BAGIC v. UNIVERSITY OF PITTSBURGH et al
Filing
162
MEMORANDUM ORDER denying 156 Motion for New Trial. Signed by Judge J. Nicholas Ranjan on 1/27/2022. (sns)
Case 2:18-cv-00511-NR Document 162 Filed 01/27/22 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SNJEZANA JELACA BAGIC,
Plaintiff,
v.
UNIVERSITY OF PITTSBURGH, et
al.,
Defendants.
)
)
) 2:18-cv-511-NR
)
)
)
)
)
)
)
)
)
MEMORANDUM ORDER
After a jury returned a verdict in Defendants’ favor, Plaintiff Dr. Bagic now
moves for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure.
ECF 156. She argues that the Court made two errors that require a new trial: first,
that the Court erred in a portion of its jury instructions; and second, that the Court
erred in an answer it provided to the jury in response to a question the jury raised
during deliberations. Defendants Dr. Costello and the University of Pittsburgh filed
an opposition brief (ECF 160) and Dr. Bagic filed a reply (ECF 161). After careful
consideration, and for the reasons discussed below, the Court denies Dr. Bagic’s
motion.
Where, as here, the alleged errors concern the Court’s jury instructions, the
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) (Fischer, J.) (cleaned up). That is, “a new
trial is warranted only if the instructions, taken as a whole, fail to fairly and
adequately present the issues in the case without confusing or misleading the jury.”
Prum v. Crisante, No. 14-4829, 2016 WL 7201233, at *1 n.1 (E.D. Pa. April 29, 2016)
(citing Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 79 (3d Cir. 2009))
Case 2:18-cv-00511-NR Document 162 Filed 01/27/22 Page 2 of 8
(cleaned up).
Further, to warrant a new trial, the purported errors must be
“substantial.” Murray v. Ennis, 523 F. App’x 901, 902 (3d Cir. 2013) (“Under Rule
59(a), a District Court has the discretion to grant a new trial on claims of … erroneous
jury instructions when it finds that those errors are substantial.” (citing Montgomery
Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940))).
The Court finds no errors here, much less a substantial one.
I.
The Court’s jury instruction was not erroneous.
Dr. Bagic first asserts that the Court’s jury instruction regarding the relevance
of Dr. Noonan’s actions, motivations, or statements was erroneous, so a new trial is
warranted. 1 The Court disagrees.
To begin with, Dr. Bagic waived her current argument that the jury instruction
was erroneous as a matter of law. That is, Dr. Bagic did not object to the provided
instruction at trial as legally erroneous; her objection, instead, was that the
instruction was redundant or unnecessary.2 See 11/18/2021 Trial Tr., pp. 21-25. She
therefore waived this purported basis for a new trial. See, e.g., Lesende v. Borrero,
752 F.3d 324, 335 (3d Cir. 2014) (“Federal Rule of Civil Procedure 51 provides that a
party objecting to either a jury instruction or the lack of an instruction must raise the
objection ‘on the record, stating distinctly the matter objected to and the grounds for
The jury instruction stated, in relevant part: “You must not consider Dr. Noonan’s
actions, motives, or statements to be evidence that Dr. Costello or the University
discriminated against Dr. Bagic. Dr. Noonan’s actions, motives, or statements are
not attributable to Dr. Costello or the University. This evidence is only relevant if you
find that the University or Dr. Costello relied on any biased or false statements by
Dr. Noonan that the University or Dr. Costello knew to be biased or false.”
1
For example, at trial, Dr. Bagic’s counsel argued that this instruction was
unnecessary because the matter is an “evidentiary issue for the jury” and “should be
left to the jury under the evidence instructions.” 11/18/2021 Trial Tr., pp. 22, 24.
Counsel also agreed that Dr. Noonan’s biases, motives, and actions are ultimately
“not relevant. It’s relevant as to what the University and Dr. Costello knew.” Id. at
p. 24.
2
-2-
Case 2:18-cv-00511-NR Document 162 Filed 01/27/22 Page 3 of 8
the objection.’ Such an objection must be both cogent and specific to the alleged error.
As a general rule, a party who fails to either cogently raise a specific objection or state
the grounds of the objection at trial waives related arguments on appeal.” (citations
omitted) (emphasis added)); Waldorf v. Shuta, 142 F.3d 601, 629 (3d Cir. 1998) (“[I]t
is clear that a party who fails to object to errors at trial waives the right to complain
about them following trial.”); Jackson, 2011 WL 3443951, at *8 (“Generally, a party
is not entitled to receive a new trial for objections to evidence that he did not make at
or prior to the initial trial, even if they may have been successful.” (cleaned up)).
Additionally, Dr. Bagic argues that the jury instruction was erroneous because
it’s inconsistent with the “cat’s paw” theory. But she waived this argument as well,
and it cannot be the basis for a new trial because the cat’s paw theory was not at issue
in the initial trial. See, e.g., Prum, 2016 WL 7201233, at *1 n.1 (“[A] new trial is
warranted only if the instructions, taken as a whole, fail to fairly and adequately
present the issues in the case without confusing or misleading the jury.” (cleaned up)
(emphasis added)).
