2003 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s

for the Thir d C ir c uit

4-9-2003



# W hitt ak e r v . F a y ett e C t y

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. e du/thir dc ir c uit_2003/659NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

Nos. 02-2434/2457

___________

DONALD WHITTAKER

v.

FAYETTE COUNTY,

SHERIFF GARY BROWNFIELD, SR., individually and in his official capacity,

Appellants in 02-2434

___________

DONALD WHITTAKER,

Appellant in 02-2457

v.

FAYETTE COUNTY,

SHERIFF GARY BROWNFIELD, SR., individually and in his official capacity

___________

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court Judge: The Honorable William L. Standish

(D.C. Civil No. 00-cv-01096)

___________

Submitted Under Third Circuit L.A.R. 34.1(a)

March 6, 2003

Before: ROTH, BARRY, and FUENTES, Circuit Judges

.

(Opinion Filed: April 9, 2003)

________________________2 OPINION OF THE COURT

________________________

FUENTES, Circuit Judge :

Donald Whittaker brought an acti on against Fayette County and Sheriff Gary

Brownfield, Sr. (collectively, “Defendants”) under 42 U.S.C. § 1983. Whittaker claims that

his First and Fourteenth Amendment r ights were violated by Brownfield’s politically-motivated

decision to terminate his employment. Following trial, the jury returned a verdict in favor of

Whittaker and awarded compensatory damages, but not punitive da mages. Defendants and

Whittaker filed post-trial motions seeking judgment a s a matter of law and/or a new trial based

on asserted errors, which the District Court denied. In their appeal from the District Court’s

denial of their post-trial motion, Defendants rais e two issues: 1) whether the District Court

erred in admitting the testimony of ano ther former employee and evidence concerning his

termination from the Sheriff’s Department; and 2) whether the record was sufficient to support

the jury verdict. In his appeal from the District Court’s denial of his post-trial motion,

Whittaker raises an issue concerning an instruction the District Court gave with respect to

punitive damages. We find that none of the arguments raised by Defendants and Whittaker have

any merit. Therefore, we will affirm the District Court’s denial of their post-trial motions.

I. BACKGROUND

The evidence presented at tri al established that the incumbent Sheriff in Fayette County,

Norma Santore, announced in 1998 that she would not seek r eelection in 1999. (App. p. 91)3

Five candidates ran for the office in the Democratic primary, including Mark Santore (the

former Sheriff’s son) and Gary Brownfield, Sr. I d. at 91-92. Brownfield won the primary and

ran unopposed in the general election. Id.

Shortly after Brownfield won the primary, John Mongell asked him if he would “clean

house” after he took office. I d. at 148. Brownfield told Mongell that he would fire Whittaker,

a Deputy Sheriff, because he had observed Wh ittaker engaging in poor work behavior. I d. at

1 48-149. In a later conversation with Mongell, Brownfield again stated that he would fire

Whittaker because of his poor work habits, and added that he would also fire Mark Santore, the

incumbent Chief Deputy, because Sant ore’s mother (the former Sheriff) did not back

Brownfield in the election. Id. at 150-151.

On January 3, 2000, Brownfield took office and fired Santore and Whittaker. I d. at 33

,

35, 93, 144. Brownfield told Santore that he was being terminated because his “mother chose

this path for [him], that if she would have supported [Brownfield] inste ad of [Santore],

[Brownfield] would have kept [Santore] in the office.” I d. at 144. Brownfield told Whittaker

that he wanted “

to surround [himself] with people [he] felt comfortable with,” and that he had

made “political

promises.” I d. at 36. Brownfield said he “made some promises, campaign

promises to people, and he was going to keep them.” I d. at 76-77 . Upon questioning by

Whittaker, Brownfield admitted th at he was not firing him for the reasons he stated to Mongell.

Id. at 35.

Brownfield replaced Santore with a political supporter, Larry Goldberg. I d. at 96.

Goldberg had campaigned for B rownfield and had been promised the position of Chief Deputy

upon Brownfield’s election. I d. at 97. When Whittaker asked who Brownfield would hire to4

replace him, B rownfield said, “I don’t know . . . I have, like five people that I have talked to.

There are four or five people I’m looking at.” I d. at 80. Brownfield told Whittaker that “you

can be assured that if anyone asks me, I’ll tell them it [the firing] was for political reasons.”

