                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-8-1994

Glass v. Phila. Elec. Co.
Precedential or Non-Precedential:

Docket 92-1896




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                          UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT



                           No. 92-1896



                          HAROLD GLASS,

                                           Appellant

                                 v.

                   PHILADELPHIA ELECTRIC COMPANY



          Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                 D.C. Civil Docket No. 90-06370




                       Argued: July 1, 1993

         Before:   BECKER, ALITO and ROTH, Circuit Judges

               (Opinion Filed:     September 8, 1994)




Alice W. Ballard, Esquire (Argued)
Lynn Malmgren, Esquire
Samuel & Ballard
225 South 15th Street, Suite 1700
Philadelphia, PA 19102
          Attorneys for Appellant

Dona S. Kahn, Esquire (Argued)
Hope A. Comisky, Esquire
Richard G. Tuttle, Esquire
Anderson, Kill, Olick & Oshinsky
1600 Market Street, Suite 1416
Philadelphia, PA 19103
          Attorneys for Appellee



                      OPINION OF THE COURT
ROTH, Circuit Judge:


          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

1
 . Glass also appeals on the grounds that the district court's
instructions to the jury on pretext contained an incorrect legal
standard. In light of our disposition, we will not reach this
issue. We will leave to the district court the opportunity, in
light of the evidence presented on remand, to draw up appropriate
jury instructions, following the precedents set forth in St.
Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993), and its
                                 I.

           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
(..continued)
progeny. See, e.g., Hook v. Ernst & Young,        F.3d     (3d Cir.
1994).
2
 . Glass chose to take early retirement as part of a plan
offered by PECO during an overall cost cutting program caused by
the need for economic retrenchment.
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. §§ 1331 and 1334 over this claim which alleges violations

of the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Civil

Rights Act of 1964, 42 U.S.C. § 2000, et seq.; and the Age

Discrimination in Employment Act, 29 U.S.C. § 621, et seq.     The

district court exercised supplemental jurisdiction over claims

brought under the Pennsylvania Human Relations Act, 43 P.S. §

951, et seq.   We have jurisdiction over Glass's appeal pursuant

to 28 U.S.C. § 1291.

                                II.
          We review pre-trial and trial court rulings concerning

the admission or 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 (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).

                                  A.

          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. 4033 and the jurisprudence of this

3
.   Fed. R. Evid. 403 states:
          Although relevant, evidence may be excluded if its
          probative value is substantially outweighed by the
          danger of unfair prejudice, confusion of the issues, or
Court.   See, e.g., United States v. Downing, 753 F.2d 1224, 1243

(3d Cir. 1985) (declining to decide the Rule 403 question where

the district court neither mentioned Rule 403 on the record nor

"conducted the balancing required by that rule"); United States

v. Long, 574 F.2d 761, 770 (3d Cir.) (Adams, concurring) (the

record should reflect, at least minimally, that balancing

occurred), cert. denied, 439 U.S. 985 (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.:   "Let's not relitigate the

Eddystone matter.   I'll sustain the objection."    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 to invoke
Rule 403 by opposing PECO's claims that the evidence "is
(..continued)
          misleading the jury, or by considerations of undue
          delay, waste of time, or needless presentation of
          cumulative evidence.
prejudicial, confusing and will promote delay in the

proceedings."   App. at 3.

          If we consider PECO's motion in limine as the

equivalent of a specific Rule 403 objection to the Eddystone

evidence, then "we must confront the trial court's failure to

articulate its balance between the probative value and the

prejudicial effect of the evidence in one of two ways:        either we

decide the trial court implicitly performed the required balance;

or, if we decide the trial court did not, we undertake to perform

the balance ourselves."      United States v. Eufrasio, 935 F.2d 553,

572 (3d Cir. 1991) (citation omitted).      Independent of either

method, "the trial court's failure to expressly articulate a Rule

403 balance when faced with a Rule 403 objection, would not be

reversible error per se."     Id.

