JOHN M. COLLINS, Appellant v. ALCO PARKING CORPORATION
No. 05-2802
United States Court of Appeals for the Third Circuit
May 22, 2006
448 F.3d 652
Before: RENDELL, SMITH and BECKER, Circuit Judges
On Aрpeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 03-cv-1762). District Court Judge: Hon. Gary L. Lancaster. Submitted Under Third Circuit LAR 34.1(a) March 28, 2006.
BECKER, Circuit Judge
John M. Collins filed suit against Alco Parking Corporation (“Alco”), alleging that the company fired him because of his age in violation of the Age Discrimination in Employment Act,
I.
Collins worked for Alco Parking Corporation for nine years, first as a part-time attendant and then as a full-time Lot Manager. This case revolves around an incident in which a customer, John Miller, was overcharged by one of the company’s employees. Miller parked two cars in the lot.
At trial, the parties presented dramatically different accounts of what happened next. Alco claimed that Collins confessed to having tаken the extra money and that this was the reason for his termination. Four employees testified that they heard Collins’ confession.
Collins denied making a confession and presented evidence purporting to prove that he was not and could not have been the employee of whom Miller complained. Specifically, Collins asserted that on the day in question he was working inside the lot, where he direсted traffic and kept count of spaces. According to Collins, any customer who obtained parking in the lot would have first encountered two other employees: the “flag man,” whose job was to direct customers from the street into the lot; and the “cash man,” who sat in the booth, collected fees and let customers through the gate. Under this arrangement, Collins insists, he would only have interacted with a customer, if at all, after the customer had already paid his fees.
Collins identified several additional problems with the company’s story. Miller said he was overcharged by a “white/gray haired man wearing a parking jacket,” but this description fit the flag man and the cash man as well as Collins. Moreover, Collins alleged, the flag man had been disciplined in the past for soliciting extra money from customers, and the cash man turned in a false report of the payments made on the day in question. Collins, in contrast, had never been the subject of a complaint during his nine years of work; nor had he ever been disciplined for violating company policies. Collins further alleged that Alco knew that he was not
The jury rendered a verdict for Alco, and the District Court entered judgment accordingly. Collins raises two issues on appeal: the District Court’s instruction concerning the availability of attorney fees, and the District Court’s instruction on pretext.
II.
Under
Collins contends that the plain error standard is inapposite because he comрlied with the requirements of
As to the pretext instruction, Collins does not cite any portion of the record in which he objected to the District Court’s instruction. Collins did offer alternative instructions, but “[m]erely proрosing a jury instruction that differs from the charge given is insufficient to preserve an objection.” Franklin Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 339 (3d Cir. 2005) (citations omitted).
Collins invokes United States v. Russell, 134 F.3d 171 (3d Cir. 1998), and Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3d Cir. 1998), for the proposition that “[a] party complies with
Both instructions are thus properly reviewed for plain error. “Under the discretionary plain error standard, we will reverse the trial court only where a plain еrror was fundamental and highly prejudicial, such that the instructions failed to provide the jury with adequate guidance and our refusal to consider the issue would result in a miscarriage of justice.” Franklin Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 339 (3d Cir. 2005) (quotations omitted).
III.
Turning to the merits, Collins first challenges the following instruction on attorney’s fees:
You are instructed that if plaintiff wins on his claim, he may be entitled to an award of attorney fees and costs over and above what you award as damagеs. It is my duty to decide whether to award attorney fees and costs, and if so, how much. Therefore, attorney fees and costs should play no part in your calculation of any damages.
App. 265: 19-24. Because Collins concedes that the above statement correctly sets forth the law, the only issue is whether the District Court committed plain error affecting substantial rights by giving the instruction at all. Collins contends that the
We need not and do not decide now whether a district court commits error by informing a jury about the availability of attorney fees in an ADEA case. Assuming arguendo that an error occurred, such error is not plain, for two reasons.
