                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-2006

Collins v. Alco Parking Corp
Precedential or Non-Precedential: Precedential

Docket No. 05-2802




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Recommended Citation
"Collins v. Alco Parking Corp" (2006). 2006 Decisions. Paper 992.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/992


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                                  PRECEDENTIAL


  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT



                NO. 05-2802



             JOHN M. COLLINS,
                      Appellant

                      v.

     ALCO PARKING CORPORATION



On Appeal from the United States District Court
   for the Western District of Pennsylvania
            (D.C. No. 03-cv-1762)
 District Court Judge: Hon. Gary L. Lancaster
          ______________________

  Submitted Under Third Circuit LAR 34.1(a)
              March 28, 2006




                      1
 Before: RENDELL, SMITH and BECKER*, Circuit Judges

                     (Filed: May 22, 2006)
                  ________________________

                  OPINION OF THE COURT
                  ________________________


BECKER, Circuit Judge

       John M. Collins filed suit against Alco Parking
Corporation (“Alco”), alleging that the company fired him
because of his age in violation of the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq. The jury returned a
verdict in favor of Alco, and the District Court entered final
judgment accordingly. Collins now appeals from that order.
The appeal raises a number of interesting questions about the
application of the doctrine of plain error under this Court’s
jurisprudence, and we take this opportunity to explicate them.
We will affirm.
                                 I.
       Collins worked for Alco Parking Corporation for nine
years, first as a part-time attendant and then as a full-time Lot
Manager. This case revolves around an incident in which a
customer, John Miller, was overcharged by one of the
company’s employees. Miller parked two cars in the lot.


*The Honorable Edward R. Becker passed away on May 19, 2006.
This decision was transmitted to the Clerk for processing prior to that
date.

                                  2
Although the fixed rate was $20.00 per car, Miller paid $50.00
per car. The next day, he called the company to complain of the
overcharge.
        At trial, the parties presented dramatically different
accounts of what happened next. Alco claimed that Collins
confessed to having taken the extra money and that this was the
reason for his termination. Four employees testified that they
heard Collins’ confession.
        Collins denied making a confession and presented
evidence purporting to prove that he was not and could not have
been the employee of whom Miller complained. Specifically,
Collins asserted that on the day in question he was working
inside the lot, where he directed traffic and kept count of spaces.
According to Collins, any customer who obtained parking in the
lot would have first encountered two other employees: the “flag
man,” whose job was to direct customers from the street into the
lot; and the “cash man,” who sat in the booth, collected fees and
let customers through the gate. Under this arrangement, Collins
insists, he would only have interacted with a customer, if at all,
after the customer had already paid his fees.
        Collins identified several additional problems with the
company’s story. Miller said he was overcharged by a
“white/gray haired man wearing a parking jacket,” but this
description fit the flag man and the cash man as well as Collins.
Moreover, Collins alleged, the flag man had been disciplined in
the past for soliciting extra money from
customers, and the cash man turned in a false report of the
payments made on the day in question. Collins, in contrast, had
never been the subject of a complaint during his nine years of
work; nor had he ever been disciplined for violating company
policies. Collins further alleged that Alco knew that he was not

                                3
responsible for the overcharge, and that the company fired him
anyway because the employee at fault was hard to discipline due
to his union membership.
        The jury rendered a verdict for Alco, and the District
Court entered judgment accordingly. Collins raises two issues
on appeal: the District Court’s instruction concerning the
availability of attorney fees, and the District Court’s instruction
on pretext.
                                II.
        Under Federal Rule of Civil Procedure 51(c), “A party
who objects to an instruction or the failure to give an instruction
must do so on the record, stating distinctly the matter objected
to and the grounds of the objection.” “Where a party properly
objects to a jury instruction under Fed. R. Civ. P. 51, we
exercise plenary review to determine whether the instruction
misstated the applicable law.” Franklin Prescriptions, Inc. v.
New York Times Co., 424 F.3d 336, 338-39 (3d Cir. 2005)
(citations omitted). “Where a party fails to object properly, we
may review for ‘plain error in the instructions affecting
substantial rights.’” Id. (quoting Fed. R. Civ. P. 51(d)(2)).
        Collins contends that the plain error standard is
inapposite because he complied with the requirements of Rule
51(c). We disagree. With respect to the attorney fee instruction,
Collins notes that at the charging conference he told the District
Court that “[attorney fees are] not something the jury decides
on. [They’re] done on a fee petition to the Court purely as a
legal matter.” App. 236:11-15. However, it is far from clear
that this observation apprised the District Court that it was not
allowed to deliver its proposed instruction. Indeed, Collins
prefaced his observation by stating: “I honestly don’t know what
the law is on [the instruction on attorney fees]. I’ve never seen

