Tamra Robinson v. First State Community Action A

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_________________

No. 17-3141

__________ _________

TAMRA N. ROBINSON

v.

FIRST STATE COMMUNITY ACTION AGENCY,

Appellant

_________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 1-14-cv-01205)

District Judge: Hon. Richard G. Andrews

_________________

Submitted Under Third Circuit L.A.R. 34.1(a)

October 23, 2018

Before: KRAUSE, COWEN, FUENTES, Circuit Judges.

(Filed April 1, 2019)

Tasha M. Stevens

Fuqua Willard Stevens & Schab

26 The Circle

P.O. Box 250

Georgetown, DE 19947

Counsel for Appellant

Kevin G. Fasic

Katherine R. Witherspoon

Offit Kurman

1201 North Orange Street

Suite 10 East

Wilmington, DE 19801

Counsel for Appellee

_________________

OPINION OF THE COURT

_________________

FUENTES, Circuit Judge.

Tamra Robinson was told by her manager Karen Garrett

that her work performance was so poor that “you either don’t

know what you’re doing, or you have a disability, or [you’re]

dyslexic.” Taking Garrett’s words seriously, Robinson, who

had never before considered the possibility she might have a

disability, decided to undergo testing for dyslexia. She sent

Garrett an evaluation that concluded that Robinson had

symptoms consistent with dyslexia, and requested certain

2

accommodations from the manager of human resources. She

was told that any diagnosis she received would not prevent her

from performing her work in a satisfactory matter, and she was

advised to focus on improving her performance. Weeks later,

she was fired.

During the litigation in the District Court between

Robinson and her former employer, First State Community

Action Agency, Robinson acknowledged that she could not

prove she was dyslexic. She proceeded on a different theory,

that she was perceived or regarded as dyslexic by her employer

and was therefore entitled to a reasonable accommodation the

same way someone who was dyslexic would have been. While

we have previously recognized the validity of a “regarded as”

disability case theory in cases arising under the Americans with

Disabilities Act,1 the ADA Amendments Act of 20082 made

clear that a “regarded as” plaintiff is not statutorily entitled to

accommodation.3 Despite this, both parties proceeded under

the “regarded as” case theory throughout litigation, trial, and

post-trial briefing. Only now does First State seek to unring

the bell and overturn the jury’s verdict because the jury was

instructed that the “regarded as” case theory was valid. We

hold that First State has waived this argument because of its

continued acquiescence to Robinson’s case theory, its

encouragement of the adoption of the very jury instruction to

which it now objects, and its failure to include this error in its

post-trial briefing. We therefore affirm the judgment of the

District Court.

1

Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751,

775 (3d Cir. 2004).

2

Pub. L. No. 110-325, § 6, 122 Stat. 3553, 3558 (2008).

3

42 U.S.C. § 12201(h).

3

Background

A. Robinson’s Employment at First State

In October 2009, Tamra Robinson was hired by First

State Community Action Agency (“First State”) as an

individual development account counselor.4 Almost two years

later, First State hired Karen Garrett, and Garrett became

Robinson’s supervisor. Garett was dissatisfied with

Robinson’s work, and in November 2011, Garrett told

Robinson “you either don’t know what you’re doing, or you

have a disability, or [you’re] dyslexic.”5

Robinson had never before considered whether she had

any kind of disability. She attempted to find a physician to

conduct an evaluation for dyslexia, and ultimately reached out

to a family friend, Dr. Phyllis Parker, who was a psychologist.

After undergoing testing in January 2012, Robinson received

an evaluation from Dr. Parker noting that she demonstrated

“signs of dyslexia,” but this evaluation did not diagnose her

with the disorder.6 She immediately forwarded it to Garrett.

While Robinson was undergoing this process, Garrett

completed a performance appraisal for Robinson. On January

12, 2012, she placed Robinson on an individual development

plan addressing six areas of concern. The plan provided for

biweekly reviews of Robinson’s progress followed by a final

evaluation in March of that year. Garrett received Dr. Parker’s

4

About a year later, she was transitioned into the position of

housing default counselor.

5

J.A. 65.

6

J.A. 75.

4

evaluation just six days after completing the development plan.

She forwarded it to First State’s Human Resources Director,

David Bull. Bull emailed Robinson, informing her that he

received a copy of her “Informal Dyslexia Screening.”7

Nevertheless, he told Robinson that he did not believe the

diagnostic information contained in the evaluation would

“impact[] [Robinson’s] ability to perform the essential

elements of [her] job responsibilities” and instructed her to

follow the individual development plan.8 The next day,

Robinson wrote back and asked for “reasonable

accommodations”—specifically, she asked for “hands-on

organized training for the types of clients” she would be

responsible for counseling.9 Bull replied by saying, “I fully

understand and know ADA. What you need to do is your

job.”10 A few weeks later, Robinson was fired.

