NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-1739
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ED COLLINS,
Appellant,
v.
DANIEL BOYD; KEVIN FRIEL; JAMES HART; SALLIE
A. RODGERS; COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF PUBLIC WELFARE (DPW)
__________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 09-cv-01599)
District Judge: Honorable John E. Jones, III
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 10, 2013
Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges
(Opinion filed: October 2, 2013)
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OPINION
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PER CURIAM
Appellant Ed Collins appeals from the District Court’s judgment entered in favor
of the defendants. For the following reasons, we will affirm.
Collins filed an amended complaint pro se against the Pennsylvania Department of
Public Welfare (“DPW”) and DPW officials Daniel Boyd, Kevin Friel, James Hart, and
Sallie Rodgers, alleging violations of Title VII, 42 U.S.C. § 2000e et seq., and violations
of 42 U.S.C. §§ 1981, 1983, 1985, and 1986. His section 1983 claims were based on
violations of the First and Fourteenth Amendments. Collins also alleged a violation of
the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. § 951 et seq. Collins
initiated the action in the United States District Court for the Eastern District of
Pennsylvania, but that court transferred the matter to the Middle District of Pennsylvania.
Collins, who has a degree in Engineering, was hired by DPW on April 10, 2006 as
a probationary supervisory purchasing agent. He was the only African-American
employed in his department. During the relevant time period, Boyd was his supervisor,
and Friel was Boyd’s supervisor. It was Collins’ job to locate reliable sources for all
commodities and services required by DPW, using minorities and women as vendors
when available. Collins alleged that Boyd and Friel created a hostile work environment
and discriminated against him on the basis of his race and his activism. Specifically,
Collins alleged in his amended complaint that he was not provided with adequate training
when he began work, and that he was not extended the same courtesies – Internet use,
cell phone use, flexible and liberal breaks – that white employees received. On one
occasion, the Governor’s Advisory Commission on African American affairs invited him
to attend a networking meeting and Boyd required him to submit a leave slip. When
Collins sought “clarification,” Boyd told Collins that no leave would be charged, but,
after that, Boyd changed toward Collins and began to be critical of his work.
2
Collins alleged that he received a positive evaluation of his work as late as July,
2006, but in August, 2006, he complained to his supervisors via email about racially
discriminatory practices at DPW, and he complained to DPW Secretary Estelle Richman
about racial discrimination in the procurement section of DPW. At the end of September,
2006, Collins received a rating of “unsatisfactory” from Boyd and was denied civil
service status. He again complained to Secretary Richman, and he complained to Boyd
and Friel about harassment at work, inadequate training, computer tampering, and leave
request abuses. In October, 2006, a training opportunity was offered to a white female
staff member and not to Collins, even though he had requested it. Also in October, 2006,
Friel told a racist story and said “we are all racists.” Collins again complained to Boyd
and Friel about a racially hostile work environment, and Collins’ probation was extended
by six months until April 10, 2007. Boyd, however, continued to harass him about his
job performance.
In November, 2006, Boyd and Friel accused Collins of falsifying procurement
tracking documents in an attempt to hide his earlier mistakes. On November, 20, 2006,
Collins was suspended without explanation, without pay, and without a hearing. On
December 28, 2006, he was terminated. Collins alleged that in a subsequent Civil
Service Commission hearing, Boyd, Friel, Hart, and Rodgers gave false testimony
concerning the reason for his termination. Kevin Rockwell, an inexperienced white
employee who did not engage in protected activity, was hired around the time that he was
hired, was granted civil service status, and now occupies his former position. Boyd was
given a promotion in December, 2009.
3
The defendants moved to dismiss Collins’ amended complaint and filed a motion
to stay discovery. Collins filed a motion for a default judgment against DPW and a
motion for sanctions against the defendants, who had failed to timely answer his
interrogatories or respond to his request for production of documents. The Magistrate
Judge denied Collins’ motion for a default judgment against DPW, and denied the
defendants’ motion to stay discovery. The defendants were sanctioned in the amount of
$300 for delaying discovery.
The District Court then granted the defendants’ motion to dismiss in part,
dismissing Collins’ claims under section 1981 against all of the defendants as not
cognizable; his claims under section 1983 against the individual defendants in their
official capacities and against DPW as barred by the Eleventh Amendment; his claims
against DPW under the state Human Relations Act as barred on the basis of sovereign
immunity; and his Title VII claims against the individual defendants. Collins was
granted leave to amend with respect to his deficient allegations of personal involvement
by defendants Hart and Rodgers, and with respect to the existence of an agreement
sufficient to allege a civil rights conspiracy under sections 1985 and 1986. The
defendants’ motion to dismiss was denied with respect to Collins’ section 1983 claims
against Boyd and Friel in their individual capacities, and with respect to his Title VII
claims against DPW.
