2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-3-2000

Farrell v. Planters Lifesavers

Precedential or Non-Precedential:

Docket 98-6410

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Recommended Citation

"Farrell v. Planters Lifesavers" (2000). 2000 Decisions. Paper 44.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/44
Filed 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 issues 

relating to the recruitment, hiring and later firing of 

appellant, Susan Farrell. The District Court granted 

summary judgment in favor of defendants Planters 

Lifesavers Company and Nabisco, Inc., on all of Farrell'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 claims 

under Title VII and the dismissal of her North Carolina 

contract law claim.2 Acting as Amicus Curiae, the Equal 

Employment Opportunity Commission supports Farrell's 

appeal from the dismissal of her federal claims. Wefind 

that Farrell established a prima facie case for both federal 

causes of action, and we will reverse the grant of summary 

judgment precluding her retaliation and quid pro quo 

claims. We will, however, affirm the dismissal of her state 

contract law claim. We have jurisdiction over this appeal 

pursuant to 28 U.S.C. S 1291. The District Court had 

jurisdiction over the Title VII claims under 28 U.S.C. 

S 1331, and exercised jurisdiction over the state law claim 

under 28 U.S.C. S 1332. Viewing the record from Farrell's 

perspective, the facts in this case are as follows.

_________________________________________________________________ 

1. Planters Lifesavers Company was an operating company of Nabisco, 

Inc. Subsequently, Planters Lifesavers Company divided into Planters 

Company and LifeSavers Company. Both are operating companies of 

Nabisco, Inc. For the sake of simplicity, we will refer to the defendants 

collectively as "Planters." 

2. Farrell does not appeal the District Court's decision granting summary 

judgment in favor of Planters on her wage discrimination claim. See 

Farrell, 22 F. Supp. 2d at 388-90. 

 2 

I. 

In 1992, Planters, then located in Winston-Salem, North 

Carolina, hired Douglas DeLong as its Director of Materials 

Management. One of DeLong's central tasks involved 

formulating a plan to cut operating costs in Planters' 

Materials Management Department. Beginning in the early 

1990s and continuing through 1997, Planters sought to cut 

its operating costs by consolidating its workforce. DeLong 

quickly reorganized the Materials Management Department, 

bringing together the Purchasing, Packaging Services, 

Graphic Design and Production Planning Departments 

within the Materials Management Department and placing 

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 its 
consolidation. DeLong explained that he hoped to merge the 

two departments by late 1994 or early 1995. 

In late 1993, Planters decided to discharge the Director of 

Packaging Services, Ronald Yonker. Almost 

contemporaneously, Planters approached Susan Farrell, 

through a recruiter, to become a Packaging Engineer in the 

Packaging Services Department. Based on her 

qualifications, and DeLong's recommendation, Planters 

subsequently considered Farrell as a candidate to replace 

Yonker as Director of the Packaging Services Department. 

At the time, Farrell was a packaging engineer at McCormick 

& Company in Hunt Valley, Maryland. 

In January of 1994, Farrell traveled to Winston-Salem to 

interview. By mistake, Planters had Farrell interview with 

Yonker, who did not know of the decision to fire him and 

believed Farrell to be interviewing for another position. 

Concerned about her own job security by virtue of Planters' 

treatment of Yonker, Farrell sought assurances during the 

recruitment process. DeLong assured her that she would 

only be fired for poor performance. A number of individuals 

told her that Yonker had been repeatedly warned about his 

performance before the decision was made to terminate 

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 and pay 

for Farrell's relocation back to Maryland if her employment 

with Planters ended within two years because of 

"performance concerns or position elimination." Farrell 

accepted the offer on February 11, 1994, and relocated 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 to 

attend a Pack Expo, an annual packaging exposition, with 

a number of Planters and Nabisco, Inc. managers. While 

attending the show, DeLong told Farrell that his supervisor, 

Norm Jungmann, was about to be fired and that he would 

assume Jungmann's position shortly. DeLong then praised 

Farrell's work performance, told her that he felt her style 

complemented his, and asked her if she would be interested 

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 accompany 

him the next day on a planned business trip to Puerto Rico 

to tour a Planters' facility. DeLong instructed Farrell to 

book tickets on the same flight as his, with seats together. 

Farrell made the arrangements. DeLong and Farrell had 

traveled on business trips together on two prior occasions. 

During the flight to Puerto Rico on November 16, 1994, 

DeLong placed his hand just above Farrell's knee while 

telling Farrell that his wife became jealous when he traveled 

with Farrell. He asked Farrell whether her husband became 

jealous when she traveled with DeLong. Farrell responded 

by removing his hand from her leg and firmly telling 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 evidence 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 section II. C, we 

disagree 

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

 4 

or no further conversation for the rest of the flight. The next 

day, DeLong flew back to Winston-Salem, informing Farrell 

that he was leaving a day early in order to find out more 

about Jungman's termination. 

