1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-14-1997

Rush v. Scott Spec Gases Inc

Precedential or Non-Precedential:

Docket 96-1606

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Recommended Citation

"Rush v. Scott Spec Gases Inc" (1997). 1997 Decisions. Paper 107.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/107
Filed May 14, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-1606 

CHRISTINE RUSH 

v. 

SCOTT SPECIALTY GASES, INC., 

Appellant

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civ. No. 95-00748) 

Argued April 14, 1997 

BEFORE: GREENBERG, ALITO, and SEITZ, Circuit Judges

(Filed: May 14, 1997) 

Leslie A. Hayes (argued) 

Randy Karafin Hubert 

Connolly, Epstein, Chicco 

Foxman, Engelmyer, and Ewing 

1515 Market Street, 9th Floor 

Philadelphia, PA 19102 

 Attorneys for Appellee
Alfred W. Putnam, Jr. (argued) 

J. Freedley Hunsicker, Jr. 

Patricia Proctor 

Drinker, Biddle, and Reath 

Philadelphia National Bank 

Building 

1345 Chestnut Street 

Philadelphia, PA 19107-3496 

 Attorneys for Appellant

OPINION OF THE COURT 

GREENBERG, Circuit Judge. 

I. INTRODUCTION 

Appellant, Scott Specialty Gases, Inc. ("Scott"), appeals 

from a judgment entered in favor of its former employee, 

Christine Rush. In her complaint Rush asserted that Scott 

discriminated against her in promotion and training on the 

basis of her sex and subjected her to a hostile environment 

through sexual harassment. She also claimed that Scott 

improperly constructively discharged her and retaliated 

against her for filing a complaint against it with the Equal 

Employment Opportunity Commission. Finally, she 

asserted federal and state Equal Pay Act claims and state 

common law tort and contract claims. The jury awarded 

Rush several million dollars in compensatory and punitive 

damages on her discrimination in promotion and training, 

sexual harassment, and constructive discharge claims, but 

on Scott's motion, the district court found that the damages 

were excessive and significantly reduced them in a 

remittitur. Rush accepted the remittitur rather than going 

through a new trial, so the court entered judgment for the 

reduced amounts. Scott has filed a timely appeal. We have 

jurisdiction under 28 U.S.C. § 1291, and the district court 

had jurisdiction under 28 U.S.C. § § 1331 and 1367(a). 

Scott contends that Rush's employment discrimination 

claim based on failure to promote and train is time barred 

 2 
and cannot be saved by application of the continuing 

violation theory. We agree; allowing Rush to sue on the 

failure to promote and train claim, and to introduce 

evidence supporting that claim, prejudiced Scott's case on 

Rush's other claims because we cannot say that the failure 

to promote and train evidence did not contribute to the 

jury's findings of liability on the sexual harassment hostile 

environment and constructive discharge claims. 

Furthermore, we cannot say that the evidence with respect 

to the failure to promote and train claim did not affect the 

computation of the damages awarded. Therefore, we will 

reverse the judgment entered in favor of Rush and remand 

the case to the district court to enter judgment in Scott's 

favor on Rush's failure to promote and train claim and to 

grant a new trial on her sexual harassment and 

constructive discharge claims. For reasons which we

explain below the retaliation, Equal Pay Act, and common 

law claims are no longer in the case and thus will not be 

retried. 

II. FACTS AND PROCEDURAL HISTORY 

Scott employed Rush as a Laboratory Technician I from 

September 11, 1989, until her resignation on June 10, 

1993. Periodically, Rush changed from a full-time to a parttime status to pursue her education. In September 1990, 

Rush went part time so that she could take course work in 

chemistry. During the fall of 1990, Scott conducted a flaskmaking course which trained some Lab Tech Is in skills 

needed for promotion to Lab Tech II analyst positions. Scott 

intended to use the training course as a promotion device 

and planned to promote the highest performing Lab Tech Is 

to Lab Tech IIs. Rush claims she was not informed about 

the class, although several male employees were, and that 

Scott thereby deprived her of an important opportunity for 

training and advancement within the laboratory. Rush also 

claims that she and Scott were unable to agree upon an 

arrangement through which she could watch the course on 

videotape so that she could become eligible for promotion. 

Ultimately, in early 1991 Scott promoted three men with 

less seniority than Rush to Lab Tech II analyst positions 

based on their performance in the flask-making class. 

 3 
In June 1991, Rush filed a charge with the Equal 

Employment Opportunity Commission, claiming that Scott 

discriminated against her in training and promotion

because of her sex. She based this charge on her exclusion 

from the flask-making course and the attendant 

opportunity for promotion as well as other alleged 

discrimination in training, promotion, and work 

assignments. In the fall of 1991, Rush and Scott entered 

into a written settlement agreement in which Rush agreed 

not to file suit against Scott based on her EEOC charge. 

