Rush v. Scott Spec Gases Inc

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit

5-14-1997

Rush v. Scott Spec Gases Inc
Precedential or Non-Precedential:

Docket 96-1606

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

Recommended Citation
"Rush v. Scott Spec Gases Inc" (1997). 1997 Decisions. Paper 107.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/107

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed May 14, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-1606

CHRISTINE RUSH

v.

SCOTT SPECIALTY GASES, INC.,

Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 95-00748)

Argued April 14, 1997

BEFORE: GREENBERG, ALITO, and SEITZ, Circuit Judges

(Filed: May 14, 1997)

Leslie A. Hayes (argued)
Randy Karafin Hubert
Connolly, Epstein, Chicco
Foxman, Engelmyer, and Ewing
1515 Market Street, 9th Floor
Philadelphia, PA 19102

Attorneys for Appellee
Alfred W. Putnam, Jr. (argued)
J. Freedley Hunsicker, Jr.
Patricia Proctor
Drinker, Biddle, and Reath
Philadelphia National Bank
Building
1345 Chestnut Street
Philadelphia, PA 19107-3496

Attorneys for Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Appellant, Scott Specialty Gases, Inc. ("Scott"), appeals
from a judgment entered in favor of its former employee,
Christine Rush. In her complaint Rush asserted that Scott
discriminated against her in promotion and training on the
basis of her sex and subjected her to a hostile environment
through sexual harassment. She also claimed that Scott
improperly constructively discharged her and retaliated
against her for filing a complaint against it with the Equal
Employment Opportunity Commission. Finally, she
asserted federal and state Equal Pay Act claims and state
common law tort and contract claims. The jury awarded
Rush several million dollars in compensatory and punitive
damages on her discrimination in promotion and training,
sexual harassment, and constructive discharge claims, but
on Scott's motion, the district court found that the damages
were excessive and significantly reduced them in a
remittitur. Rush accepted the remittitur rather than going
through a new trial, so the court entered judgment for the
reduced amounts. Scott has filed a timely appeal. We have
jurisdiction under 28 U.S.C. § 1291, and the district court
had jurisdiction under 28 U.S.C. § § 1331 and 1367(a).

Scott contends that Rush's employment discrimination
claim based on failure to promote and train is time barred

2
and cannot be saved by application of the continuing
violation theory. We agree; allowing Rush to sue on the
failure to promote and train claim, and to introduce
evidence supporting that claim, prejudiced Scott's case on
Rush's other claims because we cannot say that the failure
to promote and train evidence did not contribute to the
jury's findings of liability on the sexual harassment hostile
environment and constructive discharge claims.
Furthermore, we cannot say that the evidence with respect
to the failure to promote and train claim did not affect the
computation of the damages awarded. Therefore, we will
reverse the judgment entered in favor of Rush and remand
the case to the district court to enter judgment in Scott's
favor on Rush's failure to promote and train claim and to
grant a new trial on her sexual harassment and
constructive discharge claims. For reasons which we
explain below the retaliation, Equal Pay Act, and common
law claims are no longer in the case and thus will not be
retried.

II. FACTS AND PROCEDURAL HISTORY

Scott employed Rush as a Laboratory Technician I from
September 11, 1989, until her resignation on June 10,
1993. Periodically, Rush changed from a full-time to a part-
time status to pursue her education. In September 1990,
Rush went part time so that she could take course work in
chemistry. During the fall of 1990, Scott conducted a flask-
making course which trained some Lab Tech Is in skills
needed for promotion to Lab Tech II analyst positions. Scott
intended to use the training course as a promotion device
and planned to promote the highest performing Lab Tech Is
to Lab Tech IIs. Rush claims she was not informed about
the class, although several male employees were, and that
Scott thereby deprived her of an important opportunity for
training and advancement within the laboratory. Rush also
claims that she and Scott were unable to agree upon an
arrangement through which she could watch the course on
videotape so that she could become eligible for promotion.
Ultimately, in early 1991 Scott promoted three men with
less seniority than Rush to Lab Tech II analyst positions
based on their performance in the flask-making class.

