                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-25-1997

EEOC v. LB Foster Co
Precedential or Non-Precedential:

Docket
96-3469




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Recommended Citation
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Filed August 25, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-3469

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
JO ANN WILSON, Intervenor

v.

L.B. FOSTER COMPANY

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

       Appellant

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 90-0758)

Argued: April 30, 1997

Before: MANSMANN, MCKEE, Circuit Judges, and
VANARTSDALEN,* District Judge.

(Filed August 25, 1997)



_________________________________________________________________

*The Honorable Donald W. VanArtsdalen, United States District Court
Judge for the Eastern District of Pennsylvania, sitting by designation.



       Robert J. Gregory, Esq. (Argued)
       Equal Employment Opportunity
        Commission
       1801 L Street, N.W., Rm. 7032
       Washington, DC 20507

       C. Gregory Stewart, Esq.
       General Counsel
       Equal Employment Opportunity
        Commission
       1801 L Street, N.W., Rm. 7032
       Washington, DC 20507

       Gwendolyn Young Reams, Esq.
       Associate General Counsel
       Equal Employment Opportunity
        Commission
       1801 L Street, N.W., Rm. 7032
       Washington, DC 20507

       Lorraine C. Davis, Esq.
       Attorney General Counsel
       Equal Employment Opportunity
        Commission
       1801 L Street, N.W., Rm. 7032
       Washington, DC 20507

        Attorneys for Appellant

       Elizabeth A. Malloy, Esq. (Argued)
       Klett Lieber Rooney & Schorling
       One Logan Square, 28th Floor
       Philadelphia, PA 19103-6901

       Jill M. Lashay, Esq.
       Klett Lieber Rooney & Schorling
       One Logan Square, 28th Floor
       Philadelphia, PA 19103-6901

        Attorneys for Appellees

                                  2



OPINION OF THE COURT

McKEE, Circuit Judge.

In this appeal, we are asked to review the district court's
order awarding attorney's fees pursuant to section 706(k) of
Title VII to L.B. Foster Co. as the prevailing defendant in
the Title VII action brought by the Equal Employment
Opportunity Commission ("EEOC") against that company.
For the reasons explained below, we will reverse.

I.

L.B. Foster manufactures and sells rail construction and
tubular products. In 1980, Jo Ann Wilson was hired in the
company's Houston office. She was later promoted to credit
manager. In 1986, following the reorganization of the
company's credit department, Wilson relocated to Foster's
headquarters in Pittsburgh, Pennsylvania.

A year after her transfer to Pittsburgh, Wilson began
expressing a desire to return to Houston. However, Wilson
changed her mind after David Minor, the corporate credit
manager, was promoted to Assistant Treasurer in December
1987. Minor's promotion created a vacancy in his former
position that Wilson was interested in filling. The corporate
credit manager is responsible for the implementation of the
company's credit policies and therefore had to possess the
"ability to understand and . . . interpret financial and credit
information, . . . correspond with customers and
salespeople under difficult circumstances . . .[and had to
have a] complete knowledge of uniform commercial codes,
financing arrangements, commercial contracts, bankruptcy,
international trade, bond and lien laws, and various credit
instruments, [the] ability to manage as well as motivate
subordinates and the ability to interact with management."
App. at 565.

In January 1988, Wilson approached Minor and
expressed an interest in his old position. She was
disappointed to learn that Minor was also considering
Steven Hahn for the promotion. Hahn had also transferred

                                3



to the company's headquarters after the reorganization of
its credit department, and, like Wilson, he was a regional
credit manager in the Pittsburgh office. Minor supervised
both Hahn and Wilson and, although he regularly
interacted with both of them, he was more familiar with
Hahn's work. Minor considered Hahn's management style
very professional, his credit presentations well constructed,
his financial analysis very strong, and his interactions with
customers and sales representatives courteous and
professional.

Minor interviewed Wilson and Hahn for the position.
During her interview, Wilson criticized Hahn and
challenged Minor to identify her shortcomings. Minor had
criticized Wilson's credit presentations on several prior
occasions because information and documents had been
missing. Minor was also critical of Wilson's long lunches
and telephone mannerisms. Overall, however, Minor
regarded Wilson as a valued employee. Wilson did not
acknowledge any of these deficiencies in her interview.
Instead, she only discussed problems she perceived in
Hahn. Minor was generally disappointed by Wilson's
interview and regarded her criticism of Hahn as
unprofessional.