First, “error is plain only where the proper сourse is ‘clear under current law.’” Franklin Prescriptions, 424 F.3d at 343 (quoting United States v. Vazquez, 271 F.3d 93, 100 (3d Cir. 2001) (en banc)). Collins cites no controlling authority holding that a district court may not inform the jury of the availability of attorney fees. Nor do we think that such a conclusion flows ineluctably from the logic of our prior cases. While this Court has repeatedly affirmed the principle that district courts should protect juries from irrelevant and prejudicial instructions, see, e.g., Watson v. SEPTA, 207 F.3d 207 (3d Cir. 2000); Curnow v. West View Park Co., 337 F.2d 241 (3d Cir. 1964), it is not “obvious” or “рlain” that an instruction directing the jury not to consider attorney fees falls into this category. In fact, it is at least arguable that a jury tasked with computing damages might, absent information that the Court has discretion to award attorney fees at a later stage, seek to compensate a sympathetic plaintiff for the expense of litigation. Of course, in acknowledging this possibility we do not imply that a fee-shifting instruction is proper—only that a well-crafted instruction is not obviously at odds with our prior cases.
Second, we cannot say that the District Court’s error, if any, was “fundamental and highly prejudicial.” Several considerations support this conclusion. First, the whole point of the District Court’s instruction was that the jury should not consider attorney fees in rendering a verdict. We see no reason to think that the jury was unable to heed this simple direсtive. Second, the instruction stated only that Collins might be awarded attorney fees. The jury thus had no reason to think that it had to take the drastic step of returning an incorrect verdict as
In short, Collins would have us believe that there is some reasonable possibility that the jury, in order to eliminate the chance that Collins might be awarded attorney fees, took the disproportionate step of returning a verdict against him even though it believed he was the victim of age discrimination, notwithstanding the District Court’s clear instructions to the contrary. In our view, suсh a theory is too implausible to support a finding of plain error.
A contrary holding is not required by the two cases on which Collins principally relies. See Brooks v. Cook, 938 F.2d 1048 (9th Cir. 1991) (holding that the district court abused its discretion by telling the jury about the right of a prevailing plaintiff to attorney fees under
In sum, the District Court did not commit plain error by informing the jury that Collins might be able to recover attorney fees.
IV.
Collins next claims that the District Court misstated the law of pretext in four wаys: first, by instructing the jury to ignore evidence that Alco’s stated reason for firing Collins was false; second, by failing to instruct the jury that it could infer age discrimination from the defendant’s allegedly shifting and insincere explanations; third, by instructing on circumstantial evidence that was not part of the record; and fourth, by inadvertently suggesting that the jury should only find the company’s explanation pretextual if it was wildly implausible. None of these arguments is persuasive.
First, the District Court did not direct the jury to ignore evidence that Alco’s stated reason for firing Collins was false. To the contrary, the District Court correctly stated: “If you find based on the facts that defendant’s explanation for firing Mr. Collins is not worthy of belief, then you may, but need not, draw the inference that age discrimination was the true reason that Mr. Collins was fired.” App. 261.
Collins complains that this instruction, although correсt, was vitiated by the following admonition:
You are not here to decide whether defendant’s decision was a fair one, an unkind one, or a wise one. Nor are you here to clear up the mystery of who overcharged the customer. The only question you are to decide is whether plaintiff’s age played an actual role in defendant’s decision-
making process to let him go and his age had a determinative influence on that decision.
App. 263 (emphasis added). Collins insists that the underscored part of the above statement steered the jury away from an important prong of his case: that he was not, and could not have been, the employee who overcharged the complaining customer. Such evidence was relevant, he reasons, because it makes no sense to think that he would have confessed to having done something wrong when he was not the one at fault. If the jury believed Collins’ evidence, it was thus likely to find that the company’s alleged reason for firing him was a lie, from which the jury might reasonably have inferred that the company’s real reason for firing him was his age. Hence, Collins concludes, the District Court erred by discouraging the jury from focusing on evidence that Collins was not the one to accept the overcharge.
