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June 21, 1994


The opinion of the court was delivered by: DONALD W. VANARTSDALEN


 I. Brief Procedural History

 After his May 1990 discharge by defendant CIGNA Corporation (CIGNA), plaintiff Jackey Griffiths filed this action on April 11, 1991, alleging claims of racial and national origin discrimination and retaliatory discharge from employment in violation of federal and Pennsylvania statutory law, as well as several common law claims, all stemming from plaintiff's denial of promotion and subsequent discharge from defendant CIGNA's employ. *fn1" (See Complaint, Filed Doc. No. 1.) After a trial in March 1992, the jury returned a verdict against defendants on plaintiff's claims for retaliatory discharge and for malicious prosecution. *fn2" The jury awarded plaintiff $ 377,500.00 in damages. (Filed Doc. No. 45.) Defendants filed a motion for a new trial and an amendment of judgment which I denied in an order entered May 13, 1992. (Filed Doc. Nos. 50, 57.)

 Defendants appealed from that order, and in an opinion filed March 17, 1993 the Court of Appeals for the Third Circuit remanded the case for entry of judgment in favor of defendants on the malicious prosecution claim and directed a new trial on the retaliation claim. See Griffiths v. CIGNA Corp., 988 F.2d 457, 472 (3d Cir. 1993). The Court of Appeals held that the trial judge failed to properly instruct the jury that, under the evidence presented in the case, plaintiff had to prove by a preponderance of the evidence that the sole cause of his discharge was retaliation for filing an EEOC complaint. *fn3" Plaintiff then petitioned for a writ of certiorari to the Supreme Court, which was denied on October 4, 1993. See Griffiths v. CIGNA Corp., 126 L. Ed. 2d 145, 114 S. Ct. 186 (1993).

 Defendant CIGNA filed the present motion for judgment as a matter of law, or in the alternative, for a new trial and/or remittitur, on April 28, 1994. (Filed Doc. No. 102.) For the reasons set forth below, the motions will be denied.

 II. Judgment as a Matter of Law

 Defendant premises its motion for judgment as a matter of law pursuant to Rule 50(b) *fn7" on two grounds: 1) the claim under the Pennsylvania Human Relations Act (PHRA) should have been dismissed, because this court did not have subject matter jurisdiction over that claim; and 2) "no reasonable jury could find based on the evidence that (i) CIGNA's reason for Plaintiff's discharge was false and that retaliation was the sole cause of the discharge; or (ii) that Plaintiff was entitled to any damages, compensatory or punitive." (Filed Doc. No. 102 at 2.)

 A judgment as a matter of law is appropriate only where the jury's verdict is not supported by sufficient evidence to allow reasonable jurors to arrive at the verdict. Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993); Link v. Mercedes Benz of N.A., Inc., 788 F.2d 918, 921 (3d Cir. 1986). Although a scintilla of evidence is not enough to withstand a motion for judgment as a matter of law, the denial of a motion for judgment as a matter of law is proper unless the record "is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief." Denneny v. Siegel, 407 F.2d 433, 439-40 (3d Cir. 1969); see also Walter, 985 F.2d at 1238; Simone v. Golden Nugget Hotel and Casino, 844 F.2d 1031, 1034 (3d Cir. 1988). The court is not free to weigh the evidence or to pass on the credibility of witnesses or to substitute its judgment of the facts for that of the jury. Lightning Lube v. Witco Corp., 802 F. Supp. 1180, 1185 (D. N.J. 1992), aff'd by 4 F.3d 1153 (3d Cir. 1993). Moreover, a court "considering a motion for [judgment as a matter of law] must view the evidence, together with all reasonable inferences therefrom, in the light most favorable to the verdict winner." Rotondo v. Keene Corp., 956 F.2d 436, 438 (3d Cir. 1992). The fundamental principle guiding the court when considering a motion for judgment as a matter of law is that there must be a minimum of interference with the jury and its deliberative processes. Lightning Lube, 802 F. Supp. at 1185. A case may not be taken away from the jury merely because "a measure of speculation and conjecture is required" when facts are in dispute and fair-minded individuals may draw differing inferences. Id. (quoting Lavender v. Kurn, 327 U.S. 645, 653, 90 L. Ed. 916, 66 S. Ct. 740 (1946)). Therefore, this court must determine only whether the evidence and the justifiable inferences in favor of the prevailing party afford any rational basis for the verdict.

