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


4-3-1997

Woodson v. Scott Paper Co
Precedential or Non-Precedential:

Docket 95-1758




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                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                          _________________

                             NO. 95-1758
                          _________________

                          JAMES W. WOODSON,

                                      Appellee

                                  v.

                          SCOTT PAPER CO.,

                                      Appellant

                ___________________________________

         On Appeal From the United States District Court
            For the Eastern District of Pennsylvania
                   (D.C. Civ. No. 93-cv-06076)
               ___________________________________

                         Argued: May 15, 1996

      Before:    BECKER, NYGAARD, and LEWIS, Circuit Judges.

                       (Filed   April 3, l997)



STEVEN R. WALL, ESQUIRE (ARGUED)
JULIE A. UEBLER, ESQUIRE
Morgan, Lewis & Bockius
2000 One Logan Square
Philadelphia, PA 19103

Attorneys for Appellant
Scott Paper Company

ALAN B. EPSTEIN, ESQUIRE (ARGUED)
Jablon, Epstein, Wolf & Drucker
The Bellevue, Ninth Floor
Broad and Walnut Streets
Philadelphia, PA 19102

Attorneys for Appellee
James W. Woodson




                                  1
                     _______________________

                       OPINION OF THE COURT
                     _______________________

BECKER, Circuit Judge.


     James W. Woodson, an African-American male, brought suit

against Scott Paper Company claiming that he was a victim of

unlawful racial discrimination and retaliation in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq., and the Pennsylvania Human Relations Act, 43 Pa. C.S. § 951

et seq.   The jury found for Scott on the discrimination claims,

but for Woodson on the retaliation claims, and made a large

damages award.   This appeal by Scott from the denial of its post-

trial motions presents three issues.

     First, Scott contends that the evidence was insufficient as

a matter of law to establish that Woodson was terminated in

retaliation for filing discrimination charges with the Equal

Employment Opportunity Commission (“EEOC”) and the Pennsylvania

Human Relations Commission (“PHRC”).   Some two years passed

between the complaints and his termination.    According to Scott,

the jury could not have reasonably found a “causal link” between

the complaints and Woodson’s discharge because the evidence fails

to support a pattern of antagonistic behavior by Scott that links

the complaints and the termination, which we have required in

cases in which the two events are temporally remote.   Although

the question is close and no piece of evidence alone is

sufficient to support a causal link finding, we will reject

Scott’s contention that judgment as a matter of law was




                                2
improperly denied and affirm the denial of the Rule 50 motion in

this respect because the evidence, when considered in its

entirety, is sufficient to establish a causal link.

     Scott’s second contention is that, because no verified

complaint was filed with the PHRC, judgment should be entered in

its favor on Woodson’s retaliation claim under the Pennsylvania

Human Relations Act (“PHRA”) and, concomitantly, that Woodson’s

verdict is subject to the $300,000 damages cap of Title VII, 42

U.S.C. § 1981a(b)(3).   We agree.   The worksharing agreement

between the PHRC and the EEOC does not operate to satisfy the

PHRA’s filing requirement.   Moreover, the district court erred in

holding that Woodson was excused from the filing requirement

under the doctrine of “equitable filing,” even if we were to

predict that the Pennsylvania Supreme Court would adopt such a

doctrine.   Hence we will reverse the district court’s denial of

Scott’s Rule 50 motion in this respect and direct the district

court to enter judgment in Scott’s favor on Woodson’s PHRA

retaliation claim.

     Finally, Scott appeals from the denial of its motion for a

new trial under Fed. R. Civ. P. 59, and makes two separate claims

of error in the jury instructions.    First, it contends that the

district court incorrectly instructed the jury that racist

graffiti that appeared in a bathroom at Scott’s Chester plant was

“direct evidence” of Scott’s unlawful motive.    We conclude that

the district court erred in charging the jury as such; the charge

was misleading on several levels, and the graffiti incident can,

at most, constitute circumstantial evidence of Scott’s



                                3
retaliatory motive.     Second, Scott contends that the district

court erred in charging the jury that retaliation need only be a

“motivating factor” in Woodson’s discharge in order to find in

Woodson’s favor, and that the jury should have been instructed

that retaliation must have had a “determinative effect” on the

decision to fire Woodson.     Because we hold that the “motivating

factor” standard of § 107 of the Civil Rights Act of 1991 does

not apply to retaliation claims, we necessarily conclude that the

determinative effect standard, established in Miller v. CIGNA

Corp., 47 F.3d 586, 595 (3d Cir. 1995) (en banc), governs this

case.   Moreover, the jury charge errors were not harmless.      For

these reasons, we will affirm in part and reverse in part, and

remand for a new trial on Woodson’s retaliation claim.

                 I.    Facts and Procedural History

     Woodson joined Scott in 1970 as a Chemical Material

Specialist at the company's Philadelphia, Pennsylvania

headquarters.   Within six months, he was promoted to the position

of Wet End Specialist.     In 1973, Woodson received his second

promotion (to Process Engineer) and was transferred to Scott’s

plant in Detroit.     He remained in Detroit until 1978, having

advanced to the position of Technical Director.       After a brief

return to Pennsylvania (this time to Scott's Chester plant),

Woodson was promoted to Finishing Superintendent and relocated to

Michigan.

     In 1981, Woodson's wife unexpectedly died in surgery leaving

him to raise a young son and nephew.     He requested a transfer to

the Philadelphia area in order to be closer to his family.       In



                                  4
1983, Scott found him a position in Chester, but it required a

demotion to Paper Mill Technical Manager for the plant.   Woodson

accepted the position.

     Woodson was successful at the Chester plant.   In his 1986

performance evaluation, he received a ranking of “8" out of a

possible 10 points from his supervisor, who praised his strengths

as both a team player and a leader.   Woodson was promoted to

Technology Manager in 1987 and received a performance rating of

"highly successful" in that position in 1987, 1988, and 1989.     In

1989, he received an award for his involvement in an innovative

plant project.   He received raises in both 1989 and 1990.

     Beginning in 1988, Woodson applied unsuccessfully for

numerous product system leader positions.   In November 1989, and

again in February 1990, frustrated with Scott's failure to

promote him, he filed charges of discrimination against Scott

with both the EEOC and the PHRC, alleging that Scott had failed

to promote him because of his race.

     Scott maintains that Woodson was not promoted to product

system leader in 1988 because he performed poorly in an interview

for that position.   In addition, Scott points out that Woodson’s

1988 performance evaluation, prepared at the beginning of 1989,

reported that he had “problems communicating with some peers and

superiors diminishing his effectiveness.    Does more telling than

selling thereby creating conflict.”   Both Woodson and John

Zohlman, Scott's Director of Human Resources for Manufacturing

and Logistics, testified that, in May or June 1989, before

Woodson filed his complaints, Zohlman suggested that Woodson



                                5
consult with a behavioral psychologist, Dr. Bell, to improve his

working relationships.   Woodson’s 1989 performance evaluation,

prepared in 1990 after he had filed his first complaint,

recommended that Woodson work with an outside consultant “to

evaluate and improve perception by superiors.”

     In October 1990, Woodson was awarded one of the three open

product system leader positions, in the Light Weight Wet

Strength--Napkins division.   In this capacity, he reported to

James Peiffer, the Chester Plant Manager.1   Peiffer testified

that Woodson was awarded the napkin line position because “the

napkins was a good fit for him,” and Woodson testified that he

was "probably the only person at Scott Paper who could turn

napkins around."   Of the three divisions with open positions, the

napkin line division was the smallest and worst performing.

     Woodson testified that, after receiving this promotion,

Zohlman called to congratulate him.   During the course of that

conversation, Zohlman suggested that Woodson drop his

administrative complaints: “[Zohlman] basically, in passing

comment, suggested that okay, now that I was a product system

leader, I ought to focus my attention in that direction toward--

as opposed to the EEO suits and perhaps I should drop the suits.”

     Woodson claims that, as product system leader, he repeatedly

requested more workers and more management support, but that

these requests were denied until October 1991, just months before

     1
      Peiffer reported to Thomas Czepiel and William Wadsworth,
who participated in the “forced ranking” that led to Woodson’s
dismissal.




                                6
his discharge.   Woodson also continued to seek further

promotions, but testified that he felt blocked.

     In June or July 1991, during Woodson’s tenure as product

system leader, graffiti was spray-painted on the wall of a men’s

bathroom in the Chester plant.   That graffiti stated -- "Nigger,

I'm going to get you," "Niggers are taking our jobs," and

"Niggers who talk are Niggers who hang."   At the time, Woodson

was the only new black management employee, and the only one who

had "talked" -- i.e., filed a claim of discrimination.    Scott

immediately hired a private investigator to explore the incident,

and sent out a letter to employees condemning the graffiti.

Scott also formed a task force, which hired an outside consultant

and prepared a survey of employees to explore the issues raised

by the graffiti.    The parties, however, dispute the adequacy of

Scott’s response:   Diversity training was not implemented until

after Woodson left Scott’s employ, and Woodson testified that to

his knowledge Scott took no action in response to the graffiti,

other than the letter to employees.

     In the fall of 1991, Scott initiated a reorganization and

cost reduction program.   Pursuant to the plan, Scott implemented

a “forced ranking” of all employees.   On November 19, 1991,

Thomas Czepiel (Vice President for Manufacturing Operations),

William Wadsworth (Vice President, Asset Optimization), and

Edward Goldberg (Vice President of Manufacturing Development) met

to evaluate twenty-seven managers -- both product system leaders

and other managers with similar duties.    The ranking procedures

were designed by Czepiel, Wadsworth, and Zohlman (though Zohlman



                                 7
took no part in the actual evaluation).   After the evaluations,

Woodson was ranked twenty-fifth even though his annual

evaluations were better than or comparable to those of a number

of managers ranked above him.   The bottom five individuals were

selected for termination, and on January 27, 1992, Woodson was

informed that he had lost his job.

