Glass v. Phila. Elec. Co. ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
9-8-1994
Glass v. Phila. Elec. Co.
Precedential or Non-Precedential:
Docket 92-1896
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 92-1896
HAROLD GLASS,
Appellant
v.
PHILADELPHIA ELECTRIC COMPANY
Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Docket No. 90-06370
Argued: July 1, 1993
Before: BECKER, ALITO and ROTH, Circuit Judges
(Opinion Filed: September 8, 1994)
Alice W. Ballard, Esquire (Argued)
Lynn Malmgren, Esquire
Samuel & Ballard
225 South 15th Street, Suite 1700
Philadelphia, PA 19102
Attorneys for Appellant
Dona S. Kahn, Esquire (Argued)
Hope A. Comisky, Esquire
Richard G. Tuttle, Esquire
Anderson, Kill, Olick & Oshinsky
1600 Market Street, Suite 1416
Philadelphia, PA 19103
Attorneys for Appellee
OPINION OF THE COURT
ROTH, Circuit Judge:
Harold Glass appeals from a jury verdict in favor of
the Philadelphia Electric Company ("PECO") in his action claiming
race discrimination, age discrimination, and retaliation in
employment. Glass alleges that the district court abused its
discretion when it repeatedly made evidentiary rulings against
him, excluding his evidence concerning the allegedly racially
hostile work environment at PECO's Eddystone Plant (the
"Eddystone evidence") where he worked from 1984 to 1986. Glass
claims that he was substantially prejudiced by the district
court's rulings for two reasons. First, while the district court
excluded Glass's Eddystone evidence, it admitted PECO's evidence
of Glass's performance at Eddystone. Consequently, Glass was
prohibited from telling his side of the story. Second, Glass
claims that the excluded Eddystone evidence is relevant to the
issue of pretext.
We conclude that the district court erred in excluding
Glass's Eddystone evidence. We find that the error was not
harmless; hence, we will reverse the district court's judgment
and remand for a new trial.1
1
. Glass also appeals on the grounds that the district court's
instructions to the jury on pretext contained an incorrect legal
standard. In light of our disposition, we will not reach this
issue. We will leave to the district court the opportunity, in
light of the evidence presented on remand, to draw up appropriate
jury instructions, following the precedents set forth in St.
Mary's Honor Center v. Hicks, 113 S. Ct. 2742 (1993), and its
I.
Glass worked at PECO for 23 years before he retired in
1990.2 During his career, Glass worked in three different
capacities: clerical (1967 to 1984), technical (1984 to 1986, and
1989 to 1990), and employee advocate (1986 to 1989).
While working full-time, Glass attended school to
improve his career opportunities. In May 1982, he received an
Associate Degree in Electrical Electronics Engineering
Technology. In December 1987, he received an Associate Degree in
Engineering. In May 1988, he received a Bachelor of Science
Degree in Industrial and Management Engineering. In December
1988, he received a Bachelor of Science Degree in Engineering.
PECO supported Glass's initiatives to obtain higher education by
covering all of his tuition expenses through their tuition
reimbursement program.
In addition to his full-time work and continuing
education, Glass was an activist on behalf of PECO employees.
His involvement with issues of employee and labor relations began
in 1968, when, along with other minority employees, he helped
organize the Black Grievance Committee ("BGC") to respond to
problems of racial fairness at PECO, including inadequate
(..continued)
progeny. See, e.g., Hook v. Ernst & Young, F.3d (3d Cir.
1994).
2
. Glass chose to take early retirement as part of a plan
offered by PECO during an overall cost cutting program caused by
the need for economic retrenchment.
representation of minorities by PECO's uncertified labor
organization, the Independent Group Association ("IGA").
For 20 years, from 1968 to 1988, Glass served as an
officer of the BGC. He represented employees in handling routine
individual grievances before management and negotiated with
management about employee concerns.
In addition, he served as the lead in organizing
witnesses in three actions against PECO concerning racially
discriminatory employment practices. In the early 1970's he was
a chief organizer in a pattern and practice race discrimination
action filed in federal court against PECO. (Harold Glass, et.
al. v. PECO). He was also an organizer and primary contact with
counsel in another federal pattern and practice race
discrimination suit, Black Grievance Committee, et. al. v. PECO,
which resulted in a settlement that removed barriers to black
employees' opportunities, increased employee productivity,
improved the communications between PECO and its employees, and
affected supervisory behavior as a result of an affirmative
action training module. In 1982, Glass filed an unfair labor
practice charge with the NLRB that resulted in a complaint and
settlement requiring PECO to recognize the BGC in its employee
handbook as an alternative source for employees seeking help in
matters of discrimination or affirmative action. (NLRB v. PECO).
The settlement also resulted in a creation of the BGC/IGA Liaison
Representative, the position which Glass held during the years
1986 through 1989.
Throughout his 23 years of employment with PECO, Glass
received only one performance evaluation which was less than
fully satisfactory. This occurred while he was serving as a
junior technical assistant ("JTA") at Eddystone. During that
time, Glass alleges that he was the target of racial harassment
by his co-workers. He further suggests that the harassment had a
negative effect upon his work performance.
In 1982, Glass unsuccessfully applied for the position
of Affirmative Action Officer in Human Resources. In early 1989,
having obtained two baccalaureate engineering degrees, he sought
a promotion from the position of JTA to that of Engineer;
however, he never heard from the three departments to which he
applied. When he inquired later about the status of these
applications, he was told that "some of the people were scared to
take a chance on [him]." App. at 121. In particular, management
pointed to his poor performance evaluation while at the Eddystone
Station. App. at 114.
