                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-3-2000

Farrell v. Planters Lifesavers
Precedential or Non-Precedential:

Docket 98-6410




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

Recommended Citation
"Farrell v. Planters Lifesavers" (2000). 2000 Decisions. Paper 44.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/44


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed March 3, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-6410

SUSAN FARRELL,
       Appellant

v.

PLANTERS LIFESAVERS COMPANY;
NABISCO, INC.

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 97-cv-01059)
District Judge: Hon. Joseph A. Greenaway, Jr.

Argued: September 16, 1999

Before: GREENBERG, SCIRICA and RENDELL,
Circuit Judges

(Filed March 3, 2000)

       David N. Mair, Esq. [ARGUED]
       Henry L. Saurborn, Jr., Esq.
       Kaiser, Saurborn & Mair
       20 Exchange Place, 43rd Floor
       New York, NY 10005
       Counsel for Appellant

       Caren I. Friedman, Esq. [ARGUED]
       Equal Employment Opportunity
        Commission
       1801 L Street, N.W.
       Washington, DC 20507
       Counsel for EEOC, Amicus Curiae




       Joel L. Finger, Esq. [ARGUED]
       Roberts & Finger
       767 Third Avenue, 12th Floor
       New York, NY 10017
       Counsel for Appellee

OPINION OF THE COURT

RENDELL, Circuit Judge.
This appeal raises a number of employment law issues
relating to the recruitment, hiring and later firing of
appellant, Susan Farrell. The District Court granted
summary judgment in favor of defendants Planters
Lifesavers Company and Nabisco, Inc., on all of Farrell's
claims.1 See Farrell v. Planters Lifesavers Co., 22 F. Supp.
2d 372 (D.N.J. 1998). Farrell appeals the dismissal of her
retaliation and quid pro quo sexual harassment claims
under Title VII and the dismissal of her North Carolina
contract law claim.2 Acting as Amicus Curiae, the Equal
Employment Opportunity Commission supports Farrell's
appeal from the dismissal of her federal claims. Wefind
that Farrell established a prima facie case for both federal
causes of action, and we will reverse the grant of summary
judgment precluding her retaliation and quid pro quo
claims. We will, however, affirm the dismissal of her state
contract law claim. We have jurisdiction over this appeal
pursuant to 28 U.S.C. S 1291. The District Court had
jurisdiction over the Title VII claims under 28 U.S.C.
S 1331, and exercised jurisdiction over the state law claim
under 28 U.S.C. S 1332. Viewing the record from Farrell's
perspective, the facts in this case are as follows.
_________________________________________________________________

1. Planters Lifesavers Company was an operating company of Nabisco,
Inc. Subsequently, Planters Lifesavers Company divided into Planters
Company and LifeSavers Company. Both are operating companies of
Nabisco, Inc. For the sake of simplicity, we will refer to the defendants
collectively as "Planters."

2. Farrell does not appeal the District Court's decision granting summary
judgment in favor of Planters on her wage discrimination claim. See
Farrell, 22 F. Supp. 2d at 388-90.

                               2


I.

In 1992, Planters, then located in Winston-Salem, North
Carolina, hired Douglas DeLong as its Director of Materials
Management. One of DeLong's central tasks involved
formulating a plan to cut operating costs in Planters'
Materials Management Department. Beginning in the early
1990s and continuing through 1997, Planters sought to cut
its operating costs by consolidating its workforce. DeLong
quickly reorganized the Materials Management Department,
bringing together the Purchasing, Packaging Services,
Graphic Design and Production Planning Departments
within the Materials Management Department and placing
them all under his direct authority. In August 1993,
DeLong wrote a memorandum to Norm Jungman, his
supervisor, suggesting Planters merge the Packaging
Services and Graphic Design Departments as part of its
consolidation. DeLong explained that he hoped to merge the
two departments by late 1994 or early 1995.

In late 1993, Planters decided to discharge the Director of
Packaging Services, Ronald Yonker. Almost
contemporaneously, Planters approached Susan Farrell,
through a recruiter, to become a Packaging Engineer in the
Packaging Services Department. Based on her
qualifications, and DeLong's recommendation, Planters
subsequently considered Farrell as a candidate to replace
Yonker as Director of the Packaging Services Department.
At the time, Farrell was a packaging engineer at McCormick
& Company in Hunt Valley, Maryland.

In January of 1994, Farrell traveled to Winston-Salem to
interview. By mistake, Planters had Farrell interview with
Yonker, who did not know of the decision to fire him and
believed Farrell to be interviewing for another position.
Concerned about her own job security by virtue of Planters'
treatment of Yonker, Farrell sought assurances during the
recruitment process. DeLong assured her that she would
only be fired for poor performance. A number of individuals
told her that Yonker had been repeatedly warned about his
performance before the decision was made to terminate
him.

Planters formally offered Farrell Yonker's position, re-
titled as Senior Manager of Packaging Services, by letter

                                3


dated February 4, 1994. Planters also promised to
purchase Farrell's home in Maryland for $ 240,000 and pay
for Farrell's relocation back to Maryland if her employment
with Planters ended within two years because of
"performance concerns or position elimination." Farrell
accepted the offer on February 11, 1994, and relocated to
North Carolina. She began work at Planters on March 28,
1994. Farrell's husband remained in Maryland.

In mid-November 1994, Farrell traveled to Chicago to
attend a Pack Expo, an annual packaging exposition, with
a number of Planters and Nabisco, Inc. managers. While
attending the show, DeLong told Farrell that his supervisor,
Norm Jungmann, was about to be fired and that he would
assume Jungmann's position shortly. DeLong then praised
Farrell's work performance, told her that he felt her style
complemented his, and asked her if she would be interested
in becoming the head of the Industrial Engineering
Department in addition to her duties as manager of the
Packaging Engineering Department once he replaced
Jungmann.
A few hours later, DeLong asked Farrell to accompany
him the next day on a planned business trip to Puerto Rico
to tour a Planters' facility. DeLong instructed Farrell to
book tickets on the same flight as his, with seats together.
Farrell made the arrangements. DeLong and Farrell had
traveled on business trips together on two prior occasions.

