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. e du/thir dc ir c uit_1997/107Filed 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 AppelleeAlfred 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"), a ppeals from a judgment entered in favor of its former empl oyee, 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 env ironment through sexual harassment. She also claimed that Sc ott improperly constructively discharged her and retali ated 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 award ed Rush several million dollars in compensatory and pu nitive damages on her discrimination in promotion and trai ning, sexual harassment, and constructive discharge claim s, but on Scott's motion, the district court found that th e damages were excessive and significantly reduced them in a remittitur. Rush accepted the remittitur rather tha n going through a new trial, so the court entered judgment for the reduced amounts. Scott has filed a timely appeal. W e have jurisdiction under 28 U.S.C. § 1291, and the distri ct court had jurisdiction under 28 U.S.C. § § 1331 and 1367( a).

Scott contends that Rush's employment discriminatio n claim based on failure to promote and train is time barred

2and cannot be saved by application of the continuin g

violation theory. We agree; allowing Rush to sue on the failure to promote and train claim, and to introduc e 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 harassme nt hostile environment and constructive discharge claims. Furthermore, we cannot say that the evidence with r espect to the failure to promote and train claim did not a ffect the computation of the damages awarded. Therefore, we w ill reverse the judgment entered in favor of Rush and r emand 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 c ommon 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 fr om September 11, 1989, until her resignation on June 1 0, 1993. Periodically, Rush changed from a full-time t o a parttime status to pursue her education. In September 1 990, Rush went part time so that she could take course w ork in chemistry. During the fall of 1990, Scott conducted a flaskmaking course which trained some Lab Tech Is in ski lls needed for promotion to Lab Tech II analyst positio ns. Scott intended to use the training course as a promotion device and planned to promote the highest performing Lab T ech Is

to Lab Tech IIs. Rush claims she was not informed a bout the class, although several male employees were, an d that Scott thereby deprived her of an important opportun ity for training and advancement within the laboratory. Rus h also claims that she and Scott were unable to agree upon an arrangement through which she could watch the cours e on videotape so that she could become eligible for pro motion. Ultimately, in early 1991 Scott promoted three men with less seniority than Rush to Lab Tech II analyst pos itions based on their performance in the flask-making clas s.

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

Employment Opportunity Commission, claiming that Sc ott discriminated against her in training and promotion because of her sex. She based this charge on her ex clusion 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 en tered into a written settlement agreement in which Rush a greed not to file suit against Scott based on her EEOC ch arge. App. at 2173. Rush also executed a release in which she agreed to:

release and forever discharge Scott. . . of and fro m all claims and causes of action alleged in, or which co uld 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 promotio n.

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 ne xt available Lab Tech II analyst position. App. at 217 3.

Following the execution of the settlement agreement

, Rush met with lab manager Mark Sirinides, who expla ined the requirements for promotion to a Lab Tech II ana lyst position. In March 1992, Scott allowed Rush and som e of her co-workers to take the flask-making course via videotape. She received the highest grade in the cl ass. On June 15, 1992, Scott certified to the EEOC that Rus h had completed the required training course and, in acco rdance with the settlement agreement, would be considered "when a vacancy in Lab Tech II Analyst position commensur ate with her skills occurs." App. at 2193.

In June 1992, Scott promoted a male Lab Tech I, Gar ren Knoll, to a Lab Tech II position. Rush contends, an d Scott

4agrees, that it did not consider Rush for this prom otion,

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 claim ed that because this was a temporary, part-time position, R ush 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 char ge, her male co-workers and some supervisory and manage rial employees sexually harassed her. She asserts that s he unavailingly complained about this harassment at va rious levels of Scott's management. Sirinides wrote a mem o to plant manager John Post outlining Rush's complaints and asking for guidance and training on how to deal wit h such complaints. Neither Post nor regional vice-presiden t William Gittler, both of whom saw Sirinides' memo, responde d to the complaints.

In March 1993, Rush again arranged to work part tim e; 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 2 7, 1993, Rush and some co-workers arrived late to work , but she claims that Ted Neeme, a group leader in the la boratory 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 duri ng that day, either just before her resignation, or ju st after, a meeting was held at Scott's premises from which Rus h 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 resignatio n form, Rush noted that she felt forced to leave Scott. App . at 2167.