          If, on the other hand, we decide that PECO's motion in

limine did not constitute a specific Rule 403 objection to the

admission of the Eddystone evidence, then the trial court was not

required to strike a Rule 403 balance on the record sua sponte.4

We note that PECO's and Glass's understanding of what the trial

court did is significant to our analysis.      Both parties
4
 . "Since the 'specific' objection requirement of Fed. R. Evid.
103(a) was not complied with, the trial judge was not required to
deal with Rule 403. . . . [T]he dynamics of trial do not always
permit a Rule 403 analysis in . . . detail . . .. [T]o require a
detailed balancing statement in each and every case is
unrealistic. . . . [W]here [a] Rule 403 [objection] is not
invoked, the trial judge's balancing will be subsumed in his
ruling." United States v. Long, 574 F.2d 761, 766 (3d Cir.),
cert. denied, 439 U.S. 985 (1978) (emphasis added).
communicated at oral argument their belief that the trial judge

based his evidentiary rulings on Rule 403.

          We determine, however, that we do not in fact need to

base our decision here on a resolution of whether or not PECO's

pre-trial motion in limine constituted a Rule 403 objection.5

Reviewing the trial transcript, including, on the one hand, the

references by the defense to Glass's performance at Eddystone and

the effect his poor performance rating there had on his later

attempts at promotion and, on the other hand, the proffers made

by Glass at those times as to what he would show concerning the

impact of the racial harassment on his performance and his

performance evaluation, we conclude that the district court's

repeated refusal to grant Glass's attempts to admit the Eddystone

evidence was an abuse of discretion.

                               B.

          On the second day of trial at a sidebar conference, the

court ruled that evidence of the allegedly hostile racial

environment at Eddystone in the mid-1980's was inadmissible.

Glass's counsel made the following offer of proof:
          BALLARD: If permitted, I would also offer evidence of
          the environment Mr. Glass encountered at Eddystone
          Station when he went there as a junior technical
          assistant in 1984 to show why he had difficulty
5
 . Indeed, it may be difficult for the district court at the
pre-trial stage to make an adequate assessment of the Rule 403
balancing. See In re Paoli R.R. Yard PCB Litigation, 916 F.2d
829, 859-60 (3d Cir. 1990) ("[I]n order to exclude evidence under
Rule 403 at the pretrial stage, a court must have a record
complete enough on the point at issue to be considered a virtual
surrogate for a trial record.")
            performing there, to show that he was the victim of a
            discriminatory and harassing environment there. And I
            understand Your Judge's ruling of two -- Your Honor's
            ruling of two days ago to say that I should stay away
            from that as well.

            THE COURT:   That's correct.


App. at 66.    Glass contends that, if the Eddystone evidence had

been admitted, it would have shown that the more senior technical

employees posted hostile and demeaning images about him on the

plant premises and that he was the subject of racially derogatory

remarks.    It would also have shown that the training and

performance of junior technical assistants depended directly on

the goodwill and support of the more experienced technical

assistants and senior technical assistants who train and evaluate

the junior technical assistants.     Glass maintains that his

behavior and his opportunity to learn and perform effectively was

impaired by the hostile environment in which he worked.

            The trial court repeatedly sustained PECO's objections

to Glass's attempts to introduce evidence concerning these

events.    Glass testified that his activities on behalf of

employees and as BGC/IGA Representative qualified him for the

position of Labor Relations Representative.     The requirements for

the job of Labor Relations Representative were: a     "bachelor's

degree in human resource management or labor relations, or

significant labor relations work experience or equivalent

combination of work experience and successful completion of

college courses covering such areas as labor relations, general
accounting, managerial accounting, and/or compensation and

benefits."    Glass had both an appropriate college degree (B.S.,

Industrial and Management Engineering) and the relevant

coursework.   He also had equivalent work experience developing

and handling employee grievances, negotiating with management and

settling major lawsuits related to employee relations and labor

law.   His academic background and his work experience qualified

him for the job and afforded him an interview with James Lange,

Director of Labor Relations.

