                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-27-2006

Evans v. Fed Rsrv Bank Phila
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2472




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                                                   NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 05-2472
                                      ____________

                                   PATRICIA EVANS,
                                             Appellant
                                         vs.

               FEDERAL RESERVE BANK OF PHILADELPHIA;
          SUSAN TOBIN-SANTOMO; DAVID STANTON; DOLORES POSI
                 _______________________________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                              (D.C. Civ. No. 03-cv-04975)
                      District Judge: Honorable John R. Padova
                    _______________________________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    March 21, 2006
              Before: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES
                                 Filed March 27, 2006
                                    ____________

                                        OPINION
                                      ____________

PER CURIAM.

              In 2003, Appellant Patricia Evans, a former human resources employee of

the Federal Reserve Bank (FRB), sued the FRB and several of its employees alleging that

they engaged in retaliatory conduct prohibited by Title VII of the Civil Rights Act of

1964 as amended, 42 U.S.C. § 2000e-3(a). For the reasons that follow, we will dismiss

the appeal.
                                              I.

                Evans claims that the FRB retaliated against her for lodging complaints

with supervising personnel that three African men she selected for possible employment

were denied positions because of this status. On February 4, 2005, a federal jury returned

a judgment against Evans. She filed a motion in the District Court for a new trial arguing

that the evidence was insufficient, the District Court improperly admitted multiple

hearsay statements, and the District Court improperly charged the jury on the retaliation

and causation elements of her claim. The Court denied the motion. Evans appealed pro

se, but failed to file a transcript or statement of issues on appeal. Meanwhile, she filed a

motion in the District Court for reconsideration of the order denying her motion for a new

trial raising several additional claims of error including juror incompetency and improper

use of a peremptory challenge. The District Court denied relief.1

                                             II.

               Evans’ notice of appeal challenges the verdict, but she has not expressly

appealed from the denial of her motion for a new trial or from her motion to reconsider.

See Fed. R. App. P. 4(B)(ii). However, based on her filings on appeal, we infer that she

also intends to appeal from the District Court’s denial of her motion for a new trial. See

Benn v. First Jud. Dist. of Pa., 426 F.3d 233, 237 (3d Cir. 2005) (explaining that

documents outside the notice of appeal may inform the jurisdictional question).



   1
       We have jurisdiction under 28 U.S.C. § 1291.

                                              2
              The Appellees primarily argue that the appeal should be dismissed for

failure to request and file a trial transcript pursuant to Federal Rules of Appellate

Procedure 10(b) and 3(a)(2). Rule 10(b) requires an appellant to order a transcript of the

parts of the District Court proceedings that the appellant considers necessary. Fed. R.

App. P. 10(b)(1). When the Rule is not followed, we have recognized that Rule 3(a)(2)

permits “the court of appeals to act as it considers appropriate, including dismissing the

appeal.” Fed. R. App. P. 3(a)(2); see Horner Equip. Intern., Inc. v. Seascape Pool Ctr.,

Inc., 884 F.2d 89, 92-93 (3d Cir. 1989). We will first examine whether any of the claims

can be assessed without a transcript.

              We review the District Court’s denial of a motion for a new trial for abuse

of discretion. See Brennan v. Norton, 350 F.3d 399, 430 (3d Cir. 2003). With respect to

Evans’ sufficiency argument we cannot assess whether the jury’s verdict was supported

by the evidence without the trial transcript. See LePage’s Inc. v. 3M, 324 F.3d 141, 146

(3d Cir. 2003) (setting forth the standard of review). With respect to Evans’ hearsay

arguments, whether third-party statements are hearsay is a question of law, subject to

plenary review. See United States v. Sallins, 993 F.2d 344, 346 (3d Cir. 1993).

However, since Evans presents neither the precise challenged statements nor the

surrounding testimony, we cannot ascertain for what purpose the statements were made.

              Similar hurdles are present in assessing Evans’ two jury charge arguments.