B. Proceedings Below

In 2014, Robinson filed the instant suit against First

State alleging violations of the Americans with Disabilities

Act. Since at least the summary judgment stage, she argued

that First State wrongfully terminated her and wrongfully

denied her reasonable accommodations, both because she

actually possessed a disability (dyslexia) and because First

State regarded her as dyslexic.11 The dispute between

7

J.A. 253.

8

Id.

9

J.A. 250.

10

J.A. 252.

11

See Opening Brief in Support of Robinson’s Motion for

Summary Judgment (“Robinson SJ Br.”) (Doc. 48) at 8,

5

Robinson and First State proceeded to trial, and Robinson

prevailed on her reasonable accommodation claim but not her

termination claim. First State then moved for a new trial, and

cited two alleged errors during the course of the trial.

First, during Robinson’s direct examination, she

testified that after being terminated, she filed a complaint with

the Equal Employment Opportunity Commission, which, she

further testified, ruled in her favor. At sidebar, counsel for First

State objected and requested a mistrial. The District Court

instead struck the response, informing the jury:

Members of the jury, [you] may recall at the

beginning of the trial, that I might have to strike

some testimony, and tell you to disregard what

you heard.

That last question and answer, I am striking that

testimony, and you have to disregard what you

heard. You cannot rely on it for anything. You

need to put it out of your mind.12

Robinson v. First State Cmty. Action Agency, 14 Civ. 1205

(RGA) (D. Del. 2014).

12

J.A. 132. Later, the District Court further explained the

ruling outside the presence of the jury, noting that it did not

find an intentional violation of the rule against the improper

introduction of evidence. The District Court also referenced a

Seventh Circuit case, Wilson v. Groaning, 25 F.3d 581 (7th Cir.

1994), which concluded that the improper admission of

testimony was sufficiently cured by the trial court’s prompt

decision to strike the testimony and instruct the jury to

disregard it.

6

In its post-trial decision, the District Court maintained

that striking the testimony was a sufficient response to the

inadmissible evidence because juries are presumed to follow a

court’s instructions, and the split verdict showed that they were

not unduly swayed by the testimony.

Second, the District Court mentioned the statutory

damage cap for Robinson’s claims in its jury instructions.13

After trial, the District Court agreed that the instruction was

error, but determined that because First State did not object at

trial and the error was harmless, it did not merit a new trial.

First State now appeals that decision, arguing that it

merits a new trial both because of the stricken testimony about

the Commission’s finding and because of the erroneous

damages cap instruction. First State also argues, for the first

time, that the judgment below should be vacated because

Robinson’s “regarded as” disabled case theory was precluded

by the ADA Amendments Act of 2008.14

13

The Court informed the jury that “[t]he total amount of

compensatory and punitive damages combined you can award

in this case is $50,000.” J.A. 389.

14

First State styles this objection as one regarding the District

Court’s jury instructions. The District Court instructed the jury

on Robinson’s reasonable accommodation claim as follows:

“You can find that First State breached its duty to provide

reasonable accommodations because it failed to engage in an

interactive process if Ms. Robinson proves four things: First,

First State regarded Ms. Robinson as dyslexic. Second, Ms.

Robinson requested accommodation or assistance. Third, First

State did not make a good faith effort to assist Ms. Robinson

7

Discussion

A. The 2008 Amendments

In 2008, the Americans with Disabilities Act was

amended. The Act now provides that employers “need not

provide a reasonable accommodation . . . to an individual who

meets the definition of disability in [Section 12102(1)(C)].”15

That Section, in turn, includes the definition of individuals who

are “regarded as having” a physical or mental impairment.16 In

other words, after the 2008 Amendments went into effect, an

individual who demonstrates that she is “regarded as” disabled,

but who fails to demonstrate that she is actually disabled, is not

entitled to a reasonable accommodation.17 Therefore, the

reasonable accommodation jury instruction, which informed

the members of the jury that they needed to find only that First

State “regarded Ms. Robinson as dyslexic,”18 was error.

The question before us is whether to review this error

under the strict plain error standard or whether to treat the

in seeking accommodations; and fourth, Ms. Robinson could

have reasonably been accommodated but for First State’s lack

of good faith.” J.A. 384.