3
In June 1991, Rush filed a charge with the Equal
Employment Opportunity Commission, claiming that Scott
discriminated against her in training and promotion
because of her sex. She based this charge on her exclusion
from the flask-making course and the attendant
opportunity for promotion as well as other alleged
discrimination in training, promotion, and work
assignments. In the fall of 1991, Rush and Scott entered
into a written settlement agreement in which Rush agreed
not to file suit against Scott based on her EEOC charge.
App. at 2173. Rush also executed a release in which she
agreed to:

release and forever discharge Scott. . . of and from all
claims and causes of action alleged in, or which could
have been alleged in a Charge filed with the Equal
Opportunity Commission and numbered Charge No.
170911136 and any other charge or complaint she has
filed or could have filed with any other agency or court
alleging discrimination in connection with her
employment by Scott, including without limitation, her
claim that she discriminatorily was denied promotion.

App. at 2172. In return, Scott agreed to meet with Rush to
discuss its policy regarding training and promotion; to
provide Rush the same training and experience other
employees seeking promotion to Lab Tech II analyst
positions received; and to consider Rush for the next
available Lab Tech II analyst position. App. at 2173.

Following the execution of the settlement agreement,
Rush met with lab manager Mark Sirinides, who explained
the requirements for promotion to a Lab Tech II analyst
position. In March 1992, Scott allowed Rush and some of
her co-workers to take the flask-making course via
videotape. She received the highest grade in the class. On
June 15, 1992, Scott certified to the EEOC that Rush had
completed the required training course and, in accordance
with the settlement agreement, would be considered "when
a vacancy in Lab Tech II Analyst position commensurate
with her skills occurs." App. at 2193.

In June 1992, Scott promoted a male Lab Tech I, Garren
Knoll, to a Lab Tech II position. Rush contends, and Scott

4
agrees, that it did not consider Rush for this promotion,
explaining that in its view Rush was not qualified for this
position. According to Scott, it promoted Knoll to a
computer technician or automation position, not a
laboratory analyst position. Also, in the summer of 1992,
Scott hired a male college student, Mark Carpenter, on a
part-time basis to do Lab Tech II work. Scott claimed that
because this was a temporary, part-time position, Rush
was not eligible for it. During her tenure at Scott, Scott
never promoted Rush who remained a Lab Tech I.

Rush claims that after she filed her 1991 EEOC charge,
her male co-workers and some supervisory and managerial
employees sexually harassed her. She asserts that she
unavailingly complained about this harassment at various
levels of Scott's management. Sirinides wrote a memo to
plant manager John Post outlining Rush's complaints and
asking for guidance and training on how to deal with such
complaints. Neither Post nor regional vice-president William
Gittler, both of whom saw Sirinides' memo, responded to
the complaints.

In March 1993, Rush again arranged to work part time;
her application noted that she based her request on her
desire to pursue her education and that she was
dissatisfied with her working environment. On May 27,
1993, Rush and some co-workers arrived late to work, but
she claims that Ted Neeme, a group leader in the laboratory
who apparently had supervisory duties, singled her out for
an oral reprimand. App. at 468-69. A shouting match
ensued between Rush and Neeme, and then Rush threw
her time card on Neeme's desk and left the premises. App.
at 471-72. She did not return to Scott until June 1, 1993.

On June 10, 1993, Rush resigned. At some point during
that day, either just before her resignation, or just after, a
meeting was held at Scott's premises from which Rush was
excluded. At this meeting, Post, the plant manager, asked
Rush's co-employees how Scott should discipline her for
her earlier outburst to Neeme and permitted them to
criticize Rush. App. at 426, 486. On her resignation form,
Rush noted that she felt forced to leave Scott. App. at 2167.

On November 1, 1993, Rush filed a discrimination claim
with the Pennsylvania Human Relations Commission; the

5
charge was cross-filed with the EEOC. After Rush received
a right to sue letter, she filed suit in the district court
against Scott on February 8, 1995. Her complaint alleged
discrimination on the basis of sex in violation of Title VII,
the Federal and Pennsylvania Equal Pay Acts, and the
Pennsylvania Human Relations Act ("PHRA"). In addition,
Rush asserted a claim against Scott for allegedly retaliating
against her for filing the first EEOC charge and claims
under Pennsylvania common law. She also claimed that
Scott had constructively discharged her.

