                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                             _______________

                                   No. 11-1814
                                 _______________

                                DANITA HAYER,
                                                    Appellant

                                         v.

                        UNIVERSITY OF MEDICINE AND
                         DENTISTRY OF NEW JERSEY
                              _______________

                  On Appeal from the United States District Court
                          for the District of New Jersey
                         (D.C. Civil No. 2-07-cv-00251)
                      District Judge: Hon. Peter G. Sheridan
                                 _______________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  June 8, 2012

       BEFORE: SCIRICA, GREENAWAY, JR. and COWEN, Circuit Judges

                               (Filed: July 31, 2012)

                                 _______________

                                    OPINION
                                 _______________


COWEN, Circuit Judge.

           Plaintiff, who is African-American, alleged that defendant retaliated and
discriminated against her on the basis of race in violation of Title VII of the Civil Rights

Act, 42 U.S.C. § 2000e et seq., and the New Jersey Law Against Discrimination, N.J.S.A.

10:5-1, et seq. The district court granted defendant’s motion for summary judgment on

plaintiff’s retaliation claim; following a trial on plaintiff’s discrimination claim, a jury

returned a verdict in favor of defendant. After the jury returned its verdict, plaintiff filed a

motion for a judgment as a matter of law pursuant to Fed. R. Civ. P. 50, and alternatively,

a motion for a new trial pursuant to Fed. R. Civ. P. 59. The district court denied plaintiff’s

motions. Plaintiff’s appeal is limited to her discrimination claim. She argues that the

district court erroneously denied her motions and erred in admitting certain evidence,

requiring a new trial on her discrimination claim. For the following reasons, we will

affirm the district court’s judgment.

       (A)    Our review of a district court’s grant or denial of a judgment as a matter of

law pursuant to Fed. R. Civ. P. 50 is plenary. Northview Motors, Inc. v. Chrysler Motors

Corp., 227 F.3d 78, 88 (3d Cir. 2000). As plaintiff acknowledges in her brief, “[t]he rule

that a post-trial Rule 50 motion can only be made on grounds specifically advanced in a

motion for a directed verdict at the end of plaintiff’s case is the settled law of this circuit.”

Kutner Buick, Inc. v. Am. Motors Corp., 868 F.2d 614, 617 (3d Cir. 1989) (citations

omitted). Plaintiff did not make a Rule 50 motion prior to the case being submitted to the

jury. The reason plaintiff advances for failing to do so is that it was “obvious to

[plaintiff’s] counsel that his contemplated [Rule 50] motion would be similarly dealt with

by the Court,” as the defendant’s renewed motion to dismiss, which was denied.


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       Plaintiff’s reason for not making a motion for a directed verdict at the close of the

case is illogical. And even if counsel correctly believed that such a motion would be

fruitless before the district court, making the motion serves the purpose of preserving the

issue for appeal. Consequently, this reason is insufficient to justify a departure from

clearly settled law of this circuit. The district court did not err in denying plaintiff’s Rule

50 motion; we will affirm the district court’s judgment.

       (B)    Plaintiff additionally argues that the district court erred in denying her Rule

59 motion for a new trial on the grounds that 1) the testimony of defendant’s witness,

Laxmi Vazirani, defendant’s manager of Affirmative Action Equal Employment

Opportunity during the relevant time period (“Vazirani”), was not stricken from the

record; 2) evidence that another employee, who is Caucasian, was treated more favorably

requires a judgment in her favor; and 3) the jury selection process violated her equal

protection rights. She additionally argues that a new trial should be granted because the

district court erroneously admitted into evidence the EEOC’s Right to Sue Letter (“EEOC

Letter”) over her trial objection. Generally, the denial of a Rule 59 motion for a new trial

and a ruling on the admission of evidence are reviewed for abuse of discretion. Lazaridis

v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (rulings on Rule 59 motions reviewed for

abuse of discretion); Coleman v. Home Depot, 306 F.3d 1333, 1341 (3d Cir. 2002)

(admission of evidence reviewed for abuse of discretion). To the extent that a different

standard applies, it is noted.