          Even though Glass had met the education requirements

and had the experiential background in labor relations, a

qualification characterized as "preferred" on the job posting, he

was rejected in favor of younger, white candidates, none of whom

had comparable employee or labor relations experience.    Lange

testified that one reason he rejected Glass was his poor

performance at Eddystone.   Glass attempted to pursue the extent

of Lange's knowledge of the Eddystone events on cross-

examination:
          Q No, my question is the previous
          performance that you identified as one of the
          reasons why you turned him down. ...

          A   Uh-huh.

          Q ... that was his performance at Eddystone,
          isn't it?

          A   In part.

          Q Now, did you do any investigation
          regarding his performance at Eddystone to see
           whether he had been the victim of unfair
           treatment there?

           A    No, I did not.

           Q Did he tell you that he had been the
           victim of unfair treatment there?

           A   Yes, he had.

           Q Did he tell you that people had posted
           hostile pictures of him on the wall ...

                    MS. KAHN: Objection, ...
           Q   ... when he was ...

                    MS. KAHN: ... Your Honor.

           Q   ... at Eddystone?

                   THE COURT: Let's not relitigate the
           Eddystone matter. I -- I'll sustain the
           objection.

App. at 357-58.


           PECO also claimed that Glass was rejected because of

poor interpersonal skills, the focus of the testimony of Malcolm

Riley, Glass's boss at Eddystone.    Riley testified about Glass's

role as BGC representative while at Eddystone during the same

period.   Glass was not permitted to cross-examine Malcolm Riley

about the relationship between the hostile work environment and

Riley's judgment that Glass's behavior during this time evidenced

poor interpersonal skills:
          Q   Do you remember a time, Mr. Riley, when
          somebody at Eddystone Station put some
          pictures up on the board of Harold Glass?

                    MS. KAHN: Objection, Your Honor.
           Objection, Your Honor. This is constantly
          brought into the case.   It was ruled that it
          was not relevant.

                   THE COURT: I agree. Now, let me
          see counsel one moment at sidebar.


App. at 404.

          Glass was similarly denied the opportunity to introduce

evidence of the circumstances at Eddystone in the context of his

claim that PECO's refusal to hire him as an engineer in 1989-90

was discriminatory.   Alvin Weigand, head of the engineering

division in which Glass worked, testified that he told Glass that

a promotion to engineer would be conditioned on his

satisfactorily performing in a JTA position for two years.     Glass

denied having ever been told that the probationary period was for

two years but instead understood that a waiting period of

indefinite duration was being imposed on him.   In any event, a

probationary period, whether two years or open-ended, was not

applied to any other degreed candidate for an engineering job.

Glass declined the job.

          At trial, Weigand testified that he imposed the

probationary period because of Glass's poor performance while at

Eddystone.   Glass attempted to pursue the extent of Weigand's

knowledge of the Eddystone events on cross-examination:
          Q   Now, you said that you were aware of his
          past performance problems, in the technical
          field. How did you know what kinds of
          problems you thought he had had? Sorry.
          That's a terrible question. What, quote,
          performance problems, close quote, were you
          aware of?
          A   I was aware that he was not receiving
          satisfactory performance appraisals in his
          JTA job at Eddystone Station, and I was aware
          that he was not being promoted to TA which is
          the normal progression, and that was in my
          organization, down a couple levels.

          Q   Were you aware that he had had difficulty
          on the job at Eddystone of a personal nature
          in connection with the other employees?

               MS. KAHN: Objection, Your honor.
          Again, we're going back into history which
          was ruled irrelevant.

          THE COURT:    The objection's sustained.


App. at 426.    With PECO's objection sustained, Glass was

repeatedly unable to introduce any evidence concerning the

racially hostile environment at Eddystone station, management's

failure to take corrective action when it learned of the

harassment, or the connection between these incidents and his

negative performance evaluation.

          We find that the district court abused its discretion

for the following reasons:    First, in the federal courts, the

scope of permissible cross-examination is set forth in Fed. R.

Evid. 611(b):    "Cross-examination should be limited to the

subject matter of the direct examination and matters affecting

the credibility of the witness."    See also United States v.

