Rush v. Scott Spec Gases Inc

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

5-14-1997

Rush v. Scott Spec Gases Inc

Precedential or Non-Precedential:

Docket 96-1606

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Filed May 14, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-1606

CHRISTINE RUSH

v.

SCOTT SPECIALTY GASES, INC.,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 95-00748)

Argued April 14, 1997

BEFORE: GREENBERG, ALITO, and SEITZ, Circuit Judges

(Filed: May 14, 1997)

Leslie A. Hayes (argued)

Randy Karafin Hubert

Connolly, Epstein, Chicco

Foxman, Engelmyer, and Ewing

1515 Market Street, 9th Floor

Philadelphia, PA 19102

Attorneys for Appellee

Alfred W. Putnam, Jr. (argued)

J. Freedley Hunsicker, Jr.

Patricia Proctor

Drinker, Biddle, and Reath

Philadelphia National Bank

Building

1345 Chestnut Street

Philadelphia, PA 19107-3496

Attorneys for Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Appellant, Scott Specialty Gases, Inc. ("Scott"), appeals

from a judgment entered in favor of its former employee,

Christine Rush. In her complaint Rush asserted that Scott

discriminated against her in promotion and training on the

basis of her sex and subjected her to a hostile environment

through sexual harassment. She also claimed that Scott

improperly constructively discharged her and retaliated

against her for filing a complaint against it with the Equal

Employment Opportunity Commission. Finally, she

asserted federal and state Equal Pay Act claims and state

common law tort and contract claims. The jury awarded

Rush several million dollars in compensatory and punitive

damages on her discrimination in promotion and training,

sexual harassment, and constructive discharge claims, but

on Scott's motion, the district court found that the damages

were excessive and significantly reduced them in a

remittitur. Rush accepted the remittitur rather than going

through a new trial, so the court entered judgment for the

reduced amounts. Scott has filed a timely appeal. We have

jurisdiction under 28 U.S.C. § 1291, and the district court

had jurisdiction under 28 U.S.C. § § 1331 and 1367(a).

Scott contends that Rush's employment discrimination

claim based on failure to promote and train is time barred

2

and cannot be saved by application of the continuing

violation theory. We agree; allowing Rush to sue on the

failure to promote and train claim, and to introduce

evidence supporting that claim, prejudiced Scott's case on

Rush's other claims because we cannot say that the failure

to promote and train evidence did not contribute to the

jury's findings of liability on the sexual harassment hostile

environment and constructive discharge claims.

Furthermore, we cannot say that the evidence with respect

to the failure to promote and train claim did not affect the

computation of the damages awarded. Therefore, we will

reverse the judgment entered in favor of Rush and remand

the case to the district court to enter judgment in Scott's

favor on Rush's failure to promote and train claim and to

grant a new trial on her sexual harassment and

constructive discharge claims. For reasons which we

explain below the retaliation, Equal Pay Act, and common

law claims are no longer in the case and thus will not be

retried.

II. FACTS AND PROCEDURAL HISTORY

Scott employed Rush as a Laboratory Technician I from

September 11, 1989, until her resignation on June 10,

1993. Periodically, Rush changed from a full-time to a part-

time status to pursue her education. In September 1990,

Rush went part time so that she could take course work in

chemistry. During the fall of 1990, Scott conducted a flask-

making course which trained some Lab Tech Is in skills

needed for promotion to Lab Tech II analyst positions. Scott

intended to use the training course as a promotion device

and planned to promote the highest performing Lab Tech Is

to Lab Tech IIs. Rush claims she was not informed about

the class, although several male employees were, and that

Scott thereby deprived her of an important opportunity for

training and advancement within the laboratory. Rush also

claims that she and Scott were unable to agree upon an

arrangement through which she could watch the course on

videotape so that she could become eligible for promotion.

Ultimately, in early 1991 Scott promoted three men with

less seniority than Rush to Lab Tech II analyst positions

based on their performance in the flask-making class.

3

In June 1991, Rush filed a charge with the Equal

Employment Opportunity Commission, claiming that Scott

discriminated against her in training and promotion

because of her sex. She based this charge on her exclusion

from the flask-making course and the attendant

opportunity for promotion as well as other alleged

discrimination in training, promotion, and work

assignments. In the fall of 1991, Rush and Scott entered

into a written settlement agreement in which Rush agreed

not to file suit against Scott based on her EEOC charge.

