Becker v. Arco Chemical Co ( 2000 )

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit
3-20-2000
Becker v Arco Chemical Co
Precedential or Non-Precedential:
Docket 98-1636 and 98-1888
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Filed March 20, 2000
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 98-1636 and 98-1888
WILLIAM P. BECKER
v.
ARCO CHEMICAL COMPANY,
Appellant in No. 98-1636
WILLIAM P. BECKER
v.
ARCO CHEMICAL COMPANY,
William P. Becker,
Appellant in No. 98-1888
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Judge: Honorable Eduardo C. Robreno
(D.C. Civil No. 95-07191)
Argued January 27, 2000
BEFORE: GREENBERG, ROTH, and STAPLETON,
Circuit Judges
(Filed: March 20, 2000)
George P. Wood (argued)
Carmen R. Matos (argued)
Stewart, Wood, Branca & Matos
411 Cherry Street
Norristown, PA 19401
Attorneys for William P. Becker
Maureen M. Rayborn
Daniel V. Johns (argued)
Niza M. Motola
Ballard Spahr Andrews &
Ingersoll, LLP
1735 Market Street, 51st Floor
Philadelphia, PA 19103-7599
Attorneys for ARCO Chemical
Company
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter is before this court on an appeal from an
order denying defendant ARCO Chemical Company's
("ARCO") motion for judgment as a matter of law, or in the
alternative, for a new trial, or in the alternative, for a
remittitur, entered on June 30, 1998, in this employment
discrimination case following a jury verdict in favor of the
plaintiff, William P. Becker ("Becker"). See Becker v. ARCO
Chem. Co., 15 F. Supp. 2d 600, 621 (E.D. Pa. 1998) ("Becker
I"). Becker cross-appeals from the district court's order of
July 23, 1998,1 which granted in part and denied in part
his motion to "mold" the verdict to include post-trial
_________________________________________________________________
1. On August 31, 1998, the district court entered an order denying
Becker's motion for reconsideration of its July 23, 1998 order. While
Becker's notice of appeal recites that it is from the orders of July 23,
1998, and August 31, 1998, effectively the cross-appeal is from the July
23, 1998 order on the fee petition and motion to"mold" the verdict.
2
interest on the front pay award and pre-trial interest on the
back pay award, and to reflect adverse tax consequences
Becker suffered by virtue of the lump sum damages award
on his age discrimination claims. See Becker v. ARCO
Chem. Co., 15 F. Supp. 2d 621, 639-40 (E.D. Pa. 1998)
("Becker II"). Becker also cross-appeals from that aspect of
the district court's July 23, 1998 order which granted in
part and denied in part his petition for attorney's fees and
costs. Id.
Plaintiff sued ARCO under the Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C. SS 621 et seq., and the
Pennsylvania Human Relations Act ("PHRA"), Pa. Stat.
Ann., tit. 43, SS 951 et seq. (West 1991), contending that
ARCO discriminated against him on the basis of his age by
terminating his employment with the company on March 4,
1994. At the time of his discharge, Becker was 51 years
old. After an 11-day trial which resulted in a verdict in
Becker's favor, the district court on November 4, 1997,
entered a judgment of $736,095.00 for Becker on the verdict.2
While the appeal and cross-appeal raise several
allegations of error, we only need address one issue--
whether ARCO is entitled to a new trial under Fed. R. Civ.
P. 59(a) based on the district court's admission, over
ARCO's repeated objections, of Becker's testimony
pertaining to the "manner" in which ARCO allegedly earlier
had terminated another employee, Linwood Seaver. For
convenience, we refer to Becker's testimony in this regard
as "the Seaver evidence." ARCO contends that the
admission of this evidence violated Fed. R. Evid.
(hereinafter cited in the text as "Rule") 404(b), 403, and
608(b), and that the district court's error in admitting the
testimony was not harmless.
For the reasons that follow, we hold that the district
court erred by admitting the Seaver evidence pursuant to
Rule 404(b). We also conclude that Rule 608(b) clearly does
not provide a basis for introducing Becker's testimony on
this point. Moreover, based on the record presented, we
_________________________________________________________________
2. The total judgment represented the following amounts: (1)
$186,095.00 in back pay; (2) $380,000.00 in front pay; and (3)
$170,000.00 in compensatory damages.
3
cannot say that it is highly probable that the district court's
admission of this evidence did not affect ARCO's
substantial rights. See McQueeney v. Wilmington Trust Co.,
779 F.2d 916, 924, 927-28 (3d Cir. 1985). Hence, the
district court's erroneous evidentiary ruling requires us to
reverse its order of June 30, 1998, insofar as it denied
ARCO's motion for a new trial, and remand the matter to
the district court with directions to grant a new trial on the
age discrimination claims as to all issues. See id. at 931.
Because we are remanding the matter for a new trial in its
entirety, we will dismiss Becker's cross-appeal as moot, and
we will not address ARCO's additional arguments presented
in its appeal.3 See J&R Ice Cream Corp. v. California
Smoothie Licensing Corp., 31 F.3d 1259, 1266 (3d Cir.
1994).
II. JURISDICTION and STANDARD OF REVIEW
The district court exercised subject matter jurisdiction
over Becker's ADEA claim pursuant to 28 U.S.C. S 1331,
and had supplemental jurisdiction over the PHRA claim
pursuant to 28 U.S.C. S 1367. We exercise appellate
jurisdiction over this appeal pursuant to 28 U.S.C.S 1291.
_________________________________________________________________
3. At the outset, we note that ARCO has not challenged that aspect of
the district court's opinion and order denying its motion for judgment as
a matter of law pursuant to Fed. R. Civ. P. 50(b) based on the sufficiency
of Becker's evidence of age discrimination. See Becker I, 15 F. Supp. 2d
at 606-09. Therefore, we will not consider whether ARCO is entitled to
judgment as a matter of law on that basis. We also note that we have
considered whether we could grant a partial new trial limited to the issue
of ARCO's liability for age discrimination, but it is apparent to us that
the issues of liability and damages are so intertwined that a new trial in
its entirety is warranted in the circumstances. See Vizzini v. Ford Motor
Co., 569 F.2d 754, 760 (3d Cir. 1977) (discussing circumstances in
which court may grant partial new trial) (quoting Gasoline Prods. Co. v.
Champlin Ref. Co., 283 U.S. 494, 500, 51 S. Ct. 513, 515 (1931)); 11
Charles Alan Wright, et al., Federal Practice and Procedure, S 2814, at
150 (2d ed. 1995) ("It therefore now may be regarded as settled that if an
error at trial requires a new trial on one issue, but this issue is
separate
from the other issues in the case and the error did not affect the
determination of the other issues, the scope of the new trial may be
limited to the single issue.").
4
In Bhaya v. Westinghouse Electric Corp., 922 F.2d 184
(3d Cir. 1990), we explained that when reviewing the
district court's decision to grant or deny a motion for a new
trial, we must give substantial deference to the trial judge's
decision " ``who saw and heard the witnesses and has the
feel of the case which no appellate printed transcript can
impart.' " Id. at 187 (quoting Cone v. West Virginia Pulp &
Paper Co., 330 U.S. 212, 216, 67 S. Ct. 752, 755 (1947)).
We also stated that "[p]articular deference" is appropriate
where the decision to grant or deny a new trial rested on
the district court's evidentiary ruling that itself was
entrusted to the trial court's discretion. See id.; see also
Link v. Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 921-22
(3d Cir. 1986) ("Where a contention for a new trial is based
on the admissibility of evidence, the trial court has great
discretion . . . which will not be disturbed on appeal absent
a finding of abuse.") (internal quotation marks omitted).
We have indicated that a finding of reversible error " ``may
not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is
affected.' " See Glass v. Philadelphia Elec. Co., 34 F.3d 188,
191 (3d Cir. 1994) (quoting Linkstrom v. Golden T. Farms,
883 F.2d 269, 269 (3d Cir. 1989)); see also Fed. R. Evid.
103(a); Fed. R. Civ. P. 61. "In reviewing evidentiary rulings,
if we find nonconstitutional error in a civil suit, such error
is harmless only ``if it is highly probable that the error did
not affect the outcome of the case.' " Glass, 34 F.3d at 191
(quoting Lockhart v. Westinghouse Credit Corp. , 879 F.2d
43, 53, 59 (3d Cir. 1989)).
We review the district court's decision to admit evidence
of a party's "prior bad acts" (which we will call "Rule 404(b)
evidence") under Rules 404(b) and 403 for an abuse of
discretion. See United States v. Morley, 199 F.3d 129, 133
n.6 (3d Cir. 1999); J&R Ice Cream, 31 F.3d at 1268; see
also Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 110
(3d Cir. 1999) ("We review evidentiary rulings for abuse of
discretion . . . with substantial deference under Rule 403.")
(citation omitted); United States v. Balter, 91 F.3d 427, 437
(3d Cir. 1996) ("Trial court rulings under Rule 404(b) are
reviewed for an abuse of discretion and may be reversed
only when they are ``clearly contrary to reason and not
5
justified by the evidence.' ") (quoting United States v.
Bethancourt, 65 F.3d 1074, 1079 (3d Cir. 1995) (citation
omitted)). Where, however, the district court fails to explain
its grounds for denying a Rule 403 objection and its
reasons for doing so are not otherwise apparent from the
record, there is no way to review its discretion. See United
States v. Himelwright, 42 F.3d 777, 781 (3d Cir. 1994). In
those circumstances, we need not defer to the district
court's ruling, and we may undertake to examine the record
and perform the required balancing ourselves. See id.; see
also United States v. Sriyuth, 98 F.3d 739, 745 n.9 (3d Cir.
1996).
III. FACTS and PROCEEDINGS
A. Statement of Facts
We recite the germane facts from Becker's perspective as
the verdict winner. See J&R Ice Cream, 31 F.3d at 1262.
ARCO's predecessor, Sinclair-Koppers Company, hired
Becker as a chemist in its Product Development
Department in 1970. In 1980, Becker transferred to ARCO's
headquarters in Newtown Square, Pennsylvania, where the
company assigned him to work in the physical testing
laboratory until his discharge in March 1994. The physical
testing laboratory is a part of ARCO's Chemical Research
Services Group, which in turn is part of ARCO's Research
and Development Department ("RDD"). At the time of
Becker's discharge in 1994, Andrew Goldsmith
("Goldsmith") was Manager of the Research Services Group,
and James Victor ("Victor") was the Manager of the
Chemical Analysis and Physical Testing Laboratories. Victor
was Becker's immediate supervisor, and Goldsmith was
Victor's immediate supervisor and Becker's "second-level
supervisor." Goldsmith's predecessor in his position was
Dr. Kermit Ramey ("Ramey"), who retired from ARCO in
1992.
The physical testing laboratory conducted routine
strength and durability tests on various materials used in
a variety of products. ARCO employed Becker as a"Senior
Principal Scientist," and in that capacity, he supervised
6
three professionals, ten laboratory technicians and was
responsible for testing thousands of samples. As the
laboratory supervisor, Becker's responsibilities also
included providing test results to ARCO's in-house
customers that had submitted the samples for testing.
Becker's position additionally required him to submit
reports to his superiors which detailed his laboratory
activities during specific time periods. App. at 2849.4
In each year of his employment with ARCO, Becker
received written performance evaluations, which he
submitted for the jury's consideration. In each performance
evaluation Becker's overall ratings from 1970 to 1993 were
average, above average, and in some years, superior.
Moreover, each year from 1970 to 1993, ARCO increased
Becker's salary either by a merit increase or a bonus. Even
in his last year of employment, ARCO awarded Becker a
one percent bonus.
Becker testified at trial that in May 1985, Kermit Ramey,
then the Manager of the Research Services Group, told him
that he was going to have a new supervisor, James Victor.
According to Becker, Ramey told him that Dr. James
Connor ("Connor"), Vice President of the RDD,"want[ed] to
have younger people in management, [and] therefore, Jim
Victor is going to be your new boss." App. at 2835.
Becker also testified that in March 1987, Victor advised
him during a telephone conversation about Becker's 1986
performance review that "he [had] to knock[him] down a
notch." App. at 2838. According to Becker, Victor stated
that he was taking Becker "off the fast track," because
"younger people are complaining because you older guys
are getting all the money allocated for the merit budget."
App. at 2839. Becker testified at trial that he was left with
the impression after his conversation with Victor that he
(Becker) was one of those "old guys," and that he was "in a
pretty bad spot" at that point. Id.
_________________________________________________________________
4. Throughout this opinion, we cite the Joint Appendix as "App. at ___."
Similarly we refer to the trial exhibits, which are bound and paginated
separately, as "TE at ___." Also, we refer to the parties' briefs in the
appeal from ARCO's post-trial motion as "Appellant ARCO's Br. at ___"
and "Appellee Becker's Br. at ___."
