1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-20-1996

Delli Santi v. CNA Insurance Co

Precedential or Non-Precedential:

Docket 94-5331,94-5347

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Recommended Citation

"Delli Santi v. CNA Insurance Co" (1996). 1996 Decisions. Paper 155.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 

 Nos. 94-5331 and 94-5347 

 ___________ 

 EVELYN DELLI SANTI 

 Appellant in No. 94-5331 

 vs. 

 CNA INSURANCE COMPANIES; 

 CONTINENTAL CASUALTY COMPANY; 

 RICHARD FARAH 

 EVELYN DELLI SANTI 

 vs. 

 CNA INSURANCE COMPANIES; 

 CONTINENTAL CASUALTY COMPANY; 

 RICHARD FARAH 

 CNA Insurance Companies; 

 Continental Casualty Company 

 Appellants in No. 94-5347 

 __________ 

 Appeal from the United States District Court 

 for the District of New Jersey 

 (D.C. Civ. No. 88-cv-05137) 

 ___________ 

 

 Argued 

 March 7, 1996 

 Before: MANSMANN* and ALITO, Circuit Judges, and 

 RESTANI, Judge, Court of International Trade.** 

 (Filed June 20, 1996) 

 ___________ 

* The Honorable William D. Hutchinson was a member of the 

original panel which heard argument in this appeal on March 6, 

1995. He died on October 8, 1995 before the appeal was resolved; 

Judge Mansmann was designated to serve in his place on the 

reconstituted panel. 

** Honorable Jane A. Restani, Judge, United States Court 

of International Trade, sitting by designation. 
William C. Slattery, Esquire (ARGUED) 

Norris, McLaughlin & Marcus 

721 Route 202-206 

P.O. Box 1018 

Somerville, NJ 08876 

Neil M. Mullin, Esquire 

Jon W. Green, Esquire 

Smith Mullin, P.C. 

200 Executive Drive 

Suite 155 

West Orange, NJ 07052 

 Counsel for Evelyn Delli Santi 

Jeffrey S. Goldman, Esquire 

Allison C. Blakely, Esquire (ARGUED) 

Fox & Grove 

311 South Wacker Drive 

Suite 6200 

Chicago, IL 60606 

 Counsel for CNA Insurance Companies 

 and Continental Casualty Company 

 ___________ 

 OPINION OF THE COURT 

 __________ 

MANSMANN, Circuit Judge. 

 In this discrimination case tried pursuant to the New 

Jersey Law Against Discrimination, the jury found that Evelyn 

Delli Santi proved by a preponderance of the evidence that CNA 

Insurance Company discharged her in retaliation for her 

complaints of age and sex discrimination. The jury specifically 

rejected CNA's assertion that it discharged Delli Santi because 

she allegedly inflated her gasoline expense records. 

Nonetheless, the district court granted CNA's motion for judgment 

as a matter of law and conditionally granted its motion for a new 

trial, holding that CNA proved as an affirmative defense that, 

despite retaliatory intent, it would have discharged Delli Santi 

in any event. 

 We find that, under these specific circumstances of the 

jury's rejection of the non-discriminatory reason proffered by 

the defense, the court could not utilize this evidence against 

the plaintiff. Therefore, since there was legally sufficient 

evidence to support the jury's verdict, we will vacate the 

district court's judgment as a matter of law on the affirmative 

defense for CNA. We will also vacate the district court's 

conditional grant of a new trial because, based upon our review 

of the record, the verdict was not against the clear weight of 

the evidence. 

 We will, however, affirm the district court's order 

granting CNA a new trial unless Delli Santi agrees to accept a 
remittitur of the jury's excessive pain and suffering award. 

Therefore, we will return this case to the district court for 

entry of judgment on the jury verdict, including the jury's front 

pay award of $152,266 representing Delli Santi's future economic 

losses. 

I. 

 In 1951, Evelyn Delli Santi began her employment as a 

typist clerk with The American Casualty Insurance Company, which 

eventually merged with CNA. By the mid-1960s, she was a firstparty claims handler. CNA continued to promote Delli Santi and, 

ultimately, she became a claims representative. Although CNA's 

home office is located in Chicago, Illinois, Delli Santi reported 

to the Cedar Knolls, New Jersey branch office, part of CNA's 

eastern region. 

 Delli Santi first complained about discrimination 

during an employee communication session ("ECS") with Richard 

Farah, a New Jersey branch claims manager, in October 1986. 

According to Delli Santi, she told Farah that her supervisors in 

the past informed her that the company would not promote her 

above grade level 34 until she came in from her field position. 

When Farah told her this was untrue and there were two men in 

field positions at grade level 36 (a higher level), Delli Santi 

stated: "[T]hat's pretty good. I said, that's discrimination, I 

says, sex and age. . . . And I told him, I didn't think the 

company really cared about promoting women because I had a 

problem once before, as you heard early on, when we merged, and I 

didn't think it was right." 

 In April 1987, Delli Santi complained of discrimination 

to Dennis McCarthy, her immediate supervisor, at her annual 

performance review. Dissatisfied with CNA's failure to promote 

her along with male counterparts in the field, she said, "[T]here 

you go, there it is, discrimination. I said, this is not fair, 

and I'm not happy at all with this situation." According to 

Delli Santi, McCarthy told her that she should talk to Farah 

about her complaints. 

 The third discrimination complaint arose one week later 

in another ECS meeting with Farah. There Delli Santi voiced her 

disapproval about the refusal to promote her to grade level 36, 

stating "[A]s far as I'm concerned it's more discrimination, 

harassment, age and sex discrimination, and its not right, and 

I'm not happy with it at all." 

 After making these complaints, Delli Santi's expense 

reports were called into question. Delli Santi's gas mileage 

and the number of handwritten receipts for her May expense report 

were substantially the same as they were in three previous 

expense submissions that McCarthy and Farah had reviewed and 

approved for the last half of March and all of April 1987. When 

Delli Santi submitted her expense reports for May 1987, however, 

McCarthy took exception to the amount reported for gas purchases 

because "the numbers were a little bit off." Delli Santi's May 

1987 expense reports reflected fifteen gasoline purchases during 

a thirty-one day period in which she drove less than 800 miles. 

Only four of the gasoline purchases were documented by 
identifiable service station receipts. The remaining eleven 

purchases were documented by Delli Santi's own "in lieu of" 

vouchers, which had handwritten dollar amounts and dates, an 

acceptable alternative to service station receipts. 

