                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-8-2002

Quinn v. Consol Freightways
Precedential or Non-Precedential:

Docket 1-1681




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Recommended Citation
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http://digitalcommons.law.villanova.edu/thirdcircuit_2002/159


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PRECEDENTIAL

       Filed March 8, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1681

JOYCE J. QUINN,
       Appellant

v.

CONSOLIDATED FREIGHTWAYS CORPORATION OF
DELAWARE; d/b/a/ CF MOTORFREIGHT;
A. WILLIAM KUDRICK

Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 99-cv-01865)
District Judge: Honorable Yvette Kane

Argued December 17, 2001

Before: SLOVITER, McKEE, Circuit Judges, and
HAYDEN,* District Judge

(Filed: March 8, 2002)

_________________________________________________________________
* Hon. Katharine S. Hayden, United States District Judge for the
       District of New Jersey, sitting by designation.
       Francine Z. Taylor (ARGUED)
       Lancaster, PA 17602-2949

        Attorney for Appellant

       Vincent Candiello (ARGUED)
       G. Scott Paterno
       Morgan, Lewis & Bockius LLP
       Harrisburg, PA 17101

        Attorneys for Appellee,
       Consolidated Freightways of
       Delaware

OPINION OF THE COURT

HAYDEN, District Judge:

After a five day trial on Joyce Quinn's sexual harassment
lawsuit against her former employer, Consolidated
Freightways Corporation (hereafter "CF"), the jury returned
a verdict in favor of defendant in less than an hour. Quinn
appeals from evidentiary decisions of the trial court,
including a discovery sanction that effectively precluded
potentially corroborating testimony of a co-worker. Because
we find that these rulings denied plaintiff the opportunity to
present critical evidence to the jury, we reverse.

Background

Joyce Quinn, with established credentials in the trucking
industry, was hired by CF as an account manager in its
York Terminal on May 11, 1992. Quinn claims that in the
course of her employment at CF, the predominantly male
sales staff and managers, and in particular William
Kudrick, a CF executive, sexually harassed and
discriminated against her.

Quinn and Kudrick had a sexual relationship in 1990,
before Quinn began working for CF. However, Quinn ended
it after approximately two months. She claims that Kudrick
had exhibited inappropriate behavior toward her as early as
1985. That year, while she was working elsewhere, he
charged her on a golf course, tackled her to the ground,

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and pinned her beneath him in the presence of two clients.
Kudrick confirmed this incident when he testified at trial in
the instant suit.

Sometime in 1993, after she was hired by CF, Quinn was
required to work two days per week at CF's Lancaster
terminal, which was under Kudrick's supervision. Quinn
alleges that Kudrick repeatedly suggested that they"fool
around." Thereafter, in 1995, Kudrick became Quinn's
direct supervisor at CF's York terminal. Quinn was the only
female sales manager at that facility, and she testified that
an ongoing hostile work environment existed there, and
that it intensified after Kudrick became her supervisor.

In March, 1996 Quinn was diagnosed with a major
depressive disorder which she attributes to workplace
conditions. Medication was prescribed for her, and her
psychiatrist instructed her to reduce her work schedule
which was then 60 hours/week.

During the leave of absence that followed, Quinn filed an
initial complaint with the Pennsylvania Human Relations
Commission (PHRC). That complaint, as subsequently
supplemented, on April 15, 1996, accused CF of sexual
discrimination and illegal retaliation for Quinn engaging in
protected behavior. Quinn took another leave of absence
later in April following a brief return to work. In May,
following a heated exchange over Quinn's reduced work
schedule, Kudrick fired her. The firing was purportedly for
insubordination.

