                                        PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
             _________________

                    No. 17-3141
     __________                         _________


              TAMRA N. ROBINSON

                         v.

 FIRST STATE COMMUNITY ACTION AGENCY,

                             Appellant
                _________________

   On Appeal from the United States District Court
             for the District of Delaware
              (D.C. No. 1-14-cv-01205)
     District Judge: Hon. Richard G. Andrews
                _________________

    Submitted Under Third Circuit L.A.R. 34.1(a)
                October 23, 2018

Before: KRAUSE, COWEN, FUENTES, Circuit Judges.

                (Filed April 1, 2019)
Tasha M. Stevens
Fuqua Willard Stevens & Schab
26 The Circle
P.O. Box 250
Georgetown, DE 19947

      Counsel for Appellant

Kevin G. Fasic
Katherine R. Witherspoon
Offit Kurman
1201 North Orange Street
Suite 10 East
Wilmington, DE 19801

      Counsel for Appellee

                    _________________

                OPINION OF THE COURT
                   _________________


FUENTES, Circuit Judge.

       Tamra Robinson was told by her manager Karen Garrett
that her work performance was so poor that “you either don’t
know what you’re doing, or you have a disability, or [you’re]
dyslexic.” Taking Garrett’s words seriously, Robinson, who
had never before considered the possibility she might have a
disability, decided to undergo testing for dyslexia. She sent
Garrett an evaluation that concluded that Robinson had
symptoms consistent with dyslexia, and requested certain




                              2
accommodations from the manager of human resources. She
was told that any diagnosis she received would not prevent her
from performing her work in a satisfactory matter, and she was
advised to focus on improving her performance. Weeks later,
she was fired.

        During the litigation in the District Court between
Robinson and her former employer, First State Community
Action Agency, Robinson acknowledged that she could not
prove she was dyslexic. She proceeded on a different theory,
that she was perceived or regarded as dyslexic by her employer
and was therefore entitled to a reasonable accommodation the
same way someone who was dyslexic would have been. While
we have previously recognized the validity of a “regarded as”
disability case theory in cases arising under the Americans with
Disabilities Act,1 the ADA Amendments Act of 20082 made
clear that a “regarded as” plaintiff is not statutorily entitled to
accommodation.3 Despite this, both parties proceeded under
the “regarded as” case theory throughout litigation, trial, and
post-trial briefing. Only now does First State seek to unring
the bell and overturn the jury’s verdict because the jury was
instructed that the “regarded as” case theory was valid. We
hold that First State has waived this argument because of its
continued acquiescence to Robinson’s case theory, its
encouragement of the adoption of the very jury instruction to
which it now objects, and its failure to include this error in its
post-trial briefing. We therefore affirm the judgment of the
District Court.

1
  Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751,
775 (3d Cir. 2004).
2
  Pub. L. No. 110-325, § 6, 122 Stat. 3553, 3558 (2008).
3
  42 U.S.C. § 12201(h).




                                3
       Background

       A.     Robinson’s Employment at First State

       In October 2009, Tamra Robinson was hired by First
State Community Action Agency (“First State”) as an
individual development account counselor.4 Almost two years
later, First State hired Karen Garrett, and Garrett became
Robinson’s supervisor.         Garett was dissatisfied with
Robinson’s work, and in November 2011, Garrett told
Robinson “you either don’t know what you’re doing, or you
have a disability, or [you’re] dyslexic.”5

       Robinson had never before considered whether she had
any kind of disability. She attempted to find a physician to
conduct an evaluation for dyslexia, and ultimately reached out
to a family friend, Dr. Phyllis Parker, who was a psychologist.
After undergoing testing in January 2012, Robinson received
an evaluation from Dr. Parker noting that she demonstrated
“signs of dyslexia,” but this evaluation did not diagnose her
with the disorder.6 She immediately forwarded it to Garrett.