Sullivan, 803 F.2d 87, 90 (3d Cir. 1986).    The district court

erred by allowing PECO's witnesses, Lange, Riley and Weigand, to

testify about their knowledge of the events at Eddystone but then
not allowing Glass to cross-examine those witnesses as to the

basis or extent of their knowledge.

          Second, we find that the Eddystone evidence is

independently relevant to a key aspect of the case:   whether one

of the principal non-discriminatory reasons asserted by PECO for

its actions was in fact a pretext for age or race discrimination.

In St. Mary's Honor Center v. Hicks, the Supreme Court confirmed

that, under the well-established burden-shifting formula of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas

Dept. of Community Affairs v. Burdine, 450 U.S. 253 (1981), in a

Title VII case alleging employment discrimination:
          First, the plaintiff has the burden of
          proving by a preponderance of the evidence a
          prima facie case of discrimination. Second,
          if the plaintiff succeeds in proving the
          prima facie case, the burden shifts to the
          defendant to articulate some legitimate, non-
          discriminatory reason for the employee's
          rejection. Third, should the defendant carry
          this burden, the plaintiff must then have an
          opportunity to prove by a preponderance of
          the evidence that the legitimate reasons
          offered by the defendant were not his true
          reasons, but were a pretext for
          discrimination.


Burdine, 450 U.S. at 252-53; see St. Mary's Honor Center, 113

S.Ct. at 2749 (reaffirming "our repeated admonition that the

Title VII plaintiff at all times bears the 'ultimate burden of

persuasion'" of intentional discrimination).   This formula

applies equally to claims of age discrimination in employment

under ADEA.   See Chipollini v. Spencer Gifts, Inc., 814 F.2d 893,
897 (3d Cir. 1987) (in banc).   Since Glass had introduced

sufficient evidence to establish a prima facie case and PECO had

asserted several nondiscriminatory reasons for its actions,

including Glass's poor performance at Eddystone, the Eddystone

evidence is relevant and should have been admitted to help Glass

meet his burden of proving intentional discrimination as Glass's

counsel proposed in her proffer on three occasions during the

trial.   The district court's rejection of Glass's proffers was

error.   The preclusion of the evidence deprived Glass of a full

hearing on the issue of pretext and was, therefore, not harmless

error; rather, it is highly probable that the evidentiary rulings

affected the outcome of the case.   Lockhart v. Westinghouse

Credit Corp., 879 F.2d 43, 53 (3d Cir. 1989).6

          Our decision is buttressed by the judicial

inhospitability to evidentiary exclusions in discrimination

cases.   The Eighth Circuit explained in reversing similar

evidentiary exclusions in an employment discrimination suit:
          The effects of blanket evidentiary exclusions
          can be especially damaging in employment
          discrimination cases, in which plaintiffs
          must face the difficult task of persuading
          the fact-finder to disbelieve an employer's
          account of his own motives.


6
 . A Rule 403 balancing, if requested, would be a part of any
ruling on a particular aspect of the Eddystone evidence, as such
evidence might be relevant to the issue of pretext. We conclude,
however, that such a balancing of particular items of Eddystone
evidence would be better made on remand by the trial judge, as
testimony is proffered, than it would by us, out of context, at
this stage of the proceedings.
                . . .

          Circumstantial proof of discrimination
          typically includes unflattering testimony
          about the employer's history and work
          practices -- evidence which in other kinds of
          cases may well unfairly prejudice the jury
          against the defendant. In discrimination
          cases, however, such background evidence may
          be critical for jury's assessment of whether
          a given employer was more likely than not to
          have acted from an unlawful motive.


Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir.

1984).

          Citing this passage from Estes, the Eighth Circuit in
Hawkins v. Hennepin Technical Center, 900 F.2d 153, 155 (8th Cir.

