2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
12-21-2004 

# W i l helm v . C omm of P

A P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-2691

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sity S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sity S choo l of L a

w Di g it al Re posit or y

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" W i l he lm v . C omm of P

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w . vi l l a no va . e du/thir dc ir c uit_2004/53* The Honorable Will iam W Schwarzer, Seni or United St ates Dis tri ct Judge for the Northern Dist

rict of Califor

nia, sitting by

designation. NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT 

### No: 03-2691 BARBARA A. WILHELM, Appellant

v. COMMONWEALTH OF PA ; PENNSYLVA

NIA STATE POLICE ; PAUL J. EVANKO, COMMISSI ONER; THOMAS K. COURY; MICHAEL D. SIMMERS

On A ppeal from the Un ited States District Co urt for the M iddle D istrict of P enns ylvania (D.C. No. 01-cv- 01057) Distri ct Judge: Honorable Sy lvia H. Rambo
Submitte d Under Third Circ uit LAR 34.1(a)

on May 24, 2004 BE FO RE : RO TH and ST AP LE TO N, Circuit Judges , and SCHWARZER, * Senior Dist rict Judge (Opinion Fi led: December 21, 2004)2

ROTH , Circuit

Judge : On September 11, 2002, Barbara Wilhelm won a jury verdict a gainst the Com mon wealth o f Penn sylvania for violation of the anti-retaliation provision o f Title VII of the Civi l Rights Act of 1964. 42 U.S. C. § 2000e-3(a) . Wilhelm was awarded $250,000 in damages. In a dditi on, the re was an equitable re lief hearing on t

he issue of Wilhelm’s request

for front pay. This appealaris es from the Dis tri ct Court’ s denialof fr on t p ay. I. FACTUAL AND P ROCEDURAL HI STORY The retaliation incide nt occ urred wh ile W ilhelm wo rked for the Pen nsylvan ia State Police ( PSP) as a Legisl ative Special ist . She al leged that she was t erminat ed on May 1, 200 0, in reta liation fo r com plainin g abo ut incid ents o f sex ual ha rassm ent. In a ddition to her Tit le VII cl aim, Wilhe lm had also a ssert ed clai ms under the EqualPay Act of 1963, 29 U .S.C . § 20 6(d ), Pe nns ylvan ia’s H um an R elatio ns A ct, 43 PA . CO NS . ST AT . AN N. § 955, and the stat e Whistleblower Act, 43 PA. CONS. STAT. AN N. § 1421. The District Cou rt granted sum mary judgm ent for the de fendan ts on all charges e xcept the T itle VII retal iati on charge. At tri al, the jur y awarded Wilhelm $250,000 in damages for the retaliation claim . The equita ble he aring w as then held to determ ine w hethe r W ilhelm sho uld be r eins tated or re ceiv e fro nt p ay. At the hearing, Wilhelm testifie d that s he did not want to be reinstat ed with the3

PSP or with any

other Commonwealth agency . She argued t hat her relat ionship with the Commonw ealth had become too cont entious and that she could no l onger tr

ust t he Commonw ealth. Wilhelm presented e xpert t esti mony at t he heari ng clai ming that the Co mm onw ealth sh ould pay her $ 944 ,336 for co mp ensa tion. T he de fend ants d isputed this claim and p rovid ed ev idenc e that th e Co mm onw ealth w as w illing to re instate W ilhelm in a comparable pos iti on. Jeffrey Miller, the Acti ng Commissioner of t he PSP, tes tifi ed that

the Comm onwealth was w illing to place Wilhelm in the Department of Co rrections as a Deputy Pr ess Secre tary for si x months and that the PSP would payher sal ary during t hat period – the s ame salary that sh e had receiv ed at th e PS P. A fter the expira tion of six

mo nths, the Co mm onw ealth w ould guar antee Wilh elm e mp loymen t com men surate with her sk ills. The Distric t Cou rt orde red the Co mm onw ealth to reinstate Wilh elm in accordance wit

h Commissioner Mill er’s testi mony. Wilhelm appeale d.

II . DIS CUSS ION We have jurisdictio n to h ear this a ppea l pursu ant to 2 8 U .S.C. § 129 1. W ilhelm raised three iss ues o n app eal: 1) w hethe r the P SP a cted in bad faith by fa iling to tim ely disclos e the p ropo sed p osition for re instatem ent, 2) w hethe r the D istrict Co urt erred in allowing Commissi oner Mille r to t esti fy about the propos ed position, and 3) whether t he Dis trict C our t erre d in gra ntin g re insta tem ent a s op pos ed to fro nt p ay. A. Commissi oner Mill er’s Testi mony4

