Stephen Branch v. Temple University ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 21-3099
______
STEPHEN BRANCH,
Appellant
v.
TEMPLE UNIVERSITY; SEAN OUNAN; SHARON BOYLE
_____
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-20-cv-02323)
District Judge: Hon. Chad F. Kenney
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 17, 2023
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Before: CHAGARES, Chief Judge, GREENAWAY, JR., and PHIPPS, Circuit Judges.
(Opinion filed: June 14, 2023)
___________
OPINION*
___________
PHIPPS, Circuit Judge.
On January 29, 2020, Temple University fired Stephen Branch, an African
American male, who had worked there as a roving facilities engineer for sixteen years.
Temple’s stated reason for terminating Branch’s employment was that he skipped work
for three consecutive days in January 2020 and lied about his absence. Challenging that
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
stated ground as pretextual, Branch initiated this suit against Temple, his direct
supervisor, and a human resources manager for race discrimination and retaliation under
federal and state civil rights laws, see 42 U.S.C. §§ 1981, 2000e-2(a); 43 Pa. Stat.
§ 955(a), and for interference and retaliation under the Family and Medical Leave Act,
see 29 U.S.C. § 2612. In exercising jurisdiction over those claims, see 28 U.S.C.
§§ 1331, 1343, 1367, the District Court permitted discovery, denied Temple’s motion for
summary judgment, see Branch v. Temple Univ., 554 F. Supp. 3d 642, 665 (E.D. Pa.
2021), and held a jury trial.
Shortly before trial, Branch moved in limine to exclude after-acquired evidence, or
alternatively, to bifurcate the trial into liability and damages phases. Branch did not
dispute that Temple could support its case with material it reviewed before terminating
Branch, such as Temple’s logbooks, swipe card records, and surveillance footage
showing Branch leaving campus during his shift. But through his motion, Branch argued
that Temple could not rely on evidence acquired after it terminated him. That evidence,
obtained in discovery, included time records from a second employer showing that, at
various times over the years, Branch simultaneously worked a second job during his
Temple shift. It also included incriminating text messages from Branch.
The District Court denied Branch’s requests and permitted Temple’s Director of
Labor Relations to testify about the after-acquired evidence, subject to limiting
instructions. The jury returned a verdict for Temple.
Through a timely appeal, Branch invoked this Court’s appellate jurisdiction. See
28 U.S.C. §§ 1291, 2107(a). He now disputes the District Court’s rulings on the
introduction of the after-acquired evidence and the testimony of Temple’s Director of
2
Labor Relations. For the reasons below, we will affirm the judgment of the District
Court.
I. The Limited Relevance of After-Acquired Evidence in a Discrimination
Case
As a general matter, a claim of race discrimination in employment rests on proof
that race caused or motivated an employer to take an adverse employment action against
an employee. See Connelly v. Lane Const. Corp., 809 F.3d 780, 787–88 (3d Cir. 2016)
(recognizing but-for and mixed-motive causation standards under Title VII).1 Thus, such
claims hinge on the employer’s mindset at the time of the adverse employment action.
See Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989) (plurality opinion)
(explaining that Title VII claims focus on the employer’s mindset “at the moment” of the
employment decision); see also McKennon v. Nashville Banner Publ’g Co., 513 U.S.
352, 360 (1995); Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d 578, 581 (3d Cir. 1996).
Sometimes, however, in litigating an employment discrimination claim, an
employer discovers information that would support or independently justify its adverse
employment action. See McKennon, 513 U.S. at 359–60; Mardell v. Harleysville Life
Ins. Co., 65 F.3d 1072, 1073 n.1 (3d Cir. 1995). But because that after-acquired evidence
cannot retroactively affect the employer’s basis for the decision, it is not material to the
employer’s adverse employment decision. See McKennon, 513 U.S. at 360 (“The
employer could not have been motivated by knowledge it did not have and it cannot now
claim that the employee was fired for the nondiscriminatory reason.”); Mardell, 65 F.3d
at 1073 n.1 (similar). The after-acquired evidence, especially when it supplies a ground
1
See also Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999) (applying the
same standard to discrimination claims under the Pennsylvania Human Relations Act); cf.
Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020)
(clarifying that the § 1981 race discrimination standard is but-for causation).
3
for discipline wholly unrelated to the employer’s contemporaneous justification, cannot
be used to negate liability. See Delli Santi v. CNA Ins. Cos., 88 F.3d 192, 205 (3d Cir.
