evidence
concerning Nelson's alleged solicitation and acceptance of loans
from Spain on the grounds: (1) that such evidence was not
relevant to Spain's Title VII action under Rule 401, and
therefore was inadmissible under Rule 402; and (2) that under
Rule 403 the probative value of the evidence was outweighed
substantially by the danger it might lead to unfair prejudice,
confusion of the issues, and delay. App. at 56-62. The district
court granted the EEOC's motion, stating simply: "So what? If
other people interpreted meetings that he had for some other
reason in the wrong way, so what?" Id. at 42-43. Although it
would thus appear that the district court excluded the evidence
on relevancy grounds pursuant to Rule 402, the district court's
ruling is ambiguous, and the parties base their arguments on both
Rule 402 and Rule 403. Consequently, we will consider the
admissibility standards of Rules 401 and 402, as well as the
prejudice standards of Rule 403, as we believe that under either
of these standards, the district court abused its discretion in
excluding the evidence in question.
1. Relevance
33
We recently discussed Rule 401 and the standards for
excluding evidence on relevancy grounds:
Under Fed. R. Evid. 401, evidence is
relevant if it has 'any tendency to make the
existence of any fact that is of consequence
to the determination of the action more
probable or less probable than it would be
without the evidence.' As noted in the
Advisory Committee's Note to Rule 401,
'[r]elevancy is not an inherent
characteristic of any item of evidence but
exists only as a relation between an item of
evidence and a matter properly provable in
the case.' Because the rule makes evidence
relevant 'if it has any tendency to prove a
consequential fact, it follows that evidence
is irrelevant only when it has no tendency to
prove the fact.' 22 Charles A. Wright &
Kenneth W. Graham, Jr., Federal Practice and
Procedure: Evidence § 5166, at 74 n. 47
(1978) (emphasis added). Thus the rule,
while giving judges great freedom to admit
evidence, diminishes substantially their
authority to exclude evidence as irrelevant.
Id. § 5166, at 74.
Blancha v. Raymark Indus., 972 F.2d 507, 514 (3d Cir. 1992).
The EEOC argues that the district court correctly
excluded the evidence as irrelevant, inasmuch as evidence
concerning the reason for the meetings between Spain and Nelson
and the resulting rumors does not tend to prove or disprove
Spain's allegations regarding the rumors and that she was
subjected to sexual harassment as a result. Appellee's br. at
15-16. The EEOC contends that even under Spain's view of the
case, the occurrence of the meetings with Nelson, but not the
reasons for the meetings, is significant. Id. at 16.
Yet, it is clear that evidence concerning the reasons
for the private meetings between Nelson and Spain had a tendency
34
to prove certain elements of Spain's claims, for the evidence
demonstrated why Nelson would have wanted private meetings, as
the EEOC regulations prohibited him from borrowing money from
subordinates. Furthermore, the reasons for the meetings tend to
demonstrate why they were so frequent. More importantly, if a
jury knew the reason for the meetings, it would gain insight into
the credibility of Spain's contention that Nelson did not take
any steps to stop the rumors or initiate any other remedial
actions after learning about the rumors, for remedial action
might have required him to explain his conduct. Consequently,
the evidence is relevant to prove that Nelson was at least
partially responsible for the development and perpetuation of the
false rumors. Inasmuch as under Harris all the germane
circumstances should be considered in an evaluation of Spain's
sexually hostile work environment claim, we believe that the
district court abused its discretion in ruling that the evidence
was inadmissible under Rules 401 and 402.
2. Unfair Prejudice
In Blancha, we also discussed Rule 403 and the
standards for excluding evidence that substantially is more
prejudicial than probative:
Fed. R. Evid. 403 states that evidence,
even if relevant, may be excluded 'if its
probative value is substantially outweighed
by the danger of unfair prejudice, confusion
of the issues, or misleading the jury.' Thus
evidence may be excluded when its admission
would lead to litigation of collateral
issues, thereby creating a side issue which
might distract the jury from the main issues.