 Subsequently, CNA conducted an internal investigation 

into Delli Santi's expense accounts. Based upon the results of 

this investigation, CNA concluded that Delli Santi had inflated 

her expense accounts. On September 16, 1987, CNA terminated 

Delli Santi after thirty-six years of employment ostensibly 

because she misrepresented her gas expenses for her company car. 

At the time Delli Santi was 59 years old. 

 In October 1988, Delli Santi filed a multi-count 

complaint in a New Jersey state court against CNA and Farah. 

Delli Santi's original complaint included claims pursuant to both 

the federal Age Discrimination in Employment Act ("ADEA"), 29 

U.S.C.  621-634 (1994) and the New Jersey Law Against 

Discrimination ("LAD"), N.J. Stat. Ann.  10:5-12d (West Supp. 

1994). CNA removed the case to the U.S. District Court for the 

District of New Jersey. Prior to trial, however, Delli Santi 

abandoned her ADEA claim. Consequently, after the district court 

disposed of all pre-trial motions, the sole issue for the jury to 

decide was whether the evidence supported Delli Santi's LAD 

retaliation claim. This claim was tried to a jury from January 

20 to February 10, 1994. 

 At trial, Delli Santi argued that CNA singled her out 

for termination, not because she falsified her expense accounts, 

but because she had complained about discrimination. In support, 

Delli Santi relied, inter alia, upon the following stipulation, 

which was read to the jury: 

 According to the CNA fleet reports, from 

 January 1985 through March 1988, 215 persons 

 achieved a mileage of less than 10 miles per 

 gallon in one of the 13 quarters reported. 

 Of those persons, 31 had a reported mileage 

 of less than 10 miles per gallon in more than 

 one reporting quarter. 

App. at 1090. 

 In addition to the above stipulation, Delli Santi 

pointed to the following October 27, 1987 internal CNA memo, 

which was issued to all fleet services managers: 

 We have discovered situations such as 

 vehicles consistently averaging less than 10 

 miles per gallon (our fleet averages 23+ 

 m.p.g.) . . . . In some instances, these 

 conditions have existed for several quarters 

 which is an indication that drivers are not 

 being counseled. 

App. at 326. Although the memo advised managers to "counsel" 

these drivers, there was no directive to investigate, discipline 

or terminate any of them. 

 The memo referring to widespread instances of arguably 

suspicious low mileage similar to Delli Santi's was also 
distributed to David Koester, senior vice president of 

administration, who testified at trial that no action whatsoever 

was taken against these drivers. Indeed, Koester and Kent 

Crassweller, an investigation manager, conceded that they were 

not aware of anyone -- except Delli Santi -- who was 

investigated, disciplined or terminated for reporting low gas 

mileage. Koester's testimony, however, is at odds with his 

statement that any fleet driver reporting under ten miles per 

gallon should have been investigated because "it's an indicator 

of some issue." 

 At trial, CNA introduced the following evidence. 

Larry Schroeder, the Chicago corporate security manager, reviewed 

Delli Santi's May expense report and decided to open an 

investigation. Schroeder stated that he opened the Delli Santi 

investigation because the handwritten vouchers, coupled with the 

low mileage, were "strange." Accordingly, in June 1987 

Crassweller, an investigation manager, and Kathy Foster, a 

regional personnel manager, interviewed Delli Santi, asking her 

to explain the handwritten receipts. Delli Santi stated that she 

wrote them herself on receipt pads from her brother's business. 

When questioned about her gas mileage, Delli Santi stated that 

the car "gets what it gets" and explained that (1) she sometimes 

would allow her car to idle (running the air conditioner or 

heater depending on the season); (2) children might be stealing 

gas from her car; and (3) the car "ran rough." Following the 

interview, Crassweller reported this conversation to Schroeder 

and Robert Keith, corporate security manager. 

 Crassweller then returned to Chicago and supervised a 

review of several of Delli Santi's past expense reports, which 

revealed the following: if Delli Santi's handwritten generic 

receipts were totally discounted and her gasoline calculated 

solely on the basis of verifiable service station receipts, the 

gasoline mileage for her 1984 Dodge Aries K would have been 

eighteen miles per gallon for the first quarter of 1986; twentyfour miles per gallon for the third quarter of 1986; seventeen 

miles per gallon for the fourth quarter of 1986; and sixteen 

miles per gallon for the first quarter of 1987. These averages 

were consistent with the estimated mileage of twenty-three miles 

per gallon for her vehicle and the company's fleet-wide average 

of approximately twenty-three-and-a-half miles per gallon. 

 The investigation into Delli Santi's expense reports, 

over a period of more than three years, revealed an inverse 

relationship between the average number of handwritten receipts 

submitted per expense period and gasoline mileage. In 1984, 

Delli Santi averaged eleven to thirteen miles per gallon, with an 

average of two to three handwritten receipts per expense period; 

in 1985, she averaged about ten miles per gallon, with an average 

of three to four handwritten receipts; in 1986, she was getting 

about seven miles per gallon, with an average of four handwritten 

receipts per expense period; and, finally, in 1987, Delli Santi 

got only six miles per gallon, with an average of five 

handwritten receipts per expense period. 

 CNA's corporate security manager, Robert Keith, stated 

that he was "highly suspicious" and believed Delli Santi was 
stealing, but he was reluctant to terminate Delli Santi without 

first affording her the benefit of the doubt. Because Delli 

Santi had stated at the outset of the investigation that the car 

"ran rough," Keith decided to have her car test driven. 

Accordingly, Farah directed Leonard Polizzi, a manager in another 

CNA office, to test drive the car and keep a record of the gas 

mileage. Polizzi drove Delli Santi's car back and forth to his 

office, a round trip of eighty miles per day, and reported that 

the car had given him twenty-four to twenty-seven miles per 

gallon with no mechanical problems. Because Polizzi performed 

the test drive generally under highway conditions, the test drive 

may not have duplicated Delli Santi's exact driving conditions. 

 Keith testified nonetheless that the test drive results 

confirmed his belief that Delli Santi used inflated expense 

accounts to steal. He immediately reported this belief to his 

superior David Koester, senior vice president of administration, 

and Carolyn Murphy, senior vice president of field operations. 

Koester and Murphy, who are both located in Chicago, agreed with 

Keith. 

