NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
Nos. 16-3187, 16-3188, 17-1548 _____________
WM. C. PLOUFFE, JR., in his Individual Capacity and as a Private Attorney General
v.
F. JAVIER CEVALLOS, President of Kutztown University of Pennsylvania, As Employee, Officer, Supervisor, and/or Policymaker in his Individual and Official Capacities; ANNE ZAYAITZ, Dean of the College of Liberal Arts and Sciences of Kutztown University of Pennsylvania, as Employee, Officer, Supervisor, and/or Policymaker in her Individual and Official Capacities; SHARON PICUS, Executive Director of Human Resources of Kutztown University of Pennsylvania, as employee, Officer, Supervisor, and/or Policy Maker in her Individual and Official Capacities; ALEXANDER PISCIOTTA, Chair and Professor, Criminal Justice Department of Kutztown University as Employee, Officer, Supervisor, and/or Policy Maker in his Individual and Official Capacities; DEBORAH SEIGER, Professor, Criminal Justice Department of Kutztown University, in her Individual and Official Capacities; PIETRO TOGGIA, Professor, Criminal Justice Department of Kutztown University, in his Individual and Official Capacities; MARK RENZEMA, Professor, Criminal Justice Department of Kutztown University, in his Individual and Official Capacities; MAHFUZUL KHONDAKER, Professor, Criminal Justice Department of Kutztown University, in his Individual and Official Capacities; JONATHAN KREMSER, Professor, Criminal Justice Department of Kutztown University, in his Individual and Official Capacities; KEITH LOGAN, Professor, Criminal Justice Department of Kutztown University, in his Individual and Official Capacities; GARY CORDNER, Professor, Criminal Justice Department of Kutztown University, in his Individual and Official Capacities; ANN MARIA CORDNER, Professor, Criminal Justice Department of Kutztown University, in her Individual and Official Capacities; JOHN DOES, Employees, Officers, Supervisors, and/or Policy Makers of Kutztown University, and/or Pennsylvania State System of Higher Education (PASSHE), In their Official and Individual Capacities; ROBERT WATROUS, Dean of Student Services of Kutztown University, as Employee, Officer, Supervisor and/or Policy Maker in his Individual Capacity; JOHN CAVANAUGH, Chancellor of Pennsylvania State System of Higher Education (PASSHE), as Employee, Officer, Supervisor, and/or Policy Maker in his Individual Capacity; MICHAEL MOTTOLA, Human Resources/Labor Relations Officer of Pennsylvania State System of Higher Education (PASSHE), as Employee, Officer, Supervisor, and/or Policy Maker in his Individual Capacity; KUTZTOWN UNIVERSITY, A Subordinate Entity and/or Agency of the Commonwealth of Pennsylvania
Wm. C. Plouffe, Jr., Appellant in 16-3187 & 17-1548
MICHAEL GAMBONE, Professor, History Department of Kutztown University and member, representative, agent, officer, and/or employee of APSCUF in his individual capacity and his official capacity as an APSCUF member, agent, representative, officer and/or employee of APSCUF; STEVE HICKS, President of APSCUF in his individual capacity and his official capacity as an APSCUF member, agent, representative, supervisor, officer, employee, and/or policymaker of APSCUF; JULIE REESE, Director of APSCUF in her individual capacity and her official capacity as an APSCUF member, agent, representative, supervisor, officer, employee, and/or policymaker of APSCUF; ASSOCIATION OF PENNSYLVANIA STATE COLLEGE & UNIVERSITY FACULTIES; JOHN DOES, in their individual capacity and her official capacity as an APSCUF member, agent, representative, officer, supervisor, employee and/or policymaker of APSCUF; PIETRO TOGGIA, Professor, Criminal Justice Department of Kutztown University, in his individual capacity and in his individual and his official capacity as an APSCUF member, agent, representative, supervisor, officer, employee, and/or policymaker of APSCUF; MARK RENZEMA, Professor, Criminal Justice Department of Kutztown University, in his individual capacity and in his individual and his official capacity as an APSCUF member, agent, representative, supervisor, officer, employee, and/or policymaker of APSCUF; JONATHAN KREMSER, Professor, Criminal Justice Department of Kutztown University, in his individual capacity and in his individual and his official capacity as an APSCUF member, agent, representative, supervisor, officer, employee, and/or policymaker of APSCUF
Wm. C. Plouffe, Jr., Appellant in 16-3188 & 17-1548 _______________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Nos. 5-10-cv-01502 & 5-11-cv-06390) District Judge: Hon. Edward G. Smith _______________
2 Submitted Under Third Circuit LAR 34.1(a) June 10, 2019
Before: JORDAN, BIBAS, and NYGAARD, Circuit Judges.
