The opinion of the court was delivered by: Lee, District Judge.
In her Complaint, the plaintiff, Patricia A. Baker, brought
discrimination claims against the defendant, Emery Purolator
(Purolator), under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e-3, 42 U.S.C. 2000e-5 and 28 U.S.C. 1331, and the Pennsylvania Human
Relations Act, 43 P.S. 951. Plaintiff alleges defendant's decision not to
hire her as a courier constitutes discrimination in that Purolator
engaged in unlawful retaliation and sex discrimination in making its
Plaintiff claims to have been sexually harassed by one of her managers
at V.C. Express, a now defunct company, which provided couriers to
Purolator's predecessor-in-interest (Emery Worldwide) under a drayage
contract. V.C. Express is not a party in this action. Plaintiff brought
this matter to the attention of both V.C. Express and Emery Worldwide
management and claims that her reporting of these incidents resulted in
further harassment and retaliation in the form of special work
assignments and being held to different performance standards. Plaintiff
additionally maintains that her reports to V.C. Express and Emery
Worldwide management of subsequent acts of discrimination and reprisals
also went unheeded.
On or about March 26, 1988, Emery Worldwide was purchased by defendant
who began trading and doing business as Emery Purolator. Plaintiff and
other V.C. Express employees filed job applications with Purolator. Fifty
(50) applicants, including plaintiff, interviewed for courier positions
with defendant. A total of twenty-nine V.C. Express employees were
hired. Of this number, there were twenty-eight males and one female,
Plaintiff was not among those hired.
Before the Court are defendant's Motion for Judgment Notwithstanding
the Verdict and its alternative Motion for a New Trial pursuant to Rule
50 of the Federal Rules of Civil Procedure in which the following
contentions are raised:
1. Plaintiff failed to present any evidence in respect to her alleged
actual loss. Accordingly, the jury did not have any evidence upon which
to base its damage finding of $30,380.00 plus interest of $1,822.00;
2. Plaintiff failed to present any evidence that Purolator's
articulated reason for its failure to hire plaintiff was pretext for sex
discrimination. Accordingly, the jury did not have any evidence upon
which to conclude that plaintiff had been discriminated against on the
basis of her sex;
3. The Court erred in permitting plaintiff's counsel to argue, in
closing, evidence or matters not in the record and theories of liability
which were not before the jury;
4. The Court erred by instructing the jury in respect to plaintiff's
damage claim and by refusing to instruct the jury to find that plaintiff
failed to present any evidence of damage in the form of back pay;
5. The Court erred by refusing to allow testimony of Jack Finch during
Purolator's case-in-chief with regard to his consultation with John
Hites' preparation of his recommendations regarding the employment of
former VC Express employees. The effect of the Court's ruling placed
Emery in the position of having to recall Mr. Finch in sur rebuttal to
respond to plaintiff's rebuttal, thereby allowing plaintiff's counsel to
argue in closing that Emery's testimony had been manufactured over the
6. The Court erred by allowing a jury trial of plaintiff's claim of sex
discrimination when plaintiff sought only equitable relief;
7. The Court erred by permitting plaintiff's counsel to unfairly
prejudice the jury by:
(i) Arguing that Finch's testimony was manufactured over the lunch
break when he knew it had only been excluded based upon the Court's
sustaining of his objection to the testimony;
(ii) Arguing that Purolator's conduct violated federal and state labor
(iii) Arguing that Purolator had enhanced only plaintiff's interview
score sheet and not the score sheets of other applicants. More
specifically, plaintiff's counsel did not have sufficient copies of
plaintiff's Exhibit No. 1 and therefore requested a copy from Emery's
counsel at the time he wished to introduce the document into evidence
during his case-in-chief. During the exchange, Emery's counsel indicated
to plaintiff's counsel his thought that the copying process had enhanced
many of the personnel documents.
Motions for a new trial require the exercise of discretion by the
Court, whose "duty is essentially to see that there is no miscarriage of
justice." 6A Moore's Federal Practice ¶ 59.08 at 59-160; Thomas
v. E.J. Korvette, Inc., 476 F.2d 471, 475 (3d Cir.1973). The jury's
verdict may be vitiated only if manifest injustice will result if it were
allowed to stand. The Court may not substitute its own judgment for that
of the jury merely because it may have reached a different conclusion.
