NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-1472
___________
SANDRA RUMANEK,
Appellant
v.
INDEPENDENT SCHOOL MANAGEMENT, INC.
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil Action No. 1-12-cv-00759)
Magistrate Judge Sherry R. Fallon
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 10, 2015
Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges
(Opinion filed: July 21, 2015)
___________
OPINION*
___________
PER CURIAM
In this employment discrimination action, Sandra Rumanek appeals from the
Magistrate Judge’s partial grant of summary judgment in favor of Independent School
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Management, Inc. (“ISM”). She also challenges the admission of certain evidence and
jury instructions.1 Rumanek alleged that ISM violated Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and the Americans with Disabilities Act
of 1990 (“ADA”), 42 U.S.C. § 12101, et seq., by retaliating against her for being a
witness in another employee’s Equal Employment Opportunity Commission (“EEOC”)
proceedings, threatening to file her own EEOC complaint, and requesting an
accommodation for short-term memory issues.2 For the following reasons, we will
affirm.
I. BACKGROUND
Because we write primarily for the parties, we recite only those facts necessary for
our discussion of the arguments raised in this appeal. Rumanek began working for ISM
in 2002, and, by 2007, she reported directly to ISM’s president, Roxanne Higgins. Early
in 2009, Higgins and Rumanek discussed a new position for Rumanek. In May 2009,
1
On June 26, 2014, Rumanek filed an amended notice of appeal from the March 5,
2014 denial of her revised motion for a new trial. The notice of appeal was not filed
within thirty days of the entry of that order, see Fed. R. App. P. 4(a)(1)(A), so we lack
jurisdiction to review it. Bowles v. Russell, 551 U.S. 205, 214 (2007). Rumanek also
filed amended notices appeal from orders (1) denying her motion for reargument, (2)
partially granting ISM’s motion for reargument, and (3) denying her motion for judgment
as a matter of law or for a new trial. She has made no argument regarding those orders in
her opening brief, so we deem her to have waived any issues on appeal. United States v.
Hoffecker, 530 F.3d 137, 162 (3d Cir. 2008).
2
Rumanek also relied on similar state law provisions and the Family and Medical
Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq. Although she initially made other
allegations, only the retaliation claims remained at summary judgment. Rumanek has not
raised any issue concerning her FMLA retaliation claim.
2
Higgins learned that Rumanek had been a witness in another employee’s EEOC
proceedings against ISM. That employee, August Stoner, alleged that she had been
harassed due to her race. Higgins later testified that Rumanek’s participation in the
Stoner proceedings was disappointing, especially after Higgins excused a costly mistake
Rumanek made in a contract matter in April 2009. Nonetheless, Higgins and Rumanek
continued to discuss her transition into a Field Advisor position. Higgins ultimately
agreed that Rumanek could begin the position in the fall of 2009 on a date of her choice if
she could limit her expenses for a few months. Higgins also indicated that Rumanek’s
compensation would be reassessed in January 2010. Thereafter, Higgins approved a
compensation proposal made by Rumanek that permitted her to retain her base salary for
a twelve-month period, in addition to earning commissions.
In November 2009, Rumanek was involved in two car accidents that left her with
weakness in her upper body, fatigue, and headaches. She asked to work from home and
use a telephone headset, which ISM permitted. In the spring of 2010, Rumanek reported
a shortfall in her pay, which Higgins explained was due to a reduction in her base salary
after she began earning commissions. Rumanek’s full base salary was reinstated when
Higgins realized that it was provided for in the prior agreement. Rumanek subsequently
identified other errors in her pay, which ISM corrected.
On August 23, 2010, Higgins and Rumanek were to meet regarding compensation.
On August 20, Rumanek emailed Higgins seeking to tape record the meeting because she
had short-term memory issues as a result of the car accidents. App., Tab L at D800. In
3
the same email, Rumanek accused Higgins of taking advantage of her while she was
“cognitively disabled” by making errors in her pay and retaliating against her for
becoming involved in the Stoner matter. Id. Higgins proposed rescheduling the
compensation meeting in September and having a separate meeting before then to discuss
the retaliation allegations. Id. at D814. After some back and forth, Rumanek emailed
Higgins on August 23, stating that a meeting was pointless and that she planned to file an
EEOC complaint. Id. at D813-14.
