                                                                   NOT PRECEDENTIAL



                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  ________

                                       No. 14-2946
                                       _________

                                   JOHN J. MURPHY,
                                               Appellant

                                             v.

                                 RADNOR TOWNSHIP
                                     ________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 2-11-cv-04743)
                      District Judge: Honorable Petrese B. Tucker
                                        _______

                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 20, 2015

               Before: SMITH, JORDAN and SLOVITER Circuit Judges.

                                 (Filed: March 20, 2015)

                                  ___________________

                                       OPINION
                                 ____________________





  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SLOVITER, Circuit Judge.


       Plaintiff John J. Murphy (“Murphy”) filed this suit against the Township of

Radnor (“Radnor”) alleging violations of the Uniformed Services Employment and

Reemployment Rights Act (“USERRA”) and the Pennsylvania Military Affairs Act

(“PMAA”). Specifically, he alleged that Radnor failed to hire him for the position of

Township Manager based on his military obligations in the United States Air Force

Reserves. After a six-day trial, the jury returned a verdict finding that Murphy’s military

obligations were a motivating factor in the failure to hire him but that Radnor would have

denied Murphy employment even if it had not considered his military obligations. The

District Court then denied Murphy’s motion for a new trial. Murphy appealed. We will

affirm.1

                                             I.

       We write primarily for the parties and assume their familiarity with the facts. In

brief, Murphy entered the Air Force in 1997 and remained on active duty until 2002,

when he transitioned into the active reserves. While in the reserves, Murphy was

required to report for reserve duty 35 days per year. In 2009, Murphy applied for the

position of Township Manager for Radnor. Murphy was interviewed on July 22, 2009 by

the Interim Township Manager John Granger (“Granger”) and four Commissioners on

Radnor’s Board of Commissioners (collectively “the Board” or “the Commissioners”):

1
  The District Court had jurisdiction over the USERRA claim pursuant to 38 U.S.C. §
4301 et seq. and 28 U.S.C. § 1331. The District Court had jurisdiction over the state-law
PMAA claim pursuant to 28 U.S.C. § 1367. We have jurisdiction over the final order and
judgment of the District Court pursuant to 28 U.S.C. § 1291.
                                             2
Hank Mahoney, Enrique Hervada, John Fisher, and Chairman Tom Masterson

(“Masterson”). According to Murphy, during the interview, he was “grilled,” primarily

by Masterson, about his reserve requirements. App. at 198-99. Masterson allegedly

expressed concerns about who would do the Township Manager’s work when Murphy

was fulfilling his reserve duties, and Granger purportedly interjected and referenced

federal prohibitions on discrimination in employment decisions based upon an

individual’s membership in, or obligations to, the military. Murphy testified that on July

27, 2009, Granger called and informed him that the Board had decided not to bring him

back for a second interview and that a few of the Board members “had serious concerns

about [Murphy’s] ongoing military commitment.” App. at 205-10.

       Granger denied ever saying this, and he and the Board members testified that

Murphy’s military obligations were not the reason that Murphy was not selected for a

second interview. According to their testimony, the Commissioners believed that

Murphy had overstated his accomplishments in his resume. Specifically, his resume

claimed that he had developed a plan for economic recovery in Wilkes-Barre when in

reality he had simply implemented a plan that was developed by an outside consulting

firm. The Commissioners also testified that other candidates were more qualified for the

position than Murphy.

       Masterson—allegedly as a result of his antimilitary animus—also informed the

other Commissioners about two additional issues relating to Murphy’s candidacy. First,

Masterson pointed out typographical errors in Murphy’s cover letter, but he did not do

the same with the submissions of other candidates who were given second interviews

                                            3
despite the existence of spelling and typographical errors in their cover letters. Second,

Masterson informed the Board about a voicemail he received from Murphy’s younger

brother, Patrick Murphy, a Congressman from Pennsylvania. Murphy’s brother’s

voicemail stated, “This is Congressman Pat Murphy. I am calling in support of or about

my brother J.J. Murphy’s application to be Township Manager in Radnor. Please call

me.” App. at 753. According to some of the Commissioners, the call was troubling

because they did not want political interference with the selection or operations of the

Township Manager.

       Masterson testified that, following the first round of interviews, the consensus of

the Commissioners was that Robert Zienkowski (“Zienkowski”), Dave Kraynik

(“Kraynik”), and Peter Miller (“Miller”) were the top candidates, and all three were

offered second interviews. Before his second interview, Zienkowski withdrew from the

process because of a family illness. After their second interviews, Kraynik and Miller

were offered the position, but they both turned it down. At that point, the Commissioners

decided to offer Chris Canavan (“Canavan”) a second interview because he interviewed

well and came with good recommendations. Canavan was offered the position, but he

too rejected it. After Canavan rejected the position, Zienkowski re-entered the process

and was ultimately offered the position, which he accepted in March 2010.

       Murphy filed suit against Radnor alleging violations of the USERRA and the

PMAA. The District Court subsequently granted summary judgment to Radnor. Murphy

appealed, and this court reversed, reasoning that the District Court had applied the wrong

standard under USERRA for summary judgment. See Murphy v. Radnor Twp., 542 F.

