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Smith v. Borough of Wilkinsburg

June 17, 1998


On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 95-1699)

Before: Sloviter, Nygaard and KRAVITCH,*fn* Circuit Judges

The opinion of the court was delivered by: Sloviter, Circuit Judge.

Argued October 27, 1997


Edward C. Smith, former Manager of the Borough of Wilkinsburg, Pennsylvania, brought suit against the Borough alleging that it had failed to renew his employment contract on the basis of his age. At the close of the trial, the district court refused his request to instruct the jury that it could infer intentional discrimination if it disbelieved the Borough's asserted reasons for not renewing Smith's contract. Smith appeals from the judgment entered on the jury's adverse verdict, and seeks a new trial, claiming that the district court committed reversible error in omitting that instruction.


Smith was hired as Borough Manager on June 5, 1989, pursuant to a five-year employment contract. Under the contract, Smith's employment was to be renewed for an additional five years unless written notice was given by either party within thirty days before or after the contract's expiration. On March 23, 1994, a member of the Borough Council orally informed Smith, then 61 years old, that the Council would not be renewing his contract but that he was welcome to reapply for the job along with other applicants. Two weeks later, Smith, the Mayor and the Council President signed a resolution stating that the Borough would not be extending Smith's employment agreement and that it would begin interviewing other applicants for the position.

Although Smith told several council members that he was interested in retaining his position, he did not formally submit an application. On February 15, 1995, Thomas Leach, who was 37 years old, was hired as the new Borough Manager. Only after Leach was hired did Smith apply in writing for the Borough Manager position.

Smith brought suit against the Borough alleging that his employment contract had not been renewed on account of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623 ("ADEA"). At trial, Smith produced evidence that the fiscal health of the Borough had improved markedly during his tenure. In defense of its action in failing to renew Smith's contract, the Borough elicited testimony from Council members that Smith's performance on the job had been inadequate. Smith then offered evidence that the Borough had not criticized Smith's performance at prior hearings before the Equal Employment Opportunity Commission and the Pennsylvania Commission on Human Relations and in its responses to Smith's interrogatories. Instead, the Borough explained that it did not renew Smith's contract because Smith had not timely applied for the position. *fn1

At the court's request, the parties submitted written proposed jury instructions and objections to the court's proposed charge. Smith, citing our opinion in Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061 (3d Cir. 1996) (en banc), cert. denied, 117 S. Ct. 2532 (1997), requested that the court instruct the jury that it could infer intentional discrimination if it found the Borough's reasons for not renewing the contract to be false or not credible. Thereafter, at an in camera charge conference, Smith objected to the court's draft charge, noting that it did not include his requested instruction on pretext. The court denied Smith's request and overruled his objection, stating: "it is error for me to instruct on that. . . . for me to give a pretext instruction would be an error, simple as that." App. at 983. Smith did not renew his objection after the court delivered the charge to the jury.

The jury returned a verdict for the Borough. Smith then filed a motion for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure on the ground that it was error for the district court not to have given the instructions he requested. The court denied the motion and this appeal followed.


When reviewing the propriety of a district court's charge to the jury, the scope of our review depends on whether the party challenging the charge properly preserved his or her objection before the trial court. Where the objection is properly preserved, our inquiry is whether the charge, "taken as a whole, properly apprises the jury of the issues and the applicable law." Limbach Co. v. Sheet Metal Workers Int'l Ass'n, 949 F.2d 1241, 1259 n.15 (3d Cir. 1991) (en banc). Where the objection has been waived, however, our power to review is discretionary and "should be exercised sparingly." Fashauer v. New Jersey Transit Rail Operations, 57 F.3d 1269, 1289 (3d Cir. 1995) (quoting McAdam v. Dean Witter Reynolds, Inc., 896 F.2d 750, 770 n.31 (3d Cir. 1990)). When we choose to exercise that discretion, we may reverse only where the error is "fundamental and highly prejudicial or if the instructions are such that the jury is without adequate guidance on a fundamental question and our failure to consider the error would result in a miscarriage of Justice." Fashauer, 57 F.3d at 1289 (quoting Bereda v. Pickering Creek Indus. Park, Inc., 865 F.2d 49, 53 (3d Cir. 1989)).

The Borough has not argued that Smith waived his objection to the district court's charge. However, because the waiver issue is central to determining the scope of our review, we will not simply assume that the objection was preserved, merely because the Borough failed to raise the waiver argument.

Rule 51 of the Federal Rules of Civil Procedure provides that "[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." Fed. R. Civ. P. 51. Rule 51 plays a critical role in both the trial and appellate processes. By requiring parties to object with specificity before the jury retires, the rule ensures that the district court is made aware of and given an opportunity to correct any alleged error in the charge before the jury begins its deliberations. See, e.g., Fashauer, 57 F.3d at 1288. When errors are recognized and corrected at that early stage, the burden on the courts of appeals is diminished, fewer jury verdicts will have to be ...

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