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


12-7-2006

Jacobs v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4163




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                                                               NOT PRECEDENTIAL

                       UNITED SATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-4163


                               DERRICK U. JACOBS,

                                                   Appellant

                                          v.

           CITY OF PHILADELPHIA; CAPTAIN JOSEPH O’DONNELL




                           Appeal from the District Court
                      for the Eastern District of Pennsylvania
                           District Court No. 03-cv-00950
                   District Judge: Honorable Michael M. Baylson


                       Submitted under Third Circuit LAR 34.1(a)
                                on September 26, 2006


            Before: RENDELL, CHAGARES and ROTH, Circuit Judges

                          (Opinion Filed: December 7, 2006)




                                      OPINION


ROTH, Circuit Judge:

      Derrick Jacobs is a detective with the Northwest Detectives division of the
Philadelphia Police Department. On February 19, 2003, Jacobs, an African-American, filed

a complaint against the City of Philadelphia and Captain Joseph O’Donnell, alleging

violations of federal and state racial discrimination laws. The case proceeded to a jury trial,

and after the jury returned a verdict in favor of the defendants, the District Court entered

judgment for the defendants on December 27, 2004. Jacobs filed post-trial motions to amend

the verdict and for a new trial; those motions were denied in August 2005. Jacobs timely

appealed. For the reasons set forth below, we will affirm the judgment of the District Court.

       At trial, Jacobs sought to prove (1) a claim against Philadelphia under Title VII of the

Civil Rights Act of 1964 (relying on multiple theories of discrimination, including hostile

work environment and retaliation); (2) claims against O’Donnell under 42 U.S.C. § 1981 and

42 U.S.C. § 1983;1 and (3) claims against Philadelphia and O’Donnell under the

Pennsylvania Human Relations Act. Jacobs presented evidence intended to prove, in part,

the following: two instances when his supervisors made racially disparaging comments,

discipline and surveillance to which he was subjected in conjunction with his taking stress-

related sick leave, negative performance evaluations that he received after O’Donnell became

his supervisor, and disparities in treatment between white and black officers. Philadelphia

and O’Donnell denied taking any racially-motivated actions against Jacobs and offered

evidence intended to prove, in part, that to the extent Jacobs was subject to differential




   1
    The District Court dismissed § 1981 and § 1983 claims against the City of
Philadelphia.

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treatment, it was because he was a “difficult employee.” According to Philadelphia and

O’Donnell, Jacobs had a number of attendance problems, failed to document his sick leave,

and falsified an investigation form relating to the ex-boyfriend of his then-fiancée. This last

incident resulted in Jacobs receiving a twenty-day suspension.

       Counsel on each side proposed jury instructions. On December 21, 2004, the District

Court held a conference with the attorneys regarding the jury charge and verdict sheet. At

the charge conference, Jacobs’s counsel objected to the language in the instructions for the

harassment/hostile work environment claim because it implied that an affirmative defense

exists in all circumstances, even though the defense is unavailable when the plaintiff is able

to prove that he suffered a tangible adverse employment action.2 In response, counsel on

both sides worked with the Court to refine the language in both the jury charge and the

verdict sheet to better reflect the correct law. Jacobs’s counsel agreed to the amended



   2
    In order to establish a successful claim, a plaintiff must establish that he suffered
harassment caused by a hostile work environment, with the following factors to be proved
by a preponderance of the evidence: (1) the plaintiff suffered intentional discrimination
because of his or her membership in the protected class; (2) the discrimination was
pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the
discrimination would have detrimentally affected a reasonable person of the same
protected class in that position; and, (5) the existence of respondeat superior liability.
West v. Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir. 1995). Where the defendant
has not been found to have taken any adverse employment actions against the plaintiff,
the defendant may attempt to establish an affirmative defense by showing that the
employer exercised reasonable care to prevent and correct promptly any harassing
behavior, and the plaintiff employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the employer. Faragher v. City of
Boca Raton, 524 U.S. 775, 805 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 764-65
(1998).

                                              3
instructions.

         The jury returned a verdict in favor of the defendants. Although the jury found that

Jacobs had been treated differently from other detectives who were not African-American,

that he had suffered intentional discrimination because of his race, and that he had satisfied

most elements of the hostile work environment claim, it nonetheless found that he did not

prove any of his federal claims. The jury repeatedly found that Jacobs suffered no adverse

employment actions against him. The jury did find that Jacobs had proved his state law claim

against O’Donnell, but it awarded him no damages. The District Court entered the verdict

without objection and denied Jacobs’s post-trial motions to amend the verdict and for a new

trial.

         The District Court had subject matter jurisdiction over this case pursuant to 28 U.S.C.

§ 1331 and 28 U.S.C. § 1367. We have jurisdiction over this appeal from a final judgment

pursuant to 28 U.S.C. § 1291. We review the District Court’s ruling on the motion for a new

trial for abuse of discretion. Brennan v. Norton, 350 F.3d 399, 430 (3d Cir. 2003). Our

review of the District Court’s ruling on the motion to amend the judgment varies with the

nature of the underlying decision. Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348-49

(3d Cir. 1986). We exercise plenary review to determine whether jury instructions misstated

the applicable law, but in the absence of a misstatement we review for abuse of discretion.