App. at 2173. Rush also executed a release in which she

agreed to:

release and forever discharge Scott. . . of and from all

claims and causes of action alleged in, or which could

have been alleged in a Charge filed with the Equal

Opportunity Commission and numbered Charge No.

170911136 and any other charge or complaint she has

filed or could have filed with any other agency or court

alleging discrimination in connection with her

employment by Scott, including without limitation, her

claim that she discriminatorily was denied promotion.

App. at 2172. In return, Scott agreed to meet with Rush to

discuss its policy regarding training and promotion; to

provide Rush the same training and experience other

employees seeking promotion to Lab Tech II analyst

positions received; and to consider Rush for the next

available Lab Tech II analyst position. App. at 2173.

Following the execution of the settlement agreement,

Rush met with lab manager Mark Sirinides, who explained

the requirements for promotion to a Lab Tech II analyst

position. In March 1992, Scott allowed Rush and some of

her co-workers to take the flask-making course via

videotape. She received the highest grade in the class. On

June 15, 1992, Scott certified to the EEOC that Rush had

completed the required training course and, in accordance

with the settlement agreement, would be considered "when

a vacancy in Lab Tech II Analyst position commensurate

with her skills occurs." App. at 2193.

In June 1992, Scott promoted a male Lab Tech I, Garren

Knoll, to a Lab Tech II position. Rush contends, and Scott

4

agrees, that it did not consider Rush for this promotion,

explaining that in its view Rush was not qualified for this

position. According to Scott, it promoted Knoll to a

computer technician or automation position, not a

laboratory analyst position. Also, in the summer of 1992,

Scott hired a male college student, Mark Carpenter, on a

part-time basis to do Lab Tech II work. Scott claimed that

because this was a temporary, part-time position, Rush

was not eligible for it. During her tenure at Scott, Scott

never promoted Rush who remained a Lab Tech I.

Rush claims that after she filed her 1991 EEOC charge,

her male co-workers and some supervisory and managerial

employees sexually harassed her. She asserts that she

unavailingly complained about this harassment at various

levels of Scott's management. Sirinides wrote a memo to

plant manager John Post outlining Rush's complaints and

asking for guidance and training on how to deal with such

complaints. Neither Post nor regional vice-president William

Gittler, both of whom saw Sirinides' memo, responded to

the complaints.

In March 1993, Rush again arranged to work part time;

her application noted that she based her request on her

desire to pursue her education and that she was

dissatisfied with her working environment. On May 27,

1993, Rush and some co-workers arrived late to work, but

she claims that Ted Neeme, a group leader in the laboratory

who apparently had supervisory duties, singled her out for

an oral reprimand. App. at 468-69. A shouting match

ensued between Rush and Neeme, and then Rush threw

her time card on Neeme's desk and left the premises. App.

at 471-72. She did not return to Scott until June 1, 1993.

On June 10, 1993, Rush resigned. At some point during

that day, either just before her resignation, or just after, a

meeting was held at Scott's premises from which Rush was

excluded. At this meeting, Post, the plant manager, asked

Rush's co-employees how Scott should discipline her for

her earlier outburst to Neeme and permitted them to

criticize Rush. App. at 426, 486. On her resignation form,

Rush noted that she felt forced to leave Scott. App. at 2167.

On November 1, 1993, Rush filed a discrimination claim

with the Pennsylvania Human Relations Commission; the

5

charge was cross-filed with the EEOC. After Rush received

a right to sue letter, she filed suit in the district court

against Scott on February 8, 1995. Her complaint alleged

discrimination on the basis of sex in violation of Title VII,

the Federal and Pennsylvania Equal Pay Acts, and the

Pennsylvania Human Relations Act ("PHRA"). In addition,

Rush asserted a claim against Scott for allegedly retaliating

against her for filing the first EEOC charge and claims

under Pennsylvania common law. She also claimed that

Scott had constructively discharged her.

Prior to the trial, both parties moved for summary

judgment. As germane to this opinion, Scott claimed that

all of Rush's claims that accrued prior to January 5, 1993,

i.e., 300 days before she filed her second EEOC claim, were

time barred. Of course, Scott promoted Knoll and hired

Carpenter long before January 5, 1993, and thus it argued

that Rush could not base a claim on those employment

actions. Nevertheless, the district court denied Scott's

motion for summary judgment to the extent it was

predicated on the time bar, reasoning that the case involved

a violation throughout her employment at Scott. Rush v.

