                                                  NOT PRECEDENTIAL
            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                       ________

                           No. 12-4329
                           _________

                   LAURA WATSON
                                   Appellant
                             v.
             BOROUGH OF SUSQUEHANNA;
         MIKE MATIS, Individually, Council President;
    WILLIAM PERRY, JR., Individually, Council Vice-President
                         ________

          On Appeal from the United States District Court
              for the Middle District of Pennsylvania
                      (D.C. No. 3-09-cv-294)
           District Judge: Honorable Robert D. Mariani
                             _______

            Submitted Under Third Circuit LAR 34.1(a)
                          July 9, 2013

Before: GREENAWAY, JR., SLOVITER, and BARRY, Circuit Judges

                       (Filed: July 23, 2013)

                        _______________

                          OPINION
                        _______________
SLOVITER, Circuit Judge.

       Laura Watson appeals from the District Court‟s Order granting the Defendants‟

Motion for Judgment as a Matter of Law and vacating the jury verdict against Defendant

William Perry, Jr. We will affirm.1

                                              I.

       The following facts were established at trial. Watson was hired as a police officer

by the Borough of Susquehanna (“the Borough”) in September 2006. At all relevant

times, Michael Matis was President and Perry, Jr. was Vice-President of the Borough of

Susquehanna Depot Council (“the Council”). The Council makes decisions regarding

disciplining or terminating Borough police officers. Such decisions require a majority

vote of the Council members present.

       In May 2008, Watson brought charges against William Perry, Sr., father of Perry,

Jr., for filing false reports. Watson provided sworn testimony in connection with the

charges in July 2008. Perry, Sr. eventually pled guilty to the charges against him.

Shortly thereafter, Watson learned that her Section 8 housing assistance form had been

seen by some members of the Council. Watson believed the disclosure of this form

violated her rights, and she therefore confronted the Secretary-Treasurer of the Council,

Ann Stewart, who was in charge of the housing forms. According to Stewart, Watson

1
  The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3) and this
court has jurisdiction under 28 U.S.C. § 1291. We review de novo an order granting
judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b). See
Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 249 (3d Cir. 2001) (stating
that a Rule 50(b) motion is granted “only if, as a matter of law, the record is critically
deficient of that minimum quantity of evidence from which a jury might reasonably
afford relief.”) (internal quotation marks omitted).
                                              2
grew angry and threatened her. The Council called a special meeting to address the

incident between Watson and Stewart. At this meeting, Watson again became angry and

aggressive. Six members of the Council, including Perry, Jr. and Matis, voted

unanimously to terminate Watson.

       Watson brought suit against the Borough, Perry, Jr., and Matis, stating that she

was retaliated against for exercising her First Amendment right to speech.2 In May 2012,

a jury rendered a verdict in favor of all Defendants, except Perry, Jr. The jury found that

Perry, Jr. had voted to terminate Watson in retaliation for her testimony against his father.

The jury further found that only Matis and Perry, Jr. were aware of Watson‟s testimony

against Perry, Sr. but that Matis would have made the decision to terminate Watson

regardless of whether she had testified against Perry, Sr. The District Court vacated the

jury verdict and award of damages against Perry, Jr. and granted judgment as a matter of

law, finding that the jury could not hold Perry, Jr. liable because it did not find a majority

of the Council liable for retaliation.

                                              II.

A. Liability of Perry, Jr.

       Watson argues on appeal that the District Court improperly granted the Motion for

Judgment as a Matter of Law and that the verdict against Perry, Jr. should be reinstated.

To assert a First Amendment retaliation claim under Section 1983, Watson must show


2
  Watson based her suit on two instances of protected speech: her testimony against
Perry, Sr. and her report of the misconduct in relation to her housing form. Only the first
instance of protected speech is at issue in the Motion for Judgment as a Matter of Law
and the District Court‟s Order granting this motion.
                                              3
that she engaged in a protected activity and that the protected activity was a “substantial

or motivating factor in the alleged retaliatory action.” Pro v. Donatucci, 81 F.3d 1283,

1288 (3d Cir. 1996). The Borough, however, can escape liability by showing that it

“would have taken the adverse employment action regardless of whether [Watson] had

engaged in protected conduct.” Id.

       The District Court held that under the retaliation analysis, Watson had not

established the necessary causal link between her protected speech and the alleged

retaliatory action, her termination.3 The jury found that of the six Council members who

voted to terminate Watson, only Perry, Jr. did so in retaliation for Watson‟s exercise of

her free speech rights. Perry, Jr.‟s vote, alone, was not the cause of Watson‟s

termination, and his vote did not “play[] some substantial role in the relevant decision.”

Suppan, 203 F.3d at 236. Thus, the Court found that “the impartiality of the other

Council members‟ votes nullified Defendant Perry, Jr.‟s unlawfully-motivated vote.

Acting alone, he could not have violated Plaintiff‟s First Amendment rights.” App. at 26.