(Filed: June 12, 2019) _______________
OPINION _______________
JORDAN, Circuit Judge.
This is a consolidated appeal of two employment-related civil actions stemming
from William C. Plouffe, Jr.’s firing by Kutztown University. The first action was
against the University and related individuals, and the second action was against his labor
union and related individuals. The first ended when Plouffe’s whistleblower and Title
VII and Title IX claims went to trial, and a jury found, the defendants not liable. The
second one ended after the union and certain individuals were dismissed and then
summary judgment was granted to the remaining individual defendants. For the
following reasons, we will affirm.
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.
3 I. BACKGROUND
A. Factual Background1
Plouffe was hired by Kutztown University, part of the Pennsylvania State System
of Higher Education, as a tenure-track assistant professor in the Criminal Justice
Department. His employment contract was renewable annually. The first year evaluation
he received from the Performance, Evaluation, and Tenure Committee was satisfactory,
but it did note some issues with disputes he had with his co-workers. Alexander
Pisciotta, the chair of the Department, completed a separate review, which was “[v]ery
[g]ood” but, again, included some less favorable comments regarding similar matters.
(App. at 611.) Following those evaluations, Plouffe’s contract was renewed for a second
year.
A few months into his second year at Kutztown, Plouffe, along with two other
Department members, was named to a search committee to recommend a temporary
faculty member. According to Plouffe, his colleagues on the committee told him that a
1 The facts as described here are drawn from Plouffe’s statement of undisputed facts in response to the defendants’ motion for summary judgment. Whether they are actually undisputed is, for present purposes, immaterial. Cf. Podobnik v. U.S. Postal Serv., 409 F.3d 584, 593 n.9 (3d Cir. 2005), abrogated on other grounds by Rotkiske v. Klemm, 890 F.3d 422, 428 (3d Cir. 1018) (noting that whether a fact was disputed was “immaterial” because “either version of the facts leads … to the same legal conclusion”). We take Plouffe’s version of the facts to be true. See Carrasca v. Pomeroy, 313 F.3d 828, 834 (3d Cir. 2002) (stating that the non-movant’s version of the facts is accepted as true at summary judgment). We also review Plouffe’s dismissed claims in the light most favorable to his version of events, treating all factual allegations in the complaint as true. Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Because Plouffe’s efforts on appeal are in vain even when the facts are viewed in his favor, he cannot prevail under the stricter standard of review governing the post-trial motions. Leonard v. Stemtech Int’l Inc, 834 F.3d 376, 386 (3d Cir. 2016). 4 particular candidate, Michael Pittaro, was favored and was going to be hired. Plouffe
discovered, however, that Pittaro did not have the required qualifications, which, in
addition to other concerns about his candidacy, made him ineligible to be hired, or even
interviewed. Plouffe raised those concerns in the Department but was met with a hostile
response, and Pittaro was interviewed. As those events unfolded, Plouffe filed a
whistleblowing complaint with Kutztown Dean Anne Zayaitz, with the school’s Provost,
and with its Office of Social Equity, regarding Pittaro’s deficient candidacy. His
complaint led to the Office of Social Equity eventually concluding that Pittaro was not
eligible to be hired.
In the wake of those events, Plouffe’s relationship with other faculty members in
the Department deteriorated, and a detailed complaint about his poor relationships with
other Department members was sent to Dean Zayaitz, “raising over 140 complaints
against Plouffe[.]” (App. at 620.) An investigation was held, and Dean Zayaitz met with
each Department member individually.2 Four days later, Sharon Picus, the University’s
Human Relations Director, was directed to conduct an investigation. She interviewed
numerous individuals, including Plouffe. Picus then prepared a report but did not save
her underlying notes, despite a school policy requiring all documents relating to
discipline to be maintained for seven years. F. Javier Cevallos, the President of
Kutztown University, then had a pre-disciplinary conference with Plouffe.
2 Plouffe says he was “interrogated” by Dean Zayaitz without adequate advance notice or the required union representation present. (App. at 621.)