Dr. Bagic did not raise the cat’s paw theory at trial. She did not request any
jury instructions on the cat’s paw theory. And when the Court stated at trial that Dr.
Bagic does not appear to be relying on the theory, her counsel did not disagree. See
11/18/2021 Trial Tr., p. 23. Dr. Bagic cannot now invoke the theory for the first time
after trial. 3
Thus, Dr. Bagic likewise waived this argument.
See, e.g., Holt v.
Pennsylvania, No. 10-5510, 2018 WL 5617856, at *6 (E.D. Pa. Oct. 30, 2018); Brandon
v. Com., Dep’t of Pub. Welfare, No. 95-5597, 1998 WL 110627, at *2 n.3 (E.D. Pa. Mar.
The failure to raise a “cat’s paw” theory actually goes beyond simple waiver at trial.
Dr. Bagic never pled this theory in her complaint. This is significant, because
typically when that theory is placed at issue in the pleadings, it is subject to pre-trial
motions practice, including at summary judgment, as well as in motions in limine
and proposed pre-trial jury instructions and objections. Dr. Bagic cannot now invoke
an entirely new and unpled theory of liability at this late juncture.
3
-3-
Case 2:18-cv-00511-NR Document 162 Filed 01/27/22 Page 4 of 8
12, 1998); Murtha v. Forest Elec. Corp., No. 90-3259, 1992 WL 174606, at *11 (E.D.
Pa. July 14, 1992).
Even setting aside waiver, however, Dr. Bagic’s arguments still fall short, as
the jury instruction was a correct statement of the law. To prevail on her claims at
trial, Dr. Bagic had to show that the defendants intentionally discriminated against
her. See Bagic v. University of Pittsburgh, 773 F. App’x 84, 86-87 (3d Cir. 2019)
(“Invoking 42 U.S.C. §§ 1981 and 1983, Bagic alleges that, based on Costello’s biased
investigation, the University terminated her employment because of her ethnicity.
To establish a right to relief, Bagic must show an intent to discriminate on the basis
of [ethnicity] by the defendant.” (cleaned up) (emphasis added)).
Thus, based on Dr. Bagic’s legal claims and theories presented at trial, only
the intent of Defendants—the University and Dr. Costello—were relevant.
It
necessarily follows, then, that the only relevance of (non-party) Dr. Noonan’s intent
or bias was if Defendants knew that they were relying on Dr. Noonan’s discrimination
against Dr. Bagic, thereby discriminating against Dr. Bagic themselves.
Put
differently, if Defendants did not know that Dr. Noonan’s alleged ethnic
discrimination undergirded their employment decision, Defendants could not have
intentionally discriminated against Dr. Bagic. See General Bldg. Contractors Ass’n
v. Pennsylvania, 458 U.S. 375, 382-83 (1982) (rejecting the lower court’s
determination that a party could “violate[] 42 U.S.C. § 1981 notwithstanding … [that
defendant] did not intentionally discriminate against [plaintiff] and neither knew nor
had reason to know of the [third party’s] discriminatory practices” (cleaned up));
Peace-Wickham v. Walls, 409 F. App’x 512, 525 (3d Cir. 2010) (“Claims [under Section
1983] that a supervisor participated in alleged discriminatory behavior must be
supported by evidence of personal involvement by the supervisor, or evidence that
the supervisor possessed actual knowledge of the discriminatory behavior of others
-4-
Case 2:18-cv-00511-NR Document 162 Filed 01/27/22 Page 5 of 8
and acquiesced to their improper conduct.” (citation omitted)). The Court’s jury
instruction adhered to the law, and Dr. Bagic does not show otherwise.4
Further, even if Dr. Bagic raised the cat’s paw theory at trial, the Court’s jury
instruction was still correct.
This is because Dr. Noonan was not Dr. Bagic’s
supervisor, so the cat’s paw theory did not apply in this case.
See Brnovich v.
Democratic Nat’l Comm., 141 S. Ct. 2321, 2350 (2021) (A plaintiff in a ‘cat’s paw’ case
typically seeks to hold the plaintiff’s employer liable for the animus of a supervisor
who was not charged with making the ultimate adverse employment decision.”
(cleaned up) (emphasis added)); Sterrett v. Giant Eagle, Inc., 681 F. App’x 145, 151
(3d Cir. 2017) (“We allow plaintiffs to proceed under a cat’s paw theory if a supervisor
exhibiting discriminatory animus influenced or participated in a decision to take an
The sole authority Dr. Bagic cites on this point is the Third Circuit’s opinion
addressing Defendants’ motion to dismiss in this case, Bagic v. University of
Pittsburgh, 773 F. App’x 84 (3d Cir. 2019). See ECF 157, pp. 4-5; ECF 161, p. 2. But
Dr. Bagic’s reliance is misplaced. In this lone cited case, the Third Circuit was
reviewing the district court’s decision to grant Defendants’ motion to dismiss. The
Third Circuit thus accepted all of the complaint’s allegations as true, and drew all
inferences in Dr. Bagic’s favor. Bagic, 773 F. App’x at 87. Applying this standard,
which is inapposite here, the Third Circuit ultimately concluded that discovery
supporting her allegations “could bolster Dr. Bagic’s claim.” Id. at 88 (emphasis
added). Notably, the Third Circuit’s decision was based on the allegation that
“[Defendant] Costello reported [Dr. Bagic’s] statements as a legitimate threat against
Noonan ‘solely based on her Croatian nationality and background[.]’” Id. So even
setting aside that the Third Circuit was addressing a motion to dismiss, the Third
Circuit’s analysis on which Dr. Bagic now relies explicitly assumed that Dr. Costello,
himself, discriminated against Dr. Bagic. The Court’s jury instruction was entirely
consistent with this analysis.