Farrell also says that DeLong often commented when she 

wore a skirt, and states that in October, DeLong told 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, DeLong never 

made reference to the advance on the plane, nor made a 

second advance. 

On December 13, 1994, less than a month after the trip 

to Puerto Rico and less than two weeks after Planters paid 

for her possessions to be moved to North Carolina and 

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 office. On 

the way, Eckenroth told her that Planters was going to 

eliminate her position. Once inside his office where DeLong 

was waiting, Farrell says Eckenroth told her Planters would 

call her termination a position elimination, in order to allow 
Farrell to retain benefits and give her a severance package, 

but that she was actually being terminated because of 

interpersonal problems with other members of Planters' 

management. When Farrell asked for specifics, DeLong 

mentioned Suzanne Jabbour and Ed Lyons. He also made 

general reference to some others whom he did not name. 

After Farrell protested, questioning why Planters had just 

paid for movers and purchased her house in Maryland if 

they were terminating her, Eckenroth said that he did not 

know that Planters had just moved her. Eckenroth then 

asked DeLong to leave the room. Once DeLong left, Farrell 

says that Eckenroth told her that he had not checked 

DeLong's report of complaints and he promised he would 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 that he felt 

DeLong had a personal problem with Farrell. That same 

day, Farrell says Eckenroth told her that Jabbour and 

 5 

Lyons came to him and confirmed that they had not made 

negative comments about her to DeLong. In fact, DeLong's 

own internal memorandum, dated December 8, 1994 states 

"Ed Lyons said she was helpful with his group." Eckenroth 

also apologized for not having investigated DeLong's claim, 

but told Farrell that she would have to leave because 

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 claims. 

Farrell did not agree to any terms of separation and left her 

position on December 28, 1994. 

DeLong's memorandum, dated December 8, describes the 

events leading up to Farrell's termination. The 

memorandum refers to three conversations he had on 

December 7 and 8 with various Planters' managers who 

came to DeLong and complained about Farrell. The 

memorandum then refers to a meeting between DeLong and 

Eckenroth, spurred by these conversations, where they 

"discussed the option of eliminating" Farrell's position 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 about 

Farrell." DeLong summarizes their comments: "The most 

common response received was, `I don't know what she 

does.' `A lot of talk but no results.' `Nice suit, but nothing 

in it.' Ed Lyons said she was helpful with his group." 
DeLong then detailed his subsequent conclusions, 

including: 

 When all the issues with her peers were discussed and 

 other feedback received discussed, it was clear that I 

 had to deal with Susan. I could not run an area with 

 the type of conflict that existed between Susan and the 

 rest of my staff. 

 . . . . 

 [b]ased on these discussion and conversations with 

 people over the last several months who found Susan 

 very difficult to work with, i.e., Phil, Mike, Peggy and 

 Rob, I made the decision to eliminate her job and 

 combine Graphics and Packaging under Peggy as per 

 6 

 earlier recommendation and hire another Packaging 

 Engineer. 

Farrell alleges that her rejection of DeLong's advance 

resulted in her termination, forming the basis of her federal 

claims. She also argues that DeLong's assurances created 

an implied term in her employment contract permitting her 

termination for cause only. Farrell alleges that Planters 

breached this provision by firing her, forming the basis for 

her state law claim. 

Planters disputes many of the facts alleged by Farrell, 

and the inferences that might be drawn from them, and 

describes different reasons for Farrell's termination. 

According to Planters, Farrell was terminated because 

upper management made the decision to consolidate the 

Graphics and Packaging Departments and Planters 

determined that Peggy Bryan, the head of the Graphics 

Department, would better serve Planters than Farrell in the 

consolidated position. According to Planters, Eckenroth met 

with Sandy Putnam, Vice President of Planters, to discuss 

cost containment and reduction measures in November of 

1994 and specifically discussed the possibility of 

implementing DeLong's 1993 proposal that Planters should 

consolidate the Packaging Services and Graphic Design 

Departments in late 1994 or early 1995. 

Planters explains that DeLong and Eckenroth met on 

December 8 to discuss the consolidation. At that meeting, 

Eckenroth asked DeLong to make a recommendation about 

whether they should keep Farrell or Bryan, which he did. 

Planters contends that DeLong's December 8 memorandum 

is materially consistent with their explanation for Farrell's 

termination since it describes a discussion about 
consolidating departments, efforts by DeLong to canvass 

opinion about Farrell, and the decision to retain Bryan. 