5 After that meeting, Plouffe was formally terminated for failing to develop
constructive relationships and for contributing to significant conflicts that prevented the
Criminal Justice Department from functioning. He was, however, paid the balance of his
salary for his second-year contract.
B. Procedural History3
Representing himself, Plouffe sued the University and numerous individuals
associated with it (the “University case”), advancing claims including (1) violations of
the First Amendment, pursuant to 42 U.S.C. § 1983; (2) violations of the Fourteenth
Amendment, pursuant to 42 U.S.C. § 1983; (3) conspiracy, pursuant to 42 U.S.C. § 1983;
(4) gender discrimination under Title VII and Title IX; and (5) a violation of the
Pennsylvania Whistle Blowers Act. He later filed a complaint against the Association of
Pennsylvania State College and University Faculties (the “Union”), a labor union that
represents Kutztown’s faculty, and various individuals associated with the Union (the
“Union case”). Combined, these cases have been ongoing for eight years.
The litigation began with the filing of the University case. After Plouffe amended
that complaint, the defendants filed motions to dismiss. Plouffe responded and also filed
a motion to disqualify defense counsel because the Attorney General’s office was
representing both the University and the individual defendants. The motion to disqualify
was denied, and the defendants’ motions to dismiss were granted in full as to the
3 Because we write only for the parties, only the relevant details from the cases’ long procedural histories are included here.
6 University and in part as to the individual defendants. Plouffe filed a motion for a default
judgment against the remaining defendants, due to “[s]erious [m]isconduct[.]” (App. at
190.) That motion was denied, but Plouffe renewed it based on his allegations of
“[s]poliation of evidence” (App. at 226), and that motion too was denied. The District
Court then ordered that “the plaintiff shall not file any more motions” until we had ruled
on motions Plouffe filed seeking leave to pursue interlocutory appeals. (App. at 244.)
Plouffe responded by filing the Union case, which largely tracked the facts in the
University Complaint. He asserted similar § 1983 claims against new individuals, along
with new claims, including a “Weingarten” claim4 and a claim for breach of fiduciary
duty and failure to provide fair representation.
The defendants moved to dismiss the complaint, and the District Court granted
that motion, except as to certain § 1983 claims as to certain defendants. The Court
dismissed Plouffe’s Weingarten claim because “that right arises under the National Labor
Relations Act[,] … which does not afford protection to state employees.” (App. at 1886.)
It dismissed his breach of fiduciary duty and fair representation claims because he had
not alleged sufficient facts to demonstrate the requirement of bad faith. The Court denied
as futile any effort to amend. That eliminated all claims against the Union but left claims
against some individuals.
4 A Weingarten claim is based on the “right to have a union representative at an investigatory interview … under § 7 of the [National Labor Relations Act, 29 U.S.C. § 157].” Gambone, 2012 WL 2343381, at *6.
7 The University case then became active again. Plouffe added a gender
discrimination claim against the University, invoking Title VII, 42 U.S.C. § 2000e et seq,
and Title IX, 20 U.S.C. § 1681 et seq, of the Civil Rights Act. And, in 2013, he filed the
now-operative complaint in that case, his “Fifth Amended Complaint[.]” (App. at 67.)
Kutztown University answered, but the remaining individual defendants did not. At that
point, Plouffe filed a motion for appointment of counsel, and Brian Puricelli was
appointed to represent him in both cases. After a year, Puricelli moved to withdraw due
to difficulties with the attorney-client relationship. While that motion was pending, the
defendants in both cases moved for summary judgment. Puricelli agreed to continue
representing Plouffe until the conclusion of summary judgment proceedings, but their
relationship again broke down, and Puricelli filed a second motion to withdraw. That
motion was granted.
The Court then turned to the summary judgment motions. It raised with the
parties the fact that, despite the elapse of two years, the individual defendants had not
filed an answer to the operative complaint. After a brief discussion, the Court gave the
individual defendants leave to file answers, and they promptly did so.
