# Grant

> District Court, M.D. Pennsylvania · August 24, 2026

URL: https://www.frixlaw.com/law-library/cases/11425720

## Case

- **Full name:** Brittany Grant v. Nexstar Media Group, Inc. d/b/a The Hill; Nexstar Media, Inc. d/b/a The Hill; and Capitol Hill Publishing Corp. d/b/a The Hill
- **Court:** District Court, M.D. Pennsylvania
- **Decided:** August 24, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRITTANY GRANT, : No. 4:23cv1932
Plaintiff :
: (Judge Munley)
V. :
NEXSTAR MEDIA GROUP, INC. d/b/a : Ss FILED
The Hill; NEXSTAR MEDIA, INC. : CRANTO,
d/b/a The Hill; and CAPITOL : AUG 9
HILL PUBLISHING CORP. d/b/a Pep, 4 2025
: . _D)
The Hill, : PS
Defendants SPUTY Clee

MEMORANDUM ©

Plaintiff Brittany Grant filed this action against entities of her former
employer, Defendants Nexstar Media Group, Inc., Nexstar Media, Inc., and
Capitol Hill Publishing Corp., all doing business as The Hill, (collectively
“Nexstar’). Nexstar terminated the plaintiff. Before terminating her, Nexstar
placed her on a performance improvement plan, or PIP.
Grant contended that those employment decisions were discriminatory and
retaliatory. Her complaint asserted claims under Title VII of the Civil Rights Act
of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq., the Americans with Disabilities
Act (“ADA”), 42 U.S.C. §§ 12101-12117 and the Pennsylvania Human Relations
Act (“PHRA’), 43 PA. STAT. §§ 951-963." (Doc. 1). In November 2025, after a

1 The court has jurisdiction under 28 U.S.C. § 1331 and § 1367(a).

four-day trial, a jury deliberated and unanimously returned a verdict in favor of
Nexstar and against Grant.
Before the court is the plaintiff's timely-filed motion for judgment as a matte!
of law, or, in the alternative, motion for a new trial. (Doc. 95). For the reasons set
forth below, the motions will be denied.
I. Motion for Judgment as a Matter of Law
Grant renews her motion for judgment as a matter of law under Federal
Rule of Civil Procedure 50(b). “Entry of judgment as a matter of lawis a
‘sparingly’ invoked remedy[,]” Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d
Cir. 2007), that should be “granted only if, viewing the evidence in the light most
favorable to the nonmovant and giving it the advantage of every fair and
reasonable inference, there is insufficient evidence from which a jury reasonably
could find liability.” Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d
Cir. 1993). Following a jury trial, the court may grant a motion for judgment as
matter of law “only ‘if upon review of the record, it can be said as a matter of law
that the verdict is not supported by legally sufficient evidence.” Rodriquez v. Se.
Pa. Transp. Auth., 119 F.4th 296, 298 (3d Cir. 2024) (quoting Parkway Garage,
Inc. v. City of Philadelphia, 5 F.3d 685, 691-92 (3d Cir. 1993); see also FED. R.
Civ. P. 50(a). “The question is not whether there is literally no evidence
supporting the party against whom the motion is directed but whether there is

evidence upon which the jury could properly find a verdict for that party.” Walter
v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993) (quoting Patzig v.
O'Neil, 577 F.2d 841, 846 (3d Cir. 1978)).
In this matter, there was sufficient evidence for a reasonable jury to have
found in Nexstar’s favor. As the trial record reflects, Brittany Grant was hired by
a political publication, The Hill, in 2015 as an account executive in advertising
sales. (Doc. 87, Day 1 Tr. 51:18-52:13). She was promoted to director of
business development in 2019. Id., 52:14-20.
Around the time of her promotion and just days after her 30th birthday,
Grant was diagnosed with Stage 4 chronic kidney disease, which progressed to
end-stage renal failure. Id., 53:5-54:17. On March 9, 2020, just prior to COVID-
19 shut-downs, the plaintiff underwent a kidney transplant. Id., 55:3-15.
Grant returned to work after three months of recuperation, but outside the
Beltway. Id., 55:16—21. That is, she worked remotely from her family hunting
camp north of Williamsport, Pennsylvania due to the pandemic and her post-
transplant medical treatment. Id., 55:11-15, 56:16—57:18. Shortly thereafter, in
September 2020, Grant was promoted to head of D.C. sales and associate
publisher. Id., 57:22—58:8.
Grant remained in that position when Nexstar acquired The Hill in 2021.
Id., 60:5-14. After the acquisition, in or around December 2021, Grant began

reporting to individuals within Nexstar’s leadership structure, first Lori Tavoularis
and then to Wil Danielson, who reported to Tavoularis. Nexstar also hired a
general manager for The Hill, Jason Jedlinski. Grant did not report directly to
Jedlinski.
According to Grant’s testimony, she disclosed her medical status to
Tavoularis shortly after the acquisition when she made inquiries related to her
health insurance transitioning. Id., 61:11-25. Per plaintiff, Tavoularis passed
along that information to Karen Brophy, the president of Nexstar Digital. Id.
Grant also emailed a regional human resources manager in December 2021
disclosing that she was a donor kidney recipient. Id., 63:13-64:19. Danielson,
her first-line supervisor, was copied on that email. Id. Additionally, Grant
disclosed to Jedlinski, The Hill's GM, that she had received a donor kidney during
their introductory one-on-one meeting in December 2021. Id., 64:20—-66:6.
Grant’s performance under the new leadership structure was a point of
contention during trial. Nexstar centered its defense on such performance while
also emphasizing that the plaintiff failed to improve her communications with
Jedlinski and members of her sales team.
A. Grant’s Email Exchange with Jason Jedlinski in December 2021
According to Grant, she used her allotted paid time off (“PTO”) at the end of
2021 and that leave was approved by Nexstar. Id., 66:7-68:1. Jedlinski,

however, expected Grant to continue working while on PTO. That is, on
December 27, 2021 at approximately 5:00 PM, Jedlinski emailed Grant
requesting that she add information into a spreadsheet so that Jedlinski could
send introductory emails to the heads of public affairs at numerous corporations.
Id., 68:2-71:13. Per the plaintiff's testimony, it “was a giant spreadsheet with
probably over a thousand lines in it, [and] an extensive number of columns.” Id.
She testified further: “He wanted me to review the information and add in contact
details and/or information about how, as a company and our team, have we
interacted with all of these people for him to then send an email to all of them
introducing himself.” Id., 68:9-17
Then, in approximately a ten-minute span, Grant responded by email,
advising Jedlinski that she was out of the office until the new year. Id., 68:18-
69:1. Jedlinski pressed. Id., 69:2-8. Grant replied: "Not tonight, but | guess | will
have to do it tomorrow. | was really hoping to use my time off to be off." Id.,
69:9-12. Jedlinski continued to press. He responded:
| understand and | do respect vacations and time off. Since
you told me there are potential leads you'd rather | not
contact, I'm asking you to flag which companies you want
me to skip. | cannot imagine that.taking more than 10
minutes of your day and proactively crossing off anyone |
know to be a Hill client and anyone who is connected to
your reps on LinkedIn. | shared this list with you last
Tuesday, and you could have noted rows you wanted me
to skip before your vacation.

