EEOC v. Avecia Inc , 151 F. App'x 162 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-13-2005
EEOC v. Avecia Inc
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3396
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-3396
____________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION;
LISA STEPLER
v.
AVECIA, INC.
Lisa Stepler,
Appellant
___________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Dist. Court Civil Action No. 03-CV-00320
District Judge: The Honorable Susan L. Robinson
___________________
Argued July 12, 2005
Before: ALITO, BECKER, and GREENBERG, Circuit Judges
(Filed: October 13, 2005)
____________________
OPINION OF THE COURT
____________________
PHILLIP B. BARTOSHESKY (ARGUED)
Biggs and Battaglia
921 North Orange Street
Wilmington, Del. 19801
Counsel for Appellant
GINGER D. SCHRODER(ARGUED)
Schroder, Joseph & Associates LLP
766 Ellicott Street
Buffalo, N.Y. 14203
JENNIFER C. JAUFFRET
Richards, Layton & Finger
One Rodney Square
Wilmington, DE 19899
Counsel for Appellee
PER CURIAM:
Lisa Stepler, a former laboratory technician for Avecia, Inc. (“Avecia”) sued
Avecia for retaliation under Title VII of the Civil Rights Act of 1964, wrongful
termination under Delaware law, and intentional infliction of emotional distress under
Delaware law. The District Court dismissed Stepler’s claim for intentional infliction of
emotional distress and granted summary judgment in favor of Avecia on Stepler’s
retaliation and wrongful termination claims. We affirm the dismissal of the claim for the
intentional affliction of emotional distress and the entry of summary judgment in favor of
Avecia on the wrongful termination claim. However, we reverse the entry of summary
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judgment in favor of Avecia on the retaliation claim and remand for further proceedings.
I.
Stepler asserts that this case should have been analyzed under the framework of
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).1 Under that framework, the “burden
of production and the risk of non-persuasion are shifted to the defendant,” and the
defendant must show “that even if discrimination was a motivating factor in the adverse
employment decision, it would have made the same employment decision regardless of its
discriminatory animus.” Armbuster v. Unisys Corp., 32 F.3d 768, 778 (3d Cir. 1994).
This framework only applies, however, where the employee can show “direct evidence
that an illegitimate criterion was a substantial factor in the decision.” Price Waterhouse,
490 U.S. at 276 (O’Connor, J., concurring in the judgment) (emphasis added); see also
Walden v. Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir. 1997). We have carefully
considered the evidence on which Stepler relies in this case, and while the question is
close we conclude that she did not meet the “direct evidence” standard.
Stepler’s Title VII claims must be analyzed under the burden-shifting framework
established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny.
Under this framework, Stepler was first required to make out a prima facie case of
1
42 U.S.C. § 2000e-2(m) does not reach retaliation claims. Woodson v. Scott
Paper Co., 109 F.3d 913, 934 (3d Cir.), cert. denied, 522 U.S. 914 (1997).
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retaliation by establishing (1) that she engaged in a protected activity, (2) that she suffered
an adverse employment action, and (3) that there was a causal link between her protected
activity and the adverse employment action. Farrell v. Planters Lifesavers Co., 206 F.3d
271, 279 (3d Cir. 2000). If Stepler successfully made out a prima facie case, Avecia had
to point to evidence in the summary judgment record that was sufficient, if believed, to
support a finding that Stepler was not discharged because of her protected activity. See
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-507 (1993). If Avecia met this burden,
Stepler was required to prove that unlawful retaliation was a determinative cause of her
firing. See McDonnell Douglas, 411 U.S. at 802-803.
Stepler clearly satisfied the first two prongs of the prima facie case standard. Her
complaints about a hostile work environment and retaliation were protected activities, and
her firing by Avecia obviously was an adverse employment action. Whether she
proffered sufficient evidence to meet the third prong of the prima facie case standard is
less clear due to the gap of almost one year between her initial complaint and her
termination, but a gap of this magnitude is not conclusive and can be outweighed by a
“pattern of harassment” or a “pattern of antagonism” in the intervening period. See
Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997); see also Robinson v.
Southeastern Pennsylvania Transp. Auth., 982 F.2d 892, 894-95 (3d Cir. 1993). A
reasonable jury considering the evidence in the light most favorable to Stepler – including
Stepler’s performance reviews, management’s increased scrutiny of her, the tension with
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her co-workers, the memorandum of April 23, 2001, and the termination letter – could
conclude that there was a causal link between Stepler’s protected activities and Avecia’s
decision to fire her. We thus conclude that Stepler made out a prima facie case.
Avecia’s proffered reasons for Stepler’s termination were poor work performance
and disruptive behavior, but a reasonable jury considering the evidence in the light most
favorable to Stepler, and drawing all inferences in Stepler’s favor, could conclude
otherwise. Particularly noteworthy are the references in both the April 23 memo and the
May 4, 2001, termination letter to Stepler’s “intense focus upon alleged harassment [and]
retaliation.” App. 264, 371.
III.
Conversely, there are no issues of fact precluding summary judgment in favor of
Avecia on Stepler’s state law claim for breach of the covenant of good faith and fair
dealing.
The general rule in Delaware is that employees are employed “at will” and may be
dismissed at any time without cause. See Merrill v. Crothall-American, Inc., 606 A.2d
96, 103 (Del. 1992). The general rule does not apply, however, in the following four
situations:
(i) where the termination violated public policy;
(ii) where the employer misrepresented an important fact and the employee relied
“thereon either to accept a new position or remain in a present one”;
(iii) where the employer used its superior bargaining power to deprive an employee
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of clearly identifiable compensation related to the employee’s past service; and
(iv) where the employer falsified or manipulated employment records to create
fictitious grounds for termination.