The District Court then ruled on the summary judgment motions in both cases. In
the University case, the Court determined that Plouffe’s First Amendment retaliation
claim failed because his statements about Pittaro’s job candidacy were made within the
scope of employment duties Plouffe had as a member of the search committee. He was
not speaking as a citizen. The Court further determined that Plouffe’s due process claims
failed because he neither had a protected property interest nor a liberty interest in his job,
8 and, to the extent those claims were premised on Pennsylvania’s administrative agency
statute, that the statute does not authorize a private cause of action in equity, nor is there a
private right of action for damages under the Pennsylvania Constitution. As Plouffe’s
First and Fourteenth Amendment claims failed, his conspiracy claim failed as well
because, absent any underlying constitutional violation, there could be no § 1983
conspiracy liability. In the University case, the District Court thus granted the
defendants’ motions for summary judgment as to Plouffe’s First Amendment, due
process, and conspiracy claims. But, it found triable issues of fact existed with respect to
Plouffe’s whistleblower and gender discrimination claims. In a follow-on opinion, the
District Court also granted summary judgment to the remaining individual defendants in
the Union case on the remaining § 1983 claims, thereby resolving all claims in that case.
After an eight-day trial on the whistleblower and gender discrimination claims in
the University case, the jury returned a defense verdict. Plouffe filed a motion for a new
trial, which the District Court denied.
He timely filed his appeals in both cases.
II. DISCUSSION5
Plouffe argues that the District Court made a multitude of errors, including in its
rulings on non-merits technical issues before trial, its grant of the motion to dismiss his
5 The District Court had subject matter jurisdiction over Plouffe’s federal claims pursuant to 28 U.S.C. §§ 1331, 1343(a)(3). It had supplemental jurisdiction over Plouffe’s state law claims pursuant to 28 U.S.C. § 1367(a). We have jurisdiction over this appeal under 28 U.S.C. § 1291.
9 Weingarten claim and his claim for breach of fiduciary duty and fair representation, its
grant of summary judgment for the defendants on his First Amendment and due process
claims, its rulings during trial, and its failure to set aside the jury’s verdict against him.
None of his arguments win.
Regarding the pre-trial issues, Plouffe says that the Court erred in not
disqualifying defense counsel due to a conflict of interest, not entering a default judgment
due to the defendants’ alleged “serious misconduct” or spoliation of evidence, and not
admitting certain “undisputed facts” into evidence. He also contends that the Court erred
by granting his appointed attorney leave to withdraw and by allowing, sua sponte, certain
defendants to file untimely answers, some of which asserted affirmative defenses. We
review the pretrial rulings for abuse of discretion. See, e.g., United States v. Miller, 624
F.2d 1198, 1201 (3d Cir. 1980) (applying that standard to disqualification of counsel).
Each of Plouffe’s arguments clearly fails under that standard.
As to his argument that defense counsel should have been disqualified, it is
questionable at best whether a plaintiff has standing to raise a conflict of interest between
defense parties and their counsel. See Kasza v. Browner, 133 F.3d 1159, 1171 (9th Cir.
1998) (questioning whether a plaintiff ever has standing regarding a conflict of interest
on the part of the defendants’ counsel and rejecting a plaintiff’s “conclusory charge of
institutional ‘conflict of interest[]’” against the Department of Justice’s representation of
separate defendants). Leaving that aside, however, we note that sovereign states are not
like private parties in all respects and that it is a regular practice for an Attorney
General’s office to represent state agencies and state employees concurrently in civil
10 litigation. Cf. Granberry v. Byrne, No. 11-4329, 2011 WL 4852463, at * 5 (E.D. Pa.
Oct. 13, 2011) (surveying Eastern District of Pennsylvania case law in the context of 42
U.S.C. § 1983). We see no reason to interfere with that practice in this case.
As to Plouffe’s default judgment argument, entering such a judgment in a
contested matter is a drastic and disfavored remedy, and choosing to decide a case on its
merits is preferred. See Budget Blinds, Inc. v. White, 536 F.3d 244, 258 (3d Cir. 2008)
(noting that “default judgments are generally disfavored in our circuit”). Thus, it is
difficult to envision a circumstance in which choosing to decide a case on the merits
would be an abuse of discretion. Moreover, spoliation is only an issue if the “destruction
[of evidence] was intentional[.]” Brewer v. Quaker State Oil Refining Corp., 72 F.3d
326, 334 (3d Cir. 1995) (alteration in original) (citation omitted). It is not an issue
“where the destruction was a matter of routine with no fraudulent intent.” Id. Here,
Picus discarded her notes after compiling her final report and before Plouffe had been
fired. Plouffe alleged in his motion that “Picus reasonably knew that a law suit was
going to result” (App. at 250), but that is pure conjecture and insufficient to raise a fact
issue about whether there was spoliation.