App. at 2173. Rush also executed a release in which she 

agreed to: 

release and forever discharge Scott. . . of and from all 

claims and causes of action alleged in, or which could 

have been alleged in a Charge filed with the Equal 

Opportunity Commission and numbered Charge No. 

170911136 and any other charge or complaint she has

filed or could have filed with any other agency or court 

alleging discrimination in connection with her 

employment by Scott, including without limitation, her 

claim that she discriminatorily was denied promotion. 

App. at 2172. In return, Scott agreed to meet with Rush to 

discuss its policy regarding training and promotion; to 

provide Rush the same training and experience other

employees seeking promotion to Lab Tech II analyst 

positions received; and to consider Rush for the next 

available Lab Tech II analyst position. App. at 2173. 

Following the execution of the settlement agreement, 

Rush met with lab manager Mark Sirinides, who explained 

the requirements for promotion to a Lab Tech II analyst 

position. In March 1992, Scott allowed Rush and some of 

her co-workers to take the flask-making course via 

videotape. She received the highest grade in the class. On 

June 15, 1992, Scott certified to the EEOC that Rush had 

completed the required training course and, in accordance 

with the settlement agreement, would be considered "when 

a vacancy in Lab Tech II Analyst position commensurate 

with her skills occurs." App. at 2193. 

In June 1992, Scott promoted a male Lab Tech I, Garren 

Knoll, to a Lab Tech II position. Rush contends, and Scott 

 4 
agrees, that it did not consider Rush for this promotion, 

explaining that in its view Rush was not qualified for this 

position. According to Scott, it promoted Knoll to a 

computer technician or automation position, not a 

laboratory analyst position. Also, in the summer of 1992, 

Scott hired a male college student, Mark Carpenter, on a 

part-time basis to do Lab Tech II work. Scott claimed that 

because this was a temporary, part-time position, Rush 

was not eligible for it. During her tenure at Scott, Scott 

never promoted Rush who remained a Lab Tech I. 

Rush claims that after she filed her 1991 EEOC charge, 

her male co-workers and some supervisory and managerial 

employees sexually harassed her. She asserts that she 

unavailingly complained about this harassment at various 

levels of Scott's management. Sirinides wrote a memo to 

plant manager John Post outlining Rush's complaints and 

asking for guidance and training on how to deal with such 

complaints. Neither Post nor regional vice-president William 

Gittler, both of whom saw Sirinides' memo, responded to 

the complaints. 

In March 1993, Rush again arranged to work part time; 

her application noted that she based her request on her 

desire to pursue her education and that she was 

dissatisfied with her working environment. On May 27, 

1993, Rush and some co-workers arrived late to work, but 

she claims that Ted Neeme, a group leader in the laboratory 

who apparently had supervisory duties, singled her out for 

an oral reprimand. App. at 468-69. A shouting match

ensued between Rush and Neeme, and then Rush threw 

her time card on Neeme's desk and left the premises. App. 

at 471-72. She did not return to Scott until June 1, 1993. 

On June 10, 1993, Rush resigned. At some point during 

that day, either just before her resignation, or just after, a 

meeting was held at Scott's premises from which Rush was 

excluded. At this meeting, Post, the plant manager, asked 

Rush's co-employees how Scott should discipline her for 

her earlier outburst to Neeme and permitted them to

criticize Rush. App. at 426, 486. On her resignation form, 

Rush noted that she felt forced to leave Scott. App. at 2167. 

On November 1, 1993, Rush filed a discrimination claim 

with the Pennsylvania Human Relations Commission; the 

 5 
charge was cross-filed with the EEOC. After Rush received 

a right to sue letter, she filed suit in the district court 

against Scott on February 8, 1995. Her complaint alleged 

discrimination on the basis of sex in violation of Title VII, 

the Federal and Pennsylvania Equal Pay Acts, and the 

Pennsylvania Human Relations Act ("PHRA"). In addition, 

Rush asserted a claim against Scott for allegedly retaliating 

against her for filing the first EEOC charge and claims 

under Pennsylvania common law. She also claimed that 

Scott had constructively discharged her. 

Prior to the trial, both parties moved for summary 

judgment. As germane to this opinion, Scott claimed that 

all of Rush's claims that accrued prior to January 5, 1993, 

i.e., 300 days before she filed her second EEOC claim, were 

time barred. Of course, Scott promoted Knoll and hired 

Carpenter long before January 5, 1993, and thus it argued 

that Rush could not base a claim on those employment 

actions. Nevertheless, the district court denied Scott's 

motion for summary judgment to the extent it was 

predicated on the time bar, reasoning that the case involved 

a violation throughout her employment at Scott. Rush v.

