Woodson v. Scott Paper Co

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
4-3-1997
Woodson v. Scott Paper Co
Precedential or Non-Precedential:
Docket 95-1758
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997
Recommended Citation
"Woodson v. Scott Paper Co" (1997). 1997 Decisions. Paper 75.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/75
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
NO. 95-1758
_________________
JAMES W. WOODSON,
Appellee
v.
SCOTT PAPER CO.,
Appellant
___________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 93-cv-06076)
___________________________________
Argued: May 15, 1996
Before: BECKER, NYGAARD, and LEWIS, Circuit Judges.
(Filed April 3, l997)
STEVEN R. WALL, ESQUIRE (ARGUED)
JULIE A. UEBLER, ESQUIRE
Morgan, Lewis & Bockius
2000 One Logan Square
Philadelphia, PA 19103
Attorneys for Appellant
Scott Paper Company
ALAN B. EPSTEIN, ESQUIRE (ARGUED)
Jablon, Epstein, Wolf & Drucker
The Bellevue, Ninth Floor
Broad and Walnut Streets
Philadelphia, PA 19102
Attorneys for Appellee
James W. Woodson
1
_______________________
OPINION OF THE COURT
_______________________
BECKER, Circuit Judge.
James W. Woodson, an African-American male, brought suit
against Scott Paper Company claiming that he was a victim of
unlawful racial discrimination and retaliation in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., and the Pennsylvania Human Relations Act, 43 Pa. C.S. § 951
et seq. The jury found for Scott on the discrimination claims,
but for Woodson on the retaliation claims, and made a large
damages award. This appeal by Scott from the denial of its post-
trial motions presents three issues.
First, Scott contends that the evidence was insufficient as
a matter of law to establish that Woodson was terminated in
retaliation for filing discrimination charges with the Equal
Employment Opportunity Commission (“EEOC”) and the Pennsylvania
Human Relations Commission (“PHRC”). Some two years passed
between the complaints and his termination. According to Scott,
the jury could not have reasonably found a “causal link” between
the complaints and Woodson’s discharge because the evidence fails
to support a pattern of antagonistic behavior by Scott that links
the complaints and the termination, which we have required in
cases in which the two events are temporally remote. Although
the question is close and no piece of evidence alone is
sufficient to support a causal link finding, we will reject
Scott’s contention that judgment as a matter of law was
2
improperly denied and affirm the denial of the Rule 50 motion in
this respect because the evidence, when considered in its
entirety, is sufficient to establish a causal link.
Scott’s second contention is that, because no verified
complaint was filed with the PHRC, judgment should be entered in
its favor on Woodson’s retaliation claim under the Pennsylvania
Human Relations Act (“PHRA”) and, concomitantly, that Woodson’s
verdict is subject to the $300,000 damages cap of Title VII, 42
U.S.C. § 1981a(b)(3). We agree. The worksharing agreement
between the PHRC and the EEOC does not operate to satisfy the
PHRA’s filing requirement. Moreover, the district court erred in
holding that Woodson was excused from the filing requirement
under the doctrine of “equitable filing,” even if we were to
predict that the Pennsylvania Supreme Court would adopt such a
doctrine. Hence we will reverse the district court’s denial of
Scott’s Rule 50 motion in this respect and direct the district
court to enter judgment in Scott’s favor on Woodson’s PHRA
retaliation claim.
Finally, Scott appeals from the denial of its motion for a
new trial under Fed. R. Civ. P. 59, and makes two separate claims
of error in the jury instructions. First, it contends that the
district court incorrectly instructed the jury that racist
graffiti that appeared in a bathroom at Scott’s Chester plant was
“direct evidence” of Scott’s unlawful motive. We conclude that
the district court erred in charging the jury as such; the charge
was misleading on several levels, and the graffiti incident can,
at most, constitute circumstantial evidence of Scott’s
3
retaliatory motive. Second, Scott contends that the district
court erred in charging the jury that retaliation need only be a
“motivating factor” in Woodson’s discharge in order to find in
Woodson’s favor, and that the jury should have been instructed
that retaliation must have had a “determinative effect” on the
decision to fire Woodson. Because we hold that the “motivating
factor” standard of § 107 of the Civil Rights Act of 1991 does
not apply to retaliation claims, we necessarily conclude that the
determinative effect standard, established in Miller v. CIGNA
Corp., 47 F.3d 586, 595 (3d Cir. 1995) (en banc), governs this
case. Moreover, the jury charge errors were not harmless. For
these reasons, we will affirm in part and reverse in part, and
remand for a new trial on Woodson’s retaliation claim.
I. Facts and Procedural History
Woodson joined Scott in 1970 as a Chemical Material
Specialist at the company's Philadelphia, Pennsylvania
headquarters. Within six months, he was promoted to the position
of Wet End Specialist. In 1973, Woodson received his second
promotion (to Process Engineer) and was transferred to Scott’s
plant in Detroit. He remained in Detroit until 1978, having
advanced to the position of Technical Director. After a brief
return to Pennsylvania (this time to Scott's Chester plant),
Woodson was promoted to Finishing Superintendent and relocated to
Michigan.
In 1981, Woodson's wife unexpectedly died in surgery leaving
him to raise a young son and nephew. He requested a transfer to
the Philadelphia area in order to be closer to his family. In
4
1983, Scott found him a position in Chester, but it required a
demotion to Paper Mill Technical Manager for the plant. Woodson
accepted the position.
Woodson was successful at the Chester plant. In his 1986
performance evaluation, he received a ranking of “8" out of a
possible 10 points from his supervisor, who praised his strengths
as both a team player and a leader. Woodson was promoted to
Technology Manager in 1987 and received a performance rating of
"highly successful" in that position in 1987, 1988, and 1989. In
1989, he received an award for his involvement in an innovative
plant project. He received raises in both 1989 and 1990.
Beginning in 1988, Woodson applied unsuccessfully for
numerous product system leader positions. In November 1989, and
again in February 1990, frustrated with Scott's failure to
promote him, he filed charges of discrimination against Scott
with both the EEOC and the PHRC, alleging that Scott had failed
to promote him because of his race.
Scott maintains that Woodson was not promoted to product
system leader in 1988 because he performed poorly in an interview
for that position. In addition, Scott points out that Woodson’s
1988 performance evaluation, prepared at the beginning of 1989,
reported that he had “problems communicating with some peers and
superiors diminishing his effectiveness. Does more telling than
selling thereby creating conflict.” Both Woodson and John
Zohlman, Scott's Director of Human Resources for Manufacturing
and Logistics, testified that, in May or June 1989, before
Woodson filed his complaints, Zohlman suggested that Woodson
5
consult with a behavioral psychologist, Dr. Bell, to improve his
working relationships. Woodson’s 1989 performance evaluation,
prepared in 1990 after he had filed his first complaint,
recommended that Woodson work with an outside consultant “to
evaluate and improve perception by superiors.”
In October 1990, Woodson was awarded one of the three open
product system leader positions, in the Light Weight Wet
Strength--Napkins division. In this capacity, he reported to
James Peiffer, the Chester Plant Manager.1 Peiffer testified
that Woodson was awarded the napkin line position because “the
napkins was a good fit for him,” and Woodson testified that he
was "probably the only person at Scott Paper who could turn
napkins around." Of the three divisions with open positions, the
napkin line division was the smallest and worst performing.
Woodson testified that, after receiving this promotion,
Zohlman called to congratulate him. During the course of that
conversation, Zohlman suggested that Woodson drop his
administrative complaints: “[Zohlman] basically, in passing
comment, suggested that okay, now that I was a product system
leader, I ought to focus my attention in that direction toward--
as opposed to the EEO suits and perhaps I should drop the suits.”
Woodson claims that, as product system leader, he repeatedly
requested more workers and more management support, but that
these requests were denied until October 1991, just months before
1
Peiffer reported to Thomas Czepiel and William Wadsworth,
who participated in the “forced ranking” that led to Woodson’s
dismissal.
6
his discharge. Woodson also continued to seek further
promotions, but testified that he felt blocked.
In June or July 1991, during Woodson’s tenure as product
system leader, graffiti was spray-painted on the wall of a men’s
bathroom in the Chester plant. That graffiti stated -- "Nigger,
I'm going to get you," "Niggers are taking our jobs," and
"Niggers who talk are Niggers who hang." At the time, Woodson
was the only new black management employee, and the only one who
had "talked" -- i.e., filed a claim of discrimination. Scott
immediately hired a private investigator to explore the incident,
and sent out a letter to employees condemning the graffiti.
Scott also formed a task force, which hired an outside consultant
and prepared a survey of employees to explore the issues raised
by the graffiti. The parties, however, dispute the adequacy of
Scott’s response: Diversity training was not implemented until
after Woodson left Scott’s employ, and Woodson testified that to
his knowledge Scott took no action in response to the graffiti,
other than the letter to employees.
In the fall of 1991, Scott initiated a reorganization and
cost reduction program. Pursuant to the plan, Scott implemented
a “forced ranking” of all employees. On November 19, 1991,
Thomas Czepiel (Vice President for Manufacturing Operations),
William Wadsworth (Vice President, Asset Optimization), and
Edward Goldberg (Vice President of Manufacturing Development) met
to evaluate twenty-seven managers -- both product system leaders
and other managers with similar duties. The ranking procedures
were designed by Czepiel, Wadsworth, and Zohlman (though Zohlman
7
took no part in the actual evaluation). After the evaluations,
Woodson was ranked twenty-fifth even though his annual
evaluations were better than or comparable to those of a number
of managers ranked above him. The bottom five individuals were
selected for termination, and on January 27, 1992, Woodson was
informed that he had lost his job.
Wadsworth and Goldberg admitted that they had little first-
hand knowledge about Woodson's performance and did not review his
personnel file in making their evaluations. Both Wadsworth and
Czepiel testified that they were aware at the time of the ranking
that Woodson had filed discrimination charges. Czepiel described
in an affidavit the decision reached by the group:
Our decision that Mr. Woodson’s job skills were less than
satisfactory was based on our agreement that Mr. Woodson did
not understand and had not adopted the philosophy of the AO
organization because he refused to disassociate himself from
a hierarchical individualistic management strategy, thus
remaining an ineffectual team leader. As a result Mr.