35
United States v. Dennis, 625 F.2d 782, 797
(8th Cir. 1980). . . . Evidence should be
excluded under Rule 403 only sparingly since
the evidence excluded is concededly
probative. United States v. Terzado-Madruga,
897 F.2d 1099, 1117 (11th Cir. 1990). The
balance under the rule should be struck in
favor of admissibility. Id.; Dennis, 625
F.2d at 797 (8th Cir. 1980). Finally, we
note that in determining the probative value
of evidence under Rule 403, 'we must consider
not only the extent to which it tends to
demonstrate the proposition which it has been
admitted to prove, but also the extent to
which that proposition was directly at issue
in the case.' United States v. Herman, 589
F.2d 1191, 1198 (3d Cir. 1978), cert. denied,
441 U.S. 913, 99 S. Ct. 2014, 60 L. Ed. 2d 386
(1979).
Blancha, 972 F.2d at 516. The EEOC argues that the district
court properly excluded evidence of the loans under Rule 403
because evidence of Nelson's questionable conduct would be highly
likely to distract the jury from focusing on the claim of sexual
harassment and would cause the factfinder to be inclined to find
a Title VII violation out of a desire to punish the supervisor
for his unethical conduct. Appellee's br. at 16-17.
We conclude, however, that the probative value of this
evidence is not "substantially outweighed by the danger of unfair
prejudice." We already have discussed the relevance of the
evidence to an understanding of why Spain's co-workers continued
to see her privately with Nelson even after she and Nelson knew
of the rumors and to an understanding of why Nelson did not take
steps to stop the rumors. Indeed, Nelson admits that loans were
made on the dates for which Spain has canceled checks, although
he denies that he solicited them and offers an alternative
36
explanation. Appellee's app. at 4-7. Thus, the dispute concerns
not whether they were loans, but rather the motivation for them
and their frequency.
The EEOC contends, in essence, that the evidence would
make the jury more likely to turn a breach of ethics into a
finding of sexual harassment. "Yet, '[v]igorous cross-
examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence."
Petruzzi's IGA Supermarkets, 998 F.2d at 1241 (quoting Daubert v.
Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2798 (1993)).
Given our cautious approach to Rule 403 exclusions at the
pretrial stage, see Petruzzi's IGA Supermarkets, 998 F.2d at
1240; In Re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859-60 (3d
Cir. 1990), cert. denied, 499 U.S. 961, 111 S. Ct. 1584 (1991), we
hold that the district court abused its discretion in excluding
the evidence under Rule 403.
C. Dismissal For Failure to Prosecute
Spain argues that the district court improperly
dismissed the balance of her case for failure to prosecute after
she determined not to go forward with her racial discrimination
and retaliation claims following the dismissal of the sexual
37
discrimination and harassment claims. We hold that the district
court did not abuse its discretion in this order.0
As we have noted already, after the district court
issued its ruling with respect to the sexual discrimination and
harassment claims and excluded the evidence of the loans, Spain
asked the court whether taking a voluntary non-suit on the
remaining claims would eliminate her right to appeal on them. The
court quite clearly explained that this would be the result with
respect to the issues on which the court determined that Spain
could proceed. App. at 45-46. Moreover, the court and Spain
discussed the fact that the evidence with respect to the sexual
discrimination claim had no bearing on the remaining claims of
racial discrimination and retaliation, and Spain agreed that it
did not. Id. at 46-47. When the case resumed after the weekend,
Spain again raised the possibility of not going forward and the
court again warned her of the consequences if she did not. Id.
at 51. As a result, when Spain decided not to proceed, the
district court dismissed the remaining claims for failure to
prosecute. Id. at 52.
Spain argues that "because of the court's clear error
in denying the evidence as to the sexual harassment, justice
requires reinstatement of the entire Complaint." Appellant's br.
at 25. She contends that her remaining claims of failure to
promote based on race and retaliation are connected closely to
0
We review a dismissal of an action for failure to prosecute
under an abuse of discretion standard. Dunbar v. Triangle Lumber
and Supply Co., 816 F.2d 126, 128 (3d Cir. 1987).