After considering the qualifications of both candidates,
Minor recommended that Hahn receive the promotion
because Minor thought that Hahn's analytical,
management, and interpersonal skills were superior to
Wilson's. Minor also thought that Hahn had demonstrated
greater dedication to the company. After Human Resources
approved Minor's recommendation, Hahn was informed,
and, two days later, Wilson resigned from her position and
told Minor that she intended to file a sex discrimination
suit against him and the company. However, Wilson
apparently had second thoughts about doing so, and, the
very next day, she told Minor that, while her resignation
was still effective, she had changed her mind about suing.

A few months after Wilson left the company, a
representative of Johnston Pump and Valve Co., one of L.B.
Foster's largest customers, called Minor and requested a
job reference for Wilson. Minor had provided such
references in the past, but he refused to provide the

                                4



requested reference for Wilson and instead referred the call
to the personnel department. Personnel did not give Wilson
a reference but merely furnished her dates of employment.
Wilson did not receive a job offer from Johnston Pump.

The EEOC brought a Title VII action against the L.B.
Foster Co. in 1990 alleging that Wilson had not been
promoted because of sexual discrimination. The complaint
also alleged that the company had refused to provide the
job reference for Wilson in retaliation for her threat to sue
after she resigned. Wilson later intervened in the action and
asserted similar claims. L.B. Foster Co. moved for summary
judgment but that motion was denied, and the case
proceeded to a bench trial in the district court.

The EEOC presented evidence suggesting that L.B.
Foster's proffered explanation for giving Hahn the
promotion--that he was better qualified--was pretextual.
That presentation included evidence that Hahn had been
criticized for deficiencies prior to his promotion to Minor's
former position and that L.B. Foster had reassigned certain
territories to Wilson because of those deficiencies. After the
close of the EEOC's evidence, the company moved for
judgment as a matter of law, but the court deferred ruling
on that motion. The court, however, ultimately found in
favor of L.B. Foster on both the failure-to-promote and
retaliation claims and entered judgment for the company.
Thereafter, the company moved for attorney's fees as the
prevailing party under section 706(k) of Title VII. The court
awarded the requested fees based upon its conclusion that
the EEOC's action was meritless, frivolous, unreasonable
and without foundation. Both parties agreed that, if Foster
were entitled to any counsel fees, the reasonable amount of
those fees would be $142,628.50. Accordingly, the court
entered judgment in that amount in favor of L.B. Foster.
This appeal challenging only the court's determination that
L.B. Foster was entitled to any attorney's fees followed.
The district court had jurisdiction pursuant to 28 U.S.C.
SS 1331, 1345. We have jurisdiction pursuant to 28 U.S.C.
S 1291.

II.

This Court reviews a district court's award of attorney's
fees for abuse of discretion. See Washington v. Philadelphia

                                5



County Court of Common Pleas, 89 F.3d 1031 (3d Cir.
1996); Brown v. Borough of Chambersburg, 903 F.2d 274
(3d Cir. 1990). "We must defer to the district court's fee
determination unless it has erred legally, or the facts on
which the determination rests are clearly erroneous."
Quiroga v. Hasbro, Inc., 934 F.2d 497, 502 (3d Cir.
1991)(citations omitted). The EEOC contends that the
district court erred in finding that its suit was"frivolous,
unreasonable, or without foundation" and awarding
attorney's fees on that basis.

III.

42 U.S.C. S 2000e-5(k) provides:

       In any action or proceeding under this subchapter the
       court, in its discretion, may allow the prevailing party,
       other than the Commission or the United States, a
       reasonable attorney's fee (including expert fees) as part
       of the costs, and the Commission and the United
       States shall be liable for costs the same as a private
       person.

42 U.S.C. S 2000e-5(k). The "prevailing party" can be either
the plaintiff or the defendant. However, in Christiansburg
Garment Co. v. EEOC, 434 U.S. 412 (1978), the Supreme
Court clarified that the standard for awarding attorney's
fees to prevailing defendants is not the same as the
standard for prevailing plaintiffs.