Prior to the trial, both parties moved for summary
judgment. As germane to this opinion, Scott claimed that
all of Rush's claims that accrued prior to January 5, 1993,
i.e., 300 days before she filed her second EEOC claim, were
time barred. Of course, Scott promoted Knoll and hired
Carpenter long before January 5, 1993, and thus it argued
that Rush could not base a claim on those employment
actions. Nevertheless, the district court denied Scott's
motion for summary judgment to the extent it was
predicated on the time bar, reasoning that the case involved
a violation throughout her employment at Scott. Rush v.
Scott Specialty Gases, Inc., 914 F. Supp. 104, 106-07 (E.D.
Pa. 1996). The court, however, granted Scott summary
judgment on the Pennsylvania Equal Pay Act claim and
granted it partial summary judgment on Rush's common
law claim.

At the ensuing two-week trial, the jury found in favor of
Rush on her Title VII and PHRA failure to promote and
train, sexual harassment, and constructive discharge
claims, and awarded her $203,000 in lost wages,
$1,000,000 in pain and suffering, and $3,000,000 in
punitive damages. However, the jury found for Scott on
Rush's retaliation claim. The court dismissed the Federal
Equal Pay Act claim on Scott's motion under Fed. R. Civ. P.
50; thus that claim is no longer in the case. Rush elected
not to proceed with her remaining common law claim at
trial, and we thus are not concerned with that claim.

Following the return of the verdict, Scott moved for
judgment as a matter of law or a new trial, or, in the
alternative, for a remittitur. The district court denied the
motion for judgment as a matter of law on the grounds that

6
the evidence supported the verdict. Rush v. Scott Specialty
Gases, Inc., 930 F. Supp. 194, 197 (E.D. Pa. 1996). The
district court also found that although a new trial was not
warranted on the basis of the weight of the evidence or
because of any evidentiary errors or improper jury
instructions, the awards for pain and suffering and punitive
damages were excessive. Id. at 199, 202. Accordingly, the
court denied the motion for a new trial but it conditioned
the denial on Rush's acceptance of a remittitur in the
amount of $900,000 on the pain and suffering award and
a remittitur of the punitive damages award in the amount
of $2,700,000. The remittitur left Rush with an award of
$203,000 in compensatory damages, $100,000 for pain and
suffering, and $300,000 for punitive damages. Rush agreed
to this remittitur, and on July 15, 1996, the court entered
judgment for Rush in the amount of $603,000. The court
subsequently granted Rush prejudgment interest and
awarded her counsel fees of $210,062.50 and costs of
$11,562.05. Scott has filed a timely appeal.

III. DISCUSSION

Scott argues that Rush did not administrativelyfile her
failure to promote and train and her sexual harassment
claims in a timely manner so this action largely is barred.
Scott also advances challenges to the jury instructions,
evidentiary rulings, and sufficiency of the evidence and
asserts that the PHRA does not provide for punitive
damages. We conclude that the hostile environment sexual
harassment claim was timely, the failure to promote and
train claim was time barred, and the introduction of
evidence with respect to Scott's failure to promote and train
Rush based on her sex infected the entire trial. Accordingly,
we will reverse the judgment in favor of Rush and remand
for a new trial on Rush's hostile environment sexual
harassment and constructive discharge claims and for
entry of judgment in favor of Scott on the failure to promote
and train claim. This disposition makes it unnecessary to
consider Scott's other assertions of error.

A. The Continuing Violation Theory

The parties are in agreement that under Title VII the
ordinary time for filing a charge of employment

7
discrimination with the EEOC is 300 days after the alleged
discrimination when the charge is filed first, as here, with
the appropriate Pennsylvania state agency. 42 U.S.C.
§ 2000e-5(e)(1).

Though the requirement sounds exacting -- 300 days
after the alleged unlawful employment practice
occurred -- courts have grappled with cases presenting
questions of precisely when a `practice' occurred. That
date may be more inflexible when there is a discrete
trigger event and the discrimination is overt. However,
there are cases in which the plaintiff does not know he
has been harmed; similarly there are cases of an
ongoing, continuous violation. To accommodate these
more indeterminate situations, the Supreme Court has
recognized that the filing of a timely charge is`a
requirement that, like a statute of limitation, is subject
to waiver, estoppel, and equitable tolling.'

West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir.
1995) (citations omitted). Rush filed the requisite EEOC
claim on November 1, 1993. Consequently, the 300-day
retrospective limitations period which ordinarily would bar
claims for earlier events began to run on January 5, 1993.