Id., 69:13-21.

Grant testified that the request was not a ten-minute request, but a task
that would have taken more than an hour to create “a good final product, not
something that was just half-baked.” Id. 69:22—70:7.
She sent a reply email approximately an hour-and-a-half later. Id., 70:12—
71:7. In that email, Grant disclosed that she had been at the hospital since early
that morning and was scheduled for a round of treatments the next day. Id.,
70:12-—71:7. She referred to the “10 minutes of your day” portion of Jedlinski’s
previous email as “slighting and condescending[.]” Additionally, despite her
testimony that she wanted to supply something that was not “half-baked,” Grant
wrote: “[Njevertheless, I’ve completed this at a quick glance and hope it’s helpful
to you during your test send.” Id. Further, she wrote: “Upon my return, we can
discuss how to get you introduced to the rest of our clients that we have close
relationships. | have zero interest in going tit for tat with you via email and,
again, find this time to be completely unproductive.” Id. Plaintiff continued: “I’m
trying to give you the benefit of the doubt, but not sure how else to read this.
What you shared with me Tuesday was nascent in comparison.” Id. She
concluded: “Your genuine efforts are appreciated, but in the future, | need more
lead time or a clear date that you intend on doing this so | can more effectively

manage my work load to be sure that your requests are prioritized. Enjoy your
evening.” Id.
Jedlinski responded: “I saw that you quickly flagged the companies you
want to discuss before | approach, that's all | was seeking to proceed this week.
Thank you. The aim of my reply was not to be slighting or condescending, let's
continue our conversation when you're back next week. Hope your treatments

go smoothly.” Id., 71:8-13.
It is undisputed that Grant’s working relationship with Jedlinski never
improved. On the stand, Grant’s immediate supervisor Wil Danielson remarked

on the plaintiff and Jedlinski lobbing “virtual grenades at each other” during Zoom
meetings. (Doc. 86, Day 2 Tr., 22:9-18, 83:9-84:6). He testified that the
situation between the two required him and Lori Tavoularis to take time away
from their work “to get both of them to, like, sit in their separate corners and
realize they need to play nicely, because they're supposed to be partners in the

way that we grow the business together.” Id. 82:22—83:8. Similarly, Tavoularis
testified that Grant and Jedlinski were involved in constant battles. (Doc. 100-1,
Tavoularis Tr. 42:14-18).
In February 2022, Jedlinski complained to Tavoularis about Grant by email,
referring to plaintiffs performance as a “business risk” and expressing concerns
that first quarter revenue goals would not be met. (Doc. 87, Day 1 Tr., PI.

Testimony 74:22—75:6). Jedlinski also accused Grant of leaking proprietary
information to The Hill's former owners. Id. 76:7-17. Four days after that email,
Grant emailed Tavoularis with complaints about Jedlinski and expressed
concerns that he would cause her to miss her quotas and budget. Id., 79:16—
84:22. The evidentiary record contains other emails where Jedlinski pressed for
plaintiff's termination during the first half of 2022, including shortly after plaintiff
experienced two hospitalizations. Id., 95:4—96:15.
Specifically, on March 9, 2022, Grant celebrated two years post-transplant.
Id. 85:4-23. Toward the end of the month, plaintiff suffered from a severe kidney
infection, which required hospitalization and missed time from work between
March 31, 2022 to April 4, 2022. Id. 85:24:86:7. On April 14, 2022, Grant
experienced another infection related to her kidney transplant, which resulted in
rehospitalization. Id., 86:22—88:7. From April 14, 2022 to April 21, 2022, plaintiff
required additional time from work to care for her medical needs. Id. Tavoularis
testified that Grant used PTO for those absences, not medical leave approved
through human resources. (Doc. 100-1, 46:20-47:18).
B. Grant’s Performance
Grant’s underperformance was Nexstar’s proffered reason for placing her

on a performance improvement plan and for her eventual termination. Nexstar
witnesses offered varying testimony about Grant’s performance.

Specifically, Lori Tavoularis, Grant’s second-level supervisor, testified that
that the plaintiff was forecasted to hit her first quarter quota as of February 271,
2022. Id. 40:6-20. On the other hand, Tavoularis also testified:
Q_ Outside of the tension between Mr. Jedlinski and Ms.
Grant, what was Ms. Grant's performance like on the job
during this period of time? And, again, I'm talking about
early 2022.
A Sure. Her performance started to decrease. She had
lost a large account. There was a lot of blaming of Jason
[Jedlinski] on why things were not going well for her. She
had some issues with her team. There was -- | believe it
was Monica [Seebohm] on her team had performance
. issues. She wasn't willing to address the performance
issues to the standard that we would think that a leader
would.
She wanted [Seebohn] put on a PIP, and she asked
Wil [Danielson] to do it for her. There were a lot of
instances of just not what we would consider taking that
leadership role. She also didn't like talking about
performance being bad and felt like it was bad for morale
for the team, which was in conflict of how we would
manage it. We think it's really important to be transparent
so that we could solve the problems.
Id. 12:12-13:6
Danielson contradicted some, but not all, of Tavoularis’s testimony. He
disagreed that Grant was on target to hit her first quarter quota. (Doc. 88, Day 2
Tr. 31:9-17). He indicated that the plaintiffs sales team was double-digit figures
behind their quotas and that “sales numbers were a problem the entire first and
second quarter.” Id., 32:10-19, 49:24—-50:2. According to Danielson’s testimony,
9 .

he discussed Grant's performance issues with her weekly. lId., 85:8-25.
Danielson testified: “It was frustrating, week after week, to get the same story
without different results or different effort.” Id.
As for Grant’s interpersonal communication and management of her sales
team, Danielson testified that the plaintiff experienced further issues. As an
example, Danielson testified that the plaintiff was not managing certain people at
all. Id. 88:17-20. Per Danielson, plaintiff refused to deliver a performance
improvement plan, a PIP, to a member of her sales team, Monica Seebohm, after
that individual did not achieve her financial targets. Id., 88:21-89:24. Instead,
Danielson took on a greater role managing this member of Grant’s team after she
refused to deliver the PIP and contacted human resources to raise her concerns
about doing so. Id.; see also 103:9-106:24. In April 2022, Grant also told
Danielson that he could not join one of her sales meetings to discuss her team’s
performance. lId., 96:18-101:4. At that time, Danielson advised Grant that The
Hill was 54% under its forecasted budget and at negative 40% in revenue from
the prior April. Id. Per Danielson, he believed The Hill was probably spending
more money than it was making at that time. Id.
As for the plaintiff's use of PTO in March and April 2022 due to medical
treatment, Danielson testified that her sales goals were not adjusted because
she took days off in a non-consecutive manner, which people did frequently. Id.