See Walden v. Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir.1997). If the party claiming

error did not make a timely objection, we review for plain error. See Ryder v. Westinghouse



                                                4
Elec. Corp., 128 F.3d 128, 136 (3d Cir.1997).

       Although Jacobs objected to the instructions for the hostile work environment claim,

the District Court amended the instructions and Jacobs did not object to the amended

instructions. Under F ED. R. C IV. P. 51, a party must raise any objections to jury instructions

prior to the time the jury begins its deliberations. See also Alexander v. Riga, 208 F.3d 419,

426 (3d Cir. 2000). Although we have held that a party has not waived the argument where

it would have been futile for him to object, he must make his opposition to the instructions

clear to the District Court. Cooper Distributing Co., Inc. v. Amana Refrigeration, Inc., 180

F.3d 542, 550 (3d Cir. 1999). Because Jacobs agreed to the amended instructions, we do not

believe he raised a timely objection or in any way conveyed his opposition to the language

he now challenges. As such, we are limited to a review for plain error.

       Plain error is also the appropriate standard by which to review Jacobs’s argument that

the jury’s responses were inconsistent. We have held that under F ED. R. C IV. P. 49, a party

waives his right to argue that jury interrogatories provoked inconsistent responses if he does

not object prior to the jury’s dismissal. Inter Med. Supplies, Ltd. v. Edi Med. Sys., 181 F.3d

446, 463 (3d Cir. 1999); Herskowitz v. Nutri/System, 857 F.2d 179, 188-89 (3d Cir. 1988).3

Jacobs waived his inconsistency argument because he raised no such objection before the

jury was excused. We therefore limit our review on this question to plain error.



   3
   Because Jacobs has waived his argument under either Rule 49(a) (special verdicts) or
Rule 49(b) (general verdicts), we need not determine whether the verdict in this case was
general or special.

                                               5
       Under plain error review, we will reverse only if the trial court committed error that

was fundamental and highly prejudicial, such that the instructions failed to provide the jury

with adequate guidance on a fundamental question, and the District Court's refusal to

consider the issue would result in a miscarriage of justice. Alexander v. Riga, 208 F.3d 419,

426-27 (3d Cir. 2000). Neither the juror instructions nor the juror responses gave rise to

error of this nature.

       First, Jacobs argues that Interrogatory B3, which required jurors to find that race was

“the determinative factor for the actions,” added an unnecessary element to the hostile work

environment claim or confused the jurors regarding when the relevant affirmative defense

was available. It did not. We agree with the District Court that Interrogatory B3 merely

compressed the element of causation with the affirmative defense which the parties discussed

at the charging conference. The District Court correctly explained both causation and the

affirmative defense in its instructions to the jury, and to the extent that Interrogatory B3 was

likely to cause any juror confusion, we agree with the District Court that the confusion – due

to the lack of any explicit mention of the affirmative defense – would have been to the likely

benefit of Jacobs.

       Neither were the juror responses so inconsistent as to have necessitated a new trial or

an amended verdict. Jacobs claims inconsistency because the jury found for him on the state

law claim but against him on the §1981 and 1983 actions against O’Donnell. Given the

different showings necessary under these different theories, we agree with the District Court



                                               6
that these findings are not necessarily inconsistent.

       Jacobs also challenges the District Court’s decision not to grant a new trial on the

basis of the jury’s verdict being against the weight of the evidence. We believe the District

Court acted well within its discretion. A new trial because the verdict is against the weight

of the evidence should be granted 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.” Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1353 (3d

Cir. 1991). A jury is free to assess the credibility of witnesses and to believe or disbelieve

the facts presented by each side. In this case, the accounts presented by each side differed

considerably, and a reasonable jury was entitled to make findings favoring either side.

       Finally, Jacobs challenges an evidentiary ruling, arguing that the District Court

wrongfully excluded as excessively prejudicial testimony by Jacobs regarding narcotics

found on his desk at work. Jacobs does not deal with narcotics as part of his job, and he

speculates that someone planted the drugs out of racial animus. Jacobs sought to testify as

to the incident, either to establish an additional instance of racially motivated behavior or to

provide an explanation, in response to questioning by defendant’s counsel, as to why he

experienced stress even after O’Donnell had been transferred. The District Court refused to

admit this testimony for either purpose because it was both speculative and highly

inflammatory, and thus unfairly prejudicial in light of its possible probative value within the

meaning of F ED. R. E VID. 403 . We review the District Court's determinations concerning



                                               7
the admissibility of evidence for abuse of discretion. Karkkainen v. Kovalchuk, 445 F.3d

280, 288 (3d Cir. 2006). We share the District Court’s concern regarding the speculative and

prejudicial nature of this evidence, and we believe that it acted within its sound discretion.

       For the reasons stated above, we will affirm the judgment of the District Court.




                                              8
