filed: March 17, 1993; As Corrected March 30, 1993.
On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil No. 91-2356).
Before: Sloviter, Chief Judge, and Greenberg and Seitz, Circuit Judges.
GREENBERG, Circuit Judge.
I. Factual and Procedural Background
In this civil action the jury returned a verdict against the defendants-appellants CIGNA Corporation and Marlene Graham, CIGNA'S head of security, for $377,500 in favor of the plaintiff-appellee Jackey B. Griffiths on his claims for retaliatory discharge under section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), and section 5(d) of the Pennsylvania Human Rights Act ("PHRA"), Pa. Stat. Ann. tit. 43, § 955(d) (Supp. 1992), and for malicious prosecution, under Pennsylvania common law. The appellants filed a motion for a new trial and an amendment of judgment which the district court denied in an order entered May 14, 1992. The appellants have appealed from that order, contending that the court improperly charged the jury both on the burden of proof on the retaliatory discharge claims and on the elements of the malicious prosecution claim. We agree and therefore will reverse the order of the district court.*fn1
The germane facts as developed at the trial are as follows. Griffiths, a Jamaican immigrant, began work at CIGNA as a part-time security guard on January 2, 1985. Eventually, he was promoted to full-time security guard and assistant supervisor. Griffiths was assigned to work at a building at 1600 Arch Street, Philadelphia, referred to as the "Home Office," and at a connected building called the "Tower Building."
In February 1990, Griffiths applied for a position of shift supervisor. When he did not obtain the promotion, he concluded that Graham denied it to him on the basis of his national origin. On March 13, 1990, a day after learning that the decision not to promote him was final, Griffiths filed a charge with the Equal Employment Opportunity Commission, asserting that CIGNA had discriminated against him because of his national origin.*fn2 The EEOC sent notice of the charge to CIGNA's security department on or about March 16, 1990.
The day that he filed the EEOC charge, Griffiths left work early, purportedly because the stress he was suffering from being passed over exacerbated a pre-existing high-blood pressure condition. Griffiths subsequently filed a disability claim, asserting that he was disabled as a result of this condition. He never returned to work for CIGNA.
From October 1989 through March 1990, CIGNA lost property valued at approximately $105,000 through the thefts of computers from the Home Office and Tower Building. On the evening of March 12-13, Griffiths' last day of work, someone stole two computers from a locked area of the Tower Building. On March 20, 1990, Graham sent a three-page report about the thefts to the Philadelphia Police Department stating that "information gathered concerning the latest thefts suggests that Assistant Supervisor Jackey Griffiths working in connection with a former CIGNA security officer Tony Bolton may be responsible for some if not all of the computer thefts." (Emphasis added.) The report noted that there was no sign of forced entry in the area from which the computers were stolen; Griffiths had a master key to that area; Bolton was fired and Griffiths recently was passed over for a promotion to supervisor; a check of the daily attendance sheets showed that either Bolton or Griffiths was working at the time of all the reported thefts; Bolton often called Griffiths at work; on the night of the latest computer theft Bolton's call was transferred to Griffiths at an office on the floor where the theft occurred; and two security officers assigned to Griffiths' shift stated that Griffiths habitually disappeared for three to four hours at a time in the Tower Building, taking its keys with him. The report, however, did not request that the police prosecute or arrest either Griffiths or Bolton.
Dennis Nast, the Philadelphia detective assigned to the case, interviewed Graham and other CIGNA employees about the matter. Based on these interviews and Graham's report, Nast prepared an affidavit of probable cause for a warrant for Griffiths' arrest which he submitted to the charging unit of the office of the Philadelphia District Attorney for a determination of whether the facts submitted constituted probable cause. After the District Attorney's office concluded that there was probable cause, Nast submitted the affidavit to the bail commissioner, a judicial officer of the Court of Common Pleas for Philadelphia County, who also found probable cause and thereafter issued a warrant for Griffiths' arrest. The Philadelphia police arrested Griffiths on April 13, 1990, but on April 23, 1990, the court dismissed the charges at a preliminary hearing.
On May 1, 1990, Graham sent a letter to Griffiths, who though not then reporting for work was still a CIGNA employee, instructing him to meet with CIGNA's corporate audit department to answer questions concerning the computer thefts occurring on the last night he was on duty. Griffiths, however, refused to speak to the audit department except through his attorney. The appellants then terminated Griffiths' employment on May 4, 1990, ostensibly because his failure to cooperate with the investigation of the theft constituted insubordination. On April 11, 1991, Griffiths filed this suit in the United States District Court for the Eastern District of Pennsylvania alleging claims of retaliatory discharge in violation of federal and Pennsylvania statutory law and the common law tort of malicious prosecution.*fn3 At trial, Griffiths argued that the appellants falsely accused him of the thefts and fired him because he had filed the EEOC charge. Griffiths presented testimony showing that Graham did not inform the police that she knew that other employees had access to the locked areas where the computers were located, and that she had suspected another supervisor who was in the Tower Building on March 12, 1990, of having been involved in computer thefts over the previous several months. For her part, Graham testified that CIGNA fired Griffiths because he refused to cooperate with the internal investigation by the audit department. Furthermore, she denied that the EEOC charge played a role either in Griffiths' termination or her act of reporting him to the police. Indeed, Graham claimed not to have known of the employment discrimination charges until early April, several weeks after she sent her report to the police.
