Marra v. Phila Housing Auth ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
8-3-2007
Marra v. Phila Housing Auth
Precedential or Non-Precedential: Precedential
Docket No. 06-1140
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1140
EDWARD J. MARRA, JR.;
ALBERT DIGRAVIO
v.
PHILADELPHIA HOUSING AUTHORITY,
MILTON D. SOIFERMAN
Philadelphia Housing Authority,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 03-cv-03832)
District Judge: Honorable Eduardo C. Robreno
Argued March 6, 2007
Before: SLOVITER and AMBRO, Circuit Judges
THOMPSON,* District Judge
(Opinion filed: August 2, 2007)
Melanie M. Kennedy, Esquire (Argued)
Cozen & O’Connor
1900 Market Street, 3rd Floor
Philadelphia, PA 19103
Jessamyne M. Simon, Esquire
Buchanan Ingersoll & Rooney
1835 Market Street, 14th Floor
Philadelphia, PA 19103
Counsel for Appellant
Nancy D. Wasser, Esquire (Argued)
1617 John F. Kennedy Boulevard
One Penn Center, Suite 1130
Philadelphia, PA 19103
Counsel for Appellees
OPINION OF THE COURT
AMBRO, Circuit Judge
*
Honorable Anne E. Thompson, Senior United States District
Judge for the District of New Jersey, sitting by designation.
2
The Philadelphia Housing Authority (“PHA”) appeals
from jury verdicts in favor of plaintiffs Edward Marra and
Albert DiGravio on their claims for unlawful retaliation under
the Pennsylvania Human Rights Act (“PHRA”), 43 Pa. Cons.
Stat. Ann. §§ 951-963. PHA raises a host of challenges before
us, contesting the admission of certain evidence at trial, the
sufficiency of the evidence supporting the verdicts, and the
consistency of those verdicts with particular findings made by
the jury on the plaintiffs’ other claims for relief. PHA also
argues, based on a misreading of our decision in Bereda v.
Pickering Creek Indus. Park, Inc., 865 F.2d 49 (3d Cir. 1989),
that the right to a jury trial on state law claims brought in federal
court is governed by state, rather than federal, law, and that, as
matter of uncontroverted Pennsylvania law, Marra and DiGravio
had no right to have a jury decide their PHRA claims. We reject
all of PHA’s contentions and affirm.
I. Factual Background and Procedural History
PHA, a state agency employing approximately 2,000
people, is responsible for developing and operating public
housing in the City of Philadelphia. At the time of the adverse
employment decisions that form the basis of their retaliation
claims, Edward Marra and Albert DiGravio were both employed
in supervisory positions in the Inspections Division of PHA’s
3
Design and Construction Department.1 DiGravio served as a
Rehabilitation Supervisor, a low-level supervisory position,
directly supervising approximately fifteen housing inspectors
(also known as Rehabilitation Specialists). Marra worked as a
Project Manager, a higher level supervisory position, directly
supervising Nicholas DiPiero, Construction Manager, to whom
DiGravio reported. Marra’s direct supervisor was Georgette
Galbreth, Assistant General Manager of the Design and
Construction Department, who in turn reported to Ramesh
Panchwagh, General Manager of the Design and Construction
Department. Panchwagh’s direct supervisor, Deputy Executive
Director Michael Leithead, reported directly to PHA’s highest
ranking official, Carl Greene, Executive Director.2 Events
giving rise to plaintiffs’ respective claims, viewed in the light
1
The Design and Construction Department included four
divisions: Capital Projects, Environmental Services, Inspections,
and Utility Management.
2
In short, DiGravio and Marra ranked as follows in the PHA
pecking order (at least as pertinent here):
1. Carl Greene
2. Michael Leithead
3. Ramesh Panchwagh
4. Georgette Galbreth
5. Marra
6. Nicholas DiPiero
7. DiGravio
8. Housing Inspectors
4
most favorable to each of them, are recounted below.
A. Edward Marra
In 1996, PHA hired Marra to work as Director of the
Inspections Division. In this capacity, he was responsible for
arranging and overseeing the inspection of houses that had been
rehabilitated by PHA to ensure compliance with all pertinent
housing codes, regulations and specifications. At the time,
among the several housing inspectors who worked under Marra
were DiGravio, Gerald Paladino, and James Wright.
In 1997, PHA created a new supervisory position in the
Inspections Division entitled Rehabilitation Supervisor. It held
a competition among the housing inspectors to fill three
available Rehabilitation Supervisor positions. Marra chaired a
panel that conducted interviews of the candidates and ultimately
recommended the promotion of Paladino, Wright, and DiGravio
to fill the new positions. Formal notices of appointment were
sent to both Paladino and Wright but later rescinded after
George Fields, an African American candidate, filed a grievance
charging race discrimination in the selection process. After
holding a second competition, PHA opted not to promote
Paladino or Wright, instead awarding the three Rehabilitation
Supervisor positions to DiGravio, Fields, and a third inspector
named Leonard Panarella.
In December 1999, Paladino and Wright filed a reverse-
5
race discrimination lawsuit against PHA in federal court,
asserting violations of Title VII of the Civil Rights Act of 1964
(“Title VII”) and the PHRA, among other statutes.3 Paladino v.
Philadelphia Hous. Auth., Civ. A. No. 99-6424 (E.D. Pa.)
(hereinafter, “Paladino”). In the course of discovery, Paladino
and Wright subpoenaed Marra to give deposition testimony. On
June 2, 2000, shortly after being deposed, Marra received a
written notice, signed by Executive Director Greene, among
others, advising him that he had been “involuntarily demoted”
to the position of Project Manager. Although his salary and job
duties were not materially affected by the demotion, Marra did
lose a $425 monthly stipend to cover the costs of using his
private vehicle for PHA business.
Approximately one year later, in June 2001, the Paladino
case proceeded to trial. Marra testified on behalf of Paladino
and Wright, appearing by subpoena. The jury subsequently
returned a verdict in favor of both Paladino and Wright and
against PHA, finding that PHA had discriminated against them
in violation of Title VII and the PHRA.4
3
Fields and three other PHA employees (no one of whom is
of particular relevance to our case) were also named as
defendants.
4
On appeal, we overturned the verdicts against PHA, finding
them to be inconsistent with the jury’s verdicts in favor of the
individual defendants on the same claims, and ordered the
District Court to enter judgment as matter of law in favor of
6
After testifying at the Paladino trial, Marra went on
vacation. On his return to work in early July 2001, he
discovered that the hard drive on his computer had been “totally
wiped out,” resulting in an extensive loss of work product that
he would be forced to prepare anew. App. at 222. Marra
immediately reported the computer damage to PHA’s
Information Systems Management, and sent a written
memorandum to his supervisors, Panchwagh and Galbreth,
alerting them to what he believed to be suspicious activity. A
PHA employee from Information Systems Management later
informed Marra that his computer had “burned out” without
providing any additional details. Marra had never before
experienced any problems with his computer. To the best of his
knowledge, PHA never conducted an independent investigation
into whether the computer crash was the product of foul play.
At some point shortly after his return from vacation,
Marra attended a meeting at which Greene was present. During
the meeting, Greene pointedly asked Marra whether he had
testified at the Paladino trial. When Marra answered yes,
Greene reacted with a “look of disgust.” App. at 296.
PHA. Paladino v. Philadelphia Hous. Auth., 65 Fed. Appx.
385, 2003 WL 1550963 (3d Cir. Mar. 26, 2003) (not
precedential). We note that the Paladino appeal was decided
long after PHA committed the allegedly retaliatory acts that
form the basis of the claims in this lawsuit.
7
A few months later, in the fall of 2001, at the request of
Greene and Deputy Executive Director Leithead, Panchwagh
and Galbreth undertook an evaluation of the Inspections
Division’s ongoing staffing needs as part of a reorganization
project designed to streamline operations within several of
PHA’s departments and divisions. Over the next several
months, with Galbreth’s assistance, Panchwagh prepared a
series of memoranda giving his recommendations for
reorganization of the Inspections Division, which he forwarded
to Leithead for review. In the first memorandum, dated
November 14, 2001, Panchwagh recommended the elimination
of the Project Manager position, which was held by Marra, as
well as four inspector positions, based on a dearth of available
work. In particular, Panchwagh opined that the Inspections
Division’s “hierarchy consist[ing] of four management layers
above the field staff [i.e., Assistant General Manager, Project
Manager, Construction Manager, and Rehabilitation Supervisor]
. . . is an ineffective use of resources . . . [,] le[aving] very little
work for the Project Manager, even at full workload and staffing
levels.” App. at 870. Panchwagh also believed that the
elimination of four inspector positions would “provide a more
effective use of resources.” App. at 871. According to Marra,
however, both he and his subordinates in the Inspections
Division had more than enough work throughout the second half
of 2001, including a major construction project that had been
assigned to him directly from Greene and needed to be
completed by year’s end, as well as several other projects that
continued into 2002.
8
In his second memorandum to Leithead, dated December
4, 2001, Panchwagh reiterated his recommendation that Marra’s
position be eliminated, specified by name three of the four
inspectors whose positions he recommended eliminating based
on date of hire, and noted that the Human Resources Department
would select the fourth inspector position to eliminate.
Panchwagh submitted various additional materials with the
memorandum, including draft lay-off notices for Marra and the
selected inspectors.
Panchwagh’s third and final memorandum to Leithead,
however, recommended a reorganization of the Inspections
Division that was considerably smaller in scope. Panchwagh
now urged the elimination of Marra’s position alone, his
memorandum making no mention of the four inspector positions
he had recommended eliminating twice previously. This final
memorandum was sent to Leithead on March 19, 2002.
Three days later, at a meeting attended by Panchwagh,
Galbreth, and a representative from the Human Resources
Department, Marra was informed that his position had been
eliminated as part of a reorganization of the Inspections Division
and that he would be laid off at the close of business that day.
