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.
Preliminarily, we are satisfied that plaintiff presented a prima facie
case of discrimination under the Pennsylvania Human Relations Act and
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 V.C.
Express drivers ultimately employed by defendant.
The evidence established that two V.C. Express drivers, Don Fleming and
Dwight Taylor, both with scores of seven, were hired. Two other V.C.
Express drivers, namely Paul Dopler and Ed Frank, were hired with
respective scores of four and six,
The evidence also established that driver safety was an important
consideration of defendant. Plaintiff had an exemplary driving and safety
record which was more favorable than that of Don Flemming, whose
application indicates that he filed a vehicle accident report in March of
Plaintiff's application indicated that she had no moving violations, no
accident reports and that her license had never been suspended or
revoked. Notably, the evidence showed that three males who had received
higher scores than plaintiff and had been hired by defendant, reported
driving and accident infractions with at least one having been convicted
of driving while under the influence (DUI).
On her application, plaintiff indicated with a check mark that she
would work nights. However, she placed a question mark next to her check
mark since she preferred to work days. The evidence shows that
plaintiff's reservation was read with considerable concern by Purolator
since, defendant believed, it showed a certain inflexibility on
plaintiff's part. On the
other hand, Ed Frank was hired without having answered the question of
whether or not he would accept night-work.*fn4
As suggested by the testimony of Robert P. Kaczorowski, defendant's
Area Industrial Engineer who, at the time in question, played an integral
role in the decision not to hire Baker, it was plaintiff's reticence over
accepting a night-time assignment that contributed largely toward
Purolator's decision not to offer her employment.
Additionally, a matter of some dispute at trial was whether plaintiff
received a favorable recommendation from her previous employer. While it
is defendant's position that the evidence showed that plaintiff received
a negative recommendation from John R. Hites, her V.C. Express route
supervisor, and that no one who received such a recommendation was hired
regardless of their interview score, plaintiff introduced into evidence a
letter she received from Hites, in which he gave her laudatory marks for
performance and safety.*fn5
With regard to the unfavorable reports of Laura Lawrence, to the extent
that they served as a legitimate basis for defendant's decision not to
hire plaintiff, there was sufficient evidence in the record to create a
jury question as to whether Ms. Lawrence's observations were properly
made much less fairly relied upon.
Laura Lawrence, the individual formerly in charge of personnel for
Emery Worldwide and presently serving in the same capacity for
defendant, was not called as a witness.*fn6 The evidence proffered at
trial concerning Lawrence's observations of plaintiff behavior was
introduced via the testimony of Robert P. Kaczorowski, who during the
relevant time frame, inter alia, was responsible for driver
Kaczorowski testified that in addition to himself, Don Cain and Laura
Lawrence were responsible for hiring couriers. At the time of trial, Don
Cain no longer worked for defendant and was not called to testify since
efforts to locate him were reportedly unsuccessful.
1. V.C. Express drivers began working for Purolator on or about March
2. The parties have stipulated that the former employees of V.C.
Express who were hired by the defendant received the following rates of
3. Former V.C. Express and Purolator courier, Mike Haboush, testified
that he worked sixty-one (61) hours his first week with defendant, then
fifty (50) hours his second week before averaging thirty-five (35) to
forty (40) hours per week. His testimony indicated that the greater
number of hours in the earlier stages of his work was necessary in order
for him to learn his new route which took him to New Castle, Pa. Haboush
testified that he had one of the longer routes assigned by Purolator.
4. Haboush testified that his yearly earning were as follows:
The Court charged that while back pay cannot be awarded for more than
three years prior to the plaintiff's Complaint of discrimination to the
Pennsylvania Human Relations Commission, and that while the period for
back pay can be less, an award of back pay in this matter could not be
more than the period from March 26, 1988 to the date of the verdict.
