2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

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w . vi l l a no va . e du/thir dc ir c uit_2003/146NOT PRE CEDENT IAL

UN ITED STA TES CO UR T O F A PPE AL S FO R T HE TH IRD CIR CU IT

NO. 02-2687

ROBERT C. BIANCHI

v. CIT Y OF PHI LADELP HIA; PHI LADELP HIA F IRE DEPART MENT

City of Philade lphia,

Appellant

On A ppeal from the Un ited States District Co urt for the Easte rn D istrict of P enns ylvania (D.C. Civi l No. 99-cv- 02409) Distri ct Judge: Hon. Anita B. Brody

Submitte d Under Third Circ uit LAR 34.1(a)

October 14, 2003 Be for e: S LO VI TE R, R OT H a nd C HE RT OF F, Circu it Judges

(Fil ed: November 4, 2003)

OPINI ON OF THE COURT2

SL OV ITE R, Circu it Judge

. I. The City of Philade lphia ( the “Cit y”) appeals f

rom the judgment

entere d by t

he District Cou rt in favor of the appellee, Ro bert Bianc hi (“Bianc hi”), following the jury’s verd ict for B ianch i on h is retaliation and d ue pr oces s claim s aga inst the C ity. The C ity argues t hat the Distri ct Court e rroneously admit ted graphi c evidence and test imony of sexual harassment not

withst anding the fact t

hat the court had di smissed t he harass ment

coun t; the D istrict Co urt imp rope rly upheld the jury’s f inding for B ianch i on h is proceduraldue process clai m, an alt ernative basis to uphold t he jury ’s damage award; the Distri ct Court e rred i n awarding Bianchifront pay ; and the amount of damages awarded cannot be sus taine d by t he evidence. After consi derati on, we conclude t hat the Distri ct Court di d not abuse i ts di scret ion

orerr a s amatte r o f l aw, andwe wi llaff ir m. II. Inasmuch as we are wri ting only for the parties and t

he Distr ict Court , we need not set for th the f actualand procedura l background of this matter

in deta il exc ept as may be helpfulto the e nsuing di scussi on. Bianchi j oined the Philadelphia Fir e Department in 1977, and i n 1994 he was pro mo ted to Lie uten ant. I n 19 96 h e w as a ssig ned to su per vise La dde r Co mp any N o. 2 and quickl y became the target of har assment beca use he was perceived as gay . The3

harassment

manifest ed its elf i n the pla cement of used condoms and homosexua l parapherna lia in his desk drawer, gear , and mail . He informed hi s Captain and Battal ion Chief, who chast ised Bianc hi’s pl atoon but di d not ale rt t he Fire Depart

ment administ rati on of the si tuati on. In lat e 1997 the har assment i ntensi fied. Bianchi’ s running ge ar had been soi led with uri ne or feces f

rom which he contr acted a fungalinfect ion around hi s mouth, and once again he di scovered pl aying cards depi cting nude males pla ced where he would see them. I n November he informed his superi ors that he intended to fi le an offi cial complaint , and he di d file such a complai nt, s ending the m a writte n memo (“November Memorandum”). This le d to an internal investi gation ove rseen by two Battal ion Chiefs who took stateme nts from the firefighters regard ing the harassm ent as w ell as Bianch i’s behavior. The firefi ghters charact erize d Bianchi as unstabl e, and a number of t hem request ed a transfer out of his command. On December 15, 1997, Bianchiwas removed from his command and transferr ed to a desk j ob in the s afety office. In Januar

y 1998, dishear

tened by his transfer

and frustra ted w ith the in vestiga tion, he again com plaine d abo ut his situ ation. S hortly therea fter, after

a meeting wit

h his super

visors and union repr esentatives, he was placed on a 30-day

medical l eave. Bianchi was re quired by the Fir e Department t o undergo psy chiatric eva luati on with Dr. A. Anthony

