Smith v. Borough of Wilkinsburg

• Decision Date: 17 June 1998
• Docket Number: No. 97-3133,97-3133
• Citation: 147 F.3d 272
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 119, 74 Empl. Prac. Dec. P 45,538, 41 Fed.R.Serv.3d 838 Edward C. SMITH, Appellant, v. BOROUGH OF WILKINSBURG.
• Court: U.S. Court of Appeals — Third Circuit

Page 272

147 F.3d 272

77 Fair Empl.Prac.Cas. (BNA) 119,

74 Empl. Prac. Dec. P 45,538, 41 Fed.R.Serv.3d 838

Edward C. SMITH, Appellant, v. BOROUGH OF WILKINSBURG.

No. 97-3133.

United States Court of Appeals Third Circuit.

Argued Oct. 27, 1997.

Decided June 17, 1998.

Harry R. Ruprecht (Argued), King, Ruprecht & Berman, Pittsburgh, PA, for Appellant.

Thomas H.M. Hough (Argued), Barry, Fasulo & Hough, P.C. Pittsburgh, PA, for Appellee.

Before: SLOVITER, NYGAARD and KRAVITCH, ^* Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Edward C. Smith, former Manager of the Borough of Wilkinsburg, Pennsylvania, brought suit against the Borough alleging that it had failed to renew his employment contract on the basis of his age. At the close of the trial, the district court refused his request to instruct the jury that it could infer intentional discrimination if it disbelieved the Borough's asserted reasons for not renewing Smith's contract. Smith appeals from the judgment entered on the jury's adverse verdict, and seeks a new trial, claiming that the district court committed reversible error in omitting that instruction.

I

Smith was hired as Borough Manager on June 5, 1989, pursuant to a five-year employment contract. Under the contract, Smith's employment was to be renewed for an additional five years unless written notice was given by either party within thirty days before or after the contract's expiration. On March 23, 1994, a member of the Borough Council orally informed Smith, then 61 years old, that the Council would not be renewing his contract but that he was welcome to reapply for the job along with other applicants. Two weeks later, Smith, the Mayor and the Council President signed a resolution stating that the Borough would not be extending Smith's employment agreement and that it would begin interviewing other applicants for the position.

Although Smith told several council members that he was interested in retaining his position, he did not formally submit an application. On February 15, 1995, Thomas Leach, who was 37 years old, was hired as the new Borough Manager. Only after Leach was hired did Smith apply in writing for the Borough Manager position.

Smith brought suit against the Borough alleging that his employment contract had not been renewed on account of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623 ("ADEA"). At trial, Smith produced evidence that the fiscal health of the Borough had improved markedly during his tenure. In defense of its action in failing to renew Smith's contract, the Borough elicited testimony from Council members that Smith's performance on the job had been inadequate. Smith then offered evidence that the Borough had not criticized Smith's performance at prior hearings before the Equal Employment Opportunity Commission and the Pennsylvania Commission on Human Relations and in its responses to Smith's interrogatories. Instead, the Borough explained that it did not renew Smith's contract because Smith had not timely applied for the position. ¹

At the court's request, the parties submitted written proposed jury instructions and objections to the court's proposed charge. Smith, citing our opinion in Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061 (3d Cir.1996) (en banc), cert. denied, --- U.S. ----, 117 S.Ct. 2532, 138 L.Ed.2d 1031 (1997), requested that the court instruct the jury that it could infer intentional discrimination if it found the Borough's reasons for not renewing the contract to be false or not credible. Thereafter, at an in camera charge conference, Smith objected to the court's draft charge, noting that it did not include his requested instruction on pretext. The court denied Smith's request and overruled his objection, stating: "it is error for me to instruct on that .... for me to give a pretext instruction would be an error, simple as that." App. at 983. Smith did not renew his objection after the court delivered the charge to the jury.

The jury returned a verdict for the Borough. Smith then filed a motion for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure on the ground that it was error for the district court not to have given the instructions he requested. The court denied the motion and this appeal followed.