15

42 U.S.C. § 12201(h).

16

42 U.S.C. § 12102(1)(C).

17

See Powers v. USF Holland, Inc., 667 F.3d 815, 823 n.7 (7th

Cir. 2011) (“[T]he ADAAA clarified that an individual

‘regarded as’ disabled (as opposed to actually disabled) is not

entitled to a ‘reasonable accommodation.’”). We have also

made this point in prior decisions. See, e.g., Hohider v. United

Parcel Serv., Inc., 574 F.3d 169, 188 n.17 (3d Cir. 2009).

18

J.A. 384.

8

objection as waived. Despite the fact that Robinson discussed

her position that she need only prove she was regarded as

dyslexic as early as 2016, when she filed her motion for

summary judgment, First State never addressed the effect of

the 2008 Amendments until its briefing before this Court. It

contends that its failure to raise this argument is best

understood as a failure to object to an erroneous jury

instruction and should therefore be reviewed under our plain

error standard. We disagree because, although First State

focuses narrowly on how this error manifested in the jury

instructions, it was more broadly a flaw in Robinson’s theory

of the case that dated back to summary judgment briefing, and

First State at no time objected to that theory despite numerous

opportunities to do so. Thus, we view the argument as waived,

and we decline to consider it for the first time on appeal.

1. Forfeiture and Waiver

“The effect of failing to preserve an argument will

depend upon whether the argument has been forfeited or

waived.”19 Forfeiture is the “failure to make the timely

assertion of a right.”20 Waiver is the “intentional

relinquishment or abandonment of a known right.”21 Waived

arguments about jury instructions may not be resurrected on

appeal.22 When the argument was merely forfeited, however,

19

Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877

F.3d 136, 146 (3d Cir. 2017).

20

Id. at 147 (quoting United States v. Olano, 507 U.S. 725, 733

(1993)).

21

Id. (citation omitted).

22

Id. at 146 n.7.

9

plain error analysis applies,23 and we will reverse only where

the error is “fundamental and highly prejudicial, such that the

instructions failed to provide the jury with adequate guidance

and our refusal to consider the issue would result in a

miscarriage of justice.”24

We find that First State’s actions below are more

appropriately classified as waiver. Throughout the history of

this litigation, including in its early stages, First State was

routinely confronted with Robinson’s “regarded as” case

theory. Not only did First State fail to object, it specifically

assented to the jury instruction it now points to as erroneous.

In 2016, First State moved for summary judgment,

arguing, among other things, that Robinson could not establish

that she was disabled under the terms of the Americans with

Disabilities Act.25 In response, and in her motion for summary

judgment, Robinson argued that she only needed to establish

that First State “regarded her” as disabled.26 Instead of

correcting Robinson’s error of law, First State argued that there

23

See Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606, 609

(3d Cir. 2011); see also Fed. R. Civ. P. 51(d).

24

Franklin Prescriptions, Inc. v. N.Y. Times Co., 424 F.3d 336,

339 (3d Cir. 2005) (quoting Ryder v. Westinghouse Elec.

Corp., 128 F.3d 128, 136 (3d Cir. 1997)).

25

See Opening Brief in Support of First State’s Motion for

Summary Judgment (Doc. 45), Robinson v. First State Cmty.

Action Agency, 14 Civ. 1205 (RGA) (D. Del. 2014).

26

Robinson SJ Br. at 8; Brief in Opposition to First State’s

Motion for Summary Judgment (Doc. 50) at 9–11, Robinson v.

First State Cmty. Action Agency, 14 Civ. 1205 (RGA) (D. Del.

2014).

10

was no evidence First State treated Robinson as though she had

a “substantially limiting impairment.”27 The Magistrate Judge

disagreed, and found that summary judgment was

inappropriate because there was a question of material fact

regarding whether First State considered Robinson disabled.28

First State filed no objections to the Report and

Recommendation, failing again to argue that a plaintiff could

no longer proceed under a “regarded as” disability theory for

reasonable accommodation claims.29

Those failures, alone, would not be enough to waive the

issue on appeal, but the viability of the “regarded as” case

theory was squarely before First State again at trial. At a

conference outside the jury’s presence in December 2017,

plaintiff’s counsel suggested that the relevant jury instruction

include the four-part test from Williams v. Philadelphia

Housing Authority Police Department on a failure to

reasonably accommodate a plaintiff who was “regarded as”

disabled.30 Defense counsel initially provided no views about

27

See Brief in Opposition to Robinson’s Motion for Summary

Judgment (Doc. 51) at 8, Robinson v. First State Cmty. Action

Agency, 14 Civ. 1205 (RGA) (D. Del. 2014).