Marra was naturally skeptical, this being the first he heard about
the reorganization, and decided to seek out Panchwagh after the
meeting in the hope of obtaining more information. In response
to Marra’s queries, however, Panchwagh claimed to know
nothing. At the time of his termination, Marra was sixty-eight
9
years old and had planned on retiring within the next year and
a half.
B. Albert DiGravio
DiGravio also was deposed by Paladino and Wright and
testified on their behalf at trial, appearing by subpoena on both
occasions. During this period of time, DiGravio continued to
work as a Rehabilitation Supervisor, the position to which he
had been promoted after his successful participation in the hiring
competition under scrutiny in Paladino. As a Rehabilitation
Supervisor, DiGravio no longer performed housing inspections
himself, but was instead responsible for directly supervising the
Rehabilitation Specialists who performed this task. While
DiGravio occasionally visited the inspection sites (which
primarily consisted of newly constructed or rehabilitated houses)
as part of his supervisory duties, he spent the majority of the
work week in his office at PHA reviewing reports of housing
inspections and completing related paperwork.
In the days leading up to the Paladino trial, Nicholas
DiPiero, DiGravio’s immediate supervisor, repeatedly told him
that any supervisory or management level employee who
testified against PHA at trial would face “repercussions.”
Paladino himself overheard DiPiero make these remarks to
DiGravio on one occasion.
In late July 2001, roughly six weeks after the conclusion
10
of the Paladino trial, Panchwagh convened a meeting of the
Inspections Division’s supervisory personnel to discuss assisting
PHA’s Section 8 Department with a backlog of Section 8
housing inspections.5 Those attending included Galbreth,
DiPiero, and DiGravio, but not Marra, who was not informed
about the meeting. At the request of Greene, the Inspections
Division had previously loaned the services of several of its
inspectors, each of whom had been selected by Marra, to assist
the Section 8 Department in this undertaking. These efforts
proved to be largely unsuccessful, however, with many of the
loaned inspectors refusing to show up for further assignments
after only a few days of conducting inspections in Section 8
houses, which were often in deplorable condition and infested
with vermin and other pests. At the supervisors’ meeting,
Panchwagh conveyed his concerns about the lackluster effort by
the inspectors on loan, and sought input on how to improve their
performance. In response, DiGravio advised Panchwagh that he
would be willing personally to oversee a group of inspectors to
ensure that the Section 8 inspections were properly performed.
Panchwagh agreed to this idea.
5
Section 8 refers to the federal section 8 rental assistance
program that was established under the United States Housing
Act of 1937, 42 U.S.C. § 1437 et seq., to “provide[] rent
subsidies for low- and moderate-income participants so that they
can afford to lease privately owned housing units.” Turner v.
Crawford Square Apartments III, L.P., 449 F.3d 542, 544 n.4
(3d Cir. 2006). PHA administers the Section 8 program within
the City of Philadelphia.
11
Upon arriving at work a few days later, DiGravio was
puzzled to learn that he was to begin immediately reporting to
the Section 8 Department for future assignments. He had not
volunteered for reassignment, and it was his understanding from
the meeting with Panchwagh that he would be doing nothing
more than supervising a group of inspectors, who were
themselves being loaned to the Section 8 Department to perform
inspections, while he personally continued to work in the
Inspections Division. DiGravio immediately confronted
Panchwagh about his unexpected reassignment. After
Panchwagh assured DiGravio that he would only be
“organizing” inspections in the Section 8 Department on a “very
temporary” basis, he agreed to lend his services, figuring that “it
could only be another feather in my cap to go over there and try
to do something.” App. at 369-70, 372, 518. Much to his
chagrin, however, DiGravio learned upon reporting to the
Section 8 Department that he would not continue working in a
supervisory capacity, as he expected, but would be performing
inspections himself of the Section 8 housing. When DiGravio
again confronted Panchwagh to express his resentment over
what he perceived to be a demotion, Panchwagh simply told him
that the decision had come “from on top,” which DiGravio
believed meant either Greene or Leithead, and that he
(Panchwagh) had nothing to do with it.
DiGravio thereafter memorialized his disapproval of the
reassignment in the following letter to Panchwagh, dated August
2, 2001, copies of which he also forwarded to Galbreth, Marra,
12
and DiPiero:
As per your directive, I have reported to
Section 8 . . . . As you are well aware of [sic],
I’ve been assigned to do inspection work for the
Eligibility Department. My current status is a
supervisor position. I can only consider this a
demotion for some unknown reason.
However, being a true PHA employee, I
will tackle this new assignment with the same
dedication as I have approached my other
assignments.
I would like to be consulted of this change
and status as to why and what direction I am
going into.
App. at 927.
By reply memorandum dated August 8, 2001, Panchwagh
sought to assure DiGravio that his transfer to the Section 8
Department was not a demotion since his salary and official title
would not be affected, and claimed that the transfer “was made
. . . [after] consultation with you.” App. at 858.
Marra also protested DiGravio’s transfer to the Section
8 Department, insisting to Panchwagh that he needed
13
DiGravio’s assistance on several ongoing projects, including the
time-sensitive assignment from Greene. In response,
Panchwagh assured Marra, as he had DiGravio, that the latter
would return to the Inspections Division within a matter of
weeks.
Notwithstanding Panchwagh’s assurances to the contrary,
DiGravio’s stint in the Section 8 Department was anything but
brief. For nearly three years, DiGravio conducted inspections
of Section 8 houses, trading in his business casual work attire
for boots and dungarees, and had no supervisory responsibilities.
DiGravio endured hazardous working conditions and was
regularly infested with fleas and lice. He no longer had an
office, secretary, telephone, or access to a PHA vehicle for
professional business. DiGravio’s supervisory position in the
Inspections Division was restored only after Carolyn Carter,
Executive General Manager of the Section 8 Department,
determined that his services were no longer needed in May
2004.
C. Litigation
In June 2003, while DiGravio was still working in the
Section 8 Department, he and Marra filed this suit against PHA,
alleging that they were the victims of unlawful retaliation for
testifying at the Paladino trial, in violation of the First
Amendment (as enforced by 42 U.S.C. § 1983), Title VII, and
the PHRA. The Title VII claims were dismissed for failure to
14
exhaust available administrative remedies, but the remaining
claims were tried to a jury. At trial, PHA’s witnesses testified
that Marra was terminated as part of a reorganization and that
DiGravio was transferred to the Section 8 Department to
perform inspections based on the needs of that Department and
his offer to volunteer his services, not because of their respective
participation in the Paladino trial.
Although the decision to terminate Marra’s position was
formally approved by Leithead, Panchwagh testified that he was
responsible for deciding which positions to eliminate within the
Inspections Division. Leithead confirmed that he did not
instruct Panchwagh to eliminate any certain position as part of
the reorganization, and that he approved Panchwagh’s final
recommendation to terminate Marra without conducting any
independent investigation because he thought the proposal made
legitimate business sense. Leithead also testified that he had
approved Panchwagh’s initial reorganization proposal,
contained in the latter’s November 2001 memorandum, but
instructed Panchwagh to submit it to the Human Resources
Department for review.
Galbreth testified that it became unnecessary to eliminate
three of the four inspector positions because she and Panchwagh
discovered that two of the inspectors whose positions were
designated for elimination were planning to retire in the near
future and a third was being transferred to another department.
Yet she offered no explanation for why the fourth inspector
15
position was not eliminated as part of the reorganization.
Panchwagh and Galbreth both denied having any knowledge of
Marra’s retirement plans at the time of his termination.
According to Leithead, approximately twenty-five PHA
employees under Panchwagh’s supervision were transferred to
other positions as part of the reorganization, including several
Project Managers, but Marra was the only employee to lose his
job. Panchwagh admitted that, from the time he began working
at PHA in July 1999 to his retirement in April 2002, Marra was
the only employee laid off within the entire Design and
Construction Department.
Contrary to DiGravio’s understanding, Panchwagh
testified that he alone was responsible for making the decision
to reassign DiGravio to the Section 8 Department to perform
inspections, and that he did so “upon [DiGravio] offering . . . to
go,” App. at 472, believing that “the inspectors . . . w[ould] be
. . . more amenable to [the] work” if “a supervisor” were present.
App. at 471. Panchwagh admitted that he had the authority to
recall DiGravio to the Inspections Division without seeking
approval from his superiors, Greene and Leithead, but never did
so prior to his (Panchwagh’s) retirement from PHA in April
2002. He insisted that he had “no reason” to recall DiGravio
based on the ongoing needs of the Section 8 Department. App.
at 579.
Panchwagh further testified that Marra was responsible
16
for deciding which inspectors would be transferred with
DiGravio to the Section 8 Department because Marra “was in
charge of the Inspection[s] Division,” App. at 472, and “I was
not running the day-to-day affairs of th[at] d[ivision].” App. at
586. Galbreth testified that, based on her conversations with
Panchwagh, she had the impression that DiGravio would only
be working in the Section 8 Department for “maybe a month,”
App. at 659, and that she “absolutely” knew that the PHA
employees in other departments and divisions did not
affirmatively desire to work in the Section 8 Department. App.
at 683. Both Panchwagh and Galbreth conceded that DiGravio
was the only supervisory level employee ever sent to the Section
8 Department to perform inspections. For his part, DiPiero
testified that he never made any remarks to DiGravio suggesting
that supervisory or management level employees who testified
against PHA at the Paladino trial would face “repercussions.”6
The jury returned verdicts in favor of both Marra and
DiGravio under § 1983 and the PHRA. The District Court,
however, entered judgment in favor of PHA on the § 1983
claims based on the jury’s additional finding that Greene, who
the District Court had provisionally determined was the only
PHA official whose conduct could be attributed to PHA for
purposes of municipal liability under § 1983, did not personally
order or acquiesce in any retaliation against Marra or DiGravio.
The verdict on the PHRA claims stood. The District Court
6
Executive Director Greene did not testify at trial.