Woodson had in our view isolated himself from the members of
his product system team, stifled participation and
coordination between and among those individuals and created
a barrier to the development of the AO concept at the
Chester plant. In fact, Mr. Woodson was in my view
borderline insubordinate in his rejection of the
organization and cultural changes that Scott was trying to
implement as part of the AO concept. Messrs. Wadsworth,
Goldberg and I were also aware of the disappointing
performance of Mr. Woodson’s product system since he assumed
leadership of that system in October of 1990. (emphasis
added)
As Czepiel described it at trial, the “AO concept” was an attempt
at the plant to move away from hierarchical forms of organization
to a system in which “people took greater accountability and
initiative in doing their work.”
The memorandum that outlined the downsizing process stated
8
that “[i]n developing these ratings, consideration should be
given to 1990 and anticipated 1991 performance ratings. Major
discrepancies between job skill ratings and these performance
ratings will need to be explained.” The discrepancy between
Woodson's successful prior record of achievement and his poor
ranking was not raised in the Corporate Review Committee -- a
group charged with looking at the results of the forced ranking
and overruling any incongruous termination decisions -- even
though Zohlman testified that the memorandum meant that any
discrepancies needed to be explained to the Corporate Review
Committee.
According to Scott, 259 employees were terminated in the
reorganization through this procedure. Woodson, in response,
claims that he and the only other African-American product system
leader were the only two product system leaders terminated.
In November 1993, Woodson instituted the present action
against Scott in the District Court for the Eastern District of
Pennsylvania, alleging that he was a victim of unlawful racial
discrimination and retaliation in violation of Title VII and the
PHRA. The case came up on trial in February 1995. Before the
case was submitted to the jury, Scott moved for judgment as a
matter of law, Fed. R. Civ. P. 50(a), on two grounds: (1)
Woodson's PHRA claim failed as a matter of law because, as he had
admitted, no verified complaint was ever filed with the PHRC; and
(2) insufficient record evidence existed from which a jury could
conclude that Woodson was terminated in retaliation for filing
discrimination charges two years before his termination.
9
The district court denied Scott's motion and submitted
Woodson's case to the jury. The jury returned a verdict in
Woodson's favor on the retaliation claims under Title VII and the
PHRA and awarded him the stipulated amount of $150,000 in past
earnings, $397,845 in future earnings, $10,000 for emotional
distress, and $1,000,000 in punitive damages. The jury found for
Scott on the discrimination claims, and that finding is not
contested on appeal.
After the jury verdict, Scott renewed its motion for
judgment as a matter of law, Fed. R. Civ. P. 50(b), reasserting
the arguments made in its earlier motion. Scott also moved for a
new trial, Fed. R. Civ. P. 59, based on what it believed to be
erroneous and prejudicial jury instructions given by the district
court. The court denied Scott's motions, Woodson v. Scott Paper
Co., 898 F. Supp. 298 (E.D. Pa. 1995), and Scott now appeals on
four separate grounds: (1) the district court erred in denying
Scott's motion for judgment as a matter of law on Woodson's
retaliation claims because the evidence was insufficient to show
a causal link between Woodson's 1989 and 1990 discrimination
complaints and his 1992 firing; (2) the district court erred in
denying Scott's motion for judgment as a matter of law on
Woodson's retaliation claim under the PHRA because Woodson failed
to exhaust his administrative remedies under the Act; (3) the
district court should have granted Scott's motion for a new trial
because it improperly instructed the jury that the racial
graffiti that appeared in the bathroom of the Chester plant was
"direct" evidence of Scott's unlawful motive; and (4) the
10
district court should have granted Scott's motion for a new trial
because it incorrectly instructed the jury that retaliation need
only be a "motivating factor" for the termination in order to
find for Woodson instead of charging that retaliation must have
had a “determinative effect” on the decision.
The district court exercised jurisdiction under 28 U.S.C. §§
1331 and 1367(a), and we have appellate jurisdiction over the
final order under 28 U.S.C. § 1291. We exercise plenary review
over Scott’s first two claims. Lightning Lube, Inc. v. Witco
Corp, 4 F.3d 1153, 1166 (3d Cir. 1993). A motion for judgment as
a matter of law “should be granted only if viewing all the
evidence which has been tendered and should have been admitted in
the light most favorable to party opposing the motion, no jury
could decide in that party’s favor.” Watters v. City of
Philadelphia, 55 F.3d 886, 891 (3d Cir. 1995) (citation and
internal quotation marks omitted).
I. I. Sufficiency of Evidence Supporting Woodson's
Retaliation Claim
A. Introduction
Section 704(a) of Title VII forbids an employer from
discriminating against an employee “because he has opposed any
practice made an unlawful employment practice by this subchapter,
or because he has made a charge, testified, assisted, or
participated in any manner in an investigation . . . under this
subchapter.” 42 U.S.C. § 2000e-3(a). It is similarly unlawful
under § 5(d) of the PHRA for an employer “to discriminate in any
manner against any individual because such individual has opposed
11
any practice forbidden by this act, or because such individual
has made a charge . . . under this act.” 43 Pa. C.S. § 955(d).
The allocation of the burden of proof for both the federal
and state retaliation claims follows the familiar Title VII
standards. Griffiths, 988 F.2d at 468; Waddell v. Small Tube
Products, Inc., 799 F.2d 69, 73 (3d Cir. 1986). These standards
will vary depending on whether the suit is characterized as a
“pretext” suit or a “mixed motives” suit. For Woodson’s
retaliation claim, which has proceeded under a “pretext” theory,
the standards have been laid out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), Texas Department of Community Affairs
v. Burdine, 450 U.S. 248 (1981), and St. Mary’s Honor Center v.
Hicks, 113 S. Ct. 2742 (1993).
The plaintiff first must establish a prima facie case of
retaliation: he 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. Quiroga
v. Hasbro, Inc., 934 F.2d 497, 501 (3d Cir. 1991); Jalil v. Avdel
Corp., 873 F.2d 701, 708 (3d Cir. 1989).2 The issue here
2
If the plaintiff succeeds, the burden of production shifts
to the defendant to “articulate some legitimate,
nondiscriminatory reason” for its actions. McDonnell Douglas,
411 U.S. at 802; Burdine, 450 U.S. at 252-55; Fuentes v. Perskie,
32 F.3d 759, 763 (3d Cir. 1994). The defendant’s burden at this
stage is relatively light: it is satisfied if the defendant
articulates any legitimate reason for the discharge; the
defendant need not prove that the articulated reason actually
motivated the discharge. Fuentes, 32 F.3d at 763. At this
point, the presumption of discrimination drops from the case.
Id. To prevail at trial, the plaintiff must convince the
factfinder “both that the reason was false, and that
discrimination was the real reason.” Hicks, 113 S. Ct. at 2748;
12
concerns whether Woodson has presented sufficient evidence from
which a jury could reasonably find a prima facie case of
retaliation.
Scott concedes that the evidence presented at trial was
sufficient to satisfy two of the three components of the prima
facie case: Woodson engaged in protected activity -- the filing
of race discrimination charges with the EEOC and the PHRC -- and
he was discharged after he engaged in that activity. Scott
contends, however, that the record is devoid of evidence from
which a reasonable jury could find the requisite causal link
between the protected activity and his eventual discharge.
Our cases have established that temporal proximity between
the protected activity and the termination is sufficient to
establish a causal link. See, e.g., Jalil, 873 F.2d at 708. We
have also held that the “mere passage of time is not legally
conclusive proof against retaliation.” Robinson v. SEPTA, 982
F.2d 892, 894 (3d Cir. 1993); see also Kachmar v. SunGard Data
Systems, Inc., ___ F.3d ___, 1997 WL 135897 (3d Cir. 1997); Aman
v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir.
1996). In the Robinson case, almost two years passed between the
protected activity and Robinson’s discharge. However, the
district court found that SEPTA had subjected Robinson to a
see also id. at 2754 (“It is not enough . . . to disbelieve the
employer; the factfinder must believe the plaintiff’s explanation
of intentional discrimination.”). This burden may be met in a
variety of ways. See Fuentes, 32 F.3d at 764-65; Sheridan v.
E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996) (en
banc). In the end, the burden of proof remains with the
plaintiff.
13
pattern of harassment during that time period. We therefore held
that there was sufficient evidence supporting a causal link: “The
temporal proximity noted in other cases is missing here and we
might be hard pressed to uphold the trial judge’s finding were it
not for the intervening pattern of antagonism that SEPTA
demonstrated.” Robinson, 982 F.2d at 895; see also id. (“The
court could reasonably find that the initial series of events
thus caused Robinson’s and SEPTA’s relationship to deteriorate,
and set a pattern of behavior that SEPTA followed in retaliating
against Robinson’s later efforts at opposing the Title VII
violations he perceived.”). Thus, a plaintiff can establish a
link between his or her protected behavior and subsequent
discharge if the employer engaged in a pattern of antagonism in
the intervening period.3
Scott correctly points out that the protected activity
Woodson engaged in--filing complaints with the PHRC and EEOC in
November 1989 and February 1990--is temporally remote from
Woodson’s termination in January 1992. Thus, the argument
continues, Woodson can prevail only if a reasonable jury could
find that Scott engaged in a “pattern of antagonism” in the
period between his administrative complaints and his firing.
Scott contends that, even viewing the evidence in the light most
favorable to Woodson, the evidence does not support a finding of
3
Because we conclude that the evidence is sufficient to
establish a pattern of antagonistic behavior linking the
discrimination complaints and Woodson’s discharge, we need not
consider whether other types of evidence might also support a
causal link finding in the absence of temporal proximity.
14
a pattern of antagonistic behavior against Woodson that would
allow Woodson to prevail on the causal link prong. Rather,
according to Scott, the evidence points only to the conclusion
that Woodson was terminated in a company-wide cost reduction
program nearly two years after he filed his discrimination
complaints and after Scott had already promoted him to the
position he sought when he filed those complaints. Under such
circumstances, Scott submits, no reasonable jury could find a
causal link between Woodson’s discrimination complaints and his
discharge.
