                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-21-2004

Martin v. Port Auth Alghny
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3252




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No: 03-3252

                                    BOBBY MARTIN,

                                                  Appellant

                                             v.

                           PORT AUTHORITY TRANSIT OF
                              ALLEGHENY COUNTY

                      Appeal from the United States District Court
                         for the Western District of Pennsylvania
                                   (No. 00-cv-02440)
                  District Court: Hon. Ila Jeanne Sensenich, M agistrate

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 13, 2004

                 Before: Nygaard, McKee, and Chertoff, Circuit Judges.

                                (Filed: October 21, 2004)

                                        OPINION

McKEE, Circuit Judge.

       Bobby Martin, an African-American male who was terminated from his

employment with the Port Authority Transit of Allegheny County, appeals from the jury’s

verdict in favor of his employer in the action he brought under Title VII charging racial

discrimination. He argues the magistrate judge erred in excluding evidence of a poster

his supervisor had in her office as well as statements that supervisor made which
purportedly established her racial bias. For the reasons discussed below, we will affirm.

                                               I

       Since we write only for the parties, it is not necessary to recite the facts of this case

except insofar as may be helpful to our brief discussion.

       Martin first argues that the court erred in excluding certain statements of Deborah

Cooper. Cooper, a white female, became Martin’s supervisor after moving to Pittsburgh

from Orlando, Florida, to work for the Port Authority. On several occasions, Cooper

made comments about her move from the South, stating: “I told my father that I was

moving to Pittsburgh, and my father said, ‘I have been waiting 79 years to get even with

the damn Yankees and this ought to just about do it’” (hereafter referred to as the

“Yankee comment”).

       Martin’s second evidentiary challenge addresses a poster in Cooper’s office. After

she began working at the Port Authority, Cooper hung a poster that featured a photograph

of a sculpture titled, “Defiance.” It depicted an African-American female slave, standing

erect, with scars on her back. Cooper had purchased the artwork at an Urban League

function in Orlando. After displaying the poster, Cooper discovered several hundred

copies of an anonymous letter in the stairwell of her office building. The letters made

reference to the poster and described Cooper as “a racist.” Cooper’s supervisor initially

met with her to request that she take the poster down. However, after discussing the

matter with Cooper, he changed his mind and told her that she did not need to remove it.

Ultimately, Cooper did take the poster down on her own.
       Martin had a history of tardiness and attendance problems. He had received poor

job evaluations that included a written reprimand. Martin’s supervisors met with him

prior to his termination to discuss his job performance, but he was eventually dismissed

after an incident on March 2, 1999. Martin thereafter brought this action in the Western

District of Pennsylvania, alleging violations of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act, 43 P.S. § 951 et

seq. The Port Authority thereafter filed a motion for summary judgment which was

denied by the magistrate judge. The magistrate judge based her decision on the two

pieces of evidence that form the crux of Martin’s appeal: the poster and the Yankee

comment.

       In denying the motion for summary judgment, the magistrate judge commented

that both pieces of evidence were ambiguous but could suggest Cooper was biased

against African-Americans. However, prior to trial, the Port Authority filed a motion in

limine to exclude evidence of the poster and the Yankee comment. The magistrate judge

initially granted the motion with respect to the comment, but ruled that evidence of the

poster was admissible. On the first day of trial, the judge reversed herself and ruled that

the poster was also inadmissible. After a two day trial, the jury returned a verdict in favor

of the Port Authority, and Martin filed this appeal.

                                             II

       A.     Evidentiary Rulings

       Unless otherwise precluded, “[a]ll relevant evidence is admissible .” Fed. R. Evid.
402. Evidence is relevant if it has “any tendency to make the existence of any fact that is

of consequence to the determination of the action more probable or less probable than it

would be without the evidence.” Fed. R. Evid. 401. Conversely, irrelevant evidence is

not admissible. Fed. R. Evid. 402. W e review evidentiary rulings for abuse of discretion.

Glass v. Phila. Elec. Co., 34 F.3d 188, 191 (3d Cir. 1994).

       Martin argues that the magistrate judge abused her discretion when she determined

that the “Yankee” comment was not probative of racial discrimination. Martin cites

Robinson v. Runyon, 149 F.3d 507 (6th Cir. 1998), for the proposition that evidence of a

discriminatory atmosphere at a plaintiff’s place of employment is relevant to establishing

racial animus in a discriminatory-termination case. Appellant’s Br. at 24-5. In Robinson,

a Postal Service employee, who alleged that she was treated differently because of her

race and that the Postal Service condoned a racially hostile atmosphere, sought to

introduce evidence of a fake employment application containing crude racial stereotypes

that had repeatedly circulated throughout her office. Robinson, 149 F.3d. Appellant’s Br.

at 511. The district court excluded the evidence. Id. On appeal, the Court of Appeals for

the Sixth Circuit reversed because the racist employment application, which circulated to

employees without condemnation or rebuke, made the existence of racially motivated

actions by the employee’s supervisors more probable. Id. at 512.

       Robinson is clearly distinguishable from this case. Robinson involved a claim of a

hostile work environment. Martin raises no such claim. In addition, unlike the fake

postal service application at issue there, Cooper’s Yankee comment did not contain any
derogatory racial epithets; in fact, Cooper did not even mention race. We realize that one

could arguably infer racial animus from the sectional antagonism arguably evidenced by

the remark. However, that would suggest something about Cooper’s father, not Cooper.

       Martin also cites our decision in Abrams v. Lightolier Inc., 50 F.3d 1204 (3d Cir.

