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


12-21-2004

Wilhelm v. Comm of PA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2691




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"Wilhelm v. Comm of PA" (2004). 2004 Decisions. Paper 53.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/53


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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                    No: 03-2691


                             BARBARA A. WILHELM,
                                       Appellant

                                           v.

                          COMMONWEALTH OF PA;
                        PENNSYLVANIA STATE POLICE;
                       PAUL J. EVANKO, COMMISSIONER;
                              THOMAS K. COURY;
                            MICHAEL D. SIMMERS



                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                               (D.C. No. 01-cv-01057)
                     District Judge: Honorable Sylvia H. Rambo


                     Submitted Under Third Circuit LAR 34.1(a)
                                 on May 24, 2004

               BEFORE: ROTH and STAPLETON, Circuit Judges, and
                      SCHWARZER,* Senior District Judge

                         (Opinion Filed: December 21, 2004)




  *
   The Honorable William W Schwarzer, Senior United States District Judge for the
Northern District of California, sitting by designation.
ROTH, Circuit Judge:

       On September 11, 2002, Barbara Wilhelm won a jury verdict against the

Commonwealth of Pennsylvania for violation of the anti-retaliation provision of Title VII

of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-3(a). Wilhelm was awarded

$250,000 in damages. In addition, there was an equitable relief hearing on the issue of

Wilhelm’s request for front pay. This appeal arises from the District Court’s denial of

front pay.

                    I. FACTUAL AND PROCEDURAL HISTORY

       The retaliation incident occurred while Wilhelm worked for the Pennsylvania State

Police (PSP) as a Legislative Specialist. She alleged that she was terminated on May 1,

2000, in retaliation for complaining about incidents of sexual harassment. In addition to

her Title VII claim, Wilhelm had also asserted claims under the Equal Pay Act of 1963,

29 U.S.C. § 206(d), Pennsylvania’s Human Relations Act, 43 PA. CONS. STAT. ANN. §

955, and the state Whistleblower Act, 43 PA. CONS. STAT. ANN. § 1421. The District

Court granted summary judgment for the defendants on all charges except the Title VII

retaliation charge. At trial, the jury awarded Wilhelm $250,000 in damages for the

retaliation claim. The equitable hearing was then held to determine whether Wilhelm

should be reinstated or receive front pay.

       At the hearing, Wilhelm testified that she did not want to be reinstated with the



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PSP or with any other Commonwealth agency. She argued that her relationship with the

Commonwealth had become too contentious and that she could no longer trust the

Commonwealth. Wilhelm presented expert testimony at the hearing claiming that the

Commonwealth should pay her $944,336 for compensation. The defendants disputed this

claim and provided evidence that the Commonwealth was willing to reinstate Wilhelm in

a comparable position.

       Jeffrey Miller, the Acting Commissioner of the PSP, testified that the

Commonwealth was willing to place Wilhelm in the Department of Corrections as a

Deputy Press Secretary for six months and that the PSP would pay her salary during that

period – the same salary that she had received at the PSP. After the expiration of six

months, the Commonwealth would guarantee Wilhelm employment commensurate with

her skills. The District Court ordered the Commonwealth to reinstate Wilhelm in

accordance with Commissioner Miller’s testimony. Wilhelm appealed.

                                    II. DISCUSSION

       We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. Wilhelm

raised three issues on appeal: 1) whether the PSP acted in bad faith by failing to timely

disclose the proposed position for reinstatement, 2) whether the District Court erred in

allowing Commissioner Miller to testify about the proposed position, and 3) whether the

District Court erred in granting reinstatement as opposed to front pay.

                         A. Commissioner Miller’s Testimony



                                             3
       In reviewing whether the District Court erred in its evidentiary ruling to allow

Commissioner M iller to testify about the duties of the proposed Deputy Press Secretary

position, we use an abuse of discretion standard. Abrams v. Lightolier, Inc., 50 F.3d

1204, 1213 (3d. Cir. 1995). Wilhelm argues that Commissioner Miller lacked the

personal knowledge to testify about Wilhelm’s capability to hold the proposed position.

We disagree.

       Federal Rule of Evidence 602 provides in pertinent part, “[a] witness may not

testify to a matter unless evidence is introduced sufficient to support a finding the witness

has personal knowledge of the matter. Evidence to prove personal knowledge may . . .

consist of the witness’ own testimony.” Fed. R. Ev. 602. The court alerted Miller that

more was needed than simply stating that he had reviewed the job description. Miller

stated he was familiar with the position because he works with a press secretary in the

PSP and he had worked with press secretaries for years in the Governor’s office. He

opined that W ilhelm possessed the skills to excel in the press secretary post.

       The District Court has discretion to decide whether this burden of personal

knowledge has been met. See U.S. v. Lake, 150 F.3d. 269, 273 (3d. Cir. 1998). An abuse

of discretion occurs “when no reasonable person would adopt the district court’s view.”

Hanover Potato Prod., Inc. v. Shalala, 989 F.2d 123, 127 (3d Cir. 1993) (citation

omitted). A reasonable person would conclude that Miller’s experience qualified him to

testify about the position. Accordingly, we will affirm the allowance of Miller’s


                                              4
testimony.2

                                       B. Reinstatement

       Turning to the issue of reinstatement versus front pay, we conclude that the

District Court did not err by ordering reinstatement. The court has broad discretion to

determine whether reinstatement is proper; we will overrule it only if it abuses that

discretion. See Feldman v. Phila. Hous. Auth., 43 F.3d 823, 832 (3d Cir. 1994). We see

no abuse of discretion here.

       Whenever feasible, reinstatement is preferred over front pay. Maxfield v. Sinclair

Int’l, 766 F.2d 788, 796 (3d Cir. 1985). Reinstatement may not be feasible when there is

no position left or the relationship between the two parties is too hostile. Id. This is a

question for the District Court. Id.

       Here, there was a position available for Wilhelm in the Department of Corrections.

While the Deputy Press Secretary position was not identical to Wilhelm’s former position,

the District Court found that it was substantially similar. The court noted that the salary

was the same and that Wilhelm’s health and retirement benefits were to be restored so

that the records do not indicate that she ever left state employment. The court also found

that the responsibilities of the Deputy Press Secretary position are as substantial as




   2
    Because Wilhelm did not object when Miller was examined concerning the job
description or when it was admitted into evidence, we conclude that she waived her
objection to its untimely disclosure.

                                              5
Wilhelm’s previous post. Although Wilhelm contends that the two jobs are not

commensurate, the “process of recreating the past will necessarily involve a degree of

approximation and imprecision.” Int’l Bhd. Of Teamsters v. United States, 431 U.S. 324,

372 (1977). Therefore, we cannot conclude that the District Court abused its discretion

by holding that there was an available position which made reinstatement feasible.

       Wilhelm also contends that reinstatement was not feasible because she no longer

trusts the Commonwealth. The District Court found that Wilhelm’s distrust of the entire

Commonwealth was unreasonable. Wilhelm testified that before her time with the PSP,

she had enjoyed her employment in various Commonwealth positions. The employment

with the PSP amounted to only two years of her eighteen year Commonwealth career.

The Deputy Press Secretary position was within the Department of Corrections. The only

connection with the PSP was that the PSP was responsible for paying the first six months

of Wilhelm’s salary. Other than that, she would not be supervised by the PSP, nor

answerable to it. Moreover, Wilhelm sent resumes to Commonwealth agencies after the

jury trial had been completed. In view of the above evidence, we conclude that there was

no abuse of discretion by the District Court and that reinstatement was proper.


                                  III. CONCLUSION

       For the aforementioned reasons, we will affirm the judgment of the District Court.




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