 After reviewing the recommendations, Meyer and Keith 

discussed the matter. Keith told Meyer that he had already 

discussed the matter with Koester and Murphy and had informed 

Meyer that the penalty for employee theft at CNA was uniform and 

unyielding: mandatory termination. Specifically, Keith 

testified: 

 [W]e do not make exceptions to our policy and 

 practice of terminating people who either lie 

 to us, or who steal from us. We don't make 

 an exception. We never have, we can't make 

 an exception for the reason of, there has to 

 be fairness and consistency, and people need 

 to understand the rules, and that's what 

 we've done in the past, and that's what we'll 

 continue to do in the future. It's the only 

 way we can run a company. 

App. at 1375. 

 At the close of this evidence, on February 10, 1994, 

the jury returned a verdict in favor of Delli Santi. Answering 

specific interrogatories, the jury found: that Delli Santi 

proved by a preponderance of the evidence that CNA discharged her 

in retaliation for her complaints about discrimination; and that 

CNA failed to prove that, even though it terminated Delli Santi 

in retaliation for her complaints about discrimination, CNA would 

have discharged her in any event for stealing. The jury returned 

a $627,866 award for compensatory damages, assessing $300,000 for 

pain and suffering. The district court declined to submit the 

issue of punitive damages to the jury. On February 22, the 

district court entered judgment on the jury verdict. 

 Subsequently the district court entered a post-judgment 

order granting judgment as a matter of law in CNA's favor because 

the court agreed with CNA's claim that it would have discharged 

Delli Santi, regardless of retaliatory intent, due to CNA's 

discovery that CNA had allegedly falsified her expense accounts. 
In addition to granting judgment as a matter of law on this 

claim, the district court conditionally granted a new trial. 

Further, the district court conditionally granted a new trial 

based upon damages unless Delli Santi accepted a remittitur of 

the pain and suffering award from $300,000 to $5,000. The 

district court granted CNA's motion for a remittitur on the basis 

of future earnings totaling $152,266 because it found that Delli 

Santi was ineligible for reinstatement with CNA. Finally, the 

district court denied, without prejudice, Delli Santi's 

application for pre-judgment interest and request for counsel 

fees and expenses. Both parties filed timely notices of appeal. 

 II. 

 The New Jersey Law Against Discrimination "makes 

retaliatory discrimination an unlawful employment practice." 

Jamison v. Rockaway Township. Bd. of Educ., 577 A.2d 177, 182 

(N.J. Super. Ct. App. Div. 1990). An unlawful employment 

practice occurs when a person, whether an employer or employee, 

takes "reprisals against any person because that person has 

opposed any practices or acts forbidden under this act or because 

that person has filed a complaint, testified or assisted in any 

proceeding under this act." N.J. Stat. Ann.  10:5-12d. 

 To establish a prima facie case of retaliation, an 

employee must show by a preponderance of the evidence that (1) he 

or she "engaged in a protected activity known to the employer;" 

(2) he or she thereafter was "subjected to [an] adverse 

employment decision by the employer;" and (3) there was a "causal 

link" between the protected activity and adverse employment 

decision. Jamison, 577 A.2d at 182 (citing Wrighten v. 

Metropolitan Hosps., Inc., 726 F.2d 1346, 1354 (9th Cir. 1984) 

and Velantzas v. Colgate-Palmolive Co., Inc., 536 A.2d 237, 238 

n.1 (N.J. 1988)); accord Craig v. Suburban Cablevision, Inc., 660 

A.2d 505, 508 (N.J. 1995) (citing Jamison, 577 A.2d 177 and 

Wrighten, 726 F.2d at 1354); Wachstein v. Slocum, 625 A.2d 527, 

534 (N.J. Super. App. Div.), certif. denied, 636 A.2d 521 (N.J. 

1993); see also Robinson v. Southeastern Pa. Transp. Auth., 982 

F.2d 892, 895 n.1 (3d Cir. 1993); Quiroga v. Hasbro, Inc., 934 

F.2d 497, 501 (3d Cir.), cert. denied, 502 U.S. 940 (1991); Jalil 

v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1988), cert. denied, 

493 U.S. 1023 (1990). 

 Once an employee succeeds in showing these facts, he or 

she establishes a prima facie case of retaliation and the burden 

of production (although not the burden of persuasion) "shifts to 

the employer to articulate some legitimate non-retaliatory reason 

for the adverse action." Jamison, 577 A.2d at 182 (citing 

Wrighten, 726 F.2d at 1354). If the employer comes forward with 

evidence showing some legitimate non-retaliatory reason, the 

employee still has the opportunity to produce evidence sufficient 

to persuade the factfinder by a preponderance of the evidence 

that the employer nevertheless harbored a discriminatory intent. 

Id. An employee can make this showing by producing evidence and 

proving to the factfinder's satisfaction that "the articulated 

reason is a pretext for the retaliation or that a discriminatory 

reason more likely motivated the employer." Id. (citing 
Wrighten, 726 F.2d at 1354 (citing Texas Dep't. of Community 

Affairs v. Burdine, 450 U.S. 248, 256 (1981)). 

 Assuming the employee meets this burden, a presumption 

arises under New Jersey law "that the adverse employment action 

was the product of improper retaliatory intent." Id. (citing 

Wrighten 726 F.2d at 1354). Then "the employer must prove by the 

preponderance of the evidence that the adverse action would have 

been taken regardless of retaliatory intent." Id. (citing 

Wrighten, 726 F.2d at 1354). But see Jalil, 873 F.2d at 706 

(ultimate burden of persuasion always remains with the employee 

who seeks to prove a retaliation claim). 

 A. 

 At trial, CNA moved for judgment as a matter of law at 

the close of Delli Santi's case and again at the close of all the 

evidence, arguing that Delli Santi had not adduced sufficient 

evidence to meet either her prima facie burden or her burden of 

proving pretext. On cross-appeal, CNA asks us to review the 

district court's denial of its motion which sought judgment that 

CNA had not discharged Delli Santi out of retaliation for her 

complaints of discrimination. 

 We exercise plenary review over the district court's 

order granting a Rule 50(b) motion for judgment as a matter of 

law. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d 

Cir. 1993) (citing Wittekamp v. Gulf & Western, Inc., 991 F.2d 

1137, 1141 (3d Cir.), cert. denied, 114 S. Ct. 309 (1993)). Our 

role is to determine "whether the evidence and justifiable 

inferences most favorable to the [non-moving] party afford any 

rational basis for the verdict." Anastasio v. Schering Corp., 

838 F.2d 701, 705 (3d Cir. 1988) (citing Bhaya v. Westinghouse 

Electric Corp., 832 F.2d 258, 259 (3d Cir. 1987), cert. denied, 

488 U.S. 1004 (1989)); Blum v. Witco Chem. Corp., 829 F.2d 367, 

372 (3d Cir. 1987). 