The continuing violation theory allows a "plaintiff [to]
pursue a Title VII claim for discriminatory conduct that
began prior to the filing period if he can demonstrate that
the act is part of an ongoing practice or pattern of
discrimination of the defendant." Id. at 754 (citations
omitted). In considering this issue, we note that the parties
in their briefs do not clearly delineate between the record
on the motion for summary judgment and the record at
trial. While in some cases this lack of precision could
present a problem on appeal, here it does not because, on
any view of the facts, Scott was entitled to a judgment on
the failure to promote and train claim. Similarly, on any
view of the facts, Rush's hostile environment sexual
harassment claim was not time barred, even with respect to
conduct occurring prior to January 5, 1993.

We also note that in some circumstances the procedure
followed in deciding whether there is a continuing violation
might impact on the scope of review. There is authority that

8
a trial court's ruling on whether there is a continuing
violation is reviewed on the clearly erroneous standard.
Calloway v. Partners Nat'l Health Plans, 986 F.2d 446, 448
(11th Cir. 1993); Abrams v. Baylor College of Med., 805
F.2d 528, 532 (5th Cir. 1986). Yet the district court ruled
on the continuing violation argument by denying Scott's
motion for summary judgment; this procedural posture
suggests that plenary review might be appropriate.
Furthermore, in West, in which we considered the
employee's argument that there had been a continuing
violation in the context of reviewing determinations on the
admission of evidence, we suggested that we were
exercising at least a degree of plenary review. West, 45 F.3d
at 748 ("We conclude, in this hostile work environment
context, that the scope of the admissibility of evidence of
events, which preceded the 300-day period, must be
grounded in the substantive law at issue."); id. at 752 ("We
review the evidentiary determinations of the trial court
under an abuse of discretion standard. . . . However, as to
the application or interpretation of a legal standard
underlying the admissibility decision, our review is
plenary.") (citations omitted).

In this case, however, we need not linger on the scope of
review issue because even on a deferential clearly
erroneous standard of review, we would reverse with
respect to the failure to promote and train claim; and even
on a plenary review, we would hold that the continuing
violation theory was applicable to the sexually hostile
environment claim. Cf. Konstantopoulous v. Westvaco Corp.,
No. 94-7462, slip op. at 15 n.1 (3d Cir. May 6, 1997)
("Here, we find it unnecessary to decide which standard of
review to apply because under either standard we see no
ground for reversing the district court's decision."). Thus,
we apply the standard of review most favorable to the party
against whom we are making particular determinations.

To demonstrate a continuing violation, the plaintifffirst
must show that at least one discriminatory act occurred
within the 300-day period. West, 45 F.3d at 754. Second,
the plaintiff must show that "the harassment is`more than
the occurrence of isolated or sporadic acts of intentional
discrimination,' " and instead must demonstrate a

9
continuing pattern of discrimination. Id. at 755 (citation
omitted). A plaintiff satisfying these requirements may
present evidence and recover damages for the entire
continuing violation, and the 300-day filing period will not
act as a bar. Id.

We have followed Berry v. Board of Supervisors of
Louisiana State Univ., 715 F.2d 971 (5th Cir. 1983), the
leading case on the continuing violation theory. The Berry
court enumerated several factors relevant to the
determination of whether a plaintiff has demonstrated a
continuing violation:

The first is subject matter. Do the alleged acts involve
the same type of discrimination, tending to connect
them in a continuing violation? The second is
frequency. Are the alleged acts recurring. . . or more in
the nature of an isolated work assignment or
employment decision? The third factor, perhaps of
most importance, is degree of permanence. Does the
act have the degree of permanence which should
trigger an employee's awareness of and duty to assert
his or her rights, or which should indicate to the
employee that the continued existence of the adverse
consequences of the act is to be expected without being
dependent on a continuing intent to discriminate?

Id. at 981 (footnote omitted); see also West, 45 F.3d at 755
n.9.

1. The Hostile Environment Sexual Harassment Claim

Scott argues that Rush should have filed her sexual
harassment claim earlier than November 1, 1993, and that
she therefore should not have been permitted to sue on or
present evidence of sexual harassment occurring prior to
the start of the 300-day limitations period. Rush responds
that she was not aware in 1991 when she filed her initial
EEOC complaint that she had been subjected to sexual
harassment, and she also contends that the harassment
she experienced constituted a continuing violation so that
all of the harassment, even that occurring before January
5, 1993, was actionable.

