                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-22-2007

Stackhouse v. PA State Pol
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4784




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"Stackhouse v. PA State Pol" (2007). 2007 Decisions. Paper 1583.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1583


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                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                       ____________________________________

                            No. 05-4784, 05-4785, 06-2185
                                    (Consolidated)
                       ____________________________________

                                  DIANE STACKHOUSE,

                                                          Appellant

                                              v.

                         PENNSYLVANIA STATE POLICE;
                       COMMONWEALTH OF PENNSYLVANIA


                       ____________________________________

                        Appeal from Judgments and Orders of the
                            United States District Court for the
                              Middle District of Pennsylvania
                               (D.C. Civil No. 1:cv-01-2223)
                     District Judge: Honorable Christopher C. Conner

                       ____________________________________

                              Argued: January 30, 2007
                       ____________________________________

                     Before: BARRY and ROTH, Circuit Judges, and
                       DEBEVOISE*, Senior District Court Judge

                           (Opinion Filed: February 22, 2007)
                       ____________________________________



       *
          Honorable Dickinson R. Debevoise, Senior District Court Judge for the District of New
Jersey, sitting by designation.
                                     OPINION
                       ____________________________________

Spero T. Lappas, Esq. (Argued)
Serratelli, Schiffman, Brown and Calhoon, P.C.
2080 Linglestown Road, Suite 201
Harrisburg, PA 17110-9670
       Attorney for Appellant

Thomas W. Corbett, Jr., Esq.
        Attorney General
J. Bart DeLone, Esq. (Argued)
Senior Deputy Attorney General
Calvin R. Koons, Esq.
Senior Deputy Attorney General
John Knorr, III, Esq.
Chief Deputy Attorney General
Chief, Appellate Litigation Section
Office of Attorney General
Appellate Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
        Attorneys for Appellee.

Debevoise, Senior District Court Judge

       Appellant, Diane Stackhouse, a lieutenant with the Pennsylvania State Police

(“PSP”), contending that PSP failed to promote her to captain based on her sex, brought

suit in the District Court under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a).

She claimed that the PSP promotion process from the rank of lieutenant to captain had a

disparate impact on women, that she was the victim of disparate treatment, and that she

suffered from retaliation. The District Court granted PSP’s motion for summary

judgment on Stackhouse’s retaliation claim; a jury rendered a verdict for PSP on her

disparate treatment claim; and the District Court, after receiving an advisory verdict

                                             2
adverse to Stackhouse on her disparate impact claim, decided against her on that claim.

The Court denied her motion for a new trial.1

       Because we write for the parties, who are familiar with the extensive procedural

and factual background of this case, we refer only to those matters that are necessary to

an understanding of our decision.

       The appeal raises four issues: i) whether the District Court correctly granted

summary judgment in PSP’s favor on Stackhouse’s retaliation claim; ii) whether the

District Court properly exercised its discretion when it granted PSP’s in limine motions to

exclude at trial evidence of a discrimination charge that another PSP employee filed with

the EEOC and evidence of a report by Pennsylvania’s Office of Inspector General

detailing sexual harassment and sexual misconduct at the PSP; iii) whether the District

Court properly denied Stackhouse’s request that the Court charge the jury on the so-called

“4/5 rule” that has been implemented in EEOC regulations as evidence of disparate

impact; and iv) whether Stackhouse was prejudiced by the fact that, after Stackhouse’s

counsel had presented his closing argument, the District Court gave the jury a clarifying

instruction on the critical issue of PSP’s reason for the challenged employment decision.



       The standard of review of a grant of summary judgment is plenary. United States

       1
         Stackhouse filed three notices of appeal: i) an appeal from the judgment entered on
October 4, 2005 on her retaliation claim; ii) an appeal from the judgment entered on October 4,
2005 on her disparate impact claim; and iii) an appeal from the judgment entered on September
15, 2005 on her disparate treatment claim and from the order entered on March 14, 2006 denying
her motion for a new trial. These appeals have been consolidated.

