IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

KATHLEEN BROWN, 1 

) 

Plaintiff, 

v. 

COST COMPANY 

Defendant. 

j Civil Action No. 03-224 Erie 

1 

) 

1 

) 

MEMORANDUM OPINION 

McLAUGHLIN, J. 

This civil action involves claims of employment discrimination brought by the Plaintiff 

Kathleen Brown ("Plaintiff' or bbBrown") against the Defendant Cost Company ("Defendant" or 

"Cost"), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 5 2000e & 

q. Brown asserted that Cost discriminated against her on the basis of her sex when it failed to 

hire her as a laborer on a job site run by Cost on July 3 1, 2002. A jury trial was conducted on 

June 6,2005 through June 10,2005. On June 10,2005, the jury returned a verdict in favor of 

Cost. See Special Interrogatories [Doc. No. 461. Presently pending before the Court is Plaintiffs 

Motion for a New Trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. 

I. STANDARD OF REVIEW 

Rule 59(a) of the Federal Rules of Civil Procedure allows a party to seek relief from a 

judgment by filing a motion for a new trial. This relief may be sought on the grounds "that the 

verdict is against the weight of the evidence, that damages are excessive," that the Court 

committed substantial errors of law in the admission or rejection of evidence or instructions to 

the jury, or that the trial was otherwise not fair to the moving party. Montrzomerv Ward & Co. v. 

Duncan, 31 1 U.S. 243,251 (1940). 

The decision of whether or not to grant a new trial "is committed to the sound discretion 

of the district court." Boniorno v. Kaiser Aluminum & Chem. Corn., 752 F.2d 802, 812 (3d Cir. 

1984); see also Allied Chemical Cog. v. Daiflon, Inc., 449 U.S. 33, 36 (1980); Wagner v. Fair 

Acres Geriatric Ctr., 49 F.3d 1002, 101 7 (3d Cir. 1995). The district court's latitude varies, 

however, depending on the type of error alleged. Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d 

Case 1:03-cv-00224-SJM Document 70 Filed 03/03/06 Page 1 of 11
1 Cir. 1993). The court's latitude "is broad when the reason for interfering with the jury verdict is 1 a ruling on a matter that initially rested within the discretion of the court." Id. In this regard, 

however, even if the court determines that an error was made on the law, it should only grant a 

new trial when the movant was prejudiced by the error. Hulmes v. Honda Motor Co., Ltd., 

960 F.Supp. 844,849 (D. N.J. 1997). 

11. DISCUSSION 

I Brown argues that she is entitled to a new trial because: (1) the Court's verdict form was 

erroneous; (2) the Court erred in excluding evidence of a disparity between men and women at 

the Cost job site; and (3) the Court erred in granting Cost's motion in limine with respect to the 

I introduction of evidence regarding Franco Associates, LP, a separate corporate entity. We will I 

address Brown's arguments separately. 

~ A. Whether there was error in the verdict form 

~ Brown contends that she is entitled to a new trial based on alleged errors in the phrasing 

1 of the Court's Special Interrogatory number two.' Essentially, Brown claims that the issue ofjob 

'~nterro~atories 1 and 2 as answered by the jury appear below: 

1) Do you find that Plaintiff Kathleen Brown has proven by a 

preponderance of the evidence that she applied for a laborer position on 

July 3 1, 2002? 

YES X NO 

If you have answered "yes" to question 1, please continue to question 2. 

If you have answered "no" to question 1, please do not answer 

questions 2, 3,4, 5 and 6. Please sign and date this form and notify my 

courtroom staff that you have completed your deliberations. My staff 

will then escort you back into the courtroom. 

2) Do you find that Plaintiff Kathleen Brown has proven by a 

preponderance of the evidence that a laborer position was available at 

Cost Company when she applied? 

YES NOX 

If you have answered "yes" to question 2, please continue to question 3. 

If you have answered "no" to question 2, please do not answer 

questions 3,4, 5 and 6. Please sign and date this form and notify my 

Case 1:03-cv-00224-SJM Document 70 Filed 03/03/06 Page 2 of 11
availability should not have been restricted to July 3 1, 2002, but instead, the jury should have 

been able to consider whether any laborer vacancies arose within a short time after she expressed 

her interest in such a position on July 3 1,2002. Plaintiffs Brief pp. 16-17. 

Cost argues, however, that any objection that Brown now asserts to that portion of the 

Special Interrogatory was waived. Even in the absence of waiver, Cost argues that in the 

alternative there was no error of law in the language that was utilized. Defendant's Brief pp. 18- 

20. 