As we explained in West, there is "a natural affinity"
between the theory underlying hostile environment claims

10
and the continuing violation theory. West, 45 F.3d at 755.
A sexually hostile work environment often "results from
acts of sexual. . . harassment which are pervasive and
continue over time, whereas isolated or single incidents of
harassment are insufficient to constitute a hostile
environment." Id. (citations and internal quotation marks
omitted); see also Galloway v. General Motors Serv. Parts
Operations, 78 F.3d 1164, 1166 (7th Cir. 1996). The Court
of Appeals for the Seventh Circuit in Galloway expressed its
desire to encourage plaintiffs to commence litigation when
they become aware of conduct that would support a viable
claim without forcing them to do so prematurely. Id. at
1166. Thus, the court concluded that a plaintiff "may not
base her. . . suit on conduct that occurred outside the
statute of limitations unless it would have been
unreasonable to expect the plaintiff to sue before the
statute ran on that conduct, as in a case in which the
conduct could constitute, or be recognized, as actionable
harassment only in the light of events that occurred later,
within the period of the statute of limitations." Id. at 1167
(citations omitted).

Rush testified that when she filed her original EEOC
complaint in 1991 she did not include claims for sexual
harassment because

it was not really as frequently [sic], it later intensified
but at that time it was a lot less frequent. I'm not sure
I recognized it at that time. And, whereas the
discrimination was more obvious to me. I also felt that
at that time I was friendly with Rene, which he was the
biggest problem and maybe I was not clear enough,
maybe I didn't turn around and yell at him, I didn't I
figured it wouldn't be fair . . . to complain.

App. at 376-77. Rush testified that at the beginning of her
employment, Rene Bedoya, her co-worker and primary
harasser, treated her nicely, and, although perhaps overly
attentive, his behavior was not problematic. App. at 412-13.
On redirect examination, Rush read into the record part of
her diary where she noted that the harassment began after
she filed the EEOC charge. App. at 661.

Rush also testified that she was harassed by male co-
workers on a daily basis. App. at 402. This harassment

11
included disparaging remarks and criticism of her work.
App. at 403-04. Rush testified that Bedoya's behavior
changed and that he began to touch her inappropriately
and sexually at work, to make sexual comments to her, and
to be rude to her. App. at 416-19, 421. Rush also testified
that her co-worker Tom Richards made inappropriate
comments to her and about her. She stated that she partly
overheard, and another co-worker told her, that Richards
had said he "wanted to fuck [Rush] in his van, and then
shoot [Rush] in the head so that no one would ever know."
App. at 421-22.

The district court correctly concluded that Rush's sexual
harassment claim constituted a continuing violation. She
properly was permitted to sue on this continuing violation
and to present evidence of incidents occurring prior to the
limitations period. First, the 300-day period began to run
on January 5, 1993, and it is clear that there were episodes
of alleged harassment after that point, including the
meeting that occurred on her last day of employment, as
well as the continual comments by Bedoya and Rush's
other co-workers. Second, the evidence supports a finding
that Rush suffered continuous sexual harassment, at least
from the time she filed the original EEOC charge. The
harassment did not consist of unrelated, isolated incidents,
but constituted a continuous pattern of derogatory
remarks, rude behavior, and discriminatory conduct. Her
failure to claim harassment in the 1991 EEOC charge does
not destroy her claim, because the evidence shows that the
harassment intensified after the charge was filed, and,
moreover, she did not realize early on how pervasive or
severe the harassment was.

2. The Failure to Promote Claim

Scott argues that Rush's failure to promote and train
claim predicated on sexual discrimination was not timely
filed because she did not allege any instances of
discriminatory failure to promote and train after January 5,
1993.1 Rush argues that the sex discrimination in training
_________________________________________________________________

1. Scott also argues that the settlement agreement and Rush's release
prohibit her from litigating her failure to promote and train claim.
Because we find the failure to promote and train claim time barred, it is
not necessary to address either the effect of the release on the viability
of Rush's claim or Rush's ability to repudiate the release.

12
and promotion was a continuing violation during her three
and one-half years at Scott. The district court found that
Rush's failure to promote and train claim was not time
barred because the continuing violation theory applied to it.
This finding was in error.

Neither the promotion of Garren Knoll to a Lab Tech II
position nor the hiring of Mark Carpenter to perform
temporarily Lab Tech II work occurred within the 300-day
limitations period. In an effort to avoid a conclusion that
her failure to promote and train claim was time barred,
Rush argues that the gradual change in Knoll's duties from
primarily computer and automation work to primarily
laboratory analysis work demonstrates that although Scott
actually had a need to hire additional Lab Tech II analysts,
it refused to promote her.