The defendants appealed the Magistrate Judge’s order awarding money sanctions
for a discovery violation to the District Court. The District Court granted the defendants’
appeal and vacated the $300 sanction. The Magistrate Judge, in response to the District
4
Court’s order granting Collins leave to amend with respect to certain of his civil rights
claims, issued an order requiring that any second amended complaint filed by Collins
stand on its own without reference to prior complaints. Collins then filed a second
amended complaint, which the defendants moved to strike on the ground that he failed to
comply with the Magistrate Judge’s order. The Magistrate Judge granted the motion and
Collins’ second amended complaint was stricken. The Magistrate Judge then denied a
subsequent motion for reconsideration. Collins did not appeal to the District Court, and
thus his section 1983 claims against Hart and Rodgers and his claim of a civil rights
conspiracy under sections 1985 and 1986 were deemed dismissed.
Collins moved for preliminary injunctive relief, a motion the District Court
denied, in pertinent part, on the ground that Collins could not show immediate irreparable
injury. Collins moved for appointment of counsel, a motion the Magistrate Judge denied.
The defendants moved to sanction Collins for failure to appear at his deposition, and the
Magistrate Judge granted the motion and sanctioned Collins in the amount of $424.30.
The defendants then moved for summary judgment on the remaining claims,
submitting affidavits from Friel, Boyd, and one of Collins’ subordinates, and numerous
exhibits including Collins’ negative performance evaluation. In the main, the defendants
argued that Collins’ work was sloppy and that he was often away from his desk talking
on his cell phone; and that a payment to a vendor had been delayed for six months
because of his poor performance and that he had improperly manipulated a log to hide
this error. Friel denied that he ever said that “we are all racists,” and averred that it was
only after Collins received a negative performance evaluation that he began to complain
5
about racial discrimination. The defendants also summarized Collins’ deposition
testimony.
Collins moved for partial summary judgment, and he submitted numerous
exhibits, including copies of emails between him and his supervisors and the transcript
from his State Civil Service Commission Hearing. In the main, Collins repeated the
assertions contained in his amended complaints. He argued that he had engaged in
protected activity by opposing discriminatory procurement practices at DPW, and that he
was terminated for his activism. He asserted that DPW had a poor track record, 3%, of
minority participation. He explained that what he had done with the log was
unexceptional and that other employees had experienced similar problems with
assignment contracts that required correction and they had not been fired. He attached
and referenced a 2009 Report by the state Auditor General that found a lack of
transparency within the procurement process that created the potential for improprieties
in the awarding of contracts, including the potential for vendor favoritism. Collins also
complained that he would not be able to receive a fair trial in the Middle District due to
“public corruption.”
The Magistrate Judge filed a Report and Recommendation, in which he
recommended that both motions for summary judgment be denied and that the case
proceed to trial on the remaining claims. The District Court adopted the Report and
Recommendation, and denied both motions for summary judgment. The District Court
also gave Collins an extension of time in which to pay the balance of the money sanction
that had been imposed upon him by the Magistrate Judge.
6
Collins then sought and received from the District Court 60 days to retain legal
counsel. When he was unsuccessful in that regard, he again moved for appointment of
counsel at public expense. The District Court denied the motion. Just before trial,
Collins again moved to stay the proceedings to give him additional time to retain counsel.
The District Court denied the motion, and restated its view that the issues were not
complex and Collins was capable of litigating his case. Also before trial, the defendants
filed a motion in limine, seeking to exclude the 2009 Auditor General’s Report. The
District Court ordered Collins to address the relevance of the Report in his Pretrial
Memorandum. The defendants’ motion in limine was granted and the Report was
excluded after Collins failed to comply with the District Court’s order.
A jury was selected, the trial commenced, and Collins’ Title VII claims against
DPW were dismissed with prejudice upon the defendants’ Rule 50 motion. His section
1983 claim against Friel and Boyd alleging racial discrimination also was dismissed
pursuant to Rule 50. His remaining section 1983 claim against Friel and Boyd alleging
retaliation in violation of the First Amendment was decided in favor of the defendants
and against Collins pursuant to the jury’s verdict. Judgment was entered on February 14,
2013, and Collins filed a notice of appeal on March 12, 2013. We note that transcripts
from the trial were produced at public expense, 28 U.S.C. § 753(b), apparently at the
direction of the court, see Docket Entry Nos. 269-71.
