26 F.3d 439 (3rd Cir. 1994), 93-3467, Spain v. Gallegos

Docket Nº:93-3467
Citation:26 F.3d 439
Party Name:29 Fed.R.Serv.3d 706, Ellen V. SPAIN, Appellant, v. Tony E. GALLEGOS, Chairman, Equal Employment Opportunity Commission; United States of America.
Case Date:June 16, 1994
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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26 F.3d 439 (3rd Cir. 1994)

29 Fed.R.Serv.3d 706,

Ellen V. SPAIN, Appellant,


Tony E. GALLEGOS, Chairman, Equal Employment Opportunity

Commission; United States of America.

No. 93-3467

United States Court of Appeals, Third Circuit

June 16, 1994

Argued May 2, 1994.

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Stanford A. Segal (argued), Gatz, Cohen, Segal & Koerner, Pittsburgh, PA, for appellant.

James R. Neely, Jr., Deputy General Counsel, Gwendolyn Young Reams, Associate General Counsel, Lorraine C. Davis, Assistant General Counsel, John F. Suhre (argued), Atty. E.E.O.C., Washington, DC, for appellee.

BEFORE: GREENBERG and GARTH, Circuit Judges, and ROBRENO, District Judge. [*]


GREENBERG, Circuit Judge.

A female employee of the Equal Employment Opportunity Commission brings this appeal from orders of the district court dismissing her action against the EEOC alleging sexual and racial discrimination, sexual harassment and unlawful retaliation, all in violation of Title VII of the Civil Rights Act of 1964. Immediately before the trial, the district court excluded certain evidence from

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the appellant's sexual discrimination and harassment claims and barred her from proceeding with those claims on the evidence she had intended to offer. Four days later, after an intervening weekend, the appellant elected not to proceed with the balance of her case, as she reasoned that the district court's ruling precluded her from establishing her remaining claims. In accordance with warnings the district court had given the appellant, the court then dismissed her case with prejudice for failure to prosecute, and it assessed her with jury costs.

The appellant appeals from the district court's exclusion of the evidence she intended to offer to prove sexual discrimination and harassment, from the court's judgment against her on those claims on the basis of her proposed evidence, from the court's dismissal of the balance of her case predicated on her decision not to go forward, and from the court's imposition of jury costs against her. We conclude that in the unusual circumstances presented in her allegations, the appellant has alleged a prima facie case of sexual discrimination and harassment and that material issues of fact remain on these claims for consideration by a jury. We also conclude that the court abused its discretion in excluding her evidence. Consequently, we hold that the district court erred in barring her from proceeding with her sexual discrimination and harassment claims.

We also hold that the court did not abuse its discretion in dismissing the balance of her case after she decided not to go forward with her remaining claims, as it warned her that it would dismiss these claims if she did not proceed. However, in light of the significant impact of the court's initial rulings on the appellant's case and the short interval between these rulings and the start of trial on the remaining issues, we hold that the court abused its discretion in assessing the jury costs against her. Thus, we will reverse the order of the district court dismissing the appellant's sexual discrimination and harassment claims and assessing the jury costs against her, but we will affirm the order of the district court dismissing the balance of the case.


The appellant, Ellen V. Spain, is an investigator in the Pittsburgh Area Office of the EEOC. 1 Although she was hired in 1974 by that office, the EEOC promoted her to the position of director of the Dayton Area Office in 1979, and she held that position until approximately 1980 or 1981. She then worked briefly for the Department of Housing and Urban Development before returning to the EEOC's Pittsburgh office as an investigator. App. at 75. Spain currently holds a position with a GS 1810-12, Step 10 Grade. 2

In addition to suing the EEOC, Spain originally named Eugene Nelson and Johnny Butler as defendants, but they have been dismissed from the action. Nelson and Butler are the director of the EEOC's Pittsburgh Area Office and the director of the EEOC's Philadelphia District Office, respectively. Therefore, Butler is Nelson's superior, and Nelson is Spain's superior. Spain does not challenge the dismissal of the action as to Nelson and Butler.

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Spain, a white female, alleges that Nelson and Butler, male African-Americans, have a history of passing over her for promotions to GM-13 and GM-14 level positions in favor of allegedly lesser qualified male African-American applicants. Id. at 2-3. It is undisputed that in 1985, while Spain held a GS-11 position, she unsuccessfully applied for an open GS-12 position, a rejection that led her to file an internal EEOC complaint alleging sexual and racial discrimination. Id. at 75-76. Spain asserts that the events which underlie the present action began shortly after she filed that complaint.