In revi ewing whether the District Court erred in its evident iary

ruling to all ow Com missioner M iller to testify about the d uties of the pro posed D eputy Press Sec retary pos ition , we use an a bus e of disc retio n sta nda rd. Ab ram s v. L igh tolie r, Inc ., 50 F.3d 1204, 1213 (3d. Cir. 1995) . Wilhelm argues that Commissioner Mill er lac ked the per son al kn ow ledg e to te stify ab out W ilhel m’s cap abili ty to ho ld th e pr opo sed pos ition
. W e dis agr ee. Federal Rul e of Evidence 602 provi des in per tinent part, “[a] witness maynot testi fy to a matter

unless evidence is int

roduced sufficient to support a finding t he witness has per son al kn ow ledg e of the m atter . Ev iden ce to pro ve p erso nal k now ledg e m ay . . . consist of the witness’ own tes timony .” Fed. R. Ev. 602. The cour t ale rted Mill er that more was needed than s imply stating that

he had revi ewed the job des cription. Mil ler stat ed he was famili ar with t he position because he works with a pr ess secretary in the PSP an d he ha d wo rk edwit h pres s s ec re tari es fo r years inth e Go ve rn or ’s of fi ce . H e opi ned that W ilhel m p oss esse d th e sk ills to e xce l in th e pr ess s ecre tary po st. The Distri ct Court ha s discretion to decide whether this burden of pers onal kno wle dge has bee n m et. See U.S. v. Lake, 150 F.3d. 269, 273 (3d. Cir. 1998). An abuse of discr etion oc curs “when no reas onable per son would adopt t he dist rict court’ s view.” Ha nove r Po tato P rod., In c. v. Sh alala , 989 F.2d 123, 127 (3d Cir. 1993) (ci tati on
om itted). A reaso nable perso n w ould conc lude th at M iller’s exp erienc e qua lified h im to testify about the position. Ac cordingly, we w ill affirm the allow ance of Miller’s2 Because Wilhel m did not obj ect when Miller was examined concerning the job description or

when it was admitted into evidence, we conclude that she waived her object ion to its unt imely discl osure. 5 tes tim on y. 2 B. Reins tate ment Turning to t

he issue of reins tate ment versus front pay , we conclude t hat the Distric t Cou rt did no t err by ord ering r einstate men t. The cour t has b road discre tion to determi ne whether re inst atement i s proper; we will overr ule it only if it abuses that disc retio n. See Fe ldm an v . Ph ila. Hous . Au th., 43 F.3d 823, 832 ( 3d Cir. 1994) . We see

no a bus e of

disc retio n he re. W hen eve r fea sible , rein state me nt is p refe rred ove r fro nt p ay. M axfield v. Sinc lair Int’l , 766 F .2d 78 8, 796 (3d C ir. 1985 ). Rein statem ent m ay not be feasib le wh en the re is no p ositio n lef

t or th e rela tion ship betw een the tw o pa rties is too hos tile. Id. This is a que stion for the D istrict Co urt. Id. He re, th ere w as a pos ition ava ilabl e fo r W ilhel m in the D epa rtme nt o f C orre ction s. While the Deputy

Press Secr etary

posit ion was not i dentic al to Wilhelm’s for mer position, the District Cou rt found tha t it was substantially similar. The cou rt noted that the salary was the same and that W ilhelm’s healt h and retirement benefits were to be restor ed so that t he records do not indi cate t hat she eve r left

stat e employment. The court als o found that t he responsibilities of the Deputy Press Secr etary

posit ion are a s subst antia l as6

Wilhelm’s previous post. Although Wilhelm contends that the t wo jobs are not commensurate, the “proc ess of re creat ing the pa st wil l necess arily involve a degr ee of approximat ion and impre cisi on.” Int’l B hd. O f Te am sters v. United Sta tes, 431 U.S. 324, 372 (1977). Therefore, we cannot conclude that t he District Court

abused it s discretion by ho ldin g th at the re w as a n av ailab le po sition wh ich m ade rein state me nt fe asib le. Wilhelm al so contends that reinst atement was not feasibl e because she no longer trusts the Com mon wealth. T he D istrict Court found that Wilhelm ’s distrust of the entire Commonwealth was unr eason able . Wilhelm t est ifi ed th at be fore h er t ime wit h the PSP, she had enjoyed her employ ment in various Commonwealth posi tions . The employ ment wit h th e PS P am oun ted to onl y two years o f he r eig htee n yea r Co mm onw ealth care er. The De puty Pre ss Se cretary po sition w as w ithin the De partm ent of Co rrection s. The only connecti on with the PSP was that the PSP was res ponsibl e for paying the f irst six months of Wilhelm’s salar

y. Other than t

hat, she would not be s upervis ed by t he PSP, nor answerable to it. Moreover, Wilhelm sent res umes to Commonwealth agencie s after the jury tri al had been compl eted. In view of the above evidence , we conclude t hat the re was
no a bus e of

disc retio n by th e D istrict Co urt a nd t hat r eins tatem ent w as p rop er.

II I. CONCLU SI ON For th e afo reme ntione d reas ons, w e w ill affirm the jud gm ent of the D istrict Co urt.