During the flight to Puerto Rico on November 16, 1994,
DeLong placed his hand just above Farrell's knee while
telling Farrell that his wife became jealous when he traveled
with Farrell. He asked Farrell whether her husband became
jealous when she traveled with DeLong. Farrell responded
by removing his hand from her leg and firmly telling him
"no, I don't give him a reason to and I suggest you do the
same." Farrell says DeLong's demeanor changed when she
rejected his advance: he turned away, curled up and slept
or pretended to sleep.3 Farrell and DeLong engaged in little
_________________________________________________________________

3. The District Court refused to consider certain evidence regarding
DeLong's change in attitude after Farrell rejected his advance because it
contradicted her deposition testimony. See Farrell, 22 F. Supp. 2d at 381
n.22 (citing Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703,
705-06 (3d Cir. 1988). As we explain, see infra section II. C, we
disagree

and will consider the allegation as part of the record in front of us.

                                4


or no further conversation for the rest of the flight. The next
day, DeLong flew back to Winston-Salem, informing Farrell
that he was leaving a day early in order to find out more
about Jungman's termination.

Farrell also says that DeLong often commented when she
wore a skirt, and states that in October, DeLong told her
that she was pretty calm considering she was living apart
from her husband and that he would be "bitchier" if he
were her. However, after the November flight, DeLong never
made reference to the advance on the plane, nor made a
second advance.

On December 13, 1994, less than a month after the trip
to Puerto Rico and less than two weeks after Planters paid
for her possessions to be moved to North Carolina and
purchased her home in Maryland, Gary Eckenroth,
Planters' Vice President for Human Resources, went to
Farrell's office and asked her to come up to his office. On
the way, Eckenroth told her that Planters was going to
eliminate her position. Once inside his office where DeLong
was waiting, Farrell says Eckenroth told her Planters would
call her termination a position elimination, in order to allow
Farrell to retain benefits and give her a severance package,
but that she was actually being terminated because of
interpersonal problems with other members of Planters'
management. When Farrell asked for specifics, DeLong
mentioned Suzanne Jabbour and Ed Lyons. He also made
general reference to some others whom he did not name.
After Farrell protested, questioning why Planters had just
paid for movers and purchased her house in Maryland if
they were terminating her, Eckenroth said that he did not
know that Planters had just moved her. Eckenroth then
asked DeLong to leave the room. Once DeLong left, Farrell
says that Eckenroth told her that he had not checked
DeLong's report of complaints and he promised he would do
so.

The next day, Farrell spoke with Jabbour and Lyons and
they both denied making negative comments to DeLong,
but confirmed that DeLong had asked them about her.
Lyons also told Farrell that he had told DeLong that he felt
DeLong had a personal problem with Farrell. That same
day, Farrell says Eckenroth told her that Jabbour and

                               5


Lyons came to him and confirmed that they had not made
negative comments about her to DeLong. In fact, DeLong's
own internal memorandum, dated December 8, 1994 states
"Ed Lyons said she was helpful with his group." Eckenroth
also apologized for not having investigated DeLong's claim,
but told Farrell that she would have to leave because
rumors of her termination had begun to circulate. A few
days later, Eckenroth talked to her about accepting the
severance package in return for releasing her claims.
Farrell did not agree to any terms of separation and left her
position on December 28, 1994.

DeLong's memorandum, dated December 8, describes the
events leading up to Farrell's termination. The
memorandum refers to three conversations he had on
December 7 and 8 with various Planters' managers who
came to DeLong and complained about Farrell. The
memorandum then refers to a meeting between DeLong and
Eckenroth, spurred by these conversations, where they
"discussed the option of eliminating" Farrell's position and
merging the Packaging and Graphics Departments as
DeLong had suggested in 1993.

DeLong notes that he spoke with Planters' managers,
including Jabbour and Lyons, "to gather feedback about
Farrell." DeLong summarizes their comments: "The most
common response received was, `I don't know what she
does.' `A lot of talk but no results.' `Nice suit, but nothing
in it.' Ed Lyons said she was helpful with his group."
DeLong then detailed his subsequent conclusions,
including:

       When all the issues with her peers were discussed and
       other feedback received discussed, it was clear that I
       had to deal with Susan. I could not run an area with
       the type of conflict that existed between Susan and the
       rest of my staff.

        . . . .

       [b]ased on these discussion and conversations with
       people over the last several months who found Susan
       very difficult to work with, i.e., Phil, Mike, Peggy and
       Rob, I made the decision to eliminate her job and
       combine Graphics and Packaging under Peggy as per

                               6


       earlier recommendation and hire another Packaging
       Engineer.

Farrell alleges that her rejection of DeLong's advance
resulted in her termination, forming the basis of her federal
claims. She also argues that DeLong's assurances created
an implied term in her employment contract permitting her
termination for cause only. Farrell alleges that Planters
breached this provision by firing her, forming the basis for
her state law claim.

Planters disputes many of the facts alleged by Farrell,
and the inferences that might be drawn from them, and
describes different reasons for Farrell's termination.
According to Planters, Farrell was terminated because
upper management made the decision to consolidate the
Graphics and Packaging Departments and Planters
determined that Peggy Bryan, the head of the Graphics
Department, would better serve Planters than Farrell in the
consolidated position. According to Planters, Eckenroth met
with Sandy Putnam, Vice President of Planters, to discuss
cost containment and reduction measures in November of
1994 and specifically discussed the possibility of
implementing DeLong's 1993 proposal that Planters should
consolidate the Packaging Services and Graphic Design
Departments in late 1994 or early 1995.

Planters explains that DeLong and Eckenroth met on
December 8 to discuss the consolidation. At that meeting,
Eckenroth asked DeLong to make a recommendation about
whether they should keep Farrell or Bryan, which he did.
Planters contends that DeLong's December 8 memorandum
is materially consistent with their explanation for Farrell's
termination since it describes a discussion about
consolidating departments, efforts by DeLong to canvass
opinion about Farrell, and the decision to retain Bryan.

Furthermore, in his certification and deposition
testimony, DeLong denied ever having suggested to Farrell
the possibility of a promotion or making the advance on the
plane. Eckenroth and DeLong also denied that they told
Farrell that the decision was a position elimination in name
only during their meeting with Farrell. In their certifications
and deposition testimony, DeLong and Eckenroth also

                               7


support the choice to retain Bryan by stating that they
received complaints about Farrell's availability, ability and
attitude throughout her employment. Planters points out
that in the summer of 1994, a peer group gave Farrell the
mock award title of "phantom leader," and in October,
DeLong wrote a memorandum to Farrell telling her to
increase her visibility at Planters.

