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[W] Sheridan v. E.I. Du Pont de Nemours and Co.

January 31, 1996

BARBARA R. SHERIDAN APPELLANT

v.

E. I. DUPONT DE NEMOURS AND COMPANY; JACQUES AMBLARD



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Civil No. 93-00046)

Before: SLOVITER, Chief Judge, and ALITO, Circuit Judge, and SCHWARZER, Senior District Judge *fn*

ALITO, Circuit Judge

OPINION WITHDRAWN

BARBARA R. SHERIDAN APPELLANT

v.

E. I. DUPONT DE NEMOURS AND COMPANY; JACQUES AMBLARD

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Civil No. 93-00046)

Before: SLOVITER, Chief Judge, and ALITO, Circuit Judge, and SCHWARZER, Senior District Judge *fn*

THOMAS S. NEUBERGER, ESQ. (Argued) 200 West Ninth Street, Ninth Street Plaza Wilmington, DE 19801-1646

Attorney for Appellant RAYMOND M. RIPPLE, ESQ. (Argued) DONNA L. GOODMAN, ESQ. E.I. duPont de Nemours & Company Legal Department 1007 Market Street, Dupont Building Wilmington, DE 19880-0036 Attorneys for Appellee

ALITO, Circuit Judge

Argued: May 4, 1995

Opinion Filed: January 31, 1996)

OPINION OF THE COURT

Barbara Sheridan filed this action against her former employer, E.I. duPont de Nemours & Co., Inc. ("duPont"), and a duPont supervisory employee, Jacques Amblard, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section(s) 2000e-l et seq. She asserted several different claims for sex discrimination and unlawful retaliation. Before trial, the district court granted the defendants' motion in limine to exclude certain evidence. During trial, the court dismissed the claims against Amblard on the ground that an employee cannot be sued under Title VII. The jury subsequently returned a verdict in favor of Sheridan and against duPont on her constructive discharge claim, but the jury found for duPont on Sheridan's remaining claims. The district court then granted duPont's motion for judgment as a matter of law (and in the alternative for a new trial) on the constructive discharge claim.

Following the great weight of the federal appellate decisions concerning employee liability under Title VII, the Age Discrimination in Employment Act, 29 U.S.C. Section(s) 621 et seq., and the Americans with Disabilities Act, 42 U.S.C. Section(s) 12111 et seq., we affirm the dismissal of the claims against Amblard. Because we are bound by our court's decision in Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994), and subsequent decisions following Fuentes, we reverse the entry of judgment as a matter of law on the constructive discharge claim against duPont, but we affirm the granting of a new trial. We also hold that the district court did not err in its ruling on duPont's motion in limine.

I.

Barbara Sheridan began working for duPont in 1979 as a parttime waitress in the Hotel duPont. Sheridan v. E.I. duPont de Nemours and Co., No. 93-46 (D. Del. March 28, 1994) ("Sheridan I") at 2. She was subsequently promoted to hostess in the Lobby Lounge, group leader in the Lobby Lounge, and captain in the Brandywine Room restaurant. Id. at 2-3. In May 1989, she was transferred to the Green Room restaurant and was promoted to head captain of the breakfast and lunch shifts. In this capacity, she reported to Ed Barba, the Green Room restaurant manager. Barba, in turn, reported to Nicholas Waller, who managed all the hotel's restaurants. Id. at 3.

Initially, Sheridan received good employment reviews. Her 1990 performance review rated her overall performance as "very good," which was the second highest possible rating. App. 197. She received the highest possible rating in the categories of interpersonal relationships, planning, and problem solving. Id. Her lowest marks, in the categories of oral and written communication and attendance, were respectively "good" and "satisfactory." Id. The review summarized her strengths and weaknesses as follows:

Very good guest relations, organized. As a team player, strengthening is needed to improve the overall relationship with the rest of the operation. . . . Since May of 1989, Barbara's persistence has paid off by guest loyalty, staff does not call off sick, and overall very good morale from the support team. App. 198.

Sheridan also received several awards and merit increases. In May 1990, she received a $948 yearly merit increase. She also won a $1000 accomplishment award in December of that year. App. 151. The letter that informed her of this award stated:

[t]he enthusiasm you portray in greeting customers and providing them service is outstanding . . . . [Y]ou project an image of quality, service and commitment. . . . Your success in creating an environment in which high quality customer service flourishes is evident by the team spirit of your staff. Again, congratulations for this well-deserved award and thank you for being a role model and a true ambassador for the company. Id.

While other employees received awards for $200 to $500, Sheridan was the only restaurant employee to receive a $1000 award. App. 287. The next month, she was chosen to appear in a company video, and in February 1991 she received another merit raise of $1188 per year. App. 733-34, 740-41.

DuPont claims that Sheridan's performance began to deteriorate in early 1991. In February 1991, Ed Barba met with Sheridan and discussed various corrective measures. App. 228. Two of these measures were maintaining an accurate count sheet to insure a fair distribution of "covers" (i.e., tips received from the tables) and ending her use of the Green Room bar for grooming and smoking. Id. Despite this meeting, Barba later saw Sheridan putting on makeup and smoking in the Green Room bar. App. 229, 305h.

