NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                      No. 09-2093
                                    ______________

                                  DEBRA HARTLEY,

                                                              Appellant

                                           v.

            POCONO MOUNTAIN REGIONAL POLICE DEPARTMENT;
                        JOHN P. LAMBERTON
                           ______________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (D.C. No. 3:04-cv-2045)
                     Honorable Thomas I. Vanaskie, District Judge
                                   ______________

                       Submitted under Third Circuit LAR 34.1(a)
                                  December 17, 2010

    BEFORE: SLOVITER, GREENAWAY, JR., and GREENBERG, Circuit Judges

                                (Filed: March 9, 2011)
                                    ______________

                              OPINION OF THE COURT
                                  ______________

GREENBERG, Circuit Judge.

      This matter comes on before this Court on plaintiff-appellant Debra Hartley’s

appeal from: (1) an order of the District Court entered on March 22, 2007, granting

defendant-appellees Pocono Mountain Regional Police Department (“PMRPD”) and John
P. Lamberton, its chief of police, partial summary judgment; (2) a judgment in favor of

the PMRPD and Lamberton entered on October 31, 2007, on a jury verdict returned on

October 30, 2007, on the issues remaining after the grant of summary judgment; and (3)

an order of the District Court entered on March 24, 2009, denying Hartley’s motion for a

new trial.1

       We only need summarize the facts because the District Court set them forth in its

opinion of March 22, 2007, granting appellees partial summary judgment, and its opinion

of March 24, 2007, denying Hartley’s motion for a new trial.2 Hartley, a former police

officer with the PMRPD filed this action against the PMRPD and Lamberton following

her resignation, alleging that she had been the victim of sexual discrimination during her

employment by the PMRPD and that, when she complained about the discrimination, the

PMRPD and Lamberton retaliated against her. In particular, she asserted that she was

subjected to so severe a hostile work environment that, notwithstanding the circumstance

that she submitted her resignation rather than being directly discharged, she was

constructively discharged because the harassment forced her to resign. At the trial,

though not in her complaint, Hartley asserted that, when she sought unemployment

compensation following her resignation, appellees unjustifiably opposed her application

because they were retaliating against her.

1
  We are aware that Hartley’s notice of appeal does not recite that she is appealing from
the March 22, 2007 order, but it is clear that she intended to do so and appellees do not
contend otherwise.
2
  The District Court rendered its March 22, 2007 opinion after a magistrate judge made a
report and recommendation on the motion for summary judgment to which the parties
filed objections.
                                             2
       Hartley bought this action under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et. seq., 42 U.S.C. § 1983, and the Pennsylvania Human Relations Act,

43 Pa. Stat. § 951 (West 1991). The District Court had jurisdiction under 42 U.S.C. §

2000e-5(f)(3), 28 U.S.C. §§ 1331, 1337, 1343(a)(3), and 28 U.S.C. § 1367, and we have

jurisdiction under 28 U.S.C. § 1291.

       Hartley contends that the District Court erred in: (1) granting partial summary

judgment to appellees on her retaliation claims; (2) permitting appellees, after the close of

the presentation of evidence at trial and immediately before the closing arguments, to

withdraw their admission in their pleadings and in a pretrial stipulation that she had been

constructively discharged; and (3) “refusing to charge the jury on the law on the right to

receive unemployment compensation for those fired for cause versus those forced out of

their jobs[.]” Appellant’s br. at 38.

       The parties agree that we exercise plenary review of the order for partial summary

judgment and review the order permitting appellees to withdraw their answer for an

abuse of discretion, and we agree with their understanding of our standard of review. See

Santos ex rel. Beato v. United States, 

, 193 (3d Cir. 2009) (summary

judgment); Waldorf v. Shuta, 

, 616-20 (3d Cir. 1998) (amendment of

pleadings).

       There is, however, uncertainty in the materials before us concerning the role in

this case of Hartley’s claim based on appellees’ opposition to her attempt to collect

unemployment compensation because the precise nature of that claim is not clear. This

uncertainty, in turn, leads to uncertainty with respect to our standard of review of the

                                              3
disposition of Hartley’s case in the District Court to the extent that she based her case on

appellees’ opposition to her unemployment compensation claim.

