100 F.3d 1061 (3rd Cir. 1996), 94-7509, Sheridan v. De Nemours

Docket Nº:94-7509
Citation:100 F.3d 1061
Case Date:November 14, 1996
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 1061

100 F.3d 1061 (3rd Cir. 1996)




No. 94-7509

United States Court of Appeals, Third Circuit

November 14, 1996

Argued May 4, 1995

Reargued en banc May 14, 1996

On Appeal from the United States District Court for the District of Delaware, (D. C. Civil No. 93-cv-00046)

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Thomas S. Neuberger (Argued), Wilmingon, DE, Martin D. Haverly Wilmington, DE, for Appellant.

Raymond M. Ripple (Argued), Donna L. Goodman, E.I. DuPont de Nemours & Co. Legal Department, Wilmington, DE, for Appellees.

Elaine R. Jones, Theodore M. Shaw, Charles Stephen Ralston, NAACP Legal Defense and Educational Fund, Inc., New York City, for Amicus Curiae NAACP Legal Defense and Educational Fund in Support of Appellant.

C. Gregory Stewart, Gwendolyn Young Reams, Carolyn L. Wheeler, Robert J. Gregory, Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae Equal Employment Opportunity Commission in Support of Appellant.

Alice Ballard, Samuel & Ballard, Philadelphia, PA, Scott A. Burr, Alan B. Epstein,

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Jablon, Epstein, Wolf & Drucker, Philadelphia, PA, for Amicus Curiae National Employment Lawyers' Association in Support of Appellant.

Kathryn H. Levering, Drinker Biddle & Reath, Philadelphia, PA, for Amicus Curiae Lockheed Marin Corp. in Support of Appellees.

Argued May 4, 1995

Before: SLOVITER, Chief Judge, ALITO, Circuit Judge, and SCHWARZER, District Judge[*]

Reargued en banc May 14, 1996.



SLOVITER, Chief Judge.

This appeal offers the en banc court the opportunity to attempt to clarify the quantum and nature of evidence that will permit a jury to find that an employer engaged in impermissible employment discrimination. Although we believe that several of our opinions in recent years accurately and adequately set forth the applicable legal principles, the decision of the district court and that of a panel of this court, now withdrawn, require us to return to the central issue presented here.


Barbara Sheridan, a former employee of E.I. DuPont de Nemours & Co. (DuPont), filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section(s) 2000e-1 et seq., charging DuPont and her former supervisor, Jacques Amblard, with several claims of sex discrimination and retaliation. Sheridan, who had been an employee of the Hotel du Pont 1 since 1979 and was at the time her employment ceased one of the Head Captains of the hotel's Green Room, asserted that DuPont discriminated against her on the basis of her sex when it failed to promote her to Manager of Restaurants in 1991 (Count I), retaliated against her for complaining about sex discrimination by putting her on probation and taking various disciplinary actions against her (Count II), and created intolerable working conditions, culminating in her removal from a supervisory position, which resulted in her constructive discharge (Count III).

After discovery, the defendants moved for summary judgment which the district court denied. The court held that Sheridan had presented a prima facie case of discrimination and sufficient evidence to permit a factfinder to believe that DuPont's reasons for not promoting her, i.e., that she was not qualified for the position of Manager of Restaurants and that she had not applied for the position, were pretexts for discrimination. App. at 57. The court further held that Sheridan had presented adequate evidence to survive summary judgment on her retaliation claim and to enable a factfinder to reasonably believe that her supervisors had intentionally fabricated evidence of poor job performance in order to remove her from her position as Head Captain and offer her less desirable, dead-end jobs. App. at 68. The court concluded that "[i]f plaintiff's version of the facts were accepted by a trier of fact, it would be reasonable for the trier of fact to conclude that resignation was plaintiff's only option." Id.

Thereafter, the case proceeded to trial. The conduct that was the subject of Sheridan's claims straddled the period before and after November 21, 1991, the date of the enactment of the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991), which granted a right to a jury trial on Title VII intentional discrimination claims for which compensatory or punitive damages are

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sought, id. Section(s) 1977A(c), 105 Stat. at 1073 (codified at 42 U.S.C. Section(s) 1981a(c)). The district court ruled that the jury would serve as the finder of fact for Sheridan's claims that were based on conduct that occurred after that date, but that the jury would serve only in an advisory capacity for claims based on events that occurred before that date. This meant that the jury's verdicts on Count I (failure to promote) and the alleged retaliatory acts in Count II that occurred before November 21, 1991 were to be advisory, while the jury was to be the finder of fact for the remaining alleged acts of retaliation and with respect to Count III, Sheridan's claim of constructive discharge.