7
Becker testified that in August 1990, he met with Ramey
and Victor and discussed Linwood Seaver's work
performance. According to Becker, Ramey asked Becker to
confirm his (Ramey's) understanding concerning certain
aspects of Seaver's work on the "Fibersorb project," a
project that Becker had supervised. Becker testified at trial
that Ramey asked him if he recalled that the project was a
"disaster," with bad data and poor test results. Becker
further testified that he told Ramey that he could not
confirm Ramey's impression in that regard because it was
completely contrary to his (Becker's) recollection of the
results achieved on the project. Becker testified that Ramey
said in response that "it doesn't make any difference
anyhow, Seaver isn't coming back here regardless. He's
fired and that's that." App. at 3232-33.
The record also reflects that in late 1991, ARCO offered
certain employees an early retirement package. ARCO
approached Becker with the offer, but he rejected it
because he wanted to continue working for the company.
App. at 2840; app. at 3255. Becker discussed the
retirement package with Victor, and specifically addressed
the reasons why he could not accept the offer. Becker
explained that he "loved his job," "could not afford to
retire," and that he planned on remaining at ARCO"for the
duration." App. at 2842. According to Becker, Victor was
"upset" at Becker's comments concerning his hopes of
continued employment at ARCO, see id., and was "aloof
and standoffish" towards him after that conversation. App.
at 2843.
Testimony adduced at trial shows that in Becker's 1991
performance evaluation (completed in February 1992),
Victor criticized Becker's handling of certain aspects of "the
dylark test" that Becker performed during October 1991.
App. at 2850-52. Becker described dylark as a "plastic
material that can be molded into different shapes." Becker's
principal responsibility in conducting the dylark test was to
test the product's strength so that the material could be
compared meaningfully to a competitor's similar plastic
material. App. at 2843. Becker testified that he completed
the tests in what he considered to be a timely manner, and
reported their results to the customer. Nevertheless, Victor
8
criticized Becker's performance of the dylark test, stating
that Becker's "personal credibility was damaged" because
he failed to provide test data as promised and failed to
communicate fully the details of the testing to the
customer. TE at 154.
After Victor refused to retract his negative comments in
Becker's 1991 evaluation, Becker filed an Employee
Problem Resolution ("EPR") appeal. ARCO designed the EPR
process to assist employees with resolving employment
performance issues without fear of reprisal. Apparently,
ARCO did not resolve Becker's EPR appeal concerning his
1991 evaluation to his satisfaction. App. at 2856.
According to Becker, in July 1992, he found a note on
his desk in the morning when he came to work. The note
said "Congradulations [sic], short timer. ha ha." TE at 502.
He took the note as meaning that he would not be
employed at ARCO much longer. Becker did not know who
put the note on his desk, but he had it notarized to prove
that he received it that day.
In June 1993, Dr. Kenneth McDaniel ("McDaniel") and
Dr. Andrew Thompson ("Thompson"), two of Becker's ARCO
customers, expressed dissatisfaction with the timeliness of
certain foam samples submitted to Becker's laboratory.
App. at 3095-96. Apparently, McDaniel and Thompsonfirst
mentioned the perceived problems to their supervisor, Dr.
John Televantos ("Televantos"). App. at 3112. Televantos, in
turn, orally communicated these complaints and his own
dissatisfaction with the physical testing laboratory to
Becker's second-level supervisor, Goldsmith. App. at 3095-
98. Later, both McDaniel and Thompson wrote memoranda
which memorialized their complaints and the basis for
them. TE at 35-36. Specifically, both McDaniel and
Thompson complained that the slow turnaround time in
Becker's laboratory caused them to transfer the necessary
testing work to ARCO's South Charleston, West Virginia,
facility.
Sometime shortly after Goldsmith and Victor learned of
the customers' complaints about Becker's laboratory, they
consulted the Director of the Employee Assistance Program,
David Sullivan, Ed. D. ("Sullivan"), and the Human
9
Resources Director, Ronald Shearer ("Shearer"), about the
situation. Subsequently, Goldsmith and Victor told Becker
that he was required to meet with Sullivan to discuss the
basis for his performance problems. TE at 39. It appears
from the record that McDaniel and Thompson wrote their
memoranda to document their complaints around the same
time frame that Goldsmith and Victor referred Becker for
the evaluation. App. at 3132. Becker's supervisors,
however, did not provide him with copies of the written
complaints prior to his first meeting with Sullivan. App. at
1115.
Becker met with Sullivan twice in July 1993. Sullivan's
notes indicate that he believed that Becker was under
stress related to work and the alleged customer complaints,
but that he "exhibited no signs of dysfunction," and thus
was "capable of carrying out his duties." TE at 525. In view
of the customer complaints and his supervisors' referral for
the psychological evaluation, Becker feared at this point
that his position was in jeopardy. Becker clearly was
distressed by the fact that his supervisors required him to
consult with Sullivan.
In response to the McDaniel and Thompson memoranda,
Becker submitted written "rebuttals" directed to his
customers and supervisors. In those memoranda, Becker
explained his position and characterized the customers'
data and ultimate conclusions concerning his work as
inaccurate and without merit. TE at 42-47; see also TE at
566-84. Becker wrote these rebuttals in January 1994,
after he met with Sullivan.
Early on March 4, 1994, Victor, Goldsmith and Shearer
met with Becker and informed him that he was terminated
effective immediately. App. at 2865. Insofar as we can
ascertain, ARCO took this step without prior warning. As
might be expected, Becker, who had been employed by
ARCO and its predecessors for about 24 years, was
shocked by this treatment. In a letter dated March 4, 1994,
Shearer confirmed Becker's dismissal, and referred to
unresolved "performance issues" as its basis. TE at 637.
ARCO's brief explains that Goldsmith and Victor decided in
early 1994 to fire Becker because of Becker's (1) repeated
problems with his customers; (2) continual refusal to
10
respond "constructively" to customer complaints; and (3)
"apparent obsession with creating and distributing
confrontational and often insulting rebuttal memoranda."
Appellant ARCO's Br. at 15.
According to Becker's theory at the trial, his customers
fabricated the alleged problems with his laboratory at his
supervisors' direction. Thus, in Becker's view, the
customers' complaints were "trumped up" so that ARCO
could cite them as a legitimate basis for terminating his
employment. See Appellee Becker's Br. at 10; app. at 3132;
app. at 3274-76. Thus, the validity of the customer
complaints which allegedly served as part of the
justification for Becker's dismissal became a central issue
in the case.
Robert Smith ("Smith"), a laboratory technician, replaced
Becker almost immediately after Becker's termination.
Smith was 43 years old at the time of his promotion to
Becker's position. Becker had hired and trained Smith, and
was primarily responsible for his performance reviews.
Appellee Becker's Br. at 11; app. at 2876-77. According to
Becker, Smith was a very accurate and good technician,
but he lacked the level of Becker's technical expertise and
knowledge. Moreover, Becker also had indicated in Smith's
1993 evaluation that he needed to develop further his
interpersonal skills. Id. at 2877.
ARCO offered to make Becker a lump sum payment
"equal to 24 weeks of [Becker's] base pay, minus applicable
withholdings," contingent on his signing a separation
agreement requiring him, inter alia, to waive any future age
discrimination claim against ARCO. Thus, ARCO offered
Becker one week's pay for every year he had worked for
ARCO or its predecessor. ARCO also said that it would pay
him "four weeks' pay" and pay him for 30 days of unused
vacation time. These payments were not contingent on
Becker signing the release. Becker refused to sign the
waiver, and subsequently filed this suit.
B. Procedural History
Becker filed his complaint in the district court on
November 15, 1995, alleging violations of the ADEA (count
11
1) and the PHRA (count 2), and asserting a state law claim
for intentional infliction of emotional distress (count 3). The
district court granted ARCO's motion for summary
judgment on the intentional infliction of emotional distress
claim by order entered July 1, 1997, but denied its motion
as to the state and federal age discrimination claims. App.
at 602-06. The remaining counts proceeded to a singular
trial on liability and damages. On November 3, 1997, the
jury found that ARCO violated the ADEA and the PHRA by
terminating plaintiff 's employment, and awarded Becker
$736,095.00 in damages.
Subsequently, the parties filed post-trial motions, the
dispositions of which are the basis for these appeals. First,
ARCO filed a motion for judgment as a matter of law
pursuant to Fed. R. Civ. P. 50(b), or in the alternative for a
new trial pursuant to Fed. R. Civ. P. 59(a), or in the
alternative for a remittitur. The district court denied
ARCO's motion in its entirety by memorandum opinion and
order entered June 30, 1998. See Becker I, 15 F. Supp. 2d
at 600. Second, Becker petitioned the district court for an
award of $562,421.25 in attorney's fees and $36,613.95 in
costs, and filed a separate motion to "mold" the verdict to
include post-trial interest on the front pay award and pre-
trial interest on the back pay award, and to reflect adverse
tax consequences he suffered by reason of receiving his
back pay and front pay award in a lump sum. By
memorandum opinion and order entered July 23, 1998, the
district court granted in part and denied in part Becker's
petition for attorney's fees and costs, and his motion to
mold the verdict. See Becker II, 15 F. Supp. 2d at 621. Then
on August 31, 1998, the district court entered an order
denying plaintiff 's motion for reconsideration of the prior
July 23, 1998 order in Becker II.
ARCO appeals from the district court's order in Becker I,
and Becker cross-appeals from the district court's order in
Becker II and its order denying reconsideration. Becker
does not appeal from the summary judgment on the
intentional infliction of emotional distress claim.
IV. DISCUSSION
ARCO contends that it is entitled to a new trial on the
federal and state age discrimination claims based in part on
12
the district court's erroneous admission of certain evidence
pertaining to the circumstances surrounding ARCO's
discharge of Becker's co-employee, Linwood Seaver. ARCO
contends that the court should have excluded the evidence
pursuant to Rules 404(b), 403 and 608(b). Principally, it
claims that there was not a proper basis under Rule 404(b)
for admitting the "manner" in which ARCO terminated
Seaver. Alternatively, it argues that assuming arguendo
that Rule 404(b) permitted the evidence's admission, the
district court should have excluded it under a balancing
analysis pursuant to Rule 403.
As previously mentioned, the district court permitted
Becker to testify that, in August 1990, in connection with
ARCO's dismissal of Seaver, Ramey asked Becker to
confirm Ramey's understanding regarding the outcome of
the "Fibersorb project," a project on which Seaver had
worked and Becker had supervised personally. Specifically,
Ramey asked Becker to confirm Ramey's understanding
that the project was unsuccessful, which in turn obviously
reflected poorly on Seaver. Becker's testimony on this point,
in its entirety, is as follows:
Q. Now, I have another question about--taking you
back in time, if I may, to the time period of 1990,
around the time period of 1990, did there come a
time when you had a meeting with Dr. Ramey and
Mr. Victor regarding another ARCO employee?
A. Yes.
Q. And can you tell the jury and his Honor about that
briefly?
A. Yes, I was asked by Mr. Victor to come to Dr.
Ramey's office. It was in the early afternoon of
August the 15th. Mr. Victor was there with Dr.
Ramey. Dr. Ramey handed me a letter that Mr.
Seaver had written to Dr. Griffith, the vice
president of research and development. Dr. Ramey
said that he wanted me just to focus on the part of
the letter that had to do with Fibersorb and that
Dr. Ramey wanted--needed to respond back to Dr.
Griffith in regards to the Seaver letter.
13
Dr. Ramey said that according to his recollection
of the first meeting, there was some--it [ i.e., the
project] was a total disaster with bad data
presented and poor test results.
Q. And did you respond to that?
A. Yes, I did.
Q. And what was your response?
A. Well, I was totally shocked because we had
presented extensive laboratory data which showed
that that was totally opposite of what Dr. Ramey
had told me--had said about the bad data
presented and poor test results.
Q. What was your impression at that time?
A. Well, he was asking me if I had--if my recollections
were the same as his. And of course, they weren't
and I told him so.
Q. And what did you tell him?
A. I explained to him the entire circumstances of the
meeting that Dr. Ramey was referring to and after
I finished, Dr. Ramey said that it doesn't make any
difference anyhow, Seaver isn't coming back here
regardless. He's fired and that's that.
