The opinion of the court was delivered by: Magistrate Judge Lisa Pupo Lenihan
MEMORANDUM OPINION AND ORDER
This case is presently before the Court on Defendant's Motion for Judgment as a Matter of Law pursuant to Fed. R. Civ. P. 50(b), or for a New Trial pursuant to Fed. R. Civ. P. 59. The parties are familiar with the background of the case and it need not be restated here. After a four day trial, the jury returned a verdict in favor of Plaintiff Terryn Risk, finding that the Defendant unlawfully discriminated and retaliated against Plaintiff because of his religion. For the reasons discussed below, Defendant's Motion for Judgment as a Matter of Law, or for a New Trial at Doc. No. 121 is denied.
A. MOTION FOR JUDGMENT AS A MATTER OF LAW
"[J]udgment as a matter of law should be granted sparingly." Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993). A motion for judgment as a matter of law "should be granted only if, viewing the evidence in the light most favorable to the non-movant and giving the non-movant the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury could reasonably find liability." Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993) (citing Wittekamp v. Gulf & Western Inc., 991 F.2d 1137, 1141 (3d Cir. 1993)). The standard for granting judgment as a matter of law "mirrors" the standard for summary judgment, such that "the inquiry under each is the same." Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150 (2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986)) (other citations omitted). Thus, the court must view all evidence in the record. Id. It may not weigh the parties' evidence or determine the credibility of the witnesses. Id. Also, the court must not substitute its version of the facts for that of the jury. Lightning Lube, 4 F.3d at 1166. Further, "the court must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves, 530 U.S. at 151. In Reeves, the United States Supreme Court further explained that the district court "should give credence to the evidence favoring the non-movant as well as that 'evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses.'" Id. (other citation omitted). Although a Rule 50(b) motion should be granted sparingly, "a scintilla of evidence is not enough to sustain a verdict of liability." Lightning Lube, 4 F.3d at 1166 (citing Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993)). "'The question is not whether there is literally no evidence supporting the party against whom the motion is directed, but whether there is evidence upon which the jury could properly find a verdict for that party.'" Id. (quoting Patzig v. O'Neil, 577 F.2d 841, 846 (3d Cir. 1978)). See generally 9 Moore's Federal Practice §§ 50.60, 50.62, 50.63, 50.64 (3d ed. 2008).
Finally, in determining whether there is a legally sufficient evidentiary basis for the verdict, erroneously admitted evidence will play no role in the court's application of the appropriate legal standard. Weisgram v. Marley Co., 528 U.S. 440, 457 (2000).
In addition to its Rule 50(b) motion, the Defendant has moved, in the alternative, for a new trial pursuant to Federal Rule of Civil Procedure 59. Rule 59 states in relevant part as follows:
Rule 59. New Trial; Altering or Amending a Judgment
(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues--and to any party--as follows:
(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court[.]Fed. R. Civ. P. 59(a).
The ordering of a new trial pursuant to Rule 59 is within the sound discretion of the district court. Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002, 1017 (3d Cir. 1995). Reasons for granting a new trial include verdicts which are against the weight of the evidence or prejudicial errors of law. Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir. 1993). When the basis for the motion is an alleged error concerning the court's evidentiary rulings or jury instructions, a district court must first determine whether an error was made during the course of the trial, and then determine "whether that error was so prejudicial that refusal to grant a new trial would be 'inconsistent with substantial justice.'" Bhaya v. Westinghouse Elec. Corp., 709 F. Supp. 600, 601 (E.D. Pa. 1989) (quoting Fed. R. Civ. P. 61), aff'd, 922 F.2d 184 (3d Cir. 1990). Whether any error committed by the court was harmless is governed by Federal Rule of Civil Procedure 61.*fn1 Trial errors are considered harmless when "it is highly probable that the error did not affect the outcome of the case." McQueeney v. Wilmington Trust Co., 779 F.2d 916, 917 (3d Cir. 1985). "Unless a substantial right of the party is affected," a non-constitutional error in a civil case is harmless. Linkstrom v. Golden T. Farms, 883 F.2d 269, 269 (3d Cir. 1989). "Absent a showing of substantial injustice or prejudicial error, a new trial is not warranted and it is the court's duty to respect a plausible jury verdict." Montgomery County v. MicroVote Corp., 152 F. Supp.2d 784, 795 (E.D. Pa. 2001).