                                             4
App’x 173 (2013). The matter proceeded to a six-day trial between February 24, 2014

and March 5, 2014. The jury returned a verdict in favor of Radnor. The jury decided

Murphy proved “by a preponderance of the evidence that his obligation for service in the

military was a motivating factor in Radnor Township’s decision not to hire him for the

position of township manager,” but also found that Radnor proved “by a preponderance

of the evidence that it would have denied Mr. Murphy the position of Township Manager

even if Radnor Township had not taken Mr. Murphy’s obligation for service in the

military into account.” App. at 948.

       Murphy then moved for a new trial pursuant to Federal Rule of Civil Procedure

59(a). The District Court denied this motion. Murphy filed a timely Notice of Appeal.

                                             II.

                                             A.

       Murphy’s first issue raised on appeal is whether the District Court erred in

refusing to instruct the jury on the “cat’s paw” theory of liability under the USERRA.

“We review the District Court’s refusal to give specific jury instructions for abuse of

discretion, but exercise plenary review over whether the District Court gave a correct

statement of law in its jury instructions.” United States v. Friedman, 658 F.3d 342, 352

(3d Cir. 2011). “When a jury instruction is erroneous, a new trial is warranted unless

such error is harmless. An error is harmless if it is ‘highly probable’ that the error did not

contribute to the judgment.” Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606, 612 (3d

Cir. 2011) (citation omitted).



                                              5
       Both USERRA and PMAA, in pertinent part, prohibit employment discrimination

on the basis of membership in, or the obligation to perform service in, the military. See

38 U.S.C. § 4311(a); 51 Pa. Cons. Stat. § 7309. Pursuant to USERRA:

       An employer shall be considered to have engaged in actions prohibited . . .
       if the person’s membership, . . . or obligation for service in the uniformed
       services is a motivating factor in the employer’s action, unless the employer
       can prove that the action would have been taken in the absence of such
       membership, . . . or obligation for service.

38 U.S.C. § 4311(c)(1). The analysis of a PMAA claim mirrors that of a claim under

USERRA. See 51 Pa. Cons. Stat. § 103.

       The cat’s paw theory of liability under USERRA, adopted by the Supreme Court

in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), provides that “if a supervisor

performs an act motivated by antimilitary animus that is intended by the supervisor to

cause an adverse action, and if that act is a proximate cause of the ultimate employment

action, then the employer is liable under USERRA.” Id. at 1194 (footnotes omitted).

Based on Staub, at trial, Murphy requested the following jury instruction:

       If a participant in the decision-making process performs [an] act motivated
       by antimilitary animus that is intended by the participant to cause an
       adverse employment action, and if that act is a proximate cause of the
       ultimate employment action, then the employer is liable under [USERRA],
       notwithstanding that the participant did not make the ultimate employment
       decision.


App. at 14. Radnor objected to Murphy’s proposed instruction, reasoning that Staub’s

cat’s paw theory applied where a supervisor influenced the decision making of others

with regard to a subordinate, but here, “there wasn’t any testimony that anybody was



                                             6
influenced” by Masterson. App. at 828. The District Court agreed and denied the

requested instruction.

       Murphy argues that Masterson, who led the interview, exhibited an antimilitary

animus against Murphy and should be treated as a supervisor for purpose of application

of the cat’s paw theory. The District Court held, and Radnor argues on appeal, that

Staub’s cat’s paw theory applies only where there is a “nonbiased decision-maker [who]

is influenced by a biased managerial employee.” See Tucker v. Thomas Jefferson Univ.,

484 F. App’x 710, 713 (3d Cir. 2012). Moreover, “[n]one of the Commissioners

testified that they . . . were influenced by Masterson in the way they voted.” Appellee’s

Br. at 37.

       The District Court further reasoned, and Radnor also argues on appeal, that even if

the cat’s paw instruction should have been given to the jury, the failure to do so was

harmless because “the cat’s paw issue was only relevant to the first question on the

verdict sheet, i.e., whether the military obligation was a ‘motivating factor.’” Id. at 41-

42; App. at 16-17 (quoting Staub, 131 S. Ct. at 1191 (“The central difficulty in this case

is construing the phrase ‘motivating factor in the employer’s action.’”)). The jury found

in Murphy’s favor on this first question, and the second question, on which the jury found

against Murphy, “does not concern what is a motivating factor.” App. at 17. Thus,

Murphy could not have been prejudiced by any error.

       We agree with the District Court that any alleged error in the failure to give the

requested instruction was harmless. Even assuming the failure to give the proposed

instruction was erroneous, we conclude that it is “‘highly probable’ that the error did not

                                              7
contribute to the judgment,” and, the error, if any, was harmless. Harvey, 635 F.3d at

612.

                                             B.

       Murphy also appeals the District Court’s decision to permit Radnor to present the

testimony of Miller, Kraynik, and Canavan, the three candidates who, following a second

interview, were offered the position of Township Manager in 2009. The District Court

concluded that the testimony of Miller, Kraynik, and Canavan was relevant and should be

admitted.

       We affirm the District Court’s ruling on the admission of the witnesses’ testimony

for substantially the reasons stated by the District Court. The admission of evidence is

firmly rested within the judgment of the district court, and we review for abuse of

discretion. See Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir. 1993). Given the

clear relevancy of the qualifications of the candidates and the fact that witnesses typically

are permitted to testify as to their present employment as background information, the

District Court did not abuse its discretion in admitting this testimony over Murphy’s

objection.

                                             III.

       Accordingly, we will affirm the judgment of the District Court.




                                              8