Woodson, in response, contends that the evidence is clearly
sufficient to support a finding by a reasonable jury that between
February 1990, when he filed the second of his administrative
complaints, and his termination in 1992, Scott engaged in a
pattern of retaliation against him. This pattern is said to
include Scott’s "setting Woodson up to fail" by hiring him as a
product system leader in the poorly performing napkin division
and then refusing to provide him with adequate resources; Scott's
failure to respond appropriately to racist graffiti in its plant;
and Scott's termination of Woodson pursuant to a “sham” ranking
process performed by individuals who were not familiar with his
employment record, but only with his charges of discrimination.
For the reasons that follow, we agree with Woodson that,
viewing the evidence in the light most favorable to him, the
district court did not err in finding the evidence sufficient to
support a causal link between Woodson’s administrative complaints
and his discharge. While each piece of evidence alone is not
15
sufficient to support an inference of a pattern of antagonistic
behavior, taken together the evidence is sufficient. Thus, while
we will discuss each piece of evidence, and Scott’s objections to
them, in turn, we must determine whether the evidence is
sufficient based on the whole picture. Cf. Andrews v. City of
Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990) (“A play cannot
be understood on the basis of some of its scenes but only on its
entire performance, and similarly, a discrimination analysis must
concentrate not on individual incidents, but on the overall
scenario.”). We also keep in mind, recognizing that much of the
record is comprised of trial testimony, that the jury had “the
unique opportunity to judge the credibility and demeanor” of the
witnesses who testified at the trial, and that it reached its
conclusions based in part on those observations. Quiroga, 934
F.2d at 502.
B. Evidentiary Review and Analysis
After Woodson had filed his first administrative complaint,
he received his 1989 performance evaluation which suggested that
he work with an outside consultant to improve his “perception by
superiors.” The district court apparently believed that “this
recommendation, appearing in a formal written evaluation, was a
response to his perception of racial animus among his superiors.”
898 F. Supp. at 303. Scott objects to the district court’s
reliance on this recommendation because Zohlman, the human
resources director, had suggested in a conversation with Woodson
in May or June 1989, before Woodson had filed his first
complaint, that he consult a behavioral psychologist to improve
16
his working relationships. Thus, according to Scott, the
recommendation in the performance evaluation is not probative of
retaliatory animus because the same recommendation was made to
Woodson before he filed the discrimination complaint. While
Woodson acknowledged that the conversation with Zohlman took
place, and Scott’s argument has considerable force, it is not
conclusive, as it is clear to us that a jury could rely on the
written performance evaluation to find a pattern of antagonism.
More specifically, the jury was entitled to conclude (if it
wished) that the recommendation was made “official” when it was
included in the written evaluation, which was used to determine
promotions and salary, and that this was done in response to
Woodson’s complaints to the PHRC and EEOC.
Woodson also points to the fact that, soon after he was
promoted, Zohlman suggested, during the course of a
“congratulatory” phone call, that Woodson drop the administrative
complaints against Scott. Woodson refused to do so. Pointing
out that Zohlman did not participate in Woodson’s ranking, Scott
contends that this statement is irrelevant as a matter of law
because it was a stray remark made by a non-decisionmaker. The
record at trial, however, showed that Zohlman designed the
ranking procedures and presented the results of the forced
ranking, along with Wadsworth, to the Corporate Review Committee.
He participated in the process through which Woodson was fired
to such an extent that we cannot say that he was “outside the
chain of decisionmakers who had the authority to hire and fire
plaintiff,” Gomez v. Allegheny Health Serv., Inc., 71 F.3d 1079,
17
1085 (3d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996), which
is our standard for determining whether statements are “stray
remarks.” But even if Zohlman’s statement was a mere stray
remark, it can constitute evidence of the atmosphere in which the
forced ranking was carried out, and would, therefore, be relevant
to the question whether Scott retaliated against Woodson after he
filed his discrimination complaints. See Antol v. Perry, 82 F.3d
1291, 1302 (3d Cir. 1996).4
The district court also noted that “[w]hen plaintiff was
eventually promoted in 1990, after a number of requests, it was
to lead the poorest performing division. He was paid at a lower
level than similarly situated colleagues and denied adequate
staffing and management support.” 898 F. Supp. at 303 (citations
omitted). We acknowledge that management has the clear right to
assign its employees to positions where they can contribute most
effectively to the firm’s profitability, but we must agree with
the district court that Woodson’s assignment to this division,
and the treatment just described, could at least support an
inference by the jury that Scott responded to his discrimination
complaints by granting him a promotion, but setting him up to
fail in his new position.5
4
The same is true with respect to James Peiffer, Woodson’s
direct supervisor. Scott contends that evidence involving
Peiffer, which we will discuss below, is irrelevant as a matter
of law to this case because it points at most to Peiffer’s
retaliatory animus, and Peiffer was not involved in the ranking
process through which Woodson was fired. We reject this
contention for the reasons explained in the text.
5
Scott contends that these are unsupported factual
allegations because the district court cited to exhibits that
were not admitted into evidence at trial (although they were
18
We have held that “an atmosphere of condoned [racial]
harassment in a workplace increases the likelihood of retaliation
for complaints in individual cases.” Glass v. Philadelphia Elec.
Co., 34 F.3d 188, 195 (3d Cir. 1994) (internal quotation marks
omitted); Aman, 85 F.3d at 1086. In other words, evidence of
condoned harassment can support an inference by the fact-finder
that the employee, having failed to respond to the harassment,
also engaged in retaliatory conduct against the plaintiff. This
precept is germane in view of the testimony that, in June or July
of 1991, racist graffiti appeared on the wall of the men’s
bathroom in the Chester plant, coupled with Woodson’s evidence
that the company’s response to the incident was inadequate. The
jury was entitled to consider these factors when deciding whether
Woodson’s termination was in retaliation for his complaints.
Later that year, Woodson applied for an important promotion,
which he did not receive. While this may not prove much by
itself, in conjunction with the other facts it could have been
taken into account by the jury in finding a pattern of
antagonism.
premarked as exhibits and used during the cross-examination of
Robert Desisto). Even if these exhibits were not before the
jury, however, there was ample testimony that supports the same
inference. Woodson testified about the problems with staffing in
his division as well as the fact that the division was a poor
performer. Czepiel testified that it “was the weakest product
system . . . that we had in the company.” Moreover, Robert
Desisto, who was ultimately assigned to Woodson’s division in
October 1991, testified on cross-examination about the exhibits
that the district court cited. Even though they were not
admitted, the contents of those exhibits -- Woodson’s repeated
requests for more staff as well as his belief that he
was being set up for failure -- were discussed during the course
of the testimony, and were, therefore, before the jury.
19
Testimony about the process by which Woodson was fired also
was probative of a causal link between his discrimination
complaints and his termination. First, two of the three company
officials who ranked the product system leader work group,
Wadsworth and Czepiel, admitted that they were aware that Woodson
had filed discrimination complaints when they ranked him.6
Second, Zohlman and Peiffer were also aware of Woodson’s
discrimination charges when the ranking was carried out.
Although neither participated directly in the ranking process,
Zohlman designed the process and provided human relations support
to the rankers and Peiffer was Woodson’s direct supervisor at the
Chester plant.7 As we explained above, even if they were not
directly evaluating Woodson in the process, their testimony is
probative of the environment in which the employment decision was
made.
Moreover, two of the evaluators, Wadsworth and Goldberg,
admitted that they had little first-hand knowledge of Woodson’s
past performance record and that they did not review his
personnel file in making their evaluations. Hence, they were
6
Scott challenges the district court’s reliance on this
testimony on the ground that knowledge of the discrimination
complaints by the decisionmakers cannot in and of itself support
an inference of retaliation. While that is correct,
decisionmakers’ knowledge, taken together with other evidence,
can support such an inference.
7
The district court erred in suggesting that Peiffer and
Zohlman “discussed these rankings with the evaluators during the
ranking process.” 898 F. Supp. at 303. At least, we have found
no support for this statement in the record, nor has Woodson
pointed us to any. Nevertheless, the jury was entitled to
consider Peiffer’s and Zohlman’s testimony that they knew of the
discrimination charges.
20
unaware of Woodson’s consistently high performance reviews during
his tenure at the Chester plant. Such testimony would provide
support for Woodson’s contention that the ranking process was a
“sham,” as he was evaluated by managers who knew of the
discrimination complaints but not of his past performance at the
plant. The third evaluator, Czepiel, stated in his affidavit
that he considered Woodson a “borderline insubordinate” in his
rejection of certain cultural changes that Scott was trying to
implement. The district court noted that the jury may have
concluded that what Woodson’s superiors considered to be the
“ultimate act of insubordination” was his filing of
administrative (discrimination) charges. 898 F. Supp. at 304.
We believe that the jury could have reasonably drawn such an
inference.
In addition, the discrepancies between Woodson’s ranking and
his past performance evaluations were not presented to the
Corporate Review Committee, as they should have been under the
reorganization plan. Scott contends that this is not probative
of a causal link because all of the employees who were evaluated
during the reorganization were subjected to the same process--
their performance evaluations were not considered by either the
initial evaluators or the Corporate Review Committee. Woodson,
however, need not have been treated differently during the
reorganization process for the jury to conclude that a causal
link existed between his complaints and his termination. Under
the facts described above, the decision to terminate Woodson may
have been related to his discrimination complaints even if there
21
was no disparate treatment with respect to the process by which
he was fired.
Finally, a confidential “work shedding” memorandum, which
was prepared by Peiffer, recommended eliminating Woodson’s job,
but predicted that “an emotional reaction from [Woodson] could
result in an age/race discrimination claim.” The record shows
that the “work shedding” process, in which the plant managers
were involved, was part of the overall reorganization effort, but
was unrelated to the ranking carried out by Wadsworth, Czepiel,
and Goldberg. This memorandum was drafted on December 17, 1991,
and was provided to the evaluation team and to Zohlman after the
ranking was completed, but before the recommendations were
presented to the Corporate Review Committee.8 Scott, therefore,
contends that this memo is not probative of retaliation because
there is no evidence that actually links the memo to the decision
to fire Woodson.