Scott Specialty Gases, Inc., 914 F. Supp. 104, 106-07 (E.D.

Pa. 1996). The court, however, granted Scott summary

judgment on the Pennsylvania Equal Pay Act claim and

granted it partial summary judgment on Rush's common

law claim.

At the ensuing two-week trial, the jury found in favor of

Rush on her Title VII and PHRA failure to promote and

train, sexual harassment, and constructive discharge

claims, and awarded her $203,000 in lost wages,

$1,000,000 in pain and suffering, and $3,000,000 in

punitive damages. However, the jury found for Scott on

Rush's retaliation claim. The court dismissed the Federal

Equal Pay Act claim on Scott's motion under Fed. R. Civ. P.

50; thus that claim is no longer in the case. Rush elected

not to proceed with her remaining common law claim at

trial, and we thus are not concerned with that claim.

Following the return of the verdict, Scott moved for

judgment as a matter of law or a new trial, or, in the

alternative, for a remittitur. The district court denied the

motion for judgment as a matter of law on the grounds that

6

the evidence supported the verdict. Rush v. Scott Specialty

Gases, Inc., 930 F. Supp. 194, 197 (E.D. Pa. 1996). The

district court also found that although a new trial was not

warranted on the basis of the weight of the evidence or

because of any evidentiary errors or improper jury

instructions, the awards for pain and suffering and punitive

damages were excessive. Id. at 199, 202. Accordingly, the

court denied the motion for a new trial but it conditioned

the denial on Rush's acceptance of a remittitur in the

amount of $900,000 on the pain and suffering award and

a remittitur of the punitive damages award in the amount

of $2,700,000. The remittitur left Rush with an award of

$203,000 in compensatory damages, $100,000 for pain and

suffering, and $300,000 for punitive damages. Rush agreed

to this remittitur, and on July 15, 1996, the court entered

judgment for Rush in the amount of $603,000. The court

subsequently granted Rush prejudgment interest and

awarded her counsel fees of $210,062.50 and costs of

$11,562.05. Scott has filed a timely appeal.

III. DISCUSSION

Scott argues that Rush did not administrativelyfile her

failure to promote and train and her sexual harassment

claims in a timely manner so this action largely is barred.

Scott also advances challenges to the jury instructions,

evidentiary rulings, and sufficiency of the evidence and

asserts that the PHRA does not provide for punitive

damages. We conclude that the hostile environment sexual

harassment claim was timely, the failure to promote and

train claim was time barred, and the introduction of

evidence with respect to Scott's failure to promote and train

Rush based on her sex infected the entire trial. Accordingly,

we will reverse the judgment in favor of Rush and remand

for a new trial on Rush's hostile environment sexual

harassment and constructive discharge claims and for

entry of judgment in favor of Scott on the failure to promote

and train claim. This disposition makes it unnecessary to

consider Scott's other assertions of error.

A. The Continuing Violation Theory

The parties are in agreement that under Title VII the

ordinary time for filing a charge of employment

7

discrimination with the EEOC is 300 days after the alleged

discrimination when the charge is filed first, as here, with

the appropriate Pennsylvania state agency. 42 U.S.C.

§ 2000e-5(e)(1).

Though the requirement sounds exacting -- 300 days

after the alleged unlawful employment practice

occurred -- courts have grappled with cases presenting

questions of precisely when a `practice' occurred. That

date may be more inflexible when there is a discrete

trigger event and the discrimination is overt. However,

there are cases in which the plaintiff does not know he

has been harmed; similarly there are cases of an

ongoing, continuous violation. To accommodate these

more indeterminate situations, the Supreme Court has

recognized that the filing of a timely charge is`a

requirement that, like a statute of limitation, is subject

to waiver, estoppel, and equitable tolling.'

West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir.

1995) (citations omitted). Rush filed the requisite EEOC

claim on November 1, 1993. Consequently, the 300-day

retrospective limitations period which ordinarily would bar

claims for earlier events began to run on January 5, 1993.