The United States Court of Appeals for the Third Circuit has indicated, however, that the district court's discretion to grant a new trial is more limited when the alleged ground is that the verdict is against the weight of the evidence. Greenleaf v. Garlock, Inc., 174 F.3d 352, 366 (3d Cir. 1999). In this instance, new trials "'are proper 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.'" Greenleaf, 174 F.3d at 366 (quoting Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991)); EEOC v. Delaware Dep't of Health and Soc. Servs., 865 F.2d 1408, 1413 (3d Cir. 1989). "[T]his stringent standard is necessary to ensure that a district court does not substitute its judgment of the facts and credibility of the witnesses for that of the jury." Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1076 (3d Cir. 1996) (citations omitted).
Unlike a motion for judgment as a matter of law pursuant to Rule 50, the court is not compelled to view the evidence in the light most favorable to the non-movant. Whelan v. Teledyne Metal Working Prods., 2006 WL 39156 *7 (W.D. Pa. 2006) (citing Bullen v. Chaffinch, 336 F. Supp.2d 342, 347 (D.Del. 2004). Further, the movant bears the burden of proof on a motion for a new trial. Id. (citation omitted).
Defendant's initial arguments state that certain evidence should not have been admitted at trial, "both in terms of what should not be considered in determining whether or not there is a legally sufficient evidentiary basis for the verdict, and in terms of whether defendant is entitled to a new trial." (Defendant's Brief in Support of its Motion for Judgment as a Matter of Law and for a New Trial, Doc. No. 136 at 8) [hereinafter "Doc. No. 136 at __ ]. Specifically, Defendant raises the following contentions of error: 1) the admission of evidence, argument, and jury instruction regarding the Defendant's alleged violation of the Police Tenure Act; 2) the admission of evidence, argument, and jury instruction regarding Plaintiff's cross pin; 3) the admission of evidence and argument contesting Plaintiff's decertification; 4) evidence and argument regarding Plaintiff's off-duty expression of an opinion to Amy Prevost about what Borough Council might do; 5) the introduction of Dan Johnson's testimony after both Plaintiff and Defendant had completed the presentation of their cases; and 6) the evidence and adverse inference instruction regarding the non production of audiotapes. (Doc. No. 136 at 8.) Defendant submits the above arguments in support of both its Motion for Judgment as Matter of Law, or in the alternative, Motion for a New Trial. Later in its Brief in Support of its Motion for Judgment as a Matter of Law, or for a New Trial, Defendant includes two additional sections, one containing arguments relating only to its Motion for Judgment as a Matter of Law, and the other containing arguments relating only to its Motion for a New Trial. These arguments will be included with the above arguments in their respective sections of this Memorandum Opinion.
A. Motion for Judgment as a Matter of Law pursuant to Federal Rule of Civil Procedure 50(b)
Defendant argues that the Court erred in admitting certain evidence, and that had this evidence been excluded, there would have been insufficient evidence to support the jury's conclusion.
1. The Admission of Evidence Regarding the Defendant's Alleged Violation of the Police Tenure Act
The Court took judicial notice of the Pennsylvania Police Tenure Act solely because its seniority provisions were relevant to pretext; that is, layoffs must occur in reverse order of seniority, and Risk had been hired before others who were not furloughed. See 53 P.S. § 813. Defendant argues that by its terms, the Police Tenure Act does not apply to Defendant's police force because it has more than three members. See 53 P.S. § 811. Citing to 53 P.S. § 46190 and § 46171, Defendant also argues that although the Borough Code does apply to any borough having a police force of three or more members, part-time, hourly officers like Risk are not included in the definition of "police force." Consequently, Defendant argues that neither the Borough Code nor the Police Tenure Act apply in this case, and the Court erred in taking judicial notice that the Police Tenure Act, with its seniority provisions, applied to Plaintiff. In response, Plaintiff argues that the Borough Code, which also provides for layoffs in order of reverse seniority, defines "police force" as those who devote their normal working hours to police duty, rather than those defined as "special police" including metermaids, special school police, "extra police" serving from time to time or on an hourly or daily basis, and auxiliary policemen. See 53 P.S. § 46195. Plaintiff notes that Risk devoted normal working hours to police duty, and therefore would fall under the protections of the seniority furlough provision. Plaintiff concludes that regardless of whether the Police Tenure Act or Borough Code applies, the reverse seniority furlough provision applies to Risk and the Court's judicial notice that the Police Tenure Act applied would be harmless error.