       In Christiansburg, the Court recognized that while a
       liberal fees standard should be used for those parties
       whose suits Congress wished to encourage, and who
       needed this encouragement to bring the suits, a
       stricter standard was appropriate for defendants, who
       needed no encouragement to defend suits against them
       and who were not vindicating an important public
       policy.

Dorn's Transp., Inc. v. Teamsters Pension Trust Fund, 799
F.2d 45, 49 (3d Cir. 1986).

Prevailing plaintiffs "should ordinarily recover an
attorney's fee unless special circumstances would render
such an award unjust." Id. at 416-17 (internal quotations

                                6



omitted). The rationale for this rule is twofold. First, "the
plaintiff is the chosen instrument of Congress to vindicate
`a policy that Congress considered of the highest priority.' "
Id. at 418. Second, "when a district court awards counsel
fees to a prevailing plaintiff, it is awarding them against a
violator of federal law." Id.

These considerations are wholly absent when the
prevailing party is a defendant, and, therefore, a higher
standard applies. In Christiansburg Garment, the Court
defined that standard as follows:

       [A] district court may in its discretion award attorney's
       fees to a prevailing defendant in a Title VII case upon
       a finding that the plaintiff's action was frivolous,
       unreasonable, or without foundation, even though not
       brought in subjective bad faith.1

Id. at 421. "[F]rivolous, unreasonable, or without
foundation," in this context, implies "groundless . . . rather
than simply that the plaintiff has ultimately lost his case."
Id. "[I]t is important that a district court resist the
understandable temptation to engage in post hoc reasoning
by concluding that, because a plaintiff did not ultimately
prevail, his action must have been unreasonable or without
foundation." Id. at 421-22. Such post hoc reasoning "would
substantially add to the risks inhering in most litigation
and would undercut the efforts of Congress to promote the
vigorous enforcement of the provisions of Title VII." Id. at
422. Thus, we have previously stated "It is clear from
Christiansburg that attorney's fees [to a prevailing Title VII
defendant] are not routine, but are to be only sparingly
awarded." Quiroga, 934 F.2d at 503.

Several courts of appeals have reversed fee awards to
prevailing defendants in lawsuits brought by the EEOC
where these guiding principles have been misapplied. See,
e.g., EEOC v. Bruno's Restaurant, 13 F.3d 285 (9th Cir.
1993); EEOC v. Reichhold Chems., Inc., 988 F.2d 1564
(11th Cir. 1993); EEOC v. Kenneth Balk & Assocs., Inc., 813
F.2d 197 (8th Cir. 1987); EEOC v. St. Louis-San Francisco
Ry. Co., 743 F.2d 739 (10th Cir. 1984). But see EEOC v.
_________________________________________________________________
1. The standard is the same when the Commission is the losing plaintiff.

                                7



Pierce Packing Co., 669 F.2d 605 (9th Cir. 1982)(affirming
award of attorney's fees to employer because the EEOC
"fail[ed] to comply with both its enabling act and its
regulations"). In contrast, "[c]ases where findings of
`frivolity' have been sustained typically have been decided in
the defendant's favor on a motion for summary judgment or
a . . . motion for involuntary dismissal. In these cases, the
plaintiffs did not introduce any evidence to support their
claims. [On the other hand, i]n cases where the plaintiffs
introduced evidence sufficient to support their claims,
findings of frivolity typically do not stand." Sullivan v.
School Bd., 773 F.2d 1182, 1189 (11th Cir. 1985)(citations
omitted).

In determining if an award of counsel fees to a Title VII
defendant is appropriate, courts should consider several
factors including "(1) whether the plaintiff established a
prima facie case; (2) whether the defendant offered to settle;
and (3) whether the trial court dismissed the case prior to
trial or held a full-blown trial on the merits." Id.2 These
factors are, however, guideposts, not hard and fast rules.
"Determinations regarding frivolity are to be made on a
case-by-case basis." Sullivan, 773 F.2d at 1189.

