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. e du/thir dc ir c uit_2000/44Filed March 3, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-6410

SUSAN FARRELL, Appellant

v.

PLANTERS LIFESAVERS COMPANY;
NABISCO, INC.

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 97-cv-01059) District Judge: Hon. Joseph A. Greenaway, Jr.

Argued: September 16, 1999

Before: GREENBERG, SCIRICA and RENDELL, Circuit Judges

(Filed March 3, 2000)

David N. Mair, Esq. [ARGUED] Henry L. Saurborn, Jr., Esq. Kaiser, Saurborn & Mair 20 Exchange Place, 43rd Floor New York, NY 10005 Counsel for Appellant

Caren I. Friedman, Esq. [ARGUED] Equal Employment Opportunity

Commission 1801 L Street, N.W. Washington, DC 20507 Counsel for EEOC, Amicus Curiae

Joel L. Finger, Esq. [ARGUED] Roberts & Finger 767 Third Avenue, 12th Floor New York, NY 10017 Counsel for Appellee

OPINION OF THE COURT

RENDELL, Circuit Judge.This appeal raises a number of employment law issue s

relating to the recruitment, hiring and later firin g of appellant, Susan Farrell. The District Court grante d summary judgment in favor of defendants Planters Lifesavers Company and Nabisco, Inc., on all of Far rell's claims.1 See Farrell v. Planters Lifesavers Co., 22 F. Supp. 2d 372 (D.N.J. 1998). Farrell appeals the dismissal of her retaliation and quid pro quo sexual harassment clai ms under Title VII and the dismissal of her North Caro lina contract law claim.2 Acting as Amicus Curiae, the E qual Employment Opportunity Commission supports Farrell' s appeal from the dismissal of her federal claims. We find that Farrell established a prima facie case for bot h federal causes of action, and we will reverse the grant of summary judgment precluding her retaliation and quid pro qu o claims. We will, however, affirm the dismissal of h er state contract law claim. We have jurisdiction over this appeal pursuant to 28 U.S.C. S 1291. The District Court ha d jurisdiction over the Title VII claims under 28 U.S .C. S 1331, and exercised jurisdiction over the state l aw claim under 28 U.S.C. S 1332. Viewing the record from Far rell's perspective, the facts in this case are as follows.

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1. Planters Lifesavers Company was an operating com pany of Nabisco, Inc. Subsequently, Planters Lifesavers Company divi ded into Planters Company and LifeSavers Company. Both are operating companies of Nabisco, Inc. For the sake of simplicity, we will r efer to the defendants collectively as "Planters."

2. Farrell does not appeal the District Court's dec ision granting summary judgment in favor of Planters on her wage discrimin ation claim. See Farrell, 22 F. Supp. 2d at 388-90.

2

I.

In 1992, Planters, then located in Winston-Salem, N orth Carolina, hired Douglas DeLong as its Director of M aterials Management. One of DeLong's central tasks involved formulating a plan to cut operating costs in Plante rs' Materials Management Department. Beginning in the e arly 1990s and continuing through 1997, Planters sought to cut its operating costs by consolidating its workforce. DeLong quickly reorganized the Materials Management Depart ment, bringing together the Purchasing, Packaging Service s, Graphic Design and Production Planning Departments within the Materials Management Department and plac ing them all under his direct authority. In August 1993

, DeLong wrote a memorandum to Norm Jungman, his supervisor, suggesting Planters merge the Packaging Services and Graphic Design Departments as part of itsconsolidation. DeLong explained that he hoped to me rge the

two departments by late 1994 or early 1995.

In late 1993, Planters decided to discharge the Dir ector of Packaging Services, Ronald Yonker. Almost contemporaneously, Planters approached Susan Farrel l, through a recruiter, to become a Packaging Engineer in the Packaging Services Department. Based on her qualifications, and DeLong's recommendation, Plante rs subsequently considered Farrell as a candidate to r eplace Yonker as Director of the Packaging Services Depart ment. At the time, Farrell was a packaging engineer at Mc Cormick & Company in Hunt Valley, Maryland.

In January of 1994, Farrell traveled to Winston-Sal em to interview. By mistake, Planters had Farrell intervi ew with Yonker, who did not know of the decision to fire hi m and believed Farrell to be interviewing for another pos ition. Concerned about her own job security by virtue of P lanters' treatment of Yonker, Farrell sought assurances duri ng the recruitment process. DeLong assured her that she wo uld only be fired for poor performance. A number of ind ividuals told her that Yonker had been repeatedly warned abo ut his performance before the decision was made to termina te

him.

Planters formally offered Farrell Yonker's position , retitled as Senior Manager of Packaging Services, by letter

3

dated February 4, 1994. Planters also promised to purchase Farrell's home in Maryland for $ 240,000 a nd pay for Farrell's relocation back to Maryland if her em ployment with Planters ended within two years because of "performance concerns or position elimination." Far rell accepted the offer on February 11, 1994, and reloca ted to North Carolina. She began work at Planters on March 28, 1994. Farrell's husband remained in Maryland.

In mid-November 1994, Farrell traveled to Chicago t o attend a Pack Expo, an annual packaging exposition, with a number of Planters and Nabisco, Inc. managers. Wh ile attending the show, DeLong told Farrell that his su pervisor, Norm Jungmann, was about to be fired and that he wo uld assume Jungmann's position shortly. DeLong then pra ised Farrell's work performance, told her that he felt h er style complemented his, and asked her if she would be int erested in becoming the head of the Industrial Engineering Department in addition to her duties as manager of the Packaging Engineering Department once he replaced
Jungmann.A few hours later, DeLong asked Farrell to accompan y

him the next day on a planned business trip to Puer to Rico to tour a Planters' facility. DeLong instructed Far rell to book tickets on the same flight as his, with seats together. Farrell made the arrangements. DeLong and Farrell h ad traveled on business trips together on two prior oc casions.

During the flight to Puerto Rico on November 16, 19 94, DeLong placed his hand just above Farrell's knee wh ile telling Farrell that his wife became jealous when h e traveled

with Farrell. He asked Farrell whether her husband became jealous when she traveled with DeLong. Farrell resp onded by removing his hand from her leg and firmly tellin g him "no, I don't give him a reason to and I suggest you do the same." Farrell says DeLong's demeanor changed when she rejected his advance: he turned away, curled up and slept or pretended to sleep.3 Farrell and DeLong engaged in little

___________________________________________________ ______________

3. The District Court refused to consider certain e vidence regarding DeLong's change in attitude after Farrell rejected his advance because it contradicted her deposition testimony. See Farrell, 22 F. Supp. 2d at 381 n.22 (citing Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703, 705-06 (3d Cir. 1988). As we explain, see infra se ction II. C, we disagree

and will consider the allegation as part of the rec ord in front of us.