App. at 3232-33. As both parties recognize, the inference
that Becker drew from this alleged conversation was that
Ramey and Victor wanted Becker to corroborate that Seaver
performed poorly on the Fibersorb project, and thus, in
essence, asked Becker to "lie" about the quality of Seaver's
work. See app. at 674 (Def.'s Mem. in Supp. of Mot. for a
New Trial); see also app. at 3238. Indeed, both Becker's
testimony and his counsel's closing argument conveyed the
message to the jury that it was Becker's impression that
Ramey and Victor solicited his assistance in fabricating
evidence of Seaver's poor performance on the project to
facilitate Seaver's termination.5
_________________________________________________________________
5. For example, during Becker's cross-examination, ARCO's counsel
elicited Becker's interpretation of the significance of Ramey's comments
14
While the record on the point is somewhat confusing, we
have studied it intensely and it appears to us that Becker's
counsel first raised the specific subject of the"Seaver
evidence" during Becker's testimony on redirect
examination. When ARCO objected to this testimony,
Becker's counsel argued that the evidence was admissible
at that juncture to contradict ARCO's prior testimony to the
effect that it retained older employees. App. at 2956 ("Your
honor, they opened the door when they were proud to say
these people stayed. . . . This goes to the credibility and the
pretext issues that are paramount in this case."); app. at
2954 (by the court: "[T]here are two questions [pertaining to
admissibility]: number one, whether this can be done on
redirect. And I find I have a problem with that. But even
assuming that this is proper redirect, the question would
be whether you can introduce evidence of prior bad acts by
the decision maker as a way of impeaching the decision
maker's [credibility]."). At that time, the court excluded the
testimony, holding as follows:
THE COURT: I find that it is beyond the scop e of
redirect. I also find that even if it is within the scope of
redirect, under [the] 403 analysis, the evidence should
not be allowed into the case.
_________________________________________________________________
to him at the meeting on August 15, and what Ramey wanted Becker to
do:
Q. And your observations today, were that you were asked to lie,
correct?
A. Say that again?
Q. Your observations today when you spoke earlier were that you
were asked to lie. It was your impression that you were asked to
lie,
correct?
A. At that time?
Q. Yes.
A. That's my feelings [sic], yes.
App. at 3238; see also app. at 3242-46; app. at 3268-69 (Becker's
closing argument).
15
On the one hand, . . . whatever probative value the
evidence may have is substantially outweighed by the
danger of unfair prejudice involving a different
situation with a different employee, and the danger of
confusion to the jury as to what the issues are in this
particular case.
So that evidence, I find will be excluded.
App. at 2958.
The next day, October 24, 1997, Becker filed a
memorandum of law in support of his attempt to introduce
the "manner" of Seaver's termination, arguing that it was
relevant to establish ARCO's "intent" in terminating plaintiff
and "plan" of fabricating reasons for terminating older
employees under Rule 404(b). See app. at 607-11
("Plaintiff 's Memorandum of Law in Support of Introducing
the Manner of Terminating Older Employees."). We
understand that this was the first point at which Becker
offered the evidence under Rule 404(b).
On October 25, 1997, ARCO filed its opposition to
Becker's memorandum, contending that Becker was
offering his testimony concerning the "manner" in which
ARCO allegedly terminated Seaver for an improper purpose
under Rule 404(b). Specifically, it argued that Becker
sought to establish from this evidence that, "because
[ARCO] found it necessary to discharge another employee
who was over 40, it must have been because of age
discrimination, and therefore, because [ARCO] found it
necessary to discharge plaintiff, it must also be because of
age discrimination." App. at 615.
In response to Becker's memorandum, the court heard
oral argument on October 27, 1997, and appears to have
retreated from its prior position regarding the testimony's
admissibility. Because it is crucial to our analysis to
understand the district court's rationale for admitting this
evidence, we will highlight the relevant portions of the
discussion between the court and counsel on this point:
THE COURT: [O]kay, it doesn't strike me that it [the
Seaver evidence] has anything to do with the reasons
why--why Mr. Seaver was terminated[.] [I]t has to do
with modus operandi of Mr. Victor and Dr. Ramey.
16
. . . .
MS. MATOS [Becker's attorney]: It goes t o the state
of mind and the way that they--
THE COURT: See, I think your motion kind . . . of
asks for more than you need. I mean this doesn't seem
to me [to have] anything to do [with] the reason why
Seaver was terminated. That is not at issue.
The question is how--the point would be that if the
jury believed the testimony, it would show that Mr.
Victor and Dr. Ramey had previously created a pretext
to get rid of an employee.
Now that doesn't mean that they didn't have cause to
get rid of the employee, or that it was right or wrong.
It wouldn't get us down that road. So, that's what I--I
find your motion nothing out of the ordinary.
Lets hear from the defendant, what's the problem
with this.
. . . .
MR. JOHNS [ARCO's attorney]: [Y]ou 're going to ask
the question, plaintiff will get up and ask the question
and leave this inference out there.
THE COURT: Well, the inference, there is no
inference, I mean if you ask somebody to falsify
testimony, [t]hat's pretty clear. That has nothing to do
with it. That is--that would go to whether or not the
decision maker had previously created--it goes to
credibility, whether or not he had previously had
trumped up charges. I mean that's basically what it is.
. . . .
MR. JOHNS: Again, your Honor, the plaintiff is
confusing the decision maker in that case, which is
Kermit Ramey, with the decision makers in this case
which are Andrew Goldsmith and Jim Victor. And as
well, your honor, I believe that this is basically just a
spin on . . . what actually was testified to at Mr.
Becker's deposition.
17
He testified at length about these circumstances and
never once said that anyone asked him to fabricate or
lie about this.
THE COURT: Well, I think that's proper cross-
examination, he may have a problem explaining that
. . . because that would seem to be pretty important.
MR. JOHNS: That's correct, your Honor, but I
thought your ruling now was that they could only ask
Mr. Victor and no[t] re-open--
THE COURT: No, they will ask Mr. Victor. Mr. V ictor
may say yes, it all happened. If Mr. Victor denies it,
then in rebuttal then they can, they can put on a
witness that would address that issue.
MR. JOHNS: . . . . And plaintiff 's allegat ions relating
to Mr. Victor are solely that Mr. Victor may have been
present at this meeting. Even the plaintiff does not get
up and say that Mr. Victor asked him to fabricate
evidence. And Mr. Victor is the decisionmaker here, not
Dr. Ramey. And therefore, your Honor, we believe that
this is totally prejudicial at this late stage of the game.
THE COURT: Well, let's take it one step at a t ime.
We'll see what Mr. Victor says.
App. at 3063-67.
Quite predictably, Becker's counsel questioned Victor
concerning the events that allegedly transpired, but he
denied ever having been present in a meeting in which
Ramey asked Becker to recollect Seaver's performance in a
manner that was contrary to Becker's actual impressions.
Subsequently, Becker's counsel outlined the substance of
the proposed rebuttal testimony, and the court again
addressed the admissibility of the Seaver evidence. At that
juncture, the district court considered again whether
Becker could testify, consistently with Rule 404(b), about
his recollection of the meeting in which Seaver and the
Fibersorb project were discussed. The colloquy during this
later discussion reveals the district court's theory of
admissibility under Rule 404(b) for this evidence:
THE COURT: . . . It's not being offered to say that
Mr. Victor is a bad person because he had-he had done
18
this in the past. It's being offered to show a pattern, or
habit. A pattern or habit can only be shown by
indicating what the person has done in the past.
Now, if they were going to show that he had--you
know, he was nasty to his neighbor, that's something
else.
MR. JOHNS: That's correct, your Honor, but one
instance in 1990 in which Mr. Victor sat in and
listened to Dr. Ramey does not establish a pattern or
habit. And under the rule, I think clearly the case law
is clear on that, that this should be excluded on that
basis.
. . . .
THE COURT: What you're saying is that you can' t
have a habit out of one act?
MR. JOHNS: That's right, your Honor.
. . . .
MS. MATOS: [in response] I don't think w e referred
to that rule, we referred to Rule 404(b). And actually
we are under Rule 404(b) . . . .
And under that rule, even in criminal cases, if a
criminal commits a crime in the past, even if he's not
convicted[,] that can be used.
THE COURT: Well, I mean it seems to me that in this
case the event is nearly identical and as such it would
be probative of plan, knowledge, intent and preparation.
I would agree with you if it had to do with some other
conduct that is not probative, but we have allegedly the
same case.
. . . .
Now, I'm not telling you that its true. The jury may
not believe it at all, may think its ridiculous, but I can't
--I don't think there will be any stronger evidence. . . .
Now, that's entirely up to the folks in the jury to
believe it, but I think they ought to hear it.
. . . .
19
[T]he point here is that you had an employee, and
the employee, there was a request, according to the
plaintiff, that he falsif[y] evidence. What difference does
it make if he's 80 years old, if he's 21 years old. The
point is that his testimony is that exactly what is
happening in this case, I was asked to do it before, that
goes to motive, intent and practice. . . .
App. at 3225-30 (emphasis added). As these passages
show, the court admitted the evidence under Rule 404(b),
but did not perform a Rule 403 analysis on the record at
that time.6
The court, however, later did provide a limiting
instruction to the jury in its charge, stating the purposes
for which the Seaver evidence could be considered. But the
court's jury instruction on this point was rather cursory,
and we cannot understand how the jury could have derived
much meaning from it:
Now you've also heard evidence of Mr.--Dr. Ramey
made comments to Mr. Becker in the presence of Mr.
Victor, concerning the termination of another ARCO
Chemical employee. Those statements were not
admitted into evidence to prove the character of Dr.
Ramey or Mr. Victor in order to show that they
performed similar acts when terminating Mr. Becker's
employment. You may only consider that evidence as
proof of motive, intent, preparation, plan or knowledge.
App. at 3298 (emphasis added).
We must determine whether the district court abused its
discretion in admitting this evidence under Rule 404(b),
and if not, whether the balancing test of Rule 403
nonetheless compels the conclusion that the court erred in
admitting the testimony. We begin with the concept of
relevancy. Rule 401 defines relevant evidence as"evidence
having any tendency to make the existence of any fact that
_________________________________________________________________
6. While the district court did not make an analysis under Rule 403 at
the time that it ruled that the Seaver evidence was admissible, it
provided its rationale for admitting the evidence under Rule 403 in its
memorandum opinion denying ARCO's post-trial motion. See Becker I,
15 F. Supp. 2d at 613-15.
20
is of consequence to the determination of the action more
probable or less probable than it would be without the
evidence." Fed. R. Evid. 401. Relevant evidence is
admissible unless the rules of evidence or other controlling
constitutional provisions, statutes or rules provide
otherwise. See Fed. R. Evid. 402; Sriyuth, 98 F.3d at 745.
Rule 404(b) is one of the rules limiting the admissibility
of otherwise relevant evidence. See Sriyuth, 98 F.3d at 745;
see also United States v. Scarfo, 850 F.2d 1015, 1019 (3d
Cir. 1988) (citing Huddleston v. United States , 485 U.S.
681, 687, 108 S. Ct. 1496, 1500 (1988)). In Sriyuth, we
reiterated the long-standing principle that Rule 404(b)
precludes the admission of evidence of other crimes,
wrongs or acts to prove a person's character. Sriyuth, 98
F.3d at 745; see also United States v. Johnson , 199 F.3d
123, 128 (3d Cir. 1999) (permitting admission of evidence of
prior robbery to show defendant's "common plan" in
prosecution under 18 U.S.C. S 1951 for conspiracy to
interfere with interstate commerce by robbery, and noting
that we favor admission of Rule 404(b) evidence"if relevant
for any other purpose than to show a mere propensity or
disposition on the part of the defendant to commit the
crime") (internal quotation marks omitted); Scarfo, 850 F.2d
at 1019 ("We have said that we will refuse to admit
evidence of prior criminal acts which has no purpose except
to infer a propensity or disposition to commit crime.")
(internal quotation marks omitted). Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order
to show action in conformity therewith. It may,
however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
. . .
We have adopted a four-prong test to determine the
admissibility of Rule 404(b) evidence:
``(1) the evidence must have a proper purpose under
Rule 404(b); (2) it must be relevant under Rule 402; (3)
its probative value must outweigh its prejudicial effect
under Rule 403; and (4) the [district] court must
21
charge the jury to consider the evidence only for the
limited purpose for which it was admitted.'
See J&R Ice Cream, 31 F.3d at 1268 (quoting United States
v. Console, 13 F.3d 641, 659 (3d Cir. 1993) (quoting United
States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992))); see
also Himelwright, 42 F.3d at 781 (stating that for "other
crimes" evidence to be admitted, it must be relevant
logically, under Rules 404(b) and 402, to any issue other
than the defendant's propensity to commit the act in issue,
and its probative value must outweigh its prejudicial effect).
In denying ARCO's motion for a new trial, the district
court found Becker's testimony admissible under Rule
404(b) because it was evidence of a "scheme or plan of
fabricating reasons used by the decisionmaker in
terminating employees." Becker I, 15 F. Supp. 2d at 614.
