                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-20-2005

Fornicoia v. Haemonetics Corp
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2873




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                                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                     NO. 04-2873
                                     ___________

                                 LISA K. FORNICOIA

                                                             Appellee
                                           v.

                          HAEMONETICS CORPORATION

                                                             Appellant

                                     ___________

                    Appeal from a Judgment for the Plaintiff in the
          United States District Court for the Western District of Pennsylvania
                                   (No. 99-cv-01177)
                      District Judge: Honorable Gary L. Lancaster
                                      ___________

                                  Argued May 4, 2005

          BEFORE: McKEE, VAN ANTWERPEN and WEIS, Circuit Judges

                                 (Filed May 20, 2005)

Richard J. Antonelli (Argued)
Rebecca J. Dick-Hurwitz
Spilman Thomas & Battle, PLLC
Suite 3440, One Oxford Centre
Pittsburgh, PA 15219

Counsel for Appellant


Michael E. Hoover (Argued)
Charles E. Boyle
Diefenderfer Hoover Boyle & Wood
1420 Grant Building
Pittsburgh, PA 15219

Counsel for Appellee

                                       __________

                                        OPINION
                                       __________

VAN ANTWERPEN, Circuit Judge

          I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       Because we write only for the parties, we recount only the facts relevant to our

decision. Appellee Lisa Fornicoia began her employment with Appellant Haemonetics

Corporation on November 2, 1992, as a Clinical Specialist. In 1993 she was transferred

to the company’s Life Support Division where her title was changed to Manager, Clinical

Services. In this new position, she reported directly to John Teutsch. Teutsch reported to

Gary Stacey who had overall responsibility for the Life Support Division.

       Fornicoia alleged that between May 1994 and February 1997, Teutsch engaged in

behavior that she found sexually harassing and dangerous. This included inappropriate

touching; diverting conversations to personal, intimate or sexual topics; sending her and

her daughter gifts; appearing before her partially clothed; and implying that he wanted to

hurt her, her family or himself. In October 1994, Fornicoia approached Stacey, and later

Alicia Lopez, Haemonetic’s General Counsel and Human Resources Director, and shared



                                             2
her concerns about Teutsch’s behavior.

       Lopez determined that Teutsch had not sexually harassed Fornicoia, but still

referred Teutsch to a forensic psychologist for evaluation. Based on his report and other

information they had gathered, Lopez and Stacey changed the reporting relationship so

that Fornicoia no longer reported to Teutsch. They also directed that Teutsch channel all

correspondence to Fornicoia through Stacey’s office and instructed the two not to take

business trips together.

       Fornicoia alleged that Teutsch continued to harass her and that she made a

complaint in May 1995. Stacey and Lopez did not recall this complaint, but agreed that

Fornicoia did complain again on January 14, 1997. Based on this complaint, Lopez again

determined that Teutsch’s behavior did not constitute sexual harassment but agreed that

Fornicoia and Teutsch could not work together. Stacey sent a letter to Teutsch dated

January 28, 1997 re-emphasizing that he was to have no contact with Fornicoia.

       About a month later, Stacey advised Fornicoia that Haemonetics was reorganizing

and that she was being laterally moved to the position of Clinical Specialist. In her new

position, she would have the same pay and would not be required to relocate, but would

have to report to the training organization in Tucson, Arizona. Fornicoia shortly

thereafter gave notice of her resignation on March 22, 1997.

       Fornicoia filed suit against Haemonetics in the United States District Court for the

Western District of Pennsylvania. In her suit, she asserted claims of sexual harassment,



                                             3
retaliation and constructive discharge under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, et seq. A jury trial commenced on September 15, 2003, and concluded

on September 22. The jury found in favor of Fornicoia on her sexual harassment claim

and in favor of the Haemonetics on her retaliation and effective discharge claims.

                 II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. §

2000e-5(f)(3). This Court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.

We exercise de novo review over the legal accuracy of the District Court’s jury

instructions, Citizens Fin. Group, Inc. v. Citizens Nat. Bank, 383 F.3d 110, 133 (3d Cir.

2004), and review the District Court’s rulings regarding the admission of evidence for

abuse of discretion, Glass v. Phila. Elec. Co., 34 F.3d 188, 191 (3d Cir. 1994).

                                      III. ANALYSIS

       Haemonetics raises two issues on appeal. First, Haemonetics claims that the

District Court misstated the standard for employer liability when an employee is sexually

harassed by a supervisor. According to Haemonetics, the District Court failed to inform

the jury that Haemonetics was entitled to assert affirmative defenses if Fornicoia did not

suffer a tangible job detriment. Haemonetics also claims that the District Court misstated

the standard for co-worker liability by improperly placing the burden of proof on the

defense. Finally, Haemonetics insists that it is entitled to a new trial because the District

Court improperly allowed testimony that was irrelevant, and if not irrelevant, more



                                              4
prejudicial than probative.