       While Robinson was undergoing this process, Garrett
completed a performance appraisal for Robinson. On January
12, 2012, she placed Robinson on an individual development
plan addressing six areas of concern. The plan provided for
biweekly reviews of Robinson’s progress followed by a final
evaluation in March of that year. Garrett received Dr. Parker’s

4
  About a year later, she was transitioned into the position of
housing default counselor.
5
  J.A. 65.
6
  J.A. 75.




                              4
evaluation just six days after completing the development plan.
She forwarded it to First State’s Human Resources Director,
David Bull. Bull emailed Robinson, informing her that he
received a copy of her “Informal Dyslexia Screening.”7
Nevertheless, he told Robinson that he did not believe the
diagnostic information contained in the evaluation would
“impact[] [Robinson’s] ability to perform the essential
elements of [her] job responsibilities” and instructed her to
follow the individual development plan.8 The next day,
Robinson wrote back and asked for “reasonable
accommodations”—specifically, she asked for “hands-on
organized training for the types of clients” she would be
responsible for counseling.9 Bull replied by saying, “I fully
understand and know ADA. What you need to do is your
job.”10 A few weeks later, Robinson was fired.

      B.      Proceedings Below

       In 2014, Robinson filed the instant suit against First
State alleging violations of the Americans with Disabilities
Act. Since at least the summary judgment stage, she argued
that First State wrongfully terminated her and wrongfully
denied her reasonable accommodations, both because she
actually possessed a disability (dyslexia) and because First
State regarded her as dyslexic.11 The dispute between


7
  J.A. 253.
8
  Id.
9
  J.A. 250.
10
   J.A. 252.
11
    See Opening Brief in Support of Robinson’s Motion for
Summary Judgment (“Robinson SJ Br.”) (Doc. 48) at 8,




                              5
Robinson and First State proceeded to trial, and Robinson
prevailed on her reasonable accommodation claim but not her
termination claim. First State then moved for a new trial, and
cited two alleged errors during the course of the trial.

        First, during Robinson’s direct examination, she
testified that after being terminated, she filed a complaint with
the Equal Employment Opportunity Commission, which, she
further testified, ruled in her favor. At sidebar, counsel for First
State objected and requested a mistrial. The District Court
instead struck the response, informing the jury:

       Members of the jury, [you] may recall at the
       beginning of the trial, that I might have to strike
       some testimony, and tell you to disregard what
       you heard.

       That last question and answer, I am striking that
       testimony, and you have to disregard what you
       heard. You cannot rely on it for anything. You
       need to put it out of your mind.12


Robinson v. First State Cmty. Action Agency, 14 Civ. 1205
(RGA) (D. Del. 2014).
12
   J.A. 132. Later, the District Court further explained the
ruling outside the presence of the jury, noting that it did not
find an intentional violation of the rule against the improper
introduction of evidence. The District Court also referenced a
Seventh Circuit case, Wilson v. Groaning, 25 F.3d 581 (7th Cir.
1994), which concluded that the improper admission of
testimony was sufficiently cured by the trial court’s prompt
decision to strike the testimony and instruct the jury to
disregard it.




                                 6
        In its post-trial decision, the District Court maintained
that striking the testimony was a sufficient response to the
inadmissible evidence because juries are presumed to follow a
court’s instructions, and the split verdict showed that they were
not unduly swayed by the testimony.

        Second, the District Court mentioned the statutory
damage cap for Robinson’s claims in its jury instructions.13
After trial, the District Court agreed that the instruction was
error, but determined that because First State did not object at
trial and the error was harmless, it did not merit a new trial.