The continuing violation theory allows a "plaintiff [to]

pursue a Title VII claim for discriminatory conduct that

began prior to the filing period if he can demonstrate that

the act is part of an ongoing practice or pattern of

discrimination of the defendant." Id. at 754 (citations

omitted). In considering this issue, we note that the parties

in their briefs do not clearly delineate between the record

on the motion for summary judgment and the record at

trial. While in some cases this lack of precision could

present a problem on appeal, here it does not because, on

any view of the facts, Scott was entitled to a judgment on

the failure to promote and train claim. Similarly, on any

view of the facts, Rush's hostile environment sexual

harassment claim was not time barred, even with respect to

conduct occurring prior to January 5, 1993.

We also note that in some circumstances the procedure

followed in deciding whether there is a continuing violation

might impact on the scope of review. There is authority that

8

a trial court's ruling on whether there is a continuing

violation is reviewed on the clearly erroneous standard.

Calloway v. Partners Nat'l Health Plans, 986 F.2d 446, 448

(11th Cir. 1993); Abrams v. Baylor College of Med., 805

F.2d 528, 532 (5th Cir. 1986). Yet the district court ruled

on the continuing violation argument by denying Scott's

motion for summary judgment; this procedural posture

suggests that plenary review might be appropriate.

Furthermore, in West, in which we considered the

employee's argument that there had been a continuing

violation in the context of reviewing determinations on the

admission of evidence, we suggested that we were

exercising at least a degree of plenary review. West, 45 F.3d

at 748 ("We conclude, in this hostile work environment

context, that the scope of the admissibility of evidence of

events, which preceded the 300-day period, must be

grounded in the substantive law at issue."); id. at 752 ("We

review the evidentiary determinations of the trial court

under an abuse of discretion standard. . . . However, as to

the application or interpretation of a legal standard

underlying the admissibility decision, our review is

plenary.") (citations omitted).

In this case, however, we need not linger on the scope of

review issue because even on a deferential clearly

erroneous standard of review, we would reverse with

respect to the failure to promote and train claim; and even

on a plenary review, we would hold that the continuing

violation theory was applicable to the sexually hostile

environment claim. Cf. Konstantopoulous v. Westvaco Corp.,

No. 94-7462, slip op. at 15 n.1 (3d Cir. May 6, 1997)

("Here, we find it unnecessary to decide which standard of

review to apply because under either standard we see no

ground for reversing the district court's decision."). Thus,

we apply the standard of review most favorable to the party

against whom we are making particular determinations.

To demonstrate a continuing violation, the plaintifffirst

must show that at least one discriminatory act occurred

within the 300-day period. West, 45 F.3d at 754. Second,

the plaintiff must show that "the harassment is`more than

the occurrence of isolated or sporadic acts of intentional

discrimination,' " and instead must demonstrate a

9

continuing pattern of discrimination. Id. at 755 (citation

omitted). A plaintiff satisfying these requirements may

present evidence and recover damages for the entire

continuing violation, and the 300-day filing period will not

act as a bar. Id.

We have followed Berry v. Board of Supervisors of

Louisiana State Univ., 715 F.2d 971 (5th Cir. 1983), the

leading case on the continuing violation theory. The Berry

court enumerated several factors relevant to the

determination of whether a plaintiff has demonstrated a

continuing violation:

The first is subject matter. Do the alleged acts involve

the same type of discrimination, tending to connect

them in a continuing violation? The second is

frequency. Are the alleged acts recurring. . . or more in

the nature of an isolated work assignment or

employment decision? The third factor, perhaps of

most importance, is degree of permanence. Does the

act have the degree of permanence which should

trigger an employee's awareness of and duty to assert

his or her rights, or which should indicate to the

employee that the continued existence of the adverse

consequences of the act is to be expected without being

dependent on a continuing intent to discriminate?

Id. at 981 (footnote omitted); see also West, 45 F.3d at 755

n.9.

1. The Hostile Environment Sexual Harassment Claim

Scott argues that Rush should have filed her sexual

harassment claim earlier than November 1, 1993, and that

she therefore should not have been permitted to sue on or

present evidence of sexual harassment occurring prior to

the start of the 300-day limitations period. Rush responds

that she was not aware in 1991 when she filed her initial

EEOC complaint that she had been subjected to sexual

harassment, and she also contends that the harassment

she experienced constituted a continuing violation so that

all of the harassment, even that occurring before January

5, 1993, was actionable.

As we explained in West, there is "a natural affinity"

between the theory underlying hostile environment claims

10

and the continuing violation theory. West, 45 F.3d at 755.

