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Note: Sample below may appear distorted but all corresponding word document files contain proper formattingExcerpt from Essay:
Leadership Style: What Do People Do When they are Leading?
Hewlett Packard (HP) remains one of the most successful computer and related services company in the Diversified Computer Systems industry. In this text, I concern myself with the leadership style of Meg Whitman -- the CEO of HP. In so doing, I will amongst other things analyze how her leadership style aligns with the company's culture. I will also examine Whitman's strengths, weaknesses as well as personal and organizational values.
Born in 1956, Whitman has over the years earned herself an enviable reputation as an efficient and brilliant corporate executive keen on making a mark in a corporate environment dominated by men. Having cut her teeth at Hasbro, Stride Rite, Disney, and most notably eBay where served as CEO for a decade, Whitman rose to become the head of HP. She has also in the past tried her hand in elective politics where she expressed her interest for California's gubernatorial seat in 2010. It was after her defeat in the said race that she was appointed as CEO of HP.
Leadership Style and Philosophy
Taking into consideration her ability to inspire enthusiasm and relate well with others, Whitman could be regarded a charismatic leader. In the words of Lussier (2011), "charismatic leadership is a leadership style that inspires loyalty, enthusiasm, and high levels of performance" (p. 337). At the time of Whitman's appointment as CEO of HP, the company was in a mess. In addition to facing stiff competition from the likes of Dell, HP's operating margins were largely on a free fall. Shortly after her appointment, Whitman persuaded the top executives of the computer giant to come up with a strategy on how to further enhance the competitiveness of HP. Being a team builder, she was able to motivate others to move forward -- an undertaking that helped fix HP's immediate problems.
A true charismatic leader, Whitman prefers to make use of influence as opposed to force. Indeed, Whitman's natural charisma has been evident all along. As Rajiv Dutta, an eBay employee points out, Whitman has that rare personal magnetism that seems to draw people to her (Hellriegel and Slocum, 2009). In the words of Dutta (as cited in Hellriegel and Slocum, 2009), "she makes you want to do the right thing" (p. 317). By making use of influence as opposed to force, Whitman inspires her followers to have trust in her vision. This explains her previous successes most particularly at eBay where she managed to further enhance the company's bottom-line at a time when other internet companies were failing. Her charm also remains evident in her conduct and interaction with others. In addition to having a jovial personality, Whitman's trademark smile is largely infectious. In the final analysis therefore, it is by dint of her unique charm and personality that Whitman gathers and influences followers.
Personal and Organizational Values
In the words of Fox (2007), "personal values represent fundamental convictions that a specific mode of conduct or end-state of existence is personally preferable to an opposite or converse one" (p. 54). As the author further points out, values are essentially a reflection of the ideas of an individual with regard to what is good or right. In addition to being impartial, Whitman is also an honest individual who embodies the basic tenets of integrity. This is more so the case given that throughout her career, she has not been accused of engaging in any kind of impropriety whatsoever. It is also important to note that Whitman does not routinely tell people what to do. Instead, she prefers to motivate others towards action. This is an indication that she values initiative. Her tendency to take into consideration the viewpoints of everyone else before adopting a course of action is also an indicator of her accountability and respect for teamwork. Some of the decisions Whitman has made in the recent past have also demonstrated that in addition to being flexible, she is also courageous. A good example of this is her decision to merge HP's PC business with the Printer unit. Being who she is, Whitman has soldiered on in the face of criticism. Whitman also has a tendency to put the needs of customers first. According to Lehman and Dufrene (2008), this is a value that was ingrained in her during her service at Procter & Gamble.
When it comes to organizational values, these are things that are seen as being important or critical when it comes to guiding the individual behaviors of individuals within the organization. In some cases, organizational values tend to be in accord with the personal values of the top executives. With regard to HP under Whitman, some of the evident organizational values include but they are not limited to service to clients, integrity, and professionalism. Teamwork is also held in high regard at HP.
Whitman's Values and their Impact on Ethical Behavior
In basic terms, the values of the top executives of firms are indicators of the ethical bearing of the organizations that they head. Given the important role values play in our professionals and private lives, the relevance of the said values cannot be overstated when it comes to sound decision making. For this reason, there exists a strong connection between the values of a leader and the ethical behavior within an organization. To begin with, Whitman's values could result in enhanced employee respect and loyalty. This respect and royalty is of great importance when it comes to the minimization of instances of embezzlement, fraud, and sabotage. Similarly, Whitman's integrity, professionalism, and impartiality also help in the transformation of HP into a value-based decision making model. By ensuring that the company is not only motivated by the need to maximize shareholder wealth, Whitman seeks to ensure that the organization identifies and respects the needs of other shareholders including but not limited to the communities, employees, suppliers, etc. This minimizes the probability of scandals whose underlying motivation is in most cases the enhancement of the bottom-line.
Whitman's Strengths and Weaknesses
Like any other business leader, Whitman has strengths and weaknesses. One of her key strengths is the ability to communicate effectively and relate well with others. Indeed, according to Lehman and Dufrene (2008), Whitman's track record clearly demonstrates that in addition to being a good collaborator and relation builder, she is also a good listener. It is important to note that the ability to communicate in an efficient and coherent manner cannot be overstated when it comes to the successful articulation of a leader's vision. This is a strength that has seen Whitman effectively implement change where others could have failed miserably. For instance, during her reign at eBay, she was able to institute a number of changes without alienating the employees of the company. Some of the said changes include but they are not limited to splitting the business into several categories. Secondly, she also comes across as being decisive. This is more so the case given that she has not shied away from making major decisions in the past in an attempt to further enhance the success of the organizations she runs. For instance, one of the most popular decisions Whitman made on being appointed as CEO of eBay was to ban the sale of weapons on the company's platform. Lastly, Whitman is also courageous and is not afraid of criticism.
Again, like any other business leader, Whitman also has a number of weaknesses. To begin with, she tends to be hot tempered when under pressure. To highlight this, Whitman has in the past been accused of shoving and yelling at an employee -- an action she attributed to "tensions that surface in any high-pressure work environment" (Ferris and Treadway, 2012). Next as Ferris and Treadway observe, Whitman can also be unreasonably…[continue]
"Leadership Style What Do People Do When" (2013, August 26) Retrieved December 9, 2016, from http://www.paperdue.com/essay/leadership-style-what-do-people-when-95181
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Meg Whitman is the current Chief Executive Officer (CEO) of Hewlett-Packard, the technology company that specializes in business and consumer electronic devices and services. She worked at a number of Fortune 500 companies and eventually found herself at the head of an Internet startup, eBay. Her leadership there allowed the company to grow rapidly and become one of the most important sites of the early Internet era. eBay remains important
group leader? - Find define leadership styles - Evaluate leadership effectiveness leadership styles. When it comes to different leadership styles there are many different types to choose from. At the same time, there is also no concrete consensus as to the one style that can be called the best. Depending on the situation, a particular style will be most suitable; even so, one needs to check whether there is in
Leadership Styles Relationship- and Task-Based Leadership Styles In leading groups and organizations, managers and leaders alike adopt different kinds of styles or approaches to be able to achieve specific objectives. These objectives could include establishing rapport and cohesion within a group, be it from a team or organizational level. Another objective that a leader could aspire to achieve is to focus on accomplishing the task or work at hand, regardless of the
However this philosophy has been proved to be wrong. Besides a few traits like intuition and sensing, all the leadership traits involve our conscious decisions and behaviors. A person can adopt any leadership and decision making style to be effective and productive based on the work environment and the people he is working with. Here are some recommendations for the self-improvement with respect to leadership and decision making: The leader
Leadership Style Inventory Leadership crises have been brewing since the past century. Evidently, the latest global economic lapses of financial markets raised a higher need for an effective leadership than it had been before. These crises led to a call for contemporary organizations to scrutinize or assess the leadership potential among their employees and new recruitments. Following the current changes in organizational rules and business games, as well as randomly emerging
Leadership Style and Traits Leadership Styles and Traits Captain D. Michael Abrashoff was one of the graduates from U.S. Naval Academy and he was also an assistant of military as a former secretary of defense. Though in 2001 he left his profession of navy and turned to a founder of grassroots leadership. (Barr, Frumi, 2002) After leaving that, he wrote a book on his management styles that he followed up throughout in his
Leadership Analyze describe founding leader(s), leadership style, major business principles a profit-oriented entrepreneurial approach primary goal provide a product service consumers make a profit. 2. Analyze describe founding leader(s), leadership style, major business principles a social-responsibility oriented entrepreneurial approach primary goal make a positive impact society (people, families, ecology, similar) providing a product service consumers make a profit. Leadership style refers to the method or manner in which a person provides guidance


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The Used Tata Manza in Chennai are available in Diesel & Petrol fuel types. There are 11 Used Tata Manza Diesel Cars in Chennai and 3 Used Tata Manza Petrol Cars in Chennai available starting at price of 2,50,000. The popular second hand diesel cars among these are Tata Manza.
