Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-4-2003

Bianchi v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2687




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                                                NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                         NO. 02-2687


                   ROBERT C. BIANCHI

                              v.

               CITY OF PHILADELPHIA;
           PHILADELPHIA FIRE DEPARTMENT

                     City of Philadelphia,
                                   Appellant




        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                 (D.C. Civil No. 99-cv-02409)
            District Judge: Hon. Anita B. Brody


          Submitted Under Third Circuit LAR 34.1(a)
                      October 14, 2003

   Before: SLOVITER, ROTH and CHERTOFF, Circuit Judges

                  (Filed: November 4, 2003)




                 OPINION OF THE COURT
SLOVITER, Circuit Judge.

                                                 I.

       The City of Philadelphia (the “City”) appeals from the judgment entered by the

District Court in favor of the appellee, Robert Bianchi (“Bianchi”), following the jury’s

verdict for Bianchi on his retaliation and due process claims against the City. The City

argues that the District Court erroneously admitted graphic evidence and testimony of

sexual harassment notwithstanding the fact that the court had dismissed the harassment

count; the District Court improperly upheld the jury’s finding for Bianchi on his

procedural due process claim, an alternative basis to uphold the jury’s damage award; the

District Court erred in awarding Bianchi front pay; and the amount of damages awarded

cannot be sustained by the evidence.

       After consideration, we conclude that the District Court did not abuse its discretion

or err as a matter of law, and we will affirm.

                                             II.

       Inasmuch as we are writing only for the parties and the District Court, we need not

set forth the factual and procedural background of this matter in detail except as may be

helpful to the ensuing discussion.

       Bianchi joined the Philadelphia Fire Department in 1977, and in 1994 he was

promoted to Lieutenant. In 1996 he was assigned to supervise Ladder Company No. 2

and quickly became the target of harassment because he was perceived as gay. The



                                                 2
harassment manifested itself in the placement of used condoms and homosexual

paraphernalia in his desk drawer, gear, and mail. He informed his Captain and Battalion

Chief, who chastised Bianchi’s platoon but did not alert the Fire Department

administration of the situation.

       In late 1997 the harassment intensified. Bianchi’s running gear had been soiled

with urine or feces from which he contracted a fungal infection around his mouth, and

once again he discovered playing cards depicting nude males placed where he would see

them. In November he informed his superiors that he intended to file an official

complaint, and he did file such a complaint, sending them a written memo (“November

Memorandum”). This led to an internal investigation overseen by two Battalion Chiefs

who took statements from the firefighters regarding the harassment as well as Bianchi’s

behavior. The firefighters characterized Bianchi as unstable, and a number of them

requested a transfer out of his command.

       On December 15, 1997, Bianchi was removed from his command and transferred

to a desk job in the safety office. In January 1998, disheartened by his transfer and

frustrated with the investigation, he again complained about his situation. Shortly

thereafter, after a meeting with his supervisors and union representatives, he was placed

on a 30-day medical leave.

       Bianchi was required by the Fire Department to undergo psychiatric evaluation

with Dr. A. Anthony Arce, a psychiatrist employed by the City as an independent



                                             3
     consultant in psychiatry, before he could resume employment. Dr. Arce concluded that

     “from a psychiatric standpoint, Mr. Bianchi [could not] be considered disabled and [was]

     able to resume his regular duties.” App. at 1191. Bianchi returned to work, but on April

     7, 1998, a threatening letter smeared with feces was sent to his twin brother’s residence,

     where Bianchi was then living.1

             Following this, Bianchi’s personal therapist, Dr. Raymond Floven, recommended

     that he take a medical leave, but cleared him for return in October 1998; Dr. Arce also

     cleared him for return at that time but Bianchi was still barred from returning by the

     opinion of other City psychiatrists. Ultimately, in March 1999, Bianchi was informed by

