Kathy D. Kidd v. Commonwealth of Pennsylvania

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3447
KATHY D. KIDD,
Appellant
v.
COMMONWEALTH OF PENNSYLVANIA;
PENNSYLVANIA STATE POLICE;
BUREAU LIQUOR CONTROL ENFORCEMENT;
WILLIAM H. HAIRSTON; WALTER N. PETERSON;
JAN F. LLEWELLYN; THOMAS J. SWEETZ;
MICHAEL R. MOYER; NATHAN R. SAVAGE;
ROBERT MURRY; *KEITH KNOCK; 3 JANE/JOHN DOE., All but
Commonwealth of Pennsylvania, PSP/BLC
Defendants sued individually and in official
capacity. All Defendants held jointly and
severely liable
(*Amended per the Clerk order dated 12/07/01)
On Appeal from the Orders of the United States District Court
for the Eastern District of Pennsylvania, dated May 20, 1999, November 29, 2000,
and August 20, 2001, and from Judgment Entered July 11, 2001
Civ. No. 97-cv-5577
District Judge: Hon. Petrese B. Tucker
Submitted Pursuant to Third Circuit LAR 34.1
June 11, 2002
Before: SLOVITER, ROTH, MCKEE, Circuit Judges.
(Filed June 19, 2002 )
OPINION OF THE COURT
McKee, Circuit Judge.
Kathy Kidd brought various federal and state civil rights and employment
discrimination claims against the defendants in connection with her employment as a
Liquor Enforcement Officer at the Pennsylvania State Police Bureau of Liquor
Enforcement ("the Bureau"). The district court disposed of a number of issues in pretrial
rulings leaving only the Title VII sex harassment claim against the Bureau to proceed to
trial. A jury subsequently found the Bureau not guilty on that claim. Kidd’s motion for a
new trial was denied, and this appeal followed. For the reasons that follow, we will
affirm.
I.
Inasmuch as we write only for the parties, we need not set forth the factual
background of this dispute except insofar as may be helpful to our brief discussion.
We exercise plenary review over a district court’s order granting summary
judgment, see Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001), as
well as its order granting a motion to dismiss, see Morse v. Lower Merion School Dist.,
132 F.3d 902, 906 (3d Cir. 1997). A district court’s rulings regarding the admission of

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evidence are reviewed for an abuse of discretion. See Glass v. Philadelphia Electric Co.,
34 F.3d 188, 191 (3d Cir. 1994). The order denying a motion for a new trial is also
reviewed for an abuse of discretion. See Pryer v. Slavic, 251 F.3d 448, 453 (3d Cir.
2001).
II.
Kidd appeals the district court’s grant of summary judgment, and the district
court’s pre-trial evidentiary rulings. She also challenges the jury instructions and
interrogatories. We will address each issue in turn.
A. The Dispositive Motions
The district court granted summary judgment to defendant Moyer on Kidd’s civil
rights claim under 42 U.S.C. 1983. Kidd argues that Moyer, a co-worker, deprived her
of her rights under the Fourth and Fourteenth Amendments by unlawfully "seizing" her
when he allegedly pointed a loaded gun at her at work.
To prevail on a claim under Section 1983, a plaintiff must show that: 1) the
conduct was committed by a person acting under color of state law; and 2) the conduct
deprived the plaintiff of his or her constitutional rights. See 42 U.S.C. 1983; Anderson
v. Davila, 125 F.3d 148, 159 (3d Cir. 1997).
Moyer denies that the gun incident took place. The State Police conducted an
extensive investigation into the incident. They concluded that the six witnesses who
were in the squad room when Moyer allegedly pointed his gun at Kidd did not see the
alleged incident and could not corroborate Kidd’s story. The State Police concluded that
"[t]here exist[s] insufficient evidence to sustain the allegation that Officer Moyer pointed
a pistol at Officer Kidd." App. 2386. As Kidd has offered no additional evidence
beyond her unsupported allegations to corroborate her version of events, there was no
genuine issue of material fact that Moyer "seized" Kidd. Therefore, the district court
properly granted summary judgment in favor of Moyer on the Section 1983 claim.
Kidd also argues that defendants are liable for conspiracy to deprive her of equal
protection of the laws under 42 U.S.C. 1985. That section provides a cause of action to
a party where two or more people have conspired to deprive the plaintiff of the equal
protection of the laws. See 42 U.S.C. 1985(3) (2002). As Kidd can not show that
Moyer deprived her of any constitutional rights, Kidd’s Section 1985 conspiracy claim
must necessarily fail also.
Next, Kidd argues that the district court erred in granting summary judgment in
favor of the defendants on her Title VII retaliation claim. The district court found that
Kidd had not made out a prima facie case for retaliation in that she had not demonstrated
that the Bureau took any "adverse employment decision" against her.
Under Title VII, an employer may not retaliate against an employee for opposing a
practice that is unlawful under Title VII. See 42 U.S.C. 2000e-3(a) (2002). However,
in order to prevail on this claim, a plaintiff must first establish a prima facie case, which
consists of demonstrating: 1) protected employee activity; 2) an adverse employment
decision; and 3) a causal connection between the protected activity and the adverse
employment decision. See Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 201 (3d Cir.
1994). Moreover, under Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.
1997), the adverse employment decision must rise to the level of "alter[ing] the
employee’s compensation, terms, conditions, or privileges of employment, deprive[] him
or her of employment opportunities, or adversely affect[] his [or her] status as an
employee." Robinson, 120 F.3d at 1300 (internal quotation marks omitted). Derogatory
comments and unsubstantiated oral reprimands without more are not enough. See id.
Here, Kidd alleges that Moyer’s retaliation for her filing a sexual harassment
complaint was calling her a "Judas," a "rat," and pointing a loaded gun at her. As noted
above, the alleged retaliation must constitute an "adverse employment decision" within
the meaning of Title VII. Under Robinson, however, Moyer’s name-calling, even if true,
does not suffice. Further, as discussed earlier, we find that there is no genuine issue of
material fact that Moyer pointed a loaded gun at Kidd. Kidd’s claim of retaliation rests
only upon the alleged name calling. Therefore, the district court properly granted
summary judgment in favor of the defendants on the Title VII retaliation claim.
Next, Kidd argues that the district court erred in granting summary judgment in
favor of the defendants on her federal and state wiretapping claims. Both Pennsylvania
and federal law provide a cause of action where a person’s wire, electronic, or oral
communication has been intercepted in violation of the applicable statute. See 18 U.S.C.