1990), reversed summary judgment for the defendant in a disparate

treatment sex discrimination case holding that the district court

abused its discretion in barring the plaintiff from introducing

evidence of prior sexual harassment of herself and other

employees of the defendant.   The magistrate judge had determined

that any evidence, beyond the fact that the plaintiff had filed

certain harassment complaints against the defendant in the past,
was not relevant to the plaintiff's claim that she suffered

disadvantageous employment decisions as a result of her gender

and in retaliation for complaints of sexual harassment made by

her while employed by the defendant.

          The court of appeals disagreed, finding that evidence

of the nature of the harassment complaints and the defendant's

disposition of those complaints was highly relevant to the

plaintiff's case because "an atmosphere of condoned sexual
harassment in a workplace increases the likelihood of retaliation

for complaints in individual cases."     900 F.2d 156.   See also

Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421 (7th Cir.

1986) (affirming district court's decision to admit plaintiff's

evidence of harassment against other black workers in case

alleging racially discriminatory discharge because "evidence was

relevant both in showing that Allis Chalmers condoned racial

harassment by its workers and in rebutting Allis Chalmers'

defense that it had fired Hunter for cause.").



                                 III.

             For the foregoing reasons, we conclude that the

district court abused its discretion by repeatedly barring Glass

at trial from introducing evidence about the hostile work

environment at Eddystone and from eliciting testimony of how it

related to Glass's performance, which, according to PECO, had

operated to defeat his candidacy for the positions of Labor

Relations Representative and Engineer.    We will, therefore,

reverse the district court's judgment and remand this case for a

new trial.



Glass v. Philadelphia Electric
No. 92-1896




ALITO, Circuit Judge, dissenting:
          Harold Glass, who was employed for many years by the

Philadelphia Electric Company ("PECO"), sued his former employer

for allegedly discriminating against him based on race and age

and for allegedly retaliating against him because of his pursuit

of other discrimination claims.7   His case was tried before a

jury, and the jury was requested to answer special

interrogatories that asked whether PECO had discriminated against

the plaintiff on the basis of race or age or had illegally

retaliated against him when it failed to promote him to a variety

of positions that were filled in the late 1980's.    The jury found

no such discrimination or retaliation, and the court entered

judgment for PECO.

          On appeal, the plaintiff contended, among other things,

that the district court abused its discretion under Fed. R. Evid.

403 by excluding evidence that he had been subjected to a

racially hostile environment when he worked at PECO's Eddystone

Generating Station in the mid-1980's.   The plaintiff argued that

this evidence was relevant to show that PECO's asserted reasons

for denying the promotions were pretextual and that this evidence




7
 . He asserted claims under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq.; the Age Discrimination in
Employment Act, 29 U.S.C. § 623; 42 U.S.C. § 1981; and the
Pennsylvania Human Relations Act, 43 P.S. § 951 et seq.
should not have been excluded under Rule 403.   See Appellant's

Br. at 17-26.   The majority agrees with the plaintiff's argument

and therefore reverses the judgment of the district court and

remands for a new trial.    In doing so, the majority makes little

effort to explain why the excluded evidence had probative value

or to address   the factors weighing against exclusion.   In my

view, when both sides of the Rule 403 balance are carefully

considered and the proper standard of appellate review is

applied, the district court's rulings under Fed. R. Evid. 403

must be sustained.    Moreover, even if those rulings were

incorrect, they were harmless with respect to several of the

positions at issue.    For these reasons, I dissent.



                                 I.

          Before addressing the merits of the district court's

evidentiary rulings, I will briefly supplement the procedural

history set out in the majority opinion.    Prior to trial, PECO

filed a motion in limine seeking to preclude the plaintiff from

introducing evidence of discriminatory acts that allegedly

occurred before "the statutory period covered by the charge

[Glass] filed with the Pennsylvania Human Relations Commission

and the Equal Employment Opportunity Commission. . . ."

