NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                             Nos. 19-2415, 19-3523


                            BETH SCHIRNHOFER,
                            Appellant in No. 19-2415

                                       v.

                     PREMIER COMP SOLUTIONS, LLC,
                         Appellant in No. 19-3523


                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                         (D.C. Civil No. 2-16-cv-00462)
                        District Judge: Billy Roy Wilson


                             Argued June 16, 2020

              Before: JORDAN, MATEY, and ROTH, Circuit Judges.

                        (Opinion filed: October 20, 2020)

Jonathan K. Cohn
Maureen Davidson-Welling [ARGUED]
Stember Cohn & Davidson-Welling
425 First Avenue, 7th Floor
The Hartley Rose Building
Pittsburgh, PA 15219
       Counsel for Beth Schirnhofer
Stanley M. Stein [ARGUED]
George C. Thompson
445 Fort Pitt Boulevard
Suite 150
Pittsburgh, PA 15219
       Counsel for Premier Comp Solutions, LLC


                                         OPINION


MATEY, Circuit Judge.

       Premier Comp Solutions, LLC (“Premier”) fired Beth Schirnhofer. A jury

concluded that act was discriminatory, but also found that Premier would have made the

same decision regardless of the illegal motive. As a result, the District Court awarded

Schirnhofer no damages, but required Premier to pay some of Schirnhofer’s attorneys’ fees

and costs. Schirnhofer appeals the decision to withhold damages and several evidentiary

rulings; Premier challenges the award of fees and costs. Finding no error, we will affirm.

                                      I. BACKGROUND

       Schirnhofer worked at Premier until February 2014. After Premier terminated her

employment, she sued, alleging discrimination and retaliation. Schirnhofer claimed that

Premier ended her employment because she suffered from post-traumatic stress disorder

(“PTSD”) and requested an accommodation for that disability.1 At trial, Premier defended

Schirnhofer’s firing by arguing that her social-media posts violated company policy.


       
         This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.
       1
          Schirnhofer brought these claims simultaneously under the Americans with
Disabilities Act (“ADA”), the Pennsylvania Human Relations Act (“PHRA”), and the
Allegheny County Antidiscrimination Ordinance (“ACAO”). The parties do not suggest
                                              2
       The jury rejected Schirnhofer’s retaliation claim, but found in her favor on the

discrimination claim, calculating her damages at $285,000. But the jury also found that

Premier would have terminated Schirnhofer “regardless of her alleged disability.” (App. at

508.) So the District Court awarded Schirnhofer no damages, though it ruled that Premier

needed to pay some of Schirnhofer’s attorneys’ fees and costs. Both parties cross-appealed,

and we will now affirm.2

                                      II. DISCUSSION

A.     Schirnhofer’s Challenges

       1.     The Jury’s Verdict

       A plaintiff can prove illegal discrimination by showing that her protected

characteristic “was a motivating factor for any employment practice, even though other

factors also motivated the practice.” 42 U.S.C. § 2000e-2(m) (emphasis added). But a

plaintiff may not recover monetary damages for that violation if the defendant shows that

it “would have taken the same action in the absence of the impermissible motivating




that the choice of law affects our analysis. Cf. Taylor Phoenixville Sch. Dist., 

,
306 (3d Cir. 1999).
        Schirnhofer also brought claims under the Family and Medical Leave Act
(“FMLA”), and failure-to-accommodate claims under the ADA, the PHRA, and the
ACAO. After Premier moved for summary judgment, Schirnhofer abandoned her FMLA
claims, and she abandoned her failure-to-accommodate claims before trial. Schirnhofer
does not raise these claims on appeal.
        2
          The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have
jurisdiction under 28 U.S.C. § 1291.
                                              3
factor.”

that reason, the District Court held that the jury’s

same-decision finding superseded its damages finding.3

       Schirnhofer argues that the jury’s verdict can be interpreted in a manner that permits

her to recover the damages found by the jury.4 She reasons that the jury’s finding that

Premier would have terminated her “regardless of her alleged disability” can be read to

reject her claim only as much as it alleged discrimination on the basis of an actual

disability, and not as far as it alleged discrimination on the basis of a perceived disability.

