NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      _____________

                         No. 11-4333
                        _____________

          RUSSELL P. SWIATEK; GEORGE MUNLEY;
                   MARVIN BARNETT,
                                    Appellants

                               v.

        BEMIS COMPANY, INC.; WARREN MARUCA,
          individually and in his representative capacity

                        ______________

    APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE DISTRICT OF NEW JERSEY
                (D.C. Civ. Action No. 3-08-06081)
          District Judge: Honorable Anne E. Thompson
                        ______________

                   Argued September 10, 2013
                       ______________

Before: RENDELL, JORDAN, and GREENAWAY, JR., Circuit Judges.

               (Opinion Filed: October 17, 2013)




                               1
William J. Courtney, Esq. [Argued]
Law Offices of William J. Courtney
200 Main Street
P.O. Box 112
Flemington, NJ 08822

      Counsel for Appellants

David W. Garland, Esq. [Argued]
Epstein, Becker & Green
One Gateway Center
Newark, NJ 07102

      Counsel for Appellee
                                     ______________

                                        OPINION
                                     ______________

GREENAWAY, JR., Circuit Judge.

      George Munley, Marvin Barnett, and Russell Swiatek filed a complaint against

their former employer, Bemis Company, Inc. (―Bemis‖ or ―Appellee‖) asserting claims

under the Family and Medical Leave Act (―FMLA‖), 29 U.S.C. § 2601 et seq., and the

New Jersey Law Against Discrimination (―NJLAD‖), N.J. Stat. Ann. § 10:5-1 et seq.

Munley and Barnett (collectively ―Appellants‖) appeal from the District Court‘s order.1

The issues raised on appeal are whether the District Court properly granted Bemis‘s Rule

50(b) motion for judgment notwithstanding the verdict, whether the District Court


      1
        The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and § 1367. We
have appellate jurisdiction under 28 U.S.C. § 1291.

                                            2
properly denied Barnett‘s motion to amend the complaint under Rule 15(b), and whether

Barnett should be allowed to proceed with his appeal since he passed away after the

notice of appeal was filed. For the reasons that follow, we will affirm in part and reverse

in part.



                                      I. Background

       Because we write primarily for the parties, we recount only the essential facts.

Bemis is an international supplier of packaging and pressure sensitive materials with

thirty-five plants and four distribution centers in the United States. In November 2007,

the Flemington plant, where Appellants worked, executed a reduction-in-force (―RIF‖)

whereby it terminated certain salaried employees to save money.

       Munley, Barnett, and Swiatek sued Bemis because they were all terminated by the

plant manager, Warren Maruca, after they took leave under the FMLA. They brought

claims against Bemis under the FMLA for retaliation for taking FMLA leave and under

NJLAD for age discrimination and discrimination based upon perceived disability and a

hostile work environment. Barnett, who is African American, also alleged race

discrimination under NJLAD.

       The trial took place over the course of a week in late 2011. During jury

deliberations, Barnett‘s counsel moved under Rule 15(b) to amend the complaint to

include a claim of race retaliation under NJLAD. After trial, the jury returned its verdict,

                                             3
finding in plaintiffs‘ favor on one of their ten claims: Munley‘s perceived disability claim

under NJLAD. On November 1, 2011, after hearing from the parties, the District Court

ruled from the bench on Bemis‘s Rule 50(b) motion (regarding Munley‘s perceived

disability NJLAD claim) and Barnett‘s Rule 15(b) motion (regarding his attempt to add a

claim for retaliation under NJLAD).



                                          II. Analysis

                                A. Motion to Substitute Party

         Under Article III of the Constitution of the United States, this Court‘s jurisdiction

is limited to cases and controversies. See Ortiz v. Dodge, 

, 551 (3d Cir.

1997). As a preliminary matter, therefore, we must address the question of substitution.

Appellee argued that Appellant Barnett‘s appeals should be dismissed because Barnett

had died and no personal representative had been substituted as a party to this appeal, as

is required by Fed. R. App. P. 43(a)(1).2 (Appellee Br. 26-27.) During oral argument,

this Court requested post-argument supplementary letters pursuant to Fed. R. App. P.