Collins now seeks review in this Court of the Magistrate Judge’s order denying
him a default judgment against DPW early in the litigation, see Informal Brief, at 2; the
Magistrate Judge’s order striking his second amended complaint, see id. at 4-5, 6; the
7
District Court’s order vacating the $300 discovery sanction imposed on the defendants,
see id., at 5; the District Court’s order denying him preliminary injunctive relief, see id. at
7; the District Court’s order denying him summary judgment, see id. at 9, 11; the
Magistrate Judge’s order sanctioning him in the amount of $424.30 for failing to appear
at his scheduled deposition, see id. at 9, 11; the District Court’s order denying him
appointment of counsel, see id. at 10, 12; the District Court’s order excluding the 2009
Auditor General’s Report, see id. at 12; the District Court’s refusal to allow him to
conduct voir dire, which he believes resulted in an all-white jury that was prejudicial and
not impartial, see id. at 13, 17-18; the District Court’s unfair and prejudicial conduct
during the trial, which included repeatedly interrupting him and requiring him to limit
and expedite the presentation of his case, see id. at 14-15; and the District Court’s order
directing a verdict on his Title VII claim against DPW, see id. at 16.
As a threshold matter, we lack jurisdiction to review the District Court’s order
denying Collins’ motion for preliminary injunctive relief. The District Court’s order was
entered on July 14, 2010 and Collins did not file his notice of appeal until March 12,
2013. An order denying preliminary injunctive relief is immediately appealable, 28
U.S.C. § 1292(a)(1); Hershey Foods Corp. v. Hershey Creamery Co., 945 F.2d 1272,
1277-78 (3d Cir. 1991) (interlocutory order denying injunctions are appealable where
order relates to relief ultimately sought by claimant), and so Collins had thirty days from
July 14, 2010 in which to file his notice of appeal, Fed. R. App. Pro. 4(a)(1)(A). The
notice filed on March 12, 2013 was late by more than 2½ years. Because the time limits
established by Congress are mandatory and jurisdictional, Bowles v. Russell, 551 U.S.
8
205, 213 (2007), we will dismiss this part of Collins’ appeal for lack of appellate
jurisdiction.
We also lack jurisdiction to review the District Court’s order denying Collins’
motion for summary judgment. A denial of summary judgment is not properly
reviewable on appeal from the final judgment entered after trial, Glaros v. H.H.
Robertson Co., 797 F.2d 1564, 1573 (Fed. Cir. 1986), because “the denial decided
nothing but a need for trial and trial has occurred.” Id. at 1573 n.14. Accordingly, we
will dismiss this part of Collins’ appeal for lack of appellate jurisdiction.
Next, we note that the parties did not consent to jurisdiction by a Magistrate Judge,
28 U.S.C. § 636(c)(1). Middle District Local Rule 72.2 provides that “[a]ny party may
appeal from a magistrate judge’s order determining a non-dispositive pretrial motion or
matter in any civil or criminal case in which the magistrate judge is not the presiding
judge … [and a] judge of the court shall consider the appeal and shall set aside any
portion of the magistrate judge’s order found to be clearly erroneous or contrary to law.”
See also 28 U.S.C. § 636(b)(1)(A). Collins seeks review in this Court of certain pretrial
orders of the Magistrate Judge which he did not appeal to the District Court, including the
Magistrate Judge’s order denying his motion for a default judgment against DPW; the
Magistrate Judge’s orders requiring any second amended complaint to stand on its own
without reference to prior complaints and striking his second amended complaint when it
failed to comply with this order; and the Magistrate Judge’s order sanctioning him for
failure to appear for his deposition.
9
A Court of Appeals may only review final orders of the District Court, 28 U.S.C. §
1291, absent consent of the parties, see id. at § 636(c)(1), to proceed before a Magistrate
Judge. Although the failure to seek review of the Magistrate Judge’s pretrial orders
issued pursuant to section 636(b)(1)(A) is not a jurisdictional defect, see United States v.