 A. Subject Matter Jurisdiction

 Defendant premises its motion for judgment as a matter of law in part on its contention that plaintiff's failure to exhaust his administrative remedies under the PHRA deprived this court of subject matter jurisdiction. *fn8" This contention was the subject of a motion to amend defendants' answer to the complaint *fn9" and a motion for summary judgment filed by defendants, both of which were denied by order entered March 30, 1994. (See Filed Doc. Nos. 81, 82, 85, 86, 87.) For the reasons set forth in the memorandum accompanying that order, as well as those set forth in the discussion below, I find that the contention that plaintiff failed to exhaust his administrative remedies is similarly unavailing in the context of a motion for judgment as a matter of law.

 In the order entered March 30, 1994, defendants were denied leave to amend their answer to the complaint by which they admitted to exhaustion of remedies. (Filed Doc. No. 87 at 12.) Both federal and Pennsylvania courts urge leniency in allowing amendment, except in cases "where unfair surprise or some comparable prejudice" would result. Pilotti v. Mobil Oil Corp., 388 Pa. Super. 514, 565 A.2d 1227, 1229 (Pa. Super. 1989); see also Fed. R. Civ. P. 15(a); Pa. R. Civ. P. 1033; Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 28 L. Ed. 2d 77, 91 S. Ct. 795 (1971); Cornell & Co. v. Occupational Safety and Health Review Comm'n, 573 F.2d 820, 823-24 (3d Cir. 1978). I found that defendants' proposed amendment would "cause great prejudice, would cause further undue delay, and [was] of questionable [good] faith." (Filed Doc. No. 87 at 12.) The motion to amend was denied.

 In many other contexts, Pennsylvania courts have demonstrated willingness to suspend the exhaustion requirement in exceptional cases, thereby suggesting that failure to exhaust administrative remedies is more accurately characterized as a procedural, rather than a jurisdictional, issue. See, e.g., Ohio Casualty Group of Ins. Cos. v. Argonaut Ins. Co., 514 Pa. 430, 525 A.2d 1195 (Pa. 1987) (stating that the rule requiring exhaustion of administrative remedies is not intended to set up procedural obstacles to recovery, and that the rule should be applied only where available administrative remedies are adequate); Feingold v. Bell of Pa., 477 Pa. 1, 383 A.2d 791 (Pa. 1977) ("As with all legal rules, the exhaustion of administrative remedies rule is neither inflexible nor absolute, and this court has established exceptions to the rule.").

 Exhaustive research uncovered no case in which a Pennsylvania court, confronted by an unqualified admission of record of exhaustion of administrative remedies, decides that failure to exhaust cannot be waived or that the defendant cannot be estopped from later altering the admission by contending plaintiff failed to exhaust his state administrative remedies. I conclude that exhaustion of administrative remedies is a procedural restriction to the right to bring suit under the PHRA that may be subject to estoppel and waiver due to unqualified admission in an answer that all administrative procedures have been exhausted. See also cf. Daugherity v. Traylor Bros., Inc., 970 F.2d 348, 351-52 n.5 (7th Cir. 1992) (confronting this issue in a Title VII context).

 Moreover, similarly exhaustive research uncovered no case in which a Pennsylvania court allowed a defendant to amend its answer to change an unqualified admission of exhaustion to a denial of exhaustion, thereby depriving the court of subject matter jurisdiction and subjecting the plaintiff to a devastating loss of forum, all after a trial, an appeal, and a remand order. Indeed, the closest case on that point strongly suggests that Pennsylvania courts would not grant defendants leave to amend under the circumstances of the present case.