     the Fire Department’s Human Resources M anager that unless he applied for unpaid

     disability leave (as opposed to the paid medical leave he was on), he would be

        1
 1          This letter read:
 2
 3                   HERE IS SOME SHIT FOR YOU ASSHOLE. WE HEAR
 4                   YOU ARE BACK TO WORK IN A PUSSY JOB. YOU
 5                   WILL NOT BECOMING TO YOUR REGULAR JOB
 6                   ANYMORE, WE WILL SEE TO THAT DON’T GET TO
 7                   COMFORTABLE BECAUSE WE WILL NOT BE HAPPUY
 8                   UNTIL WE GET YOU OUT FOR GOOD!!!! YOU AND
 9                   YOUR BROTHER ARE TWO QUEERS LIVING
10                   TOGETHER WE PREFER WOMAN. YOUR BROTHER IS
11                   NEXT. SO TELL M E WHAT IT IS LIKE TO JERKOFF
12                   TOGETHER. YOU DO NOT HAVE ONE FRIEND IN THE
13                   DEPARTMENT AND YOU ARE NOT SHIT!!!! YOU AND
14                   YOUR BROTHER WILL BE GONE SOON. DON’T
15                   DRIVE AROUND TO MUCH AND DONT THINK YOU
16                   WILL BECOMING BACK!!!!

(the “April 7 Letter”) (mistakes in original).

                                                  4
administratively discharged; when Bianchi failed to apply for such leave, he was

discharged.

       Bianchi then filed a complaint against his former employer, the City, alleging (1)

sexual harassment pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§

2000(e) et seq. and the Pennsylvania Human Relations Act, 43 P.S. §§ 951 et seq. (the

“PHRA”); (2) retaliation pursuant to these two acts and in violation of the First

Amendment; (3) denial of his procedural due process rights (via 42 U.S.C. § 1983); and

(4) intentional infliction of emotional distress. Only the retaliation and procedural due

process claims proceeded to trial. The jury found in favor of Bianchi, awarding $500,000

in compensatory damages, $225,000 in back pay, and $512,500 as front pay. On March

14, 2002, the District Court denied the City’s Post-Trial Motion and upheld the verdict.

On May 30, 2002, the District Court ruled that front pay was the appropriate remedy

because of the embittered relationship between Bianchi and his employer.

       These decisions form the basis of this timely appeal. We have jurisdiction to hear

this appeal pursuant to 28 U.S.C. § 1291.

                                   III.   DISCUSSION

A. Admission of Harassment Evidence and Rule 403

       The City first argues that under Rule 403, the evidence of harassment was

inadmissible because it prejudiced and confused the jury. We review a district court’s

evidentiary rulings for abuse of discretion. We have explained that an abuse of discretion



                                             5
    must be “‘a clear error of judgment, and not simply a different result which can arguably

    be obtained when applying the law to the facts of the case.’” 2 Coleman v. Home Depot,

    Inc., 

, 1341 (3d Cir. 2002) (quoting SEC v. Infinity Group Co., 

, 195 (3d Cir. 2000)). Rule 403 provides:

                  Although relevant, evidence may be excluded if its probative
                  value is substantially outweighed by the danger of unfair
                  prejudice, confusion of the issues, or misleading the jury, or
                  by considerations of undue delay, waste of time, or needless
                  presentation of cumulative evidence.

    Fed. R. Evid. 403. In general, the balance under the rule should be struck in favor of

    admissibility, Spain v. Gallegos, 

, 453 (3d Cir. 1994), and highly probative

    evidence is exceptionally difficult to exclude. 

.

           The City argues the harassment evidence in this case was not probative on the

    retaliation claim for which it was proffered and admitted. To prevail on a retaliation

    claim under the PHRA and Title VII, Bianchi was required to show that he engaged in

    protected conduct, that the City subsequently took adverse employment action against

    him, and that this adverse employment action was caused by the protected activity.

           The evidence at issue is probative of the third prong of the retaliation inquiry,

    which requires investigation of the reasons motivating the adverse employment action.

       2
1          The City argues that because the District Court never explained its Rule 403
2   analysis, we should exercise plenary review over the admission of the harassment
3   evidence pursuant to United States v. Himelwright, 

, 785 (3d Cir. 1994). The
4   District Court’s Rule 403 analysis is evident from the record. The court termed the
5   evidence “highly probative and highly material,” even though it recognized that such
6   evidence could be prejudicial. App. at 157-58.