     Wadsworth and Goldberg admitted that they had little first-

hand knowledge about Woodson's performance and did not review his

personnel file in making their evaluations.   Both Wadsworth and

Czepiel testified that they were aware at the time of the ranking

that Woodson had filed discrimination charges.   Czepiel described

in an affidavit the decision reached by the group:
Our decision that Mr. Woodson’s job skills were less than
     satisfactory was based on our agreement that Mr. Woodson did
     not understand and had not adopted the philosophy of the AO
     organization because he refused to disassociate himself from
     a hierarchical individualistic management strategy, thus
     remaining an ineffectual team leader. As a result Mr.
     Woodson had in our view isolated himself from the members of
     his product system team, stifled participation and
     coordination between and among those individuals and created
     a barrier to the development of the AO concept at the
     Chester plant. In fact, Mr. Woodson was in my view
     borderline insubordinate in his rejection of the
     organization and cultural changes that Scott was trying to
     implement as part of the AO concept. Messrs. Wadsworth,
     Goldberg and I were also aware of the disappointing
     performance of Mr. Woodson’s product system since he assumed
     leadership of that system in October of 1990. (emphasis
     added)


As Czepiel described it at trial, the “AO concept” was an attempt

at the plant to move away from hierarchical forms of organization

to a system in which “people took greater accountability and

initiative in doing their work.”

     The memorandum that outlined the downsizing process stated




                                8
that “[i]n developing these ratings, consideration should be

given to 1990 and anticipated 1991 performance ratings.    Major

discrepancies between job skill ratings and these performance

ratings will need to be explained.”   The discrepancy between

Woodson's successful prior record of achievement and his poor

ranking was not raised in the Corporate Review Committee -- a

group charged with looking at the results of the forced ranking

and overruling any incongruous termination decisions -- even

though Zohlman testified that the memorandum meant that any

discrepancies needed to be explained to the Corporate Review

Committee.

     According to Scott, 259 employees were terminated in the

reorganization through this procedure.   Woodson, in response,

claims that he and the only other African-American product system

leader were the only two product system leaders terminated.

     In November 1993, Woodson instituted the present action

against Scott in the District Court for the Eastern District of

Pennsylvania, alleging that he was a victim of unlawful racial

discrimination and retaliation in violation of Title VII and the

PHRA.   The case came up on trial in February 1995.   Before the

case was submitted to the jury, Scott moved for judgment as a

matter of law, Fed. R. Civ. P. 50(a), on two grounds: (1)

Woodson's PHRA claim failed as a matter of law because, as he had

admitted, no verified complaint was ever filed with the PHRC; and

(2) insufficient record evidence existed from which a jury could

conclude that Woodson was terminated in retaliation for filing

discrimination charges two years before his termination.



                                9
     The district court denied Scott's motion and submitted

Woodson's case to the jury.   The jury returned a verdict in

Woodson's favor on the retaliation claims under Title VII and the

PHRA and awarded him the stipulated amount of $150,000 in past

earnings, $397,845 in future earnings, $10,000 for emotional

distress, and $1,000,000 in punitive damages.   The jury found for

Scott on the discrimination claims, and that finding is not

contested on appeal.

     After the jury verdict, Scott renewed its motion for

judgment as a matter of law, Fed. R. Civ. P. 50(b), reasserting

the arguments made in its earlier motion.   Scott also moved for a

new trial, Fed. R. Civ. P. 59, based on what it believed to be

erroneous and prejudicial jury instructions given by the district

court.   The court denied Scott's motions, Woodson v. Scott Paper

Co., 898 F. Supp. 298 (E.D. Pa. 1995), and Scott now appeals on

four separate grounds:   (1) the district court erred in denying

Scott's motion for judgment as a matter of law on Woodson's

retaliation claims because the evidence was insufficient to show

a causal link between Woodson's 1989 and 1990 discrimination

complaints and his 1992 firing; (2) the district court erred in

denying Scott's motion for judgment as a matter of law on

Woodson's retaliation claim under the PHRA because Woodson failed

to exhaust his administrative remedies under the Act; (3) the

district court should have granted Scott's motion for a new trial

because it improperly instructed the jury that the racial

graffiti that appeared in the bathroom of the Chester plant was

"direct" evidence of Scott's unlawful motive; and (4) the



                                10
district court should have granted Scott's motion for a new trial

because it incorrectly instructed the jury that retaliation need

only be a "motivating factor" for the termination in order to

find for Woodson instead of charging that retaliation must have

had a “determinative effect” on the decision.

      The district court exercised jurisdiction under 28 U.S.C. §§

1331 and 1367(a), and we have appellate jurisdiction over the

final order under 28 U.S.C. § 1291.      We exercise plenary review

over Scott’s first two claims.   Lightning Lube, Inc. v. Witco

Corp, 4 F.3d 1153, 1166 (3d Cir. 1993).      A motion for judgment as

a matter of law “should be granted only if viewing all the

evidence which has been tendered and should have been admitted in

the light most favorable to party opposing the motion, no jury

could decide in that party’s favor.”      Watters v. City of

Philadelphia, 55 F.3d 886, 891 (3d Cir. 1995) (citation and

internal quotation marks omitted).

     I.   I.   Sufficiency of Evidence Supporting Woodson's

Retaliation                                                             Claim

A.    Introduction

      Section 704(a) of Title VII forbids an employer from

discriminating against an employee “because he has opposed any

practice made an unlawful employment practice by this subchapter,

or because he has made a charge, testified, assisted, or

participated in any manner in an investigation . . . under this

subchapter.”   42 U.S.C. § 2000e-3(a).    It is similarly unlawful

under § 5(d) of the PHRA for an employer “to discriminate in any

manner against any individual because such individual has opposed



                                 11
any practice forbidden by this act, or because such individual

has made a charge . . . under this act.”    43 Pa. C.S. § 955(d).

     The allocation of the burden of proof for both the federal

and state retaliation claims follows the familiar Title VII

standards.   Griffiths, 988 F.2d at 468; Waddell v. Small Tube

Products, Inc., 799 F.2d 69, 73 (3d Cir. 1986).    These standards

will vary depending on whether the suit is characterized as a

“pretext” suit or a “mixed motives” suit.   For Woodson’s

retaliation claim, which has proceeded under a “pretext” theory,

the standards have been laid out in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), Texas Department of Community Affairs

v. Burdine, 450 U.S. 248 (1981), and St. Mary’s Honor Center v.

Hicks, 113 S. Ct. 2742 (1993).

     The plaintiff first must establish a prima facie case of

retaliation: he must show that (1) he was engaged in protected

activity; (2) he was discharged subsequent to or

contemporaneously with such activity; and (3) there is a causal

link between the protected activity and the discharge.   Quiroga

v. Hasbro, Inc., 934 F.2d 497, 501 (3d Cir. 1991); Jalil v. Avdel

Corp., 873 F.2d 701, 708 (3d Cir. 1989).2   The issue here
     2
      If the plaintiff succeeds, the burden of production shifts
to the defendant to “articulate some legitimate,
nondiscriminatory reason” for its actions. McDonnell Douglas,
411 U.S. at 802; Burdine, 450 U.S. at 252-55; Fuentes v. Perskie,
32 F.3d 759, 763 (3d Cir. 1994). The defendant’s burden at this
stage is relatively light: it is satisfied if the defendant
articulates any legitimate reason for the discharge; the
defendant need not prove that the articulated reason actually
motivated the discharge. Fuentes, 32 F.3d at 763. At this
point, the presumption of discrimination drops from the case.
Id. To prevail at trial, the plaintiff must convince the
factfinder “both that the reason was false, and that
discrimination was the real reason.” Hicks, 113 S. Ct. at 2748;



                                 12
concerns whether Woodson has presented sufficient evidence from

which a jury could reasonably find a prima facie case of

retaliation.

     Scott concedes that the evidence presented at trial was

sufficient to satisfy two of the three components of the prima

facie case: Woodson engaged in protected activity -- the filing

of race discrimination charges with the EEOC and the PHRC -- and

he was discharged after he engaged in that activity.   Scott

contends, however, that the record is devoid of evidence from

which a reasonable jury could find the requisite causal link

between the protected activity and his eventual discharge.

     Our cases have established that temporal proximity between

the protected activity and the termination is sufficient to

establish a causal link.   See, e.g., Jalil, 873 F.2d at 708.   We

have also held that the “mere passage of time is not legally

conclusive proof against retaliation.”   Robinson v. SEPTA, 982

F.2d 892, 894 (3d Cir. 1993); see also Kachmar v. SunGard Data

Systems, Inc., ___ F.3d ___, 1997 WL 135897 (3d Cir. 1997); Aman

v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir.

1996).   In the Robinson case, almost two years passed between the

protected activity and Robinson’s discharge.   However, the

district court found that SEPTA had subjected Robinson to a


see also id. at 2754 (“It is not enough . . . to disbelieve the
employer; the factfinder must believe the plaintiff’s explanation
of intentional discrimination.”). This burden may be met in a
variety of ways. See Fuentes, 32 F.3d at 764-65; Sheridan v.
E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996) (en
banc). In the end, the burden of proof remains with the
plaintiff.




                                13
pattern of harassment during that time period.   We therefore held

that there was sufficient evidence supporting a causal link: “The

temporal proximity noted in other cases is missing here and we

might be hard pressed to uphold the trial judge’s finding were it

not for the intervening pattern of antagonism that SEPTA

demonstrated.”   Robinson, 982 F.2d at 895; see also id. (“The

court could reasonably find that the initial series of events

thus caused Robinson’s and SEPTA’s relationship to deteriorate,

and set a pattern of behavior that SEPTA followed in retaliating

against Robinson’s later efforts at opposing the Title VII

violations he perceived.”).   Thus, a plaintiff can establish a

link between his or her protected behavior and subsequent

discharge if the employer engaged in a pattern of antagonism in

the intervening period.3

     Scott correctly points out that the protected activity

Woodson engaged in--filing complaints with the PHRC and EEOC in

November 1989 and February 1990--is temporally remote from

Woodson’s termination in January 1992.   Thus, the argument

continues, Woodson can prevail only if a reasonable jury could

find that Scott engaged in a “pattern of antagonism” in the

period between his administrative complaints and his firing.

Scott contends that, even viewing the evidence in the light most

favorable to Woodson, the evidence does not support a finding of

     3
      Because we conclude that the evidence is sufficient to
establish a pattern of antagonistic behavior linking the
discrimination complaints and Woodson’s discharge, we need not
consider whether other types of evidence might also support a
causal link finding in the absence of temporal proximity.




                                14
a pattern of antagonistic behavior against Woodson that would

allow Woodson to prevail on the causal link prong.   Rather,

according to Scott, the evidence points only to the conclusion

that Woodson was terminated in a company-wide cost reduction

program nearly two years after he filed his discrimination

complaints and after Scott had already promoted him to the

position he sought when he filed those complaints.   Under such

circumstances, Scott submits, no reasonable jury could find a

causal link between Woodson’s discrimination complaints and his

discharge.