After her termination, Farrell filed suit. The District Court
granted Planters summary judgment on all of Farrell's
claims. Farrell appeals and argues that the District Court
erred in dismissing her Title VII quid pro quo sexual
harassment and retaliation claims as well as her North
Carolina contract law claims. We discuss each in turn,
beginning with Farrell's Title VII claims.

We exercise plenary review over summary judgment and
we apply the same standard that the lower court should
have applied. See Armbruster v. Unisys Corp., 32 F.3d 768,
777 (3d Cir. 1994). A federal court should grant summary
judgment "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." See Fed. R. Civ. P. 56(c). In
making this determination, "a court must view the facts in
the light most favorable to the nonmoving party and draw
all inferences in that party's favor." Armbruster, 32 F.3d at
777.

II.

Farrell claims that Planters and Nabisco violated Title VII
in two separate ways and presents her discrimination claim
as two different causes of action. She alleges that her
termination was both an impermissible act of retaliation
and an act of quid pro quo sexual harassment. In this case,
it is clear that both of Farrell's claims rely upon the same
essential facts: DeLong's sexual advance, her rejection of
the advance and her subsequent termination.
The District Court determined that Farrell failed to
produce evidence showing a causal link between the
rejection and her termination, as is required to establish a

                                8


prima facie case for each claim. Considering Farrell's
retaliation claim, the District Court first determined that
the three to four week period between the rejection and the
termination was insufficient alone to establish the causal
link. The court then searched the record for evidence of a
"pattern of antagonism" or a "retaliatory animus." Finding
none, the District Court granted the defendant's motion as
to Farrell's retaliation claim. The District Court dismissed
Farrell's quid pro quo sexual discrimination claim in a
similar manner. Relying heavily upon Lynch v. New Deal
Delivery Serv., Inc., 974 F. Supp. 441 (D.N.J. 1997), the
Court dismissed Farrell's claim because there was no
evidence that DeLong either acted hostilely towards Farrell
after she rejected his advance or pressed the issue again.

For the reasons described below, we conclude that the
District Court erred by requiring that the causal connection
for both claims be supported by a pattern of antagonism,
retaliation or hostility and, thereby, engaged in too narrow
a review of the plaintiff 's evidence. Considering the record
before us, we find ample evidence from which to infer a
causal connection between Farrell's rejection of DeLong's
advance and her subsequent termination that enables
Farrell to make out a prima facie case for both her claim of
retaliation and her claim of quid pro quo sexual
harassment. Since we find that Farrell makes out a prima
facie case on all the evidence before us, we need not decide
whether the three to four week period between the advance
and termination would be sufficient, if considered alone. We
note that the District Court did not reach the issue of
whether Planters and Nabisco proffered a legitimate non-
discriminatory reason for Farrell's termination or whether
Farrell could illustrate that the reason was pretextual, so
we will reverse and remand to the District Court for
consideration of those issues. We will discuss the
requirements for Farrell's prima facie case of retaliation and
quid pro quo sexual harassment in that order.

A.

Under our precedent, to advance a prima facie case of
retaliation, a plaintiff must show that: (1) the employee
engaged in a protected employee activity; (2) the employer

                                9
took an adverse employment action after or
contemporaneous with the employee's protected activity;
and (3) a causal link exists between the employee's
protected activity and the employer's adverse action. See,
e.g., Kachmar v. Sungard Data Systems, Inc. , 109 F.3d 173,
177 (3d Cir. 1997); Jalil v. Advel Corp., 873 F.2d 701, 708
(3d Cir. 1988); see also Krouse v. American Sterilizer
Company, 126 F.3d 494, 500 (3d Cir. 1997) (describing the
third requirement as a "causal connection").

The District Court determined that Farrell failed to
establish the third element of the prima facie case. 4 It
reasoned that "a temporal proximity of three to four weeks
may support an inference of retaliation," but held "[a]bsent
evidence of intervening antagonism or retaliatory animus
. . . Farrell has failed to establish a causal link between her
rejection of DeLong's advance and her termination. Thus,
Farrell has not established a prima facie case of
retaliation." Farrell, 22 F. Supp. 2d at 393. The District
Court limited its inquiry into whether Farrell offered any
non-temporal proof of causation to evidence of a"pattern of
antagonism" or "retaliatory animus" and,finding none,
dismissed her claim. See id. (citing Kachmar, 109 F.3d at
177 and Krouse, 126 F.3d at 503-04). We think this
analysis viewed too narrowly the scope and nature of
conduct and circumstances that could support the
inference of causation. The District Court seemed to have
been requiring more than one retaliatory act, or one closer
in temporal proximity, or some demonstrative activity, to
the exclusion of all other facts or events potentially
probative of causation. In doing so, it committed error.

We have spoken often of the probative value of temporal
proximity in retaliation cases. Recently in Robinson v. City
of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997), and Krouse v.
American Sterilizer Co., we remarked that our case law is
"seemingly split" as to whether temporal proximity between
_________________________________________________________________

4. We note that the District Court held that the rejection of a sexual
advance was a protected activity, see Farrell , 22 F. Supp. 2d at 392, and
that determination has not been questioned on appeal. Therefore, we do
not need to address it. Farrell's termination clearly establishes the
second prong.

                               10


the protected activity and the alleged retaliatory act can be
sufficient in itself to create an inference of a causal
connection for the purposes of a prima facie case of
retaliation. See Robinson v. City of Pittsburgh , 120 F.3d at
1302; see also Krouse, 126 F.3d at 503 (finding period of
nineteen months insufficient on summary judgment).
However, we caution that this "split" is not an
inconsistency in our analysis but is essentially fact-based.
Rather, we have ruled differently on this issue in our case
law, depending, of course, on how proximate the events
actually were, and the context in which the issue came
before us.5

For example, in Jalil v. Avdel Corporation, 873 F.2d 701
(3d Cir. 1989), we reversed the grant of summary judgment
in favor of the defendant because the plaintiff had
established causation for the purposes of his prima facie
case merely by showing that his discharge occurred only
two days after his employer had received notice of Jalil's
EEOC claim. See Jalil, 873 F.2d at 708 ("He demonstrated
the causal link between the two by the circumstance that
the discharge followed rapidly, only two days later, upon
Avdel's receipt of notice of Jalil's EEOC claim."). However,
in Krouse, also a case appealing the grant of summary
judgment, we explained that temporal proximity alone will
be insufficient to establish the necessary causal connection
when the temporal relationship is not "unusually
suggestive," and determined that nineteen months was too
_________________________________________________________________

5. We do note that our pronouncements regarding temporal proximity
and causation need to be assessed with the understanding that the
relative evidentiary impact of temporal evidence may vary depending
upon the stage of the McDonnell Douglas proof analysis, and the
procedural circumstance. We caution, therefore, that each case must be
considered with a careful eye to the specific facts and circumstances
encountered. See Kachmar, 109 F.3d at 178 ("Our cases set no
parameters but were decided in the context of the particular
circumstances before us."). There is clearly a difference between two
days and nineteen months. Compare Jalil, 873 F.2d 701, 708 (3d Cir.
1989), with Krouse, 126 F.3d at 503. There is also a difference between
a plaintiff relying upon temporal proximity to satisfy her prima facie
case

for the purpose of summary judgment, see Jalil , 873 F.2d at 708, and
to reverse a verdict. See Quiroga v. Hasbro Inc. , 934 F.2d 497, 500, 501-
02 (3d Cir. 1991).

