Terryn Risk v. Burgettstown Borough, Pennsylvania

Parties consented to jurisdiction by U.S. Magistrate Judge Lisa P. Lenihan*
pursuant to 28 U.S.C. § 636(a)(3). See Order Referring Case to Magistrate Judge Lisa
Pupo Lenihan, Risk v. Burgettstown Borough, Pennsylvania, No. 05-cv-01068 (W.D. Pa.
Sept. 27, 2005).
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4746
___________
TERRYN RISK,
v.
BURGETTSTOWN BOROUGH, PENNSYLVANIA,
Appellant.
_______________
Appeal from the United States District Court
for the Western District of Pennsylvania
(No. 05-cv-01068)
Magistrate Judge: Lisa P. Lenihan*
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 10, 2009
______________
Before: AMBRO, GARTH and ROTH, Circuit Judges.
(Opinion Filed: February 12, 2010)
___________
OPINION
___________

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GARTH, Circuit Judge:
Appellant Burgettstown Borough, Pennsylvania (“Borough”) appeals from the District
Court’s denial of its motion for judgment as a matter of law or for a new trial. We will
affirm.
I.
A.
Appellee Terryn Risk was employed by Borough as a police officer from October
2002 through March 5, 2005. From 2002 through the summer of 2004, Risk wore a small
cross-pin on the lapel of his police uniform while he was on duty as a sign of his strong
Christian beliefs. Risk freely discussed his religious convictions with Borough’s Chief of
Police George Roberts and his other colleagues on the police force.
In the summer of 2004, Chief Roberts told Risk to remove the cross-pin from the lapel
of his uniform. Risk complied with this request, but registered his protest to members of the
Burgettstown Borough Council, including Council President Pam Church and Council Police
Department Liaison Dan Johnson. Church and Johnson both told Risk that they had no
problem with his wearing a cross-pin on the lapel of his police uniform. Risk subsequently
began wearing the cross-pin again until Chief Roberts again asked him to remove it.
During Risk’s tenure with the police force, fellow officer Lieutenant Joseph Murray
was overheard by a local store clerk, Amy Prevost, speaking to another officer about Risk’s
religious beliefs in a derogatory manner. According to Prevost, Murray told the other officer

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to make sure he carried Tylenol along with him on his upcoming patrol with Risk, because
he was likely to get a headache from having to listen to Risk’s preaching about “church and
God.” Prevost subsequently reported this conversation to Chief Roberts and expressed
concern regarding the unfavorable characterization of Risk’s religious beliefs, but in
response Roberts merely laughed.
In fall 2004, members of the Borough Council began discussing the need to reduce
the number of officers in its police department for budgetary reasons. At the time, Borough
employed one full time police officer—Chief Roberts—and nine part-time officers, one of
whom was Risk. A study conducted by the Borough Council concluded that it would be
more economical for the town to employ two full-time officers and only three part-time
officers.
In November 2004, Chief Roberts was chatting with Prevost, and in the course of the
conversation they began discussing the impending cuts to the police force. Roberts asked
Prevost her opinion regarding which three of the department’s nine part-time officers should
be retained, and Prevost responded by naming Risk, Lt. Murray, and a third officer, Sergeant
August Modin. Roberts then commented that Risk would not be retained because his church
attendance interfered with his obligations to the police force. Prevost responded that she
didn’t think the Borough should get rid of a good officer just because he went to church.
Prevost subsequently informed Risk of her conversation with Chief Roberts. Risk
believed that Roberts’ comment about his church attendance interfering with his job,