Id. at 82. Brownfield later hired Anthony Bartock and Lud Muccioli and four other individuals

for positions in the Sheriff’s Departmen t, all of whom were campaign supporters of

Brownfield. I d. at 104-105, 136 -37. Brownfield testified that none of these new hires filled

Whittaker’s position because that position had been eliminated. (App. Vol. II, pp. 300-302,

409)

Prior to trial, Defendants filed a motion in lim ine seeking the exclusion of the

testimony of Mark Santore. Defendants argued that Santore’s testimony would be irrelevant

and highly prejudicial. The District Court denied the motion and Santore was permitted to

testify. At the conclusion of the trial, the jury returned a verdict in favor of Whittaker and

awarded compensatory damages. Defendants moved for judgment as a matter of law at the

close of Whittaker’s case-in-chief and again following the conclusion of the evidence. On

each occasion, the District Court denied the motion.

The District Court then reconvened the jury to consider Whittaker’s claim for punitive

damages. The District Court instructed the jury, in part, that punitive damages could be

awarded if “you find that the conduct of defendant Brownfield was shown to be motivated by

evil motive or intent, or if it involved reckless or callous indifference to the federally

protected rights of the plaintiffs.” During their deliberations, the jury sent out the following

question: “Please define: rec kless and callous.” The District Court issued the following

instruction, over Whittak

er’s objection: “Answer: The terms reckless and callous focus on the5

state of mind of a def

endant. They refer to a defendant’s knowledge that he may be acting in

violation of federal law, the conduct of the defendant des pite that knowledge and the conscious

disregard or in

difference of the defendant about the consequences of such conduct.” (App.,

p. 178) The jury awarded compensatory damages in the sum of $139,369, but did not award

punitive damages.

Defendants filed a timely post-trial motion renewing their request for j udgment as a

matter of law, and alternatively, requesting a new trial . The District Court denied their motion.

Whittaker filed a motio n for a new trial on the issue of punitive damages, which the District

Court also denied. Defendants and Whittaker then filed timely notices of appeal to this Court.

II. ANALYSIS

Because Whittaker brought his claim under 42 U.S.C. § 1983, the District Court had

jurisdictio n pursuant to 28 U.S.C. §§ 1331, 1343(a)(3),(4). We have appellate jurisdiction

over the final judgments of the District Court pursuant to 28 U.S.C. § 1291.

A. Admissibility of Santore Testimony

We revi ew a district court’s evidentiary rulings for abuse of discretion. J ohnson v. Elk

Lake School

District , 283 F.3d 138, 156 (3d Cir. 2002) (citations omitted). “Where, however,

the district court fails to explain its grounds for denying [an evidentiary objection] and its

r easons for doing so are not otherwise apparent from the record, there is no way to review its

discretion. . . . In those circumstances, we need not defer to the district court’s ruling, and we

may undertake to e xamine the record and perform the required balancing ourselves.” B ecker

v. Arco Chemical Co. , 207 F.3d 176, 181 (3d Cir. 2000) (citations omitted).6

Defendants made a motion in limine to exclud e the testimony of Mark Santore on the

grounds that the evidence would be irrelevant and highly p rejudicial. Following oral argument,

the District Court denied the motion without explanation and ruled that it would allow

Santore’s testimony. (App. Vol. II, p. 113) Because the District Court did not explain its

reasoning in denying

Defendants’ motion, we will examine the record and perform our own

analysis.

Defendants argue that Santore’s testim ony should have been excluded because it was

irrelevant and highly p rejudicial. Defendants assert that they are entitled to judgment as a

matter of law or a new trial because the admission of Santore’s testimony “improperly and

irreparably tainted the entire case since the jury was asked by plaintiff to conclu de and in fact

concluded that Mr. Whittaker was terminated for political reasons because Santore was.”

