                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-26-2004

Kissell v. Dist Cncl 84
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3891




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                                                   NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                          No. 02-3891


                    MICHAEL F. KISSELL

                               v.

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
 EMPLOYEES, DISTRICT COUNCIL 84, AFL-CIO, COUNCIL 13;
  PENNSYLVANIA DEPARTMENT OF CORRECTIONS, STATE
      CORRECTIONAL INSTITUTE OF GREENSBURG,

              PA Department of Corrections, State
             Correctional Institution at Greensburg,
                                         Appellant


    APPEAL FROM THE UNITED STATES DISTRICT COURT
     FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                   D.C. Civil No. 97-cv-00786
        District Judge: The Honorable Gary L. Lancaster


                   Argued: January 12, 2004


    Before: BARRY, SMITH, and GREENBERG, Circuit Judges


               (Opinion Filed: January 26, 2004)
    Howard G. Hopkirk, Esq. (Argued)
    Office of Attorney General of Pennsylvania
    Strawberry Square
    Harrisburg, PA 17120

    Attorney for Appellant


    Leonard E. Sweeney, Esq. (Argued)
    976 Perry Highway
    Pittsburgh, PA 15237

    Attorney for Appellee




                                             OPINION




    BARRY, Circuit Judge

           Michael Kissell was, from 1988 until he was terminated on June 29, 1994, a

    corrections officer employed by the Pennsylvania Department of Corrections (“DOC”) at

    the State Correctional Institution at Greensburg. In response to his termination, Kissell

    filed a complaint in the Western District of Pennsylvania against the DOC for violation of

    the rights afforded to him under Title VII of the Civil Rights Act of 1964. 42 U.S.C. §

    2000e et seq.1 After trial, a jury rejected Kissell’s sexual harassment claim, but returned a

    verdict in his favor on his retaliation claim. The DOC moved for judgment as a matter of



       1
1      Kissell also alleged violations under 42 U.S.C. § 1983 and under Pennsylvania law.
2   The District Court dismissed these claims, and they are not relevant to this appeal.

                                                 2
law, which was denied, and thereafter filed a timely appeal. We have jurisdiction under

28 U.S.C. § 1291. We will affirm.

       The DOC raises three issues on appeal. First, the DOC asserts that the evidence

does not support the jury’s finding in favor of Kissell on one component of his retaliation

claim. Second, the DOC contests certain of the damages assessed against it. Finally, the

DOC argues that because the jury’s verdict cannot stand, neither can the District Court’s

order to reinstate Kissell.

       To establish a prima facie case of retaliation in an employment discrimination suit

brought under Title VII, a plaintiff “must show that (1) he was engaged in protected

activity; (2) he was discharged subsequent to or contemporaneously with such activity;

and (3) there is a causal link between the protected activity and the discharge.” Woodson

v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). The DOC concedes that Kissell at

trial established the second and third components of his case. They argue, however, that

the evidence, even when viewed in Kissell’s favor, does not support a finding that Kissell

was engaged in a protected activity.

       “As a preliminary matter, protesting what an employee believes in good faith to be

a discriminatory practice is clearly protected conduct.” Aman v. Cort Furniture Rental

Corp., 85 F.3d 1074, 1085 (3d Cir. 1996) (citing 42 U.S.C. § 2000e-3(a); Griffiths v.

Cigna Corp., 988 F.2d 457, 468 (3d Cir. 1993)). See also Griffiths, 988 F.2d at 468 (“a

plaintiff need not prove the merits of the underlying discrimination complaint, but only



                                            3
that ‘he was acting under a good faith, reasonable belief that a violation existed’”)

(quoting Sumner v. United States Postal Service, 899 F.2d 203, 209 (2d Cir. 1990)).

       The DOC concedes that Kissell was acting in good faith when he made his

complaint. The DOC asserts, however, that Kissell’s complaint was unreasonable. Thus,

the issue on appeal is whether adequate evidence was presented to the jury to support a

finding that Kissell reasonably believed that he was engaged in protected activity under

Title VII. We “view the evidence in the light most favorable to the non-moving party,

and determine whether the record contains the ‘minimum quantum of evidence from

which a jury might reasonably afford relief,’” Glenn Distribs. Corp. v. Carlisle Plastics,

Inc., 297 F.3d 294, 299 (3d Cir. 2002) (citations omitted).

       The evidence sufficiently supports the jury’s finding that Kissell had a reasonable,

good-faith belief to complain that he was harassed because he was male even as he also

had a reasonable, good faith belief that he was harassed because he was a whistle-blower.

Title VII jurisprudence does not require a plaintiff’s sex to be the sole motivation or even

the primary motivation for the harassment. See 42 U.S.C. § 2000e-2(a) (“It shall be an

unlawful employment practice for an employer . . . to discharge any individual . . .

because of such individual’s . . . sex”) (emphasis added); Miller v. Cigna Corp., 47 F.3d

586, 593-594 (3d Cir. 1995) (“Congress, by using the phrase ‘because of,’ did not mean

‘solely because of.’”).

       With regard to the damages award, we cannot conclude that $355,696 is an



                                             4
unreasonable amount to compensate for lost back pay and fringe benefits for the nearly

eight years between Kissell’s termination and the jury award. Moreover, if the jury

should not have been instructed on fringe benefits, it behooved the DOC to say so then,

not now. Finally, because we uphold the jury’s verdict, Kissell’s reinstatement as a

corrections officer is, as the DOC concedes, appropriate.

       Because we find in the record the “‘minimum quantum of evidence from which a

jury might reasonably afford relief,’” we will affirm the order of the District Court

denying the DOC’s motion for judgment as a matter of law. Glenn Distribs. Corp., 297

F.3d at 299 (citations omitted).




TO THE CLERK OF THE COURT:

       Kindly file the foregoing Opinion.




                                            /s/ Maryanne Trump Barry
                                            Circuit Judge