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particularly in light of Roberts’ repeated requests that Risk remove his cross-pin, was
evidence of religious discrimination. Risk sought legal counsel, and on December 7, 2004,
Risk’s attorney drafted a letter, addressed to Chief Roberts and copying all members of the
Borough Council, requesting that Risk be permitted to wear the cross-pin on his uniform, and
asserting that firing Risk for the reasons articulated by Roberts in his conversation with
Prevost would constitute unlawful religious discrimination. Risk’s attorney attached a
written statement by Prevost outlining the contents of her conversation with Chief Roberts.
None of the letter’s recipients ever responded to Risk’s concerns.
On January 9, 2005, Borough removed Risk from the police officer’s duty schedule.
On February 16, 2005, Borough wrote to all police officers announcing that it would be
making cuts to the force based upon performance and availability. At that time, Risk
informed councilman and police liaison Johnson that he was “very available” to work. Risk
also wrote a letter to Chief Roberts stating that he was available to work every day.
On June 23, 2005, Borough officially notified Risk of his termination. In accordance
with the recommendation of the cost-study, Borough elected to retain three part-time officers
on the force. In addition to retaining Lt. Murray, Borough also retained two other part-time
officers: Price and Nichols. Significantly, Borough had hired Nichols in September 2004,
nearly two years after it had hired Risk.
When Risk had initially begun working as a Borough police officer in 2002, he had
applied for a waiver of the otherwise-mandatory training program, because he had already

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undergone a similar training program in preparation for his employment as a police officer
in Amsterdam, Ohio. At the time that Risk completed his waiver application, he was under
the impression that his training and experience in Ohio qualified him to waive out of the
Borough’s mandatory training program. Risk’s waiver application was accepted, and he was
certified to work as a Borough police officer without having to attend the training program.
In May 2006, more than a year after Borough had fired Risk, a Borough attorney
communicated with the Pennsylvania Municipal Police Officers’ Education and Training
Commission (“MPOETC”) with questions regarding the validity of Risk’s certification. This
led to an inquiry into whether Risk’s prior experience as a police officer in Ohio had been
sufficient to permit a waiver of training in Pennsylvania. The investigation concluded on
September 13, 2007, when the MPOETC determined that Risk’s certification had been issued
in error, since his Ohio police work was in fact not sufficient to entitle him to a waiver of
training requirement prior to his work for Borough. Notably, Risk was not found to be at
fault for the erroneous issuance of certification.
B.
On August 2, 2005, Risk filed a complaint against Borough asserting four causes of
action alleging violations of various constitutional rights, as well as violation of 42 U.S.C.
§1983. Risk later filed an amended complaint, which included Title VII counts of
discrimination and retaliation based upon religion. Risk also filed a second amended
complaint asserting a cause of action under the Pennsylvania Human Relations Act

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(“PHRA”), 43 P.C.S.A. §955(a), et seq.
In response, Borough filed a motion for summary judgment, which the District Court
granted in part and denied in part. The District Court granted summary judgment in favor
of Borough with respect to Risk’s constitutional claims, but denied the motion with respect
to Risk’s Title VII and PHRA claims.
The action proceeded to trial, which was held from March 24-27, 2008. At the
conclusion of the trial, the jury found in favor of Risk, concluding that Risk’s religion was
a determinative factor in Borough’s decision to terminate Risk’s employment. The jury
entered a verdict in favor of Risk in the amount of $100,000 in compensatory damages.
On May 29, 2008, Borough filed a motion for judgment as a matter of law pursuant
to Fed. R. Civ. P. 50(b), or for a new trial pursuant to Fed. R. Civ. P. 59. Borough argued
that it was entitled to judgment as a matter of law or, alternatively, a new trial, because the
District Court had committed reversible error in: (1) prohibiting Borough from using the fact
of Risk’s decertification to contest his establishment of a prima facie case of Title VII
discrimination; (2) admitting certain evidence during the trial; and (3) providing erroneous
instructions to the jury.
The District Court entered a memorandum and order on November 14, 2008,
denying in whole Borough’s motion for judgment as a matter of law or for a new trial.

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The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1343 and 421
U.S.C. §1983. We have jurisdiction pursuant to 28 U.S.C. §1291.
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Borough timely appealed. Inasmuch as the parties are familiar with all the details of this1
case and trial, we need not dwell at length on the various arguments asserted by Borough
and Risk.
II.
Borough argues that the District Court erred in prohibiting Borough from using
evidence of Risk’s ex post facto decertification to challenge the viability of Risk’s Title
VII claim. Borough submits that if it had been permitted to use evidence of the
decertification to challenge Risk’s Title VII claim, Risk would not have been able to
make out a prima facie case, and therefore it is entitled to judgment as a matter of law.
“We review a denial of judgment as a matter of law de novo, viewing the evidence
in the light most favorable to the prevailing party.” Acumed LLC v. Advanced Surgical
Svcs., Inc., 561 F.3d 199, 210 (3d Cir. 2009) (quoting Monteiro v. City of Elizabeth, 436
F.3d 397, 404 (3d Cir. 2006)) (alterations and quotation marks omitted).
A.
Risk advanced his Title VII claim under the “pretext” theory set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell
Douglas framework, in order to assert a prima facie Title VII claim, Risk was obligated to
produce evidence that: (1) he is a member of a protected class; (2) he was qualified for