Even though an inquiry into an award of attorney's fees
to a Title VII defendant is individualized, specific examples
of awards that have been reversed assist in illustrating the
policy behind the rule enunciated in Christiansburg. EEOC
v. Kenneth Balk & Assocs., 813 F.2d 197 (8th Cir. 1987) is
one example. There, the EEOC filed a Title VII action on
behalf of a former employee alleging that the employer,
Kenneth Balk Associates ("KBA"), had discharged her on
the basis of race. The case was tried for three days before
being continued to permit the parties to conduct additional
discovery. The court then heard more evidence and granted
the parties time to file post-trial briefs and proposed
_________________________________________________________________

2. But see Greenberg v. Hilton Int'l Co., 870 F.2d 926, 940 (2d Cir.
1989)("Cases that are ultimately viewed as frivolous may well survive
motions to dismiss under a system of notice pleading that does not
require factual detail and even motions for summary judgment in which
the evidence may be presented in sketchy fashion and credibility may
not be taken into account.").

                                8
findings of fact and conclusions of law. Ultimately,
judgment was entered in favor of KBA; the court awarded
counsel fees; and the EEOC appealed.

The Court of Appeals for the Eighth Circuit ruled that the
district court had misapplied the Christiansburg standard.
The procedural history of the case suggested that the
EEOC's claim was not baseless as KBA neither sought a
pretrial dismissal nor moved for summary judgment or a
directed verdict. In addition, the district court had
permitted the parties to file post-trial briefs and proposed
factual and legal conclusions. Furthermore, the district
court's findings of fact and conclusions of law disclosed
that the court's ruling was based upon its credibility
determinations. See id. at 198. Thus, the record suggested
that the EEOC had some basis for its claim, and the court
of appeals reversed the award of counsel fees. See id. In
doing so, the court stated "[h]owever unpersuasive the
EEOC's evidence ultimately proved to be, this evidence
provided `some basis' for the EEOC's claim. Accordingly, the
district court misapplied the Christiansburg standard . . . ."
Id.; see also Bruno's Restaurant, 13 F.3d at 290 (concluding
that the "district court failed to exercise its discretion
within the permissible bounds of 42 U.S.C. S 2000e-5(k)
and within the requirements of Christianburg in awarding
fees on the ground that the EEOC presented no credible
evidence of discriminatory conduct").

IV.

Here, the EEOC alleged sex discrimination and illegal
retaliation against Wilson. We consider in turn the findings
the district court made with respect to each allegation to
determine whether those claims were "frivolous,
unreasonable, or without foundation."

A. Sex Discrimination Claim

The EEOC presented a classic pretext-based case of sex
discrimination. Wilson was obviously a member of a
protected class; she applied for a promotion for which she
was qualified; and the promotion went to a male. The
district court correctly concluded that these allegations

                                9



made out a prima facie case on behalf of Wilson. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). The EEOC then presented evidence that L.B.
Foster's proffered non-discriminatory explanation for its
decision to promote Hahn, the male applicant, over Wilson
was a fabrication. This included evidence "that Wilson had
greater management experience, that Wilson was assigned
a broader range of job duties, that Hahn had problems in
performing his job, and that Wilson, on occasion, had to
assist Hahn with his accounts." Appellant Br. at 17.
Clearly, a reasonable fact finder could conclude from this
evidence that L.B. Foster discriminated against Wilson on
the basis of sex. See Bray v. Marriott Hotels, 110 F.3d 986,
990 (3d Cir. 1997)("The inference [of pretext], along with the
components of the plaintiff 's prima facie case, allow a jury
to conclude that the employer was actually motivated by
illegal bias . . . ."); Sheridan v. E.I. DuPont de Nemours &
Co., 100 F.3d 1061, 1066-67 (3d Cir. 1996)(same), cert.
denied, 117 S. Ct. 2532 (1997).

It can hardly be said that the EEOC's claim was frivolous
merely because the court (sitting as the fact finder) rejected
the EEOC's evidence.3 See app. at 584 ("Wilson has not
established her burden of proving pretext under Hicks that
the company's articulated reasons for not promoting her
are false and that sex discrimination was the real reason.").
On the contrary, the EEOC's proof, if credited, would have
been sufficient to support a verdict in favor of the EEOC.
Accordingly, we cannot agree that the claim was frivolous
or without foundation. See Bruno's Restaurant, 13 F.3d at
_________________________________________________________________

3. The district court's conclusion that "the evidence clearly and
convincingly established that there was no sexual discrimination
involved in Foster's [decision]" suggests that it was persuaded by
Foster's
evidence that Minor had promoted and retained a number of female
employees. However, such evidence is not necessarily relevant to whether
the company discriminated against Wilson. See Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 579 (1978)(a racially balanced work force "cannot
immunize an employer from liability for specific acts of discrimination");
Bell v. Bolger, 708 F.2d 1312, 1318 (8th Cir. 1983)("Merely because
other members of a protected class . . . were recommended [for position
denied the plaintiff] does not demonstrate an absence of
discrimination.").