Spain alleges that Nelson, her superior, induced her not to proceed with the EEOC complaint by promising that she would receive the next available promotion, so long as she agreed to lend him money periodically. 3 Spain asserts that because Nelson intimidated her she agreed to his requests, and she did obtain the next promotion in early 1986. Id. Spain charges that Nelson began demanding loans at that time and that he repeated these demands every four to eight weeks over the next few years. Id. at 76, 241; appellant's br. at 5. Significantly, EEOC regulations preclude a superior EEOC official from soliciting and accepting loans from a subordinate employee. See 29 C.F.R. Sec. 1600.735-203.

The crux of Spain's sexual discrimination and harassment claims is that over the years rumors developed in the Pittsburgh office that Spain and Nelson were having an affair, because his frequent demands for loans led other employees often to see them together privately in his office, the cafeteria, or leaving the office. 4 Spain charges that because it was improper for Nelson to solicit the loans, he needed to meet her privately to ask for loans, to receive the funds, and to pay them back. Id. at 77. Spain claims that she learned of the rumors during casual conversations in the office. She alleges that she complained about the rumors to Nelson approximately four times per year between 1986 and 1988 and once in 1989 and requested him to put them to an end. Id. at 230. However, she alleges that the private meetings and loan requests continued, thereby perpetuating the rumors. According to Spain, the rumors and Nelson's continuation of his conduct in the face of the rumors embarrassed Spain, app. at 231, and caused her co-workers to ostracize her, thereby straining her relationship with them and with her supervisors and making her feel miserable and unable to "deal with the situation." Id. at 77. Spain claims that in late 1989 or early 1990 she told Nelson that she would no longer lend him any money. Id. at 78. Spain alleges that this refusal led Nelson to escalate his harassment, ultimately resulting in her being denied a promotion as a result of the rumors.

In 1990, Spain unsuccessfully sought a promotion to GM-13 Supervisory Investigator. Spain contends that in part Nelson based his decision not to promote her on evaluations by her supervisors in the office. Appellant's br. at 7. As evidence of the impact of the false rumors upon her work environment, Spain points to an affidavit of one of these evaluating supervisors, Bruce Bagin, stating that he graded Spain low on the "integrity" category of the evaluation due to his perception of her conduct with Nelson based on the rumors and his observations. Bagin also stated that Spain had complained to him about the false rumors but that he refused to discuss them because his perception of her conduct seriously had affected his view of her. App. at 80. The EEOC contests Spain's assertion regarding the basis for its decision not to promote her and responds that Nelson considered much evidence assessing her qualifications, including the negative opinion of her supervisor in the Dayton Area Office. Appellee's br. at 4-5.

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However, Spain offers as evidence a memorandum from Nelson to his superior, Butler, which discusses the qualifications of the candidate selected for the promotion, as well as the reasons why other candidates were not selected. App. at 374-76. In the memorandum, Nelson states that although Spain had "outstanding skills in administrative matters" and was "proficient in the technical aspects" of the position, she ranked dead last among the candidates due to her consistent "inability to relate effectively with the supervisor, co-workers and others." App. at 376. The memorandum further explains that while all of the candidates had "sufficient technical skills to perform the supervisory job only Ms. Spain is rated so low in interpersonal relations to cause her to be ranked so low." Id. (emphasis added). In contrast to Spain's evidence, the EEOC does not precisely indicate what role the written evaluations of Spain's Pittsburgh supervisors played in Nelson's decision not to promote her.

In June 1990, Spain filed a second complaint with the EEOC, and it is this complaint which directly led to this action and thus to this appeal. Spain asserts that the retaliatory conduct began in earnest after she filed this complaint. App. at 253. Moreover, she alleges that Nelson began coming to her house when she was working at home, and he continued to pressure her to make loans to him and to drop the new complaint. Id. at 274-80. On May 6, 1992, the EEOC issued a proposed disposition finding that there had not been discrimination against Spain. Id. at 12-14.

On June 8, 1992, Spain filed her complaint in the district court against the EEOC, Nelson, and Butler. Count I of the complaint alleges sexual...

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