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the position he sought to attain or retain; (3) he suffered an adverse employment action;
and (4) the action occurred under circumstances that could give rise to an inference of
intentional discrimination. McDonnell, 411 U.S. at 802; accord Sheridan v. E.I. DuPont
de Nemours & Co., 100 F.3d 1061, 1066 n.5 (3d Cir. 1996).
Borough acknowledges that Risk satisfied his burden with respect to elements (1),
(3), and (4), but contends that Risk failed to establish element (2), thereby dooming his
claim. To wit, Borough asserts that Risk cannot, as a matter of law, satisfy this
requirement—namely, to prove that he was qualified for the position of Burgettstown
municipal police officer at the time of the adverse action— because in 2007 the
MPOETC revoked Risk’s certification as a police officer upon reaching a determination
that his initial certification was issued in error. Borough argues that since Risk’s
certification was issued in error, the MPOETC’s determination effected a retroactive
revocation of Risk’s certification. As such, Risk was never actually qualified to work as a
police officer in Burgettstown, and therefore cannot satisfy element (2) of the McDonnell
Douglas rubric.
Borough’s argument fails pursuant to our holding in Bowers v. NCAA, 475 F.3d
524 (3d Cir. 2007). In Bowers, we relied upon the Supreme Court’s discussion of after-
acquired evidence in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352
(1995), in holding that after-acquired evidence cannot be used to contest a plaintiff’s

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Though Bowers addresses a claim under the Americans with Disabilities Act of2
1990, 42 U.S.C. §§ 12132, 12182 (“ADA”), Bowers’ discussion of the use of after-
acquired evidence to rebut the “qualification” element of an ADA claim is equally
applicable to the instant case, which involves a Title VII claim, since the prohibition of
using after-acquired evidence applies to both claims under the ADA and Title VII . See
Bowers v. NCAA, 475 F.3d 524, 537 (3d Cir. 2007) (citing to Mardell v. Harleysville
Life Ins. Co., 65 F.3d 1072 (3d Cir. 1995), a case involving a Title VII claim, when
discussing the prohibition of using after-acquired evidence to dispute the “qualification”
element of a discrimination claim).
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qualifications for purposes of establishing a prima facie case of discrimination. See2
Bowers, 475 F.3d at 536-37 (quoting McKennon, 513 U.S. at 360) (“It is clear that the
Defendants were completely unaware of Bowers’ [disqualifiers] at the time the allegedly
unlawful discrimination took place . . . . In turn, the Defendants could not have been
motivated by knowledge they did not have, and thus cannot now claim that Bowers was
deemed a nonqualifier because of his [after-discovered disqualifiers].”) (quotation marks,
alterations, and citations omitted).
Borough only became aware of the problem with Risk’s certification more than
two years after it had taken the adverse employment action upon which Risk’s Title VII
claim is founded, thereby rendering the fact of his faulty certification “after-acquired
evidence.” Thus, under Bowers, Borough was prohibited from using the fact of Risk’s
decertification to undermine his prima facie claim.
B.
Borough argues that Bowers should not control this issue because: (1) applying
Bowers to this case would conflict with our precedent; (2) our jurisprudence indicates that