                                10



290 ("The district court failed to exercise its discretion . . .
within the requirements of Christianburg in awarding fees
on the ground that the EEOC presented no credible
evidence of discriminatory conduct." (emphasis added)).

Here, it appears that the district court "failed to heed the
Supreme Court's warning in Christiansburg against the
`temptation to engage in post hoc reasoning by concluding
that, because a plaintiff did not ultimately prevail, his
action must have been unreasonable or without
foundation.' " Id. at 290 (quoting Christiansburg, 434 U.S.
at 421-22). "Assessing fees against the EEOC simply
because it did not prevail undercuts the Congressional
effort `to promote the vigorous enforcement of the
provisions of Title VII.' " Bruno's Restaurant, 13 F.3d at 290
(quoting Christiansburg, 434 U.S. at 422). Accordingly, the
district court abused its discretion in awarding L.B. Foster
its fees for defending against the substantive claim under
Title VII.

B. Retaliation Claim

The EEOC's retaliation claim alleged that Minor refused
to provide a reference for Wilson after she had informed
him that she intended to file a discrimination claim. Wilson
apparently "assumed that [she] would get a reference just
like all of the other people who had been at Foster." App. at
110. However, when Johnston Pump sought a reference for
Wilson, Minor refused to provide one. See app. at 295. It is
not disputed that L.B. Foster had routinely provided such
references for others in the past.

In his deposition, Minor testified that the reason he did
not provide a reference for Wilson over the telephone was
that Linda Terpenning, who worked in the personnel
department, had instructed him to refer all such calls to
her. See app. at 100, 152. At trial, however, Minor testified
that his refusal had more to do with not wanting to hurt
Wilson by giving her a negative reference: "I felt that I
would only hurt Jo Ann by giving [Johnston Pump] a
truthful reference. . . . I discussed it with human resources
[ ] what would happen if someone called me because I didn't
want to hurt Jo Ann. It was decided the best thing for me

                                11



to do would be to refer [requests] to the human resources
area." App. at 295. Minor's testimony was directly
contradicted by Terpenning: "Q: Did you ever direct Mr.
Minor that reference calls should be directed to your
attention, reference calls for Wilson? A: For Wilson, no."
App. at 355 (Direct Examination of Terpenning). We have
previously stated that a district court can consider an
employer's inconsistent explanations for the adverse action
it took in determining whether that employer discriminated
against the plaintiff. See Waddell v. Small Tube Prods., Inc.,
799 F.2d 69, 73 (3d Cir. 1986). Inconsistencies are no less
relevant in adjudicating a claim of illegal retaliation under
Title VII.

Minor also testified that, when Johnston Pump called, he
did not believe that Wilson was still contemplatingfiling a
discrimination charge: "Jo Ann told me when she came in
the office the following Monday that she had decided that
she would no longer pursue [a sex discrimination charge]
and that was not a course of action she was taking. So,
when the call came from Johnston Pump, there was no
pending suit against L.B. Foster Company." App. at 293-94.
The district court apparently credited that testimony. See
app. at 589. However, Minor had taken notes in which he
recorded "she was considering filing a [discrimination]
charge." App. at 377.

On this record, the district court concluded that Wilson
had not established a prima facie case of retaliation
because she had not presented evidence of an adverse
employment action and, presumably on that basis, the
district court concluded that the EEOC's retaliation claim
was frivolous. We disagree.

The district court improperly focused on the action of the
prospective employer and not L.B. Foster in determining
whether the EEOC had presented evidence of an adverse
employment action. The district court concluded that
"[t]here is no evidence that Foster's response to the
telephone call from Johnston Pump negatively influenced
Wilson's application for employment with Johnston Pump."
App. at 588. However, that is not the proper test. 4 All that
_________________________________________________________________

4. L.B. Foster argues that, "[i]n a case in which a plaintiff alleges
denial
of a reference is retaliatory, the plaintiff must demonstrate that the

                                12



is required to establish a prima facie case of retaliatory
discrimination is proof (1) that the plaintiff engaged in
protected activity, (2) that the employer took an adverse
action against her, and (3) that a causal link exists between
the protected activity and the employer's adverse action.
Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173 (3d Cir.
1997). An employer who retaliates can not escape liability
merely because the retaliation falls short of its intended
result.