1996) (recognizing that after-acquired evidence is inadmissible where it presents a
“different and legitimate reason for discharge”).2
Still, the overall relevance of a piece of evidence depends on the purpose for
which it is offered. See United States v. Morley, 199 F.3d 129, 133 (3d Cir. 1999)
(“Here, as in so many cases, inquiries of relevance and proper purpose are intimately
intertwined.”); see also United States v. Hamann, 33 F.4th 759, 769 (5th Cir. 2022)
(“Evidence can be relevant for multiple purposes.”); United States v. Davis, 596 F.3d
852, 860 (D.C. Cir. 2010) (same); Lopez v. Tyson Foods, Inc., 690 F.3d 869, 882–83 (8th
Cir. 2012) (same). And although after-acquired evidence is not relevant to an employer’s
state of mind at the time of the adverse employment action, it may be relevant for other
purposes. It may be material to damages because it may justify the denial of
reinstatement and front pay as well as back pay to start from the date of the employer’s
discovery of the new evidence. See McKennon, 513 U.S. at 361–62 (explaining how
after-acquired evidence may limit damages); Anthony v. Trax Int’l Corp., 955 F.3d 1123,
1133 (9th Cir. 2020) (“[A]t the very least, McKennon permits the use of after-acquired
evidence to limit damages.”). Similarly, after-acquired evidence may be used to rebut or
impeach contrary testimony, see Vichare v. AMBAC Inc., 106 F.3d 457, 467–68 (2d Cir.
1996), or to corroborate facts associated with the employer’s contemporaneously-asserted
2
See also McKennon, 513 U.S. at 355, 360 (precluding employer from justifying
termination on new, unrelated ground: misuse of confidential documents); Wallace v.
Dunn Const. Co., 62 F.3d 374, 379 (11th Cir. 1995) (en banc) (similar: résumé fraud);
Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 101 (1st Cir. 1997) (similar: hiring
irregularities); Cullen v. Olin Corp., 195 F.3d 317, 324 (7th Cir. 1999) (similar: job
performance); Rivera v. NIBCO, Inc., 364 F.3d 1057, 1071 (9th Cir. 2004) (similar:
immigration status).
4
justification for the adverse employment action, see Gant ex rel. Gant v. Wallingford Bd.
of Educ., 195 F.3d 134, 147 n.17 (2d Cir. 1999).
Several rules pertain generally to evidence that is relevant for one purpose but not
another, and those apply with equal force to after-acquired evidence. The Federal Rules
of Evidence enable a judge, upon a party’s objection, to issue a limiting instruction to
“restrict the evidence to its proper scope,” Fed. R. Evid. 105, or to exclude the evidence
“if its probative value is substantially outweighed by a danger of . . . unfair prejudice,” id.
403. Similarly, when the purpose of evidence relates to separate issues, the Federal Rules
of Civil Procedure allow district judges, at their discretion, to hold separate trials on those
issues “to avoid prejudice.” Fed. R. Civ. P. 42(b).
II. The Challenged Rulings Related to the Alleged Prejudicial Effects of
After-Acquired Evidence
The District Court permitted Temple’s use of after-acquired evidence at trial
subject to several limiting instructions to the jury. On appeal, Branch disputes the
adequacy of these instructions and contends that a more protective measure was required:
either bifurcation or exclusion of the after-acquired evidence.
A. The Denial of Branch’s Motion to Bifurcate
Through his pretrial motion, which Temple opposed, Branch requested bifurcation
of the trial into liability and damages phases. He did so in effort to prevent the after-
acquired evidence from influencing the jury’s decision on whether Temple discriminated
against him.
