The opinion of the court was delivered by: O'neill, J.
Plaintiffs George Hill and David Ellis assert against defendant SEPTA claims of discriminatory termination in violation of Title VII of the Civil Rights Act of 1964. Additionally, Ellis asserts a claim for breach of contract. Now before me are SEPTA's and Ellis's motions in limine and their responses thereto. For the reasons that follow, I will grant in part and deny in part SEPTA's motion. I will grant in part Ellis's motion and reserve judgment on the remainder.
I. SEPTA's Motion to Exclude Testimony Concerning Joseph Rollo Plaintiffs' claims stem from painting work they performed on January 21, 2008.
Plaintiffs allege that they followed the orders of their supervisor, Joseph Rollo, and used spray painters to carry out their assignment. According to plaintiffs, Rollo ordered them report to another work site the following day, even though the project they began on January 21 was not yet completed. Plaintiffs allege that while they were away at the other site, Rollo filed a false report accusing them of damaging SEPTA property in the course of their work on January 21.
This report ultimately led to plaintiffs' termination.
"To establish a prima facie claim for discriminatory termination, an employee must offer sufficient evidence that: (1) he was a member of the protected class, (2) he qualified for the position he sought, (3) he was fired, and (4) nonmembers of the protected class were treated more favorably." Verdin v. Weeks Marine Inc., 124 Fed. App'x 92, 95 (3d Cir. 2005). "Once a plaintiff under Title VII establishes a prima facie case, the employer must come forward with a legitimate, non-discriminatory reason for the adverse employment decision." Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 319 (3d Cir. 2000). "If the employer is able to proffer a legitimate, nondiscriminatory reason for its actions, the plaintiff must demonstrate that the proffered reason was merely a pretext for unlawful discrimination." Id.
Plaintiffs, both African-Americans, allege that SEPTA discriminated against them on the basis of race. SEPTA, on the other hand, maintains that it fired plaintiffs because they botched the January 21 painting assignment and caused extensive damage to SEPTA property. To prove that SEPTA's proffered reason is pretextual, plaintiffs seek to offer the testimony of other SEPTA employees as evidence that Rollo made racially derogatory statements in the past. "Evidence of an employer's conduct towards other employees has long been held relevant and admissible to show that an employer's proffered justification is pretext." Ansell v. Green Acres Contracting Co., 347 F.3d 515, 521 (3d Cir. 2003). Specifically, a plaintiff may introduce evidence "that the employer has discriminated against other members of his protected class or other protected categories of persons." Id. Although Federal Rule of Evidence 404 prohibits the admission of evidence of prior acts "to prove the character of a person in order to show action in conformity therewith," Fed. R. Evid. 404(b), evidence of prior discriminatory acts is admissible "in the employment discrimination context for the proper purpose of establishing or negating discriminatory intent." Ansell, 347 F.3d at 521.
Additionally, a supervisor need not have the ultimate authority to discharge an employee for his prior acts of discrimination to be relevant. See Roebuck v. Drexel Univ., 852 F.2d 715, 727 (3d Cir. 1988) (noting that "it plainly is permissible for a jury to conclude that an evaluation at any level, if based on discrimination, influenced the decisionmaking process and thus allowed discrimination to infect the ultimate decision").
There are, however, limitations to the admissibility of other discriminatory acts. "There is a point at which a prior . . . act becomes so remote in time from the alleged discriminatory act at issue, that the former cannot, as a matter of law, be relevant to intent." Ansell, 347 F.3d at 524. If a prior act is so distant that it is irrelevant, I must exclude evidence of the act under Federal Rule of Evidence 402. Alternatively, an earlier discriminatory act might be remote enough that its probative value is substantially outweighed by the danger that it will cause unfair prejudice, meriting exclusion under Federal Rule of Evidence 403. See Stair v. Lehigh Valley Carpenters Local Union No. 600 of the United Bhd. of Carpenters & Joiners of Am., 813 F. Supp. 1116, 1120 (E.D. Pa. 1993). Although there is "no bright line rule for determining when evidence is too remote to be relevant," Ansell, 347 F.3d at 525, this Court has excluded evidence of harassment that took place four years before the alleged discrimination at issue. See Stair, 813 F. Supp. at 1120.
Before I address individually the witnesses whose testimony SEPTA seeks to exclude, I will reject at the outset a common argument SEPTA makes with respect to each witness. SEPTA avers that I should exclude the entire testimony of Darlene Godwin, Denise Greene, Bobby Davis, Reginald Goldston and Carlos Ortiz because plaintiffs failed to disclose these individuals as witnesses pursuant to Federal Rule of Civil Procedure 26(a) and (e). Rule 37(c) prohibits a party from using a witness that the party fails to disclose under Rule 26, unless the failure to disclose is "substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). It is true that plaintiffs did not mention these individuals in their initial disclosures. See Dkt. No. 65-2 at 2-3. But each of these witnesses has since been deposed and counsel for SEPTA was present at each deposition. I therefore find that SEPTA has not been prejudiced by plaintiffs' failure to mention these individuals in their initial disclosures. Accordingly, I deem plaintiffs' non-disclosure harmless and reject SEPTA's effort to exclude these witnesses on the basis of Rules 26 and 37.
1. Prior Remarks by Rollo
SEPTA seeks to exclude testimony by SEPTA employee Darlene Godwin that Rollo used a "racially charged term" with respect to another African American in October 2009, approximately a year and a half after plaintiffs were fired. Dkt. No. 65-1 at 11. None of SEPTA's arguments against admitting Godwin's testimony, however, are availing. First, SEPTA argues that the testimony should be excluded as irrelevant because Rollo "was not involved in the decision to terminate Plaintiffs' employment." Id. According to plaintiffs, however, Rollo reported to his superiors that plaintiffs damaged SEPTA property. If true, Rollo "influenced the decisionmaking process," Roebuck, 852 F.2d at 727, and his discriminatory intent is relevant to plaintiffs' claims.
Second, SEPTA argues that Rollo's comments are too remote because they took place a year and seven months after SEPTA fired plaintiffs. I disagree. Rollo's conduct a year and seven months after plaintiffs lost their jobs is not so far removed that it is irrelevant. See Ansell, 347 F.3d at 525 (affirming district court's admission of evidence concerning conduct that took place two years after the termination of plaintiff's employment) Additionally, even though Rollo made the alleged remarks after plaintiffs' termination, they still have probative value. See id. at 524 (noting that subsequent acts might be less probative of intent than prior ones, but that subsequent acts "may still be relevant to ...