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2520 (2002) (federal wiretapping statute); see also 18 Pa. Cons. Stat. 5725(a) (2002)
(state wiretapping statute). Under both federal and state law, the plaintiff must first show
that: 1) her oral communications were intercepted; 2) she had an expectation of privacy
in the communications; and 3) her expectation of privacy was justified. See Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (analyzing federal statute); Agnew v.
Dupler, 717 A.2d 519, 522 (Pa. 1998) (analyzing state statute).
Kidd alleges that she had a meeting with Murray and Savage where all three
agreed to tape record their conversation. Kidd alleges that after a time, Murray asked
that all tape recorders be turned off, but that he secretly kept his on. Kidd further alleges
that Murray later destroyed the evidence. However, once again, Kidd provides no
support beyond mere allegations that Murray’s tape player continued to record and that
he destroyed the recording. Further, she testified at her deposition that she could not
recall if she even said anything in the brief time Murray’s tape player was supposedly
recording in violation of the agreement not to record. A necessary element to the crime
of wiretapping is that an oral communication must have been intercepted, and as Kidd
does not know if she was speaking while the recorder was on, the district court properly
granted summary judgment in favor of defendants on the wiretapping claims.
B. Evidentiary Issues
Kidd argues that the district court improperly prevented her from introducing
evidence at trial during rebuttal regarding events predating January 1996. Kidd contends
that the district court’s November 29, 2000 Order stated that it would not allow her to
present this evidence in her case in chief, but that Kidd could present this evidence on
rebuttal if the defendants opened the door. Kidd contends that, contrary to the order, the
district court did not allow her to introduce necessary pre-1996 rebuttal evidence.
The record indicates that in a sidebar during re-direct, the judge told counsel that
he would allow Kidd to provide a brief explanation of her forced leave of absence in
1992, as defense counsel had touched on it during examination, but that Kidd would not
be allowed to give full details since it was not relevant to Kidd’s remaining post-1996
claims. App. 2630-2640. After the sidebar, Kidd was given the opportunity to testify
that she felt that her forced leave of absence was unjustified and that her allegations were
not afforded a proper and fair investigation. App. 2640. Moreover, Kidd was allowed to
testify that her firearm was eventually returned to her and she was returned to full duty.
App. 2640-41. Therefore, Kidd’s argument that she was not allowed to present any
rebuttal evidence regarding the forced leave of absence is plainly contradicted by the
record.
Next, Kidd argues that the district court erred in granting defendants’ motion in
limine to exclude the admission of testimony of four State Police employees. Kidd
sought to introduce testimony that these four witnesses had each brought complaints of
sexual harassment against the State Police, and that their supervisors forced them to
undergo psychological examinations in an effort to discredit them rather than
investigating the allegations. Kidd wanted to introduce this evidence to establish a
system-wide practice of ignoring sexual harassment complaints. The district court ruled
that the testimony was irrelevant to Kidd’s case, and thus inadmissible.
Two of the witnesses, Sharon Williams and Edwina Clarkson, were Bureau
officers, but did not work at the Allentown office where Kidd worked. Two of the other
witnesses, Robert Ward and Crystal Rogers, worked for the State Police, but not for the
Bureau, and not in Allentown. Therefore, none of the witnesses could testify from first-
hand knowledge about the relevant procedures in Allentown, where Kidd worked.
Kidd was ordered to undergo a psychological examination, but that occurred in
April 1992. This was well before she made any complaints regarding harassment, and
there is therefore no nexus between those events on this record. Moreover, she was not
ordered to undergo a new exam after she started making complaints in 1996. Any
testimony the four witnesses could provide regarding an order they received to take a
psychological exam after complaining of sexual harassment was therefore clearly not
relevant to Kidd’s situation. Accordingly, we find that the district court did not abuse its
discretion in excluding the testimony of the four witnesses.
Next, Kidd argues that the district court erred in excluding from evidence several
pieces of anonymous mail that were sent to her house. This consisted of sexually explicit
pictures as well as Corporal Hairston’s office notes.
Kidd argues that her inability to directly link the mailings to anyone at the Bureau