       First State now appeals that decision, arguing that it
merits a new trial both because of the stricken testimony about
the Commission’s finding and because of the erroneous
damages cap instruction. First State also argues, for the first
time, that the judgment below should be vacated because
Robinson’s “regarded as” disabled case theory was precluded
by the ADA Amendments Act of 2008.14

13
   The Court informed the jury that “[t]he total amount of
compensatory and punitive damages combined you can award
in this case is $50,000.” J.A. 389.
14
   First State styles this objection as one regarding the District
Court’s jury instructions. The District Court instructed the jury
on Robinson’s reasonable accommodation claim as follows:
“You can find that First State breached its duty to provide
reasonable accommodations because it failed to engage in an
interactive process if Ms. Robinson proves four things: First,
First State regarded Ms. Robinson as dyslexic. Second, Ms.
Robinson requested accommodation or assistance. Third, First
State did not make a good faith effort to assist Ms. Robinson




                                7
       Discussion

       A.     The 2008 Amendments

        In 2008, the Americans with Disabilities Act was
amended. The Act now provides that employers “need not
provide a reasonable accommodation . . . to an individual who
meets the definition of disability in [Section 12102(1)(C)].”15
That Section, in turn, includes the definition of individuals who
are “regarded as having” a physical or mental impairment.16 In
other words, after the 2008 Amendments went into effect, an
individual who demonstrates that she is “regarded as” disabled,
but who fails to demonstrate that she is actually disabled, is not
entitled to a reasonable accommodation.17 Therefore, the
reasonable accommodation jury instruction, which informed
the members of the jury that they needed to find only that First
State “regarded Ms. Robinson as dyslexic,”18 was error.

      The question before us is whether to review this error
under the strict plain error standard or whether to treat the


in seeking accommodations; and fourth, Ms. Robinson could
have reasonably been accommodated but for First State’s lack
of good faith.” J.A. 384.
15
   42 U.S.C. § 12201(h).
16
   42 U.S.C. § 12102(1)(C).
17
   See Powers v. USF Holland, Inc., 667 F.3d 815, 823 n.7 (7th
Cir. 2011) (“[T]he ADAAA clarified that an individual
‘regarded as’ disabled (as opposed to actually disabled) is not
entitled to a ‘reasonable accommodation.’”). We have also
made this point in prior decisions. See, e.g., Hohider v. United
Parcel Serv., Inc., 574 F.3d 169, 188 n.17 (3d Cir. 2009).
18
   J.A. 384.




                                8
objection as waived. Despite the fact that Robinson discussed
her position that she need only prove she was regarded as
dyslexic as early as 2016, when she filed her motion for
summary judgment, First State never addressed the effect of
the 2008 Amendments until its briefing before this Court. It
contends that its failure to raise this argument is best
understood as a failure to object to an erroneous jury
instruction and should therefore be reviewed under our plain
error standard. We disagree because, although First State
focuses narrowly on how this error manifested in the jury
instructions, it was more broadly a flaw in Robinson’s theory
of the case that dated back to summary judgment briefing, and
First State at no time objected to that theory despite numerous
opportunities to do so. Thus, we view the argument as waived,
and we decline to consider it for the first time on appeal.

              1.     Forfeiture and Waiver

       “The effect of failing to preserve an argument will
depend upon whether the argument has been forfeited or
waived.”19 Forfeiture is the “failure to make the timely
assertion of a right.”20       Waiver is the “intentional
relinquishment or abandonment of a known right.”21 Waived
arguments about jury instructions may not be resurrected on
appeal.22 When the argument was merely forfeited, however,


19
   Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877
F.3d 136, 146 (3d Cir. 2017).
20
   Id. at 147 (quoting United States v. Olano, 507 U.S. 725, 733
(1993)).
21
   Id. (citation omitted).
22
   Id. at 146 n.7.




                               9
plain error analysis applies,23 and we will reverse only where
the error is “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.”24

        We find that First State’s actions below are more
appropriately classified as waiver. Throughout the history of
this litigation, including in its early stages, First State was
routinely confronted with Robinson’s “regarded as” case
theory. Not only did First State fail to object, it specifically
assented to the jury instruction it now points to as erroneous.

