West v. Philadelphia Elec. Co.

Decision Date19 January 1995
Docket NumberNo. 93-1647,93-1647
Citation45 F.3d 744
Parties66 Fair Empl.Prac.Cas. (BNA) 1524, 63 USLW 2448 James WEST, Appellant. v. PHILADELPHIA ELECTRIC COMPANY.
CourtU.S. Court of Appeals — Third Circuit

David S. Fortney, Carolyn P. Short, (Argued), and Christine L. Ciarrocchi, Reed, Smith, Shaw & McClay, Philadelphia, PA, for appellee.

Richard J. Silverberg, and Jane H. Lovitch, (argued), Richard J. Silverberg & Associates, Philadelphia, PA, for appellant.

Before: GREENBERG, ROTH and ROSENN, Circuit Judges.


ROTH, Circuit Judge:

Plaintiff James West appeals from a jury verdict in favor of the defendant, Philadelphia Electric Company ("PECO"), in this action in which he alleges racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e-2(a)(1), and the Pennsylvania Human Relations Act, 43 Pa.Stat.Ann. Sec. 955(a). West's action is based on his claims of a racially hostile work environment at PECO. To prove these claims, West attempted to introduce evidence of incidents, and of PECO's notice of the occurrence of these incidents, dating back to 1986. West contends that all of this evidence was admissible under the theory that the violations were continuing. The rulings of the district court, which West challenges on appeal, require us to address the scope of continuing violations theory when a plaintiff charges the existence of a racially hostile work environment.

At trial, West sought to introduce evidence of acts occurring both prior to and during the 300-day period preceding the filing of his administrative complaint. Despite West's claim that the alleged hostile work environment constituted a continuing violation of Title VII, the district court determined that it would look to the 300-day period in ruling on the admissibility of much of the evidence proffered by the plaintiff. In making its determinations, the district court excluded evidence preceding the 300-day period unless the evidence involved either the same actor or the same particular form of discriminatory conduct.

We conclude, in this hostile work environment context, that the scope of the admissibility of evidence of events, which preceded the 300-day period, must be grounded in the substantive law at issue. The statutory limitations period is not, therefore, necessarily a bar to the admissibility of pre-statute acts which bear on the work environment and on the employer's awareness of that environment. For the reasons stated below, we find that the district court here was overly restrictive in its determinations of admissibility and that the challenged evidentiary exclusions were erroneous in that they deprived West of the opportunity to present his full case to the jury. We will, therefore, vacate the judgment and remand the case to the district court for a new trial.


Plaintiff James West has worked for defendant PECO since 1972. In 1986, West transferred to PECO's King of Prussia meter repair facility, where he continues to work. West alleges that since 1986, and continuing at least until the time of trial, he and other African-Americans at the meter repair facility encountered a continuous pattern of racial harassment. On November 23, 1990, West filed administrative charges of racial discrimination against PECO with the Equal Employment Opportunity Commission ("EEOC"). Subsequently, on September 17, 1991, he filed this complaint in the Eastern District of Pennsylvania. The complaint alleged that PECO knowingly permitted a hostile work environment to exist for African-American workers at the meter repair shop in violation of Title VII and the Pennsylvania Human Relations Act. 1 In addition, the complaint alleged that PECO unlawfully retaliated against West in the terms and conditions of his employment after he filed the administrative charges. 2


Just prior to trial, PECO filed a motion in limine to exclude certain evidence. PECO argued that West should be precluded from presenting evidence pre-dating the period 300 days before the filing of his administrative complaint. PECO asserted that this evidence was time-barred by the limitations period established in Title VII. In PECO's view, the statutory filing period rendered evidence of earlier acts inadmissible as a matter of law. West, on the other hand, maintained that the alleged hostile work environment was a continuing violation. He asserted that, because he filed within 300 days of a recent occurrence, he had satisfied the statutory requirement under the theory of a continuing violation. As such, West countered, neither his claim for recovery nor the evidence relevant to its proof should be limited by the filing period.