Scott Specialty Gases, Inc., 914 F. Supp. 104, 106-07 (E.D. 

Pa. 1996). The court, however, granted Scott summary 

judgment on the Pennsylvania Equal Pay Act claim and 

granted it partial summary judgment on Rush's common 

law claim. 

At the ensuing two-week trial, the jury found in favor of 

Rush on her Title VII and PHRA failure to promote and 

train, sexual harassment, and constructive discharge 

claims, and awarded her $203,000 in lost wages, 

$1,000,000 in pain and suffering, and $3,000,000 in

punitive damages. However, the jury found for Scott on 

Rush's retaliation claim. The court dismissed the Federal 

Equal Pay Act claim on Scott's motion under Fed. R. Civ. P. 

50; thus that claim is no longer in the case. Rush elected 

not to proceed with her remaining common law claim at 

trial, and we thus are not concerned with that claim. 

Following the return of the verdict, Scott moved for 

judgment as a matter of law or a new trial, or, in the 

alternative, for a remittitur. The district court denied the 

motion for judgment as a matter of law on the grounds that 

 6 
the evidence supported the verdict. Rush v. Scott Specialty

Gases, Inc., 930 F. Supp. 194, 197 (E.D. Pa. 1996). The 

district court also found that although a new trial was not 

warranted on the basis of the weight of the evidence or 

because of any evidentiary errors or improper jury 

instructions, the awards for pain and suffering and punitive 

damages were excessive. Id. at 199, 202. Accordingly, the 

court denied the motion for a new trial but it conditioned 

the denial on Rush's acceptance of a remittitur in the 

amount of $900,000 on the pain and suffering award and 

a remittitur of the punitive damages award in the amount 

of $2,700,000. The remittitur left Rush with an award of 

$203,000 in compensatory damages, $100,000 for pain and 

suffering, and $300,000 for punitive damages. Rush agreed 

to this remittitur, and on July 15, 1996, the court entered 

judgment for Rush in the amount of $603,000. The court 

subsequently granted Rush prejudgment interest and 

awarded her counsel fees of $210,062.50 and costs of 

$11,562.05. Scott has filed a timely appeal. 

III. DISCUSSION 

Scott argues that Rush did not administrativelyfile her 

failure to promote and train and her sexual harassment 

claims in a timely manner so this action largely is barred. 

Scott also advances challenges to the jury instructions, 

evidentiary rulings, and sufficiency of the evidence and 

asserts that the PHRA does not provide for punitive

damages. We conclude that the hostile environment sexual 

harassment claim was timely, the failure to promote and 

train claim was time barred, and the introduction of 

evidence with respect to Scott's failure to promote and train 

Rush based on her sex infected the entire trial. Accordingly, 

we will reverse the judgment in favor of Rush and remand 

for a new trial on Rush's hostile environment sexual 

harassment and constructive discharge claims and for 

entry of judgment in favor of Scott on the failure to promote 

and train claim. This disposition makes it unnecessary to 

consider Scott's other assertions of error. 

A. The Continuing Violation Theory

The parties are in agreement that under Title VII the 

ordinary time for filing a charge of employment 

 7 
discrimination with the EEOC is 300 days after the alleged 

discrimination when the charge is filed first, as here, with 

the appropriate Pennsylvania state agency. 42 U.S.C. 

§ 2000e-5(e)(1). 

Though the requirement sounds exacting -- 300 days 

after the alleged unlawful employment practice 

occurred -- courts have grappled with cases presenting 

questions of precisely when a `practice' occurred. That 

date may be more inflexible when there is a discrete 

trigger event and the discrimination is overt. However, 

there are cases in which the plaintiff does not know he 

has been harmed; similarly there are cases of an 

ongoing, continuous violation. To accommodate these

more indeterminate situations, the Supreme Court has 

recognized that the filing of a timely charge is`a 

requirement that, like a statute of limitation, is subject 

to waiver, estoppel, and equitable tolling.' 

West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 

1995) (citations omitted). Rush filed the requisite EEOC 

claim on November 1, 1993. Consequently, the 300-day 

retrospective limitations period which ordinarily would bar 

claims for earlier events began to run on January 5, 1993. 