According to Nicholas Waller, he met with Sheridan in the summer of 1991 to discuss "numerous complaints" about her treatment of Green Room employees. App. 960. Waller testified that employees had complained that Sheridan had asked them to perform personal services, such as parking her car, giving her a wake-up call, and taking personal mail to the post office. App. 963. These employees allegedly told Waller that those who helped her with these personal tasks were favored with more "covers." Id. Sheridan, however, disputed Waller's recollection of this meeting. Sheridan points to Barba's testimony that he was unaware of any employee complaints regarding "covers" between February and September 1991. App. 298. She also observed that, despite the alleged complaints, she received another promotion and raise on October 1, 1991. App. 142.

During the summer and fall of 1991, the hotel streamlined its operating structure. Sheridan I at 5. As part of this reorganization, the hotel eliminated the managers of the individual restaurants and hired a single new manager for all the restaurants. Id. Sheridan applied for this new position, but the hotel selected Jeff Maisel. Id. Sheridan felt that she was qualified for this position and that she was not promoted because of her sex. On at least three occasions, she complained about this alleged discrimination to Jacques Amblard, the hotel general manager. Id. at 5-6.

On October 17, 1991, Maisel met with Sheridan to discuss her alleged unfairness in the distribution of "covers," her tardiness, and her continued disregard for the hotel's grooming policy. App. 206, 885. Subsequent to this meeting, duPont claims that the following infractions were recorded:

Oct. 20: Sheridan was 45 minutes late and violated grooming policy.

Oct. 22: Sheridan was 25 minutes late.

Oct. 23: Sheridan was 20 minutes late.

Nov. 3: Sheridan was 17 minutes late and violated grooming policy.

Nov. 3: During a staff meeting, Sheridan left premises and was observed with another employee in a company van.

Nov. 7. Sheridan was eating and smoking in Green Room bar during service hours.

App. 206.

Allegedly because of these continued infractions, Maisel placed Sheridan on probation on November 10, 1991. Maisel told her that in order to be taken off probation, she would have to report to work on time, follow the hotel's grooming and smoking policies, and stay in her assigned work area. App. 207. Maisel informed her that further infractions or instances of poor performance could result in termination. App. 208.

Other incidents allegedly took place while Sheridan was on probation. When Joe Marshall, the room and service head captain, attended her daily staff meeting one day in February 1992, Sheridan told him to "leave her meeting," App. 219, and according to Maisel, who was present, Sheridan was quite rude. Id. Later, Sheridan was asked to work on a Sunday, but she initially refused. When told that she was required to report, she agreed but stated that "after 13 years she deserved to work Monday-Friday." App. 220.

In late February, the hotel began to investigate Sheridan for giving complimentary drinks without ringing up complimentary checks, as hotel policy required. App. 221. At trial, duPont offered evidence that Sheridan had improperly given away large quantities of complimentary drinks, as well as food. According to a supervisor who participated in the investigation, the investigation received "rather consistent feedback from the employees of the restaurant" that Sheridan "comped liquor and [did] not properly record[] it." App. 1159. An internal duPont document memorialized alleged statements by numerous co-workers, male and female, to the effect that Sheridan "comped" beverages and food without recording that this was being done. App. 222-226. The most damaging evidence came from a bartender, James Dougherty, who stated that he had kept a daily record of the drinks that Sheridan had improperly "comped," and that the total for the period from November 1, 1991, to February 18, 1992, was $921.75. Dougherty testified that his dates were "about 98-percent accurate." App. 688. There was evidence, however, that Sheridan was on jury duty or was not scheduled to work on some of the days in question.

After the investigation was completed, Maisel and others met with Charles Beinkampen, the director of hospitality, to determine what to do about Sheridan, and they decided to reassign her to a non-supervisory position that did not involve the handling of cash. App. 910, 1160. The hotel offered her the positions of front desk representative, health spa attendant, or banquet server. She was offered these positions without a reduction in pay. App. 910. While the hotel also claimed that she would be eligible for promotion and raises in any of these positions, Sheridan offered conflicting evidence.

Rather than accepting reassignment, Sheridan resigned in April 1992. Sheridan subsequently filed suit against duPont and Amblard, asserting three violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section(s) 2000e et seq. Count I of her complaint claimed that the hotel had refused to promote her to manager of restaurants because of her sex. App. 82-83. Count II charged that she had been placed on probation and that other disciplinary actions had been taken against her in retaliation for her complaints about the hotel's failure to promote her on account of her sex. App. 83. Count III alleged that the hotel had created intolerable working conditions that resulted in her constructive discharge. App. 83-84.

The district court denied the defendants' motion for summary judgment, holding, among other things, that the evidence in the summary judgment record, if believed, was sufficient to show that Sheridan had been constructively discharged. App. 68-69. The court granted in part the defendants' motion in limine to exclude certain testimony by Sheridan and two other witnesses. The court also ruled that the jury would serve as the finder of fact for the claims based on conduct that occurred after November 21, 1991, the date of the enactment of the Civil Rights Act of 1991, P.L. 102-166, 105 Stat. 1071 (1991), which granted a right to a jury trial on Title VII intentional discrimination claims for which compensatory or punitive damages are sought. The court ruled that the jury would serve in an advisory capacity for the claims based on events that occurred before that date. Thus, the court ruled that the jury would return advisory verdicts with respect to Count I (failure to promote) and those alleged retaliatory acts (Count II) that occurred before November 21, 1991. The court ruled that ...


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