A sexually hostile work environment often "results from

acts of sexual. . . harassment which are pervasive and

continue over time, whereas isolated or single incidents of

harassment are insufficient to constitute a hostile

environment." Id. (citations and internal quotation marks

omitted); see also Galloway v. General Motors Serv. Parts

Operations, 78 F.3d 1164, 1166 (7th Cir. 1996). The Court

of Appeals for the Seventh Circuit in Galloway expressed its

desire to encourage plaintiffs to commence litigation when

they become aware of conduct that would support a viable

claim without forcing them to do so prematurely. Id. at

1166. Thus, the court concluded that a plaintiff "may not

base her. . . suit on conduct that occurred outside the

statute of limitations unless it would have been

unreasonable to expect the plaintiff to sue before the

statute ran on that conduct, as in a case in which the

conduct could constitute, or be recognized, as actionable

harassment only in the light of events that occurred later,

within the period of the statute of limitations." Id. at 1167

(citations omitted).

Rush testified that when she filed her original EEOC

complaint in 1991 she did not include claims for sexual

harassment because

it was not really as frequently [sic], it later intensified

but at that time it was a lot less frequent. I'm not sure

I recognized it at that time. And, whereas the

discrimination was more obvious to me. I also felt that

at that time I was friendly with Rene, which he was the

biggest problem and maybe I was not clear enough,

maybe I didn't turn around and yell at him, I didn't I

figured it wouldn't be fair . . . to complain.

App. at 376-77. Rush testified that at the beginning of her

employment, Rene Bedoya, her co-worker and primary

harasser, treated her nicely, and, although perhaps overly

attentive, his behavior was not problematic. App. at 412-13.

On redirect examination, Rush read into the record part of

her diary where she noted that the harassment began after

she filed the EEOC charge. App. at 661.

Rush also testified that she was harassed by male co-

workers on a daily basis. App. at 402. This harassment

11

included disparaging remarks and criticism of her work.

App. at 403-04. Rush testified that Bedoya's behavior

changed and that he began to touch her inappropriately

and sexually at work, to make sexual comments to her, and

to be rude to her. App. at 416-19, 421. Rush also testified

that her co-worker Tom Richards made inappropriate

comments to her and about her. She stated that she partly

overheard, and another co-worker told her, that Richards

had said he "wanted to fuck [Rush] in his van, and then

shoot [Rush] in the head so that no one would ever know."

App. at 421-22.

The district court correctly concluded that Rush's sexual

harassment claim constituted a continuing violation. She

properly was permitted to sue on this continuing violation

and to present evidence of incidents occurring prior to the

limitations period. First, the 300-day period began to run

on January 5, 1993, and it is clear that there were episodes

of alleged harassment after that point, including the

meeting that occurred on her last day of employment, as

well as the continual comments by Bedoya and Rush's

other co-workers. Second, the evidence supports a finding

that Rush suffered continuous sexual harassment, at least

from the time she filed the original EEOC charge. The

harassment did not consist of unrelated, isolated incidents,

but constituted a continuous pattern of derogatory

remarks, rude behavior, and discriminatory conduct. Her

failure to claim harassment in the 1991 EEOC charge does

not destroy her claim, because the evidence shows that the

harassment intensified after the charge was filed, and,

moreover, she did not realize early on how pervasive or

severe the harassment was.

2. The Failure to Promote Claim

Scott argues that Rush's failure to promote and train

claim predicated on sexual discrimination was not timely

filed because she did not allege any instances of

discriminatory failure to promote and train after January 5,

1993.1 Rush argues that the sex discrimination in training

_________________________________________________________________

1. Scott also argues that the settlement agreement and Rush's release

prohibit her from litigating her failure to promote and train claim.

Because we find the failure to promote and train claim time barred, it is

not necessary to address either the effect of the release on the viability

of Rush's claim or Rush's ability to repudiate the release.

12

and promotion was a continuing violation during her three

and one-half years at Scott. The district court found that

Rush's failure to promote and train claim was not time

barred because the continuing violation theory applied to it.

This finding was in error.

Neither the promotion of Garren Knoll to a Lab Tech II

position nor the hiring of Mark Carpenter to perform

temporarily Lab Tech II work occurred within the 300-day

limitations period. In an effort to avoid a conclusion that

her failure to promote and train claim was time barred,

Rush argues that the gradual change in Knoll's duties from

primarily computer and automation work to primarily

laboratory analysis work demonstrates that although Scott

actually had a need to hire additional Lab Tech II analysts,

it refused to promote her.

