Nicholas Malfitano Dec. 31, 2015, 9:19am


PHILADELPHIA – On Dec. 15, the U.S. Court of Appeals for the Third Circuit ruled to deny a new trial to a woman who filed both federal and state race and gender discrimination claims, plus retaliation claims against her former employer. 

Judges Julio M. Fuentes, Michael A. Chagares and Morton I. Greenberg issued an opinion upholding a trial court ruling to refuse a new trial to Robin Tasco, holding they did not err in that initial ruling. Chagares wrote the issued ruling.

Tasco worked as a business agent for the International Brotherhood of Electrical Workers No. 98 (IBEW) for eight years, alongside her son Frank Clark. Clark applied for an apprenticeship program with IBEW, but was rejected for failing a job-related exam and fired as a result. Shortly thereafter, Clark filed a complaint of race discrimination with the Equal Employment Opportunity Commission (EEOC).

After Tasco’s boss became aware of Clark’s complaint, he “indicated to her that he would retaliate against anyone and everyone who does this to me (file a complaint)” and added that he “could not have them on my team.” 

Tasco claims she was then fired because of her son’s complaint, and filed the lawsuit in February 2011 asserting federal and state race and gender discrimination and retaliation claims. However, the district court granted summary judgment to IBEW with respect to all of Tasco’s claims except those relating to retaliation.

Before trial, the IBEW issued subpoenas to Tasco’s former lawyer and to the Pennsylvania Department of Labor and Industry in April and May 2013 seeking documents for impeachment purposes, relating to Tasco’s prior personal injury, Workers' Compensation, and unemployment compensation claims.

On Aug. 21, 2013, the IBEW also subpoenaed the Philadelphia Board of Elections, seeking documents relating to Tasco’s prior candidacy for Philadelphia City Council and requesting a custodian witness for trial. 

All of these new exhibits concerned Tasco’s prior legal actions, which included her deposition and in-court testimony, her Workers' Compensation claim petition, her unemployment compensation questionnaires, and the unemployment compensation referee’s order in her case.

Tasco filed a motion in limine to exclude all of these exhibits based on untimely disclosure, and the district court denied that motion at trial. The District Court did this because they said Tasco was familiar with all of the documents, had notice of their future use at trial and they were only being used for impeachment purposes. 

The trial court jury returned a verdict in favor of the IBEW, and Tasco filed a post-trial motion for a new trial – one thrown out by the trial court. 

Tasco appealed this ruling on the basis that the trial court abused its discretion by allowing the exhibits to be entered and ruling in IBEW’s favor based on that same allowance.

Tasco also believed the jury should have been instructed on the “perception theory” of retaliation at trial. Chagares and the Third Circuit was not swayed by this rationale.

“The District Court here, however, committed no error. It was within its discretion to allow the IBEW to use the untimely disclosed documents at trial because the documents did not prejudice Tasco,” Chagares said. “Nor did the District Court err in refusing to instruct the jury on the “perception theory” of retaliation.”

Chagares said that jury instruction is only appropriate where the protected activity at issue may not have occurred, but the employer believes that it did. In this case, there was no dispute on knowledge of the protected activity, as IBEW knew full well Clark filed a complaint with the EEOC. 

“As a result, we hold that the District Court did not abuse its discretion in denying Tasco’s motion for a new trial. For the foregoing reasons, we will affirm the judgment of the District Court,” Chagares said.

The plaintiff is represented by Timothy M. Kolman, W. Charles Sipio and Wayne A. Ely of Kolman Ely in Penndel, Eman Abouelseoud of Tucker Law Group in Philadelphia and Lalena Jenae Turchi of Stark & Stark in Lawrenceville, N.J.

The defendant is represented by Richard B. Sigmond, Marc L. Gelman and Moira Kulik of Jennings Sigmond, in Philadelphia.

U.S. Court of Appeals for the Third Circuit 14-2981

U.S. District Court for the Eastern District of Pennsylvania case 2:11-cv-01393

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

Organizations in this Story

International Brotherhood of Electrical Workers
900 7th Street Northwest
Washington, DC 20001

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