28(j).




         2
         Rule 43, which governs substitution of a party after a notice of appeal has been
filed, provides that ―[i]f a party dies after a notice of appeal has been filed or while a
proceeding is pending in the court of appeals, the decedent's personal representative may
be substituted as a party on motion filed with the circuit clerk by the representative or by
any party.‖ Fed. R. App. P. 43(a)(1).
                                                4
       Based on our review, we find that Barnett‘s son, Marvin Barnett, Jr., had taken the

steps necessary to represent his father‘s estate. Rule 43 is silent as to who may be a

―personal representative‖ of a decedent, and this Court may exercise discretion in

determining whether sufficient conditions are met. See Bennett v. Tucker, 

,

68 (7th Cir. 1987). A motion to substitute party pursuant to Fed. R. App. P. 43(a) was

promptly filed by Appellants‘ counsel on July 10, 2013, and we are satisfied with the

documentation corroborating the identity of the decedent‘s representative.



                B. Motion for Judgment Notwithstanding the Verdict

       Appellants seek reversal of the District Court‘s decision to grant Bemis‘s motion

for judgment notwithstanding the verdict. Our review of the District Court‘s grant of a

Rule 50(b) motion is plenary. Raiczyk v. Ocean Cnty. Veterinary Hosp., 

,

269 (3d Cir. 2004). Viewing the evidence in the light most favorable to the non-moving

party, such a judgment should only be granted if ―‗the record is critically deficient of that

minimum quantity of evidence from which a jury might reasonably afford relief.‘‖ Id.

(quoting Trabal v. Wells Fargo Armored Serv. Corp., 

, 249 (3d Cir. 2001)).

       NJLAD prohibits employment discrimination based on a disability or a perceived

disability. N.J. Stat. Ann. § 10:5-4.1; see Victor v. State, 

, 142 (N.J. 2010);

Myers v. AT & T, 

, 966 (N.J. Super. Ct. 2005). In order to plead a prima

facie case of discrimination under NJLAD, a plaintiff must prove that 1) he was a

                                              5
member of a protected class, 2) he was qualified for the job, 3) he was not hired or

terminated, and 4) the position was filled with a person of similar qualifications. See

Viscik v. Fowler Equip. Co., 

, 832-33 (N.J. 2002).

       The District Court ruled that Munley had not proven a prima facie case of

disability discrimination under NJLAD and also could not prove that the RIF was merely

a pretext for his termination. The District Court noted that a prima facie case requires

that the ―plaintiff [ ] prove by a preponderance of the evidence (1) that he was perceived

to be disabled [and] (2) that he was discharged under circumstances that prove that the

perceived disability was a determinative factor in the termination.‖ (App. 72 (Tr. 52:10-

15).) The Court also concluded that Munley had failed to prove that the decision-maker

who terminated him, Maruca, perceived him to be disabled. (App. 72.)

       The District Court derived much of its reasoning from incidents that occurred after

Munley returned to work after his knee surgery. Munley avoided walking more than half

a mile a day, as his doctor had ordered, and asked Maruca if he could borrow a golf cart

from the company‘s Indiana plant. Trial Tr. 141:9-142:2 (Oct. 24, 2011) (Munley).

Maruca denied the request, telling Munley, ―[N]o, you‘ll get too used to it.‖ Id. at

143:20-21. Therefore, Munley began parking his car by the shipping office door, which

was adjacent to his office. Id. at 144:13-25. After a couple of days, Maruca told Munley

that he could not park in the closer space and had to park in his usual space in the main




                                             6
parking lot. Id. Not long after the golf cart and parking lot incidents, Munley was

terminated.

       Viewing the evidence concerning Maruca‘s refusal to provide Munley with a golf

cart as a ―joking-type comment‖, the District Court found that this proved the opposite of

what Munley claimed: that Maruca did not perceive him to be disabled. (App. 73 (Tr.