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On Wed, 29 Feb 2012 16:08:15 -0800
Linus Torvalds wrote:
> On Wed, Feb 29, 2012 at 3:22 PM, Muthu Kumar
> > Fix setting bio flags in drivers (sd_dif/floppy).
> A quick grep seems to agree that these are the only obvious ones.
> Jens? Will you send this to me, or should I take it directly?
I'll send at you tomorrowish. Or you can take it directly, after fixing
the wordwrapping ;)
I don't know if a -stable backport is warranted...
> And when did Andrew change his name? Nobody tells me these things.
oh gawd no. Somehow google managed to replace my name with my son's in
various people's address books. Now it's gone and done it with
[email protected][email protected]


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www.youcar.tv 517 hp - Speed 305 km/h - 0 to 60 mph : 4,2 sec The V12 Zagato is the pinnacle of the Vantage range. It is also the latest expression of a successful creative collaboration that has given rise to a series of striking GT cars over the last half-century, the original and most iconic of which being the DB4GT Zagato. Not only does this masterpiece rank amongst the most desirable, collectable and valuable cars in history, its 50th anniversary provided the inspiration for the V12 Zagato. On-sale now priced at
Aston Martin, Zagato, vantage, V12, sport, motorsport, top gear, aston, engine, speed, Cars, Ferrari, Porsche, bentley


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Hoban warns on 'distorted' derivatives reforms
European reforms to regulate derivatives could create a "distorted market" by failing to cover all types of derivatives products, a UK Treasury minister has warned, amid growing controversy regarding the scope of EU regulation.
Mark Hoban, financial secretary for the Treasury, said that the European market infrastructure regulation, which was unveiled in September last year, must be expanded to include all types of derivatives, including those listed on an exchange, and warned that a failure to do so could damage, rather than improve, the European derivatives market.
European regulators originally proposed Emir to increase the robustness of the over-the-counter derivatives market by forcing these trades through a clearing house. OTC derivatives have been blamed for exacerbating the financial crisis by creating systemic risk that was not visible to regulators.
But in recent months, the UK along with other countries, have lobbied to expand the scope of the Emir text to cover the on-exchange listed derivatives market, in order to close what some derivatives specialists have argued would be a potential loophole in the regulation. The proposal to expand the scope of the text has proved deeply contentious.
Proponents of the expanded scope have argued that failing to include all types of derivatives could create a gap that might allow some firms to avoid the clearing obligation. They also argue that failing to include listed derivatives in the regulation would allow listed derivatives exchanges to avoid new rules, outlined in Emir, which would bring much-needed competition to the sector.
Hoban, who was speaking at a conference run by financial information company Markit last week, said that "all arguments favour" expanding the text.
He said: "It is not clear to me why a derivative traded off an exchange would be cleared, but an instrument that is traded on an exchange should not be cleared. Failing to include exchange traded derivatives would lead to market distortions by creating a loophole that would be exploited by firms, creating a damaging asymmetry in the market."
He added: "The debate seems really to be about competition in clearing: in our view, firms should not be required to clear through clearing houses linked to exchanges. These 'vertical silos' must be subject to fair and open access requirements."
Hoban, whose responsibilities include banking and financial services regulation, competitiveness of the City of London and pensions policy, also told delegates that the European Commission "does not [fully] grasp" all of the issues of the review of the Market in financial instruments directive, another key European financial services reform.
Mifid II will attempt to address problems that emerged as a result of the first 2007 directive, which successfully brought competition to European share-trading. However, it also led to the fragmentation of share-trading across Europe reducing transparency in the market. The review will also expand the directive to include other asset classes, including fixed income and commodities.
Hoban said: "By sparking competition Mifid helped increase GDP in Europe. If we get the Mifid review right, we have the potential to build on that growth, but if we get the review wrong, that could set [the European financial markets] back by a decade. The Commission has much more to do to convince me that they've grasped all the issues at stake."
He said that the UK Treasury continues to lobby to expand the scope of Emir, but that the market must also continue to "push" on this issue.
--write to Michelle Price at firstname.lastname@example.com


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- Anonymous
- Germany, Female, 18-24
- Novice Nomad
- 2 reviews
The pancakes in the Morning were amazing!! The staff is really nice:) The Hostel is quite small, but it had a really nice familiar atmosphere (for example: we often cooked something together in the evening or watched a movie!)
thanks for your review
- Anonymous
- Australia, Female, 25-30
- Avid Traveller
- 10 reviews
A little bit out of the way. Friendly staff, cheap, kitchen, only one shower and toilet but seem to be ok. Kitchen. It was like a big house.
we have 2 showers and 2 toilets.
- Anonymous
- USA, Couple, 18-24
- Novice Nomad
- 1 review
The staff were cool and helpful. We booked this hostel because they offer an airport shuttle service for $25 and we had a very early flight. The hostel was very dirty when we were there and there was no hot water. All in all I guess it was worth it for the ride to the airport, but I do not plan on staying there again.
we have hot water, but i imagine that you did not know how to uses it... and the worse thng is the you do not ask how to use it... so i recommend you to ask when you do not know how to uses something, i can not read minds... my tip to you, we do not get mad for asking, we are help full
- Anonymous
- Netherlands, Female, 18-24
- Novice Nomad
- 1 review
We only stayed here for one Night because The hostel is not located in san jose. How ever it is a safe hostel and friendly Staff! Also the neighboorhood is safe whereas San Jose is known for a little bit more danger. Definitely worth a visit! Also you get a pancake for breakfast and there is a kitchen to cook your own food.
we are located just 15 min away from san jose, here is a good pont to go to san jose, safe, clean,no homeless people... in san jose you have to be carefull all time
- Anonymous
- USA, Female, 18-24
- Avid Traveller
- 15 reviews
I loved this hostel so much! The woman who runs it is so sweet and helpful and it is located in a very quiet and relaxed neighborhood. It is a little bit far away from Heredia central, but the plants and beautiful terrace make a really relaxing place to get away from the city for a little bit. I loved my time here and definitely plan on coming back!!
thanks for your review, remamber we are just 5 min away from dowtown and just 15 min from san jose dowtown, full nature and nice costa rica people
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The film will tell about an English teacher named pleng (Preechaya Pongthananikorn), which is held responsible by a man on his girlfriend's departure to America. Pleng initially only wanted to help Japanese students who want to leave for the United States to tell his girlfriend, Yim (Sunny Suwanmethanon) that he wants to break up with him.
But after the delivered, blamed by Yim pleng precisely because he is considered to have made a girlfriend gone. Trying to catch up with his girlfriend, Yim asked pleng to teach him English. From there, they then fell in love.


