Pivirotto v. Innovative Systems Inc.

• Decision Date: 13 July 1999
• Citation: 191 F.3d 344
• Parties: (3rd Cir. 1999) PATRICIA M. PIVIROTTO APPELLANT, v. INNOVATIVE SYSTEMS, INC. NO. 98-3609 Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 344

191 F.3d 344 (3rd Cir. 1999)

PATRICIA M. PIVIROTTO APPELLANT, v. INNOVATIVE SYSTEMS, INC.

NO. 98-3609

U.S. Court of Appeals, Third Circuit

Argued: July 13, 1999

Decided September 07, 1999

On Appeal From the United States District Court For the Western District of Pennsylvania (D.C. Civ. No. 96-cv-02292) District Judge: Honorable Clarence C. Newcomer (Sitting by Designation) [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Samuel J. Cordes, Esquire (argued) Mary R. Roman, Esquire Ogg, Jones, Cordes & Ignelzi 245 Fort Pitt Boulevard Pittsburgh, PA 15222 Counsel for Appellant

James B. Brown, Esquire (argued) Nancy L. Heilman, Esquire Michelle S. Pierson, Esquire Cohen & Grigsby, P.C. 11 Stanwix Street, 15th Floor Pittsburgh, PA 15222 Counsel for Appellee

Before: Becker, Chief Judge, Roth, and Rendell, Circuit Judges.

OPINION OF THE COURT

Becker, Chief Judge.

This appeal from a judgment entered on a jury verdict for the defendant-employer in a Title VII gender-discrimination case brought by a discharged female employee calls upon us to decide the correctness of an instruction to the jury that it was required to return a verdict in favor of the defendant if it did not find that the plaintiff had been replaced by a male. We join seven other circuits in holding that a plaintiff claiming discriminatory firing need not prove, to make out a prima facie case, that she was replaced by someone outside the relevant class.¹ We nonetheless will affirm the judgment of the District Court on the ground that the erroneous jury instruction was harmless.

I. Facts & Procedural History

Defendant Innovative Systems, Inc. ("ISI") is a consulting company founded in 1968 by Robert Colonna. At all times relevant to this case, Colonna was the company's Chairman and one of its two shareholders. Plaintiff Patricia Pivirotto was hired by ISI in October 1995 as Director of Eastern Regional Sales Operations, at an annual salary of $125,000. This made Pivirotto the third highest paid employee in the company. In May 1996, ISI hired Gary Fiedler as its Chief Operating Officer. Colonna testified that he hired Fiedler so that he (Colonna) could spend more time with his family and less time running the company. Once Fiedler was brought on board, Colonna reduced his workweek from sixty hours to about five hours. Fiedler was hired to run the day-to-day operations of the company and to "develop a strong management team behind him." Colonna testified that Fiedler was given responsibility over personnel decisions. Although Colonna maintained the "final word" on such matters, he testified that he gave Fiedler a great deal of autonomy because he was "the type of executive that, if he was second guessed or managed day-to-day," would immediately leave the company.

On June 10, 1996, less than a month after Fiedler was hired, Fiedler summoned Pivirotto's supervisor, Jose Garcia, from vacation and fired him. He thereupon promoted Pivirotto to Garcia's position, Director of North American Sales. However, a week later, Fiedler fired Pivirotto from this position. Colonna testified that the decision to terminate Pivirotto was completely Fiedler's: "Ms. Pivirotto did not work for me. I don't tell my subordinates to terminate people. I never have." Colonna conceded that he met with Fiedler the day before Pivirotto's firing, but claimed that he simply inquired as to whether Fiedler was certain he wanted to fire Pivirotto, or whether there was any way to "keep her on."

Fiedler, who (like Colonna) testified that the decision to terminate Pivirotto was his, claimed at trial that he told Pivirotto "that we were terminating her employment because she had demonstrated a tendency to blame others for problems in the sales organization and that that had the effect of driving a wedge between her organization and other parts of the company." Pivirotto apparently demonstrated her tendency to blame others at a staff meeting the day of her firing, at which she complained that ISI's in-house counsel was doing a poor job of negotiating a contract with a key client. Additionally, shortly before this staff meeting, Pivirotto had complained to Fiedler that "there was an inadequate amount of sales support resource being allocated to the sales organization." Yet Fiedler testified that his own analysis established that Pivirotto was receiving at least as much support (measured in terms of person-hours) as she indicated that she needed.