       We agree that the District Court’s jury instructions were erroneous, and therefore

we will reverse the order of the District Court and remand for a new trial.

                                A. The Jury Instructions

       When examining an allegedly erroneous jury instruction, we must “determine

whether the charge, taken as a whole and viewed in the light of the evidence, fairly and

adequately submits the issues in the case to the jury.” Ayoub v. Spencer, 550 F.2d 164,

167 (3d Cir. 1977). When jury instructions “fail to advise, or misadvise, a jury of

concepts it needs to know to properly discharge its duties” we must remand the case for a

new trial. Dressler v. Busch Entm’t Corp., 143 F.3d 778, 783 (3d Cir. 1998).

       Haemonetics argues that the District Court erroneously charged the jury on

Fornicoia’s sexual harassment claim. Because the parties disputed whether Teutsch was

Fornicoia’s supervisor when the alleged harassment took place, the District Court charged

the jury with two sets of instructions depending on their factual findings. We address

each in turn.

                                  1. Supervisor Liability

       Haemonetics argues that the District Court incorrectly explained the legal standard

for imposing liability on Fornicoia if the jury found that Teutsch was Fornicoia’s

supervisor. The District Court stated:

       If you find from the evidence that Mr. Teutsch was plaintiff’s supervisor
       during the relevant period, then the defendant is liable for his conduct. And

                                             5
       it is liable for his conduct whether senior management officials, in this case,
       Lisa Lopez or Gary Stacey, were aware of his [conduct or] not. This is called
       strict liability. That is, if plaintiff establishes that Mr. Teutsch was her
       supervisor, then defendant is liable for his conduct, regardless of whether they
       were aware of his conduct or not, or even if they were aware of it and took
       reasonable steps to stop it.

Joint App. vol. III at 762a.

       The District Court’s instruction directly contradicts the Supreme Court’s opinion

in Faragher v. City of Boca Raton, 524 U.S. 775, 792 (1998), which reaffirmed that “Title

VII does not make employers ‘always automatically liable for sexual harassment by their

supervisors,’ ibid., contrary to the view of the Court of Appeals, which had held that ‘an

employer is strictly liable for a hostile environment created by a supervisor’s sexual

advances, even though the employer neither knew nor reasonably could have known of

the alleged misconduct,’ id., at 69- 70, 106 S.Ct., at 2406-2407.” (citing Meritor Sav.

Bank, FSB v. Vinson, 477 U.S. 57, 69-70 (1986)). The correct standard was set out by

the Court as follows:

       An employer is subject to vicarious liability to a victimized employee for an
       actionable hostile environment created by a supervisor with immediate (or
       successively higher) authority over the employee. When no tangible
       employment action is taken, a defending employer may raise an affirmative
       defense to liability or damages, subject to proof by a preponderance of the
       evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary
       elements: (a) that the employer exercised reasonable care to prevent and
       correct promptly any sexually harassing behavior, and (b) that the plaintiff
       employee unreasonably failed to take advantage of any preventive or
       corrective opportunities provided by the employer or to avoid harm otherwise.
       . . . No affirmative defense is available, however, when the supervisor's
       harassment culminates in a tangible employment action, such as discharge,
       demotion, or undesirable reassignment. See Burlington, 524 U.S., at 762-763,

                                              6
       118 S.Ct., at 2269.

Faragher, 524 U.S. at 807-08.

       The jury was not asked consider whether Fornicoia suffered a tangible

employment action, nor was it given instructions on Haemonetics’ right to assert an

affirmative defense had Fornicoia not suffered a tangible employment action. Given that

the jury found that Fornicoia did not suffer retaliation or constructive discharge, it may

also have found that Fornicoia did not suffer a tangible employment action. If this was

the case, the jury was obligated to consider Haemonetics’ affirmative defenses.

                                      2. Co-Worker Liability

       The District Court also misstated the standard for co-worker liability by improperly

placing the burden of proof on the defendant. The District Court explained the standard

for co-worker liability as follows:

      On the other hand, if you find from the evidence that Mr. Teutsch was not
      plaintiff’s supervisor, but merely a co-worker, then defendant is entitled to
      assert certain defenses. Defendant neither knew or nor, with reasonable
      diligence, should have known of his conduct; or, two, once defendant learns of
      the conduct, they took appropriate remedial action to stop it; and plaintiff
      unreasonably failed to take advantage of any preventive or corrective
      opportunities provided by the employer and to avoid harm, otherwise.