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Deel de Universal Wine-pagina
Recensie van een gast :
"Kurt was very informative and communicative prior our arrival. He answered every question promptly and clearly, with a lot of information. Instructions were very clear and we found the house with no trouble at all. House is located in beautiful, very quiet, small village and has amazing view on surrounding mountains. It has big door looking at big backyard, where you will find comfortable chairs to sit in and enjoy the view. In the house, owners thought about every little detail, so even If I think very hard, I cannot come up with something which could be done better. It is built in typical Slovenian style, a lot of wooden material, but with great comfort and great interior design. Place Lese is located very close to most attractive locations in Slovenia, so can be on most amazing places in Europe in no time (30-60min drive most distant ones). I travel a lot with AIRBNB, and I can only say that service that Kurts provide in overall is exceptional, probably the best we've seen so far. I cannot recommend enough this house. I guarantee that you will not regret spending time there! Milos "


text: Home > Software > Development Tools and Software This article was posted on 12/19/2012 Design suite handles ARM CPU, Altera FPGA The Altera SoC Embedded Design Suite now includes the ARM DS-5 Altera Edition toolkit for SoCs and features FPGA-adaptive debug capabilities. The toolkit combines the most advanced multi-core debugger for the ARM architecture with the ability to adapt to the logic contained in the FPGA and provides embedded software developers an unprecedented level of full-chip visibility.The available SoC devices combine a dual-core ARM Cortex-A9 processor with FPGA logic. The tool features the advanced multi-core debugging capability of the DS-5 Debugger linked to the Quartus II software SignalTap logic analyzer for cross-triggering capability. (Subscription $995/seat - available early 2013.)by Jim HarrisonAltera, San Jose, CASales Office408-544-7900www.altera.com Learn more about Altera Related Articles Advanced Circuits releases upgrades to its free PCB design software... Advanced Circuits releases upgrades to its free PCB design software... TI's new USB Type-C docking system design can cut solution size in ... Every electronics engineer should know about TensorFlow Add Comment Text Only 2000 character limit Please login to comment on the article


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Hotels in Newtownabbey
Hotel reservation
United Kingdom
Hotel rooms in Newtownabbey
There are not so many hotel rooms in Newtownabbey, just 2, still everyone can find an offer to suit his choice. The most common offers in this city are 3 и 4 stars, they count 1 out of 2, and their prevalent location is central district. According to our practice, it is the most profitable to book a hotel in the north of Newtownabbey, as it is the location of the hotels with optimal cost and quality offers along with the cheap hotels. Taking into account the small size of the city, there is no need to dwell hotel reservation on the location: the road to the city center would take less then half an hour, so one can book a hotel in any district of Newtownabbey. The most populated with hotels district of Newtownabbey is the north, 100% of cheap hotel rooms are concentrated here. Newtownabbey is an ideal place for couple and solo, such travellers rate hotels there 7.7 out of 10 on average. In Newtownabbey one can enjoy the beauty of Sinclair Seamen's Church, Redburn Country Park and St. Joseph's Catholic Church. Moreover, there is a choice of 0 hotels, located within a walking distance from these attractions, however they might not be the cheap ones. Apart from all these, hotels in Newtownabbey offer their customers laundry service, bar, restaurant/cafe and 24 hours front desk service. The most appreciated amenities in Newtownabbey hotels are wifi and food. According to the visitors reviews, hotels in Newtownabbey has bar is awesome, fantastic service and great location. Take a look at our selection of the cheap hotel rooms in Newtownabbey to make a well-informed choice for your reservation!
Best hotels in Newtownabbey
Hotels in Newtownabbey are spread around the city within the distance of 6.4 kilometers. Those who are keen on antique should definitely fall in love with
Corr's Corner Hotel
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Corr's Corner Hotel
, 3 stars hotel located in a 5.5 kilometers from the city center.
The best hotels are here and now. Try them!
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Today, I dropped off a box for my sister at her job. In a rush, I unknowingly parked in a reserved spot. When I got back to my car, I saw that my car was being towed. After successfully flirting myself out of an expensive towing bill, I backed into the pole behind me, leaving a noticeable dent. FML
by hopefulanonymous / 11/20/2009 at 11:01am / United States (Maryland) / Transportation
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March 4, 2009
UNITED STATES OF AMERICA, PLAINTIFF,v.ADAM GRANT GUNDERSON, DEFENDANT.
The matter before the Court is Defendant's motion to vacate judgment and grant new trial. (Doc. # 48).
On June 21, 2008, at approximately 4:45 p.m., Defendant approached the primary inspection area at the Interstate 8 Border Patrol Checkpoint in Pine Valley, California. Defendant was the driver and sole visible occupant of a 1993 Mercedes Benz. As Defendant approached primary inspection, Border Patrol Agent Juan Carlos Sarantes noticed that the rear of the vehicle appeared riding low.
Defendant came to a stop at primary inspection and continued to talk on his cell phone. Agent Sarantes asked Defendant to state his citizenship. Defendant continued to talk on his cell phone and did not respond to Agent Sarantes. Agent Sarantes asked again and Defendant stated that he was a citizen of the United States. Agent Sarantes asked if he could search the trunk of the vehicle and Defendant responded yes but told Agent Sarantes that the trunk was not working. Agent Sarantes asked what was wrong with the trunk and Defendant responded "I don't know." (Transcript at 89). Agent Sarantes asked if he could open the trunk and Defendant responded "Go ahead, if you can." Id.
Agent Sarantes pressed on the handle of the trunk and opened the trunk. Agent Sarantes observed two individuals in the trunk. Agent Sarantes asked the two individuals inside the trunk if they were illegal aliens and one of them responded that he was. Agent Sarantes closed the trunk, returned to the Defendant, and asked "who are the people in the trunk?" (Doc. 27 at 2). Defendant responded "I don't know." (Doc. # 31at 3). Agent Sarantes instructed the Defendant to exit the vehicle. The vehicle was taken to secondary. Defendant was arrested.
At approximately 10:15 p.m., Defendant was advised of his Miranda rights and invoked his right to remain silent.
On July 16, 2008, a federal grand jury in the Southern District of California returned an indictment charging Defendant with two counts of transporting and moving an illegal alien within the United States in violation of Title 8, United States Code, Sections 1324(a)(1)(A)(ii).
On July 17, 2008, Defendant was arraigned on the Indictment and entered a plea of not guilty.
Prior to trial, Defendant moved to suppress any statement made to Agent Sarantes after the agent "found undocumented aliens hidden in trunk." (Doc. # 27 at 2). The Government stated in response "[i]n its case-in-chief, the Government does not intend to use statements made by Defendant after Agent Sarantes discovered the aliens in the trunk." (Doc. # 30 at 3).
On October 14, 2008, the Court held a motion in limine hearing at which Government counsel confirmed that the Government did not intend to use any statement made by the Defendant after the agent had opened up the trunk and discovered people in the trunk of the vehicle. Government counsel stated that the Government would seek to use Defendant's statement "if the Defendant were to take the stand." The Court asked Defense Counsel for her position in that regard. Defense counsel stated:
Counsel for Defendant: I think for impeachment, it's admissible. My motion was on Miranda grounds, so.
The Court: Is it fair to say the, your motion only dealt with whether Miranda was complied with?
Counsel for Defendant: Correct.
The Court: And not voluntariness? So your issue is Miranda.
The Government didn't comply with Miranda, so they can't use it in their case-in-chief. But your motion does not address the issue of whether they could use it for cross-examination or in rebuttal?
Counsel for Defendant: That's right, your Honor.
The Court: All right. And so there is no opposition from the Government that the motion be granted with respect to the motion being suppressed in the government's case in chief, so I will grant that only with respect to the government's case in chief.
(Transcript pages 19-20).
Trial commenced on October 15, 2008. During its case-in-chief, the Government presented the testimony of Agent Sarantes, Agent Munoz, and the two material witnesses. The Government did not present any evidence about Defendant's statements or demeanor after Agent Sarantes found the individuals in the trunk.