10

49:1-23. Danielson also testified that he covered for Grant and completed her
work during her absences. Id. 95:1-11.
Danielson further testified that another employee, Mark Wildman, had his
entire sales team fired for non-performance in the first quarter. Id., 54:25—54:11.
According to Danielson, Wildman was not placed on a PIP and terminated like
Grant because he met his individual quota and was able to obtain “Google or
YouTube or one of those big accounts for a couple million dollars[.]” Id., □□□□□□
55:7; see also 102:11-16. Danielson confirmed that Wildman eventually took

over Grant’s team. Id. 145:12-21.
C. The Performance Improvement Plan and Grant’s Termination
Danielson testified that as of Friday, April 22, 2022, a decision was made
by Karen Brophy to terminate the plaintiff. Id., 55:8-57:16. Brophy was the
president of Nexstar Digital. According to Danielson, management would have a
financial meeting on Fridays and there were multiple weeks of The Hill
underperforming. Id. Per Danielson, Brophy asked specifically about Grant's

revenue and interpersonal issues and sought input from Danielson, Tavoularis,
and Jedlinski on the decision. Id., 57:21—59:4.
Danielson was tasked with administering the decision. Per Danielson, a
determination to offer Grant options occurred during his discussions with Terri
Bush, Nexstar’s Senior Vice-President of Human Resources. Id., 61:2-62:9.

11

Those options were a severance package for resignation or a performance
improvement plan. Id.
Brophy also testified in this matter. According to Brophy, she had to
report financial information to Nexstar’s founder, Perry Sook, and the rest of the
board of directors each quarter. Id., 141:14—-142:11. Brophy explained that she

was not seeing sales results from Grant’s team, which compounded financial
goals not being met. Id., 142:12-143:3. Brophy then applied downward

pressure on Tavoularis and Danielson to fix the issues and show success. lId.,
143:4—145:25.
Brophy further testified that she observed an illuminating meeting with
Grant after identifying the financial issues on her team. Id. 145:10—146:4.
Brophy explained:
| had sat in on a meeting with [the plaintiff], and it was clear,
from her attitude, that she was unhappy. She wasn't
disrespectful, but she was cold, and, you know, very
different than the first time | had met her. So | just knew
that, you know, she was unhappy and becoming
disengaged. So | started saying, | think, we need to either
see if she wants to stay with us or if we need to do a plan
to get things back on track.
Id. 145:23-146:4.
Per Brophy, she decided to issue the PIP, which Grant accepted. Brophy
explained that she observed limited changes in plaintiff's performance after the

12

PIP was issued and decided to terminate Grant amidst the pressure to improve
the numbers at The Hill. |Id., 148:24—150:15.
Brophy also testified as follows:
Q. So as of April 26, 2022, you wanted Ms. Grant to be on
a PIP?
A. | wanted her to either -- if she was unhappy enough to
leave, we wanted to help her leave, and if she was willing
to do a PIP and stay and work with us, | was happy to try
to help her improve her performance.
Id. 156:5-10.
Brophy implied in her testimony that plaintiff's time off in April 2022 for
medical reasons would not have had a meaningful effect given how far away
plaintiff's team was from meeting their numbers. Id., 158:8-16.
D. Plaintiff's Circumstantial Evidence of Discrimination and
Retaliation
Grant’s claims of disability discrimination focused on the timeline of
Nexstar’s decision-making and the inconsistencies in witness testimony against
the emails. She highlighted that Nexstar’s decision to terminate her appeared
solidified in April 2022 just days after she returned from her time off for medical
treatment. Grant's claims of sex discrimination focused on Jedlinski’s conduct
and evidence that a peer, Mark Wildman, was not placed on a PIP and
terminated due to his team’s poor performance. She emphasized that Wildman
received her clients and commissions when she was fired. Similarly, Grant’s
13

retaliation claims focused on the suspicious timing of her PIP and termination
relative to her formal and informal complaints of discrimination, which included e-
mails to her supervisors about Jedlinski’s conduct. Ultimately, however, a jury
credited the testimony of Danielson, Tavoularis, Brophy, or some combination of
the three, that Nexstar took adverse employment action against the plaintiff due
to her performance.* Such testimony sufficiently supports the verdict in this case.
ll. □ Motion for a New Trial
In the alternative, Grant requests a new trial. Under the Federal Rules of
Civil Procedure, a court may grant a new trial on all or some issues "for any
reason for which a new trial has heretofore been granted in an action at law in
federal court." FED. R. Civ. P. 59(a)(1)(A). Those reasons include a
demonstration that the verdict is against the weight of the evidence, that the
damages are excessive, or that the trial was unfair or was influenced by
prejudicial legal error. Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir. 1993)
(citations omitted); Semper v. Santos, 845 F.2d 1233, 1236 (3d Cir. 1988)
(citations omitted). A new trial under Federal Rule of Civil Procedure 59 is

? As Danielson, Tavoularis, and Brophy testified, they all eventually lost their positions with
Nexstar. Brophy’s contract was not renewed “when [Nexstar] brought in someone that had
promised them better money.” Id. 150:20-24. Per Brophy, Jedlinski was terminated six
months after Grant based on his performance and his management style. Id., 163:24—164:11.
Danielson testified that he was terminated at the end of 2024 as part of a reduction in force.
Id., 34:13-16. According to Tavoularis’s testimony, she was involuntarily separated from
Nexstar as part of position elimination. (Doc. 100-1, 23:11-14).
14

appropriate “when ‘the great weight of the evidence cuts against the verdict and .

.. amiscarriage of justice would result if the verdict were to stand.’”” Leonard v.
Stemtech Int'l Inc., 834 F.3d 376, 386 (3d Cir. 2016) (quoting Springer v. Henry,
435 F.3d 268, 274 (3d Cir. 2006)). There is a high threshold for overturning a
jury verdict on a motion for new trial, and it is not crossed where the verdict, as a
whole, does not shock the conscience or cry out to be overturned. Winn-Dixie
Stores, Inc. v. E. Mushroom Mktg. Coop., Inc., 89 F.4th 430, 443 (3d Cir. 2023)
(citation and quotation marks omitted). “Where evidence is in conflict and subject
to two interpretations, the trial judge should be reluctant to grant a new trial.”
Klein, 992 F.2d at 1295.
In light of the evidentiary review above, it is clear that the jury’s verdict must
stand. Thus, to the extent that Grant’s motion challenges the weight of the
evidence in her pursuit of a new trial, the motion will be denied.
Next, where the motion is grounded in jury instructions or evidentiary
rulings, the inquiry is less deferential to the verdict. See Klein, 992 F.2d at 1289-
90 (“the district court's latitude on a new trial motion is broad when the reason for
interfering with the jury verdict is a ruling on a matter that initially rested within the
discretion of the court, e.g. evidentiary rulings[.]’); Foster v. Nat'l Fuel Gas Co.,
316 F.3d 424, 429 (3d Cir. 2003) (“Legal error in a charge to the jury may
constitute grounds for granting a new trial.”).