Arce, a psychiatrist

employe d by t

he City as an indepe ndent1 This let ter r ead: 1 2 HERE I S SOME S HIT FOR YOU AS SHOLE . WE HEAR 3 YOU ARE BAC K TO WORK I N A PUSS Y JOB. YOU 4 WILL NOT BECO MING TO YO UR REGUL AR JOB 5 ANYM ORE, WE WILL SEE TO THAT DON’T GET TO 6 COMFORTAB LE BEC AUSE WE WI LL NOT B E HAPP UY 7 UNTI L WE GET Y OU OUT FORGOOD!! !! YOU AND 8 YOUR BROTH ER ARE T WO QUEERS LI VING 9 TO GE TH ER WE PRE FER WO MA N. Y OU R B RO TH ER IS 10 NEXT. SO TELL M E WHA T IT IS LI KE TO JERK OFF 11 TOGETHE R. YOU DO NOT HAVE ONE FRI END I N THE 12 DEPART MENT AND YOU ARE NOT SHI T! !! ! YOU AN D 13 YO UR BR OT HE R W ILL B E G ON E SO ON . DO N’T 14 DRI VE AROUND TO MUCH AND DONT THINK YOU 15 WIL L B EC OM ING BA CK !!!! 16 17 App . at 1109 (the “A pril 7 Letter”) (mistake s in original). 18 4 consult ant in ps ychi atry , before he could re sume employment . Dr. Arce c oncluded that “from a psychiatri c standpoint, Mr. Bianchi [could not] be considered disabled and [was] able to resum e his re gular d uties.” A pp. at 1 191 . Bian chi retu rned to w ork, b ut on Ap ril 7, 1998, a

threat ening le tter

smeared with f

eces was sent

to his twin brot

her’s r esidence , where Bianchi was t

hen living. 1 Following t

his, Bianchi’ s personaltherapi st, Dr. Raymond Flove n, recommended that he take a medical leave, but cleared him for return in October 1998; Dr. Arce also clear ed him for re turn at that time but Bianchiwas stil l barr ed from ret urning by

the opinion of ot

her City psyc hiatrist s. Ult imately, in March 1999, Bianchiwas informed by the F ire D epartm ent’s H um an R esou rces M anag er that u nless h e app lied fo r unp aid disabi lit y l eave (as oppos ed to the paid medicalleave he was on) , he would be5

administ rati vely discharged; when Bianchi f aile d to apply

for such l eave, he was discharged. Bianchi t hen fil ed a complaint

against his for mer employ er, t

he City , al leging ( 1) sexual harassment pur suant t o Titl e VII of the Ci vil Right s Act of 1964, 42 U.S. C. §§ 2000(e ) et seq . and the Pennsy lvania Human Relations Act, 43 P.S. §§ 951 et seq. (the “PHR A”); (2) retali ation pursuant to these t wo acts and in violation of the First Amendment; (3) deni al of hi s procedur al due proc ess ri ghts (vi a 42 U.S.C. § 1983) ; and (4) i ntenti onal inf

liction of emoti onal dis tres s. Only the retaliation and proceduraldue process c laims proceeded to t rial . The jur

y found i n favor of Bianchi , awarding $500, 000 in compensat orydamages, $225, 000 in back pay , and $512, 500 as front pay. On M arch 14, 2 002 , the D istrict Co urt d enie d th e C ity’s Po st-T rial M otio n an d up held the v erd ict. On M ay 30, 2002, the Distri ct Court r uled that front

pay was t

he appropri ate re medy because of the em bittered relationship betw een B ianchi and his emplo yer. These decis ions for

m the basis of this timel y appea l. We have j urisdi ction to hear this appeal pur suant t o 28 U.S.C. § 1291. II I. DIS CUSS ION A. Admission of

Harassment Evidence and Rule 403 The City firs t argues that unde r Rule 403, the evi dence of haras sment was inadmissible b ecause it prejud iced and c onfuse d the jury. We rev iew a d istrict court’s evident iary

ruli ngs for abuse of discr etion. We have explained t hat an abuse of discr etion2 The City argues t hat becaus e the Dist

rict Court never e xplaine d its Rule 403 1 analy sis, we should exerci se plenar y r eview over the admissi on of the har assment 2 evidence pur suant t o United States v. Himel wright , 42 F.3d 777, 785 (3d Cir. 1994). The 3 Distri ct Court’ s Rule 403 anal ysi s is evi dent from the record. The court t ermed the 4 evidence “hi ghly probati ve and highl y mate rial ,” even t hough it r ecognized t

hat such 5 evidence coul d be prejudi cial . App. at 157-58. 6 6 mu st be “‘ a clear error o f judg men t, and n ot sim ply a different re sult w hich c an arg uably be obtaine d wh en app lying the law to the fac ts of the case.’” 2 Co lema n v. H om e D epot, Inc. , 306 F.3d 1333, 1341 (3d Cir. 2002) (quot ing SEC v. Infini ty Group Co. , 212 F.3d 180, 195 (3d Cir. 2000)). Rule 403 provides:

Although rel evant, evidence may be excluded i f its probati ve value is subs tantially outw eighe d by the d ange r of u nfair prejudi ce, confus ion of the issues , or mis leadi ng the jur y, or by considerati ons of undue delay, waste of time, or needless present ation of

cumulati ve evidence. Fed. R. Evid. 403. In general, the bal ance under t he rule s hould be st

ruck in favor of adm issib ility, Spain v. Gal legos , 26 F.3d 439, 453 (3d Cir. 1994), and hi ghly probati ve evid enc e is e xce ptio nally d iffic ult to exc lud e. Coleman , 306 F.3d at 1343-44. The City argues t he harass ment evidence in thi s case was not probati ve on the retal iati on clai m for which it was proffered and a dmitt ed. To prevai l on a retaliation claim und er the P HR A a nd T itle VII, B ianch i was requ ired to s how that he enga ged in protected conduct, that

the City s ubsequently took adverse employment acti on against hi m , an d t ha t th is a dv er se em pl oym en t ac tio n w as ca us ed by t he pr ot ec ted ac tiv ity. Th e e vi de nc e a t is su e is pr ob ati ve of th e th ird pr on g o f th e r eta lia tio n i nq ui ry, wh ich r equ ires in ves tigat ion of th e rea son s m otiv ating the a dve rse e mp loym ent a ction

.7

B ian ch i ar gu ed th at t he Fi re D ep ar tm en t w as aw ar e o f th e h ar as sm en t an d, p ro m pt ed by a desir e to keep i t quiet , separ ated Bianchifrom his employ ment after

he public ized i t. The Distri ct Court a dmitt ed the evi dence speci fical ly for thi s purpose, stat ing that it was

ma teria l to sh ow the n exu s be twe en th e reta liatio n an d th e filin g of the c om plain t. Because plaintiff

’s est ablis hment of a host ile work environment might help a j urydecide wh ethe r or n ot th e rea son giv en for h is sep arati on w as a pre text, see Glass v. Phila. Elec. Co. , 34 F.3d 188, 195 (3d Cir. 1994) (quot ing Estes v. Dick Smith Ford, Inc. , 856 F.2d 1097, 1103 (8t

h Cir. 1988) ), t

he April 7 t

hreate ning let

ter, which was writt en after Bianchi first made publ ic his complaint in the November Memorandum, could r eflect and theref ore be probative of hostili ty within t he Fire Depart

ment. Moreover, the hara ssment evidence i s probat ive of the basis for Bianchi ’s anger , which the City its elf ci tes as the cause of hi s eventualseparation. The City argues fur

ther t hat if the evi dence was admitt ed, i t shoul d have been limi ted to a

brief s ummary of the harass ment. However, a brief summary would not have been explanatoryof the progr ession of events. The Distri ct Court e xplaine d in it s opini on on the City’ s motion for judgment n. o.v. or

for a new tri al that it

had ruled at the f

inal pretrial c onference t

hat Bianchi“could pre sent evi dence of the s pecifi c inci dents of harassment

as rel evant and i mportant ba ckground to t he clai ms at hand, ” but speci fied that t he evidence s hould not domi nate the tri al. Our review of the record indi cates t hat the harassment evidence does not dominate the trial as the City cont ends.3 Because we conclude t hat the evidence obj ected t o was admissibl e, the issue of 1 wh ether th e due proc ess fin ding mu st be o vertur ned b ecau se it resu lted fro m ina dm issible 2 evidence is moot an d will not be discussed f urther. 3 8