Given the damage parameters set forth by the evidence, and the Court's
charge, we are satisfied that the evidence sufficiently informed the jury
of plaintiff's potential earnings. Moreover, in light of the broad
remedial purposes of Title VII and the PHRA, it cannot now be said that
the jury's award was unreasonable since it appears likely that
plaintiff's back pay award was reasonably based upon the position she
should have been offered, but for the discriminatory practice. See
Jackson v. United States Steel Corp., 624 F.2d 436 (1980).
Defendant also argues plaintiff failed to meet her obligations to
mitigate damages in that she was not reasonably diligent in seeking other
Title VII imposes on plaintiff a duty to mitigate, requiring any
interim earnings and amounts earnable through reasonable diligence by
plaintiff to be set off against the back pay otherwise awardable.
42 U.S.C. § 2000e-5 (g). Also, See Ford Motor Co. v. EEOC,
458 U.S. 219, 231-32, 102 S.Ct. 3057, 3065-66, 73 L.Ed.2d 721 (1982). The
relevant language found in Title 42 U.S.C. § 2000e-5 reads:
"Interim earnings or amounts earnable with
reasonable diligence by the person or persons
discriminated against shall operate to reduce the
back pay otherwise allowable."
The issue of back pay in this case was submitted to the jury as was the
question of whether plaintiff met her statutory obligation of mitigating
Because the defense of mitigation of damages is an affirmative
defense, defendant has the burden to prove by a preponderance of the
evidence that plaintiff failed to mitigate her damages. Wheeler v. Snyder
Buick, Inc., 794 F.2d 1228, 1234 (7th Cir. 1986). To this end, defendant
must prove (i) that plaintiff's damages in the form of back pay could
have been avoided, and (ii) plaintiff failed to exercise reasonable
diligence in seeking a job substantially equivalent to the one she was
On the issue of mitigation, Purolator offered the testimony of William
Ceriani, a labor market analyst with the Pennsylvania Department of Labor
and Industry, Bureau of Research and Statistics, to establish regional
employment and economic conditions and demographic data for southwestern
Pennsylvania. Specifically, Ceriani testified as to the number of job
options available in the Pittsburgh labor market in the most recently
finished three fiscal years for the positions of secretary,
clerk-typist, waitress, bartender, and nurse's aide. While these were
positions which plaintiff testified she had held in years past, there was
no testimony regarding the availability of the same or comparable work as
that of a courier guard.
Plaintiff's employment history following March 28, 1988, can be
summarized as follows. Plaintiff did not find employment for a period of
approximately three months in 1988, though she did make country dolls for
a profit of $150.00. Her job pursuits through October 9, 1989, included
calling DHL, Federal Express, First Courier and filing an application
with the Ground Round restaurant.*fn8 Thereafter, plaintiff filed three
applications with Duquesne Light Company, and applications with Swisher
International, J.W. Halls and Gregg Temporary Services. Plaintiff also
testified that her resume, in the form of an application, was on file
with the Pennsylvania Unemployment Office.
From this evidence, we conclude that plaintiff's efforts to secure
employment were sufficient to place the issue of mitigation before the
jury and that the jury's verdict in relation to back pay, was consistent
with the mitigation evidence. This is particularly evident when the same
is viewed in tandem with Purolator's evidence regarding job opportunities
which, we note, failed to identify the availability of either the same or
comparable work to that of a courier guard.
III. The Court Erred In Permitting Plaintiffs Counsel To Argue In Closing
Arguments Evidence On Matters Not In The Record, To Fabricate
Testimony And To Argue Theories of Liability Not before The Jury
The prejudicial impact of plaintiff's counsel's remarks are raised in
the following three instances.
1. Defendant notes that this is a case concerning disparate treatment
and yet plaintiff argued disparate impact to the jury in his summation to
the jury. Specifically, plaintiff's counsel argued:
"How many women do you know who are 18 — wheel
truck drivers or move heavy freight or heavy
products? We know of one, and we may know of more.
Without . . . is that, inherently discriminatory
when he's talking about, I'm going to base it on
finding people with these characteristics; isn't
that inherently discriminatory, because there are so
few women with those traits?"