Quinn filed her federal lawsuit in October 1999 against
CF and Kudrick, alleging various disability and
discrimination claims against CF, including sex
discrimination, disability discrimination and retaliation in
violation of Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act of 1990 (ADA), and the
Pennsylvania Human Relations Act (PHRA). Additionally,
the complaint charged Kudrick with violating the PHRA,
intentional infliction of emotional distress, assault, and
battery. In November 1999 the defendants filed motions to
dismiss. After stipulation of all parties, Quinn amended her
complaint by omitting the claims for intentional infliction of
emotional distress and assault and battery; and by limiting

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the individual claims against Kudrick to charges of sexual
discrimination. Thereafter, the judge denied the defendants'
motions to dismiss, and the case proceeded to discovery.

In July 2000, close to the conclusion of the discovery
period, plaintiff deposed a longtime CF employee, Vida
Trout Passion, who was working as a sales manager at the
Reading Terminal, about one hour's drive from the
Lancaster Terminal that plaintiff was assigned to. Passion
testified at length about a hostile work environment at the
Reading Terminal, and said that she had unsuccessfully
complained about it for years. Additionally, in response to
questioning by CF's attorney, Passion disclosed that she
once witnessed Kudrick sexually accost Quinn in a hotel
room that Quinn and Passion were sharing during a sales
conference. Quinn was not present at that deposition when
Passion offered that testimony. Earlier, in her own
deposition, Quinn had described an encounter with
Kudrick in a hotel room during which he purportedly made
unwanted sexual advances towards her. However, Quinn
testified that she had been alone in the room at the time of
that incident.

CF's pretrial motions included a motion in limine in
which CF asked the trial court to exclude testimony Vida
Passion might offer about her own observations at CF's
Reading Terminal. These observations allegedly included
gender oriented discussions including discussions about
"strip club" escapades, and conversations that could
arguably establish a hostile work environment under Title
VII. CF argued that Passion's observations were not
relevant to Quinn's Title VII claim because Passion worked
at the Reading facility, and Quinn's allegations pertained to
the Lancaster facility. Quinn's counsel attempted to rebut
that argument by pointing out that Division Manager
Robert Warner, supervised both facilities, and that
Passion's observations about the Reading Terminal
corroborated Quinn's allegations regarding the environment
at the Lancaster Terminal. The District Court agreed with
CF and entered an order precluding Passion from testifying
about her observations at CF's Reading Terminal.

After discovery closed, CF moved for summary judgment.
Quinn filed a brief in opposition to that motion in which

                               4
she specified in a number of instances of Kudrick's
inappropriate and unwanted sexual advances toward her.
These included two such occasions in a hotel room, and
Quinn noted that Passion had witnessed one of those
advances.

The judge nevertheless granted CF's motion for summary
judgment as to Quinn's ADA and PHRA claims, and she
also dismissed all of the claims against Kudrick. Quinn's
Title VII claims against CF for sexual discrimination, hostile
environment, and retaliation then proceeded to trial.

On the afternoon of Friday, February 9, 2001, Quinn's
attorney faxed CF's attorney a new time line of events that
she intended to use as an exhibit during her opening
statement. The following Monday, just before the jury was
to be called into the courtroom to hear opening statements,
and after the attorneys had worked out a date discrepancy
on the time line, CF's attorney asked the judge to address
an issue concerning exhibits. He argued that particular
portions of the new time line exhibit raised new issues, one
of which, an incident where Kudrick accosted plaintiff in a
hotel room, he described as "a brand new allegation and
what we presume will be testimony by plaintiff that has
never been raised before regarding a second hotel incident."
App. 17. Counsel for Quinn confirmed that her client would
be testifying about that incident, and counsel for CF stated
that "this is a discovery abuse," App. 18, because Quinn's
answers to the interrogatories Kudrick propounded
identified only one hotel room incident and Quinn had
never amended those answers. Now the time line exhibit
reflected two incidents. CF argued that this was a violation
of the disclosure required by the discovery rules, and
amounted to a "dramatic addition." He asked the court to
impose sanctions under Fed. R. Civ. P. 37 and preclude
testimony of a second hotel incident. App. 18-19.1

In response, Quinn's attorney pointed out that CF had
known about Vida Passion's testimony regarding this
_________________________________________________________________

1. Notwithstanding, this apparent conflict, there is no indication in the
record on appeal that CF attempted, in any of the several in limine
applications it made before trial, to exclude either plaintiff's or
Passion's
testimony about the hotel room incident Passion said she had witnessed.

