Jacobs v. City of Philadelphia ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-7-2006
Jacobs v. Philadelphia
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4163
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NOT PRECEDENTIAL
UNITED SATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4163
DERRICK U. JACOBS,
Appellant
v.
CITY OF PHILADELPHIA; CAPTAIN JOSEPH O’DONNELL
Appeal from the District Court
for the Eastern District of Pennsylvania
District Court No. 03-cv-00950
District Judge: Honorable Michael M. Baylson
Submitted under Third Circuit LAR 34.1(a)
on September 26, 2006
Before: RENDELL, CHAGARES and ROTH, Circuit Judges
(Opinion Filed: December 7, 2006)
OPINION
ROTH, Circuit Judge:
Derrick Jacobs is a detective with the Northwest Detectives division of the
Philadelphia Police Department. On February 19, 2003, Jacobs, an African-American, filed
a complaint against the City of Philadelphia and Captain Joseph O’Donnell, alleging
violations of federal and state racial discrimination laws. The case proceeded to a jury trial,
and after the jury returned a verdict in favor of the defendants, the District Court entered
judgment for the defendants on December 27, 2004. Jacobs filed post-trial motions to amend
the verdict and for a new trial; those motions were denied in August 2005. Jacobs timely
appealed. For the reasons set forth below, we will affirm the judgment of the District Court.
At trial, Jacobs sought to prove (1) a claim against Philadelphia under Title VII of the
Civil Rights Act of 1964 (relying on multiple theories of discrimination, including hostile
work environment and retaliation); (2) claims against O’Donnell under 42 U.S.C. § 1981 and
42 U.S.C. § 1983;1 and (3) claims against Philadelphia and O’Donnell under the
Pennsylvania Human Relations Act. Jacobs presented evidence intended to prove, in part,
the following: two instances when his supervisors made racially disparaging comments,
discipline and surveillance to which he was subjected in conjunction with his taking stress-
related sick leave, negative performance evaluations that he received after O’Donnell became
his supervisor, and disparities in treatment between white and black officers. Philadelphia
and O’Donnell denied taking any racially-motivated actions against Jacobs and offered
evidence intended to prove, in part, that to the extent Jacobs was subject to differential
1
The District Court dismissed § 1981 and § 1983 claims against the City of
Philadelphia.
2
treatment, it was because he was a “difficult employee.” According to Philadelphia and
O’Donnell, Jacobs had a number of attendance problems, failed to document his sick leave,
and falsified an investigation form relating to the ex-boyfriend of his then-fiancée. This last
incident resulted in Jacobs receiving a twenty-day suspension.
Counsel on each side proposed jury instructions. On December 21, 2004, the District
Court held a conference with the attorneys regarding the jury charge and verdict sheet. At
the charge conference, Jacobs’s counsel objected to the language in the instructions for the
harassment/hostile work environment claim because it implied that an affirmative defense
exists in all circumstances, even though the defense is unavailable when the plaintiff is able
to prove that he suffered a tangible adverse employment action.2 In response, counsel on
both sides worked with the Court to refine the language in both the jury charge and the
verdict sheet to better reflect the correct law. Jacobs’s counsel agreed to the amended
2
In order to establish a successful claim, a plaintiff must establish that he suffered
harassment caused by a hostile work environment, with the following factors to be proved
by a preponderance of the evidence: (1) the plaintiff suffered intentional discrimination
because of his or her membership in the protected class; (2) the discrimination was
pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the
discrimination would have detrimentally affected a reasonable person of the same
protected class in that position; and, (5) the existence of respondeat superior liability.
West v. Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir. 1995). Where the defendant
has not been found to have taken any adverse employment actions against the plaintiff,
the defendant may attempt to establish an affirmative defense by showing that the
employer exercised reasonable care to prevent and correct promptly any harassing
behavior, and the plaintiff employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the employer. Faragher v. City of
Boca Raton, 524 U.S. 775, 805 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 764-65
(1998).
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instructions.
The jury returned a verdict in favor of the defendants. Although the jury found that
Jacobs had been treated differently from other detectives who were not African-American,
that he had suffered intentional discrimination because of his race, and that he had satisfied
most elements of the hostile work environment claim, it nonetheless found that he did not
prove any of his federal claims. The jury repeatedly found that Jacobs suffered no adverse
employment actions against him. The jury did find that Jacobs had proved his state law claim
against O’Donnell, but it awarded him no damages. The District Court entered the verdict
without objection and denied Jacobs’s post-trial motions to amend the verdict and for a new
trial.
The District Court had subject matter jurisdiction over this case pursuant to 28 U.S.C.
§ 1331 and 28 U.S.C. § 1367. We have jurisdiction over this appeal from a final judgment
pursuant to 28 U.S.C. § 1291. We review the District Court’s ruling on the motion for a new
trial for abuse of discretion. Brennan v. Norton, 350 F.3d 399, 430 (3d Cir. 2003). Our
review of the District Court’s ruling on the motion to amend the judgment varies with the
nature of the underlying decision. Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348-49
(3d Cir. 1986). We exercise plenary review to determine whether jury instructions misstated
the applicable law, but in the absence of a misstatement we review for abuse of discretion.