1995), to support his assertion that the magistrate judge abused her discretion when she

precluded evidence of Cooper’s Yankee comment. In Abrams, an employee claimed that

he was terminated based on his age. In assessing his claim, the district court had

permitted evidence of two instances in which a supervisor had referred to older plant

employees as “old fogies” and “dinosaurs.” Id. On appeal, we held that the age-related

comments were probative of the supervisor’s attitude toward older workers. Id. at 1214-

15. However, Cooper was simply repeating a rather oblique comment of her father. The

comments made by the supervisor in Abrams were related directly to age, and the

supervisor had been accused of harboring a discriminatory attitude towards older workers.

       Martin also suggests that the Yankee comment is relevant because it tends to

demonstrate that Cooper condoned her father’s notion that the South should have been

permitted to keep slaves without interference from the North. However, Cooper’s

comment is far more ambiguous than Martin admits. It does not contain any reference to

slaves, nor does it contain any disparaging references to African-Americans. Moreover,

as we have just noted, the statement is not probative of Cooper’s own views. Therefore,

the magistrate judge did not abuse her discretion in refusing to admit evidence of the

Yankee comment.
       The Port Authority also argued that the poster was not probative of any racial

discrimination on the part of Cooper. As noted above, initially, the magistrate judge

denied the motion in limine stating that while the effect of the artwork was ambiguous,

Cooper’s objections to removing the poster after being advised that the poster was

offensive to African-Americans could suggest insensitivity to the feelings of African-

Americans under her supervision and could therefore constitute evidence of bias toward

African-Americans. However, after reviewing Cooper’s deposition testimony, the

magistrate judge rescinded her order and decided to grant the Port Authority’s motion in

limine because evidence of the poster was not probative of racial discrimination.

       Martin asserts that the poster demonstrates Cooper’s lack of sensitivity to the

feelings of African-Americans, and could also establish that Cooper condoned the

physical abuse of African-Americans. Martin also argues that the poster is relevant

because Cooper did not take it down after she read the anonymous complaint describing

her as a racist and because she did not acquiesce to her supervisor’s initial request to

remove it. However, the sculptor whose work is depicted in the poster explained that it

portrays “a beautiful young woman trying desperately to hold on to her dignity. . . . She

stands erect, not bowed. The expression on her face is resolve . . . the scars on her back

testify to her spirit.” App. 87. The artist describes the work as an expression of anger at

the institution of slavery, and that is consistent with the fact that Cooper purchased it from

the Urban League. We realize that “beauty resides in the eyes of the beholder.”

Moreover, Aesop reminds us that “one man’s meat is another man’s poison.” Therefore,
we recognize that not everyone will view the poster in the same way or attach the same

significance to it that the sculptor did. That does not, however, mean that it reflects

Cooper’s insensitivity or racism. The magistrate judge properly exercised her discretion

in heading off a debate about a work of art that doesn’t appear very probative of the point

Martin seeks to wrench from it. There is nothing in the record to suggest that Cooper

condoned the physical abuse of African-Americans, or that the poster suggests that she

does.

        Martin’s attempt to use Cooper’s meeting with her supervisor to paint the poster

and Cooper as racist is also unavailing. At the outset of that meeting, Cooper’s

supervisor did request that Cooper remove the poster because of the anonymous letter that

had surfaced in the office in response to it, and Cooper stated that she would not take it

down. However, during that conversation the supervisor changed his mind, and

ultimately agreed that Cooper would not have to remove the poster. Thus, Cooper was

not acting in defiance of her supervisors in allowing the poster to remain. The magistrate

judge concluded that neither the poster nor the fact that Cooper had hung it in her office

was probative of racial bias. Based on this record, that was not an abuse of discretion.

        C. The “Law of the Case” doctrine

        Finally, Martin contends that the magistrate judge erred because she failed to

follow the “law of the case” doctrine. The “law of the case” doctrine has developed to

maintain consistency and avoid reconsideration of matters once decided during the course

of a lawsuit. Pub. Interest Research Group of N.J., Inc. v. Magnesium Elektron, Inc., 123
F.3d 111, 116 (3d. Cir. 1997). The doctrine is intended to promote finality and judicial

economy. Id.

       Martin argues that when the magistrate judge denied a defense motion for

summary judgment, she stated that the evidence of the poster and the Yankee comment,

while ambiguous, could be considered by a jury as evidence that Cooper had a

discriminatory reason for firing Martin. Martin contends that when the magistrate judge

subsequently granted the Port Authority’s motion in limine, she therefore violated the law

of the case doctrine.

       Martin’s reliance on the law of the case doctrine is not only misplaced, it

approaches frivolity. The doctrine does not preclude all reconsideration of an issue, nor

prevent a trial court from reconsidering the relevance or admissibility of evidence as a

law suit proceeds or a trial unfolds. Tang v. State of R.I., Dep’t. of Elderly Affairs, 163

F.3d 7, 11 (1st Cir. 1998). Interlocutory orders remain open to reconsideration and do not

constitute the law of the case. Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir.

1994). The pre-trial rulings of a trial court may be reconsidered not only during pre-trial

proceedings, but even after trial. 18B Charles Alan Wright, Arthur R. Miller & Edward

H. Cooper, Federal Practice and Procedure § 4478.1 (2d ed. 2002). Thus, the law of the

case doctrine is inapplicable to the magistrate judge’s pre-trial evidentiary ruling.

                                             III

       For the reasons stated above, we will affirm the district court.