                               11


attenuated to create a genuine issue of fact. See Krouse,
126 F.3d at 503 (citing Robinson, 120 F.3d at 1302). In this
case, Farrell, supported by the EEOC, asks that wefind
that the relatively short period in question sufficient to
establish the inference of causation required at this stage.6
However, because we find that she establishes the inference
on the entire record before us, including the suggestive
timing, we need not decide whether the timing alone would
be sufficient.

In the case before us, the District Court required
additional evidence of "intervening antagonism or
retaliatory animus," after it opined that the timing of three
to four weeks "may" support an inference of causation. In
essence, it held that if temporal proximity is not clearly
suggestive standing alone, a "time plus" other intervening
retaliatory acts will be required. We part ways with the
District Court, because while we agree that timing plus
other evidence may be an appropriate test where the
temporal proximity is not so close as to be "unduly
suggestive," we disagree as to the character of the "other"
evidence that will suffice to create the causal link for
purposes of the prima facie case. The District Court drew
its reasoning from our statement in Kachmar that "[w]here
there is a lack of temporal proximity, circumstantial
evidence of a `pattern of antagonism' following the protected
conduct can also give rise to the inference." See Farrell, 22
_________________________________________________________________

6. In its brief, the EEOC's principal argument is that the temporal
relationship between the rejection of DeLong's advance and Farrell's
termination is sufficient on its own to demonstrate the inference of
causation Farrell needs to establish a prima facie case at this procedural
stage. We do not to decide this issue.

Following argument, the EEOC brought to our attention a recent
opinion of the Court of Appeals for the Eleventh Circuit, Farley v.
Nationwide Mutual Ins., Co., No. 98-4566, 98-4799, 1999 WL 1142914
(11th Cir. Dec. 14, 1999). In Farley, the Eleventh Circuit found that a
period of seven weeks was sufficient to establish the required causal
connection. See id. at *12. We note, however, that the Eleventh Circuit
in Farley seems to apply a less stringent test for causation in general,
see id. at *12 ("To prove a causal connection, we require a plaintiff only
to demonstrate `that the protected activity and the adverse action were
not wholly unrelated.' "), and, thus, its ruling is inapposite.

                               12


F. Supp. 2d at 393 (quoting Kachmar, 109 F.3d at 177).
However, it failed to note the succeeding sentence, which is
all-important: "These are not the exclusive ways to show
causation, as the proffered evidence, looked at as a whole,
may suffice to raise the inference." Kachmar, 109 F.3d at
177.

Although timing and ongoing antagonism have often been
the basis for the causal link, our case law clearly has
allowed a plaintiff to substantiate a causal connection for
purposes of the prima facie case through other types of
circumstantial evidence that support the inference. For
example, a plaintiff may establish the connection by
showing that the employer gave inconsistent reasons for
terminating the employee. See Waddell v. Small Tube
Products, Inc., 799 F.2d 69, 73 (3d Cir. 1986); see also
EEOC v. L.B. Foster Co., 123 F.3d 746, 753-54 (3d Cir.
1997), cert. denied, 522 U.S. 1147 (1998). In Waddell, we
noted that the District Court could "appropriately" have
taken inconsistent explanations into account infinding the
causation necessary to satisfy the prima facie case. See
Waddell, 799 F.2d at 73 ("The district court noted the
inconsistency in Small Tube's explanations of its refusal to
rehire and could appropriately have taken that into
account."). In L.B. Foster Co., we noted that the plaintiff
had established a prima facie case of retaliation based on
temporal proximity between the events plus inconsistencies
in the defendant's testimony, certain conduct towards
others, and refusals to provide a reference for the plaintiff.
See L.B. Foster, 123 F.3d at 753-55 (citing Waddell, 799
F.2d at 73).

In Woodson v. Scott Paper Co., 109 F.3d 913, 921 (3d Cir.
1997), we limited our inquiry to evidence of a pattern of
antagonism, but only because that evidence was sufficient
on its own to link the complaints of discrimination and
Woodson's discharge. See id. at 921. We specifically stated
that we "need not consider whether other types of evidence
might also support a causal link finding in the absence of
temporal proximity." Id. at 921 n.3. Similarly, in Robinson
v. SEPTA, 982 F.2d 892 (3d Cir. 1993), the intervening
pattern of antagonism was so strong that it overcame the
lack of temporal proximity and, alone, proved the causal

                               13


link. See id. at 895. There was no need to look beyond this
pattern for other, circumstantial, evidence.

Moreover, we have been willing to explore the record in
search of evidence, and our caselaw has set forth no limits
on what we have been willing to consider. In Krouse, we
affirmed the District Court's grant of summary judgment
after concluding that the plaintiff "has not proffered any
evidence establishing a causal connection" other than the
nineteen month gap between filing an EEOC complaint and
the alleged retaliatory act. See Krouse, 126 F.3d at 503. We
noted there that "[w]hen temporal proximity between
protected activity and allegedly retaliatory conduct is
missing, courts may look to the intervening period for other
evidence of retaliatory animus." Id.

Accordingly, we conclude that the District Court
employed too restrictive a view of the type of evidence that
can be considered probative of the causal link. It is not
limited to timing and demonstrative proof, such as actual
antagonistic conduct or animus. Rather, it can be other
evidence gleaned from the record as a whole from which
causation can be inferred. As we explained in Kachmar, "[i]t
is important to emphasize that it is causation, not temporal
proximity [or evidence of antagonism], that is an element of
plaintiff 's prima facie case, and temporal proximity [or
antagonism] merely provides an evidentiary basis from
which an inference can be drawn." Kachmar, 109 F.3d at
178. Before viewing the record with this wider lens,
however, we will focus briefly on the District Court's
decision that Farrell had not satisfied the same element --
namely causation -- with respect to the prima facie case for
her claim of quid pro quo sexual harassment.