(Def.’s Brief, p. 18)

The first question is whether Santore’s testimon y was relevant. Federal Rule of

Evidence 401 defines relevant evidence as that which tends “to make the exist ence of any fact

that is of consequence to the determination of the action more probable or less probable than

it would be without the evidence.” In this case, Whittaker testified that Brownfield fired him

for politic al reasons, while Brownfield testified that he fired Whittaker because of his poor

work performance and because he wanted to reorganize the S heriff’s Department. The

conflicting testimony raised the consequential factual issue of Brownfield’s intent in firi n g

Whittaker. Santore’s testimony was offered by Whittaker to prove that it was more probable

than not that Brownfield fired him for political reasons. Accordingly, Santore’s testimony fits

within the Rule 401 definition of relevance.7

Next, we must determine whether the evidence w as otherwise admissible. Santore’s

testimony pertained to an act by Brownfield other than the firin g of Whittaker. “Other act”

evidence falls under the rubric of Federal Rule of Evidence 404(b), which provides that:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person

in order to show action in conformity therewith. It may, however, be admissible for other

purposes, such as proof of m otive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident. . . .” As we explained above, Santore’s testimony that

Brownfield fired him for political rea sons was offered to prove that Brownfield was firing

Sheriff’s Department employees for political reasons. In other words, the “other act” evidence

was offered to prove Brownfield’s motive or intent, and to rebut his asserte d nondiscriminatory reasons for firing Whittaker. S ee Hurley v. Atlantic City Police Dep’t. , 174

F.3d 95, 110 (3d Cir. 1999) (holding, in the context of a Title VII action, that “evidence of

harassment of other women and widespread sexism is also probative of ‘wh ether one of the

principal nondiscriminatory reasons asserted by [an employer] for its actions was in fact a

pretext for

... discrimination.’”), c ert. denied

, 528 U.S. 1074 (2000); Burks v. Oklahoma Pub.

Co.

, 81 F.3d 975, 981 (10th Cir. 1996) ("As a general rule, the testimon y of other employees

about their treatment by the defendant is relevant to the issue of the employer' s discriminatory

intent."), cert. denied , 519 U.S. 931 (1996).

The proximity in time and similarity of circumstances between Brownfield’s firing of

Whittaker and Santore militate in favor of admission of the Santore testimony to prove

Brownfield’s motive or intent . Whittaker and Santore were both Deputies in the Sheriff’s

Department. Brownfield fired Whittaker and Santore on the same day. He offered “politics”8

as a reason for both firings . Both men were replaced by Brownfield’s campaign supporters.

These similarities warrant the admission of the “other act” ev idence. S ee Duckworth v. Ford

,

83 F.3d 999, 1001-1002 (8th Cir. 1996) (holding that, in civil rights action alleging defendant

had violated plaintiff’s first amendm ent rights by spreading rumors in retaliation for supporting

another candidate, court did not err in admitting evidence about jury verdict in favor of a

different plaintiff against same defendant because of factual similarity between the cases).

The last remaining question with respect to the admissibility of the evidence is whether

the probative value of the Santore tes timony is “substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or mislead ing the jury. . .” Fed. R. Evid. 403. We

have alrea dy discussed the probative value of the Santore testimony. Defendants contend that

the possible prejudice from this evidence is that it leads to an impermissible inference that

Whittaker was term

inated for the same reasons as Santore. Defendants also express concern

that Sant ore’s testimony “likely confused the issues and misled the jury.” (Def.’s Brief, p. 23)

Defendants’ arguments with respect to prejudice and conf u sion, however, amount to an

assertion that Santore’s testimony tends to prov e Whittaker’s case. After all, the reason

Whittaker sought to admit Santore’s testimony was to prove that Brownfield intended to “clean

house” after his election to the office of Sheriff, and that included terminating employ e es who

did not support his candidacy. The fact that relevant evidence is damaging to Defendants’ case

does not lead to the conclusion that it is unfairly prejudicial. Accordingly, we find that the

Santore testimony need not have been excluded under Federal Rule of Evidence 403.

B. Sufficiency of the Evidence1 Defendants contend that the standard of review should be plain error because Whittaker

did not submit a proposed instruction that was an accurate statement of the law. Defendants

do not dispute, however, that Whittaker objected to the District Court’s proposed

9 “In reviewing a district cou r t’s ruling on a post-trial motion for judgment as a matter of

law, this Court applies the same standard as the district court. ” Starceski v. Westinghouse

Elec. Corp.

, 54 F.3d 108 9, 1095 (3d Cir. 1995). “We review the record in the light most

favorable to the verdict winner, a nd affirm the denial unless the record is ‘critically deficient

of t hat minimum quantum of evidence from which a jury might reasonably afford relief.’” I d.