On November 1, 1993, Rush filed a discrimination cl aim with the Pennsylvania Human Relations Commission; t he

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

a right to sue letter, she filed suit in the distri ct court against Scott on February 8, 1995. Her complaint al leged

discrimination on the basis of sex in violation of Title VII, the Federal and Pennsylvania Equal Pay Acts, and th e Pennsylvania Human Relations Act ("PHRA"). In addit ion, Rush asserted a claim against Scott for allegedly r etaliating against her for filing the first EEOC charge and cl aims under Pennsylvania common law. She also claimed tha t 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 hi red Carpenter long before January 5, 1993, and thus it argued that Rush could not base a claim on those employmen t actions. Nevertheless, the district court denied Sc ott'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. Rus h v. Scott Specialty Gases, Inc. , 914 F. Supp. 104, 106-07 (E.D. Pa. 1996). The court, however, granted Scott summar y judgment on the Pennsylvania Equal Pay Act claim an d granted it partial summary judgment on Rush's commo n law claim.

At the ensuing two-week trial, the jury found in fa vor of Rush on her Title VII and PHRA failure to promote a nd train, sexual harassment, and constructive discharg e 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 F ederal 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 clai m.

Following the return of the verdict, Scott moved fo r judgment as a matter of law or a new trial, or, in the alternative, for a remittitur. The district court d enied the motion for judgment as a matter of law on the groun ds that

6the evidence supported the verdict. Rush v. Scott S pecialty

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 evidenc e 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 cond itioned 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 a mount of $2,700,000. The remittitur left Rush with an awa rd 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 co urt subsequently granted Rush prejudgment interest and awarded her counsel fees of $210,062.50 and costs o f $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 harassm ent claims in a timely manner so this action largely is barred. Scott also advances challenges to the jury instruct ions, evidentiary rulings, and sufficiency of the evidenc e and asserts that the PHRA does not provide for punitive damages. We conclude that the hostile environment s exual harassment claim was timely, the failure to promote and train claim was time barred, and the introduction o f evidence with respect to Scott's failure to promote and train

Rush based on her sex infected the entire trial. Ac cordingly, we will reverse the judgment in favor of Rush and r emand

for a new trial on Rush's hostile environment sexua l harassment and constructive discharge claims and fo r entry of judgment in favor of Scott on the failure to promote and train claim. This disposition makes it unnecess ary to
consider Scott's other assertions of error.

A. The Continuing Violation Theory

The parties are in agreement that under Title VII t he ordinary time for filing a charge of employment

7discrimination with the EEOC is 300 days after the alleged

discrimination when the charge is filed first, as h ere, 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 present ing questions of precisely when a `practice' occurred. That date may be more inflexible when there is a discret e trigger event and the discrimination is overt. Howe ver, there are cases in which the plaintiff does not kno w he has been harmed; similarly there are cases of an ongoing, continuous violation. To accommodate these more indeterminate situations, the Supreme Court ha s 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-da y retrospective limitations period which ordinarily w ould 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 demonstr ate that the act is part of an ongoing practice or pattern o f

discrimination of the defendant." Id . at 754 (citations omitted). In considering this issue, we note that t he parties in their briefs do not clearly delineate between th e record on the motion for summary judgment and the record a t trial. While in some cases this lack of precision c ould present a problem on appeal, here it does not becau se, on any view of the facts, Scott was entitled to a judg ment on the failure to promote and train claim. Similarly, on any view of the facts, Rush's hostile environment sexua l harassment claim was not time barred, even with res pect to conduct occurring prior to January 5, 1993.

We also note that in some circumstances the procedu re followed in deciding whether there is a continuing violation might impact on the scope of review. There is autho rity that

8a trial court's ruling on whether there is a contin uing

violation is reviewed on the clearly erroneous stan dard. 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 cou rt ruled on the continuing violation argument by denying Sco tt's motion for summary judgment; this procedural postur e suggests that plenary review might be appropriate. Furthermore, in West , in which we considered the employee's argument that there had been a continuin g violation in the context of reviewing determination s on the admission of evidence, we suggested that we were exercising at least a degree of plenary review. Wes t , 45 F.3d at 748 ("We conclude, in this hostile work environm ent context, that the scope of the admissibility of evi dence 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. . . . Howeve r, as to the application or interpretation of a legal standa rd underlying the admissibility decision, our review i s plenary.") (citations omitted).