Although Knoll's performance of analysis work greatly

increased beginning in January 1993, app. at 1590, 1596,

Scott's assignment of analysis work to Knoll did not

constitute a discriminatory failure to promote occurring

within the limitations period. Scott was not required to

promote an additional person to perform the analysis work

it ultimately assigned to Knoll. Knoll's promotion to the Lab

Tech II position was a discrete incident; Scott filled the

vacancy in June 1992. After that time, aside from the part-

time summer position Carpenter filled, no new Lab Tech II

positions became available. The change in Knoll's work

assignment did not require that Scott demote him or create

a new Lab Tech II position for Rush. Of course, her attempt

to predicate her claim on Carpenter's hiring is also

unavailing. Rush was required to make a timely challenge

to the actual failure to consider her for promotion, and she

did not do so. Therefore, she cannot claim that Scott's

alleged discrimination in promotion was a continuing

violation.

In a further effort to bolster her argument that her failure

to promote and train claim was filed timely, Rush contends

Scott's discrimination in training and discipline, as well as

the sexual harassment she suffered, continued throughout

her employment and can be used to establish a continuing

violation that would include Scott's failure to promote her.

We reject this argument.

13

Rush's failure to promote and train claim is distinct from

her sexual harassment claim and cannot be regarded as

having been timely by reason of her other allegations of

discriminatory treatment. Rush's failure to promote and

train claim addresses discrete instances of alleged

discrimination that are not susceptible to a continuing

violation analysis. We reiterate that Scott's promotion of

Knoll and hiring of Carpenter were independent events that

put Rush on notice to file a charge of discrimination. Rush

knew from the settlement agreement that she was to be

considered for the next available Lab Tech II position. If she

believed Scott was not considering her for available

positions as promised, she should have reacted at that

time. Waiting to see what would happen next was pointless;

the harm, if any, already was inflicted.

Additionally, neither the sexual harassment nor the other

alleged discriminatory acts were related sufficiently to

Rush's failure to promote and train claim to constitute a

single continuing violation. The sexual harassment and

failure to promote and train claims address different types

of conduct. Rush's failure to promote and train claim

focuses on the failure to promote Rush to, or prepare her

for, a Lab Tech II analyst position. By contrast, the sexual

harassment claim focuses on the use of foul language,

demeaning comments, and inappropriate touching by her

co-workers and some managers. These are distinct claims.

Similarly, although she has alleged disparity in discipline

falling within the limitations period, these claims are not

related factually to the failure to promote and train claims.

While she still may have a viable and timely claim for

discrimination in discipline, this claim is not sufficiently

related to the failure to promote and train claim to enable

us to regard the failure to promote and train claim as part

of a continuing violation.

Finally, although there is a factual nexus between Rush's

failure to promote and failure to train claims, which we

have been considering together, treating them as separate

claims does not affect our result.2 Rush has not alleged

_________________________________________________________________

2. The district court treated the failure to promote and failure to train

claims together by submitting them to the jury in a single special

interrogatory.

14

specific failure to train incidents within the limitations

period. Indeed, most of the allegations supporting Rush's

failure to train claim stem from Scott's failure to include

her in the original flask-making class as well as her

requests prior to that class for more advanced training. She

also complained of Scott's failure to train her properly for

the position for which she was hired. Thus, the failure to

train allegations do not bring her failure to promote claim

to a time within the limitations period. Moreover, a failure

to train claim arising within the 300-day limitations period

would be distinct from a claim predicated on Scott's earlier

failures to promote Rush.

We recently have had occasion to consider a situation

which demonstrates that a court must be circumspect in

relating discrete incidents to each other. In Konstantopoulos

v. Westvaco Corp., slip op. at 10, a plaintiff who was

employed by the defendant for two distinct time periods,

with a seven-month interruption between them, argued

"that the district court improperly evaluated the events that

occurred during her second period of employment in

isolation and that instead the court should have viewed

them as a continuation of the harassment that had taken

place seven months earlier." We rejected the argument, in

part because the seven-month gap allowed the effects of the

earlier incidents to dissipate. Konstantopoulos demonstrates

that a careful analysis must be made before acts are

considered part of a pattern. There, the passage of time and

the employee's interruption of employment destroyed the

pattern. Here, there was no pattern because the failure to

promote and train claim was distinct from the sexual

harassment claim and the other allegations of

discrimination.