28

See Report and Recommendation dated October 24, 2016

(Doc. 56) at 8–10, Robinson v. First State Cmty. Action

Agency, 14 Civ. 1205 (RGA) (D. Del. 2014).

29

See Order dated November 17, 2016 (Doc. 57), Robinson v.

First State Cmty. Action Agency, 14 Civ. 1205 (RGA) (D. Del.

2014).

30

In Williams, we concluded that the Americans with

Disabilities Act as then codified entitled a plaintiff who was

regarded as disabled to reasonable accommodations. 380 F.3d

751, 775 (3d. Cir. 2004). We set forth the following four

11

the jury charge. That evening, plaintiff’s counsel sent an email

clearly stating that “as we represented today, we are not

arguing that Ms. Robinson has a disability.”31 The email also

provided more concrete suggestions to include the Williams

test in the instructions. At the charge conference the next day,

defense counsel voiced her support for Robinson’s proposed

jury instruction, specifically saying that while she had not seen

the new proposed language, she agreed that “it would be

simpler if the accommodation claim is included” and that “the

language about the failure to engage in the four-part test”—the

language derived from Williams, which held that a “regarded

as” plaintiff could pursue a reasonable accommodation

claim—should be included.32 After First State was found liable

elements for establishing that an employer breached its duty to

provide reasonable accommodations: “1) the employer knew

about the employee’s disability; 2) the employee requested

accommodations or assistance for his or her disability; 3) the

employer did not make a good faith effort to assist the

employee in seeking accommodations; and 4) the employee

could have been reasonably accommodated but for the

employer’s lack of good faith.” Id. at 772 (citing Taylor v.

Phoenixville Sch. Dist., 184 F.3d 296, 319–20 (3d Cir. 1999)).

The instructions given to the jury below modified those in

Williams to reflect the entitlement of a “regarded as” plaintiff

to a reasonable accommodation. Those instructions correctly

explained the law under our precedent in Williams, but the

2008 Amendments abrogated Williams on that point.

31

Email to the Court dated December 7, 2016 (Doc. 69),

Robinson v. First State Cmty. Action Agency, 14 Civ. 1205

(RGA) (D. Del. 2014).

32

J.A. 211–12. Specifically, Stevens said, “Your Honor, I’m

not exactly sure of how [Robinson] want[s] to change the

12

on Robinson’s reasonable accommodation claim, it moved for

a new trial. But it did not raise the error in that post-trial

briefing, nor did it move for judgment as a matter of law on

those grounds.

This course of conduct evinces an intent to proceed

under Robinson’s “regarded as” case theory and waive any

objection based on the 2008 Amendments. Our recent cases

on waiver illustrate this point. In Government of the Virgin

Islands v. Rosa, we found that a defendant’s “repeated

acquiescence” to erroneous instructions did not rise to the level

of a knowing and intentional waiver.33 But in United States v.

Wasserson, we concluded that an alleged error was waived

when the defendant failed to raise the objection at trial and

failed to include it in his post-trial briefing.34 And, we have

long held that when a party jointly recommends a jury

instruction, it cannot later complain about that very

instruction.35 Here, First State did not merely fail to object to

instruction as proposed, but I think it would be simpler if the

accommodation claim is included. The language about the

failure to engage in the four-part test that is used instead of

setting out two separate tests. I do think it could be set out with

the four-prong test that is identified, I believe. I think we’re

talking about the same one. I can consult with counsel to make

sure we’re talking about the same one.”

33

399 F.3d 283, 292–93 (3d Cir. 2005).

34

418 F.3d 225, 239 (3d Cir. 2005). The defendant in that case

also failed to raise the issue in his opening brief, which

constituted a second ground to find waiver. Id. at 240.

35

See United States v. Ozcelik, 527 F.3d 88, 97 n.6 (3d Cir.

2008); see also United States v. Teague, 443 F.3d 1310, 1317

(10th Cir. 2006) (“[W]hen a party ‘invites’ an error by

13

an instructional error at a charging conference; it played along

with a flawed theory of liability throughout the litigation and

ultimately endorsed the specific instruction embodying that

theory. First State was initially made aware in mid-2016 of the

erroneous case theory and did nothing. It did nothing again at

the beginning of trial. And finally, it invited the District Court

to use the four-part test from Williams it now argues is

incorrect. Unfortunately for First State, it is simply too little,

too late. We therefore find that First State has waived its

argument about the effect of the 2008 Amendments and will

not review the instruction for plain error.