After the Government rested, Defendant took the witness stand. On direct examination, Defense counsel asked the Defendant when he first learned that there were people in the trunk of his car. Defendant testified as follows:
Counsel for Defendant: After [Agent Sarantes] looked in the trunk, what did he do? . . .
Defendant: He opened it and then just as quick as he opened it, he closed again and stepped back to the window.
Counsel for Defendant: Did he come back to talk to you?
Defendant: Yes, he did.
Counsel for Defendant: At that point, did he place you under arrest?
Defendant: He asked me to step out of the car. I asked him why. He said, step out of the car, please. And so I stepped out. Counsel for Defendant: When you were at the checkpoint, did you know that there were people in the trunk
Defendant: No ...
Counsel for Defendant: When did you first learn there were people in the trunk of the car?
Defendant: When I had stepped out of the car, he had done this motion (gesturing) for another Border Patrol agent to come over.
And then he actually got in the car and he is the one who drove it to the secondary inspection, which you saw in the pictures. .... But they motioned to the car, open the trunk, open the trunk, something to that effect. When they opened the trunk, you could see sticking up like this (gesturing) in the trunk. You could tell there was something kind of crunched up in the trunk.
Counsel for Defendant: What did you think when you saw those men? Defendant: I was pretty much in disbelief. Didn't believe that was the car I was driving. I was - I didn't know what - the person didn't make any effort to get out of the - to get out of the trunk, wasn't moving. I honestly did not know what to think.
Counsel for Defendant: No further questions. Thank you. (Transcript pages 205-207).
On cross-examination, Government counsel questioned the Defendant in part as follows:
Counsel for Government: You mentioned that after Agent Sarantes opened the trunk, he came back to you, right?
Defendant: Right.
Counsel for Government: He actually asked you a question when he came back to you; isn't that right?
Defendant: He asked me to step out of the car, yes.
Counsel for Government: Didn't he ask you, who are those people in the trunk of the vehicle?
Defendant: No, at that time, he just asked me to step out of the car. Counsel for Government: And - well, he didn't ask you, who are those people in the trunk of the vehicle, and your response was, I don't know. Defendant: That was when we were actually inside of the building. Counsel for Government: And what he told you that there were two people inside the trunk, your answer simply was, I don't know, right? Defendant: Yeah, I believe so. I had actually -Counsel for Government: With a - I'm sorry - with a straight face, right?
Counsel for Defendant: Objection, your Honor. Argumentative.
The Court: Overruled.
Counsel for Government: Were you surprised that there were two people -Defendant: Yeah.
Counsel for Government: -in the trunk of the vehicle?
Defendant: Yes, yes, I was very surprised.
Counsel for Government: But you simply said, I don't know?
Defendant: I believe he asked -Counsel for Defendant: Your Honor, can we have a sidebar, please? (Transcript page 238-239).
Defense counsel asked the Court to strike the question by Government counsel "But you simply said, I don't know?" on the grounds that it "makes a subtle suggestion that he should have said something more."*fn1 (Transcript at 240). The Court obtained the transcript, reviewed the questions asked and answers given with counsel, and instructed the jury to disregard all of the questions and answers stated above. The Court read back the questions and answers stated above to the jury, specifically instructed the jury that these questions and answers were stricken from the record, and instructed the jury that they could not consider them or draw any inferences from them. (Transcript pages 249-250). The Court further instructed Government counsel not to argue any statement made by the Defendant after Agent Sarantes opened the trunk of the car in closing argument. Government counsel proceeded with cross-examination without any reference to Defendant's silence or any statement made by the Defendant after Agent Sarantes opened the trunk of the car in closing argument.
At the close of the evidence the Court instructed the jury, including an instruction that they must not consider any testimony that was excluded or stricken, and testimony that they have been instructed to disregard. (Transcript page 276).
During closing argument and rebuttal argument, the Government did not make any reference to the stricken testimony or to any statement made by the Defendant after Agent Sarantes opened the trunk of the car.
On October 16, 2008 at 2:17 p.m., the jury began deliberating. Approximately one hour later, the jury sent out a note which stated "What exactly was thrown out that we should not consider?" (Court Exhibit 1). The Court convened the parties and read to the jury the following answer agreed to by the Government and the Defendant:
The Court struck the testimony elicited during Mr. Gunderson's cross-examination. The Court struck Ms. Caldito's questions that related to any statement made by Mr. Gunderson after Agent Sarantes opened the trunk. You are to disregard all of the testimony related to any questions and answers that occurred after Agent Sarantes opened the trunk. And then, I also remind you that in the instructions, that you have received, jury instructions, jury instruction number 6, paragraph 3, the first line says, testimony that has been excluded or stricken or that you have been instructed to disregard is not evidence and must not be considered.
(Transcript page 329-330). The jury returned to deliberate at 4:41 p.m. At 4:57p.m., the jury returned a verdict of guilty on both counts of the indictment.
Defendant contends that the question by Government counsel "But you simply said, I don't know?" on cross-examination constituted a comment on silence in violation of his Fifth Amendment protection against self-incrimination. Defendant contends that after Agent Sarantes opened the trunk he was not free to leave and that Agent Sarantes' question "Who are the people in the trunk?" improperly confronted him with respect to guilt. Defendant asserts that the Government's cross-examination violated his right to remain silent suggesting that if he were telling the truth in court, he would have said something more to the question asked by Agent Sarantes after he opened the trunk. Defendant asserts that the jury in this case remained confused about what evidence they were not to consider and that the confusion lasted throughout the trial. Defendant asserts that his credibility was critical to his defense and that he was prejudiced by the in violation of his Fifth Amendment protection against self-incrimination.
The Government asserts that the question was proper cross examination. The Government asserts that the Defendant took the stand and testified that he first learned that there were aliens in his vehicle when he saw them in the trunk in the secondary area and that the Defendant testified that he was surprised when he saw the aliens in the trunk of his vehicle. The Government asserts that the question was intended to point out the inconsistency between his testimony at trial and his pre-Miranda statements and demeanor. The Government asserts that there was no constitutional error in that the cross-examination was limited to a reference to a post-arrest, pre-Miranda silence; and no evidence of post arrest silence was ever submitted to the jury.
Rule 33(a) of the Federal Rules of Criminal Procedure states in part "Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so require." The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. Amend.V. "The warnings mandated by [Miranda are] a prophylactic means of safeguarding Fifth Amendment rights." Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240 (1976). This right to remain silent carries an "implicit assurance" that silence will carry no penalty. Id. at 617. "Doyle rests upon the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial." Wainwright v. Greenfield, 474 U.S. 284, 291, 106 S.Ct. 634 (1986). (internal quotation omitted). "Absen[t] the sort of affirmative assurances embodied in the Miranda warnings, the Constitution does not prohibit use of a defendant's post arrest silence to impeach him at trial." Greer v. Miller, 483 U.S. 756, 763, 107 S.Ct. 3102 (1987). "The government may use a defendant's post-arrest, pre-Miranda silence for impeachment, but it may not do so 'in its case-in-chief.'" United States v. Hernandez, 476 F.3d 791, 796 (9th Cir. 2007) quoting United States v. Velarde-Gomez, 269 F.3d 1023, 1029, FN1 (9th Cir. 2001).
In this case, the Government's question on cross-examination "But you simply said I don't know" made reference to a post-arrest, pre-Miranda statement by the Defendant in an attempt to impeach his direct trial testimony that he was surprised when he learned that there were two individuals in the trunk of the car he was driving. Government counsel asked "were you surprised that there were two people in the trunk of the vehicle?" and Defendant responded "Yes, yes, I was very surprised." Government counsel then asked "But you simply said, I don't know?" Defense counsel asked for sidebar and raised an objection to this question. The Court contemporaneously sustained the objection and struck the line of questioning. The question asked by Government counsel and objected to by Defense counsel did referred to Defendant's post-arrest, pre-Miranda silence, and was not asked in the Government's case-in chief. The Court concludes that the question asked by Government counsel did not violate Defendant's Fifth Amendment protections against self-incrimination. See Velarde-Gomez, 269 F.3d at 1029, FN1.