4

or no further conversation for the rest of the flig ht. The next day, DeLong flew back to Winston-Salem, informing F arrell that he was leaving a day early in order to find ou t more about Jungman's termination.

Farrell also says that DeLong often commented when she wore a skirt, and states that in October, DeLong to ld her that she was pretty calm considering she was living apart

from her husband and that he would be "bitchier" if he were her. However, after the November flight, DeLon g never made reference to the advance on the plane, nor mad e a second advance.

On December 13, 1994, less than a month after the t rip

to Puerto Rico and less than two weeks after Plante rs paid for her possessions to be moved to North Carolina a nd purchased her home in Maryland, Gary Eckenroth, Planters' Vice President for Human Resources, went to Farrell's office and asked her to come up to his of fice. On the way, Eckenroth told her that Planters was going to eliminate her position. Once inside his office wher e DeLong was waiting, Farrell says Eckenroth told her Plante rs would call her termination a position elimination, in ord er to allowFarrell to retain benefits and give her a severance package,

but that she was actually being terminated because of interpersonal problems with other members of Plante rs' management. When Farrell asked for specifics, DeLon g mentioned Suzanne Jabbour and Ed Lyons. He also mad e general reference to some others whom he did not na me. After Farrell protested, questioning why Planters h ad just paid for movers and purchased her house in Maryland if they were terminating her, Eckenroth said that he d id not know that Planters had just moved her. Eckenroth th en asked DeLong to leave the room. Once DeLong left, F arrell says that Eckenroth told her that he had not checke d DeLong's report of complaints and he promised he wo uld do

so.

The next day, Farrell spoke with Jabbour and Lyons and they both denied making negative comments to DeLong

, but confirmed that DeLong had asked them about her. Lyons also told Farrell that he had told DeLong tha t he felt DeLong had a personal problem with Farrell. That sa me day, Farrell says Eckenroth told her that Jabbour a nd

5

Lyons came to him and confirmed that they had not m ade negative comments about her to DeLong. In fact, DeL ong's own internal memorandum, dated December 8, 1994 sta tes "Ed Lyons said she was helpful with his group." Eck enroth also apologized for not having investigated DeLong' s claim,

but told Farrell that she would have to leave becau se rumors of her termination had begun to circulate. A few days later, Eckenroth talked to her about accepting the severance package in return for releasing her claim s. Farrell did not agree to any terms of separation an d left her position on December 28, 1994.

DeLong's memorandum, dated December 8, describes th e events leading up to Farrell's termination. The

memorandum refers to three conversations he had on December 7 and 8 with various Planters' managers wh o came to DeLong and complained about Farrell. The memorandum then refers to a meeting between DeLong and Eckenroth, spurred by these conversations, where th ey "discussed the option of eliminating" Farrell's pos ition and merging the Packaging and Graphics Departments as DeLong had suggested in 1993.

DeLong notes that he spoke with Planters' managers, including Jabbour and Lyons, "to gather feedback ab out Farrell." DeLong summarizes their comments: "The mo st common response received was, `I don't know what sh e does.' `A lot of talk but no results.' `Nice suit, but nothing in it.' Ed Lyons said she was helpful with his grou p."DeLong then detailed his subsequent conclusions,

including:

When all the issues with her peers were disc ussed and other feedback received discussed, it was cl ear that I

had to deal with Susan. I could not run an a rea with the type of conflict that existed between Su san and the rest of my staff.

. . . .

[b]ased on these discussion and conversation s with people over the last several months who foun d Susan very difficult to work with, i.e., Phil, Mik e, Peggy and Rob, I made the decision to eliminate her jo b and combine Graphics and Packaging under Peggy a s per

6

earlier recommendation and hire another Pack aging Engineer.

Farrell alleges that her rejection of DeLong's adva nce resulted in her termination, forming the basis of h er federal claims. She also argues that DeLong's assurances cr eated an implied term in her employment contract permitti ng her termination for cause only. Farrell alleges that Pl anters breached this provision by firing her, forming the basis for

her state law claim.

Planters disputes many of the facts alleged by Farr ell, and the inferences that might be drawn from them, a nd

describes different reasons for Farrell's terminati on. According to Planters, Farrell was terminated becau se upper management made the decision to consolidate t he Graphics and Packaging Departments and Planters determined that Peggy Bryan, the head of the Graphi cs Department, would better serve Planters than Farrel l in the consolidated position. According to Planters, Ecken roth met with Sandy Putnam, Vice President of Planters, to d iscuss

cost containment and reduction measures in November of 1994 and specifically discussed the possibility of implementing DeLong's 1993 proposal that Planters s hould consolidate the Packaging Services and Graphic Desi gn Departments in late 1994 or early 1995.

Planters explains that DeLong and Eckenroth met on

December 8 to discuss the consolidation. At that me eting, Eckenroth asked DeLong to make a recommendation abo ut whether they should keep Farrell or Bryan, which he did. Planters contends that DeLong's December 8 memorand um is materially consistent with their explanation for Farrell's

termination since it describes a discussion aboutconsolidating departments, efforts by DeLong to can vass

opinion about Farrell, and the decision to retain B ryan.

Furthermore, in his certification and deposition testimony, DeLong denied ever having suggested to F arrell the possibility of a promotion or making the advanc e on the plane. Eckenroth and DeLong also denied that they t old Farrell that the decision was a position eliminatio n in name only during their meeting with Farrell. In their ce rtifications and deposition testimony, DeLong and Eckenroth also

7

support the choice to retain Bryan by stating that they received complaints about Farrell's availability, a bility and attitude throughout her employment. Planters points out that in the summer of 1994, a peer group gave Farre ll the mock award title of "phantom leader," and in Octobe r, DeLong wrote a memorandum to Farrell telling her to increase her visibility at Planters.

After her termination, Farrell filed suit. The Dist rict Court granted Planters summary judgment on all of Farrell 's claims. Farrell appeals and argues that the Distric t Court erred in dismissing her Title VII quid pro quo sexu al

harassment and retaliation claims as well as her No rth

Carolina contract law claims. We discuss each in tu rn, beginning with Farrell's Title VII claims.