We do not think that the District Court’s failure to connect these dots explicitly rises to the level of plain error. The District Court was technically correct to say that the real issue was not who overcharged the customer, but whether the company fired Collins because of his age. While the Court might have more fully explained the relationship between these two issues, its failure to do so cannot be deemed a “fundamental” and “highly prejudicial” error. This is particularly true because the Court clearly and repeatedly advised the jury of the correct legal standard: “If you find based on the facts that defendant’s explanation for firing Mr. Collins is not worthy of belief, then you may, but need not, draw the inference that age discrimination was the true reason that Mr. Collins was fired.”
Second, the District Court did not сommit plain error by not expressly instructing the jury that it might infer discriminatory motive from the company’s allegedly shifting and insincere explanations for why it fired Collins. Notably, Collins’ preferred formulation presupposes that the company’s explanations were “shifting” and “insincere”; given that these characterizations are not compelled by the record, the District
Third, the District Court did not err by instructing the jury on circumstantial evidence that wаs not part of the record. Collins complains of the following statement:
I cannot give you an exhaustive list of the types of circumstantial evidence that tends to indicate unlawful discrimination, but circumstantial evidence of unlawful discrimination often includes evidence such as the following:
Employment decisions that represent a departure from defendant’s standard practice, suspect methods of decision-making, proof of a history of discrimination, evidence of a hostile attitude toward older employees, evidence of negative stereotypical attitudes expressed about older employees, and statistical proof.
App. 261.
Collins contends that this instruction was confusing in that it might have caused the jury to conclude that he did not prove discrimination simply because he did not submit the types оf evidence to which the District Court referred. We disagree. The District Court expressly stated that its examples were illustrative rather than exhaustive. Moreover, Collins arguably submitted at least two of the types of evidence to which the District Court referred: evidence of a hostile attitude toward older employees, and evidence of negative stereotypical attitudes expressed about оlder employees. See Collins’ Br. at 12 (citing evidence that the company official who fired Collins
Finally, the District Court did not create the impression that the company’s explаnation for firing Collins should be deemed worthy of belief unless it was patently absurd or manifestly false. Illustrating its point that the role of the jury was to decide whether the company’s explanation was worthy of belief—and not whether the company was right—the District Court stated:
I’ll give you an admittedly broad example of this distinction. Suppose one of you came back from lunch late today and you told me that the reason you were late was that you misheard me when I said be back at 1:20 and thought I said be
back at 2:20. You would be wrong. I said 1:20, not 2:20, but your explanation that you misunderstood me would not necessarily be unworthy of belief. I could believe you that you misunderstood me, even though you were wrong. On the other hand, if you told me that you were late because a flash flood hit Grant Street and you were prevented from getting back to the courthouse by flood waters. Given the fact that it wasn’t raining at lunchtime and the other jurors, they all made it back to the courthouse, and Grant Street is on high ground, your explanation would be so weak, implausible, and inconsistent that it would be unworthy of belief.
Of course, the circumstances surrounding Mr. Collins’ firing are not that clear-cut. That is why we need you to decide based on the instructions that I have given you and all the facts whether or not defendant’s explanation is worthy of belief.
App. 262-263.
We reject Collins’ claim that this instruction constitutes reversible error. The District Court did not say that the company’s story could only be deemed unworthy of belief if it was as preposterous as the hypothetical juror’s flash flood excuse. Instead, the Court prefaced its analogy by noting that it was giving an “admittedly broad example,” and it concluded by observing that “the circumstances surrounding Mr. Collins’ firing are not that clear-cut.” Most importantly, the Court correctly stated the law governing pretext: that the jury could but did not have to draw an inference of discrimination if it concluded that the employer’s explanation for firing Collins was not credible.
In sum, Collins fails to show that the District Court committed reversible error by erroneously and/or incompletely instructing the jury on pretext.
For the reаsons stated above, we will affirm the judgment entered by the District Court.
EDWARD R. BECKER
UNITED STATES CIRCUIT JUDGE