2. Defendant argues plaintiff's counsel was impermissibly permitted to
argue standards applicable to a National Labor Relations Act case over
defendant's objections. Specifically, counsel argued:
"The other information had to do with Patricia baker
having a sic] participated in wage and hour claim
and demand along with other employees. Some of you
are union people, and you're not asked to put aside
your common sense. It is not permissible and
legitimate to pick on people because they have
demands of wages and hours."
3. Defendant argues the Court erred by allowing plaintiff's counsel to
fabricate testimony by arguing the following in his summation to the
"We have the testimony of Laura Lawrence. She wasn't
here. We have some idea of what she was saying. She
said that Patricia Baker and some other [people were
disruptive troublemakers; they were demanding
information about wages and hours. However, she said
that about Patricia Baker, but didn't say it about
the other men when they applied. Mr. Kaczorowski
tells us they identified Patricia Baker, but not
those other men. Is that a difference in treatment
between men and women?
We also have a . . . the Hites recommendation. Now,
when he prepared his roster or listing of preferred
people and less preferred people, when he got on the
stand and gave his direct testimony for the first
time he said that he preferred men who had a job
class history of Class 3 licenses, freight work, and
heavy, heavy loading.
Defendant contends that because the Court failed to sustain defendant's
objection or to cure the remarks in it charge to the jury, reversible
error was committed warranting a new trial.
Not every improper or poorly supported remark made in summation can be
said to irreparably taint the proceedings. What the Court must consider
is whether counsel's conduct created undue prejudice or passion which
played upon the sympathy of the jury. Smith v, National R.R. Passenger
Corp., 856 F.2d 467 (2nd Cir. 1988).
The Court has considered the summation of plaintiff's counsel in the
context of all of the evidence. We are satisfied that very little
confusion, if any, was caused by counsel's remarks. There was, as defense
counsel points out, no evidence of disparate impact in this case. In
fact, all of the testimony was tailored to address plaintiff's disparate
treatment theory. Any misconceptions created by counsel's summation would
have been eliminated by the Court's charge which called upon the jury to
consider the evidence in light of the disparate treatment formula set
forth in McDonnell Douglas, supra.*fn9
Finally, even if we assume that counsel's summation departed from the
evidence in the record, defendant was not significantly prejudiced by his
remarks, particularly in light of the Court's repeated instructions
admonishing the jury that statements of counsel were not evidence.
IV. The Court Erred In Refusing To
Allow Certain Testimony During
During Purolator's case-in-chief, Jack Firich was called as a witness.
At side bar, counsel gave an offer of proof that Firich was plaintiff's
dispatcher at V.C. Express, that plaintiff, on several occasions, refused
to do certain work upon his request, and that he assisted Hites in
preparing plaintiff's recommendation that was given to defendant.
Plaintiff's counsel objected on the grounds of relevancy and the Court
sustained his objection as to Finch's discussing his experiences with
plaintiff. The Court's ruling specifically excluded any evidence that
Finch told plaintiff to do certain things and she refused.
Defendant argues the evidence should have been admitted in that it
provided another non-discriminatory reason for not hiring plaintiff.
Counsel recalled Finch to testify regarding plaintiff's alleged
inflexibility when asked by him to perform additional duties. While the
Court had previously sustained an objection to this line of questioning,
it was permitted in this instance because the Court concluded that
plaintiff had opened the door to the issue of plaintiff's flexibility.
In this light, the following questions were asked:
Q. Did you ever have occasion to ask Patti Baker to
perform responsibilities outside her standard
Q. . . . And would you say once a week, once every
two weeks, once a month, once every six months, how
often would you make such a request of her?
A. Maybe once every two weeks.
Q. And what was her response?
A. "I can't."
N.T. at 454-455.
Any error that could be assigned to the Court's earlier sustaining of
objections to this line of question is rendered harmless since defendant
was permitted to introduce this testimony at a later point in the trial.