We exercise plenary review over summary judgment an d we apply the same standard that the lower court sho uld have applied. See Armbruster v. Unisys Corp., 32 F. 3d 768, 777 (3d Cir. 1994). A federal court should grant su mmary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine i ssue as to any material fact and that the moving party is enti tled to a judgment as a matter of law." See Fed. R. Civ. P. 5 6(c). In making this determination, "a court must view the f acts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster, 32 F.3d at

777.

II.

Farrell claims that Planters and Nabisco violated T itle VII in two separate ways and presents her discriminatio n claim as two different causes of action. She alleges that her termination was both an impermissible act of retali ation and an act of quid pro quo sexual harassment. In th is case, it is clear that both of Farrell's claims rely upon the same essential facts: DeLong's sexual advance, her rejec tion of the advance and her subsequent termination.The District Court determined that Farrell failed t o

produce evidence showing a causal link between the rejection and her termination, as is required to es tablish a

8

prima facie case for each claim. Considering Farrel l's retaliation claim, the District Court first determi ned that the three to four week period between the rejection and the

termination was insufficient alone to establish the causal

link. The court then searched the record for eviden ce of a "pattern of antagonism" or a "retaliatory animus." Finding none, the District Court granted the defendant's mo tion as

to Farrell's retaliation claim. The District Court dismissed Farrell's quid pro quo sexual discrimination claim in a similar manner. Relying heavily upon Lynch v. New D eal Delivery Serv., Inc., 974 F. Supp. 441 (D.N.J. 1997 ), the

Court dismissed Farrell's claim because there was n o evidence that DeLong either acted hostilely towards Farrell after she rejected his advance or pressed the issue again.

For the reasons described below, we conclude that t he District Court erred by requiring that the causal c onnection for both claims be supported by a pattern of antago nism, retaliation or hostility and, thereby, engaged in t oo narrow a review of the plaintiff 's evidence. Considering the record before us, we find ample evidence from which to inf er a causal connection between Farrell's rejection of De Long's advance and her subsequent termination that enables Farrell to make out a prima facie case for both her claim of retaliation and her claim of quid pro quo sexual

harassment. Since we find that Farrell makes out a prima facie case on all the evidence before us, we need n ot decide whether the three to four week period between the a dvance and termination would be sufficient, if considered alone. We

note that the District Court did not reach the issu e of whether Planters and Nabisco proffered a legitimate nondiscriminatory reason for Farrell's termination or whether Farrell could illustrate that the reason was pretex tual, so

we will reverse and remand to the District Court fo r consideration of those issues. We will discuss the requirements for Farrell's prima facie case of reta liation and quid pro quo sexual harassment in that order.

A.

Under our precedent, to advance a prima facie case of retaliation, a plaintiff must show that: (1) the em ployee engaged in a protected employee activity; (2) the e mployer

9took an adverse employment action after or

contemporaneous with the employee's protected activ ity; and (3) a causal link exists between the employee's protected activity and the employer's adverse actio n. See, e.g., Kachmar v. Sungard Data Systems, Inc. , 109 F .3d 173, 177 (3d Cir. 1997); Jalil v. Advel Corp., 873 F.2d 701, 708 (3d Cir. 1988); see also Krouse v. American Sterili zer Company, 126 F.3d 494, 500 (3d Cir. 1997) (describi ng the third requirement as a "causal connection").

The District Court determined that Farrell failed t o establish the third element of the prima facie case . 4 It reasoned that "a temporal proximity of three to fou r weeks may support an inference of retaliation," but held "[a]bsent evidence of intervening antagonism or retaliatory a nimus

. . . Farrell has failed to establish a causal link between her rejection of DeLong's advance and her termination. Thus, Farrell has not established a prima facie case of retaliation." Farrell, 22 F. Supp. 2d at 393. The D istrict Court limited its inquiry into whether Farrell offe red any non-temporal proof of causation to evidence of a"pa ttern of antagonism" or "retaliatory animus" and,finding non e, dismissed her claim. See id. (citing Kachmar, 109 F .3d at 177 and Krouse, 126 F.3d at 503-04). We think this analysis viewed too narrowly the scope and nature o f conduct and circumstances that could support the

inference of causation. The District Court seemed t o have been requiring more than one retaliatory act, or on e closer in temporal proximity, or some demonstrative activi ty, to the exclusion of all other facts or events potentia lly probative of causation. In doing so, it committed e rror.

We have spoken often of the probative value of temp oral proximity in retaliation cases. Recently in Robinso n v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997), and Kr ouse v. American Sterilizer Co., we remarked that our case law is "seemingly split" as to whether temporal proximity between

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4. We note that the District Court held that the re jection of a sexual advance was a protected activity, see Farrell , 22 F. Supp. 2d at 392, and that determination has not been questioned on appea l. Therefore, we do

not need to address it. Farrell's termination clear ly establishes the second prong.

10

the protected activity and the alleged retaliatory act can be

sufficient in itself to create an inference of a ca usal connection for the purposes of a prima facie case o f retaliation. See Robinson v. City of Pittsburgh , 1 20 F.3d at 1302; see also Krouse, 126 F.3d at 503 (finding per iod ofnineteen months insufficient on summary judgment).

However, we caution that this "split" is not an inconsistency in our analysis but is essentially fa ct-based. Rather, we have ruled differently on this issue in our case law, depending, of course, on how proximate the eve nts actually were, and the context in which the issue c ame before us.5

For example, in Jalil v. Avdel Corporation, 873 F.2 d 701 (3d Cir. 1989), we reversed the grant of summary ju dgment in favor of the defendant because the plaintiff had established causation for the purposes of his prima facie case merely by showing that his discharge occurred only two days after his employer had received notice of Jalil's EEOC claim. See Jalil, 873 F.2d at 708 ("He demonst rated the causal link between the two by the circumstance that the discharge followed rapidly, only two days later , upon Avdel's receipt of notice of Jalil's EEOC claim."). However, in Krouse, also a case appealing the grant of summa ry judgment, we explained that temporal proximity alon e will be insufficient to establish the necessary causal c onnection when the temporal relationship is not "unusually suggestive," and determined that nineteen months wa s too

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5. We do note that our pronouncements regarding tem poral proximity

and causation need to be assessed with the understa nding that the relative evidentiary impact of temporal evidence ma y vary depending upon the stage of the McDonnell Douglas proof analy sis, and the procedural circumstance. We caution, therefore, tha t each case must be considered with a careful eye to the specific facts and circumstances encountered. See Kachmar, 109 F.3d at 178 ("Our cas es set no parameters but were decided in the context of the p articular circumstances before us."). There is clearly a diff erence between two days and nineteen months. Compare Jalil, 873 F.2d 7 01, 708 (3d Cir. 1989), with Krouse, 126 F.3d at 503. There is also a difference between a plaintiff relying upon temporal proximity to sati sfy her prima facie

case

for the purpose of summary judgment, see Jalil , 87 3 F.2d at 708, and to reverse a verdict. See Quiroga v. Hasbro Inc. , 934 F.2d 497, 500, 501- 02 (3d Cir. 1991).