15

However, “[u]nless justice requires otherwise, no error in admitting or
excluding evidence—or any other error by the court or a party—is ground for
granting a new trial, for setting aside a verdict, or for vacating, modifying, or
otherwise disturbing a judgment or order.” FED. R. Civ. P. 61. “At every stage of
the proceeding, the court must disregard all errors and defects that do not affect

any party’s substantial rights.” Id.
1. Jury Instructions
Grant’s complaint asserted discrimination claims under Title VII, the ADA,
and the PHRA. (Doc. 1, Compl. 111, 117, 123). She also asserted retaliation
claims under these statutes. Id. Following the verdict in Nexstar’s favor, plaintiff
now raises new issues, such as a challenge to the adverse action portion of the
retaliation instructions. She also revisits prior challenges to the court’s decisions
not to read certain requested instructions—a mixed-motive instruction for her
disability discrimination claims, a supplemental determinative factor instruction,
and an adverse inference instruction.

a. Retaliation Claims — Adverse Action Instruction
As her lead legal argument for a new trial, Grant focuses on an omitted
reference to the Nexstar-imposed performance improvement plan (“PIP”) in the
retaliation instructions read to the jury. She asserts that the court “instructed the
jury that the only materially adverse action it could consider for [p]laintiff’s

16

retaliation claims was her termination.” (Doc. 95, PI. Br. in Supp at 27). Plaintiff
also argues that the court “misstated the law.” Id. at 36. Neither of those things
occurred.
Under the law, the court has broad discretion in formulating its jury
instructions and “[a] party has no vested interest in any particular form of
instructions; the language of the charge is for the trial court to determine.” James
v. Continental Ins. Co., 424 F.2d 1064, 1065 (3d Cir. 1970); see also Tigg Corp.
v. Dow Corning Corp., 962 F.2d 1119, 1124 (3d Cir. 1992) (“a trial judge has
broad discretion concerning the particular language used in a jury instruction.”).
Prior to trial, the plaintiff submitted nine proposed jury instructions. (Doc. 55).
Five of her proposed instructions referenced her termination—and only her
termination—as the adverse action she experienced. Id. at 3, 4-7, 9-10. The
plaintiff also submitted a single proposed instruction covering her Title VII, ADA,
and PHRA retaliation claims. Id. at 11. That instruction did not include reference
to plaintiff's performance improvement plan or her termination, only a vague
reference to “Nexstar’s actions.” Id.
The model retaliation instructions include a bracketed area, “[describe
alleged retaliatory activity].” THIRD CIRCUIT COMMITTEE ON MODEL CRIMINAL JURY
INSTRUCTIONS §§ 5.1.7, 9.1.7 (2025). Additionally, similar bracketed areas

17

appear in the model Title VII and ADA disparate treatment instructions. Id., §§
5.1.2 and 9.1.2 (2025).
The instructions read to the jury hewed closer to the model Title VII and
ADA instructions. It is not disputed that Nexstar placed Grant on a performance
improvement plan and then terminated her. Plaintiff's closing argument made
repeated references to the PIP being discriminatory and retaliatory. (Doc. 91,
Day 4 Tr. at 69-71, 74, 76-77). Defendants argued that the adverse
employment actions were purely about numbers—“a legitimate performance-
based PIP termination.” Id. at 91.
The court then referred to these adverse actions in the discrimination
instructions as “Nexstar’s decisions to place her on a [pJerformance
[iJmprovement [p]lan and then terminate her.” Id. at 113. The court also
instructed: “Nexstar has given non-discriminatory reasons for its actions, that is,
Nexstar terminated Plaintiff's employment because of her failure to meet the
objectives in her Performance Improvement Plan or PIP.” Id. at 117.
The court did not refer to the PIP in its retaliation instructions. Specifically,
the instructions read to the jury provided, in relevant part:
Concerning the second element. The term, materially
adverse. That means that Ms. Grant must show that her
termination was serious enough that it well might have
discouraged a reasonable worker from making complaints
of disability and sex discrimination.

18

Ultimately, you must decide whether Ms. Grant's
complaints of discrimination and charge of discrimination
had a determinative effect on Nexstar's decision to
terminate her.
Determinative effect means that, if not for Ms. Grant's
complaints of discrimination, the termination would not
have occurred.
Id. at 118-19.
At the conclusion of the jury charge, the court provided counsel with an
opportunity to be heard on the contents of the instructions:
Counsel, any additions, corrections or misstatements?
[PLAINTIFF'S COUNSEL]: No, Your Honor.
[DEFENDANTS’ COUNSEL]: Perfect from our side, thank

you.
Id. at 133.
Plaintiff did not raise any objection to the retaliation instructions read to the
jury at that time. Plaintiff also did not object during the charging conference
when the court indicated it would not be including reference to the PIP in other
instructions. (Doc. 91, Day 4 Tr., at 15-16). In opposing the post-trial motions,
defendants contend that the plaintiff has waived any challenge to the retaliation
instructions. In the alternative, defendants argue that the omitted reference to

19

the PIP is not a plain error or an error that affected plaintiff's substantial rights.
After review of the trial record, the court agrees with the defendants’ positions.
Under the Federal Rules of Civil Procedure, “[a] party may assign as error .

.. an error in an instruction actually given, if that party properly objected|.]” FED.
R. Civ. P. 51(d)(1)(A). A proper objection is one “on the record, stating distinctly
the matter objected to and the grounds for the objection.” FED. R. Civ. P.
51(c)(1). “A court may consider a plain error in the instruction that has not been
preserved as required by Rule 51(d)(1) if the error affects substantial rights.”
R. Civ. P. 51(d)(2).
Plaintiff did not preserve an objection to the retaliation instruction in the

manner contemplated by Rule 51. Therefore, as a general matter, the issue is
waived. Alexander v. Riga, 208 F.3d 419, 426 (3d Cir. 2000). Waiver aside,
“[a]n error constitutes plain error if: ‘(1) [the error is] fundamental and highly
prejudicial or if the instructions are such that the jury is without adequate
guidance on a fundamental question and (2) our failure to consider the error
would result in a miscarriage of justice.’ ” Harvey v. Plains Twp. Police Dep't, 635
F.3d 606, 612 (3d Cir. 2011) (quoting Alexander, 208 F.3d at 426-27) (alteration
in original). Furthermore, a single erroneous instruction does not warrant a new
trial unless, viewed against the charge as a whole, it “was capable of confusing

20

and thereby misleading the jury.” Limbach Co. v. Sheet Metal Workers □□□□
Ass'n, 949 F.2d 1241, 1259 n.15 (3d Cir. 1991) (citation omitted).
Title VI, ADA, and PHRA-based retaliation claims require proof of three
elements: 1) engaging in protected employee activity; 2) adverse action by the
employer either after or contemporaneous with the employee's protected activity;
and 3) a causal connection between the first two elements.? Canada v. Samuel
Grossi & Sons, Inc., 49 F.4th 340, 346 (3d Cir. 2022) (citing Daniels v. Sch. Dist.
of Phila., 776 F.3d 181, 193 (3d Cir. 2015) and Marra v. Phila. Hous. Auth., 497
F.3d 286, 300 (3d Cir. 2007)).
The definition of an adverse employment action in Title VII retaliation cases
applies equally to ADA retaliation cases. Steidle v. U.S. Liab. Ins. Co., 179 F.4th
193, 205 (3d Cir. 2026). It is a “more relaxed standard[.]” Id. (quoting Budhun v.
Reading Hosp. & Med. Ctr., 765 F.3d 245, 257 n.6 (3d Cir. 2014)). Specifically,
“a plaintiff claiming retaliation under Title VII [and/or the ADA] ‘must show that a
reasonable employee would have found the challenged action materially
adverse’ in that ‘it well might have dissuaded a reasonable worker from making

