Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Civil Docket No. 90-06370.
Before: Becker, Alito and Roth, Circuit Judges.
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.*fn1
Glass worked at PECO for 23 years before he retired in 1990.*fn2 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 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.
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, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (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).
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. 403*fn3 and the jurisprudence of this 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, 58 L. Ed. 2d 657, 99 S. Ct. 577 (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 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.*fn4 We note that PECO's and Glass's understanding of what the trial court did is significant to our analysis. Both parties 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.*fn5 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.
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 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 ...