Jeffrey Kengerski v. Orlando Harper

• Court: Court of Appeals for the Third Circuit
• Decided: October 7, 2024
• Docket: 23-1926
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 23-1926 _______________

JEFFREY KENGERSKI

v.

ORLANDO L. HARPER, Warden; COUNTY OF ALLEGHENY

County of Allegheny, Appellant _______________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2:17-cv-01048) District Judge: Honorable Nicholas Ranjan _______________

Submitted Under Third Circuit L.A.R. 34.1(a) on September 23, 2024

Before: KRAUSE, BIBAS, and AMBRO, Circuit Judges.

(Filed: October 7, 2024)

_______________

OPINION * _______________

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. KRAUSE, Circuit Judge.

Appellant Allegheny County (the “County”) raises two challenges to the jury

verdict in favor of its former employee, Jeffery Kengerski, on his retaliation claim under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Unpersuaded, we will

affirm.

I. DISCUSSION 1

The County contends that there was insufficient evidence for the jury to find for

Kengerski and that the District Court erred in admitting certain categories of evidence.

Neither argument withstands scrutiny.

To begin, we cannot consider the County’s sufficiency argument because the

County failed to preserve the issue for appeal by filing a renewed Rule 50(b) motion at

the conclusion of trial, Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394,

400–01 (2006), and Dupree v. Younger confirmed that, while “a post-trial motion under

Rule 50 is not required to preserve for appellate review a purely legal issue resolved at

summary judgment,” a challenge to the sufficiency of the evidence in the trial record still

“must [be] raise[d] . . . [in] a post-trial motion to preserve it for appeal” because “factual

challenges based on the trial record [] cal[l] for the judgment in the first instance of the

judge who saw and heard the witnesses and has the feel of the case which no appellate

printed transcript can impart.” 143 S. Ct. 1382, 1389 (2023) (final alteration in original).

The County’s contention that the case should never have gone to trial in the first place

1 The District Court had jurisdiction under 20 U.S.C. §§ 1415(i)(2)(A), (3)(A), and we have jurisdiction under 28 U.S.C. § 1291. 2 because there was not “sufficien[t] [] evidence necessary to allow the question of

causation to go to a jury,” Opening Br. 22, is beside the point. As Dupree reaffirmed, a

defendant’s challenge to the sufficiency of the evidence at summary judgment becomes

moot once the case has been submitted to the jury. 143 S. Ct. at 1389 (citing Ortiz v.

Jordan, 562 U.S. 180, 184 (2011)).

The County’s related argument, that its renewed motion for mistrial preserved its

sufficiency arguments, fares no better. The County’s motion renewed its objections

regarding the propriety of Kengerski’s counsel’s opening statement, which it claims was

not borne out in the record and was, therefore, unduly prejudicial to the jury. The Rule

59 motion, however, cannot fairly be characterized as arguing the jury verdict was not

supported by the evidence. The County points to the portion of the District Court’s

opinion denying the motion that observes that “Defendant’s allegations more reasonably

go to disagreements with the jury’s conclusions as a matter of the sufficiency of the

evidence.” Supp. App. 180. However, read in context, that passage only points out the

disparity between the argument the County did make as to counsel’s opening and the

argument that it could have, but did not make, as to the jury verdict.

Next, the County challenges four of the District Court’s evidentiary rulings. We

“afford broad discretion to a district court’s evidentiary rulings,” and none constitutes

reversible error. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008).

First, the County argues there was no evidence Warden Orlando Harper, who

made the termination decision, knew of problematic behavior directed at Kengerski by

other employees, so that behavior was irrelevant and should not have been admitted

3 under Federal Rules of Evidence 401 and 403. But there was, in fact, circumstantial

evidence of Harper’s knowledge, see, e.g., App. 685–86, 741, 791–92, so it was

reasonable for the Court to admit it. “[D]irect evidence is not required.” Araujo v. N.J.

Transit Rail Operations, Inc., 708 F.3d 152, 161 (3d Cir. 2013) (citing Desert Palace,

Inc. v. Costa, 539 U.S. 90, 100 (2003)).

Second, the County contends that the Court erred in admitting, for a limited

purpose, evidence related to an earlier-dismissed “failure to promote” claim. Before trial,

the District Court determined that certain evidence related to that claim was

independently relevant to the retaliation claim but barred Kengerski from “introduc[ing]

evidence as to the actual hiring/promotion decision.” Dist. Ct. ECF 169. The County

complains that, at trial, Kengerski testified about two failed promotion attempts that

predated the protected conduct. But even assuming the testimony exceeded the District

Court’s limitation, the Court cured any error by instructing the jury on the purpose and

relevance of promotion-related testimony, and “we presume that jurors follow the

instructions given to them by the trial court,” Robinson v. First State Cmty. Action

Agency, 920 F.3d 182, 191 (3d Cir. 2019).

Third, the County objects to two categories of comparator evidence: (1) evidence

that Harper’s investigation of Kengerski was atypical, and (2) evidence that similarly

situated comparators were treated differently from Kengerski. Yet the District Court did

not abuse its discretion in admitting the first category—deviation from typical

investigatory methods—because such evidence may be probative of Harper’s retaliatory

intent, and thus falls within the broad spectrum of evidence relevant to a retaliation claim.

4 See Canada v. Samuel Grossi & Sons, Inc., 49 F.4th 340, 347–49 (3d Cir. 2022); Daniels

v. Sch. Dist., 776 F.3d 181, 196 (3d Cir. 2015). Nor did the District Court abuse its

discretion in determining that the differently treated employees were sufficiently similar

for Kengerski to propose to the jury as comparators. The Court’s explanation may have

been brief, but it was sufficient to perform its gatekeeping role and consistent with the

maxim that “[t]he question of whether employees are similarly situated in order to show

pretext ordinarily presents a question of fact for the jury.” Wheeler v. Georgetown Univ.

Hosp., 812 F.3d 1109, 1115 (D.C. Cir. 2016) (internal quotation marks omitted).

In short, “we will not disturb a trial court’s exercise of discretion unless no

reasonable person would adopt the district court’s view,” United States v. Bailey, 840

F.3d 99, 125 n.118 (3d Cir. 2016) (quoting United States v. Starnes, 583 F.3d 196, 214

(3d Cir. 2009)), and, even then, the error must be prejudicial, Fed. R. Civ. P. 61. The

County’s claims of error do not clear those hurdles, so the District Court’s evidentiary

rulings do not entitle the County to relief.

II. CONCLUSION

For the foregoing reasons, we will affirm the judgment of the District Court.