On August 25, Rumanek filed an intake questionnaire with the EEOC. The same
day, Higgins wrote Rumanek, stating that her communications had “taken on a hostile
and threatening tone.” Id. at D812. Higgins still sought to meet, explaining in part that:
(1) she took Rumanek’s allegations seriously and encouraged her to disclose all issues so
they could be investigated and addressed; (2) the pay discrepancies were honest errors;
and (3) the meeting could not be taped, but their notes would form the record, as was
customary. Id. Rumanek agreed to meet on August 30 in the presence of an independent
third party. A few days before the meeting, however, Rumanek requested FMLA leave,
which was approved. Higgins wrote Rumanek, noting that ISM planned to retain an
outside investigator to follow-up on her allegations and giving her the option of starting
the investigation during her leave. Supplemental Appendix (“S.A.”) at 143-44. Higgins
also noted that ISM would accommodate Rumanek’s memory issues insofar as they
involved job performance (i.e., client meetings). Id. Rumanek asked to be left alone
while on leave. Id. at 145.
4
Rumanek was subsequently granted an extension of FMLA leave. She returned to
work on November 18, and the postponed meeting was rescheduled for November 24.
App., Tab N at D1275. At the meeting, Higgins again stated that it would not be tape-
recorded, but that another ISM employee would attend as record keeper. Id. Rumanek
said that this was unacceptable and refused to participate. Id. Higgins cautioned her that
failure to participate would be considered insubordination. Nonetheless, Rumanek
refused, and Higgins fired her that day. Id., S.A. at 159.
After Rumanek filed suit, the parties consented to proceed before a United States
Magistrate Judge. ISM moved for summary judgment, which was granted on all claims
except a Title VII retaliation claim based on Rumanek’s email threatening to file an
EEOC complaint.3 Trial was held on that claim, and the jury returned a verdict in favor
ISM. Rumanek filed a motion for a new trial, which was denied. This appeal followed.
II. JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the order for summary judgment. Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 192
(3d Cir. 2015). To be entitled to summary judgment, “the movant must show that,
viewing the evidence in the light most favorable to the nonmoving party, ‘there is no
genuine [dispute] as to any material fact and the movant is entitled to judgment as a
3
The EEOC complaint was initially identified as the basis for the surviving claim.
After reargument, the Magistrate Judge clarified that the threat to file the complaint was
the protected activity alleged by Rumanek.
5
matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). We generally review a jury
instruction for an abuse of discretion, but we exercise plenary review over whether the
instructions stated the proper legal standard. United States v. Coyle, 63 F.3d 1239, 1245
(3d Cir. 1995). In the absence of a proper objection at trial, we may review instructions
for plain error. Collins v. Alco Parking Corp., 448 F.3d 652, 655 (3d Cir. 2006). We
review evidentiary rulings for an abuse of discretion. McKenna v. City of Phila., 582 F.
3d 447, 460 (3d Cir. 2009).
III. DISCUSSION
A. ADA Retaliation Claim
The ADA prohibits covered employers from discriminating against disabled
individuals, which includes retaliating against an employee for requesting an
accommodation. See Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 185, 188 (3d Cir.
2010). A retaliation claim does not require the demonstration of a disability under the
ADA, but rather “a reasonable, good faith belief that [the plaintiff] was entitled to request
the reasonable accommodation she requested.” Williams v. Philadelphia Hous. Auth.
Police Dep’t, 380 F.3d 751, 759 n.2 (3d Cir. 2004). The Magistrate Judge found that
Rumanek did not have a good faith belief she was disabled when she asked to record the
personnel meeting. The judge based her determination on the following facts: (1)
Rumanek experienced symptoms from the November 2009 accidents immediately
thereafter, but did not claim to need a recording device to assist with her memory until
August 2010; (2) the only thing she ever requested to record was the personnel meeting,
6
and she ignored ISM’s offer to permit her to record client conversations; (3) she admitted
that her request was made in part to bolster her EEOC claim; (4) less than a month before
she made the request, she received a medical evaluation indicating that her memory was
average to above average; and (5) shortly after making her request, she told the EEOC
that she no longer had a disability.