11

attenuated to create a genuine issue of fact. See K rouse, 126 F.3d at 503 (citing Robinson, 120 F.3d at 1302) . In this case, Farrell, supported by the EEOC, asks that wef ind that the relatively short period in question suffic ient to establish the inference of causation required at th is stage.6 However, because we find that she establishes the i nference on the entire record before us, including the sugge stive timing, we need not decide whether the timing alone wouldbe sufficient.

In the case before us, the District Court required additional evidence of "intervening antagonism or retaliatory animus," after it opined that the timin g of three to four weeks "may" support an inference of causati on. In essence, it held that if temporal proximity is not clearly suggestive standing alone, a "time plus" other inte rvening retaliatory acts will be required. We part ways wit h the District Court, because while we agree that timing plus other evidence may be an appropriate test where the temporal proximity is not so close as to be "unduly suggestive," we disagree as to the character of the "other"

evidence that will suffice to create the causal lin k for purposes of the prima facie case. The District Cour t drew its reasoning from our statement in Kachmar that "[ w]here there is a lack of temporal proximity, circumstanti al evidence of a `pattern of antagonism' following the protected conduct can also give rise to the inference." See F arrell, 22

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6. In its brief, the EEOC's principal argument is t hat the temporal relationship between the rejection of DeLong's adva nce and Farrell's

termination is sufficient on its own to demonstrate the inference of causation Farrell needs to establish a prima facie case at this procedural stage. We do not to decide this issue.

Following argument, the EEOC brought to our attenti on a recent opinion of the Court of Appeals for the Eleventh Ci rcuit, Farley v. Nationwide Mutual Ins., Co., No. 98-4566, 98-4799, 1999 WL 1142914 (11th Cir. Dec. 14, 1999). In Farley, the Eleventh Circuit found that a period of seven weeks was sufficient to establish t he required causal connection. See id. at *12. We note, however, that the Eleventh Circuit in Farley seems to apply a less stringent test for causation in general, see id. at *12 ("To prove a causal connection, we r equire a plaintiff only to demonstrate `that the protected activity and the adverse action were not wholly unrelated.' "), and, thus, its ruling is inapposite.

12

F. Supp. 2d at 393 (quoting Kachmar, 109 F.3d at 17 7). However, it failed to note the succeeding sentence, which is all-important: "These are not the exclusive ways to show causation, as the proffered evidence, looked at as a whole, may suffice to raise the inference." Kachmar, 109 F .3d at

177.

Although timing and ongoing antagonism have often b een the basis for the causal link, our case law clearly has allowed a plaintiff to substantiate a causal connec tion for purposes of the prima facie case through other type s of circumstantial evidence that support the inference. For example, a plaintiff may establish the connection b yshowing that the employer gave inconsistent reasons for

terminating the employee. See Waddell v. Small Tube Products, Inc., 799 F.2d 69, 73 (3d Cir. 1986); see also EEOC v. L.B. Foster Co., 123 F.3d 746, 753-54 (3d C ir. 1997), cert. denied, 522 U.S. 1147 (1998). In Wadde ll, we noted that the District Court could "appropriately" have taken inconsistent explanations into account infind ing the causation necessary to satisfy the prima facie case . See Waddell, 799 F.2d at 73 ("The district court noted the inconsistency in Small Tube's explanations of its r efusal to rehire and could appropriately have taken that into account."). In L.B. Foster Co., we noted that the p laintiff had established a prima facie case of retaliation b ased on temporal proximity between the events plus inconsis tencies in the defendant's testimony, certain conduct towar ds others, and refusals to provide a reference for the plaintiff. See L.B. Foster, 123 F.3d at 753-55 (citing Waddell , 799 F.2d at 73).

In Woodson v. Scott Paper Co., 109 F.3d 913, 921 (3 d Cir. 1997), we limited our inquiry to evidence of a patt ern of antagonism, but only because that evidence was suff icient on its own to link the complaints of discrimination and Woodson's discharge. See id. at 921. We specificall y stated that we "need not consider whether other types of e vidence might also support a causal link finding in the abs ence of temporal proximity." Id. at 921 n.3. Similarly, in Robinson v. SEPTA, 982 F.2d 892 (3d Cir. 1993), the interven ing pattern of antagonism was so strong that it overcam e the lack of temporal proximity and, alone, proved the c ausal

13

link. See id. at 895. There was no need to look bey ond this pattern for other, circumstantial, evidence.

Moreover, we have been willing to explore the recor d in search of evidence, and our caselaw has set forth n o limits on what we have been willing to consider. In Krouse , we affirmed the District Court's grant of summary judg ment after concluding that the plaintiff "has not proffe red any evidence establishing a causal connection" other th an the nineteen month gap between filing an EEOC complaint and the alleged retaliatory act. See Krouse, 126 F.3d a t 503. We noted there that "[w]hen temporal proximity between protected activity and allegedly retaliatory conduc t is missing, courts may look to the intervening period for other evidence of retaliatory animus." Id.

Accordingly, we conclude that the District Court employed too restrictive a view of the type of evid ence that can be considered probative of the causal link. It is not limited to timing and demonstrative proof, such as actualantagonistic conduct or animus. Rather, it can be o ther

evidence gleaned from the record as a whole from wh ich causation can be inferred. As we explained in Kachm ar, "[i]t is important to emphasize that it is causation, not temporal proximity [or evidence of antagonism], that is an e lement of plaintiff 's prima facie case, and temporal proximi ty [or antagonism] merely provides an evidentiary basis fr om which an inference can be drawn." Kachmar, 109 F.3d at 178. Before viewing the record with this wider lens

, however, we will focus briefly on the District Cour t's

decision that Farrell had not satisfied the same el ement -- namely causation -- with respect to the prima facie case for her claim of quid pro quo sexual harassment.