38
the evidence she was not permitted to introduce. Id. Yet as the
EEOC points out, and as we have reviewed above, Spain agreed
before the district court that the evidence concerning the loans
and the failure to correct the rumors was irrelevant to whether
she was not promoted on account of her race or whether there was
retaliation against her for filing the previous or present
complaint. App. at 46-47.
While Spain now takes a position contrary to that which
she took before the district court, she provides no detailed
argument for why the excluded evidence relates to the racial
discrimination and retaliation claims. Rather, Spain simply
states that proof of her other claims depends upon the jury
having knowledge of all of the events. Appellant's br. at 25.
However, the excluded evidence regarding the loans would not tend
to prove the remaining claims. Furthermore, even if the EEOC had
intended to introduce Spain's poor relationship with her
colleagues allegedly resulting from the loans and rumors as part
of its defense to her claims, the EEOC correctly notes that such
alleged sex-based evidence would be irrelevant to her racial
discrimination and retaliation claims. In any event, even if the
excluded evidence was important to the racial discrimination and
retaliation claims, Spain was obliged to proceed with the trial
notwithstanding the exclusion of the evidence. A party
disappointed with a court's ruling may not refuse to proceed and
then expect to obtain relief on appeal from an order of dismissal
or default. See Marshall v. Sielaff, 492 F.2d 917 (3d Cir.
1974).
39
We recognize that dismissal is a harsh remedy to which
a court should resort only in extreme cases, as "the policy of
the law is to favor the hearing of a litigant's claim on the
merits." Id. at 918 (citation omitted). Nevertheless the
courts may dismiss cases with prejudice for want of prosecution
under Fed. R. Civ. P. 41(b) or under their inherent power so that
they can "manage their own affairs so as to achieve the orderly
and expeditious disposition of cases." Id. (quoting Link v.
Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S. Ct. 1386, 1389
(1962)); see also Eash v. Riggins Trucking Inc., 757 F.2d 557,
561, 564 (3d Cir. 1985) (in banc). Ordinarily, when a court is
determining sua sponte or upon motion of a defendant whether to
dismiss because of a plaintiff's failure to prosecute, and the
plaintiff is opposing the motion, the court must consider several
factors in reaching its decision: (1) the extent of the party's
personal responsibility; (2) the prejudice to the opponent; (3)
any history of dilatoriness; (4) whether the conduct of the party
or the attorney was willful or in bad faith; (5) whether
effective alternative sanctions are available; and (6) the
meritoriousness of the claim or the defense. See Poulis v. State
Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984).
However, in contrast to situations in which a court
must balance factors because the plaintiff does not desire to
abandon her case but has encountered problems in going forward,
Spain willfully refused to prosecute her remaining claims after
receiving an adverse ruling by the district court on the sexual
discrimination and harassment claims. In these circumstances, we
40
cannot fault the district court for dismissing the suit. See
Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990). Indeed,
it is difficult to conceive of what other course the court could
have followed. Continuing the matter would not have helped
Spain, as she was not confronted with a situation in which she
faced an obstacle to prosecution of her case that could have been
overcome at a later date. Furthermore, the court's sua sponte
action was appropriate; no motion from the EEOC was required.0
Accordingly, we will affirm the order of the court dismissing
Spain's racial discrimination and retaliation claims.