B.

Farrell's companion claim of quid pro quo sexual
harassment contains a similar requirement of cause and
effect. See Robinson v. City of Pittsburgh, 120 F.3d 1286,
1296 (3d Cir. 1997). In Robinson -- one of the few cases in
which we have shed light on this issue -- we stated that a
plaintiff may prove a claim of quid pro quo sexual
harassment by showing that "his or her response to

                               14


unwelcome advances was subsequently used as a basis for
a decision about compensation, [terms, conditions, or
privileges or employment]." Id. at 1297. We further
explained that "the plaintiff need not show that the
submission was linked to compensation, etc., at or before
the time when the advances occurred. But the employee
must show that his or her response was in fact used
thereafter as a basis for a decision affecting his or her
compensation, etc." Id.

The District Court granted summary judgment to
Planters on Farrell's quid pro quo claim finding that she
failed to establish the causal connection required by
Robinson. The District Court used the test for satisfying the
prima facie stage that had first been set forth by the Court
of Appeals for the Eleventh Circuit in Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). See Farrell, 22 F.
Supp. 2d at 386 ("(4) her submission to the unwelcome
advances was an express or implied condition for receiving
job benefits or her refusal to submit resulted in tangible job
detriment.") (emphasis added). Curiously, however, the
District Court relied almost exclusively on Lynch v. New
Deal Delivery Serv. Inc., 974 F. Supp. 441, 452 (D.N.J.
1997) -- a case based on diversity jurisdiction focusing
exclusively on New Jersey state law -- to conclude that
Farrell's causation evidence fell short because, like the
plaintiff in Lynch, Farrell did not produce any evidence that
DeLong "pressured her" or "acted hostile toward Farrell
after she rejected his advance." See Farrell , 22 F. Supp. 2d
at 387-88.

Farrell contends that the District Court erred infinding
that she had not adduced evidence sufficient to establish
the causal relationship required by Robinson. We agree and
will reverse because we believe that -- by relying upon
Lynch -- the District Court departed from our decision in
Robinson and -- much as it did with respect to its analysis
of the retaliation claim -- incorrectly narrowed the scope
and nature of its assessment of the causation evidence. As
we will explain below, we view the evidence as sufficient to
establish this causal link as well.

In Lynch, the plaintiff raised a number of discrimination
claims, including quid pro quo sexual harassment, under

                               15


the New Jersey Law Against Discrimination. The district
court granted summary judgment to the defendant because
it found that since the plaintiff admitted that the defendant
did not act hostilely towards her or attempt to coerce her
after she declined his invitations to dinner, "no reasonable
factfinder could conclude [the defendant's] attentions ever
involved an implicit or explicit threat" of retaliation as
required under NJLAD. See Lynch, 974 F. Supp. at 452
(citing Lehman v. Toys `R' Us, Inc., 626 A.2d 445 (N.J.
1993)). The District Court, noting that it found the
reasoning in Lynch "persuasive," dismissed Farrell's quid
pro quo claim because there was no further pressure or
hostility after she rejected DeLong's advance. See Farrell,
22 F. Supp. 2d at 387-88.

However, our law contains no requirement that the
plaintiff show that the employer implicitly or explicitly
threatened retaliation when making the advance. We
explained in Robinson that "the plaintiff must show that his
or her response to unwelcome advances was subsequently
used as a basis for a decision about compensation, etc.
Thus, the plaintiff need not show that the submission was
linked to compensation, etc., at or before the time when the
advances occurred." Robinson, 120 F.3d at 1297 (emphasis
added). While evidence of hostility or repeated demands for
sexual favors would strengthen any plaintiff 's case, the
lack of such evidence does not render it fatallyflawed. By
following the reasoning of Lynch, the District Court
narrowed its analysis of Farrell's evidence of causation by
effectively engrafting an element onto the cause of action
that is not required under our jurisprudence.7
_________________________________________________________________
7. The District Court also cited Bonenberger v. Plymouth Township, 132
F.3d 20, 22, 28 (3d Cir. 1997) and Kidwell v. Sheetz, Inc., 982 F. Supp.
1177, 1179-81 (W.D. Va. 1997) in a footnote. See Farrell, 22 F. Supp. 2d
at 388 n.32. In Bonenberger, we did state, as the District Court
contended, that the plaintiff 's supervisor "did not suggest, either by
word or action, that sexual favors were the price for keeping her job."
Farrell, 22 F. Supp. 2d at 388 n.32 (quoting Bonenberger, 132 F.3d at
28). However, we read this statement in Bonenberger as part of the
court's analysis of a subsection (1) claim that the plaintiff 's
supervisor

made a "veiled threat to have her fired for rejecting his sexual
advances."

See Bonenberger, 132 F.3d at 27. In Robinson v. City of Pittsburgh, we

                               16


Robinson, however, as the District Court noted, does
require the plaintiff to "show that his or her response was
in fact used thereafter as a basis for a decision affecting his
or her compensation, etc." Id.; Farrell, 22 F. Supp. 2d at
387. As with Farrell's retaliation claim, the question
becomes what evidence may the court consider in deciding
whether that nexus is sufficiently proven to establish a
prima facie case. While we recognize that a retaliation claim
under Title VII and an adverse job discrimination claim are
separately codified, compare 42 U.S.C.S 2000e-3(a), with 42
U.S.C. S 2000e-2(a), we see no reason to conclude that
Farrell's burden should be higher, or the scope of evidence
permissibly considered narrower, in this cause of action for
quid pro quo sexual harassment than in a retaliation claim.

Our decision in Robinson, where we reversed the grant of
judgment as a matter of law in favor of the defendants,
leads us to conclude that the analysis can be, in fact, quite
broad. See Robinson, 120 F.3d at 1298-99. 8 In Robinson,
_________________________________________________________________

said that a plaintiff could allege a quid pro quo sexual harassment claim
when a supervisor implicitly or explicitly made a coercive request for
sexual favors even without a subsequent effect on the terms and
conditions of employment. See Robinson, 120 F.3d at 1297. Supreme
Court precedent has, however, eroded that cause of action since our
opinions in Robinson and Bonenberger. See Hurley v. Atlantic City Police
Department, 174 F.3d 95, 120 (3d Cir. 1999) (discussing Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of
Boca Raton, 524 U.S. 775 (1998)).

