                                                                       [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                       FILED
                                                          U.S. COURT OF APPEALS
                        ________________________            ELEVENTH CIRCUIT
                                                                JUNE 5, 2001
                                                             THOMAS K. KAHN
                               No. 99-12796                       CLERK
                        ________________________
                      D.C. Docket No. 97-02008-CV-P-S



MARIAN ANDERSON,
                                                        Plaintiff-Appellant,

     versus


WBMG-42,
PARKER COMMUNICATIONS, INC., et al.,
                                                        Defendants-Appellees.

                       __________________________

              Appeal from the United States District Court for the
                         Northern District of Alabama
                        _________________________

                                (June 5, 2001)




Before BARKETT, HILL and KRAVITCH, Circuit Judges.

BARKETT, Circuit Judge:
      Marian Anderson, an African-American female, appeals from a final judgment

following a jury verdict in favor of her former employers, WBMG-Channel 42, Parker

Communications, Inc., and Media General, Inc. (collectively “WBMG”), on her

claims of employment discrimination and retaliatory discharge on the basis of race.

See Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Specifically,

Anderson claims that Hal Broome, a white male and the general manager of WBMG,

terminated her for racially discriminatory reasons. Anderson argues on appeal that the

district court’s exclusion of testimony that purportedly established Broome’s disparate

treatment of similarly situated white employees constitutes reversible error. We

affirm.

                                   BACKGROUND

      Anderson was hired as a news producer on June 24, 1996, by Wilhemina

Walker, the news director at WBMG, a local affiliate of CBS in Birmingham,

Alabama. At that time, Walker was the only African-American manager at the station.

At trial, Walker testified that Broome instructed her to terminate Anderson on

September 12, 1996, less than three months after Anderson was hired. According to

Broome, Anderson was terminated due to her “unprofessional behavior,” specifically,

her insubordinate actions in opposition to the implementation of workplace team-

building strategies that he claimed were intended to boost the station’s local television



                                           2
ratings. Anderson testified that she believed Broome’s team-building strategies were

racially motivated and designed to undermine the authority of Walker. The evidence

adduced at trial established that Anderson publicly voiced her opposition to the

program in front of Broome at the first team-building meeting and demanded written

information regarding Broome’s team-building strategies before she would agree to

take part in them. She then refused to attend a second team-building meeting, and also

failed to provide a list of staff resources requested for this second meeting.

      Anderson sought to present evidence at trial of WBMG’s racial discrimination

through testimony that while she was terminated for “unprofessional behavior,”

similarly situated white employees, Evan Lockridge and Tom Allen, likewise guilty

of “unprofessional behavior,” were not terminated.          The proffered testimony

pertaining to Evan Lockridge, a newsroom photograher, established that on one

occasion Lockridge lost his temper, used profanity, threw a tape and a box, and kicked

a trash can in the newsroom. After the incident, Walker verbally reprimanded

Lockridge, suspending him for the remainder of the day. Walker informed Broome

that Lockridge had “exploded” in the newsroom, and provided a written report of the

incident and his suspension. Lockridge thereafter apologized, offered to resign, and

did resign several weeks following the incident.

      The evidence relevant to Tom Allen, an executive producer, consisted of



                                           3
Walker’s testimony of his insubordination. Walker testified that Allen failed to follow

her instructions on several occasions and showed reluctance complying with the

“direction [she] wanted the product to go in.” Rather, Allen did what Walker’s

predecessor, who was still employed at the station, directed him to do. Moreover,

notwithstanding Walker’s instructions to Allen to leave work at 6:30 p.m. or 7:00

p.m., because his presence interfered with preparations for the ten o’clock news

program, he continued to remain at the station. Walker testified that he would “cause

some problems . . . by being there,” in order to “manag[e] his wife,” an anchor on the

ten o’clock news program. Walker claimed that she reprimanded Allen on several

occasions by talking to him about her “difficulty with him doing the things in the

newsroom that [she] wanted done.” Broome testified that he was unaware of Allen’s

misconduct in the newsroom, although Allen did complain to Broome that Walker

would not allow him to perform the responsibilities of his position without

interference and offered to resign.      Instead, Broome transferred Allen to the

production department.

