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Robinson v. First State Community Action Agency

United States Court of Appeals, Third Circuit

April 1, 2019


          Submitted Under Third Circuit L.A.R. 34.1(a) October 23, 2018

          On Appeal from the United States District Court for the District of Delaware (D.C. No. 1-14-cv-01205) District Judge: Hon. Richard G. Andrews

          Tasha M. Stevens Fuqua Willard Stevens & Schab Counsel for Appellant

          Kevin G. Fasic Katherine R. Witherspoon Offit Kurman Counsel for Appellee

          Before: KRAUSE, COWEN, FUENTES, Circuit Judges.



         Tamra Robinson was told by her manager Karen Garrett that her work performance was so poor that "you either don't know what you're doing, or you have a disability, or [you're] dyslexic." Taking Garrett's words seriously, Robinson, who had never before considered the possibility she might have a disability, decided to undergo testing for dyslexia. She sent Garrett an evaluation that concluded that Robinson had symptoms consistent with dyslexia, and requested certain accommodations from the manager of human resources. She was told that any diagnosis she received would not prevent her from performing her work in a satisfactory matter, and she was advised to focus on improving her performance. Weeks later, she was fired.

         During the litigation in the District Court between Robinson and her former employer, First State Community Action Agency, Robinson acknowledged that she could not prove she was dyslexic. She proceeded on a different theory, that she was perceived or regarded as dyslexic by her employer and was therefore entitled to a reasonable accommodation the same way someone who was dyslexic would have been. While we have previously recognized the validity of a "regarded as" disability case theory in cases arising under the Americans with Disabilities Act, [1] the ADA Amendments Act of 2008[2] made clear that a "regarded as" plaintiff is not statutorily entitled to accommodation.[3] Despite this, both parties proceeded under the "regarded as" case theory throughout litigation, trial, and post-trial briefing. Only now does First State seek to unring the bell and overturn the jury's verdict because the jury was instructed that the "regarded as" case theory was valid. We hold that First State has waived this argument because of its continued acquiescence to Robinson's case theory, its encouragement of the adoption of the very jury instruction to which it now objects, and its failure to include this error in its post-trial briefing. We therefore affirm the judgment of the District Court.

         I. Background

         A. Robinson's Employment at First State

         In October 2009, Tamra Robinson was hired by First State Community Action Agency ("First State") as an individual development account counselor.[4] Almost two years later, First State hired Karen Garrett, and Garrett became Robinson's supervisor. Garett was dissatisfied with Robinson's work, and in November 2011, Garrett told Robinson "you either don't know what you're doing, or you have a disability, or [you're] dyslexic."[5]

         Robinson had never before considered whether she had any kind of disability. She attempted to find a physician to conduct an evaluation for dyslexia, and ultimately reached out to a family friend, Dr. Phyllis Parker, who was a psychologist. After undergoing testing in January 2012, Robinson received an evaluation from Dr. Parker noting that she demonstrated "signs of dyslexia," but this evaluation did not diagnose her with the disorder.[6] She immediately forwarded it to Garrett.

         While Robinson was undergoing this process, Garrett completed a performance appraisal for Robinson. On January 12, 2012, she placed Robinson on an individual development plan addressing six areas of concern. The plan provided for biweekly reviews of Robinson's progress followed by a final evaluation in March of that year. Garrett received Dr. Parker's evaluation just six days after completing the development plan. She forwarded it to First State's Human Resources Director, David Bull. Bull emailed Robinson, informing her that he received a copy of her "Informal Dyslexia Screening."[7]Nevertheless, he told Robinson that he did not believe the diagnostic information contained in the evaluation would "impact[] [Robinson's] ability to perform the essential elements of [her] job responsibilities" and instructed her to follow the individual development plan.[8] The next day, Robinson wrote back and asked for "reasonable accommodations"-specifically, she asked for "hands-on organized training for the types of clients" she would be responsible for counseling.[9] Bull replied by saying, "I fully understand and know ADA. What you need to do is your job."[10] A few weeks later, Robinson was fired.