       Plaintiff contends that Vazirani’s testimony regarding the investigation she


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conducted should have been stricken because Vazirani’s investigation was flawed and in

violation of EEOC guidelines. Plaintiff did not object to or make a motion to strike this

evidence during trial. Nevertheless, the district court considered plaintiff’s argument in

deciding her Rule 59 motion. We find no abuse of discretion in the district court’s

judgment. Plaintiff’s argument is relevant to the weight to afford Vazirani’s testimony,

not its admissibility. She had an opportunity to cross-examine Vazirani as to the

deficiencies of the investigation and make an argument to the jury about the weight it

should afford her testimony. Plaintiff cites no authority supporting her position that

testimony based on a flawed investigation renders the evidence inadmissible. As a result,

the admission of this evidence does not warrant granting a new trial.

       We also find no abuse of discretion in the district court’s denial of plaintiff’s Rule

59 motion on the ground that there was evidence of defendant’s more favorable treatment

of another employee who is Caucasian. It is not for us to weigh the evidence to determine

whether we agree with the jury’s verdict; we only determine whether “there exists that

minimum quantum of evidence necessary to support the jury’s finding.” Roebuck v.

Drexel Univ., 852 F.2d 715, 731 (3d Cir. 1988). The record supports the jury’s conclusion

that plaintiff was not being treated differently because of her race. Comparator evidence

is not dispositive of liability, particularly where, as here, the evidence regarding the

comparator and as a whole reveals a legitimate question as to whether the actions taken

against plaintiff were because of her race. Therefore, we will affirm the district court’s

judgment on this issue as well.


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       Plaintiff’s final argument raised in her Rule 59 motion and before us on appeal is

that the jury selection process violated her right to equal protection because the jury did

not represent a fair cross-section of the community. Because this argument is based on the

interpretation and application of a legal precept, our review is plenary. Koshatka v. Phila.

Newspapers, Inc., 762 F.2d 329, 333 (3d Cir. 1985). To prevail on this claim, plaintiff

must show that the underrepresentation resulted from “purposeful discrimination” by

demonstrating (1) “the group alleged to be excluded is a ‘distinctive’ group in the

community;” (2) “the representation of this group in venires from which juries are

selected is not fair and reasonable in relation to the number of such persons in the

community;” and (3) “this underrepresentation is due to systematic exclusion of the group

in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364 (1979). Plaintiff’s

counsel highlights several factors that might explain the disparity he identifies between

the percentage of African-Americans in the community and the percentage of the eligible

African-American jurors. While the system might not be perfect, we do not have the

benefit of any expert statistical analysis or opinion and counsel’s own analysis is no

substitute. Further, the disparity identified by counsel and the factors that might explain it

do not establish that the jury selection process is intended to systematically exclude

African-Americans from jury pools. And there is no evidence to suggest that the jury

selection process was not random. Therefore, we reject plaintiff’s argument for a new

trial on this ground.

       Finally, plaintiff argues that a new trial is warranted because the district court


                                              5
allowed the EEOC Letter to be admitted into evidence. Plaintiff did not raise this

argument in her Rule 59 motion before the district court, but objected to the EEOC

Letter’s admission during trial. We will review it under an abuse of discretion standard. In

support of her argument that the EEOC Letter was erroneously admitted, plaintiff merely

states, “The Right to Sue letter’s admission violated FRE 401, 403 Evans v. Port

Authority, 273 F.3d 346, 350 nn.324 [sic] (3d Cir. 2001) and Coleman v. Home Depot,

306 F.3d 1333 (3d Cir. 2002).” (Pl. Br. 23.) Neither Coleman nor Evans is persuasive or

forecloses the admission of the EEOC Letter in this case. In both of those cases we found

no abuse of discretion in the trial court’s exclusion of an EEOC right to sue letter. And in

Coleman we emphasized that whether to admit an EEOC right to sue letter is within the

discretion of the district court. Coleman, 306 F.3d at 1345. The plaintiff has given us no

reason to conclude that the probative value of the admission of the EEOC Letter is

“substantially outweighed” by its prejudicial effect. And our independent review of the

record reveals no abuse of discretion in the district court’s implicit finding that the EEOC

Letter was admissible under Rule 403. Consequently, we need not decide whether

plaintiff’s failure to raise this argument in her Rule 59 motion before the district court

forecloses her from making the argument on appeal because, regardless, the admission of

the EEOC Letter cannot be a basis on which to grant a new trial.

       For the foregoing reasons, the district court’s judgment will be affirmed.




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