 In Ligon v. Middletown Area Sch. Dist., the plaintiff brought an action against the defendant school district as well as a contractor performing renovations for the school district. Ligon, 136 Pa. Commw. 566, 584 A.2d 376, 379 (Pa. Cmwlth. 1990). Before the plaintiff rested his case he entered into a joint tortfeasor's settlement with the school district. The issue of the school district's liability nevertheless went to the jury for apportionment of liability between the school district and contractor. When the jury returned a verdict against the school district in an amount exceeding the settlement amount with the school district, the plaintiff reversed his position and argued that the school district was immune from suit on the grounds of local governmental immunity, thereby contending in essence that the trial court lacked jurisdiction to enter a judgment against the school district. The plaintiff sought to have the school district relieved of liability so that the contractor would remain as the sole defendant responsible for the jury's entire award. Id. The court held that the doctrine of judicial estoppel, the well-established principle that a party may not assert contrary positions in the same or related proceedings, applied to "prevent a party from changing his or her position regarding jurisdiction because it suited that party's interest." Id. at 380.

  In the present case and unlike Ligon, there is no allegation of a nefarious motive underlying defendant's attempt to change its position regarding jurisdiction. At the same time, however, defendant fails to provide a "good" reason for changing its position; its sole explanation for changing its unqualified admission of exhaustion of administrative remedies is that the admission was made "only through inadvertence." (Filed Doc. No. 82 at 6.) Defendant's admission of exhaustion apparently was based on a misreading (or non-reading) of documents in its possession. *fn10" After a diligent search of both the printed media and the electronic database, I am unable to uncover any Pennsylvania case that directly address the conundrum caused by a defendant who seeks to change an admission made "only through inadvertence," particularly when this admission would impose severe prejudice on plaintiff. *fn11" In the absence of such guidance, this court must predict how the Pennsylvania Supreme Court would rule if the issue were presented to it. Hospital Support Serv., Ltd. v. Kemper Group, Inc., 889 F.2d 1311, 1313 (3d Cir. 1989).

 The reasoning of Ligon is persuasive and convinces me that the principle of judicial estoppel and/or waiver would be adopted by the Pennsylvania Supreme Court if faced with the facts of the present action. See cf. Avondale Cut Rate, Inc. v. Associated Excess Underwriters, Inc., 406 Pa. 493, 178 A.2d 758, 760 (Pa. 1962) (citing the "established rule that an amended answer which is irreconcilable and inconsistent with admissions in the original answer, without explanation for the inconsistencies, is insufficient to prevent the granting of judgment in favor of the plaintiff."). Therefore, to the extent that defendant premises its motion for judgment as a matter of law as to the PHRA claim pursuant to Rule 50(b) on lack of subject matter jurisdiction, the motion will be denied.

 B. Insufficient Evidence with respect to liability

 Defendant further contends that it is entitled to judgment as a matter of law because plaintiff did not satisfy his burden of proving by a preponderance of the evidence that retaliation was the sole cause of the decision to discharge plaintiff. *fn12" It is clear, however, that ample evidence was presented to allow a reasonable jury to find that defendant discharged plaintiff solely in retaliation for his having filed a charge with the EEOC.

 Defendant claims that it "produced evidence at trial of a legitimate non-discriminatory reason for the discharge: Plaintiff's refusal to cooperate with his employer's investigation of reported thefts." (Filed Doc. No. 102 at 13.) Defendant asserts that plaintiff failed to prove that this proferred explanation was false, and that retaliation was instead the sole cause of the decision to discharge plaintiff. (Id.) I disagree, but--more importantly--so did the jury. Among other things, plaintiff presented evidence from which the jury could properly find that the investigation was a sham; that although many months had elapsed since the computer thefts began, the investigation was initiated only after plaintiff filed a charge with the EEOC; that the investigation focused solely on plaintiff despite other possible suspects; and that the investigation was abandoned after plaintiff was discharged, despite the continuing theft of computers. *fn13" Defendant's claim that plaintiff "refused to cooperate" in the investigation after criminal charges against him were dismissed was also severely undermined. *fn14" It is thus clear from the evidence that a reasonable jury could--and did--conclude that defendant's proferred reason for discharging plaintiff was a pretext, and that the sole cause of plaintiff's discharge was retaliation for his having filed a charge with the EEOC. See Hicks v. St. Mary's Honor Center, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2751 (1993) (requiring that once an employer has met its burden of production by coming forward with a nondiscriminatory business reason for discharging a protected employee, the employee must then prove that the business reason was pretextual and that he was intentionally discriminated against).

