                                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                    No. 10-3222
                                   _____________

                                SUZANNE PHILLIPS,

                                                   Appellant

                                          v.

                             POSTMASTER GENERAL,
                         UNITED STATES POSTAL SERVICE
                                 _____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                  (D.C. No. 07-815)
                      District Judge: Hon. Donetta W. Ambrose

                                Argued May 10, 2011

           Before: SMITH, CHAGARES, and VANASKIE, Circuit Judges.

                                 (Filed: June 2, 2011)

Christian Bagin (Argued)
Wienand & Bagin
100 First Avenue, Suite 1010
Pittsburgh, PA 15222

Gregory G. Paul
Morgan & Paul, PLLC
409 Broad Street, Suite 270
Sewickley, PA 15143

Counsel for Appellant
Alice L.A. Covington (Argued)
United States Postal Service
Commercial and Appellate Litigation
475 L’Efant Plaza, S.W.
Washington, D.C. 20260-1127

Counsel for Appellees
                                       ____________

                                         OPINION
                                       ____________

CHAGARES, Circuit Judge.

       Suzanne Phillips appeals the District Court’s denial of compensatory damages on

her contract claim following a jury’s finding that the United States Postal Service

(“Postal Service”) breached a settlement agreement with Phillips. Phillips also appeals

the District Court’s denial of spoliation sanctions against the Postal Service in light of its

failure to implement a litigation hold on the destruction of documents. For the following

reasons, we will affirm the District Court’s denial of compensatory damages on Phillips’

contract claim and dismiss her appeal with regard to spoliation sanctions.

                                              I.

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

disposition. Suzanne Phillips is a mail processing clerk who began her career at the

Postal Services in 1989. In 1998, Phillips sued the Postmaster General for sexual

discrimination and retaliation under Title VII stemming from the conduct of Postal

Service manager, Thomas Arneson. In 1999, Phillips and the Postal Service settled the

dispute. As part of the settlement agreement, Phillips was protected from any further

retaliation relating to her suit: “Defendant, the Postmaster General, agree[s] that neither

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he nor his employees will use against Plaintiff Phillips, any of her actions taken to protect

her rights under federal law, in terms of promotion, transfer, the grant of benefits or

salary raises, or any other term or condition of her employment with the defendant.”

Joint Appendix (“JA”) 471.

       Phillips alleges that beginning in 2006, she was retaliated against by Arneson

through his intimidating behavior, threats of discipline, denial of vacation leave, and

assignment of more physically demanding and less desirous work tasks. Following a

final agency decision on her complaint in March 2007, Phillips filed suit against the

Postal Service in June 2007 under the retaliation provisions of Title VII and based on the

Postal Service’s breach of contract of the non-retaliation provision in the settlement

agreement.

       In February 2008, Phillips requested during discovery a broad range of documents

including all documents and electronically stored information with Phillips’ name. In

October 2008, Phillips filed a motion for sanctions claiming that the Postal Service

committed spoliation of discovery materials by (1) shredding documents and (2) deleting

stored emails. Despite the Postal Service’s admission that it failed to impose a timely

litigation hold for the retention of documents, the District Court denied the motion for

spoliation sanctions, finding that Phillips’ allegations that relevant documents were

destroyed was pure speculation and that there was no evidence that the Postal Service

acted with bad or malicious intentions by destroying documents.

       The case was tried before a jury beginning on March 2, 2010. The District Court

proposed its own jury instructions to the parties on March 4. At a hearing, the Court

                                              3
raised concerns as to whether the jury could award damages based on the contract claim

and whether the verdict form to be submitted to the jury needed to differentiate the

damages between Phillips’ claims. Phillips’ counsel maintained: “[T]here aren’t any

monetary damages under the contract, itself. I think if there is a finding of liability,

which is coextensive, to the extent we were looking for anything under the contract, we

would come back to the Court for injunctive relief or otherwise to make her whole.” JA

590. Phillips’ counsel argued that a finding of liability on the breach of contract claim

was sufficient to allow Phillips to seek injunctive relief with the Court, and that damages

stemming from the contract claim did not need to be presented to the jury. JA 594-95.

Phillips’ counsel reiterated that there were two separate claims, for breach of contract and

retaliation, but that no instructions were necessary for damages stemming from the

breach of contract claim. JA 592, 594, 595.

       The District Court provided the jury with the following instruction on liability and

damages: “Here, because plaintiff’s breach of contract claim is based on a non-retaliation

provision in the settlement agreement, the damages for plaintiff’s breach of contract and

retaliation claims are coextensive.” JA 605. Additionally, the District Court removed

any breach of settlement agreement language from the damage section of the verdict

form. During deliberations, the jury submitted a question to the District Court regarding

whether it was allowed to provide damages to Phillips based only on her breach of

contract claim. The District Court recognized that its jury instructions noted that the Title

VII and breach of contract damages were coextensive, but that the verdict form was

unclear whether the jury could provide for a damage amount if it found that the Postal

                                              4
Service only breached the agreement. During discussions with the parties on how to fix

this problem, Phillips’ counsel maintained that the contract and retaliation claims were

coextensive and not actually two separate claims, and then requested an instruction for

emotional damages for breach of contract, although this had never been raised prior to

this time. JA 633-38.

       The District Court determined that it was too late for Phillips to change the theory

of the case:

       But, you can’t now change in midstream. You got up and you said, clearly
       and unequivocally, that you were looking for specific performance. You
       can’t now, after you have tried the entire case with that theory, switch gears
       and ask for emotional damages for a breach of contract which were never
       requested and never part of this case.