A ruling on a request to bifurcate trial receives abuse-of-discretion review, see
Thabault v. Chait, 541 F.3d 512, 529 (3d Cir. 2008), and here the District Court was well
within its discretion to deny Branch’s request, see Vichare, 106 F.3d at 467. Separating
trials “is not to be the usual course,” Arthur R. Miller, 9A Federal Practice & Procedure
5
§ 2388 (3d ed. 2023), and even if the trial were bifurcated, after-acquired evidence could
be permissibly used at the liability phase to rebut or impeach any contrary testimony by
Branch, see United States v. Verdugo, 617 F.3d 565, 578 (1st Cir. 2010) (“A party
ordinarily may introduce extrinsic evidence to impeach testimony by contradiction if the
extrinsic evidence concerns a subject that is not collateral to the issues being tried.”). See
generally Daniel R. Coquillette et al., 8 Moore’s Federal Practice § 42.20[4][a] (2023);
Fed. R. Civ. P. 42(b), advisory committee’s note to 1966 amendment. And in this case,
the distinctions between the permissible and impermissible purposes of after-acquired
evidence are not so bewildering or unfairly prejudicial as to exceed the prophylactic
power of a limiting instruction. See Mardell, 65 F.3d at 1073 n.2 (“While bifurcation
may sometimes be advisable as a vehicle to insure that after-acquired evidence not be
improperly used during the liability phase, in other cases cautionary instructions or
stipulations may render it unnecessary.”).
B. The Denial of Branch’s Motion to Exclude and the Overruling of
his Trial Objections
Branch next argues that the District Court’s instructions in this case were deficient
and did not overcome the prejudicial effects of the after-acquired evidence.
1. Temple’s Use of After-Acquired Evidence to Impeach Branch
Branch’s trial testimony prompted Temple’s initial use of the after-acquired
evidence. After Branch stated that his second job did not interfere with his work, Temple
cross-examined him with time records in direct rebuttal: they showed that his second job
took time away from his shift at Temple. Similarly, when Branch testified that he did not
sleep on the job, Temple offered text messages to contradict him. As this information
came before the jury, the District Court marked a clear line: that evidence “goes to
impeachment” but “not the reason for firing.” Limiting Instruction (SA46:17–19); see
6
also Limiting Instruction (A239:15–17) (“[I]t doesn’t go to say, oh, there’s evidence that
he left campus back then so they had a right to fire him there.”). And later, in charging
the jury before its deliberations, the District Court was similarly emphatic: “You are not
to consider any such evidence as to employer’s intent or that such evidence was relied
upon in any way by the employer as a basis for termination and/or discipline.” Jury
Instruction (SA126:23, 129:3–6). Nothing about the District Court’s ruling was an abuse
of discretion. The contents of its instructions were not deficient. Nor did the danger of
unfair prejudice substantially outweigh the probative value of the after-acquired evidence
in cross-examining Branch. See Fed R. Evid. 403.
2. Temple’s Introduction of After-Acquired Evidence
Beyond cross-examining Branch, Temple also introduced after-acquired evidence
as part of its case. It did so over Branch’s objections during the testimony of Monica
Washington, Temple’s Director of Labor Relations. In reviewing time records – both
from Temple and from Branch’s other employer – as well as Branch’s text messages,
Washington opined that Temple would have fired Branch earlier, had it learned of that
information beforehand. Although the use of the evidence to limit a potential damages
award was permissible, see McKennon, 513 U.S. at 362, Branch contends that the
evidence was unfairly prejudicial, see Fed. R. Evid. 403. But to limit damages, Temple
had to “establish that the wrongdoing was of such severity that the employee in fact
would have been terminated.” McKennon, 513 U.S. at 362–63. Washington’s testimony
sought to meet that standard. And the limiting instructions repeated by the District Court
during Washington’s testimony struck the right balance, such that the introduction of the
after-acquired evidence was not unfairly prejudicial. See United States v. Finley,
726 F.3d 483, 494 (3d Cir. 2013) (emphasizing that Rule 403 applies to evidence that is
7
“unfairly prejudicial”).3
Branch also argues that the after-acquired evidence constituted impermissible
other-acts evidence. See Fed. R. Evid. 404(b). But Temple was not relying on the after-
acquired evidence to prove character and conformity therewith. The purpose of that
evidence was not so elaborate: the after-acquired time records and text messages were
used to cut off damages based on Branch’s absenteeism, as reflected by those documents.
That purpose is far removed from using the documents to prove character and then
conformity therewith. Thus, the District Court did not abuse its discretion in allowing the
introduction of after-acquired evidence as part of Temple’s case at trial.
III. The Challenges to the Testimony of Temple’s Director of Labor
Relations
Temple’s only witness to testify about the after-acquired evidence was
Washington, Temple’s Director of Labor Relations. Branch objected to her testimony on
two primary grounds – failure to identify her on initial disclosures and speculation –
either of which would prevent the introduction of the after-acquired evidence. Neither of
those succeeds.