17
entered judgment in favor of Marra for $310,676, representing
$208,676 in back pay and $102,000 in compensatory damages,
and in favor of DiGravio for $70,000 in compensatory damages
(all as had been found by the jury). After the District Court
denied PHA’s post-trial motions for judgment as a matter of law
or, in the alternative, a new trial, see Marra v. Philadelphia
Hous. Auth., 404 F. Supp. 2d 839 (E.D. Pa. 2005), PHA filed
this timely appeal.7
II. Discussion
The District Court exercised jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1367. We have jurisdiction under 28 U.S.C.
§ 1291.
A. Evidentiary Ruling
PHA first takes issue with the District Court’s admission
of DiGravio’s testimony, as corroborated by Gerald Paladino,
that DiGravio’s immediate supervisor, Nicholas DiPiero, “was
constantly stating that . . . there would be repercussions” against
“any supervisor [or] management level [employee] that testified
against [PHA]” in the period prior to the Paladino trial. App. at
361. As noted above, DiPiero took the stand in rebuttal and
denied ever making any such remarks to DiGravio.
7
Marra and DiGravio have not appealed the District Court’s
entry of judgment in favor of PHA on their § 1983 claims.
18
Prior to trial, PHA had moved in limine to preclude
admission of DiPiero’s alleged out-of-court statement to
DiGravio on hearsay grounds. In denying the motion, the
District Court concluded that DiPiero’s statement was
admissible against PHA pursuant to Federal Rule of Evidence
801(d)(2)(D), which defines as nonhearsay a statement by a
party’s agent concerning a matter within the scope of the agent’s
employment.8 The District Court concluded that DiPiero, whose
supervisory powers included formally evaluating the
performance of his subordinates and recommending discipline
if necessary, was authorized to speak to DiGravio about the
prospect of PHA employees facing “repercussions” for
testifying against their employer at the impending Paladino trial.
On appeal, PHA insists that DiPiero’s pretrial statement
to DiGravio concerned matters beyond the scope of his
employment with PHA, and hence was inadmissible under Rule
801(d)(2)(D), because the uncontested evidence shows that
DiPiero had no involvement in the adverse employment actions
taken against DiGravio and Marra after they testified in
Paladino. We review a district court’s decision to admit or
exclude evidence for abuse of discretion, although our review is
8
Rule 801(d)(2)(D) provides as follows: “A statement is not
hearsay if . . . [t]he statement is offered against a party and is .
. . a statement by the party’s agent or servant concerning a
matter within the scope of the agency or employment, made
during the existence of the relationship.” Fed. R. Evid.
801(d)(2)(D).
19
plenary as to the district court’s interpretation of the Federal
Rules of Evidence. Renda v. King, 347 F.3d 550, 553 (3d Cir.
2003) (citing United States v. Saada, 212 F.3d 210, 220 (3d Cir.
2000)).
In our view, PHA’s argument rests on the mistaken
premise that personal involvement in the employment decision
being litigated is an absolute prerequisite to the admission of a
statement by an employee against his employer under Rule
801(d)(2)(D). Although “[b]eing a direct decision-maker, of
course, constitutes strong proof that a statement was made
within the scope of employment, . . . the ‘scope of employment’
criterion [of Rule 801(d)(2)(D)] extends beyond direct decision-
makers,” Carter v. Univ. of Toledo, 349 F.3d 269, 275 (6th Cir.
2003), as we ourselves recognized in Abrams v. Lightolier Inc.,
50 F.3d 1204 (3d Cir. 1995), one of the cases on which the
District Court relied in rejecting PHA’s hearsay objection. See
also Williams v. Pharmacia, Inc., 137 F.3d 944, 950 (7th Cir.
1998) (expressing reluctance to “read into [Rule 801(d)(2)(D)]
a generalized ‘personal involvement’ requirement, especially in
light of the Advisory Committee’s admonition that ‘[t]he
freedom which admissions have enjoyed . . . from the restrictive
influences of . . . the rule requiring firsthand knowledge . . . calls
for generous treatment of this avenue of admissibility’”)
(quoting Fed. R. Evid. 801 advisory committee’s note 2).
In Abrams, an age discrimination case, the employer
challenged the district court’s admission of the testimony of
20
Hinsch, one of the plaintiff’s former co-workers, that Hinsch’s
supervisor, Pedder, told him on several occasions that the
company “frowned on” older employees. Abrams, 50 F.3d at
1215. Although neither Hinsch nor Pedder had any involvement
in the company’s decision to terminate the plaintiff, Pedder was
authorized to discuss the company’s employment policies with
Hinsch. Id. Because Pedder’s statement of “his opinion
regarding company policy” concerned a matter within the scope
of his authority, we concluded that the district court properly
admitted the statement against the employer as nonhearsay
under Rule 801(d)(2)(D). Id. at 1216. We stated that “[w]here
a supervisor is authorized to speak with subordinates about the
employer’s employment practices, a subordinate’s account of an
explanation of the supervisor’s understanding regarding the
criteria utilized by management in making decisions on hiring,
firing, compensation, and the like is admissible against the
employer,” regardless whether the declarant has any
involvement in the challenged employment action. Id.; see
Hybert v. Hearst Corp., 900 F.2d 1050, 1053 (7th Cir. 1990)
(“[D]irect warnings by [plaintiff’s immediate supervisor],
himself a member of management, given to [the plaintiff], his
subordinate, as to the attitude, intentions and/or policy of the
higher-ups in management” are admissible under Rule
801(d)(2)(D), even though the supervisor was not involved in
challenged employment decision); cf. Carter, 349 F.3d at 274-
76 (statements by vice provost that university’s decisionmakers
were “a bunch of racists” and “trying to get rid of black
professors” held to be admissible under Rule 801(d)(2)(D) in
21
race discrimination action, where vice provost had no
involvement in university’s decision not to renew professor’s
employment contract but was responsible for overseeing
university’s affirmative action process).
Here, DiPiero conveyed to DiGravio his understanding
of PHA’s attitude toward employees giving adverse testimony,
repeatedly commenting in the most general terms that there
would be unspecified “repercussions” against “any supervisor”
or “management level” employee, which would encompass even
DiPiero’s own superiors, Marra included, testifying for the
plaintiffs at the Paladino trial. There is no question that
DiPiero, in his capacity as DiGravio’s immediate supervisor,
was authorized to speak with DiGravio about his perception of
PHA’s disciplinary practices, formal or otherwise, and thus his
opinion that those employees who testified adversely to PHA
would face “repercussions” concerned a matter within the scope
of his employment.9 While the jury was certainly free to
consider DiPiero’s non-involvement in the challenged
employment decisions in determining how much weight to give
his remarks (if credited), his lack of participation in these
decisions did not render his “opinion regarding company policy”
9
We note that establishing the source of DiPiero’s knowledge
was not a necessary predicate to the admission of his remarks
under Rule 801(d)(2)(D). See Lexington Ins. Co. v. Western
Pennsylvania Hosp., 423 F.3d 318, 331 n.7 (3d Cir. 2005)
(personal knowledge requirement does not apply to party
admissions).
22
beyond the purview of Rule 801(d)(2)(D). Abrams, 50 F.3d at
1216. The District Court properly concluded that DiPiero’s
statement was not hearsay.
PHA also argued before the District Court that DiPiero’s
statement was inadmissible under Federal Rule of Evidence
403.10 PHA does not directly raise a Rule 403 challenge before
us, but instead contends, presuming success on its hearsay
challenge, that it was unduly prejudiced by admission of
DiPiero’s statement such that the District Court’s hearsay ruling
cannot be treated as harmless error. To the extent that PHA’s
harmless error argument can be fairly recast as a legal challenge
to the District Court’s Rule 403 ruling, we conclude that the
District Court acted well within its discretion in admitting
DiPiero’s statement under Rule 403.
In its Rule 403 balancing analysis, the District Court
believed that DiPiero’s statement bore “substantial probative
value” in view of its close temporal proximity to the adverse
action taken against DiGravio. App. at 162. On the other hand,
admission of the statement would minimally prejudice PHA, the
District Court reasoned, in part because DiPiero would be
10
Under this Rule, relevant evidence may be excluded “if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Fed. R. Evid. 403.
23
available to explain or deny it. On appeal, PHA does not
strongly contest the probative value of DiPiero’s statement, even
conceding (albeit incorrectly) that the statement is the “only”
evidence of retaliation in the record. Appellants’ Br. at 63.
While the relevancy of DiPiero’s statement is somewhat
diminished by the fact that he had no involvement in the
employment decisions at issue here, we agree with the District
Court that his statement, given its timeliness and repeated
utterance, would serve (if credited) as an important piece of
circumstantial evidence supporting plaintiffs’ retaliation claims.
See Hybert, 900 F.2d at 1053 (statements by immediate
supervisor reflecting attitude of decisionmaking superiors
toward older employees “likely had a great impact on the jury”
in age discrimination case); Walden v. Georgia-Pacific Corp.,
126 F.3d 506, 521 (3d Cir. 1997) (remarks by non-
decisionmakers can still be evidence of atmosphere in which
employment decision was carried out, which “may be critical for
the jury’s assessment of whether a given employer was more
likely than not to have acted from an unlawful motive”) (quoting
Antol v. Perry, 82 F.3d 1291, 1302 (3d Cir. 1996)); Woodson v.
Scott Paper Co., 109 F.3d 913, 922-23 (3d Cir. 1997) (same).
We also perceive no real danger of unfair prejudice in admitting
DiPiero’s statement.
In short, we cannot say that the District Court acted
irrationally or arbitrarily in admitting DiPiero’s statement over
PHA’s Rule 403 objection. See Diehl v. Blaw-Knox, 360 F.3d
426, 430 (3d Cir. 2004) (district court’s explicit balancing
24
analysis under Rule 403 should not be disturbed unless
“irrational or arbitrary”) (citing Ansell v. Green Acres
Contracting Co., 347 F.3d 515, 525 (3d Cir. 2003)).