D. The Jury Costs
Finally, Spain appeals from the district court's
assessment of jury costs of $375 against her following the
court's dismissal of her case. We apply an abuse of discretion
standard of review to a court's imposition of sanctions under its
0
Link, 370 U.S. at 630-31; 82 S.Ct. at 1388-89. Spain's reliance
on Coursen v. A.H. Robbins Co., 764 F.2d 1329 (9th Cir.), as
amended, 773 F.2d 1049 (9th Cir. 1985), is misplaced. In Coursen,
which involved a claim of injury from a birth control device, the
district court denied the plaintiffs' motion to preclude the
defendant from introducing evidence regarding their sexual
history. 764 F.2d at 1341. Plaintiffs' actions were dismissed
with prejudice when they then refused to proceed to trial. Id.
at 1342. The Court of Appeals for the Ninth Circuit vacated the
dismissal and remanded the case to the district court "with
instructions that plaintiffs be directed to proceed to trial or
have their cases dismissed." Id. at 1343. Coursen is quite
unlike the present case, however, in that the court of appeals
remanded the case to the district court to give the plaintiffs
the option to continue with the litigation due to the confusion
surrounding the entry of the dismissal order and the resulting
availability of appellate review. Here, there is no doubt that
Spain had a complete understanding of the implications of
deciding not to proceed prior to making that decision.
41
inherent power. Chambers v. Nasco, Inc., 501 U.S. 32, __, 111
S. Ct. 2123, 2138 (1991) (citing Link, 370 U.S. at 633, 82 S.Ct.
at 1390).
While federal courts possess the inherent power to
punish conduct which abuses the judicial process, they must
exercise the power "with restraint and discretion." Chambers,
501 U.S. at , 111 S.Ct. at 2132 (citing Roadway Express, Inc.
v. Piper, 447 U.S. 752, 764, 100 S. Ct. 2455, 2463 (1980)). "A
primary aspect of that discretion is the ability to fashion an
appropriate sanction" for abusive conduct. Chambers, 501 U.S. at
, 111 S.Ct. at 2132-33. Because we believe that there are no
grounds for finding that Spain abused the judicial process with
respect to when she notified the court she would not proceed with
the trial, we hold that the district court abused its discretion
in assessing the jury costs against her.
As we describe above, the district court precluded
Spain from proceeding with her sexual discrimination and
harassment and discrimination claims and issued its evidentiary
exclusion decision on Thursday, July 15, 1993, the day that the
jury was picked. The testimonial portion of the trial was to
begin on Monday, July 19, 1993. However, on that morning, Spain
informed the court she would not proceed with her remaining
claims. The district court then dismissed her case with
prejudice and assessed the jury costs against her.
Perhaps Spain could have reached her decision not to
prosecute her remaining claims and informed the court of her
decision on the day that the court issued its first rulings and
42
the jury was picked, or even on the next day, Friday, July 16,
1993. Yet, even though the trial was set to begin only the
following Monday, and the court was aware that Spain was
contemplating abandoning her remaining claims, it set no time
limit for her decision. See Boettcher v. Hartford Ins. Group,
927 F.2d 23 (1st Cir. 1991) (assessment of jury costs by district
court reversed when case settled on day of trial). Thus, we
find no basis in the record to support a conclusion that Spain
and her attorney acted in bad faith or otherwise abused the
judicial process in taking the weekend before reaching a final
decision not to proceed.0 Moreover, as the district court
imposed the sanction without affording Spain prior notice and an
opportunity to be heard, its action raises due process concerns.
See Eash, 757 F.2d at 570-71. While we could, of course, cure
the due process problem by remanding the matter for
reconsideration of the imposition of the sanction, we think that
in view of the modest $375 assessment, it would be prudent to
consider the matter on the record as it exists. Overall, we are
convinced that the district court abused its discretion in
assessing the costs of the jury against Spain.
III.
CONCLUSION
0
There is no support in the record to conclude that Spain reached
her decision before the weekend or even before Monday. In fact,
Spain's attorney told the court that he and Spain spent the
weekend talking about what to do.
43
Based on the aforesaid analysis, we will reverse the
orders of the district court entering summary judgment against
Spain on the portions of count I of her complaint alleging the
sexual discrimination and harassment claims, excluding the
evidence she offered to prove those claims, and assessing the
costs of the jury against her. We will affirm the court's
dismissal of the remainder of Spain's case for failure to
prosecute. We will remand the case to the district court for
further proceedings on the reinstated claims. The parties will
bear their own costs on this appeal.
44