Although there was no testimony at trial that this
memorandum actually affected the decision to fire Woodson, it too
would have been probative of the environment in which the
employment decision was made. It also suggests that Woodson’s
superiors were keenly aware of the discrimination complaints that
Woodson had lodged against the company. The jury could have
drawn many conclusions from this evidence, but we agree with the
district court that “[t]hese predictions could reasonably have
8
The district court’s comment that this memorandum was
provided to the assessment team prior to the “final” decision
about Woodson’s job is technically correct.
22
been interpreted by the jury as warnings based on the previously
filed discrimination charges--warnings that went unheeded.” Id.
at 303.
Although the question is very close, we conclude that the
evidence presented at trial, when viewed in the light most
favorable to Woodson, is sufficient to support a causal link
between Woodson’s discrimination complaints and his termination.
The jury might reasonably have concluded that Scott engaged in a
pattern of antagonistic behavior against Woodson after his
complaints, setting him up to fail in a poorly performing
division and then terminating him through a “sham” ranking
procedure. Although none of the pieces of evidence that we have
discussed, standing alone, would be sufficient to allow this
inference (especially the “environment” evidence), the evidence
as a whole can be so, particularly when we consider, as we must,
that the verdict may have been based in part on the jurors’
evaluation of each witness’ credibility and demeanor.
III. Pennsylvania Human Relations Act Claim
A. Introduction
We turn next to Scott’s argument that the district court
erred in not entering judgment in Scott’s favor on Woodson’s
retaliation claim under the PHRA.9 According to Scott, Woodson
9
We reject Woodson’s contention that Scott waived this
defense. Although Scott never pleaded this issue as an
affirmative defense, it denied in its answer Woodson’s allegation
that he had exhausted his administrative remedies. Answer ¶ 6.
Moreover, Scott made the same argument in its summary judgment
motion, in its final pre-trial memorandum, and at trial, and also
asked relevant questions in its request for admissions. This was
enough to preserve the defense. We have held that the failure to
assert an affirmative defense in an answer will not result in
23
failed to initiate administrative proceedings as required under
the PHRA because no verified complaint was filed with the PHRC,
and Woodson has admitted as much. If Scott is successful here
and the PHRA claim must be dismissed, Woodson can proceed only
under Title VII. In such event, the verdict, with a few
exceptions, would be subject to the $300,000 damages cap of Title
VII, 42 U.S.C. § 1981a(b)(3), and hence Woodson’s damage recovery
would be reduced significantly.10 If Scott is wrong, Woodson can
proceed under the PHRA and can recover the full amount of the
jury verdict.
To bring suit under the PHRA, a plaintiff must first have
filed an administrative complaint with the PHRC within 180 days
of the alleged act of discrimination. 43 Pa. C.S. §§ 959(a),
962. If a plaintiff fails to file a timely complaint with the
PHRC, then he or she is precluded from judicial remedies under
the PHRA. The Pennsylvania courts have strictly interpreted this
waiver if the opposing party has notice of the defense sufficient
to avoid prejudice. See Charpentier v. Godsil, 937 F.2d 859, 864
(3d Cir. 1991) (“It has been held that a defendant does not waive
an affirmative defense if he raised the issue at a
pragmatically sufficient time, and [the plaintiff] was not
prejudiced in its ability to respond.” (internal quotations
omitted)). For example, in Franklin Life Insurance Co. v.
Bieniek, 312 F.2d 365, 371-72 (3d Cir. 1962), we found that the
defendants’ fraud defense had not been waived, even though it was
not pleaded, because the defendants had raised the issue in their
answer and pre-trial statement.
10
Section 1981a(b)(2) expressly excludes “backpay, interest
on backpay, or any other type of relief authorized under section
706(g) of the Civil Rights Act of 1964” from the definition of
compensatory damages. While backpay would clearly be excluded
from the cap, it is not clear whether future earnings would be as
well, but we need not decide that here. The district court must
do so on remand.
24
requirement, and have repeatedly held that “persons with claims
that are cognizable under the Human Relations Act must avail
themselves of the administrative process of the Commission or be
barred from the judicial remedies authorized in Section 12(c) of
the Act.” Vincent v. Fuller Co., 616 A.2d 969, 974 (Pa. 1992);
see also Fye v. Central Transp. Inc., 409 A.2d 2 (Pa. 1979); Clay
v. Advanced Computer Applications, Inc., 559 A.2d 917 (Pa. 1989);
Richardson v. Miller, 446 F.2d 1247, 1248 (3d Cir. 1971) (“Since
plaintiff failed to file a charge with the respective Commissions
within the appropriate time periods, he is now foreclosed from
pursuing the remedies provided by the Acts.”).
As the Pennsylvania Supreme Court has explained, the
Pennsylvania legislature, recognizing the “invidiousness and the
pervasiveness of the practice of discrimination,” created with
the PHRA “a procedure and an agency specially designed and
equipped to attack this persisting problem and to provide relief
to citizens who have been unjustly injured thereby.” Fye, 409
A.2d at 4. Strictly interpreting the filing requirement of the
PHRA allows the PHRC to use its specialized expertise to attempt
to resolve discrimination claims without the parties resorting to
court.
On July 22, 1992, Woodson filed an administrative charge
with the EEOC alleging the facts supporting the claim now on
appeal. Such filing is a prerequisite for suing on his Title VII
claim, 42 U.S.C. 2000e-5. Woodson, however, did not check the
box on the EEOC charge form indicating that the charge should be
filed with both agencies. Moreover, he signed an acknowledgment
25
on the same day that “I have received a letter advising me of my
right to file a complaint under the Pennsylvania Human Relations
Act. I am aware that I must file with PHRC within 30 days, or
else I will lose those rights to relief under state law
safeguarded by filing under the [PHRA].” Yet Woodson did not
file a complaint with the PHRC, and admitted in response to
Scott’s request for admissions that the EEOC complaint was never
cross-filed by the EEOC with the PHRC.11
Although Woodson never filed a complaint with the PHRC, and
the complaint was never cross-filed with the PHRC, he nonetheless
maintains that he may bring suit under the PHRA. First, he
contends that, pursuant to the worksharing agreement entered into
by the PHRC and the EEOC, Woodson’s claim was “deemed” filed with
the PHRC when he filed his charge with the EEOC. Second, he
argues that, even if the claim was never filed with the PHRC, he
should still be able to proceed with his PHRA retaliation claim
because of representations made by the EEOC to him that it would
file his claim with the PHRC. In this respect, Woodson urges us
to affirm the reasoning of the district court, which permitted
Woodson to recover for retaliation under the PHRA because the
“EEOC’s notice to the plaintiff should be considered an equitable
filing.” 898 F. Supp. at 302. We consider each of Woodson’s
contentions in turn.
11
The request for admission stated: “James W. Woodson did not
file a charge of discrimination with the PHRC based on the acts
alleged in EEOC Charge Number 170921474, and Mr. Woodson’s EEOC
Charge Number 170921474 was not cross-filed with the PHRC.” A92
(Request for Admission No. 16).
26
B. Effect of the Worksharing Agreement
Turning first to Woodson’s worksharing agreement argument,
the PHRC and the EEOC have entered into an agreement through
which they have apportioned initial jurisdiction over
discrimination complaints in order to avoid unnecessary
duplication of investigatory time and effort. Under this
agreement, each agency waives its right to initially review
claims that are first filed with the other agency. Woodson
contends that, pursuant to this worksharing agreement, his charge
was “automatically and simultaneously deemed filed” with the PHRC
as soon as it was filed with the EEOC.
We agree with Scott, however, that the agreement between the
EEOC and the PHRC is relevant only to the issue of whether a
plaintiff has satisfied the administrative exhaustion
requirements of the federal anti-discrimination statutes. That
is because federal courts lack jurisdiction to hear a Title VII
claim, unless the plaintiff has filed a charge with the EEOC.
Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974). A
claimant cannot file a charge with the EEOC in a state, such as
Pennsylvania, that provides an administrative remedy for
employment discrimination, unless the charge has been filed first
with the appropriate state agency and either (1) 60 days have
elapsed; or (2) the state agency has terminated its proceedings.
42 U.S.C. § 2000e-5(c).
Under the worksharing agreement, a claim that is filed first
with the EEOC can be processed by the EEOC, without being
investigated as an initial matter by the PHRC. Through this
27
worksharing agreement, therefore, Pennsylvania has waived its
statutory right to initially process discrimination claims, and
hence this agreement operates to “terminate” the PHRC proceedings
with respect to those complaints that are filed first with the
EEOC. Trevino-Barton v. Pittsburgh Nat’l Bank, 919 F.2d 874, 879
(3d Cir. 1990) (Title VII claim); see also EEOC v. Commercial
Office Products Co., 486 U.S. 107 (1988); Kaimovitz v. Board of
Trustees of the University of Illinois, 951 F.2d 765 (7th Cir.
1991) (ADEA claim). In other words, the worksharing agreement
allows a plaintiff to proceed in court under Title VII without
first filing with the PHRC.12
That, however, does not mean that a plaintiff can initiate
PHRC proceedings as required by the PHRA merely by filing with
12
The worksharing agreement clearly divides responsibility
for processing claims that have been dual-filed with both the
EEOC and the PHRC. That is, if Woodson had filed with the EEOC
and indicated that he wished to cross-file with the PHRC, the
worksharing agreement would have governed the processing of his
claim. But the Pennsylvania courts have ruled that, if the EEOC
transmits the claim to the PHRC, the filing requirement of the
PHRA has been satisfied. The Pennsylvania Superior Court has
held that the verified complaint filing requirement of the PHRA
is satisfied if the EEOC actually transmits the EEOC charge to
the PHRC. See Lukus v. Westinghouse Elec. Corp., 419 A.2d 431(Pa. Super. 1980). In that case, the Superior Court noted that
the EEOC charge satisfied the pleading requirements of 43 Pa.
C.S. § 959, and moreover, that the PHRC treated the EEOC charge
as capable of triggering PHRC action since it notified the EEOC
that it was terminating its investigation of plaintiff’s
complaint. Id. at 452-53. The Pennsylvania Supreme Court has
cited Lukus, in dicta, for the proposition that the PHRA filing
requirement is satisfied if the EEOC forwards a charge to the
PHRC. Vincent v. Fuller Co., 616 A.2d 969, 971 (Pa. 1992). In
this regard, we note that Woodson’s case would be quite different
if he had marked the box for the EEOC to cross-file and the EEOC
had failed to transmit the charge because of a breakdown in the
administrative system. As that case is not before us, however,
we do not decide it here.