                                4
it before.” Given his own doubt as to the propriety of giving the
instruction, Collins’ comment can hardly be considered an
objection. Moreover, Collins did not cite any authority holding
that the instruction was error, did not explain why the instruction
might cause him harm, conceded that the instruction contained
a correct statement of the law, expressed his uncertainty as to
the propriety of the instruction at the wrong time (when the
District Court had asked only for objections challenging the
correctness of the instructions, not the propriety of giving them),
and failed to raise his concern at the right time (when the
District Court asked the parties if they thought that the Court
should not give any of its proposed instructions). Under these
circumstances, we cannot say that Collins registered an
objection to the attorney fee instruction, much less that he
“stat[ed] distinctly the matter objected to and the grounds of the
objection,” as required by Rule 51.
        As to the pretext instruction, Collins does not cite any
portion of the record in which he objected to the District Court’s
instruction. Collins did offer alternative instructions, but
“[m]erely proposing a jury instruction that differs from the
charge given is insufficient to preserve an objection.” Franklin
Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 339
(3d Cir. 2005) (citations omitted).
        Collins invokes United States v. Russell, 134 F.3d 171
(3d Cir. 1998), and Smith v. Borough of Wilkinsburg, 147 F.3d
272 (3d Cir. 1998), for the proposition that “[a] party complies
with Rule 51 by putting the trial judge on notice of the
requirements for a proper charge.” Collins’ Reply Br. at 3.
Neither case is availing here. Unlike the appellant in Russell
(which interpreted an analogous provision of the Federal Rules
of Criminal Procedure), Collins did not inform the court that the

                                5
instructions in question were erroneous. And Smith simply
affirmed the proposition that “a definitive ruling from the trial
court rejecting a requested instruction is sufficient to preserve
the issue for appeal.” 147 F.3d at 276. Collins does not point
to any explicit rejection of his proposed instructions, and mere
omission of a requested instruction from the final charge does
not constitute a “definitive ruling” excusing the failure the
object for purposes of appeal. Cf. Fed. R. Civ. P. 51(d)(1)(B)
(2003 Amendment to Rule 51, explaining that a party who does
not properly object to a court’s decision not to give a proposed
instruction may only assign that decision as error if “the court
made a definitive ruling on the record rejecting the request.”)
(emphasis added). Hence, Smith is likewise inapposite.
       Both instructions are thus properly reviewed for plain
error. “Under the discretionary plain error standard, we will
reverse the trial court only where a plain error was fundamental
and highly prejudicial, such that the instructions failed to
provide the jury with adequate guidance and our refusal to
consider the issue would result in a miscarriage of justice.”
Franklin Prescriptions, Inc. v. New York Times Co., 424 F.3d
336, 339 (3d Cir. 2005) (quotations omitted).