The district court erred when it held that Rush's failure

to promote and train claim was a continuing violation that

was not time barred. The incidents relevant to the claim

occurred in the spring and summer of 1992; Rush did not

file her EEOC claim for almost 18 months thereafter. Her

claim was time barred and cannot be saved by any of the

alleged discrimination or harassment occurring within the

limitations period. Furthermore, we have no intention of

shredding the 300-day limitations period by automatically

15

allowing an employee who alleges actionable conduct

occurring within that period to make claims with respect to

any adverse employment actions that occurred during his

or her entire period of employment. Rather, a district court

must scrutinize the claims to establish that they are

related. See West, 45 F.3d at 755 (refusing to adopt per se

rule that every hostile environment claim constitutes a

continuing violation). To allow a stale claim to proceed

would be inconsistent with the administrative procedure

established by Title VII which contemplates prompt filing of

charges so that discrimination controversies may be

resolved promptly. See EEOC v. University of Pennsylvania,

850 F.2d 969, 978 (3d Cir. 1988) ("Upholding the

University's first-filed suit in this context would undermine

the congressional policy favoring prompt resolution of

discrimination claims."), aff'd on other grounds, 493 U.S.

182, 110 S.Ct. 577 (1990). Accordingly, we will reverse the

judgment in favor of Rush on the failure to promote and

train claim and remand for the district court to enter

judgment in favor of Scott on that claim.

3. Other Claims

The jury answered special interrogatories, rendering

separate liability verdicts on each of Rush's claims. App. at

219-20. Similarly, the court instructed the jury to calculate

damages separately for each category of damages claimed.

App. at 220-21. However, the court did not instruct the jury

to attribute specific portions of the damages awards to the

individual counts on which it found Scott liable. Our review

of the record compels the conclusion that the presence of

the failure to promote and train claim and the introduction

of evidence related to and supporting that claim infected

the jury's liability verdicts on the sexual harassment and

constructive discharge claims as well as the verdict for the

damages.

Indeed, Rush has claimed that the sexual harassment

and Scott's failure to promote and train her were related.

She testified that she believed the harassment was part of

her co-workers' and management's plan to force her out of

the lab. App. at 420, 496. Rush reiterated this theory at

oral argument, contending that the same managerial

personnel, particularly Sirinides, who failed to stop the

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sexual harassment were also responsible for Scott's failure

to promote her. At trial, witnesses testified about both the

alleged failure to promote and train and the alleged

harassment, and the evidence supporting the claims was

presented in tandem.

It is not possible to ascertain what portions of the

compensatory and punitive damages awards were

attributable to the time-barred failure to promote and train

claim, so we must reverse the damages awards.

Furthermore, given Rush's theory of the case and the

manner in which evidence was presented, we are unable to

find that the evidence of discriminatory failure to promote

and train did not affect the jury's verdict on liability on the

sexual harassment hostile environment claim. At a

minimum, the evidence of Scott's failure to promote and

train Rush was highly prejudicial to Scott on the

harassment claim. We therefore will reverse the jury's

liability verdict on the hostile environment sexual

harassment claim as well. Similarly, Rush's constructive

discharge claim was not linked exclusively to either the

failure to promote and train claim or the harassment claim,

so the verdict on this claim, too, may have been influenced

by the evidence offered in support of the failure to promote

and train claim. Accordingly, we also will reverse the

judgment in favor of Rush on her constructive discharge

claim.

The jury found in favor of Scott on Rush's retaliation

claim. Rush has not filed a cross-appeal from the entry of

judgment in favor of Scott on that claim, so the judgment

on the retaliation claim will stand. See, e.g., Abrams v.

Lightolier Inc., 50 F.3d 1204, 1213 (3d Cir. 1995) ("While we

note that the instructions as to the ADEA claim may have

required Abrams to demonstrate more than he was required

to under the appropriate standard, Abrams has not cross-

appealed on that ground and we therefore leave the

judgment undisturbed as to the ADEA claim."); Winston v.

Children and Youth Servs., 948 F.2d 1380, 1385 (3d Cir.

1991) (declining to consider issue appellees failed to raise

in cross-appeal or mention in brief). Finally, as we already

have indicated, the Equal Pay Act and common law claims

are out of the case, and Rush has not appealed from their

dismissal.

