Kissell v. American Federation of State, County & Municipal Employees, District Council 84 , 90 F. App'x 620 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
1-26-2004
Kissell v. Dist Cncl 84
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3891
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3891
MICHAEL F. KISSELL
v.
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
EMPLOYEES, DISTRICT COUNCIL 84, AFL-CIO, COUNCIL 13;
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, STATE
CORRECTIONAL INSTITUTE OF GREENSBURG,
PA Department of Corrections, State
Correctional Institution at Greensburg,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
D.C. Civil No. 97-cv-00786
District Judge: The Honorable Gary L. Lancaster
Argued: January 12, 2004
Before: BARRY, SMITH, and GREENBERG, Circuit Judges
(Opinion Filed: January 26, 2004)
Howard G. Hopkirk, Esq. (Argued)
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120
Attorney for Appellant
Leonard E. Sweeney, Esq. (Argued)
976 Perry Highway
Pittsburgh, PA 15237
Attorney for Appellee
OPINION
BARRY, Circuit Judge
Michael Kissell was, from 1988 until he was terminated on June 29, 1994, a
corrections officer employed by the Pennsylvania Department of Corrections (“DOC”) at
the State Correctional Institution at Greensburg. In response to his termination, Kissell
filed a complaint in the Western District of Pennsylvania against the DOC for violation of
the rights afforded to him under Title VII of the Civil Rights Act of 1964. 42 U.S.C. §
2000e et seq.1 After trial, a jury rejected Kissell’s sexual harassment claim, but returned a
verdict in his favor on his retaliation claim. The DOC moved for judgment as a matter of
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1 Kissell also alleged violations under 42 U.S.C. § 1983 and under Pennsylvania law.
2 The District Court dismissed these claims, and they are not relevant to this appeal.
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law, which was denied, and thereafter filed a timely appeal. We have jurisdiction under
28 U.S.C. § 1291. We will affirm.
The DOC raises three issues on appeal. First, the DOC asserts that the evidence
does not support the jury’s finding in favor of Kissell on one component of his retaliation
claim. Second, the DOC contests certain of the damages assessed against it. Finally, the
DOC argues that because the jury’s verdict cannot stand, neither can the District Court’s
order to reinstate Kissell.
To establish a prima facie case of retaliation in an employment discrimination suit
brought under Title VII, a plaintiff “must show that (1) he was engaged in protected
activity; (2) he was discharged subsequent to or contemporaneously with such activity;
and (3) there is a causal link between the protected activity and the discharge.” Woodson
v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). The DOC concedes that Kissell at
trial established the second and third components of his case. They argue, however, that
the evidence, even when viewed in Kissell’s favor, does not support a finding that Kissell
was engaged in a protected activity.
“As a preliminary matter, protesting what an employee believes in good faith to be
a discriminatory practice is clearly protected conduct.” Aman v. Cort Furniture Rental
Corp., 85 F.3d 1074, 1085 (3d Cir. 1996) (citing 42 U.S.C. § 2000e-3(a); Griffiths v.
Cigna Corp., 988 F.2d 457, 468 (3d Cir. 1993)). See also Griffiths, 988 F.2d at 468 (“a
plaintiff need not prove the merits of the underlying discrimination complaint, but only
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that ‘he was acting under a good faith, reasonable belief that a violation existed’”)
(quoting Sumner v. United States Postal Service, 899 F.2d 203, 209 (2d Cir. 1990)).
The DOC concedes that Kissell was acting in good faith when he made his
complaint. The DOC asserts, however, that Kissell’s complaint was unreasonable. Thus,
the issue on appeal is whether adequate evidence was presented to the jury to support a
finding that Kissell reasonably believed that he was engaged in protected activity under
Title VII. We “view the evidence in the light most favorable to the non-moving party,
and determine whether the record contains the ‘minimum quantum of evidence from
which a jury might reasonably afford relief,’” Glenn Distribs. Corp. v. Carlisle Plastics,
Inc., 297 F.3d 294, 299 (3d Cir. 2002) (citations omitted).
The evidence sufficiently supports the jury’s finding that Kissell had a reasonable,
good-faith belief to complain that he was harassed because he was male even as he also
had a reasonable, good faith belief that he was harassed because he was a whistle-blower.
Title VII jurisprudence does not require a plaintiff’s sex to be the sole motivation or even
the primary motivation for the harassment. See 42 U.S.C. § 2000e-2(a) (“It shall be an
unlawful employment practice for an employer . . . to discharge any individual . . .
because of such individual’s . . . sex”) (emphasis added); Miller v. Cigna Corp., 47 F.3d
586, 593-594 (3d Cir. 1995) (“Congress, by using the phrase ‘because of,’ did not mean
‘solely because of.’”).
With regard to the damages award, we cannot conclude that $355,696 is an
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unreasonable amount to compensate for lost back pay and fringe benefits for the nearly
eight years between Kissell’s termination and the jury award. Moreover, if the jury
should not have been instructed on fringe benefits, it behooved the DOC to say so then,
not now. Finally, because we uphold the jury’s verdict, Kissell’s reinstatement as a
corrections officer is, as the DOC concedes, appropriate.
Because we find in the record the “‘minimum quantum of evidence from which a
jury might reasonably afford relief,’” we will affirm the order of the District Court
denying the DOC’s motion for judgment as a matter of law. Glenn Distribs. Corp., 297
F.3d at 299 (citations omitted).
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Maryanne Trump Barry
Circuit Judge