     Woodson, in response, contends that the evidence is clearly

sufficient to support a finding by a reasonable jury that between

February 1990, when he filed the second of his administrative

complaints, and his termination in 1992, Scott engaged in a

pattern of retaliation against him.   This pattern is said to

include Scott’s "setting Woodson up to fail" by hiring him as a

product system leader in the poorly performing napkin division

and then refusing to provide him with adequate resources; Scott's

failure to respond appropriately to racist graffiti in its plant;

and Scott's termination of Woodson pursuant to a “sham” ranking

process performed by individuals who were not familiar with his

employment record, but only with his charges of discrimination.

     For the reasons that follow, we agree with Woodson that,

viewing the evidence in the light most favorable to him, the

district court did not err in finding the evidence sufficient to

support a causal link between Woodson’s administrative complaints

and his discharge.   While each piece of evidence alone is not



                                15
sufficient to support an inference of a pattern of antagonistic

behavior, taken together the evidence is sufficient.   Thus, while

we will discuss each piece of evidence, and Scott’s objections to

them, in turn, we must determine whether the evidence is

sufficient based on the whole picture.   Cf. Andrews v. City of

Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990) (“A play cannot

be understood on the basis of some of its scenes but only on its

entire performance, and similarly, a discrimination analysis must

concentrate not on individual incidents, but on the overall

scenario.”).   We also keep in mind, recognizing that much of the

record is comprised of trial testimony, that the jury had “the

unique opportunity to judge the credibility and demeanor” of the

witnesses who testified at the trial, and that it reached its

conclusions based in part on those observations.   Quiroga, 934

F.2d at 502.

B.   Evidentiary Review and Analysis

     After Woodson had filed his first administrative complaint,

he received his 1989 performance evaluation which suggested that

he work with an outside consultant to improve his “perception by

superiors.”    The district court apparently believed that “this

recommendation, appearing in a formal written evaluation, was a

response to his perception of racial animus among his superiors.”

 898 F. Supp. at 303.    Scott objects to the district court’s

reliance on this recommendation because Zohlman, the human

resources director, had suggested in a conversation with Woodson

in May or June 1989, before Woodson had filed his first

complaint, that he consult a behavioral psychologist to improve



                                 16
his working relationships.    Thus, according to Scott, the

recommendation in the performance evaluation is not probative of

retaliatory animus because the same recommendation was made to

Woodson before he filed the discrimination complaint.     While

Woodson acknowledged that the conversation with Zohlman took

place, and Scott’s argument has considerable force, it is not

conclusive, as it is clear to us that a jury could rely on the

written performance evaluation to find a pattern of antagonism.

More specifically, the jury was entitled to conclude (if it

wished) that the recommendation was made “official” when it was

included in the written evaluation, which was used to determine

promotions and salary, and that this was done in response to

Woodson’s complaints to the PHRC and EEOC.

     Woodson also points to the fact that, soon after he was

promoted, Zohlman suggested, during the course of a

“congratulatory” phone call, that Woodson drop the administrative

complaints against Scott.    Woodson refused to do so.   Pointing

out that Zohlman did not participate in Woodson’s ranking, Scott

contends that this statement is irrelevant as a matter of law

because it was a stray remark made by a non-decisionmaker.        The

record at trial, however, showed that Zohlman designed the

ranking procedures and presented the results of the forced

ranking, along with Wadsworth, to the Corporate Review Committee.

 He participated in the process through which Woodson was fired

to such an extent that we cannot say that he was “outside the

chain of decisionmakers who had the authority to hire and fire

plaintiff,”   Gomez v. Allegheny Health Serv., Inc., 71 F.3d 1079,



                                 17
1085 (3d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996), which

is our standard for determining whether statements are “stray

remarks.”   But even if Zohlman’s statement was a mere stray

remark, it can constitute evidence of the atmosphere in which the

forced ranking was carried out, and would, therefore, be relevant

to the question whether Scott retaliated against Woodson after he

filed his discrimination complaints.    See Antol v. Perry, 82 F.3d

1291, 1302 (3d Cir. 1996).4

     The district court also noted that “[w]hen plaintiff was

eventually promoted in 1990, after a number of requests, it was

to lead the poorest performing division.   He was paid at a lower

level than similarly situated colleagues and denied adequate

staffing and management support.”    898 F. Supp. at 303 (citations

omitted).   We acknowledge that management has the clear right to

assign its employees to positions where they can contribute most

effectively to the firm’s profitability, but we must agree with

the district court that Woodson’s assignment to this division,

and the treatment just described, could at least support an

inference by the jury that Scott responded to his discrimination

complaints by granting him a promotion, but setting him up to

fail in his new position.5
     4
      The same is true with respect to James Peiffer, Woodson’s
direct supervisor. Scott contends that evidence involving
Peiffer, which we will discuss below, is irrelevant as a matter
of law to this case because it points at most to Peiffer’s
retaliatory animus, and Peiffer was not involved in the ranking
process through which Woodson was fired. We reject this
contention for the reasons explained in the text.
     5
      Scott contends that these are unsupported factual
allegations because the district court cited to exhibits that
were not admitted into evidence at trial (although they were



                                18
     We have held that “an atmosphere of condoned [racial]

harassment in a workplace increases the likelihood of retaliation

for complaints in individual cases.”     Glass v. Philadelphia Elec.

Co., 34 F.3d 188, 195 (3d Cir. 1994) (internal quotation marks

omitted); Aman, 85 F.3d at 1086.     In other words, evidence of

condoned harassment can support an inference by the fact-finder

that the employee, having failed to respond to the harassment,

also engaged in retaliatory conduct against the plaintiff.     This

precept is germane in view of the testimony that, in June or July

of 1991, racist graffiti appeared on the wall of the men’s

bathroom in the Chester plant, coupled with Woodson’s evidence

that the company’s response to the incident was inadequate.    The

jury was entitled to consider these factors when deciding whether

Woodson’s termination was in retaliation for his complaints.

Later that year, Woodson applied for an important promotion,

which he did not receive.   While this may not prove much by

itself, in conjunction with the other facts it could have been

taken into account by the jury in finding a pattern of

antagonism.

premarked as exhibits and used during the cross-examination of
Robert Desisto). Even if these exhibits were not before the
jury, however, there was ample testimony that supports the same
inference. Woodson testified about the problems with staffing in
his division as well as the fact that the division was a poor
performer. Czepiel testified that it “was the weakest product
system . . . that we had in the company.” Moreover, Robert
Desisto, who was ultimately assigned to Woodson’s division in
October 1991, testified on cross-examination about the exhibits
that the district court cited. Even though they were not
admitted, the contents of those exhibits -- Woodson’s repeated
requests for more staff as well as his belief that he
was being set up for failure -- were discussed during the course
of the testimony, and were, therefore, before the jury.




                                19
     Testimony about the process by which Woodson was fired also

was probative of a causal link between his discrimination

complaints and his termination.    First, two of the three company

officials who ranked the product system leader work group,

Wadsworth and Czepiel, admitted that they were aware that Woodson

had filed discrimination complaints when they ranked him.6

Second, Zohlman and Peiffer were also aware of Woodson’s

discrimination charges when the ranking was carried out.

Although neither participated directly in the ranking process,

Zohlman designed the process and provided human relations support

to the rankers and Peiffer was Woodson’s direct supervisor at the

Chester plant.7   As we explained above, even if they were not

directly evaluating Woodson in the process, their testimony is

probative of the environment in which the employment decision was

made.

     Moreover, two of the evaluators, Wadsworth and Goldberg,

admitted that they had little first-hand knowledge of Woodson’s

past performance record and that they did not review his

personnel file in making their evaluations.    Hence, they were
     6
      Scott challenges the district court’s reliance on this
testimony on the ground that knowledge of the discrimination
complaints by the decisionmakers cannot in and of itself support
an inference of retaliation. While that is correct,
decisionmakers’ knowledge, taken together with other evidence,
can support such an inference.
     7
      The district court erred in suggesting that Peiffer and
Zohlman “discussed these rankings with the evaluators during the
ranking process.” 898 F. Supp. at 303. At least, we have found
no support for this statement in the record, nor has Woodson
pointed us to any. Nevertheless, the jury was entitled to
consider Peiffer’s and Zohlman’s testimony that they knew of the
discrimination charges.




                                  20
unaware of Woodson’s consistently high performance reviews during

his tenure at the Chester plant.     Such testimony would provide

support for Woodson’s contention that the ranking process was a

“sham,” as he was evaluated by managers who knew of the

discrimination complaints but not of his past performance at the

plant.   The third evaluator, Czepiel, stated in his affidavit

that he considered Woodson a “borderline insubordinate” in his

rejection of certain cultural changes that Scott was trying to

implement.   The district court noted that the jury may have

concluded that what Woodson’s superiors considered to be the

“ultimate act of insubordination” was his filing of

administrative (discrimination) charges.    898 F. Supp. at 304.

We believe that the jury could have reasonably drawn such an

inference.

     In addition, the discrepancies between Woodson’s ranking and

his past performance evaluations were not presented to the

Corporate Review Committee, as they should have been under the

reorganization plan.   Scott contends that this is not probative

of a causal link because all of the employees who were evaluated

during the reorganization were subjected to the same process--

their performance evaluations were not considered by either the

initial evaluators or the Corporate Review Committee.     Woodson,

however, need not have been treated differently during the

reorganization process for the jury to conclude that a causal

link existed between his complaints and his termination.     Under

the facts described above, the decision to terminate Woodson may

have been related to his discrimination complaints even if there



                                21
was no disparate treatment with respect to the process by which

he was fired.

     Finally, a confidential “work shedding” memorandum, which

was prepared by Peiffer, recommended eliminating Woodson’s job,

but predicted that “an emotional reaction from [Woodson] could

result in an age/race discrimination claim.”    The record shows

that the “work shedding” process, in which the plant managers

were involved, was part of the overall reorganization effort, but

was unrelated to the ranking carried out by Wadsworth, Czepiel,

and Goldberg.   This memorandum was drafted on December 17, 1991,

and was provided to the evaluation team and to Zohlman after the

ranking was completed, but before the recommendations were

presented to the Corporate Review Committee.8   Scott, therefore,

contends that this memo is not probative of retaliation because

there is no evidence that actually links the memo to the decision

to fire Woodson.

