                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-12-2008

Televandos v. Vacation Charters
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4618




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Recommended Citation
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                                                            NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                               Nos. 06-4618 & 07-2007


                                ALKIS TELEVANDOS

                                           v.

                           VACATION CHARTERS, LTD.,

                                                            Appellant.


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Civil No. 04-cv-00989)
                     District Judge: Honorable Richard P. Conaboy


                                Argued January 8, 2008


            Before: FISHER, HARDIMAN and ALDISERT, Circuit Judges

                               (Filed: February 12, 2008)

Brian J. Cali
103 E. Drinker Street
Dunmore, PA 18512

Daniel T. Brier
Donna A. Walsh (Argued)
Myers, Brier & Kelly, L.L.P.
425 Spruce Street, Suite 200
Scranton, PA 18503

             Counsel for Appellant
Johanna L. Gelb (Argued)
538 Spruce Street, Suite 600
Scranton, PA 18503

              Counsel for Appellee



                                        OPINION



ALDISERT, Circuit Judge

       Appellant Vacation Charters, Ltd., appeals from a judgment entered by the United

States District Court for the Middle District of Pennsylvania in favor of Appellee Alkis

Televandos. We will reverse the District Court’s denial of Vacation Charters’s motions

for judgment as a matter of law on Televandos’s intentional infliction of emotional

distress claim. We will affirm the District Court’s denial of Vacation Charters’s motions

for judgment as a matter of law on Televandos’s claims under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Pennsylvania Human Relations

Act (“PHRA”), 43 Pa. Stat. §§ 951 et seq., and we will affirm the District Court’s

evidentiary rulings. We will remand the case to the District Court for a new trial on the

issue of Title VII compensatory damages. We will affirm the District Court’s denial of

Vacation Charters’s motion to stay proceedings to enforce the judgment and its award of

attorneys’ fees and costs.

                                             I.

       Because we write exclusively for the parties before us and the parties are familiar

                                             2
with the facts and proceedings below, we will not revisit them.

                                             A.

       In addressing the quantum of proof necessary to support a claim for intentional

infliction of emotional distress,1 the Pennsylvania Supreme Court has held that a

plaintiff’s own testimony concerning his emotional distress is not competent medical

evidence to support the claim. Kazatsky v. King David Mem’l Park, Inc., 527 A.2d 988,

995 (Pa. 1987); see also Williams v. Guzzardi, 875 F.2d 46, 51 (3d Cir. 1989) (“To

prevent damages from being inferred from the defendant’s conduct alone, the court

require[s] some ‘objective proof of severe emotional distress’ . . . .” (quoting Kazatsky,

527 A.2d at 993)).

       Here, the only testimony concerning the emotional effects and injuries resulting

from Televandos’s experiences with Vacation Charters was from Telvandos himself.

Therefore, the evidence presented by Televandos was insufficient to support his claim for


       1
          Although the Supreme Court of Pennsylvania has not officially recognized the
tort of intentional infliction of emotional distress and its definition in § 46 of the
Restatement (Second) of Torts, the Supreme Court of Pennsylvania has recognized § 46
as articulating the minimum requirements of the tort. Taylor v. Albert Einstein Med. Ctr.,
754 A.2d 650, 652 (Pa. 2000). Section 46 provides:

              One who by extreme and outrageous conduct intentionally or
              recklessly causes severe emotional distress to another is
              subject to liability for such emotional distress, and if bodily
              harm to the other results from it, for such bodily harm.

Id. (quoting Restatement (Second) of Torts § 46(1)). Assuming for the purposes of this
appeal that the tort exists and applying the minimum requirements of § 46, Televandos
failed to present sufficient evidence to permit recovery under the tort.

                                             3
intentional infliction of emotional distress.

                                                B.

       A plaintiff seeking recovery for intentional infliction of emotional distress must

also demonstrate that the defendant engaged in extreme and outrageous conduct. The

Pennsylvania Supreme Court has defined extreme and outrageous conduct as conduct that

is “so outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized

society.” Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998) (quoting Buczek v. First Nat’l

Bank of Mifflintown, 531 A.2d 1122, 1125 (Pa. Super. 1987)).

       Televandos did not allege any conduct sufficiently extreme and outrageous to

support his claim of intentional infliction of emotional distress. The actions alleged by

Televandos – that Vacation Charters discriminated against him because of his national

origin and retaliated against him for defending another employee and for submitting his

own claim of discrimination – do not reach the same level as particularly vile sexual

harassment that has been the basis for a finding of extreme and outrageous conduct in the

employment context under Pennsylvania law. See Cox v. Keystone Carbon Co., 861 F.2d

390, 395 (3d Cir. 1988) (“[I]t is extremely rare to find conduct in the employment context

that will rise to the level of outrageousness necessary to provide a basis for recovery for

the tort of intentional infliction of emotional distress.”).

       As Televandos failed to present competent medical evidence of his injuries and

Vacation Charters did not engage in any extreme and outrageous conduct, the District

                                                4
Court erred in denying Vacation Charters’s motions for judgment as a matter of law as to

Televandos’s intentional infliction of emotional distress claim.

                                             II.

       The District Court did not err in denying Vacation Charters’s motions for

judgment as a matter of law on Televandos’s Title VII and PHRA claims.

                                             A.

       Title VII discrimination claims invoke the familiar burden-shifting framework.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this framework, a

reasonable jury can find for a plaintiff when the plaintiff makes a prima facie case of

discrimination and presents sufficient evidence that the employer’s stated

nondiscriminatory reason was false. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 148 (2000).