In Kidwell, a case relying upon the law of the Court of Appeals for the
Fourth Circuit, the district court dismissed the claim because the
plaintiff failed to establish the second prong of the prima facie case
which the court found required evidence of some form of threat. See
Kidwell, 982 F. Supp. at 1180.

8. A careful reading of Robinson makes it clear that the events
substantiating the plaintiff 's quid pro quo claim which we found
sufficient to go to a jury were distinct from those we found insufficient
to establish her claim of retaliation. Robinson's quid pro quo claim
involved the alleged block of her transfer request in 1993. See id. at
1298-99. Robinson's retaliation claim revolved around a complaint she
filed with the EEOC in May of 1994. See id. at 1292, 1301-02. Robinson
did not plead the facts of her quid pro quo allegations in the alternative
as a retaliation claim, as Farrell has done here.

                                 17


the plaintiff alleged that her supervisor blocked her transfer
because she rejected his advance. See id. at 1298. At trial,
the plaintiff testified that her supervisor had repeatedly
promised her that he would recommend her for transfer but
that after a party where he pulled her into a compromising
position for a picture, he told her that after talking to
others in the department, they said she had a bad attitude.
See id. The plaintiff also testified that a co-worker
confirmed that her supervisor blocked her transfer, had
made negative comments about her to others, and had a
romantic interest in her. See id.

We conclude that the inquiry into whether a plaintiff has
shown that a rejection of certain conduct was "used as the
basis for employment decisions affecting such individual"
should not be constrained; rather, the court can consider
circumstantial evidence and draw inferences in favor of the
non-moving party in reaching this determination on
summary judgment.

C.

Thus, in cases where a plaintiff must illustrate a"causal
link" for purposes of establishing retaliation, or show that
certain conduct was "used" as a basis for employment
decisions, a plaintiff may rely upon a broad array of
evidence to do so. We will now review Farrell's evidence,
which we find, when considered as a whole, and reviewed
in the light most favorable to Farrell, adequately establishes
the necessary connection to substantiate both her prima
facie of retaliation and her prima facie case of quid pro quo
sexual harassment.9

As a preliminary matter, we disagree with the District
Court's rejection of certain evidence regarding DeLong's
reaction to Farrell's rejection of his advance on the flight to
Puerto Rico.10 In her certification in opposition to Planters'
_________________________________________________________________
9. We note that Planters suggests the entire analysis of both the quid pro
quo and retaliations claims should be joined together because of the
similarity of the claims. See Appellee's Br. at 24 n.3.

10. Planters points out in its brief that Farrell's affidavit accompanying
her EEOC complaint did not state that DeLong put his hand on her
knee. We also place no evidentiary consequence on this omission.

                               18


motion for summary judgment, Farrell explained that after
she rejected DeLong's advance:

       DeLong's demeanor changed, he turned to face away
       from me, curled up and either slept or pretended to
       sleep. We had little or no further conversation on the
       flight, and I worked alone for the rest of theflight. The
       following day DeLong abruptly left Puerto Rico and
       returned to Winston-Salem without me.

The District Court, citing Martin v. Merrell Dow
Pharmaceuticals, Inc., 851 F.2d 703 (3d Cir. 1988), refused
to permit Farrell to rely on this proof that DeLong's
demeanor changed, because the Court found that it
impermissibly contradicted her deposition testimony in
which she made no reference to this conduct. See Farrell,
22 F. Supp. 2d at 381 n.22. We disagree with the District
Court's rejection of this evidence because Farrell's
deposition testimony and her certification are not
contradictory in the sense prohibited by Martin . In Martin,
the plaintiff 's certification included a different answer to
the same question asked directly in her deposition. See
Martin, 851 F.2d at 704-06. In this case, in Farrell's
deposition, counsel for Planters specifically asked Farrell to
only describe the content of conversations Farrell and
DeLong had on the airplane. Farrell was never asked how
DeLong responded to her rejection, what happened after
she rebuffed him or how many conversations they had
thereafter. The District Court concluded, and Planters
argues here, that Farrell implied in her deposition that she
and DeLong had conversations after his advance and
therefore the substance of the two statements are
contradictory. See Farrell, 22 F. Supp. 2d at 381 n.22
(concluding that Farrell's deposition said that she and
DeLong continued to talk but her certification said "he
turned away from her and refused to talk to her"). However,
Farrell's certification says that they "had little or no further
conversation" after the advance. When asked to relate the
conversations in her deposition, Farrell first explained that

she was unable to relate the conversations in chronological
order, agreed that they were merged together in her mind,
and then tried to relate them as best as she could. Since
Farrell was not asked about DeLong's attitude or demeanor,

                                19


and the District Court's conclusion rests upon an inference
drawn from a narrow reading of the deposition and a broad
reading of her certification, we disagree with the District
Court and conclude that Farrell's later certification should
be considered as evidence.

The District Court also refused to place any significance
on DeLong's decision to return to Puerto Rico a day early
when considering whether Farrell had established evidence
of hostility. The District Court reasoned that Farrell had
presented no evidence that his decision was related to any
issue other than Jungmann's possible termination. See id.
at 388 (reviewing Farrell's quid pro quo claim). However,
Farrell faces no separate burden to substantiate the
inference she draws from this decision; rather, the district
court is to draw inferences in her favor at this procedural
stage. See Iadimarco v. Runyon, 190 F.3d 151, 164 (3d Cir.
1999) (applying traditional summary judgment standards to
evidence supporting the plaintiff 's prima facie case of
reverse discrimination). Farrell is entitled to rely upon this
event as circumstantial evidence.

Farrell, obviously, places great significance upon the
relatively close timing between her rejection of DeLong's
advance and her termination. The District Court found the
timing to be suggestive in its analysis of Farrell's retaliation
claim but did not find it sufficient on its own. See Farrell,
22 F. Supp. 2d at 393 (finding the timing not to be
"unusually suggestive"). We view the timing of Farrell's
termination as suggestive for both of Farrell's claims. The
timing evidence is also enhanced by the occurrence of two
other events. Although DeLong states that he recommended
Bryan over Farrell based upon meetings with other
members of Planters' management, and Planters points to
complaints raised about Farrell's performance during her
employment, his decision to terminate her came only three
or four weeks after DeLong praised Farrell and asked her
about her interest in a promotion. Further, although
Planters justifies Farrell's termination in part because of
economic concerns and management discussions that took
place in November 1994, her termination occurred less
than two-weeks after Planters purchased her house in
Maryland and moved all of her possessions to Winston-
Salem.