53:18-22).) The District Court also construed Maruca‘s refusal to provide Munley with a

closer parking space as the behavior of a ―hard driver, Type A personality.‖ (App. 74

(Tr. 54:2-4).) The Court reasoned that if Maruca had perceived Munley to be disabled,

he would not have denied his requests for the golf cart and closer parking space so

flippantly. The District Court, finally, remarked that ―[t]here simply [was] nothing else‖

in the record except evidence that Munley took FMLA leave, which was insufficient to

prove a perceived disability. (App. 74 (Tr. 54:18).)

       We find that there was sufficient evidence for a reasonable jury to conclude that

Maruca perceived Munley as having a disability, and that the RIF was merely a pretext

for terminating Munley because of the way his knee immobilized him. Under NJLAD,

the burden of proving a prima facie case of disability discrimination is ―rather modest‖ at

most and should not be onerous. Zive v. Stanley Roberts, Inc., 

, 1139 (N.J.

2005). Moreover, Rule 50(b) instructs that we draw all reasonable inferences in

Munley‘s favor as the non-moving party. Those inferences compel a different result.




                                             7
       Although the District Court observed that Maruca was joking about denying

Munley a closer parking space, Maruca, in his own testimony, stated that he seriously

considered Munley‘s need for accommodation after his injury, which was why he offered

several suggestions to help him out. Trial Tr. 87:11-23 (Oct. 26, 2011) (Maruca). To the

same point, Maruca never said anything that would lead a reasonable juror to believe that

he was joking and did not think that Munley‘s knee was causing him serious distress and

impeding his ability to function at work — this was an assumption made by the District

Court. The inference that Maruca perceived Munley as disabled would follow: Maruca

thought that if Munley could not walk from his car to his office, then he was not fit to

work at a plant that involved physically taxing work.

       Also, based on this record a reasonable jury could conclude that the RIF was a

pretext for Maruca‘s real reason for terminating Munley: his injured knee and the

subsequent time off and accommodations that he requested. Testimony at trial both

offered circumstantial evidence that Maruca intentionally discriminated against Munley

due to his knee and cast doubt on Maruca‘s justifications for his actions. The testimony

about Munley‘s golf cart request, his request to use a closer parking space, and the

criteria for Maruca‘s decision to terminate Munley all could show that Maruca resented

Munley because of his knee injury and wanted to terminate his employment, as a

consequence.




                                             8
       Bemis, relying on Gomez v. Allegheny Health Servs., Inc., 

 (3d Cir.

1995), contends that Ed Komoroski‘s comment – in which he ―purportedly asked Munley

why he had so many medical problems when other, older, employees did not‖

(Appellee‘s Br. 44) – should only be construed as a ―stray remark[] by [a] non-decision

maker[]‖ and cannot ―support an inference of discrimination by the employer.‖ Gomez,

71 F.3d at 1085. But Gomez is inapposite here. Komoroski‘s statement, though made by

a ―non-decision maker‖ and therefore perhaps insufficient on its own to support an

inference of discrimination, is still relevant to demonstrating a general animus within

Bemis towards those with disabilities and was made not by some random employee but

rather by Maruca‘s second-in-command. If Maruca was willing to complain to the plant

accountant about having to pay for sick and disability leave for employees who ―do[]

nothing‖ (App. 163 (Trial Tr. 76:22)), he may have shared his feelings with Komoroski

regarding Munley‘s perceived disability. On the present record, Munley is entitled to

have a jury consider that possibility in light of the other evidence. While we said in

Ezold v. Wolf, Block, Schorr & Solis-Cohen, 

, 545 (3d Cir. 1992), that

―[s]tray remarks by non-decisionmakers or by decisionmakers unrelated to the decision

process are rarely given great weight, particularly if they were made temporally remote

from the date of decision[,]‖ that does not mean that every non-decisionmakers‘ comment

is irrelevant. Unlike in Ezold, the stray remark here is not temporally remote and, given




                                             9
the speaker‘s position, could fairly be considered with other evidence offered by

Appellants to prove the alleged discrimination.



