McKenna v. Pacific Rail Service
| Decision Date | 27 September 1994 |
| Docket Number | Nos. 93-5277 and 93-5386,Nos. 93-5253 and 93-5385,93-5385 and 93-5386,Nos. 93-5253,93-5277,s. 93-5253 and 93-5385,s. 93-5277 and 93-5386,s. 93-5253 |
| Citation | 32 F.3d 820 |
| Parties | 65 Fair Empl.Prac.Cas. (BNA) 959, 29 Fed.R.Serv.3d 821 Peter McKENNA; Greg Spina; Jack Ricciardi; John Oliver; Andrew Hennessey; Al Armetta; Pincus Cohen; Dave Quaid; Adam Lukasweski; William Harper; Dorrance A. Lindh; John Gugliotta; George Whitehead; John Shea; Anthony Nazare; Robert Tighe; Dennis McCarthy; Richard Montacalvo; Jeanette McCafferty; George Martin; Ralph Fernandez; Paul Noethe; Patricia Burwitz; Michael Demone; Eddie Dechert; Salvatore Petruzzelli; Phyllis Lindh; Joseph K. Pfeil, v. PACIFIC RAIL SERVICE, Pacific Rail Service, AppellantPeter McKENNA; Greg Spina; Jack Ricciardi; John Oliver; Andrew Hennessey; Al Armetta; Pincus Cohen; Dave Quaid; Adam Lukasweski; William Harper; Dorrance A. Lindh; John Gugliotta; George Whitehead; John Shea; Anthony Nazare; Robert Tighe; Dennis McCarthy; Richard Montacalvo; Jeanette McCafferty; George Martin; Ralph Fernandez; Paul Noethe; Patricia Burwitz; Michael Demone; Eddie Dechert; Salvatore Petruzzelli; Phyllis Lindh; Joseph K. Pfeil, v. PACIFIC RAIL SERVICE, Peter McKenna; Greg Spina; Jack Ricciardi; John Oliver; Andrew Hennessey; Al Armetta; Pincus Cohen; Dave Quaid; Adam Lukasweski; William Harper; Dorrance A. Lindh; John Gugliotta; George Whitehead; John Shea; Anthony Nazare; Robert Tighe; Dennis McCarthy; Richard Montacalvo; Jeanette McCafferty; George Martin; Ralph Fernandez; Paul Noethe; Patricia Burwitz; Michael Demone; Eddie Dechert; Salvatore Petruzzelli; Phyllis Lindh; Joseph K. Pfeil, Appellants |
| Court | U.S. Court of Appeals — Third Circuit |
John W. Kyle, Roger D. Meade, Littler, Mendelson, Fastiff, Tichy, & Mathiason, Baltimore, MD, Gary P. Scholick (argued), Littler, Mendelson, Fastiff, Tichy, & Mathiason, San Francisco, CA for appellant/cross-appellee, Pacific Rail Service.
Louie D. Nikolaidis, Thomas M. Kennedy (argued), Lewis, Greenwald, Kennedy, Lewis, Clifton & Schwartz, East Rutherford, NJ, for appellees/cross-appellants, McKenna, Spina, Ricciardi, Oliver, Hennessey, Armetta, Cohen Quaid, Lukasweski, Harper, Lindh, Gugliotta, Whitehead, Shea, Nazare, Tighe, McCarthy, Montacalvo, McCafferty, Martin, Fernandez, Noethe, Burwitz, Demone, Dechert, Petruzzelli, Lindh, and Pfeil.