 In our view, Delli Santi presented sufficient evidence 

to allow a rational jury to find that her supervisors (who were 

aware of her discrimination complaints) possessed a retaliatory 

intent and, thus, tainted the ultimate decision. For years 

Delli Santi submitted expense reports indicating low gas mileage 

without incident. In fact, in February 1986, Farah (who at the 

time was substituting for Powell) approved Delli Santi's expense 

report even though she reported less than five miles per gallon. 

He and McCarthy thereafter approved Delli Santi's gas 

expenditures on three separate occasions (the last half of March 

and all of April 1987) when she reported gas mileage well under 

ten miles per gallon. So, too, Franceschini approved Delli 

Santi's expense reports in December 1986 and January 1987 even 

though she reported less than ten miles per gallon. The reports 

approved by McCarthy, Farah and Franceschini did not differ 

significantly from her May 1987 expense report. It was only 

after Delli Santi voiced concerns about discrimination that CNA 

decided to investigate her gas expense reports because the 

numbers, which were the same for years, were now "a little bit 

off." 

 We also find that there was sufficient evidence to 

support the jury's finding that CNA's proffered reason for Delli 
Santi's termination was pretextual. Despite Koester's statement 

that CNA had a policy of investigating drivers reporting less 

than ten miles per gallon, "there was uncontested evidence of 

CNA's inertia in the face of its knowledge that some 215 

employees had achieved mileage of less than 10 miles per gallon. 

Of these, 31 had reported mileage of less than 10 miles per 

gallon in more than one reporting period." See Delli Santi, No. 

88-5137, slip op. at 15-16. A CNA internal memorandum reported 

that CNA was aware of drivers "consistently averaging less than 

10 miles per gallon" and, "[i]n some instances, these conditions 

have existed for several quarters"; yet, Koester "was unaware of 

any driver who reported less than ten miles per gallon ever being 

investigated by Corporate Security or ever being terminated for 

misrepresentation of his gas expenses." Id. at 16.

 Thus, there was ample evidence from which the jury 

could infer that CNA singled out Delli Santi given that it did 

not investigate, discipline or terminate any other employee who 

reported low gas mileage. Accordingly, the district court did 

not err in denying CNA's motion for judgment as a matter of law 

based on its retaliation claim. 

 B. 

 On the basis of this evidence, however, the district 

court conditionally granted CNA a new trial on Delli Santi's 

retaliation claim. In reviewing the district court's decision to 

set aside the verdict as against the clear weight of the 

evidence, we "exercise a closer degree of scrutiny and 

supervision" because this case deals with "material which is 

familiar and simple, . . . lying well within the comprehension of 

[the] jurors. . . ." Klein v. Hollings, 992 F.2d 1285, 1290 (3d 

Cir. 1993) (internal quotes omitted) (ellipses and alteration in 

original). Because the subject matter of this case "is simple 

and within a layman's understanding," we give the district court 

"less freedom to scrutinize the jury's verdict than in a case 

that deals with complex factual determinations." Id. (internal 

quote omitted). 

 With respect to the court's ruling that the verdict was 

against the clear weight of the evidence, we caution that the 

district court ought only to grant a new trial on this basis 

where "a miscarriage of justice would result if the verdict were 

to stand." Fineman v. Armstrong World Indus., Inc., 980 F.2d 

171, 211 (3d Cir. 1992) (quoting Williamson v. Consolidated Rail 

Corp., 926 F.2d 1344, 1352 (3d Cir. 1991)). We have observed 

that "[t]his limit upon the district court's power to grant a new 

trial seeks to ensure that a district court does not substitute 

its `judgment of the facts and the credibility of the witnesses 

for that of the jury'." Id. (quoting Lind v. Schenley Indus., 

Inc., 278 F.2d 79, 90 (3d Cir.) (in banc), cert. denied, 364 U.S. 

835 (1960)). "Such an action effects a denigration of the jury 

system and to the extent that new trials are granted the judge 

takes over, if he does not usurp, the prime function of the jury 

as the trier of facts." Id. With this standard of review in 

mind, we turn to the merits of the new trial motion. 

 In considering CNA's motion for a new trial, the 
district court decided that Delli Santi presented sufficient 

evidence to establish a prima facie case of retaliation. 

Nevertheless, without repudiating its earlier determination (on 

CNA's motion for judgment as a matter of law) that Delli Santi 

"generated enough speculation in the eyes of the jury to allow 

them to dismiss CNA's explanation as pretext," Delli Santi, No. 

88-5137, slip op. at 17, the district court concluded that the 

jury's finding of pretext was against the weight of the 

evidence. 

 We believe that the jury could have rationally inferred 

that the Chicago decision-makers -- Koester, Keith, and Murphy -- 

were not the effective decision-makers, but rather their decision 

to fire Delli Santi was influenced by her managers in New Jersey. 

Though CNA terminated Delli Santi on September 16, 1987, after 

McCarthy, Farah, Franceschini, Foster, Meyer, and Ottinger had 

signed Delli Santi's termination notice, neither Koester nor 

Murphy signed the internal termination document until about one 

week later. Koester's own testimony buttressed this posttermination approval when he admitted that he did not sign the 

internal termination document until September 22, 1987. Keith 

conceded on cross-examination that no relevant documents 

suggested that Koester and Murphy took part in the decisionmaking process before September 22, 1987, six days after Delli 

Santi's termination. Ottinger, moreover, testified that once 

Meyer announced his decision to approve Delli Santi's termination 

at a late August 1987 meeting, which Koester, Keith, and Murphy 

did not attend, the firing would have occurred by the next day 

except for the fact that Delli Santi was on vacation. Thus, the 

jury had an entirely rational basis for concluding that the 

Chicago decision-makers did not base their decision "completely 

on the basis of the investigation by Corporate Security" and 

their "overwhelming reasonable belief that Delli Santi was 

stealing from the company through the submission of fraudulent 

expense reports," see Delli Santi, No. 88-5137, slip op. at 30, 

but instead that her termination was the product of a retaliatory 

animus on the part of her New Jersey branch office supervisors. 