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B. Punitive Damages

Scott argues that punitive damages are not available

under the PHRA as a matter of law. Although this question

might arise again at the retrial, we decline to address it at

this juncture.

"In adjudicating a case under state law, we are not free

to impose our own view of what state law should be; rather,

we are to apply state law as interpreted by the state's

highest court in an effort to predict how that court would

decide the precise legal issues before us. . . . In the absence

of guidance from the state's highest court, we are to

consider decisions of the state's intermediate appellate

courts for assistance in predicting how the state's highest

court would rule." Gares v. Willingboro Township, 90 F.3d

720, 725 (3d Cir. 1996) (citations omitted). Predicting the

Pennsylvania Supreme Court's likely adjudication of the

question presented is complicated by a sparse landscape of

conflicting intermediate appellate case law.

The Pennsylvania Supreme Court has not decided

whether punitive damages are available under the PHRA,

although it has indirectly confronted the question of the

available remedies under the PHRA. Pennsylvania Human

Relations Comm'n v. Zamantakis, 387 A.2d 70, 71-73 (Pa.

1978) (PHRC is not authorized to "award damages for

mental anguish and humiliation which may arise as a

result of unlawful discrimination," but courts possess

authority to make such awards under their power to grant

legal and equitable relief).3 One intermediate appellate court

in Pennsylvania has held that punitive damages are

available under the PHRA. Brown Transp. Corp. v.

Pennsylvania Human Relations Comm'n, 578 A.2d 555, 562

(Pa. Commw. Ct. 1990) (no bar to punitive or compensatory

damages in PHRA).4 However, during the pendency of this

_________________________________________________________________

3. Zamantakis was a plurality opinion with limited binding effect. Hoy v.

Angelone, ___ A.2d ___, 1997 WL 119445, at *6 (Pa. Super. Ct. 1997).

4. District courts in the Eastern District of Pennsylvania consistently

have held that punitive damages are available under the PHRA. Smith v.

General Elec. Co., 1996 WL 24762, at *6 (E.D. Pa. 1996); Galeone v.

American Packaging Corp., 764 F. Supp. 349, 351 (E.D. Pa. 1991) ("Since

September 1990. . . most federal courts examining this issue have

allowed punitive damage claims to remain in PHRA actions after

predicting that the Pennsylvania Supreme Court would rule that punitive

damages may be imposed under the PHRA.") (collecting cases).

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appeal, a panel of the Pennsylvania Superior Court vacated

an award of punitive damages under the PHRA. Hoy v.

Angelone, ___ A.2d ___, 1997 WL 119445, *6 (Pa. Super. Ct.

1997). The Hoy court specifically refused to extend

Zamantakis, noting that damages for humiliation and

mental anguish are of a different nature and serve different

purposes than punitive damages, and explained it was

"unpersuaded that such damages are recoverable under the

PHRA and. . . reluctant to allow such recovery in the

absence of more definitive guidance" from the state

Supreme Court. Id.

At oral argument, counsel for Rush represented that a

petition to the Pennsylvania Supreme Court for allocatur

has been filed in Hoy. It is therefore possible that the

Pennsylvania Supreme Court soon will address the question

of the availability of punitive damages under the PHRA.

Given these circumstances, we are hesitant to consider the

question, for to do so might produce the undesirable result

of having the PHRA remedies available to a plaintiff differ

depending upon the forum in which the plaintiff has sued.

For these reasons, and because it is unnecessary to the

disposition of this appeal, we decline to decide whether

punitive damages are available under the PHRA.

IV. CONCLUSION

Rush's sexual harassment claim was filed timely, and she

has presented evidence justifying a conclusion that there

was a continuing violation extending from prior to until

after January 5, 1993. Thus, on remand, she should be

permitted to introduce evidence of sexual harassment

occurring throughout her tenure at Scott. However, her sex

discrimination claim based on Scott's failure to promote

and train her was time barred. The inclusion of the failure

to promote and train claim and the evidence supporting it

infected the entire verdict, so a remand for retrial is

necessary on Rush's sexual harassment and constructive

discharge claims. Accordingly, we will reverse the judgment

entered in favor of Rush on the basis of the remittitur and

will remand the case to the district court for entry of

judgment in favor of Scott on the failure to promote and

train claim and for a new trial on the hostile environment

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based on sexual harassment and constructive discharge

claims. We do not disturb the disposition made in the

district court of Rush's other claims.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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