II

When reviewing the propriety of a district court's charge to the jury, the scope of our review depends on whether the party challenging the charge properly preserved his or her objection before the trial court. Where the objection is properly preserved, our inquiry is whether the charge, "taken as a whole, properly apprises the jury of the issues and the applicable law." Limbach Co. v. Sheet Metal Workers Int'l Ass'n, 949 F.2d 1241, 1259 n. 15 (3d Cir.1991) (en banc). Where the objection has been waived, however, our power to review is discretionary and "should be exercised sparingly." Fashauer v. New Jersey Transit Rail Operations, 57 F.3d 1269, 1289 (3d Cir.1995) (quoting McAdam v. Dean Witter Reynolds, Inc., 896 F.2d 750, 770 n. 31 (3d Cir.1990)). When we choose to exercise that discretion, we may reverse only where the error is "fundamental and highly prejudicial or if the instructions are such that the jury is without adequate guidance on a fundamental question and our failure to consider the error would result in a miscarriage of justice." Fashauer, 57 F.3d at 1289 (quoting Bereda v. Pickering Creek Indus. Park, Inc., 865 F.2d 49, 53 (3d Cir.1989)).

The Borough has not argued that Smith waived his objection to the district court's charge. However, because the waiver issue is central to determining the scope of our review, we will not simply assume that the objection was preserved, merely because the Borough failed to raise the waiver argument.

Rule 51 of the Federal Rules of Civil Procedure provides that "[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." Fed.R.Civ.P. 51. Rule 51 plays a critical role in both the trial and appellate processes. By requiring parties to object with specificity before the jury retires, the rule ensures that the district court is made aware of and given an opportunity to correct any alleged error in the charge before the jury begins its deliberations. See, e.g., Fashauer, 57 F.3d at 1288. When errors are recognized and corrected at that early stage, the burden on the courts of appeals is diminished, fewer jury verdicts will have to be vacated and fewer cases will need to be tried a second time. See id. Unfortunately, though we have been consistent in articulating the patent purpose of Rule 51, we have not been as consistent in its application.

In Bowley v. Stotler & Co., 751 F.2d 641 (3d Cir.1985), we stated unequivocally that "[i]n this circuit it is clear that by filing and obtaining a ruling on a proposed instruction a litigant has satisfied Rule 51." Id. at 646. There, because counsel had obtained a definitive ruling rejecting his proposed instruction, we held that the issue had been preserved regardless of counsel's failure to reassert his objection following the delivery of the charge to the jury. That result was based on our belief that Rule 51 must be read in conjunction with Rule 46, which gives litigants an automatic exception to any adverse ruling by operation of law. ² We concluded that given "the relationship between Rule 51 and Rule 46, [ ] counsel was entitled to assume that he need not renew objections already ruled on." Id. at 647. See also United States v. General Motors Corp., 226 F.2d 745, 750 (3d Cir.1955) (discussing the relationship between Rule 51 and Rule 46).

In case after case, we have held that a definitive ruling from the trial court rejecting a requested instruction is sufficient to preserve the issue for appeal. See Tait v. Armor Elevator Co., 958 F.2d 563, 565 (3d Cir.1992); Simmons v. City of Philadelphia, 947 F.2d 1042, 1082-83 (3d Cir.1991); Waldorf v. Shuta, 896 F.2d 723, 731 n. 8 (3d Cir.1990); cf. United States v. Russell, 134 F.3d 171, 179 n. 4 (3d Cir.1998) ("issue preserved for appeal where the party 'may not have formally objected but it is clear from the record that the judge was made aware of the party's position before the jury retired to consider its verdict' ") (quoting Larry V. Muko, Inc. v. Southwestern Pa. Bldg. and Const. Trades Council, 670 F.2d 421, 425 (3d Cir.1982)). See also 9 James Wm. Moore et al., Moore's Federal Practice § 51.03 (3d ed. 1997) ("Reconciliation of the rules [51 and 46] relieves a party of the need to renew an objection to an instruction if the party's objection has previously been made clear to the trial court.").

Three of our cases appear to deviate from this interpretation. In United States v. Agnes, 753 F.2d 293, 301 n. 11 (3d Cir.1985) a case interpreting Fed.R.Crim.P. 30, the criminal analogue to Fed.R.Civ.P. 51, we held that notwithstanding prior objections and rulings, the failure of counsel to state objections to the instructions following the delivery of the charge constitutes a waiver. We reasoned that Agnes was distinguishable from Bowley because the district court in Agnes had not granted an automatic exception, which we inferred the district court had done in Bowley. However, the statement by the district court in Bowley that counsel had "an automatic exception to every adverse ruling" was merely a recognition of the interplay between Rule 51 and Rule 46. Bowley, 751 F.2d at 641. The "automatic exception" arose by operation of law--not because the district court had affirmatively granted one.

The Agnes court also cited Piechoski v. Grace Lines, Inc., 409 F.2d 66 (3d Cir.1969), for the proposition that "Rule 51 requires counsel to state explicitly any exceptions following delivery of the charge." Agnes, 753 F.2d at 301 n. 11. In fact, the Pie...