2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-23-2013

Laura Watson v. Borough of Susquehanna

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-4329

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Recommended Citation

"Laura Watson v. Borough of Susquehanna" (2013). 2013 Decisions. Paper 527.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________

No. 12-4329

_________

LAURA WATSON

Appellant

v.

BOROUGH OF SUSQUEHANNA;

MIKE MATIS, Individually, Council President;

WILLIAM PERRY, JR., Individually, Council Vice-President

________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-09-cv-294)

District Judge: Honorable Robert D. Mariani

_______

Submitted Under Third Circuit LAR 34.1(a)

July 9, 2013

Before: GREENAWAY, JR., SLOVITER, and BARRY, Circuit Judges

(Filed: July 23, 2013) 

_______________

O P I N I O N

_______________
2

SLOVITER, Circuit Judge.

Laura Watson appeals from the District Court‟s Order granting the Defendants‟ 

Motion for Judgment as a Matter of Law and vacating the jury verdict against Defendant 

William Perry, Jr. We will affirm.1

I.

The following facts were established at trial. Watson was hired as a police officer 

by the Borough of Susquehanna (“the Borough”) in September 2006. At all relevant 

times, Michael Matis was President and Perry, Jr. was Vice-President of the Borough of 

Susquehanna Depot Council (“the Council”). The Council makes decisions regarding 

disciplining or terminating Borough police officers. Such decisions require a majority 

vote of the Council members present.

In May 2008, Watson brought charges against William Perry, Sr., father of Perry, 

Jr., for filing false reports. Watson provided sworn testimony in connection with the 

charges in July 2008. Perry, Sr. eventually pled guilty to the charges against him. 

Shortly thereafter, Watson learned that her Section 8 housing assistance form had been 

seen by some members of the Council. Watson believed the disclosure of this form 

violated her rights, and she therefore confronted the Secretary-Treasurer of the Council, 

Ann Stewart, who was in charge of the housing forms. According to Stewart, Watson 

 

1

 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3) and this 

court has jurisdiction under 28 U.S.C. § 1291. We review de novo an order granting 

judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b). See 

Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 249 (3d Cir. 2001) (stating 

that a Rule 50(b) motion is granted “only if, as a matter of law, the record is critically 

deficient of that minimum quantity of evidence from which a jury might reasonably 

afford relief.”) (internal quotation marks omitted).
3

grew angry and threatened her. The Council called a special meeting to address the 

incident between Watson and Stewart. At this meeting, Watson again became angry and 

aggressive. Six members of the Council, including Perry, Jr. and Matis, voted 

unanimously to terminate Watson. 

Watson brought suit against the Borough, Perry, Jr., and Matis, stating that she 

was retaliated against for exercising her First Amendment right to speech.2 In May 2012, 

a jury rendered a verdict in favor of all Defendants, except Perry, Jr. The jury found that 

Perry, Jr. had voted to terminate Watson in retaliation for her testimony against his father. 

The jury further found that only Matis and Perry, Jr. were aware of Watson‟s testimony 

against Perry, Sr. but that Matis would have made the decision to terminate Watson 

regardless of whether she had testified against Perry, Sr. The District Court vacated the 

jury verdict and award of damages against Perry, Jr. and granted judgment as a matter of 

law, finding that the jury could not hold Perry, Jr. liable because it did not find a majority 

of the Council liable for retaliation. 

II.

A. Liability of Perry, Jr.

Watson argues on appeal that the District Court improperly granted the Motion for 

Judgment as a Matter of Law and that the verdict against Perry, Jr. should be reinstated. 

To assert a First Amendment retaliation claim under Section 1983, Watson must show 

 

2

 Watson based her suit on two instances of protected speech: her testimony against 

Perry, Sr. and her report of the misconduct in relation to her housing form. Only the first 

instance of protected speech is at issue in the Motion for Judgment as a Matter of Law 

and the District Court‟s Order granting this motion.
4

that she engaged in a protected activity and that the protected activity was a “substantial 

or motivating factor in the alleged retaliatory action.” Pro v. Donatucci, 81 F.3d 1283, 

1288 (3d Cir. 1996). The Borough, however, can escape liability by showing that it

“would have taken the adverse employment action regardless of whether [Watson] had 

engaged in protected conduct.” Id. 

The District Court held that under the retaliation analysis, Watson had not 

established the necessary causal link between her protected speech and the alleged 

retaliatory action, her termination.

3

 The jury found that of the six Council members who 

voted to terminate Watson, only Perry, Jr. did so in retaliation for Watson‟s exercise of 

her free speech rights. Perry, Jr.‟s vote, alone, was not the cause of Watson‟s 

termination, and his vote did not “play[] some substantial role in the relevant decision.” 

Suppan, 203 F.3d at 236. Thus, the Court found that “the impartiality of the other 

Council members‟ votes nullified Defendant Perry, Jr.‟s unlawfully-motivated vote. 

Acting alone, he could not have violated Plaintiff‟s First Amendment rights.” App. at 26.

