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Rush v. Scott Specialty Gases

May 14, 1997




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


GREENBERG, Circuit Judge.

Filed May 14, 1997

Argued April 14, 1997



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. Section(s) 1291, and the district court had jurisdiction under 28 U.S.C. Section(s) Section(s) 1331 and 1367(a).

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


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.

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 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 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 ...

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