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WOODSON v. SCOTT PAPER CO.

August 4, 1995

JAMES W. WOODSON
v.
SCOTT PAPER COMPANY



The opinion of the court was delivered by: EDMUND V. LUDWIG

 Defendant Scott Paper Company's post-verdict motion for judgment as a matter of law, to alter the judgment or, in the alternative, for a new trial, will be granted in part and denied in part. Plaintiff James W. Woodson's motion for prejudgment interest will be granted. The verdict will be reduced to $ 1,496,698.70.

 This employment discrimination action, filed November 16, 1993, was brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq.; the Pennsylvania Human Relations Act, 43 P.S. §§ 951 et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1981; and Pennsylvania common law. On December 23, 1994, summary judgment for defendant was granted in part. Order, No. 93-6076, Dec. 23, 1995; memorandum, No. 93-6076, Jan. 9, 1995. The remaining claims proceeded to trial on February 7, 1995.

 At trial, the following evidence, as viewed most favorably to plaintiff, was adduced. In 1970, plaintiff, an African American, was recruited for employment by defendant Scott Paper Company to work as a chemical materials specialist in Philadelphia. Feb. 8, 1995, N.T. 24; Feb. 13, 1995, N.T. 9-10; Plaintiff's exh. 1, at 5, 93. He was soon promoted and for almost 20 years, through 1990, received numerous promotions, positive performance evaluations, merit wage increases, bonuses and awards. N.T. passim.

 In November 1989 and February 1990, plaintiff filed charges of discrimination against defendant with the EEOC and the PHRC alleging that Scott had not considered him for top-level management positions because of his race. Feb. 8, 1995, N.T. 47-53; Feb. 13, 1995, N.T. 49-59. In October, 1990, he was promoted to product system leader of Light Weight Wet Strength - Napkins at defendant's Chester plant.

 In the following year, defendant undertook a company-wide reorganization of its management team. A "forced ranking" or evaluation was made of 27 managers, and the bottom five were terminated. Plaintiff finished 25th and was terminated on January 27, 1992 without prior notice. Defendant's only other African American manager was also ranked in the bottom five. The evaluations were performed without interviews, and two of the three evaluators had little familiarity with plaintiff's work. Plaintiff's annual evaluations were higher than or comparable to a number of the managers who were ranked above him.

 On February 15, 1995 the jury returned a verdict in favor of plaintiff on his retaliatory discharge claim and for defendant on the race discrimination claim. Inherent in the jury verdict was the finding that the rating system used to select him for termination was pretextual. The verdict of $ 1,557,845 included $ 150,000 in back pay, $ 397,845 in future earnings, $ 10,000 for emotional distress, and $ 1,000,000 in punitive damages.

 Defendant's post-verdict motion challenges the exhaustion of administrative remedies under the PHRA, the sufficiency of the evidence, and the jury instructions; and alternatively, the amount of the verdict. Plaintiff moves for prejudgment interest on the backpay award. *fn1"

 I.

 Defendant contends that this court lacked jurisdiction over the PHRA claim because the prerequisite administrative charge was not filed with the Pennsylvania Human Relations Commission. *fn2" 43 Pa.C.S.A. § 962. Without jurisdiction over the Pennsylvania law claim, the verdict amount, other than backpay, *fn3" would be subject to the $ 300,000 limitation of Title VII, as amended. 42 U.S.C. § 1981(a)(b)(3). *fn4"

 On July 22, 1992, plaintiff filed an administrative complaint with the EEOC alleging the facts giving rise to this action. Feb. 14, 1995, N.T. 5-6. However, he did not file with the PHRC, and his response to a request for admission concedes that his EEOC complaint was not cross-filed with the PHRC. Feb. 14, 1995, N.T. 5-6. *fn5" Also, on the EEOC charge form, he did not check the box requesting that the charge be filed with both agencies. Plaintiff's exh. 93. Nonetheless, by letter of July 29, 1992, the EEOC advised plaintiff, "You should be aware that the Commission will provide a copy of your charge to the [PHRC] in accordance with our procedures." Plaintiff's response to defendant's motion for summary judgment, Oct. 18, 1994, exh. I. The record also includes a copy of a form from the EEOC to the PHRC, dated July 29, 1995, which purports to transmit plaintiff's charge to that agency. Plaintiff's exh. 93. *fn6"

 Had the EEOC perfected the filing of the charge with the PHRC, in accordance with its letter and transmittal form, there would have been a sufficient PHRA filing for jurisdictional purposes. Vincent v. Fuller Co., 532 Pa. 547, 551, 616 A.2d 969, 971 (1992), citing, Lukus v. Westinghouse Electric Corp., 276 Pa. Super. 232, 419 A.2d 431 (1980). Plaintiff had no reason to believe a cross-filing had not occurred, and, in any event, defendant was not prejudiced by the lack of PHRC processing.