Polishan, 336 F.3d 234, 239-40 (3d Cir. 2003) (citing United States v. Brown, 79 F.3d
1499, 1503 (7th Cir. 1996)), a waiver rule generally applies. See United Steelworkers of
America v. New Jersey Zinc Company, Inc., 828 F.2d 1001, 1007-08 (3d Cir. 1987)
(“[P]arties who wish to preserve their objections to a magistrate’s order entered pursuant
to § 636(b)(1)(A) must file their objections in the district court.). When Collins did not
seek review of these rulings under the procedures specified by the local rule, he deprived
the District Court of the opportunity to correct any errors; such tactics are wasteful of
scarce judicial resources. See Polishan, 336 F.3d at 240-41. Accordingly, Collins’
contentions concerning these pretrial orders are waived and we will not review them.
Also with respect to the preservation of issues, Federal Rule of Appellate
Procedure 28(a)(9) requires that an appellant’s brief must contain argument, and that
argument in turn must contain “appellant's contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant relies.” We held
in Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993), that “if an appellant fails to
comply with these requirements on a particular issue, the appellant normally has
abandoned and waived that issue on appeal and it need not be addressed by the court of
appeals.” The appellees have argued that Collins has not complied with appellate Rule
28(a)(9) throughout his brief and they seek dismissal of his appeal on that basis. See
10
Appellees’ Brief, at 13-14. We agree that Collins has not complied with Rule 28(a)(9)
with respect to his contention that the District Court erred in refusing to allow him to
conduct voir dire, and his contention that the District Court conducted the trial in a way
that was unfair and prejudicial to him. Collins does not present any fully developed
argument in support of either of these contentions, and he makes no citations to the
record of proceedings or the transcripts from the trial to support these contentions. See,
e.g., Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631 (1991) (plaintiff in civil
action who claims that racial discrimination occurred in jury selection must establish
prima facie case, including information about whether there has been a pattern of strikes
against members of a particular race). Accordingly, they too are waived and we will not
address them, Kost, 1 F.3d at 182.
We will affirm the remaining orders of the District Court. The denial of a pro se
litigant’s request for appointment of counsel at public expense is reviewed for an abuse of
discretion. Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993). Counsel is not warranted
where the pro se litigant has the skills to handle his case. See id. In denying Collins’
request for counsel, the District Court reasoned that Collins had successfully defeated the
defendants’ motion for summary judgment. In addition, the court reasoned that, although
Collins’ civil rights claims were not simple, they were not too complex for him to
present. The court noted in addition that Collins received assistance from a non-lawyer
advisor at his deposition. In his Informal Brief, Collins argues only that he lacked the
financial means to hire counsel, and that DPW has an annual budget of $88 million, see
Informal Brief, at 10. In challenging the denial of counsel, Collins has failed to reference
11
any of the Tabron factors, 6 F.3d at 155-56, save his lack of financial means. From our
review of the record, it appears that the District Court properly applied the Tabron
factors. Collins undeniably has the intellectual ability to present his case. Thus, we hold
that the District Court did not abuse its discretion in denying him counsel.
Next, the Magistrate Judge sanctioned the defendants for delaying discovery,
concluding that their motion to stay discovery, filed about one month after Collins served
his discovery requests, was meritless. On appeal, the District Court vacated the
Magistrate Judge’s order after determining that the defendants were not first notified of
the Magistrate Judge’s intent to impose sanctions or given an opportunity to show cause
why sanctions should not be imposed. The District Court “may reconsider any pretrial
matter … where it has been shown that the magistrate judge’s order is clearly erroneous
or contrary to law.” 28 U.S.C. § 636(b)(1)(A). As a general practice, a sanction should
not be imposed by a court without prior notice and some occasion to respond. See, e.g.,
Eash v. Riggins Trucking, Inc., 757 F.2d 557, 570 (3d Cir. 1985) (in banc). In his
Informal Brief, Collins argues that the Magistrate Judge’s money sanction was a proper
penalty for the defendants’ delay in responding to his discovery requests, which may
ultimately be true, but he does not point to anything in the record to undermine the
District Court’s determination that the defendants did not have the required notice and
opportunity to respond before the sanction was imposed. It appearing to us that the
required notice and opportunity to respond were indeed missing, we hold that the District
Court did not err in reversing the Magistrate Judge’s order imposing money sanctions on
the defendants for delaying their discovery responses.