3 The language of the PHRA is substantially similar to the anti-retaliation provisions of Title VII
and the ADA; thus, the court interprets the PHRA “as identical” to its federal analogues,
“except where there is something specifically different in its language requiring that it be
treated differently.” Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002).
21

or supporting a charge of discrimination.’” Id. (quoting Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
The court’s instructions in this case are taken as a whole and must have
informed the jury of the correct legal standard. Harvey, 635 F.3d at 612 (citation
omitted). The court referred to the PIP as an adverse action in one of its earlier
discrimination instructions. * When illustrative examples of adverse actions were
being provided to the jury by the court, the jury heard about the PIP as one of
those examples.
Additionally, the plaintiffs PIP and her termination were inextricably linked
together by the evidence. The jury heard about the PIP and termination together
as either being discriminatory and retaliatory or as the result of the plaintiff's job
performance. Given the intertwined nature of these events under the
circumstances presented here, the omission of the words “performance
improvement plan” from the retaliation instructions did not fundamentally impact
the jury’s consideration of those claims, nor did it prejudice the plaintiff. The jury
was adequately instructed with respect to the adverse action portion of plaintiff's
retaliation claims.

4 Contrary to any suggestion by the parties, the court did not make a “secret sua sponte ruling
that [p]laintiffs PIP was not retaliatory[.]” (Doc. 101, Pl. Reply Br. at 2-3).
22

Going beyond that conclusion, the omission of the PIP from the retaliation
instruction does not warrant a new trial if the error is harmless. Harvey, 635 F.3d
at 612. Specifically:
An error is harmless if it is highly probable that the error did
not contribute to the judgment. An erroneous jury
instruction may also be considered non-fundamental when,
taking the instructions as a whole, the erroneous
instruction is a solitary misstatement of law buried in an
otherwise correct legal explanation.
Id. (quotation marks and citations omitted).
Plaintiff has not demonstrated that this omission mattered to the outcome
of the trial. The jury heard evidence about how the PIP and termination were
connected. The jury heard the PIP and termination described as adverse actions
in the companion discrimination instructions. Then, the jury returned a verdict in
favor of Nexstar on all of Grant’s claims, for discrimination and retaliation alike.
Practically speaking, a PIP measures performance. To reach any verdict, the
jurors would have had to consider Nexstar’s view of the evidence that Grant’s
PIP and termination were performance-based. The jurors would also have had
to consider Grant’s view of the evidence that the PIP was an example of Nexstar
papering her employment file to obscure its discriminatory and/or retaliatory
reasons for terminating her. Here, after weighing the evidence, the jury
determined that Grant’s separation from Nexstar was performance-related and
not illegal discrimination or retaliation. Therefore, the non-reference to the PIP in
23

the retaliation instructions did not contribute to the verdict against the plaintiff.
Any error to be assigned to the court by the omission is harmless.
b. Disability Discrimination Claims — Mixed-Motive Instruction
Next, Grant challenges the discrimination instructions. In this case, the
court read a mixed-motive and pretext instruction to the jury regarding plaintiff's
Title VIl and PHRA sex discrimination claims. The court only read a pretext
instruction regarding plaintiffs ADA and PHRA disability discrimination claims.
Grant believes the omission of a mixed-motive instruction for disability
discrimination compels a new trial in this instance. Neither the law nor the facts

are on her side.
Regarding her federal law claims, Title VIl and the ADA have their own
statutory nuances. Under Title VII, it is an unlawful employment practice to
“discharge any individual, or otherwise to discriminate against any individual” with
respect to her “terms, conditions, or privileges of employment because of such
individual’s .. . sex[.]” 42 U.S.C. § 2000e-2(a)(1). Additionally, an unlawful
employment practice is established under Title VI] “when the complaining party
demonstrates that... sex... was a motivating factor for any employment
practice, even though other factors also motivated the practice.” 42 U.S.C.
§ 2000e-2(m). Title VII provides two discrimination causation standards based

on the “because of’ and “motivating factor” language. Therefore, the court

24

provided the jury with a mixed-motive and pretext instruction regarding the
plaintiffs sex discrimination claims.
The ADA does not contain a motivating factor causation provision like
Section 2000e-2(m). Under the ADA, it is unlawful for an employer to
“discriminate against a qualified individual on the basis of disability in regard
to...discharge of employees...and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). The “on the basis of” language in Section
12112 establishes the only causation standard that a plaintiff must meet.
After careful consideration of the issue during trial, the court was compelled
to apply a but-for causation standard to Grant’s ADA discrimination claims.° See
Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 589 U.S. 327, 332 (2020)
(noting that the “ancient and simple ‘but-for' common law causation test. . .
supplies the ‘default’ or ‘background’ rule against which Congress is normally

5 There is no precedential Third Circuit decision for this proposition. A fairly recent non-
precedential opinion noted other circuit-level decisions, but “refrain[ed] from ruling on this
important issue.” Coleman v. Children's Hosp. of Phila., No. 23-3064, 2024 WL 4490602, at *2
n.2 (3d Cir. Oct. 15, 2024). In the absence of binding precedent in this circuit, the court is
persuaded by the analysis in DiFiore v. CSL Behring, LLC, 879 F.3d 71, 78 (3d Cir. 2018),
which applied a but-for causation test to a plaintiff's claim for retaliation under the False Claims
Act after considering the effect of Gross and Nassar. The court is not persuaded by plaintiffs
reference to Egan v. Delaware River Port Auth., 851 F.3d 263, 273 (3d Cir. 2017). In Egan,
the Third Circuit authorized a motivating factor causation standard for an FMLA retaliation
claim. Id. at 274. In doing so, however, the court used Chevron deference to a Department of
Labor regulation to fill a gap in the Family Medical Leave Act of 1993. Id. at 273. The Third
Circuit has not revisited regulation-deferential FMLA retaliation claims in a precedential opinior
since the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369
(2024). Furthermore, the non-precedential opinion in Coleman called Egan’s holding “open to
question” based on Loper Bright, but did not revisit the issue. 2024 WL 4490602, at *3 n.4.
25

presumed to have legislated when creating its own new causes of action[,]”
including the federal anti-discrimination laws) (citing Univ. of Tex. Sw. Med. Ctr.