       Of course, there is no doubt that appellees opposed Hartley’s claim for

unemployment compensation and, as she points out, some time later did not oppose a

claim that a former male officer, Mike Rice, whose employment the PMRPD terminated

for cause, made for unemployment compensation. It is also clear that Hartley raised the

issue of the differing treatment of the unemployment compensation claims at the trial

even though the Court had granted summary judgment to appellees on Hartley’s

retaliation claims to the extent that she pleaded those claims in her complaint. But

Hartley now claims that the Court erred in refusing to charge the jury on the substantive

Pennsylvania law governing the circumstances in which a discharged employee can

receive unemployment compensation and, in support of that contention, she cites Fed. R.

Civ. P. 51(c) and Collins v. Alco Parking Corp., 

(3d Cir. 2006). Thus, she

may view appellees’ opposition to her unemployment compensation claim as evidence

that they discriminated against her.

       Our standard of review of Hartley’s contention that the Court erred in not giving

this jury charge is plenary as she contends, in effect, that the charge that the Court did

give was incomplete and thus was legally incorrect. See Cooper Distrib. Co. v. Amana

Refrigeration, Inc., 

, 549 (3d Cir. 1999). Appellees, however, treat their

opposition to Hartley’s unemployment compensation claim as raising a dispute over the

admission of evidence, an issue that we ordinarily would review exercising an abuse of

discretion standard. See Coleman v. Home Depot, Inc., 

, 1341 (3d Cir.

                                              4
2002). Yet appellees contend that Hartley raised appellees’ opposition to her

unemployment compensation claim to demonstrate that their opposition “was motivated

by retaliatory animus.” Appellees’ br. at 14. Thus, they suggest that their opposition

raised a retaliation issue.

       In its opinion denying Hartley’s motion for a new trial, the District Court

explained that on that motion Hartley asserted “that the Court erred in not submitting to

the jury a claim for retaliation based upon the fact that Defendants had contested her

application for unemployment compensation benefits, but had not disputed the claim

made by Officer Mike Rice several years later.” App. at 15-16. The Court then

explained that the jury heard the evidence in question but that Hartley “failed to prove

gender discrimination.” 

It also observed that, when Hartley raised the

retaliation claim in the summary judgment proceedings, she did not advance appellees’

opposition to her employment compensation claim as a retaliatory act and that at the trial

Hartley did not request a retaliation charge.

       After considering the record and the briefs, we are not certain whether appellees’

opposition to Hartley’s unemployment compensation claim came into the case as the

basis for a discrimination claim or a retaliation claim or perhaps as a basis for both

categories of claims. Moreover, inasmuch as Hartley’s legal theory justifying the

admission of evidence of Hartley’s claim arising from appellees’ opposition to her

unemployment compensation claim is not clear, it is likewise not clear whether we

review the District Court’s disposition of the issue on a plenary or an abuse of discretion

basis. Nevertheless, for the reasons that we explain below, the answers to these questions

                                                5
are immaterial for we see no basis to reverse any order under appeal by reason of

appellees’ opposition to Hartley’s unemployment compensation claim or by reason of the

Court not having given the charge that Hartley asserts that she requested that it give

explaining the criteria for granting a claim for unemployment compensation.

       In considering Hartley’s contentions on this appeal on their merits, we first

consider but reject Hartley’s retaliation claims. We do not discuss these claims at length,

except for the issue concerning appellees’ opposition to her unemployment compensation

claim, because we cannot add anything to what the District Court wrote in its March 22,

2007 opinion rejecting Hartley’s retaliation claims.

       We, however, do discuss the District Court’s ruling permitting appellees to amend

their original answer which admitted that Hartley had been constructively discharged. In

considering the Court’s ruling in allowing the amendment, we acknowledge that it is

difficult to understand how appellees could have made their pleading error on such a

fundamental issue and then adhered to the error right up to the trial. Nevertheless, it is

clear that throughout these proceedings appellees were denying that Hartley was the

victim of a hostile work environment and thus, inasmuch as she alleged that it was that

environment that caused her to resign and that she was constructively discharged, it is

also clear that at the trial, regardless of appellees’ pleadings, the question of whether

Hartley was constructively discharged was litigated. See Spencer v. Wal-Mart Stores,

Inc., 

, 316 n.4 (3d Cir. 2006). In the circumstances, the Court’s ruling in

allowing the amendment did not prejudice Hartley as she attempted at the trial to



                                              6
demonstrate that she faced a hostile work environment that caused her to resign.