       In 2016, First State moved for summary judgment,
arguing, among other things, that Robinson could not establish
that she was disabled under the terms of the Americans with
Disabilities Act.25 In response, and in her motion for summary
judgment, Robinson argued that she only needed to establish
that First State “regarded her” as disabled.26 Instead of
correcting Robinson’s error of law, First State argued that there

23
   See Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606, 609
(3d Cir. 2011); see also Fed. R. Civ. P. 51(d).
24
   Franklin Prescriptions, Inc. v. N.Y. Times Co., 424 F.3d 336,
339 (3d Cir. 2005) (quoting Ryder v. Westinghouse Elec.
Corp., 128 F.3d 128, 136 (3d Cir. 1997)).
25
   See Opening Brief in Support of First State’s Motion for
Summary Judgment (Doc. 45), Robinson v. First State Cmty.
Action Agency, 14 Civ. 1205 (RGA) (D. Del. 2014).
26
   Robinson SJ Br. at 8; Brief in Opposition to First State’s
Motion for Summary Judgment (Doc. 50) at 9–11, Robinson v.
First State Cmty. Action Agency, 14 Civ. 1205 (RGA) (D. Del.
2014).




                               10
was no evidence First State treated Robinson as though she had
a “substantially limiting impairment.”27 The Magistrate Judge
disagreed, and found that summary judgment was
inappropriate because there was a question of material fact
regarding whether First State considered Robinson disabled.28
First State filed no objections to the Report and
Recommendation, failing again to argue that a plaintiff could
no longer proceed under a “regarded as” disability theory for
reasonable accommodation claims.29

        Those failures, alone, would not be enough to waive the
issue on appeal, but the viability of the “regarded as” case
theory was squarely before First State again at trial. At a
conference outside the jury’s presence in December 2017,
plaintiff’s counsel suggested that the relevant jury instruction
include the four-part test from Williams v. Philadelphia
Housing Authority Police Department on a failure to
reasonably accommodate a plaintiff who was “regarded as”
disabled.30 Defense counsel initially provided no views about

27
   See Brief in Opposition to Robinson’s Motion for Summary
Judgment (Doc. 51) at 8, Robinson v. First State Cmty. Action
Agency, 14 Civ. 1205 (RGA) (D. Del. 2014).
28
   See Report and Recommendation dated October 24, 2016
(Doc. 56) at 8–10, Robinson v. First State Cmty. Action
Agency, 14 Civ. 1205 (RGA) (D. Del. 2014).
29
   See Order dated November 17, 2016 (Doc. 57), Robinson v.
First State Cmty. Action Agency, 14 Civ. 1205 (RGA) (D. Del.
2014).
30
    In Williams, we concluded that the Americans with
Disabilities Act as then codified entitled a plaintiff who was
regarded as disabled to reasonable accommodations. 380 F.3d
751, 775 (3d. Cir. 2004). We set forth the following four




                              11
the jury charge. That evening, plaintiff’s counsel sent an email
clearly stating that “as we represented today, we are not
arguing that Ms. Robinson has a disability.”31 The email also
provided more concrete suggestions to include the Williams
test in the instructions. At the charge conference the next day,
defense counsel voiced her support for Robinson’s proposed
jury instruction, specifically saying that while she had not seen
the new proposed language, she agreed that “it would be
simpler if the accommodation claim is included” and that “the
language about the failure to engage in the four-part test”—the
language derived from Williams, which held that a “regarded
as” plaintiff could pursue a reasonable accommodation
claim—should be included.32 After First State was found liable


elements for establishing that an employer breached its duty to
provide reasonable accommodations: “1) the employer knew
about the employee’s disability; 2) the employee requested
accommodations or assistance for his or her disability; 3) the
employer did not make a good faith effort to assist the
employee in seeking accommodations; and 4) the employee
could have been reasonably accommodated but for the
employer’s lack of good faith.” Id. at 772 (citing Taylor v.
Phoenixville Sch. Dist., 184 F.3d 296, 319–20 (3d Cir. 1999)).
The instructions given to the jury below modified those in
Williams to reflect the entitlement of a “regarded as” plaintiff
to a reasonable accommodation. Those instructions correctly
explained the law under our precedent in Williams, but the
2008 Amendments abrogated Williams on that point.
31
   Email to the Court dated December 7, 2016 (Doc. 69),
Robinson v. First State Cmty. Action Agency, 14 Civ. 1205
(RGA) (D. Del. 2014).
32
   J.A. 211–12. Specifically, Stevens said, “Your Honor, I’m
not exactly sure of how [Robinson] want[s] to change the




