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October 28, 1991


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 employment decisions.


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.

Plaintiff filed a Complaint with the Pennsylvania Human Relations Commission on April 8, 1988. No resolution of her claim was reached within one year of her filing. In her instant Complaint, plaintiff demanded a jury trial for her Title VII and PHRA claims in which she sought compensatory damages, attorney's fees, reinstatement and lawful interest. By the Court's Opinion and Order dated October 2, 1990, defendant's Motion to Strike Plaintiff's Jury Demand Under Title VII and the PHRA was granted in part and denied in part with the Court concluding that plaintiff was only entitled to a jury trial on her PHRA claim. After three trial days, the jury returned a verdict for plaintiff in the amount of $30,380.00 together with interest in the amount of $1,822.00.

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 lunch break;

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 law; and

(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[5] 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[2] 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 Title VII.*fn2

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 ...

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