In this case, however, we need not linger on the sc ope 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 continu ing violation theory was applicable to the sexually hos tile

environment claim. Cf

. Konstantopoulous v. Westvaco Corp.

, No. 94-7462, slip op. at 15 n.1 (3d Cir. May 6, 199 7) ("Here, we find it unnecessary to decide which stan dard of review to apply because under either standard we se e no ground for reversing the district court's decision. "). Thus, we apply the standard of review most favorable to t he party against whom we are making particular determination s.

To demonstrate a continuing violation, the plaintif ffirst must show that at least one discriminatory act occu rred within the 300-day period. West , 45 F.3d at 754. Second, the plaintiff must show that "the harassment is`mor e than the occurrence of isolated or sporadic acts of inte ntional discrimination,' " and instead must demonstrate a

9continuing 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. Th e Berry

court enumerated several factors relevant to the determination of whether a plaintiff has demonstrat ed a continuing violation:

The first is subject matter. Do the alleged acts in volve the same type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring. . . or m ore 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 asse rt his or her rights, or which should indicate to the employee that the continued existence of the advers e consequences of the act is to be expected without b eing 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 pri or to the start of the 300-day limitations period. Rush r esponds

that she was not aware in 1991 when she filed her i nitial EEOC complaint that she had been subjected to sexua l harassment, and she also contends that the harassme nt she experienced constituted a continuing violation so that all of the harassment, even that occurring before J anuary 5, 1993, was actionable.

As we explained in West , there is "a natural affinity" between the theory underlying hostile environment c laims

10and 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 inci dents 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 litigati on when they become aware of conduct that would support a v iable claim without forcing them to do so prematurely. Id . at 1166. Thus, the court concluded that a plaintiff "m ay 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 acti onable harassment only in the light of events that occurre d later, within the period of the statute of limitations." I d . at 1167 (citations omitted).

Rush testified that when she filed her original EEO C complaint in 1991 she did not include claims for se xual

harassment because

it was not really as frequently [sic], it later int ensified but at that time it was a lot less frequent. I'm no t 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 beginnin g 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. a t 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 c oworkers on a daily basis. App. at 402. This harassm ent

11included disparaging remarks and criticism of her w ork.

App. at 403-04. Rush testified that Bedoya's behavi or changed and that he began to touch her inappropriat ely and sexually at work, to make sexual comments to he r, and to be rude to her. App. at 416-19, 421. Rush also t estified 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 Ric hards 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 vi olation and to present evidence of incidents occurring prio r 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 t he 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 f inding that Rush suffered continuous sexual harassment, at least from the time she filed the original EEOC charge. T he harassment did not consist of unrelated, isolated i ncidents, 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 t hat the harassment intensified after the charge was filed, and, moreover, she did not realize early on how pervasiv e or severe the harassment was.

2. The Failure to Promote Claim

Scott argues that Rush's failure to promote and tra in claim predicated on sexual discrimination was not t imely filed because she did not allege any instances of discriminatory failure to promote and train after J anuary 5, 1993.1 Rush argues that the sex discrimination in t raining

___________________________________________________ ______________

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 cl aim time barred, it is not necessary to address either the effect of the r elease on the viability of Rush's claim or Rush's ability to repudiate the release.

12and promotion was a continuing violation during her three and one-half years at Scott. The district court fou nd that Rush's failure to promote and train claim was not t ime barred because the continuing violation theory appl ied 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 perfor m temporarily Lab Tech II work occurred within the 30 0-day limitations period. In an effort to avoid a conclus ion that her failure to promote and train claim was time bar red, Rush argues that the gradual change in Knoll's duti es 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 great ly increased beginning in January 1993, app. at 1590, 1596, Scott's assignment of analysis work to Knoll did no t constitute a discriminatory failure to promote occu rring within the limitations period. Scott was not requir ed to promote an additional person to perform the analysi s work it ultimately assigned to Knoll. Knoll's promotion to the Lab Tech II position was a discrete incident; Scott fil led the vacancy in June 1992. After that time, aside from the parttime summer position Carpenter filled, no new Lab T ech II positions became available. The change in Knoll's w ork 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 als o unavailing. Rush was required to make a timely chal lenge to the actual failure to consider her for promotion , and she did not do so. Therefore, she cannot claim that Sco tt's alleged discrimination in promotion was a continuin g violation.