Furthermore, in his certification and deposition 

testimony, DeLong denied ever having suggested to Farrell 

the possibility of a promotion or making the advance on the 

plane. Eckenroth and DeLong also denied that they told 

Farrell that the decision was a position elimination in name 

only during their meeting with Farrell. In their certifications 

and deposition testimony, DeLong and Eckenroth also

 7 

support the choice to retain Bryan by stating that they 

received complaints about Farrell's availability, ability and 

attitude throughout her employment. Planters points out 

that in the summer of 1994, a peer group gave Farrell the 

mock award title of "phantom leader," and in October, 

DeLong wrote a memorandum to Farrell telling her to

increase her visibility at Planters. 

After her termination, Farrell filed suit. The District Court 

granted Planters summary judgment on all of Farrell's 

claims. Farrell appeals and argues that the District Court 

erred in dismissing her Title VII quid pro quo sexual 

harassment and retaliation claims as well as her North 

Carolina contract law claims. We discuss each in turn, 

beginning with Farrell's Title VII claims. 

We exercise plenary review over summary judgment and 

we apply the same standard that the lower court should 

have applied. See Armbruster v. Unisys Corp., 32 F.3d 768, 

777 (3d Cir. 1994). A federal court should grant summary 

judgment "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to 

any material fact and that the moving party is entitled to a 

judgment as a matter of law." See Fed. R. Civ. P. 56(c). In 

making this determination, "a court must view the facts 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 Title VII 

in two separate ways and presents her discrimination claim 

as two different causes of action. She alleges that her 

termination was both an impermissible act of retaliation 

and an act of quid pro quo sexual harassment. In this case, 

it is clear that both of Farrell's claims rely upon the same 

essential facts: DeLong's sexual advance, her rejection of 

the advance and her subsequent termination. 
The District Court determined that Farrell failed to 

produce evidence showing a causal link between the 

rejection and her termination, as is required to establish a 

 8 

prima facie case for each claim. Considering Farrell's 

retaliation claim, the District Court first determined 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 evidence of a 

"pattern of antagonism" or a "retaliatory animus." Finding 

none, the District Court granted the defendant's motion 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 Deal 

Delivery Serv., Inc., 974 F. Supp. 441 (D.N.J. 1997), the 

Court dismissed Farrell's claim because there was no 

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 the 

District Court erred by requiring that the causal connection 

for both claims be supported by a pattern of antagonism, 

retaliation or hostility and, thereby, engaged in too narrow 

a review of the plaintiff 's evidence. Considering the record 

before us, we find ample evidence from which to infer a 

causal connection between Farrell's rejection of DeLong'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 not decide 

whether the three to four week period between the advance 

and termination would be sufficient, if considered alone. We 

note that the District Court did not reach the issue of 

whether Planters and Nabisco proffered a legitimate nondiscriminatory reason for Farrell's termination or whether 

Farrell could illustrate that the reason was pretextual, so 

we will reverse and remand to the District Court for 

consideration of those issues. We will discuss the 

requirements for Farrell's prima facie case of retaliation 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 employee 

engaged in a protected employee activity; (2) the employer 

 9 
took an adverse employment action after or 

contemporaneous with the employee's protected activity; 

and (3) a causal link exists between the employee's

protected activity and the employer's adverse action. 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 Sterilizer 

Company, 126 F.3d 494, 500 (3d Cir. 1997) (describing the 

third requirement as a "causal connection"). 

The District Court determined that Farrell failed to 

establish the third element of the prima facie case. 4 It 

reasoned that "a temporal proximity of three to four weeks 

may support an inference of retaliation," but held "[a]bsent 

evidence of intervening antagonism or retaliatory animus 

. . . 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 District 

Court limited its inquiry into whether Farrell offered any 

non-temporal proof of causation to evidence of a"pattern of 

antagonism" or "retaliatory animus" and,finding none, 

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 of 

conduct and circumstances that could support the 

inference of causation. The District Court seemed to have 

been requiring more than one retaliatory act, or one closer 

in temporal proximity, or some demonstrative activity, to 

the exclusion of all other facts or events potentially 

probative of causation. In doing so, it committed error. 

We have spoken often of the probative value of temporal 

proximity in retaliation cases. Recently in Robinson v. City 

of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997), and Krouse v. 

American Sterilizer Co., we remarked that our case law is 

"seemingly split" as to whether temporal proximity between 

_________________________________________________________________ 

4. We note that the District Court held that the rejection of a sexual 

advance was a protected activity, see Farrell , 22 F. Supp. 2d at 392, and 

that determination has not been questioned on appeal. Therefore, we do 

not need to address it. Farrell's termination clearly establishes the 

second prong. 

 10 

the protected activity and the alleged retaliatory act can be 

sufficient in itself to create an inference of a causal 

connection for the purposes of a prima facie case of 

retaliation. See Robinson v. City of Pittsburgh , 120 F.3d at 

1302; see also Krouse, 126 F.3d at 503 (finding period of 
nineteen months insufficient on summary judgment). 

However, we caution that this "split" is not an 

inconsistency in our analysis but is essentially fact-based. 