       This court has held that a decision-making body cannot be liable when less than a

majority of its members act with an impermissible purpose. See LaVerdure v. Cnty. of

Montgomery, 324 F.3d 123, 125-26 (3d Cir. 2003). However, we have yet to consider


3
  Watson argues on appeal that Perry, Jr.‟s vote to terminate her, as opposed to her
termination, is the retaliatory action at issue. “„A tort to be actionable requires injury.‟”
Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000) (quoting Bart v. Telford, 677 F.2d
622, 625 (7th Cir. 1982)). Watson was not injured by Perry, Jr.‟s vote in favor of
termination. If the majority of the Council, who had no knowledge of her testimony
against Perry, Sr., had not voted to terminate her, Watson would not have been affected
by Perry, Jr.‟s vote at all. The vote in favor of termination, by itself, cannot be the
retaliatory action.
                                              4
whether, in such a circumstance, a decision maker acting with an impermissible purpose

is individually liable. The Second Circuit has provided guidance on this issue:

       [I]f a majority of defendants prove that their individual votes against the
       plaintiff would have been the same irrespective of the plaintiff‟s protected
       conduct, then the defendants as a group cannot be held liable, and no
       individual defendant, even one whose proof falls short, can be so held
       because causation is absent. . . . [E]ven if some defendants based their
       decision solely on impermissible grounds, a finding that a majority of
       defendants acted adversely to the plaintiff on legitimate grounds is
       sufficient for all to escape liability.

Coogan v. Smyers, 134 F.3d 479, 485 (2d Cir. 1998).

       We agree with the reasoning of the Second Circuit and hold that Watson cannot

establish the required causal link in order to hold an individual decision maker liable

when less than a majority of the decision-making body acted for an impermissible

retaliatory reason.4 Because the jury found that Perry, Jr. was the only Council member

who acted for an impermissible purpose, and the votes of a majority of Council members

are required to terminate Watson, Perry, Jr.‟s vote alone cannot establish the causal link

between Watson‟s protected activity and her termination. The District Court did not err

in granting the Motion for Judgment as a Matter of Law.

B. Other Issues

       Watson raises several additional issues. They are meritless. First, Watson claims

that the Defendants waived their right to request the Court vacate the jury verdict because

they did not object to the verdict before the jury was dismissed. However, the

4
  Perry, Jr. may be individually liable if he threatened Watson that he would vote against
her or harassed her because of her testimony. However, Watson did not put forth
evidence of any retaliatory action taken by Perry, Jr. except for his vote in favor of
termination.
                                             5
Defendants moved for judgment as a matter of law several times during the trial and after

the verdict was rendered, presenting the very arguments on which the District Court

relied when it granted their motion.

       Next, Watson argues that the Defendants waived their objections to the jury

instructions, and that the District Court relied on the instructions being erroneous in order

to vacate the jury‟s verdict. However, the District Court did not base its ruling on the

jury instructions, but rather on a point of law related to the causation requirement.

       Watson also alleges that the Court erred by not using the Third Circuit‟s Model

Jury Instructions when instructing the jury about the relevance of the timing of events.

The Third Circuit‟s Model Jury Instructions state: “The timing of events can be relevant,

for example if [defendant‟s] action followed very shortly after [defendant] became aware

of [plaintiff‟s] protected activity.” § 7.4 (2012). The Court‟s instructions are

substantially similar to the Model Jury Instructions and in accordance with the law. See,

e.g., Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279-80 (3d Cir. 2000).5

       Next, Watson claims that Perry, Jr. can be individually liable under the “cat‟s

paw” theory of liability. Under the cat‟s paw theory, as recognized by other circuits, a

subordinate with an unlawful motive can be individually liable for the adverse

employment action taken by his/her superior, if the superior was influenced by the

subordinate. See Smith v. Bray, 681 F.3d 888, 897-98 (7th Cir. 2012) (gathering cases).

This theory is inapplicable to this case. Perry, Jr. was not a subordinate, but one of the

5
  Watson‟s argument that she was prejudiced by the length of the jury verdict form is
also without merit. The form did not require her to prove more than was required under
the law to prevail on her claims.
                                              6
decision makers. Furthermore, there is no evidence that he influenced other Council

members to vote in favor of Watson‟s termination.

       Additionally, Watson states the Court erred in instructing the jury on the “same

action” defense, when the Defendants never pled this defense.6 We need not decide this

issue. Even if the District Court erred, the “same action” defense is only applicable to

Defendant Matis. Therefore, it does not affect the outcome of the District Court‟s ruling

on the Motion for Judgment as a Matter of Law.

       Finally, Watson claims that the Court erred in admitting medical records from

eleven years prior to the events in question.7 Watson states that the admission of the

records was error, as the records are irrelevant and are prejudicial because they refer to

Watson‟s previous use of medication. We disagree. The records are relevant to the

aspect of damages and are not prejudicial, as Watson‟s own counsel had questioned a

witness regarding Watson‟s use of medication. Furthermore, although the Defendants

did not list the records as exhibits before the first day of trial, Watson had access to the

records and was given time to examine them prior to their admission. The Court did not

abuse its discretion in admitting the medical records.

                                             III.

       For the foregoing reasons, we will affirm the District Court‟s grant of the Motion

for Judgment as a Matter of Law.

6
  Defendants can avoid liability by showing that they would have taken the same adverse
action even absent the protected activity. See Nicholas v. Pa. State Univ., 227 F.3d 133,
144 (3d Cir. 2000).
7
   “We review the District Court‟s evidentiary rulings principally for abuse of
discretion.” Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002).
                                              7