B. Sufficiency of the Evidence
Having satisfied ourselves that the District Court did not
abuse its discretion in admitting DiPiero’s statement, we turn to
PHA’s contention that the evidence is insufficient to support the
jury verdicts in favor of Marra and DiGravio on their retaliation
claims under the PHRA. Our review of the District Court’s
denial of PHA’s motion for judgment as a matter of law is
plenary, and we apply the same standard as did the District
Court. Springer v. Henry, 435 F.3d 268, 274 (3d Cir. 2006)
(citing Johnson v. Campbell, 332 F.3d 199, 204 (3d Cir. 2003)).
Entry of judgment as a matter of law is a “sparingly” invoked
remedy, CGB Occup. Therapy, Inc. v. RHA Health Servs. Inc.,
357 F.3d 375, 383 (3d Cir. 2004), “granted only if, viewing the
evidence in the light most favorable to the nonmovant and
giving it the advantage of every fair and reasonable inference,
there is insufficient evidence from which a jury reasonably
could find liability.” Moyer v. United Dominion Indus., Inc.,
473 F.3d 532, 545 n.8 (3d Cir. 2007) (quoting Lightning Tube,
Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)). In
performing this narrow inquiry, we must refrain from weighing
the evidence, determining the credibility of witnesses, or
substituting our own version of the facts for that of the jury.
Lightning Tube, 4 F.3d at 1166.
25
Section 955(d) of the PHRA forbids an employer to
discriminate against an employee because that “individual has
. . . testified or assisted, in any manner, in any investigation,
proceeding or hearing under this act.” 43 Pa. Cons. Stat. Ann.
§ 955(d). Plaintiffs’ retaliation claims proceeded under a
“pretext” theory of retaliation at trial, which is governed by the
three-step burden shifting analysis set out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Fasold v.
Justice, 409 F.3d 178, 188 (3d Cir. 2005) (noting that
“retaliation claims under . . . the PHRA typically proceed under
the McDonnell Douglas framework”) (citing Fogleman v. Mercy
Hosp. Inc., 283 F.3d 561, 567-68 (3d Cir. 2002)); Woodson, 109
F.3d at 920 (“The allocation of the burden of proof for both . .
. federal and state retaliation claims [under the PHRA] follows
the familiar Title VII standards”) (citations omitted).
Under the McDonnell Douglas paradigm, the employee
bears the initial burden of establishing a prima facie case of
retaliation. Woodson, 109 F.3d at 920. He must show: “(1)
protected employee activity; (2) adverse action by the employer
either after or contemporaneous with the employee’s protected
activity; and (3) a causal connection between the employee’s
protected activity and the employer’s adverse action.”
Fogleman, 283 F.3d at 567-68 (3d Cir. 2002) (quoting Krouse
v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997)). If the
employee establishes a prima facie case of retaliation, the
burden of production shifts to the employer to articulate some
legitimate, non-retaliatory reason for the adverse employment
26
action. Woodson, 109 F.3d at 920 n. 2 (citing McDonnell
Douglas, 411 U.S. at 802; Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 241, 252-55 (1981); Fuentes v. Perskie, 32
F.3d 759, 763 (3d Cir. 1994)). If the employer meets its
burden, the burden of production returns to the employee, who
must now show, by a preponderance of the evidence, that “the
employer’s proffered explanation was false, and that retaliation
was the real reason for the adverse employment action.” Moore
v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006)
(quoting Krouse, 126 F.3d at 500-01).11
PHA does not dispute that Marra and DiGravio each
presented sufficient evidence to establish two of the three
elements of their prima facie cases: both engaged in a protected
activity under the PHRA (giving sworn testimony at the
Paladino trial) and PHA subsequently took adverse action
against them (laying off Marra and transferring DiGravio to the
Section 8 Department to perform inspections).12 PHA instead
11
Of course, the burden of persuading the trier of fact that the
defendant intentionally retaliated against the plaintiff remains at
all times with the plaintiff. Woodson, 109 F.3d at 920 n.2.
12
The parties quarrel over the proper characterization of the
employment decisions affecting Marra and DiGravio. PHA
insists that Marra was “laid off,” while plaintiffs counter that he
was “terminated.” PHA maintains that DiGravio was “loaned”
to the Section 8 Department, while plaintiffs claim that he was
“transferred.” Although we recognize that these phrases may
27
contends that there is insufficient evidence from which a
reasonable jury could find the requisite causal connection
between the protected activity and adverse action in each case.
Even if there is sufficient evidence of a causal link, PHA insists
that it is still entitled to judgment as a matter of law because
neither DiGravio nor Marra demonstrated that PHA’s proffered
non-retaliatory explanations for taking the adverse actions in
question were pretextual in nature. We address each contention
in turn.13
well be terms of art with independent significance under PHA’s
employment policies, we need not resolve the parties’
disagreement because it has no bearing on our analysis here.
For purposes of our discussion, we use the terms
interchangeably.
13
We recognize that once a case has been tried to a jury on its
merits, it is unnecessary for an appellate court to decide whether
a plaintiff established a prima facie case of retaliation. See
Bruno v. W.B. Saunders Co., 882 F.2d 760, 764 (3d Cir. 1989)
(“Where the defendant has done everything that would be
required of him if the plaintiff had made out a prima facie case,
whether the plaintiff really did so is no longer relevant.”)
(quoting U.S. Postal Service Bd. of Governors v. Aikens, 460
U.S. 711, 715 (1983)). Our inquiry is not whether the plaintiff
has introduced sufficient evidence to establish a prima facie case
of retaliation, but whether there is sufficient evidence to support
the ultimate conclusion that the challenged employment decision
was retaliatory in nature. Subsumed in this inquiry, of course,
is consideration of whether there is a sufficient causal
28
1. Causal Connection Between Protected
connection between the protected activity and adverse action,
meaning any difference in our analysis at this stage is probably
more semantic than substantive. See id. at 764 n.2 (“Although
we do not address this contention in terms of the prima facie
case, it may be that our inquiry into the sufficiency of the
evidence to support . . . an inference [of discrimination] will not
differ markedly from an inquiry into whether the plaintiff has
introduced evidence sufficient to establish one of the elements
essential to her prima facie case.”) (citations omitted); Woodson,
109 F.3d at 920-24 (post-verdict consideration of causal
connection element); cf. Watson v. Southeastern Pa. Transp.
Auth., 207 F.3d 207, 221 (3d Cir. 2000) (noting that court is
permitted to instruct jury that it may consider whether the
“factual predicates necessary to establish the prima facie case
have been shown”).
We also acknowledge the close similarity between the
causation analyses at stage one (prima facie case) and stage
three (pretext) of the McDonnell Douglas framework, see
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 286 (3d Cir.
2000) (“The question: ‘Did her firing result from her rejection
of his advance?’ is not easily distinguishable from the question:
‘Was the explanation given for her firing the real reason?’”), and
that much of the same evidence may be relevant to both
inquiries, id., but find it instructive to address them separately
below in examining whether there is sufficient evidence to
support the jury’s findings of unlawful retaliation. “After all, if
there was not a causal relationship[,] then the [defendant] could
not have engaged in its conduct in retaliation for [plaintiffs]
having engaged in a protected activity.” Lauren W. ex. rel. Jean
W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
29
Activity and Adverse Action
We have recognized that a plaintiff may rely on a “broad
array of evidence” to demonstrate a causal link between his
protected activity and the adverse action taken against him.
Farrell, 206 F.3d at 284. In certain narrow circumstances, an
“unusually suggestive” proximity in time between the protected
activity and the adverse action may be sufficient, on its own, to
establish the requisite causal connection. Robinson v. City of
Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997); see Jalil v.
Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (discharge of
plaintiff two days after filing EEOC complaint found to be
sufficient, under the circumstances, to establish causation).
Conversely, however, “[t]he mere passage of time is not legally
conclusive proof against retaliation.” Robinson v. Southeastern
Pa. Transp. Auth., 982 F.2d 892, 894 (3d Cir. 1993) (citation
omitted); see also Kachmar v. SunGard Data Sys., Inc., 109
F.3d 173, 178 (3d Cir. 1997) (“It is important to emphasize that
it is causation, not temporal proximity itself, that is an element
of plaintiff’s prima facie case, and temporal proximity merely
provides an evidentiary basis from which an inference can be
drawn.”). Where the time between the protected activity and
adverse action is not so close as to be unusually suggestive of a
causal connection standing alone, courts may look to the
intervening period for demonstrative proof, such as actual
antagonistic conduct or animus against the employee, see, e.g.,
Woodson, 109 F.3d at 921 (finding sufficient causal connection
based on “pattern of antagonism” during intervening two-year
30
period between protected activity and adverse action), or other
types of circumstantial evidence, such as inconsistent reasons
given by the employer for terminating the employee or the
employer’s treatment of other employees, that give rise to an
inference of causation when considered as a whole. Farrell, 206
F.3d at 280-81. In assessing causation, we are mindful of the
procedural posture of the case, see id. at 279 n.5 (“There is . . .
a difference between a plaintiff relying upon temporal proximity
to satisfy her prima facie case for the purpose of summary
judgment, and to reverse a verdict.”) (internal citation omitted),
and where, as here, the retaliation claim has been tried to a
verdict, we give deference to the jury’s “‘unique opportunity to
judge the credibility and demeanor’ of the witnesses who
testified at the trial . . . .” Woodson, 109 F.3d at 921 (quoting
Quiroga v. Hasbro, Inc., 934 F.2d 497, 502 (3d Cir. 1991)).
a. Marra
Although the District Court found that the nine-month
time lapse between Marra testifying at the Paladino trial in June
2001 and his eventual termination in March 2002 was not
“unusually suggestive” of a retaliatory motive by PHA, it
believed that the evidence presented at trial established an
intervening pattern of antagonism against Marra sufficient to
support an inference of causation. This pattern included: (1) the
“vandaliz[ation]” of Marra’s computer in July 2001, shortly
after he testified at the Paladino trial, in response to which PHA
“took no action”; (2) Marra’s exclusion from the July 2001
31
meeting at which the Section 8 project was discussed; (3) the
reassignment of DiGravio to the Section 8 Department, over
Marra’s objections, in July 2001; and (4) the “look of disgust”
that Greene gave Marra upon learning, shortly after the
Paladino trial, that Marra had testified against PHA. Marra,
404 F. Supp. 2d at 845. The District Court also believed that the
involuntary demotion Marra received shortly after giving
deposition testimony in Paladino indicated a causal connection
between his subsequent trial testimony and termination. Id.PHA’s contentions predictably focus on the District
Court’s finding of an intervening pattern of antagonism against
Marra.14 Before considering PHA’s specific arguments, we
emphasize that it matters not, of course, whether each piece of
evidence of antagonistic conduct is alone sufficient to support
an inference of causation, so long as the evidence permits such
an inference when considered collectively. Woodson, 109 F.3d
at 921. “Thus, while we will discuss each piece of evidence,
and [PHA’s] objections to them, in turn, we must determine
whether the evidence is sufficient based on the whole picture.”