In late 1989, Glass applied for posted vacancies of
Labor Relations Representative (three vacancies) and Affirmative
Action Staff Assistant (one vacancy). Glass was rejected in both
cases, in favor of younger white applicants because of
management's claim that he was not a "team player," App. at 155,
a reference to management's perceptions of Glass's tenure or
conduct as an employee advocate. In addition, PECO filled other
positions, without posting, that Glass would like to have been
considered for, including that of Affirmative Action Officer,
which was filled again in 1987, and that of Employee Relations
Specialist, which was filled once in 1988 and once in 1989, by a
white candidate in each case.
Glass left the position of Liaison Representative in
early 1989 and returned to technical work as a JTA. He retired
at age 54 from this position. When he was not selected to fill
the aforementioned job openings at PECO in 1989 and 1990, Glass
brought this action against PECO on October 3, 1990, claiming
that he was discriminated against on the basis of his race and
age and in retaliation for his activities as a minority advocate.
The District Court for the Eastern District of
Pennsylvania had subject matter jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1334 over this claim which alleges violations
of the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Civil
Rights Act of 1964, 42 U.S.C. § 2000, et seq.; and the Age
Discrimination in Employment Act, 29 U.S.C. § 621, et seq. The
district court exercised supplemental jurisdiction over claims
brought under the Pennsylvania Human Relations Act, 43 P.S. §
951, et seq. We have jurisdiction over Glass's appeal pursuant
to 28 U.S.C. § 1291.
II.
We review pre-trial and trial court rulings concerning
the admission or evidence for an abuse of discretion. In re
Japanese Electronic Products, 723 F.2d 238, 260 (3d Cir. 1983),
rev'd on other grounds, Matsushita Electronic Industrial Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). Similarly, we
review the district court's decision to include or exclude
evidence arising under the Federal Rules of Evidence 401, 402 and
403 for an abuse of discretion. Pfeiffer v. Marion Center Area
School District, 917 F.2d 779, 781-82 (3d Cir. 1990). We have
explained that "error may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the
party is affected . . . ." Linkstrom v. Golden T. Farms, 883
F.2d 269, 269 (3d Cir. 1989); Fed. R. Evid. 103(a). 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." Lockhart
v. Westinghouse Credit Corp., 879 F.2d 43, 53, 59 (3d Cir. 1989).
A.
We note at the outset that the trial court admitted
PECO's evidence of Glass's conduct at Eddystone and excluded
Glass's Eddystone evidence without articulating a balance between
the probative value and the prejudicial effect of the evidence as
required by Fed. R. Evid. 4033 and the jurisprudence of this
3
. Fed. R. Evid. 403 states:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
Court. See, e.g., United States v. Downing, 753 F.2d 1224, 1243
(3d Cir. 1985) (declining to decide the Rule 403 question where
the district court neither mentioned Rule 403 on the record nor
"conducted the balancing required by that rule"); United States
v. Long, 574 F.2d 761, 770 (3d Cir.) (Adams, concurring) (the
record should reflect, at least minimally, that balancing
occurred), cert. denied, 439 U.S. 985 (1978). Therefore, it is
not clear for purposes of our review that the district court
actually excluded any evidence under Rule 403 despite the
district court's language suggesting that its rulings involve
some Rule 403 concerns, i.e.: "Let's not relitigate the
Eddystone matter. I'll sustain the objection." App. at 358.
PECO contends that the trial court conducted a Rule 403
balancing when it granted PECO's pre-trial motion in limine. As
PECO had requested, the district court ordered that no evidence
would be admitted at trial in two categories: 1) pre-May 1989
evidence about alleged discriminatory treatment of Glass by PECO
that predates the statutory period covered by Glass's current
claims, and 2) evidence of prior settlement agreements or consent
decrees entered into by PECO. While the district court's order
does not give any reasons for granting PECO's motion, Glass's
motion in opposition to PECO's motion in limine appears to invoke
Rule 403 by opposing PECO's claims that the evidence "is
(..continued)
misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.
prejudicial, confusing and will promote delay in the
proceedings." App. at 3.
If we consider PECO's motion in limine as the
equivalent of a specific Rule 403 objection to the Eddystone
evidence, then "we must confront the trial court's failure to
articulate its balance between the probative value and the
prejudicial effect of the evidence in one of two ways: either we
decide the trial court implicitly performed the required balance;
or, if we decide the trial court did not, we undertake to perform
the balance ourselves." United States v. Eufrasio, 935 F.2d 553,
572 (3d Cir. 1991) (citation omitted). Independent of either
method, "the trial court's failure to expressly articulate a Rule
403 balance when faced with a Rule 403 objection, would not be
reversible error per se." Id.
If, on the other hand, we decide that PECO's motion in
limine did not constitute a specific Rule 403 objection to the
admission of the Eddystone evidence, then the trial court was not
required to strike a Rule 403 balance on the record sua sponte.4
We note that PECO's and Glass's understanding of what the trial
court did is significant to our analysis. Both parties
4
. "Since the 'specific' objection requirement of Fed. R. Evid.
103(a) was not complied with, the trial judge was not required to
deal with Rule 403. . . . [T]he dynamics of trial do not always
permit a Rule 403 analysis in . . . detail . . .. [T]o require a
detailed balancing statement in each and every case is
unrealistic. . . . [W]here [a] Rule 403 [objection] is not
invoked, the trial judge's balancing will be subsumed in his
ruling." United States v. Long, 574 F.2d 761, 766 (3d Cir.),
cert. denied, 439 U.S. 985 (1978) (emphasis added).
communicated at oral argument their belief that the trial judge
based his evidentiary rulings on Rule 403.