The district court also reasoned that "evidence of an
instance in which a pretext was fabricated in connection
with the termination of another employee, could also be
relevant to the issue of whether Mr. Victor, the decision
maker in this case, acted with discriminatory intent." Id.
Reading these passages in conjunction with the court's
statements on the record during the trial, we understand
that the district court predicated its admissibility ruling on
its conclusion that the Seaver evidence showed the plan,
pattern or practice ARCO utilized in terminating its
employees, which in turn was relevant to determining a
specific disputed fact in the case--whether ARCO provided
pretextual reasons to support Becker's dismissal. This
specific disputed fact, in turn, was relevant to an ultimate
fact in dispute--whether ARCO intentionally discriminated
against Becker because of his age. Hence, the proffered
purpose for introducing evidence tending to establish
ARCO's plan in terminating employees was so that the jury
could infer that ARCO had a discriminatory intent in
discharging Becker from the way it allegedly terminated
Seaver. On appeal, Becker repeats this theory of
admissibility. See Appellee Becker's Br. at 40.
ARCO contends that the district court's ruling in this
regard is erroneous for two reasons. First, it asserts that
the Seaver evidence could not be admitted to establish
Victor's or Goldsmith's "scheme" or "plan" because neither
22
had asked Becker to recall any aspects of Seaver's
performance on the Fibersorb project. As ARCO correctly
points out, even according to Becker's version of the events
that took place at the August 1990 meeting, Ramey--not
Victor--asked Becker to substantiate Ramey's recollection
concerning the disastrous results on the Fibersorb project.
Appellant ARCO's Br. at 39. Second, ARCO contends that
the event at issue, i.e., the meeting at which Ramey
allegedly asked Becker to corroborate a fabricated
performance deficiency, was too remote in time from
Becker's eventual discharge to constitute evidence
establishing ARCO's common scheme or plan. Thus,
ARCO's contentions clearly implicate the first inquiry under
the four-part analysis we described in J&R Ice Cream,
namely, whether the testimony is admissible for a proper
purpose under Rule 404(b). Given the two theories of
admissibility proffered here, we must consider whether the
Seaver evidence is admissible either to establish ARCO's
intent or "scheme or plan."7 See Becker I, 15 F. Supp. 2d at
614.
_________________________________________________________________
7. We point out that Becker has not argued that the Seaver evidence was
admissible for any other purpose other than establishing ARCO's intent
and common scheme or plan, despite the fact that the district court, in
a somewhat conclusory fashion, cited other purposes listed in Rule
404(b) which it believed supported the admission of this evidence under
the rule. For example, in its ruling on the record, the district court
stated that, in addition to establishing ARCO's"intent" and/or "scheme
or plan," the Seaver evidence was probative of, inter alia, ARCO's
"knowledge," "motive" and "preparation." App. at 3228, 3230. Even if
Becker had contended before us that these additional exceptions
provided a legitimate basis for admitting the Seaver evidence under Rule
404(b), we summarily would have rejected that argument. First, it cannot
be argued plausibly that evidence of ARCO's alleged fabrication of
Seaver's poor performance could establish ARCO's"preparation" or
"motive" in connection with Becker's termination. Compare Balter, 91
F.3d at 437 (holding that district court properly admitted Rule 404(b)
evidence that defendant in murder-for-hire criminal trial boasted about
his prior experience as a murderer for hire under the theory that it
established the defendant's motive and preparation; the witness testified
that the defendant stated that he "had done this type of thing before . .
.
that he had not been doing it, but would do it because he needed the
money," and "that he knew what he had to do, he had done it before and
he knew what he had to do to kill [the victim].") (internal quotation
23
First, we will consider Becker's contention that the
Seaver evidence is admissible for purposes of establishing
ARCO's intent to discriminate against Becker. While
Becker's brief does not articulate clearly how this evidence
tends to establish ARCO's intent to discriminate against
Becker, it appears that Becker hoped, through this
evidence, to demonstrate that ARCO terminated him in a
similar manner, i.e., by fabricating performance problems
to justify its predetermined decision to fire him. See
Appellee Becker's Br. at 40. Becker contends, therefore,
that the evidence was relevant logically to a disputed issue
and admitted for a proper purpose under Rule 404(b)--to
establish the discriminator's intent. In support of this
argument, Becker asserts that similar evidence of past
discriminatory treatment of other employees has been
admitted in employment discrimination suits for that same
purpose.
To be sure, our precedents teach that in an employment
discrimination case in which the employee's proof of
intentional discrimination is comprised of circumstantial
evidence, the trier of fact may infer an employer's
discriminatory intent where the plaintiff 's evidence renders
the employer's asserted nondiscriminatory reasons for the
plaintiff 's discharge weak, implausible, inconsistent or
contradictory. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d
Cir. 1994); see also Sheridan v. E.I. DuPont de Nemours and
Co., 100 F.3d 1061, 1067 (3d Cir. 1996) (en banc).
Arguably, the Seaver evidence rendered ARCO's purported
nondiscriminatory reasons weak or implausible, because it
made it more likely that Becker performed satisfactorily and
that ARCO fabricated reasons in order to facilitate his
lawful termination. It is in this sense, then, that the Seaver
evidence arguably is relevant logically to the issue of
ARCO's discriminatory intent towards Becker.
_________________________________________________________________
marks omitted); see also Sriyuth, 98 F.3d at 747. Moreover, we fail to see
how this evidence could be admitted under the theory that it was
relevant to show ARCO's knowledge in terminating Becker. Obviously,
there was no issue in this case about ARCO's knowledge of the
circumstances surrounding Becker's dismissal. Thus, we will confine our
analysis in the text to the two primary theories proffered in support of
admissibility--intent and scheme or plan.
24
Nevertheless, while Becker may have demonstrated that
the evidence is relevant logically to the issue of ARCO's
intent, the inquiry under Rule 404(b) requires a more
searching analysis which also focuses on the chain of
inferences supporting the proffered theory of logical
relevance. In Morley, we recently reiterated the self-evident
proposition that "a proponent's incantation of the proper
uses of [Rule 404(b) evidence] . . . does not magically
transform inadmissible evidence into admissible evidence."
Morley, 199 F.3d at 133. Indeed, when a proponent of Rule
404(b) evidence contends that it is both relevant and
admissible for a proper purpose, "the proponent must
clearly articulate how that evidence fits into a chain of
logical inferences, no link of which may be the inference
that the defendant has the propensity to commit the crime
charged." See id. (internal quotation marks omitted);
Himelwright, 42 F.3d at 782 (citing United States v. Jemal,
26 F.3d 1267, 1272 (3d Cir. 1994)); Government of the
Virgin Islands v. Pinney, 967 F.2d 912, 915 (3d Cir. 1992)
("In order . . . to admit evidence under Rule 404(b), a court
must be able to articulate a way in which the tendered
evidence logically tends to establish or refute a material fact
in issue, and that chain of logic must include no link
involving an inference that a bad person is disposed to do
bad acts.").
The Seaver evidence fails this test because the logical
connection between ARCO's alleged "fabrication" of
performance problems in relation to Seaver's dismissal and
its purported conduct in terminating Becker is the
inference that ARCO was likely to have fabricated customer
complaints and other performance problems in Becker's
case merely because ARCO previously engaged in a similar
impropriety in facilitating Seaver's dismissal. The problem
is, as we recognized in Morley, "this is the very evil that
Rule 404(b) seeks to prevent." See Morley, 199 F.3d at 134.
Put another way, the evidence of ARCO's "manner" of
terminating Seaver simply is not relevant on the issue of
whether ARCO discriminated against Becker absent the
inference that ARCO had a propensity to act in a certain
way, and that in firing Becker, it acted in conformity with
its prior conduct. Compare Pinney, 967 F.2d at 917 ("In this
case . . . there is no chain of logical inferences between a
25
rape of Jamilla by [the defendant] and [the victim's
credibility, which was the proffered purpose for admitting
the evidence under Rule 404(b)], which does not involve an
inference that if Pinney raped Jamilla he is likely to have
raped [the victim] as well."); see also Government of the
Virgin Islands v. Archibald, 987 F.2d 180, 187 (3d Cir.
1993) (finding that evidence that defendant had sexual
intercourse with ten year-old victim's sister who was 13 or
14 years old at the time was inadmissible under Rule
404(b); court held that the evidence "suggested to the jury
that [defendant] had a propensity to engage in intercourse
with minor females, and that he had a particular affinity for
underage daughters of Ursula Williams"). Accordingly,
because Becker has failed to articulate how the Seaver
evidence fits into a chain of logical inferences pointing
towards ARCO's intent without involving the inference that
because ARCO committed the first act it was more likely to
have committed the second, see Pinney, 967 F.2d at 916,
we cannot agree with the district court's conclusion that
the evidence was admissible under Rule 404(b) to establish
ARCO's intent to discriminate against Becker.
Our recent opinion in Morley supports our conclusion in
this regard. See 199 F.3d at 129. There the government
charged the defendant, Morley, with conspiracy, mail fraud,
bank fraud and wire fraud in connection with his conduct
in allegedly attesting to a signature on a forged will. The
government's theory of the case was that Holmes, Morley's
business associate, had an agreement with the decedent's
two sons whereby he would draft a "fake will" that would
make it seem that the decedent left the two sons with the
entirety of his estate. Pursuant to the parties' agreement,
however, Holmes and the two sons each would receive 1/3
of the estate, and according to the government, Holmes was
supposed to split his 1/3 share with Morley. Morley's role
in offense was that he attested to the signature on the fake
will. Morley's defense was that while he admitted that he
attested to the will outside the testator's presence, he did
not know that Holmes forged the testator's signature. See
id. at 131-32.
Over Morley's objection, the government introduced
evidence which established that 14 months prior to his
26
arrest, he asked his parents to notarize 100 savings bonds
purportedly signed by their rightful owner. As it turned out,
Holmes apparently also had forged the signatures on the
bonds. At trial, however, the government did not introduce
any evidence to establish that Morley knew of the forgery.
Nevertheless, Morley did not deny that he asked his parents
to notarize the bonds, and it was undisputed that his
parents eventually complied with his request. See id. at
132.
The government argued that this evidence was relevant to
establish Morley's "knowledge, intent, plan, and modus
operandi of falsely witnessing the will of a dead man who
was neither known nor present." Id. After the jury convicted
Morley on all counts, he appealed, contending that the
district court erroneously admitted the evidence showing
that he asked his parents to notarize the forged bonds.
We vacated Morley's conviction and remanded for a new
trial. In particular, we found that the evidence of his prior
conduct in asking his parents to notarize the savings bonds
was not admissible under Rule 404(b) to establish his
knowledge and intent in attesting to a forged signature on
the will. We explained our reasoning in part as follows:
[T]he government asserts that the challenged evidence
was relevant to Morley's knowledge and intent at the
time Holmes [the business associate] asked him to sign
the will as a ``third witness.' . . . This refrain is repeated
throughout the government's brief. Yet, upon close
examination, the only connection between Morley's
request to his parents to notarize the bond, and his
alleged attestation on the forged will is the inference
that Morley was likely to have been guilty of the latter
merely because he had previously engaged in a ``similar'
impropriety. This is the very evil that Rule 404(b) seeks
to prevent. Evidence pertaining to the notarized bonds
is simply not relevant to whether Morley knew the
signature on the [alleged testator's] will was forged
absent the natural (and improper) inference that lurks
beneath the surface of the government's use of this
evidence. At trial, the prosecution did not even attempt
to establish that Morley knew the signature on the
bonds was forged.
27
Id. at 133-34 (footnote omitted). We further clarified that
last statement in a footnote:
We do not mean to suggest that the evidence would
necessarily have been proper if the government had
shown that Morley knew the signature on the bonds
was a forgery. We do, suggest, however, that the
government's failure to establish that guilty knowledge
further undermines the government's assertion that
the prior conduct was relevant to Morley's intent in
attesting to the forged signature on the fake will.
Id. at 134 n.8.
We determined that the chain of logical inferences the
government offered in support of the admission of the Rule
404(b) evidence in Morley was tainted by an impermissible
inference concerning the defendant's character and his
propensity to commit the charged crime. See id. at 137.
Indeed, it was obvious to us that the only reason that
Morley's request to his parents to notarize the forged bonds
was relevant to the issue of his intent and knowledge with
respect to his attestation of the fake will was because that
prior conduct was similar in nature to the charged offense
and showed that he had certain "propensities," which in
turn made it more likely that Morley knew the will was fake
when he signed it. We observed that the best explanation of
why the government offered the evidence was so that the
jury could infer from it that Morley "was the kind of guy
who had done it before, [and therefore was] the kind of guy
who will do it again." Id. at 134.