Plouffe’s argument that the undisputed facts at summary judgment should have
been admitted into evidence is equally flawed. It is within a district court’s sound
discretion to determine the admissibility of evidence, and there was no abuse of that
discretion in declining to admit at trial what was only uncontested for purposes of
summary judgment. See, e.g., Doeblers' Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 820
n.8 (3d Cir. 2006) (“‘Concise Statement of Undisputed Facts’ … is not evidence[.]”);
11 Rosales v. City of Chico, No. 2:14-02152, 2015 WL 6167740, at *7 n.3 (E.D. Cal.
Oct. 20, 2015) (“Statements of undisputed facts are not evidence[.]”).
Plouffe’s other arguments concerning pre-trial rulings also fall short. Plouffe, a
civil litigant, “possess[es] neither a constitutional nor a statutory right to appointed
counsel.” Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002). Thus, the Court
was permitted to allow his attorney to withdraw. The District Court also properly
allowed the defendants to file tardy answers to Plouffe’s Fifth Amended Complaint
because Plouffe was not prejudiced, “the defendant[s] appear[ed] to have a litigable
defense[,]” and the delay was not intentional. Chamberlain v. Giampapa, 210 F.3d 154,
164 (3d Cir. 2000).
As to the grant of the motion to dismiss the Weingarten claim and the breach of
fiduciary duty and fair representation claim, Plouffe’s arguments are similarly
unpersuasive. He ignores that, while the National Labor Relations Act creates federal
rights, it does not cover public employers or their employees, and thus does not
encompass his employment with the University. Amalgamated Transit Union v. Byrne,
568 F.2d 1025, 1040 n.12 (3d Cir. 1977). As to his claim of breach of fiduciary duty and
fair representation, Plouffe contends that the Court should have given him leave to amend
his complaint because leave should be freely given. Nonetheless, leave to amend is not
an absolute right. Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 259 (3d Cir.
2014). Because he did not and has not offered additional allegations sufficient to state a
claim, the District Court did not abuse its discretion in deciding that further leave to
12 amend would be futile, especially since Plouffe had already had opportunities to amend.
Id.; see Gambone, 2012 WL 2343381, at *11 (noting previous opportunity to amend).
As to the grant of summary judgment on his First Amendment claims, Plouffe
contends that when he reported Pittaro’s ineligibility to be hired he was speaking as a
“citizen[.]” (Opening Br. at 14.) For support, he relies on Dougherty v. Sch. Dist. of
Philadelphia, 772 F.3d 979, 988 (3rd Cir. 2014), which he says “specifically recognized
that the reporting of misconduct does not fall within the official duties of a teacher.”
(Opening Br. at 31.) Moreover, he argues that whether he was speaking as an employee
or as a citizen is a determination that should be made by the finder-of-fact.6
For the First Amendment to apply to an employee’s speech, the employee must
have spoken “as a citizen, not as an employee,” and the speech must “involve[] a matter
of public concern.” Bradley v. W. Chester Univ. of Pa. State Sys. Of Higher Ed., 880
F.3d 643, 650-51 (3d Cir. 2018) (citation omitted). Whether an individual spoke as an
employee requires examination of the content, form, and context of the relevant speech.
See Rankin v. McPherson, 483 U.S. 378, 384-85 (1987) (concluding that whether an
employee was speaking as a citizen “address[ing] a matter of public concern must be
6 Plouffe also asserts that summary judgment was improper because the defendants “reargue[d] in summary judgment what had already been decided on a motion to dismiss.” (Opening Br. at 30.) But summary judgment is often granted on the same grounds on which a motion to dismiss was previously denied. Wiest v. Tyco Electrs. Corp., 812 F.3d 319, 329-330 (3d Cir. 2016). The standards applicable at those different stages will at times lead to different results. Id.
13 determined by the content, form, and context of a given statement”). “[W]hen public
employees speak ‘pursuant to their official duties,’ that speech does not receive First
Amendment protection.” Dougherty, 772 F.3d at 987 (quoting Garcetti v. Ceballos, 547
U.S. 410, 421 (2006)). Contrary to Plouffe’s assertion, “[t]his is a question of law” and
not one for the finder-of-fact. Id. Here, Plouffe was on the search committee as part of
his employment. He was only aware of the “misconduct” he reported because of his role
on that committee. Cf. Bradley, 880 F.3d at 652-53 (determining that a plaintiff whose
speech occurred at a meeting was not protected by the First Amendment because she was
in part employed to attend the meeting). Accordingly, the District Court did not err in
deciding that Plouffe spoke as an employee, and his speech was not protected by the First
Amendment.
