Kelly Vay v. Robert Huston

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-1530
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KELLY J. VAY,
Appellant
v.
ROBERT HUSTON, Administrator, Laboratory Director
of the Office of the Medical Examiner of Allegheny;
STEPHEN PILARSKI, former Administrator of the Office
of the Medical Examiner of Allegheny County and currently
Deputy Manager of Allegheny County in his individual capacity;
MICHAEL BAKER, former Manager of Morgue Operations,
in his individual capacity;
MICHAEL CHICHWAK, Manager of Investigations,
in his individual capacity; ALLEGHENY COUNTY OF PENNSYLVANIA
____________
On Appeal from the United States District Court for the
Western District of Pennsylvania
(W.D. Pa. No. 2-14-cv-00769)
District Judge: Honorable Mark A. Kearney
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
February 5, 2018
Before: CHAGARES, SCIRICA, and COWEN, Circuit Judges.
(Filed: February 23, 2018)
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OPINION
____________

This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
CHAGARES, Circuit Judge.
Plaintiff Kelly Vay brought this action for harassment and discrimination on the
basis of sex, in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e, et seq.,
and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Stat. §§ 952-63, against
Robert Huston, Stephen Pilarski, Michael Baker, Michael Chichwak, and Allegheny
County (collectively, the “defendants”), stemming from her former employment as a
forensic investigator in the Allegheny County Medical Examiner’s Office. After a seven
day trial, the jury returned a verdict in favor of the defendants. Vay appeals, seeking a
new trial and contending that the District Court abused its discretion in making a number
of evidentiary rulings. We disagree, and so we will affirm.
I.1
We write solely for the parties and therefore recite only the facts necessary to our
disposition. Vay was employed as a forensic investigator in the Allegheny County Office
of the Medical Examiner from 2009 through 2014. On December 3, 2013, Vay was placed
on administrative leave, which lasted until April 2014, during the pendency of an
investigation by the District Attorney’s Office. Vay was then on medical leave from April
through December 2014. When she refused to return to work, the County terminated
Vay’s employment on December 16, 2014.
1
Because the jury returned a verdict in the defendants’ favor, we set forth the facts
in the light most favorable to them. See Watson v. Se. Pa. Transp. Auth., 207 F.3d 207,
211 n.2 (3d Cir. 2000).
2
Vay brought this action in June 2014, alleging that Vay and other women at the
Medical Examiner’s Office were mistreated because of their gender. Vay then filed an
amended complaint after her employment was terminated. The matter proceeded to trial
in early 2017. During the course of trial, Vay produced evidence of disciplinary actions
taken against her during her time at the Medical Examiner’s Office that she contends
were motivated by her gender. During trial, the defendants produced testimony detailing
Vay’s unprofessional behavior, insubordination, and resulting discipline during the course
of her employment. They also produced the testimony of Assistant County Solicitor Jacob
Lifson, who testified that a decision was made to place Vay on administrative leave during
the pendency of an ongoing criminal investigation by the District Attorney’s Office into
the leak of information in a high profile homicide case.
After a seven day trial, the jury returned a verdict for defendants. This timely
appeal followed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
We exercise plenary review over the District Court’s interpretation of the Federal
Rules of Evidence. United States v. Duka, 671 F.3d 329, 348 (3d Cir. 2011). We review
the District Court’s application of the Rules and its decisions to admit or exclude evidence
for abuse of discretion, id., and “[w]e will only reverse if we find the District Court’s
error was not harmless,” Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 80 (3d Cir.
2009). We will not overturn a jury verdict “unless the record is critically deficient of that
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quantum of evidence from which a jury could have rationally reached its verdict.” Swineford
v. Snyder Cty., 15 F.3d 1258, 1265 (3d Cir. 1994).
III.
Vay contends that the District Court abused its discretion by: (1) permitting
testimony from defense witnesses about whether a criminal investigation by the District
Attorney’s Office into Vay motivated a decision to place her on administrative leave;
(2) limiting the cross-examination on the bias of a defense witness; (3) refusing to permit
Vay to take the stand a second time to rebut that same defense witness; and (4) excluding
some comparator witnesses when it ruled that they were not similarly situated to Vay.
We will address each of these issues in turn.