28
the EEOC.13 Whether a plaintiff has initiated PHRC proceedings
under the PHRA is a state law issue. The worksharing agreement
says nothing about whether a plaintiff has invoked PHRC
procedures if the PHRC has never received his or her claim, nor
could it, given that the Pennsylvania Supreme Court held in Fye
v. Central Transportation Inc., 409 A.2d 2 (Pa. 1979), that EEOC
procedures are not a sufficient surrogate for PHRC remedies.
In the Fye case, the plaintiff had initially filed a
complaint with the PHRC, but had requested that the PHRC
terminate its investigation and defer to pending EEOC proceedings
regarding the same conduct.14 The plaintiff sought equitable
13
As Woodson points out, cases from other circuits have
suggested that, under worksharing agreements between the EEOC and
other state agencies, filing with the EEOC can operate to
initiate proceedings in the state agency. See, e.g., EEOC v.
Green, 76 F.3d 19 (1st Cir. 1996); Griffin v. City of Dallas, 26
F.3d 610, 612-13 (5th Cir. 1994) (holding that, under the terms
of the agreement between the EEOC and the Texas state agency, the
filing of a charge with the EEOC instituted state proceedings
within the meaning of § 706(e)(1) of the Civil Rights Act); Hong
v. Children’s Memorial Hosp., 936 F.2d 967, 970-71 (7th Cir.
1991) (holding that “workshare agreement can alone effect both
initiation and termination of state proceedings and that, as a
result, plaintiffs may file with the EEOC without first filing
with the [state agency]”). In these cases, however, the issue
was whether the claimant had properly satisfied the exhaustion
requirements of Title VII, not whether a worksharing agreement
can operate to initiate state proceedings such that the
requirements of the state anti-discrimination laws can be
satisfied. For example, in Green, the issue was whether the
claimant had initiated proceedings with the state agency such
that she had up to 300 days after the allegedly discriminatory
act, rather than 180 days, to file a charge with the EEOC under §
706(e)(1) of Title VII.
14
Woodson suggests that Fye should not guide our inquiry
because it was decided before the “applicable and controlling”
worksharing agreement was entered into. Woodson, however, does
not make any contention that the worksharing agreement in effect
when Fye was decided was any different from the agreement at
issue in this case, nor is there any support in the record for
such a contention. Moreover, whether Woodson has exhausted his
29
relief for gender discrimination, and the question was whether
her initial resort to the administrative procedures of the PHRA
without exhausting them precluded filing suit. The plaintiff
contended that “since the role of the agency was carried out,
albeit not by the designated agency but by the Equal Opportunity
Employment Commission, we should recognize substantial compliance
with the statutory scheme and allow the court of common pleas to
take jurisdiction under the circumstances.” Id. at 5.
The Pennsylvania Supreme Court rejected this argument on the
ground that the statute clearly required that she exhaust state
administrative procedures before filing suit: “If the General
Assembly wished to permit the substitution of agencies in its
legislative scheme, it could easily have provided for that
result. It declined to do so and it is beyond our powers to
ignore that judgment absent some showing of a constitutional
infringement.” Id. Although Fye is not directly on point--it
deals with whether a completed EEOC investigation can substitute
for full resort to PHRC procedures--we predict that the
Pennsylvania Supreme Court would hold that filing with the EEOC
does not function as a filing for PHRA purposes. See also Clay,
559 A.2d at 919 (“The use by the legislature of the word ‘shall,’
as opposed to ‘may,’ expresses an intent to make administrative
procedures under the PHRA a mandatory rather than discretionary
means of enforcing the right created thereby.”).
Thus, evidence of the worksharing agreement alone cannot
PHRA remedies is a question of state law, and is not controlled
by the worksharing agreement.
30
serve to show that Woodson invoked the Pennsylvania state
administrative remedy as required by the PHRA.15 This holding is
consistent with the result reached by the district courts of this
Circuit that have considered this issue. See, e.g., Parsons v.
City of Philadelphia, 833 F. Supp. 1108, 1114 (E.D. Pa. 1993).
As a general matter, therefore, if the PHRC does not receive a
complainant’s claim, then that complainant cannot bring suit
under the PHRA.
C. Equitable Filing
Woodson has admitted that the PHRC never actually received
his complaint. This case is complicated, however, by the fact
that there is evidence of a letter from the EEOC to him that
states: “You should be aware that the Commission will provide a
copy of your charge to the below listed agency in accordance with
15
We note that Kedra v. Nazareth Hospital, 857 F. Supp. 430(E.D. Pa. 1994), on which Woodson relies, is not to the contrary.
In that case, the plaintiff filed a discrimination charge with
the Philadelphia Commission on Human Relations (PhilaCHR), and
the EEOC was informed of the claim pursuant to a worksharing
agreement between the PhilaCHR and the EEOC. Kedra did not,
however, file a complaint with the PHRC. The question there was
whether “filing a charge with the Philadelphia Commission on
Human Relations is tantamount to a filing with the Pennsylvania
Human Relations Commission.” Id. at 432. The court predicted
that the Pennsylvania Supreme Court would hold that filing with
the PhilaCHR constitutes compliance with the PHRA because of the
PhilaCHR’s statutory obligation to notify the PHRC of the
complaints filed with it. In so holding, the court explicitly
noted that it did not reach the plaintiff’s contention that the
worksharing agreement between the EEOC and the PHRC operated to
satisfy the administrative exhaustion requirement of the PHRA.
In fact, that court acknowledged the Fye statement that the
Pennsylvania legislature could have provided for the substitution
of agencies if it so wished, and distinguished a filing with the
EEOC from a filing with the PhilaCHR because “the Pennsylvania
General Assembly explicitly contemplated that complainants could
file with local commissions and that the local commissions would,
in turn, notify Pa.HRC of those filings.” Id. at 433 n.6.
31
our procedures.” The PHRC is the agency listed at the bottom of
the paragraph. This letter is dated July 29, 1992, one week
after Woodson signed the acknowledgment that he must file with
the PHRC or lose any available state remedies. We must, then,
reach Woodson’s second contention, that even if the worksharing
agreement does not permit a complainant to satisfy the filing
requirement of the PHRA by filing a claim with the EEOC only,
Woodson is entitled to recover under his PHRA claim in this case
because of these representations made by the EEOC. To reach this
issue, we must make two separate predictions about Pennsylvania
law: first, whether the Pennsylvania Supreme Court would hold
that the PHRA filing requirement could be satisfied based on some
notion of “equitable filing,” and second, even if it would,
whether that court would allow Woodson to proceed under the PHRA
based on this theory.
It is not clear whether the Pennsylvania Supreme Court would
adopt an equitable filing doctrine. As we explained above, the
Pennsylvania Supreme Court has strictly enforced the PHRA filing
requirement in many cases. In predicting that the Pennsylvania
Supreme Court would adopt an equitable filing doctrine, the
district court failed to recognize this. The district court only
noted language from the PHRA that the “provisions of this act
shall be construed liberally for the accomplishment of the
purposes thereof.” 43 Pa. C.S. 962(a). The court cited, but
ultimately chose to ignore, language from Fye, in which the
Pennsylvania Supreme Court cautioned that a “liberal construction
for the accomplishment of the purposes of the act is not
32
synonymous with a relaxation of the rule of exclusivity for the
benefit of a complainant.” Fye, 409 A.2d at 5.
We conclude that the district court erred in failing to give
enough weight to Fye and the other Pennsylvania Supreme Court
cases that have strictly adhered to the filing requirement of the
PHRA. We are not, however, convinced that the Pennsylvania
Supreme Court would refuse to apply equitable principles to
excuse from the PHRA filing requirement a plaintiff who has been
informed by the EEOC that the EEOC will forward a copy of the
charge to the PHRC and who relies on that representation in not
filing directly with the PHRC. This is particularly so because
the Pennsylvania Supreme Court has suggested that the PHRA is in
fact satisfied if the EEOC forwards the charge to the PHRC. See
supra note 12. The question is close, with significant arguments
on both sides that we detail in the margin.16
16
Scott maintains that the Pennsylvania Supreme Court cases
are clear that the PHRA exhaustion requirement is a strict one
and that only the Pennsylvania legislature can amend the PHRA to
introduce equitable principles into the filing requirement. In
fact, the Pennsylvania General Assembly recently amended the PHRA
to permit the application of equitable principles with respect to
the time requirements for filing a complaint. The PHRA now
provides that the “time limits for filing under any complaint or
other pleading under this act shall be subject to waiver,
estoppel and equitable tolling.” 43 Pa. C.S. § 962(e). Scott
contends that the legislature could have extended equitable
principles to cases in which a plaintiff has not filed with the
PHRC, but it chose not to.
On the other hand, Woodson points out that in no case in
which the PHRA filing requirement has been strictly enforced has
the EEOC represented to the plaintiff that it would file the
complaint with the PHRC. Moreover, the district court relied on
several cases in which courts have applied equitable notions to
excuse the failure of the plaintiff to comply with the
administrative exhaustion requirement. For example, in Hicks v.
ABT Assoc., Inc., 572 F.2d 960 (3d Cir. 1978), this Court
permitted a plaintiff to proceed under Title VII where the
plaintiff’s failure to file a charge resulted from the EEOC’s
33
Fortunately, however, we need not reach that issue, as it is
clear to us that Woodson would not be entitled to proceed under
the PHRA even if the Pennsylvania Supreme Court would permit the
application of equitable principles. That is because there is no
evidence that would support Woodson’s contention that he should
be excused for his failure to file, or cross-file, with the PHRC.
First, Woodson had already retained counsel prior to the filing
of his charge with the EEOC in July 1992. Second, Woodson had
filed two prior discrimination complaints with the PHRC, and his
testimony reveals that he knew of the cross-filing mechanism, as
well as the requirement that he file with the PHRC. A944,950
(“[I]n this case I went first to EEOC and found out that you also
have to go initially to the State of Pennsylvania Commission of
failure to comply with its statutory or regulatory obligations
under the theory that a plaintiff should not be punished for the
behavior of the EEOC. Woodson also points us to cases in which
courts have allowed plaintiffs, under certain circumstances, who
failed to comply with the applicable filing deadlines under Title
VII to proceed with their claims under the doctrine of equitable
tolling. See, e.g., Zipes v. TWA, Inc., 455 U.S. 385, 102 S. Ct.