     Although there was no testimony at trial that this

memorandum actually affected the decision to fire Woodson, it too

would have been probative of the environment in which the

employment decision was made.   It also suggests that Woodson’s

superiors were keenly aware of the discrimination complaints that

Woodson had lodged against the company.   The jury could have

drawn many conclusions from this evidence, but we agree with the

district court that “[t]hese predictions could reasonably have

     8
      The district court’s comment that this memorandum was
provided to the assessment team prior to the “final” decision
about Woodson’s job is technically correct.




                                22
been interpreted by the jury as warnings based on the previously

filed discrimination charges--warnings that went unheeded.”     Id.

at 303.

     Although the question is very close, we conclude that the

evidence presented at trial, when viewed in the light most

favorable to Woodson, is sufficient to support a causal link

between Woodson’s discrimination complaints and his termination.

 The jury might reasonably have concluded that Scott engaged in a

pattern of antagonistic behavior against Woodson after his

complaints, setting him up to fail in a poorly performing

division and then terminating him through a “sham” ranking

procedure.   Although none of the pieces of evidence that we have

discussed, standing alone, would be sufficient to allow this

inference (especially the “environment” evidence), the evidence

as a whole can be so, particularly when we consider, as we must,

that the verdict may have been based in part on the jurors’

evaluation of each witness’ credibility and demeanor.

             III.   Pennsylvania Human Relations Act Claim

A.   Introduction

     We turn next to Scott’s argument that the district court

erred in not entering judgment in Scott’s favor on Woodson’s

retaliation claim under the PHRA.9     According to Scott, Woodson
     9
      We reject Woodson’s contention that Scott waived this
defense. Although Scott never pleaded this issue as an
affirmative defense, it denied in its answer Woodson’s allegation
that he had exhausted his administrative remedies. Answer ¶ 6.
Moreover, Scott made the same argument in its summary judgment
motion, in its final pre-trial memorandum, and at trial, and also
asked relevant questions in its request for admissions. This was
enough to preserve the defense. We have held that the failure to
assert an affirmative defense in an answer will not result in



                                  23
failed to initiate administrative proceedings as required under

the PHRA because no verified complaint was filed with the PHRC,

and Woodson has admitted as much.          If Scott is successful here

and the PHRA claim must be dismissed, Woodson can proceed only

under Title VII.       In such event, the verdict, with a few

exceptions, would be subject to the $300,000 damages cap of Title

VII, 42 U.S.C. § 1981a(b)(3), and hence Woodson’s damage recovery

would be reduced significantly.10         If Scott is wrong, Woodson can

proceed under the PHRA and can recover the full amount of the

jury verdict.

       To bring suit under the PHRA, a plaintiff must first have

filed an administrative complaint with the PHRC within 180 days

of the alleged act of discrimination.          43 Pa. C.S. §§ 959(a),

962.        If a plaintiff fails to file a timely complaint with the

PHRC, then he or she is precluded from judicial remedies under

the PHRA.       The Pennsylvania courts have strictly interpreted this


waiver if the opposing party has notice of the defense sufficient
to avoid prejudice. See Charpentier v. Godsil, 937 F.2d 859, 864
(3d Cir. 1991) (“It has been held that a defendant does not waive
an affirmative defense if he raised the issue at a
pragmatically sufficient time, and [the plaintiff] was not
prejudiced in its ability to respond.” (internal quotations
omitted)). For example, in Franklin Life Insurance Co. v.
Bieniek, 312 F.2d 365, 371-72 (3d Cir. 1962), we found that the
defendants’ fraud defense had not been waived, even though it was
not pleaded, because the defendants had raised the issue in their
answer and pre-trial statement.
       10
      Section 1981a(b)(2) expressly excludes “backpay, interest
on backpay, or any other type of relief authorized under section
706(g) of the Civil Rights Act of 1964” from the definition of
compensatory damages. While backpay would clearly be excluded
from the cap, it is not clear whether future earnings would be as
well, but we need not decide that here. The district court must
do so on remand.




                                     24
requirement, and have repeatedly held that “persons with claims

that are cognizable under the Human Relations Act must avail

themselves of the administrative process of the Commission or be

barred from the judicial remedies authorized in Section 12(c) of

the Act.”    Vincent v. Fuller Co., 616 A.2d 969, 974 (Pa. 1992);

see also Fye v. Central Transp. Inc., 409 A.2d 2 (Pa. 1979); Clay

v. Advanced Computer Applications, Inc., 559 A.2d 917 (Pa. 1989);

Richardson v. Miller, 446 F.2d 1247, 1248 (3d Cir. 1971) (“Since

plaintiff failed to file a charge with the respective Commissions

within the appropriate time periods, he is now foreclosed from

pursuing the remedies provided by the Acts.”).

     As the Pennsylvania Supreme Court has explained, the

Pennsylvania legislature, recognizing the “invidiousness and the

pervasiveness of the practice of discrimination,” created with

the PHRA “a procedure and an agency specially designed and

equipped to attack this persisting problem and to provide relief

to citizens who have been unjustly injured thereby.”    Fye, 409

A.2d at 4.    Strictly interpreting the filing requirement of the

PHRA allows the PHRC to use its specialized expertise to attempt

to resolve discrimination claims without the parties resorting to

court.

     On July 22, 1992, Woodson filed an administrative charge

with the EEOC alleging the facts supporting the claim now on

appeal.   Such filing is a prerequisite for suing on his Title VII

claim, 42 U.S.C. 2000e-5.    Woodson, however, did not check the

box on the EEOC charge form indicating that the charge should be

filed with both agencies.    Moreover, he signed an acknowledgment



                                 25
on the same day that “I have received a letter advising me of my

right to file a complaint under the Pennsylvania Human Relations

Act.        I am aware that I must file with PHRC within 30 days, or

else I will lose those rights to relief under state law

safeguarded by filing under the [PHRA].”         Yet Woodson did not

file a complaint with the PHRC, and admitted in response to

Scott’s request for admissions that the EEOC complaint was never

cross-filed by the EEOC with the PHRC.11

       Although Woodson never filed a complaint with the PHRC, and

the complaint was never cross-filed with the PHRC, he nonetheless

maintains that he may bring suit under the PHRA.         First, he

contends that, pursuant to the worksharing agreement entered into

by the PHRC and the EEOC, Woodson’s claim was “deemed” filed with

the PHRC when he filed his charge with the EEOC.         Second, he

argues that, even if the claim was never filed with the PHRC, he

should still be able to proceed with his PHRA retaliation claim

because of representations made by the EEOC to him that it would

file his claim with the PHRC.          In this respect, Woodson urges us

to affirm the reasoning of the district court, which permitted

Woodson to recover for retaliation under the PHRA because the

“EEOC’s notice to the plaintiff should be considered an equitable

filing.”        898 F. Supp. at 302.   We consider each of Woodson’s

contentions in turn.

       11
      The request for admission stated: “James W. Woodson did not
file a charge of discrimination with the PHRC based on the acts
alleged in EEOC Charge Number 170921474, and Mr. Woodson’s EEOC
Charge Number 170921474 was not cross-filed with the PHRC.” A92
(Request for Admission No. 16).




                                       26
B.   Effect of the Worksharing Agreement

     Turning first to Woodson’s worksharing agreement argument,

the PHRC and the EEOC have entered into an agreement through

which they have apportioned initial jurisdiction over

discrimination complaints in order to avoid unnecessary

duplication of investigatory time and effort.    Under this

agreement, each agency waives its right to initially review

claims that are first filed with the other agency.    Woodson

contends that, pursuant to this worksharing agreement, his charge

was “automatically and simultaneously deemed filed” with the PHRC

as soon as it was filed with the EEOC.

     We agree with Scott, however, that the agreement between the

EEOC and the PHRC is relevant only to the issue of whether a

plaintiff has satisfied the administrative exhaustion

requirements of the federal anti-discrimination statutes.         That

is because federal courts lack jurisdiction to hear a Title VII

claim, unless the plaintiff has filed a charge with the EEOC.

Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974).      A

claimant cannot file a charge with the EEOC in a state, such as

Pennsylvania, that provides an administrative remedy for

employment discrimination, unless the charge has been filed first

with the appropriate state agency and either (1) 60 days have

elapsed; or (2) the state agency has terminated its proceedings.

 42 U.S.C. § 2000e-5(c).

     Under the worksharing agreement, a claim that is filed first

with the EEOC can be processed by the EEOC, without being

investigated as an initial matter by the PHRC.    Through this



                               27
worksharing agreement, therefore, Pennsylvania has waived its

statutory right to initially process discrimination claims, and

hence this agreement operates to “terminate” the PHRC proceedings

with respect to those complaints that are filed first with the

EEOC.     Trevino-Barton v. Pittsburgh Nat’l Bank, 919 F.2d 874, 879

(3d Cir. 1990) (Title VII claim); see also EEOC v. Commercial

Office Products Co., 486 U.S. 107 (1988); Kaimovitz v. Board of

Trustees of the University of Illinois, 951 F.2d 765 (7th Cir.

1991) (ADEA claim).     In other words, the worksharing agreement

allows a plaintiff to proceed in court under Title VII without

first filing with the PHRC.12

     That, however, does not mean that a plaintiff can initiate

PHRC proceedings as required by the PHRA merely by filing with

     12
      The worksharing agreement clearly divides responsibility
for processing claims that have been dual-filed with both the
EEOC and the PHRC. That is, if Woodson had filed with the EEOC
and indicated that he wished to cross-file with the PHRC, the
worksharing agreement would have governed the processing of his
claim. But the Pennsylvania courts have ruled that, if the EEOC
transmits the claim to the PHRC, the filing requirement of the
PHRA has been satisfied. The Pennsylvania Superior Court has
held that the verified complaint filing requirement of the PHRA
is satisfied if the EEOC actually transmits the EEOC charge to
the PHRC. See Lukus v. Westinghouse Elec. Corp., 419 A.2d 431
(Pa. Super. 1980). In that case, the Superior Court noted that
the EEOC charge satisfied the pleading requirements of 43 Pa.
C.S. § 959, and moreover, that the PHRC treated the EEOC charge
as capable of triggering PHRC action since it notified the EEOC
that it was terminating its investigation of plaintiff’s
complaint. Id. at 452-53. The Pennsylvania Supreme Court has
cited Lukus, in dicta, for the proposition that the PHRA filing
requirement is satisfied if the EEOC forwards a charge to the
PHRC. Vincent v. Fuller Co., 616 A.2d 969, 971 (Pa. 1992). In
this regard, we note that Woodson’s case would be quite different
if he had marked the box for the EEOC to cross-file and the EEOC
had failed to transmit the charge because of a breakdown in the
administrative system. As that case is not before us, however,
we do not decide it here.