Id.; cf. Andrews v. City of Philadelphia, 895 F.2d 1469, 1484
(3d Cir. 1990) (“A play cannot be understood on the basis of
some of its scenes but only on its entire performance, and
14
Even Marra does not quarrel with the District Court’s
determination that the nine-month gap between his testimony in
Paladino and subsequent termination is not unusually suggestive
standing alone, as this finding is undoubtedly correct.
32
similarly, a discrimination analysis must concentrate not on
individual incidents, but on the overall scenario.”).
PHA first disputes that the computer failure Marra
experienced shortly after he testified at the Paladino trial is
suggestive of retaliatory animus, emphasizing the absence of
any direct proof that his computer had been tampered with by a
PHA employee. Given that this incident occurred on the heels
of the jury’s verdict in Paladino and while Marra was away
from the office on vacation, however, we believe the jury here
was permitted to infer that the extensive damage to Marra’s
computer - in his words, the hard drive was “totally wiped out” -
resulted from foul play, a finding that was in no way precluded
by the vague representation of a PHA employee that the
computer had “burned out.” Marra’s testimony that PHA failed
adequately to investigate the origin of his computer problems,
which he promptly brought to Panchwagh’s attention, also
indicates causation because it suggests that PHA condoned such
conduct. Further, although the culprit was never identified (or
at least never revealed to Marra), the jury could also readily
infer from these circumstances that a PHA employee, rather than
some workplace intruder, was responsible for the vandalization.
While this incident, standing alone, would typically be
insufficient to support an inference of causation, we conclude
that the jury could properly treat it as a link in the causal chain.
See Jensen v. Potter, 435 F.3d 444, 451 (3d Cir. 2006) (damage
to plaintiff’s vehicle by unknown vandals was a “component[]
of an integrated pattern of retaliation” by employer).
33
Notwithstanding PHA’s arguments to the contrary, we
also believe that Panchwagh’s decision to reassign DiGravio to
the Section 8 Department, over Marra’s objections, fortifies the
causal link in Marra’s case. PHA points out that Marra himself
believed that DiGravio’s transfer was simply the product of a
“miscommunication” between DiGravio and Panchwagh, whom
Marra considered to be an “honest and honorable man.” App.
at 275, 282. There is, however, ample evidence from which the
jury could reasonably infer that, unbeknownst to Marra,
Panchwagh was plotting against him. Although Marra stressed
to Panchwagh his pressing need for DiGravio’s assistance on a
variety of ongoing projects, Panchwagh declined to recall
DiGravio from the Section 8 Department (even though he had
the authority to do so), and gave Marra the misimpression that
DiGravio would only be unavailable for a few weeks. The jury
also may have been skeptical of Panchwagh himself making the
decision to send DiGravio to the Section 8 Department to work
as an inspector, given his candid admission that, in all other
instances, Marra decided which Inspections Division employees
to reassign “because [Marra] was in charge of the Inspection[s]
Division,” App. at 472, and that “[t]ransferring a certain
inspector or not transferring a certain inspector was left to [him]
. . . . I was not running the day-to-day affairs of th[at]
d[ivision].” App. at 586. The jury could have drawn many
different inferences from Panchwagh’s decision, one of which
was that Panchwagh had reassigned DiGravio to the Section 8
Department, and declined to recall him, in the face of Marra’s
pleas, at least in part to deprive Marra of the much needed
34
services of a key subordinate, which undoubtedly contributes to
an intervening pattern of antagonism against Marra. As
discussed more fully below in our pretext analysis, another
inference the jury could have drawn was that Panchwagh
reassigned DiGravio to the Section 8 Department because of his
participation in the Paladino trial. Panchwagh’s retaliatory
antipathy toward DiGravio helps build Marra’s causation case
because it suggests a hostile atmosphere in which the subsequent
decision to terminate Marra was carried out. See Walden, 126
F.3d 506 at 521; Woodson, 109 F.3d at 922-23.
While PHA does not appear to challenge specifically the
District Court’s conclusion that Marra’s exclusion from the July
2001 supervisors’ meeting suggested a causal link, we observe
that this finding is also supported by the evidence when viewed
in the light most favorable to Marra. Given Panchwagh’s
concession noted above that Marra was chiefly responsible for
the assignment and allocation of labor to the Section 8 project,
a reasonable juror could find it suspicious that Panchwagh
convened a meeting of the Inspections Division’s supervisory
personnel, save Marra, to discuss that logistical task. Similarly,
although PHA does not appear to take issue with the District
Court’s reliance on the “look of disgust” Greene gave Marra
upon learning that he had testified at the Paladino trial, this
evidence also bears at least some probative value in assessing
causation. While Greene had no personal involvement in the
decision to terminate Marra, as the jury found, the jury still
likely gave careful consideration to the expressive conduct of
35
PHA’s highest ranking official, and could have reasonably
concluded that Greene’s negative reaction upon confirming
Marra’s involvement in the Paladino trial reflected an
atmosphere in which the employment decision about Marra was
made. See Walden, 126 F.3d 506 at 521; Woodson, 109 F.3d at
922-23.
Viewed in the light most favorable to Marra, the evidence
we have discussed to this point shows that, in the months
immediately following his participation in the Paladino trial, he
had his computer vandalized, resulting in loss of significant
work product; although he brought the computer incident to
Panchwagh’s attention, it was never adequately investigated;
Panchwagh subsequently excluded Marra from an important
meeting concerning matters within his province and reassigned
one of his key subordinates, who had also testified against PHA
in Paladino, to another Department, despite Marra’s
protestations; and PHA’s top official gave Marra a look of
disgust upon learning that he had testified at the Paladino trial.
We have little doubt that this evidence considered as a whole,
together with evidence of the involuntary demotion Marra had
received after giving deposition testimony in Paladino
approximately one year earlier,15 is sufficient to forge a causal
15
In a footnote, PHA contends that Marra’s involuntary
demotion after giving deposition testimony in Paladino
constitutes a discrete allegation of retaliation for which Marra
failed to exhaust his administrative remedies, and thus should
36
link between Marra testifying at the Paladino trial in June 2001
and his formal termination in March 2002.
In our view, however, the jury was permitted to consider
this evidence within a more limited time frame than the nine-
month gap that separated Marra’s participation in the Paladino
trial and his official last day as a PHA employee. Although
Marra was not formally terminated until March 2002, the
evidence shows that Panchwagh and Galbreth discussed
eliminating Marra’s position as early as fall 2001 and
Panchwagh first recommended such action to Leithead in a
November 2001 memorandum, and that Leithead approved
Panchwagh’s initial proposal but had him submit it to the
Human Resources Department for review. In a follow-up
not be considered. We disagree. Even assuming for the sake of
argument that PHA is correct on the exhaustion issue, evidence
of PHA’s past response to Marra engaging in the same protected
activity remains relevant to his exhausted retaliation claim and
was properly admitted here. See, e.g., Abrams, 50 F.3d at 1214-
15 (evidence of employer’s past treatment of plaintiff and others
similarly situated, including incidents that are remote in time
from the decision at issue, may indicate company’s
discriminatory attitude and the atmosphere in which subsequent
employment decision was made); see generally Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (authorizing
use of prior, discrete acts of discrimination or retaliation that
plaintiff failed to exhaust as background evidence in support of
exhausted claims).
37
memorandum to Leithead in early December 2001, Panchwagh
attached a lay-off notice for Marra.
As plaintiffs’ counsel strenuously argued at trial, see
App. at 185, 755, 759, 778, consistent with our “highly context-
specific” approach to assessing causation, Kachmar, 109 F.3d
at 178, the jury could reasonably infer from this evidence that
PHA resolved to terminate Marra by no later than November
2001, only five months after he testified at the Paladino trial,
rather than several months later when the adverse employment
decision was formally carried out. See id. (although employee
was not officially terminated until January 1994, “[h]er
allegation that she was told her position had been offered to a
male in November, 1993 . . . would, if proven, show that
[defendant] had resolved to discharge her shortly after the latest
[protected] activity” in mid-1993); see also Hill v. City of
Scranton, 411 F.3d 118, 133 (3d Cir. 2005) (considering, as part
of temporal proximity analysis in First Amendment retaliation
case, fact that discharged employee’s pre-termination hearing
was initially scheduled for date three months earlier).
Considering the pattern of antagonistic behavior against Marra
within this more suggestive time frame, we conclude that the
evidence as a whole is clearly sufficient to support a causal link
between Marra’s participation in the Paladino trial and his
subsequent termination, “particularly when we consider, as we
must, that the verdict may have been based in part on the jurors’
evaluation of each witness’ credibility and demeanor.”
38
Woodson, 109 F.3d at 924.16
b. DiGravio
Although the District Court did not specifically address
PHA’s causation challenge with respect to DiGravio, which is
confined to a footnote in both its post-trial and appellate briefs,
this issue need only detain us briefly. PHA’s sole argument is
that DiGravio’s offer to work in the Section 8 Department
undercuts any causal connection between his participation in the
Paladino trial and his subsequent transfer to that Department.