                               III.
        Turning to the merits, Collins first challenges the
following instruction on attorney’s fees:
        You are instructed that if plaintiff wins on his
        claim, he may be entitled to an award of attorney
        fees and costs over and above what you award as
        damages. It is my duty to decide whether to
        award attorney fees and costs, and if so, how
        much. Therefore, attorney fees and costs should
        play no part in your calculation of any damages.
App. 265: 19-24. Because Collins concedes that the above
statement correctly sets forth the law, the only issue is whether
the District Court committed plain error affecting substantial
rights by giving the instruction at all. Collins contends that the

                                6
instruction was error because it may have caused the jury to
decide the case against him in order to avoid handing him a
windfall in the form of attorney fees.
        We need not and do not decide now whether a district
court commits error by informing a jury about the availability of
attorney fees in an ADEA case. Assuming arguendo that an
error occurred, such error is not plain, for two reasons.
        First, “error is plain only where the proper course is
‘clear under current law.’” Franklin Prescriptions, 424 F.3d at
343 (quoting United States v. Vazquez, 271 F.3d 93, 100 (3d Cir.
2001) (en banc)). Collins cites no controlling authority holding
that a district court may not inform the jury of the availability of
attorney fees. Nor do we think that such a conclusion flows
ineluctably from the logic of our prior cases. While this Court
has repeatedly affirmed the principle that district courts should
protect juries from irrelevant and prejudicial instructions, see,
e.g., Watson v. SEPTA, 207 F.3d 207 (3d Cir. 2000); Curnow v.
West View Park Co., 337 F.2d 241 (3d Cir. 1964), it is not
“obvious” or “plain” that an instruction directing the jury not to
consider attorney fees falls into this category. In fact, it is at
least arguable that a jury tasked with computing damages might,
absent information that the Court has discretion to award
attorney fees at a later stage, seek to compensate a sympathetic
plaintiff for the expense of litigation.           Of course, in
acknowledging this possibility we do not imply that a fee-
shifting instruction is proper–only that a well-crafted instruction
is not obviously at odds with our prior cases.
        Second, we cannot say that the District Court’s error, if
any, was “fundamental and highly prejudicial.” Several
considerations support this conclusion. First, the whole point of
the District Court’s instruction was that the jury should not
consider attorney fees in rendering a verdict. We see no reason
to think that the jury was unable to heed this simple directive.
Second, the instruction stated only that Collins might be
awarded attorney fees. The jury thus had no reason to think that
it had to take the drastic step of returning an incorrect verdict as

                                 7
to liability simply to ensure that Collins did not reap this
potential gain. Third, the District Court did not unduly
emphasize the instruction on attorney fees. The Court’s
instructions take up 189 lines of text; only six address attorney
fees. Moreover, the instruction on attorney fees was delivered
at the end of the court’s guidance on how to compute damages.
The jury thus had no cause to think that it should consider the
potential for fee shifting in deciding whether the company
discriminated against Collins. Fourth, the jury in this case had
ample basis for concluding that Collins was not the victim of
age discrimination. Four employees testified that they heard
Collins confess that he overcharged the complaining customer,
and Collins adduced scant evidence of discriminatory intent.
        In short, Collins would have us believe that there is some
reasonable possibility that the jury, in order to eliminate the
chance that Collins might be awarded attorney fees, took the
disproportionate step of returning a verdict against him even
though it believed he was the victim of age discrimination,
notwithstanding the District Court’s clear instructions to the
contrary. In our view, such a theory is too implausible to
support a finding of plain error.
        A contrary holding is not required by the two cases on
which Collins principally relies. See Brooks v. Cook, 938 F.2d
1048 (9th Cir. 1991) (holding that the district court abused its
discretion by telling the jury about the right of a prevailing
plaintiff to attorney fees under 42 U.S.C. § 1988); Fisher v. City
of Memphis, 234 F.3d at 318 (6th Cir. 2000) (concluding that the
district court did not err in failing to instruct the jury about
attorney fees). These cases are distinguishable for two reasons.
First, neither case applied the plain error standard of review.
Second, neither case involved the kind of instruction at issue
here–one that made clear that any determination regarding fee
shifting was the responsibility of the court, and that
unambiguously directed the jury not to consider attorney fees
during the course of its deliberations. See Brooks, 938 F.2d at
1051 (noting that the trial court advised the jury: “If you ...