Here, too, the chain of logical inferences supporting the
admission of the Seaver evidence to show ARCO's intent
involves a link predicated on the suggestion that in
terminating Becker, ARCO engaged in a "similar
impropriety" as that which allegedly had occurred in
connection with Seaver's dismissal. Specifically, the initial
factual proposition, i.e., that ARCO fabricated Seaver's poor
performance, and the ultimate conclusion, i.e. , that ARCO
discriminated against Becker, are linked by the inference
that if ARCO fabricated Seaver's poor performance on the
Fibersorb project to facilitate his dismissal, it is more likely
that ARCO fabricated the customer complaints about
28
Becker to achieve the same result. From that premise the
jury could have inferred that ARCO intentionally
discriminated against Becker, inasmuch as the Seaver
evidence would have demonstrated that ARCO's proffered
legitimate nondiscriminatory reasons for Becker's
termination were weak, implausible and/or contradictory.
See Fuentes, 32 F.3d at 764.
We point out in this regard that Becker's most
comprehensive explanation of what he considered to be the
logical relevance of the Seaver evidence to the issue of
ARCO's intent occurred during the court's colloquy with
counsel on this point, but that the counsel's proffered
justification for admitting the evidence amounted to little
more than a "mantra-like recitation of the provisions of
Rule 404(b)." Morley, 199 F.3d at 137; see app. at 3227
("[A]ctually we were under 404(b), ``It may however be
admissible for other purposes such as motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.' ") (quoting Fed. R. Evid. 404(b)).
Merely citing the relevant Rule of Evidence, however, is of
little assistance to either the trial or appellate court in
determining the difficult issue presented when confronted
with a proffer of Rule 404(b) evidence, and it falls woefully
short of the proponent's obligation when offering such
evidence purportedly for a non-character purpose. See
Morley, 199 F.3d at 137.
We also find it significant that in this appeal Becker has
failed to present an alternative chain of inferences by which
the Seaver evidence logically could be connected to the
issue of ARCO's intent, with no link predicated on an
inference concerning ARCO's propensity to act in a certain
way. Of course, this is not surprising given the record
presented here and Becker's theory of the case. Compare
United States v. Dise, 763 F.2d 586, 592-93 (3d Cir. 1985)
(defendant's prior similar incidents of misconduct were
relevant to establish his intent to injure inmates where
defendant contended that he acted only to maintain safety
or to prevent harm). Indeed, our review of the record
confirms that Becker grounded his case against ARCO
largely on his assertion that the customer complaints and
alleged performance problems were pretextual. Yet only if
29
the jury were to draw the inference that in terminating
Becker, ARCO must have fabricated his alleged
performance deficiencies, would the Seaver evidence have
established circumstantially ARCO's intent to discriminate
against Becker. As we observed in Morley, this sort of
character-based inference "is the very evil that Rule 404(b)
seeks to prevent." Morley, 199 F.3d at 134. Therefore, we
hold that the district court erred in admitting the Seaver
evidence based on its conclusion that it could be
introduced for the non-character purpose of establishing
ARCO's intent to discriminate against Becker.8 See Pinney,
967 F.2d at 916.
_________________________________________________________________
8. We have not overlooked numerous cases which have held that, as a
general rule, evidence of a defendant's prior discriminatory treatment of
a plaintiff or other employees is relevant and admissible under the
Federal Rules of Evidence to establish whether a defendant's
employment action against an employee was motivated by invidious
discrimination. See, e.g., United States Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713 n.2, 103 S. Ct. 1478, 1481 n.2 (1983) (stating
that evidence of an employer's comments were admissible to prove race
discrimination); Robinson v. Runyon, 149 F.3d 507, 512-13 (6th Cir.
1998) (noting that evidence of a racially hostile atmosphere was
admissible in Title VII suit to illustrate decisionmaker's attitude);
Heyne
v. Caruso, 69 F.3d 1475, 1480 (9th Cir. 1995) (same, in sexual
harassment suit under Title VII); Brown v. Trustees of Boston Univ., 891
F.2d 337, 349-50 (1st Cir. 1989) (permitting evidence of remarks made
by president of the University concerning another woman on theory that
the remarks could be construed as demonstrating sexist attitude); Estes
v. Dick Smith Ford, Inc., 856 F.2d 1097, 1102-04 (8th Cir. 1988) (noting
that "circumstantial proof of discrimination typically includes
unflattering testimony about the employer's history and work practices");
Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1423-24 (7th Cir. 1986)
(upholding district court's admission of evidence of harassment of other
workers to show that employer condoned racial harassment); see also
Abrams v. Lightolier, Inc., 50 F.3d 1204, 1214 (3d Cir. 1995) (age-related
comments and evidence of how supervisor treated older employees was
probative of whether supervisor harbored discriminatory attitude against
older workers); Glass, 34 F.3d at 194-95 (evidence of prior racial
harassment was relevant to whether plaintiff was terminated because of
age and/or race discrimination). In those cases, the courts admitted the
evidence because of the discriminatory nature of the prior conduct,
which in turn tended to show the employer's state of mind or attitude
towards members of the protected class. Thus, in those circumstances,
the inference of the employer's discriminatory attitude came from the
30
Becker next contends that the Seaver evidence is
admissible under the alternative theory that it
circumstantially established ARCO's "plan," which is a
_________________________________________________________________
nature of the prior acts themselves, and the prior acts of discrimination
were not offered for the purpose of establishing the fact that the
employer engaged in any particular act or course of conduct in
connection with the plaintiff 's termination. Compare Heyne, 69 F.3d at
1480 (in Title VII quid pro quo action where plaintiff claimed that her
employer came to her mobile home after work and propositioned her for
sex and employer denied propositioning plaintiff, court of appeals held
that plaintiff was entitled to introduce evidence of employer's treatment
of other female employees, as it was probative of whether he terminated
her because she rebuked his advances; nevertheless it stated specifically
that "[the employer's] alleged harassment of other female employees
cannot be used to prove that [the employer] propositioned [plaintiff] on
the night before she was fired.") (citing Fed. R. Evid. 404(b)).
But it is clear from the limited nature of the Seaver evidence that the
district court did not admit it based on the theory that it tended to
establish, by its very nature, ARCO's discriminatory attitude towards its
older employees. Compare Abrams, 50 F.3d at 1214-15. Rather, the
district court admitted the testimony based on the theory that ARCO
trumped up charges against any employee it wanted to discharge, not
just the older ones, and the evidence was admitted for the specific
purpose of establishing that ARCO fabricated performance problems in
Becker's case. This distinction is confirmed by the fact that the jury did
not hear any evidence pertaining to Seaver's age. The district court ruled
that Becker could not testify on that point because it was hearsay and
irrelevant, given the purpose for which the evidence was admitted. App.
at 3230 (district court stating "[w]hat difference does it make if he's
[Seaver] 80 years old, or if he's 21 years old? The point is that his
testimony is that exactly what is happening in this case, I was asked to
do it before, [and] that goes to motive, intent and practice.").
Thus, the rather circumscribed nature of Becker's testimony
concerning the "manner" in which ARCO terminated Seaver
distinguishes this evidence from the type of Rule 404(b) evidence
generally admitted in employment discrimination trials for the purpose of
establishing the employer's overall discriminatory attitude towards
members of a protected class. Here the Seaver evidence, standing alone,
does not suggest that ARCO possessed a discriminatory attitude towards
its older workforce, and thus it was probative of the issue of ARCO's
intent to discriminate only if the jury were to conclude that in firing
Becker, it acted in the same way that it did when it discharged Seaver.
31
specific non-character purpose listed in Rule 404(b). Becker
argues that the district court properly admitted the
evidence to establish, under Rule 404(b), ARCO's plan,
scheme, "practice," "modus operandi" or "pattern" of
fabricating reasons for terminating unwanted employees.
See app. at 3230.
This assertion does little to answer the question of
whether the evidence is admissible pursuant to that
exception, however, as we have recognized that where proof
of "a plan or design is not an element of the offense[,] . . .
evidence that shows a plan must be relevant to some
ultimate issue in the case." See J&R Ice Cream, 31 F.3d at
1269 (internal quotation marks omitted). Therefore, in order
to determine if the Seaver evidence properly was admitted
to show ARCO's "scheme or plan," which the district court
described alternatively as ARCO's "pattern,"practice," and
"modus operandi," we must pinpoint the evidential fact that
Becker sought to prove from his testimony in that regard.
From that initial inquiry, we must determine if the
evidence, in the form that it was admitted at trial, satisfied
the criteria necessary for admitting Rule 404(b) evidence on
the theory that it establishes circumstantially ARCO's plan
or scheme.
As to the initial question, i.e., the evidential fact that
Becker sought to establish in admitting the testimony,
Becker contends that the evidence was admitted to prove
ARCO's intent. Given our discussion above, this argument
obviously is unavailing. To reiterate, the Seaver evidence
cannot be admitted based on the theory that it was relevant
to prove the ultimate disputed issue in the case, given the
circumstance that the evidence would establish ARCO's
intent to discriminate against Becker only if the jury drew
the inference that in terminating him, ARCO acted in
conformity with its purported prior conduct in terminating
Seaver.
As we have indicated, notwithstanding Becker's contrary
arguments, the Seaver evidence could be material only to
establish circumstantially that ARCO fabricated the
performance deficiencies and customer complaints that
allegedly formed the basis for Becker's termination. The
question, then, is whether and in what circumstances
32
evidence concerning a defendant's prior conduct is
admissible under Rule 404(b) as proof of the defendant's
plan, where the evidence is admitted for the specific
purpose of establishing that the defendant committed a
subsequent act that is disputed in the case.
Commentators indicate that evidence tending to establish
a defendant's plan or scheme under Rule 404(b) may be
admitted for the purpose of proving the defendant's
commission of the subsequent act itself where that issue is
disputed. See, e.g., 1 John William Strong, ed., McCormick
on Evidence S 190, at 800-01 (4th ed. 1992) ("McCormick")
("Each crime should be an integral part of an over-arching
plan explicitly conceived and executed by the defendant or
his confederates. This will be relevant as showing motive,
and hence the doing of the criminal act, the identity of the
actor, or his intention.") (emphasis added) (footnote
omitted); see also II Wigmore, Evidence S 300, at 238
(Chadbourne rev. 1979) (discussing distinction between
proving intent through similarity of prior act and act in
issue and proving the commission of the subsequent act
itself by virtue of evidential theory that the two acts are
part of a singular plan or design, and explaining that
"[d]esign or plan, . . . is not a part of the issue, . . . but is
the preceding mental condition which evidentially points
forward to the doing of the act designed or planned.. . . In
proving design, the act is still undetermined , and the proof
is of a working plan, operating towards the future with
such force as to render probable both the act and the
accompanying state of mind.") (emphasis added); II
Wigmore, supra S 304, at 249 ("When the very doing of the
act charged is still to be proved, one of the evidential facts
receivable is the person's design or plan to do it.").
Nevertheless, for the reasons that follow, we hold that the
district court erred in admitting the Seaver evidence on its
theory that it established circumstantially the existence of
ARCO's plan or scheme in terminating its employees.
In J&R Ice Cream we explained the general theory behind
admitting proof of a defendant's prior act to establish his
"plan," which in turn demonstrates the defendant's
commission of the subsequent act in issue:
33
Ordinarily, when courts speak of ``common plan or
scheme,' they are referring to a situation in which the
charged and the uncharged [acts] are parts of a single
series of events. In this context, evidence that the
defendant was involved in the uncharged [act] may
tend to show a motive for the charged [act] and hence
establish the commission of the . . . [act], the identity
of the actor, or his intention.
See id. at 1268-69 (internal quotation marks omitted)
(quoting Pinney, 967 F.2d at 916) (alterations in original);
see also 22 Charles Alan Wright & Kenneth W. Graham,
Jr., Federal Practice and Procedure S 5244, at 499-500
(West 1978) ("The justification for admitting evidence of
other crimes to prove a plan is that this involves no
inference as to the defendant's character; instead, his
conduct is said to be caused by his conscious commitment
to a course of conduct of which the charged crime is only
a part."); see, e.g., Console, 13 F.3d at 659; United States v.
Levy, 865 F.2d 551, 558 (3d Cir. 1989).