Defendant's Motion In Limine at 1.    PECO argued that this

evidence was not relevant under Fed. R. Evid. 401 and that it
should in any event be excluded under Fed. R. Evid. 403.     PECO

stated:
           [E]ven if this Court were to conclude that
           some or all of this evidence might be
           marginally relevant and otherwise admissible,
           if it is introduced, the Court will be forced
           to preside over -- and defendants will be
           forced to defend against -- numerous
           collateral matters to be tried within the
           main trial. These mini-trials would concern
           actions by decision-makers who were not
           involved at all in any of the action in the
           fall and winter of 1989 that Glass is
           challenging in this case. In many instances,
           they would concern events which occurred many
           years before the events actually in
           controversy here. Furthermore, by admitting
           this evidence, the jury will hear an
           overabundance of tangential, collateral and
           irrelevant issues which will undoubtedly
           confuse its consideration of the true issues
           in this case. There would be at least
           several extra days of trial time and
           ultimately, should this evidence be admitted,
           defendant will be unfairly prejudiced in its
           defense.


Memorandum of Law in Support of Defendant's Motion In Limine at

4-5.   See also id. at 15-16.

           The plaintiff then filed a lengthy memorandum in

opposition to this motion.      In this memorandum, the plaintiff

stated that he "propose[d] to introduce evidence of his

employment history, including his activities as an employee

representative, to prove he was qualified for the positions he

now claims he was denied because of his age and race."      App. 3-4.

After describing the plaintiff's work as a officer of the Black

Grievance Committee, the memorandum stated:
             [T]he story of Mr. Glass' activism directly
             supports his contention that he was qualified
             for the jobs he was denied, and that despite
             these qualifications, he was rejected for
             pretextual reasons. . . .


                   In short, Mr. Glass' pre-1989 evidence
             is relevant for the purpose of showing that
             he was particularly qualified for the 1989-
             1990 positions, and that this entire history
             of activism in employee and labor relations
             is consistent with a promotion into one of
             them.



App. 9-10.     The memo also stated:
             [I]t is important to note what Plaintiff does
             not intend with regard to pre-1989 evidence.
             Plaintiff Glass does not intend to make
             actionable any of Defendant's promotional
             decisions which predate the limitations
             period in this action. Nor does Plaintiff
             intend to prove the existence of a pattern or
             practice of discrimination. . . .



App. 8-9.    Not once in this memo did the plaintiff state that he

proposed to introduce evidence that he was subjected to racial

harassment or a racially hostile work environment during the
period when he worked at PECO's Eddystone station (from 1984 to

1986) or at any other time.8

             PECO next filed a reply memorandum.   PECO argued that

the plaintiff's pre-1989 experience representing other employees

was not relevant with respect to several of the positions to

8
 . 8. Nor was harassment or a racially hostile environment at
Eddystone mentioned in the plaintiff's affidavit in opposition to
the motion in limine.
which he claimed he should have been promoted.   However, with

respect to some other positions -- the position of Affirmative

Action Staff Assistant and three positions as a Labor Relations

Representative -- PECO offered "to stipulate that plaintiff's

activities on behalf of other employees provided him with the

experience to meet certain criteria set forth in the job

requisitions" for those positions.   Rely Memorandum of Law in

Support of Defendant's Motion In Limine at 7.

          The plaintiff then filed a surreply objecting to the

proposed stipulation because it would deprive him of "the

opportunity to present the depth and texture of those

qualifications to a jury."   App. 16.   This surreply, like the

plaintiff's prior memorandum, made absolutely no mention of

racial harassment or a racially hostile atmosphere at Eddystone

or anywhere else.

          After receiving these submissions, the district court,

a few days before trial, entered an order granting PECO's motion.

Because the district court did not explain the basis for its

ruling, it is unclear whether the court held that the evidence of

pre-1989 events was not relevant or whether the court concluded

that the evidence should be excluded under Rule 403.    In any

event, however, I do not think that the plaintiff can attack this

ruling on the ground that it improperly precluded him from

proving that he had been subjected to racial harassment at

Eddystone prior to 1989.   Having explained to the district court
precisely what evidence of pre-1989 events he wanted to introduce

and precisely why he wanted to introduce that evidence, and

having said nothing about evidence of racial harassment or a

racially hostile atmosphere at Eddystone or anywhere else, the

plaintiff cannot, in my view, argue that the district court erred

in failing to admit such evidence.   See Fed. R. Evid. 103(a)(2);

Northeast Women's Center, Inc. v. McMonagle, 868 F.2d 1342, 1352-

53 (3d Cir.), cert. denied, 493 U.S. 901 (1989).