The trial occupied six days. During the trial, the district court dismissed the claims against Amblard on the ground that an employee cannot be sued under Title VII.

After deliberating, the jury returned special interrogatories. With respect to the promotion claim, the jury found that Sheridan was not qualified for the job of Manager of Restaurants and therefore found against her on her claim of discriminatory failure to promote. With respect to retaliation, the jury found that DuPont had not retaliated against Sheridan for complaining of sex discrimination. In contrast, the jury did find in Sheridan's favor on her claim of constructive discharge. It awarded her $17,500 in compensatory damages, over and above lost wages, but found that DuPont's actions were not taken "with malice or reckless indifference" to her rights, App. at 33, thus precluding Sheridan from receiving punitive damages. See 42 U.S.C. 1981a (b) (1). Finally, the jury found that Sheridan had failed to mitigate her damages by $33,000, that amount to be deducted from the total amount of lost wages owed. Because the court calculated Sheridan's lost wages to be $51,072, it awarded her $18,072, in addition to six months of front pay totaling $12,768. The district court adopted as its own the jury's findings with respect to the conduct alleged in Counts I and II that took place before November 21, 1991.

Both parties moved for judgment as a matter of law or in the alternative for a new trial. The district court granted judgment in DuPont's favor. The court recognized that DuPont had proffered as one of the principal reasons for the disciplinary actions it had taken against Sheridan her alleged unauthorized "comping," i.e., giving away complimentary food and drinks in violation of the hotel's policy that they should be registered, and Sheridan offered evidence to the contrary, indeed, evidence that she was elsewhere on some of the days that DuPont claimed she was engaged in "comping" at the hotel.

In overturning the jury's verdict on the constructive discharge claim in favor of Sheridan, the court stated that even if the jury could have reasonably rejected the legitimacy of DuPont's investigation of Sheridan's alleged "comping," and thus its reasons for discharging her, "the Court is still left searching the record for evidence that gender played a determinative role in defendant's conduct. . . . The Court . . . has failed to locate sufficient evidence from which the jury could infer such a finding." Sheridan v. E.I. DuPont de Nemours and Co., No. 93-46 (D. Del. July 14, 1994) at 9. 2 The court ruled that the evidence Sheridan presented which arguably related to her gender, such as the facts that no woman had ever held the position of Manager of Restaurants, that a man replaced Sheridan as Head Captain of the Green Room morning shift, that Amblard had told Sheridan he would watch her like a "hawk" and a "dog," and Amblard's actions in ignoring her and speaking instead to one of her male supervisors if one was present, was even in totality insufficient to support a reasonable inference that gender was a motivating factor in DuPont's actions. Id. at 9-10.

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The court stated that "[i]n order to demonstrate that gender was a motivating factor, plaintiff would have to point to some evidence that was the motive of those in the decision making process. No such evidence exists in the record." Id. at 11-12. The district court accordingly granted DuPont's motion for judgment as a matter of law, and ruled conditionally, pursuant to Fed. R. Civ. P. 50(c), that if the judgment were reversed on appeal, DuPont would be entitled to a new trial "because the jury's verdict is contrary to the weight of the evidence." Id. at 12 n.11. Sheridan appealed.3

A panel of this court heard argument on May 4, 1995 and issued an opinion that reversed the district court's order granting judgment as a matter of law for DuPont on Sheridan's constructive discharge claim but was divided as to the alternative grant of a new trial, with two judges voting to affirm the grant of a new trial and the third voting to remand the issue whether a new trial was warranted for reconsideration by the district court, using the correct legal principles. See Sheridan v. DuPont, No. 94-7509 (Jan. 31, 1996), vacated, 74 F.3d 1439 (3d Cir. 1996). The majority and dissenting opinions differed in particular in their interpretation of the effect of the Supreme Court's opinion in St. Mary's Honor Center v...

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