Rather, we have ruled differently on this issue in our case 

law, depending, of course, on how proximate the events 

actually were, and the context in which the issue came 

before us.5 

For example, in Jalil v. Avdel Corporation, 873 F.2d 701 

(3d Cir. 1989), we reversed the grant of summary judgment 

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 demonstrated 

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 summary 

judgment, we explained that temporal proximity alone will 

be insufficient to establish the necessary causal connection 

when the temporal relationship is not "unusually 

suggestive," and determined that nineteen months was too 

_________________________________________________________________ 

5. We do note that our pronouncements regarding temporal proximity 

and causation need to be assessed with the understanding that the 

relative evidentiary impact of temporal evidence may vary depending 

upon the stage of the McDonnell Douglas proof analysis, and the 

procedural circumstance. We caution, therefore, that each case must be 

considered with a careful eye to the specific facts and circumstances 

encountered. See Kachmar, 109 F.3d at 178 ("Our cases set no 

parameters but were decided in the context of the particular 

circumstances before us."). There is clearly a difference between two 

days and nineteen months. Compare Jalil, 873 F.2d 701, 708 (3d Cir. 

1989), with Krouse, 126 F.3d at 503. There is also a difference between 

a plaintiff relying upon temporal proximity to satisfy her prima facie 

case 

for the purpose of summary judgment, see Jalil , 873 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 Krouse, 

126 F.3d at 503 (citing Robinson, 120 F.3d at 1302). In this 

case, Farrell, supported by the EEOC, asks that wefind 

that the relatively short period in question sufficient to 

establish the inference of causation required at this stage.6 

However, because we find that she establishes the inference 

on the entire record before us, including the suggestive 

timing, we need not decide whether the timing alone would 
be sufficient. 

In the case before us, the District Court required 

additional evidence of "intervening antagonism or 

retaliatory animus," after it opined that the timing of three 

to four weeks "may" support an inference of causation. In 

essence, it held that if temporal proximity is not clearly 

suggestive standing alone, a "time plus" other intervening 

retaliatory acts will be required. We part ways with 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 link for 

purposes of the prima facie case. The District Court drew 

its reasoning from our statement in Kachmar that "[w]here 

there is a lack of temporal proximity, circumstantial 

evidence of a `pattern of antagonism' following the protected 

conduct can also give rise to the inference." See Farrell, 22 

_________________________________________________________________ 

6. In its brief, the EEOC's principal argument is that the temporal 

relationship between the rejection of DeLong's advance 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 attention a recent 

opinion of the Court of Appeals for the Eleventh Circuit, 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 the 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 require 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 177). 

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 been 

the basis for the causal link, our case law clearly has 

allowed a plaintiff to substantiate a causal connection for 

purposes of the prima facie case through other types of 

circumstantial evidence that support the inference. For 

example, a plaintiff may establish the connection by 
showing 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 Cir. 

1997), cert. denied, 522 U.S. 1147 (1998). In Waddell, we 

noted that the District Court could "appropriately" have 

taken inconsistent explanations into account infinding 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 refusal to 

rehire and could appropriately have taken that into

account."). In L.B. Foster Co., we noted that the plaintiff 

had established a prima facie case of retaliation based on 

temporal proximity between the events plus inconsistencies 

in the defendant's testimony, certain conduct towards 

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 (3d Cir. 

1997), we limited our inquiry to evidence of a pattern of 

antagonism, but only because that evidence was sufficient 

on its own to link the complaints of discrimination and 

Woodson's discharge. See id. at 921. We specifically stated 

that we "need not consider whether other types of evidence 

might also support a causal link finding in the absence of 

temporal proximity." Id. at 921 n.3. Similarly, in Robinson 

v. SEPTA, 982 F.2d 892 (3d Cir. 1993), the intervening 

pattern of antagonism was so strong that it overcame the 

lack of temporal proximity and, alone, proved the causal 

 13 

link. See id. at 895. There was no need to look beyond this 

pattern for other, circumstantial, evidence. 

Moreover, we have been willing to explore the record in 

search of evidence, and our caselaw has set forth no limits 

on what we have been willing to consider. In Krouse, we 

affirmed the District Court's grant of summary judgment 

after concluding that the plaintiff "has not proffered any 

evidence establishing a causal connection" other than the 

nineteen month gap between filing an EEOC complaint and 

the alleged retaliatory act. See Krouse, 126 F.3d at 503. We 

noted there that "[w]hen temporal proximity between

protected activity and allegedly retaliatory conduct 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 evidence that 

can be considered probative of the causal link. It is not 

limited to timing and demonstrative proof, such as actual 
antagonistic conduct or animus. Rather, it can be other 

evidence gleaned from the record as a whole from which 

causation can be inferred. As we explained in Kachmar, "[i]t 

is important to emphasize that it is causation, not temporal 

proximity [or evidence of antagonism], that is an element of 

plaintiff 's prima facie case, and temporal proximity [or 

antagonism] merely provides an evidentiary basis from 

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 Court's 

decision that Farrell had not satisfied the same element -- 

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.3d 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 the 

submission was linked to compensation, etc., at or before 

the time when the advances occurred. But the employee 

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 that she 

failed to establish the causal connection required by 

Robinson. The District Court used the test for satisfying the 

prima facie stage that had first been set forth by the Court 

of Appeals for the Eleventh Circuit in Henson v. City of 

Dundee, 682 F.2d 897 (11th Cir. 1982). See Farrell, 22 F. 