      We review the evidentiary rulings by the district court for an abuse of

discretion. See Piamba Cortes v. American Airlines, Inc., 177 F.3d 1272, 1305-06

(11th Cir. 1999). We reverse only if the complaining party establishes that the

evidentiary ruling resulted in a “substantial prejudicial effect,” thus warranting



                                          4
reversal of the jury’s verdict. See id.; see also Fed.R.Evid. 103(a) (“Error may not be

predicated upon a ruling which admits or excludes evidence unless a substantial right

of the party is affected . . .”); Fed.R.Civ.P. 61 (An erroneous evidentiary ruling is not

subject to reversal unless refusal to take such action is “inconsistent with substantial

justice.”).

       The district court excluded the proffered evidence pertaining to Lockridge and

Allen under Rule 403. See Fed.R.Evid. 403 (“Although relevant, evidence may be

excluded if its probative value is substantially outweighed by . . . considerations of

undo delay, [or] waste of time . . .”). Anderson argues on appeal that the district court

erred in excluding the evidence because the probative value of the proffered testimony

would have provided the necessary support for her claim of racial discrimination and,

thus, was not substantially outweighed by time considerations. WBMG, on the other

hand, argues that the district court’s exclusion of this proffered evidence was proper,

but for the wrong reason since, by excluding the evidence under Rule 403, the district

court erred in finding the evidence relevant in the first instance. WBMG suggests that

the district court should have excluded the proffered evidence as irrelevant under Rule

402 because the conduct of the co-employees were not the same as Anderson’s and

because they were not disciplined by the same supervisor.         See Fed.R.Evid. 402

(Evidence that is not relevant is not admissible at trial.). Alternatively, WBMG argues



                                           5
that the district court’s reason for excluding the evidence under Rule 403, that is,

although relevant, it was not sufficiently probative to overcome a concern for the

waste of judicial time, is correct and should be affirmed.

                                   DISCUSSION

      Evidence that similarly situated employees are disciplined more leniently is

admissible to support a disparate treatment claim when the plaintiff has established

that the co-employees are in fact similarly situated. See Nix v. WLCY Radio/Rahall

Communications, 738 F.2d 1181, 1186 (11th Cir.1984). Thus, the plaintiff must show

that the comparator employees are “involved in or accused of the same or similar

conduct” yet are disciplined in a different, more favorable manner. Holifield v. Reno,

115 F.3d 1555, 1562 (11th Cir. 1997).

      In some cases, the determination of whether comparators are similar will be an

easier task than in others, for example, when two employees have violated the

identical rule or expressed work policy. That is not the case here. In this case,

Anderson was fired for “unprofessional behavior.” Both parties agree Anderson was

not terminated for the violation of any work rules or specific policy, written or

otherwise understood.     There is nothing in the record indicating that the term

“unprofessional behavior” was defined at the time of Anderson’s discharge, and it

appears a general definition of “unprofessional behavior” was unavailable because



                                          6
WBMG admits no rules of conduct or employee manuals were available throughout

the duration of Anderson’s employment. Likewise, no disciplinary procedures were

available due to a lack of published employee policies. When the record establishes

that no objective criteria was applied in an employer’s decisionmaking process, such

as the case here, similarly situated evidence is particularly relevant because inferences

of discriminatory motive depend upon the application of subjective criteria.1

        This is especially so when the reason given for the disciplinary action is

“unprofessional behavior,” which can encompass a wide range of actions.2 In arguing

that the conduct of comparator employees must be the same or nearly identical,

WBMG takes the same position rejected by this Court in Alexander v. Fulton County,

207 F.3d 1303, 1334 (11th Cir. 2000). In that case, the employer defendant contended

        1
          The Supreme Court has consistently recognized that disparate treatment potentially results
from an employer’s practice of committing employment decisions to the subjective discretion of its
supervisors. See Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 988 (1988)(“[W]e have
consistently used conventional disparate treatment theory, in which proof of intent to discriminate
is required, to review [employment] decision[s] that were based on the exercise of personal
judgment or the application of inherently subjective criteria.”) (citing Furnco Constr. Corp. v.
Waters, 438 U.S. 567 (1978) (hiring decisions based on personal knowledge of candidates and
recommendations); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981)
(discretionary decision to fire individual who was said not to get along with co-workers); United
Postal Service Bd. of Governors v. Aikens, 460 U.S. 711 (1983) (discretionary promotion decision)).