We begin by noting that the language in the Special Interrogatory form precisely tracked 

the language of the Jury Charge that had specijically been requested by Brown 's co~nsel.~ 

courtroom staff that you have completed your deliberations. My staff 

will then escort you back into the courtroom. 

[Doc. No. 461. 

2~he rlevant portion of the exchange between the Court and Brown's counsel is set forth below, as well as 

the portion of the charge, dealing with job vacancy: 

THE COURT: Before we talk about this, let me raise an issue here. 

You'll note in this draft charge, you have two dates; July 3 1" and August 23'd. 

Now it strikes me that all you really need to be is turned down once in order to 

get your damages. 

Are we - I mess this is for you. Mr. Matesic. Are you going to go to 

the iuw here or try to go to the iuw on two operative dates, or iust the July 3 lst 

date. where she showed up with whatever she showed up with? 

MR. MATESIC: Just the July 3 1" date. 

See Trial Tr., June 9,2005 p. 3 (emphasis added). 

THE COURT: Let's return yet again. Do you have objections to the 

charge? 

MR. PAWK: We don't, Judge. 

THE COURT: How can we improve the charge then? 

MR. MATESIC: I guess I'll limit it to one comment then. Page 9, 

Case 1:03-cv-00224-SJM Document 70 Filed 03/03/06 Page 3 of 11
second full paragraph. I believe that this paragraph is far too restrictive, given 

the evidence of record. 

THE COURT: Which one? "Brown cannot prove"? 

MR. MATESIC: That she has to prove that on the date she applied, 

there was one or more - on the day that she applied, there was a labor position 

which was open and that position remained open and Cost continued to seek 

applications from persons of her qualifications. 

THE COURT: That, by the way, is precisely the prong of the prima 

facie case that you wanted me to include. 

MR. MATESIC: Right. Well, then, let me say this: Upon further 

consideration, what the facts have shown as of right now is that there were 

laborer positions - I'll restate that. Brown had - according to Brown's 

testimony, she had delivered a piece of paper with her name and contact 

information on it, and after the date that she did that, a position arose, which 

Cost filled. And our position is that the facts in evidence show that - the facts in 

evidence show that she was discriminated against not only on July 3 1': but also 

on August 141h and also on August 1 81h. 

And so I would suggest that the charge be revised to read - and I'm 

only revising the first three lines here. Well. mv revision is restricted to the first 

three lines. If you find that Brown applied for a laborer's position on Julv 3 P', 

2002, that one or more laborer positions were open when she applied, and that 

one or more laborer positions remained open, and Cost continued to seek 

awulications from persons of her qualifications. 

THE COLTRT: Isn't that what I have? 

MR. MATESIC: Not one or more. 

THE COURT: Well, that - a laborer position - all you need is one, 

don't you? 

MR. MATESIC: What this suggests to the jury is luck of the draw. She 

has to show up at exactly the right moment in time and be denied at one precise 

moment. 

THE COURT: All right. Then I'll sav that one or more labor positions 

were open, because I don't reallv see what the difference is. With that 

correction, are you satisfied with the charge? 

MR. MATESIC: Yeah. 

THE COURT: What I'm going to sav is if vou found that Brown 

applied for a labor position on Julv 3 1". 2002, and that one or more laborer's 

positions were open when she applied, and that one or more laborer's positions 

remained oven, and Cost continued to - that's what 1'11 put in. 

Case 1:03-cv-00224-SJM Document 70 Filed 03/03/06 Page 4 of 11
Where the alleged error is invited by a party through her counsel, even "plain error" will be 

deemed waived. See 2660 Woodley Road Joint Venture v. ITT Sheraton Corp., 369 F.3d 732, 

744 (31d Cir. 2004) (failure to object to erroneous instruction tantamount to invited error); United 

States v. Stewart, 185 F.3d 112, 127 (3rd Cir. 1999), cert. denied, 528 U.S. 1063(1999) (court will 

only reverse under plain error doctrine where party did not invite error); United States v. West 

Indies Transport. Inc., 127 F.3d 299, 306 (31d Cir. 1997) (error in challenged jury instruction was 

invited where party's proposed instruction was remarkably similar to that actually given); 

Herman v. Hess Oil Virgin Islands Corp., 524 F.2d 767, 772 (3rd Cir. 1975) (where trial court 

followed party's proposal, any error at all was invited error); Maloney v. Tunnell, 218 F.2d 705, 

707 (3rd Cir. 1955) (plaintiff may not claim as error the giving of an instruction which he in 

substance requested); Drames v. Sun River Investment, S.A., 820 F. Supp. 209,215-16 (E.D.Pa. 