Although Knoll's performance of analysis work greatly
increased beginning in January 1993, app. at 1590, 1596,
Scott's assignment of analysis work to Knoll did not
constitute a discriminatory failure to promote occurring
within the limitations period. Scott was not required to
promote an additional person to perform the analysis work
it ultimately assigned to Knoll. Knoll's promotion to the Lab
Tech II position was a discrete incident; Scott filled the
vacancy in June 1992. After that time, aside from the part-
time summer position Carpenter filled, no new Lab Tech II
positions became available. The change in Knoll's work
assignment did not require that Scott demote him or create
a new Lab Tech II position for Rush. Of course, her attempt
to predicate her claim on Carpenter's hiring is also
unavailing. Rush was required to make a timely challenge
to the actual failure to consider her for promotion, and she
did not do so. Therefore, she cannot claim that Scott's
alleged discrimination in promotion was a continuing
violation.

In a further effort to bolster her argument that her failure
to promote and train claim was filed timely, Rush contends
Scott's discrimination in training and discipline, as well as
the sexual harassment she suffered, continued throughout
her employment and can be used to establish a continuing
violation that would include Scott's failure to promote her.
We reject this argument.

13
Rush's failure to promote and train claim is distinct from
her sexual harassment claim and cannot be regarded as
having been timely by reason of her other allegations of
discriminatory treatment. Rush's failure to promote and
train claim addresses discrete instances of alleged
discrimination that are not susceptible to a continuing
violation analysis. We reiterate that Scott's promotion of
Knoll and hiring of Carpenter were independent events that
put Rush on notice to file a charge of discrimination. Rush
knew from the settlement agreement that she was to be
considered for the next available Lab Tech II position. If she
believed Scott was not considering her for available
positions as promised, she should have reacted at that
time. Waiting to see what would happen next was pointless;
the harm, if any, already was inflicted.

Additionally, neither the sexual harassment nor the other
alleged discriminatory acts were related sufficiently to
Rush's failure to promote and train claim to constitute a
single continuing violation. The sexual harassment and
failure to promote and train claims address different types
of conduct. Rush's failure to promote and train claim
focuses on the failure to promote Rush to, or prepare her
for, a Lab Tech II analyst position. By contrast, the sexual
harassment claim focuses on the use of foul language,
demeaning comments, and inappropriate touching by her
co-workers and some managers. These are distinct claims.

Similarly, although she has alleged disparity in discipline
falling within the limitations period, these claims are not
related factually to the failure to promote and train claims.
While she still may have a viable and timely claim for
discrimination in discipline, this claim is not sufficiently
related to the failure to promote and train claim to enable
us to regard the failure to promote and train claim as part
of a continuing violation.

Finally, although there is a factual nexus between Rush's
failure to promote and failure to train claims, which we
have been considering together, treating them as separate
claims does not affect our result.2 Rush has not alleged
_________________________________________________________________

2. The district court treated the failure to promote and failure to train
claims together by submitting them to the jury in a single special
interrogatory.

14
specific failure to train incidents within the limitations
period. Indeed, most of the allegations supporting Rush's
failure to train claim stem from Scott's failure to include
her in the original flask-making class as well as her
requests prior to that class for more advanced training. She
also complained of Scott's failure to train her properly for
the position for which she was hired. Thus, the failure to
train allegations do not bring her failure to promote claim
to a time within the limitations period. Moreover, a failure
to train claim arising within the 300-day limitations period
would be distinct from a claim predicated on Scott's earlier
failures to promote Rush.

We recently have had occasion to consider a situation
which demonstrates that a court must be circumspect in
relating discrete incidents to each other. In Konstantopoulos
v. Westvaco Corp., slip op. at 10, a plaintiff who was
employed by the defendant for two distinct time periods,
with a seven-month interruption between them, argued
"that the district court improperly evaluated the events that
occurred during her second period of employment in
isolation and that instead the court should have viewed
them as a continuation of the harassment that had taken
place seven months earlier." We rejected the argument, in
part because the seven-month gap allowed the effects of the
earlier incidents to dissipate. Konstantopoulos demonstrates
that a careful analysis must be made before acts are
considered part of a pattern. There, the passage of time and
the employee's interruption of employment destroyed the
pattern. Here, there was no pattern because the failure to
promote and train claim was distinct from the sexual
harassment claim and the other allegations of
discrimination.