Another commentator has explained the conceptual basis
for admitting Rule 404(b) evidence to prove the existence of
a "plan" slightly differently: "In a true plan case, the courts
hold that the prosecutor may prove any uncharged crime
by the defendant which shows that the defendant in fact
and in mind formed a plan including the [prior act] and the
[ ]charged [act] as stages in the plan's execution." See 1
Edward J. Imwinkelried, Uncharged Misconduct Evidence
S 3:22, at 117 (West 1999) ("Imwinkelried I"); see also 1
Christopher B. Mueller, Laird C. Kirkpatrick, Federal
Evidence S 113, at 667 (2d ed. 1994) ("What is crucial in
this setting is that the other acts . . . , considered in light
of the circumstances, support an inference that the
defendants . . . formed a plan or scheme that contemplated
commission of the charged crime. . . . ``[S]urrounding
circumstances must support an inference that the crimes
were related in the defendant's mind,' and both the other
acts and the charged crime ``must be part of a common or
continuing scheme.' ") (quoting Imwinkelried I) (footnotes
omitted); 22 Wright & Graham, supra S 5244, at 499-500
("The justification for admitting evidence of other crimes to
prove a plan is that this involves no inference as to the
34
defendant's character; instead his conduct is said to be
caused by his conscious commitment to a course of
conduct of which the charged crime is only a part. The
other crime is admitted to show this larger goal rather than
the defendant's propensity to commit crimes.") (footnote
omitted) (emphasis added). Imwinkelried's treatise thus
explains the concept of a "true plan" in the context of
criminal cases:
Both crimes must be part of a common or continuing
scheme; the plan must encompass or include both
crimes; the crimes must be connected, mutually
dependent, and interlocking. All these variations
express the same core thought that both crimes must
be inspired by the same impulse or purpose. Both
crimes must be steps toward the accomplishment of
the same final goal. They are different stages of the
plan. It is not enough for the prosecution to show that
the defendant had a plan including crimes similar to
the charged crime; the prosecution must show that the
plan included the specific crime the defendant is now
charged with.
Imwinkelried I, supra S 3:22, at 119 (footnotes omitted). In
this instance, the logical relevance of the prior act to the
fact in issue, i.e., ARCO's commission of the subsequent
act, is that it shares with the subsequent act a similar
purpose or motivation--a common goal. See 22 Wright &
Graham, supra S 5244, at 500; id. S 5244, at 483 (West
Supp. 1999) ("To be properly admissible under Rule 404(b)
it is not enough to show that each crime was ``planned' in
the same way; rather, there must be some overall scheme
of which each of the crimes is but a part.").
The Seaver evidence is not admissible as proof of ARCO's
"plan" based on these principles, inasmuch as there was no
evidence presented that the two terminations were
connected, mutually dependent, or part of any larger goal of
ARCO's. See Imwinkelried I, supraS 3:22, at 119; 1 Mueller
& Kirkpatrick, supra S 113, at 667; 22 Wright & Graham,
supra S 5244, at 483 (West Supp. 1999). The district court
did not admit the Seaver evidence on the theory that the
two terminations were part of ARCO's large-scale plan to
eliminate its older employees and create a younger
35
workforce. To the contrary, the district court's comments
clearly demonstrate that it rejected the proposition that the
Seaver evidence could be used to suggest that conclusion to
the jury. Moreover, it is rather obvious that the two
terminations are unrelated in the sense that one had
nothing to do with the other, except for the fact that,
allegedly, ARCO facilitated both by fabricating legitimate
reasons to support the adverse employment actions.
Finally, the fact that the two incidents were over three
years apart, while not conclusive, certainly undercuts the
possibility that the two events were examples of any"plan"
on ARCO's part.
Instead, the record shows that the district court admitted
the evidence based on the theory that it tended to show
ARCO's "pattern," "practice" or "modus operandi" of
fabricating legitimate reasons for terminating its employees
when it wanted to eliminate them from its workforce. See
App. at 3063, 3225, 3230. In J&R Ice Cream we explained
that "a common plan or scheme may consist of incidents
[that] were sufficiently similar to earmark them as the
handiwork of the same actor, and thus constitute signature
evidence of identity." See J&R Ice Cream, 31 F.3d at 1269
(internal quotation marks omitted) (alteration in original)
(quoting Pinney, 967 F.2d at 916); see also United States v.
Echeverri, 854 F.2d 638, 645-46 (3d Cir. 1988); United
States v. Herman, 589 F.2d 1191, 1198 (3d Cir. 1979). As
we explained in J&R Ice Cream, "[t]his method of proving
identity through the use of [Rule 404(b) evidence] is
sometimes labeled proof of modus operandi and
distinguished from the use of a common plan or scheme to
prove identity." J&R Ice Cream, 31 F.3d at 1269 n.9
(internal quotation marks omitted).9
_________________________________________________________________
9. Wright & Graham's treatise distinguishes between evidence admitted
on the basis that it proves the existence of a "plan" from evidence
admitted on the theory that it shows a unique modus operandi, hence
establishing the actor's identity. 22 Wright & Graham, supra S 5244, at
501-02. Their treatise suggests that proof of an actor's modus operandi
should not be admitted on the theory that the striking similarities
between the uncharged act and the subsequent act and their unique
features demonstrate the actor's "plan." Rather, their treatise suggests
that Rule 404(b) evidence which can be considered proof of the actor's
modus operandi should be admitted based on "the exception for use of
other crimes evidence to prove identity." Id. at 502.
36
Weinstein's treatise provides an instructive explication of
the rationale supporting the admission of Rule 404(b)
evidence as proof of the actor's modus operandi :
Other-crime evidence may be admitted if the evidence
of the other crimes is so distinctive that it can be seen
as a ``signature' identifying a unique defendant, such as
the infamous Jack the Ripper. Thus, the issue in these
cases is whether the defendant committed the act at
all, unlike in intent cases, in which the issue is
whether the defendant had the requisite state of mind
when he or she committed the act. There are many
instances in which the details of the other crime show
an individuality that is highly probative of the
conclusion that the charged crime was committed by
the same person.
. . . [E]vidence of the commission of the same type of
crime is not sufficient on this theory unless the
particular method of committing the offense, the modus
operandi (or m.o.) is sufficiently distinctive to constitute
a signature. Other crimes evidence is not permissible
to identify a defendant as the perpetrator of the
charged act simply because he or she has at other
times committed the same garden variety criminal act,
since this would be identification based on the
forbidden inference of propensity. The question for the
court is whether the characteristics relied on are
sufficiently idiosyncratic to permit an inference of
pattern for purposes of proof.
2 Jack B. Weinstein & Margaret A. Berger, Weinstein's
Federal Evidence 2d S 404.22[5][c], at 404-117 to 404-120
(1999). Thus, under this theory, the evidence is admitted
for the purpose of establishing that the defendant actually
committed the act for which he is charged, and its
admission into the case normally arises in the criminal
context where there is a question as to the identity of the
perpetrator of the crime. See Pinney, 967 F.2d at 916; see
also, e.g., United States v. McGuire, 27 F.3d 457, 461 (10th
Cir. 1994) (admitting testimony concerning eight other
robberies with which defendant allegedly was involved;
court found that robberies had "many common
characteristics which would tend to show that the
37
defendant was involved in the [instant] robbery and that
the latter robbery was but a part of a larger common
scheme or plan."); 2 Weinstein & Berger, supra S 404.22[4],
at 404-102 (noting that courts "sometimes admit, in the
name of identity, evidence of a crime that has some
unusual features as the charged crime . . . .").
We understand the district court's admission of the
Seaver evidence as predicated on its theory that the
similarity between the two events--the alleged fabrication of
performance problems to facilitate Seaver's dismissal and
the alleged fabrication of customer complaints to support
Becker's termination--demonstrated ARCO's modus
operandi, which in turn could establish circumstantially a
fact in issue--namely, whether ARCO fabricated reasons in
order to facilitate Becker's dismissal. See Becker I, 15 F.
Supp.2d at 614 ("[T]he lies Becker was allegedly asked to
tell, i.e., lies about the quality of Mr. Seaver's work, were
similar to the reasons cited by ARCO for Becker's
termination."). Indeed, a review of the colloquy between the
court and counsel concerning the admissibility of this
evidence and the purpose for which it was proffered
confirms that the district court predicated its ruling on its
belief that the similarities between what allegedly occurred
in Seaver's case and what allegedly transpired in
connection with Becker's termination were sufficient to
establish a pattern of conduct on ARCO's part which
suggested that it fabricated reasons to justify Becker's
dismissal.
But there are two problems with admitting the Seaver
evidence on the theory that it establishes ARCO's pattern,
practice or modus operandi: identity was not a disputed
issue in this case, and it cannot be argued successfully
that the similarities between the two events show a unique
or distinctive modus operandi. Compare J&R Ice Cream, 31
F.3d at 1269; Pinney, 967 F.2d at 917. Indeed, with respect
to the first issue, the parties only disputed whether ARCO
indeed fabricated Becker's alleged performance deficiencies
and encouraged customer complaints in order to legitimize
an otherwise improper dismissal. In other words, the
parties disputed whether the alleged act (the fabrication of
problems in Becker's case) even occurred, not whether
38
ARCO, as opposed to some other person or entity,
committed it. Compare J&R Ice Cream, 31 F.3d at 1269
(identity of actor was not in dispute; rather, issue was
whether the subsequent act occurred); United States v.
LeCompte, 99 F.3d 274, 278 (8th Cir. 1996) (same); United
States v. Shackleford, 738 F.2d 776, 783 (7th Cir. 1984)
(same) (overruled on other grounds, Huddleston v. United
States, 485 U.S. 681, 108 S. Ct. 1496 (1988)).
Despite this obvious distinction, it is clear that the
evidential fact that Becker, the proponent of the Rule 404(b)
evidence, sought to prove was the same--that ARCO indeed
committed a particular act that is disputed in this case.
Moreover, as in the case where the government introduces
Rule 404(b) evidence to establish the actor's identity by
modus operandi, Becker contended that the similarities
between the prior and subsequent acts provided a sufficient
foundational basis to establish the actor's "plan," and
hence the commission of the subsequent act itself. See 2
Weinstein & Berger, supra S 404.22[5][c], at 404-119 to 120
("The question for the court [in admitting prior acts on the
theory that they are so distinctive to as to identify the
defendant as the perpetrator of the crime] is whether the
characteristics relied on are sufficiently idiosyncratic to
permit an inference of pattern for purposes of proof."); see
also Edward J. Imwinkelried, Using a Contextual
Construction to Resolve the Dispute over the Meaning of the
Term "Plan" in Federal Rule of Evidence 404(b) , 43 U. Kan.
L. Rev. 1005, 1007-08 (1995) ("Imwinkelried II") ("The
prosecutor would point to as many similarities as possible
between the charged crime and the . . . uncharged offenses.
Indeed, there is a good deal of authority that standing
alone, proof of an accused's commission of recent, similar
crimes is sufficient foundational proof of the existence of a
``plan.' ").
In this sense, then, Becker pointed to the Seaver evidence
and argued that ARCO had developed a distinct strategy
that it followed in terminating its unwanted employees
which made it more likely that it adhered to its plan in
terminating Becker. Compare Gastineau v. Fleet Mortgage
Corp., 137 F.3d 490, 495 (7th Cir. 1998) (where parties
disputed authenticity of employer's memorandum
39
indicating that plaintiff was terminated for discriminatory
reasons, court of appeals upheld admission of evidence
showing that in prior litigation with his employer, plaintiff
produced a contract that the employer denied ever signing;
court determined that evidence established that plaintiff
had "a common scheme or plan in disputes with his former
employers-creating false documents in anticipation of
litigation"); United States v. Baker, 82 F.3d 273, 276 (8th
Cir. 1996) ("[The witness] testified to a remarkably similar
series of prior actions by [the defendant]: a motorist is
stopped for speeding, a firearm is discovered, and the
motorist is given the choice of facing charges or``working it
out' with [the defendant].").
Thus, as we see it, the dispositive question in this case
is whether Rule 404(b) permitted Becker to introduce
evidence of one alleged similar instance of prior conduct by
ARCO's supervisory employee to establish ARCO's"plan"
(otherwise described as its pattern, practice or"common
design") and hence the commission of a similar subsequent
act by a different ARCO employee, where the identity of the
actor is not an issue and the similarities between the two
events are not sufficient to show a distinct modus operandi.10
_________________________________________________________________
10. Certain commentators suggest that courts often (and improperly)
conflate the two theoretical underpinnings for admissibility of Rule
404(b) evidence under the label of a "common scheme or plan." For
example, courts have admitted Rule 404(b) evidence to establish the
defendant's purported pattern of conduct that suggests the defendant
committed the subsequent act, even where the issue is not identity of
the perpetrator, and/or the prior events are not sufficiently distinct to
qualify as evidence of "modus operandi." Imwinkelried's treatise thus
explains:
Some courts are quite liberal in admitting uncharged misconduct
under the rubric of ``plan.' If the proponent can show a series of
similar acts, these courts admit the evidence on the theory that a
pattern or systematic course of conduct is sufficient to establish
a
plan [which in turn establishes the commission of the act].