 In these circumstances, the EEOC's notice to plaintiff should be considered an equitable filing. Case law has not regarded the filing requirement jurisdictional where the failure or breakdown has been in the administrative system. See Hicks v. ABT Assoc., Inc., 572 F.2d 960, 967 (3d Cir. 1978) (jurisdiction existed under Title VII where EEOC improperly refused to accept administrative filing); Griffiths v. CIGNA Corp., 857 F. Supp. 399, 405 (E.D.Pa. 1994) (exhaustion of administrative remedies under PHRA is procedural and subject to estoppel and waiver); Feingold v. Bell of Pennsylvania, 477 Pa. 1, 10, 383 A.2d 791, 795-96 (1978) ("The rule requiring exhaustion of administrative remedies is not intended to set up a procedural obstacle to recovery"). PHRA's exhaustion of remedies provision mandates liberal construction to accomplish the Act's purposes. 43 Pa.C.S.A. § 962(a). *fn7" To deprive plaintiff of his state claim in this unusual situation would frustrate the remedial purpose of the statute. See Parsons v. City of Philadelphia Coordinating Office of Drug and Alcohol Abuse Programs, 833 F. Supp. 1108, 1113 (E.D.Pa. 1993) (PHRA jurisdictional requirement could be met if plaintiff had received some notice from the EEOC that her charge would be dually filed). Under the EEOC-PHRC worksharing agreement, *fn8" once the EEOC charge was filed, the PHRC's interest in the case was automatically terminated. Trevino-Barton v. Pittsburgh Nat'l Bank, 919 F.2d 874, 879 (3d Cir. 1990). As a result, the lack of perfected filing with the PHRC could not have worked any prejudice in practical terms to either that agency or defendant. See EEOC v. Commercial Office Products Co., 486 U.S. 107, 108 S. Ct. 1666, 100 L. Ed. 2d 96 (1988).

 In an analogous setting, it was held that "a filing with the [Philadelphia Commission on Human Relations] constitutes actual and sufficient compliance with the PHRA." Kedra v. Nazareth Hosp., 857 F. Supp. 430, 433 (E.D.Pa. 1994). See also Davis v. United States Steel Supply, 581 F.2d 335, 339 (3d Cir. 1978) (Pittsburgh Human Relations Commission filing satisfied PHRA). *fn9" But see Herbert v. Greyhound Lines, Inc., 1994 U.S. Dist. LEXIS 12712, No. 93-5447, 1994 WL 493732, *1 (E.D.Pa.) ("The mere filing of a Title VII complaint with the EEOC, however, does not constitute processing by the PHRC or satisfy the PHRA administrative requirements which have been held to be preclusive"). Under Hicks v. ABT Assoc., Inc. and other defective filing cases, there appears to be ample basis for jurisdiction over plaintiff's PHRA claim.

 II.

 Defendant's motion also contests the sufficiency of the evidence. To establish a prima facie case of retaliatory discharge under Title VII, *fn10" a plaintiff must show that: "(1) he was engaged in protected activity; (2) he was discharged after or contemporaneous with the activity; and (3) a causal link existed between the protected activity and threats to sue, and the loss of his job." Robinson v. SEPTA, 982 F.2d 892, 895 n.1 (3d Cir. 1993), citing Quiroga v. Hasbro, Inc., 934 F.2d 497, 501 (3d Cir.), cert. denied, 502 U.S. 940, 112 S. Ct. 376, 116 L. Ed. 2d 327 (1991), and 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). Defendant concedes the first two elements but maintains that plaintiff did not present the minimum quantum of evidence necessary for a jury to find the third element, the causal connection.

 To review the evidence on this issue, plaintiff's administrative charges, filed in November, 1989 and February, 1990, were pending at the time of his discharge, in January, 1992. *fn11" Two of the three evaluators who performed the "forced ranking" were aware of the charges when they assigned plaintiff the numerical grades that resulted in his termination. Feb. 9, 1995, N.T. 171-76, 187; Feb. 10, 1995, N.T. 9. Both the human services director and plaintiff's supervisor, who discussed these rankings with the evaluators during the ranking process, were also aware of his discrimination complaints. Feb. 9, 1995, N.T. 12; Feb. 10, 1995, N.T. 57-58. A "confidential work shedding memorandum" prepared by plaintiff's supervisor for the rankers predicted "An emotional reaction from [plaintiff] could result in an age race discrimination claim," and an increase in employee racial tension. Plaintiff's exh. 69. *fn12" These predictions could reasonably have been interpreted by the jury as warnings based on the previously filed discrimination charges - warnings that went unheeded. *fn13"

 Earlier, when plaintiff had filed his second administrative charge of discrimination, he was given a written performance evaluation recommending that he consult a behavioral psychologist in North Carolina. Feb. 13, 1995, N.T. 78. According to plaintiff, his work performance had remained constant. Id. at 71-79. Arguably, this recommendation, appearing in a formal written evaluation, was a response to his perception of racial animus among his superiors. It was also communicated to him orally. None of the evaluations mentioned his having any difficulty in getting along with his subordinates.

 When plaintiff was eventually promoted in 1990 after a number of requests, it was to lead the poorest performing division. Id. at 80-86. He was paid at a lower level than similarly situated colleagues and denied adequate staffing and management support. Plaintiff's exh. 10, 112, 125. This assignment was consistent with his theory that he was being set up for failure - and that this was the way the company had decided to deal with his discrimination charges. Moreover, according to plaintiff, the director of human resources for manufacturing had told him to withdraw the administrative complaints, which he refused to do. Feb. 13, 1995, N.T. 89, 185-86.

 There was testimony that in June, 1991, racial graffiti appeared in a men's room at the Chester plant: "Nigger, I'm going to get you"; "Niggers are taking our jobs"; "Niggers who talk are niggers who hang." Feb. 13, 1995, N.T. 108. Plaintiff was the only black management employee there. Defendant's response to this type of hate speech was portrayed by plaintiff as inadequate, thereby buttressing the evidence of retaliatory motive. See id. at 110; Feb. 10, 1995, N.T. 93-98; Feb. 14, 1995, N.T. 47-56. Later that year, ...


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