v. Nassar, 570 U.S. 338, 346-47 (2013) and Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 176-77 (2009)); see also Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47,
63 (2007) (“[i]Jn common talk, the phrase ‘based on’ indicates a but-for causal
relationship”); Natofsky v. City of New York, 921 F.3d 337, 349 (2d Cir. 2019)
(adopting a but-for causation standard for ADA discrimination claims); Gentry v.
E. W. Partners Club Mgmt. Co., 816 F.3d 228, 235 (4th Cir. 2016) (same); Lewis
v. Humboldt Acquisition Corp., 681 F.3d 312, 321 (6th Cir. 2012) (same);
Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961 (7th Cir. 2010)
(same); Murray v. Mayo Clinic, 934 F.3d 1101, 1105 (9th Cir. 2019) (same);
Akridge v. Alfa Ins. Cos., 93 F.4th 1181, 1192 (11th Cir. 2024) (same).
Furthermore, Congress did not incorporate Section 2000e-2(m) into the
ADA when that statute was amended in 2008. Jd. at 1202. Rather, a relevant
portion of the ADA reads, as it did at enactment: “The powers, remedies, and
procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and
2000e-9 of this title shall be the powers, remedies, and procedures this
subchapter provides to . . . any person alleging discrimination on the basis of
disability in violation of any provision of this chapter . . . concerning employment.”
42 U.S.C. § 12117(a). Section 2000e-2 of Title VII is not included in this
26

incorporation statute. Consequenily, there is no statutory basis for a mixed-
motive causation standard under the ADA.® The court did not commit error by
denying plaintiff's proposed mixed-motive instruction.
To the extent that mixed-motive ADA discrimination claims may be
presented to a jury after Gross, Nasser, and Comcast, a plaintiff must produce
direct evidence of discrimination. See Labrice v. City of Philadelphia, No. CV 19-
4377, 2025 WL 1508022, at *3 (E.D. Pa. May 27, 2025) (Brody, J.) (citing
Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n.3 (2003) and Connelly v. Lane
Constr. Corp., 809 F.3d 780, 787-88 (3d Cir. 2016)). In Labrice, for example, the
plaintiff supplied a document from his employer which indicated that he was
rejected from positions due to his status of being “injured on duty.” Id. at *4.
Additionally, discriminatory statements may constitute direct evidence of
discrimination. Qin v. Vertex, Inc., 100 F.4th 458, 472 (3d Cir. 2024). For
instance, in Jacobs v. York Union Rescue Mission, Inc., the plaintiff proffered
evidence that her manager made numerous negative comments about her right-
hand impairment and later decided to terminate her while she was on medical

6 The court is not persuaded by plaintiffs argument about “Congress's explicit incorporation of
Title VII's remedial scheme—including its mixed-motive provisions—into the ADA's
enforcement framework.” (Doc. 95 at 40) (citing 42 U.S.C. § 2000e-5(g)(2)(B)). Plaintiffs
argument has been rejected by many appellate courts in the well-reasoned decisions
referenced in the body of this memorandum. See e.g., Lewis, 681 F.3d at 319-20 (Sutton, J.).
27

leave for carpal tunnel release surgery. No. 1:12-CV-0288, 2014 WL 6982618,
at *13 (M.D. Pa. Dec. 10, 2014).
Here, Grant relies on Labrice and Jacobs to support her request for a new
trial. Unlike those cases, however, there was no direct evidence of record in this
case demonstrating that Nexstar took adverse employment action against the
plaintiff due to her disability. For example, plaintiff did not testify to any alleged
discriminatory statements about her kidney transplant or her treatment as a
transplant recipient. There were no e-mails or other documents presented to the
jury with negative references to plaintiff's medical conditions. During trial, plaintiff
presented circumstantial evidence to support her view of a suspicious timeline of
events and covert prejudice because of her disabilities. That evidence warranted

a pretext instruction and a pretext instruction alone.
Grant also looks to state law to support her argument. She asserts that the
PHRA independently supports a mixed-motive instruction for disability
discrimination claims. Plaintiff, however, did not raise this issue before or during
trial or make a PHRA-derived objection to the court's ruling. Instead, the record
reflects the following discussion just prior to jury selection:
THE COURT: Great news, that's a great way to start a
Monday. .
Number two. On the PHRA, that is not mentioned in your
instructions, either side, your verdict slip or your statement

28

of the case. How are we proceeding? How are we handling
the PHRA claim? How is that going to be addressed?
[PLAINTIFF'S COUNSEL]: So, typically, if at all, in the first
instruction where it says, These claims are being brought
under Federal law and State law, the State law being the
Pennsylvania Human Relations Act, it could just be stated
-- and then otherwise the State law is interpreted the same
way as Federal law, so there doesn't need to be separate
instructions.
THE COURT: So the thing of it is, with the statement of the
case that you gave me, it doesn't mention anything about
the PHRA, so I'm just going to read it as it is, okay?
[PLAINTIFF'S COUNSEL]: That's fine, Your Honor. | don't
think it changes anything.
THE COURT: And, | think, in the preliminary charge, I'm
just reading the statement of the case again, okay. In the
final charge, we can hammer out how you want it read, if
you want it even mentioned, because | understand what
you're saying.
(Doc. 85, Day 1, Tr., 2:16-3:12).
During the charging conference, plaintiff did not argue that the text of the
PHRA supported a mixed-motive instruction. (Doc. 91, Day 4 Tr., 5:18—12:16).
Rather, plaintiff's counsel only specifically objected to the “removal of the ADA
mixed-motive instruction.” Id. at 13:22-25.
To the extent that this PHRA-related objection to the jury instructions was
not waived, the court did not commit error. If the PHRA authorizes a mixed-

29

motive causation standard for disability discrimination claims, plaintiff did not
present any direct evidence of such discrimination at trial.

c. Determinative Factor Instruction
Grant also takes issue with the denial of her request to further explain the
phrase “determinative factor’ in the pretext instructions. The omission of
plaintiff's requested verbiage does not warrant a new trial.
To illustrate, the ADA model instruction provides:
Ultimately, you must decide whether [plaintiff] has proven
that [his/her] [disability] was a determinative factor in
[defendant's employment decision.] “Determinative factor”
means that if not for [plaintiff's] [disability], the [adverse
employment action] would not have occurred.
THIRD CIRCUIT COMMITTEE ON MODEL CRIMINAL JURY INSTRUCTIONS § 9.1.2 (2025).
Plaintiff requested the following instruction:
Ultimately, you must decide whether Ms. Grant has proven
that her disability was a determinative factor in Nexstar’s
decision to terminate her. “Determinative factor” means
that if not for Ms. Grant’s disability, the termination would
not have occurred. Ms. Grant does not have to prove that
her disability was the only reason for Nexstar’s decision to
terminate her.
(Doc. 55 at 7) (underlining in original) (citing Bostock v. Clayton Cnty., 590 U.S.
644, 656 (2020); Burrage v. United States, 571 U.S. 204, 211-12 (2014)).
The extra underlined sentence above was not read to the jury. (Doc. 91,
Day 4. Tr. at 114-15).