B.

Farrell's companion claim of quid pro quo sexual harassment contains a similar requirement of cause and effect. See Robinson v. City of Pittsburgh, 120 F.3 d 1286, 1296 (3d Cir. 1997). In Robinson -- one of the few cases in which we have shed light on this issue -- we stated that a plaintiff may prove a claim of quid pro quo sexual harassment by showing that "his or her response to

14

unwelcome advances was subsequently used as a basis for a decision about compensation, [terms, conditions, or privileges or employment]." Id. at 1297. We further explained that "the plaintiff need not show that th e submission was linked to compensation, etc., at or before the time when the advances occurred. But the employ ee must show that his or her response was in fact used thereafter as a basis for a decision affecting his or her compensation, etc." Id.

The District Court granted summary judgment to Planters on Farrell's quid pro quo claim finding th at she failed to establish the causal connection required by

Robinson. The District Court used the test for sati sfying the prima facie stage that had first been set forth by the Court of Appeals for the Eleventh Circuit in Henson v. Ci ty of Dundee, 682 F.2d 897 (11th Cir. 1982). See Farrell, 22 F. Supp. 2d at 386 ("(4) her submission to the unwelco me advances was an express or implied condition for re ceiving job benefits or her refusal to submit resulted in t angible job detriment.") (emphasis added). Curiously, however, the District Court relied almost exclusively on Lynch v . New Deal Delivery Serv. Inc., 974 F. Supp. 441, 452 (D. N.J. 1997) -- a case based on diversity jurisdiction foc using exclusively on New Jersey state law -- to conclude that Farrell's causation evidence fell short because, li ke the plaintiff in Lynch, Farrell did not produce any evi dence thatDeLong "pressured her" or "acted hostile toward Far rell

after she rejected his advance." See Farrell , 22 F . Supp. 2d

at 387-88.

Farrell contends that the District Court erred infi nding

that she had not adduced evidence sufficient to est ablish the causal relationship required by Robinson. We ag ree and will reverse because we believe that -- by relying upon Lynch -- the District Court departed from our decis ion in Robinson and -- much as it did with respect to its analysis of the retaliation claim -- incorrectly narrowed th e scope and nature of its assessment of the causation evide nce. As we will explain below, we view the evidence as suff icient to

establish this causal link as well.

In Lynch, the plaintiff raised a number of discrimi nation claims, including quid pro quo sexual harassment, u nder

15

the New Jersey Law Against Discrimination. The dist rict court granted summary judgment to the defendant bec ause it found that since the plaintiff admitted that the defendant did not act hostilely towards her or attempt to coe rce her after she declined his invitations to dinner, "no r easonable factfinder could conclude [the defendant's] attenti ons ever involved an implicit or explicit threat" of retalia tion as required under NJLAD. See Lynch, 974 F. Supp. at 45 2 (citing Lehman v. Toys `R' Us, Inc., 626 A.2d 445 ( N.J. 1993)). The District Court, noting that it found th e reasoning in Lynch "persuasive," dismissed Farrell' s quid pro quo claim because there was no further pressure or hostility after she rejected DeLong's advance. See Farrell, 22 F. Supp. 2d at 387-88.

However, our law contains no requirement that the plaintiff show that the employer implicitly or expl icitly threatened retaliation when making the advance. We explained in Robinson that "the plaintiff must show that his or her response to unwelcome advances was subsequen tly used as a basis for a decision about compensation, etc. Thus, the plaintiff need not show that the submissi on was linked to compensation, etc., at or before the time when the advances occurred." Robinson, 120 F.3d at 1297 (emp hasis added). While evidence of hostility or repeated dem ands for sexual favors would strengthen any plaintiff 's cas e, the lack of such evidence does not render it fatallyfla wed. By following the reasoning of Lynch, the District Cour t narrowed its analysis of Farrell's evidence of caus ation by effectively engrafting an element onto the cause of action that is not required under our jurisprudence.7

___________________________________________________ ______________7. The District Court also cited Bonenberger v. Ply mouth Township, 132

F.3d 20, 22, 28 (3d Cir. 1997) and Kidwell v. Sheet z, Inc., 982 F. Supp. 1177, 1179-81 (W.D. Va. 1997) in a footnote. See Fa rrell, 22 F. Supp. 2d at 388 n.32. In Bonenberger, we did state, as the D istrict Court contended, that the plaintiff 's supervisor "did no t suggest, either by word or action, that sexual favors were the price f or keeping her job." Farrell, 22 F. Supp. 2d at 388 n.32 (quoting Bonenb erger, 132 F.3d at 28). However, we read this statement in Bonenberger as part of the court's analysis of a subsection (1) claim that the plaintiff 's supervisor

made a "veiled threat to have her fired for rejecti ng his sexual

advances."

See Bonenberger, 132 F.3d at 27. In Robinson v. Cit y of Pittsburgh, we

16

Robinson, however, as the District Court noted, doe s require the plaintiff to "show that his or her resp onse was in fact used thereafter as a basis for a decision a ffecting his or her compensation, etc." Id.; Farrell, 22 F. Supp . 2d at 387. As with Farrell's retaliation claim, the quest ion becomes what evidence may the court consider in dec iding whether that nexus is sufficiently proven to establ ish a prima facie case. While we recognize that a retalia tion claim under Title VII and an adverse job discrimination c laim are separately codified, compare 42 U.S.C.S 2000e-3(a), with 42 U.S.C. S 2000e-2(a), we see no reason to conclude t hat Farrell's burden should be higher, or the scope of evidence permissibly considered narrower, in this cause of a ction for quid pro quo sexual harassment than in a retaliatio n claim.

Our decision in Robinson, where we reversed the gra nt of judgment as a matter of law in favor of the defenda nts, leads us to conclude that the analysis can be, in f act, quite broad. See Robinson, 120 F.3d at 1298-99. 8 In Robi nson,

___________________________________________________ ______________

said that a plaintiff could allege a quid pro quo s exual harassment claim when a supervisor implicitly or explicitly made a c oercive request for sexual favors even without a subsequent effect on t he terms and conditions of employment. See Robinson, 120 F.3d at 1297. Supreme Court precedent has, however, eroded that cause of action since our opinions in Robinson and Bonenberger. See Hurley v. Atlantic City Police Department, 174 F.3d 95, 120 (3d Cir. 1999) (discus sing Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) an d Faragher v. City of Boca Raton, 524 U.S. 775 (1998)).