JA 634. The District Court determined that the contract and Title VII claims were not

coextensive and that the jury could have reasons to find that the Postal Service breached

the contract provisions without finding a Title VII violation. The District Court,

therefore, amended the jury instructions by removing the language that the liability for

both claims was coextensive. Additionally, the District Court revised the verdict form,

removing the issue of damages for breach of contract from the jury’s consideration.

       On March 9, 2010, the jury found that the Postal Service had breached its

settlement agreement with Phillips, but that it had not retaliated against Phillips under

Title VII. On March 22, 2010, the District Court entered final judgment against Phillips

on her Title VII claim and granted specific performance on her breach of contract claim.

On May 10, 2010, Phillips filed a motion for entry of judgment for contract damages and

a renewed motion for judgment as a matter of law and a motion to alter judgment. On

                                              5
June 30, 2010, the District Court denied the motion, finding that Phillips had never

sought damages for breach of contract and was therefore barred from such an award.

Phillips filed a timely appeal. 1

                                               II.

        Phillips raises two issues on appeal. First, she contends that the District Court

erred by denying her compensatory damages on her contract claim because she was

entitled to such damages as a matter of law and never waived her right to compensatory

damages. After a thorough review of the record, we conclude that Phillips waived her

right to compensatory damages on her contract claim repeatedly throughout the course of

the trial. JA 588-95, 604, 617, 633-35. Phillips made clear to the District Court all the

way through the second day of jury deliberations that she was only seeking specific

performance on her contract claim and she litigated her theory fully on the merits. See

Alexander v. Riga, 208 F.3d 419, 429 (3d Cir. 2000) (noting that it is incumbent on the

plaintiff to bring its request for damages to the trial judge prior to the time the jury retires

to consider the verdict).

       Second, Phillips maintains that the District Court abused its discretion by denying

her spoliation sanctions. We, however, cannot reach the merits of this issue as we do not

have jurisdiction under 28 U.S.C. § 1331 to review the District Court’s denial of Phillips’

spoliation motion. According to Fed. R. App. P. 3(c)(1)(B), a party is required to specify

the “judgment, order, or part thereof being appealed.” We have recognized that notices


1
 The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1367, 42 U.S.C. § 2000e-
16(c), and 39 U.S.C. § 409(a), and we have jurisdiction under 28 U.S.C. § 1291.
                                               6
of appeal are generally liberally construed as it is “almost axiomatic that decisions on the

merits are not to be avoided on grounds of technical violations of procedural rules.”

Polonski v. Trump Taj Mahal Assocs., 137 F.3d 139, 144 (3d Cir. 1998). Hence,

appellate jurisdiction is permissible over orders that are not specified in the notice of

appeal where: “(1) there is a connection between the specified and unspecified orders; (2)

the intention to appeal the unspecified order is apparent; and (3) the opposing party is not

prejudiced and has a full opportunity to brief the issues.” Polonski, 137 F.3d at 144; see,

e.g., Satterfield v. Johnson, 434 F.3d 185, 190 (3d Cir. 2006) (exercising jurisdiction over

the appeal because the district court’s order adopting a magistrate judge’s

recommendation regarding statutory tolling was related to the claim of ineffective

assistance of counsel because such a claim could not be reached without disposing of the

issue of timeliness); Polonski, 137 F.3d at 144 (finding that an appeal from an order

adopting a magistrate judge’s recommendation to reduce attorney’s fees was sufficient to

confer jurisdiction over an appeal of the earlier order granting attorney’s fees);

Drinkwater v. Union Carbide Corp., 904 F.2d 853, 858 (3d Cir. 1990) (exercising

jurisdiction because notice of appeal designating portions of summary judgment order on

a discrimination claim were “inextricably meshed” with prior order dismissing a

retaliation claim).

       Phillips’ notice of appeal only referenced the District Court’s June 30 order

addressing the damages relating to the contract claim. Even applying Rule 3 liberally,




                                              7
Phillips has failed to satisfy the test for appellate jurisdiction. 2 Phillips has not provided

any connection between the June 30 order and the earlier spoliation order. In fact,

Phillips never even challenged the jury’s findings of liability on the Title VII or contract

claim post-verdict or on appeal, thus possibly implicating evidentiary issues and her

motion for spoliation. Additionally, there is no indication in the notice of appeal that

Phillips intended to appeal the spoliation motion or any evidentiary-related issue.

Therefore, even considering the liberal application of Rule 3, we conclude that there is no

appellate jurisdiction to review the District Court’s denial of Phillips’ spoliation motion

as Phillips did not provide a proper notice of appeal on this issue.

                                              III.

       For the foregoing reasons, we will affirm District Court’s denial of Phillips’

request for compensatory damages on her contract claim and dismiss her appeal with

regard to spoliation sanctions.




2
  Phillips argues that her brief served as the “functional equivalent” of notice to warrant
appellate jurisdiction in accordance with Smith v. Barry, 502 U.S. 244 (1992). The
Supreme Court in Smith recognized that the Federal Rules of Appellate Procedure do
“not preclude an appellate court from treating a filing styled as a brief as a notice of
appeal [], if the filing is timely under Fed. R. App. P. 4, and conveys the information
required by Fed. R. App. P. 3(c).” Id. at 249. Accordingly, key to allowing a brief to
serve as the functional equivalent of a notice of appeal is that the non-appealing party is
given notice within the time period for filing the notice of appeal. Id. at 248. Phillips,
however, did not file her appellate brief within the time period for filing her notice of
appeal. Therefore, Phillips’ argument that her brief can serve as the functional equivalent
of a notice of appeal is rejected.
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