Whether the Police Tenure Act or Borough Code applies, Risk was protected by the seniority furlough provisions. Although Plaintiff had another job as a school bus driver, no evidence was presented at trial that Plaintiff was ever unavailable when needed by Defendant; in fact, Risk's other job in no way conflicted with the needs of Defendant: Chief Roberts worked alone during these hours and consequently, would have no need to schedule Plaintiff during that time. Moreover, no evidence was presented that Plaintiff's duties placed him within the definitions of "special police," "extra police," or "auxiliary policemen." Even if the Court were to excise this evidence regarding furlough on the basis of seniority, the evidence of pretext presented at trial was sufficient to support the jury's verdict as will be discussed at Part II. A. 9., infra.
On summary judgment, the Court granted judgment as a matter of law on Counts I through IV of Plaintiff's Complaint holding that "[p]laintiff Risk can premise no claim of Constitutional violation on a restriction of his right to wear a symbol of his Christian beliefs on the lapel of his police uniform while performing his duties in the community." (Doc. No. 49 at 6.) Defendant now argues that in light of this ruling on summary judgment, the Court erred in allowing Risk to introduce evidence that Chief Roberts repeatedly asked Risk to remove his cross pin. Defendant contends that in light of the Court's ruling on summary judgment, all evidence, argument and jury issues concerning the cross pin "should have dropped out of the case entirely." (Doc. No. 136 at 16.) Specifically, Defendant complains of admission of the following: 1) Plaintiff wore a cross pin on the lapel of his police uniform "as a sign of his strong Christian beliefs;" 2) Chief Roberts "ordered Risk to stop wearing a cross on his police uniform and Risk protested to both the Borough Council President and Dan Johnson, the Council Police Department liason, but Roberts insisted; 3) On December 7, 2004, counsel corresponded with Chief Roberts, with copies to each member of Borough Council, requesting that Risk be permitted to wear his cross.
Plaintiff responds that although Plaintiff could premise no Constitutional claim on the restriction of his right to wear a cross pin, the evidence admitted at trial was highly relevant to his Title VII claims for two reasons: 1) the evidence was probative of Chief Robert's anti-religious animus, and highly relevant in light of the fact that Roberts was Plaintiff's direct supervisor and an individual who likely influenced the decision to fire Plaintiff; and 2) the letter from Plaintiff's attorney complaining that the forced removal of the cross pin was religious discrimination amounted to protected activity for purposes of Plaintiff's retaliation claim.
The Court found this evidence to be highly relevant to Plaintiff's Title VII claims pursuant to Federal Rule of Evidence 401. Moreover, it was not barred by any other Federal Rule of Evidence. First, evidence that Roberts objected to the cross pin was not offered for its truth, but to show his state of mind, especially in light of the fact that no other individual working for the Defendant objected to Plaintiff's pin. Further, contrary to his trial testimony, Chief Roberts never told Risk or anyone else that his reason for objecting to the cross pin was based on Constitutional grounds. Consequently, this evidence was not hearsay, but offered to show Chief Roberts state of mind. Moreover, Roberts' objection to the cross pin is relevant to Plaintiff's retaliation claim because Plaintiff's complaints about Roberts' ordering him to remove the cross pin constituted protected activity in that Plaintiff had a good faith belief that the conduct he opposed violated Title VII. Clark County Sch. Dist. V. Breeden, 532 U.S. 268, 269-70 (2001). Consequently, the evidence was properly admitted and highly relevant to the issue of pretext, and Plaintiff's retaliation claim pursuant to Title VII.
3. Plaintiff's Decertification
a. Plaintiff's Testimony Regarding His Decertification
The Defendant argues that the Court erred in allowing Plaintiff's testimony regarding his police decertification. Plaintiff had moved in limine to exclude this evidence, and Defendant argued in opposition. (Doc. Nos. 60, 64.) Relying on Federal Rule of Evidence 608 (b), the Court ruled that Plaintiff's decertification was admissible for purposes of impeaching his character for truthfulness only, and Risk's testimony concerning his decertification was limited to that effect. (Tr. 3/18/08 at 14-30.) No evidence was introduced regarding the specifics of the Pennsylvania Municipal Police Officers' Education and Training Commission's ("MPOETC") decision to revoke Plaintiff's certification. Plaintiff testified at trial that he was decertified as a police officer. (Tr. 3/25/08 at 140-41, 184-85.) He testified to MPOETC's determination that his certification was issued in error, specifically about the confusion in the meanings of "full time" and "full time capacity" in Pennsylvania and Ohio. (TR. 3/25/08 at 140-42.) Risk's testimony did not dispute MPOETC's decision, but explained that he did not receive his certification as a result of an intentional lie. (Tr. 3/25/08 at 140-42.) Such testimony was properly admitted in light of the fact that Defendant attempted to impeach Risk's character for truthfulness by introducing evidence of his decertification. See Fed. R. Evid. 608(b).