Pivirotto testified at trial that Fiedler told her at the time of her firing "that he felt that I was a wedge between sales and marketing and that my services were no longer compatible with the company." The company's separation letter to Pivirotto, signed by Frank Ruggieri, Vice President for Human Resources and Administration, stated that her firing "has become necessary due to a shift in the organization's business strategy and the decision that your approach is incompatible with the subsequent goals and objectives of this strategy."

The evidence presented at trial indicated that Pivirotto was not immediately "replaced" by anyone, male or female. Rather, her job responsibilities were assumed by Robert Keatley, a male employee responsible for sales support. It is noteworthy that the jury instructions explicitly required Pivirotto to prove that she was "replaced by a man." Although her job responsibilities were "assumed" by an existing male employee, ISI argued that Pivirotto was not "replaced" by a man, and in fact, ISI sought judgment as a matter of law at the close of Pivirotto's case on the ground that "quite simply . . . the Plaintiff has not adduced any credible evidence indicating that she was replaced by a male." After presenting its own case, ISI again moved for judgment as a matter of law: "Plaintiff has not and cannot prove an important part of her prima facie case. And that is that she was, in fact, replaced as the director of North American sales."

Although there was no evidence that Pivirotto was "replaced" by a man, she offered other evidence of discrimination. Most prominently, she testified that Colonna had often told her "that women were not as dependable or as reliable as men." She explained that these statements were made in the context of Colonna's observation that women were less reliable because they would get pregnant or sick with breast cancer. Another former ISI employee, Nancy Egan, testified similarly that Colonna had complained to her that women were riskier employees than men because they could become pregnant or get breast cancer. Colonna did not deny making such comments. However, he claimed he made them only in the context of expressing a concern that "if you lose your whole staff it really can ruin a whole company," and he testified that "we lost our whole staff, and the company sales declined" due to a number of women getting pregnant or sick at the same time.

In addition to the remarks by Colonna, Pivirotto offered evidence that a male ISI attorney suffered no adverse job consequences even though he "had difficulty taking instruction from sales to get things done." Pivirotto was also given less than a week in her final position (Director of North American Sales), while Garcia, her male predecessor, was not fired until about a month after Fiedler was brought on board.

Six months after her termination, Pivirotto brought the present Title VII claim in the United States District Court for the Western District of Pennsylvania. Following a number of pretrial rulings on evidentiary issues, a two-day jury trial was held. At the close of all the evidence, ISI moved for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure. The District Court denied the motion. A charge conference was then held, at which time Pivirotto raised two objections to the proposed jury instructions. The only objection relevant to this appeal was to a paragraph of the instructions in which the court explained to the jury that Pivirotto was an at-will employee, and, in such an employment relation, "both the employer and the employee are generally free to terminate the employment relationship at any time for any reason, good or bad." The District Court denied Pivirotto's objection to this instruction.

ISI also lodged a number of objections, including one to the court's proposed instruction on the prima facie case. It argued that the jury should be instructed that Pivirotto could meet her burden of establishing a prima facie case of gender discrimination only by showing that she was replaced by a man, and not by proving that "men in a similar position were treated more favorably than she was." The court sustained this objection. Therefore, the jury was instructed that "the Plaintiff must first establish . . . by a preponderance of the evidence . . . that she was replaced by a man." Following deliberations, the jury returned a verdict in ISI's favor. The District Court then entered a judgment for ISI. Pivirotto timely appealed.

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f)(3). We have jurisdiction to hear this appeal under 28 U.S.C. § 1291. Our review of the first allegation of error (regarding replacement by a male) is plenary, as Pivirotto claims that the District Court misstated the law regarding the prima facie case. See Walden v. Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir. 1997) ("We generally review jury instructions for abuse of discretion, but our review is plenary when the question is whether the instruction misstates the law . . . ."), cert. denied, 118 S. Ct. 1516 (1998). We consider the jury instructions as a whole to determine whether the District Court abused its discretion in giving the at-will employment instruction. See Savarese v. Agriss, 883 F.2d 1194, 1202 (3d Cir. 1989). We will not reverse a verdict on the ground that a jury instruction was erroneous if "it is highly probable that the error did not contribute to the...