Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
7-25-2006
Fendrick v. PPL Ser Corp
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1887
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 05-1887
__________
JOHN FENDRICK,
Appellant
v.
PPL SERVICES CORP.,
trading as PPL
__________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 02-1856)
District Judge: The Honorable Richard A. Caputo
_________
Submitted under Third Circuit LAR 34.1(a) – March 28, 2006
_________
Before: MCKEE and VAN ANTWERPEN, Circuit Judges.
and POLLAK,* District Judge.
(Filed: July 25, 2006)
________
OPINION
*
Honorable Louis H. Pollak, District Judge for the United States District Court of the
Eastern District of Pennsylvania, sitting by designation.
1
________
POLLAK, District Judge:
Appellant John Fendrick appeals from an adverse jury trial verdict in his disability
discrimination case against appellee PPL Services Corp. (“PPL”).
Because we write primarily for the parties, who are presumably familiar with the
facts and procedural history of the case, we will summarize the facts and history of the
case only briefly. Fendrick suffers from Obsessive Compulsive Disorder (OCD), and,
while employed by PPL, he experienced an OCD “episode.” Fendrick visited a doctor,
who recommended restrictions on Fendrick’s work conditions, including frequent breaks
and no changes in work assignments. PPL determined that it was unable to accommodate
the proposed restrictions, and it therefore did not allow Fendrick to return to work. Five
months after the episode, Fendrick’s health having improved, Fendrick’s doctor
recommended less stringent restrictions on Fendrick’s work conditions, and PPL allowed
Fendrick to return to work. During his five-month absence, Fendrick continued to receive
his salary by using accumulated sick leave.
Fendrick brought suit against PPL, asserting causes of action under the Americans
with Disabilities Act (“ADA”)1 , the Pennsylvania Human Relations Act (“PHRA”)2 , and
the Family and Medical Leave Act (“FMLA”)3 . Fendrick claimed PPL’s delay in
1
42 U.S.C. §§ 12101, et seq.
2
43 P.S. §§ 955, et seq.
3
29 U.S.C. §§ 2601, et seq.
2
allowing him to return to work constituted unlawful discrimination and retaliation within
the meaning of the above legislation. The case went to trial, and the jury rendered a
verdict in favor of PPL. Fendrick appeals the adverse judgment and contends that the
District Court committed reversible error by: 1) striking for cause a hearing-impaired
juror rather than accommodating her disability; 2) striking for cause a juror who had been
a teacher of Fendrick’s counsel’s legal assistant; 3) instructing the jury that Fendrick, in
establishing his retaliation claim, was required to show as one of the elements of that
claim that he was qualified for his job; and 4) instructing the jury that good faith is a valid
defense to a failure-to-accommodate claim.
We exercise jurisdiction over this matter pursuant to 28 U.S.C. § 1291. We review
for abuse of discretion a district court’s decision to exclude a potential juror for cause.
Kirk v. Raymark Industries, Inc., 61 F.3d 147, 153 (3d Cir. 1995). We review jury
instructions de novo if a timely objection in the district court preserved the issue for
appeal, but we review only for plain error in the absence of a timely objection. Ryder v.
Westinghouse Elec. Corp., 128 F.3d 128, 135 (3d Cir. 1997).
Fendrick’s first assignment of error on appeal is that the District Court, in the
course of voir dire, abused its discretion by striking for cause a hearing-impaired potential
juror. Fendrick claims that the District Court made no attempt to accommodate the
juror’s disability and urges that, particularly in a disability discrimination case, it is
fundamentally unfair to exclude a juror because of that juror’s disability. We begin by
3
noting that 28 U.S.C. § 1865(b)(4) authorizes a district judge to exclude a juror who “is
incapable, by reason of mental or physical infirmity, to render satisfactory jury service.”
Thus, it is proper for a district court to exclude a juror on account of the juror’s disability
under certain circumstances – that is, when the disability is of a sort that renders the juror
unable to perform satisfactory jury service. Moreover, we discern no abuse of discretion
in the District Court’s application of the statute in this case. Fendrick’s assertion that the
District Judge made no attempt to accommodate the juror’s disability is refuted by the
record, which shows that the District Judge evaluated the extent of the juror’s impairment
and made reasonable efforts to accommodate her. During voir dire, the juror in question
stated that she had always wanted to serve on a jury but that she had a ringing in her ears
and could not hear people when they turned around or lowered their voices. The District
Judge asked the juror if moving her to the front row would enable her to hear the
proceedings, to which she responded in the negative. The juror had to ask the District
Judge to repeat himself during voir dire because, despite the fact that the District Judge
was only three or four feet away, she had difficulty hearing him. The juror also stated
that she had never used a hearing aid, characterizing herself as “stubborn about it.” The
District Court heard argument from counsel, during which the possibility of a hearing aid
or amplification system was discussed. However, the juror had expressed unwillingness
to use a hearing aid, and it became apparent that the courthouse’s amplification system
would be of limited usefulness. Given these circumstances, we find no abuse of
4
discretion in the District Court’s decision to exclude this juror.
Fendrick next contends that the District Court abused its discretion by striking for
cause a juror who, as a professor, had once taught Fendrick’s counsel’s legal assistant.
Fendrick argues that mere acquaintance between a juror and a member of a litigant’s legal
team does not justify dismissal of the juror for cause. We agree. See United States v.