To the extent that this question asked on cross-examination could be construed as an improper comment on Defendant's silence, the Government has proven that any error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967). "In the context of comments on silence, the Court of Appeals considers three factors: (1) the extent of comments made by the witness, (2) whether an inference of guilt from silence was stressed to the jury, and 3) the extent of other evidence suggesting defendant's guilt." United States v. Hernandez, 476 F.3d 791, 797 (9th Cir. 2007).
In this case, all of these factors support a finding of harmlessness. As to the first factor, the question objected to by Defense counsel was brief. The Court sustained the initial objection of the Defendant to the cross-examination and struck and the entire line of questioning. The jury was specifically informed of the questions and answers which they were not to consider at that time and instructed in the general jury instructions at the close of evidence that testimony that has been stricken is not evidence and must not be considered. When the jury asked for clarification, the Court clarified specifically with the agreement of the Defendant informing the jury not "to disregard all of the testimony related to any questions and answers that occurred after Agent Sarantes opened the trunk." (Transcript at 330).
As to the second factor, the Court sustained the objection of the Defendant to the question on cross-examination and Government counsel proceeded with cross-examination without making any reference to Defendant's silence or his statement to Agent Sarantes after the trunk was opened. Government counsel did not refer in any way to any statement or demeanor of the Defendant after Agent Sarantes opened the trunk of the car at any other point in the trial.
Finally, the extent of the evidence suggesting Defendant's guilt supports a finding of harmlessness. Defendant was the driver and sole occupant in a car with two individuals hiding in the trunk. Defendant lied to the agent at primary about the trunk being broken. There was no way for the material witnesses to get out of the trunk without the assistance of the Defendant and the smuggling profit would have been lost if the material witnesses had died in the trunk. The jury evaluated the evidence and returned a verdict of guilty on both counts without lengthy deliberations.
Taking all of these factors into consideration, the Court concludes that the limited reference at issue was not prejudicial to the Defendant and any error which may be inferred was harmless. IT IS HEREBY ORDERED that Defendant's motion to vacate judgment and grant new trial (Doc. # 48) is DENIED.
WILLIAM Q. HAYES United States District Judge
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July 16, 2012
EDWARD M. SUPINSKI, PLAINTIFF,v.UNITED PARCEL SERVICE, INC., DEFENDANT.
Presently before the Court is Defendant United Parcel Service, Inc.'s ("UPS") post-trial Motion for Judgment as a Matter of Law, or, in the Alternative, for a New Trial Pursuant to Rules 50 & 59 of the Federal Rules of Civil Procedure. (Doc. 322.) Because Plaintiff Edward Supinski ("Supinski") provided sufficient evidence in support of his Americans with Disabilities Act ("ADA") failure to accommodate and retaliation claims, UPS' motion for judgment as a matter of law will be denied. And, because the jury's verdict was not against the weight of the evidence, Supinski's counsel did not make it reasonably probable that the verdict was influenced by improper conduct, and the Court's evidentiary rulings were not erroneous or prejudicial, UPS' request for a new trial will be denied.
I. Background
As the parties have already been through a trial on this matter, only a brief recount of the factual events necessary to the resolution of the instant motion will be provided. Supinski worked at UPS starting in 1979. In October of 2000, while working as a Package Car Driver, he sustained a work-related massive cuff tear in his right shoulder that required him to undergo surgery and physical therapy. On October 4, 2001, Supinski's doctor approved his return to work, but with permanent restrictions: he could only lift seventy pounds to waist level, twenty-five pounds to shoulder level, and twenty pounds overhead.
These restrictions prevented Supinski from returning to his position as Package Car Driver, but he continued to seek employment with UPS through his union. In November of 2002, UPS notified Supinski that it had concluded he was not eligible for a reasonable accommodation under the ADA. He then filed a charge of discrimination with the EEOC and PHRC. On November 18, 2003, the PHRC issued a finding of "No Probable Cause," concluding that "the investigation did not establish the legal requirements for disability under the Pennsylvania Human Relations Act (PHRA) or the Pennsylvania Fair Educational Opportunities Act (PFEOA)."
Supinski continued to seek employment with UPS. At some point prior to May of 2005, he applied for a Feeder Driver position, and in July of 2006, he applied for a Car Washer/Unloader position. UPS did not hire him for the positions, determining that he could not satisfy the essential job functions (i.e., heavy lifting) of either job and that he did not have a disability.
Supinski filed suit against UPS in March of 2006, asserting claims for disability discrimination, failure to accommodate, and retaliation under the PHRA, then adding similar claims under the ADA. Supinski filed a second suit in February 2008 based on the failure to hire him for the Car Washer/Unloader position; the two actions were consolidated.
The case proceeded to trial in February of 2012 on the PHRA and ADA claims. On February 17, 2012, a jury found that UPS failed to accommodate Supinski and retaliated against him in violation of the ADA and PHRA. The jury awarded Supinski $280,000 in compensatory damages. UPS was ordered to reinstate Supinski, restore his pension to what it would have been if not for its conduct, and to provide him with back pay in the amount of $342,798.40. UPS reinstated Supinski on March 20, 2012. Thereafter, UPS filed the instant post-trial motion for judgment as a matter of law, or, in the alternative, for a new trial. UPS' motion has been fully briefed and is now ripe for disposition.
II. Legal Standards
A. Motion for Judgment as a Matter of Law
To prevail on a renewed motion for judgment as a matter of law, the moving party must establish that there was no "legally sufficient evidentiary basis for a reasonable jury to have found for [the prevailing party] on that issue." Fed.R.Civ.P. 50(a)(1). In deciding whether to grant a Rule 50(b) renewed judgment as a matter of law motion: the trial court must view the evidence in the light most favorable to the nonmoving party, and determine whether the record contains "the minimum quantum of evidence from which a jury might reasonably afford relief." The court may not weigh evidence, determine the credibility of witnesses or substitute its version of the facts for that of the jury. The court may, however, enter judgment notwithstanding the verdict if upon review of the record, it can be said as a matter of law that the verdict is not supported by legally sufficient evidence.
Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 691--92 (3d Cir. 1993), abrogation on other grounds recognized by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392 (3d Cir. 2003) (citations omitted).
A court may grant judgment as a matter of law "only if, viewing the evidence in the light most favorable to the non-movant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability." LePage's Inc. v. 3M, 324 F.3d 141, 145--46 (3d Cir. 2003) (quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)). The question is not whether there is literally no evidence supporting the non-moving party, but whether there is evidence upon which the jury could properly find for the non-moving party. See Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993) (citing Patzig v. O'Neil, 577 F.2d 841, 846 (3d Cir. 1978)).
B. Motion for New Trial
"The court may, on motion, grant a new trial on all or some of the issues . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court . . . ." Fed. R. Civ. P. 59(a)(1)(A). The decision whether to grant a new trial following a jury verdict is within the sound discretion of the trial court. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S. Ct. 188, 66 L. Ed. 2d 193 (1980); Blancha v. Raymark Indus., 972 F.2d 507, 512 (3d Cir. 1992). Courts have granted motions for a new trial where: "(1) there is a significant error of law, to the prejudice of the moving party; (2) the verdict is against the weight of the evidence; (3) the size of the verdict is against the weight of the evidence; or (4) counsel engaged in improper conduct that had a prejudicial effect on the jury." Todd v. Luzerne Cnty. Children & Youth Servs., No. 04-2637, 2011 WL 841429, at *2 (M.D. Pa. Mar. 8, 2011) (citing Maylie v. Nat'l R.R. Passenger Corp., 791 F.Supp. 477, 480 (E.D. Pa. 1992), aff'd 983 F.2d 1051 (3d Cir.1992)). Where the evidence is in conflict, however, and subject to two or more interpretations, the trial judge should be reluctant to grant a new trial. See Klein v. Hollings, 992 F.2d 1285, 1295 (3d Cir.1993).