         B. Proceedings Below

         In 2014, Robinson filed the instant suit against First State alleging violations of the Americans with Disabilities Act. Since at least the summary judgment stage, she argued that First State wrongfully terminated her and wrongfully denied her reasonable accommodations, both because she actually possessed a disability (dyslexia) and because First State regarded her as dyslexic.[11] The dispute between Robinson and First State proceeded to trial, and Robinson prevailed on her reasonable accommodation claim but not her termination claim. First State then moved for a new trial, and cited two alleged errors during the course of the trial.

         First, during Robinson's direct examination, she testified that after being terminated, she filed a complaint with the Equal Employment Opportunity Commission, which, she further testified, ruled in her favor. At sidebar, counsel for First State objected and requested a mistrial. The District Court instead struck the response, informing the jury:

Members of the jury, [you] may recall at the beginning of the trial, that I might have to strike some testimony, and tell you to disregard what you heard.
That last question and answer, I am striking that testimony, and you have to disregard what you heard. You cannot rely on it for anything. You need to put it out of your mind.[12]

         In its post-trial decision, the District Court maintained that striking the testimony was a sufficient response to the inadmissible evidence because juries are presumed to follow a court's instructions, and the split verdict showed that they were not unduly swayed by the testimony.

         Second, the District Court mentioned the statutory damage cap for Robinson's claims in its jury instructions.[13]After trial, the District Court agreed that the instruction was error, but determined that because First State did not object at trial and the error was harmless, it did not merit a new trial.

         First State now appeals that decision, arguing that it merits a new trial both because of the stricken testimony about the Commission's finding and because of the erroneous damages cap instruction. First State also argues, for the first time, that the judgment below should be vacated because Robinson's "regarded as" disabled case theory was precluded by the ADA Amendments Act of 2008.[14]

         II. Discussion

         A. The 2008 Amendments

         In 2008, the Americans with Disabilities Act was amended. The Act now provides that employers "need not provide a reasonable accommodation . . . to an individual who meets the definition of disability in [Section 12102(1)(C)]."[15]That Section, in turn, includes the definition of individuals who are "regarded as having" a physical or mental impairment.[16] In other words, after the 2008 Amendments went into effect, an individual who demonstrates that she is "regarded as" disabled, but who fails to demonstrate that she is actually disabled, is not entitled to a reasonable accommodation.[17] Therefore, the reasonable accommodation jury instruction, which informed the members of the jury that they needed to find only that First State "regarded Ms. Robinson as dyslexic, "[18] was error.

         The question before us is whether to review this error under the strict plain error standard or whether to treat the objection as waived. Despite the fact that Robinson discussed her position that she need only prove she was regarded as dyslexic as early as 2016, when she filed her motion for summary judgment, First State never addressed the effect of the 2008 Amendments until its briefing before this Court. It contends that its failure to raise this argument is best understood as a failure to object to an erroneous jury instruction and should therefore be reviewed under our plain error standard. We disagree because, although First State focuses narrowly on how this error manifested in the jury instructions, it was more broadly a flaw in Robinson's theory of the case that dated back to summary judgment briefing, and First State at no time objected to that theory despite numerous opportunities to do so. Thus, we view the argument as waived, and we decline to consider it for the first time on appeal.

         1. Forfeiture and Waiver

         "The effect of failing to preserve an argument will depend upon whether the argument has been forfeited or waived."[19] Forfeiture is the "failure to make the timely assertion of a right."[20] Waiver is the "intentional relinquishment or abandonment of a known right."[21] Waived arguments about jury instructions may not be resurrected on appeal.[22] When the argument was merely forfeited, however, plain error analysis applies, [23] and we will reverse only where the error is "fundamental and highly prejudicial, such that the instructions failed to provide the jury with adequate guidance and our refusal to consider the issue would result in a miscarriage of justice."[24]

         We find that First State's actions below are more appropriately classified as waiver. Throughout the history of this litigation, including in its early stages, First State was routinely confronted with Robinson's "regarded as" case theory. Not only did First State fail to object, it ...

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