We determine, however, that we do not in fact need to
base our decision here on a resolution of whether or not PECO's
pre-trial motion in limine constituted a Rule 403 objection.5
Reviewing the trial transcript, including, on the one hand, the
references by the defense to Glass's performance at Eddystone and
the effect his poor performance rating there had on his later
attempts at promotion and, on the other hand, the proffers made
by Glass at those times as to what he would show concerning the
impact of the racial harassment on his performance and his
performance evaluation, we conclude that the district court's
repeated refusal to grant Glass's attempts to admit the Eddystone
evidence was an abuse of discretion.
B.
On the second day of trial at a sidebar conference, the
court ruled that evidence of the allegedly hostile racial
environment at Eddystone in the mid-1980's was inadmissible.
Glass's counsel made the following offer of proof:
BALLARD: If permitted, I would also offer evidence of
the environment Mr. Glass encountered at Eddystone
Station when he went there as a junior technical
assistant in 1984 to show why he had difficulty
5
. Indeed, it may be difficult for the district court at the
pre-trial stage to make an adequate assessment of the Rule 403
balancing. See In re Paoli R.R. Yard PCB Litigation, 916 F.2d
829, 859-60 (3d Cir. 1990) ("[I]n order to exclude evidence under
Rule 403 at the pretrial stage, a court must have a record
complete enough on the point at issue to be considered a virtual
surrogate for a trial record.")
performing there, to show that he was the victim of a
discriminatory and harassing environment there. And I
understand Your Judge's ruling of two -- Your Honor's
ruling of two days ago to say that I should stay away
from that as well.
THE COURT: That's correct.
App. at 66. Glass contends that, if the Eddystone evidence had
been admitted, it would have shown that the more senior technical
employees posted hostile and demeaning images about him on the
plant premises and that he was the subject of racially derogatory
remarks. It would also have shown that the training and
performance of junior technical assistants depended directly on
the goodwill and support of the more experienced technical
assistants and senior technical assistants who train and evaluate
the junior technical assistants. Glass maintains that his
behavior and his opportunity to learn and perform effectively was
impaired by the hostile environment in which he worked.
The trial court repeatedly sustained PECO's objections
to Glass's attempts to introduce evidence concerning these
events. Glass testified that his activities on behalf of
employees and as BGC/IGA Representative qualified him for the
position of Labor Relations Representative. The requirements for
the job of Labor Relations Representative were: a "bachelor's
degree in human resource management or labor relations, or
significant labor relations work experience or equivalent
combination of work experience and successful completion of
college courses covering such areas as labor relations, general
accounting, managerial accounting, and/or compensation and
benefits." Glass had both an appropriate college degree (B.S.,
Industrial and Management Engineering) and the relevant
coursework. He also had equivalent work experience developing
and handling employee grievances, negotiating with management and
settling major lawsuits related to employee relations and labor
law. His academic background and his work experience qualified
him for the job and afforded him an interview with James Lange,
Director of Labor Relations.
Even though Glass had met the education requirements
and had the experiential background in labor relations, a
qualification characterized as "preferred" on the job posting, he
was rejected in favor of younger, white candidates, none of whom
had comparable employee or labor relations experience. Lange
testified that one reason he rejected Glass was his poor
performance at Eddystone. Glass attempted to pursue the extent
of Lange's knowledge of the Eddystone events on cross-
examination:
Q No, my question is the previous
performance that you identified as one of the
reasons why you turned him down. ...
A Uh-huh.
Q ... that was his performance at Eddystone,
isn't it?
A In part.
Q Now, did you do any investigation
regarding his performance at Eddystone to see
whether he had been the victim of unfair
treatment there?
A No, I did not.
Q Did he tell you that he had been the
victim of unfair treatment there?
A Yes, he had.
Q Did he tell you that people had posted
hostile pictures of him on the wall ...
MS. KAHN: Objection, ...
Q ... when he was ...
MS. KAHN: ... Your Honor.
Q ... at Eddystone?
THE COURT: Let's not relitigate the
Eddystone matter. I -- I'll sustain the
objection.
App. at 357-58.
PECO also claimed that Glass was rejected because of
poor interpersonal skills, the focus of the testimony of Malcolm
Riley, Glass's boss at Eddystone. Riley testified about Glass's
role as BGC representative while at Eddystone during the same
period. Glass was not permitted to cross-examine Malcolm Riley
about the relationship between the hostile work environment and
Riley's judgment that Glass's behavior during this time evidenced
poor interpersonal skills:
Q Do you remember a time, Mr. Riley, when
somebody at Eddystone Station put some
pictures up on the board of Harold Glass?
MS. KAHN: Objection, Your Honor.
Objection, Your Honor. This is constantly
brought into the case. It was ruled that it
was not relevant.
THE COURT: I agree. Now, let me
see counsel one moment at sidebar.
App. at 404.
Glass was similarly denied the opportunity to introduce
evidence of the circumstances at Eddystone in the context of his
claim that PECO's refusal to hire him as an engineer in 1989-90
was discriminatory. Alvin Weigand, head of the engineering
division in which Glass worked, testified that he told Glass that
a promotion to engineer would be conditioned on his
satisfactorily performing in a JTA position for two years. Glass
denied having ever been told that the probationary period was for
two years but instead understood that a waiting period of
indefinite duration was being imposed on him. In any event, a
probationary period, whether two years or open-ended, was not
applied to any other degreed candidate for an engineering job.