                                              3
Ex. Rel. Quinn v. Omnicare, 382 F. 3d 432, 436 (3d Cir. 2004). The District Court’s

decision to exclude evidence pursuant to Fed. R. Evid. 403 will not be reversed unless it

is arbitrary and irrational. Bhaya v. Westinghouse Electric Corp., 922 F.2d 184, 187 (3d

Cir. 1990). The standard of review of a District Court’s refusal to give a particular jury

instruction is abuse of discretion. United States v. Khorozian, 333 F.3d 498, 507-08 (3d

Cir. 2003). The standard of review of a decision to deny a motion for a new trial is abuse

of discretion. Montgomery County v. Microvote Corp., 320 F.3d 440, 445 (3d Cir. 2003).

       We have reviewed the record with care and conclude that, for the reasons set forth

in the District Court’s opinions and implementing orders, the District Court correctly

granted PSP’s summary judgment motion on Stackhouse’s retaliation claim and exercised

proper discretion when it granted PSP’s in limine motions. We also conclude that the

District Court appropriately declined to give a jury instruction on the 4/5 rule.

       The fourth ground for appeal requires a somewhat more extended discussion. At a

charge conference, the Court distributed to counsel proposed written instructions and a

verdict sheet. During discussion of the instruction concerning the disparate treatment

claim, counsel for PSP urged that the proposed instruction’s use of the words “motivating

factor” did not make it clear that sex “was not just motivating but it was determinative.”

(App. at 2012). He thus characterized the proceeding as a pretext case. Stackhouse’s

counsel, on the other hand, argued that “[p]laintiff need only to prove that her sex played

a motivating factor.” (Id.). He thus characterized the proceeding as a mixed motive case.

       The instruction as proposed by the Court used both “motivating factor” and

                                              4
“determinative” language. The Court agreed with PSP’s position as to what Stackhouse

must prove to establish her disparate treatment claim and concluded that its charge, as

proposed, accomplished that result. Stackhouse’s counsel stated, “[we’re] satisfied with

the instruction.” (App. at 2014).

       Stackhouse’s counsel closed to the jury relying on this instruction. Thereafter, the

Court gave the instruction, to which no one objected at the time.

       After considerable deliberation, the jury returned with a question as to whether the

instruction in question was inconsistent. The Court, after discussion with counsel,

decided that the instruction was in fact incorrect in that it contained elements of both a

mixed motive claim and a pretext claim. Over the objections of Stackhouse’s counsel, it

confirmed that the case was a pretext case and that the jury should be recalled, informed

that the previous instruction was in error, and then given an instruction and verdict form

that was appropriate to a pretext case. That was done, and subsequently the jury returned

a verdict for PSP. Stackhouse moved for a new trial. The District Court denied the

motion.

       We have reviewed the record and conclude that the confusion over this particular

instruction and its correction after closing arguments did not prejudice Stackhouse. The

case was tried as a pretext case. Stackhouse’s counsel approved the incorrect charge.

Although he referred to it and the corresponding verdict sheet during his closing

argument, the pertinent portion of his argument was on the basis of a pretext case, not a

mixed motive case. He noted that PSP contended that the 1998 test on which Stackhouse

                                              5
scored highest was not the sole basis for promotion, and that there were secondary criteria

on the basis of which other persons, who happened to be men, were selected.

Stackhouse’s counsel sought to demonstrate through extensive argument that there was

no reliance on secondary criteria, that, in other words, secondary criteria were a pretext

for gender discrimination:

              There has been a lot of talk in this trial, mostly from defendants, about the
              so-called secondary criteria. Well, this is what it says ladies and gentlemen
              of the jury, but really we have other criteria. Well, where are they? Where
              are they?

(App. at 2033).

       The argument did not persuade the jury.

       For the reasons discussed, we will affirm: i) the judgment of the District Court on

Stackhouse’s retaliation claim; ii) the judgment of the District Court on Stackhouse’s

disparate impact claim; iii) the judgment of the District Court on Stackhouse’s disparate

treatment claim; and iv) the order denying Stackhouse’s motion for a new trial.




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