       We are satisfied that Televandos established a prima facie case of discrimination

by demonstrating that he was a Cypriot, was qualified for and wanted to be considered for

the position of executive chef, was not hired for that position, and that the position was

held open and a Caucasian individual was ultimately hired for the position. We are also

satisfied that a reasonable jury could have disbelieved Vacation Charters’s proffered

nondiscriminatory reason for not promoting Televandos and found that Vacation Charters

improperly discriminated against Televandos. Evidence introduced at trial detailed that

Televandos had extensive restaurant experience, that only four people of Middle Eastern

descent worked at the Lodge in the 12 years Charles Dickinson had been managing the

                                              5
resort, and that Televandos was disciplined for conduct that went undisciplined when

performed by others. Accordingly, the District Court did not err in denying Vacation

Charters’s motion for judgment as a matter of law as to Televandos’s Title VII and PHRA

discrimination claims.

                                            B.

       The Title VII burden shifting framework also applies to Title VII retaliation

claims. Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997).

                                            1.

       A reasonable jury could have found that Vacation Charters retaliated against

Televandos by not promoting him to the executive chef position because of his support of

Sawah. Televandos presented evidence that he opposed discrimination against Sawah and

engaged in protected conduct. See Moore v. City of Philadelphia, 461 F.3d 331, 343 (3d

Cir. 2006) (“‘Opposition’ to discrimination can take the form of ‘informal protests of

discriminatory employment practices, including making complaints to management.’”

(quoting Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 135

(3d Cir. 2006))). The jury could properly infer a causal link between Televandos’s

opposition to discrimination against Sawah and Vacation Charters’s failure to promote

him in light of the temporal proximity between these events and Televandos’s evidence

challenging Vacation Charters’s proffered nondiscriminatory reason. See Abramson v.

William Patterson Coll. of N.J., 260 F.3d 265, 288-289 (3d Cir. 2001). We are satisfied

that a reasonable jury could have found that Vacation Charters did not promote

                                             6
Televandos, not for his lack of qualifications, but in retaliation for Televandos’s

expressed opposition to discrimination against Sawah.

                                             2.

       A reasonable jury could have found that Vacation Charters retaliated against

Televandos because he submitted his own claim of harassment. Televandos testified that

he used the word “discrimination” during his conversation with John Ziminsky

immediately following his submission of his two-sentence statement. Dickinson also

testified that Televandos had used the word “discrimination” when making complaints to

him. As the jury could properly infer a causal link between Televandos’s submission of

the statement and his firing because of their temporal proximity, id., we are satisfied that

a reasonable jury could have found that Vacation Charters fired Televandos, not for his

disciplinary write-ups and general failure of performance, but in retaliation for submitting

his own statement alleging discrimination.

                                             C.

       The jury could have properly determined Televandos’s lost wages damages to be

$46,345.51. We must, however, vacate the jury’s award of compensatory damages.

Because we cannot determine from the special interrogatories submitted to the jury

whether the jury awarded compensatory damages for Televandos’s legally insufficient

tort claim, we will remand the case to the District Court for a new trial on the issue of

Title VII compensatory damages.

                                             III.

                                              7
       Vacation Charters also appeals two evidentiary rulings made by the District Court.

Defendant’s Exhibit 8 contained a “Note to File” purportedly prepared by Ziminsky

following Televandos’s submission of his claim of harassment. Applying the abuse of

discretion standard, Barker v. Deere and Co., 60 F.3d 158, 161 (3d Cir. 1995), we are

satisfied that the District Court did not err in refusing to admit the exhibit into evidence.

       Plaintiff’s Exhibits 38a and 38b contained calculations of Televandos’s lost wages

damages from the time he was terminated by Vacation Charters to the time he obtained

other employment. The calculations in Exhibit 38a were based on Televandos’s salary as

a line cook while working for Vacation Charters; the calculations in Exhibit 38b were

based upon the bi-weekly salary paid to Jeff Utzman, the executive chef hired for the

position sought by Televandos. Applying the abuse of discretion standard, id., we

conclude that the District Court did not err in admitting these two exhibits into evidence.

                                             IV.

       Vacation Charters was given several opportunities to oppose Televandos’s motion

for attorneys fees as required by Rule 54(d)(2)(C), Federal Rules of Civil Procedure.

Upon its filing, Vacation Charters had 20 days in which to respond to the petition.

Vacation Charters chose not to do so. Three weeks after the time for response expired, the

District Court gave Vacation Charters the option of either filing a brief in opposition to

the motion or filing a motion to stay action on the pending attorneys’ fees motion.

Vacation Charters did neither. Instead, it filed a motion to stay enforcement of the

judgment pursuant to Rule 62. Rule 62 was a facially inapplicable rule as Televandos had

                                               8
not initiated proceedings to enforce the judgment. Therefore, the District Court did not err

in denying Vacation Charters’s motion to stay proceedings to enforce the judgment.

Accordingly, we will affirm the District Court’s award of fees to Televandos.2

                                         *****

       We have considered all contentions raised by the parties and conclude that no

further discussion is necessary.

       The judgment of the District Court will be affirmed in part and reversed in part.

The compensatory damage award will be vacated, and the case will be remanded for a

new trial to determine Televandos’s Title VII compensatory damages in accordance with

the foregoing.




       2
         This disposition is without prejudice to any fees for work performed subsequent
to the date included in the previous petition for attorneys’ fees.

                                             9