The continuing violation theory allows a "plaintiff [to] 

pursue a Title VII claim for discriminatory conduct that 

began prior to the filing period if he can demonstrate that 

the act is part of an ongoing practice or pattern of 

discrimination of the defendant." Id. at 754 (citations 

omitted). In considering this issue, we note that the parties 

in their briefs do not clearly delineate between the record 

on the motion for summary judgment and the record at 

trial. While in some cases this lack of precision could 

present a problem on appeal, here it does not because, on 

any view of the facts, Scott was entitled to a judgment on 

the failure to promote and train claim. Similarly, on any 

view of the facts, Rush's hostile environment sexual 

harassment claim was not time barred, even with respect to 

conduct occurring prior to January 5, 1993. 

We also note that in some circumstances the procedure 

followed in deciding whether there is a continuing violation 

might impact on the scope of review. There is authority that 

 8 
a trial court's ruling on whether there is a continuing 

violation is reviewed on the clearly erroneous standard. 

Calloway v. Partners Nat'l Health Plans, 986 F.2d 446, 448 

(11th Cir. 1993); Abrams v. Baylor College of Med., 805 

F.2d 528, 532 (5th Cir. 1986). Yet the district court ruled 

on the continuing violation argument by denying Scott's 

motion for summary judgment; this procedural posture 

suggests that plenary review might be appropriate. 

Furthermore, in West, in which we considered the 

employee's argument that there had been a continuing 

violation in the context of reviewing determinations on the 

admission of evidence, we suggested that we were 

exercising at least a degree of plenary review. West, 45 F.3d 

at 748 ("We conclude, in this hostile work environment 

context, that the scope of the admissibility of evidence of 

events, which preceded the 300-day period, must be 

grounded in the substantive law at issue."); id. at 752 ("We 

review the evidentiary determinations of the trial court 

under an abuse of discretion standard. . . . However, as to 

the application or interpretation of a legal standard 

underlying the admissibility decision, our review is 

plenary.") (citations omitted). 

In this case, however, we need not linger on the scope of 

review issue because even on a deferential clearly 

erroneous standard of review, we would reverse with

respect to the failure to promote and train claim; and even 

on a plenary review, we would hold that the continuing 

violation theory was applicable to the sexually hostile 

environment claim. Cf. Konstantopoulous v. Westvaco Corp., 

No. 94-7462, slip op. at 15 n.1 (3d Cir. May 6, 1997) 

("Here, we find it unnecessary to decide which standard of 

review to apply because under either standard we see no 

ground for reversing the district court's decision."). Thus, 

we apply the standard of review most favorable to the party 

against whom we are making particular determinations. 

To demonstrate a continuing violation, the plaintifffirst 

must show that at least one discriminatory act occurred 

within the 300-day period. West, 45 F.3d at 754. Second, 

the plaintiff must show that "the harassment is`more than 

the occurrence of isolated or sporadic acts of intentional 

discrimination,' " and instead must demonstrate a 

 9 
continuing pattern of discrimination. Id. at 755 (citation 

omitted). A plaintiff satisfying these requirements may 

present evidence and recover damages for the entire

continuing violation, and the 300-day filing period will not 

act as a bar. Id. 

We have followed Berry v. Board of Supervisors of

Louisiana State Univ., 715 F.2d 971 (5th Cir. 1983), the 

leading case on the continuing violation theory. The Berry

court enumerated several factors relevant to the 

determination of whether a plaintiff has demonstrated a 

continuing violation: 

The first is subject matter. Do the alleged acts involve 

the same type of discrimination, tending to connect

them in a continuing violation? The second is 

frequency. Are the alleged acts recurring. . . or more in 

the nature of an isolated work assignment or 

employment decision? The third factor, perhaps of 

most importance, is degree of permanence. Does the 

act have the degree of permanence which should 

trigger an employee's awareness of and duty to assert 

his or her rights, or which should indicate to the 

employee that the continued existence of the adverse 

consequences of the act is to be expected without being 

dependent on a continuing intent to discriminate? 

Id. at 981 (footnote omitted); see also West, 45 F.3d at 755 

n.9. 

1. The Hostile Environment Sexual Harassment Claim

Scott argues that Rush should have filed her sexual

harassment claim earlier than November 1, 1993, and that 

she therefore should not have been permitted to sue on or 

present evidence of sexual harassment occurring prior to 

the start of the 300-day limitations period. Rush responds 

that she was not aware in 1991 when she filed her initial 

EEOC complaint that she had been subjected to sexual 

harassment, and she also contends that the harassment 

she experienced constituted a continuing violation so that 

all of the harassment, even that occurring before January 

5, 1993, was actionable. 

As we explained in West, there is "a natural affinity" 

between the theory underlying hostile environment claims 

 10 
and the continuing violation theory. West, 45 F.3d at 755. 