In Kidwell, a case relying upon the law of the Cour t of Appeals for the Fourth Circuit, the district court dismissed the cl aim because the plaintiff failed to establish the second prong of t he prima facie case which the court found required evidence of some for m of threat. SeeKidwell, 982 F. Supp. at 1180.

8. A careful reading of Robinson makes it clear tha t the events substantiating the plaintiff 's quid pro quo claim which we found sufficient to go to a jury were distinct from those we found insufficient to establish her claim of retaliation. Robinson's q uid pro quo claim involved the alleged block of her transfer request in 1993. See id. at

1298-99. Robinson's retaliation claim revolved arou nd a complaint she filed with the EEOC in May of 1994. See id. at 129 2, 1301-02. Robinson did not plead the facts of her quid pro quo allegat ions in the alternative as a retaliation claim, as Farrell has done here.

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the plaintiff alleged that her supervisor blocked h er transfer because she rejected his advance. See id. at 1298. At trial, the plaintiff testified that her supervisor had rep eatedly promised her that he would recommend her for transf er but that after a party where he pulled her into a compr omising position for a picture, he told her that after talk ing to others in the department, they said she had a bad a ttitude. See id. The plaintiff also testified that a co-work er confirmed that her supervisor blocked her transfer, had made negative comments about her to others, and had a romantic interest in her. See id.

We conclude that the inquiry into whether a plainti ff has shown that a rejection of certain conduct was "used as the basis for employment decisions affecting such indiv idual" should not be constrained; rather, the court can co nsider

circumstantial evidence and draw inferences in favo r of the non-moving party in reaching this determination on summary judgment.

C.

Thus, in cases where a plaintiff must illustrate a" causal link" for purposes of establishing retaliation, or show that certain conduct was "used" as a basis for employmen t decisions, a plaintiff may rely upon a broad array of

evidence to do so. We will now review Farrell's evi dence, which we find, when considered as a whole, and revi ewed in the light most favorable to Farrell, adequately establishes the necessary connection to substantiate both her p rima facie of retaliation and her prima facie case of qu id pro quo

sexual harassment.9

As a preliminary matter, we disagree with the Distr ict Court's rejection of certain evidence regarding DeL ong's reaction to Farrell's rejection of his advance on t he flight to Puerto Rico.10 In her certification in opposition t o Planters'

___________________________________________________ ______________9. We note that Planters suggests the entire analys is of both the quid pro

quo and retaliations claims should be joined togeth er because of the similarity of the claims. See Appellee's Br. at 24 n.3.

10. Planters points out in its brief that Farrell's affidavit accompanying her EEOC complaint did not state that DeLong put hi s hand on her knee. We also place no evidentiary consequence on t his omission.

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motion for summary judgment, Farrell explained that after she rejected DeLong's advance:

DeLong's demeanor changed, he turned to face away from me, curled up and either slept or prete nded to sleep. We had little or no further conversat ion on the flight, and I worked alone for the rest of t heflight. The following day DeLong abruptly left Puerto Ri co and

returned to Winston-Salem without me.

The District Court, citing Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703 (3d Cir. 1988), refused to permit Farrell to rely on this proof that DeLong 's demeanor changed, because the Court found that it impermissibly contradicted her deposition testimony in

which she made no reference to this conduct. See Fa rrell, 22 F. Supp. 2d at 381 n.22. We disagree with the Di strict Court's rejection of this evidence because Farrell' s deposition testimony and her certification are not contradictory in the sense prohibited by Martin . I n Martin, the plaintiff 's certification included a different answer to the same question asked directly in her deposition. See Martin, 851 F.2d at 704-06. In this case, in Farrel l's deposition, counsel for Planters specifically asked Farrell to only describe the content of conversations Farrell and DeLong had on the airplane. Farrell was never asked how DeLong responded to her rejection, what happened af ter she rebuffed him or how many conversations they had thereafter. The District Court concluded, and Plant ers argues here, that Farrell implied in her deposition that she and DeLong had conversations after his advance and

therefore the substance of the two statements are contradictory. See Farrell, 22 F. Supp. 2d at 381 n .22 (concluding that Farrell's deposition said that she and DeLong continued to talk but her certification said "he turned away from her and refused to talk to her"). However, Farrell's certification says that they "had little or no further

conversation" after the advance. When asked to rela te the conversations in her deposition, Farrell first expl ained that

she was unable to relate the conversations in chron ological order, agreed that they were merged together in her mind,

and then tried to relate them as best as she could. SinceFarrell was not asked about DeLong's attitude or de meanor,

19

and the District Court's conclusion rests upon an i nference drawn from a narrow reading of the deposition and a broad reading of her certification, we disagree with the District

Court and conclude that Farrell's later certificati on should

be considered as evidence.

The District Court also refused to place any signif icance on DeLong's decision to return to Puerto Rico a day early when considering whether Farrell had established ev idence of hostility. The District Court reasoned that Farr ell had presented no evidence that his decision was related to any issue other than Jungmann's possible termination. S ee id. at 388 (reviewing Farrell's quid pro quo claim). Ho wever, Farrell faces no separate burden to substantiate th e inference she draws from this decision; rather, the district court is to draw inferences in her favor at this pr ocedural stage. See Iadimarco v. Runyon, 190 F.3d 151, 164 ( 3d Cir. 1999) (applying traditional summary judgment standa rds to evidence supporting the plaintiff 's prima facie ca se of reverse discrimination). Farrell is entitled to rel y upon this

event as circumstantial evidence.

Farrell, obviously, places great significance upon the relatively close timing between her rejection of De Long's

advance and her termination. The District Court fou nd the timing to be suggestive in its analysis of Farrell' s retaliation

claim but did not find it sufficient on its own. Se e Farrell, 22 F. Supp. 2d at 393 (finding the timing not to be "unusually suggestive"). We view the timing of Farr ell's termination as suggestive for both of Farrell's cla ims. The timing evidence is also enhanced by the occurrence of two other events. Although DeLong states that he recomm ended Bryan over Farrell based upon meetings with other members of Planters' management, and Planters point s to complaints raised about Farrell's performance durin g her employment, his decision to terminate her came only three or four weeks after DeLong praised Farrell and aske d her about her interest in a promotion. Further, althoug h Planters justifies Farrell's termination in part be cause of economic concerns and management discussions that t ook place in November 1994, her termination occurred le ss than two-weeks after Planters purchased her house i n Maryland and moved all of her possessions to Winsto nSalem.