As to the grant of summary judgment on Plouffe’s substantive due process claims,
he argues that the District Court wrongly concluded that he did not “have liberty [or]
property interests in his continued employment.” (Opening Br. at 10.) He says he has a
property interest and a liberty interest in his reputation. (Opening Br. at 32-34.) We have
held, however, that even tenured public employment is not a fundamental liberty or
property interest protected by substantive due process. Nicholas v. Pa. State Univ., 227
F.3d 133, 142 (3d Cir. 2000). Regarding a claimed liberty interest in one’s reputation, we
have held that, in addition to reputational harm, a plaintiff must show the “deprivation of
some additional right or interest[,]” which Plouffe has not done. Dee v. Borough of
Dunmore, 549 F.3d 225, 233-34 (3d Cir. 2008) (citation omitted). Citing Gikas v.
Washington Sch. Dist., 328 F.3d 731, 732 (3d Cir. 2003), Plouffe also attempts to base a
14 due process claim on Pennsylvania Administrative Agency Law and notes that “[t]he
Third Circuit has recognized … that violations of state procedural protections provide a
basis for a federal due process claim.” (Opening Br. at 34.) Even if he could rightly turn
his administrative law claim into a constitutional one, a state procedural protection cannot
provide a basis for a federal due process claim unless the plaintiff has an underlying
property interest, which Plouffe does not.7 Gikas, 328 F.3d at 732-33.
Plouffe next contends that errors during trial entitle him to a new trial.
Specifically, he claims that the Court “improperly conducted the voir dire in front of the
jury[,]” (Opening Br. at 45), that witness tampering occurred, that the Court made
erroneous evidentiary rulings, that it failed to direct adverse witnesses to answer
questions while on the stand, that it improperly refused to allow both refreshing of
witness memories and impeachment testimony, that it improperly criticized the
qualifications of Plouffe’s expert witness in front of the jury and improperly limited the
scope of the expert’s testimony, and that it gave him insufficient time to fully present his
case. He also argues that the jury’s quick decision was based on insufficient evidence
and that “[t]he law clearly recognizes that an unusually quick verdict can be grounds for a
7 Under Supreme Court doctrine, a constitutional claim will only lie for a reputational injury if, in addition to the stigma, there is some additional constitutional violation. Paul v. Davis, 424 U.S. 693, 701 (1976). To the extent Plouffe’s argument can be construed as using his “rights” under Pennsylvania administrative law to support his stigma-plus argument, that argument would also fail because no private right of action exists. See 2 Pa. Cons. Stat. § 702 (providing a right only to appeal an adjudication of a Commonwealth agency).
15 new trial.”8 (Opening Br. at 48.) We respect a court’s discretion in “matters of trial
procedure” because a trial judge “is in a far better position” than an appellate court to
determine what procedures will lead to a fair and efficient trial in a specific case. Reed v.
Phila., Bethlehem & New England R.R. Co., 939 F.2d 128, 133 (3d Cir. 1991). After
reviewing the record, we find no abuse of discretion in any of the trial rulings that Plouffe
protests.
Finally, Plouffe says that the jury’s verdict for the defense on his whistleblower
and gender discrimination claims was based on insufficient evidence. That assertion is
based on his further assertion that he presented “overwhelming evidence” in his favor,
while the defendants only presented “general allegations of misconduct” and “bare
assertions[.]” (Opening Br. at 48, 54, 57, 59.) A new trial should only be granted on
weight-of-the-evidence grounds when “a miscarriage of justice would result if the verdict
were to stand.” Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 211 (3d Cir.
1992) (citation omitted). A district court should not “substitute its ‘judgment of the facts
and the credibility of the witnesses for that of the jury.’” Id. (citation omitted). Here, the
jury could properly have reached a verdict for the defense based on the evidence
presented, and the District Court did not err in denying Plouffe’s motion.
8 Plouffe claims that “[t]he jury was charged just before lunch and returned with a verdict just after lunch” – too short a time “to evaluate a two week trial with extensive evidence!” (Opening Br. at 48.) 16 III. CONCLUSION
Finding no error or abuse of discretion, we will affirm the judgment of the District
Court.