This contention is better understood as a pretext challenge and
will be fully addressed in that analysis below. Suffice it to say
that the jury could have reasonably inferred the requisite causal
connection based on the close temporal proximity between
DiGravio testifying at the Paladino trial and his transfer to the
Section 8 Department approximately six weeks later, coupled
with the antagonism experienced by Marra, a fellow witness, in
the weeks that immediately followed the trial. See Farrell, 206
F.3d at 281 (noting that employer’s conduct toward others is
16
We hasten to add that our causation analysis should not be
understood as an exclusive catalogue of the record evidence
bearing on this issue. Rather, because we conclude that the
evidence cited above is sufficient to establish a pattern of
antagonistic behavior linking Marra’s involvement in the
Paladino trial and his subsequent discharge, we simply need not
look beyond this pattern for other circumstantial evidence
supporting a causal link.
39
relevant to causation inquiry).
2. Pretext
The remaining question is whether sufficient evidence
exists from which the jury could find by a preponderance of the
evidence that PHA’s explanations offered for its adverse
employment decisions were merely a pretext for unlawful
retaliation. Pretext may be shown by exposing “such
weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for
its action that a reasonable factfinder could rationally find them
‘unworthy of credence.’” Krouse, 126 F.3d at 504 (quoting
Fuentes, 32 F.3d at 765)). “[A] plaintiff’s prima facie case,
combined with sufficient evidence to find that the employer’s
asserted justification is false, may permit the trier of fact to
conclude that the employer unlawfully [retaliated].” Fasold, 409
F.3d at 185 (quoting Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 148 (2000) (alteration added)); see also
Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061,
1065-72 (3d Cir. 1996) (en banc). As the Supreme Court
recognized in Reeves:
In appropriate circumstances, the trier of fact can
reasonably infer from the falsity of the
explanation that the employer is dissembling to
cover up a discriminatory purpose. Such an
inference is consistent with the general principle
40
of evidence law that the factfinder is entitled to
consider a party’s dishonesty about a material fact
as ‘affirmative evidence of guilt.’ Moreover,
once the employer’s justification has been
eliminated, discrimination may well be the most
likely alternative explanation, especially since the
employer is in the best position to put forth the
actual reason for its decision.
530 U.S. at 147 (internal citations omitted).
There is ample evidence from which the jury could have
inferred that PHA’s explanation for terminating Marra (his
position was eliminated as part of a reorganization) was not
credible. First, the jury could have reasonably believed that the
sequence of events leading up to, and the timing of, Marra’s
termination cast doubt on the legitimacy of PHA’s asserted
justification. After twice recommending the elimination of four
inspector positions, in addition to Marra’s position, over the
course of a three-week period in late 2001, Panchwagh
significantly changed course in his final memorandum to
Leithead, now targeting Marra’s position alone. While his
previous recommendations had languished for several months
without final action, Panchwagh’s scaled-back recommendation
was approved and executed within a span of merely three days.
Conspicuously absent from Panchwagh’s final memorandum
was any explanation for why he believed that each position he
previously proposed eliminating, save Marra’s, should now be
41
spared that fate. Although Galbreth insisted at trial that it
became unnecessary to lay off anyone other than Marra because
of the retirement or transfer of the inspectors in question, this
explanation only covered three of the four inspector positions
that had been recommended for elimination. Neither Galbreth
nor Panchwagh, nor any other PHA witness, provided an
explanation for the decision not to eliminate the fourth inspector
position, which may have raised further doubts in the jurors’
minds about the true scope and intent of the PHA’s purported
reorganization plan. Moreover, given that PHA opted not to
terminate two of the inspectors who would have been affected
by the reorganization because they were planning to retire in the
near future, a reasonable juror could easily attach significance
to the fact that Panchwagh, himself on the verge of retiring, did
not at least ask Marra, who was 68 years old at the time, about
his retirement plans before terminating his employment.
Second, the jury could have reasonably believed that the
rationale underlying Panchwagh’s recommendation to eliminate
Marra’s position as part of the reorganization - lack of available
work - was highly suspect. Contrary to Panchwagh’s
suggestion, Marra testified that he was continuously busy
throughout the relevant time period, citing several different
projects on which he was actively working. Indeed,
Panchwagh’s representation that there was insufficient work
available for Marra came only a few months after Marra had
complained to Panchwagh about DiGravio’s transfer to the
Section 8 Department, stressing his dire need for DiGravio’s
42
continued assistance in handling the crush of work in the
Inspections Division.
Third, we observe that, in contrast to many employment
cases in which an employer successfully defends its actions as
being part of a company reorganization or the like, none of
Marra’s co-workers who were affected by the reorganization at
PHA suffered the same fate as he did - loss of employment. See,
e.g., Yashenko v. Harrah’s NC Casino Co., 446 F.3d 541, 551
(4th Cir. 2006) (finding that terminated employee failed to rebut
employer’s reorganization explanation, which was supported in
part by evidence that several other positions had been
eliminated); Davis v. Con-Way Transp. Cent. Express, Inc., 368
F.3d 776, 785 (7th Cir. 2004) (“[W]e think it ridiculous to
suggest that Con-Way would terminate nine other employees
from Davis’s facility, not to mention forty others from around
the state . . ., on the pretense of economic hardship, just so it
could cover its tracks with respect to Davis.”). To the contrary,
the uncontested evidence shows that remaining employees
affected by the reorganization, many of whom held the same
position as Marra in different departments and divisions, were
simply transferred to new positions within PHA. This disparate
treatment, when considered in conjunction with the evidence
recited above, further strengthens the inference that PHA’s
proffered explanation was pretextual. See Butler v. City of
Prairie Village, 172 F.3d 736, 752 (10th Cir. 1999) (finding
genuine issue of material fact regarding whether employer’s
reorganization explanation was pretextual in part because
43
plaintiff’s position was only one eliminated).
Contrary to PHA’s assertion, we do not think that
Marra’s admission, when questioned on cross-examination, that
he did not believe Panchwagh retaliated against him undercuts
a finding of pretext here. Marra’s testimony was colored by his
belief, based on Panchwagh’s own representations to him, that
Panchwagh was equally in the dark about the reorganization.
But in fact, over the course of several months leading up to his
termination, Panchwagh had consistently recommended the
elimination of Marra’s position as part of a “reorganization” of
the Inspections Division. While Panchwagh may have left
Marra in the dark, his pivotal role in the plan to eliminate
Marra’s position was exposed in full light to the jury.
There is also no shortage of evidence from which a
reasonable factfinder could have chosen to disbelieve PHA’s
reasons offered for reassigning DiGravio to the Section 8
Department to perform inspections work (his volunteering to
assist a Department in need of help). PHA makes much of
DiGravio’s testimony that he elected to “go” to the Section 8
Department because he “figured it would only be another feather
in [his] cap.” In making this statement, however, DiGravio
reasonably believed, based on Panchwagh’s representations to
him, that he would retain a supervisory role while working in
that Department. Instead, Panchwagh reassigned DiGravio with
knowledge that he would be stripped of his supervisory status
and left to perform the grueling inspections work himself,
44
toiling in conditions that were by all accounts little short of
deplorable.
Any notion that the transfer resulted from an innocent
miscommunication is belied by DiGravio’s confrontation of
Panchwagh shortly after learning that he would be performing
inspections work in Section 8. When pressed by DiGravio to
explain his apparent demotion, Panchwagh pleaded ignorance,
much as he did with Marra, claiming that he served as nothing
more than the messenger for a decision that came from above.
In reality, as Panchwagh conceded at trial, he alone made the
decision to transfer DiGravio to the Section 8 Department.
Panchwagh also admitted that DiGravio was the only
supervisory level employee in the Inspections Division ever sent
to the Section 8 Department to perform inspections, and that,
even though he assured DiGravio that his Section 8 assignment
would be quite short (Galbreth herself was under the impression
that DiGravio’s stint in the Section 8 Department would last no
more than one month), Panchwagh never sought to recall
DiGravio prior to his (Panchwagh’s) retirement nearly eight
months later. While Panchwagh insisted that he had “no reason”
to recall DiGravio based on the ongoing needs of the Section 8
Department, the jury was free to reject Panchwagh’s testimony
and infer a motive less benign based on the evidence.
While we think a reasonable factfinder could conclude
that PHA intentionally retaliated against Marra and DiGravio
based on the causation evidence discussed above, coupled with
45
the evidence exposing the falsity of PHA’s asserted
justifications for its actions, Reeves, 530 U.S. at 147-48,17 we
need not rest our conclusion on this evidence alone. As noted,
plaintiffs bolstered their claims by presenting additional,
independent evidence of retaliatory animus - e.g., DiPiero’s
repeated warnings to DiGravio that there would be
“repercussions” against employees testifying against PHA -
from which the jury could reasonably infer that PHA’s
decisionmakers, principally Panchwagh here, harbored ill-will
toward Marra and DiGravio for the protected activity in which
they engaged. In sum, viewed in the light most favorable to
Marra and DiGravio, the evidence presented at trial is sufficient
to sustain the retaliation verdicts returned by the jury in their
favor under the PHRA.18
17
In Reeves, the Supreme Court recognized “there will be
instances where, although the plaintiff has established a prima
facie case and set forth sufficient evidence to reject the
defendant’s explanation, no rational factfinder could conclude
that the action was discriminatory,” such as where the record
“conclusively revealed some other, nondiscriminatory reason for
the employer’s decision” or where “the plaintiff created only a
weak issue of fact as to whether the employer’s reason was
untrue and there was abundant and uncontroverted independent
evidence that no discrimination had occurred.” 530 U.S. at 148.
This is not such a case.
18
PHA also seeks a new trial on the ground that the PHRA
verdicts were against the weight of the evidence. Unlike a
sufficiency of the evidence claim, when a court evaluates a
46
C. Consistency of the Verdicts
PHA also challenges the District Court’s denial of its
motion for judgment as a matter of law, or in the alternative a
new trial, on the ground that the jury’s finding that PHA
retaliated against Marra and DiGravio, in violation of the
PHRA, is irreconcilably inconsistent with its finding that Greene
did not personally direct or acquiesce in any retaliation against
them under § 1983. 1 9 Immediately after
challenge to the weight of the evidence it does not view the
evidence in the light most favorable to the verdict winner, but
instead exercises its own judgment in assessing the evidence.