                                8
award a nominal figure as damages, and thus give plaintiff a
souvenir judgment, you are entitling plaintiff, as the prevailing
party in this lawsuit, to ask the Court at a later stage of the
proceeding to award him attorney’s fees commensurate to the
value of his attorney’s services in this case.”) (emphasis added);
Fisher, 234 F.3d at 319 (affirming decision not to give
instruction on attorney fees).
        In sum, the District Court did not commit plain error by
informing the jury that Collins might be able to recover attorney
fees.
                                IV.
        Collins next claims that the District Court misstated the
law of pretext in four ways: first, by instructing the jury to
ignore evidence that Alco’s stated reason for firing Collins was
false; second, by failing to instruct the jury that it could infer age
discrimination from the defendant’s allegedly shifting and
insincere explanations; third, by instructing on circumstantial
evidence that was not part of the record; and fourth, by
inadvertently suggesting that the jury should only find the
company’s explanation pretextual if it was wildly implausible.
None of these arguments is persuasive.
        First, the District Court did not direct the jury to ignore
evidence that Alco’s stated reason for firing Collins was false.
To the contrary, the District Court correctly stated: “If you find
based on the facts that defendant’s explanation for firing Mr.
Collins is not worthy of belief, then you may, but need not, draw
the inference that age discrimination was the true reason that
Mr. Collins was fired.” App. 261.
        Collins complains that this instruction, although correct,
was vitiated by the following admonition:
        You are not here to decide whether defendant’s
        decision was a fair one, an unkind one, or a wise
        one. Nor are you here to clear up the mystery of
        who overcharged the customer. The only
        question you are to decide is whether plaintiff’s
        age played an actual role in defendant’s decision-

                                  9
       making process to let him go and his age had a
       determinative influence on that decision.
App. 263 (emphasis added). Collins insists that the underscored
part of the above statement steered the jury away from an
important prong of his case: that he was not, and could not have
been, the employee who overcharged the complaining customer.
Such evidence was relevant, he reasons, because it makes no
sense to think that he would have confessed to having done
something wrong when he was not the one at fault. If the jury
believed Collins’ evidence, it was thus likely to find that the
company’s alleged reason for firing him was a lie, from which
the jury might reasonably have inferred that the company’s real
reason for firing him was his age. Hence, Collins concludes, the
District Court erred by discouraging the jury from focusing on
evidence that Collins was not the one to accept the overcharge.
       We do not think that the District Court’s failure to
connect these dots explicitly rises to the level of plain error. The
District Court was technically correct to say that the real issue
was not who overcharged the customer, but whether the
company fired Collins because of his age. While the Court
might have more fully explained the relationship between these
two issues, its failure to do so cannot be deemed a
“fundamental” and “highly prejudicial” error.               This is
particularly true because the Court clearly and repeatedly
advised the jury of the correct legal standard: “If you find based
on the facts that defendant’s explanation for firing Mr. Collins
is not worthy of belief, then you may, but need not, draw the
inference that age discrimination was the true reason that Mr.
Collins was fired.”
       Second, the District Court did not commit plain error by
not expressly instructing the jury that it might infer
discriminatory motive from the company’s allegedly shifting
and insincere explanations for why it fired Collins. Notably,
Collins’ preferred formulation presupposes that the company’s
explanations were “shifting” and “insincere”; given that these
characterizations are not compelled by the record, the District

                                10
Court reasonably declined to instruct the jury in such a way as
to cast doubt on the truth of the company’s defense. Moreover,
as noted above, the District Court correctly informed the jury
that it might infer that age discrimination was the true reason for
firing Collins if it found that defendant’s explanation was not
worthy of belief. The jury surely did not need the court to tell
it that shifting and insincere explanations are incredible.
         Third, the District Court did not err by instructing the
jury on circumstantial evidence that was not part of the record.
Collins complains of the following statement:
         I cannot give you an exhaustive list of the types of
         circumstantial evidence that tends to indicate
         unlawful discrimination, but circumstantial
         evidence of unlawful discrimination often
         includes evidence such as the following:

       Employment decisions that represent a departure
       from defendant’s standard practice, suspect
       methods of decision-making, proof of a history of
       discrimination, evidence of a hostile attitude
       toward older employees, evidence of negative
       stereotypical attitudes expressed about older
       employees, and statistical proof.

