                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-30-2002

Easter v. Grassi
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1014




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                            NOT PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 02-1014


              ETHEL EASTER;
             DEANA KROWICKI

                       v.

      DAVID A. GRASSI, OFFICER;
HAROLD GREGORY STRICKLAND, OFFICER;
     JOSEPH P. EMERICK, OFFICER;
         FETTERMAN, OFFICER;
              DONNA KUHN;
         GENEVIEXVE PUTNAM;
            THE CITY OF ERIE;
               TAMMIE DOE;
       CHARLES E. BOWERS, JR.,
                  OFFICER;
            GARY PAPARELLI,
       d/b/a FELIX'S NIGHT CLUB;
         CATHLEEN PAPARELLI,
       d/b/a FELIX'S NIGHT CLUB;
     PAUL DEDIONISIO, Police Chief,
            in his official capacity;
   JOYCE SAVOCCHIO, MAYOR, in her
                official capacity

             Ethel Easter, Appellant




 On Appeal from the United States District Court
    for the Western District of Pennsylvania
        (D.C. Civil No. 98-cv-00226E)
    District Judge: Hon. Sean J. McLaughlin
                               Submitted Under Third Circuit LAR 34.1(a)
                                         September 24, 2002

                                         (Filed: October 30, 2002)

                        Before: BARRY, AMBRO and COWEN, Circuit Judges


                                                  OPINION


COWEN, Circuit Judge

        Ethel Easter appeals from the judgment of the District Court entered on December

19, 2001. We will affirm.

                                                       I.

        Easter filed this Title VII civil rights action against the City of Erie (“City”) and

numerous City employees. The resolution of motions for summary judgment and the

completion of other pre-trial proceedings resulted in the dismissal of all parties other than

Easter and the City. The case went to trial before the District Court on three Title VII

claims: (1) disparate treatment in overtime pay; (2) hostile work environment racial

harassment; and (3) hostile work environment sexual harassment.

        The jury returned a verdict in favor of the City. The jury addressed Easter’s claims

in a series of special interrogatories. With respect to the overtime claim, the jury found

that Easter established by a preponderance of the evidence that she was qualified to perform

overtime. It further found, however, that she failed to prove “by a preponderance of the

evidence that she was not offered overtime.” Supp. App. at 140. The jury similarly found



                                                       2
that Easter did not prove by a preponderance of the evidence “that she was subjected to

intentional discrimination because of her sex by conduct of fellow employees.” Id. at 150-

51. Easter filed a motion for a judgment n.o.v. or for a new trial. The District Court denied

this motion by an order dated December 19, 2001, and Easter timely appealed.

                                                      II.

        Easter initially asserts that the District Court erred in disregarding the arbitrator’s

liability determination with respect to her claim for backpay. Easter moved for summary

judgment as to her backpay claim, but the District Court denied this motion as premature

because “there has been no adjudication of liability.” App. at 6. An arbitrator resolved two

grievances under the collective bargaining agreement regarding the transfer of Easter,

pending the resolution of felony charges against her, from her position with the City’s

police as a “CSO,” responsible for various communications duties, to a document

reproduction job in another City office. The arbitrator, although finding that the transfer

did not violate the collective bargaining agreement, ordered that Easter be granted the

opportunity to return to the CSO position and awarded some of the backpay sought by the

union on her behalf.

        As both parties recognize, a court, in addressing a Title VII claim, may admit an

arbitral decision as evidence and accord it such weight “as the court deems appropriate.”

Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 (1974). However, the grievances and

the arbitral award at issue here only implicated the correct interpretation and application of

certain terms of the collective bargaining agreement. The issue of discrimination, either

                                                      3
under a provision of the agreement or Title VII, apparently was never addressed during this

arbitration process. The District Court therefore did not err in refusing to be bound by the

arbitral decision.

        According to Easter, the District Court erroneously rejected her claim arising out of

the allegedly discriminatory denial of her bid to be transferred to a traffic court position.