 Defendant further argues that Quiroga v. Hasbro, Inc., 934 F.2d 497 (3d Cir. 1991), is on point with this case. Defendant is correct in stating that "Quiroga held that the timing of the discharge in relation to the filing of a EEOC complaint does not alone create an inference of discrimination." *fn15" (Filed Doc. No. 102 at 14.) Indeed, the Quiroga court was emphatic that the "timing of the discharge in relation to [an] EEOC complaint may suggest discriminatory motive," but that an inference could not be created based on timing alone. Quiroga, 934 F.2d at 501 (quoting Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989), cert. denied, 493 U.S. 1023, 110 S. Ct. 725, 107 L. Ed. 2d 745 (1990)). The plaintiff in Quiroga, however, contrary to defendant's claims, did not present "the same kind of evidence plaintiff proferred in the present action." (Filed Doc. No. 102 at 14.) Rather, the plaintiff in Quiroga "presented only his subjective belief [that he was constructively discharged], but absolutely no supporting evidence that Hasbro's motives were improper." Moreover, the defendant employer presented evidence that it did not retaliate, but instead made extraordinary efforts to placate plaintiff and retain him in its employ. Quiroga, 934 F.2d at 501-02. In contrast, in the present case, plaintiff presented sufficient evidence to support his contention that defendant's motives were improper: he presented evidence that the investigation was a sham designed to elicit a response from him on which defendant could premise the discharge it planned in retaliation for his having filed a charge with the EEOC. See supra notes & . The verdict suggests that the jury accepted this version of events.

 Defendant's other cited cases are similarly unavailing. Defendant claims that the present action "is on all fours with the facts" in Savko v. Port Authority of Allegheny County, 800 F. Supp. 275 (W.D. Pa. 1992). Defendant is especially enamored of Savko 's finding that the plaintiff had "failed to establish a prima facie case of retaliation because she did not establish a causal connection between the filing of the discrimination charge and her subsequent discipline and eventual discharge from employment." Savko, 800 F. Supp. at 286. However, in sharp contrast with Savko, in the present action plaintiff had no such problem establishing the requisite causal connection. Plaintiff presented credible evidence that his EEOC charge was known to at least some of defendants' employees before the investigation was launched. See, e.g., Tr. Trans. 2-186--2-190. Moreover, in Savko the plaintiff did not prove that the employer's stated reason for her discharge was pretextual. Rather, the employer presented evidence demonstrating that the plaintiff was "disciplined for legitimate, non-discriminatory reasons and eventually discharged for her repeated acts of insubordination." Savko, 800 F. Supp. at 287. In the present action plaintiff presented competent evidence demonstrating to the jury's satisfaction that defendant's reason for plaintiff's discharge--that he failed to cooperate in an investigation--was pretextual.

 Ironically, had defendant claimed that plaintiff was fired because, notwithstanding dismissal of the criminal charges against him, defendant still firmly believed that plaintiff was a thief, defendant might not have been held liable. If the jury accepted such a contention, then retaliation could not have been the "sole cause" for the discharge. Yet defendant never attempted to make this seemingly obvious argument (and--assuming for the moment that the argument could have been made in good faith--such oversights cannot be corrected in post-trial motions). Instead, defendant relied on its so-called policy against attorney attendance at investigatory interviews as the only reason for the discharge. The jury decided, not surprisingly, that this was a spurious reason, and concluded that retaliation was the sole cause for the discharge.

 Therefore, to the extent that defendant premises its motion for judgment as a matter of law on insufficient evidence demonstrating that retaliation was the sole cause of ...

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