Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-27-1998

DiIenno v. Goodwill Ind
Precedential or Non-Precedential:

Docket 98-1024




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Recommended Citation
"DiIenno v. Goodwill Ind" (1998). 1998 Decisions. Paper 272.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/272


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Filed November 27, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1024

CHRISTINE DiIENNO and DAVID DiIENNO,
       Appellants

v.

GOODWILL INDUSTRIES OF MID-EASTERN
PENNSYLVANIA and DREW HOSELEY
       Appellees

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 96-8053)

Argued: October 6, 1998

Before: BECKER, Chief Judge, NYGAARD and NOONAN*
Circuit Judges

(Filed November 27, 1998)

       William J. Fries, Esquire (ARGUED)
       Gross, McGinley, LaBarre & Eaton
       33 South 7th Street
       P.O. Box 4060
       Allentown, Pennsylvania 18105
       Attorney for Appellants



_________________________________________________________________

* John T. Noonan, Jr., Circuit Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
       Lloyd G. Parry, Esquire (ARGUED)
       Davis, Riter, Parry & Hartman
       1525 Locust Sreet, 14th Floor
       Philadelphia, Pennsylvania 19102
       Attorney for Appellees

OPINION OF THE COURT

NOONAN, Circuit Judge.

Christine DiIenno, the plaintiff in this suit for unlawful
retaliation, was hired in November 1992 by Goodwill
Industries of Mid-Eastern Pennsylvania (Goodwill) for its
Trexlertown store. The formal job description was tagger-
processor but in the Trexlertown store the processor sorted
out the bags in which the donated clothes were dumped;
taggers identified the brands and priced the clothes.
DiIenno worked as a tagger. In November 1994, two years
after she had started, she was promoted to acting shift
supervisor; one perk of the job was possession of the keys
to the store, enabling her to start her work early, a privilege
she relished.

In late November Drew Hosely was made manager of the
store. Soon after his appointment Hosely began asking
DiIenno personal questions, including questions about the
state of her marriage. She told him the questions were none
of his business. On December 5, 1994, over her objection,
he required her to pick him up when he dropped off his car
for repairs. On December 16, in the store office, he declared
his love for her. She asked him to leave. He threw things on
the desk and told her she would be demoted to doing
processing. He then left. In tears she reported the incident
to Jane Blanchard, secretary at the Shillington plant, who
regularly called in for the store's daily figures. Blanchard
had previously told her that she had been harassed by
Hosely.

On December 22, 1994 DiIenno met with Sandra
O'Flaherty, Goodwill's sales manager, and Susan Gabriel,
Goodwill's human resource director. O'Flaherty reacted
with anger to DiIenno's charge against Hosely. She

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informed DiIenno that she was being non-supportive of
management (a ground for dismissal) and that she would
have to process clothing. DiIenno's keys were taken from
her. She was forbidden to speak on the phone to
Blanchard, and her calls to Blanchard were now routed to
others. Hosely himself was removed from his position at the
store, and O'Flaherty took over the responsibilities of
manager.

At the December 22, meeting DiIenno had explained to
O'Flaherty that she was "phobic of critters -- dead or alive
that we found in donation bags -- mice, insects, bugs." She
therefore could not and would not work as a processor; she
had been hired as a tagger. On January 25, 1995 DiIenno
received a memo from management directing her to
produce a medical excuse or to begin processing clothes.
On February 1, 1995, her treating physician provided a
letter documenting her phobia. On February 6, she was
directed by her immediate supervisor, Steve Brauner, to go
through the bags. She attempted to comply, broke down,
trembling and crying, and left. She then took medical leave.
She was informed that when she returned she would have
to do processing.

The foregoing are the facts presented by the plaintiff in
support of her claim that Goodwill violated 42 U.S.C.
S 2000e-3(a) and in support of her appeal from summary
judgment in favor of Goodwill. In summarizing these facts
we do not determine their truth. We do conclude that, if
true, they state a cause of action for retaliation. DiIenno did
engage in activity protected by Title VII in protesting to
management what she perceived as sexual harassment.
She alleges that Goodwill took adverse employment action
against her by assigning her to work Goodwill knew she
could not perform. An apparent causal connection existed
between her protest and Goodwill's response. All elements
of the federal statutory tort were present. Nelson v. Upsala
College, 

, 386 (3d Cir. 1995).

To be clear, we hold that a transfer to a job that an
employer knows an employee cannot do may constitute
adverse employment action. We base our holding on the
principle that what constitutes retaliation depends on what
a person in the plaintiff's position would reasonably

                               3
understand. It is important to take a plaintiff's job-related
attributes into account when determining whether a lateral
transfer was an adverse employment action. An inability to
do a particular job is job-related, unlike a desire to live in
a certain city. See Serrano-Cruz v. DFI Puerto Rico, Inc., 

, 26 (1st Cir. 1997) (setting an employee up to fail
can be adverse action); Bernheim v. Litt, 

, 325
(2d Cir. 1996) (reassignment to a job requiring afive-story
climb could be retaliatory if the employer knew of the
employee's difficulty climbing stairs); cf. Shafer v. Board of
Public Education, 

(3d Cir. 1990) (holding that,
when the school board knew that the plaintiff would quit if
denied paternity leave, the denial constituted a constructive
discharge).

The district court in granting summary judgment erred in
treating the transfer from tagger to processor as not an
adverse employment action. To move DiIenno from work
she had done satisfactorily for over two years to work she
was unable to do was an employment action that a
reasonable jury could find adverse. The facts that her pay
and benefits were not reduced and that Goodwill considered
the jobs equivalent are not dispositive. A reasonable jury
could find that Christine DiIenno's employment was
substantially worsened.

Goodwill disputes that the transfer was punitive.
O'Flaherty states that she merely brought more efficient use
of personnel to the Trexlertown store. The disputed causal
connection and the credibility of the proferred explanation
are, of course, issues that a jury must resolve. Torre v.
Casio, 

, 831-833 (3d Cir. 1994). DiIenno has
produced sufficient evidence for a reasonable jury to infer
that what motivated Goodwill was retaliatory intent. See
Fuentes v. Perskie, 

, 764 (3d Cir. 1994).

As well, the following disputed issues of material fact
must also be resolved at trial: (1) whether Goodwill
assigned DiIenno to process in retaliation for her
harassment complaint or whether management made a
neutral decision to make everyone a tagger-processor; (2)
whether Goodwill would have enforced the sorting
requirement on DiIenno; that is, whether she was
constructively discharged or whether she jumped the gun

                                4
by leaving before it was clear that she would be required to
process.

The order of the district court will be reversed and the
case remanded for further proceedings.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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