1993) (no error is present where the instructions to which the moving party objects are practically 

identical to the proposed jury instructions submitted by the movant); affd, 17 F.3d 1429 (31~ Cir. 

- - 

MR. MATESIC: Rinht there. 

THE COURT: Then we're good. I'll make that change on there. Then 

we're ready to go. ... 

- See Trial Tr., June 9,2005 pp. 155-157. 

Consistent with the agreement reached during the charge conference set forth 

above, the Court charged as follows: 

If you find that Brown applied for a laborer's position on July 31, 200, 

and that one or more laborer positions were open when she applied, and that one 

or more laborer positions remained open and Cost continued to seek applications 

from person's of her qualifications, you must then determine whether Cost 

intentionally discriminated against Brown because of her sex. 

- See Trial Tr., June 10, 2005 pp. 38-39. 

Case 1:03-cv-00224-SJM Document 70 Filed 03/03/06 Page 5 of 11
1994) (Table case); Philadelphia Fast Foods, Inc. v. Popeyes Famous Fried Chicken. Inc, 647 F. 

Supp. 216,230 (E.D.Pa. 1986) (plaintiff cannot complain to court's instructions when court 

adopted their own proposals). Based upon Brown's counsel's unambiguous request for the very 

language which he now suggests is erroneous, and consistent with the above case law, we find 

that Brown's objections in this regard have been waived. 

Alternatively, on the merits, we find that the language in the Special Interrogatories and 

Jury Charge relative to job availability was not erroneous. It was undisputed that Cost was 

required to hire employees for the construction site from the union halls first. See Trial Tr., June 

7,2005 p. 146; Trial Tr., June 9,2005 pp. 64-66. Only when applicants available through the 

union halls were exhausted, did Cost hire directly off the street. See Trial Tr., June 7,2005 pp. 

147-148; Trial Tr. June 8, 2005 p. 90. The undisputed evidence further revealed that Cost's labor 

needs fluctuated on a daily basis on the job site. See Trial Tr., June 7, 2005 pp. 171-172; Trial 

Tr. June 9,2005 p. 130. Given the constantly changing job needs, the practice was to fill a 

vacant position was soon as possible through the hiring of walk-ons. See Trial Tr., June 9, 2005 

p. 15. In short, given the daily fluctuations in laborer needs, it was impossible to predict when 

future vacancies would arise. Consequently, the undisputed factual record in this case is 

materially different than those cases which have held that a vacancy may be found to exist where 

a vacancy becomes available within a short period of time after the initial application. See e.g., 

Gourlev v. Home Depot, 2001 WL 755102 at *4 (E.D.Pa. 2001) (plaintiff applied for position, 

was interviewed, passed a drug test, and was told to contact store for start date; court held 

plaintiff need not show vacancy on exact date he applied); McLean v. Phillips-Ramse~. Inc., 624 

F.2d 70, 71-72 (9Ih Cir. 1980) (plaintiff applied for position with advertising agency and sent a 

follow up letter but was not hired for position that became available one month later; court held 

plaintiff should have been considered for position with employer while application was on file); 

Grant v. Bethlehem Steel Cop., 635 F.2d 1007, 1016-17 (2d Cir. 1980), cert. denied, 452 U.S. 

940 (1981) (court held rejection of plaintiffs' claims because they failed to apply at correct times 

made little sense where employer anticipated its needs and hired persons before jobs became 

available and were announced). 

In addition, the Minority Recruitment Memorandum, see Defendant's Ex. A, supplied by 

Case 1:03-cv-00224-SJM Document 70 Filed 03/03/06 Page 6 of 11
Brown on July 3 1,2002 failed to provide a telephone number or current home address. See 

Equal Employment Opportunity Commission v. Metal Service Co., 892 F.2d 341, 348 (3rd Cir. 

1990) (in the absence of a formal application, a plaintiff must show that he "made every 

reasonable attempt to convey his interest in the job to the employer"); Hill v. Metropolitan 

Atlanta Rapid Transit Authority, 841 F.2d 1533, 1544 (1 lth Cir. 1988) (affirming dismissal of 

discrimination claim where plaintiffs' submitted incomplete applications). In light of the daily 

changing labor needs discussed above, the scant contact information provided by Brown made if 

difficult, if not impossible, for Cost to have contacted her with respect to future openings even if 

that had been its practice. 