The City fina lly argues th at the a dm ission o f the h arassm ent ev idenc e w as hig hly confusing t o the jur

y. However, in Gallegos we stated t hat “vi gorous cros s-examination, present ation of

contrar y evi dence, and careful instruc tion on t he burden of proof are the tradi tionaland appropri ate means of at tacki ng shakybut admiss ible e vidence. ” 26 F.3d at 453 (admitting evide nce that defendant feared would tur n tri al into a sexual harassment tri al ins tead of br each of ethi cs tr ial) . Here the Distri ct Court, which found that the probati ve value of t

he evidence out

weighed it s prej udice and t ipped the Rule 403 calculus in fav or of

its adm ission, g ave c arefu l limiting in struction s wh en ap prop riate, nam ely in the op ening instruc tion, thro ugh out the case, a nd in the fin al jury instruc tions. T hus, it did not abus e its discr etion by admissi on of the evi dence. B. Due P rocess The City nex t argue s that as a ma tter of la w, the jury’s due proc ess fin ding shou ld be overtur

ned. 3 It argu es that B ianch i could have , and d id, cha llenge the ref usal to reins tate him by going through state court, and that he could have employed both the union’s grievance pr ocedure and Civi l Servi ce Regulati on 22 to chal lenge the assess ment of the Cit

y’ s medicaldirector, Dr. Hayes, that he was unable to r eturn t o work. We have held that the availa

bili ty of procedures that provide some post -depri vation redress doe s not negat e plai ntiff

’s abi lit y t o maintai n an acti on merely because a pr etermi nation9

pro ced ure wa s ne ither imp oss ible n or im pra ctica ble. Stana v. Sch. Dist . of the City of Pitt sburgh , 775 F.2d 122, 129 (3d Cir. 198 5). Inth is cas e, th e j urywas c hargedwit h, anddec id ed, th atth e ap pea l me chani sms proffered by the City did not effectively provid e Bianc hi the oppo rtunity to challenge Dr. Hayes’ s medicaldetermi nation t hat Bianchitake for ced leave. The Distri ct Court t hen found that

the “pl ainti ff sust ained hi s burden of pr oof on the i ssue at each sta ge of the litigation by highlighting the incon gruity between e xisting regulations an d Bianc hi’s sit uation. ” App. at 34. We will not di sturb t

he jury ’s fi nding that

the proce dures depr ived him of due proc ess, an d w e there fore r eject the City’s du e pro cess a rgum ent. C. Damages Awards The City final ly object s to the Distr ict Court ’s upholding of the j ury ’s damages award. We review the Distri ct Court’ s decis ion not t o grant a ne w trialor vacat e the dam age aw ard for an a bus e of disc retio n. Evans v. Port Auth. of New York & N ew Jersey , 273 F.3d 346, 351 (3d Cir. 200 1). The City argu es that f

ront p ay can b e justifie d on ly when the em ployer irrep arably harmed the worki ng relationship. However, i n Blum v. Witco Chem. Corp. , 829 F.2d 367 , 373- 74 (3 d C ir. 1987 ), we s tated th at wh ile bac k pay co upled with reinstate men t is the pref erred r emedy i n employment discr iminat ion, “ reins tate ment is not always feasibl e, e.g. , because of irr eparabl e animosit y bet ween the part ies.

. . . In such a cas e . . . front10

pay mu st be u sed to mak e the p laintiff w hole for fu ture ex pecte d losse s.” Th e irrepa rable anim osity does not h ave to origina te with the em ployer fo r fron t pay to be appr opriate ly awarded. The Distric t Cou rt in this ca se aw arded fron t pay, find ing tha t the relatio nship between the par

ties had been ir

reparably damaged due t o a lack of mutua l res pect and trust, and that reinstat ement of Bianchi as a firefighter would put lives in danger because of th is da ma ge. W e rev iew the D istrict Co urt’s asse ssm ent for a bus e of disc retio n. See Feldman v. Phi la. Hous. Auth. , 43 F .3d 82 3, 832 (3d C ir. 1994 ). We see n o reas on to dist urb the Dis tri ct Court’ s deter minati on. The City also argues that