                                  28
the EEOC.13   Whether a plaintiff has initiated PHRC proceedings

under the PHRA is a state law issue.    The worksharing agreement

says nothing about whether a plaintiff has invoked PHRC

procedures if the PHRC has never received his or her claim, nor

could it, given that the Pennsylvania Supreme Court held in Fye

v. Central Transportation Inc., 409 A.2d 2 (Pa. 1979), that EEOC

procedures are not a sufficient surrogate for PHRC remedies.

     In the Fye case, the plaintiff had initially filed a

complaint with the PHRC, but had requested that the PHRC

terminate its investigation and defer to pending EEOC proceedings

regarding the same conduct.14   The plaintiff sought equitable
     13
      As Woodson points out, cases from other circuits have
suggested that, under worksharing agreements between the EEOC and
other state agencies, filing with the EEOC can operate to
initiate proceedings in the state agency. See, e.g., EEOC v.
Green, 76 F.3d 19 (1st Cir. 1996); Griffin v. City of Dallas, 26
F.3d 610, 612-13 (5th Cir. 1994) (holding that, under the terms
of the agreement between the EEOC and the Texas state agency, the
filing of a charge with the EEOC instituted state proceedings
within the meaning of § 706(e)(1) of the Civil Rights Act); Hong
v. Children’s Memorial Hosp., 936 F.2d 967, 970-71 (7th Cir.
1991) (holding that “workshare agreement can alone effect both
initiation and termination of state proceedings and that, as a
result, plaintiffs may file with the EEOC without first filing
with the [state agency]”). In these cases, however, the issue
was whether the claimant had properly satisfied the exhaustion
requirements of Title VII, not whether a worksharing agreement
can operate to initiate state proceedings such that the
requirements of the state anti-discrimination laws can be
satisfied. For example, in Green, the issue was whether the
claimant had initiated proceedings with the state agency such
that she had up to 300 days after the allegedly discriminatory
act, rather than 180 days, to file a charge with the EEOC under §
706(e)(1) of Title VII.
     14
      Woodson suggests that Fye should not guide our inquiry
because it was decided before the “applicable and controlling”
worksharing agreement was entered into. Woodson, however, does
not make any contention that the worksharing agreement in effect
when Fye was decided was any different from the agreement at
issue in this case, nor is there any support in the record for
such a contention. Moreover, whether Woodson has exhausted his



                                 29
relief for gender discrimination, and the question was whether

her initial resort to the administrative procedures of the PHRA

without exhausting them precluded filing suit.   The plaintiff

contended that “since the role of the agency was carried out,

albeit not by the designated agency but by the Equal Opportunity

Employment Commission, we should recognize substantial compliance

with the statutory scheme and allow the court of common pleas to

take jurisdiction under the circumstances.”   Id. at 5.

     The Pennsylvania Supreme Court rejected this argument on the

ground that the statute clearly required that she exhaust state

administrative procedures before filing suit: “If the General

Assembly wished to permit the substitution of agencies in its

legislative scheme, it could easily have provided for that

result.   It declined to do so and it is beyond our powers to

ignore that judgment absent some showing of a constitutional

infringement.”   Id.   Although Fye is not directly on point--it

deals with whether a completed EEOC investigation can substitute

for full resort to PHRC procedures--we predict that the

Pennsylvania Supreme Court would hold that filing with the EEOC

does not function as a filing for PHRA purposes.   See also Clay,

559 A.2d at 919 (“The use by the legislature of the word ‘shall,’

as opposed to ‘may,’ expresses an intent to make administrative

procedures under the PHRA a mandatory rather than discretionary

means of enforcing the right created thereby.”).

     Thus, evidence of the worksharing agreement alone cannot

PHRA remedies is a question of state law, and is not controlled
by the worksharing agreement.




                                30
serve to show that Woodson invoked the Pennsylvania state

administrative remedy as required by the PHRA.15   This holding is

consistent with the result reached by the district courts of this

Circuit that have considered this issue.   See, e.g., Parsons v.

City of Philadelphia, 833 F. Supp. 1108, 1114 (E.D. Pa. 1993).

As a general matter, therefore, if the PHRC does not receive a

complainant’s claim, then that complainant cannot bring suit

under the PHRA.

C.   Equitable Filing

     Woodson has admitted that the PHRC never actually received

his complaint.    This case is complicated, however, by the fact

that there is evidence of a letter from the EEOC to him that

states: “You should be aware that the Commission will provide a

copy of your charge to the below listed agency in accordance with
     15
      We note that Kedra v. Nazareth Hospital, 857 F. Supp. 430
(E.D. Pa. 1994), on which Woodson relies, is not to the contrary.
 In that case, the plaintiff filed a discrimination charge with
the Philadelphia Commission on Human Relations (PhilaCHR), and
the EEOC was informed of the claim pursuant to a worksharing
agreement between the PhilaCHR and the EEOC. Kedra did not,
however, file a complaint with the PHRC. The question there was
whether “filing a charge with the Philadelphia Commission on
Human Relations is tantamount to a filing with the Pennsylvania
Human Relations Commission.” Id. at 432. The court predicted
that the Pennsylvania Supreme Court would hold that filing with
the PhilaCHR constitutes compliance with the PHRA because of the
PhilaCHR’s statutory obligation to notify the PHRC of the
complaints filed with it. In so holding, the court explicitly
noted that it did not reach the plaintiff’s contention that the
worksharing agreement between the EEOC and the PHRC operated to
satisfy the administrative exhaustion requirement of the PHRA.
In fact, that court acknowledged the Fye statement that the
Pennsylvania legislature could have provided for the substitution
of agencies if it so wished, and distinguished a filing with the
EEOC from a filing with the PhilaCHR because “the Pennsylvania
General Assembly explicitly contemplated that complainants could
file with local commissions and that the local commissions would,
in turn, notify Pa.HRC of those filings.” Id. at 433 n.6.




                                 31
our procedures.”   The PHRC is the agency listed at the bottom of

the paragraph.   This letter is dated July 29, 1992, one week

after Woodson signed the acknowledgment that he must file with

the PHRC or lose any available state remedies.    We must, then,

reach Woodson’s second contention, that even if the worksharing

agreement does not permit a complainant to satisfy the filing

requirement of the PHRA by filing a claim with the EEOC only,

Woodson is entitled to recover under his PHRA claim in this case

because of these representations made by the EEOC.    To reach this

issue, we must make two separate predictions about Pennsylvania

law: first, whether the Pennsylvania Supreme Court would hold

that the PHRA filing requirement could be satisfied based on some

notion of “equitable filing,” and second, even if it would,

whether that court would allow Woodson to proceed under the PHRA

based on this theory.

     It is not clear whether the Pennsylvania Supreme Court would

adopt an equitable filing doctrine.   As we explained above, the

Pennsylvania Supreme Court has strictly enforced the PHRA filing

requirement in many cases.   In predicting that the Pennsylvania

Supreme Court would adopt an equitable filing doctrine, the

district court failed to recognize this.    The district court only

noted language from the PHRA that the “provisions of this act

shall be construed liberally for the accomplishment of the

purposes thereof.”   43 Pa. C.S. 962(a).   The court cited, but

ultimately chose to ignore, language from Fye, in which the

Pennsylvania Supreme Court cautioned that a “liberal construction

for the accomplishment of the purposes of the act is not



                                32
synonymous with a relaxation of the rule of exclusivity for the

benefit of a complainant.”     Fye, 409 A.2d at 5.

        We conclude that the district court erred in failing to give

enough weight to Fye and the other Pennsylvania Supreme Court

cases that have strictly adhered to the filing requirement of the

PHRA.     We are not, however, convinced that the Pennsylvania

Supreme Court would refuse to apply equitable principles to

excuse from the PHRA filing requirement a plaintiff who has been

informed by the EEOC that the EEOC will forward a copy of the

charge to the PHRC and who relies on that representation in not

filing directly with the PHRC.     This is particularly so because

the Pennsylvania Supreme Court has suggested that the PHRA is in

fact satisfied if the EEOC forwards the charge to the PHRC.      See

supra note 12.    The question is close, with significant arguments

on both sides that we detail in the margin.16
     16
      Scott maintains that the Pennsylvania Supreme Court cases
are clear that the PHRA exhaustion requirement is a strict one
and that only the Pennsylvania legislature can amend the PHRA to
introduce equitable principles into the filing requirement. In
fact, the Pennsylvania General Assembly recently amended the PHRA
to permit the application of equitable principles with respect to
the time requirements for filing a complaint. The PHRA now
provides that the “time limits for filing under any complaint or
other pleading under this act shall be subject to waiver,
estoppel and equitable tolling.” 43 Pa. C.S. § 962(e). Scott
contends that the legislature could have extended equitable
principles to cases in which a plaintiff has not filed with the
PHRC, but it chose not to.
     On the other hand, Woodson points out that in no case in
which the PHRA filing requirement has been strictly enforced has
the EEOC represented to the plaintiff that it would file the
complaint with the PHRC. Moreover, the district court relied on
several cases in which courts have applied equitable notions to
excuse the failure of the plaintiff to comply with the
administrative exhaustion requirement. For example, in Hicks v.
ABT Assoc., Inc., 572 F.2d 960 (3d Cir. 1978), this Court
permitted a plaintiff to proceed under Title VII where the
plaintiff’s failure to file a charge resulted from the EEOC’s



                                  33
     Fortunately, however, we need not reach that issue, as it is

clear to us that Woodson would not be entitled to proceed under

the PHRA even if the Pennsylvania Supreme Court would permit the

application of equitable principles.   That is because there is no

evidence that would support Woodson’s contention that he should

be excused for his failure to file, or cross-file, with the PHRC.