Rumanek challenges these findings. First, she contends that the Magistrate Judge
erroneously relied on the evaluation of her I.Q. to conclude that she had no memory
problems. That is incorrect. The judge cited to the “Memory” portion of the medical
evaluation, which indicated that Rumanek’s abilities ranged from “average” to “high
average” to “superior.” App., Tab D at EEOC_FOIA147-48. She also argues that the
judge mischaracterized a letter to the EEOC as an admission that she made her
accommodation request in part to bolster her EEOC claim. However, the letter at issue
states: “I needed to tape record the meeting . . . both because of my EEOC complaint
against the company . . . and because of my cognitive impairment.” Id., Tab N at
EEOC_FOIA110 (emphasis added). This clearly supports the finding that Rumanek
admitted that her request was made, in part, to support her EEOC claim.
Although not disputing the fact that her sole request to record was made in regard
to the personnel meeting, Rumanek explains that she ignored ISM’s offer to allow her to
record client conversations because it “wasn’t necessary.” Appellant’s Br. at 26. This
quote is from her deposition testimony, where she also testified that she did not need to
record client conversations because the clients “were not harassing and retaliating against
7
me” and asked “standard” questions. App., Tab R, Doc. 109 at 283-284. She further
testified that she needed to record any meeting with Higgins involving her compensation
or retaliation complaints. Id. at 286-87. This testimony provides more evidence of
Rumanek linking her request to her EEOC claims, instead of her alleged short-term
memory issues.4
Lastly, Rumanek challenges the Magistrate’s Judge’s statement that she told the
EEOC “that she did not have a disability at that time but had previously had one.” The
judge relied on an EEOC intake questionnaire on which Rumanek checked the following
two boxes: “Yes, I have a (improving) disability” and “I do not have a disability now but
I did have one.” This is equivocal at best, and is not fairly construed as an admission by
Rumanek that she had no disability at the time she filled out the questionnaire. However,
it is also not susceptible to the construction she now proposes: as asserting cognitive
disabilities. Furthermore, her reliance on a later submission to the EEOC in which she
claimed to have poor short-term memory is insufficient to overcome the other bases of
the Magistrate Judge’s determination, in particular the fact that her medical evaluation
showed average to superior memory abilities. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986) (noting that the “mere existence of a scintilla of evidence in support
of the [nonmovant’s] position will be insufficient” to defeat summary judgment).
4
Rumanek was putting together her EEOC complaint before she made her request to
tape the personnel meeting. App., Tab D at EEOC_FOIA159.
8
In sum, we agree with the Magistrate Judge’s decision to grant summary judgment
in favor of ISM on the ground that Rumanek did not demonstrate a good faith belief that
she needed to record the personnel meeting due to short-term memory issues. Because
the grant of summary judgment was appropriate, it is not necessary to address Rumanek’s
arguments regarding the failure to submit evidence regarding her ADA claim to the jury.
B. Title VII Retaliation Claim
To establish a prima facie claim for retaliation under Title VII, Rumanek had to
show that: (1) she engaged in a protected activity; (2) ISM took adverse employment
action against her; and (3) there was a causal connection between the protected activity
and the adverse action. Moore v. City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006).
Rumanek alleged that ISM fired her in retaliation for participating in Stoner’s EEOC
complaint. The Magistrate Judge granted summary judgment in favor ISM on this claim
because Rumanek failed to establish a causal link between her participation in the Stoner
matter and her termination. The judge noted that well over a year elapsed between
Rumanek notifying Higgins that she served as a witness for Stoner and Rumanek’s
termination. In the interim, Higgins allowed Rumanek to begin the Field Advisor
position and approved her compensation proposal. In light of these facts, and the record
as a whole, the judge found Higgins’ testimony that it was “a little disappointing” that
Rumanek served as a witness for Stoner insufficient evidence of a retaliatory motive
supporting causation.
9
We agree. There was no temporal connection between Rumanek serving as a
witness and being fired, and she presented no evidence suggesting retaliatory animus or
antagonism. See Daniels, 776 F.3d at 196 (noting that causation may be established by
suggestive timing or other circumstantial evidences that supports the inference of
retaliation). On the contrary, Higgins gave Rumanek the new position and compensation
she sought after becoming aware of her participation in the Stoner complaint. Even
drawing all inferences in Rumanek’s favor, we agree that no reasonable trier of fact
would find that Higgins fired Rumanek in retaliation for serving as a witness for Stoner.