it was er ror for the Dist rict Court to have decided t he pr op rie ty o f a fr on t p ay a w ar d a fte r th e a m ou nt ha d a lre ad y be en de ter m in ed by t he ju ry. The C ity neither formally objected to the jury charge o n front pa y nor to the Jury Interro gatorie s on F ront P ay. Hav ing fa iled to o bject a t trial, it cann ot do so on appe al. Th e C ity fina lly con tend s tha t the f ron t pay a nd b ack pay a wa rds w ere e xce ssiv e. In revi ewing a jury

verdict on damages, a di stri ct court has an obli gation “ to uphold t he jury ’s award i f there exist s a reas onable basi s to do so, ” and may not “vacate or

reduce the award merely

because i t would have granted a l esser amount of damages.” Evans , 273 F.3d at 351- 52 (int ernal quotation mar ks and cit ations omitt ed). A new tri al is warranted only upon the showing t

hat the verdict

amounted from passi on or prej udice, and yet the size of a n aw ard alon e is in sufficie nt to pro ve p assio n or prejud ice. Id. at 35 2.11

The jury aw arded B ianchi $51 2,500 as f ront pay. The jury heard tha t Bianchi’s salar y was $49, 000 annuall y, App. 801, and coul d infer t hat at age 52, Bianchihad approximat ely

thir teen more y ears of work l eft unt il hi s ret irement . The award was not unreasonabl e. The City argues nonet

heless that Bi anchi had a dut y t o miti gate damages, and that the Dist rict Court shoul d have less ened his front pay award. The City

had the burde n of proof o n mitigation, and it failed to exam ine Bianc hi on his job p rospects or fu ture

earn ing s po tenti al at tr ial. See Robinson v. Sout heaster n Pa. Transp. Auth. , 982 F.2d 892, 897 (3d Cir. 1993 ) (placing the bu rden of p roving fa ilure to mitigate on the e mployer); Goss v. Exxon Office Sy s. Co. , 747 F.2d 885, 889 (3d Cir. 1984) (same) . On the other hand , Bian chi pu t forth e viden ce tha t he co uld n ot and cann ot find com parab le employment . Bianchitest ifie d that he could fi nd work onlyas a tow tr uck driver , tr

uck driver helper, and auto parts del ivery person. His last

employment

paid $5. 60 an hour with no medicalbenefit s. I n light of the Cit

y’ s failure to pr oduce evidence , we cannot

conc lude th at the D istrict Co urt’s ref usal to r educ e the f

ront p ay for the failure to mitig ate consti tuted an abuse of dis creti on. The jury’s bac k pay aw ard o f $2 25,00 0 fo r the pe riod fr om Oc tober 1 998 to Februa ry 2002 w as similarly within reason. T he City argues that the b ack pay aw ard should have commenced on November 4, 1999, when Bianchi’s pa id leave expire d, and not, as the jury found , on Oc tober 199 8, whe n he ask ed for reinstatem ent. How ever,given a district c ourt’s o bligatio n to u pho ld a jury aw ard w hen th ere is a re ason able b asis

for doing s o, thi s award must st and. We have prev iously stated that suc h an a wa rd do es no t have to be d eterm ined w ith abs olu te pr ecis ion

. See Durham Life Ins. Co. v. Evans , 166 F.3d 139, 156 (3d Cir. 1999) (“The court

may estimate what a c laimant ’s ear nings would have bee n without discr iminat ion, and uncerta inti es are r esolved aga inst a discriminat ing employ er.”) . The City refused t o issue Bi anchi medica l cle arance t o retur n to work when he request ed reins tate ment, and s o compelled him to use accumulated leave time whose benefit and value is imp ractical to mea sure. A s such there w as sufficien t evide nce in the rec ord to ju sti fy th e ju ry a w ar d f

or ba ck pa y. Because the j ury ’s front pay and ba ck pay awards are suff icie ntly supporte d by t

he evidence and are not s o excessi ve as “to s hock the consc ience of t his court,” Feldman v. Phila. Hous. Auth. , 43 F.3d 823, 833 (3d Cir. 1994), we find no a buse of dis creti on by t

he Distri ct Court’ s decis ion to l et the m stand. IV. CONCLU SI ON For the reasons set forth, we w ill affirm the District Court’s judgment and orders.

/s/ Dolores K . Sloviter Circuit Judge