III. Discussion
Defendant's motion raises two legal theories. First, UPS argues that it is entitled to Judgment as a Matter of Law. Alternatively, UPS asserts that it should be granted a new trial. These arguments will be addressed in turn.
A. Renewed Judgment as a Matter of Law
During the trial, UPS raised Rule 50 motions for judgment as a matter of law as to Plaintiff's failure to accommodate claim and his retaliation claim. (Trial Tr., Feb. 14, 2012 P.M. Session, 3:2-6:19.) Therefore, pursuant to Rule 50(b), the Court may now reconsider the legal questions raised by those arguments.
1. Failure to Accommodate
To establish a prima facie failure to accommodate case under the ADA, 42 U.S.C. §§ 12101-12213, the plaintiff must prove "'(1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination' ... [which] in this context include[s] refusing to make reasonable accommodations for a plaintiff's disabilities." Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 186-87 (3d Cir. 2009) (quoting Williams v. Phila. Housing Auth. Police Dep't, 380 F.3d 751, 761 (3d Cir.2004)).
As such, to prevail under the ADA, Supinski was required to establish that he was a "qualified individual with a disability." 42 U.S.C. § 12112(a). The ADA defines "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). The ADA defines "disability" with regard to an individual as either: (i) "a physical or mental impairment that substantially limits one or more of the major life activities of such [an] individual"; (ii) "a record of such an impairment"; or (iii) "being regarded as having such an impairment." 42 U.S.C. § 12102(2).
Here, Supinski's lone theory of liability for his failure to accommodate claim was that UPS "regarded" him as being disabled.
Under the ADA, a person is "regarded as" having a disability if he:
(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the covered entity as constituting such limitation;
(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(3) Has [no such impairment] but is treated by a covered entity as having a substantially limiting impairment.
Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 187 (3d Cir.1999); see also 29 C.F.R. § 1630.2(l). Accordingly, the relevant inquiry is whether UPS "perceived [Supinski] as disabled within the meaning of the ADA, not whether [Supinski] was actually disabled . . . ." Eshelman v. Agere Sys., Inc., 554 F.3d 426, 434 (3d Cir. 2009).
This perceived disability must substantially limit a "major life activity," such as working. See id. (citing 29 C.F.R. § 1630.2(I)). An individual is "substantially limited" with regard to working "if there is a significant restriction in a person's 'ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities.'" Id. at 435 (quoting 29 C.F.R. § 1630.2(j)(3)(i)). Thus, to prevail on his "regarded as" claim, Supinski was required to show that UPS believed he was unable to work in a class of jobs or broad range of jobs. See id.
Here, Supinski presented sufficient evidence that a jury could conclude that UPS "regarded" him as being disabled. Although UPS asserts that it is entitled to judgment as a matter of law because Supinski did not apply to a broad class of jobs, UPS disregards testimony that UPS believed that Supinski could not perform any job at UPS because of his lifting restriction. (Trial Tr., Feb. 13, 2012, 49:5-10.) And, of all the different job classifications available at UPS, evidence was presented that UPS believed Supinski's restrictions prevented him from performing any of these jobs. (Id.) Thus, based on this testimony, there was sufficient evidence for a jury to conclude that UPS regarded Supinski as unable to work in a broad range of jobs. UPS' Rule 50 motion on this issue will therefore be denied.
2. Retaliation
To establish a prima facie retaliation claim under the ADA, the plaintiff must prove "'(1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action.'" Williams, 380 F.3d at 759 (quoting Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002)). UPS argues that the evidence presented by Supinski fails to establish materially adverse action capable of sustaining a prima facie retaliation claim.
According to the Supreme Court, action is materially adverse if "it well might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Burlington N. & Santa Fe Ry Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006) (quoting Rochon v. Gonzales, 438 F. 3d 1211, 1219 (D.C. Cir. 2006)).*fn1 While the material adversity standard requires a distinction between significant and trivial harms, and the antiretaliation provisions are not meant to protect against "petty slights, minor annoyances, and simple lack of good manners," id., "the significance of any given act of retaliation will often depend upon the particular circumstances." Id. at 69; see also Supinski v. United Parcel Serv., Inc., 413 F. App'x 536, 543 (3d Cir. 2011) (citing Gaujacq v. EDF, Inc., 601 F.3d 565, 578 (D.C. Cir. 2010)).
Given the evidence presented at trial, a jury could reasonably conclude that UPS' conduct amounted to materially adverse action after Supinski requested reasonable accommodations for his injuries. While UPS argues that other district courts "have found far more egregious conduct insufficient as a matter of law to demonstrate materially adverse employment action," sufficient evidence was presented that UPS sought to deter Supinski from seeking reinstatement with UPS. In particular, the evidence presented by Supinski allowed a reasonable jury to conclude that UPS created an environment which would discourage him from returning to work at UPS. (Trial Tr., Feb. 14, 2012, A.M. Session, 66:3-11.) Thus, Supinski's retaliation claim is not simply that he was insulted, slighted, embarrassed, or harassed, but rather that UPS engaged in hostile conduct over a period of years to discourage Supinski from seeking work with UPS. As a result, these particular circumstances demonstrate materially adverse employment action not present in the cases relied on by UPS. Cf. St. John v. Potter, No. 09-4196, 2011 WL 780685, at *8-*9 (E.D. Pa. Mar. 4, 2011) (placement on administrative leave for fifteen minutes and order to clear out locker did not constitute adverse action); Nolan v. Swartz Campbell, LLC, No. 05-1508, 2008 WL 598291, at *19-*20 (W.D. Pa. Feb. 29, 2008) ("something beyond isolated verbal mistreatment is needed to convert what was otherwise an occasionally unpleasant environment into an actionable one"); Nagle v. RMA, 513 F. Supp. 2d 383, 390-91 (E.D. Pa. 2007) ("the Court cannot conclude that a reasonable employee would be dissuaded from making a discrimination claim based on a single meeting [where employee was threatened with loss of employment] with no evidence of further consequences resulting from that meeting"). Accordingly, UPS' motion for judgment as a matter of law on the retaliation claim will be denied.
UPS alternatively argues that it is entitled to a new trial because the jury's verdict is against the weight of the evidence and because of a number of prejudicial errors that occurred before and during trial.
1. Verdict Against the Weight of the Evidence
UPS argues that Supinski failed to meet the threshold burden of proof on both his discrimination and retaliation claims. As such, UPS contends that a miscarriage of justice has occurred, mandating a new trial.
In the Third Circuit, "[a] new trial may be granted when the verdict is contrary to the great weight of the evidence; that is, 'where a miscarriage of justice would result if the verdict were to stand.'" Pryer v. C.O. 3 Slavic, 251 F.3d 4487, 453 (3d Cir. 2001) (quoting Olefins Trading, Inc. v. Han Yang Chem. Corp., 9 F.3d 282, 289 (3d Cir. 1993)). "'This limit upon the district court's power to grant a new trial seeks to ensure that a district court does not substitute its judgment of the facts and the credibility of the witnesses for that of the jury.'" Delli Santi v. CNA Ins. Cos., 88 F.3d 192, 201 (3d Cir. 1996) (quoting Fineman v. Armstrong World Indus., Inc., 980 F.3d 171, 211 (3d Cir. 1992)). Thus, the Third Circuit has indicated that "a District Court reviewing a jury verdict has an 'obligation . . . to uphold the jury's award if there exists a reasonable basis to do so.'" Evans v. Port Authority of New York & New Jersey, 273 F.3d 346, 351--352 (3d Cir. 2001) (quoting Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1230 (3d Cir. 1989)).