4
-5-
Case 2:18-cv-00511-NR Document 162 Filed 01/27/22 Page 6 of 8
adverse employment action and if such animus was a proximate cause of the ultimate
decision.” (citations omitted)).5
For these reasons, then, the Court determines that a new trial is not warranted
based on Dr. Bagic’s complaint with the jury instruction.
II.
The Court’s response to the jury’s question during deliberations was not
erroneous.
Dr. Bagic also argues that a new trial is appropriate because the Court erred
in responding to the jury’s written question, submitted during deliberations, on the
“legal definition” of “Croatian ethnicity.” Specifically, she asserts that the Court
erred by providing the jury with the answer that “Croatian ethnicity” means “the fact
of being Croatian.” See ECF 156-2, p. 1. The Court again disagrees with Dr. Bagic.
First, for similar reasons discussed above, Dr. Bagic waived the argument she
now raises. Before answering the jury’s question, the Court conferred with all counsel
to receive their input, as well as any objections. During this conferral process, Dr.
Bagic’s counsel provided his preferred definition of the term “ethnicity.”
See
11/19/2021 Trial Tr., pp. 9-12. Upon the Court deciding the response it would give
the jury, Dr. Bagic’s counsel did not object, but simply stated, “I would rather have
the broader definition, Your Honor, but I understand the Court’s position. I’ll just
note that for the record. That’s all.” Id. at p. 12. The Court finds that Dr. Bagic thus
waived her new objection raised now.
See, e.g., Bernard v. East Stroudsburg
University, No. 09-525, 2016 WL 755486, at *27 (M.D. Pa. Feb. 24, 2016) (“Where
Dr. Bagic cites several non-binding cases from other districts and circuits to support
her argument that the cat’s paw theory applies to her case (i.e., where the alleged
discrimination came from a non-supervisor). ECF 157, pp. 5-6; ECF 161, pp. 3-4. The
Court finds these cases unpersuasive, however, given the Third Circuit’s clear
emphasis that the discrimination come from a supervisor. At the very least,
considering the Third Circuit’s position on the cat’s paw theory, the Court finds that
the jury instruction was not a “substantial” error necessary to warrant a new trial.
Murray, 523 F. App’x at 902.
5
-6-
Case 2:18-cv-00511-NR Document 162 Filed 01/27/22 Page 7 of 8
counsel indicates begrudging acceptance of the court’s ruling, there has not been a
proper objection, and the ruling cannot be assigned as error on appeal.” (cleaned up)).
But even if Dr. Bagic had not waived her objection, she has failed to show that
the Court’s answer to the jury was erroneous. The Court based its response on the
common dictionary definition. See 11/19/2021 Trial Tr., pp. 11-12. And neither side
had any issues with relying on a dictionary to provide the response to the jury—in
fact, Dr. Bagic still relies on a dictionary definition in her argument here. ECF 157,
p. 7. Dr. Bagic’s dispute is simply that she disagrees with the definition the Court
used. But her current disagreement does not make the Court’s response erroneous.
See, e.g., Prum, 2016 WL 7201233, at *1 n.1 (“No litigant has a right to a jury
instruction of his choice, or precisely in the manner and words of his own preference.”
(cleaned up) (quoting Douglas v. Owens, 50 F.3d 1226, 1233 (3d Cir. 1995))).
Nor has Dr. Bagic shown that she was prejudiced by the answer the Court
provided the jury. Indeed, Dr. Bagic asserted at trial that Defendants discriminated
against her because they attributed a “warmongering” tendency to her because of her
ethnicity, and her serving as a soldier in an ethnic conflict. See ECF 156, ¶ 14
(“Plaintiff’s case was that the discrimination was against a Croatian based on the
discrimination bias of characteristics of Croatian[s] as being war-mongering.”). In
other words, according to Dr. Bagic’s claim, the crux of the discrimination was the
bias that Croatians are synonymous with being warmongering. But the Court’s
-7-
Case 2:18-cv-00511-NR Document 162 Filed 01/27/22 Page 8 of 8
response to the jury—“the fact of being Croatian”—in no way precluded the jury from
finding discrimination based on the alleged equation of Croatians as warmongering.
Thus, the Court’s response to the jury’s question was neither erroneous nor
requires a new trial.
********************************
For all of these reasons, this 27th day of January, 2022, the Court hereby
DENIES Plaintiff’s motion for a new trial. ECF 156.
BY THE COURT:
/s/ J. Nicholas Ranjan
United States District Judge
-8-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?