The court submitted the case to the jury on special interrogatories, and it found for Griffiths on both the malicious prosecution and retaliation claims awarding compensatory and punitive damages. It returned its verdict on the malicious prosecution count, notwithstanding its finding in an answer to a special interrogatory that "all of the significant facts that the [appellants] provided to the Philadelphia police [were] true." As we have indicated, the appellants have appealed from the order of May 14, 1992, denying their post-trial motions.
Normally, we review a district court's ruling on a motion for a new trial for abuse of discretion, but here our review is plenary as the district court's denial of the motion was based on the application of legal precepts. See Rotondo v. Keene Corp., 956 F.2d 436, 438 (3d Cir. 1992); Waldorf v. Shuta, 896 F.2d 723, 737 (3d Cir. 1990). Furthermore, while we ordinarily review a district court's ruling on points for charge on an abuse of discretion standard, Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 922 (3d Cir. 1986), in this case we are exercising plenary review because the appellants contend that the charge taken as a whole does not state the correct legal standard. See Savarese v. Agriss, 883 F.2d 1194, 1202 (3d Cir. 1989). Thus, we will review the charge as a whole in the light of the evidence to determine if it fairly and adequately submitted the issues to the jury and we will reverse if the instructions were capable of confusing and thereby misleading the jury. See Limbach Co. v. Sheet Metal Workers Int'l Ass'n, 949 F.2d 1241, 1259 n.15 (3d Cir. 1991) (in banc).
The appellants first maintain that the court erred in instructing the jury on the Pennsylvania law of malicious prosecution in both the charge and the special interrogatories. In particular the appellants contend that the court misstated the law in telling the jury that the appellants had a responsibility to conduct a reasonable investigation of the theft of the computers, to determine the significant facts, and to report all the facts to the police before focusing police attention on Griffiths.*fn4 The appellants urge that they had no obligation to investigate inasmuch as they did not file the complaint or demand Griffiths' prosecution, but only informed the police of certain information which suggested his guilt. They further argue that they could not be liable because the information they gave to the police was accurate.
We agree with the appellants' contentions. Therefore, even though the jury found in its answers to interrogatories that the appellants initiated the criminal proceedings without an honest, good faith belief that Griffiths stole the computers, and did so maliciously to retaliate against Griffiths for his EEOC charges without providing the police with all the significant facts they then knew or could have obtained through a reasonable investigation, we are constrained to reverse.
Under Pennsylvania law, which the parties agree is applicable to the malicious prosecution claim, a plaintiff must prove that the defendant (1) instituted the proceedings (2) without probable cause and (3) with actual malice and (4) that the proceedings terminated in favor of the plaintiff. Kelley v. General Teamsters, Local Union 249, 518 Pa. 517, 544 A.2d 940, 941 (Pa. 1988). While the appellants do not deny that the criminal proceedings terminated in Griffiths' favor, they dispute the existence of the remaining elements. Malice has been stated to include ill-will in the sense of spite, the use of a prosecution for an extraneous, improper purpose, or the reckless and oppressive disregard of the plaintiff's rights. Lee v. Mihalich, 847 F.2d 66, 70 (3d Cir. 1988); Hugee v. Pennsylvania R. Co., 376 Pa. 286, 101 A.2d 740, 743 (Pa. 1954). Malice may be inferred from the absence of probable cause. Kelly, 544 A.2d at 941; Hugee v. Pennsylvania R. Co., 101 A.2d at 743. Probable cause is proof of facts and circumstances that would convince a reasonable, honest individual that the suspected person is guilty of a criminal offense. Bruch v. Clark, 352 Pa. Super. 225, 507 A.2d 854, 857 (Pa. Super. Ct. 1986). However, before a court determines whether the plaintiff has demonstrated the absence of probable cause and the presence of malice, it is appropriate for it to address the more fundamental question of whether the defendant either directly instituted the proceedings against the plaintiff or can be charged with the responsibility for the institution of the proceedings. Therefore, we turn our attention to the jury charge in connection with the evidence regarding this element of a claim for malicious prosecution.
Pennsylvania courts have considered a defendant's responsibility for the initiation of proceedings element of malicious prosecution by referring to section 653, comment g of the Restatement (Second) of Torts. See Campbell v. Yellow Cab Co., 137 F.2d 918, 921 (3d Cir. 1943); Davis v. Equibank, 412 Pa. Super. 390, 603 A.2d 637, 640 (Pa. Super. Ct. 1992); Hess v. County of Lancaster, 100 Pa. Commw. 316, 514 A.2d 681, 683 (Pa. Commw. Ct. 1986).*fn5 Comment g distinguishes between situations in which a private individual files a complaint or demands a prosecution and those in which he merely provides information to the police. Comment g makes clear that in the latter case a private individual who does not knowingly provide false information is not responsible for the institution of the proceedings, and thus cannot be held liable for malicious prosecution as he need not have had a reasonable basis for making the accusation. See also Campbell v. Yellow Cab Co., 137 F.2d at 921 (holding person who merely identifies suspect and "does not otherwise attempt to influence the officers in the exercise of their discretion as to the prosecution of the person identified [if] the person making the identification believes it to be correct . . . is not deemed the instigator of criminal proceedings subsequently begun by the police . . ."); Davis v. Equibank, 603 A.2d at 640 (refusing to permit imposition of liability on witness for negligent misidentification of robbery suspect).
In this case, the court in its charge to the jury and special interrogatories did not apply these principles. Rather it apparently assumed that the facts supported a finding that the appellants initiated the proceedings. In charging the jury, the court commented:
The evidence seems clear in this case that the criminal proceedings, although formally filed by the Philadelphia Police, were initiated and instigated by CIGNA, although of ...