Similarity or likeness between the crimes suffices. In effect,
these
courts convert the doctrine into a plan-to-commit-a-series-of-
similar-crimes theory.
. . . .
40
Compare Jankins v. TDC Management Corp., 21 F.3d 436,
440-41 (D.C. Cir. 1994) (reversing jury finding in favor of
plaintiff who introduced Rule 404(b) evidence of defendant's
alleged failure to pay subcontractors on the theory that it
_________________________________________________________________
In these cases, the similarity between the crimes is ordinarily
inadequate to satisfy the modus operandi doctrine. . . .
In reality, these courts are arguably permitting the proponent to
introduce propensity evidence in violation of the prohibition in
the
first sentence of Rule 404(b). Proof of a number of similar
burglaries
. . . may be probative of the defendant's status as a professional
criminal; and the similarities may tend to show that when faced
with similar, random opportunities for committing a crime, the
defendant repeatedly chooses to use roughly the same methodology.
However, if the similarities are insufficient to establish modus
and
there is no inference of a true plan in the defendant's mind, the
proponent is offering the evidence on a forbidden theory of logical
relevance.
Imwinkelried I, supra S 3:24, at 128-29 (footnotes omitted); see also 1
Mueller & Kirkpatrick, supra S 113, at 667 (explaining the admission of
Rule 404(b) evidence on the theory that it establishes the defendant's
plan or scheme, and hence the defendant's commission of the
subsequent act, and noting "[i]t is not enough that other crimes
resemble the charged crime. If they are not sufficiently similar to the
charged offense or not distinctive enough to be admitted to show modus
operandi (hence identity), admitting other crimes to show plan or scheme
merely because they bear some resemblance to the charged offense
cannot be defended."); see also 22 Wright & Graham, supra S 5244, at
482-83 (West Supp. 1999) (where court admitted evidence in statutory
rape case showing that in two previous instances, the defendant
similarly enticed victims (who all were runaways) into exchanging sex for
food and shelter, commentators suggested that court erred because prior
similar instances were "evidence of propensity, not plan"; "To say that
the defendant had a ``plan' to seduce every runaway he could may not do
violence to the language but it does undermine the policy of Rule 404(b)
by permitting the use of propensity to prove conduct."). But see II
Wigmore, supra S 304, at 249 ("When the very doing of the act charged
is still to be proved, one of the evidential facts receivable is the
person's
design or plan to do it. . . . The added element[in these circumstances],
must be, not merely a similarity in the results, but such a concurrence
of common features that the various acts are naturally to be explained as
caused by a general plan of which they are the individual
manifestations.").
41
demonstrated a common scheme or plan by which the
defendant systematically committed fraud; court found that
the prior instances were dissimilar and temporally remote
from plaintiff 's and defendant's dispute and could not be
admitted on that theory, or to show the defendant's intent)
(citing, inter alia, I Wigmore, Evidence S 304, at 202-03 (3d
ed. 1940)).
Contrary to the district court's legal conclusion on this
point, see Becker I, 15 F. Supp. 2d at 614, we hold that
standing alone, the similarities between the Seaver evidence
and the allegations of fact in this case do not provide a
sufficient foundation from which the existence of ARCO's
"scheme or plan" of fabricating reasons in terminating its
employees may be inferred so as to justify admitting the
Seaver evidence on that basis. We cannot agree that the
"plan" exception listed in Rule 404(b) supports the
admission of the Seaver evidence to show that ARCO
engaged in a similar impropriety in Becker's case simply by
virtue of the "similarity" between the two alleged events.
Consequently, we find, notwithstanding contrary
protestations, that the district court admitted the evidence
for "exactly the purpose that Rule 404(b) declared to be
improper, . . . namely, to establish the defendants'
propensity to commit the charged act." See J&R Ice Cream,
31 F.3d at 1269 (internal quotation marks and citation
omitted); see also Herman, 589 F.2d at 1198 (finding that
district court erred in admitting testimony that defendant
engaged in similar extortion scheme which was unrelated to
extortion scheme with which he was charged; court found
that testimony did not demonstrate that the similarities
were so distinctive so as to justify an inference that the
defendant participated in both transactions, and modus
operandi "was at best a collateral issue in the case"; "What
was centrally in issue was whether [the defendant] was the
kind of person who would take a bribe.") (citing Rules
404(b) and 403); State v. G.V., 744 A.2d 137, 142 (N.J.
2000) (per curiam) (in prosecution of father for, inter alia,
sexual assault against his daughter, court found that the
trial court erred in admitting evidence of father's prior
sexual molestation of his other daughter at the same time
of the day (evening) and at about the same age as the
victim; prosecutor's summation alluded to the fact that
42
evidence demonstrated a "[s]imilar fact pattern," and
showed "the way he operate[d]," and court observed "If that
is not an allusion to propensity, then we do not know what
would be.").
We find support for our conclusion in this regard in our
opinion in J&R Ice Cream, 31 F.3d at 1268-69, where we
addressed the evidentiary use of similar uncharged acts of
misconduct to demonstrate a scheme or plan under Rule
404(b). There the plaintiff, J&R Ice Cream Corp., a former
franchisee, sued the defendants/franchisors, collectively
referred to as defendant "California Smoothie," under the
New Jersey Consumer Fraud Act ("the Act"). 11 After
terminating its franchise rights, J&R Ice Cream sued
California Smoothie because it sustained losses in
connection with a California Smoothie store it opened in a
mall in Florida. J&R Ice Cream obtained a jury verdict in its
favor, based on its theory that California Smoothie violated
the Act by making certain representations to it during
franchise negotiations. Specifically, the jury found that
California Smoothie violated the Act by, inter alia, (1)
misrepresenting the amount of J&R Ice Cream's potential
gross sales in its first operation of a California Smoothie
franchise, and (2) misrepresenting California Smoothie's
expertise in selecting profitable locations for franchises, and
in choosing the Florida site for J&R Ice Cream's store. See
id. at 1265.
On appeal, California Smoothie challenged the district
court's admission of the testimony of two unrelated former
California Smoothie franchisees as to misrepresentations
California Smoothie allegedly made to them. Specifically,
the district court permitted J&R Ice Cream to introduce
testimony that California Smoothie made similar
representations to the other two franchisees regarding the
sales and profits a California Smoothie franchise would
produce. See id. at 1268. While the district court originally
admitted the testimony to establish California Smoothie's
_________________________________________________________________
11. The plaintiff also asserted a common law negligence claim based on
the defendant's alleged negligence in selecting a poor site for plaintiff
's
franchise and its negligence in negotiating the lease there. See J&R Ice
Cream, 31 F.3d at 1264.
43
"intent" and "common scheme or plan," it later determined
that the testimony was admissible under Rule 404(b) as
evidence of California Smoothie's "plan," i.e., "common
scheme or business practice of representing sales and profit
figures to potential franchisees." See id.
We held that the district court erred in admitting this
testimony under its theory that it tended to establish
California Smoothie's scheme, plan or pattern of
representing sales and profit figures in order to induce
potential franchisees to acquire a California Smoothie
franchise. We began our analysis of the issue of the
admissibility of this testimony under Rule 404(b) with the
statement that, contrary to the district court's
determination, the "testimony was not admissible as
evidence of a common scheme or plan." See id. In support
of that conclusion, we outlined the basic theories for
admitting Rule 404(b) evidence under the rationale that
such evidence demonstrates the defendant's common
scheme or plan. See id. at 1269. After explaining that the
evidence was not relevant to an ultimate issue in the case
such as motive, identity or intent because those issues
were undisputed, we concluded that the "evidence was
admitted for exactly the purpose Rule 404(b) declared to be
improper, . . . namely to establish the defendant's
propensity to commit the charged act." Id. (internal citation
and quotation marks omitted).
After reviewing the possible theories offered in support of
the district court's ruling, we ultimately held that the
court's admission of this evidence was reversible error.
Importantly, in reaching our conclusion, we found the
district court's comments particularly relevant because the
court had acknowledged that it admitted the prior
testimony for an improper purpose when it stated that " ``[i]n
the context of this case, I believe that it was proper to show
that it was more likely that representations of sales figures
were made to . . . [J&R Ice Cream] by demonstrating that
the officials of California Smoothie had a practice of making
such representations.' " Id. (alteration in original) (quoting
from district court record). Thus, J&R Ice Cream rejected
the district court's conclusion that the testimony was
admissible under Rule 404(b) as evidence of California
44
Smoothie's "business practice," i.e., its pattern, scheme or
plan of representing sales and profit figures to potential
franchisees, for the specific purpose of showing that
California Smoothie made the same sort of representations
to the plaintiff.
Just as in J&R Ice Cream, the district court admitted the
Seaver evidence to establish a contested material fact based
only on the similarity of the prior event to a subsequent,
unrelated occurrence which was alleged to have happened
in Becker's case. Here, the district court admitted the
Seaver evidence on the theory that it was more likely that
ARCO fabricated its purported nondiscriminatory reasons
for terminating Becker if ARCO's management had a
pattern or practice of inventing performance problems in
order to facilitate the termination of other employees. See
app. at 3225-28 ("It's not being offered to say that Mr.
Victor is a bad person because he had-he had done this in
the past. It's being offered to show a pattern, or habit. . . .
I mean it seems to me that in this case the event is nearly
identical and as such it would be probative of plan . . . I
would agree with you if it had to do with some other
conduct that is not probative, but we have allegedly the
same case. . . ."). Moreover, as in J&R Ice Cream, the
district court admitted the Seaver evidence because, in its
view, the evidence mirrored Becker's version of the events
leading up to his discharge, thus tending to corroborate
Becker's theory of his case. Compare J&R Ice Cream, 31
F.3d at 1269 (holding that district court abused its
discretion in admitting evidence on the theory that it
showed that "it was more likely" that the defendant made
similar representations to the plaintiffs, where
representations formed in part the factual basis for the
jury's finding on the consumer fraud count against
defendant).
We believe that the district court's rationale for admitting
the Seaver evidence mirrors in all material respects the
district court's reasoning that we expressly rejected in J&R
Ice Cream. Compare app. at 3230 ("The point is that
[Becker's] testimony is [allegedly] exactly what is happening
in this case, I was asked to do it before, that goes to motive,
intent and practice.") (emphasis added); app. at 3225 ("It's
45
being offered to show a pattern, or habit.") with J&R Ice
Cream, 31 F.3d at 1269 ("I believe that it was proper to
show that it was more likely that representation of sales
figures were made to [plaintiff] by demonstrating that
[defendant] had a practice of making such representations.")
(emphasis added). Thus, our opinion in J&R Ice Cream
leads us to the inescapable conclusion that the district
court erred in admitting the Seaver evidence on the theory
that it established ARCO's common scheme, plan or pattern
of action. It is obvious in view of J&R Ice Cream that Becker
introduced the Seaver evidence for an improper purpose--
solely to establish ARCO's propensity to fabricate reasons
to justify terminating its employees so that the jury would
conclude that ARCO did the same thing when it dismissed
Becker. We believe that the not so hidden message behind
Becker's testimony regarding the Seaver incident essentially
was that because ARCO did it once, it was likely that it did
it again. But as we previously have admonished,"[t]his type
of inference is precisely the kind prohibited by Rule 404(b)."
Pinney, 967 F.2d at 917.
Becker contends that our opinion in J&R Ice Cream is
factually distinguishable and therefore does not compel the
conclusion that the district court erred in admitting the
Seaver evidence. He argues specifically that we predicated
our analysis in J&R Ice Cream on our finding that
California Smoothie's business practice of representing
potential profits was not admissible to prove California
Smoothie's intent because intent was not an essential
element to a claim under the Act. See J&R Ice Cream, 31
F.3d at 1268.
We need not tarry on this argument, however, as it does
not address that aspect of our opinion in J&R Ice Cream
which is dispositive here. It is true that in J&R Ice Cream
we ruled that evidence of California Smoothie's"business
practice" was not admissible to establish its intent because
intent was not an essential element of the claim at issue.
But we further determined that the district court should
not have admitted the testimony of the other franchisees on
the theory that it established California Smoothie's
business "plan" because it did not satisfy the criteria for
admitting evidence under that exception in Rule 404(b). It
46
is the latter aspect of the reasoning in J&R Ice Cream which
we find determinative. Indeed, parallel with our conclusion
with respect to the disputed evidence in J&R Ice Cream, we
have determined that the Seaver evidence was not
admissible for the express purpose of proving ARCO's
intent to discriminate against Becker, and our finding in
that regard thus has required us to consider whether it
could be admitted under the "plan" exception listed in Rule
404(b). And to the extent that the plaintiff in J&R Ice Cream
sought to establish the same type of contested evidential
fact through the admission of a similar form of"business
practice" evidence, our analysis there clearly compels our
conclusion that the Seaver evidence is not admissible as
proof of ARCO's common scheme, plan, pattern or modus
operandi of fabricating performance problems in
terminating its employees.