12
Next, following a pretrial conference, the District Court issued an order precluding
certain irrelevant evidence from being referenced or admitted at trial, including evidence
of Collins’ other lawsuits involving similar allegations. Regarding the 2009 Auditor
General’s Report, which the defendants sought to exclude, Collins was given an
additional opportunity to explain how it was relevant to his individual discrimination and
retaliation claims. When he failed to comply with the court’s order, the District Court,
finding no independent basis establishing the Report’s relevance, granted the defendants’
motion as unopposed and excluded its admission at trial. We review a District Court’s
decision to admit or exclude evidence for an abuse of discretion, except that we exercise
plenary review over evidentiary rulings that have a legal component. See Inter Medical
Supplies, Ltd. v. EBI Medical. Systems, Inc., 181 F.3d 446, 464 (3d Cir. 1999). In his
Informal Brief, Collins argues that the Report establishes DPW’s misuse of public funds
during the time period when he engaged in protected activity and thus supports his
retaliation claim, see Informal Brief, at 12. Perhaps that is true as a general matter
(although the Report is very long and only modestly relevant to Collins’ retaliation
claim), but because Collins did not bother to explain this to the District Court when an
explanation was requested, we cannot conclude that the District Court abused its
discretion in granting the defendants’ motion in limine as unopposed.
Last, Collins challenges the District Court’s directed verdict on his Title VII
claims against DPW, arguing that the District Court did not properly apply McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1976). Rule 50(a)(1) provides that if “a party has
been fully heard on an issue during a jury trial and the court finds that a reasonable jury
13
would not have a legally sufficient evidentiary basis to find for the party on that issue, the
court may: (A) resolve the issue against the party….” Fed. R. Civ. Pro. 50(a)(1)(A). The
rule requires a court to “review all the evidence in the record ... [and in] doing so, draw
all reasonable inferences in favor of the nonmoving party ... [without] mak[ing]
credibility determinations or weigh[ing] the evidence.” Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 149-50 (2000).
Assuming that Collins made out a prima facie case for racial discrimination, see
McDonnell Douglas, 411 U.S. 792, he had to prove at trial that DPW’s reason for
terminating him was a pretext for discrimination, Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981), or provide other evidence of discrimination, St.
Mary’s Honor Center v. Hicks, 509 U.S. 502, 509-11 (1993). He had to either discredit
DPW’s proffered reasons for terminating him or show that racial discrimination was
more likely than not a cause of his termination. Cf. Fuentes v. Perskie, 32 F.3d 759, 764
(3d Cir. 1994) (addressing summary judgment standard). A plaintiff may support an
assertion that an invidious discriminatory reason was more likely than not a determinative
cause by showing that “the employer has treated more favorably similarly situated
persons not within the protected class.” Jones v. School Dist. of Philadelphia, 198 F.3d
403, 413 (3d Cir. 1999).
In making his argument that the District Court erred in directing a verdict on his
Title VII claims, Collins argues that Kevin Rockwell, a white employee with no
experience who did not engage in protected activity, was granted civil service status, and
now occupies his former position, see Informal Brief, at 2. He also has referred us to the
14
evidence he submitted in support of his motion for summary judgment, see id. at 14. He
does not reference the testimony at trial of the witnesses, which included Friel and Boyd,
who were cross-examined as hostile witnesses in his case-in-chief, or any of the exhibits
which were admitted at the trial. Even if we draw all reasonable inferences in favor of
Collins, as we must, and avoid making credibility determinations or weighing the
evidence, Fed. R. Civ. Pro. 50(a)(1); Reeves, 530 U.S. at 149-50, Collins has failed to
persuade us that the District Court erred in directing a verdict in favor of DPW on his
Title VII claims. He does not, for example, argue that Rockwell was given a negative
performance evaluation and still was granted civil service status; thus he is not a similarly
situated employee.
In sum, the District Court necessarily concluded that there was insufficient
evidence that the reasons proffered for terminating Collins – poor job performance by a
probationary employee, too much time spent at work on personal matters, untruthfulness
in critical matters pertaining to the functions of the office – were pretextual, and
insufficient evidence of racially discriminatory employment (as distinct from contract)
practices in the procurement department, to withstand a directed verdict under any Title
VII theory of liability. We have thoroughly examined the record in this case, including
the summary judgment proceedings, and are able to sustain the District Court’s entry of a
directed verdict in favor of DPW even though we are unable to divine the precise grounds
upon which the District Court relied in granting the directed verdict. 1
1
In Sowell v. Butcher & Singer, Inc., 926 F.2d 289, 295 (3d. Cir. 1991), we exercised
our supervisory powers to require that each District Court in this circuit entering a
15
For the foregoing reasons, we will affirm the District Court’s judgment entered in
favor of the defendants and against Collins.
directed verdict set forth an explanation sufficient to permit us to understand the basis for
the court’s order. Here, the District Court did not comply with this directive, but we find
it unnecessary to remand the matter for explanation of the order.
16