2. The Effect of the Model Jury

Instructions

Although, for the reasons stated above, we conclude

that First State’s argument regarding the reasonable

accommodation jury instruction was waived, and thus need not

review the instruction for plain error, the parties have devoted

considerable attention in their briefing to the significance of

the “Model Civil Jury Instructions for the District Courts of the

Third Circuit,”36 which erroneously includes a “regarded as”

suggesting that the court take particular action, we can presume

that the party has acted voluntarily and with full knowledge of

the material consequences.”).

36

Model Instructions 9.1.3 and 9.2.1 have not been updated to

reflect the 2008 Amendments to the ADA. Instead, Instruction

9.1.3, which provides the elements for a reasonable-

accommodation claim, states that a plaintiff must prove she

“has a ‘disability’ within the meaning of the ADA,” and cross-

references Instruction 9.2.1 for the definition of “disability.”

Third Circuit Model Jury Instructions for Employment Claims

14

instruction, for a plain-error analysis. In so doing, they expose

a fundamental misunderstanding of the import of those

instructions and the standard under which they are reviewed.

Specifically, Robinson argues that because the flawed

instruction appears in what are colloquially known as the

“Third Circuit Model Jury Instructions,” the District Court

could not have “plainly” erred in providing it to the jury. As

Robinson’s misunderstanding may be shared by others, we

take this opportunity to correct it.

Although entitled “Model Civil Jury Instructions for the

District Courts of the Third Circuit,” these instructions are

drafted not by members of this Court but by the Committee on

Model Civil Jury Instructions, consisting of eight district court

judges from districts within the Third Circuit, who also

collaborate with the Committee’s reporters, two law

professors. Although the Committee’s work is partially funded

by the Third Circuit Court of Appeals, and made available on

the Court’s website, the website clarifies that “neither the

[Third Circuit] Court of Appeals nor any Judge of that Court

Under the Americans with Disabilities Act at 17, available at

https://www.ca3.uscourts.gov/sites/ca3/files/9_Chap_9_2018

_Oct.pdf. Instruction 9.2.1, in turn, defines “disability” to

include “not only those persons who actually have a disability,

but also those who are ‘regarded as’ having a disability by their

employer.” Id. at 48. The Comment to Model Instruction 9.1.3

refers to Williams, and states that “an employee ‘regarded as’

having a disability is entitled to the same accommodation that

he would receive were he actually disabled.” Id. at 28. The

Comment to Model Instruction 9.2.1 uses the same language.

Id. at 56.

15

participate[s] in the drafting of the Model Instructions.”37

Given the care put into that drafting, we have observed it is

unlikely “that the use of [a] model jury instruction can

constitute error.”38 True enough, as far as probabilities go, but

we have never held that use of such an instruction cannot

constitute error, and a model jury instruction itself is neither

law nor precedential. Judges and parties are not free to

incorporate incorrect legal principles simply because there is a

similar error in these or any model jury instructions. Model

instructions are designed to help litigants and trial courts, not

to replace their shared obligation to distill the law correctly

when drafting proposed jury instructions. Thus, the existence

of the antiquated model jury instruction here, which regrettably

does not yet reflect the 2008 Amendments, fails to provide a

second justification for our decision to not review the relevant

jury instruction.

37

Introduction to the Model Civil Jury Instructions, available

at http://www.ca3.uscourts.gov/sites/ca3/files/INTRODUCTI

ON_2018_for_website.pdf.

38

United States v. Petersen, 622 F.3d 196, 208 (3d Cir. 2010).

Admittedly, our language has not always been as precise as it

could be, perhaps contributing to the confusion. For example,

we have referred to the model instructions on occasion as “our

own.” Id. As indicated, however, the model jury instructions

do not bear the imprimatur of this Court, and when parties use

those instructions, they are reviewed like any other instructions

for their correctness, both on plenary review and plain-error

review.

16

B. The Statutory Damages Cap

First State also argues that the inclusion of the $50,000

statutory damages cap was error. Because First State did not

object during trial, we review for plain error.39 We agree with

the District Court that the instruction was given in error but that

such error was harmless.

