Filed: Dec. 21, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 12-21-2004 Wilhelm v. Comm of PA Precedential or Non-Precedential: Non-Precedential Docket No. 03-2691 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Wilhelm v. Comm of PA" (2004). 2004 Decisions. Paper 53. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/53 This decision is brought to you for free and open access by the Opinions of th
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 12-21-2004 Wilhelm v. Comm of PA Precedential or Non-Precedential: Non-Precedential Docket No. 03-2691 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Wilhelm v. Comm of PA" (2004). 2004 Decisions. Paper 53. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/53 This decision is brought to you for free and open access by the Opinions of the..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-21-2004
Wilhelm v. Comm of PA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2691
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Wilhelm v. Comm of PA" (2004). 2004 Decisions. Paper 53.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/53
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 03-2691
BARBARA A. WILHELM,
Appellant
v.
COMMONWEALTH OF PA;
PENNSYLVANIA STATE POLICE;
PAUL J. EVANKO, COMMISSIONER;
THOMAS K. COURY;
MICHAEL D. SIMMERS
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 01-cv-01057)
District Judge: Honorable Sylvia H. Rambo
Submitted Under Third Circuit LAR 34.1(a)
on May 24, 2004
BEFORE: ROTH and STAPLETON, Circuit Judges, and
SCHWARZER,* Senior District Judge
(Opinion Filed: December 21, 2004)
*
The Honorable William W Schwarzer, Senior United States District Judge for the
Northern District of California, sitting by designation.
ROTH, Circuit Judge:
On September 11, 2002, Barbara Wilhelm won a jury verdict against the
Commonwealth of Pennsylvania for violation of the anti-retaliation provision of Title VII
of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-3(a). Wilhelm was awarded
$250,000 in damages. In addition, there was an equitable relief hearing on the issue of
Wilhelm’s request for front pay. This appeal arises from the District Court’s denial of
front pay.
I. FACTUAL AND PROCEDURAL HISTORY
The retaliation incident occurred while Wilhelm worked for the Pennsylvania State
Police (PSP) as a Legislative Specialist. She alleged that she was terminated on May 1,
2000, in retaliation for complaining about incidents of sexual harassment. In addition to
her Title VII claim, Wilhelm had also asserted claims under the Equal Pay Act of 1963,
29 U.S.C. § 206(d), Pennsylvania’s Human Relations Act, 43 PA. CONS. STAT. ANN. §
955, and the state Whistleblower Act, 43 PA. CONS. STAT. ANN. § 1421. The District
Court granted summary judgment for the defendants on all charges except the Title VII
retaliation charge. At trial, the jury awarded Wilhelm $250,000 in damages for the
retaliation claim. The equitable hearing was then held to determine whether Wilhelm
should be reinstated or receive front pay.
At the hearing, Wilhelm testified that she did not want to be reinstated with the
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PSP or with any other Commonwealth agency. She argued that her relationship with the
Commonwealth had become too contentious and that she could no longer trust the
Commonwealth. Wilhelm presented expert testimony at the hearing claiming that the
Commonwealth should pay her $944,336 for compensation. The defendants disputed this
claim and provided evidence that the Commonwealth was willing to reinstate Wilhelm in
a comparable position.
Jeffrey Miller, the Acting Commissioner of the PSP, testified that the
Commonwealth was willing to place Wilhelm in the Department of Corrections as a
Deputy Press Secretary for six months and that the PSP would pay her salary during that
period – the same salary that she had received at the PSP. After the expiration of six
months, the Commonwealth would guarantee Wilhelm employment commensurate with
her skills. The District Court ordered the Commonwealth to reinstate Wilhelm in
accordance with Commissioner Miller’s testimony. Wilhelm appealed.
II. DISCUSSION
We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. Wilhelm
raised three issues on appeal: 1) whether the PSP acted in bad faith by failing to timely
disclose the proposed position for reinstatement, 2) whether the District Court erred in
allowing Commissioner Miller to testify about the proposed position, and 3) whether the
District Court erred in granting reinstatement as opposed to front pay.