Glass declined the job.
At trial, Weigand testified that he imposed the
probationary period because of Glass's poor performance while at
Eddystone. Glass attempted to pursue the extent of Weigand's
knowledge of the Eddystone events on cross-examination:
Q Now, you said that you were aware of his
past performance problems, in the technical
field. How did you know what kinds of
problems you thought he had had? Sorry.
That's a terrible question. What, quote,
performance problems, close quote, were you
aware of?
A I was aware that he was not receiving
satisfactory performance appraisals in his
JTA job at Eddystone Station, and I was aware
that he was not being promoted to TA which is
the normal progression, and that was in my
organization, down a couple levels.
Q Were you aware that he had had difficulty
on the job at Eddystone of a personal nature
in connection with the other employees?
MS. KAHN: Objection, Your honor.
Again, we're going back into history which
was ruled irrelevant.
THE COURT: The objection's sustained.
App. at 426. With PECO's objection sustained, Glass was
repeatedly unable to introduce any evidence concerning the
racially hostile environment at Eddystone station, management's
failure to take corrective action when it learned of the
harassment, or the connection between these incidents and his
negative performance evaluation.
We find that the district court abused its discretion
for the following reasons: First, in the federal courts, the
scope of permissible cross-examination is set forth in Fed. R.
Evid. 611(b): "Cross-examination should be limited to the
subject matter of the direct examination and matters affecting
the credibility of the witness." See also United States v.
Sullivan, 803 F.2d 87, 90 (3d Cir. 1986). The district court
erred by allowing PECO's witnesses, Lange, Riley and Weigand, to
testify about their knowledge of the events at Eddystone but then
not allowing Glass to cross-examine those witnesses as to the
basis or extent of their knowledge.
Second, we find that the Eddystone evidence is
independently relevant to a key aspect of the case: whether one
of the principal non-discriminatory reasons asserted by PECO for
its actions was in fact a pretext for age or race discrimination.
In St. Mary's Honor Center v. Hicks, the Supreme Court confirmed
that, under the well-established burden-shifting formula of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 253 (1981), in a
Title VII case alleging employment discrimination:
First, the plaintiff has the burden of
proving by a preponderance of the evidence a
prima facie case of discrimination. Second,
if the plaintiff succeeds in proving the
prima facie case, the burden shifts to the
defendant to articulate some legitimate, non-
discriminatory reason for the employee's
rejection. Third, should the defendant carry
this burden, the plaintiff must then have an
opportunity to prove by a preponderance of
the evidence that the legitimate reasons
offered by the defendant were not his true
reasons, but were a pretext for
discrimination.
Burdine, 450 U.S. at 252-53; see St. Mary's Honor Center, 113
S. Ct. at 2749 (reaffirming "our repeated admonition that the
Title VII plaintiff at all times bears the 'ultimate burden of
persuasion'" of intentional discrimination). This formula
applies equally to claims of age discrimination in employment
under ADEA. See Chipollini v. Spencer Gifts, Inc., 814 F.2d 893,
897 (3d Cir. 1987) (in banc). Since Glass had introduced
sufficient evidence to establish a prima facie case and PECO had
asserted several nondiscriminatory reasons for its actions,
including Glass's poor performance at Eddystone, the Eddystone
evidence is relevant and should have been admitted to help Glass
meet his burden of proving intentional discrimination as Glass's
counsel proposed in her proffer on three occasions during the
trial. The district court's rejection of Glass's proffers was
error. The preclusion of the evidence deprived Glass of a full
hearing on the issue of pretext and was, therefore, not harmless
error; rather, it is highly probable that the evidentiary rulings
affected the outcome of the case. Lockhart v. Westinghouse
Credit Corp., 879 F.2d 43, 53 (3d Cir. 1989).6
Our decision is buttressed by the judicial
inhospitability to evidentiary exclusions in discrimination
cases. The Eighth Circuit explained in reversing similar
evidentiary exclusions in an employment discrimination suit:
The effects of blanket evidentiary exclusions
can be especially damaging in employment
discrimination cases, in which plaintiffs
must face the difficult task of persuading
the fact-finder to disbelieve an employer's
account of his own motives.
6
. A Rule 403 balancing, if requested, would be a part of any
ruling on a particular aspect of the Eddystone evidence, as such
evidence might be relevant to the issue of pretext. We conclude,
however, that such a balancing of particular items of Eddystone
evidence would be better made on remand by the trial judge, as
testimony is proffered, than it would by us, out of context, at
this stage of the proceedings.
. . .
Circumstantial proof of discrimination
typically includes unflattering testimony
about the employer's history and work
practices -- evidence which in other kinds of
cases may well unfairly prejudice the jury
against the defendant. In discrimination
cases, however, such background evidence may
be critical for jury's assessment of whether
a given employer was more likely than not to
have acted from an unlawful motive.
Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir.
1984).
Citing this passage from Estes, the Eighth Circuit in
Hawkins v. Hennepin Technical Center, 900 F.2d 153, 155 (8th Cir.
1990), reversed summary judgment for the defendant in a disparate
treatment sex discrimination case holding that the district court
abused its discretion in barring the plaintiff from introducing
evidence of prior sexual harassment of herself and other
employees of the defendant. The magistrate judge had determined
that any evidence, beyond the fact that the plaintiff had filed
certain harassment complaints against the defendant in the past,
was not relevant to the plaintiff's claim that she suffered
disadvantageous employment decisions as a result of her gender
and in retaliation for complaints of sexual harassment made by
her while employed by the defendant.