                               5
second incident since she was deposed in the presence of
CF's counsel in July 2000. App. 26-27. She also alluded to
the difficulties she had experienced in obtaining Vida
Passion's deposition, and Quinn's concerns about putting
Passion in jeopardy since Passion still worked for CF. App.
25. Notwithstanding that explanation, the trial court
admonished Quinn's attorney that "you cannot come in on
the day of trial and bolster your case with new allegations
that haven't been disclosed in discovery," App. 27. The
court granted CF's request for sanctions and ordered: "The
evidence will be excluded from the time line and from the
testimony that will be presented here." App. 29.

In asking the court to reconsider that ruling, Quinn's
counsel argued that both sides had learned about Passion's
corroborating testimony regarding Kudrick's conduct at the
same time, back in July 2000 when Passion was deposed in
the presence of CF's attorney. App. 32-33. However, the
trial court was not dissuaded from its belief that CF's
objection was appropriate, and that Quinn was improperly
attempting to change her testimony on the eve of trial, and
therefore the court refused to reconsider its prior ruling.
App. 34-35.

Accordingly, when Passion testified at trial, she was not
examined about the hotel incident in which she allegedly
saw Kudrick accost Quinn. Similarly, because the court
had granted CF's motion in limine, Passion was not asked
about the allegedly hostile work environment at CF's
Reading facility. CF defended against Quinn's allegations of
discrimination and retaliation by offering testimony that
she had actually been discharged for misconduct and
insubordination. The jury did not accept Quinn's claim that
this explanation was pretextual, and returned a verdict for
CF and against Quinn. This appeal followed.

Standard of Review and Jurisdiction

The trial court had jurisdiction under Title VII of the Civil
Rights Act of 1964. See 42 U.S.C. S 2000e-2(a)(1). We have
jurisdiction pursuant to 28 U.S.C. S 1291. We review the
trial court's decisions regarding the discovery sanction and
the admissibility of evidence for abuse of discretion. See
Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 156 (3d Cir.

                               6
1995); Glass v. Philadelphia Elec. Co., 34 F. 3d 188 (3d Cir.
1994); Meyers v. Pennypack Woods Home Ownership Ass'n,
559 F.2d 894 (3d Cir. 1977), reversed on other grounds.

Discussion

Trial judges are afforded wide discretion in making
rulings on the admissibility of evidence. See Hurley v.
Atlantic City Police Dept., 174 F.3d 95, 110 (3d Cir. 1999);
Fuentes v. Reilly, 590 F.2d 509, 511 (3d Cir. 1979). We
review admissibility determinations, and exclusion of
evidence for an abuse of discretion. "[T]he exclusion of
critical evidence is an `extreme' sanction, not normally to be
imposed absent a showing of willful deception or`flagrant
disregard' of a court order by the proponent of the
evidence." Meyers, 559 F.2d at 904. In Konstantopoulos v.
Westvaco Corp., 112 F. 3d 712 (3rd Cir. 1977), we relied on
the factors in Meyers, 559 F.2d at 904-905, in considering
whether a district court had abused its discretion in
excluding testimony of an expert witness as a discovery
sanction. Along with the importance of the excluded
testimony, the Meyers factors include (1) the prejudice or
surprise in fact of the party against whom the excluded
witnesses would have testified; (2) the ability of that party
to cure the prejudice; (3) the extent to which waiver of the
rule against calling unlisted witnesses would disrupt the
orderly and efficient trial of the case or other cases in the
court; and (4) bad faith or wilfulness in failing to comply
with the district court's order.