 In addition, the memorandum and the stipulation 

indicating CNA's failure to investigate, terminate or otherwise 

discipline any other employee who appeared to inflate gas 

purchases support the jury's finding that the articulated reason 

for discharging Delli Santi was a pretext. Although the district 

court recognized that Delli Santi could defeat CNA's motion for a 

conditional grant of a new trial if she "prove[d] that she was 

singled out; that others had submitted the same or substantially 

similar expense reports and had not been disciplined in a like 

manner," the court failed to consider other substantial evidence; 

namely, that for almost fourteen years Delli Santi had submitted 

similar reports without anyone questioning her gas expenditures, 

that Farah and McCarthy initiated the so-called "investigation" 

into Delli Santi's expense reports only after she had complained 

to them about sex and age discrimination, that over two hundred 

other drivers similarly reported under ten miles per gallon of 

gas, and over thirty fleet drivers did so in more than one 

reporting period. CNA, however, never disciplined, investigated, 
or terminated a single employee for the same reason it terminated 

Delli Santi. 

 The district court should not have required Delli Santi 

to prove "selective enforcement of CNA's policy against employee 

theft." Instead, Delli Santi met her burden of showing that the 

company did not enforce such a policy by the evidence that other 

employees were claiming excessive gasoline expenses without any 

fear of investigation or repercussion, nor especially, 

termination. The jury, by drawing reasonable inferences from the 

evidence adduced at trial, could rationally conclude that the 

legitimate non-retaliatory reason offered by CNA was a pretext 

for discharging Delli Santi. We, therefore, conclude that the 

grant of a new trial was not consistent with a sound exercise of 

discretion since the jury's finding of pretext was supported by 

the clear weight of the evidence. 

 C. 

 Although the district court found that Delli Santi met 

her burden of proving retaliatory discharge, the district court 

held that CNA was nonetheless entitled, after the jury verdict 

and as an "affirmative defense", to argue to the court that 

although there may have been retaliatory intent in her 

termination, Delli Santi would still have been dismissed in any 

event due to her fraudulent expense submissions. 

 A district court should enter judgment for an employer 

as a matter of law on its "affirmative defense" "only if the 

record shows that [the employer] established the defense so 

clearly that no rational jury could have found to the contrary." 

E.E.O.C. v. State of Del. Dept. of Health and Social Servs., 865 

F.2d 1408, 1414 (3d Cir. 1989) (citing Fireman's Fund Ins. Co. v. 

Videfreeze Corp., 540 F.2d 1171, 1177 (3d Cir. 1976), cert. 

denied, 429 U.S. 1053 (1977), and Arkwright Mut. Ins. Co. v. 

Philadelphia Elec. Co., 427 F.2d 1273, 1275 (3d Cir. 1970)) 

(footnote omitted). Here, too, "we must view the evidence most 

favorably to [the employee] and accord [her] the benefit of all 

justifiable inferences." Id. (citing Bhaya, 832 F.2d at 259 and 

Aloe Coal Co. v. Clark Equip. Co., 816 F.2d 110, 113 (3d Cir.), 

cert. denied, 484 U.S. 853 (1987)). 

 In granting CNA's motion for a judgment as a matter of 

law on its "affirmative defense," the court reasoned that the 

ultimate decision-makers (Koester, Keith, and Murphy) were 

unaware of any retaliatory intent and, given the "overwhelming 

evidence of Delli Santi's theft," coupled with CNA's policy to 

terminate those employees who it believed were stealing, there 

was no evidence "from which a jury could have rationally inferred 

that CNA would not terminate an employee who the company believed 

was engaging in expense account misrepresentation." Delli Santi, 

No. 88-5137, slip op. at 25-26. 

 We cannot agree with the district court's statement 

that "[t]here was no evidence from which a jury could have 

rationally inferred that CNA would not terminate an employee who 

the company believed was engaging in expense account 

misrepresentation." Delli Santi, No. 88-5137, slip op. at 25-26. 

In so concluding, we are drawn again to the stipulation that over 
200 CNA employees were reporting mileage of less than ten miles 

per gallon and CNA's awareness of this fact as evidenced by the 

October 27, 1987, internal memorandum conceding that these 

drivers were not being counseled. See supra pp. 7-8. 

 With this evidence, a jury could have rationally 

inferred that CNA was singling out Delli Santi based upon her 

discrimination claims because it failed to investigate, 

discipline or terminate any other employee (over 200 of them) for 

unexplainably low gas mileage, which, as stated by Koester, "is 

an indicator of some issue." Because Koester and Crassweller 

admitted during trial that they were not aware of CNA 

investigating, disciplining, or terminating persons other than 

Delli Santi for reporting excessively low gas mileage, the jury 

could conclude both that low gas mileage was "an indicator of 

some issue" only because Delli Santi voiced discrimination claims 

and that CNA's policy against company theft did not dictate Delli 

Santi's (or anyone else's) termination for inflating gas 

expenditures. 

 Our conclusion is further supported by the evidence 

that, to the time of trial, CNA had failed to enforce its policy 

against expense account fraud. A CNA employee, Harold Ronin, 

stated that even though CNA fleet records accurately reflected 

drivers reporting under ten miles per gallon, he had no intention 

whatsoever of sending their names to corporate security for 

possible investigation. Thus, despite Keith's admonition that 

CNA does not "make exceptions to [its] policy and practice of 

terminating people who either lie to us, or who steal from us," a 

reasonable factfinder could conclude that the evidence of 

fraudulent gas expense reports would not have led to Delli 

Santi's termination on legitimate grounds. 

 Finally, we consider whether the district court erred 

when it conditionally granted CNA a new trial on its "affirmative 

defense." Our reasoning here follows that which we have 

already stated in reversing the district court's order granting 

CNA's motion for judgment as a matter of law on this "affirmative 

defense." Briefly, we hold that CNA failed to meet its burden of 

persuasion on this issue because the jury rejected outright CNA's 

assertion that Delli Santi was discharged for theft. Indeed, 

once the jury found that CNA's proffered reason for Delli Santi's 

discharge (employee theft) was a pretext, the district court 

could not later rely on this reason, raised as an affirmative 

defense in a post-verdict motion. Once again, on the basis of 

this record, we cannot say that the verdict was against the clear 

weight of the evidence. 

 

 III. 

 After the jury's verdict for Delli Santi, the district 

court also entered judgment for CNA as a matter of law on the 

issue of whether Delli Santi was ineligible for future employment 

or front pay because of her alleged theft. The district court 

relied upon Massey v. Trump's Castle Hotel and Casino, 828 F. 