As noted above, Supinski made a threshold showing of all elements of his discrimination and retaliation claims. And, based on this evidence, the jury reasonably concluded that UPS violated the ADA. As such, the jury verdict is not against the great weight of the evidence and Defendant's motion for a new trial on this issue will be denied.
2. Prejudicial Errors
a. Plaintiff's Counsel's Trial Misconduct
UPS next asserts that a new trial is warranted based on Plaintiff's counsel's trial misconduct. According to UPS, Plaintiff's counsel repeatedly violated the rules of evidence and suggested to the jury that the defense and the Court were keeping evidence from the jury. Furthermore, UPS contends that Plaintiff's counsel introduced evidence without foundational support. Lastly, Defendant asserts that Plaintiff improperly referred to "sending a message" to UPS during closing argument even though the Court had previously bifurcated punitive damages for a separate phase at trial.
"A new trial may be granted only where the improper statements 'made it reasonably probable that the verdict was influenced by prejudicial statements.'" Greenleaf v. Garlock, Inc., 174 F.3d 352, 363 (3d Cir. 1999) (quoting Fineman, 980 F.2d at 207). However, "not all improper remarks will engender sufficient prejudice to mandate the granting of a new trial." Fineman, 980 F.2d at 207. Instead, "often a combination of improper remarks are required to persuade us of prejudicial impact." Id. In addition, "a court may grant a new trial when counsel's closing argument refers to evidence not in the record or other extraneous matters if the court finds that there is a 'reasonable probability of influencing the verdict.'" Price v. Trans Union, L.L.C., - - - F. Supp. 2d - - -, 2012 WL 898687, at *16 (E.D. Pa. 2012) (quoting Ayoub v. Spencer, 550 F.2d 164, 170 (3d Cir. 1977)). But, where a party fails to object to a closing statement at trial, the party waives the "right to move for a new trial on this ground, and the Court will not grant a new trial unless [counsel's] misconduct resulted in a miscarriage of justice." Id. (citing Wilson v. Vt. Castings, Inc., 170 F.3d 391, 395-96 (3d Cir. 1999)).
Here, based on the wide discretion afforded to the trial court in matters relating to the conduct of counsel during trial, the Court will deny UPS' motion for a new trial based on Plaintiff's counsel's trial conduct. See Forrest v. Beloit Corp., 424 F.3d 344, 351 (3d Cir. 2005) (citing Greenleaf, 174 F.3d at 363). While the record demonstrates a number of questions posed by Plaintiff's counsel that were objected to as inappropriate, the Court sustained each objection as was appropriate. The jury was also instructed to disregard any material which should not have been presented. And, even though Plaintiff's counsel was instructed by the Court to refrain from testifying and instead to ask questions of witnesses, the Court does not find this conduct, or Plaintiff's counsel's remarks during closing, to have engendered sufficient prejudice necessitating the grant of a new trial. In that regard, while Plaintiff's counsel's zealous advocacy may have resulted in arguably improper conduct at times during trial, her actions in this case did not make it "reasonably probable" that the jury verdict was improperly influenced by her conduct.*fn2 Defendant's motion for a new trial on this issue will therefore be denied.
b. Evidentiary Rulings
UPS also seeks a new trial based on a number of perceived prejudicial and erroneous evidentiary rulings that occurred before and during trial. When a motion for new trial is predicated on a ruling that initially rested within the discretion of the trial court, such as an evidentiary ruling, the district court's latitude is broad. See, e.g., Klein v. Hollings, 992 F.2d 1285, 1290 (3d Cir. 1993) (citing Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 187 (3d Cir. 1990)). Thus, "a District Court must first determine whether an error was made, and must then determine 'whether that error was so prejudicial that refusal to grant a new trial would be inconsistent with substantial justice.'" Jackson v. City of Pittsburgh, No. 07-111, 2011 WL 3443951, at *8 (W.D. Pa. Aug. 8, 2011) (quoting Bhaya v. Westinghouse Elec. Corp., 709 F. Supp. 600, 601 (E.D. Pa. 1989)). UPS' specific alleged evidentiary errors are addressed below.
i. Motion in Limine to Exclude Stray Remarks
Prior to trial, UPS filed a motion in limine to exclude evidence relating to stray remarks made by Joe Ross, Bob Maguire, and Dan Jones. (Doc. 158.) UPS sought to exclude these remarks because neither Ross or Jones had decision-making authority concerning Supinski's request for accommodation and/or his ability to return to work. A ruling on UPS' motion was deferred until the time of trial, (Doc. 226), at which Supinski was permitted to offer testimony that Ross had called him a "cripple" and Jones told Supinski his presence at the UPS facility was "disturbing." Specifically, the Court overruled UPS' hearsay objections as to these statements because they were admissions by UPS managers or supervisors.
UPS argues that the Court erred in permitting this testimony because "stray remarks" hold very low probative value. UPS is correct that the Third Circuit has indicated that "stray remarks by non-decisionmakers alone are insufficient to establish discriminatory intent." Walden v. Georgia-Pacific Corp., 126 F.3d 506, 521 (3d Cir. 1997). However, "such remarks can still constitute evidence of the atmosphere in which the employment decision was carried out, and therefore can be relevant to the question of retaliation." Id. (citing Woodson v. Scott Paper Co., 109 F.3d 913, 922 (3d Cir. 1997); Antol v. Perry, 82 F.3d 1291, 1302 (3d Cir. 1996)). Indeed, because "such evidence may be critical for the jury's assessment of whether a given employer was more likely than not to have acted with an unlawful motive. . . . [S]tray remarks by nondecisionmakers may be properly used by litigants as circumstantial evidence of discrimination." Id. (internal citations omitted).
Contrary to UPS' contention, permitting Plaintiff to testify as to the comments by Ross and Jones was in accord with Third Circuit precedent. In particular, these remarks were admissible as circumstantial evidence of the alleged hostility towards injured workers at UPS. And, as such, it was proper for a jury to consider these comments. Moreover, even if admitting these statements was improper, the Court does not believe that the error was so prejudicial as to be inconsistent with substantial justice. Defendant's request for a new trial on this issue will be denied.
ii. Motion in Limine to Exclude the PHRC Findings
In 2003, after UPS denied his 2002 accommodation request, Supinski filed a claim with the PHRC. The PHRC concluded that Supinski's impairment did not substantially limit one or more major life activities. Thereafter, in 2005, Plaintiff sought an accommodation from UPS. His request was again denied.
Prior to trial, Plaintiff filed a motion in limine to exclude the PHRC findings. (Doc. 101.) The Court granted Plaintiff's motion. (Doc. 226.) At trial, the Court reiterated that the PHRC decision was not admissible as to liability and damages because its probative value substantially outweighed the danger of unfair prejudice. However, the Court indicated that the decision could be utilized in a post-trial bifurcated hearing on punitive damages.
UPS argues that the PHRC decision confirmed that their decision in 2002 that Plaintiff was not disabled was correct, which, as a result, meant that UPS could not subsequently have "regarded" him as disabled in 2005. Thus, UPS contends that the Court's ruling is inherently contradictory and prejudicial to UPS- and ultimately not maintainable- because UPS' state of mind is critical to evaluating both liability and punitive damages.
While it is true that an "employer's state of mind [remains] relevant to the appropriate remedies" in an ADA case, Williams v. Phila. Housing Auth. Police Dep't, 380 F.3d 751, 770 n.14 (3d Cir. 2004) (citations omitted), UPS' argument ignores the fact that "where a contention for a new trial is based on the admissibility of evidence, the 'trial court has great discretion . . . .'" Link v. Mercedes Benz of N. Am., Inc., 788 F.2d 918, 921-22 (3d Cir. 1986) (quoting Kane v. Ford Motor Co., 450 F.2d 315, 316 (3d Cir. 1971)). Absent an abuse of discretion, the Court's ruling on the admissibility of evidence will be upheld. See Winters v. Marina Dist. Dev. Co., 317 F. App'x 286, 288 (3d Cir. 2009) (citing West v. Phila Elec. Co., 45 F.3d 744, 752 (3d Cir. 1995); Glass v. Phila. Elec. Co., 34 F.3d 188, 191 (3d Cir. 1994)). "In the context of a decision to admit or exclude evidence under Federal Rule of Evidence 403, an abuse of discretion exists where that decision is shown to be 'arbitrary and irrational.'" Id. (quoting Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 187 (3d Cir. 1990)).