In a further effort to bolster her argument that he r failure to promote and train claim was filed timely, Rush c ontends Scott's discrimination in training and discipline, as well as the sexual harassment she suffered, continued throu ghout her employment and can be used to establish a conti nuing violation that would include Scott's failure to pro mote her. We reject this argument.

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

her sexual harassment claim and cannot be regarded as having been timely by reason of her other allegatio ns of discriminatory treatment. Rush's failure to promote and train claim addresses discrete instances of alleged discrimination that are not susceptible to a contin uing violation analysis. We reiterate that Scott's promo tion of Knoll and hiring of Carpenter were independent even ts that put Rush on notice to file a charge of discriminati on. Rush knew from the settlement agreement that she was to be considered for the next available Lab Tech II posit ion. If she believed Scott was not considering her for availabl e positions as promised, she should have reacted at t hat time. Waiting to see what would happen next was poi ntless; the harm, if any, already was inflicted.

Additionally, neither the sexual harassment nor the other alleged discriminatory acts were related sufficient ly to Rush's failure to promote and train claim to consti tute a single continuing violation. The sexual harassment and failure to promote and train claims address differe nt types of conduct. Rush's failure to promote and train cla im focuses on the failure to promote Rush to, or prepa re her for, a Lab Tech II analyst position. By contrast, t he sexual harassment claim focuses on the use of foul languag e, demeaning comments, and inappropriate touching by h er co-workers and some managers. These are distinct cl aims.

Similarly, although she has alleged disparity in di scipline falling within the limitations period, these claims are not related factually to the failure to promote and tra in claims. While she still may have a viable and timely claim for discrimination in discipline, this claim is not suf ficiently related to the failure to promote and train claim t o 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, whi ch we have been considering together, treating them as se parate
claims does not affect our result.2 Rush has not al leged

___________________________________________________ ______________

2. The district court treated the failure to promot e and failure to train claims together by submitting them to the jury in a single special interrogatory.

14specific failure to train incidents within the limi tations

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 h er requests prior to that class for more advanced trai ning. She also complained of Scott's failure to train her pro perly for the position for which she was hired. Thus, the fai lure to train allegations do not bring her failure to promo te claim to a time within the limitations period. Moreover, a failure to train claim arising within the 300-day limitatio ns period would be distinct from a claim predicated on Scott' s earlier failures to promote Rush.

We recently have had occasion to consider a situati on which demonstrates that a court must be circumspect in relating discrete incidents to each other. In Konst antopoulos v. Westvaco Corp. , slip op. at 10, a plaintiff who was employed by the defendant for two distinct time per iods, with a seven-month interruption between them, argue d "that the district court improperly evaluated the e vents that occurred during her second period of employment in

isolation and that instead the court should have vi ewed

them as a continuation of the harassment that had t aken place seven months earlier." We rejected the argume nt, in part because the seven-month gap allowed the effect s of the earlier incidents to dissipate. Konstantopoulos demonstrates that a careful analysis must be made before acts ar e 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 fai lure to promote and train claim was distinct from the sexua l harassment claim and the other allegations of

discrimination.

The district court erred when it held that Rush's f ailure to promote and train claim was a continuing violati on 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 with in the limitations period. Furthermore, we have no intenti on of shredding the 300-day limitations period by automat ically

15allowing an employee who alleges actionable conduct

occurring within that period to make claims with re spect to any adverse employment actions that occurred during his or her entire period of employment. Rather, a distr ict court must scrutinize the claims to establish that they a re related. See West , 45 F.3d at 755 (refusing to adopt per se rule that every hostile environment claim constitut es a continuing violation). To allow a stale claim to pr oceed would be inconsistent with the administrative proce dure established by Title VII which contemplates prompt filing of charges so that discrimination controversies may be resolved promptly. See EEOC v. University of Pennsy lvania

, 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 rev erse the judgment in favor of Rush on the failure to promote and

train claim and remand for the district court to en ter judgment in favor of Scott on that claim.