        2
          The Supreme Court has observed that “precise equivalence in culpability between
employees is not the ultimate question[,]” and, therefore, has directed the emphasis of the fact
finder’s inquiry to the question of “comparable seriousness.” McDonald v. Santa Fe Trail
Transportation Co., 427 U.S. 273, 283 n.11 (1976) (Evidence of comparator employees involved in
acts of “comparable seriousness [as the plaintiff] . . . is adequate to plead an inferential case that the
employer’s reliance on his discharged employee’s misconduct as grounds for terminating him was
merely a pretext.”) (internal quotations and citation omitted).

                                                    7
that the trial court had mischaracterized the law by charging the jury that it could find

discrimination where “another similarly situated employee” was not treated in a

“similar manner”:

             Defendants claim that the term “similarly situated” is
             ambiguous, and that this [jury] charge miscasts the
             governing law of this circuit, which they claim requires the
             “same or nearly identical conduct.” Again, we disagree.
             Although susceptible to manipulation, the phrase “similarly
             situated” is the correct term of art in employment
             discrimination law. Moreover, the law does not require that
             a “similarly situated” individual be one who has “engaged
             in the same or nearly identical conduct” as the disciplined
             plaintiff. Instead, the law only requires “similar”
             misconduct from the similarly situated comparator.
             Olmstead v. L.C. by Zimring, 527 U.S. 581, 119 S.Ct.
             2176, 2193, 144 L.Ed.2d 540 (1999) (Kennedy, J.,
             concurring in the judgment) (characterizing the “normal
             definition of discrimination” as “differential treatment of
             similarly situated groups” (emphasis added)); Texas Dep't
             of Community Affairs v. Burdine, 450 U.S. 248, 258, 101
             S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981) (“McDonnell
             Douglas teaches that it is the plaintiff's task to demonstrate
             that similarly situated employees were not treated equally.”
             (emphasis added)); Osram Sylvania, Inc. v. Teamsters
             Local Union 528, 87 F.3d 1261, 1265 (11th Cir.1996)
             (“Disparate treatment exists when similarly situated
             workers are treated differently even though they have
             committed similar acts.” (emphasis added)); Jones v.
             Gerwens, 874 F.2d 1534, 1540 (11th Cir.1989) (holding
             that in order to show discriminatory discipline, plaintiff
             must show either that he did not violate the work rule or
             “that he engaged in misconduct similar to that of a person
             outside the protected class, and that the disciplinary
             measures enforced against him were more severe than those
             enforced against other persons who engaged in similar

                                           8
             misconduct” (emphasis added)).

Alexander, 207 F.3d at 1334-35. To the extent that “unprofessional behavior” can

be understood by the ordinary use of that term, we reject WBMG’s position that the

proferred evidence in this case was not relevant as comparator evidence because the

conduct of Lockridge and Allen was not identical. See id.

      We also reject WBMG’s position that Jones v. Gerwens, 874 F.2d 1534, 1541

(11th Cir. 1989) and Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1311

(11th Cir. 1998), opinion modified by 151 F.3d 1321 (1998), stand for the proposition

that whenever two different supervisors are involved in administering the disciplinary

actions, the comparators cannot as a matter of law be similarly situated for Title VII

purposes. Because in both Gerwens and Bessemer this Court found that similarly

situated evidence could not be demonstrated, WBMG argues that a plaintiff cannot

prevail as a matter of law whenever two different supervisors are involved in

disciplining the plaintiff and comparators. Neither of these cases, however, support

such a broad assertion.     Bessemer specifically indicated evidence of different

supervisors’ involvement in the disciplinary process is not determinative of the

question.   137 F.3d at 1312 n.7 (“Different supervisors may have different

management styles that – while not determinative – could account for the disparate

treatment that employees experience.”) (emphasis added). In Gerwens, we said that,



                                          9
under the circumstances there, different supervisors “may not be comparable” for the

purposes of Title VII analysis. 874 F.2d at 1541 (emphasis added). Our rationale,

however, was reflective of the cases upon which we relied:

             See Cooper v. City of North Olmsted, 795 F.2d 1265, 1271
             (6th Cir.1986) (“Although a change in managers is not a
             defense to claims of race or sex discrimination, it can
             suggest a basis other than race or sex for the difference in
             treatment received by two employees”); Tate v.
             Weyerhauser, 723 F.2d at 605-06 (“Although a change in
             managers is not a defense to claims of racial
             discrimination,” evidence that one manager is more lenient
             than another may explain differential application of
             sanctions to whites under one manager and blacks under
             another); Lynch v. Dean, 39 FEP Cases 338, 345
             (M.D.Tenn.1985), rev’d on other grounds, 817 F.2d 380
             (6th Cir.1987) (“Proof that workers under [one foreman’s]
             supervision were disciplined more severely than workers
             under the supervision of other foremen does not aid
             plaintiff in insisting that she was the victim of selective
             enforcement of the rules”).