The district court erred when it held that Rush's failure
to promote and train claim was a continuing violation that
was not time barred. The incidents relevant to the claim
occurred in the spring and summer of 1992; Rush did not
file her EEOC claim for almost 18 months thereafter. Her
claim was time barred and cannot be saved by any of the
alleged discrimination or harassment occurring within the
limitations period. Furthermore, we have no intention of
shredding the 300-day limitations period by automatically

15
allowing an employee who alleges actionable conduct
occurring within that period to make claims with respect to
any adverse employment actions that occurred during his
or her entire period of employment. Rather, a district court
must scrutinize the claims to establish that they are
related. See West, 45 F.3d at 755 (refusing to adopt per se
rule that every hostile environment claim constitutes a
continuing violation). To allow a stale claim to proceed
would be inconsistent with the administrative procedure
established by Title VII which contemplates prompt filing of
charges so that discrimination controversies may be
resolved promptly. See EEOC v. University of Pennsylvania,
850 F.2d 969, 978 (3d Cir. 1988) ("Upholding the
University's first-filed suit in this context would undermine
the congressional policy favoring prompt resolution of
discrimination claims."), aff'd on other grounds, 493 U.S.
182, 110 S.Ct. 577 (1990). Accordingly, we will reverse the
judgment in favor of Rush on the failure to promote and
train claim and remand for the district court to enter
judgment in favor of Scott on that claim.

3. Other Claims

The jury answered special interrogatories, rendering
separate liability verdicts on each of Rush's claims. App. at
219-20. Similarly, the court instructed the jury to calculate
damages separately for each category of damages claimed.
App. at 220-21. However, the court did not instruct the jury
to attribute specific portions of the damages awards to the
individual counts on which it found Scott liable. Our review
of the record compels the conclusion that the presence of
the failure to promote and train claim and the introduction
of evidence related to and supporting that claim infected
the jury's liability verdicts on the sexual harassment and
constructive discharge claims as well as the verdict for the
damages.

Indeed, Rush has claimed that the sexual harassment
and Scott's failure to promote and train her were related.
She testified that she believed the harassment was part of
her co-workers' and management's plan to force her out of
the lab. App. at 420, 496. Rush reiterated this theory at
oral argument, contending that the same managerial
personnel, particularly Sirinides, who failed to stop the

16
sexual harassment were also responsible for Scott's failure
to promote her. At trial, witnesses testified about both the
alleged failure to promote and train and the alleged
harassment, and the evidence supporting the claims was
presented in tandem.

It is not possible to ascertain what portions of the
compensatory and punitive damages awards were
attributable to the time-barred failure to promote and train
claim, so we must reverse the damages awards.
Furthermore, given Rush's theory of the case and the
manner in which evidence was presented, we are unable to
find that the evidence of discriminatory failure to promote
and train did not affect the jury's verdict on liability on the
sexual harassment hostile environment claim. At a
minimum, the evidence of Scott's failure to promote and
train Rush was highly prejudicial to Scott on the
harassment claim. We therefore will reverse the jury's
liability verdict on the hostile environment sexual
harassment claim as well. Similarly, Rush's constructive
discharge claim was not linked exclusively to either the
failure to promote and train claim or the harassment claim,
so the verdict on this claim, too, may have been influenced
by the evidence offered in support of the failure to promote
and train claim. Accordingly, we also will reverse the
judgment in favor of Rush on her constructive discharge
claim.

The jury found in favor of Scott on Rush's retaliation
claim. Rush has not filed a cross-appeal from the entry of
judgment in favor of Scott on that claim, so the judgment
on the retaliation claim will stand. See, e.g., Abrams v.
Lightolier Inc., 50 F.3d 1204, 1213 (3d Cir. 1995) ("While we
note that the instructions as to the ADEA claim may have
required Abrams to demonstrate more than he was required
to under the appropriate standard, Abrams has not cross-
appealed on that ground and we therefore leave the
judgment undisturbed as to the ADEA claim."); Winston v.
Children and Youth Servs., 948 F.2d 1380, 1385 (3d Cir.
1991) (declining to consider issue appellees failed to raise
in cross-appeal or mention in brief). Finally, as we already
have indicated, the Equal Pay Act and common law claims
are out of the case, and Rush has not appealed from their
dismissal.