The pertinent statute, 42 U.S.C. § 1981a(c)(2), provides

that a court “shall not inform” the jury of statutory damages

limitations. The District Court’s instruction did just that, and

the instruction was error. The question for us, then, is whether

that error was so fundamental and prejudicial that a failure to

review it would constitute a miscarriage of justice.40

First State points to a single Fourth Circuit opinion that

lends some credence to its argument that an erroneous

instruction on statutory damages might constitute error, but

falls far short of convincing us that there was plain error in this

39

First State’s attorney did raise questions about whether or

not the damages cap should be included in the jury instructions.

But while First State points this out, it neglects to mention that

its attorney did not actually object to the charge, and instead

said “I don’t know. I just read it as a rule. I didn’t know if it

was the rule to be followed. . . . I’m comfortable with [the

instruction].” J.A. 184. When an attorney admits to

uncertainty about the propriety of the charge and fails to

actually object, the requirements of Rule 51(c) of the Federal

Rules of Civil Procedure have not been met, and the instruction

is reviewed under the plain error standard. See Collins v. Alco

Parking Corp., 448 F.3d 652, 655–56 (3d Cir. 2006).

40

Collins, 448 F.3d at 656.

17

case. In Sasaki v. Class, an attorney mentioned the damages

cap during closing argument.41 On review, the Fourth Circuit

concluded that “when a jury’s damages award itself indicates .

. . strongly that the error substantially influenced the jury’s

verdict, the error cannot be dismissed as harmless.”42 But there

are two key distinctions between Sasaki and the instant matter.

First, because the defendant’s attorney objected at trial, the

error was preserved.43 Second, the court found evidence that

the jury had responded to the erroneous disclosure by adjusting

its award—namely, the jury awarded $50,000 (the highest

amount within the damages cap) on the plaintiff’s federal

claims and $150,000 on her state law claims, despite the fact

that “[a]ll of the conduct that formed the basis for [the] state

claims also provided the basis for [the] federal claims.”44 Here,

however, First State presents no evidence that learning of the

damages cap affected the jury’s decisionmaking. Indeed, the

jury awarded Robinson $22,501, which was well below the

statutory cap in any event.

While the inclusion of the statutory cap language was

error, we cannot see how there was any prejudice to First State

as a result, much less prejudice that, if left uncorrected, would

work a manifest injustice. We therefore conclude that there

was no plain error.

41

92 F.3d 232, 235 (4th Cir. 1996).

42

Id. at 237.

43

Id. at 235.

44

Id. at 237.

18

C. Robinson’s Testimony about the

Commission

Finally, we review First State’s objection to Robinson’s

testimony about the outcome of her complaint before the Equal

Employment Opportunity Commission. We review the

District Court’s denial of a new trial on these grounds for abuse

of discretion. An abuse of discretion occurs when a lower

court’s decision “rests upon a clearly erroneous finding of fact,

an errant conclusion of law or an improper application of law

to fact.”45

First State argues that it was improperly prejudiced by

Robinson’s disclosure that the Commission ruled in her favor.

The District Court agreed that Robinson’s testimony was

inadmissible and promptly struck it from the record. She

instructed the jury that they were not to consider it in their

liability determination. First State does not explain why this

course of conduct was insufficient, except that it speculates

that Robinson’s statement “likely played a part” in the jury’s

verdict.46 For two reasons, we disagree.

First, as the District Court noted, the jury returned a split

verdict. Had the jurors been under the impression that they

should find First State liable because the Commission found in

Robinson’s favor, it does not follow that this prejudice would

manifest itself only in the reasonable accommodation verdict

and not the termination verdict.

45

P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir.

2006) (quoting Hanover Potato Prods., Inc. v. Shalala, 989

F.2d 123, 127 (3d Cir. 1993)).

46

Appellant’s Br. at 22.

19

Second, we presume that jurors follow the instructions

given to them by the trial court.47 That presumption is only

overcome where there is an “overwhelming probability” that

the jury was unable to follow the instructions and a likelihood

that the evidence wrongfully admitted was “devastating” to the

other party.48 There is simply no evidence here that the jury

considered Robinson’s testimony after receiving the curative

instruction, nor is there a likelihood that the consideration of

Robinson’s testimony would have been “devastating” to First

State. We therefore conclude that the District Court did not

abuse its discretion in determining that a new trial was not

warranted on these grounds.

Conclusion

For the foregoing reasons, we affirm the judgment of

the District Court.

47

Glenn v. Wynder, 743 F.3d 402, 407 (3d Cir. 2014).

48

Greer v. Miller, 483 U.S. 756, 766 n.8 (1987) (quoting

Richardson v. Marsh, 481 U.S. 200, 208 (1987); Bruton v.

United States, 391 U.S. 123, 136 (1968)).

20