She apparently argues that the District Court adopted an unduly narrow understanding of an

adverse employment action in finding that this denial did not constitute adverse

employment action. We have held that an adverse employment action need not involve

direct economic harm and that conduct “substantially decreas[ing] an employee’s earning

potential and caus[ing] significant disruption in his or her working conditions” may

constitute such an adverse action. Durham Life Ins. Co. v. Evans, 166 F.3d 139, 153 (3d

Cir. 1999) (citation omitted). Easter, however, advances no argument in her brief for why

the alleged bid denial either substantially decreased her earning potential or resulted in

significant disruption. She, however, did admit to the District Court that the transfer would

not have resulted in a pay increase. We therefore conclude that the District Court did not

err in rejecting this bid denial claim.

        Easter further challenges the jury’s verdict with respect to her overtime claim and

her claim of hostile work environment sexual harassment. By moving for a judgment n.o.v.,

Easter essentially made a renewed motion for judgment as a matter of law under Federal

Rule of Civil Procedure 50(b). It is well established by this Circuit that a party cannot

make such a post-trial motion unless the party also moved for judgment as a matter of law

                                                      4
at the close of all the evidence. See, e.g., Greenleaf v. Garlock, Inc., 174 F.3d 352, 364-

65 (3d Cir. 1999); Yohannon v. Keen Corp., 924 F.2d 1255, 1261 (3d Cir. 1991). A

party’s failure to move for judgment at the close of all the evidence results in a waiver of

any right to bring a “post-trial attack on the sufficiency of the evidence.”1 Yohannon, 924

F.2d at 1262 (citations omitted). Because Easter never filed a motion for judgment as a

matter of law at the close of all the evidence, the District Court did not err in denying her

post-trial motion insofar as it sought a judgment as a matter of law.2

        We therefore turn to the District Court’s denial of Easter’s post-trial motion insofar

as it sought a new trial based on the weight of the evidence. We must review this denial for

abuse of discretion. See, e.g., Honeywell, Inc. v. Am. Standards Testing Bureau, 851 F.2d

652, 655 (3d Cir. 1989). A new trial is proper where “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 [the] conscience.” Williamson v. Consol. Rail Corp., 926 F.2d

1344, 1353 (3d Cir. 1991) (citation omitted).



  1
     As Easter argues, other circuit courts have recognized certain exceptions allowing a
party to challenge the factual sufficiency of a verdict even absent an initial motion at the
close of all of the evidence. See, e.g., Yohannon, 924 F.2d at 1262 & n.7 (collecting
cases). A panel of this Circuit has even criticized this rule against challenging factual
sufficiency as “an aberration harking back to the strict rules of common law.” Id. at 1262
n.10. We, however, are bound by precedent.
  2
     Easter even seemed to waive any challenge to this denial because her attorney
acquiesced in the District Court’s statement that “‘[a] post-trial motion for judgment as a
matter of law cannot be made unless judgment as a matter of law was requested at the close
of all the evidence’” and conceded that the focus of the argument should be on issue of a
new trial. Supp. App. at 116.

                                                     5
        According to Easter, the jury disregarded uncontradicted evidence in denying her

overtime claim. The District Court instructed the jury that Easter, in order to establish her

prima facie case of sex discrimination, must show that “she suffered an adverse

employment action - in this case, she was not offered overtime.” Supp. App. at 146. The

jury found that Easter failed to establish by a preponderance of the evidence that she was

not offered overtime, and the District Court properly exercised its discretion in concluding

that this finding was not contrary to the weight of the evidence.

        The testimony regarding the overtime claim was inconsistent, thereby raising at the

very least a serious issue of credibility. Easter’s testimony that the City failed to offer

overtime on the basis of her race was challenged by both documentary evidence and the

testimony of Genevieve Putnam, the Human Resources Director, as well as Deputy Chief

Steven Kovacs. For instance, both Putnam and Kovacs testified about the City’s efforts to

offer overtime on a fair basis and the administrative problems in administering the program.