Lord v. Souder, 748 A.2d 393, 400 (Del. 2000) (citing E.I. DuPont de Nemours and Co.
v. Pressman, 679 A.2d 436, 442-44 (Del. 1996)). Stepler claims that Avecia’s actions fit
into either the first or fourth category. She contends that the first category fits because
being fired for opposition to sexual harassment and retaliation violates public policy, and
she argues that the fourth category fits because she was subjected to false criticisms of her
work in her performance evaluation, false claims that she was using work time to study,
and false claims that she was fired for behavioral and performance issues.
In order to make out a claim of a public policy violation, a plaintiff must satisfy a
two-part test: “(i) the employee must assert a public interest recognized by some
legislative, administrative or judicial authority and (ii) the employee must occupy a
position with responsibility for advancing or sustaining that particular interest.” Lord,
748 A.2d at 401 (citing Pressman, 679 A.2d at 441-42). To satisfy the first part, Stepler
relies on the Delaware Supreme Court’s decision in Schuster v. Derocili, 775 A.2d 1029(Del. 2001), which recognized a cause of action for breach of the covenant of good faith
and fair dealing where the employee alleged that she was terminated following sexual
harassment in the workplace. But in 2004 the Delaware legislature amended 19 Del. C. §
710 et seq., which prohibits discrimination in employment practices, in order to clarify
that this statute was the “sole remedy” for an aggrieved employee “to the exclusion of all
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other remedies.” 19 Del. C. § 712(b) (2005). In fact, the synopsis of the Senate Bill
expressly states disagreement with the Delaware Supreme Court’s decision in Schuster:
This bill confirms that Chapter 7 is the exclusive and sole remedy for employment
discrimination claims, requiring initial processing of all such claims with the
Department of Labor for review and action. This bill effectively re-establishes the
exclusive remedy put in question by the decision in Schuster v. Derocili, 775 A. 2d
1029 (2001).
Delaware Bill Summary, 2004 Reg. Sess. S.B. 154. Moreover, when the bill is read in
light of the sponsor statement, which “confirms” and “re-establishes” the pre-existing rule
“put in question by” Schuster, it is clear that the 2004 Amendment is meant to be
retroactive. Thus Stepler has not asserted a recognized public interest, and Avecia’s
actions do not fit into the first category.
Nor do they fit into the fourth category: falsification or manipulation of
employment records to create fictitious grounds for termination. Even if we assume that
Stepler was subjected to false criticisms of her work performance and false claims that
she was using work time to study, there is no evidence that these particular criticisms and
claims were the grounds for Stepler’s termination. And even if we assume that Avecia
falsely claimed that Stepler was fired for behavioral and performance issues, this is not
the kind of falsehood specified in the fourth category, which provides that an employer
violates the covenant of good faith and fair dealing when it “falsifie[s] or manipulate[s]
employment records to create fictitious grounds for termination.” Lord, 748 A.2d at 400.
If the employer did not actually falsify or manipulate employment records, then it does
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not matter if the employer gave a false rationale for termination. See Williams v. Caruso,
966 F. Supp. 287, 291 (D. Del. 1997) (“Nothing in Pressman suggests an employer who
gives an employee a false reason for termination is subject to liability under the implied
covenant of good faith and fair dealing. Pressman only held culpable the manufacture of
grounds for dismissal, not the statement of a false reason for dismissal.”) (emphasis in
original); see also Geddis v. University of Delaware, 40 Fed. Appx. 650, 654 (3d Cir.
2002) (unpublished) (noting that the employee did not claim his supervisor “intentionally
created ‘fictitious negative information’ about him in order to get him fired” and thus the
conduct at issue did not fit the fourth Pressman category) (quoting Schuster, 775 A.2d at
1040).
IV.
Under Delaware law, the general rule is that the worker’s compensation
administrative process is the exclusive remedy for an employee who suffers a work-
related accident causing personal injury or death. See 19 Del. Code Ann. § 2304 (2005).
However, the Delaware Supreme Court has held that “claims that involve a true intent by
the employer to injure the employee fall outside of the Workers’ Compensation Act and
remain separately actionable as common law tort claims.” Rafferty v. Hartman Walsh
Painting Co., 760 A.2d 157, 159 (Del. 2000) (emphasis added); see also Showell v.
Langston, No. Civ. A. 02C-01-016, 2003 WL 1387142, at *3 (Del. Super. Mar. 05, 2003)
(citing Rafferty). Thus, “for a complaint to survive a motion to dismiss, there must be
more than a mere allegation that there was an intentional injury; there must be facts
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alleged which, if true, show deliberate intent to bring about an injury.” Rafferty, 760
A.2d at 160. In other words, an employee must allege facts that, if true, would show that
the employer intended to injure her. It would not be enough to allege facts showing that
the employer intended to do an action and that the worker was injured as a result of that
action. Specific intent is required.
Stepler cites Rafferty and argues that her claim for intentional infliction of
emotional distress is not barred. In a Memorandum Order of April 28, 2004, the District
Court rejected Stepler’s argument. We agree with the District Court’s analysis.
We therefore affirm the District Court’s order of summary judgment in favor of
Avecia on Stepler’s claims under Delaware law, but we reverse the District Court’s order
granting summary judgment in favor of Avecia on Stepler’s retaliation claim, and we
remand the case for further proceedings.
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