                                                  6
Bianchi argued that the Fire Department was aware of the harassment and, prompted by a

desire to keep it quiet, separated Bianchi from his employment after he publicized it. The

District Court admitted the evidence specifically for this purpose, stating that it was

material to show the nexus between the retaliation and the filing of the complaint.

Because plaintiff’s establishment of a hostile work environment might help a jury decide

whether or not the reason given for his separation was a pretext, see Glass v. Phila. Elec.

Co., 

, 195 (3d Cir. 1994) (quoting Estes v. Dick Smith Ford, Inc., 

, 1103 (8th Cir. 1988)), the April 7 threatening letter, which was written after

Bianchi first made public his complaint in the November Memorandum, could reflect and

therefore be probative of hostility within the Fire Department. Moreover, the harassment

evidence is probative of the basis for Bianchi’s anger, which the City itself cites as the

cause of his eventual separation.

       The City argues further that if the evidence was admitted, it should have been

limited to a brief summary of the harassment. However, a brief summary would not have

been explanatory of the progression of events. The District Court explained in its opinion

on the City’s motion for judgment n.o.v. or for a new trial that it had ruled at the final

pretrial conference that Bianchi “could present evidence of the specific incidents of

harassment as relevant and important background to the claims at hand,” but specified

that the evidence should not dominate the trial. Our review of the record indicates that

the harassment evidence does not dominate the trial as the City contends.



                                              7
           The City finally argues that the admission of the harassment evidence was highly

    confusing to the jury. However, in Gallegos we stated that “vigorous cross-examination,

    presentation of contrary evidence, and careful instruction on the burden of proof are the

    traditional and appropriate means of attacking shaky but admissible 

(admitting evidence that defendant feared would turn trial into a sexual harassment

    trial instead of breach of ethics trial). Here the District Court, which found that the

    probative value of the evidence outweighed its prejudice and tipped the Rule 403 calculus

    in favor of its admission, gave careful limiting instructions when appropriate, namely in

    the opening instruction, throughout the case, and in the final jury instructions. Thus, it

    did not abuse its discretion by admission of the evidence.

    B. Due Process

           The City next argues that as a matter of law, the jury’s due process finding should

    be overturned.3 It argues that Bianchi could have, and did, challenge the refusal to

    reinstate him by going through state court, and that he could have employed both the

    union’s grievance procedure and Civil Service Regulation 22 to challenge the assessment

    of the City’s medical director, Dr. Hayes, that he was unable to return to work. We have

    held that the availability of procedures that provide some post-deprivation redress does

    not negate plaintiff’s ability to maintain an action merely because a pretermination



       3
1         Because we conclude that the evidence objected to was admissible, the issue of
2   whether the due process finding must be overturned because it resulted from inadmissible
3   evidence is moot and will not be discussed further.

                                                  8
procedure was neither impossible nor impracticable. Stana v. Sch. Dist. of the City of

Pittsburgh, 

, 129 (3d Cir. 1985).

       In this case, the jury was charged with, and decided, that the appeal mechanisms

proffered by the City did not effectively provide Bianchi the opportunity to challenge Dr.

Hayes’s medical determination that Bianchi take forced leave. The District Court then

found that the “plaintiff sustained his burden of proof on the issue at each stage of the

litigation by highlighting the incongruity between existing regulations and Bianchi’s

situation.” App. at 34.

       We will not disturb the jury’s finding that the procedures deprived him of due

process, and we therefore reject the City’s due process argument.

C. Damages Awards

       The City finally objects to the District Court’s upholding of the jury’s damages

award. We review the District Court’s decision not to grant a new trial or vacate the

damage award for an abuse of discretion. Evans v. Port Auth. of New York & New

Jersey, 

, 351 (3d Cir. 2001).