Supp. 2d at 386 ("(4) her submission to the unwelcome 

advances was an express or implied condition for receiving 

job benefits or her refusal to submit resulted in tangible 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 focusing 

exclusively on New Jersey state law -- to conclude that 

Farrell's causation evidence fell short because, like the 

plaintiff in Lynch, Farrell did not produce any evidence that 
DeLong "pressured her" or "acted hostile toward Farrell 

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

at 387-88. 

Farrell contends that the District Court erred infinding 

that she had not adduced evidence sufficient to establish 

the causal relationship required by Robinson. We agree and 

will reverse because we believe that -- by relying upon 

Lynch -- the District Court departed from our decision in 

Robinson and -- much as it did with respect to its analysis 

of the retaliation claim -- incorrectly narrowed the scope 

and nature of its assessment of the causation evidence. As 

we will explain below, we view the evidence as sufficient to 

establish this causal link as well. 

In Lynch, the plaintiff raised a number of discrimination 

claims, including quid pro quo sexual harassment, under 

 15 

the New Jersey Law Against Discrimination. The district 

court granted summary judgment to the defendant because 

it found that since the plaintiff admitted that the defendant 

did not act hostilely towards her or attempt to coerce her 

after she declined his invitations to dinner, "no reasonable 

factfinder could conclude [the defendant's] attentions ever 

involved an implicit or explicit threat" of retaliation as 

required under NJLAD. See Lynch, 974 F. Supp. at 452 

(citing Lehman v. Toys `R' Us, Inc., 626 A.2d 445 (N.J. 

1993)). The District Court, noting that it found the 

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 explicitly 

threatened retaliation when making the advance. We 

explained in Robinson that "the plaintiff must show that his 

or her response to unwelcome advances was subsequently 

used as a basis for a decision about compensation, etc. 

Thus, the plaintiff need not show that the submission was 

linked to compensation, etc., at or before the time when the 

advances occurred." Robinson, 120 F.3d at 1297 (emphasis 

added). While evidence of hostility or repeated demands for 

sexual favors would strengthen any plaintiff 's case, the 

lack of such evidence does not render it fatallyflawed. By 

following the reasoning of Lynch, the District Court 

narrowed its analysis of Farrell's evidence of causation 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. Plymouth Township, 132 

F.3d 20, 22, 28 (3d Cir. 1997) and Kidwell v. Sheetz, Inc., 982 F. Supp. 

1177, 1179-81 (W.D. Va. 1997) in a footnote. See Farrell, 22 F. Supp. 2d 

at 388 n.32. In Bonenberger, we did state, as the District Court 

contended, that the plaintiff 's supervisor "did not suggest, either by 

word or action, that sexual favors were the price for keeping her job." 

Farrell, 22 F. Supp. 2d at 388 n.32 (quoting Bonenberger, 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 rejecting his sexual 

advances." 

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

 16 

Robinson, however, as the District Court noted, does 

require the plaintiff to "show that his or her response was 

in fact used thereafter as a basis for a decision affecting his 

or her compensation, etc." Id.; Farrell, 22 F. Supp. 2d at 

387. As with Farrell's retaliation claim, the question 

becomes what evidence may the court consider in deciding 

whether that nexus is sufficiently proven to establish a 

prima facie case. While we recognize that a retaliation claim 

under Title VII and an adverse job discrimination claim 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 that 

Farrell's burden should be higher, or the scope of evidence 

permissibly considered narrower, in this cause of action for 

quid pro quo sexual harassment than in a retaliation claim. 

Our decision in Robinson, where we reversed the grant of 

judgment as a matter of law in favor of the defendants, 

leads us to conclude that the analysis can be, in fact, quite 

broad. See Robinson, 120 F.3d at 1298-99. 8 In Robinson, 

_________________________________________________________________ 

said that a plaintiff could allege a quid pro quo sexual harassment claim 

when a supervisor implicitly or explicitly made a coercive request for 

sexual favors even without a subsequent effect on the 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) (discussing Burlington 

Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of 

Boca Raton, 524 U.S. 775 (1998)). 