                               12
on Robinson’s reasonable accommodation claim, it moved for
a new trial. But it did not raise the error in that post-trial
briefing, nor did it move for judgment as a matter of law on
those grounds.

        This course of conduct evinces an intent to proceed
under Robinson’s “regarded as” case theory and waive any
objection based on the 2008 Amendments. Our recent cases
on waiver illustrate this point. In Government of the Virgin
Islands v. Rosa, we found that a defendant’s “repeated
acquiescence” to erroneous instructions did not rise to the level
of a knowing and intentional waiver.33 But in United States v.
Wasserson, we concluded that an alleged error was waived
when the defendant failed to raise the objection at trial and
failed to include it in his post-trial briefing.34 And, we have
long held that when a party jointly recommends a jury
instruction, it cannot later complain about that very
instruction.35 Here, First State did not merely fail to object to


instruction as proposed, but I think it would be simpler if the
accommodation claim is included. The language about the
failure to engage in the four-part test that is used instead of
setting out two separate tests. I do think it could be set out with
the four-prong test that is identified, I believe. I think we’re
talking about the same one. I can consult with counsel to make
sure we’re talking about the same one.”
33
   399 F.3d 283, 292–93 (3d Cir. 2005).
34
   418 F.3d 225, 239 (3d Cir. 2005). The defendant in that case
also failed to raise the issue in his opening brief, which
constituted a second ground to find waiver. Id. at 240.
35
   See United States v. Ozcelik, 527 F.3d 88, 97 n.6 (3d Cir.
2008); see also United States v. Teague, 443 F.3d 1310, 1317
(10th Cir. 2006) (“[W]hen a party ‘invites’ an error by




                                13
an instructional error at a charging conference; it played along
with a flawed theory of liability throughout the litigation and
ultimately endorsed the specific instruction embodying that
theory. First State was initially made aware in mid-2016 of the
erroneous case theory and did nothing. It did nothing again at
the beginning of trial. And finally, it invited the District Court
to use the four-part test from Williams it now argues is
incorrect. Unfortunately for First State, it is simply too little,
too late. We therefore find that First State has waived its
argument about the effect of the 2008 Amendments and will
not review the instruction for plain error.

              2.      The Effect of the Model Jury
                      Instructions

      Although, for the reasons stated above, we conclude
that First State’s argument regarding the reasonable
accommodation jury instruction was waived, and thus need not
review the instruction for plain error, the parties have devoted
considerable attention in their briefing to the significance of
the “Model Civil Jury Instructions for the District Courts of the
Third Circuit,”36 which erroneously includes a “regarded as”


suggesting that the court take particular action, we can presume
that the party has acted voluntarily and with full knowledge of
the material consequences.”).
36
   Model Instructions 9.1.3 and 9.2.1 have not been updated to
reflect the 2008 Amendments to the ADA. Instead, Instruction
9.1.3, which provides the elements for a reasonable-
accommodation claim, states that a plaintiff must prove she
“has a ‘disability’ within the meaning of the ADA,” and cross-
references Instruction 9.2.1 for the definition of “disability.”
Third Circuit Model Jury Instructions for Employment Claims




                               14
instruction, for a plain-error analysis. In so doing, they expose
a fundamental misunderstanding of the import of those
instructions and the standard under which they are reviewed.
Specifically, Robinson argues that because the flawed
instruction appears in what are colloquially known as the
“Third Circuit Model Jury Instructions,” the District Court
could not have “plainly” erred in providing it to the jury. As
Robinson’s misunderstanding may be shared by others, we
take this opportunity to correct it.