It is undisputed that Vida Passion was a key witness for
plaintiff -- she was a long time employee still working for
CF at the time of trial. Passion's testimony about the hotel
incident with Kudrick was clearly probative, highly relevant,
and it had the potential to provide strong support for
plaintiff's case, notwithstanding CF's ability to impeach it
with Quinn's own recollection.

Thus, on the eve of trial, plaintiff was denied testimony
that could have corroborated her account of an unwelcome
sexual "advance" by her supervisor at CF. Counsel for CF
negated this crucial testimony not by impeachment, but by
claiming that plaintiff's counsel had violated discovery
rules. Despite the claim of a last minute surprise that he

                                7
made to the trial court, during oral argument on this
appeal, CF's attorney stated that from the time Vida
Passion gave corroborating, damaging, testimony about
Kudrick during her deposition, he knew he had potent
cross-examination material. Quinn had testified at her
deposition to one hotel room incident during which she was
alone; now Quinn was offering Passion to testify about a
hotel room incident where she, Passion, was present--
conflicting with plaintiff's own version. Shortly after
Passion's deposition, discovery closed and plaintiff never
supplemented her interrogatory answers so as to add a
second hotel room incident.

Quinn's brief in opposition to CF's motion for summary
judgment, filed October 25, 2000, did specify that her
evidence included two hotel room incidents, one of them
witnessed by Passion. CF's attorney indicated at argument
that he did not care how many incidents were referenced
there: he had plaintiff locked into a description of one
highly charged incident that inherently conflicted with
Passion's testimony. CF therefore knew of Passion's
testimony for months before attempting to strike it as a last
minute surprise that justified sanctions as a discovery
abuse. Not only is it clear that counsel for CF was not
surprised by evidence of this hotel encounter, but he
concedes that any prejudice from admitting this testimony
was minimal at best because it afforded him an additional
avenue to impeach Quinn's own testimony.

When we apply the Meyers factors to this record, it is
clear that CF had known about Passion's description of the
hotel incident for over seven months; any prejudice was
neutralized because CF's trial counsel was confident he
could cross-examine Quinn based upon Passion's
testimony; there was no suggestion that the trial would be
interrupted; and although the trial court scolded Quinn's
attorney when she offered reasons for Quinn's not having
supplemented her original deposition testimony, there was
no specific finding of bad faith or wilfulness. The overtly
malign motive CF's attorney ascribed to plaintiff-- that she
was conforming her testimony to Passion's and deliberately
fabricating a second incident -- was never tested by the
trial judge. See Federal Rule of Civil Procedure 37(c)(1);

                                8
Nicholas v. Pennsylvania State University, 227 F.3d 133 (3d
Cir. 2000). Most striking, there is not a shred of evidence
that CF was surprised or that it would have been
prejudiced by the admission of Quinn's or Passion's
testimony on the second hotel room incident, testimony
counsel was fully prepared to exploit on cross-examination.
To exclude critical evidence for failing to amend
interrogatory answers under these circumstances
champions form over substance and denied Quinn her full
day in court. See Lockhart v. Westinghouse Credit Corp.,
879 F.2d 43, 53 (3d Cir. 1989) (It is "highly probable that
the evidentiary rulings affected the outcome of the case.").2

The trial court's blanket exclusion of Passion's testimony
regarding a hotel incident involving Kudrick and Quinn is
not supported by this record. Plaintiffs face proof problems
in employment discrimination cases. See United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716
(1983) (acknowledging that "[a]ll courts have recognized
that the question facing triers of fact in discrimination
cases is both sensitive and difficult . . . [and that] [t]here
will seldom be eyewitness testimony as to the employer's
mental processes" which the plaintiff can use to show
discriminatory conduct); Josey v. John H. Hollingsworth
Corp., 996 F.2d 632, 638 (3d Cir. 1993) (acknowledging
that there is seldom direct "smoking gun" evidence
of discrimination). This has prompted a "judicial
inhospitability to blanket evidentiary exclusions in
discrimination cases," in this and other circuits. Glass v.
Philadelphia Elec. Co., 34 F.3d at 195. In Glass, we cited to
an Eighth Circuit decision, Estes v. Dick Smith Ford, Inc.,
856 F.2d 1097 (8th Cir. 1988), where that court noted that
"the effects of blanket evidentiary exclusions can be
especially damaging in employment discrimination cases, in
which plaintiffs must face the difficult task of persuading
the fact-finder to disbelieve an employer's account of his
_________________________________________________________________