Furthermore, Rumanek has made no argument on appeal regarding causation. Instead,
she has merely presented a laundry list of evidence that she says establishes a timeline of
her “protected activity” and ISM’s adverse actions. In addition to not being relevant to
the dispositive issue of causation, some of the evidence cited is not even related to the
retaliation claim at issue. Accordingly, Rumanek has presented no basis to disturb the
grant of summary judgment.
C. Jury Instructions
Rumanek argues that several jury instructions were erroneous. 5 First, she
challenges the instruction on the first element of a Title VII retaliation claim, which
5
ISM contends that we lack jurisdiction to review these issues, as well as those in the
next section of this opinion, because Rumanek did not identify them in her notices of
appeal. However, Rumanek appealed from the final judgment, which “draws in question
all prior non-final orders and rulings,” Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d
1252, 1253 (3d Cir. 1977), so we find it appropriate to exercise jurisdiction, particularly
given that ISM has not alleged any prejudice and has briefed the issues. See Sulima, 602
10
stated that Rumanek had to prove that she engaged in protected conduct when she told
Higgins that she intended to file an EEOC complaint. She claims that “ISM does not
dispute this element” should have been added to the instruction because Higgins testified
that, in her opinion, Rumanek’s EEOC complaint was filed in good faith, thereby leaving
no question for the jury to decide on this element. Rumanek did not request this
instruction at trial, so we review for plain error. Under that standard, reversal is required
only where the error “was fundamental and highly prejudicial, such that the instructions
failed to provide the jury with adequate guidance and our refusal to consider the issue
would result in a miscarriage of justice.” Collins, 448 F.3d at 656. We perceive no plain
error here because there was no basis to include the additional language. Higgins’
opinion that Rumanek acted in good faith is merely evidence regarding protected activity,
not an explicit concession from ISM that it did not dispute the element. Moreover, just
prior to Higgins’ testimony, counsel noted that it was ISM’s position that Rumanek did
not act in good faith. App., Tab O at 210-11.
Turning to the next challenge, Rumanek faults the judge for: (1) refusing to
include other protected activities in the instructions; and (2) failing to “put the Title VII
retaliation Statute in the jury instruction, what the law protects and what the law prohibits
[sic].” Appellant’s Br. at 17. As noted in the denial of Rumanek’s motion for a new trial,
the protected activity that survived summary judgment was part of the Title VII
instruction. Rumanek cites no authority for the proposition that claims that did not
F.3d at 184. 11
survive should have been submitted to the jury. The instructions also adequately covered
the law pertaining to a retaliation claim. Rumanek fails to explain how the instructions
departed from applicable law; thus, we perceive no plain error.6
She also argues that: (1) a phrase regarding ISM’s burden of proof for affirmative
defenses should have been stricken; and (2) a limiting instruction regarding after-
acquired evidence should have been given. To put this in context, there was after-
acquired evidence that Rumanek worked part-time, but accepted full-time pay. Higgins
testified that she would have fired Rumanek if she had known. The judge ruled that she,
not the jury, would decide the issue because it related to wage calculations for damages.
However, a phrase about ISM’s burden of proof for affirmative defenses remained in the
instructions. When Rumanek’s counsel stated in closing that ISM had to prove its
affirmative defenses, ISM asked for a curative instruction to clarify that it had no burden
of proof because no defenses were before the jury. Rumanek’s counsel opposed a
curative instruction, and the judge did not issue one.
Taking a position contrary to the one espoused at trial, Rumanek now argues that
the instruction harmed her because it must have led the jury to consider the after-acquired
evidence. She presents no support for this speculation, nor does it seem any can be
found. The instruction stated only that the jury could not find for Rumanek if ISM met
6
Rumanek notes that her proposed instruction regarding protected activity was not
adopted, but merely proposing an instruction is not sufficient to preserve an objection.
See Franklin Prescriptions, Inc. v. N.Y. Times Co., 424 F.3d 336, 339 (3d Cir. 2005).