                                20


Farrell also augments evidence of DeLong's changed
demeanor and the suggestive timing of her termination with
evidence in the record revealing inconsistencies in Planters'
explanation for terminating her. Farrell challenges both
Planters' explanation that the decision to consolidate the
departments was determined by management and its
conclusion that the choice to retain Bryan was based upon
interpersonal reasons. Planters states that discussions
about consolidating the two departments began in
November of 1994 and suggests that the decision was made
by upper management. However, DeLong's December 8
memorandum states that complaints he received about
Farrell on December 6 and 7 motivated DeLong to see
Eckenroth where they "discussed the option of eliminating
the position of Senior Manager Packaging Development and
combining Graphics and Packaging as per proposal dated
8/20/93." Portions of DeLong's December 8 memorandum
also place the decision to terminate Farrell solely in
DeLong's hands and focus entirely on the alleged
interpersonal conflicts as the reason for Farrell's dismissal.
For example, DeLong wrote: "When all the issues with her
peers were discussed and other feedback received
discussed, it was clear that I had to deal with Susan" and
explained that "Based on the discussions and conversations
with people over the last several months who found Susan
very difficult to work with . . . I made the decision to
eliminate her job and combine Graphics and Packaging
under Peggy as per earlier recommendation and hire
another Packaging Engineer." Farrell also alleges that on
the day Eckenroth and DeLong informed her of the decision
to terminate her, Eckenroth told her that Planters would
call the decision a position elimination for her benefit but
that she was actually being terminated for interpersonal
reasons.

Farrell also adduces evidence surrounding the choice of
Bryan over her to accompany the inference that DeLong
made the decision on the basis of impermissible reasons.
Although DeLong named both Lyons and Jabbour at the
December 13 meeting as managers who made negative
comments about her, Farrell alleges that neither Lyons nor
Jabbour made such comments and supports her argument
with reference to DeLong's memorandum that expressly

                                21


states Lyons found Farrell to be helpful. Furthermore,
Farrell states that Lyons indicated to her that he told
DeLong that DeLong seemed to have a personal problem
with Farrell from the manner in which he solicited feedback
about Farrell.

Planters argues that none of these points help to raise
the required inference. It urges that we should draw no
inference from the timing of DeLong's suggestion of a
promotion because Farrell was not terminated because she
was incompetent, but because of a required consolidation
and the determination that Bryan was a better choice than
Farrell. Further, Planters points out that DeLong explained
in his deposition that he discounted complaints about
Farrell until late November and December because Farrell
was new. Planters argues that nothing should be read into
the trip to Puerto Rico because the trip was planned for
DeLong before he asked her to join him and Farrell had
been required to tour other facilities with DeLong. Planters
disagrees that Farrell establishes any inconsistencies,
arguing that the memorandum supports the view that
DeLong responded to his meeting with Eckenroth by
interviewing other managers and by subsequently choosing
Bryan.

We recognize that different inferences might be drawn
from the evidence presented in the record. On summary
judgment, however, when viewing the sufficiency of the
prima facie case, our role is not to act as factfinder.
Instead, we must consider the evidence taken in the light
most favorable to the non-movant and determine whether
Farrell can show the causation required for a prima facie
case of retaliation and quid pro quo harassment. We believe
that, taken as a whole, the behavior of DeLong, the timing
of Farrell's termination and the inconsistencies she raised
in Planters' explanation for her termination are sufficient to
create the required inference.

We recognize that by acknowledging that evidence in the
causal chain can include more than demonstrative acts of
antagonism or acts actually reflecting animus, we may
possibly conflate the test for causation under the prima
facie case with that for pretext. But perhaps that is
inherent in the nature of the two questions being asked --

                                22


which are quite similar. The question: "Did herfiring result
from her rejection of his advance?" is not easily
distinguishable from the question: "Was the explanation
given for her firing the real reason?" Both should permit
permissible inferences to be drawn in order to be answered.
As our cases have recognized, almost in passing, evidence
supporting the prima facie case is often helpful in the
pretext stage and nothing about the McDonnell Douglas
formula requires us to ration the evidence between one
stage or the other. See Iadimarco, 190 F.3d at 166
(explicitly referring to the evidence of the prima facie case
in finding evidence supporting pretext); Jalil , 873 F.2d at
709 n.6 ("Although this fact is important in establishing
plaintiff 's prima facie case, there is nothing preventing it
from also being used to rebut the defendant's proffered
explanation. As we have observed before, the McDonnell
Douglas formula does not compartmentalize the evidence so
as to limits its use only one phase of the case.") (internal
quotation omitted) (citing and quoting Dillon v. Coles, 746
F.2d 998, 1003 (3d Cir. 1984)). It is enough to note that we
will not limit the kinds of evidence that can be probative of
a causal link any more than the courts have limited the
type of evidence that can be used to demonstrate pretext.11
_________________________________________________________________

11. Since Robinson, which described the quid pro quo cause of action, we
have not had occasion to focus on the extent to which the McDonnell
Douglas burden shifting test applies to, or has implications for the
elements of the prima facie case of, quid pro quo claims of this type. See
Hurley, 174 F.3d at 120-22. We see no reason to explore these issues in
this case. Neither party questions the District Court's standard or the
application of the burden shifting structure. See Appellant's Br. at 28-29
(adopting the District Court's standard and citing Kauffman v. Allied
Signal, Inc., 970 F.2d 178, 186 (6th Cir. 1992)); Appellee's Br. at 25-26
(adopting the District Court's standard and citing Perkovich v. Roadway
Express, Inc., 1997 U.S. App. LEXIS 1155, *9-10 (6th Cir. Jan. 22,
1997), and Bonenberger v. Plymouth Township, No. CIV.A.96-403, 1996
WL 729034, at *22 (E.D. Pa. Dec. 18, 1996), aff 'd in part and rev'd in
part on other grounds, 132 F.3d 20 (3d Cir. 1997)); EEOC's Br. at 26
(arguing that a plaintiff need not show intervening hostility to prove
quid

pro quo harassment and applying the McDonnell Douglas test to the
claim). Farrell only contends that the District Court erred in finding
that

she had not set forth enough evidence to establish the threshold causal
relationship.

                               23


III.