The court of appeals disagreed, finding that evidence
of the nature of the harassment complaints and the defendant's
disposition of those complaints was highly relevant to the
plaintiff's case because "an atmosphere of condoned sexual
harassment in a workplace increases the likelihood of retaliation
for complaints in individual cases." 900 F.2d 156. See also
Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421 (7th Cir.
1986) (affirming district court's decision to admit plaintiff's
evidence of harassment against other black workers in case
alleging racially discriminatory discharge because "evidence was
relevant both in showing that Allis Chalmers condoned racial
harassment by its workers and in rebutting Allis Chalmers'
defense that it had fired Hunter for cause.").
III.
For the foregoing reasons, we conclude that the
district court abused its discretion by repeatedly barring Glass
at trial from introducing evidence about the hostile work
environment at Eddystone and from eliciting testimony of how it
related to Glass's performance, which, according to PECO, had
operated to defeat his candidacy for the positions of Labor
Relations Representative and Engineer. We will, therefore,
reverse the district court's judgment and remand this case for a
new trial.
Glass v. Philadelphia Electric
No. 92-1896
ALITO, Circuit Judge, dissenting:
Harold Glass, who was employed for many years by the
Philadelphia Electric Company ("PECO"), sued his former employer
for allegedly discriminating against him based on race and age
and for allegedly retaliating against him because of his pursuit
of other discrimination claims.7 His case was tried before a
jury, and the jury was requested to answer special
interrogatories that asked whether PECO had discriminated against
the plaintiff on the basis of race or age or had illegally
retaliated against him when it failed to promote him to a variety
of positions that were filled in the late 1980's. The jury found
no such discrimination or retaliation, and the court entered
judgment for PECO.
On appeal, the plaintiff contended, among other things,
that the district court abused its discretion under Fed. R. Evid.
403 by excluding evidence that he had been subjected to a
racially hostile environment when he worked at PECO's Eddystone
Generating Station in the mid-1980's. The plaintiff argued that
this evidence was relevant to show that PECO's asserted reasons
for denying the promotions were pretextual and that this evidence
7
. He asserted claims under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq.; the Age Discrimination in
Employment Act, 29 U.S.C. § 623; 42 U.S.C. § 1981; and the
Pennsylvania Human Relations Act, 43 P.S. § 951 et seq.
should not have been excluded under Rule 403. See Appellant's
Br. at 17-26. The majority agrees with the plaintiff's argument
and therefore reverses the judgment of the district court and
remands for a new trial. In doing so, the majority makes little
effort to explain why the excluded evidence had probative value
or to address the factors weighing against exclusion. In my
view, when both sides of the Rule 403 balance are carefully
considered and the proper standard of appellate review is
applied, the district court's rulings under Fed. R. Evid. 403
must be sustained. Moreover, even if those rulings were
incorrect, they were harmless with respect to several of the
positions at issue. For these reasons, I dissent.
I.
Before addressing the merits of the district court's
evidentiary rulings, I will briefly supplement the procedural
history set out in the majority opinion. Prior to trial, PECO
filed a motion in limine seeking to preclude the plaintiff from
introducing evidence of discriminatory acts that allegedly
occurred before "the statutory period covered by the charge
[Glass] filed with the Pennsylvania Human Relations Commission
and the Equal Employment Opportunity Commission. . . ."
Defendant's Motion In Limine at 1. PECO argued that this
evidence was not relevant under Fed. R. Evid. 401 and that it
should in any event be excluded under Fed. R. Evid. 403. PECO
stated:
[E]ven if this Court were to conclude that
some or all of this evidence might be
marginally relevant and otherwise admissible,
if it is introduced, the Court will be forced
to preside over -- and defendants will be
forced to defend against -- numerous
collateral matters to be tried within the
main trial. These mini-trials would concern
actions by decision-makers who were not
involved at all in any of the action in the
fall and winter of 1989 that Glass is
challenging in this case. In many instances,
they would concern events which occurred many
years before the events actually in
controversy here. Furthermore, by admitting
this evidence, the jury will hear an
overabundance of tangential, collateral and
irrelevant issues which will undoubtedly
confuse its consideration of the true issues
in this case. There would be at least
several extra days of trial time and
ultimately, should this evidence be admitted,
defendant will be unfairly prejudiced in its
defense.
Memorandum of Law in Support of Defendant's Motion In Limine at
4-5. See also id. at 15-16.
The plaintiff then filed a lengthy memorandum in
opposition to this motion. In this memorandum, the plaintiff
stated that he "propose[d] to introduce evidence of his
employment history, including his activities as an employee
representative, to prove he was qualified for the positions he
now claims he was denied because of his age and race." App. 3-4.
After describing the plaintiff's work as a officer of the Black
Grievance Committee, the memorandum stated:
[T]he story of Mr. Glass' activism directly
supports his contention that he was qualified
for the jobs he was denied, and that despite
these qualifications, he was rejected for
pretextual reasons. . . .
In short, Mr. Glass' pre-1989 evidence
is relevant for the purpose of showing that
he was particularly qualified for the 1989-
1990 positions, and that this entire history
of activism in employee and labor relations
is consistent with a promotion into one of
them.
App. 9-10. The memo also stated:
[I]t is important to note what Plaintiff does
not intend with regard to pre-1989 evidence.
Plaintiff Glass does not intend to make
actionable any of Defendant's promotional
decisions which predate the limitations
period in this action. Nor does Plaintiff
intend to prove the existence of a pattern or
practice of discrimination. . . .