In Kidwell, a case relying upon the law of the Court of Appeals for the 

Fourth Circuit, the district court dismissed the claim because the 

plaintiff failed to establish the second prong of the prima facie case 

which the court found required evidence of some form of threat. See 
Kidwell, 982 F. Supp. at 1180. 

8. A careful reading of Robinson makes it clear that 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 quid pro quo claim 

involved the alleged block of her transfer request in 1993. See id. at 

1298-99. Robinson's retaliation claim revolved around a complaint she 

filed with the EEOC in May of 1994. See id. at 1292, 1301-02. Robinson 

did not plead the facts of her quid pro quo allegations in the alternative 

as a retaliation claim, as Farrell has done here. 

 17 

the plaintiff alleged that her supervisor blocked her transfer 

because she rejected his advance. See id. at 1298. At trial, 

the plaintiff testified that her supervisor had repeatedly 

promised her that he would recommend her for transfer but 

that after a party where he pulled her into a compromising 

position for a picture, he told her that after talking to 

others in the department, they said she had a bad attitude. 

See id. The plaintiff also testified that a co-worker 

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 plaintiff has 

shown that a rejection of certain conduct was "used as the 

basis for employment decisions affecting such individual" 

should not be constrained; rather, the court can consider 

circumstantial evidence and draw inferences in favor 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 employment 

decisions, a plaintiff may rely upon a broad array of 

evidence to do so. We will now review Farrell's evidence, 

which we find, when considered as a whole, and reviewed 

in the light most favorable to Farrell, adequately establishes 

the necessary connection to substantiate both her prima 

facie of retaliation and her prima facie case of quid pro quo 

sexual harassment.9 

As a preliminary matter, we disagree with the District 

Court's rejection of certain evidence regarding DeLong's 

reaction to Farrell's rejection of his advance on the flight to 

Puerto Rico.10 In her certification in opposition to Planters' 

_________________________________________________________________ 
9. We note that Planters suggests the entire analysis of both the quid pro 

quo and retaliations claims should be joined together 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 his hand on her 

knee. We also place no evidentiary consequence on this omission. 

 18 

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 pretended to 

 sleep. We had little or no further conversation on the 

 flight, and I worked alone for the rest of theflight. The 

 following day DeLong abruptly left Puerto Rico 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 Farrell, 

22 F. Supp. 2d at 381 n.22. We disagree with the District 

Court's rejection of this evidence because Farrell's 

deposition testimony and her certification are not 

contradictory in the sense prohibited by Martin . In 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 Farrell'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 after 

she rebuffed him or how many conversations they had

thereafter. The District Court concluded, and Planters 

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 relate the 

conversations in her deposition, Farrell first explained that 

she was unable to relate the conversations in chronological 

order, agreed that they were merged together in her mind, 

and then tried to relate them as best as she could. Since 
Farrell was not asked about DeLong's attitude or demeanor, 

 19 

and the District Court's conclusion rests upon an inference 

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 certification should 

be considered as evidence. 

The District Court also refused to place any significance 

on DeLong's decision to return to Puerto Rico a day early 

when considering whether Farrell had established evidence 

of hostility. The District Court reasoned that Farrell had 

presented no evidence that his decision was related to any 

issue other than Jungmann's possible termination. See id. 

at 388 (reviewing Farrell's quid pro quo claim). However, 

Farrell faces no separate burden to substantiate the 

inference she draws from this decision; rather, the district 

court is to draw inferences in her favor at this procedural 

stage. See Iadimarco v. Runyon, 190 F.3d 151, 164 (3d Cir. 

1999) (applying traditional summary judgment standards to 

evidence supporting the plaintiff 's prima facie case of 

reverse discrimination). Farrell is entitled to rely upon this 

event as circumstantial evidence. 

Farrell, obviously, places great significance upon the 

relatively close timing between her rejection of DeLong's 

advance and her termination. The District Court found the 

timing to be suggestive in its analysis of Farrell's retaliation 

claim but did not find it sufficient on its own. See Farrell, 

22 F. Supp. 2d at 393 (finding the timing not to be

"unusually suggestive"). We view the timing of Farrell's 

termination as suggestive for both of Farrell's claims. The 

timing evidence is also enhanced by the occurrence of two 

other events. Although DeLong states that he recommended 

Bryan over Farrell based upon meetings with other 

members of Planters' management, and Planters points to 

complaints raised about Farrell's performance during her 

employment, his decision to terminate her came only three 

or four weeks after DeLong praised Farrell and asked her 

about her interest in a promotion. Further, although 

Planters justifies Farrell's termination in part because of 

economic concerns and management discussions that took 

place in November 1994, her termination occurred less 

than two-weeks after Planters purchased her house in 

Maryland and moved all of her possessions to WinstonSalem. 