Gerwens, 874 F.2d at 1541.

      In this case there was no change in managers. Unlike the plaintiff and proffered

comparators in both Gerwens and Bessemer, the supervision of Lockridge, Allen, and

Anderson--all of the employees in question--fell within the primary responsibility of

one middle manager and the same supervisory chain of command. Anderson has

shown that at the time of the alleged misconduct, the comparator employees were

stationed in the newsroom and under the immediate supervision of Walker, as news



                                         10
director, and under the general supervision of Broome, as general manager. Disparate

treatment analysis “requires that none of the participants in the decision making

process be influenced by racial bias.” Gerwens, 874 F.2d at 1542 n.13. “Thus the

motivations of both the [upper management] and of [middle management] are

pertinent.” Id.

      Although relevant, Rule 403 nonetheless permits exclusion when the probative

value of the evidence is outweighed by considerations of time. See Fed.R.Evid. 403.

It is true that Rule 403 should be applied sparingly. See United States v. Cross, 928

F.2d 1030, 1048 (11th Cir. 1991); United States v. Meester, 762 F.2d 867, 875 (11th

Cir. 1985). However, under the facts here, we do not find that the district court’s

exclusion of the evidence resulted in “manifest injustice” or a “substantial prejudicial

effect” to Anderson, thus warranting reversal of the jury’s verdict. See Piamba

Cortes, 177 F.3d at 1305-06.

      There is no abuse of discretion where a trial court prevents counsel from

embarking on a lengthy examination of matters which have not been developed during

discovery. To have permitted a lengthy examination and perhaps lengthier rebuttal

encompassing the efficacy of WBMG’s management, or Walker’s role or ability as

a supervisor, would have in effect generated a mini-trial on collateral issues which

would not relate to the racial discrimination alleged in Anderson’s claim. For



                                          11
example, among other things, the disciplining and firing authority of Walker and

Broome had not been made clear, and their respective roles in Anderson’s termination

had not been fully developed during discovery. Whether Walker, against whom

Anderson makes no claim of discriminatory motive, recommended Anderson’s

termination as WBMG contends, or failed to recommend the termination of the

comparator employees, is unclear from the record. Likewise, it is also unclear

whether Walker brought the specifics of Allen’s conduct to the attention of Broome,

and should have recommended termination pursuant to her role as his immediate

manager or as a matter of established supervisory practice at WBMG.3 Consequently,

Broome’s knowledge of Allen’s alleged unprofessionalism was not established

directly and there is no evidence from which it can be inferred. Under all the

circumstances presented here, we find no abuse of discretion in the district court’s

ruling under Rule 403.

AFFIRMED.




       3
          The demonstration that a middle manager administers more lenient discipline in the
instance of the comparator employees whereas an upper manager recommends the discharge of a
plaintiff does not prevent an inference of impermissible motive if either the middle or upper
management knew or should have known of the alleged misconduct of the comparators and failed
to recommend discharge. See Gerwens, 874 F.2d at 1542 n.13. In this case, Anderson only argues
that the upper manager, Broome, has administered the discipline in a discriminatory manner and did
not attempt to argue that the middle manager, Walker, who possessed knowledge of both Anderson’s
and the comparators’ unprofessionalism, was motivated by racial discrimination.

                                               12
HILL, Circuit Judge, concurring:

      I concur, with this remark.

      The exclusion of the proffered evidence did not, as the opinion makes clear,

result in “manifest injustice,” or “substantial prejudicial effect,” and was not an abuse

of discretion. This affirmance is proper.

      I doubt that we are required, therefore, to decide whether or not the tendered

evidence was comparator evidence. What I view as dicta in our opinion, however,

strengthens our holding inasmuch as affirming is ordered assuming the best view of

the tendered evidence for the appellant.




                                            13