A. The Omission of Washington from Temple’s Initial Disclosures
To streamline the exchange of ‘core’ discovery, the Federal Rules of Civil
Procedure require the early exchange of initial disclosures between the parties. See Fed.
R. Civ. P. 26(a); see also Richard L. Marcus, 8A Federal Practice & Procedure § 2053
(3d ed. 2023) (discussing the history of initial disclosures in federal civil cases). Among
3
As part of his unfair-prejudice argument, Branch also asserts that the time records are
unauthenticated hearsay. This contention is not adequately developed, especially here,
where the time records seem to fit readily within the business-records exception to
hearsay, see Fed. R. Evid. 803(6); Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089,
1098 n.9 (3d Cir. 1995), and contain an accompanying Rule 902(11) certification, see
Fed. R. Evid. 902(11) (setting the certification process for domestic records of regularly
conducted business activity).
8
those required disclosures is the identification of “each individual likely to have
discoverable information—along with the subjects of that information—that the
disclosing party may use to support its claims or defenses, unless the use would be solely
for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(i); see also Richard L. Marcus, 8 Federal
Practice & Procedure § 2013 (3d ed. 2023).
In this case, Temple did not identify Washington in its initial disclosures, and
Branch contends that she should have been barred from testifying on that ground. But
this argument is unrealistic: a party cannot be expected to identify in its initial disclosures
a witness whose knowledge about a defense came from evidence later acquired in
discovery. And here, when Temple submitted its initial disclosures to Branch, it had not
received the time records from Branch’s other employer or Branch’s text messages.
Most charitably, Branch’s argument seems to fault Temple for not supplementing
its initial disclosures once it received the after-acquired evidence. But supplementation
based on newly discovered information is required only if the “information has not
otherwise been made known to the other parties during the discovery process or in
writing.” Fed. R. Civ. P. 26(e)(1)(A). Yet, here, Branch knew of Washington – he
produced documents in discovery mentioning her. He also knew about the after-acquired
evidence she discussed at trial: it concerned his whereabouts and related to his text
messages. And once discovery ended, Temple identified Washington on its witness list
25 days before trial. Thus, while it may have been best practices for Temple to have
supplemented its initial disclosures to mention Washington, the District Court did not
abuse its discretion in permitting her to testify without such supplementation here, where
Branch knew all along of Washington and the information that Temple learned in
discovery. See Quinn v. Consol. Freightways Corp. of Del., 283 F.3d 572, 577 (3d Cir.
9
2002) (affirming a ruling permitting a witness to testify about subjects not mentioned in
interrogatory responses as the defendant knew of this testimony in advance); cf. ZF
Meritor, LLC v. Eaton Corp., 696 F.3d 254, 298 (3d Cir. 2012) (holding that District
Court abused its discretion in striking untimely alternative damages calculation under
Fed. R. Civ. P. 26).4
B. The Speculation Objections to Washington’s Testimony
As his final point, Branch challenges Washington’s testimony about after-acquired
evidence as speculative. In particular, he argues that Washington should not have been
permitted to interpret the time records from his second employer. But any concerns that
Washington lacked the personal knowledge of the second employer’s time records were
put to rest by the fact that Temple and that other employer used the same timekeeping
system provided by the same vendor. See United States v. Franco, 874 F.2d 1136, 1139
(7th Cir. 1989) (explaining that a ‘qualified witness’ can be anyone “who understands the
system used”); cf. United States v. Console, 13 F.3d 641, 657 (3d Cir. 1993) (holding that
employee “familiar with the office record-keeping system” could testify about office
records). And that suffices for foundation for purposes of Washington’s testimony,
which compared the time records from the two employers and identified overlaps.5
***
4
This same analysis applies to Branch’s related contention that Temple did not identify
Washington in response to his first interrogatory request, which was partially redundant
of the initial disclosures in that it sought, among other things, the identities of persons
with information about claims or defenses.
5
Unrelated to after-acquired evidence, Branch – in a sentence at the end of his brief –
disputes as speculative a line of questioning in which Temple asked whether Washington
had any suspicions, from Temple’s own time records, that Branch was not on the job
when he said he was. In overruling Branch’s objection, the District Court again was well
within its discretion: Washington weighed in on the decision to fire Branch, and thus her
suspicions about Branch’s absenteeism related to Temple’s motivation for terminating his
employment.
10
For the foregoing reasons, the judgment of the District Court will be affirmed.
11