1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Woodson v. Scott Paper Co" (1997). 1997 Decisions. Paper 75.

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1

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
2

_______________________ 

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 posttrial 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 
3

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 
4

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 
5

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 
6

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. 
7

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 
8

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 firsthand 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 
9

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. 
10

 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 
11

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 
12

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; 
13

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. 
14

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. 
15

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 
16

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 
17

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, 
18

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 
19

 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. 
20

 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. 
21

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 
22

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. 
23

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 
24

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. 

 

10Section 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. 
25

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 
26

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. 

 

 

11The 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). 
27

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 
28

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 

 

 

12The 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. 
29

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 

 

 

13As 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. 

 

14Woodson 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 
30

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. 
31

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 

 

 

15We 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. 
32

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 
33

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 

 

 

16Scott 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 
34

 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. 

 

 

 
35

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
36

 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 

 

 

17Throughout 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. 
37

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 
38

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 
39

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. 

 

 

18This 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.” 
40

 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 
41

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 
42

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 

 

 

19The 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. 

 

20Our 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. 
43

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 
44

 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 

cases

21; and (alternatively) (2) that § 107 does not apply to 

 

 

21The 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 
45

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. 

 

22We 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. 
46

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

 

 

 

23Another 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 antiretaliation 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 
47

 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. 

 

24Additionally, 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.”). 
48

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, 

 

 

25The 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. 
49

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 

 

 

26One 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). 

 

27In 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 
50

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. 

 

28The 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. 

 

29With 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’ 
51

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.”). 
52

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. 

_____________________