3. Other Claims

The jury answered special interrogatories, renderin g separate liability verdicts on each of Rush's claim s. App. at 219-20. Similarly, the court instructed the jury to calculate damages separately for each category of damages cla imed. App. at 220-21. However, the court did not instruct the jury to attribute specific portions of the damages award s to the

individual counts on which it found Scott liable. O ur review of the record compels the conclusion that the prese nce of the failure to promote and train claim and the intr oduction of evidence related to and supporting that claim in fected the jury's liability verdicts on the sexual harassm ent and constructive discharge claims as well as the verdic t for the damages.

Indeed, Rush has claimed that the sexual harassment and Scott's failure to promote and train her were r elated.

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 the ory at oral argument, contending that the same managerial personnel, particularly Sirinides, who failed to st op the

16sexual 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 allege d harassment, and the evidence supporting the claims was presented in tandem.

It is not possible to ascertain what portions of th e 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 th e manner in which evidence was presented, we are unab le to find that the evidence of discriminatory failure to promote and train did not affect the jury's verdict on liab ility 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 jur y's liability verdict on the hostile environment sexual harassment claim as well. Similarly, Rush's constru ctive discharge claim was not linked exclusively to eithe r the failure to promote and train claim or the harassmen t claim, so the verdict on this claim, too, may have been in fluenced by the evidence offered in support of the failure t o promote and train claim. Accordingly, we also will reverse the judgment in favor of Rush on her constructive disch arge claim.

The jury found in favor of Scott on Rush's retaliat ion claim. Rush has not filed a cross-appeal from the e ntry of judgment in favor of Scott on that claim, so the ju dgment

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 req uired to under the appropriate standard, Abrams has not c rossappealed on that ground and we therefore leave the judgment undisturbed as to the ADEA claim."); Winst on 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 w e already have indicated, the Equal Pay Act and common law cl aims are out of the case, and Rush has not appealed from their

dismissal.

17B. Punitive Damages

Scott argues that punitive damages are not availabl e under the PHRA as a matter of law. Although this qu estion might arise again at the retrial, we decline to add ress 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 sta te's highest court in an effort to predict how that cour t 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 appe llate 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). Predic ting the Pennsylvania Supreme Court's likely adjudication of the question presented is complicated by a sparse lands cape of conflicting intermediate appellate case law.

The Pennsylvania Supreme Court has not decided whether punitive damages are available under the PH RA, although it has indirectly confronted the question of the available remedies under the PHRA. Pennsylvania Hum an 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 poss ess authority to make such awards under their power to grant legal and equitable relief).3 One intermediate appe llate 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 compen satory damages in PHRA).4 However, during the pendency of this

___________________________________________________ ______________

3. Zamantakis was a plurality opinion with limited binding effec t. Hoy v. Angelone , ___ A.2d ___, 1997 WL 119445, at *6 (Pa. Super. C t. 1997).

4. District courts in the Eastern District of Penns ylvania 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 t his issue have allowed punitive damage claims to remain in PHRA ac tions after predicting that the Pennsylvania Supreme Court woul d rule that punitive damages may be imposed under the PHRA.") (collectin g cases).

18appeal, 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 wa s "unpersuaded that such damages are recoverable unde r the PHRA and. . . reluctant to allow such recovery in t he 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 allo catur has been filed in Hoy . It is therefore possible that the Pennsylvania Supreme Court soon will address the qu estion of the availability of punitive damages under the P HRA. Given these circumstances, we are hesitant to consi der the question, for to do so might produce the undesirabl e result of having the PHRA remedies available to a plaintif f 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 wh ether punitive damages are available under the PHRA.

IV. CONCLUSION

Rush's sexual harassment claim was filed timely, an d 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 harassmen t occurring throughout her tenure at Scott. However, her sex discrimination claim based on Scott's failure to pr omote
and train her was time barred. The inclusion of the failure to promote and train claim and the evidence support ing it infected the entire verdict, so a remand for retria l is necessary on Rush's sexual harassment and construct ive discharge claims. Accordingly, we will reverse the judgment

entered in favor of Rush on the basis of the remitt itur and

will remand the case to the district court for entr y of judgment in favor of Scott on the failure to promot e and

train claim and for a new trial on the hostile envi ronment

19based on sexual harassment and constructive dischar ge

claims. We do not disturb the disposition made in t he

district court of Rush's other claims.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

20