          When the trial began two days after the district

court's order granting the motion in limine had been entered and

sent to the parties, the plaintiff's counsel made an oral offer

of proof, and the following colloquy occurred:
                MS. BALLARD [plaintiff's counsel]: If
          permitted, I would also offer evidence of the
          environment Mr. Glass encountered at
          Eddystone Station when he went there as a
          junior technical assistant in 1984 to show
          why he had difficulty performing there, to
          show that he was the victim of a
          discriminatory and harassing environment
          there. And I understand your Judge's ruling
          of two -- Your Honor's ruling of two days ago
          to say that I should stay away from that as
          well.

               THE COURT:   That's correct.

               MS. BALLARD: All right. And that would
          include the pictures that were placed on the
          wall that . . .

               THE COURT:   Right.

               MS. BALLARD:   . . . degraded Mr. Glass'
          personality.

               THE COURT: Right. All these rulings
          are made without prejudice to your renewing
          them if at a later time it turns out from the
          testimony that it might be appropriate to
          bring that in. But on your case in chief,
          I've ruled that it's not admissible at this
          time.



App. 66-67.

          While this oral offer of proof, unlike the plaintiff's

prior memoranda, referred to evidence of racial harassment at

Eddystone, plaintiff's counsel still did not explain how proof of

this harassment, apparently by co-workers,9 was relevant to prove

that PECO officials had discriminated or retaliated against the

plaintiff when they denied him certain promotions years later.

In particular, plaintiff's counsel did not claim that this

evidence was relevant to show that PECO's reasons for denying the

plaintiff these promotions were pretextual.   Thus, if I had been

the trial judge, I am not sure that I would have grasped, based

on the plaintiff's prior memoranda and this short exchange, that

the plaintiff was proposing to prove the harassment at Eddystone

for the purpose of showing pretext.   But even if it is assumed

that the plaintiff's oral offer of proof was sufficient to convey

this point, the fact remains that the trial judge did not

categorically bar proof of the events at Eddystone.   On the

contrary, the judge expressly stated that his rulings on the

motion in limine were "made without prejudice to the [the

plaintiff's] renewing them if at a later time it turn[ed] out


9
.   See App. 405-06.
from the testimony that it might be appropriate to bring that

in."   App. 67.   Accordingly, I do not think that the cases cited

by the majority concerning "blanket evidentiary exclusions" (see

Maj. Typescript at 16 (quoting Estes v. Dick Smith Ford, Inc.,

856 F.2d 1097, 1103 (8th Cir. 1984)) are at all pertinent.10

Instead, I think that it was incumbent on the plaintiff to renew

his request to admit evidence concerning events at Eddystone as

the trial developed.    The plaintiff did so; the district court

then ruled; and it is these specific rulings, in my view, that we

must review.

            The exchanges that led to these specific rulings are

quoted in the opinion of the court (see Maj. Typescript at 11-

14), and therefore I will not repeat them here.    I will, however,

note two salient features of these exchanges.     First, at no point

did the plaintiff's attorney refer to the concept of "pretext" or

provide a clear explanation of the relevance of the Eddystone

evidence.   Second, at no point did the trial judge refer to Rule

403 or provide a clear explanation of the basis of his rulings

10
 . The two cases discussed by the majority -- Estes and
Hawkins v. Hennepin Technical Center, 900 F.2d 153, 155 (8th
Cir.) cert. denied, 498 U.S. 854 (1990), -- are readily
distinguishable from the current case on at least two important
grounds. First, those cases concern pretrial orders
categorically prohibiting the admission of certain evidence,
whereas in this case the trial judge expressly stated that his
pretrial order was made without prejudice to the plaintiff's
attempt to admit the evidence at a later point. Second, in Estes
and Hawkins, unlike this case, introduction of the evidence in
question was sought for the purpose of proving a pattern of
discrimination.
excluding the evidence in question.    Faced with this ambiguous