App. 8-9. Not once in this memo did the plaintiff state that he
proposed to introduce evidence that he was subjected to racial
harassment or a racially hostile work environment during the
period when he worked at PECO's Eddystone station (from 1984 to
1986) or at any other time.8
PECO next filed a reply memorandum. PECO argued that
the plaintiff's pre-1989 experience representing other employees
was not relevant with respect to several of the positions to
8
. 8. Nor was harassment or a racially hostile environment at
Eddystone mentioned in the plaintiff's affidavit in opposition to
the motion in limine.
which he claimed he should have been promoted. However, with
respect to some other positions -- the position of Affirmative
Action Staff Assistant and three positions as a Labor Relations
Representative -- PECO offered "to stipulate that plaintiff's
activities on behalf of other employees provided him with the
experience to meet certain criteria set forth in the job
requisitions" for those positions. Rely Memorandum of Law in
Support of Defendant's Motion In Limine at 7.
The plaintiff then filed a surreply objecting to the
proposed stipulation because it would deprive him of "the
opportunity to present the depth and texture of those
qualifications to a jury." App. 16. This surreply, like the
plaintiff's prior memorandum, made absolutely no mention of
racial harassment or a racially hostile atmosphere at Eddystone
or anywhere else.
After receiving these submissions, the district court,
a few days before trial, entered an order granting PECO's motion.
Because the district court did not explain the basis for its
ruling, it is unclear whether the court held that the evidence of
pre-1989 events was not relevant or whether the court concluded
that the evidence should be excluded under Rule 403. In any
event, however, I do not think that the plaintiff can attack this
ruling on the ground that it improperly precluded him from
proving that he had been subjected to racial harassment at
Eddystone prior to 1989. Having explained to the district court
precisely what evidence of pre-1989 events he wanted to introduce
and precisely why he wanted to introduce that evidence, and
having said nothing about evidence of racial harassment or a
racially hostile atmosphere at Eddystone or anywhere else, the
plaintiff cannot, in my view, argue that the district court erred
in failing to admit such evidence. See Fed. R. Evid. 103(a)(2);
Northeast Women's Center, Inc. v. McMonagle, 868 F.2d 1342, 1352-
53 (3d Cir.), cert. denied, 493 U.S. 901 (1989).
When the trial began two days after the district
court's order granting the motion in limine had been entered and
sent to the parties, the plaintiff's counsel made an oral offer
of proof, and the following colloquy occurred:
MS. BALLARD [plaintiff's counsel]: If
permitted, I would also offer evidence of the
environment Mr. Glass encountered at
Eddystone Station when he went there as a
junior technical assistant in 1984 to show
why he had difficulty performing there, to
show that he was the victim of a
discriminatory and harassing environment
there. And I understand your Judge's ruling
of two -- Your Honor's ruling of two days ago
to say that I should stay away from that as
well.
THE COURT: That's correct.
MS. BALLARD: All right. And that would
include the pictures that were placed on the
wall that . . .
THE COURT: Right.
MS. BALLARD: . . . degraded Mr. Glass'
personality.
THE COURT: Right. All these rulings
are made without prejudice to your renewing
them if at a later time it turns out from the
testimony that it might be appropriate to
bring that in. But on your case in chief,
I've ruled that it's not admissible at this
time.
App. 66-67.
While this oral offer of proof, unlike the plaintiff's
prior memoranda, referred to evidence of racial harassment at
Eddystone, plaintiff's counsel still did not explain how proof of
this harassment, apparently by co-workers,9 was relevant to prove
that PECO officials had discriminated or retaliated against the
plaintiff when they denied him certain promotions years later.
In particular, plaintiff's counsel did not claim that this
evidence was relevant to show that PECO's reasons for denying the
plaintiff these promotions were pretextual. Thus, if I had been
the trial judge, I am not sure that I would have grasped, based
on the plaintiff's prior memoranda and this short exchange, that
the plaintiff was proposing to prove the harassment at Eddystone
for the purpose of showing pretext. But even if it is assumed
that the plaintiff's oral offer of proof was sufficient to convey
this point, the fact remains that the trial judge did not
categorically bar proof of the events at Eddystone. On the
contrary, the judge expressly stated that his rulings on the
motion in limine were "made without prejudice to the [the
plaintiff's] renewing them if at a later time it turn[ed] out
9
. See App. 405-06.
from the testimony that it might be appropriate to bring that
in." App. 67. Accordingly, I do not think that the cases cited
by the majority concerning "blanket evidentiary exclusions" (see
Maj. Typescript at 16 (quoting Estes v. Dick Smith Ford, Inc.,
856 F.2d 1097, 1103 (8th Cir. 1984)) are at all pertinent.10
Instead, I think that it was incumbent on the plaintiff to renew
his request to admit evidence concerning events at Eddystone as
the trial developed. The plaintiff did so; the district court
then ruled; and it is these specific rulings, in my view, that we
must review.