B. Whether the Court erred in excluding evidence 

In an attempt to circumstantially demonstrate gender animus, Brown sought to introduce 

evidence of the disparity between men and women on Cost's job site. At the outset we note that 

an employment discrimination plaintiff is not precluded from introducing statistical evidence as 

circumstantial evidence of discrimination in a disparate treatment case. Abrams v. Liahtolier, 

Inc., 50 F.3d 1204 (3rd Cir. 1995). We recognized this principle during trial, and specifically 

ruled that Brown was not precluded from introducing this evidence provided an appropriate 

foundation was proffered for its admission. Trial Tr. June 8,2005 pp. 3-4; 12-13. In this 

regard we stated: 

... I'm not precluding you from doing this, but I'm going to say 

this: ... [tlhe mere fact that there were no women working at the 

job site in the absence of any other contextual evidence such as the 

size of the pool, the available - the women who would have been 

available from the union or otherwise, the number of qualified 

women who would have been available, the number of women 

who applied - in other words, all those factors that form the 

availability pool, in the absence of that, the raw figure of zero is, in 

my view, irrelevant, and it would cause the jury to speculate. 

Understand, I'm not precluding you from getting into that, but you 

just are going to need some evidence from which a jury could draw 

some conclusions about the availability of the pool. If you can do 

that, then I'm going to let you get into that. 

- See Trial Tr., June 8,2005 pp. 12-13; 23. Brown failed to lay the requisite foundation and the 

evidence was excluded. Trial Tr., June 8,2005 pp. 51-52; 136-138. 

Case 1:03-cv-00224-SJM Document 70 Filed 03/03/06 Page 7 of 11
We find no error in the exclusion of this evidence under the circumstances of this case. 

The Third Circuit has consistently held that "raw numerical comparisons, ... not accompanied by 

any analysis of either the qualified applicant pool or the flow of qualified candidates over a 

relevant period of time" are not probative of alleged discriminatory motive. Ezold v. Wolf, 

Block. Schorr and Solis-Cohen, 983 F.2d 509, 543 (3rd Cir. 1993), cert. denied, 510 U.S. 826 

(1993); Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 11 12 n.4 (in discussing statistics 

submitted in an ADEA case, court stated "[wlithout any demonstration of the statistical 

significance of [the] data, a factfinder could not reasonably accord it much if any weight"); 

Mazus v. Dept. of Transportation, 629 F.2d 870, 875 (3rd Cir. 1980), cert. denied, 449 U.S. 1126 

(1981) (finding that plaintiffs statistical source did not accurately reflect the percentage of 

females interested in the work force in question); see also, Riding v. Kaufmann's Department 

Store 220 F. Supp. 2d 442,459 (W.D.Pa. 2002) (to carry evidentiary weight, statistics must be -9 

relevant, material and meaningful; statistics out of context do not raise an inference of 

discrimination); Johnson v. Penske Truck Leasing Co., 949 F. Supp. 1153, 1177 (D.N.J. 1996) 

(rejecting raw statistical evidence without any corresponding analysis). 

Brown argues, however, that her failure to have laid a foundation should have been 

excused given the fact that there were no women at the Cost job site. See Plaintiffs Brief pp. 8- 

10. She relies primarily on, inter alia, International Brotherhood of Teamsters v. United States, 

431 U.S. 324 (1977), for the proposition that in an "inexorable zero" case, an inference of 

discrimination can arise in the absence of any foundational requirement. We do not view 

Teamsters as necessarily eliminating a foundational requirement in a disparate treatment case 

where there are no members of the plaintiffs protected class in the relevant workforce. In fact, 

there was evidence in Teamsters that members of the plaintiffs' class were available for work, 

had access to the job site, and were qualified. 

Moreover, Brown's citation to additional authorities in her Brief do not compel a contrary 

conclusion. See e.g., Bruno v. W.B. Saunders Co., 882 F.2d 760 (3rd Cir. 1989), cert. denied, 

493 U.S. 1062 (1990) (plaintiff presented statistical studies prepared by an expert comparing 

whether employees over 40 received transfers or promotions in proportion to the percentage of 

all employees over 40); UnitedStates 871 F.2d 1239, 1245 (4th Cir. 1989), cert. 

Case 1:03-cv-00224-SJM Document 70 Filed 03/03/06 Page 8 of 11
denied, 493 U.S. 1020 (1990) (applicant flow data not required to prove intentional 

discrimination through statistics, but court took judicial notice of the fact that 50% of the 

relevant labor pool was comprised of women); Daines v. City of Mankato, 754 F. Supp. 681, 698 

(D.Minn. 1990) (when no applicant flow data was available, standard and accepted statistical 

sources for employment data were ~tilized).~ 

Finally, the excluded evidence was relevant, if at all, only on the issue of discriminatory 

animus. Given the jury's finding that there was no job available on July 31, 2002, the jury never 

passed on, nor was required to pass on, whether gender animus was a motivating factor in Cost's 

failure to hire Brown. Simply stated, even if the exclusion was erroneous, it was non-prejudicial 

given the jury's response to the Special Interrogatories. Cf. Citizens Financial Group, Inc. v. 