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is due to sub-par investigative work on the part of the police investigator. Kidd argues
that if the investigator had done a better job investigating the source of the mailings
would have been discovered as coming from within the Bureau. However, this is pure
conjecture that doesn’t merit further comment.
Moreover, the district court properly concluded that the notes were not relevant.
Therefore, there was not an abuse of discretion.
C. The Jury Instructions and Interrogatories
Kidd argues that the district court erroneously refused to allow her to submit a
jury charge on supervisor liability. She alleges that Corporal Hairston, her supervisor,
engaged in sexually harassing behavior by calling her a "bitch" on one occasion in the
midst of an argument with her. The district court correctly ruled as a matter of law that
the one-time use of this epithet under these circumstances was not sexual harassment.
Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998).
Kidd also argues that the district court erroneously rejected her proposed jury
instruction on supervisor liability. We review a jury charge "as a whole . . . to determine
if it fairly and adequately submitted the issues to the jury[.]" Pryer, 251 F.3d at 454,
quoting Griffiths v. CIGNA Corp., 988 F.2d 457, 462 (3d Cir. 1993). A jury charge is
inadequate "only if the instruction [is] capable of confusing and thereby misleading the
jury." Link v. Mercedes-Benz of North Am., Inc., 788 F.2d 918, 922 (3d Cir. 1986),
quoting United States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1195 (3d Cir. 1984).
Here, the district court instructed the jury that the plaintiff has the burden of
proving that "management level employees actually knew, or should have known, of the
sexually hostile work environment, and failed to take prompt and appropriate remedial
action to stop the sexual harassment." App. 079. The adequacy of Kidd’s proposed
instruction is not the threshold question. The district court was well within its discretion
in rejecting her proposed jury charge, and using its own language instead as it is an
accurate statement of the law.
Kidd also argues that the district court’s jury instructions were biased towards the
defendants. This is based on the fact that the district court largely used the Bureau’s
proposed instructions. Kidd also contends that the jury became confused because the
court incorrectly explained the burden of proof.
As noted above, we find that the charge submitted to the jury adequately stated the
law regarding supervisor liability, and therefore, regardless of whether the charge was
crafted by the defendants, there is no merit to the argument that it was biased towards the
defendants. It is true that on two occasions the court started to instruct that, "beyond a
reasonable doubt" was the standard for burden of proof. However, both times the court
immediately corrected itself and stated that the burden was a "preponderance of the
evidence." App. 3349, 3369. The judge also correctly and adequately explained the
preponderance of the evidence standard to the jury, and therefore no reasonable juror
could have been confused or misled. App. 3346-48.
Lastly, Kidd argues that the jury interrogatories were not specific enough.
However, a trial court has discretion in formulating jury interrogatories. See Armstrong
v. Dwyer, 155 F.3d 211, 216 (3d Cir. 1998). So long as the questions are adequate for a
"jury to determine the factual issues essential to the judgment[,]" a court is "not obliged
to distill these issues with any greater clarity." Id. at 216.
In conclusory fashion, Kidd states that these interrogatories were not sufficiently
detailed, but provides no explanation or rationale for her argument. We find that the
interrogatories were adequate, and that the district court did not err in denying Kidd’s
motion for a new trial.
Accordingly, for all the reasons set forth herein, we will affirm the district court’s
Orders dated May 20, 1999, November 29, 2000, and August 20, 2001, as well as the
judgment entered July 11, 2001.
TO THE CLERK:
Please file the foregoing opinion.
BY THE COURT:
/s/Theodore A. McKee
Circuit Judge

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