17
B. Punitive Damages

Scott argues that punitive damages are not available
under the PHRA as a matter of law. Although this question
might arise again at the retrial, we decline to address it at
this juncture.

"In adjudicating a case under state law, we are not free
to impose our own view of what state law should be; rather,
we are to apply state law as interpreted by the state's
highest court in an effort to predict how that court would
decide the precise legal issues before us. . . . In the absence
of guidance from the state's highest court, we are to
consider decisions of the state's intermediate appellate
courts for assistance in predicting how the state's highest
court would rule." Gares v. Willingboro Township, 90 F.3d
720, 725 (3d Cir. 1996) (citations omitted). Predicting the
Pennsylvania Supreme Court's likely adjudication of the
question presented is complicated by a sparse landscape of
conflicting intermediate appellate case law.

The Pennsylvania Supreme Court has not decided
whether punitive damages are available under the PHRA,
although it has indirectly confronted the question of the
available remedies under the PHRA. Pennsylvania Human
Relations Comm'n v. Zamantakis, 387 A.2d 70, 71-73 (Pa.
1978) (PHRC is not authorized to "award damages for
mental anguish and humiliation which may arise as a
result of unlawful discrimination," but courts possess
authority to make such awards under their power to grant
legal and equitable relief).3 One intermediate appellate court
in Pennsylvania has held that punitive damages are
available under the PHRA. Brown Transp. Corp. v.
Pennsylvania Human Relations Comm'n, 578 A.2d 555, 562
(Pa. Commw. Ct. 1990) (no bar to punitive or compensatory
damages in PHRA).4 However, during the pendency of this
_________________________________________________________________

3. Zamantakis was a plurality opinion with limited binding effect. Hoy v.
Angelone, ___ A.2d ___, 1997 WL 119445, at *6 (Pa. Super. Ct. 1997).

4. District courts in the Eastern District of Pennsylvania consistently
have held that punitive damages are available under the PHRA. Smith v.
General Elec. Co., 1996 WL 24762, at *6 (E.D. Pa. 1996); Galeone v.
American Packaging Corp., 764 F. Supp. 349, 351 (E.D. Pa. 1991) ("Since
September 1990. . . most federal courts examining this issue have
allowed punitive damage claims to remain in PHRA actions after
predicting that the Pennsylvania Supreme Court would rule that punitive
damages may be imposed under the PHRA.") (collecting cases).

18
appeal, a panel of the Pennsylvania Superior Court vacated
an award of punitive damages under the PHRA. Hoy v.
Angelone, ___ A.2d ___, 1997 WL 119445, *6 (Pa. Super. Ct.
1997). The Hoy court specifically refused to extend
Zamantakis, noting that damages for humiliation and
mental anguish are of a different nature and serve different
purposes than punitive damages, and explained it was
"unpersuaded that such damages are recoverable under the
PHRA and. . . reluctant to allow such recovery in the
absence of more definitive guidance" from the state
Supreme Court. Id.

At oral argument, counsel for Rush represented that a
petition to the Pennsylvania Supreme Court for allocatur
has been filed in Hoy. It is therefore possible that the
Pennsylvania Supreme Court soon will address the question
of the availability of punitive damages under the PHRA.
Given these circumstances, we are hesitant to consider the
question, for to do so might produce the undesirable result
of having the PHRA remedies available to a plaintiff differ
depending upon the forum in which the plaintiff has sued.
For these reasons, and because it is unnecessary to the
disposition of this appeal, we decline to decide whether
punitive damages are available under the PHRA.

IV. CONCLUSION

Rush's sexual harassment claim was filed timely, and she
has presented evidence justifying a conclusion that there
was a continuing violation extending from prior to until
after January 5, 1993. Thus, on remand, she should be
permitted to introduce evidence of sexual harassment
occurring throughout her tenure at Scott. However, her sex
discrimination claim based on Scott's failure to promote
and train her was time barred. The inclusion of the failure
to promote and train claim and the evidence supporting it
infected the entire verdict, so a remand for retrial is
necessary on Rush's sexual harassment and constructive
discharge claims. Accordingly, we will reverse the judgment
entered in favor of Rush on the basis of the remittitur and
will remand the case to the district court for entry of
judgment in favor of Scott on the failure to promote and
train claim and for a new trial on the hostile environment

19
based on sexual harassment and constructive discharge
claims. We do not disturb the disposition made in the
district court of Rush's other claims.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

20