 20 

Farrell also augments evidence of DeLong's changed 
demeanor and the suggestive timing of her termination with 

evidence in the record revealing inconsistencies in Planters' 

explanation for terminating her. Farrell challenges both 

Planters' explanation that the decision to consolidate the 

departments was determined by management and its 

conclusion that the choice to retain Bryan was based upon 

interpersonal reasons. Planters states that discussions 

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 eliminating 

the position of Senior Manager Packaging Development and 

combining Graphics and Packaging as per proposal dated 

8/20/93." Portions of DeLong's December 8 memorandum 

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 with her 

peers were discussed and other feedback received 

discussed, it was clear that I had to deal with Susan" and 

explained that "Based on the discussions and conversations 

with people over the last several months who found Susan 

very difficult to work with . . . I made the decision to 

eliminate her job and combine Graphics and Packaging 

under Peggy as per earlier recommendation and hire 

another Packaging Engineer." Farrell also alleges that on 

the day Eckenroth and DeLong informed her of the decision 

to terminate her, Eckenroth told her that Planters would 

call the decision a position elimination for her benefit but 

that she was actually being terminated for interpersonal 

reasons. 

Farrell also adduces evidence surrounding the choice of 

Bryan over her to accompany the inference that DeLong 

made the decision on the basis of impermissible reasons. 

Although DeLong named both Lyons and Jabbour at the

December 13 meeting as managers who made negative 

comments about her, Farrell alleges that neither Lyons nor 

Jabbour made such comments and supports her argument 

with reference to DeLong's memorandum that expressly 

 21 

states Lyons found Farrell to be helpful. Furthermore, 

Farrell states that Lyons indicated to her that he told 

DeLong that DeLong seemed to have a personal problem 

with Farrell from the manner in which he solicited feedback 

about Farrell. 

Planters argues that none of these points help to raise 

the required inference. It urges that we should draw no 
inference from the timing of DeLong's suggestion of a 

promotion because Farrell was not terminated because she 

was incompetent, but because of a required consolidation 

and the determination that Bryan was a better choice than 

Farrell. Further, Planters points out that DeLong explained 

in his deposition that he discounted complaints about 

Farrell until late November and December because Farrell 

was new. Planters argues that nothing should be read into 

the trip to Puerto Rico because the trip was planned 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 inconsistencies, 

arguing that the memorandum supports the view that 

DeLong responded to his meeting with Eckenroth by 

interviewing other managers and by subsequently choosing 

Bryan. 

We recognize that different inferences might be drawn 

from the evidence presented in the record. On summary 

judgment, however, when viewing the sufficiency of the 

prima facie case, our role is not to act as factfinder. 

Instead, we must consider the evidence taken in the light 

most favorable to the non-movant and determine whether 

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 she raised 

in Planters' explanation for her termination are sufficient to 

create the required inference. 

We recognize that by acknowledging that evidence in the 

causal chain can include more than demonstrative acts of 

antagonism or acts actually reflecting animus, we may 

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 asked -- 

 22 

which are quite similar. The question: "Did herfiring result 

from her rejection of his advance?" is not easily 

distinguishable from the question: "Was the explanation 

given for her firing the real reason?" Both should permit 

permissible inferences to be drawn in order to be answered. 

As our cases have recognized, almost in passing, evidence 

supporting the prima facie case is often helpful in the 

pretext stage and nothing about the McDonnell Douglas 

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 , 873 F.2d at 

709 n.6 ("Although this fact is important in establishing 

plaintiff 's prima facie case, there is nothing preventing it 
from also being used to rebut the defendant's proffered 

explanation. As we have observed before, the McDonnell 

Douglas formula does not compartmentalize the evidence so 

as to limits its use only one phase of the case.") (internal 

quotation omitted) (citing and quoting Dillon v. Coles, 746 

F.2d 998, 1003 (3d Cir. 1984)). It is enough to note that we 

will not limit the kinds of evidence that can be probative of 

a causal link any more than the courts have limited the 

type of evidence that can be used to demonstrate pretext.11 

_________________________________________________________________ 

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

have not had occasion to focus on the extent to which the McDonnell 

Douglas burden shifting test applies to, or has implications for the 

elements of the prima facie case of, quid pro quo claims of this type. See 

Hurley, 174 F.3d at 120-22. We see no reason to explore these issues in 

this case. Neither party questions the District Court's standard or the 

application of the burden shifting structure. See Appellant'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)); Appellee'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 (6th Cir. Jan. 22, 

1997), and Bonenberger v. Plymouth Township, No. CIV.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 Douglas test to the 

claim). Farrell only contends that the District Court erred in finding 

that 

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

relationship. 