Before MANSMANN and LEWIS, Circuit Judges, and McKELVIE, District Judge. *
Appellees/cross-appellants are 23 of 28 former yard and clerical employees of Pennsylvania Truck Lines, Inc. ("PTL") who asserted that appellant/cross-appellee Pacific Rail Services ("Pacific Rail") engaged in age discrimination in violation of the New Jersey Law Against Discrimination (the "LAD") by failing to hire them in 1990. Since the trial in this case, the United States Supreme Court has issued a decision clarifying the standards by which federal employment discrimination cases are to be judged. St. Mary's Honor Ctr. v. Hicks, --- U.S. ----, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Because we believe the New Jersey Supreme Court would adopt Hicks 's clarification of the test to be applied in federal discrimination cases in interpreting the LAD, we will vacate the judgment that was entered and remand for a new trial. To assist the district court on remand, we will also decide several subsidiary issues relating to individual claims and plaintiffs.
Because our resolution of the legal issues will require a new trial, it is not necessary to discuss the facts in great detail. The following, however, provides some background to the dispute.
Beginning in 1960, PTL performed lift operations--loading and unloading freight from flat bed railroad cars--for Consolidated Rail Corporation ("Conrail") at its North Bergen, New Jersey, terminal. In July, 1990, however, after solicitation of bids by Conrail, Pacific Rail won the North Bergen contract, effective September 1, 1990.
Upon learning that PTL had lost the North Bergen contract, PTL employees at the North Bergen terminal became interested in working for Pacific Rail at that site. Pacific Rail representatives testified at trial, however, that even before submitting its bid, Pacific Rail had decided not to simply hire all of the PTL/North Bergen yard and clerical workers "wholesale," because Pacific Rail was concerned about the attitudes and work habits of some of the workers. 1
Instead, upon winning the North Bergen contract, Pacific Rail apparently undertook a three-step hiring process. First, Pacific Rail offered positions to its own employees at Conrail's Elizabeth, New Jersey ("E-Rail") terminal on a "promote from within" theory. (Pay rates at North Bergen were higher than at E-Rail, so a move to North Bergen was effectively a promotion, according to the Pacific Rail representatives.) Testimony indicated that one of the six yard and clerical employees transferred from E-Rail on this basis was over 40 years old.
Pacific Rail next offered employment to three Conrail clerks and two PTL employees from the nearby Conrail/PTL terminal at Kearny, New Jersey. The three Conrail offerees (only two of whom accepted their offers) were over 40. The two PTL offerees (both of whom accepted) were under 40.
Finally, Pacific Rail hired all 11 applicants referred by the union local that represented yard and clerical employees at E-Rail. Of these, one was over 40.
As of September 1, only a limited number of positions in North Bergen remained open. Pacific Rail apparently offered employment to two former PTL/North Bergen yard employees who were over 40, but both refused the offer. Then a former PTL supervisor working for Pacific Rail recommended for hire four former PTL/North Bergen yard employees, two of whom were in their 20s and two of whom were over 40. Pacific Rail offered employment to the younger two, and they accepted. To fill a remaining clerk position, Pacific Rail made offers to two former PTL/North Bergen clerical employees, both over 40, but both declined. Ultimately, instead of simply filling the clerk position, Pacific Rail transferred a person who was over 40 from E-Rail to assist with clerical work and act as office manager.
To summarize, prior to September 1, Pacific Rail had apparently hired 21 employees, none of whom came from the pool of PTL employees at North Bergen. Only four of these 21 individuals were over 40 years old. After September 1, Pacific Rail hired either three or four more employees, at least two of whom were under 40 and from PTL/North Bergen and at least one of whom was over 40 and formerly with E-Rail. 2 Thus, of the 25 yard and clerical employees that the evidence showed Pacific Rail hired to work at North Bergen, either 19 or 20 were under 40 years old.
The 28 former PTL/North Bergen yard and clerical employees who filed this lawsuit were over 40. They alleged that Pacific Rail's failure to hire them was due to age discrimination in violation of the LAD. A jury found in favor of 18 of the 28 employees and awarded them a total of more than $7 million ($1,448,000 in back pay and $5,743,500 in front pay). Both Pacific Rail and the 18 verdict winners, plus five plaintiffs whose claims were dismissed by the district court, appeal and cross-appeal several issues.