Putnam further testified that Easter repeatedly refused overtime. It therefore appears that

the jury, far from committing a miscarriage of justice, actually reached its verdict regarding

the overtime claim by weighing and considering the contested evidence.

        Easter similarly contends that the jury failed to fulfill its duty given the allegedly

uncontradicted evidence of hostile work environment sexual harassment.3 Following our



  3
    Easter refers to her claims of both sexual and racial harassment. We consider any
challenge to the jury’s verdict regarding hostile work environment racial harassment as
waived because Easter only addressed the overtime and hostile work environment sexual
harassment claims in her written submission in support of the motion for a judgment n.o.v.

                                                       6
ruling in Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990), the

District Court informed the jury that, in order to prevail on her hostile work environment

sexual harassment claim, Easter must prove, inter alia, that “she was subjected to

intentional discrimination because of her sex by the conduct of fellow employees

consisting of conduct of an unwelcome sexual nature.” Supp. App. at 150. The jury found

that Easter failed to prove by a preponderance of the evidence that she was subjected to this

intentional discrimination. The District Court properly upheld this finding.

        The jury clearly had a right under the circumstances of this case to assess the

credibility of witnesses and to reject even uncontradicted testimony on the grounds of

credibility. See, e.g., Rhoades, Inc. v. United Air Lines, Inc., 340 F.2d 481, 485-86 (3d

Cir. 1965). Other witnesses challenged certain aspects of Easter’s testimony regarding the

alleged acts of harassment she suffered. For instance, Clark Peters denied Easter’s

assertion that she admonished him for discussing a pornographic movie in her presence,

and Maureen Delinski provided testimony that could be considered as showing that Easter

had a consensual relationship with Jack Hines, one of the individuals who allegedly

harassed her. We therefore conclude that the District Court did not abuse its discretion in

rejecting Easter’s request for a new trial on her hostile work environment sexual

harassment claim.




or for a new trial and the discussion at oral argument before the District Court was
generally limited to these two claims.

                                                     7
        Easter finally challenges three evidentiary rulings made by the District Court: (1)

ruling that the “Maggie Kuhn Incident” was not evidence of a hostile work environment,

Pl.’s Br. at 38; (2) permitting the admission of an investigative report prepared by David

VanBuskirk regarding pornography displayed by William Brown; and (3) sustaining the

City’s objection to her attorney’s questioning of Putnam concerning an alleged structural

bias arising out of the fact that Putnam, a former defendant, made grievance determinations.




        These contentions are without merit. The City did object on grounds of relevance

when Easter began to testify about an incident involving Kuhn, a K-9 police officer. Kuhn

accused Easter of incompetence in connection with this incident, but Easter was

exonerated. The District Court noted that it could not see how “an exoneration . . . is

evidence of hostile work environment,”App. at 55-56, and further indicated that Easter

could not testify about the newspaper report of the incident, id. at 57. The District Court,

however, did permit her “to move into other conduct by police officers,” and she testified

about both her exoneration and the alleged harassment that followed this incident. Id. at

57. The District Court’s admission of the investigative report ultimately played no role in

the outcome of the verdict because, as the District Court informed the jury, the report was

admitted solely as evidence of the state of mind of City officials regarding their

disciplinary action against Brown. Such considerations are relevant to the issue of

respondeat superior liability under the standard for hostile work environment sexual

harassment. See, e.g., Andrews, 895 F.2d at 1482. The jury, however, never reached this

                                                     8
question of respondeat superior liability because of its finding that Easter failed to

establish that she suffered intentional discrimination on the basis of sex. As Easter admits,

her questioning of Putnam regarding an alleged structural bias likewise was directed to this

respondeat superior issue.4

                                                    III.

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

on December 19, 2001.




  4
    Easter further contends that this alleged structural bias renders the procedures in the
City’s policy against sexual harassment unconstitutional. Because Easter never brought a
constitutional claim in this action, the issue of constitutionality is not before us.

                                                     9
TO THE CLERK:

     Please file the foregoing opinion.




                                          /s/ Robert E. Cowen
                                          United States Circuit Judge




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