We have reviewed the record and find that the District Court co rrectly denied

Defendants’ motion for a new trial on the ground of insufficient evidence. There was evidence

that Brownfield terminated the employees who did not support him and hired campaign

supporters to fi

ll the vacant positions. There was evidence that Brownfield fired Whittaker

because he did not support Brownfield’s campaign for Sheriff. Perhaps the most powerful

evidence on

this point was Brownfield’s statement to Whittaker: “you can be assured that if

anyone asks me, I’ll tell them it [the firing] was for pol itical reasons.” (App., p. 219)

Brownfield does not deny that he made that statement. The jury could reasonably infer from

the evidence that Brownfield was motivated to fire Whittaker because Whittaker did not

support his candidacy for Sheriff.

C. Punitive Damages Instruction

We review a district court’s jury instruction d e novo when it is alleged that the

instruction missta

ted the law. W alden v. Georgia-Pacific Corp.

, 126 F.3d 506, 513 (3d Cir.

1997), cert. denied , 523 U.S. 1074 (1998). 1instruction and that Whittaker submitted his own proposed instruction. These actions were

sufficient to preserve this issue for review. See Pivirotto v. Innovative Sys., Inc. , 191 F.3d

344, 350 n. 2 (3d Cir. 1999) (finding jury instruction issue preserved by counsel’s

objection to a proposed instruction during charge conference).

10 Whittaker asserts that t

he District Court erred in instructing the jury as to the definition

of “reckless and callous.” Whittaker argues that the District Court’s instruction misled the

jury to believe that “pu nitive damages could only be awarded if the defendant acted with

knowledge that he was violating a civil right, or acted with such knowledge and indifference.”

(Whittaker’s Brief, p. 10) Whittaker also maintains that the evidence supported an award of

punitive damages, and but for this erroneous instruction, the jury would have awarded them.

The District

Court instructed the jury, in part, that punitive damages could be awarded

if “you find that

the conduct of defendant Brownfield was shown to be motivated by evil motive

or intent, or if it involved reckless or callous indifference to the federally protected rights of

the plaintiffs.”

Both parties agree that this instruction was a correct statement of the law. The

problem arose when the jury submitted a request for the District Cou rt to define the terms

“reckless and call ous.” Over Whittaker’s objection, the District Court gave the following

instruction: “The terms reckless and callous focus on the state of mind of a defendant. They

refer to a defendant’s knowledge that he may be acting in viola tion of federal law, the conduct

of the defendant despite that knowledge and the conscious disregard or indifference of the

defendant about the consequences of such conduct.”

The standard for punitive damages in a federal civil rights actio n has been established

by the Supreme Court: A jury may “assess punitive d a mages in [a civil rights action] when the

defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves11

reckless or callous indifference to the federally protected rights of others.” S mith v. Wade

,

461 U.S. 30, 56 (1983); see also Alexander v. Riga

, 208 F.3d 419, 430- 431 (3d Cir. 2000).

This Court has explained that the term “reckless indifference” refers to the defendant’s

knowledge that he “may be acting in violation of federal law.” R

iga

, 208 F.3d at 431 (citing

Kolstad v. American Dental Ass’n , 527 U.S. 526, 537 (1999)); s ee also Miller v. Apartments

& Homes

, 646 F.2d 101, 111 (3d Cir. 1981) (punitive damages appropriate where defendant

acts with reckless disregard as to whether he is violating a federally protected right, or

consciously and deliberately disr egards consequences of actions). Relying on K olstad

, this

Court found that the term “reckless” focuses on the defend ant’s state of mind. R iga

, 208 F.3d

at 431. In fact, the Supreme Court observed in K olstad that the mere existence of a civil rights

violation is not a guarantee of eligibility for punitive damages because a defendant might not

be aware of the federal law he violated or he might have believed that the discrimination was

permissible. 527 U.S. at 536-537.

We fail to see how the D istrict Court’s definition of “reckless and callous” deviates in

any meaningful way from the definitions provided by the Supreme Court and this Court.

Because the District Court’s instruction was correct, we will affirm the District Court’s denial

of Whittaker’s motion for a new trial on the issue of punitive damages.

III. CONCLUSION

For the foregoi

ng reasons, we affirm the District Court’s denial of Defendants’ and

Whittaker’s post-trial motions.12 /s/ Julio M. Fuentes

Circuit Judge