20

Farrell also augments evidence of DeLong's changeddemeanor and the suggestive timing of her terminati on with

evidence in the record revealing inconsistencies in Planters' explanation for terminating her. Farrell challenges both Planters' explanation that the decision to consolid ate the departments was determined by management and its conclusion that the choice to retain Bryan was base d upon interpersonal reasons. Planters states that discuss ions about consolidating the two departments began in November of 1994 and suggests that the decision was made by upper management. However, DeLong's December 8 memorandum states that complaints he received about Farrell on December 6 and 7 motivated DeLong to see Eckenroth where they "discussed the option of elimi nating the position of Senior Manager Packaging Developmen t and combining Graphics and Packaging as per proposal da ted 8/20/93." Portions of DeLong's December 8 memorandu m also place the decision to terminate Farrell solely in DeLong's hands and focus entirely on the alleged interpersonal conflicts as the reason for Farrell's dismissal. For example, DeLong wrote: "When all the issues wit h her peers were discussed and other feedback received discussed, it was clear that I had to deal with Sus an" and explained that "Based on the discussions and conver sations with people over the last several months who found Susan very difficult to work with . . . I made the decisi on to eliminate her job and combine Graphics and Packagin g under Peggy as per earlier recommendation and hire another Packaging Engineer." Farrell also alleges t hat on the day Eckenroth and DeLong informed her of the de cision to terminate her, Eckenroth told her that Planters would call the decision a position elimination for her be nefit but that she was actually being terminated for interper sonal

reasons.

Farrell also adduces evidence surrounding the choic e of Bryan over her to accompany the inference that DeLo ng made the decision on the basis of impermissible rea sons. Although DeLong named both Lyons and Jabbour at the December 13 meeting as managers who made negative comments about her, Farrell alleges that neither Ly ons nor Jabbour made such comments and supports her argumen t with reference to DeLong's memorandum that expressl y

21

states Lyons found Farrell to be helpful. Furthermo re, Farrell states that Lyons indicated to her that he told DeLong that DeLong seemed to have a personal proble m with Farrell from the manner in which he solicited feedback

about Farrell.

Planters argues that none of these points help to r aise the required inference. It urges that we should dra w noinference from the timing of DeLong's suggestion of a

promotion because Farrell was not terminated becaus e she was incompetent, but because of a required consolid ation and the determination that Bryan was a better choic e than Farrell. Further, Planters points out that DeLong e xplained in his deposition that he discounted complaints abo ut

Farrell until late November and December because Fa rrell was new. Planters argues that nothing should be rea d into the trip to Puerto Rico because the trip was planne d for DeLong before he asked her to join him and Farrell had been required to tour other facilities with DeLong. Planters disagrees that Farrell establishes any inconsistenc ies, arguing that the memorandum supports the view that DeLong responded to his meeting with Eckenroth by interviewing other managers and by subsequently cho osing
Bryan.

We recognize that different inferences might be dra wn from the evidence presented in the record. On summa ry judgment, however, when viewing the sufficiency of the prima facie case, our role is not to act as factfin der. Instead, we must consider the evidence taken in the light

most favorable to the non-movant and determine whet her Farrell can show the causation required for a prima facie case of retaliation and quid pro quo harassment. We believe that, taken as a whole, the behavior of DeLong, the timing

of Farrell's termination and the inconsistencies sh e raised in Planters' explanation for her termination are su fficient to create the required inference.

We recognize that by acknowledging that evidence in the

causal chain can include more than demonstrative ac ts of antagonism or acts actually reflecting animus, we m ay possibly conflate the test for causation under the prima facie case with that for pretext. But perhaps that is inherent in the nature of the two questions being a sked --

22

which are quite similar. The question: "Did herfiri ng result from her rejection of his advance?" is not easily distinguishable from the question: "Was the explana tion given for her firing the real reason?" Both should permit permissible inferences to be drawn in order to be a nswered. As our cases have recognized, almost in passing, ev idence supporting the prima facie case is often helpful in the pretext stage and nothing about the McDonnell Dougl as formula requires us to ration the evidence between one stage or the other. See Iadimarco, 190 F.3d at 166 (explicitly referring to the evidence of the prima facie case in finding evidence supporting pretext); Jalil , 87 3 F.2d at 709 n.6 ("Although this fact is important in establ ishing plaintiff 's prima facie case, there is nothing pre venting itfrom also being used to rebut the defendant's proff ered

explanation. As we have observed before, the McDonn ell Douglas formula does not compartmentalize the evide nce so as to limits its use only one phase of the case.") (internal quotation omitted) (citing and quoting Dillon v. Co les, 746 F.2d 998, 1003 (3d Cir. 1984)). It is enough to not e that we will not limit the kinds of evidence that can be pr obative of a causal link any more than the courts have limited the type of evidence that can be used to demonstrate pr etext.11

___________________________________________________ ______________

11. Since Robinson, which described the quid pro qu o cause of action, we

have not had occasion to focus on the extent to whi ch the McDonnell Douglas burden shifting test applies to, or has imp lications for the elements of the prima facie case of, quid pro quo c laims of this type. See Hurley, 174 F.3d at 120-22. We see no reason to exp lore these issues in this case. Neither party questions the District Cou rt's standard or the application of the burden shifting structure. See A ppellant's Br. at 28-29 (adopting the District Court's standard and citing Kauffman v. Allied Signal, Inc., 970 F.2d 178, 186 (6th Cir. 1992)); A ppellee's Br. at 25-26 (adopting the District Court's standard and citing Perkovich v. Roadway Express, Inc., 1997 U.S. App. LEXIS 1155, *9-10 (6t h Cir. Jan. 22, 1997), and Bonenberger v. Plymouth Township, No. CI V.A.96-403, 1996 WL 729034, at *22 (E.D. Pa. Dec. 18, 1996), aff 'd in part and rev'd in part on other grounds, 132 F.3d 20 (3d Cir. 1997)); EEOC's Br. at 26 (arguing that a plaintiff need not show intervening hostility to prove quid

pro quo harassment and applying the McDonnell Dougl as test to the claim). Farrell only contends that the District Cou rt erred in finding

that

she had not set forth enough evidence to establish the threshold causal relationship.

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III.