The exchanges that led to these specific rulings are
quoted in the opinion of the court (see Maj. Typescript at 11-
14), and therefore I will not repeat them here. I will, however,
note two salient features of these exchanges. First, at no point
did the plaintiff's attorney refer to the concept of "pretext" or
provide a clear explanation of the relevance of the Eddystone
evidence. Second, at no point did the trial judge refer to Rule
403 or provide a clear explanation of the basis of his rulings
10
. The two cases discussed by the majority -- Estes and
Hawkins v. Hennepin Technical Center, 900 F.2d 153, 155 (8th
Cir.) cert. denied, 498 U.S. 854 (1990), -- are readily
distinguishable from the current case on at least two important
grounds. First, those cases concern pretrial orders
categorically prohibiting the admission of certain evidence,
whereas in this case the trial judge expressly stated that his
pretrial order was made without prejudice to the plaintiff's
attempt to admit the evidence at a later point. Second, in Estes
and Hawkins, unlike this case, introduction of the evidence in
question was sought for the purpose of proving a pattern of
discrimination.
excluding the evidence in question. Faced with this ambiguous
record, I think it is appropriate to give both sides the benefit
of the doubt. Consequently, I construe the remarks of
plaintiff's counsel as having preserved the argument that the
Eddystone evidence was relevant to show pretext, and (like
counsel for both parties11) I construe the district court's
ruling as having been based on an implicit balancing pursuant to
Rule 403. See United States v. Eufrasio, 935 F.2d 553, 572 (3d
Cir.), cert. denied, 112 S. Ct. 340 (1991). In this regard, I
note that the district court did say that it did not want to
"relitigate the Eddystone matter" (App. 358), and I interpret
this reference as essentially accepting PECO's argument in favor
of exclusion under Rule 403. If this interpretation of the
district court's reasoning is too generous, it is no more
generous than my reading of the plaintiff's explanation of the
relevance of the Eddystone evidence. Thus, based on these
interpretations of the record, it seems to me that the issue
before us is the following: did the district court commit
reversible error in concluding that the Eddystone evidence's
probative value for the purpose of proving pretext was
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay and waste of time?
See Fed. R. Evid. 403. I therefore turn to this question.
11
. See Appellant's Br. at 15; oral argument Tr. at 17.
II.
According to our precedents, "[a] trial judge is given
``very substantial discretion' when striking a Rule 403 balance."
Eufrasio, 935 F.2d at 572. A trial judge's ruling under Rule 403
may be reversed only if the judge committed an abuse of
discretion. Id. Indeed, we have held that "a trial judge's
decision to admit or exclude evidence under Fed. R. Evid. 403 may
not be reversed unless it is ``arbitrary and irrational.'" Bhaya
v. Westinghouse Elec. Corp., 922 F.2d 184, 187 (3d Cir. 1990),
cert. denied, 501 U.S. 1217 (1991), (quoting United States v.
DePeri, 778 F.2d 963, 973-74 (3d Cir. 1985), cert. denied, 475
U.S. 1110 and 476 U.S. 1159 (1986)); see also United States v.
Friedland, 660 F.2d 919, 929 (3d Cir. 1981), cert. denied, 456
U.S. 989 (1982); United States v. Long, 574 F.2d 761, 767 (3d
Cir.), cert. denied, 439 U.S. 985 (1978). We have also observed:
If judicial self-restraint is ever desirable,
it is when a Rule 403 analysis of a trial
court is reviewed by an appellate tribunal.
United States v. Long, 574 F.2d at 767; see also Eufrasio, 935
F.2d at 572. As the Seventh Circuit aptly wrote in a case quite
similar to this one:
The balancing of probative value and prejudicial
effect, like other comparisons of intangibles, requires
an exercise of judgment rather than a computation.
Only in an extreme case are appellate judges competent
to second-guess the judgment of the person on the spot,
the trial judge.
Sims v. Mulcahy, 902 F.2d 524, 531 (7th Cir.), cert. denied,
498 U.S. 897 (1990) (citation omitted).
Applying an abuse-of-discretion standard, I think that
the trial judge's ruling in this case must be sustained. I
recognize that evidence that the plaintiff was subjected to
racial harassment or a racially hostile atmosphere at Eddystone
has some probative value for the purpose of showing that PECO's
reliance on plaintiff's poor evaluation while at Eddystone was
pretextual. If the plaintiff was harassed at Eddystone, that
harassment might have caused or contributed to his poor
performance rating. Thus, evidence of harassment at Eddystone is
relevant to show that the plaintiff's performance rating for that
period was inaccurate. The plaintiff's poor rating at Eddystone
was cited as a reason for PECO's denial of the plaintiff's
requests for promotion to positions as a Labor Relations
Specialist and to an engineering position. If the officials who
made the decisions concerning these promotions knew or believed
that the Eddystone evaluation had been affected by the harassment
and was therefore inaccurate, that would tend to show that their
reliance on this rating was pretextual. Consequently, proof of
the plaintiff's harassment at Eddystone could form part of a
chain of reasoning leading to the inference that the PECO
decisionmakers discriminated or retaliated against the plaintiff.
But while the evidence of harassment at Eddystone that
the plaintiff was precluded from introducing thus has some
probative value, its probative value is limited. First, with
respect to the positions as a Labor Relations Representative,
PECO did not rely heavily on the plaintiff's performance at
Eddystone as an explanation for its decisions. The official
responsible for filling these positions, James Lange, listed
numerous other reasons why he did not choose the plaintiff.