A sexually hostile work environment often "results from 

acts of sexual. . . harassment which are pervasive and 

continue over time, whereas isolated or single incidents of 

harassment are insufficient to constitute a hostile

environment." Id. (citations and internal quotation marks 

omitted); see also Galloway v. General Motors Serv. Parts

Operations, 78 F.3d 1164, 1166 (7th Cir. 1996). The Court 

of Appeals for the Seventh Circuit in Galloway expressed its 

desire to encourage plaintiffs to commence litigation when 

they become aware of conduct that would support a viable 

claim without forcing them to do so prematurely. Id. at 

1166. Thus, the court concluded that a plaintiff "may not 

base her. . . suit on conduct that occurred outside the 

statute of limitations unless it would have been 

unreasonable to expect the plaintiff to sue before the 

statute ran on that conduct, as in a case in which the 

conduct could constitute, or be recognized, as actionable 

harassment only in the light of events that occurred later, 

within the period of the statute of limitations." Id. at 1167 

(citations omitted). 

Rush testified that when she filed her original EEOC 

complaint in 1991 she did not include claims for sexual 

harassment because 

it was not really as frequently [sic], it later intensified 

but at that time it was a lot less frequent. I'm not sure 

I recognized it at that time. And, whereas the 

discrimination was more obvious to me. I also felt that 

at that time I was friendly with Rene, which he was the 

biggest problem and maybe I was not clear enough, 

maybe I didn't turn around and yell at him, I didn't I 

figured it wouldn't be fair . . . to complain. 

App. at 376-77. Rush testified that at the beginning of her 

employment, Rene Bedoya, her co-worker and primary 

harasser, treated her nicely, and, although perhaps overly 

attentive, his behavior was not problematic. App. at 412-13. 

On redirect examination, Rush read into the record part of 

her diary where she noted that the harassment began after 

she filed the EEOC charge. App. at 661. 

Rush also testified that she was harassed by male coworkers on a daily basis. App. at 402. This harassment 

 11 
included disparaging remarks and criticism of her work. 

App. at 403-04. Rush testified that Bedoya's behavior 

changed and that he began to touch her inappropriately 

and sexually at work, to make sexual comments to her, and 

to be rude to her. App. at 416-19, 421. Rush also testified 

that her co-worker Tom Richards made inappropriate 

comments to her and about her. She stated that she partly 

overheard, and another co-worker told her, that Richards 

had said he "wanted to fuck [Rush] in his van, and then 

shoot [Rush] in the head so that no one would ever know." 

App. at 421-22. 

The district court correctly concluded that Rush's sexual 

harassment claim constituted a continuing violation. She 

properly was permitted to sue on this continuing violation 

and to present evidence of incidents occurring prior to the 

limitations period. First, the 300-day period began to run 

on January 5, 1993, and it is clear that there were episodes 

of alleged harassment after that point, including the 

meeting that occurred on her last day of employment, as 

well as the continual comments by Bedoya and Rush's

other co-workers. Second, the evidence supports a finding 

that Rush suffered continuous sexual harassment, at least 

from the time she filed the original EEOC charge. The 

harassment did not consist of unrelated, isolated incidents, 

but constituted a continuous pattern of derogatory 

remarks, rude behavior, and discriminatory conduct. Her 

failure to claim harassment in the 1991 EEOC charge does 

not destroy her claim, because the evidence shows that the 

harassment intensified after the charge was filed, and, 

moreover, she did not realize early on how pervasive or 

severe the harassment was. 

2. The Failure to Promote Claim

Scott argues that Rush's failure to promote and train 

claim predicated on sexual discrimination was not timely 

filed because she did not allege any instances of 

discriminatory failure to promote and train after January 5, 

1993.1 Rush argues that the sex discrimination in training 

_________________________________________________________________ 

1. Scott also argues that the settlement agreement and Rush's release 

prohibit her from litigating her failure to promote and train claim. 

Because we find the failure to promote and train claim time barred, it is 

not necessary to address either the effect of the release on the viability 

of Rush's claim or Rush's ability to repudiate the release. 

 12 
and promotion was a continuing violation during her three 

and one-half years at Scott. The district court found that 

Rush's failure to promote and train claim was not time 

barred because the continuing violation theory applied to it. 

This finding was in error. 

Neither the promotion of Garren Knoll to a Lab Tech II 

position nor the hiring of Mark Carpenter to perform 

temporarily Lab Tech II work occurred within the 300-day 

limitations period. In an effort to avoid a conclusion that 

her failure to promote and train claim was time barred, 

Rush argues that the gradual change in Knoll's duties from 

primarily computer and automation work to primarily

laboratory analysis work demonstrates that although Scott 

actually had a need to hire additional Lab Tech II analysts, 

it refused to promote her. 