Therefore, the Court did not abuse its discretion when it allowed the amendment.

       Finally, as we indicated above, we reject Hartley’s appeal insofar as it raises an

issue relating to appellees’ opposition to her unemployment compensation claim.3 In

considering this issue we point out that Hartley linked the employees’ unemployment

compensation claims by attempting to compare the two claims and to compare, as well,

appellees’ differing reactions to them. Accordingly, Hartley indicated in her brief that

“[t]he jury heard the parties’ stipulation that the Employer contested Hartley’s receipt of

unemployment compensation but did not contest Mike Rice’s receipt of unemployment

compensation.” Appellant’s br. at 38. Hartley then stated that the District Court “erred

in failing to instruct the jury on the fundamental tenets of Pennsylvania law, so that they

could make sense of the significance of the Employer contesting Hartley’s receipt of

unemployment compensation, but not Rice’s in their analysis of differential treatment of

similarly situated male or female employees.” 

       The problem with attempting to compare Hartley’s and Rice’s unemployment

compensation claims is that Hartley does not point to anything in the record to supply a

basis to compare them. Unemployment compensation claims are not fungible and

therefore it would not be expected that, in the absence of discrimination, an employer’s

opposition to such claims by former employees would be uniform regardless of the

circumstances of the claims. An employee’s right to unemployment compensation upon

3
 Hartley filed her unemployment compensation claim after her resignation, and therefore
appellees’ opposition to that claim could not have been part of her hostile work
environment claim.
                                             7
the termination of her employment depends in part on why her employment was

terminated and those reasons will differ from case to case. Thus, though it is true that the

parties stipulated that appellees objected to Hartley’s receipt of unemployment

compensation benefits but did not object to Rice’s receipt of those benefits, the

stipulation tells us nothing useful because in her brief Hartley points to nothing in the

record about Rice’s termination other than that he was “fired for cause.” Appellant’s br.

at 13.4

          Nevertheless, we know that there were significant differences between the

circumstances leading to Hartley’s and Rice’s termination of employment with the

PMRPD. To start with, Hartley resigned from her position but the PMRPD fired Rice.

Moreover, inasmuch as the jury found that Hartley failed to prove that appellees

discriminated against her in the terms and conditions of employment, the PMRPD did

not constructively discharge her.5 Therefore, it was perfectly reasonable for appellees to


4
  The stipulation with respect to appellees’ unemployment compensation benefits recited
that “[d]efendants objected to [Hartley’s] receipt of unemployment benefits” and “the
defendants did not object to [Rice’s] receipt of unemployment benefits.” App. at 284.
5
  We realize that, even though Hartley was unsuccessful in her attempt to prove that she
was the victim of employment discrimination, she was not precluded from attempting to
prove that their motivation to retaliate against her caused appellees to oppose her claim
for unemployment compensation. See Burlington N. & Santa Fe Ry. Co. v. White, 

, 

(2006); Nelson v. Upsala College, 

, 386 (3d Cir.
1995). But, as we set forth above, Hartley advanced the claim as a discrimination claim
and she did not plead a retaliation claim based on appellees’ opposition to her
unemployment compensation claim. In any event, even if she had pleaded appellees’
opposition to her unemployment compensation claim as a retaliation claim, the retaliation
claim would have failed as Hartley linked it to the differing treatment of her’s and Rice’s
unemployment compensation claims and there is no way from the record to compare the
two claims.
                                              8
oppose her claim for unemployment compensation because her voluntary resignation led

to her unemployment. Consequently, we conclude that Hartley’s claim, to the extent that

it is predicated on appellees’ opposition to her unemployment compensation claim, is

based on a nonexistent foundation inasmuch as the jury determined that Hartley did not

prove gender discrimination. Therefore, the District Court did not err when it did not

give the charge that she asserts that it should have given to explain her unemployment

compensation claim as, regardless of the Court’s charge, appellees’ opposition to her

claim could not have given her a basis for a recovery.

      For the foregoing reasons the order for partial summary judgment entered March

22, 2007, the judgment entered October 31, 2007, and the order denying the motion for a

new trial entered March 24, 2007, will be affirmed.




                                            9