A.
Vay argues that the District Court abused its discretion by permitting testimony
establishing that Vay was placed on administrative leave due to a criminal investigation
by the District Attorney’s Office. Vay argues that this evidence should have been excluded
pursuant to Rules 403 and 802 of the Federal Rules of Evidence. Vay argues that this evidence
was hearsay and that it was prejudicial because it might have confused the jury and
painted her as a criminal.
Hearsay is any statement offered at trial by someone other than the declarant for
the purpose of proving the truth of the matter asserted. Fed. R. Evid. 801(c). Here, the
challenged testimony was offered to explain the reason that motivated the defendants’
decision to place Vay on administrative leave, not to prove the truth of whether in fact
4
she was under investigation. As such, it was not hearsay. Rinehimer v. Cemcolift, Inc.,
292 F.3d 375, 383 (3d Cir. 2002).2
Rule 403 provides that “[t]he court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Rule 403 “creates a presumption of admissibility.”
United States v. Claxton, 766 F.3d 280, 302 (3d Cir. 2014). Typically, “we exercise great
restraint in reviewing a district court’s ruling on the admissibility of evidence under Rule
403.” Gov’t of Virgin Islands v. Archibald, 987 F.2d 180, 186 (3d Cir. 1993). The District
Court did not err in admitting this evidence. Vay put at issue the reason behind the decision
to place her on administrative leave, as she claimed that it was due to gender discrimination
and retaliation. Thus, the County’s explanation for its decision was highly probative.
Additionally, the District Court issued a limiting instruction specifically addressing out of
court statements not offered for the truth of the matter asserted. This mitigated the
potential prejudicial effect of the evidence. Rinehimer, 292 F.3d at 383. Accordingly,
the District Court did not err in finding that the probative value of this evidence was not
substantially outweighed by the potential for prejudice.
B.
2
Vay also argues that this evidence is inadmissible unless the ultimate county
decisonmaker, County Manager Willy McKain, was the one to provide the testimony.
However, the witness that did testify, Assistant County Solicitor Jacob Lifson, was
personally aware of and involved in the decision to place Vay on administrative leave.
As such, he was competent to testify. See Fed. R. Evid. 602.
5
Vay next argues that the District Court abused its discretion in limiting her counsel’s
cross-examination of Lifson on his bias due to his past romantic interest in Vay. The
District permitted Vay’s counsel to ask Lifson whether he had past romantic interest in
Vay. Vay contends that this was not sufficient for her to establish bias because she
wanted to question whether he had a sexual interest in her, elicit certain statements that
Vay claims he had made to her, and elicit testimony that Vay had rejected his advances.
The District Court did permit cross-examination of Lifson on other topics, including
other areas of his potential bias.
“[W]hether a trial court has abused its discretion in limiting the cross-examination
of a witness for bias depends on ‘whether the jury had sufficient other information before
it, without the excluded evidence, to make a discriminating appraisal of the possible biases
and motivation of the witnesses.’” United States v. Chandler, 326 F.3d 210, 219 (3d Cir.
2003) (quoting Brown v. Powell, 975 F.2d 1, 4 (1st Cir. 1992)). We have held that “the
district court may properly exercise its discretion in this area by imposing reasonable
limits on the scope of cross-examination, weighing such factors as undue prejudice, relevancy,
and delay due to repetition.” Douglas v. Owens, 50 F.3d 1226, 1230 (3d Cir. 1995).
The District Court did not abuse its discretion by limiting the cross-examination of
Lifson. Vay was permitted some cross-examination on the issue of Lifson’s potential
bias due to his romantic interest in Vay, and elicited testimony to that effect. See id.(“[A] party is guaranteed ‘only an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever extent, the defense might
wish.’” (quoting Kentucky v. Stincer, 482 U.S. 730, 739 (1987) (quotation marks omitted))).
6
Once that bias was elicited, it was not an abuse of discretion for the District Court to
decline to permit further cross-examination on that topic. See id. Further, there was no
doubt that Lifson’s bias had been shown as the District Court stated, in the presence of
the jury, that “bias has been established.” Appendix (“App.”) 1974-75. Accordingly, we
will affirm the District Court’s ruling.
C.