Although Knoll's performance of analysis work greatly 

increased beginning in January 1993, app. at 1590, 1596, 

Scott's assignment of analysis work to Knoll did not 

constitute a discriminatory failure to promote occurring 

within the limitations period. Scott was not required to 

promote an additional person to perform the analysis work 

it ultimately assigned to Knoll. Knoll's promotion to the Lab 

Tech II position was a discrete incident; Scott filled the 

vacancy in June 1992. After that time, aside from the parttime summer position Carpenter filled, no new Lab Tech II 

positions became available. The change in Knoll's work 

assignment did not require that Scott demote him or create 

a new Lab Tech II position for Rush. Of course, her attempt 

to predicate her claim on Carpenter's hiring is also 

unavailing. Rush was required to make a timely challenge 

to the actual failure to consider her for promotion, and she 

did not do so. Therefore, she cannot claim that Scott's 

alleged discrimination in promotion was a continuing 

violation. 

In a further effort to bolster her argument that her failure 

to promote and train claim was filed timely, Rush contends 

Scott's discrimination in training and discipline, as well as 

the sexual harassment she suffered, continued throughout 

her employment and can be used to establish a continuing 

violation that would include Scott's failure to promote her. 

We reject this argument. 

 13 
Rush's failure to promote and train claim is distinct from 

her sexual harassment claim and cannot be regarded as 

having been timely by reason of her other allegations of 

discriminatory treatment. Rush's failure to promote and 

train claim addresses discrete instances of alleged

discrimination that are not susceptible to a continuing 

violation analysis. We reiterate that Scott's promotion of 

Knoll and hiring of Carpenter were independent events that 

put Rush on notice to file a charge of discrimination. Rush 

knew from the settlement agreement that she was to be 

considered for the next available Lab Tech II position. If she 

believed Scott was not considering her for available 

positions as promised, she should have reacted at that 

time. Waiting to see what would happen next was pointless; 

the harm, if any, already was inflicted. 

Additionally, neither the sexual harassment nor the other 

alleged discriminatory acts were related sufficiently to 

Rush's failure to promote and train claim to constitute a 

single continuing violation. The sexual harassment and 

failure to promote and train claims address different types 

of conduct. Rush's failure to promote and train claim 

focuses on the failure to promote Rush to, or prepare her 

for, a Lab Tech II analyst position. By contrast, the sexual 

harassment claim focuses on the use of foul language, 

demeaning comments, and inappropriate touching by her 

co-workers and some managers. These are distinct claims. 

Similarly, although she has alleged disparity in discipline 

falling within the limitations period, these claims are not 

related factually to the failure to promote and train claims. 

While she still may have a viable and timely claim for 

discrimination in discipline, this claim is not sufficiently 

related to the failure to promote and train claim to enable 

us to regard the failure to promote and train claim as part 

of a continuing violation. 

Finally, although there is a factual nexus between Rush's 

failure to promote and failure to train claims, which we 

have been considering together, treating them as separate 

claims does not affect our result.2 Rush has not alleged 

_________________________________________________________________ 

2. The district court treated the failure to promote and failure to train 

claims together by submitting them to the jury in a single special 

interrogatory. 

 14 
specific failure to train incidents within the limitations 

period. Indeed, most of the allegations supporting Rush's 

failure to train claim stem from Scott's failure to include 

her in the original flask-making class as well as her 

requests prior to that class for more advanced training. She 

also complained of Scott's failure to train her properly for 

the position for which she was hired. Thus, the failure to 

train allegations do not bring her failure to promote claim 

to a time within the limitations period. Moreover, a failure 

to train claim arising within the 300-day limitations period 

would be distinct from a claim predicated on Scott's earlier 

failures to promote Rush. 

We recently have had occasion to consider a situation 

which demonstrates that a court must be circumspect in 

relating discrete incidents to each other. In Konstantopoulos

v. Westvaco Corp., slip op. at 10, a plaintiff who was 

employed by the defendant for two distinct time periods, 

with a seven-month interruption between them, argued 

"that the district court improperly evaluated the events that 

occurred during her second period of employment in 

isolation and that instead the court should have viewed 

them as a continuation of the harassment that had taken 

place seven months earlier." We rejected the argument, in 

part because the seven-month gap allowed the effects of the 

earlier incidents to dissipate. Konstantopoulos demonstrates 

that a careful analysis must be made before acts are 

considered part of a pattern. There, the passage of time and 

the employee's interruption of employment destroyed the 

pattern. Here, there was no pattern because the failure to 

promote and train claim was distinct from the sexual 

harassment claim and the other allegations of 

discrimination. 

