Glass v. Philadelphia Elec. Co.
| Decision Date | 04 October 1994 |
| Docket Number | No. 92-1896,92-1896 |
| Citation | 34 F.3d 188 |
| Parties | 65 Fair Empl.Prac.Cas. (BNA) 1280, 65 Fair Empl.Prac.Cas. (BNA) 1450, 65 Empl. Prac. Dec. P 43,398, 63 USLW 2199, 40 Fed. R. Evid. Serv. 717 Harold GLASS, Appellant, v. PHILADELPHIA ELECTRIC COMPANY. |
| Court | U.S. Court of Appeals — Third Circuit |
Alice W. Ballard (argued), Lynn Malmgren, Samuel & Ballard, Philadelphia, PA, for appellant.
Dona S. Kahn (argued), Hope A. Comisky, Richard G. Tuttle, Anderson, Kill, Olick & Oshinsky, Philadelphia, PA, for appellee.
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. 1
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 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. Secs. 1331 and 1334 over this claim which alleges violations of the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981; the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000, et seq.; and the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621, et seq. The district court exercised supplemental jurisdiction over claims brought under the Pennsylvania Human Relations Act, 43 P.S. Sec. 951, et seq. We have jurisdiction over Glass's appeal pursuant to 28 U.S.C. Sec. 1291.
We review pre-trial and trial court rulings concerning the admission of 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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 3 and the jurisprudence of this Court. See, e.g., United States v. Downing, 753 F.2d 1224, 1243 (3d Cir.1985) (); United States v. Long, 574 F.2d 761, 770 (3d Cir.) (Adams, concurring) (), cert. denied, 439 U.S. 985, 99 S.Ct. 577, 58 L.Ed.2d 657 (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.: 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...
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