       Although entitled “Model Civil Jury Instructions for the
District Courts of the Third Circuit,” these instructions are
drafted not by members of this Court but by the Committee on
Model Civil Jury Instructions, consisting of eight district court
judges from districts within the Third Circuit, who also
collaborate with the Committee’s reporters, two law
professors. Although the Committee’s work is partially funded
by the Third Circuit Court of Appeals, and made available on
the Court’s website, the website clarifies that “neither the
[Third Circuit] Court of Appeals nor any Judge of that Court



Under the Americans with Disabilities Act at 17, available at
https://www.ca3.uscourts.gov/sites/ca3/files/9_Chap_9_2018
_Oct.pdf. Instruction 9.2.1, in turn, defines “disability” to
include “not only those persons who actually have a disability,
but also those who are ‘regarded as’ having a disability by their
employer.” Id. at 48. The Comment to Model Instruction 9.1.3
refers to Williams, and states that “an employee ‘regarded as’
having a disability is entitled to the same accommodation that
he would receive were he actually disabled.” Id. at 28. The
Comment to Model Instruction 9.2.1 uses the same language.
Id. at 56.




                               15
participate[s] in the drafting of the Model Instructions.”37
Given the care put into that drafting, we have observed it is
unlikely “that the use of [a] model jury instruction can
constitute error.”38 True enough, as far as probabilities go, but
we have never held that use of such an instruction cannot
constitute error, and a model jury instruction itself is neither
law nor precedential. Judges and parties are not free to
incorporate incorrect legal principles simply because there is a
similar error in these or any model jury instructions. Model
instructions are designed to help litigants and trial courts, not
to replace their shared obligation to distill the law correctly
when drafting proposed jury instructions. Thus, the existence
of the antiquated model jury instruction here, which regrettably
does not yet reflect the 2008 Amendments, fails to provide a
second justification for our decision to not review the relevant
jury instruction.




37
   Introduction to the Model Civil Jury Instructions, available
at http://www.ca3.uscourts.gov/sites/ca3/files/INTRODUCTI
ON_2018_for_website.pdf.
38
    United States v. Petersen, 622 F.3d 196, 208 (3d Cir. 2010).
Admittedly, our language has not always been as precise as it
could be, perhaps contributing to the confusion. For example,
we have referred to the model instructions on occasion as “our
own.” Id. As indicated, however, the model jury instructions
do not bear the imprimatur of this Court, and when parties use
those instructions, they are reviewed like any other instructions
for their correctness, both on plenary review and plain-error
review.




                               16
       B.     The Statutory Damages Cap

       First State also argues that the inclusion of the $50,000
statutory damages cap was error. Because First State did not
object during trial, we review for plain error.39 We agree with
the District Court that the instruction was given in error but that
such error was harmless.

        The pertinent statute, 42 U.S.C. § 1981a(c)(2), provides
that a court “shall not inform” the jury of statutory damages
limitations. The District Court’s instruction did just that, and
the instruction was error. The question for us, then, is whether
that error was so fundamental and prejudicial that a failure to
review it would constitute a miscarriage of justice.40

        First State points to a single Fourth Circuit opinion that
lends some credence to its argument that an erroneous
instruction on statutory damages might constitute error, but
falls far short of convincing us that there was plain error in this

39
   First State’s attorney did raise questions about whether or
not the damages cap should be included in the jury instructions.
But while First State points this out, it neglects to mention that
its attorney did not actually object to the charge, and instead
said “I don’t know. I just read it as a rule. I didn’t know if it
was the rule to be followed. . . . I’m comfortable with [the
instruction].” J.A. 184. When an attorney admits to
uncertainty about the propriety of the charge and fails to
actually object, the requirements of Rule 51(c) of the Federal
Rules of Civil Procedure have not been met, and the instruction
is reviewed under the plain error standard. See Collins v. Alco
Parking Corp., 448 F.3d 652, 655–56 (3d Cir. 2006).
40
   Collins, 448 F.3d at 656.