The district court erred when it held that Rush's failure 

to promote and train claim was a continuing violation that 

was not time barred. The incidents relevant to the claim 

occurred in the spring and summer of 1992; Rush did not 

file her EEOC claim for almost 18 months thereafter. Her 

claim was time barred and cannot be saved by any of the 

alleged discrimination or harassment occurring within the 

limitations period. Furthermore, we have no intention of 

shredding the 300-day limitations period by automatically 

 15 
allowing an employee who alleges actionable conduct

occurring within that period to make claims with respect to 

any adverse employment actions that occurred during his 

or her entire period of employment. Rather, a district court 

must scrutinize the claims to establish that they are 

related. See West, 45 F.3d at 755 (refusing to adopt per se

rule that every hostile environment claim constitutes a 

continuing violation). To allow a stale claim to proceed 

would be inconsistent with the administrative procedure 

established by Title VII which contemplates prompt filing of 

charges so that discrimination controversies may be

resolved promptly. See EEOC v. University of Pennsylvania, 

850 F.2d 969, 978 (3d Cir. 1988) ("Upholding the 

University's first-filed suit in this context would undermine 

the congressional policy favoring prompt resolution of 

discrimination claims."), aff'd on other grounds, 493 U.S. 

182, 110 S.Ct. 577 (1990). Accordingly, we will reverse the 

judgment in favor of Rush on the failure to promote and 

train claim and remand for the district court to enter 

judgment in favor of Scott on that claim. 

3. Other Claims

The jury answered special interrogatories, rendering 

separate liability verdicts on each of Rush's claims. App. at 

219-20. Similarly, the court instructed the jury to calculate 

damages separately for each category of damages claimed. 

App. at 220-21. However, the court did not instruct the jury 

to attribute specific portions of the damages awards to the 

individual counts on which it found Scott liable. Our review 

of the record compels the conclusion that the presence of 

the failure to promote and train claim and the introduction 

of evidence related to and supporting that claim infected 

the jury's liability verdicts on the sexual harassment and 

constructive discharge claims as well as the verdict for the 

damages. 

Indeed, Rush has claimed that the sexual harassment

and Scott's failure to promote and train her were related. 

She testified that she believed the harassment was part of 

her co-workers' and management's plan to force her out of 

the lab. App. at 420, 496. Rush reiterated this theory at 

oral argument, contending that the same managerial 

personnel, particularly Sirinides, who failed to stop the 

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sexual harassment were also responsible for Scott's failure 

to promote her. At trial, witnesses testified about both the 

alleged failure to promote and train and the alleged 

harassment, and the evidence supporting the claims was 

presented in tandem. 

It is not possible to ascertain what portions of the 

compensatory and punitive damages awards were 

attributable to the time-barred failure to promote and train 

claim, so we must reverse the damages awards. 

Furthermore, given Rush's theory of the case and the 

manner in which evidence was presented, we are unable to 

find that the evidence of discriminatory failure to promote 

and train did not affect the jury's verdict on liability on the 

sexual harassment hostile environment claim. At a 

minimum, the evidence of Scott's failure to promote and 

train Rush was highly prejudicial to Scott on the 

harassment claim. We therefore will reverse the jury's 

liability verdict on the hostile environment sexual

harassment claim as well. Similarly, Rush's constructive 

discharge claim was not linked exclusively to either the 

failure to promote and train claim or the harassment claim, 

so the verdict on this claim, too, may have been influenced 

by the evidence offered in support of the failure to promote 

and train claim. Accordingly, we also will reverse the 

judgment in favor of Rush on her constructive discharge 

claim. 

The jury found in favor of Scott on Rush's retaliation 

claim. Rush has not filed a cross-appeal from the entry of 

judgment in favor of Scott on that claim, so the judgment 

on the retaliation claim will stand. See, e.g., Abrams v.

Lightolier Inc., 50 F.3d 1204, 1213 (3d Cir. 1995) ("While we 

note that the instructions as to the ADEA claim may have 

required Abrams to demonstrate more than he was required 

to under the appropriate standard, Abrams has not crossappealed on that ground and we therefore leave the 

judgment undisturbed as to the ADEA claim."); Winston v.

Children and Youth Servs., 948 F.2d 1380, 1385 (3d Cir. 

1991) (declining to consider issue appellees failed to raise 

in cross-appeal or mention in brief). Finally, as we already 

have indicated, the Equal Pay Act and common law claims 

are out of the case, and Rush has not appealed from their 

dismissal. 