Farrell also appeals the District Court's grant of summary judgment to Planters on her North Carolina state contract law claim. Farrell argues that her move to North Carolina was consideration for promises that she wo uld be fired only for cause and, thus, these promises beca me an implied term of her employment which Planters alleg edly breached by firing her for retaliatory or discrimin atory reasons. Farrell acknowledges that the North Caroli na Supreme Court recently rejected the precise theory on which she is proceeding. See Kurtzman v. Applied An alytical Indust., Inc., 493 S.E.2d 420, 423-24 (N.C. 1997) ( holding that there is not a "moving residences" exception t o the general rule of at-will employment). However, Farre ll argues that Kurtzman should not be applied to her case bec auseher implied contract right vested, and the agreemen t was

breached, before Kurtzman was decided. Farrell expl ains that the protection of contract rights based upon p rior law is a compelling reason under North Carolina law cou nseling against the retrospective application of Kurtzman t o bar her claim. The District Court had difficulty accepting this argument, as do we. We will affirm.

In Kurtzman, the North Carolina Supreme Court held "that plaintiff-employee's change of residence in t he wake of defendant-employer's statements here does not const itute additional consideration making what is otherwise a n atwill employment relationship one that can be termin ated by the employer only for cause." Id. at 423-24. The Co urt

___________________________________________________ ______________

In two cases decided before Robinson, we considered claims brought by plaintiffs under the same Title VII section allegin g that they were terminated because they rejected a supervisor's exp licitly coercive request for sexual favors. See Craig v. Y & Y Snack s, 721 F.2d 77, 78-80 (3d Cir. 1983); Tomkins v. Public Serv. Elect. & Ga s Co., 568 F.2d 1044, 1047-49 (3d Cir. 1977); see also Bonenberger, 132 F .3d at 28 (citing Craig and Tomkins as quid pro quo precedent). Neith er case detailed the elements of a prima facie test. However, in Craig w e noted that the district court found causation as part of the prima facie case and applied the McDonnell Douglas paradigm in affirming the tri al court's verdict for the plaintiff. See Craig, 721 F.2d at 79-80.

24

found assurances of job security such as " `If you do your job, you'll have a job'; `This is a long-term growt h opportunity for you'; `This is a secure position'; and `We're offering you a career position' " insufficient to a lter the atwill nature of the employment although the assuranc es preceded the plaintiff 's decision to move from

Massachusetts to North Carolina. See id. at 421.

In reaching its holding, the Court rejected precede nt of the North Carolina's intermediary court establishin g a "moving residence" exception to the at-will doctrin e. See id. at 423 (rejecting Sides v. Duke Hospital, 328 S.E.2 d 818 (N.C. App.), disc. rev. denied, 333 S.E.2d 490 (N.C . 1985) and Burkheimer v. Gealy, 250 S.E.2d. 678 (N.C. App. ), disc. rev. denied, 254 S.E.2d 918 (N.C. 1979)). The court also dismissed as "background discussion" language in Ha rris v. Duke Power Co., 356 S.E.2d 357 (N.C. 1987), mention ing Sides and the "moving residences" exception. See id . at 423. The Court concluded that the argument that the exception was well established in the court's juris prudence was incorrect. See id. Applying its holding to the case before it, where the plaintiff had won a jury verdi ct, the

Court remanded to the trial court with direction to enter ajudgment notwithstanding the verdict. See id. at 4 24.

We agree with the District Court that Kurtzman is dispositive despite the fact that Farrell moved to North

Carolina before it was decided. The North Carolina Supreme Court has stated that "[u]nder long-establi shed North Carolina law, a decision of a court of suprem e jurisdiction overruling a former decision is, as a general rule, retrospective in its operation." Cox v. Hawor th, 284 S.E.2d 322, 324 (N.C. 1981). The Court further expl ained that: "Unless compelling reasons . . . exist for li miting the application of the new rule to future cases, we thi nk that the overruling decision should be given retrospecti ve effect."

Id. The Court in Cox also noted that the decision a s to whether a case ought to be applied retroactively sh ould include consideration of policy issues as well, suc h as "reliance on the prior decision, the degree to whic h the purpose behind the new decision can be achieved sol ely through prospective application, and the effect of retroactive application on the administration of ju stice." Id.

at 324.

25

Farrell, citing MacDonald v. Univ. of North Carolin a, 263 S.E.2d 578 (N.C. 1980), argues that protecting prev iously vested contract rights is a compelling reason which requires limiting the application of the rule announced in K urtzman to cases involving promises made after it was decid ed. In MacDonald, the North Carolina Supreme Court explain ed:

When the law has received a given constructi on by a court of last resort, and contracts have bee n made and rights acquired under and in accord with suc h construction, such contracts may not be inva lidated nor vested rights under them impaired by a c hange of construction made by a subsequent decision.

MacDonald, 263 S.E.2d at 581. However, as the Distr ict Court recognized, the facts of Farrell's case fail to support the exception described by MacDonald. Farrell would have us disregard the point made in Kurtzman that the "m oving residence" exception to the at-will doctrine had ne ver been established by the North Carolina Supreme Court. Se e Kurtzman, 493 S.E.2d at 423 ("Plaintiff 's contenti on that this exception is well established in our jurisprud ence is incorrect. This Court has not heretofore expressly passed upon it."). It is telling that the North Carolina S upreme Court in Kurtzman did apply its rule to the case be fore it, remanding for a judgment notwithstanding the verdic t to be entered. We find no basis for not following its lea d in this regard.We also believe that policy considerations point to the

application of Kurtzman to bar claims invoking cont racts allegedly made before it was decided. In Kurtzman, the Court focused upon at-will employment as a fundamen tal precept of law noting that exceptions to the rule s hould not be found to exist without "substantial justificatio n grounded in compelling considerations of public pol icy." Id. at 423. The Court explained that allowing a "moving residences" exception, in a mobile society would cr eate instability in an otherwise stable area of employme nt law. See id. at 423-24. The strength of these policy rat ionales suggests that the North Carolina court would not cr eate a subset of employees who could avoid the holding in Kurtzman, and bring a claim based upon the "moving

26

residences" exception solely because the plaintiff moved

before Kurtzman was decided.

IV.

Accordingly, we will reverse the District Court's o rder granting summary judgment in favor of Planters on F arrell's federal claims, and remand for further proceedings. We will, however, affirm the District Court's ruling preclud ing

Farrell's state law breach of contract claim.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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