Citizens National Bank of Evans City, 383 F.3d 110, 123 (3rd Cir. 2004) (alleged error found 

harmless in light ofjury's finding) cert. denied, 125 S.Ct. 1975 (2005); Polito v. Continental 

Casualtv Co., 689 F.2d 457,464 (3rd Cir. 1982) (court's refusal to submit separate tort claim to 

jury harmless error given the jury's finding on another issue); D'Angelo v. ADS Machinery 

Corp., 128 Fed.Appx. 253,256 (3rd Cir. 2005) (given jury's failure to reach issue, no prejudice 

arising from court's decision to permit introduction of evidence); Easter v. Grassi, 5 1 Fed.Appx. 

84, 88-89 (3rd Cir. 2002) (no reversible error in admitting evidence relevant to respondeat 

superior liability where jury never reached issue of respondeat superior liability). 

C. Whether the Court erred in granting Cost's motion in limine 

Finally, Brown challenges the Court's ruling on Cost's motion in limine regarding Franco 

Associates, LP ("Franco"). See Motion in Limine [Doc. No. 361. Franco is a company owned 

and operated primarily by Charles Cost's daughter and wife. See Motion in Limine [Doc. No. 

361 7 5. According to Brown, Franco was created by Cost for the specific purpose of capturing 

minority set-aside contract dollars for women owned businesses. See Plaintiffs Brief p. 17. 

Brown sought to introduce evidence of Franco's business practices in order to demonstrate 

'~rown also sought to introduce evidence of Cost's alleged failure to comply with various minority hiring 

goals under various federal compliance regulations, see, ex., 41 C.F.R. 5 60-4.1 et sea., as well as its failure to 

allegedly adhere to its own internal EEO policies. As the Court made clear many times on the record in rejecting this 

evidence, any alleged failure of Cost to have met various suggested quotas was irrelevant to the issues driving this 

case. Trial Tr., June 8, 2005 pp. 23, 126-127; Trial Tr., June 9, 2005 pp. 39-40, 73. And, in any event, under 

Fed.R.Civ.P. 403, any minimal relevance it may have had was far outweighed by the potential to confuse the jury. 

Case 1:03-cv-00224-SJM Document 70 Filed 03/03/06 Page 9 of 11
Cost's reckless disregard for equal employment goals, as well as its intention to discriminate on 

the basis of gender. See Trial Tr., June 6,2005 pp. 10-14. We precluded Brown from eliciting 

testimony and/or other evidence regarding Franco's alleged business practices on the grounds 

that such evidence was irrelevant to Brown's action against Cost, and any marginal relevance 

would result in the potential for jury confusion. See Trial Tr., June 6,2005 pp. 30-3 1. We 

concluded that the issue of Cost's reckless indifference to Brown's rights could be squarely put 

before the jury relative to Cost's management actions. Z_d at p. 3 1. 

We find no error in our exclusion of the proffered evidence regarding Franco. The Court 

has broad discretion in determining the admissibility of evidence at trial. See Becker v. ARC0 

Chemical Co., 207 F.3d 176, 180 (31d Cir. 2000); Link v. Mercedes-Benz of North America, Inc., 

788 F.2d 918, 922-23 (31d Cir. 1986). Because Franco was not a party to the action and Brown 

never sought employment with Franco, any evidence regarding Franco's business practices was 

simply irrelevant to Cost's alleged discriminatory animus, and the potential for jury confusion 

and delay outweighed any minimal probative value of such evidence. See David v. Pueblo 

Supermarket of St. Thomas, 740 F.2d 230,238 (31d Cir. 1984) (relevant evidence may be 

excluded on the basis of confusion of the issues and considerations of undue delay). 

111. CONCLUSION 

An appropriate Order follows. 

Case 1:03-cv-00224-SJM Document 70 Filed 03/03/06 Page 10 of 11
IS Sean J. McLaughlin 

United States District Judge 

. 

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

KATHLEEN BROWN, 1 

Plaintiff, 

1 

1 

1 Civil Action No. 03-224 Erie 

v. 1 

COST COMPANY 

1 

1 

Defendant. 

1 

1 

ORDER 

AND NOW, this 31d day of March, 2006, and for the reasons set forth in the 

accompanying Memorandum Opinion, 

IT IS HEREBY ORDERED THAT the Plaintiffs Amended Motion for New Trial [Doc. 

No. 521 is DENIED. 

cm: All counsel of record. 

Case 1:03-cv-00224-SJM Document 70 Filed 03/03/06 Page 11 of 11