       The City argues that front pay can be justified only when the employer irreparably

harmed the working relationship. However, in Blum v. Witco Chem. Corp., 

, 373-74 (3d Cir. 1987), we stated that while back pay coupled with reinstatement is

the preferred remedy in employment discrimination, “reinstatement is not always feasible,

e.g., because of irreparable animosity between the parties. . . . In such a case . . . front



                                               9
pay must be used to make the plaintiff whole for future expected losses.” The irreparable

animosity does not have to originate with the employer for front pay to be appropriately

awarded.

       The District Court in this case awarded front pay, finding that the relationship

between the parties had been irreparably damaged due to a lack of mutual respect and

trust, and that reinstatement of Bianchi as a firefighter would put lives in danger because

of this damage. W e review the District Court’s assessment for abuse of discretion. See

Feldman v. Phila. Hous. Auth., 

, 832 (3d Cir. 1994). We see no reason to

disturb the District Court’s determination.

       The City also argues that it was error for the District Court to have decided the

propriety of a front pay award after the amount had already been determined by the jury.

The City neither formally objected to the jury charge on front pay nor to the Jury

Interrogatories on Front Pay. Having failed to object at trial, it cannot do so on appeal.

       The City finally contends that the front pay and back pay awards were excessive.

In reviewing a jury verdict on damages, a district court has an obligation “to uphold the

jury’s award if there exists a reasonable basis to do so,” and may not “vacate or reduce the

award merely because it would have granted a lesser amount of damages.” 

(internal quotation marks and citations omitted). A new trial is warranted

only upon the showing that the verdict amounted from passion or prejudice, and yet the

size of an award alone is insufficient to prove passion or prejudice. 

                                              10
       The jury awarded Bianchi $512,500 as front pay. The jury heard that Bianchi’s

salary was $49,000 annually, App. 801, and could infer that at age 52, Bianchi had

approximately thirteen more years of work left until his retirement. The award was not

unreasonable.

       The City argues nonetheless that Bianchi had a duty to mitigate damages, and that

the District Court should have lessened his front pay award. The City had the burden of

proof on mitigation, and it failed to examine Bianchi on his job prospects or future

earnings potential at trial. See Robinson v. Southeastern Pa. Transp. Auth., 

,

897 (3d Cir. 1993) (placing the burden of proving failure to mitigate on the employer);

Goss v. Exxon Office Sys. Co., 

, 889 (3d Cir. 1984) (same). On the other

hand, Bianchi put forth evidence that he could not and cannot find comparable

employment. Bianchi testified that he could find work only as a tow truck driver, truck

driver helper, and auto parts delivery person. His last employment paid $5.60 an hour

with no medical benefits. In light of the City’s failure to produce evidence, we cannot

conclude that the District Court’s refusal to reduce the front pay for the failure to mitigate

constituted an abuse of discretion.

       The jury’s back pay award of $225,000 for the period from October 1998 to

February 2002 was similarly within reason. The City argues that the back pay award

should have commenced on November 4, 1999, when Bianchi’s paid leave expired, and

not, as the jury found, on October 1998, when he asked for reinstatement. However,



                                             11
given a district court’s obligation to uphold a jury award when there is a reasonable basis

for doing so, this award must stand.

       We have previously stated that such an award does not have to be determined with

absolute precision. See Durham Life Ins. Co. v. Evans, 

, 156 (3d Cir. 1999)

(“The court may estimate what a claimant’s earnings would have been without

discrimination, and uncertainties are resolved against a discriminating employer.”). The

City refused to issue Bianchi medical clearance to return to work when he requested

reinstatement, and so compelled him to use accumulated leave time whose benefit and

value is impractical to measure. As such there was sufficient evidence in the record to

justify the jury award for back pay.

       Because the jury’s front pay and back pay awards are sufficiently supported by the

evidence and are not so excessive as “to shock the conscience of this court,” Feldman v.

Phila. Hous. Auth., 

, 833 (3d Cir. 1994), we find no abuse of discretion by the

District Court’s decision to let them stand.

                                  IV.    CONCLUSION

       For the reasons set forth, we will affirm the District Court’s judgment and orders.




                                           /s/ Dolores K. Sloviter
                                           Circuit Judge