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Bowers was in fact an incorrect interpretation of McKennon; and (3) various non-
controlling decisions by other courts dictate that we should overrule Bowers as an
incorrect application of McKennon.
We find these arguments unavailing. The District Court correctly held that, under
Bowers, such after-acquired evidence cannot be used by Borough as a means to contest
Risk’s qualifications as a police officer for the purposes of establishing Risk’s prima facie
discrimination claim. We therefore hold that the District Court was correct in prohibiting
Borough from challenging Risk’s prima facie Title VII claim with the fact of his
decertification.
III.
Borough contends that the District Court erred in admitting certain pieces of
evidence, and that without such evidence, the jury’s verdict in favor of Risk could not
have been sustained, thereby entitling Borough to judgment as a matter of law or,
alternatively, a new trial. We hold that the District Court did not err in admitting any of
the evidence contested by Borough.
A.
Borough argues that the District Court committed an error of law in allowing Risk
to offer testimony concerning his decertification from the Burgettstown police force.
However, as evidenced by the trial record, Risk’s testimony regarding his decertification

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Indeed, Risk admitted in open court that he had been decertified subsequent to his3
termination. See App. at 140-41.
The Police Tenure Act provides, in pertinent part:4
If, for reasons of economy or other reasons, it shall be deemed necessary by any
township of the second class, or any borough or township of the first class within
the scope of this act, to reduce the number of paid employees of the police
department, then such political subdivision shall apply the following procedure:
[...] If the number of paid employees in the police force eligible to retirement is
sufficient to effect the necessary reduction in number, or if there are no persons
eligible for retirement, or if no retirement or pension fund exists, then the
reduction shall be effected by furloughing the man or men, including probationers,
last appointed to said police force. Such removal shall be accomplished by
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was not offered for the purpose of contesting the validity of the decision to decertify him.3
See App. at 505-11. Instead, Risk’s testimony was offered to buttress his credibility by
clarifying that he did not intentionally or knowingly mislead the MPOETC when applying
for certification in Pennsylvania, and that he was not at fault for the confusion regarding
his certification.
It is well-established that the doctrines of issue preclusion and collateral estoppel
operate to preclude relitigation of an issue that has been previously decided. New
Hampshire v. Maine, 532 U.S. 742, 748-49 (2001). Since Risk did not attempt to
relitigate any of the issues surrounding his decertification, his testimony on that topic was
not precluded, and the District Court correctly admitted it.
B.
Pursuant to a request by Risk, the District Court took judicial notice of The
Pennsylvania Police Tenure Act, 53 Pa. Cons. Stat. Ann. §§ 811-15 (“PTA”), “solely4

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furloughing in numerical order, commencing with the man last appointed, until
such reduction shall have been accomplished.
53 Pa. Cons. Stat. Ann. § 813.
The Borough Code provides, in pertinent part:5
If for reasons of economy or other reasons it shall be deemed necessary by any
borough to reduce the number of paid employees of the police or fire force, then
such borough shall apply the following procedure: [...] if the number of paid
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because its seniority provisions were relevant to pretext; that is, layoffs must occur in
reverse order of seniority, and Risk had been hired before others who were not
furloughed.” App. at 7.
The PTA, by its terms, applies only to boroughs with a police force of fewer than
three members. 53 Pa. Cons. Stat. Ann. § 811. Burgettstown had a total of ten members
on its police force at the time of Risk’s termination. Borough argues that in taking
judicial notice of the PTA, and in charging the jury that it could find that Borough’s
explanation for terminating Risk was pretext if it found that the seniority protocol
mandated by the PTA was not followed, the District Court committed an error of law.
While Borough is correct in that the PTA does not govern the employment
procedures of Burgettstown’s police force, we note that such procedures are instead
governed by the Pennsylvania Borough Code, 53 Pa. Cons. Stat. Ann. §§ 46171 et seq.
(“Borough Code”), which applies to boroughs with police departments comprised of three
or more members. Id. at §46171. Significantly, the Borough Code mandates precisely
the same seniority protocol as the PTA. See id. at § 46190. Thus, the District Court’s5