 First, Woodson had already retained counsel prior to the filing

of his charge with the EEOC in July 1992.   Second, Woodson had

filed two prior discrimination complaints with the PHRC, and his

testimony reveals that he knew of the cross-filing mechanism, as

well as the requirement that he file with the PHRC.   A944,950

(“[I]n this case I went first to EEOC and found out that you also

have to go initially to the State of Pennsylvania Commission of

failure to comply with its statutory or regulatory obligations
under the theory that a plaintiff should not be punished for the
behavior of the EEOC. Woodson also points us to cases in which
courts have allowed plaintiffs, under certain circumstances, who
failed to comply with the applicable filing deadlines under Title
VII to proceed with their claims under the doctrine of equitable
tolling. See, e.g., Zipes v. TWA, Inc., 455 U.S. 385, 102 S. Ct.
1127 (1982); Anderson v. Unisys Corp., 47 F.3d 302 (8th Cir.),
cert. denied, 116 S. Ct. 299 (1995).
     It is not clear, however, that the cases cited by the
district court and by Woodson are relevant to the case at bar.
Most significantly, the cases mentioned above concern the federal
anti-discrimination laws. Woodson has not cited to any
indication by the Pennsylvania Supreme Court that the PHRA filing
requirement would be applied flexibly where the plaintiff’s
failure to satisfy the requirement resulted from the EEOC’s
failure to forward the charge as promised. Moreover, while the
timing requirements of the federal anti-discrimination laws have
been held to be a procedural requirement rather than a
jurisdictional limitation, it may well be that the filing
requirement of the PHRA is a jurisdictional limitation, and
hence, would not be subject to equitable principles. As noted
above, we leave this complicated problem to another day.




                               34
Human Relations as a first base.”).

     Moreover, on July 22, 1992, the day he filed his charge with

the EEOC and failed to check the box on the charge indicating

that he wanted his charge cross-filed with the PHRC, Woodson

signed the acknowledgment that he was aware of the filing

requirements under the PHRA.   Thus, the record is clear that he

knew of his obligations under the PHRA and simply failed to

comply, which would make him ineligible for application of

equitable principles.

     Additionally, there is no evidence in the record that

Woodson received or even knew about the letter dated July 29,

1992 from the EEOC indicating that it would file the charge with

the PHRC.   Finally and most importantly, there is no record

evidence that Woodson relied on this representation in choosing

to forgo filing a PHRC complaint.     Therefore, the district court

erred in concluding that the evidence showed that Woodson

intended that a complaint be filed with the PHRC.     Under these

circumstances, we could not conclude that Woodson’s failure to

file a complaint with the PHRC is excusable even if we were to

predict that the Supreme Court of Pennsylvania would apply

equitable principles to the filing requirement.

     For the foregoing reasons, the judgment of the district

court will be reversed in part, and the district court will be

directed to enter judgment in Scott’s favor on Woodson’s PHRA

claim.



                    IV.   The Jury Instructions



                                 35
     Scott also claims that the jury instructions were in error

in two separate respects, and that we should remand for a new

trial.    We generally review jury instructions for abuse of

discretion to determine whether they are misleading or

inadequate.   However, when the question is whether the

instructions misstate the law, our review is plenary.     Savarese

v. Agress, 883 F.2d 1194, 1202 (3d Cir. 1989).   We review each of

Scott’s contentions in turn.

A.   “Direct Evidence” Instruction

     We turn first to Scott’s contention that the district court

erred in instructing the jury with regard to the racist graffiti

that appeared on a wall of the men’s bathroom in the Chester

plant in June or July of 1991. This charge read as follows:
There was evidence of race-biased graffiti in a bathroom at the
     Chester plant. An employer that permits such graffiti to
     exist may be held responsible for the racial bias conveyed
     by it if it condones the graffiti or acquiesces in it.
     All of the facts and circumstances, including the employer’s
     reaction, the steps, if any, taken by the employer to
     counteract the graffiti and what was reasonably required
     given the nature of the racial provocation, should be
     considered in deciding whether the employer’s alleged lack
     of appropriate response bears on its racial attitude. In
     other words, it is direct evidence of the employer’s intent
     to discriminate.


Scott contends that the district court erred in instructing the

jury that the racist graffiti incident can constitute “direct

evidence” of Scott’s retaliatory intent.17   While we do not
     17
      Throughout this discussion, we refer to the “direct
evidence” charge in terms of its relevance to the determination
whether Scott fired Woodson with retaliatory animus, since the
jury found against Woodson on the race discrimination claim. The
charge itself refers only to discriminatory animus. However, the
court instructed the jury on both claims jointly, and the
reference to “discriminatory” animus accordingly describes both
claims.



                                 36
necessarily agree with Scott’s argument, for the reasons that

follow, we conclude that the district court erred in so

instructing the jury.

       We begin by noting that Scott’s response to the graffiti

incident is relevant to the question whether Scott acted with

retaliatory intent.    We have held on many occasions that an

“atmosphere of condoned [racial] harassment in a workplace

increases the likelihood of retaliation for complaints in

individual cases.”    Glass v. Philadelphia Elec. Co., 34 F.3d 188,

195 (3d Cir. 1994) (internal quotation marks omitted); Aman v.

Cort Furniture Rental Corp., 85 F.3d 1074, 1086 (3d Cir. 1996).

Accordingly, we reject Scott’s objection to the instruction on

the ground that Woodson has shown no evidence connecting the

graffiti to his employment with Scott or Scott’s decision to fire

him.    The adequacy of Scott’s response to the graffiti is clearly

relevant to whether Scott had the requisite intent to be held

liable for retaliation, even if the graffiti itself was never

specifically linked to Woodson.    Turning to the instruction

itself, we find it, when considered as a whole, to be misleading

to the lay juror on several levels and, therefore, prejudicial to

Scott.

       First, the instruction might have suggested to a juror that

the existence of the racist graffiti itself, rather than Scott’s

response to the graffiti, can constitute evidence of retaliatory

intent.    The relevant portion of the charge begins: “There was

evidence of race-biased graffiti in a bathroom at the Chester

plant.”    While the charge then goes on to inform the jury that



                                  37
the adequacy of Scott’s response is relevant to the issue of

retaliatory animus, this aspect of the charge concludes with: “In

other words, it is direct evidence of the employer’s intent to

discriminate.” (emphasis added).

     Although the charge as written was doubtless intended to

refer only to Scott’s response to the graffiti, and while that

may be the fairest reading, we cannot gainsay that the

instruction could have given a lay juror the impression that the

graffiti itself could serve as evidence of Scott’s retaliatory

animus.   In this respect, we highlight the fact that the last

sentence of the charge concludes that “it” would be relevant to

the question of discriminatory intent, without clearly specifying

what “it” refers to.   This could clearly lead a juror to infer

that the racist graffiti itself was the “it” and to factor the

graffiti itself into the consideration of whether Scott

impermissibly retaliated against Woodson.   Suggesting to the jury

a connection between the graffiti itself and Scott would clearly

be impermissible, as well as prejudicial to Scott, as there was

no evidence whatsoever linking Scott or any of its decisionmakers

to the graffiti.

     Second, the district court erred in instructing the jury

that Scott’s response to the graffiti could constitute “direct”

evidence of retaliatory intent for two related reasons.   First,

as we see it, the adequacy of Scott’s response to the graffiti

incident is only circumstantial rather than direct evidence of

Scott’s discriminatory animus.   Direct evidence is evidence “that

proves an ultimate fact in the case without any process of



                                 38
inference, save . . . the inferences of credibility.”    22 Charles

Alan Wright & Kenneth W. Graham, Jr., Federal Practice and

Procedure § 5214, at 265 (1978).     In contrast, circumstantial

evidence is offered to prove an ultimate fact, but an inferential

step by the factfinder is required to reach that fact.

     It seems clear to us that, even if the charge pointed only

to Scott’s response to the graffiti, this incident can be only

circumstantial, rather than direct, evidence of Scott’s intent

when it fired Woodson.   If the evidence showed that Scott’s

response to the graffiti incident was inadequate, the factfinder

would still be an inferential leap away from concluding that this

was evidence of Scott’s retaliatory attitude.18

     Moreover, later in the charge, the court defined direct

evidence as “evidence given by a witness as to a fact which the

witness has observed or perceived.    An example would be an

eyewitness.”   Even if the description of the graffiti incident as

“direct” evidence alone would not have confused or prejudiced the

jury, the charge is clearly misleading when considered in

conjunction with the court’s later definition of “direct”

evidence.   The court’s instruction could have led a juror to

equate evidence of the graffiti incident with eyewitness

testimony, which quite likely would have caused a juror to accord

too much weight to the graffiti evidence.

     18
      This conclusion is supported by our decision in Josey v.
John R. Hollingsworth Corp., 996 F.2d 632, 641 (3d Cir. 1993), in
which we noted that a “court may consider as circumstantial
evidence the atmosphere in which the company made its employment
decisions.”




                                39
     These errors were amplified by the fact that the racist

graffiti incident was the only specific piece of evidence that

the district court mentioned in the charge.     This might have

indicated to the jury that the graffiti incident, or the

company’s response to it, was somehow particularly important, and

might have compelled an individual member of the jury to give

this portion of the evidence more weight in his or her

deliberations.   This is a problem in its own right, for jurors

should be free to weigh the evidence as they see fit.     Moreover,

by highlighting the graffiti incident in the charge, the district

court might have called additional attention to the errors that

we have explained above.     As we have explained, a juror could

have come away from the jury charge with the impermissible

impression that the graffiti itself was direct evidence of

retaliatory animus.   Because the “direct evidence” instruction

plays such a prominent role in the jury charge, suggesting to a

juror that this particular evidence should be given significant

weight in his or her deliberations, the errors in the instruction

might have been magnified.    Thus, the suggestion that the

graffiti itself was direct evidence of Scott’s retaliatory

intent, coupled with the fact that the graffiti incident was

highlighted in the instruction, might have worked significant

prejudice against Scott.

      For the foregoing reasons, we conclude that the district

court’s “direct evidence” charge was inconsistent with the

exercise of sound discretion.     We reject Woodson’s rejoinder that

any error in the instruction is harmless because the instruction



                                  40
deals only with the discrimination claim, and not the retaliation

claim.   According to Woodson, the charge does not address

retaliatory intent in any way, nor does it connect the graffiti

incident to the retaliation claim, and hence, it could not have

confused the jury with respect to the retaliation claim.     The

district court rejected this contention on the ground that, given

the factual context, it is impossible to separate the race

discrimination claim from the retaliation claim.    We agree.   The

district court instructed the jury with respect to the

discrimination and retaliation claims jointly, and did not at any

point distinguish between the two claims.   As we see it, the jury

would have assumed that the charge referred to both claims, even

though this portion of the charge refers specifically only to

Scott’s “racial attitude” and “intent to discriminate.”