Similarly, Defendant argues that MPOETC's "decision was fully effective not only to revoke plaintiff's certification ab initio, but also to foreclose plaintiff under the doctrine of collateral estoppel or issue preclusion from contesting in this Court the Commission's decision and the findings of fact and legal conclusions that led to and were incorporated into that decision." (Doc. No. 136 at 19.)
For the reasons discussed above, the doctrine of preclusion in inapplicable. The Court did not admit any evidence concerning the details of MPOETC's decision to revoke Plaintiff's police certification. At issue in this case were Plaintiff's claims of religious discrimination under Title VII, not the facts and circumstances leading up to Plaintiff's certification, and the subsequent revocation of his certification. The Court admitted no evidence contesting MPOETC's decision.
4. Amy Prevost's Conversation with Chief Roberts
Defendant contends that the Court should have excluded the testimony of Amy Prevost concerning a conversation she had with Chief Roberts. Specifically, Defendant contends that the comments made by Roberts were his "personal opinion" about what might happen in the future concerning the layoff of certain police officers, "not a statement of fact based on personal knowledge" because he was not the actual decision maker. (Doc. No 136 at 22.)
Discriminatory comments by non decision makers are admissible as circumstantial evidence of discrimination. Abrams v. Lightolier, Inc., 50 F.3d 1204, 1214 (3d Cir. 1995). Moreover, evidence at trial demonstrated that Council member Johnson asked Roberts about the availability of certain officers; and therefore, at a minimum, Roberts participated in the decision to terminate Risk.
The statements made by Roberts were not hearsay as they were not offered to prove the truth of the matter asserted. See Fed. R. Evid. 801(c). Roberts told Prevost that Risk's church interfered with his job. (Tr. 3/24/08 at 50.) Prevost responded that that was not a good reason to let go of a good officer because they go to church. Prevost testified that in response, Roberts laughed. (Tr. 3/24/08 at 51.) Prevost also prepared a written statement that was sent by Risk's legal counsel to all Borough Council members wherein she described this conversation. (Tr. 3/24/08 at 52.) Prevost also testified about a comment made by another officer of the Defendant, Lt. Murray, that she overheard him tell another officer about the need to carry Tylenol in case Risk started preaching about church and God. (Tr. 3/24/08 at 53.) She further testified that she told Roberts about the "Tylenol comment" and that in response, Roberts laughed. (Tr. 3/24/08 at 53.) These statements were not offered to show that in fact, Risk's church interfered with his job, or that officers needed to carry Tylenol with them in case Risk spoke of his religion, but were offered as circumstantial evidence of discrimination: that Roberts made the statement about laying off an officer because of his religious practices, that others on the force ridiculed Risk for his beliefs, and that all members of Borough Council were aware of Chief Roberts' opinion as to who should be let go in the upcoming layoffs. That is, they were offered as circumstantial proof of Roberts' state of mind, or discriminatory animus, and of the managerial viewpoint concerning officers who may have religious obligations that interfere with work. The Prevost written statement was accompanied by a letter from Plaintiff's counsel complaining of discrimination. Hence, it was offered to show Defendant was aware of Plaintiff's opposition to what he believed to be discriminatory conduct, and was relevant to show protected activity, an element of his retaliation claim. SeeAbramson v. William Patterson College of New Jersey, 260 F.3d 265, 287-88 (3d Cir. 2001) (citation omitted).
Further, even if such statements were hearsay in that they were offered to prove the truth of the matter asserted, there were admissible under Federal Rule of Evidence 801(d)(2)(D). That is, they were made by an agent of the Defendant, Chief Roberts, concerning a matter within the scope of his employment or agency, and therefore admissible as a party admission. Evidence at trial demonstrated that Roberts was an agent ...