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B. Punitive Damages

Scott argues that punitive damages are not available 

under the PHRA as a matter of law. Although this question 

might arise again at the retrial, we decline to address it at 

this juncture. 

"In adjudicating a case under state law, we are not free 

to impose our own view of what state law should be; rather, 

we are to apply state law as interpreted by the state's 

highest court in an effort to predict how that court would 

decide the precise legal issues before us. . . . In the absence 

of guidance from the state's highest court, we are to 

consider decisions of the state's intermediate appellate 

courts for assistance in predicting how the state's highest 

court would rule." Gares v. Willingboro Township, 90 F.3d 

720, 725 (3d Cir. 1996) (citations omitted). Predicting the 

Pennsylvania Supreme Court's likely adjudication of the 

question presented is complicated by a sparse landscape of 

conflicting intermediate appellate case law. 

The Pennsylvania Supreme Court has not decided 

whether punitive damages are available under the PHRA, 

although it has indirectly confronted the question of the 

available remedies under the PHRA. Pennsylvania Human

Relations Comm'n v. Zamantakis, 387 A.2d 70, 71-73 (Pa. 

1978) (PHRC is not authorized to "award damages for

mental anguish and humiliation which may arise as a

result of unlawful discrimination," but courts possess 

authority to make such awards under their power to grant 

legal and equitable relief).3 One intermediate appellate court 

in Pennsylvania has held that punitive damages are 

available under the PHRA. Brown Transp. Corp. v.

Pennsylvania Human Relations Comm'n, 578 A.2d 555, 562 

(Pa. Commw. Ct. 1990) (no bar to punitive or compensatory 

damages in PHRA).4 However, during the pendency of this 

_________________________________________________________________ 

3. Zamantakis was a plurality opinion with limited binding effect. Hoy v.

Angelone, ___ A.2d ___, 1997 WL 119445, at *6 (Pa. Super. Ct. 1997). 

4. District courts in the Eastern District of Pennsylvania consistently 

have held that punitive damages are available under the PHRA. Smith v.

General Elec. Co., 1996 WL 24762, at *6 (E.D. Pa. 1996); Galeone v.

American Packaging Corp., 764 F. Supp. 349, 351 (E.D. Pa. 1991) ("Since 

September 1990. . . most federal courts examining this issue have 

allowed punitive damage claims to remain in PHRA actions after 

predicting that the Pennsylvania Supreme Court would rule that punitive 

damages may be imposed under the PHRA.") (collecting cases). 

 18 
appeal, a panel of the Pennsylvania Superior Court vacated 

an award of punitive damages under the PHRA. Hoy v.

Angelone, ___ A.2d ___, 1997 WL 119445, *6 (Pa. Super. Ct. 

1997). The Hoy court specifically refused to extend 

Zamantakis, noting that damages for humiliation and 

mental anguish are of a different nature and serve different 

purposes than punitive damages, and explained it was 

"unpersuaded that such damages are recoverable under the 

PHRA and. . . reluctant to allow such recovery in the 

absence of more definitive guidance" from the state

Supreme Court. Id. 

At oral argument, counsel for Rush represented that a 

petition to the Pennsylvania Supreme Court for allocatur 

has been filed in Hoy. It is therefore possible that the 

Pennsylvania Supreme Court soon will address the question 

of the availability of punitive damages under the PHRA. 

Given these circumstances, we are hesitant to consider the 

question, for to do so might produce the undesirable result 

of having the PHRA remedies available to a plaintiff differ 

depending upon the forum in which the plaintiff has sued. 

For these reasons, and because it is unnecessary to the 

disposition of this appeal, we decline to decide whether 

punitive damages are available under the PHRA. 

IV. CONCLUSION 

Rush's sexual harassment claim was filed timely, and she 

has presented evidence justifying a conclusion that there 

was a continuing violation extending from prior to until 

after January 5, 1993. Thus, on remand, she should be 

permitted to introduce evidence of sexual harassment 

occurring throughout her tenure at Scott. However, her sex 

discrimination claim based on Scott's failure to promote 

and train her was time barred. The inclusion of the failure 

to promote and train claim and the evidence supporting it 

infected the entire verdict, so a remand for retrial is 

necessary on Rush's sexual harassment and constructive 

discharge claims. Accordingly, we will reverse the judgment 

entered in favor of Rush on the basis of the remittitur and 

will remand the case to the district court for entry of 

judgment in favor of Scott on the failure to promote and 

train claim and for a new trial on the hostile environment 

 19 
based on sexual harassment and constructive discharge 

claims. We do not disturb the disposition made in the 

district court of Rush's other claims. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

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