The primary issue presented involves the delicate task of predicting how the New Jersey Supreme Court would interpret and apply the LAD in the aftermath of the United States Supreme Court's decision in St. Mary's Honor Ctr. v. Hicks, --- U.S. ----, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). As a federal court sitting in diversity, the district court was, and we are, obliged to apply state substantive law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Colantuno v. Aetna Ins. Co., 980 F.2d 908, 909 (3d Cir.1992). In so doing, we are not free to impose our own view of what state law should be; we are to apply state law as interpreted by the state's highest court. Id. In the absence of guidance from that court we are to refer to decisions of the state's intermediate appellate courts for assistance in determining how the highest court would rule. Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 113 (3d Cir.1992); Fisher v. USAA Casualty Ins. Co., 973 F.2d 1103, 1105 (3d Cir.1992). In cases such as this, where neither the state supreme court nor any intermediate appellate courts have spoken to the issue at hand, our task of predicting state law becomes even more complicated. Nevertheless, we must proceed into these uncharted waters, using pronouncements from the New Jersey Supreme Court on analogous issues as our compass.
In Hicks, the Supreme Court considered "whether, in a suit against an employer alleging intentional racial discrimination in violation of [Title VII], the trier of fact's rejection of the employer's asserted reasons for its actions mandates a finding for the plaintiff." Hicks, --- U.S. at ----, 113 S.Ct. at 2746. Under the familiar McDonnell Douglas shifting-burden analysis applicable to federal employment discrimination cases involving indirect proof of discrimination, the plaintiff bears the burden of proving a relatively simple prima facie case, which the employer must rebut by articulating a legitimate, non-discriminatory reason for its actions. See generally Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.1987). 3 Prior to Hicks, we had held that a finding that a defendant employer had articulated false reasons mandated entry of judgment for plaintiff. See Chipollini, 814 F.2d at 898; Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395-96 (3d Cir.1984). Hicks changed that: the Court ruled definitively that a finding that an employer had articulated a pretextual reason for its actions does not mandate judgment for a plaintiff. Instead, "a reason cannot be proved to be 'a pretext for discrimination'...
To continue reading
Request your trial
-
Hurley v. Atlantic City Police Dept.
...jury imposed liability based on incidents of defamation that should not have been submitted to the jury); cf. McKenna v. Pacific Rail Serv., 32 F.3d 820, 831-32 (3d Cir.1994) (reversing judgment when an erroneous portion of the jury instructions "more than likely" guided the jury's delibera......
-
Abrams v. Lightolier Inc.
...the NJLAD generally follow the standards of proof applicable under the federal discrimination statutes, see McKenna v. Pacific Rail Service, 32 F.3d 820, 827 (3d Cir.1994) (predicting that the New Jersey Supreme Court would adopt the clarification for proving a federal pretext discriminatio......
-
DeJoy v. Comcast Cable Communications Inc.
...of age. 29 U.S.C. § 631. The NJLAD is similarly designed to address and eliminate employment discrimination. See McKenna v. Pacific Rail Service, 32 F.3d 820, 827 (3d Cir.1994). 1. Defendants' As indicated, Defendants argue DeJoy's claims of age discrimination should be dismissed because (1......
-
Delli Santi v. CNA Ins. Companies
...was not a determinative cause. Under the federal scheme, which I take it would apply if Jamison does not, see McKenna v. Pacific Rail Service, 32 F.3d 820 (3rd Cir.1994), once the employer satisfies its burden of production under the second step of McDonnell Douglas, and assuming the case d......
-
Race and national origin discrimination
...Verdin’s hostile work environment claim, the same standard used under Title VII applies under §1981. See McKenna v. Pac. Rail Serv ., 32 F.3d 820, 826 n. 3 (3d Cir.1994).”); Ocasio v. Lehigh Valley Family Health Center, 92 Fed.Appx. 876, 879-80 (3d Cir. 2004) (“As amended by the 1991 Civil ......