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employees in the police force or fire force eligible to retirement is insufficient to
effect the necessary reduction in numbers, or if there are no persons eligible for
retirement, or if no retirement or pension fund exists, then the reduction shall be
effected by furloughing the person or persons, including probationers, last
appointed to the respective force. Such removal shall be accomplished by
furloughing in numerical order commencing with the person last appointed until
such reduction shall have been accomplished.
53 Pa. Cons. Stat. Ann. § 46190.
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jury instruction regarding the PTA was in fact harmless, since regardless of whether the
PTA or the Borough Code applies, the substance of the District Court’s instruction was
correct—namely, that as a matter of law, Risk was protected by the seniority furlough
provisions that were ignored by Borough in terminating Risk.
Accordingly, we hold that the District Court did not commit reversible error in
taking judicial notice of the PTA rather than the Borough Code. See Abrams v.
Lightolier Inc., 50 F.3d 1204, 1213 (3d Cir. 1995) (“errors in the admission...of evidence
cannot be grounds for reversal or a new trial if they constitute harmless error”).
C. Cross-Pin
During pre-trial motion practice, the District Court granted Borough’s motion for
summary judgment on Risk’s constitutional claims, ruling that Risk could “premise no
claim of constitutional violation on a restriction of his right to wear a symbol of his
Christian beliefs on the lapel of his police uniform while performing his duties in the
community with the significant government authority invested by his office.” App. at 98.
Nevertheless, the District Court permitted Risk to introduce evidence regarding the cross-

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pin and Chief Roberts’ request that it be removed. The District Court also instructed the
jury that it could “consider the fact that the Chief of Police asked Mr. Risk to remove his
cross pin as evidence of discriminatory animus.”
The mere fact that Chief Roberts’ request that Risk remove his cross-pin was
constitutionally permissible does not preclude Risk from pointing to that action as
evidence of discriminatory animus in support of his Title VII claim. Cf. Daniels v. City
of Arlington, Texas, 246 F.3d 500, 506 (5th Cir. 2001) (holding, in the face of the police
department’s constitutionally permitted regulation prohibiting the wearing of cross-pins,
that the police officer asserted sufficient evidence to establish a prima facie Title VII
claim against the department). Accordingly, the District Court did not err in admitting
evidence regarding Risk’s cross-pin and Chief Roberts’ reaction to that pin.
D.
Borough argues that the District Court erred in admitting the testimony of Amy
Prevost, a clerk at a local mini-mart, regarding: (1) a conversation Prevost overheard
wherein Lieutenant Murray spoke disparagingly of Risk’s religious beliefs; (2) and a
conversation that Prevost had with Chief Roberts wherein Roberts made statements
relating to Risk’s work performance. According to Borough, the statements attributed to
Murray and Roberts are inadmissible hearsay, and therefore should not have been allowed
by the District Court.
Borough is incorrect. “Hearsay is a statement, other than one made by the

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declarant while testifying at the trial or hearing, offered into evidence to prove the truth of
the matter asserted.” Fed. R. Evid. 801(c) (emphasis added). Since the statements
attributed to Murray and Roberts were not offered to prove the truth of the matter asserted
by each respective statement, they are not hearsay. See Abrams, 50 F.3d at 1218 n.16
(“[W]e are persuaded that [the witness’] testimony that he heard of the decision to
terminate [the plaintiff] from someone else could have been admitted as nonhearsay as it
was not offered for the truth of the matter asserted ( [i.e.,] that [the plaintiff] was being
terminated) but [rather] as evidence that [a third party], and not [the witness], had made
the termination decision . . .”).
Prevost’s testimony regarding the statements made by Murray and Roberts was not
hearsay. The District Court therefore did not err in admitting the testimony.
IV.
Borough asserts that the District Court erred in its jury instructions regarding: (1)
the Police Tenure Act; (2) the cross-pin; (3) Borough’s workplace culture; and (4) the
non-production of recordings of Borough Council meetings, and as a result of those
errors, Borough is entitled to a new trial.
“Where the challenge to a jury instruction is a challenge to the instruction’s
statement of a legal standard, we exercise plenary review.” United States v. Urban, 404
F.3d 754, 779 (3d Cir. 2005) (quoting United States v. Zehrbach, 47 F.3d 1252, 1260,
1264 (3d Cir. 1995)) (quotation marks and citation omitted). We have carefully examined

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all of the jury instructions and Borough’s objections to those instructions, and conclude
that the District Court did not commit reversible error regarding its instructions to the
jury.
V.
Based on the foregoing, we hold that the District Court did not err in denying
Borough’s motion for judgment as a matter of law or for a new trial, and we will affirm
its judgment dated November 14, 2008.

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