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B & B Const. Co. of Ohio, Inc. v. Continental Ins. Co.

argued: September 17, 1990.


Appeal from the United States District Court for the Western District of Pennsylvania; D.C. Civil No. 84-00648.

Higginbotham, Chief Justice, and Scirica and Aldisert, Circuit Judges.

Author: Aldisert

ALDISERT, Circuit Judge

The major question for decision in this appeal by an unsuccessful plaintiff in a gender discrimination case is whether, based on the testimony admitted into evidence, the district court erred in concluding that there was no violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681, et seq., when Arlene Pfeiffer was dismissed as a member of a high school chapter of the National Honor Society. The district court found as a fact that she was dismissed because of premarital sexual activity and not because of gender discrimination. Applying the appropriate standard of review, we hold that the finding was not clearly erroneous and accordingly affirm this determination of the court.

We are troubled, however, with an evidentiary ruling that excluded the testimony of a male student member of the school's chapter of the National Honor Society. We remand, therefore, for the limited purpose of admitting the proffered testimony. We hold that this testimony has the potential of being relevant to whether there was discriminatory intent by members of the faculty council when they met on November 9, 1983, and unanimously voted by secret ballot to dismiss Pfeiffer from the high school chapter. By our action we do not suggest that the admission of this evidence would, in and of itself, produce a different result from that previously reached by the trial court. We hold merely that the district court in reaching a fresh decision should consider this evidence along with all the other evidence previously adduced.

Should the trial court find that the dismissal was not motivated by a discriminatory intent that violates Title IX, then it would be appropriate to enter again judgment for the appellees. Should liability be determined, however, we conclude that the district court should consider the possibility of compensatory damages.


Jurisdiction was proper in the trial court based on Title IX and 28 U.S.C. § 1331. The district court had pendent jurisdiction over the state law claims. Jurisdiction on appeal is proper based on 28 U.S.C. § 1291. Appeal was timely filed under Rule 4(a), F.R.A.P.

"Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Rule 52(a), F.R.Civ.P.

Virtually every Court of Appeals has embraced, with varying degrees of fidelity, the notion that relevance decisions are discretionary and reviewable only for abuse of discretion. 22 C. Wright & K. Graham, Federal Practice and Procedure: Evidence § 5166 n.45 (Supp. 1990) and cases cited therein. We have a rather unfortunate conflict, however, in panel decisions in this court. Thus, in Gagliardi v. Flint, 564 F.2d 112, 116 (3d Cir. 1977), cert. denied, 438 U.S. 904, 57 L. Ed. 2d 1147, 98 S. Ct. 3122 (1978) we applied the general rule: "The relevancy of the testimony was a matter within the trial court's discretion." Six years later, without a court in banc permitting a departure from this court's precedent, a divided panel with a visiting judge joining in the majority opinion, said: "Our review of a Rule 402 relevancy ruling is plenary." In re Japanese Electronic Products, 723 F.2d 238, 269 (3d Cir. 1983), reversed on other grounds sub nom. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). In dissent, Chief Judge Seitz, 723 F.2d 238, 269 n. 37, preferred to adhere to ruling case law, citing inter alia, Hamling v. United States, 418 U.S. 87, 124-25, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974) ("In judicial trials, the whole tendency is to leave rulings as to the illuminating relevance of testimony largely to the discretion of the trial court that hears the evidence." NLRB v. Donnelly Co., 330 U.S. 219, 236, 91 L. Ed. 854, 67 S. Ct. 756 (1947); Michelson v. United States, 335 U.S. 469, 480, 93 L. Ed. 168, 69 S. Ct. 213 (1948); Salem v. United States Lines Co., 370 U.S. 31, 35, 8 L. Ed. 2d 313, 82 S. Ct. 1119 (1962).)

The standard set forth in In re Japanese Electronic Products was followed in Brobst v. Columbus Services Int'l, 824 F.2d 271, 274 (3d Cir. 1987), cert. denied, 484 U.S. 1043, 98 L. Ed. 2d 863, 108 S. Ct. 777 (1988). However, we are constrained to apply the precept announced in O. Hommel Co. v. Ferro, 659 F.2d 340, 354 (3d Cir. 1981), cert. denied, 455 U.S. 1017, 72 L. Ed. 2d 134, 102 S. Ct. 1711 (1982): "[A] panel of this court cannot overrule a prior panel precedent. . . . To the extent that [the later case] is inconsistent with [the earlier case, the later case] must be deemed without effect." Accordingly, we must return to the general rule reflected in Gagliardi v. Flint, that relevance decisions are discretionary and reviewable only for abuse of discretion. The contrary statement announced in In re Japanese Electronics Products and repeated in Brobst is deemed without effect.