1127 (1982); Anderson v. Unisys Corp., 47 F.3d 302 (8th Cir.),
cert. denied, 116 S. Ct. 299 (1995).
It is not clear, however, that the cases cited by the
district court and by Woodson are relevant to the case at bar.
Most significantly, the cases mentioned above concern the federal
anti-discrimination laws. Woodson has not cited to any
indication by the Pennsylvania Supreme Court that the PHRA filing
requirement would be applied flexibly where the plaintiff’s
failure to satisfy the requirement resulted from the EEOC’s
failure to forward the charge as promised. Moreover, while the
timing requirements of the federal anti-discrimination laws have
been held to be a procedural requirement rather than a
jurisdictional limitation, it may well be that the filing
requirement of the PHRA is a jurisdictional limitation, and
hence, would not be subject to equitable principles. As noted
above, we leave this complicated problem to another day.
34
Human Relations as a first base.”).
Moreover, on July 22, 1992, the day he filed his charge with
the EEOC and failed to check the box on the charge indicating
that he wanted his charge cross-filed with the PHRC, Woodson
signed the acknowledgment that he was aware of the filing
requirements under the PHRA. Thus, the record is clear that he
knew of his obligations under the PHRA and simply failed to
comply, which would make him ineligible for application of
equitable principles.
Additionally, there is no evidence in the record that
Woodson received or even knew about the letter dated July 29,
1992 from the EEOC indicating that it would file the charge with
the PHRC. Finally and most importantly, there is no record
evidence that Woodson relied on this representation in choosing
to forgo filing a PHRC complaint. Therefore, the district court
erred in concluding that the evidence showed that Woodson
intended that a complaint be filed with the PHRC. Under these
circumstances, we could not conclude that Woodson’s failure to
file a complaint with the PHRC is excusable even if we were to
predict that the Supreme Court of Pennsylvania would apply
equitable principles to the filing requirement.
For the foregoing reasons, the judgment of the district
court will be reversed in part, and the district court will be
directed to enter judgment in Scott’s favor on Woodson’s PHRA
claim.
IV. The Jury Instructions
35
Scott also claims that the jury instructions were in error
in two separate respects, and that we should remand for a new
trial. We generally review jury instructions for abuse of
discretion to determine whether they are misleading or
inadequate. However, when the question is whether the
instructions misstate the law, our review is plenary. Savarese
v. Agress, 883 F.2d 1194, 1202 (3d Cir. 1989). We review each of
Scott’s contentions in turn.
A. “Direct Evidence” Instruction
We turn first to Scott’s contention that the district court
erred in instructing the jury with regard to the racist graffiti
that appeared on a wall of the men’s bathroom in the Chester
plant in June or July of 1991. This charge read as follows:
There was evidence of race-biased graffiti in a bathroom at the
Chester plant. An employer that permits such graffiti to
exist may be held responsible for the racial bias conveyed
by it if it condones the graffiti or acquiesces in it.
All of the facts and circumstances, including the employer’s
reaction, the steps, if any, taken by the employer to
counteract the graffiti and what was reasonably required
given the nature of the racial provocation, should be
considered in deciding whether the employer’s alleged lack
of appropriate response bears on its racial attitude. In
other words, it is direct evidence of the employer’s intent
to discriminate.
Scott contends that the district court erred in instructing the
jury that the racist graffiti incident can constitute “direct
evidence” of Scott’s retaliatory intent.17 While we do not
17
Throughout this discussion, we refer to the “direct
evidence” charge in terms of its relevance to the determination
whether Scott fired Woodson with retaliatory animus, since the
jury found against Woodson on the race discrimination claim. The
charge itself refers only to discriminatory animus. However, the
court instructed the jury on both claims jointly, and the
reference to “discriminatory” animus accordingly describes both
claims.
36
necessarily agree with Scott’s argument, for the reasons that
follow, we conclude that the district court erred in so
instructing the jury.
We begin by noting that Scott’s response to the graffiti
incident is relevant to the question whether Scott acted with
retaliatory intent. We have held on many occasions that an
“atmosphere of condoned [racial] harassment in a workplace
increases the likelihood of retaliation for complaints in
individual cases.” Glass v. Philadelphia Elec. Co., 34 F.3d 188,
195 (3d Cir. 1994) (internal quotation marks omitted); Aman v.
Cort Furniture Rental Corp., 85 F.3d 1074, 1086 (3d Cir. 1996).
Accordingly, we reject Scott’s objection to the instruction on
the ground that Woodson has shown no evidence connecting the
graffiti to his employment with Scott or Scott’s decision to fire
him. The adequacy of Scott’s response to the graffiti is clearly
relevant to whether Scott had the requisite intent to be held
liable for retaliation, even if the graffiti itself was never
specifically linked to Woodson. Turning to the instruction
itself, we find it, when considered as a whole, to be misleading
to the lay juror on several levels and, therefore, prejudicial to
Scott.
First, the instruction might have suggested to a juror that
the existence of the racist graffiti itself, rather than Scott’s
response to the graffiti, can constitute evidence of retaliatory
intent. The relevant portion of the charge begins: “There was
evidence of race-biased graffiti in a bathroom at the Chester
plant.” While the charge then goes on to inform the jury that
37
the adequacy of Scott’s response is relevant to the issue of
retaliatory animus, this aspect of the charge concludes with: “In
other words, it is direct evidence of the employer’s intent to
discriminate.” (emphasis added).
Although the charge as written was doubtless intended to
refer only to Scott’s response to the graffiti, and while that
may be the fairest reading, we cannot gainsay that the
instruction could have given a lay juror the impression that the
graffiti itself could serve as evidence of Scott’s retaliatory
animus. In this respect, we highlight the fact that the last
sentence of the charge concludes that “it” would be relevant to
the question of discriminatory intent, without clearly specifying
what “it” refers to. This could clearly lead a juror to infer
that the racist graffiti itself was the “it” and to factor the
graffiti itself into the consideration of whether Scott
impermissibly retaliated against Woodson. Suggesting to the jury
a connection between the graffiti itself and Scott would clearly
be impermissible, as well as prejudicial to Scott, as there was
no evidence whatsoever linking Scott or any of its decisionmakers
to the graffiti.
Second, the district court erred in instructing the jury
that Scott’s response to the graffiti could constitute “direct”
evidence of retaliatory intent for two related reasons. First,
as we see it, the adequacy of Scott’s response to the graffiti
incident is only circumstantial rather than direct evidence of
Scott’s discriminatory animus. Direct evidence is evidence “that
proves an ultimate fact in the case without any process of
38
inference, save . . . the inferences of credibility.” 22 Charles
Alan Wright & Kenneth W. Graham, Jr., Federal Practice and
Procedure § 5214, at 265 (1978). In contrast, circumstantial
evidence is offered to prove an ultimate fact, but an inferential
step by the factfinder is required to reach that fact.
It seems clear to us that, even if the charge pointed only
to Scott’s response to the graffiti, this incident can be only
circumstantial, rather than direct, evidence of Scott’s intent
when it fired Woodson. If the evidence showed that Scott’s
response to the graffiti incident was inadequate, the factfinder
would still be an inferential leap away from concluding that this
was evidence of Scott’s retaliatory attitude.18
Moreover, later in the charge, the court defined direct
evidence as “evidence given by a witness as to a fact which the
witness has observed or perceived. An example would be an
eyewitness.” Even if the description of the graffiti incident as
“direct” evidence alone would not have confused or prejudiced the
jury, the charge is clearly misleading when considered in
conjunction with the court’s later definition of “direct”
evidence. The court’s instruction could have led a juror to
equate evidence of the graffiti incident with eyewitness
testimony, which quite likely would have caused a juror to accord
too much weight to the graffiti evidence.
18
This conclusion is supported by our decision in Josey v.
John R. Hollingsworth Corp., 996 F.2d 632, 641 (3d Cir. 1993), in
which we noted that a “court may consider as circumstantial
evidence the atmosphere in which the company made its employment
decisions.”
39
These errors were amplified by the fact that the racist
graffiti incident was the only specific piece of evidence that
the district court mentioned in the charge. This might have
indicated to the jury that the graffiti incident, or the
company’s response to it, was somehow particularly important, and
might have compelled an individual member of the jury to give
this portion of the evidence more weight in his or her
deliberations. This is a problem in its own right, for jurors
should be free to weigh the evidence as they see fit. Moreover,
by highlighting the graffiti incident in the charge, the district
court might have called additional attention to the errors that
we have explained above. As we have explained, a juror could
have come away from the jury charge with the impermissible
impression that the graffiti itself was direct evidence of
retaliatory animus. Because the “direct evidence” instruction
plays such a prominent role in the jury charge, suggesting to a
juror that this particular evidence should be given significant
weight in his or her deliberations, the errors in the instruction
might have been magnified. Thus, the suggestion that the
graffiti itself was direct evidence of Scott’s retaliatory
intent, coupled with the fact that the graffiti incident was
highlighted in the instruction, might have worked significant
prejudice against Scott.
For the foregoing reasons, we conclude that the district
court’s “direct evidence” charge was inconsistent with the
exercise of sound discretion. We reject Woodson’s rejoinder that
any error in the instruction is harmless because the instruction
40
deals only with the discrimination claim, and not the retaliation
claim. According to Woodson, the charge does not address
retaliatory intent in any way, nor does it connect the graffiti
incident to the retaliation claim, and hence, it could not have
confused the jury with respect to the retaliation claim. The
district court rejected this contention on the ground that, given
the factual context, it is impossible to separate the race
discrimination claim from the retaliation claim. We agree. The
district court instructed the jury with respect to the
discrimination and retaliation claims jointly, and did not at any
point distinguish between the two claims. As we see it, the jury
would have assumed that the charge referred to both claims, even
though this portion of the charge refers specifically only to
Scott’s “racial attitude” and “intent to discriminate.”
In a more general sense, we cannot hold the error to be
harmless. Under our standard of harmless error in civil cases,
see McQueeney v. Wilmington Trust Co., 779 F.2d 916, 917 (3d Cir.