Vay next argues that the District Court erred by not permitting her to take the
stand a second time to offer rebuttal testimony on the topic of Lifson’s bias. After Lifson
was cross-examined on his romantic interest in Vay, Vay sought to take the stand to offer
rebuttal testimony that Lifson had flirted with her. Vay had previously testified during
her case-in-chief, so the District Court did not permit her to testify in rebuttal of Lifson.
Vay contends that this was an abuse of discretion. We disagree.
We have held that the “purpose of rebuttal testimony is to explain, repel, counteract
or disprove the evidence of the adverse party.” United States v. Chrzanowski, 502 F.2d
573, 576 (3d Cir. 1974). “The admissibility of evidence in rebuttal is committed to the
discretion of the trial judge.” Id. Typically, “a party’s right to impeach the credibility of
the opposing party’s witness is limited to the questioning of that witness on cross
examination.” United States v. Rockwell, 781 F.2d 985, 989 (3d Cir. 1986). We will not
reverse a District Court’s decision on rebuttal evidence “in the absence of gross abuse of
discretion.” Chrzanowski, 502 F.2d at 576.
Here, the District Court did not abuse its discretion by denying Vay the opportunity
to take the stand to offer more evidence attacking Lifson’s credibility, when she had already
7
taken the stand in her case-in-chief. We have held that “evidence which properly belongs
in the case-in-chief but is first introduced in rebuttal may be rejected, so as to avoid prejudice
to the defendant and to ensure the orderly presentation of proof.” Emerick v. U.S. Suzuki
Motor Corp., 750 F.2d 19, 22 (3d Cir. 1984). As the District Court observed, Vay and
her counsel were aware of this testimony and its potential relevance and could have
brought it out in the direct examination of Vay. Thus, the District Court did not abuse its
discretion by enforcing this rule against Vay.
D.
Finally, Vay argues that the District Court abused its discretion by excluding some
of her comparator evidence. The District Court ruled in a motion in limine that Jimmy
Johnson, Anthony Bofo, Curtis Williams, Edmond Nelson, and Tom Jakiela were not
proper comparators because they were not similarly situated to Vay. In that same ruling,
the District Court observed that Vay was not prohibited from offering the same evidence
for an otherwise admissible purpose. Vay contends that the District Court erred by
excluding this evidence. We disagree.
In a discrimination case, a plaintiff may offer comparator evidence, which is evidence
“that the employer has treated more favorably similarly situated persons not within the
protected class.” Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 645 (3d
Cir. 1998). We have held that “[t]he plaintiff has the burden of demonstrating that similarly
situated persons were treated differently.” Id. In determining whether employees are
similarly situated, we take into account factors such as the employees’ work responsibilities
and supervisors, the nature of the misconduct, and “the particular criteria or qualifications
8
identified by the employer as the reason for the adverse action.” Id. at 647; see also Lee v.
Kan. City S. Ry. Co., 574 F.3d 253, 259-61 (5th Cir. 2009); Burks v. Wis. Dep’t of Transp.,
464 F.3d 744, 751 (7th Cir. 2006).
Here, the District Court did not abuse its discretion in holding that these individuals
did not commit violations of equal seriousness to those of Vay and were thus not similarly
situated to her. Bofo was a supervisor who had a different position and responsibilities
than did Vay, and there was no evidence that he engaged in comparable misconduct. As
to Williams, the supervisor to whom he was insubordinate was not a management-level
employee with the authority to discipline Williams, and the other evidence of his misconduct
was of a different nature than that of Vay’s. In addition, Nelson engaged in dissimilar
misconduct. Vay was disciplined for destruction of County property when she broke a hole
into a wall. Nelson then wrote a message next to the hole; he was ordered to remove the
writing, but was not otherwise disciplined. Finally, there was no evidence that Johnson or
Jakiela engaged in comparable misconduct, as they did not swear at the same, relevant
management-level employees. Cf. Mandel v. M & Q Packaging Corp., 706 F.3d 157,
170 (3d Cir. 2013). Further, any error would be harmless. Vay was permitted to, and
did, present other comparator evidence.
IV.
For the foregoing reasons the District Court did not err in denying Vay’s motion
for a new trial. The judgment of the District Court will be affirmed.
9