When examining the propriety of a jury charge, a court must look to the “charge as a



                                              3
whole in light of the evidence to determine if it fairly and adequately submitted the issues

to the jury . . . .” Pryer v. C.O. 3 Slavic, 251 F.3d 448, 454 (3d Cir. 2001). In neither

instance does Evans argue that the District Court gave the jury an erroneous charge.

Instead, she states that the jury was prejudiced by the District Court’s repetition of the

causation charge and by the Court’s use of certain language in the retaliation charge. The

lack of a transcript prevents intelligent review of the instructions as they were actually

given.

              With respect to her jury selection and competency claims, Evans argues

four separate issues: (1) the District Court failed to strike for cause a juror who used to

work for the FRB; (2) three female jurors were not fair and impartial because they were

talking and laughing throughout voir dire; (3) the jurors could not understand the District

Court’s instructions because one juror was asleep and another juror coughed; and (4) the

exclusion of an Asian male from the jury panel. Even assuming arguendo that the claims

are not waived, see 28 U.S.C. § 1867 (requiring timely objection to juror qualifications to

preserve issues under the Jury Section and Service Act, 28 U.S.C. §§ 1861-1878); United

States v. De Peri, 778 F.3d 963, 972 (3d Cir. 1985) (juror competency); Gov’t of Virgin

Islands v. Forte, 806 F.2d 73, 74-76 (3d Cir. 1986) (Batson claim), to succeed on a juror

competency claim raised after the jury reached its verdict, Evans must make a “strong

showing that a juror was incompetent.” Virgin Islands v. Nicholas, 759 F.2d 1073, 1078

(3d Cir. 1985). After a summary review, these claims also cannot be adequately



                                              4
examined without a transcript.

              Evans first claims that one of the jurors was not impartial because he

previously worked for the FRB. Without establishing a greater evidentiary basis for her

position, merely identifying a relationship between a juror and the defendant is not

sufficient to establish partiality. See United States v. Calabrese, 942 F.2d 218, 224-25

(3d Cir. 1991). However, without a transcript, we are unable to examine the questions

posed to the juror or the nature of the relationship. We express similar concerns with

respect to claims (2) and (3). Evans alleges that several jurors were talking and laughing

during voir dire and appeared to be familiar with each other. She says nothing more and

we are unable to examine the transcript to determine whether any mention was made of

this exchange at all. This is equally true with respect to the charge that one juror slept

through nearly half of the Court’s instructions. Even if a transcript were produced, Evans

does not support her assertion with any evidence, and without more, she cannot establish

prejudice. See, e.g., United States v. Cameron, 464 F.2d 333, 335 (3d Cir. 1972).

Finally, it is impossible to review Evans’ race-based peremptory argument adequately

because to determine whether “a prima facie case has been established requires

consideration of all relevant circumstances . . . .” Edmond v. Leesville Concrete Co., 500

U.S. 614, 631 (1991).

              While dismissing an appeal for failure to satisfy Rule 10(b) is highly

disfavored, see Horner Equip., 884 F.2d at 93, in deciding whether dismissal of the appeal



                                              5
is appropriate, Horner Equipment instructs that we look to the factors outlined in Poulis v.

State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984). See Horner Equip., 884

F.2d at 93. We are to consider “whether the defaulting party’s action is willful or merely

inadvertent, whether a lesser sanction can bring about compliance and the degree of

prejudice the opposing party suffered because of the default.” Id.

              Evans received numerous notices of her obligations and was given a

number of opportunities to satisfy Rule 10(b). For example, after the Appellees moved

for summary dismissal on these ground, we extended the briefing schedule and permitted

Evans to file any appendices, yet she again failed to comply. She has even been informed

of the ability to request transcripts in forma pauperis. At this point, it is hard to imagine

that Evans’ failure to satisfy the rule is completely inadvertent. Further, the degree of

prejudice that the Defendants have suffered by responding to her allegations weighs in

favor of dismissing the appeal.

              For the foregoing reasons, we will dismiss the appeal for failure to file a

transcript on appeal.