At a pretrial conference on PECO's motion, the district court held that West could establish a continuing violation, so that evidence of pre-300-day conduct would be admissible, only if West could establish that the same actors had engaged in prohibited conduct both before and during the 300 day filing period:

In this trial, you should plan to organize your evidence as to the 300-day period, and then you'd have to show as to something prior to that time, that the same actor was involved. So if there was a different actor, there would not be a continuing violation.

Pretrial Conference, May 21, 1993, transcript at 10; Plaintiff's Appendix ("App.") at 44. Plaintiff's counsel objected, arguing that, under a hostile work environment claim, liability rests with the employer for failing to remedy a hostile environment as a whole, without regard to individual workers or harassers. As such, the relevant "actor" is the employer; actions of individual employees are relevant as they contribute to the overall hostile environment. The court rejected this approach, stating:

[T]he way I want you to present the case is, what happened to him to cause him to file the charge and where he was 300 days prior to that time. Plus anything else that's connected ... through common personnel.

App. at 46. The court followed its rulings with an order entered on May 26, 1993. 3

At trial, the district court relied upon this ruling to exclude a substantial amount of evidence. Although the record before us is not fully adequate, the individual pieces of evidence, and rulings on them, will be discussed in turn as much as the record permits:

1. Ku Klux Klan Christmas Card.

In November 1989, a white co-worker, Robert Cole, presented West with a picture of a Ku Klux Klan member, dressed in white robe and hood. The picture, which bore a strong resemblance to its presenter, was "folded in Christmas card fashion" and inscribed with the words "To Jim." Though West informed the co-worker that this offended him, the picture was later photocopied, distributed to other workers, and posted in the workplace. West offered this incident not only to support his claim of pervasive, continuous racial harassment but also to shed light on another incident involving the same worker posting the same picture throughout the workplace in the summer of 1990. 4 West suggests that the first incident, and his reaction, would have helped to establish discriminatory intent with regard to the later incident.

Though the court initially permitted direct examination of West concerning the November 1989 card, it later ruled that the incident was time-barred because it occurred prior to the 300-day filing period. App. at 99-101, 133.

2. References to Frank Rizzo.

At trial, the district court permitted West to testify about a picture of former Philadelphia Police Commissioner Frank Rizzo that was posted in the workplace in 1987 or 1988. 5 West stated that he found the picture to be racially offensive. Defendant's App. at 161. However, the court excluded West's testimony about several incidents between himself and a white foreman, Howard Wiese, that could have explained to the jury why West found the picture to be offensive. West alleges that on several occasions, in 1987 and 1988, Wiese approached him and slammed a stick on West's workbench, remarking, "This is how Rizzo kept 'city people' in line when he was Police Commissioner." App. at 137. West also claims that references to "city people" were commonly understood in the shop to refer to African-Americans. Id. Because the Wiese incidents occurred before the 300-day period and because Wiese had retired and "engaged in no conduct in 1990 or thereafter," this evidence was excluded. Id. at 137-38.

3. Pre-300 Day Racial Comments.

At trial, the court excluded testimony by both West and an African-American co-worker, Ronald Price, concerning racially hostile comments and conversations that occurred prior to the 300-day period. For example, when West's counsel attempted to question him regarding hostile conversations with a white foreman, William Esbiornson, dating back to 1986, the court precluded the testimony on the grounds that the conversations occurred prior to 1990 and West had not established that the verbal harassment by this particular worker was, in itself, pervasive and regular:

You haven't established yet, Counsel, that he had daily contact with this person, Esbiornson, such that the contact could be said, assuming the subject was racially offensive, to have been pervasive and regular so as to go back beyond 1990 in terms of contact.

App. at 166-67.

The court excluded the testimony of Ronald Price about racially hostile conversations he had experienced prior to 1990. App. at 79-85. The court warned counsel, with regard to his questioning of the witness: "Make it, sir, during 1990 ... [I]f you wish to ask him any questions, follow my directions or withdraw him as a witness." App. at 82. Plaintiff's counsel objected, reiterating that it was plaintiff's theory that the alleged hostile work environment was a continuing violation, existing both during and prior to 1990. The court, however, indicated that for a continuing violation to...

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