This court has held that a decision-making body cannot be liable when less than a 

majority of its members act with an impermissible purpose. See LaVerdure v. Cnty. of 

Montgomery, 324 F.3d 123, 125-26 (3d Cir. 2003). However, we have yet to consider 

 

3

 Watson argues on appeal that Perry, Jr.‟s vote to terminate her, as opposed to her 

termination, is the retaliatory action at issue. “„A tort to be actionable requires injury.‟” 

Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000) (quoting Bart v. Telford, 677 F.2d 

622, 625 (7th Cir. 1982)). Watson was not injured by Perry, Jr.‟s vote in favor of 

termination. If the majority of the Council, who had no knowledge of her testimony 

against Perry, Sr., had not voted to terminate her, Watson would not have been affected 

by Perry, Jr.‟s vote at all. The vote in favor of termination, by itself, cannot be the 

retaliatory action.
5

whether, in such a circumstance, a decision maker acting with an impermissible purpose 

is individually liable. The Second Circuit has provided guidance on this issue:

[I]f a majority of defendants prove that their individual votes against the 

plaintiff would have been the same irrespective of the plaintiff‟s protected 

conduct, then the defendants as a group cannot be held liable, and no 

individual defendant, even one whose proof falls short, can be so held 

because causation is absent. . . . [E]ven if some defendants based their 

decision solely on impermissible grounds, a finding that a majority of 

defendants acted adversely to the plaintiff on legitimate grounds is 

sufficient for all to escape liability.

Coogan v. Smyers, 134 F.3d 479, 485 (2d Cir. 1998). 

We agree with the reasoning of the Second Circuit and hold that Watson cannot 

establish the required causal link in order to hold an individual decision maker liable 

when less than a majority of the decision-making body acted for an impermissible 

retaliatory reason.4 Because the jury found that Perry, Jr. was the only Council member 

who acted for an impermissible purpose, and the votes of a majority of Council members 

are required to terminate Watson, Perry, Jr.‟s vote alone cannot establish the causal link 

between Watson‟s protected activity and her termination. The District Court did not err 

in granting the Motion for Judgment as a Matter of Law.

B. Other Issues

Watson raises several additional issues. They are meritless. First, Watson claims 

that the Defendants waived their right to request the Court vacate the jury verdict because

they did not object to the verdict before the jury was dismissed. However, the 

 

4

 Perry, Jr. may be individually liable if he threatened Watson that he would vote against 

her or harassed her because of her testimony. However, Watson did not put forth 

evidence of any retaliatory action taken by Perry, Jr. except for his vote in favor of 

termination. 
6

Defendants moved for judgment as a matter of law several times during the trial and after 

the verdict was rendered, presenting the very arguments on which the District Court 

relied when it granted their motion. 

Next, Watson argues that the Defendants waived their objections to the jury 

instructions, and that the District Court relied on the instructions being erroneous in order 

to vacate the jury‟s verdict. However, the District Court did not base its ruling on the 

jury instructions, but rather on a point of law related to the causation requirement. 

Watson also alleges that the Court erred by not using the Third Circuit‟s Model 

Jury Instructions when instructing the jury about the relevance of the timing of events. 

The Third Circuit‟s Model Jury Instructions state: “The timing of events can be relevant, 

for example if [defendant‟s] action followed very shortly after [defendant] became aware 

of [plaintiff‟s] protected activity.” § 7.4 (2012). The Court‟s instructions are 

substantially similar to the Model Jury Instructions and in accordance with the law. See, 

e.g., Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279-80 (3d Cir. 2000).5 

Next, Watson claims that Perry, Jr. can be individually liable under the “cat‟s 

paw” theory of liability. Under the cat‟s paw theory, as recognized by other circuits, a 

subordinate with an unlawful motive can be individually liable for the adverse 

employment action taken by his/her superior, if the superior was influenced by the 

subordinate. See Smith v. Bray, 681 F.3d 888, 897-98 (7th Cir. 2012) (gathering cases). 

This theory is inapplicable to this case. Perry, Jr. was not a subordinate, but one of the 

 

5

 Watson‟s argument that she was prejudiced by the length of the jury verdict form is 

also without merit. The form did not require her to prove more than was required under 

the law to prevail on her claims.
7

decision makers. Furthermore, there is no evidence that he influenced other Council 

members to vote in favor of Watson‟s termination.

Additionally, Watson states the Court erred in instructing the jury on the “same 

action” defense, when the Defendants never pled this defense.6 We need not decide this 

issue. Even if the District Court erred, the “same action” defense is only applicable to 

Defendant Matis. Therefore, it does not affect the outcome of the District Court‟s ruling 

on the Motion for Judgment as a Matter of Law. 

Finally, Watson claims that the Court erred in admitting medical records from 

eleven years prior to the events in question.7 Watson states that the admission of the 

records was error, as the records are irrelevant and are prejudicial because they refer to 

Watson‟s previous use of medication. We disagree. The records are relevant to the 

aspect of damages and are not prejudicial, as Watson‟s own counsel had questioned a 

witness regarding Watson‟s use of medication. Furthermore, although the Defendants 

did not list the records as exhibits before the first day of trial, Watson had access to the 

records and was given time to examine them prior to their admission. The Court did not 

abuse its discretion in admitting the medical records.

III.

For the foregoing reasons, we will affirm the District Court‟s grant of the Motion 

for Judgment as a Matter of Law.

 

6

 Defendants can avoid liability by showing that they would have taken the same adverse 

action even absent the protected activity. See Nicholas v. Pa. State Univ., 227 F.3d 133, 

144 (3d Cir. 2000).

7

 “We review the District Court‟s evidentiary rulings principally for abuse of

discretion.” Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002).