But the District Court properly instructed the jury that “the ADA’s definition of ‘disability’

includes not only those persons who actually have a disability, but all those who are

‘regarded as’ having a disability.” (App. at 1875.) See 42 U.S.C. § 12102(1). And we

presume the jury followed these instructions. See Robinson v. First State Cmty. Action

Agency, 

, 191 (3d Cir. 2019).

       Schirnhofer also argues that the jury might have interpreted the same-decision

question as applying only to her retaliation claims. But we cannot ignore the clear language

of the verdict form, which asked whether Premier would have made the same decision

“regardless of [Schirnhofer’s] alleged disability”—not regardless of her request for a

reasonable accommodation.

       For those reasons, we will affirm the District Court’s decision on damages.



       3
         Though 42 U.S.C. §§ 2000e-2(m) and 2000e-5(g)(2)(B) appear within Title VII of
the Civil Rights Act of 1964, neither party challenges their applicability to Schirnhofer’s
ADA claim. See 42 U.S.C. § 12117.
       4
         We exercise plenary review over the District Court’s interpretation of the jury’s
verdict. McAdam v. Dean Witter Reynolds, Inc., 

, 764 (3d Cir. 1990).
                                              4
       2.     The District Court’s Evidentiary Rulings

       In the alternative, Schirnhofer asserts that the District Court made several erroneous

evidentiary rulings, requiring a new trial.5 We disagree.

              i.     HR Representative Testimony

       At trial, defense counsel asked Jennifer Snyder, a member of Premier’s human

resources team, whether she “considered [Schirnhofer’s] termination to be a good

termination; that is, a valid termination,” and whether she “considered [Schirnhofer’s

social-media] posts to be threatening.” (App. at 1431.) Snyder responded affirmatively to

both inquiries. Schirnhofer argues that this testimony was irrelevant, since Snyder was not

involved in the decision to terminate and learned of the social-media posts only after

Schirnhofer’s termination. But the cases Schirnhofer cites involve testimony speculating

about the decisionmaker’s motivations; in contrast, Snyder discussed her own beliefs. And

evidence showing that Schirnhofer’s social-media posts were threatening, in violation of

Premier’s policy, is relevant to whether those posts were a reason for her termination.

              ii.    Advice-of-Counsel Testimony

       Linda Schmac, Premier’s president, testified that she consulted with counsel about

Schirnhofer’s request to accommodate her claimed disability. Premier pointed to this

testimony when arguing that Schirnhofer’s termination was not retaliatory. Schirnhofer



       5
         We review a District Court’s evidentiary rulings for abuse of discretion. Glass v.
Phila. Elec. Co., 

, 191 (3d Cir. 1994). Nonconstitutional evidentiary errors are
harmless—and thus do not require retrial—“if it is highly probable that the error[s] did not
affect the outcome of the case.” Lockhart v. Westinghouse Credit Corp., 

, 53
(3d Cir. 1989).
                                             5
argues this testimony was irrelevant, since Schmac was not seeking advice about the

termination. But the evidence could show that Schmac was receptive to Schirnhofer’s

request, and thus less likely to retaliate against Schirnhofer as a result of it. Cf. Robinson

v. Se. Pa. Transp. Auth., 

, 895 (3d Cir. 1993) (noting that retaliation claims

may be proven by evidence of an employer’s “antagonism”). Or the advice—that no

accommodation was necessary—could show that Schmac “resented . . . Schirnhofer for

having caused her to spend time and money on” the request (App. at 1390), making

retaliation more likely. Cf. Shellenberger v. Summit Bancorp, Inc., 

, 190 (3d

Cir. 2003) (“[The evidence] could reasonably be viewed as proof that [the employer] no

longer wanted to be bothered with persistent requests for ‘baseless’ accommodations, . . .

especially [since the employer] had conferred with its attorneys and concluded that [the

employee] was not ‘disabled.’”).

        Schirnhofer also argues that Schmac withheld crucial facts from her attorney. True,

advice-of-counsel defenses are “available only to those who [provide to their attorney a]

full and honest disclosure of the material facts surrounding a possible course of action.”