30

Under the law, the court has substantial discretion over the specific wording
of jury instructions and need not give a proposed instruction if the essential
points are covered by those that are given. Grazier ex rel. White v. City of
Philadelphia, 328 F.3d 120, 127 (3d Cir. 2003) (citations omitted). That
discretion is conditioned on crafting a jury charge that communicates the
substance of the law and does not mislead or confuse the jury. United States v.
Petersen, 622 F.3d 196, 203 (3d Cir. 2010) (citing United States v. McGill, 964
F.2d 222, 235 (3d Cir. 1992).
The model instructions read to the jury sufficiently explained determinative
factor causation, i.e., but-for causation. In contrast, Grant’s extra requested
sentence blurred the line between but-for causation and motivating factor
causation.’ In this instance, less was more. Given the option to include a
sentence that could mislead the jury into applying a different causation standard

or not include that sentence, the court chose the latter.
d. Adverse Inference Instruction
Grant also moves for a new trial because the court did not read her
proposed adverse inference instruction about Jason Jedlinski’s termination. In
her post-trial motions, plaintiff argues that she was “systematically deprived of

As detailed above, the jury was not read a mixed-motive instruction with respect to the
plaintiff's disability discrimination claims.
31

discovery concerning [Jason] Jedlinski's termination—the individual whom the
evidence established was the driving force behind [p]laintiff's termination.” (Doc.
95, PI. Br. in Supp. at 55). On the fourth day of trial, counsel for plaintiff
asserted: “It is undisputed that, when asked under oath why Jason Jedlinski was
terminated, every Nexstar witness, including Jason Jedlinski, claimed they either
did not know or could not recall. It is undisputed that documentation regarding
Jedlinski's involuntary termination exists or at one time existed.” (Doc. 91 at
25:9-20).
However, plaintiff's request for an adverse inference instruction came too
late and was not accompanied by the evidence necessary to support such an
instruction. Specifically, plaintiff failed to lay any groundwork for an adverse
inference instruction through a pretrial motion to compel and motion for
sanctions. See FED R. Civ. P. 37(a)(3)(B)(iv), (b)(2)(A), (e)(2). Plaintiff did not

even include reference to the issue in her pretrial memorandum. Rather, the
issue first appeared in proposed jury instructions submitted prior to the trial. The
proposed instruction was accompanied by case law setting forth standards for
Rule 37(e) sanctions, (Doc. 55 at 13), but not any supporting evidence for the
court to weigh any “key considerations,” Schmid v. Milwaukee Elec. Tool Corp.,
13 F.3d 76, 79 (3d Cir. 1994) (setting forth factors to consider when evaluating
the appropriateness of sanctions).

32

Even if the charging conference was the best first time to raise the issue,
the court was never provided any copies of plaintiff's discovery requests,
defendants’ discovery responses, lawyer correspondence, or witness deposition
testimony to support counsel's advocacy. The first time any discovery materials
related to Jedlinski’s termination were supplied was after trial. Those materials

were supplied by Nexstar, not the plaintiff, in the form of Jedlinski’s deposition
testimony. (Doc. 100-4). Any relevant information related to an adverse
inference charge from that deposition was never presented. Thus, it was not

error to omit plaintiff's requested adverse inference instruction from the charge
provided to the jury.
2. Exclusion of Complaints to Human Resources About Wil Danielson
Grant also assigns error to a decision granting Nexstar’s motions in limine
regarding evidence of other employee complaints about Wil Danielson. Grant v.
Nexstar Media Grp., Inc., No. 4:23CV1932, 2025 WL 3188404, at *7—11 (M.D.
Pa. Nov. 14, 2025). The decision to exclude traces back to the same single
document: the deposition testimony of Emily Anderson, a former HR employee of
Nexstar, which plaintiff sought to read to the jury. (Docs. 65 (transcript) and 69
(proposed designations).
Plaintiff refers to this ruling as an improper blanket exclusion of evidence in

a discrimination case. In this circuit, there is a noted “judicial inhospitability to

33

blanket evidentiary exclusions in discrimination cases.” Glass v. Phila. Elec. Co.,
34 F.3d 188, 195 (3d Cir. 1994). After all, “the question facing triers of fact in
discrimination cases is both sensitive and difficult[,]” and “often obliges [them] to
inquire into a person’s state of mind.” U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 716 (1983). When a court imposes an across-the-board
restriction on testimony, it must be supported by the record. See Quinn v.
Consol. Freightways Corp. of Del., 283 F.3d 572, 578 (3d Cir. 2002).
Prior to trial, Anderson was the only source of testimony concerning the
other complaints about Danielson to Nexstar HR. Ultimately, after briefing,
evidentiary objections to designations, and oral argument, Anderson’s deposition
testimony was excluded on a number of grounds, all previously discussed at
length. 2025 WL 3188404, at *7-11.
At trial, plaintiff did not make any additional efforts to inquire into other-
complaints evidence. Danielson and Nexstar’s Senior Vice-President of HR,
Terri Bush, both testified during the trial. Plaintiff did not attempt to question
Danielson directly about the other complaints. Plaintiff did not seek to question
Bush about any personnel issues involving Danielson. Consequently, when
plaintiff re-raised the arguments offered in opposition to Nexstar’s motions in
limine at the end of witness testimony, the court had no basis to reconsider its
pretrial ruling. (Doc. 90, Day 3 Tr. at 215-19). Other complaints evidence

34

regarding Danielson would have come in solely through objectionable deposition
testimony that was properly excluded.®? Thus, any blanket exclusion of evidence
that occurred in this case was supported by the record.
3. Permitting the Testimony of Karen Brophy
Additionally, Grant moves for a new trial because the court permitted the

‘| testimony of Karen Brophy as the ultimate decisionmaker who imposed plaintiff's
performance improvement plan and directed her termination despite the omission
of Brophy’s name from defendants’ initial disclosures, interrogatory answers, and
first witness list. Despite plaintiff's arguments about trial by ambush and
discovery abuses, Brophy’s ostensible role was known to the plaintiff as early as
October 2024 when plaintiff deposed Wil Danielson.? (Doc. 88 at 128:7-11). This
trial occurred in November 2025. Any duty to supplement by Nexstar was
alleviated by additional information made known to the plaintiff during the
discovery process. See FEDR. Civ. P. 26(e)(1)(A) (requiring a party to
supplement its required disclosures in a timely manner if “the additional or

8 “A trial court is afforded substantial discretion when striking a Rule 403 balance with respect
to proffered evidence[.]” McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009).
To compound the danger of unfair prejudice, which, among other reasons, justified precluding
Emily Anderson’s deposition testimony under Federal Rule of Civil Procedure 403, Grant's
counsel re-raised the issue after Danielson had been excused from the proceedings and was
traveling back to his home in Los Angeles.
° Although such evidence was not presented to the court during trial, Nexstar’s opposition brief
details the number of times Brophy’s role in Grant’s PIP and termination was disclosed to the
plaintiff during discovery. (Doc. 100 at 28-32).
35

corrective information has not been otherwise known to the other parties during
the discovery process”). Nexstar also amended their witness list approximately
30 days before trial to include Brophy. (Doc. 56). Plaintiff was thus on notice of
this witness and what she might say. Therefore, the decision to permit Brophy’s
testimony is not grounds for a new trial.
4. Permitting Evidence of Plaintiff's Earnings and Mitigation Efforts /
Challenge to the Venire
Finally, Grant argues that it was error for the jury to be presented with
evidence of her earnings and mitigation efforts during the trial. Such arguments
rely on the plaintiff's age, gender, and socioeconomic status. Her brief in support
asserts:
Plaintiff is a woman who, at the time of her termination, was
earning $525,000 annually at the age of 35 working in
sales. The jury was comprised of 8 men, many retired, who
earn a fraction of that.*
3 The jury was comprised of men from Lackawanna, Luzerne,
Monroe, and Schuykill [sic] counties. The average per capita income
of those counties is $33,949. See https://www.census.gov
(Doc. 95 at 52 and n.3).
Relating to the above, plaintiff believes that “[t]he only logical explanation,”
for the adverse verdict, “is that the jury's decision was influenced by bias against
a high-earning woman],.]” Id. at 55.