Farrell also appeals the District Court's grant of
summary judgment to Planters on her North Carolina state
contract law claim. Farrell argues that her move to North
Carolina was consideration for promises that she would be
fired only for cause and, thus, these promises became an
implied term of her employment which Planters allegedly
breached by firing her for retaliatory or discriminatory
reasons. Farrell acknowledges that the North Carolina
Supreme Court recently rejected the precise theory on
which she is proceeding. See Kurtzman v. Applied Analytical
Indust., Inc., 493 S.E.2d 420, 423-24 (N.C. 1997) (holding
that there is not a "moving residences" exception to the
general rule of at-will employment). However, Farrell argues
that Kurtzman should not be applied to her case because
her implied contract right vested, and the agreement was
breached, before Kurtzman was decided. Farrell explains
that the protection of contract rights based upon prior law
is a compelling reason under North Carolina law counseling
against the retrospective application of Kurtzman to bar her
claim. The District Court had difficulty accepting this
argument, as do we. We will affirm.

In Kurtzman, the North Carolina Supreme Court held
"that plaintiff-employee's change of residence in the wake of
defendant-employer's statements here does not constitute
additional consideration making what is otherwise an at-
will employment relationship one that can be terminated by
the employer only for cause." Id. at 423-24. The Court
_________________________________________________________________

In two cases decided before Robinson, we considered claims brought by
plaintiffs under the same Title VII section alleging that they were
terminated because they rejected a supervisor's explicitly coercive
request for sexual favors. See Craig v. Y & Y Snacks, 721 F.2d 77, 78-80
(3d Cir. 1983); Tomkins v. Public Serv. Elect. & Gas Co., 568 F.2d 1044,
1047-49 (3d Cir. 1977); see also Bonenberger, 132 F.3d at 28 (citing
Craig and Tomkins as quid pro quo precedent). Neither case detailed the
elements of a prima facie test. However, in Craig we noted that the
district court found causation as part of the prima facie case and applied
the McDonnell Douglas paradigm in affirming the trial court's verdict for
the plaintiff. See Craig, 721 F.2d at 79-80.

                               24


found assurances of job security such as " `If you do your
job, you'll have a job'; `This is a long-term growth
opportunity for you'; `This is a secure position'; and `We're
offering you a career position' " insufficient to alter the at-
will nature of the employment although the assurances
preceded the plaintiff 's decision to move from
Massachusetts to North Carolina. See id. at 421.

In reaching its holding, the Court rejected precedent of
the North Carolina's intermediary court establishing a
"moving residence" exception to the at-will doctrine. See id.
at 423 (rejecting Sides v. Duke Hospital, 328 S.E.2d 818
(N.C. App.), disc. rev. denied, 333 S.E.2d 490 (N.C. 1985)
and Burkheimer v. Gealy, 250 S.E.2d. 678 (N.C. App.), disc.
rev. denied, 254 S.E.2d 918 (N.C. 1979)). The court also
dismissed as "background discussion" language in Harris v.
Duke Power Co., 356 S.E.2d 357 (N.C. 1987), mentioning
Sides and the "moving residences" exception. See id. at
423. The Court concluded that the argument that the
exception was well established in the court's jurisprudence
was incorrect. See id. Applying its holding to the case
before it, where the plaintiff had won a jury verdict, the
Court remanded to the trial court with direction to enter a
judgment notwithstanding the verdict. See id.   at 424.

We agree with the District Court that Kurtzman is
dispositive despite the fact that Farrell moved to North
Carolina before it was decided. The North Carolina
Supreme Court has stated that "[u]nder long-established
North Carolina law, a decision of a court of supreme
jurisdiction overruling a former decision is, as a general
rule, retrospective in its operation." Cox v. Haworth, 284
S.E.2d 322, 324 (N.C. 1981). The Court further explained
that: "Unless compelling reasons . . . exist for limiting the
application of the new rule to future cases, we think that
the overruling decision should be given retrospective effect."
Id. The Court in Cox also noted that the decision as to
whether a case ought to be applied retroactively should
include consideration of policy issues as well, such as
"reliance on the prior decision, the degree to which the
purpose behind the new decision can be achieved solely
through prospective application, and the effect of
retroactive application on the administration of justice." Id.
at 324.

                               25


Farrell, citing MacDonald v. Univ. of North Carolina, 263
S.E.2d 578 (N.C. 1980), argues that protecting previously
vested contract rights is a compelling reason which requires
limiting the application of the rule announced in Kurtzman
to cases involving promises made after it was decided. In
MacDonald, the North Carolina Supreme Court explained:

       When the law has received a given construction by a
       court of last resort, and contracts have been made and
       rights acquired under and in accord with such
       construction, such contracts may not be invalidated
       nor vested rights under them impaired by a change of
       construction made by a subsequent decision.

MacDonald, 263 S.E.2d at 581. However, as the District
Court recognized, the facts of Farrell's case fail to support
the exception described by MacDonald. Farrell would have
us disregard the point made in Kurtzman that the "moving
residence" exception to the at-will doctrine had never been
established by the North Carolina Supreme Court. See
Kurtzman, 493 S.E.2d at 423 ("Plaintiff 's contention that
this exception is well established in our jurisprudence is
incorrect. This Court has not heretofore expressly passed
upon it."). It is telling that the North Carolina Supreme
Court in Kurtzman did apply its rule to the case before it,
remanding for a judgment notwithstanding the verdict to be
entered. We find no basis for not following its lead in this
regard.
We also believe that policy considerations point to the
application of Kurtzman to bar claims invoking contracts
allegedly made before it was decided. In Kurtzman, the
Court focused upon at-will employment as a fundamental
precept of law noting that exceptions to the rule should not
be found to exist without "substantial justification
grounded in compelling considerations of public policy." Id.
at 423. The Court explained that allowing a "moving
residences" exception, in a mobile society would create
instability in an otherwise stable area of employment law.
See id. at 423-24. The strength of these policy rationales
suggests that the North Carolina court would not create a
subset of employees who could avoid the holding in
Kurtzman, and bring a claim based upon the "moving

                               26


residences" exception solely because the plaintiff moved
before Kurtzman was decided.

IV.

Accordingly, we will reverse the District Court's order
granting summary judgment in favor of Planters on Farrell's
federal claims, and remand for further proceedings. We will,
however, affirm the District Court's ruling precluding
Farrell's state law breach of contract claim.

A True Copy:
Teste:

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

                               27