United States v. Traitz, 

, 382 (3d Cir. 1989). But the adequacy-of-disclosure

question is one for the jury. See United States v. Greenspan, 

, 149 (3d Cir.

2019). And Schirnhofer was free to, and did, present evidence and argument on this point

at trial.

              iii.   Social-Media Testimony

        Schirnhofer testified that she could not recall whether she personally created the

offending social-media posts. In response, Schmac testified that, in her experience, the

                                              6
location of the material on Schirnhofer’s social-media page meant that Schirnhofer had

recently posted it herself. Schirnhofer now argues that this was impermissible expert

testimony. But even if it were, its admission was harmless, since Schirnhofer’s trial theory

was that the posts were non-threatening and unrelated to work, not that she didn’t create

them, or did so long ago. Cf. Betterbox Commc’ns Ltd. v. BB Techs., Inc., 

,

329–30 (3d Cir. 2002) (erroneous admission of expert testimony harmless where proponent

“did not rely heavily on that testimony”).

              iv.    Coworker Testimony

       Finally, Premier presented the videotaped deposition testimony of Ann Veglia

Eisler, one of Schirnhofer’s coworkers, in which Veglia Eisler explained how Premier

responded to her own requests for medical leave. Schirnhofer argues this testimony was

irrelevant and unduly prejudicial. But “evidence regarding an employer’s treatment of

other members of a protected class is especially relevant to the issue of the employer’s

discriminatory intent.” Ansell v. Green Acres Contracting Co., 

, 523 (3d Cir.

2003). And even if Veglia Eisler’s testimony was emotional, we are not persuaded that it

afforded Premier some unfair advantage with the jury or was otherwise so problematic as

to substantially outweigh its probative value. See Coleman v. Home Depot, Inc., 

, 1343–44 & n.6 (3d Cir. 2002).

       In all, we see no reversible error in the evidentiary issues raised by Schirnhofer and

will therefore affirm the District Court’s decisions.




                                              7
B.     Premier’s Challenge to Attorneys’ Fees and Costs

       After trial, Schirnhofer petitioned for an award of attorneys’ fees and costs. In

“[c]onsider[ation of] the [District] Court’s decision not to enter the jury’s award of

damages,” she sought only two-thirds of her documented expenses. (Supp. App. at 44.)

The District Court eliminated fees and costs attributable to a certain deposition, reduced

the figures by another 40% given Schirnhofer’s “limited victory,” and awarded her

$177,187.08 in attorneys’ fees and $13,259.50 in costs. (App. at 50.)

       Premier points to the lack of a damages award to argue that Schirnhofer deserved

no recovery. But Premier concedes that the District Court could consider “the significance

of the legal issue on which [Schirnhofer] prevailed” and “the public purpose served by the

litigation” when ruling on her petition. (Response Br. at 18.) And the District Court did

just that, noting that the jury’s verdict rejected Premier’s argument “that . . . PTSD was not

a recognized disability under the ADA.” (App. at 50–51.) This reasoning was not an abuse

of discretion,6 so we will affirm.7




       6
          We review an award of attorneys’ fees and costs for abuse of discretion. Acumed
LLC v. Advanced Surgical Servs., Inc., 

, 211 (3d Cir. 2009).
        7
          Schirnhofer sought fees under 42 U.S.C. § 2000e-5(g)(2)(B), which allows
plaintiffs to recover “attorney’s fees and costs demonstrated to be directly attributable only
to the pursuit of a [mixed-motive] claim.” (emphasis added). Premier argues that the
District Court ignored the italicized language—and thus applied the wrong legal
standard—when ruling on Schirnhofer’s fee petition. But with one exception (which the
District Court sustained), Premier failed to identify any specific fees that were not “directly
attributable only to the pursuit of” Schirnhofer’s discrimination claim below. So it has
waived the right to attack the District Court’s fee award on a line-by-line basis here. See

–89.
                                              8
                                     III. CONCLUSION

       For those reasons, we will affirm the District Court’s interpretation of the verdict,

its evidentiary rulings, and its award of attorneys’ fees and costs.




                                              9