      I am going to go over each of these defenses in more detail. Be mindful that
      the defendant has the burden of proving these defenses by a preponderance of
      the evidence.

Joint App. vol. III at 763a.

       The District Court mischaracterized the standard of liability as an affirmative



                                                7
defense. In order to impose liability on an employer for one co-worker’s sexual

harassment of another (where the harassing employer is not in a supervisory position over

the victim), the plaintiff must demonstrate that “‘the defendant knew or should have

known of the harassment and failed to take prompt remedial action.’” Kunin v. Sears

Roebuck and Co., 175 F.3d 289, 293-94 (3d Cir. 1999) (quoting Andrews v. City of

Philadelphia, 895 F.2d 1469, 1482 (3d Cir.1990). This is not an affirmative defense, but

rather the burden of the plaintiff. See Kunin, 175 F.3d at 294. If the jury found that

Teutsch was not Fornicoia’s supervisor, but merely her co-worker when he harassed her,

Fornicoia had the burden of demonstrating that Haemonetics knew or should have known

of the harassing conduct and failed to act.

       It appears that the District Court intertwined the standards of liability for

supervisor and co-worker sexual harassment and thereby failed to properly instruct the

jury on the issue. Because the jury instructions did not fairly and adequately advise the

jury on the standards of liability, we must remand for a new trial consistent with this

opinion.

                              B. The Admission of Evidence

       We are troubled by the admission of what appears to be hearsay evidence that

Teutsch allegedly made a harassing remark to another employee approximately two years

after Fornicoia left Haemonetics. We also question the relevance of the testimony, see




                                              8
Fed. R. Evid. 402,1 and further note that, even if relevant, it is difficult to see how its

probative value outweighs its prejudicial effect and tendency to confuse the issues, see

Fed. R. Evid. 403.2 Therefore, we briefly address this matter so as to offer guidance to

the District Court in conducting the new trial.

       The District Court allowed Fornicoia to present evidence that, in 1999, an

employee named Lisa Lovis complained about Teutsch’s behavior. Lopez testified that

Lovis complained that she was offended when Teutsch “either said something or made

some explicit gesture about her in the company of others.” (Appellant App. at 486a.)

This complaint apparently led Haemonetics to review Teutsch’s performance and

professionalism, and eventually resulted in his termination.

       The District Court allowed the testimony for the purpose of establishing that the

workplace was hostile. Following the testimony, the trial judge explained to the jury that

the testimony was allowed, “for a limited purpose only, in order for the plaintiff to

establish her claim, she must establish that the behavior she complains of would be

offensive to an objectively reasonable person.” (Appellant App. at 489a-90a.)



   1
     “All relevant evidence is admissible, except as otherwise provided by the
Constitution of the United States, by Act of Congress, by these rules, or by other rules
prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not
relevant is not admissible.” Fed. R. Evid. 402.
   2
     “Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Fed. R. Evid. 403.

                                               9
       This Court has upheld the admission of evidence of other acts of sexual

harassment where the evidence may be “probative as to whether the harassment was

sexually discriminatory” and “may help the jury interpret otherwise ambiguous acts.”

Hurley v. Atlantic City Police Dept., 174 F.3d 95, 111 (3d Cir. 1999). However, even

relevant evidence may be excluded under Rule 403 “if its probative value is substantially

outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403. “[Evidence] is

unfairly prejudicial if it ‘appeals to the jury's sympathies, arouses its sense of horror,

provokes its instinct to punish,’ or otherwise ‘may cause a jury to base its decision on

something other than the established propositions in the case.’” Carter v. Hewitt, 617

F.2d 961, 972 (3d Cir. 1980) (quoting 1 J. Weinstein & M. Berger, Weinstein’s Evidence

P 403(03), at 403-15 to 403-17 (1978)).

       Fornicoia introduced evidence that another employee complained about a single

offensive comment in front of co-workers or customers nearly two years after Fornicoia

left Haemonetics. This evidence sheds no light on whether Fornicoia was objectively

reasonable in finding Teutsch’s inappropriate touching, continual advances, or erratic

behavior offensive. Given the length of time between the complaints, the dissimilarity

between the complained of acts, and the likelihood that this additional evidence will at

least minimally prejudice the jury, we believe this evidence should have been excluded.

                                    IV. CONCLUSION

       For the reasons set forth above, we reverse the Order of the District Court and



                                              10
remand for a new trial consistent with this opinion.




                                            11