Supp. 314 (D.N.J. 1993), where the court held that an employer 

who unlawfully discharges an employee could use after-acquired 

evidence (which would have led to the employee's termination on 
lawful and legitimate grounds) "to bar the specific remedies of 

reinstatement and front-pay if the employer demonstrates that, 

based solely on that misconduct, it would have made the same 

employment decision regarding that employee." Id. at 328. The 

court in Massey reasoned that "to require employers to reinstate 

or provide front-pay to an employee today that they can now fire 

legitimately tomorrow would be nonsensical." Id. at 323. SeeMcKennon v. 

Nashville Banner Publ. Co., 115 S. Ct. 879, 886 

(1995) (where employer discovers after termination, that employee 

engaged in wrongdoing, generally "neither reinstatement nor front 

pay is an appropriate remedy"). 

 We find that the district court erred by allowing CNA 

to assert as an "affirmative defense" its claim that Delli Santi 

was ineligible for front pay because this case does not involve 

after-acquired evidence. In Mardell v. Harleysville Life Ins. 

Co., 31 F.3d 1221, 1228 (3d Cir. 1994), abrogated by McKennon, 

115 S. Ct. 879 (1995), we distinguished an after-acquired 

evidence case by stating: 

 What sets an after-acquired evidence case far 

 apart from a mixed-motives case like Price

 Waterhouse or a pretext case like McDonnell 

 Douglas is that the articulated "legitimate" 

 reason, which was non-existent at the time of 

 the adverse decision, could not possibly have 

 motivated the employer to the slightest 

 degree. After-acquired evidence, simply put, 

 is not relevant in establishing liability 

 under Title VII or ADEA because the sole 

 question to be answered at that stage is 

 whether the employer discriminated against

 the employee on the basis of an impermissible 

 factor at the instant of the adverse 

 employment action. 

Mardell, 31 F.3d at 1228. Here, CNA's articulated reason (that 

Delli Santi allegedly inflated her gas receipts) was known to CNA 

at the time of the adverse action; indeed, CNA claims that it was 

the very reason for the discharge. Delli Santi's alleged 

wrongdoing did not arise after the fact but, instead, allegedly 

motivated CNA to discharge her in the first instance. 

 This case is unlike the case where a different and 

legitimate reason for discharge is discovered by the employer 

after its adverse employment action for another reason as well. 

Here, CNA's stated reason for Delli Santi's discharge, theft, was 

specifically rejected by the jury. By its own findings, the jury 

expressed its disbelief that in the absence of a retaliatory 

motive CNA would have made the same decision to discharge Delli 

Santi. Instead, the jury drew the opposite inference (based upon 

the evidence that CNA did not investigate, discipline or 

terminate any other employee who was reporting low gas mileage 

and CNA's internal memorandum stating that these drivers should 

be counseled) that Delli Santi would not have been discharged for 

stealing. Accordingly, we will reinstate the jury's award of 

$152,266 representing Delli Santi's front pay. 
 IV. 

 Under the LAD, an employee can recover damages for pain 

and suffering. N.J. Stat. Ann.  10:5-3; Catalane v. Gilian 

Instrument Corp., 638 A.2d 1341, 1353 (N.J. Super. Ct. App. 

Div.), certif. denied, 642 A.2d 1006 (N.J. 1994). To recover 

these damages, an employee does not need to present either expert 

testimony or objective corroboration. See Rendine v. Pantzer, 

648 A.2d at 245; see also Bolden v. Septa, 21 F.3d 29, 34 (3d 

Cir. 1994) (expert medical testimony is not required to prove 

damages for emotional distress in a case brought under  1983). 

We hasten to add, however, that "New Jersey courts have been 

careful to award such damages only in cases where the record 

demonstrates a `substantial basis for compensation.'" Abrams v. 

Lightolier, Inc., 841 F. Supp. 584, 593 (D.N.J. 1994) (quoting 

Castellano v. Linden Bd. of Educ., 400 A.2d 1182, 1184 (N.J. 

1979)), aff'd, 50 F.3d 1204 (3d Cir. 1995). 

 Here, the jury awarded Delli Santi $300,000 for pain 

and suffering. The district court, however, conditionally 

granted CNA a new trial on damages if Delli Santi refused to 

accept a remittitur of the pain and suffering award from $300,000 

to $5,000, reasoning that although "Delli Santi's testimony 

supported an award for pain and suffering it did not support one 

so large." Delli Santi, No. 88-5137, slip op. at 40-41. 

 Delli Santi argues that the district court overlooked 

substantial evidence when it concluded that her testimony did not 

support an emotional damage award "so large," id. at 41, namely, 

the humiliation and emotional damages flowing from the loss of 

her reputation. At trial Delli Santi testified that she was 

"terrified" to interview with prospective employers, "afraid" to 

network with people in the industry, and her social life nearly 

ceased to exist -- all because people might "find out" the 

alleged reason for her firing. 

 We stress our "severely limited" role in reviewing the 

question of whether the district court abused its discretion in 

remitting the pain and suffering award. We "may disturb the 

district court's determination with respect to a remittitur only 

for abuse of discretion, and reverse and grant a new trial only 

if the verdict is so grossly excessive as to shock the judicial 

conscience." Gumbs v. Pueblo Int'l., Inc., 823 F.2d 768, 771 (3d 

Cir. 1987) (internal quotes omitted); see also Williams v. Martin 

Marietta Alumina, Inc., 817 F.2d 1030, 1038 (3d Cir. 1987) (court 

must "review a damage award to determine if it is rationally 

based"); Walters v. Mintec/Int'l., 758 F.2d 73, 82 (3d Cir. 1985) 

("a district court should be alert to its responsibility to see 

that jury awards do not extend beyond all reasonable bounds"). 

Our role is even more limited than the district court's; we must 

give "additional deference" where the district court has already 

granted a remittitur. Gumbs, 823 F.2d at 771. In undertaking 

our circumscribed role, here, we find that a review of jury 

verdicts in other cases may prove helpful, though not mandatory. 

Id. at 773. 

 In Abrams, for instance, the jury awarded an employee 

$100,000 in damages for emotional distress under the LAD based 
upon his testimony that 

 it had been a very upsetting thing to be 

 accused in secret of bribery, to a company

 that you've worked for, without even the 

 courtesy of being told about it. 