2. Regarding Quinn's other points on appeal, we do not find the trial
court abused its discretion when it excluded evidence that CF, through
Kudrick, decided not to contest Quinn's application for unemployment
benefits, although the ruling may be revisited in light of the proofs that
will be presented as a result of our decision. Finally, our decision makes
it unnecessary to address the denial of Quinn's motion for a new trial.

                               9
own motives." Estes, 856 F.2d at 1103. Our decision in
Glass took note of a subsequent Eighth Circuit case where
the court reversed a ruling in a disparate treatment sex
discrimination case that barred the plaintiff from
introducing evidence of prior sexual harassment of herself
and other employees of the defendant. Hawkins v.
Hennepin Technical Center, 900 F.2d 153 (8th Cir. 1990),
pointed out that "an atmosphere of condoned sexual
harassment in a workplace increases the likelihood of
retaliation for complaints in individual cases." 900 F.2d at
156. Following this reasoning, in Glass we concluded that
the district court abused its discretion when it barred Glass
from eliciting testimony about how the hostile work
environment of his employment bore on his job
performance, 34 F. 3d at 195, and we reversed and
remanded for a new trial.

Moreover, even absent our concern with blanket
evidentiary exclusions, we remain troubled by the trial
judge granting the sanctions CF requested here on the
morning of trial -- made without advance warning to
plaintiff's attorney.3 Although she did testify for plaintiff,
Passion's testimony was significantly limited in scope
because of the trial court's rulings. Given the importance of
that testimony, and CF's advance knowledge of it, we
conclude that the trial court's order precluding Passion's
testimony about a hotel incident was an abuse of
discretion. For similar reasons, we must also conclude that
the district court abused its discretion by precluding
testimony of Passion's observations about the environment
at CR's Reading Terminal.

The exclusion of Passion's testimony about the sexually
charged work environment at CF's Reading Terminal was a
blanket exclusion that denied Quinn an opportunity to
present evidence about the atmosphere maintained by CF
at a work site where Passion -- like Quinn at the York
Terminal -- was the only female account manager.
Moreover, the very same individual, Division Manager
_________________________________________________________________

3. Counsel informed us at argument that the time line exhibit was never
introduced at trial. It reflected, according to Quinn's attorney, events
supporting her disparate treatment claims.

                               10
Robert Warner, supervised both facilities. According to
Passion's deposition testimony, her peers and supervisor at
Reading referred to her in derogatory, gender-based terms
and when she complained she was told that it was"just
part of the job." App. 248. Indeed, that is exactly what
Quinn's suit alleges; that this environment was"part of the
job." It is also exactly what Title VII prohibits. Passion
claimed pornographic pictures were openly displayed at the
Reading Terminal and that the male employees hung
postcards and "trophies" they brought back from a local
hangout, Al's Cabaret, which featured "girlie" shows.
Although Quinn never worked at the Reading Terminal, like
Passion -- she had reported offensive conduct at the York
Terminal to Division Manager Robert Warner. Passion's
testimony about the workplace environment could establish
an atmosphere of "condoned sexual harassment in a
workplace [that] increases the likelihood of retaliation for
complaints in individual cases," Hawkins, 900 F. 2d at 156,
and amounted to critical evidence from which the jury
could find that CF's proffered reason for plaintiff's
termination was pretextual.

Accordingly, for all of the reasons set forth above, the
judgment entered by the trial court will be reversed and the
matter remanded for a new trial.

A True Copy:
Teste:

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

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