                            C. Motion to Amend Complaint

       Appellants also seek reversal of the District Court‘s ruling denying their motion

to amend their complaint, pursuant to Fed. R. Civ. P. 15. We review the District Court‘s

granting of leave to amend the complaint for an abuse of discretion. Douglas v. Owens,

, 1235 (3d Cir. 1995).

       When Appellants‘ counsel moved under Rule 15(b) to add a claim of race

retaliation under NJLAD, the jury had already begun deliberating and the deadline for

amending the complaint had long since passed. As Appellants‘ counsel admits, the

impetus for amendment was a question posed by the jury during their deliberations: ―If

we determine Maruca made a racial comment, Barnett went to HR and Maruca was mad

that Barnett to HR [sic] and fired him in retaliation for going to HR about racial

comment [sic], is it sufficient to find for plaintiff Barnett on question #4?‖ (App. 116

(emphasis added).) Appellants believed that an amendment was necessary so that they

could allow their complaint to ―conform with the proofs‖. (Appellants‘ Br. 26.)

       Rule 15(b) provides for the amendment of a complaint during and after trial under

two circumstances. The first is when an objection requires that the complaint be

amended in order to better facilitate the presentation of evidence on the merits of the

                                             10
claims. Fed. R. Civ. P. 15(b)(1). The second is when the adverse party allows a claim to

be tried by explicit or implicit consent. Fed. R. Civ. P. 15(b)(2); see Douglas v. Owens,

, 1235-36 (3d Cir. 1995); Liberty Lincoln-Mercury, Inc. v. Ford Motor Co.,

, 326-27 (3d Cir. 2012). The main consideration in determining whether

leave to amend under Rule 15(b) should be granted is prejudice to the opposing party.

See United States v. Hougham, 

, 315 (1960).

       Barnett does not fall within the first circumstance. There was no objection at trial

which caused Barnett to move for leave to amend. The sole impetus for amendment was

the question from the jury. Rule 15(b)‘s exceptions are not written to accommodate such

a situation and Barnett should not be allowed to let the jury raise claims for him that he

could have raised himself. The evidence at trial showed that the questions raised by

Appellants‘ counsel regarding Maruca‘s racially insensitive remarks did not support a

retaliation theory. Appellants‘ theory was that Barnett‘s race, rather than his complaints

to HR, motivated Maruca to terminate him.

       The second circumstance does not apply here either because there was no explicit

consent and there was no indication that Bemis implicitly consented. Implicit consent

turns on three factors: whether Bemis recognized that the unpleaded claim had entered

the case at trial, whether the evidence supporting the unpleaded claim was introduced at

trial without objection, and whether a finding of trial by consent would prejudice Bemis.

See Douglas, 50 F.3d at 1236. While the evidence of Barnett‘s complaint to HR and

                                             11
Maruca‘s reaction was entered without objection at trial, the other two factors weigh

heavily against amendment. There is no indication that Bemis realized that Barnett was

proceeding under a retaliation theory. The evidence supporting a retaliation claim was

extremely sparse, limited to the process followed by Barnett in reporting his complaint to

HR and by Maruca in responding to it. Moreover, there was no connection made

between that evidence and Maruca‘s decision to terminate Barnett. As a result, Barnett

did not present a theory of retaliation in a cohesive and comprehensive manner.

Furthermore, as Bemis argues, if it had realized this, it would have prepared for and

proceeded at trial much differently. Therefore, the District Court properly denied the

Rule 15(b) motion.



                                      III. Conclusion

       For the foregoing reasons, we conclude that the District Court erred in granting

Appellee‘s Rule 50(b) motion for judgment notwithstanding verdict. We will therefore

reverse and remand this matter to the District Court with instructions to reinstate the jury

verdict on Munley‘s perceived disability claim. Finally, we will affirm the District

Court's denial of the Rule 15(b) motion.




                                             12