 It has been very unnerving, unpleasant and

 distressing to have somebody tell you that

 you can't have a job because you are not up 

 to it physically. . . . [a]nd I have really 

 been very, very, very upset by the whole 

 thing. 

841 F. Supp. at 593 (alteration in original). The district 

court, however, ordered a remittitur, reasoning that, "[g]iven 

the paucity of evidence regarding plaintiff's actual mental 

distress," the award was grossly excessive to the extent it 

exceeded $2,500. Id. at 594. See Jackson v. Consolidated Rail 

Corp., 538 A.2d 1310, 1317 (N.J. Super. Ct. App. Div. 1988) ("the 

severity of the distress from the testimony of the plaintiff 

himself was not of such a degree to warrant the judgment of over 

half a million dollars" in damages for emotional distress under 

the LAD); Catalane, 638 A.2d at 1353 (court upheld trial court's 

decision to grant new trial on damages under the LAD because 

$250,000 award for emotional distress "shocked the conscience" of 

the trial judge) (internal quote omitted). 

 Against this backdrop, we conclude that the district 

court acted within the confines of its discretion in ordering a 

new trial unless Delli Santi accepted a remittitur of $295,000. 

Although Delli Santi testified about her distress, the district 

court determined that Delli Santi's evidence of pain and 

suffering did not support an award of $300,000. Because we must 

give deference to the judgment of the trial court who was "in the 

best position to evaluate the evidence and assess whether the 

jury's verdict [was] rationally based", Gumbs, 823 F.2d at 772 

(quoting Murray v. Fairbanks Morse, 610 F.2d 149, 153 (3d Cir. 

1979)), we cannot say that the district court exceeded the bounds 

of its discretion in remitting the pain and suffering award from 

$300,000 to $5,000. 

 V. 

 Finally, Delli Santi argues that the district court 

should have submitted the issue of punitive damages to the 

jury. We exercise plenary review over the district court's 

decision to deny Delli Santi's request to send the issue of 

punitive damages to the jury. Bonjorno v. Kaiser Aluminum & 

Chem. Corp., 752 F.2d 802, 814-15 (3d Cir. 1984), cert. denied, 

477 U.S. 908 (1986); Lightning Lube, 4 F.3d at 1167. 

 "The New Jersey Supreme Court has made clear that `[t]o 

warrant a punitive award, the defendant's conduct must have been 

wantonly reckless or malicious. There must be an intentional 

wrongdoing in the sense of an `evil minded act' or an act 

accompanied by a wanton and willful disregard for the rights of 

another.'" Lightning Lube, 4 F.3d at 1192 (quoting Nappe v. 
Anschelewitz, Barr, Ansell & Bonello, 477 A.2d 1224, 1230 (N.J. 

1984)) (alteration in original); accord Jackson, 538 A.2d at 

1319-20. As we noted in Levinson, 868 F.2d at 563, however, "we 

do not suggest that in every employment discrimination case in 

which there is a basis for compensatory damages it follows that 

punitive damages are also available." See Catalane, 638 A.2d at 

1354 ("punitive damages are only to be awarded in exceptional 

cases even where the LAD has been violated"); Maczik v. Gifford 

Park Yacht Club, 638 A.2d 1322, 1326 (N.J. Super. Ct. App. Div.) 

("Punitive damages . . . are distinct from compensatory damages, 

require a greater threshold basis, and are assessed only when the 

wrongdoer's conduct is `especially egregious.'"); Weiss v. Parker 

Hannifan Corp., 747 F. Supp. 1118, 1136 (D.N.J. 1990) ("plaintiff 

must show more than the minimum conduct necessary to prove the 

underlying [LAD claim] before an award of punitive damages 

becomes appropriate"); Lehmann v. Toys `R' Us, Inc., 626 A.2d 

445, 464 (N.J. 1993) (punitive damages are to be awarded "when 

the wrongdoers conduct is especially egregious") (citing 

Leigruber v. Claridge Assocs., 375 A.2d 652 (N.J. 1977)). Butsee Johnson 

v. Ryder Truck Rentals Inc., 624 A.2d 632, 635 (N.J. 

Super. Ct. Law Div. 1993) ("no proofs other than a violation of 

the [LAD] are required to warrant the imposition of punitive 

damages"). Although we conclude there is sufficient evidence to 

support the jury's verdict for compensatory damages, we do not 

perceive any basis to interfere with the district court's 

reasoning that there was a lack of evidence to submit the issue 

of punitive damages to the jury. 

 VI. 

 For the foregoing reasons, we will reverse the district 

court's grant of judgment as a matter of law in favor of CNA and, 

in addition, reverse the district court's conditional grant of a 

new trial on liability issues. We will affirm the district 

court's decision to grant a new trial on the issue of damages 

unless Delli Santi accepts the remittitur, but we will reinstate 

the jury's award of $152,266 representing damages for loss of 

future earnings. On remand the district court should consider 

Delli Santi's motions for prejudgment interest and costs and 

attorney's fees. 

Delli Santi v. CNA Insurance 

Nos. 94-5331 and 94-5347 

ALITO, Circuit Judge, concurring and dissenting. 

 I concur in the judgment except insofar as it 

reinstates the jury's award of front pay. I agree with the 

majority that a reasonable jury could have found that CNA would 

not have launched its investigation of the plaintiff's gasoline 

vouchers were it not for her complaints of discrimination. Both 

the timing of the investigation and CNA's failure to investigate 

other employees who reported low gasoline mileage give rise to an 
inference of retaliation. I recognize that, of the low-mileage 

employees, the plaintiff's record was apparently one of, if not 

the very, worst, and this is certainly a fact that I would have 

taken into account if I had been the trier of fact. 

Nevertheless, I think that, even assuming that the plaintiff bore 

the burden of persuasion with respect to the question whether 

retaliation was a determinative factor in the discharge decision 

(a question I discuss below), a reasonable jury could have found 

that it was. 