36

The court construes the above arguments to assert two different things: 1)
a post-trial objection to the venire; and 2) a challenge to the denial of a motion to
bifurcate lodged by the plaintiff at the start of trial.
The court will address these issues in reverse order. On November 7,
2025, at a pretrial conference, the undersigned provided notice to the parties that
all facts in this case would be tried to a jury, even though their determinations
relative to back pay and front pay would only supply an advisory opinion. See
FED. R. Civ. P. 39(c)(1) (permitting a court to try any issue with an advisory jury
on its own motion); Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 78 n.1
(3d Cir. 2009) (explaining that a jury’s role is only advisory to the issues of back

pay and front pay because they are equitable remedies to be determined by the
court). On November 14, 2025, the court issued a memorandum and order
denying plaintiff's motion in limine to preclude evidence or testimony about the
plaintiff's failure to mitigate damages. 2025 WL 3188404, at *4—7. Therein, the
court noted that all evidence related to Grant's alleged damages was presumed
to be relevant at trial. Id. at *4. Although plaintiffs motion in limine was denied, it
was denied without prejudice. Rulings on evidentiary issues related to the
plaintiffs mitigation efforts were reserved for reconsideration in the context of
trial. Id. at *7.

37

The following Monday, November 17, 2025, was the first day of trial. Prior
to jury selection, plaintiff made an oral motion to bifurcate the issue of the
plaintiff's economic damages. (Doc. 85, Day 1 Tr., at 10). Plaintiff's counsel
argued:
Ms. Grant, like, we normally -- the jury is not hearing how
much money she makes, how much money she lost, she
was, obviously, a very high-earner, and the jury could be
distracted by that amount or have their decision on liability
influenced by her income, which would not be fair, because
their decision, at this stage, is just did she -- was she
retaliated against, was she discriminated against, that's
what the jury is focused on.
Id. at 12:5-12.
Defense counsel argued:
the salary -- compensation here is not just relevant to the
economic loss, it's relevant to expectations, it's relevant to
performance, it's relevant to the commissions piece,
Plaintiff's work, it's relevant to the loss of her largest client,
as part of her performance, it's all wrapped up.
Id. at 13:16-21.
The motion to bifurcate was then denied. Nexstar indicated that plaintiff's
salary and commissions were relevant to its defense that the plaintiff's
underperformance was the reason for her termination. Additionally, because the
amount of plaintiff's compensation was commission-heavy, such evidence was
relevant to the plaintiff's position that she met and even exceeded Nexstar’s
expectations, i.e., that the reasons articulated for the plaintiffs termination were
38

pretext for discrimination and/or retaliation. The mutual benefit to the parties
from this ruling was apparent even during the first few minutes of the trial. During
opening argument, plaintiff's counsel stated:
When she was hired at The Hill, this was in 2015, so she
gets hired at The Hill, and she's working in Sales.
Essentially, what she's doing is getting companies to buy
ads for The Hill publication, which was a_ political
publication that had paper that would go out and, actually,
be delivered or digital sales that were online. And she
worked for seven years very, very successfully. She was a
rock star. She was shining. Most of her income was based
upon commissions, so if she wasn't doing a good job, she
wouldn't be paid, and she was making a tremendous
amount, particularly, for her age, because she was selling
so much and she was good at it, so driven at it.
(Doc. 87, Day 1 Tr., 17:6-17).

In contrast, defendants’ counsel argued:
I'm going to tell you that the single most important piece of
evidence that you're going to hear in this case is that, at
the time of her termination, Brittany Grant was making
$525,000 a year, and her and her sales team missed its
goals by $2 million, by 50 percent.
Id., 32:6-10.
As noted in the review of the evidence above, this employment
discrimination trial proceeded in a typical fashion where the plaintiff's earnings
were tied to her performance, and her performance was the stated basis for her
termination. [It was not atypical to admit such evidence, and it was not so unfairly
prejudicial to the plaintiff that it warrants a new trial.
39

It was also not error for evidence of mitigation to be presented to the jury.
The jury would have been tasked with awarding emotional damages had they
determined that Nexstar discriminated or retaliated against the plaintiff. In
addition, the jury would have also been tasked with rendering an advisory opinion
on economic damages had they determined Nexstar was liable.
As for emotional damages, Grant specifically testified to the impact the
termination had on her and the issues it created in starting a family and affording
transplant rejection medication. (Doc. 88, Tr. Day 2, 180:23—184:19). During her
testimony, the plaintiff also introduced an exhibit documenting her job search
efforts during the times she was unemployed and she explained both the
emotional and financial stress those periods caused. Id., 187:2—192:8.
Specifically, her counsel had her raise a thick exhibit binder full of documents
containing her job applications. Id., 194:17-23.
On cross-examination, Grant was asked about one of those applications, a
position at Cintas with the potential to earn $250,000 with insurance benefits
after the plaintiff had been out of work for five months. Id., 196:25—-203:9.
Plaintiff was also cross-examined using her deposition transcript where she
laughed about this position because it involved selling fire extinguishers. Id.
Given the ruling on her motion in limine, if the plaintiff believed this evidence was
unfairly prejudicial at the time such questions were asked, the court left open her

40

ability to make an objection. However, the only objection from plaintiff's counsel

was to the way defense counsel was confronting the plaintiff with her deposition
testimony. Id.
That leaves Grant’s objections to the demographics of the jurors who
served in her case, objections which were raised long after trial. The reality is
that plaintiff's counsel had an equal role in selecting eight jurors from the 32
citizens summoned to the courtroom for voir dire. (Doc. 77). During jury
selection, plaintiff did not request that those potential 32 jurors be seated
differently or re-randomized. Furthermore, to the extent that plaintiff argues that
she was prejudiced by an all-male jury made up of many retirees, she used one
of her peremptory challenges on a 48-year-old woman with a bachelor's degree.
Id. Only two of the eight jurors listed their occupation as retired. Id. As a result,
plaintiff's belated objection to the venire lacks merit and does not warrant a new
trial.
Conclusion
For the reasons set forth above, Brittany Grant's post-trial motions will be
denied. An appropriate order follows.

Date: slatla 6 ‘A 7 □
ing JULIA K. MUNLEY
Jnited States District Couft \
At □ |

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11425720. Public record. Not legal advice.