     In a more general sense, we cannot hold the error to be

harmless.   Under our standard of harmless error in civil cases,

see McQueeney v. Wilmington Trust Co., 779 F.2d 916, 917 (3d Cir.

1985), we cannot say that there is a high probability that the

error did not affect the outcome of the case.    We must,

therefore, reverse the judgment and remand for a new trial on the

retaliation claim.

B.   Motivating Factor v. Determinative Effect

     Scott’s next contention on appeal is that the district court

erred in instructing the jury that it could hold Scott liable

under Title VII and the PHRA for retaliation if Woodson’s filing

of complaints with the EEOC and the PHRC was a “motivating




                                41
factor” in the decision to discharge him.19   Scott argues that the

jury should have been instructed, under Griffiths v. CIGNA Corp.,

988 F.2d 457, 472 (3d Cir. 1993), and Miller v CIGNA Corp., 47

F.3d 586, 595 (3d Cir. 1995) (en banc), that, to find Scott

liable, retaliatory animus must also have had a “determinative

effect” on Woodson’s termination.

     We agree that Third Circuit precedent requires a district

court to instruct the jury that it can hold a defendant liable

only if the prohibited activity had a determinative effect on the

decision to terminate the plaintiff.20   In Griffiths, we ordered a

new trial in a retaliation case proceeding under a pretext theory

where the district court had erroneously instructed the jury that

it need find only that an impermissible factor was a “motivating

factor” to find for the plaintiff.   We held that, while after

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a motivating

     19
      The instruction read in part:
He need not prove that his race or the alleged retaliation was
          the only factor or reason in the employer’s decision.
          But, he must prove that either race or retaliation was
          a motivating factor or reason. In other words, that it
          played a role in Scott’s decision to terminate him. . .
          . In any event, in such a case, the ultimate question,
          the final question for the jury to decide is whether,
          based on all the evidence in the case, plaintiff has
          proven by a preponderance of the evidence that he was
          discharged either because of his race or in retaliation
          for filing the charges. In other words, that race or
          retaliation was a motivating factor, a factor that
          played a role in the employment decision to terminate
          him.
     20
      Our cases have heretofore applied the same standard in
retaliation cases as in discrimination cases. Waddell v. Small
Tube Products, Inc., 799 F.2d 69, 73 (3d Cir. 1986). Moreover,
Title VII standards generally apply in PHRA cases. Griffiths,
988 F.2d at 471 n.14.




                                42
factor instruction is correct in a mixed motives case, Price

Waterhouse did not change the analysis in pretext cases and hence

a “motivating factor” instruction is improper in such cases.

Griffiths, 988 F.2d at 471-72.

     In Miller, a subsequent en banc decision, we clarified the

standard that should be used in pretext cases, holding that a

district court must instruct a jury that the plaintiff’s burden

is to prove that an impermissible factor “played a role in the

employer’s decisionmaking process and that it had a determinative

effect on the outcome of that process.”   Miller, 47 F.3d at 588.

 Thus, it is clear that if Miller governs this case, as Scott

argues, the instruction given was in error, because the

“determinative effect” instruction should have been given.     See

Wilson v. Susquehanna Township Police Dep’t, 55 F.3d 126, 130 (3d

Cir. 1995) (noting “determinative effect” standard).

     The district court held, however, and Woodson argues on

appeal, that the Civil Rights Act of 1991, Pub. L. No. 102-166,

changed the legal landscape with respect to the standard of proof

in such cases.   Section 107(a) of the 1991 Act legislatively

overruled the holding in Price Waterhouse v. Hopkins, 490 U.S.

228 (1989), that even if a plaintiff proved that discrimination

was a motivating factor for an employment decision, an employer

could still prevail if it could show that it would have reached

the same decision even in the absence of the discriminatory

motive. This section provides:
In General.-Section 703 of the Civil Rights Act of 1964 (42
     U.S.C. 2000e-2) . . . is further amended by adding at the
     end the following new subsection:
     “(m) Except as otherwise provided in this title, an



                                 43
          unlawful employment practice is established when the
          complaining party demonstrates that race, color,
     religion, sex, or national origin was a motivating factor
     for any employment practice, even though other factors also
     motivated this practice.”


Section 107(b) limits the available remedies in the case

envisioned by the Price Waterhouse Court: where the plaintiff

proves that discrimination was a motivating factor in the

employment decision but the defendant responds by demonstrating

that it would have reached the same result in the absence of the

unlawful motive.    In such a case, a court may not award damages

and may only grant declaratory relief, certain injunctive relief,

and the costs directly attributable to pursuing the claim under §

107(a).    42 U.S.C. § 2000e-5(g)(2)(B).

     Woodson contends that § 107 also effectively overruled

Griffiths and Miller and, accordingly, applies to his case.

Therefore, Woodson continues, the district court did not err in

instructing the jury that Scott could be found liable if

retaliation was a “motivating factor” in the decision to fire

Woodson.    In response, Scott argues that § 107 of the 1991 Act

does not apply and that Griffiths and Miller govern Woodson’s

retaliation claim.    It makes two separate contentions in support

of this argument: (1) that § 107 does not apply to retaliation

cases21; and (alternatively) (2) that § 107 does not apply to
     21
      The district court held that Scott failed to object on this
basis and hence waived the argument. Scott at trial made a
general objection to the charge, stating: “Your Honor, just for
the record, I’d like to note my objection to instructing on the
motivating factor without adding a reference to ‘had a
determinative effect’ on the case.” The district court believed
that Scott objected on the ground that § 107 did not apply to
pretext cases, as Scott had filed a pre-trial brief to that
effect. Because Scott did not object until after trial on the



                                 44
pretext, as opposed to mixed motive, cases.22

     We consider first whether § 107 applies to retaliation

cases.    As this is a question of statutory construction, we begin

as always with the plain meaning of § 107.   Section 107 on its

specific ground that § 107 does not apply in retaliation cases,
the district court deemed this objection waived under Fed. R.
Civ. P. 51. 898 F. Supp. at 305 & n.17. In its appellate brief,
Scott relied on its second argument and did not contest the
district court’s ruling on this point, though in a Fed. R. App.
P. 28(j) submission Scott did press the point after argument.
     Of course, even if the point was waived in the district
court, we could reach the question if the the instruction was
such that “the jury [was] without adequate guidance on a
fundamental question and our failure to consider the error would
result in a miscarriage of justice.” McAdam v. Dean Witter
Reynolds, Inc., 896 F.2d 750, 770 (3d Cir. 1990); Bennis v.
Gable, 823 F.2d 723, 727 (3d Cir. 1987); see also Selected Risks
Ins. Co. v. Bruno, 718 F.2d 67, 69 (3d Cir. 1983) (“It is the
general rule that a federal appellate court does not consider an
issue not passed upon below. This rule is one of discretion,
rather than jurisdiction, and in the past we have heard issues
not raised in the district court when prompted by exceptional
circumstances.” (footnote and citations omitted)). This is
arguably so here in view of the importance of the legal issue to
this case. We note too the plethora of employment discrimination
cases pending in the district courts of this circuit. At all
events, since this case must go back for a new trial, the
district court will have to charge on the issue and will need
guidance and hence we give it. We recognize that, if § 107 does
not apply to pretext cases, we would not need to reach this
issue, but we are not prepared to so hold at this time. On the
other hand, if we were to hold that § 107 does apply to pretext
cases, we would still have to reach the question whether § 107
applies to retaliation cases to resolve this issue. In sum,
although Scott probably waived the point, we need to reach it
anyway. The result, incidentally, confirms the need for a new
trial.
     22
      We observe that, although Miller was decided after the
effective date of the 1991 Act, it does not end our inquiry with
respect to whether § 107 applies to pretext claims. Miller was
brought under the Age Discrimination in Employment Act (ADEA).
Although historically we have relied on Title VII in crafting
ADEA law, we did not consider whether the 1991 Act changed the
standard to be used in pretext cases in Miller because the
“substantive provisions of the 1991 Act that amended Title VII
did not amend the ADEA, and Miller does not contend that section
107 is applicable to ADEA cases.” Miller, 47 F.3d at 599 n.10.




                                 45
face does not apply to retaliation claims.     It amends only 42

U.S.C. § 2000e-2, which prohibits discrimination “based on race,

religion, or national origin,” and does not mention § 2000e-3,

the retaliation provision.     Moreover, the wording of the

amendment does not even refer to retaliation claims, and

explicitly governs cases involving claims of discrimination based

only on “race, color, religion, sex or national origin.”      Hence

there is no reference in § 107 to either retaliation claims in

general or § 2000e-3 in particular, suggesting that Congress

intended that § 107 not apply to retaliation claims.     See Tanca

v. Nordberg, 98 F.3d 680, 682-83 (1st Cir. 1996) (holding that

plain meaning of § 107 requires that it not be applied to

retaliation claims), cert. denied, __ S. Ct. __, 65 U.S.L.W. 3518

(Mar. 17, 1997); Reiss v. Dalton, 845 F. Supp. 742, 744 (S.D.

Cal. 1993) (plain meaning of § 107 dictates exclusion of

retaliation claims).     If this is the case, then § 2000e-3 claims

of illicit retaliation are governed by the “determinative effect”

standard and Miller.23
     23
      Another court relied on a plain meaning argument to reach
the opposite conclusion. In Heywood v. Samaritan Health System,
902 F. Supp. 1076 (D. Ariz. 1995), the court cited to a
commentator who has concluded that § 107 applies to retaliation
claims because “‘[t]he section does not state this explicitly,
but the mixed motive clause defines the conditions under which an
“unlawful employment practice” is established. The anti-
retaliation provision of Title VII appears under the specific
heading of “[o]ther unlawful employment practices.”’” Id. at 1081
n.1 (quoting 2 Lex K. Larson, Employment Discrimination §
35.04[1]). We are not persuaded by this argument. By its own
terms, § 107 provides the standard for determining whether an
employment practice is unlawful “[e]xcept as otherwise provided
in this title.” Because § 107 does not reference retaliation and
§ 2000e-3 provides a standard for deciding retaliation cases, we
believe that the § 2000e-3 alone provides the standards for
judging whether an action was taken in retaliation for protected



                                  46
     Scott’s argument that § 107 does not govern retaliation

claims is supported by the fact that the 1991 Act elsewhere

specifically mentions retaliation claims.   Section 102 of the Act

provides that compensatory and punitive damages are available in

actions brought under § 2000e-2 and in actions brought under §

2000e-3.24   It is generally the case that “where Congress includes

particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate

inclusion or exclusion.”   Russello v. United States, 464 U.S. 16,

23 (1983) (internal quotation marks omitted).   Because Congress

dealt with retaliation claims elsewhere in the 1991 Act, but not

in § 107, it would seem reasonable to assume that § 107 does not

apply to retaliation claims.   See Tanca, 98 F.3d at 683-84;

Riess, 845 F. Supp. at 745.