Greenleaf v. Garlock, Inc., 174 F.3d 352, 365 (3d Cir. 1999); 11
Charles Alan Wright et al., Federal Practice and Procedure §
2806 (2d ed. 1995). “[N]ew trials because the verdict is against
the weight of the evidence are proper only when the record
shows that the jury’s verdict resulted in a miscarriage of justice
or where the verdict, on the record, cries out to be overturned or
shocks our conscience.” Williamson v. Consolidated Rail Corp.,
926 F.2d 1344, 1353 (3d Cir. 1991). Based on our careful
review of the record, we see no basis for granting this
extraordinary relief.
19
The verdict form, with the jury’s responses denoted by an
“X,” provided in its entirety as follows:
1. Do you find by a preponderance of the evidence that the
Philadelphia Housing Authority retaliated against
Edward Marra in violation of the Pennsylvania Human
Relations Act?
47
Yes X No
2. Do you find by a preponderance of the evidence that the
Philadelphia Housing Authority retaliated against Albert
DiGravio in violation of the Pennsylvania Human
Relations Act?
Yes X No
3. Do you find by a preponderance of the evidence that
Edward Marra was retaliated against in violation of
Section 1983?
Yes X No
(Answer Question #4 only if you answered “Yes” to Question
#3)
4. Do you find by a preponderance of the evidence that Carl
Greene personally ordered or acquiesced in the
retaliation, if any, against Edward Marra?
Yes No X
5. Do you find by a preponderance of the evidence that
Albert DiGravio was retaliated against in violation of
Section 1983?
Yes X No
(Answer Question #6 only if you answered “Yes” to Question
#5)
6. Do you find by a preponderance of the evidence that Carl
Greene personally ordered or acquiesced in the
retaliation, if any, against Albert DiGravio?
48
discharging the jury, the District Court entered judgment in
favor of both Marra and DiGravio on their PHRA claims. The
District Court entered judgment in favor of PHA on the § 1983
claims, however, notwithstanding the jury’s findings that PHA
retaliated against both Marra and DiGravio “in violation of” that
statute, based on the jury’s separate finding that Greene – the
only employee whose conduct could, as a matter of law, be
imputed to PHA for purposes of § 1983 liability under Monell
v. Dep’t of Social Services, 436 U.S. 658 (1978), and its progeny
– did not personally order or acquiesce in the retaliation. See
generally, id. at 694 (municipal liability under § 1983 only
attaches when “execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the
injury”). Because the PHRA subjects employers to a broader
Yes No X
7. If you answered “Yes” to Question #1 or (3 and 4), what
amount of damages, if any, do you award Edward Marra?
Back Pay: $208,676
Compensatory: $102,000
8. If you answered “Yes” to Question #2 or (5 and 6), what
amount of damages, if any, do you award Albert
DiGravio?
Compensatory: $70,000
App. at 4-5.
49
scope of liability under principles of respondeat superior, see
generally County of Allegheny v. Wilcox, 465 A.2d 47 (Pa.
Commw. Ct. 1983), as neither party disputes, the District Court
rejected PHA’s contention, first raised in post-trial motions filed
several days later, that the jury’s PHRA verdicts in favor of
Marra and DiGravio were inconsistent with its absolution of
Greene. The District Court concluded that, under the theory of
respondeat superior, there was sufficient evidence from which
the jury could conclude that a PHA employee other than Greene,
the obvious candidate being Panchwagh, retaliated against both
Marra and DiGravio in violation of the PHRA.
On appeal, PHA does not seriously dispute that the
challenged jury findings are facially consistent, nor could it, in
light of the materially different standards of liability governing
claims under § 1983 and the PHRA, upon which the jury was
properly instructed. See Kitchen v. Chippewa Valley Sch., 825
F.2d 1004, 1013-14 (6th Cir. 1987) (“By finding that Kitchen
was denied equal protection, but not finding the board liable
[under § 1983], the jury must have concluded that the causal
nexus of board policy or custom was absent. The board’s
liability under Title VII, however, can be based on the theory of
respondeat superior. Therefore, the district court could have
found liability against the board under respondeat superior.
Such a finding would not have conflicted with the jury’s § 1983
finding.”) (internal citation omitted); see also Resolution Trust
Corp. v. Stone, 998 F.2d 1534, 1547 (10th Cir. 1993) (as a
general matter, “[a] verdict that resolves separate and distinct
50
causes of action in favor of both parties is not inconsistent on its
face”) (citation omitted). The obvious inference from the jury’s
findings that PHA retaliated against both Marra and DiGravio,
but Greene was not personally involved in either instance, is that
the jury believed that one or more of PHA’s other agents were
responsible for the retaliation, as it was permitted to do in
assessing PHRA liability under respondeat superior. As the
District Court’s analysis implies, any “inconsistency” between
these findings can be exposed only by inquiring into whether
there is sufficient evidence to support the conclusion that one or
more PHA employees, other than Greene, retaliated against
Marra and DiGravio. At bottom, rather than an inconsistency
between the PHRA and § 1983 verdicts, what PHA asserts is an
inconsistency between the jury’s findings and the evidence,
which amounts to nothing more than a recasting of the
sufficiency of the evidence challenge that we have already
considered and rejected.
PHA resists this conclusion by arguing that, regardless
whether the evidence may be interpreted in such a manner as to
support a finding of PHRA liability based on the conduct of
some PHA employee other than Greene, Marra and DiGravio
exclusively targeted Greene as the perpetrator of the retaliation
at trial, and the jury disagreed. In essence, PHA urges us to
construe the jury’s PHRA verdicts as being “inconsistent” with
the theory of the case advanced by Marra and DiGravio.
Accepting this invitation would require us to conclude that
plaintiffs’ view of the adverse employment decisions against
51
them as being retaliatory in nature was contingent upon
Greene’s affirmative involvement in those decisions. No fair
reading of the trial record supports PHA’s assertion.20 The
20
In particular, we note that plaintiffs’ counsel conducted a
vigorous cross-examination of Panchwagh, consuming nearly
eighty pages of transcript, in which she took pains to establish
his knowledge of their involvement in the Paladino trial at the
time he made the challenged employment decisions. She probed
a variety of issues bearing on his retaliatory animus. These
included the sequence of events leading up to Marra’s
termination as part of the purported reorganization, the nature
and scope of the reorganization, Panchwagh’s failure to include
Marra in the July 2001 supervisors’ meeting and consult him
prior to transferring DiGravio to the Section 8 Department,
Panchwagh’s consideration of transferring other supervisors to
the Section 8 Department to perform inspections, and his
authority to recall DiGravio from the Section 8 Department.
Moreover, on several occasions plaintiffs’ counsel impeached
Panchwagh with his prior deposition testimony. Naturally
concerned about the impression this cross-examination may
have left on the jury, defense counsel elicited testimony from
PHA’s subsequent witnesses that portrayed Panchwagh’s
conduct in a far more favorable light. See App. at 646 (defense
counsel to Galbreth: “To your knowledge, did Ramesh
Panchwagh take any action against Mr. DiGravio to punish him
for his Federal Court testimony?”); App. at 691-92 (defense
counsel to DiPiero: “Did Ramesh Panchwagh ever talk to you
and suggest that, if Mr. DiGravio or anyone else testified against
the PHA, that there would be repercussions with respect to their
52
essence of plaintiffs’ claims is that the particular employment
decisions affecting them were, without qualification, the product
of retaliation for their involvement in the Paladino trial, rather
than honest business considerations. From their perspective, the
only question was how far up the chain of command the blame
could be put for purposes of imputing liability to PHA, the only
named defendant. To the extent that they more forcefully
pointed at Greene as the orchestrator of the challenged
employment decisions, it was primarily, if not exclusively,
because they could not prevail against PHA under § 1983
without doing so.
PHA’s contrary suggestion on appeal is belied by its own
thinking at trial, as reflected in the jury instructions and verdict
form upon which the parties agreed. At PHA’s request, the
District Court instructed the jury that it was required to return a
verdict in favor of PHA on the § 1983 claims if it found that
Greene had no involvement in the challenged employment
decisions. PHA did not, however, request a similar instruction
for the PHRA claims. Instead, without any objection by PHA,
the District Court instructed the jury that, for purposes of PHRA
employment?”). Lest there be any lingering doubt in the jurors’
minds that Panchwagh was among the culpable participants,
plaintiffs’ counsel again targeted him in her closing argument,
remarking, for example, that “the trumped up reason [of
DiGravio] volunteering was to try to avoid the claim that it was
in retaliation . . . [a]nd Mr. Panchwagh was in on that . . . .”
App. at 775 (emphasis added).
53
liability, “[i]t is undisputed in this case that all acts done by
officers and employees of the [PHA] . . . were within the scope
of their employment with the [PHA] . . . . Therefore, you must
then decide the other questions [regarding liability], keeping in
mind that it is undisputed that the acts were conducted, or . . .
were done[,] within the scope of their employment,” App. at 810
(emphasis added), authorizing the jury to look beyond Greene
to the remaining PHA employees in assessing PHRA liability.
Consistent with these instructions, the agreed-upon verdict form
authorized the jury to award damages based on the single
finding that PHA retaliated against Marra and DiGravio,
respectively, in violation of the PHRA, whereas the jury was
only permitted to enter a damages verdict on the § 1983 claims
if it first found that Greene personally ordered or acquiesced in
the retaliation against Marra and DiGravio, respectively. See,
e.g., App. at 5 (“If you answered ‘Yes’ to Question #1 [whether
PHA retaliated against Marra in violation of the PHRA] or (3
and 4) [whether Marra was retaliated against in violation of
Section 1983 and Greene personally ordered or acquiesced in
the retaliation], what amount of damages, if any, do you award
Edward Marra?”) (emphasis added). In rendering PHRA
verdicts in favor of both Marra and DiGravio, the jury faithfully
applied the instructions given to them.