We also point out that the district court stated that it
believed that the evidence was admissible under the theory
that it tended to show ARCO's "habit" when confronted with
the task of having to terminate its employees. App. at 3225-
26. It thus appears that the district court confused the
concepts of "modus operandi" and "habit or practice," the
latter of which is addressed in Rule 406, which provides:
Evidence of the habit of a person or of the routine
practice of an organization, whether corroborated or
not and regardless of the presence of eyewitnesses, is
relevant to prove that the conduct of the person or
organization on a particular occasion was in conformity
with the habit or routine practice.
The Advisory Committee Notes provide an instructive
explanation of the theoretical basis for this rule:
Character and habit are close akin. Character is a
generalized description of one's disposition, or of one's
disposition in respect to a general trait, such as
honesty, temperance, or peacefulness. Habit, in
modern usage, both lay and psychological, is more
specific. It describes one's regular response to a
repeated specific situation. . . . A habit [ ] . . . [ ] is the
person's regular practice of meeting a particular kind
of situation with a specific type of conduct, such as the
47
habit of going down a particular stairway two stairs at
a time, or of giving the hand-signal for a left turn, or of
alighting from railway cars while they are moving. The
doing of the habitual acts may become semi-automatic.
Fed. R. Evid. 406 advisory committee's note (internal
quotation marks omitted); see also 1 McCormick, supra
S 195, at 826 ("By and large, the detailed patterns of
situation-specific behavior that constitute habits are
unlikely to provoke such sympathy or antipathy as would
disturb the process of evaluating the evidence.").
Clearly, Rule 406 does not support the introduction of
the Seaver evidence on the basis that it was ARCO's"habit"
to fabricate reasons for terminating its employees. The
Seaver evidence did not show ARCO's "regular response to
a specific situation," as the nature of the alleged conduct--
the fabrication of reasons to justify its employees'
dismissals--is not the sort of semi-automatic, situation-
specific conduct admitted under the rule. Moreover, the
Seaver evidence ostensibly showed only, at best, one other
instance in which ARCO exhibited its alleged repetitive
behavior.
Finally, Becker contends that even if the court erred in
admitting the evidence pursuant to Rule 404(b), the
evidence was admissible under Rule 608(b). Appellee
Becker's Br. at 37-38 & n.10. Nevertheless, as ARCO
correctly points out, Rule 608(b) does not provide a basis
for admitting this testimony, inasmuch as the plain
language of the first sentence of the Rule prohibits the
introduction of extrinsic evidence to prove specific instances
of a witness's conduct for the purpose of attacking the
witness's credibility.12 See United States v. Davis, 183 F.3d
_________________________________________________________________
12. Rule 608(b) provides (emphasis added):
(b) Specific instances of conduct. Specific in stances of the
conduct
of a witness, for the purpose of attacking or supporting the
witness'
credibility, other than conviction of crime as provided in rule
609,
may not be proved by extrinsic evidence. They may, however, in the
discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the
witness (1) concerning the witness' character for truthfulness or
untruthfulness, or (2) concerning the character for truthfulness or
untruthfulness of another witness as to which character the witness
being cross-examined has testified.
48
231, 257 (3d Cir.) (discussing distinction between Rules
404(b) and 608(b) and finding that "Rule 608(b) applies
because the government did not introduce extrinsic
evidence about these other acts [by the testifying witness];
all it did was ask [the witness] about them"), as amended,
197 F.3d 662, 663 & n.1 (3d Cir. 1999). The Seaver
evidence clearly qualifies as extrinsic evidence, whether we
assume that Becker introduced it to contradict Victor's
testimony concerning the events which allegedly transpired
at the meeting in August 1990, or alternatively, to impeach
ARCO's suggestion through its witnesses that it retained its
older workers. In either event, Rule 608(b) does not support
the admission of the testimony, and we cannot uphold the
district court's ruling on that alternative basis.
As the foregoing discussion demonstrates, we have
considered each of the various rationales the district court
proffered in connection with its ruling on the Seaver
evidence, but have determined that none supports the
admission of Becker's testimony on this point. We hold,
therefore, that the district court abused its discretion in
admitting the Seaver evidence. In view of our finding in this
regard, we need not consider whether the evidence was
admissible under the balancing analysis contemplated by
Rule 403.
Despite the district court's error in admitting the
evidence under Rule 404(b), we would not be required to
reverse and remand for a new trial if we could find that the
court's admission of Seaver evidence was harmless. As we
have indicated, a finding of reversible error"may not be
predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected." See
Glass, 34 F.3d at 191 (internal quotation marks omitted).
"In reviewing evidentiary rulings, if the Courtfinds
nonconstitutional error in a civil suit, such error is
harmless only if it is highly probable that the error did not
affect the outcome of the case." Id. (internal quotation
marks omitted); see also McQueeney, 779 F.2d at 924-25
(stating that standard we adopted in Government of the
Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976),
governs harmless error determination in civil and criminal
cases).
49
At oral argument, Becker's counsel contended that if the
district court's evidentiary ruling was incorrect, the error
was harmless. Becker also pointed out that the court
provided a jury instruction, which we have reproduced in
its entirety above, that outlined the purposes for which the
Seaver evidence could be considered.
In response, ARCO countered that its admission was far
from harmless, inasmuch as this evidence was particularly
powerful and damaging to ARCO given its defense strategy.
It also pointed out that Becker's position before us--that
the testimony was insignificant in light of the other
evidence in the record--clearly was undermined by the fact
that Becker's attorneys repeatedly sought its admission
during the course of the trial.
We have reviewed the entire record in this case, and we
conclude that ARCO has the better argument here. First,
we note that the jury instruction the district court provided
concerning the proper uses of the Rule 404(b) evidence
does little to convince us that the district court's error was
harmless in the circumstances. In Sampson, we found that
the district court's jury instruction concerning the proper
uses of Rule 404(b) evidence provided inadequate guidance
to the jury on that point because it "simply repeat[ed] the
entire litany of permissible theories under Rule 404(b)," and
failed to limit the government to the theories it proffered in
support of admission of the evidence. 980 F.2d at 889.
Here, the district court's instruction is just as troublesome
as the one we addressed in Sampson, inasmuch as it
suffers from identical deficiencies. In our view, these
problems in the jury instruction certainly increase the
likelihood that the jury utilized this evidence for an
improper purpose-namely, to find ARCO liable based on an
impermissible inference concerning ARCO's "character" and
its propensity to fabricate or "trump up" problems with its
employees. Thus, the jury instruction the district court
provided here hardly supports Becker's harmless error
argument. See also State v. Fortin, No. 1-95/96 Sept. Term
1998, 2000 WL 202643, at *9 (N.J. Feb. 23, 2000) (when
Rule 404(b) evidence is admitted the trial court should give
a specific charge with reference to the factual content of the
case so that the jury may understand the purposes for
50
which the evidence may be considered); G.V., 744 A.2d at
144 (rejecting harmless error argument and observing that
"even if the evidence had been admissible on the subsidiary
issues in the case, the charge in this case left the jury
wholly unguided as to how to use the evidence for such
limited purposes").
Moreover, quite apart from the lack of real guidance in
the jury instruction, given its nature, we do not believe that
it can be argued successfully that the district court's error
in admitting the Seaver evidence was harmless. Just as we
found in J&R Ice Cream with respect to the Rule 404(b)
evidence there, the Seaver evidence clearly was prejudicial
because it portrayed ARCO as an organization engaged in a
scheme to get rid of its unwanted employees by lying to
them and falsifying complaints and other performance
problems to facilitate the disfavored employees' dismissals.
Also, the evidence was particularly damaging given the
theory of Becker's case--that his alleged performance
problems were fabricated and that the customer complaints
were "inaccurate" and "misleading." Furthermore, ARCO's
seemingly cruel way of dismissing Becker, a long-time
employee, could not have endeared it to the jury, thus
making the Seaver evidence all the more damaging. Indeed,
the district court noted the significance of the Seaver
evidence and its value to the plaintiff 's case, app. at 3229
("I don't think there will be any stronger evidence"), and
Becker's counsel spent a significant time in her closing
argument explaining her theory as to how this evidence
proved Becker's case against ARCO.13
_________________________________________________________________
13. Seizing on this evidence, admitted on the last day of trial, plaintiff
's
counsel made the following comments in her closing:
Now, we've also relied on other evidence, not just the
inconsistencies and contradictions. That's one part of it. If their
position is inconsistent or contradictory, you canfind that's
pretext.
Well, what's the evidence of pretext? We can rely on comments from
individuals as well.
. . . .
Now, in 1990 Dr. Ramey asked Mr. Becker to agree with him that
another individual's work, [Linwood] Seaver, was bad. Mr. Becker
51
Given these circumstances, we cannot say with
confidence that it is "highly probable that the error did not
substantially affect" ARCO's rights. J&R Ice Cream, 31 F.3d
at 1269 (citing Lippay v. Christos, 996 F.2d 1490, 1500 (3d
Cir. 1993)). To the contrary, the most we can say after
reviewing the record is that even without the Seaver
evidence, it would have been sufficient to support a verdict
in Becker's favor and that he would have had a reasonable
chance of obtaining that verdict.14 Accordingly, we are left
_________________________________________________________________
didn't do that. He didn't agree to lie. He wouldn't. And Mr. Victor
was present during that meeting. Mr. Victor was there, and his
presence there has some meaning. He was a participant by his
silence, by his being there. Just like if you said, I'm going to
kill so
and so and there's two people involved and one of them doesn't say
anything. Well, Mr. Victor was there and Mr. Becker refused to lie
for Dr. Ramey.
And you heard his testimony. I'm going to fire him anyway, he's
terminated. It doesn't matter if he did good work, just like it
doesn't
matter if Mr. Becker did good work. The same type of plan, the same
type of operation. Mr. Victor couldn't recall, couldn't remember. I
don't know, I don't recall, I don't remember. How many times did he
say that? Very selective memory. That's very important.
Mr. Becker refused to go along with it. And you know what, Mr.
Victor said, Mr. Becker doesn't lie. You heard him say that. He
never
lied to him. He's known to him to be a truthful person.
App. at 3268-69. Later in the closing, Becker's counsel stated:
In addition, the comment about asking Mr. Becker to lie about Mr.
Seaver's work so they could fire him in a similar manner. This,
together with the prima facie case we submit, please, shows that
age
played a role in Mr. Becker's firing, and of course, his rejection
of
that early retirement offer where he was targeted.
App. at 3279.
14. As we have indicated in note 3, supra, ARCO does not argue in this
appeal that it is entitled to judgment as a matter of law pursuant to Rule
50 based on the sufficiency of Becker's evidence of age discrimination.
We also point out here that ARCO does not contend that we should
instruct the district court to enter a judgment in its favor based on the
insufficiency of the remaining, properly admitted evidence concerning
ARCO's liability for age discrimination. See Weisgram v. Marley Co., 120
52
with no alternative but to reverse the district court's denial
of ARCO's post-trial motion insofar as it requested a new
trial on all issues, and remand the matter to the district
court with directions to grant a new trial on the federal and
state age discrimination claims.
V. CONCLUSION
We conclude with the following observation. The
proceedings in this matter and in Morley as well as other
cases we have cited demonstrate that great care must be
taken when a party offers Rule 404(b) evidence. The rule is
not easy to apply and its misapplication may lead to a
significant waste of the parties' and the court's time.
Indeed, in this case the result might have been the same
without the Seaver evidence. The important point is that a
party cannot justify admission of Rule 404(b) evidence
merely by reciting in conclusory terms that the evidence is
admissible under that rule.
For the foregoing reasons, we are constrained to hold
that the district court erred in admitting the Seaver
evidence, and that we cannot say that ARCO's substantial
rights were not affected. Accordingly, we will reverse the
district court's order of June 30, 1998, insofar as it denied
ARCO's motion for a new trial under Rule 59(a), and will
remand the matter to the district court with directions to
grant a new trial on all issues pertaining to the age
discrimination claims. Moreover, inasmuch as we have
determined that a new trial in its entirety is warranted, we
dismiss Becker's cross-appeal as moot.
_________________________________________________________________
S.Ct. 1011, 1022 (2000) ("We . . . hold that the authority of courts of
appeals to direct the entry of judgment as a matter of law extends to
cases in which, on excision of testimony erroneously admitted, there
remains insufficient evidence to support the jury's verdict."). In any
event, our review of the record and the remaining evidence presented at
trial confirms that ARCO is not entitled to a judgment in its favor at
this
juncture.
53
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
54