Calabrese, 942 F.2d 218, 223-24 (3d Cir. 1991). However, the District Court did not
dismiss the professor merely because he was acquainted with counsel’s legal assistant. In
addition to the professor’s prior relationship to the legal assistant, the professor disclosed
during voir dire that he believed an employer had discriminated against him in the past
and that his wife had once been precluded from employment for a time because of a
disability; as a result of these experiences, the professor expressed some uncertainty as to
his ability to consider the case without bias4 . The District Court determined that, given
the professor’s acquaintance with Fendrick’s counsel’s legal assistant and his admitted
potential for bias based on his own experiences, it was prudent to exclude the professor
4
The following is the relevant excerpt from the record:
THE COURT: Do you feel that either of the experiences that you had, yours and hers, prevents
you from being fair and impartial in this case?
THE JUROR: That is the kind of question I’m afraid – I’m a cognitive psychologist, so I
understand whatever I say is wrong. Yeah, I recognize the kind of bias that everybody does have
and I think I probably would be better off hearing people say that they can overcome them they
don’t understand that those problems actually do exist I do research related to cognition and false
memory and things like that. I guess I realize those problems might be in a better position to
keep myself from overcoming those biases, but then again some of the literature says you can’t
do that, so I don’t know how to answer that question.
5
from the jury in this case. Fendrick offers no argument that undermines that decision, and
we discern no abuse of the District Court’s discretion 5 .
Fendrick further contends that the District Court erred by instructing the jury as
follows: “To recover against PPL for retaliation, Mr. Fendrick has the burden of proving
all of the elements as follows: That he was qualified to perform the job, that he was
subjected to an adverse employment action at that time or after the protected conduct took
place[,] [a]nd that PPL took adverse employment action because he engaged in the
protected conduct.” Fendrick argues, and we agree, that an ADA plaintiff need not
establish that he was qualified to perform his job in order to recover on a retaliation
claim. See Krouse v. American Sterilizer Co., 126 F.3d 494, 502 (3d Cir. 1997).
However, Fendrick failed to object to the District Court’s instruction, and we therefore
review it only for plain error. Under the plain error standard, we will reverse the trial
court only where an 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.” Ryder v. Westinghouse Elec. Corp.,
128 F.3d 128, 136 (3d Cir. 1997). Our cases instruct that “[p]lain error review is
discretionary – it ‘should be exercised sparingly’ and ‘should only be invoked with
extreme caution in the civil context.’” Franklin Prescriptions, Inc. v. New York Times
5
Fendrick also argues that the District Court erred by effectively giving PPL two extra
peremptory strikes. This argument is premised on the notion that the District Court erred in
striking for cause the two jurors already discussed above. Because we find that the District Court
did not so err, we need not reach this argument.
6
Co., 424 F.3d 336, 341 (3d Cir. 2005) (quoting Fashauer v. N. J. Transit Rail Operations,
Inc., 57 F.3d 1269, 1289 (3d Cir. 1995)).
Viewed in isolation, the portion of the District Court’s instruction quoted above
was erroneous. However, reading the quoted portion in context and viewing the District
Court’s retaliation instruction as a whole reveals no plain error. The District Court began
its retaliation instruction as follows: “In order to prevail on this [retaliation] claim Mr.
Fendrick must prove each of the following elements by a preponderance of the evidence.
First, that he engaged in conduct protected by the Americans with Disabilities Act.
Second, that he was subjected to an adverse employment action at that time or after the
protected conduct took place. And third, PPL – PPL took the adverse employment action
against Mr. Fendrick because of his protected conduct.” This is a correct statement of the
elements of the ADA’s retaliation cause of action. Krouse, 126 F.3d at 500. After
providing this correct instruction, the District Court went on to explain that a retaliation
claim is evaluated using a burden-shifting framework; in explaining the burden-shifting
framework, the District Court restated the elements of a retaliation claim, but in so doing,
replaced its correct statement of the first element – protected conduct – with an incorrect
statement of job qualification as the first element6 . Bearing in mind that the District
6
The relevant portion of the District Court’s burden-shifting instruction reads as follows:
“Now, because this is a retaliation claim, there is a burden shifting process which must go on.
And I’m going to now instruct you on this burden shifting process. To recover against PPL for
retaliation, Mr. Fendrick has the burden of proving all of the elements as follows: That he was
qualified to perform the job, that he was subjected to an adverse employment action at that time
or after the protected conduct took place[,] [a]nd that PPL took adverse employment action
7
Court had already correctly instructed the jury on the elements of the ADA retaliation
cause of action and was simply restating the elements as part of its explanation of the
burden-shifting framework when it accidentally transposed an element from a related
cause of action, we think a reasonable jury might, indeed, have recognized that the court’s
restatement contained the verbal equivalent of a typographical error. We are not,
therefore, prepared to say that the erroneous formulation was so clearly prejudicial to
Fendrick as to amount to plain error.
Fendrick’s final contention on appeal is that the District Court erred by instructing
the jury that good faith is a defense to a failure-to-accommodate claim. Fendrick asserts
that good faith is not a defense to a failure to accommodate. Fendrick is wrong. 42
U.S.C. § 1981a(a)(3) states, in relevant part, that “[i]n cases where a discriminatory
practice involves the provision of a reasonable accommodation pursuant to section
102(b)(5) of the Americans with Disabilities Act . . . damages may not be awarded under
this section where the covered entity demonstrates good faith efforts, in consultation with
the person with the disability who has informed the covered entity that accommodation is
needed, to identify and make a reasonable accommodation that would provide such
individual with an equally effective opportunity and would not cause an undue hardship
on the operation of the business.” Good faith is thus a defense to a failure-to-
accommodate claim, at least insofar as monetary damages are sought in connection with
because he engaged in the protected conduct.”
8
such a claim. Moreover, even if the District Court’s instruction as to good faith were
deemed to be in error, the error would have been harmless, since the jury, having found
that Fendrick failed to show a failure to accommodate, had no occasion to consider the
good faith defense. Fendrick has thus shown no reversible error in the District Court’s
jury instruction on accommodation.
For the foregoing reasons, we will affirm.
9