1985), we cannot say that there is a high probability that the
error did not affect the outcome of the case. We must,
therefore, reverse the judgment and remand for a new trial on the
retaliation claim.
B. Motivating Factor v. Determinative Effect
Scott’s next contention on appeal is that the district court
erred in instructing the jury that it could hold Scott liable
under Title VII and the PHRA for retaliation if Woodson’s filing
of complaints with the EEOC and the PHRC was a “motivating
41
factor” in the decision to discharge him.19 Scott argues that the
jury should have been instructed, under Griffiths v. CIGNA Corp.,
988 F.2d 457, 472 (3d Cir. 1993), and Miller v CIGNA Corp., 47
F.3d 586, 595 (3d Cir. 1995) (en banc), that, to find Scott
liable, retaliatory animus must also have had a “determinative
effect” on Woodson’s termination.
We agree that Third Circuit precedent requires a district
court to instruct the jury that it can hold a defendant liable
only if the prohibited activity had a determinative effect on the
decision to terminate the plaintiff.20 In Griffiths, we ordered a
new trial in a retaliation case proceeding under a pretext theory
where the district court had erroneously instructed the jury that
it need find only that an impermissible factor was a “motivating
factor” to find for the plaintiff. We held that, while after
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a motivating
19
The instruction read in part:
He need not prove that his race or the alleged retaliation was
the only factor or reason in the employer’s decision.
But, he must prove that either race or retaliation was
a motivating factor or reason. In other words, that it
played a role in Scott’s decision to terminate him. . .
. In any event, in such a case, the ultimate question,
the final question for the jury to decide is whether,
based on all the evidence in the case, plaintiff has
proven by a preponderance of the evidence that he was
discharged either because of his race or in retaliation
for filing the charges. In other words, that race or
retaliation was a motivating factor, a factor that
played a role in the employment decision to terminate
him.
20
Our cases have heretofore applied the same standard in
retaliation cases as in discrimination cases. Waddell v. Small
Tube Products, Inc., 799 F.2d 69, 73 (3d Cir. 1986). Moreover,
Title VII standards generally apply in PHRA cases. Griffiths,
988 F.2d at 471 n.14.
42
factor instruction is correct in a mixed motives case, Price
Waterhouse did not change the analysis in pretext cases and hence
a “motivating factor” instruction is improper in such cases.
Griffiths, 988 F.2d at 471-72.
In Miller, a subsequent en banc decision, we clarified the
standard that should be used in pretext cases, holding that a
district court must instruct a jury that the plaintiff’s burden
is to prove that an impermissible factor “played a role in the
employer’s decisionmaking process and that it had a determinative
effect on the outcome of that process.” Miller, 47 F.3d at 588.
Thus, it is clear that if Miller governs this case, as Scott
argues, the instruction given was in error, because the
“determinative effect” instruction should have been given. See
Wilson v. Susquehanna Township Police Dep’t, 55 F.3d 126, 130 (3d
Cir. 1995) (noting “determinative effect” standard).
The district court held, however, and Woodson argues on
appeal, that the Civil Rights Act of 1991, Pub. L. No. 102-166,
changed the legal landscape with respect to the standard of proof
in such cases. Section 107(a) of the 1991 Act legislatively
overruled the holding in Price Waterhouse v. Hopkins, 490 U.S.
228 (1989), that even if a plaintiff proved that discrimination
was a motivating factor for an employment decision, an employer
could still prevail if it could show that it would have reached
the same decision even in the absence of the discriminatory
motive. This section provides:
In General.-Section 703 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-2) . . . is further amended by adding at the
end the following new subsection:
“(m) Except as otherwise provided in this title, an
43
unlawful employment practice is established when the
complaining party demonstrates that race, color,
religion, sex, or national origin was a motivating factor
for any employment practice, even though other factors also
motivated this practice.”
Section 107(b) limits the available remedies in the case
envisioned by the Price Waterhouse Court: where the plaintiff
proves that discrimination was a motivating factor in the
employment decision but the defendant responds by demonstrating
that it would have reached the same result in the absence of the
unlawful motive. In such a case, a court may not award damages
and may only grant declaratory relief, certain injunctive relief,
and the costs directly attributable to pursuing the claim under §
107(a). 42 U.S.C. § 2000e-5(g)(2)(B).
Woodson contends that § 107 also effectively overruled
Griffiths and Miller and, accordingly, applies to his case.
Therefore, Woodson continues, the district court did not err in
instructing the jury that Scott could be found liable if
retaliation was a “motivating factor” in the decision to fire
Woodson. In response, Scott argues that § 107 of the 1991 Act
does not apply and that Griffiths and Miller govern Woodson’s
retaliation claim. It makes two separate contentions in support
of this argument: (1) that § 107 does not apply to retaliation
cases21; and (alternatively) (2) that § 107 does not apply to
21
The district court held that Scott failed to object on this
basis and hence waived the argument. Scott at trial made a
general objection to the charge, stating: “Your Honor, just for
the record, I’d like to note my objection to instructing on the
motivating factor without adding a reference to ‘had a
determinative effect’ on the case.” The district court believed
that Scott objected on the ground that § 107 did not apply to
pretext cases, as Scott had filed a pre-trial brief to that
effect. Because Scott did not object until after trial on the
44
pretext, as opposed to mixed motive, cases.22
We consider first whether § 107 applies to retaliation
cases. As this is a question of statutory construction, we begin
as always with the plain meaning of § 107. Section 107 on its
specific ground that § 107 does not apply in retaliation cases,
the district court deemed this objection waived under Fed. R.
Civ. P. 51. 898 F. Supp. at 305 & n.17. In its appellate brief,
Scott relied on its second argument and did not contest the
district court’s ruling on this point, though in a Fed. R. App.
P. 28(j) submission Scott did press the point after argument.
Of course, even if the point was waived in the district
court, we could reach the question if the the instruction was
such that “the jury [was] without adequate guidance on a
fundamental question and our failure to consider the error would
result in a miscarriage of justice.” McAdam v. Dean Witter
Reynolds, Inc., 896 F.2d 750, 770 (3d Cir. 1990); Bennis v.
Gable, 823 F.2d 723, 727 (3d Cir. 1987); see also Selected Risks
Ins. Co. v. Bruno, 718 F.2d 67, 69 (3d Cir. 1983) (“It is the
general rule that a federal appellate court does not consider an
issue not passed upon below. This rule is one of discretion,
rather than jurisdiction, and in the past we have heard issues
not raised in the district court when prompted by exceptional
circumstances.” (footnote and citations omitted)). This is
arguably so here in view of the importance of the legal issue to
this case. We note too the plethora of employment discrimination
cases pending in the district courts of this circuit. At all
events, since this case must go back for a new trial, the
district court will have to charge on the issue and will need
guidance and hence we give it. We recognize that, if § 107 does
not apply to pretext cases, we would not need to reach this
issue, but we are not prepared to so hold at this time. On the
other hand, if we were to hold that § 107 does apply to pretext
cases, we would still have to reach the question whether § 107
applies to retaliation cases to resolve this issue. In sum,
although Scott probably waived the point, we need to reach it
anyway. The result, incidentally, confirms the need for a new
trial.
22
We observe that, although Miller was decided after the
effective date of the 1991 Act, it does not end our inquiry with
respect to whether § 107 applies to pretext claims. Miller was
brought under the Age Discrimination in Employment Act (ADEA).
Although historically we have relied on Title VII in crafting
ADEA law, we did not consider whether the 1991 Act changed the
standard to be used in pretext cases in Miller because the
“substantive provisions of the 1991 Act that amended Title VII
did not amend the ADEA, and Miller does not contend that section
107 is applicable to ADEA cases.” Miller, 47 F.3d at 599 n.10.
45
face does not apply to retaliation claims. It amends only 42
U.S.C. § 2000e-2, which prohibits discrimination “based on race,
religion, or national origin,” and does not mention § 2000e-3,
the retaliation provision. Moreover, the wording of the
amendment does not even refer to retaliation claims, and
explicitly governs cases involving claims of discrimination based
only on “race, color, religion, sex or national origin.” Hence
there is no reference in § 107 to either retaliation claims in
general or § 2000e-3 in particular, suggesting that Congress
intended that § 107 not apply to retaliation claims. See Tanca
v. Nordberg, 98 F.3d 680, 682-83 (1st Cir. 1996) (holding that
plain meaning of § 107 requires that it not be applied to
retaliation claims), cert. denied, __ S. Ct. __, 65 U.S.L.W. 3518(Mar. 17, 1997); Reiss v. Dalton, 845 F. Supp. 742, 744 (S.D.
Cal. 1993) (plain meaning of § 107 dictates exclusion of
retaliation claims). If this is the case, then § 2000e-3 claims
of illicit retaliation are governed by the “determinative effect”
standard and Miller.23
23
Another court relied on a plain meaning argument to reach
the opposite conclusion. In Heywood v. Samaritan Health System,
902 F. Supp. 1076 (D. Ariz. 1995), the court cited to a
commentator who has concluded that § 107 applies to retaliation
claims because “‘[t]he section does not state this explicitly,
but the mixed motive clause defines the conditions under which an
“unlawful employment practice” is established. The anti-
retaliation provision of Title VII appears under the specific
heading of “[o]ther unlawful employment practices.”’” Id. at 1081
n.1 (quoting 2 Lex K. Larson, Employment Discrimination §
35.04[1]). We are not persuaded by this argument. By its own
terms, § 107 provides the standard for determining whether an
employment practice is unlawful “[e]xcept as otherwise provided
in this title.” Because § 107 does not reference retaliation and
§ 2000e-3 provides a standard for deciding retaliation cases, we
believe that the § 2000e-3 alone provides the standards for
judging whether an action was taken in retaliation for protected
46
Scott’s argument that § 107 does not govern retaliation
claims is supported by the fact that the 1991 Act elsewhere
specifically mentions retaliation claims. Section 102 of the Act
provides that compensatory and punitive damages are available in
actions brought under § 2000e-2 and in actions brought under §
2000e-3.24 It is generally the case that “where Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” Russello v. United States, 464 U.S. 16,
23 (1983) (internal quotation marks omitted). Because Congress
dealt with retaliation claims elsewhere in the 1991 Act, but not
in § 107, it would seem reasonable to assume that § 107 does not
apply to retaliation claims. See Tanca, 98 F.3d at 683-84;
Riess, 845 F. Supp. at 745.