Here, the EEOC clearly established a prima facie case of
retaliatory discrimination. Wilson was engaged in protected
activity when she informed Minor that she intended to file
a sex discrimination charge. See Barber v. CSX Distribution
Servs., 68 F.3d 694, 702 (3d Cir. 1995)(describing indicia of
protected activity); Sumner v. United States Postal Serv.,
899 F.2d 203, 209 (2d Cir. 1990)(same). Wilson's
subsequent statement to Minor that she had changed her
mind about filing a charge does not negate her earlier
_________________________________________________________________

employer's denial of the reference caused an adverse employment
action," specifically that the prospective employer would have hired the
employee but for the absence of the reference. Appellee Br. at 34 (citing
Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1538 (11th Cir.
1990)). That contention is only true in circumstances--not present here
--where the plaintiff brings a damages claim against her former
employer. See id. at 2538 n.2 ("[I]n order to make out a damages claim
against the former employer whose blacklisting has prevented the ex-
employee from working elsewhere, the ex-employee would have to show
that a particular employer would have hired him but for the retaliatory
comments concerning his involvement in activity protected by Title VII."
(emphasis added)). The issue of whether Johnston Pump would have
hired Wilson is not at all relevant to whether L.B. Foster is liable for
retaliatory discrimination. See Hashimoto v. Dalton, __ F.3d __, 1997 WL
366013, at *3 (9th Cir. 1997)("There is little question that the
dissemination of adverse employment references can constitute a
violation of Title VII if motivated by discriminatory intent. Thus, it is
beside the point that Lowery's dissemination of the negative job reference
was not the reason Hashimoto did not get the job with the Army."
(internal quotations and citation omitted)); Smith v. Secretary of Navy,
659 F.2d 1113, 1120 (D.C. Cir. 1981)("An illegal act of discrimination
whether based on race or some other factor such as a motive of reprisal
is a wrong in itself under Title VII, regardless of whether that wrong
would warrant an award of [damages].").

                                13



protected activity and does not preclude the EEOC from
having established a prima facie case as to Minor's attempt
to retaliate for the threat. Wilson's purported change of
heart may have been relevant to the district court's
ultimate determination that the EEOC's evidence was not
sufficient to prevail on that claim, but it does not establish
that the claim itself was frivolous or unfounded.

The EEOC presented evidence that Minor had personally
given telephone references to prospective employers when
they called about former employees, and these references
went beyond merely providing dates of employment. App. at
293. In fact, such telephone references seemed a matter of
course until Johnston Pump sought one for Wilson.5

In addition Wilson's protected activity and Minor's refusal
to provide a reference are sufficiently close together to allow
a reasonable fact finder to find the required element of
causation. See Kachmar, 109 F.3d at 177 ("Cases in which
the required causal link has been at issue have often
focused on the temporal proximity between the employee's
protected activity and the adverse employment action,
because this is an obvious method by which a plaintiff can
proffer circumstantial evidence `sufficient to raise the
inference that her protected activity was the likely reason
for the adverse action.' ").

Nevertheless, the district court concluded that"[b]ecause
Foster provided a telephone reference which confirmed
Wilson's dates of employment, and it is undisputed that
Minor would have given Wilson a poor recommendation due
to the circumstances under which she left, plaintiffs have
not established that Foster took adverse action against
Wilson." App. at 588. However, given the inconsistencies in
Minor's testimony, the company's conduct on behalf of
other employees, and the temporal proximity of Wilson's
threat and Minor's refusal to provide a reference, the
EEOC's allegation of illegal retaliation is clearly not
_________________________________________________________________

5. The district court found that Minor provided such references for only
two types of employees, those who had previously informed Minor that
they had given his name as a reference and those employees who had
been laid off in 1986. App. at 577. Minor's own testimony, however, does
not suggest these limits. See app. at 293.