The standard of review in cases of statutory construction is plenary. Chrysler Credit Corp. v. First Nat'l Bank & Trust Co., 746 F.2d 200, 202 (3d Cir. 1984).


The appellant, Arlene Pfeiffer, was a member of the class of 1984 at the Marion Center Area High School in Marion, Indiana County, Pennsylvania. She was a good student who earned high grades and participated in a wide variety of school organizations, including serving as president of the student council. Based on her record, she was elected to her high school's chapter of the National Honor Society (NHS) in 1981. The society had a local chapter in existence at the school from approximately 1975 until 1986. The local chapter was governed by a faculty council composed of Robert L. Stewart, the principal of the high school, and Theda Lightcap, Jane Smith, Judith Skubis, and George Krivonick, all teachers at the Marion Center Area High School.

During the spring of 1983, Pfeiffer, who was unmarried, discovered that she was pregnant. She informed her school guidance counselor and principal and indicated that she wanted to rear her child but that she also wanted to finish high school. Principal Stewart told her that he saw no problem in her plan to continue school and graduate.

The handbook for the National Honor Society requires that students be selected for membership on the basis of scholarship, service, leadership and character. The constitution of the local chapter followed that of the national organization, requiring admission and maintenance be based on the same qualities. The high school had a selection procedure which followed the national organization's instructions, in which these qualities were assessed by teachers. To be admitted into the NHS, a student was rated by at least five teachers. In the instructions under the heading "Leadership" one of the qualities to be assessed was whether the student exerted the type of leadership which directly influences others for good conduct. Another quality to be assessed under the heading "Character" was whether the student upholds principles of morality and ethics.

Upon learning of Pfeiffer's pregnancy, Judith Skubis, a teacher and member of the faculty council, brought the matter to the attention of the other council members in the spring of 1983. That fall, when school resumed, the council scheduled a meeting for November 4, 1983, and Pfeiffer was invited to attend. The council members explained to her that her NHS membership was in question because premarital sex appeared to be contrary to the qualities of leadership and character essential for membership. When asked if her sexual activity leading to her pregnancy had been voluntary, the plaintiff answered in the affirmative. The council deferred further action.

On November 8, 1983, Pfeiffer's father, Delmont Pfeiffer, telephoned Principal Stewart requesting a prompt decision because an induction ceremony for seniors was scheduled for the next day and Arlene wanted to attend. The council met on the morning of November 9, 1983, and by secret ballot unanimously voted to dismiss her from the NHS chapter. By letter the council advised her:

By action of the faculty council, you have been dismissed from the National Honor Society for the following reason:

Failure to uphold the high standards of leadership and character required for admission and maintenance of membership.

It is the opinion of the faculty council that a member must consistently set a positive example for others and, as outlined in the selection guidelines, always uphold all of the high standards of moral conduct.

App. at 27.

On November 30, 1983, the council met with her parents, who requested that the subject be placed on the agenda of the school board meeting scheduled for December 12, 1983. Pfeiffer and her parents appeared at the meeting with counsel. The board requested that the matter be discussed privately, but Pfeiffer and her parents insisted that the issue be discussed publicly.

At the discussion, the board was asked to review the decision of the faculty council. On December 19, 1983, the board and the council met to consider the matter further and on January 16, 1984, the school board adopted a resolution unanimously affirming the action of the faculty council.

After graduation from high school, with honors, Pfeiffer elected not to go to college and began working with the Holiday Inn of Indiana, where she is presently a sales manager. She is married, but not to the father of the child conceived while she was in school.


Arlene Pfeiffer filed suit alleging discrimination in her dismissal from the local chapter of the NHS, seeking an injunction that she be reinstated in the chapter, that the records of the school district be corrected to show that she remains in good standing in the society, that a procedure for dismissal be ordered that is not discriminatory, that the NHS be prohibited from disseminating information about her dismissal and that she be awarded compensatory and punitive damages.

Injunctive relief and damages were requested under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681, et seq., and its implementing regulations. The complaint included claims of gender discrimination pursuant to 42 U.S.C. §§ 1983 and 1985 and included state law claims under the Pennsylvania Human Relations Act (PHRA), 43 P.S. 955(i)(1) (Purdon's ...

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