We are given pause by the fact that we and other courts have
generally borrowed from discrimination law in determining the
burdens and order of proof in retaliation cases. This
understanding could lead us to the opposite result in considering
activity.
24
Additionally, although § 107(b), which governs the remedies
when a plaintiff proves that an impermissible factor motivated
the decision and the defendant demonstrates that the decision
would have occurred in the absence of that factor, also does not
mention retaliation, 42 U.S.C. § 2000e-5(5)(g)(2)(A), the
subsection that immediately precedes § 107(b) in codified form
does reference claims brought under § 2000e-3. See Riess, 845 F.
Supp. at 745 (“The fact that Congress expressly treated
Section 2000e-3(a) violations in such close proximity to Section
107(b) demonstrates that where Congress intended to address
retaliation violations, it knew how to do so and did so
explicitly.”).
47
this question. That is, we could say that Congress knew of the
practice of borrowing in retaliation cases, and presumed that
courts would continue this practice after the 1991 Act.
Considering the question with this assumption in mind, Congress’s
failure to reference § 2000e-3 specifically in § 107 would not
mean that § 107 does not apply in retaliation cases; rather, it
would mean that Congress assumed that it was unnecessary for it
to do so because courts would borrow the “motivating factor”
language in deciding retaliation claims.25
We are not persuaded by this argument. The legislative
history is at best unclear as to whether Congress intended that
retaliation claims would be governed by § 107. It fails even to
mention retaliation claims specifically. The most that Woodson
points to are general statements that Congress intended to make
it easier for plaintiffs to prevail in employment discrimination
cases by legislatively overruling Price Waterhouse: “If Title
VII’s ban on discrimination in employment is to be meaningful,
victims of proven discrimination must be able to obtain relief,
25
The House Report states that “[t]he Committee intends . . .
that other laws modeled after Title VII be interpreted
consistently in a manner consistent with Title VII as amended by
this Act. For example, disparate impact claims under the ADA
should be treated in the same manner as under Title VII.” H.R.
Rep. No. 40(II), 102d Cong., 1st Sess. 4 (1991), reprinted in
1991 U.S.C.C.A.N. 694, 697. While this might be read to suggest
that courts should apply the “motivating factor” standard in
retaliation cases, it could also be read to encourage borrowing
when deciding cases brought under different statutes rather than
different provisions in the same statute. Assuming, moreover,
that Congress knew of judicial borrowing in employment
discrimination cases, we could reach the conclusion that Congress
wanted to avoid borrowing in retaliation cases by referencing §
2000e-3 in some provisions of the 1991 Act but not in § 107.
48
and perpetrators of discrimination must be held liable for their
actions. Price Waterhouse jeopardizes that fundamental
principle.” H.R. Rep. 40(I), 102d Cong., 1st Sess. 47 (1991),
reprinted in 1991 U.S.C.C.A.N. 549, 585. We find that such
statements do not evidence a clear intent that § 107 apply to
retaliation cases.26 It is a maxim of statutory interpretation
that “[a]bsent a clearly expressed legislative intention to the
contrary [the] language [of a statute] must ordinarily be
regarded as conclusive.” Kaiser Aluminum & Chem. Corp. v.
Bonjorno, 494 U.S. 827, 835 (1990) (internal quotation marks
omitted).
We thus must be guided by plain meaning, and we conclude
that § 107 does not apply to retaliation cases.27 Hence, the
26
One commentator has suggested that policy arguments also
counsel against reading the motivating factor instruction into
retaliation cases: “Congress may have been more concerned with
protecting individuals directly discriminated against because of
the prohibited factor itself than with those discriminated
against because they opposed an unlawful practice.” John L.
Flynn, Note, Mixed-Motive Causation Under the ADA: Linked
Statutes, Fuzzy Thinking and Clear Statements, 83 Geo. L.J. 2009,
2018 n.53 (1995).
27
In reaching the holding that § 107 does not apply to
retaliation claims, we note that while we follow some federal
courts, see Tanca, supra; Riess, supra; see also David A.
Cathcart & Mark Snyderman, The Civil Rights Act of 1991, C108
ALI-ABA 251, 292-93 (1994), other courts have apparently held
that § 107 does apply to retaliation claims. Most of these
courts, however, have applied § 107 to retaliation claims without
analysis. See Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 893
(7th Cir. 1996); Beinlich v. Curry Development, Inc., 1995 WL
311577, at *3 (4th Cir. May 22, 1995); Hall v. City of Brawley,
887 F. Supp. 1333 (S.D. Cal. 1995); Doe v. Kohn, Nast & Graf,
P.C., 862 F. Supp. 1310 (E.D. Pa. 1994) (ADA case); see also
Lewis v. American Foreign Serv. Ass’n, 846 F. Supp. 77, 82
(D.D.C. 1993) (applying § 107 to retaliation cases brought under
42 U.S.C. § 1981 because courts borrow from Title VII, without
considering whether § 107 applies to retaliation claims brought
under Title VII). The only case cited to us by the parties that
49
district court abused its discretion in failing to instruct the
jury that improper motive must have had a determinative effect on
the decision to fire Woodson, as we required in Miller.28 Because
we have concluded that § 107 of the Civil Rights Act of 1991 does
not apply to Woodson’s claim, we need not reach the second
question: whether § 107 applies to “pretext” claims like
Woodson’s or whether it is limited to “mixed motive” claims.29
has specifically held that § 107 applies to retaliation cases,
however, is not persuasive and does not apply basic principles of
statutory construction as we have above. See Heywood, 902 F.
Supp. at 1081 & n.1 (acknowledging that neither § 107 nor the
legislative history mention retaliation claims but concluding
that “it is certainly reasonable to assume that the Congressional
policy articulated in the amendment and in the House report
reaches retaliation as well as the enumerated considerations”).
We are further persuaded that the motivating factor
instruction was erroneous in this case because Woodson was
awarded both compensatory and punitive damages. Under § 107(b),
as we explained supra, a plaintiff who succeeds in showing that
an illegitimate factor motivated his or her termination cannot be
awarded damages if the employer demonstrates that it would have
made the same decision in the absence of the illegitimate motive.
The district court did not instruct the jury that it must
determine whether Scott had shown that it would have fired him
even in the absence of the retaliatory motive, as § 107(b) would
seem to require.
28
The district court concluded that if there were any error
in the instruction given, this error was harmless because the
jury would have reached the same conclusion even if it had been
properly charged. Because the jury, in awarding punitive
damages, found that the defendant acted with “malice or reckless
indifference to [plaintiff’s] rights,” the district court
reasoned, the difference between “motivating” and “determinative”
was immaterial. 898 F. Supp. at 308. We disagree. The jury
could conceivably have concluded that Scott acted with malice
toward Woodson when it decided to terminate him based in part on
an illegitimate motive, even if that illegitimate factor did not
have a determinative effect.
29
With respect to this question, we note that, according to
Scott, the 1991 amendments were intended to overrule
legislatively the standards of liability established in Price
Waterhouse for mixed motives cases. The Supreme Court, in dicta,
has acknowledged as much: Ҥ 107 responds to Price Waterhouse v.
Hopkins by setting forth standards applicable in ‘mixed motive’
50
V. Conclusion
For the foregoing reasons, we will affirm in part and
reverse in part. We agree with the district court that the
evidence is sufficient as a matter of law to support a jury
finding of unlawful retaliation by Scott against Woodson and to
that extent we affirm the denial of Scott’s Rule 50 motion.
However, because no verified complaint was filed with the
cases.” Landgraf v. USI Film Prods., 114 S. Ct. 1483, 1489-90
(1994). Moreover, the Fourth Circuit, the only circuit that has
specifically considered this issue, has held that § 107 only
governs mixed motive cases. Fuller v. Phipps, 67 F.3d 1137,
1143-44 (4th Cir. 1995).
While Scott’s position has much to commend it, proper
resolution of this question is far from clear. As the district
court noted in rejecting Scott’s contention in this regard, there
is some support for the view that § 107(a) has created one
standard to be applied in both pretext and mixed motive cases.
The amendment itself is not limited to mixed motive cases, and
the legislative history provides additional support for this
position. See H.R. Rep. No. 40(I), 102d Cong., 1st Sess. 45, 48-
49 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 583, 586-87. Many
courts have applied § 107(a) to pretext cases, albeit
without discussion of this point, see, e.g., Harris v. Shelby
County Bd. of Educ., 99 F.3d 1078 (11th Cir. 1996); Hall v. City
of Brawley, 887 F. Supp. 1333 (S.D. Cal. 1995); Johnson v. El
Paso Pathology Group, P.A., 868 F. Supp. 852 (W.D. Tex. 1994),
and several model jury instructions suggest doing so as well,
see, e.g., American Bar Ass’n Model Jury Instructions for
Employment Litigation 1.02[1]; 1.02[2][a] (1994). This court has
expressly left open the question whether a “determinative effect”
instruction should be given in a pretext case after the 1991 Act.
Hook v. Ernst & Young, 28 F.3d 366, 368, 371 (3d Cir. 1994).
Because we dispose of this case on other grounds, we again
decline to reach this issue.
At all events, whatever the standard should be, there is
certainly considerable force to Judge Greenberg’s view that one
standard for both mixed motive and pretext cases would be far
preferable, and have the additional benefit of simplifying and
clarifying employment discrimination law. See Miller, 47 F.3d at
599 (Greenberg, J., concurring) (“I would dispense altogether
with the terms ‘pretext’ and ‘mixed motives’ and hold explicitly
that the same standard applies to all disparate treatment
cases.”).
51
Pennsylvania Human Relations Commission, we will reverse the
denial of the Rule 50 motion in this respect and direct the
district court to enter judgment in Scott’s favor on Woodson’s
retaliation claim under the Pennsylvania Human Relations Act.
Finally, because of errors in the jury instructions, we will
reverse the denial of the Rule 59 motion and remand for a new
trial on the retaliation claim. The parties shall bear their own
costs.
_____________________
52