App. 261.
        Collins contends that this instruction was confusing in
that it might have caused the jury to conclude that he did not
prove discrimination simply because he did not submit the types
of evidence to which the District Court referred. We disagree.
The District Court expressly stated that its examples were
illustrative rather than exhaustive. Moreover, Collins arguably
submitted at least two of the types of evidence to which the
District Court referred: evidence of a hostile attitude toward
older employees, and evidence of negative stereotypical
attitudes expressed about older employees. See Collins’ Br. at
12 (citing evidence that the company official who fired Collins

                                11
thought of him as “‘old Jack,’ an ‘unmotivated’ man who should
‘retire and go on Social Security’ because ... he ‘didn’t have the
will to work hard.’”). It is thus wrong to say that the District
Court’s discussion of circumstantial evidence was wholly
irrelevant to Collins’ case.**
        Finally, the District Court did not create the impression
that the company’s explanation for firing Collins should be
deemed worthy of belief unless it was patently absurd or
manifestly false. Illustrating its point that the role of the jury
was to decide whether the company’s explanation was worthy
of belief–and not whether the company was right–the District
Court stated:

               I’ll give you an admittedly broad example
       of this distinction. Suppose one of you came back
       from lunch late today and you told me that the
       reason you were late was that you misheard me
       when I said be back at 1:20 and thought I said be



 ** Collins’ heavy reliance on Smith v. Borough of Wilkinsburg,
147 F.3d 272 (3d Cir. 1998), is misplaced. As Collins observes,
Smith expressed the view that “[t]he trial court must ensure that
the jury be given full and complete instructions by relating the
law to the relevant evidence in the case,” id. at 279, and that
“the jury must be given the legal context in which it is to find
and apply the facts,” id. at 280. But Smith did not hold that a
district court commits reversible error whenever an instruction
is not perfectly tailored to the evidence introduced at trial.
Instead, the Smith Court offered the above statements to explain
its holding that the district court erred in refusing to instruct the
jury that it was permitted to infer discrimination if it found that
the defendant’s explanation for its adverse employment action
was pretextual. See id. at 281. It is undisputed that the District
Court in our case so advised the jury. No more was needed to
satisfy the rule set forth in Smith.

                                 12
       back at 2:20. You would be wrong. I said 1:20,
       not 2:20, but your explanation that you
       misunderstood me would not necessarily be
       unworthy of belief. I could believe you that you
       misunderstood me, even though you were wrong.
               On the other hand, if you told me that you
       were late because a flash flood hit Grant Street
       and you were prevented from getting back to the
       courthouse by flood waters. Given the fact that it
       wasn’t raining at lunchtime and the other jurors,
       they all made it back to the courthouse, and Grant
       Street is on high ground, your explanation would
       be so weak, implausible, and inconsistent that it
       would be unworthy of belief.
               Of course, the circumstances surrounding
       Mr. Collins’ firing are not that clear-cut. That is
       why we need you to decide based on the
       instructions that I have given you and all the facts
       whether or not defendant’s explanation is worthy
       of belief.
App. 262-263.
       We reject Collins’ claim that this instruction constitutes
reversible error. The District Court did not say that the
company’s story could only be deemed unworthy of belief if it
was as preposterous as the hypothetical juror’s flash flood
excuse. Instead, the Court prefaced its analogy by noting that it
was giving an “admittedly broad example,” and it concluded by
observing that “the circumstances surrounding Mr. Collins’
firing are not that clear-cut.” Most importantly, the Court
correctly stated the law governing pretext: that the jury could
but did not have to draw an inference of discrimination if it
concluded that the employer’s explanation for firing Collins was
not credible.
       In sum, Collins fails to show that the District Court
committed reversible error by erroneously and/or incompletely
instructing the jury on pretext.

                               13
                               V.
       For the reasons stated above, we will affirm the judgment
entered by the District Court.




                              14