12
its burden of proof on any affirmative defenses. The jury was not instructed on after-
acquired evidence, or any other defense. There is thus no connection between the
challenged instruction and the after-acquired evidence, and no plain error. Rumanek’s
contention that the jury should not have heard “the after-acquired testimony without
instructing them it was not to enter their deliberations with regard to ISM’s liability for
its conduct,” Appellant’s Br. at 20, is equally ill-founded. Counsel did not request an
instruction, and there is no basis for the one now proposed. The case was not submitted
to the jury on “ISM’s liability for its conduct,” but on whether Rumanek proved her
retaliation claim, about which the jury was properly instructed.7
Finally, Rumanek challenges the “business judgment” language italicized below:
ISM has given insubordination as a nonretaliatory reason for its
termination of Ms. Rumanek’s employment. If you disbelieve ISM’s
explanations for its conduct, then you may, but need not, find that Ms.
Rumanek has proved retaliation. In determining whether ISM’s stated
reason for its actions was a pretext, or excuse, for retaliation, you
may not question ISM’s business judgment. You cannot find
retaliation simply because you disagree with the business judgment of
ISM or believe it is harsh or unreasonable. You are not to consider
ISM’s wisdom. However, you may consider whether ISM’s reason is
merely a cover-up for retaliation.
Final Jury Instructions, Rumanek v. Indep. Sch. Mgmt., Inc., No. 12-cv-759 (D. Del. Jan.
16, 2014), ECF. No. 143 at 14. Rumanek objected at trial and raised the issue in her
motion for a new trial. On appeal, she argues that the jury is supposed to question the
7
In addition, Higgins testified that she did not terminate Rumanek for the hours/pay
matter, S.A. at 110, so it is hard to see how the after-acquired evidence could have
entered into the deliberations on causation for termination.
13
business judgment of the defendant and that the instruction is at odds with Supreme Court
precedent. As the Magistrate Judge noted, however, the language is taken from this
Circuit’s model instructions and is designed to distinguish the concept of pretext from
business judgment. As we have explained:
To discredit the employer’s proffered reason . . . the plaintiff cannot
simply show that the employer’s decision was wrong or mistaken,
since the factual dispute at issue is whether discriminatory animus
motivated the employer, not whether the employer is wise, shrewd,
prudent, or competent.
Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). This passage makes clear that
questionable business decision-making does not equate to pretext. Rumanek’s position is
therefore directly at odds with the law. Furthermore, the Supreme Court case she relies
upon, Ash v. Tyson Foods, Inc., 546 U.S. 454, 457-58 (2006), is inapposite because it
involved the standard for showing pretext from superior qualifications evidence, which is
not at issue here. The instruction given in this case did not misstate the applicable law,
and including the business judgment language was not an abuse of discretion.
D. Remaining Issues
Rumanek complains that opposing counsel: (1) twice referred to a name in her
personal injury lawsuit; (2) questioned a medical expert about the cause of her emotional
distress; and (3) reminded the jury of her personal injury lawsuit by noting that the expert
had reviewed her medical records for that case. To the extent she challenges the
admission of evidence, we note that she did not object to the first and third issues at trial.
The failure to raise an issue in the District Court usually results in waiver on appeal. See
14
Webb v. City of Phila., 562 F.3d 256, 263 (3d Cir. 2009). Although we have the
discretion to review waived issues, we have limited this to cases presenting exceptional
circumstances. Id. Exceptional circumstances are not presented by these claims, and we
decline to reach their merits. As for the second issue, the judge permitted a limited scope
of questioning, over counsel’s objection, because Rumanek’s tearfulness on the stand and
testimony that her termination caused substantial emotional distress opened the door to
testimony about its cause. Rumanek does not address that ruling, nor does she
persuasively argue that the judge abused her discretion.
In the “Relief Requested” section of her brief, Rumanek states that counsel’s
failure to make a timely Rule 50 motion was plain error. We will not review this
conclusory assertion. As we have previously stated, “appellate courts generally should
not address legal issues that the parties have not developed through proper briefing.” Sw.
Pa. Growth Alliance v. Browner, 121 F.3d 106, 122 (3d Cir. 1997).
IV. CONCLUSION
For the foregoing reasons, we will affirm the judgment.
15