Defendant also posits it was error for the Court to permit plaintiff's
counsel to argue to the jury that certain testimony was manufactured over
the lunch break to offset testimony presented earlier in the day.
The statement of plaintiff's counsel to which defendant assigns
prejudicial error reads as follows:
Mr. Hites in his first appearance on the stand said
people were given better standing based on whether
they were freight drivers, heavy duty drivers, and
class 3 licensees. He also included, he gave
preference to a Navy person. But the — is that
a legitimate job qualification, and should he be
giving references on their History, or should he be
giving references on their work. If they do good
work why is he giving references based on their
Now, after he did — after he was on the stand
he came back after lunch for redirect. And after
lunch he added, and Mr. Finch added some new
qualifications for why Patricia was not hired. They
said, first of all, Patricia Baker didn't sign up
for voluntary work on Saturdays. Is that reason
— does that make her a less capable employee?
Secondly, they said did she, did she respond to
special delivery requests? And they said
occasionally she, she said, no, I won't do it. Now,
the — when they asked her to do special
delivery requests and she was available to do it,
then asked her, they asked her nine out of ten
Now, when somebody else was — when she was not
available to do it there must have been some other
man they asked nine out of ten times, or they may
have distributed that according to who had hours,
but when she was on the job herself, they asked her
to do it nine out of ten times.
Now, is it unreasonable and is it inflexible to
say, you know, I've done my route for the day guys;
can't I not do it today? Is that unflexible (sic)?
In fact, that's something they thought up after
lunch. (emphasis added)
N.T. of summations at 43-44.
The Court permitted both counsel considerable latitude in making
closing argument to the jury. As a matter of course, the jury was
specifically cautioned by the Court not to give either counsels' argument
any evidentiary weight. Upon considering the context in which plaintiff's
counsel's remarks were made, we are satisfied that the Court's admonition
defeats any prejudice that could conceivably have resulted from his
While counsel may have been guilty of a poor choice of words, his
summation in this regard falls short of creating the level of prejudice
that would require this Court to grant a new trial. Though we find that
no prejudice resulted from counsel's remarks, we again take the position
that any possible prejudice that may have been visited upon defendant was
insignificant and harmless, particularly in light of the Court's
instructions admonishing the jury that statements of counsel were not
While we agree that plaintiff's counsel did not in his summation recite
the testimony in question verbatim, a liberal reading of counsel's
statement leads us to conclude that his words, though they may have been
better chosen, were not prejudicial.
Plaintiff testified that while with V.C. Express, she and three men,
one of whom was hired by defendant, were on the dock talking with one
another when one of the men questioned Laura Lawrence about wages.
Plaintiff testified that she did not take part in these discussions.
Defense witness Kaczorowski testified on cross that the only disruptive
worker reported to him by Lawrence concerning this incident was
It was for the jury to decide whether to believe the testimony of
plaintiff or Kaczorowski as it relates to the occasion in question.
Plaintiffs counsel's remarks simply invited the jury to decide whose
testimony is believable.
On the matter of counsel's attempt to quote certain comments of defense
witness Hites, there is no dispute that Hites did not testify that he
preferred to hire men with Class 3 licenses. However, immediately after
plaintiff's counsel made his statement and opposing counsel objected, the
court noted, for the third time during the closing arguments up to that
point, that . . . "this is argument, and the jury, while you may consider
the argument, you're not bound by it, and it's for you to decide the
facts on the evidence as you recall the evidence."
Once again, the Court is satisfied that this admonition eliminated any
taint or unfairness that may have resulted from plaintiff's counsel's
choice of words and that the request for a new trial is unwarranted.
V. The Court Erred By Allowing A Jury Trial of Plaintiff's Claim of Sex
Discrimination When Plaintiff Sought Only Equitable Relief
This issue has been fully addressed in the Court's Opinion entered in
this case on October 2, 1990. Accordingly, no further review or
disposition is necessary.
Defendant's Motion For Judgment Notwithstanding the Verdict and its
Alternative Motion For A New Trial is DENIED.
An appropriate Order will be entered.