In short, we reject every permutation of PHA’s
inconsistency challenge and conclude that the jury’s findings
54
here are consistent in all respects.21
21
The parties debate whether PHA waived its inconsistency
challenge pursuant to Federal Rule of Civil Procedure 49, which
addresses special verdicts and interrogatories, by failing to raise
this issue before the District Court until after the jury had been
discharged. Resolution of this issue may well turn on whether
the verdicts here are properly characterized as special verdicts,
governed by Rule 49(a), or general verdicts accompanied by
interrogatories, governed by Rule 49(b). See Simmons v. City of
Philadelphia, 947 F.2d 1042, 1056-57 (Becker, J., opinion
announcing judgment of the court) (3d Cir. 1991) (“In this
circuit, it probably is necessary, as it is in the majority of the
circuits, to raise prior to the jury’s dismissal an objection based
on the inconsistency of the answers to interrogatories supporting
a general verdict rendered under Rule 49(b). It is clear,
however, that, in order to preserve the objection on appeal, it is
not necessary in this circuit for a party, prior to the district
court’s dismissal of the jury, to lodge an inconsistency objection
to special verdicts rendered under Rule 49(a).”) (internal
citations omitted); see also Loughman v. Consol-Pennsylvania
Coal Co., 6 F.3d 88, 104 n.15 (3d Cir. 1993) (noting, without
resolving the issue, that “[w]hile [Judge Becker’s statement
about Rule 49(b) waiver in Simmons] may well be correct, . . .
it is, by its own language, a tentative conclusion . . . . [It] cannot,
in any case, be considered a holding of the court . . . .”). As
might well be gleaned from our analysis above, we think a
strong case can be made that PHA waived its “inconsistency”
challenge at an even earlier juncture, pursuant to Federal Rule
of Civil Procedure 51, by failing to raise any objection to the
content of the jury instructions and verdict form, both of which
55
D. Jury Trial
PHA finally contends that the District Court erred in
permitting plaintiffs’ PHRA claims to be tried before a jury.
Although the Pennsylvania Supreme Court has construed
Section 962(c)(3) of the PHRA22 as not conferring a right to a
jury trial for claims under the statute, Wertz v. Chapman Twp.,
authorized the jury to make the findings that PHA now
complains are inconsistent. See Fed. R. Civ. P. 51 (addressing
objections to jury instructions); Kosmynka v. Polaris Indus.,
Inc., 462 F.3d 74, 84-85 (2d Cir. 2006) (“Waiver of an objection
to an inconsistent verdict has been found . . . when the
inconsistency was caused by an improper jury instruction or
verdict sheet and there was no objection to either the instruction
or verdict sheet prior to submission of the case”); Barrett v.
Orange County Human Rights Comm’n, 194 F.3d 341, 349 (2d
Cir. 1999) (challenge to instructions provided on verdict form
must comply with Rule 51). In the end, however, we need not
resolve the waiver issue under Rule 49 or 51 because the
verdicts here are not inconsistent.
22
“If the court finds that the respondent has engaged in or is
engaging in an unlawful discriminatory practice charged in the
complaint, the court shall enjoin the respondent from engaging
in such unlawful discriminatory practice and order affirmative
action which may include, but is not limited to, reinstatement or
hiring of employees, granting of back pay, or any other legal or
equitable relief as the court deems appropriate . . . .” 43 Pa.
Cons. Stat. Ann. § 962(c)(3).
56
741 A.2d 1272 (Pa. 1999), the District Court concluded that it
was not bound by Wertz because the right to a jury trial in
federal court is a matter of federal law. The District Court
further determined that Marra and DiGravio were entitled to a
jury trial on their PHRA claims under the Seventh Amendment
to the United States Constitution. On appeal, PHA takes issue
only with the District Court’s predicate determination that
federal law, not state law, governs the question of whether a
litigant has a right to jury trial on a claim brought in a federal
forum, insisting that the District Court was bound to apply Wertz
and strike the jury trial demand for the PHRA claims. We
disagree.
“The right to a jury trial in federal court, regardless of
whether the claim arises under state law, presents a question of
federal law,” In re City of Philadelphia Litigation, 158 F.3d 723,
726 (3d Cir. 1998) (citing Simler v. Conner, 372 U.S. 221, 222
(1963) (per curiam); Cooper Labs., Inc. v. Int’l Surplus Lines
Ins. Co., 802 F.2d 667, 671 (3d Cir. 1986)), “even when a state
statute or state constitution would preclude a jury trial in state
court.” Gipson v. KAS Snacktime Co., 83 F.3d 225, 230 (8th
Cir. 1996) (citations omitted). This long-recognized precept is
dictated by the clear command of the Seventh Amendment. See
U.S. Const. amend. VII (“In Suits at common law, where the
value in controversy shall exceed twenty dollars, the right of
trial by jury shall be preserved . . . .”); Simler, 372 U.S. at 222(“The federal policy favoring jury trials is of historic and
continuing strength. Only through a holding that the jurytrial
57
[sic] right [in federal court] is to be determined according to
federal law can the uniformity in its exercise[,] which is
demanded by the Seventh Amendment[,] be achieved.”)
(internal citations and footnote omitted).23
Our decision in Bereda v. Pickering Creek Indus. Park,
Inc., 865 F.2d 49 (3d Cir. 1989), relied on here by PHA, is not
to the contrary. There, the plaintiff brought suit against her
former employer for, among other things, gender discrimination
in violation of Title VII and the PHRA. Both parties requested
a jury trial and the case was tried to a jury. It found in favor of
the plaintiff on both claims. It had not been instructed on the
statutory caps on back pay under Title VII and the PHRA,
however, and awarded back pay damages in excess of those
caps. Reasoning from the premise that neither Title VII nor the
PHRA conferred a right to a jury trial on the plaintiff’s claims,24
the district court elected to treat the jury’s gender discrimination
verdict as merely advisory in nature, even though the case had
been submitted to the jury on the parties’ understanding that the
23
The Supreme Court has interpreted the Seventh
Amendment to require a jury trial on the merits in actions that
are analogous to “Suits at common law,” including actions
enforcing statutory rights. Curtis v. Loether, 415 U.S. 189, 192-
94 (1974).
24
Title VII was subsequently amended by the Civil Rights
Act of 1991 to provide for jury trials in certain cases. See 42
U.S.C. § 1981a(c)(1).
58
jury verdict would be binding, and reduced the plaintiff’s back
pay award to comply with the statutory caps.
On appeal, the plaintiff did not challenge the district
court’s legal premise that she had no right to a jury trial on her
claims, but instead principally contended that the court had
violated Federal Rule of Civil Procedure 39(c)25 by announcing
that it would treat the jury’s verdict as advisory only after the
verdict had been returned. At the outset of our analysis of this
claim on the merits, we observed that “neither Title VII nor
PHRA provide for trial by jury as a matter of right,” Bereda,
865 F.2d at 52, merely citing § 962(c) of the PHRA for the latter
proposition, and did not consider whether the Seventh
Amendment independently conferred such a right. We went on
to rule in favor of the plaintiff on the merits of her Rule 39(c)
argument. Id. at 53.
PHA misreads Bereda as eschewing application of a
federal constitutional analysis in determining whether there
exists a right to a jury trial in federal court on a state law claim.
We were not asked in Bereda to determine whether the plaintiff
had a federal constitutional right to a jury trial on her PHRA
25
“In all actions not triable of right by a jury the court upon
motion or of its own initiative may try any issue with an
advisory jury or . . . the court, with the consent of both parties,
may order a trial with a jury whose verdict has the same effect
as if trial by jury had been a matter of right.” Fed. R. Civ. P.
39(c).
59
claim, and our cursory observation that there exists no statutory
right to a jury trial under the PHRA, an issue that would not be
definitively resolved by the Pennsylvania Supreme Court until
more than a decade later in Wertz, was intended to serve as
nothing more than an acknowledgment of an undisputed point
in that case. In any event, long-standing Supreme Court
precedent requires the application of federal law in determining
the right to a jury trial in federal court, Simler, 372 U.S. at 222,
and our decision in Bereda cannot, and should not, be
understood to suggest anything to the contrary.
We thus conclude that the District Court was correct in
looking beyond Wertz to determine, under the Seventh
Amendment, whether Marra and DiGravio had a constitutionally
guaranteed right to try their PHRA claims before a jury. We
need not further decide whether the District Court correctly held
that Marra and DiGravio were entitled to a jury trial on their
PHRA claims under the Seventh Amendment, see Tull v. United
States, 481 U.S. 412, 417-18 (1987) (articulating two-part test
for determining whether statutory cause of action is a “Suit at
common law” for Seventh Amendment purposes), as PHA has
not challenged this aspect of the District Court’s ruling.26
26
Without expressing any comment about the propriety of
these rulings, we note that scores of district courts in this Circuit
have concluded that the Seventh Amendment confers a right to
a jury trial on PHRA claims brought in federal court, at least
where compensatory relief is sought. See, e.g., Heater v.
Kispeace, No. Civ. A. 05-4545, 2005 WL 2456008, at *5 (E.D.
60
III. Conclusion
For the foregoing reasons, we affirm the judgment in
favor of Marra and DiGravio on their retaliation claims under
the PHRA.
Pa. Oct. 5, 2005); Grabosky v. Tammac Corp., 127 F. Supp. 2d
610, 624 (M.D. Pa. 2000); Cortes v. R.I. Enterprises, Inc., 95 F.
Supp. 2d 255, 260-62 (M.D. Pa. 2000); Graham v. Toltzis
Communications, Inc., No. Civ. A. 98-6269, 2000 WL 433978,
at *1 (E.D. Pa. April 18, 2000); Pellegrino v. McMillen Lumber
Products Corp., 16 F. Supp. 2d 574, 591 (W.D. Pa. 1996); Lubin
v. Am. Packaging Corp., 760 F. Supp. 450, 453-55 (E.D. Pa.
1991).
61