                                14



frivolous. See Clark v. Township of Falls, 890 F.2d 611,
618-19 (3d Cir. 1989)("[A] wide panoply of adverse
employment actions may be the basis of employment
discrimination suits under Title VII of the Civil Rights Act
. . . .").

We offer no opinion on whether this evidence was
sufficient to carry the day but merely point out that it was
enough to establish a prima facie case of retaliatory
discrimination. Accordingly, we conclude that there was
some factual basis for the EEOC's retaliation claim, and the
district court therefore abused its discretion in awarding
L.B. Foster its fees on that claim. See EEOC v. Reichhold
Chems., Inc., 988 F.2d 1564, 1572 (11th Cir.
1993)(concluding that, where plaintiff met her initial
burden of establishing a prima facie case of retaliatory
discrimination, "[that claim was] not frivolous and the
district court abused its discretion in awarding fees against
the EEOC").

C. Request for Back Pay

The district court's only explicit finding of frivolity related
to the EEOC's request for back pay. See Addendum at 4.
The EEOC contended that "Wilson was entitled to full back
pay for the post-resignation period because she would not
have left her job if not for the discriminatory denial of
promotion."6 Appellant Br. at 26. The district court
regarded this contention as frivolous since Wilson was not
constructively discharged. See Addendum at 4 ("The
EEOC's arguments that Wilson was entitled to back pay
even though she was [not] constructively discharged were
frivolous.").

The constructive discharge rule to which the court was
referring provides that "employees are entitled to awards
_________________________________________________________________

6. Originally, the EEOC sought back pay "based solely on the difference
between the amount that Wilson would have received had she been
promoted and the amount that she made as regional credit manager."
Appellant Br. at 26. It later amended its request to conform to Wilson's
requested relief for the full amount she would have received as regional
credit manager had she not resigned. See Appellant Br. at 26.

                                15



such as back pay past the date of resignation and
reinstatement only if they were actually or constructively
discharged from their employment." Ezold v. Wolf, Block,
Schorr & Soliscohen, 758 F. Supp. 303, 307 (E.D. Pa. 1991),
rev'd, 983 F.2d 509 (3d Cir. 1992). The rationale behind
this rule is that " `society and the policies underlying Title
VII will be best served if, wherever possible, unlawful
discrimination is attacked within the context of existing
employment relationships.' " Id. Courts of appeals "have
been nearly unanimous in their application of the
constructive discharge rule, whereby victorious Title VII
plaintiffs who have left their employment with the
defendant but who were not constructively discharged by
the defendant are only entitled to a remedy covering the
period during which the discrimination occurred up to the
date of resignation." Id. at 306. However, one court of
appeals has held that a back pay award is proper, whether
or not the employer was constructively discharged, when
the employee "end[s] his employment for reasons beyond
his control, reasons which were causally linked to the
[employer's] wrongful denial of a promotion." Wells v. North
Carolina Bd. of Alcoholic Control, 714 F.2d 340, 342 (4th
Cir. 1983)(upholding back pay award to employee who
terminated his stock-clerk position after he was wrongfully
denied a promotion to sales clerk and his employer refused
his request for lighter duties to accommodate a work-
related back injury); see also Helbling v. Unclaimed Salvage
& Freight Co., Inc., 489 F. Supp. 956, 963 (E.D. Pa.
1980)(rejecting notion that the back pay award to an
employee discriminatorily denied a promotion on the basis
of her gender should terminate on the date of her
resignation)("The back pay award, therefore, must be based
on the period running from the date she should have been
promoted to manager to the date the store closed-- the
period it can be assumed she would have held the job to
which she was entitled.").

This Court has not yet taken   a position under the
circumstances here where the   claim of constructive
discharge is absent. We have   merely recognized that
"[c]lassifying a termination   as a constructive discharge
rather than a voluntary quit   has significant ramifications
with respect to the scope of   relief." Goss v. Exxon Office

                                  16



Sys. Co., 747 F.2d 885, 887 (3d Cir. 1984). Since we have
not yet ruled on this precise issue and since one of our
sister courts of appeals has ruled that back pay would be
recoverable under the facts alleged by the EEOC, the
district court's determination that the EEOC's request for
back pay was frivolous cannot stand.

V.

For the reasons set forth above, we will reverse the
district court's order dated June 20, 1996 granting L.B.
Foster its attorney's fees.

A True Copy:
Teste:

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

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