                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 14-2981
                                     _____________

                                     ROBIN TASCO
                                                       Appellant

                                             v.

                        INTERNATIONAL BROTHERHOOD
                      OF ELECTRICAL WORKERS, LOCAL #98
                                _____________

                      Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                   (No. 2-11-cv-01393)
                     District Judge: Honorable Eduardo C. Robreno

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 11, 2015
                                    ____________

         Before: FUENTES, CHAGARES, and GREENBERG, Circuit Judges.

                               (Filed: December 15, 2015)
                                      ____________

                                        OPINION*
                                      ____________

CHAGARES, Circuit Judge.

       Robin Tasco brought suit against her former employer, the International

Brotherhood of Electrical Workers, Local #98 (the “IBEW”), alleging federal and state

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
race and gender discrimination and retaliation. After a jury returned a verdict in favor of

the IBEW, Tasco moved for a new trial. The District Court denied her motion, and she

appealed. We will affirm.

                                              I.

       We write solely for the parties’ benefit and recite only the facts essential to our

disposition. Tasco worked as a business agent for the IBEW for eight years. Her son,

Frank Clark, also worked for the IBEW. Clark applied for an apprenticeship program

with the IBEW but was rejected after failing a job-related exam. He was fired shortly

thereafter, and then filed a complaint with the Equal Employment Opportunity

Commission (the “EEOC”) alleging race discrimination. After Tasco’s boss became

aware of Clark’s complaint, he “indicated to [her] that he would retaliate against anyone

and everyone who ‘does this to me’ (meaning file a complaint) and stated that he could

not ‘have them on my team.’” Appendix 14a. Tasco claims she was then fired because

of her son’s complaint. She filed this lawsuit in February 2011, asserting federal and

state race and gender discrimination and retaliation claims. The District Court granted

summary judgment as to all of Tasco’s claims except her retaliation claims.

       Tasco’s trial was initially scheduled for May 20, 2013, and later rescheduled to

August 26, 2013. The parties filed their respective pretrial memoranda on March 14,

2013. In April and May 2013, the IBEW issued subpoenas to Tasco’s former lawyer and

to the Pennsylvania Department of Labor and Industry, seeking documents relating to

Tasco’s prior personal injury, worker’s compensation, and unemployment compensation

claims. On August 21, 2013, the IBEW subpoenaed the Philadelphia Board of Elections,

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seeking documents relating to Tasco’s prior candidacy for Philadelphia City Council and

requesting a custodian witness for trial. Also on August 21, 2013, the IBEW sent Tasco

an updated trial exhibit list with seven new entries obtained through the April and May

subpoenas. All of the new exhibits concerned Tasco’s prior legal actions, and they

included her deposition and in-court testimony, her worker’s compensation claim

petition, her unemployment compensation questionnaires, and the unemployment

compensation referee’s order in her case. Tasco moved in limine to exclude these

exhibits based on untimely disclosure, and the District Court denied that motion at trial.

At trial, the IBEW impeached Tasco on cross-examination using those seven exhibits, as

well as an additional document produced in response to the August subpoena. The jury

returned a verdict in favor of the IBEW.

       The District Court denied Tasco’s post-trial motion for a new trial. The District

Court held that the IBEW’s failure to turn over the documents produced in response to

the April and May 2013 subpoenas and to disclose timely the seven trial exhibits from

those productions caused Tasco no prejudice because (1) she was familiar with all the

documents in question, (2) the IBEW had given Tasco notice that it was issuing the

subpoenas, and (3) the exhibits were used only for impeachment. The District Court then

addressed the IBEW’s failure to turn over documents obtained from the Philadelphia

Board of Elections, or to inform Tasco of the witness from the Board of Elections, until

trial. The District Court determined these untimely disclosures also caused no prejudice

because (1) only a small number of documents were produced, (2) the one document used

at trial was a public record, and (3) that document was used only for impeachment.

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       Tasco also claimed the untimely exhibits were irrelevant and prejudicial. The

District Court concluded that the exhibits were relevant for impeachment purposes. The

IBEW did not use the exhibits for the prejudicial suggestion that Tasco should not receive

relief in this case because of her other successful suits. Finally, the District Court

rejected Tasco’s argument that a jury instruction on the “perception theory” of retaliation

was necessary. It was not disputed, according to the District Court, that the IBEW was

aware of Clark’s protected activity, and, therefore, such an instruction was inapplicable.

       Tasco timely appealed the District Court’s denial of a new trial on her retaliation

claims.

                                                II.

       The District Court had jurisdiction under 18 U.S.C. §§ 1331 and 1367. We have

appellate jurisdiction under 28 U.S.C. § 1291. We generally review a district court’s

ruling on a motion for a new trial for abuse of discretion. Where the ruling was based on

a determination of law, our review is plenary. McKenna v. City of Philadelphia, 582

F.3d 447, 460 (3d Cir. 2009).

                                               III.

       A district court “may . . . grant a new trial . . . after a jury trial, for any reason for

which a new trial has heretofore been granted.” Fed. R. Civ. P. 59(a)(1). As Tasco

points out, we have previously remanded for a new trial based on a district court’s error

in admitting evidence where that evidence affected a party’s substantial right. E.g.,

Becker v. ARCO Chem. Co., 207 F.3d 176, 205-07 (3d Cir. 2000).



                                                4
       The District Court here, however, committed no error. It was within its discretion

to allow the IBEW to use the untimely disclosed documents at trial because the

documents did not prejudice Tasco. See Fed. R. Civ. P. 37(c)(1) (failure to disclose

timely information or witness results in exclusion unless the nondisclosure is

“harmless”). Tasco authored the documents at issue herself (except for one, and that was

the decision in her unemployment compensation case). Under this circumstance, and

especially given that she received notice of the subpoenas, Tasco cannot claim she was

unaware of these documents. Moreover, the documents were used only for impeachment.

See Fed. R. Civ. P. 26(a)(3)(A) (excepting from pretrial disclosure evidence presented

solely for impeachment). They were relevant for that purpose, see United States v.

Green, 617 F.3d 233, 251 (3d Cir. 2010) (“[E]vidence concerning a witness’s credibility

is always relevant.”), and not used for any of the prejudicial purposes of which Tasco

complains.

       Nor did the District Court err in refusing to instruct the jury on the “perception

theory” of retaliation. See Fogleman v. Mercy Hosp., 283 F.3d 561, 571 (3d Cir. 2002).

That jury instruction is appropriate where the protected activity at issue may not have

occurred, but the employer believes that it did. Here, there is no dispute that the IBEW

knew that Clark filed a complaint with the EEOC (the protected activity).

       As a result, we hold that the District Court did not abuse its discretion in denying

Tasco’s motion for a new trial.

                                            IV.

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

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