Under the Federal Rules of Evidence, "all relevant evidence is admissible, except as otherwise provided . . . by these rules . . . ." Fed. R. Evid. 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Nevertheless, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." Fed. R. Evid. 403. According to the Third Circuit, "Rule 403 recognizes that a cost/benefit analysis must be employed to determine whether or not to admit evidence; relevance alone does not ensure its admissibility. That is, evidence may be excluded if its probative value is not worth the problems that its admission may cause . . . ." Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343 (3d Cir. 2002).
Here, admission of the PHRC decision into evidence would have been unfairly prejudicial for a number of reasons. First, as indicated at trial, UPS' initial refusal to accommodate Supinski occurred prior to the PHRC decision, which substantially decreases the probative value of the findings. Second, and relatedly, UPS could well have violated the ADA independent of the general findings of the PHRC. Third, and most importantly, the PHRC findings were excluded because of fear that a jury would give undue weight to the decisions of a government agency. Finally, contrary to UPS' assertion, it was not inherently contradictory to rule that the PHRC findings could be offered for the jury's consideration as to punitive damages because this evidence related to UPS' ability to form the requisite malicious intent necessary to support an award of punitive damages. In light of these considerations, Defendant is not entitled to a new trial based on the exclusion of the PHRC decision from evidence at trial.
iii. Motion in Limine to Exclude Undisclosed Witnesses
Before trial, UPS filed a motion in limine to exclude the testimony of witnesses not disclosed by Plaintiff prior to the filing of his pretrial memorandum. (Doc. 156.) The Court denied UPS' motion on the grounds that any failure to disclose was harmless. (Doc. 226.) However, the Court permitted UPS to take the depositions of these witnesses on the Friday and Saturday prior to trial. UPS argues that allowing these undisclosed witnesses to testify at trial was prejudicial against UPS and in violation of the Federal Rules of Civil Procedure because Supinski never provided a substantial justification for his failure to identify these witnesses.
Rule 37(c)(1) provides, in pertinent part, that "if a party fails to . . . identify a witness as required by Rule 26(c) or (e), the party is not allowed to use that . . . witness to supply evidence . . . at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). According to the Third Circuit, "a District Court does not abuse its discretion in refusing to exclude evidence as a Rule 37(c)(1) sanction when the non-moving party's failure to produce the information requested in discovery is harmless to the movant." PPG Indus., Inc. v. Zurawin, 52 F. App'x 570, 574 (3d Cir. 2002) (citing Newman v. GHS Osteopathic, 60 F.3d 153, 156 (3d Cir. 1995)).
Here, Supinski's failure to disclose the identity of certain witnesses was harmless to UPS. UPS was permitted to depose these witnesses, which cured the alleged prejudice suffered by Defendant. Furthermore, allowing these witnesses to testify did not disrupt the flow of trial, nor has the Court identified any bad faith or wilful failure to disclose these witnesses by Plaintiff. See, e.g., Watson v. Borough of Susquehanna, No. 09-294, 2012 WL 1454010, at *3 (M.D. Pa. Apr. 25, 2012). And, as the testimony offered at trial was consistent with Plaintiff's case of discrimination and retaliation, the Court does not find that this evidence prejudiced or surprised UPS. Therefore, the Court will not grant UPS a new trial based on the trial testimony of the undisclosed witnesses.
iv. The Workers' Compensation Letter Testimony
Prior to trial, UPS filed a motion in limine to exclude "any evidence, testimony, or argument describing the manner in which Plaintiff sustained his injury, his resulting medical treatment, and the separate workers' compensation litigation." (Doc. 162.) While the Court granted UPS' motion to exclude Plaintiff's proposed Trial Exhibits 34 and 36, the letters regarding the workers compensation settlement negotiations, the motion to exclude any other evidence, testimony, or argument pertaining to the separate workers compensation litigation was deferred to the time of trial. (Doc. 226.) At trial, Supinski was not permitted to enter the letters into evidence. However, Plaintiff was allowed to testify that he received a letter in the mail stating that he was resigning his position for one dollar ("the one dollar letter"). UPS argues that by permitting Plaintiff's testimony describing the one dollar letter, "the entire purpose of excluding these impermissible exhibits was undermined."
Rule 408 of the Federal Rules of Evidence provides:
(a) Prohibited Uses. Evidence of the following is not admissible--on behalf of any party--either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering--or accepting, promising to accept, or offering to accept--a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim--except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
Fed. R. Evid. 408(a).
As noted at trial, Plaintiff's testimony did not refer to an offer of settlement or negotiations to settle his benefits. Plaintiff testified that he was asked to resign his position for one dollar. Characterizing the letter as an offer of settlement is not reasonable. Defendant's motion will therefore be denied on this issue.
v. The Available Jobs and New Hires Testimony
Lastly, UPS claims that the Court erred by admitting testimony from three non-management UPS employees that there were available jobs at UPS Supinski could perform. According to UPS, because none of these witnesses were ever employed in the Human Resources functions at UPS, the witnesses should have been precluded from offering their speculative testimony about job availability or the hiring status of workers into certain jobs.
Here, the witnesses testified as to information within their personal knowledge as to available positions as UPS. As such, their testimony as to available jobs and subsequent hires to fill these positions was proper. The motion for a new trial on this issue will therefore be denied.
IV. Conclusion
For the above stated reasons, UPS' motion for judgment as a matter of law, or for a new trial, will be denied.
An appropriate order follows.
A. Richard Caputo United States District Judge
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This volume contains the lecture notes from the courses o?ered at the Inter- tional Summer School on Language Engineering and Rigorous Software De- lopment, held in Piriap I olis, Uruguay, from February 25 to March 1, 2008. The aim of the schoolwasthe dissemination of advancedscienti?c knowledge in the areas of programming languages and rigorous methods for software - velopment. The school was oriented to computer science graduate students and researchers, withaninterestinformaltechniquesforthedesignandconstruction of software systems as well as programming languages. The school was organized in the context of the LERnet (Language En- neering and Rigorous Software Development) project. LERnet is a project of the ALFA programme of the European Commission for co-operation between higher education institutions of the European Union and Latin America. The institutions that participate in the LERnet project are the following: a Chalmers Tekniska H I ogskola, Sweden a Institut National de la Recherche en Informatique et Automatique (INRIA), France a Universidad de Castilla-La Mancha, Spain a Universidad Catol I ica de Santiago del Estero, Argentina a Universidad EAFIT, Colombia a Universidade Federal de Minas Gerais, Brazil a Universidade do Minho, Portugal a Universidad Nacional de San Luis, Argentina a Universidad Polit I ecnica de Valencia, Spain a Universidad de la Republica I , Uruguay a Universiteit Utrecht, The Netherlands The project oversees the mobility of PhD students from Latin America to the European Union and vice versa for a period of up to 18 months, to pursueInternational LerNet ALFA Summer School 2008, Piriapolis, Uruguay, February 24 - March 1, 2008, Revised, Selected Papers Ana Bove, Luis Soares ... Oliveira, J.N.: Pointfree foundations for (generic) lossless decomposition (2008) ( submitted) 48. ... Springer, Heidelberg (2004) 50. ... Notation a A Reference Manual.
|Language Engineering and Rigorous Software Development
|Ana Bove, Luis Soares Barbosa, Alberto Pardo, Jorge Sousa Pinto
|Springer Science & Business Media - 2009-07-27