See Walden v. Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir.1997). If the party claiming
error did not make a timely objection, we review for plain error. See Ryder v. Westinghouse
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Elec. Corp., 128 F.3d 128, 136 (3d Cir.1997).
Although Jacobs objected to the instructions for the hostile work environment claim,
the District Court amended the instructions and Jacobs did not object to the amended
instructions. Under F ED. R. C IV. P. 51, a party must raise any objections to jury instructions
prior to the time the jury begins its deliberations. See also Alexander v. Riga, 208 F.3d 419,
426 (3d Cir. 2000). Although we have held that a party has not waived the argument where
it would have been futile for him to object, he must make his opposition to the instructions
clear to the District Court. Cooper Distributing Co., Inc. v. Amana Refrigeration, Inc., 180
F.3d 542, 550 (3d Cir. 1999). Because Jacobs agreed to the amended instructions, we do not
believe he raised a timely objection or in any way conveyed his opposition to the language
he now challenges. As such, we are limited to a review for plain error.
Plain error is also the appropriate standard by which to review Jacobs’s argument that
the jury’s responses were inconsistent. We have held that under F ED. R. C IV. P. 49, a party
waives his right to argue that jury interrogatories provoked inconsistent responses if he does
not object prior to the jury’s dismissal. Inter Med. Supplies, Ltd. v. Edi Med. Sys., 181 F.3d
446, 463 (3d Cir. 1999); Herskowitz v. Nutri/System, 857 F.2d 179, 188-89 (3d Cir. 1988).3
Jacobs waived his inconsistency argument because he raised no such objection before the
jury was excused. We therefore limit our review on this question to plain error.
3
Because Jacobs has waived his argument under either Rule 49(a) (special verdicts) or
Rule 49(b) (general verdicts), we need not determine whether the verdict in this case was
general or special.
5
Under plain error review, we will reverse only if the trial court committed error that
was fundamental and highly prejudicial, such that the instructions failed to provide the jury
with adequate guidance on a fundamental question, and the District Court's refusal to
consider the issue would result in a miscarriage of justice. Alexander v. Riga, 208 F.3d 419,
426-27 (3d Cir. 2000). Neither the juror instructions nor the juror responses gave rise to
error of this nature.
First, Jacobs argues that Interrogatory B3, which required jurors to find that race was
“the determinative factor for the actions,” added an unnecessary element to the hostile work
environment claim or confused the jurors regarding when the relevant affirmative defense
was available. It did not. We agree with the District Court that Interrogatory B3 merely
compressed the element of causation with the affirmative defense which the parties discussed
at the charging conference. The District Court correctly explained both causation and the
affirmative defense in its instructions to the jury, and to the extent that Interrogatory B3 was
likely to cause any juror confusion, we agree with the District Court that the confusion – due
to the lack of any explicit mention of the affirmative defense – would have been to the likely
benefit of Jacobs.
Neither were the juror responses so inconsistent as to have necessitated a new trial or
an amended verdict. Jacobs claims inconsistency because the jury found for him on the state
law claim but against him on the §1981 and 1983 actions against O’Donnell. Given the
different showings necessary under these different theories, we agree with the District Court
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that these findings are not necessarily inconsistent.
Jacobs also challenges the District Court’s decision not to grant a new trial on the
basis of the jury’s verdict being against the weight of the evidence. We believe the District
Court acted well within its discretion. A new trial because the verdict is against the weight
of the evidence should be granted only “when the record shows that the jury's verdict resulted
in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or
shocks our conscience.” Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1353 (3d
Cir. 1991). A jury is free to assess the credibility of witnesses and to believe or disbelieve
the facts presented by each side. In this case, the accounts presented by each side differed
considerably, and a reasonable jury was entitled to make findings favoring either side.
Finally, Jacobs challenges an evidentiary ruling, arguing that the District Court
wrongfully excluded as excessively prejudicial testimony by Jacobs regarding narcotics
found on his desk at work. Jacobs does not deal with narcotics as part of his job, and he
speculates that someone planted the drugs out of racial animus. Jacobs sought to testify as
to the incident, either to establish an additional instance of racially motivated behavior or to
provide an explanation, in response to questioning by defendant’s counsel, as to why he
experienced stress even after O’Donnell had been transferred. The District Court refused to
admit this testimony for either purpose because it was both speculative and highly
inflammatory, and thus unfairly prejudicial in light of its possible probative value within the
meaning of F ED. R. E VID. 403 . We review the District Court's determinations concerning
7
the admissibility of evidence for abuse of discretion. Karkkainen v. Kovalchuk, 445 F.3d
280, 288 (3d Cir. 2006). We share the District Court’s concern regarding the speculative and
prejudicial nature of this evidence, and we believe that it acted within its sound discretion.
For the reasons stated above, we will affirm the judgment of the District Court.
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