     We are given pause by the fact that we and other courts have

generally borrowed from discrimination law in determining the

burdens and order of proof in retaliation cases.   This

understanding could lead us to the opposite result in considering

activity.
     24
      Additionally, although § 107(b), which governs the remedies
when a plaintiff proves that an impermissible factor motivated
the decision and the defendant demonstrates that the decision
would have occurred in the absence of that factor, also does not
mention retaliation, 42 U.S.C. § 2000e-5(5)(g)(2)(A), the
subsection that immediately precedes § 107(b) in codified form
does reference claims brought under § 2000e-3. See Riess, 845 F.
Supp. at 745 (“The fact that Congress expressly treated
Section 2000e-3(a) violations in such close proximity to Section
107(b) demonstrates that where Congress intended to address
retaliation violations, it knew how to do so and did so
explicitly.”).




                                 47
this question.   That is, we could say that Congress knew of the

practice of borrowing in retaliation cases, and presumed that

courts would continue this practice after the 1991 Act.

Considering the question with this assumption in mind, Congress’s

failure to reference § 2000e-3 specifically in § 107 would not

mean that § 107 does not apply in retaliation cases; rather, it

would mean that Congress assumed that it was unnecessary for it

to do so because courts would borrow the “motivating factor”

language in deciding retaliation claims.25

     We are not persuaded by this argument.    The legislative

history is at best unclear as to whether Congress intended that

retaliation claims would be governed by § 107.    It fails even to

mention retaliation claims specifically.     The most that Woodson

points to are general statements that Congress intended to make

it easier for plaintiffs to prevail in employment discrimination

cases by legislatively overruling Price Waterhouse: “If Title

VII’s ban on discrimination in employment is to be meaningful,

victims of proven discrimination must be able to obtain relief,

     25
      The House Report states that “[t]he Committee intends . . .
that other laws modeled after Title VII be interpreted
consistently in a manner consistent with Title VII as amended by
this Act. For example, disparate impact claims under the ADA
should be treated in the same manner as under Title VII.” H.R.
Rep. No. 40(II), 102d Cong., 1st Sess. 4 (1991), reprinted in
1991 U.S.C.C.A.N. 694, 697. While this might be read to suggest
that courts should apply the “motivating factor” standard in
retaliation cases, it could also be read to encourage borrowing
when deciding cases brought under different statutes rather than
different provisions in the same statute. Assuming, moreover,
that Congress knew of judicial borrowing in employment
discrimination cases, we could reach the conclusion that Congress
wanted to avoid borrowing in retaliation cases by referencing §
2000e-3 in some provisions of the 1991 Act but not in § 107.




                                48
and perpetrators of discrimination must be held liable for their

actions.    Price Waterhouse jeopardizes that fundamental

principle.”    H.R. Rep. 40(I), 102d Cong., 1st Sess. 47 (1991),

reprinted in 1991 U.S.C.C.A.N. 549, 585.   We find that such

statements do not evidence a clear intent that § 107 apply to

retaliation cases.26   It is a maxim of statutory interpretation

that “[a]bsent a clearly expressed legislative intention to the

contrary [the] language [of a statute] must ordinarily be

regarded as conclusive.”   Kaiser Aluminum & Chem. Corp. v.

Bonjorno, 494 U.S. 827, 835 (1990) (internal quotation marks

omitted).

     We thus must be guided by plain meaning, and we conclude

that § 107 does not apply to retaliation cases.27   Hence, the
     26
      One commentator has suggested that policy arguments also
counsel against reading the motivating factor instruction into
retaliation cases: “Congress may have been more concerned with
protecting individuals directly discriminated against because of
the prohibited factor itself than with those discriminated
against because they opposed an unlawful practice.” John L.
Flynn, Note, Mixed-Motive Causation Under the ADA: Linked
Statutes, Fuzzy Thinking and Clear Statements, 83 Geo. L.J. 2009,
2018 n.53 (1995).
     27
      In reaching the holding that § 107 does not apply to
retaliation claims, we note that while we follow some federal
courts, see Tanca, supra; Riess, supra; see also David A.
Cathcart & Mark Snyderman, The Civil Rights Act of 1991, C108
ALI-ABA 251, 292-93 (1994), other courts have apparently held
that § 107 does apply to retaliation claims. Most of these
courts, however, have applied § 107 to retaliation claims without
analysis. See Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 893
(7th Cir. 1996); Beinlich v. Curry Development, Inc., 1995 WL
311577, at *3 (4th Cir. May 22, 1995); Hall v. City of Brawley,
887 F. Supp. 1333 (S.D. Cal. 1995); Doe v. Kohn, Nast & Graf,
P.C., 862 F. Supp. 1310 (E.D. Pa. 1994) (ADA case); see also
Lewis v. American Foreign Serv. Ass’n, 846 F. Supp. 77, 82
(D.D.C. 1993) (applying § 107 to retaliation cases brought under
42 U.S.C. § 1981 because courts borrow from Title VII, without
considering whether § 107 applies to retaliation claims brought
under Title VII). The only case cited to us by the parties that



                                 49
district court abused its discretion in failing to instruct the

jury that improper motive must have had a determinative effect on

the decision to fire Woodson, as we required in Miller.28   Because

we have concluded that § 107 of the Civil Rights Act of 1991 does

not apply to Woodson’s claim, we need not reach the second

question: whether § 107 applies to “pretext” claims like

Woodson’s or whether it is limited to “mixed motive” claims.29

has specifically held that § 107 applies to retaliation cases,
however, is not persuasive and does not apply basic principles of
statutory construction as we have above. See Heywood, 902 F.
Supp. at 1081 & n.1 (acknowledging that neither § 107 nor the
legislative history mention retaliation claims but concluding
that “it is certainly reasonable to assume that the Congressional
policy articulated in the amendment and in the House report
reaches retaliation as well as the enumerated considerations”).
     We are further persuaded that the motivating factor
instruction was erroneous in this case because Woodson was
awarded both compensatory and punitive damages. Under § 107(b),
as we explained supra, a plaintiff who succeeds in showing that
an illegitimate factor motivated his or her termination cannot be
awarded damages if the employer demonstrates that it would have
made the same decision in the absence of the illegitimate motive.
 The district court did not instruct the jury that it must
determine whether Scott had shown that it would have fired him
even in the absence of the retaliatory motive, as § 107(b) would
seem to require.
     28
      The district court concluded that if there were any error
in the instruction given, this error was harmless because the
jury would have reached the same conclusion even if it had been
properly charged. Because the jury, in awarding punitive
damages, found that the defendant acted with “malice or reckless
indifference to [plaintiff’s] rights,” the district court
reasoned, the difference between “motivating” and “determinative”
was immaterial. 898 F. Supp. at 308. We disagree. The jury
could conceivably have concluded that Scott acted with malice
toward Woodson when it decided to terminate him based in part on
an illegitimate motive, even if that illegitimate factor did not
have a determinative effect.
     29
      With respect to this question, we note that, according to
Scott, the 1991 amendments were intended to overrule
legislatively the standards of liability established in Price
Waterhouse for mixed motives cases. The Supreme Court, in dicta,
has acknowledged as much: “§ 107 responds to Price Waterhouse v.
Hopkins by setting forth standards applicable in ‘mixed motive’



                                50
                          V.   Conclusion

     For the foregoing reasons, we will affirm in part and

reverse in part.   We agree with the district court that the

evidence is sufficient as a matter of law to support a jury

finding of unlawful retaliation by Scott against Woodson and to

that extent we affirm the denial of Scott’s Rule 50 motion.

However, because no verified complaint was filed with the

cases.” Landgraf v. USI Film Prods., 114 S. Ct. 1483, 1489-90
(1994). Moreover, the Fourth Circuit, the only circuit that has
specifically considered this issue, has held that § 107 only
governs mixed motive cases. Fuller v. Phipps, 67 F.3d 1137,
1143-44 (4th Cir. 1995).
     While Scott’s position has much to commend it, proper
resolution of this question is far from clear. As the district
court noted in rejecting Scott’s contention in this regard, there
is some support for the view that § 107(a) has created one
standard to be applied in both pretext and mixed motive cases.
The amendment itself is not limited to mixed motive cases, and
the legislative history provides additional support for this
position. See H.R. Rep. No. 40(I), 102d Cong., 1st Sess. 45, 48-
49 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 583, 586-87. Many
courts have applied § 107(a) to pretext cases, albeit
without discussion of this point, see, e.g., Harris v. Shelby
County Bd. of Educ., 99 F.3d 1078 (11th Cir. 1996); Hall v. City
of Brawley, 887 F. Supp. 1333 (S.D. Cal. 1995); Johnson v. El
Paso Pathology Group, P.A., 868 F. Supp. 852 (W.D. Tex. 1994),
and several model jury instructions suggest doing so as well,
see, e.g., American Bar Ass’n Model Jury Instructions for
Employment Litigation 1.02[1]; 1.02[2][a] (1994). This court has
expressly left open the question whether a “determinative effect”
instruction should be given in a pretext case after the 1991 Act.
 Hook v. Ernst & Young, 28 F.3d 366, 368, 371 (3d Cir. 1994).
Because we dispose of this case on other grounds, we again
decline to reach this issue.
     At all events, whatever the standard should be, there is
certainly considerable force to Judge Greenberg’s view that one
standard for both mixed motive and pretext cases would be far
preferable, and have the additional benefit of simplifying and
clarifying employment discrimination law. See Miller, 47 F.3d at
599 (Greenberg, J., concurring) (“I would dispense altogether
with the terms ‘pretext’ and ‘mixed motives’ and hold explicitly
that the same standard applies to all disparate treatment
cases.”).




                                51
Pennsylvania Human Relations Commission, we will reverse the

denial of the Rule 50 motion in this respect and direct the

district court to enter judgment in Scott’s favor on Woodson’s

retaliation claim under the Pennsylvania Human Relations Act.

Finally, because of errors in the jury instructions, we will

reverse the denial of the Rule 59 motion and remand for a new

trial on the retaliation claim.    The parties shall bear their own

costs.

                     _____________________




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