 A reasonable jury could not have found, however, that 

the plaintiff did not falsify her vouchers. Driving a compact 

car with an EPA-estimated gas mileage of 23 miles per gallon, she 

reported gas mileage, over a five-year period, that was far, far 

lower, reaching a nadir of three miles per gallon for one 

reporting period. She offered a host of excuses for her low 

mileage, but these were either inherently dubious or were 

discredited by CNA's investigation. For example, although the 

plaintiff suggested that her low mileage might be attributable to 

mechanical problems with her car (she said that the car "ran 

rough"), when the car was test driven it achieved 24 to 27 miles 

per gallon. Most damning was the plaintiff's submission of 

"receipts" for gas purchases that she herself wrote up. The 

mileage that she reported for particular periods was inversely 

proportional to the number of these suspicious "receipts" that 

she submitted. In 1984, when she submitted an average of two to 

three such "receipts" per expense period, her reported mileage 

was 11 to 13 miles per gallon. In 1985, she submitted an average 

of three to four such "receipts" per period, and her mileage sank 

to 10 miles per gallon. In 1986, when she averaged four such 

"receipts" per period, her mileage fell further to 7 miles per 

gallon. And finally, in 1987, when she reached an average of 

five such "receipts" per period, her mileage plummeted to 6 miles 

per gallon. As the district court observed, the proof of the 

plaintiff's pilfering was "overwhelming." 

 A reasonable jury likewise could not have found that 

CNA did not have a policy of firing employees who were proven to 

have stolen from the company. Employers do not routinely 

tolerate employees who are proven to have stolen from them; CNA 

offered evidence that it had a blanket policy of firing such 

employees; and I am aware of no direct evidence to the contrary. 

The majority suggests, however, that the absence of such a policy 

can be inferred from the fact that CNA approved the plaintiff's 

expense reports for some time without launching an investigation 

and the fact that CNA did not investigate other employees who 

reported very low mileage. This reasoning overlooks the 

important difference between the failure to investigate 

suspicious conduct, which may result from lax administrative 

controls, and the toleration of proven theft. Once the plaintiff 

was investigated, CNA was confronted with what the district court 

aptly described as "overwhelming" proof of her theft. In my 

judgment, a reasonable jury could not have inferred from CNA's 

failure to investigate suspicious conduct that it was CNA's 

policy to tolerate proven theft. 

 Because it is CNA's policy to fire employees, such as 
the plaintiff, who are caught stealing from the company, the 

plaintiff is not entitled to reinstatement or front pay. In 

McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879 

(1995), the Supreme Court held that an employer who discharges an 

employee for a discriminatory reason is liable under the federal 

Age Discrimination in Employment Act even though the employer 

discovers after the action is taken that it has a different, 

legitimate reason for the same action. The Court observed, 

however, that in such a case "as a general rule . . . neither 

reinstatement nor front pay is appropriate." Id. at 886. The 

Court explained: "It would be both inequitable and pointless to 

order the reinstatement of someone the employer would have 

terminated, and will terminate, in any event and upon lawful 

grounds." Id. I think that this teaching would be controlling 

here if this case rested on federal rather than state law. 

 The majority, however, facilely dismisses the teaching 

of McKennon as applicable only in "after-acquired" evidence 

cases, that is, cases in which the evidence of the legitimate 

reason for discharge is acquired after the adverse employment 

decision is taken. This reasoning does not seem to me to make 

any sense. Consider the following two cases. In Case A, which 

is analogous to McKennon, the employer discharges an employee for 

a discriminatory reason and then, when sued or threatened with 

suit, launches an investigation of the employee and discovers a 

legitimate reason for discharge. In Case B, which is comparable 

to this case, the same employer, acting with the same 

discriminatory motive, targets the same employee for 

investigation before firing him and then discovers, as a result 

of the investigation, the same legitimate ground for termination. 

In Case A, the employee, under McKennon, would not be entitled to 

reinstatement or front pay, and I cannot think of any good reason 

for treating the employee in Case B more favorably than the 

employee in Case A. 

 While McKennon is not directly controlling here because 

this case is based on the New Jersey Law Against Discrimination 

("LAD") rather than federal anti-discrimination law, I think that 

the New Jersey Supreme Court would follow McKennon, see Miller v. 

Beneficial Management Corp., 855 F. Supp. 691, 715-17 (D.N.J. 

1994); Massey v. Trump's Castle Hotel and Casino, 828 F. Supp. 

314, 324 (D.N.J. 1993), or would adopt some related rule limiting 

a plaintiff's entitlement to reinstatement or front pay in cases 

where a legitimate reason for discharge is discovered after the 

employee is wrongfully terminated or targeted for investigation. 

(In an extreme case -- say, the investigation uncovers, not petty 

chiselling on expense vouchers, but massive embezzlement -- 

ordering reinstatement or front pay would be preposterous.) 

 One other aspect of the majority opinion bears comment. 

The majority appears to hold that the standards set out in 

Jamison v. Rockaway Township Bd. of Educ., 242 N.J. Super. 436, 

445, 577 A.2d 177, 182 (App. Div. 1990), apply in all LAD 

retaliation cases. Jamison itself, however, takes pains to limit 

its holding to cases involving the failure to promote, see 

N.J. Super. at 446-47, 577 A.2d at 182-83 and the plaintiff 

argues strenuously that it does not apply here. While it may be 
that the New Jersey Supreme Court will ultimately hold that 

Jamison governs all LAD retaliation cases, it has not done so 

yet, and I see no need for us to venture a prediction on this 

question, because I think that the result here would be the same 

whether Jamison applies or not. 

 Under Jamison, as I understand it, once the employer 

satisfies its burden of production under the second step of the 

McDonnell Douglas scheme, the plaintiff must then show that 

retaliation was a motivating factor in the challenged action, not 

that it was the sole or a determinative cause. Then, the 

burden of persuasion switches to the employer to prove by a 

preponderance of the evidence that retaliation was not a 

determinative cause. 

 Under the federal scheme, which I take it would apply 

if Jamison does not, see McKenna v. Pacific Rail Service, 32 F.3d 

820 (3rd Cir. 1994), once the employer satisfies its burden of 

production under the second step of McDonnell Douglas, and 

assuming the case does not call for special treatment under Price 

Waterhouse v. Hopkins, 490 U.S. 228 (1989), it would then be up 

to the plaintiff to prove by a preponderance of the evidence, 

using direct or indirect proof, that retaliation was a 

determinative cause of the challenged action. See Miller v. 

CIGNA Corp., 47 F.3d 586, 598 (3rd Cir. 1995) (in banc). Thus, 

the difference between the two schemes concerns the allocation of 

the risk of non-persuasion on the question whether retaliation 

was a determinative cause. In this case, I think that whoever 

had that burden, the evidence was sufficient to prove that the 

investigation was begun for a retaliatory reason and was thus a 

determinative cause of the plaintiff's termination. Accordingly, 

it seems to me to be both unnecessary and imprudent for this 

panel to make a prediction on this point.