 23 

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 would be 

fired only for cause and, thus, these promises became an 

implied term of her employment which Planters allegedly 

breached by firing her for retaliatory or discriminatory 

reasons. Farrell acknowledges that the North Carolina 

Supreme Court recently rejected the precise theory on 

which she is proceeding. See Kurtzman v. Applied Analytical 

Indust., Inc., 493 S.E.2d 420, 423-24 (N.C. 1997) (holding 

that there is not a "moving residences" exception to the 

general rule of at-will employment). However, Farrell argues 

that Kurtzman should not be applied to her case because 
her implied contract right vested, and the agreement was 

breached, before Kurtzman was decided. Farrell explains 

that the protection of contract rights based upon prior law 

is a compelling reason under North Carolina law counseling 

against the retrospective application of Kurtzman to 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 the wake of 

defendant-employer's statements here does not constitute 

additional consideration making what is otherwise an atwill employment relationship one that can be terminated by 

the employer only for cause." Id. at 423-24. The Court 

_________________________________________________________________ 

In two cases decided before Robinson, we considered claims brought by 

plaintiffs under the same Title VII section alleging that they were 

terminated because they rejected a supervisor's explicitly coercive 

request for sexual favors. See Craig v. Y & Y Snacks, 721 F.2d 77, 78-80 

(3d Cir. 1983); Tomkins v. Public Serv. Elect. & Gas 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). Neither case detailed the 

elements of a prima facie test. However, in Craig we noted that the 

district court found causation as part of the prima facie case and applied 

the McDonnell Douglas paradigm in affirming the trial 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 growth 

opportunity for you'; `This is a secure position'; and `We're 

offering you a career position' " insufficient to alter the atwill nature of the employment although the assurances 

preceded the plaintiff 's decision to move from 

Massachusetts to North Carolina. See id. at 421. 

In reaching its holding, the Court rejected precedent of 

the North Carolina's intermediary court establishing a 

"moving residence" exception to the at-will doctrine. See id. 

at 423 (rejecting Sides v. Duke Hospital, 328 S.E.2d 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 Harris v. 

Duke Power Co., 356 S.E.2d 357 (N.C. 1987), mentioning 

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 jurisprudence 

was incorrect. See id. Applying its holding to the case 

before it, where the plaintiff had won a jury verdict, the 

Court remanded to the trial court with direction to enter a 
judgment notwithstanding the verdict. See id. at 424. 

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-established 

North Carolina law, a decision of a court of supreme 

jurisdiction overruling a former decision is, as a general 

rule, retrospective in its operation." Cox v. Haworth, 284 

S.E.2d 322, 324 (N.C. 1981). The Court further explained 

that: "Unless compelling reasons . . . exist for limiting the 

application of the new rule to future cases, we think that 

the overruling decision should be given retrospective effect." 

Id. The Court in Cox also noted that the decision as to 

whether a case ought to be applied retroactively should 

include consideration of policy issues as well, such as 

"reliance on the prior decision, the degree to which the 

purpose behind the new decision can be achieved solely 

through prospective application, and the effect of 

retroactive application on the administration of justice." Id. 

at 324. 

 25 

Farrell, citing MacDonald v. Univ. of North Carolina, 263 

S.E.2d 578 (N.C. 1980), argues that protecting previously 

vested contract rights is a compelling reason which requires 

limiting the application of the rule announced in Kurtzman 

to cases involving promises made after it was decided. In 

MacDonald, the North Carolina Supreme Court explained: 

 When the law has received a given construction by a 

 court of last resort, and contracts have been made and 

 rights acquired under and in accord with such 

 construction, such contracts may not be invalidated 

 nor vested rights under them impaired by a change of 

 construction made by a subsequent decision. 

MacDonald, 263 S.E.2d at 581. However, as the District 

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 "moving 

residence" exception to the at-will doctrine had never been 

established by the North Carolina Supreme Court. See 

Kurtzman, 493 S.E.2d at 423 ("Plaintiff 's contention that 

this exception is well established in our jurisprudence is 

incorrect. This Court has not heretofore expressly passed 

upon it."). It is telling that the North Carolina Supreme 

Court in Kurtzman did apply its rule to the case before it, 

remanding for a judgment notwithstanding the verdict to be 

entered. We find no basis for not following its lead in this 

regard. 
We also believe that policy considerations point to the 

application of Kurtzman to bar claims invoking contracts 

allegedly made before it was decided. In Kurtzman, the 

Court focused upon at-will employment as a fundamental 

precept of law noting that exceptions to the rule should not 

be found to exist without "substantial justification 

grounded in compelling considerations of public policy." Id. 

at 423. The Court explained that allowing a "moving

residences" exception, in a mobile society would create 

instability in an otherwise stable area of employment law. 

See id. at 423-24. The strength of these policy rationales 

suggests that the North Carolina court would not create 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 order 

granting summary judgment in favor of Planters on Farrell's 

federal claims, and remand for further proceedings. We will, 

however, affirm the District Court's ruling precluding 

Farrell's state law breach of contract claim. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 27