A. Commissioner Miller’s Testimony
3
In reviewing whether the District Court erred in its evidentiary ruling to allow
Commissioner M iller to testify about the duties of the proposed Deputy Press Secretary
position, we use an abuse of discretion standard. Abrams v. Lightolier, Inc., 50 F.3d
1204, 1213 (3d. Cir. 1995). Wilhelm argues that Commissioner Miller lacked the
personal knowledge to testify about Wilhelm’s capability to hold the proposed position.
We disagree.
Federal Rule of Evidence 602 provides in pertinent part, “[a] witness may not
testify to a matter unless evidence is introduced sufficient to support a finding the witness
has personal knowledge of the matter. Evidence to prove personal knowledge may . . .
consist of the witness’ own testimony.” Fed. R. Ev. 602. The court alerted Miller that
more was needed than simply stating that he had reviewed the job description. Miller
stated he was familiar with the position because he works with a press secretary in the
PSP and he had worked with press secretaries for years in the Governor’s office. He
opined that W ilhelm possessed the skills to excel in the press secretary post.
The District Court has discretion to decide whether this burden of personal
knowledge has been met. See U.S. v. Lake, 150 F.3d 269, 273 (3d. Cir. 1998). An abuse
of discretion occurs “when no reasonable person would adopt the district court’s view.”
Hanover Potato Prod., Inc. v. Shalala,
989 F.2d 123, 127 (3d Cir. 1993) (citation
omitted). A reasonable person would conclude that Miller’s experience qualified him to
testify about the position. Accordingly, we will affirm the allowance of Miller’s
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testimony.2
B. Reinstatement
Turning to the issue of reinstatement versus front pay, we conclude that the
District Court did not err by ordering reinstatement. The court has broad discretion to
determine whether reinstatement is proper; we will overrule it only if it abuses that
discretion. See Feldman v. Phila. Hous. Auth., 43 F.3d 823, 832 (3d Cir. 1994). We see
no abuse of discretion here.
Whenever feasible, reinstatement is preferred over front pay. Maxfield v. Sinclair
Int’l, 766 F.2d 788, 796 (3d Cir. 1985). Reinstatement may not be feasible when there is
no position left or the relationship between the two parties is too hostile.
Id. This is a
question for the District Court.
Id.
Here, there was a position available for Wilhelm in the Department of Corrections.
While the Deputy Press Secretary position was not identical to Wilhelm’s former position,
the District Court found that it was substantially similar. The court noted that the salary
was the same and that Wilhelm’s health and retirement benefits were to be restored so
that the records do not indicate that she ever left state employment. The court also found
that the responsibilities of the Deputy Press Secretary position are as substantial as
2
Because Wilhelm did not object when Miller was examined concerning the job
description or when it was admitted into evidence, we conclude that she waived her
objection to its untimely disclosure.
5
Wilhelm’s previous post. Although Wilhelm contends that the two jobs are not
commensurate, the “process of recreating the past will necessarily involve a degree of
approximation and imprecision.” Int’l Bhd. Of Teamsters v. United States, 431 U.S. 324,
372 (1977). Therefore, we cannot conclude that the District Court abused its discretion
by holding that there was an available position which made reinstatement feasible.
Wilhelm also contends that reinstatement was not feasible because she no longer
trusts the Commonwealth. The District Court found that Wilhelm’s distrust of the entire
Commonwealth was unreasonable. Wilhelm testified that before her time with the PSP,
she had enjoyed her employment in various Commonwealth positions. The employment
with the PSP amounted to only two years of her eighteen year Commonwealth career.
The Deputy Press Secretary position was within the Department of Corrections. The only
connection with the PSP was that the PSP was responsible for paying the first six months
of Wilhelm’s salary. Other than that, she would not be supervised by the PSP, nor
answerable to it. Moreover, Wilhelm sent resumes to Commonwealth agencies after the
jury trial had been completed. In view of the above evidence, we conclude that there was
no abuse of discretion by the District Court and that reinstatement was proper.
III. CONCLUSION
For the aforementioned reasons, we will affirm the judgment of the District Court.
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