To grant a motion for Judgment n.o.v., the Court must find as a matter
of law that the plaintiff failed to adduce sufficient evidence to justify
the verdict. Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205,
1210 (3d Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55
(1970). Such a Motion ". . . may be granted only when, without weighing
the credibility of the evidence, there can be but one reasonable
conclusion as to the proper judgment." 5A Moore's Federal Practice ¶
50.07 at 2356. Moreover, the evidence and the inferences therefrom
should be viewed in a light most favorable to the plaintiff, the verdict
winner. Thomas v. E.J. Korvette, 476 F.2d 471 (3d Cir. 1973).
In short, the question is whether considering all the evidence,
together with all favorable inferences, there is a total failure or lack
of evidence to prove a necessary element of the plaintiff's case. Larsen
v. International Business Machines Corp., 87 F.R.D. 602, 606 (E.D.Pa.
1980). The burden of showing prejudicial error rests on the moving
party. E.G. Skill v. Martinez, 91 F.R.D. 498, 504 (D.N.J. 1981), aff'd.,
677 F.2d 368 (3d Cir, 1982).
The elements of a prima facie case alleging discriminatory treatment in
a Title VII case are set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Supreme Court
stated that the plaintiff in a Title VII case has the burden of showing
"(i) that he belongs to a racial minority; (ii) that he applied and was
qualified for a job for which the employer was seeking applicants; (iii)
that, despite his qualifications, he was rejected; and (iv) that, after
his rejection, the position remained open and the employer continued to
seek applicants from persons of complainant's qualifications."*fn1
Once the plaintiff establishes a prima facie case, a presumption is
created that the employer unlawfully discriminated against the employee.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct.
1089, 67 L.Ed.2d 207 (1981).
"The burden that shifts to the defendant,
therefore, is to rebut the presumption of
discrimination by producing evidence that the
plaintiff was rejected, or someone else was
preferred, for a legitimate, non-discriminatory
reason. The defendant need not persuade the Court
that it was actually motivated by the proffered
reasons. . . . It is sufficient if the defendant's
evidence raises a genuine issue of fact as to
whether it discriminated against the plaintiff."
Id. at 254-255, 101 S.Ct. at 1094-95.
Preliminarily, we are satisfied that plaintiff presented a prima facie
case of discrimination under the Pennsylvania Human Relations Act and
In response to the shifting burden, defendant maintains plaintiff was
not as qualified as others who applied for employment for the following
reasons: (1) plaintiff had a relatively low interview score; (2)
plaintiff had a negative recommendation from her former employer, V.C.
Express; and (3) as reported by Laura Lawrence through the testimony of
Kaczorowski, plaintiff was disruptive at work on two occasions.
With this rationale in mind, we will now consider the evidence adduced
at trial viewed in a light most favorable to the verdict winner.
I. Whether Plaintiff failed to Establish
The Pretextual Nature of Purolator's
Reason for Discharge
Plaintiff, Patricia A. Baker has a High School equivalent education
having completed her G.E.D. in 1970. In January of 1986, plaintiff was
hired as a courier by V.C. Express to deliver overnight packages for
Emery Worldwide. in her capacity as a courier, plaintiff sorted and
loaded the packages on her van and delivered the same to customers on her
designated route in the areas of Robinson Township, Crafton, Neville
Island, McKees Rocks, Belleview and Sewickley, Allegheny County.
Plaintiff also provided other services to V.C. Express all of which
essentially involved driving company vans. Plaintiff did not operate any
vehicles requiring special skills or licensing.
In October of 1987, V.C. Express began a monthly driver's incentive
program designed, generally, to financially reward drivers for their
overall safety and performance. Specifically, drivers were rated on such
areas as accident/citation free driving, absenteeism, tardiness, and a
job-related procedure known as wanding.*fn3 This program ended in March
of 1988. In all but one month, plaintiff received perfect scores and,
thus, the full financial benefit of the program.
On March 24, 1988, V.C. Express was purchased by Purolator. Plaintiff,
along with forty-eight (48) men and one (1) other woman applied for
positions with defendant. The fifty (50) applicants were competing to fill
twenty-eight (28) positions. Each applicant was interviewed and scored on
a scale of one to ten. Under this ten-point system, the applicants were
evaluated with an eye toward the following criteria: (i) flexibility,
(ii) communication skills, (iii) energy level, (iv) work experience and
(v) sharpness. As a result of these interviews, twenty-eight males and
one female were hired. The female hired by Purolator possessed a special
license that permitted her to operate a tractor trailer.
With a total point score of seven (7), plaintiff was deemed unqualified
and was not among those hired by defendant despite having superior or
similar driving and overall performance records over many of the ...