                                17
case. In Sasaki v. Class, an attorney mentioned the damages
cap during closing argument.41 On review, the Fourth Circuit
concluded that “when a jury’s damages award itself indicates .
. . strongly that the error substantially influenced the jury’s
verdict, the error cannot be dismissed as harmless.”42 But there
are two key distinctions between Sasaki and the instant matter.
First, because the defendant’s attorney objected at trial, the
error was preserved.43 Second, the court found evidence that
the jury had responded to the erroneous disclosure by adjusting
its award—namely, the jury awarded $50,000 (the highest
amount within the damages cap) on the plaintiff’s federal
claims and $150,000 on her state law claims, despite the fact
that “[a]ll of the conduct that formed the basis for [the] state
claims also provided the basis for [the] federal claims.”44 Here,
however, First State presents no evidence that learning of the
damages cap affected the jury’s decisionmaking. Indeed, the
jury awarded Robinson $22,501, which was well below the
statutory cap in any event.

        While the inclusion of the statutory cap language was
error, we cannot see how there was any prejudice to First State
as a result, much less prejudice that, if left uncorrected, would
work a manifest injustice. We therefore conclude that there
was no plain error.




41
   92 F.3d 232, 235 (4th Cir. 1996).
42
   Id. at 237.
43
   Id. at 235.
44
   Id. at 237.




                               18
       C.      Robinson’s Testimony           about     the
               Commission

        Finally, we review First State’s objection to Robinson’s
testimony about the outcome of her complaint before the Equal
Employment Opportunity Commission. We review the
District Court’s denial of a new trial on these grounds for abuse
of discretion. An abuse of discretion occurs when a lower
court’s decision “rests upon a clearly erroneous finding of fact,
an errant conclusion of law or an improper application of law
to fact.”45

        First State argues that it was improperly prejudiced by
Robinson’s disclosure that the Commission ruled in her favor.
The District Court agreed that Robinson’s testimony was
inadmissible and promptly struck it from the record. She
instructed the jury that they were not to consider it in their
liability determination. First State does not explain why this
course of conduct was insufficient, except that it speculates
that Robinson’s statement “likely played a part” in the jury’s
verdict.46 For two reasons, we disagree.

       First, as the District Court noted, the jury returned a split
verdict. Had the jurors been under the impression that they
should find First State liable because the Commission found in
Robinson’s favor, it does not follow that this prejudice would
manifest itself only in the reasonable accommodation verdict
and not the termination verdict.

45
   P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir.
2006) (quoting Hanover Potato Prods., Inc. v. Shalala, 989
F.2d 123, 127 (3d Cir. 1993)).
46
   Appellant’s Br. at 22.




                                19
        Second, we presume that jurors follow the instructions
given to them by the trial court.47 That presumption is only
overcome where there is an “overwhelming probability” that
the jury was unable to follow the instructions and a likelihood
that the evidence wrongfully admitted was “devastating” to the
other party.48 There is simply no evidence here that the jury
considered Robinson’s testimony after receiving the curative
instruction, nor is there a likelihood that the consideration of
Robinson’s testimony would have been “devastating” to First
State. We therefore conclude that the District Court did not
abuse its discretion in determining that a new trial was not
warranted on these grounds.

       Conclusion

       For the foregoing reasons, we affirm the judgment of
the District Court.




47
  Glenn v. Wynder, 743 F.3d 402, 407 (3d Cir. 2014).
48
   Greer v. Miller, 483 U.S. 756, 766 n.8 (1987) (quoting
Richardson v. Marsh, 481 U.S. 200, 208 (1987); Bruton v.
United States, 391 U.S. 123, 136 (1968)).




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