Among other things, Lange mentioned: his belief that the
plaintiff was unable "to function as a change agent" and was
"wedded to the past way of doing things" (9/25/92 Tr. at 154-56);
his concern about the plaintiff's "ability to be objective in the
area of labor relations" (id. at 163); his view that the
plaintiff was not a "team player" (id. at 163-64); PECO's policy
of giving preference to candidates from within the same
department (9/29/92 Tr. at 109); the plaintiff's failure to meet
educational requirements (id. at 113); and concerns about the
plaintiff related to "issues like credibility, confidentiality,
[and] trustworthiness." Id. at 168. Moreover, while Lange
stated that he had initially been concerned about the plaintiff's
performance at Eddystone, he added that, when he heard the
plaintiff's explanation of the reason for his poor rating during
that period, this explanation "helped alleviate some of the
concerns." 9/25/92 Tr. at 158. Second, the plaintiff was able
to bring out some evidence of harassment at Eddystone. His
attorney elicited testimony that the plaintiff had told Lange
that he had been a "victim of harassment" and had "experience[d]
problems." Id. at 158-59. Third, it seems to me that the
probative value of evidence of harassment at Eddystone was
substantially undermined by the plaintiff's unwillingness to
argue that the PECO decisionmakers who were responsible for
denying him the promotions at issue believed that the Eddystone
evaluation was inaccurate. As I previously explained, it appears
to me that evidence of harassment at Eddystone is relevant
primarily, if not exclusively, as part of a chain of reasoning
that includes, as one link in the chain, the conclusion that PECO
officials cited the Eddystone evaluation as a reason for their
decisions even though they did not actually believe that this
evaluation was an accurate reflection of the plaintiff's
abilities. Plaintiff's counsel has argued strenuously, however,
that she did not want to prove that the PECO decisionmakers lied
when they gave their reasons for not promoting the plaintiff.12
Instead, the plaintiff's theory was that these officials were
guilty of "unconscious forms of pretext."13 Putting aside the
question of whether, as a matter of law, a plaintiff in a
disparate treatment case may prevail based on evidence of
"unconscious" discrimination,14 it seems to me that the
12
. "[M]endacity," she stated, "was not in my proof." I think
that the defense witnesses in this case were telling the truth
when they [gave the reasons for their decisions]. Oral Argument
Tr. at 12.
13
. Id. at 53.
14
. Compare International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 335 n.15 (1977), with David Benjamin
Oppenheimer, Negligent Discrimination, 141 U. Pa. L. Rev. 899
(1993).
plaintiff's reliance on this unconventional theory substantially
diminished the probative value of the evidence of harassment at
Eddystone.
On the other side of the Rule 403 balance, I think that
there is substance to PECO's contention that permitting proof of
the alleged discrimination at Eddystone might have led to a mini-
trial and caused substantial unfair prejudice. As PECO put it in
its brief:
Had Glass been permitted to prove the events
which he contends influenced his performance
evaluations at Eddystone, PECO would have
been entitled to offer proof (1) that the
events did not occur as Glass contended; and
(2) that his performance evaluation would
have been negative whether or not such events
occurred. The results would have been trials
on two collateral issues -- a trial on the
occurrence vel non of incidents of
harassment, and a trial concerning the
effect, if any, of such events on Glass's
performance during 1984 and 1985. Together,
these two trials-within-a-trial would have
been equal in scope and complexity to the
trial that was actually held.
Appellee's Br. at 14 (footnotes omitted). Even if PECO's
estimate of the length and complexity of this "minitrial" is
exaggerated, I still think that these considerations were
legitimate and weighed appreciably in favor of exclusion.
Furthermore, introduction of evidence of harassment at Eddystone
might well have led the jury to believe that these events were
part of a pattern of discrimination by PECO and, since even the
plaintiff did not advance such a claim (see supra, at 4), the
introduction of this evidence had a potential for causing PECO
unfair prejudice.
In short, there are clearly factors on both sides of
the Rule 403 balance, and reasonable minds can differ as to
whether that balance tilts in favor of admission or exclusion of
the Eddystone evidence. My colleagues obviously believe that the
balance tilts in favor of admission. Our function, however, is
not to balance the Rule 403 factors ourselves. Rather, we are
supposed to afford substantial deference to the balance struck by
the trial judge and, if that is done, his rulings in this case
must be sustained. His rulings did not constitute abuses of his
discretion. They most certainly were not arbitrary or
irrational. Bhaya, 922 F.2d at 187. And this case is surely not
one of those "extreme case[s]" in which appellate judges may
properly "second-guess the judgment" of the trial judge. Sims,
902 F.2d at 531.15
Moreover, even if the trial judge's rulings constituted
abuses of his discretion, those rulings were harmless with
respect to the positions as Labor Relations Representative. As
15
. In addition to concluding that the district court abused its
discretion under Fed. R. Evid. 403, the majority states that the
district court's rulings were erroneous for an additional reason,
viz., because they improperly limited the scope of cross-
examination under Fed. R. Evid. 611(b). Maj. typescript at 14.
This analysis is flawed, in my view, because the district court
did not rely on Rule 611(b) in excluding the evidence at issue
and because Rule 611(b) does not prevent a trial judge from
excluding evidence under Rule 403 during cross-examination. See
United States v. Beechum, 582 F.2d 898, 907 (5th Cir. 1978).
noted (see pages 11-12 supra), Lange, in discussing those
positions, provided a long list of other reasons for not
selecting Glass, and Lange stated in effect that he did not rely
heavily on Glass's performance at Eddystone. Thus, even if Glass
had succeeded in showing that Lange's relatively minor reliance
on the Eddystone evaluation was pretextual, it is "highly
probable" that the jury's verdict concerning the positions as
Labor Relations Representative would not have been affected. See
Lippay v. Christos, 996 F.2d 1490, 1500 (3d Cir. 1993); McQueeny
v. Wilmington Trust Co., 774 F.2d 916, 924 (3d Cir. 1985).
Accordingly, any erroneous evidentiary rulings made by the
district court were harmless with respect to those positions.
For these reasons, I dissent.