record, I think it is appropriate to give both sides the benefit

of the doubt.   Consequently, I construe the remarks of

plaintiff's counsel as having preserved the argument that the

Eddystone evidence was relevant to show pretext, and (like

counsel for both parties11) I construe the district court's

ruling as having been based on an implicit balancing pursuant to

Rule 403.   See United States v. Eufrasio, 935 F.2d 553, 572 (3d

Cir.), cert. denied, 112 S. Ct. 340 (1991).    In this regard, I

note that the district court did say that it did not want to

"relitigate the Eddystone matter" (App. 358), and I interpret

this reference as essentially accepting PECO's argument in favor

of exclusion under Rule 403.    If this interpretation of the

district court's reasoning is too generous, it is no more

generous than my reading of the plaintiff's explanation of the

relevance of the Eddystone evidence.    Thus, based on these

interpretations of the record, it seems to me that the issue

before us is the following:    did the district court commit

reversible error in concluding that the Eddystone evidence's

probative value for the purpose of proving pretext was

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by

considerations of undue delay and waste of time?

See Fed. R. Evid. 403.   I therefore turn to this question.

11
 .   See Appellant's Br. at 15; oral argument Tr. at 17.
                                 II.

          According to our precedents, "[a] trial judge is given

`very substantial discretion' when striking a Rule 403 balance."

Eufrasio, 935 F.2d at 572.     A trial judge's ruling under Rule 403

may be reversed only if the judge committed an abuse of

discretion.    Id.   Indeed, we have held that "a trial judge's

decision to admit or exclude evidence under Fed. R. Evid. 403 may

not be reversed unless it is `arbitrary and irrational.'"     Bhaya

v. Westinghouse Elec. Corp., 922 F.2d 184, 187 (3d Cir. 1990),

cert. denied, 501 U.S. 1217 (1991), (quoting United States v.

DePeri, 778 F.2d 963, 973-74 (3d Cir. 1985), cert. denied, 475

U.S. 1110 and 476 U.S. 1159 (1986)); see also United States v.

Friedland, 660 F.2d 919, 929 (3d Cir. 1981), cert. denied, 456

U.S. 989 (1982); United States v. Long, 574 F.2d 761, 767 (3d

Cir.), cert. denied, 439 U.S. 985 (1978). We have also observed:
          If judicial self-restraint is ever desirable,
          it is when a Rule 403 analysis of a trial
          court is reviewed by an appellate tribunal.


United States v. Long, 574 F.2d at 767; see also Eufrasio, 935
F.2d at 572.   As the Seventh Circuit aptly wrote in a case quite

similar to this one:
          The balancing of probative value and prejudicial
          effect, like other comparisons of intangibles, requires
          an exercise of judgment rather than a computation.
          Only in an extreme case are appellate judges competent
          to second-guess the judgment of the person on the spot,
          the trial judge.

Sims v. Mulcahy, 902 F.2d 524, 531 (7th Cir.), cert. denied,
498 U.S. 897 (1990) (citation omitted).


          Applying an abuse-of-discretion standard, I think that

the trial judge's ruling in this case must be sustained.    I

recognize that evidence that the plaintiff was subjected to

racial harassment or a racially hostile atmosphere at Eddystone

has some probative value for the purpose of showing that PECO's

reliance on plaintiff's poor evaluation while at Eddystone was

pretextual.   If the plaintiff was harassed at Eddystone, that

harassment might have caused or contributed to his poor

performance rating.   Thus, evidence of harassment at Eddystone is

relevant to show that the plaintiff's performance rating for that

period was inaccurate.   The plaintiff's poor rating at Eddystone

was cited as a reason for PECO's denial of the plaintiff's

requests for promotion to positions as a Labor Relations

Specialist and to an engineering position.   If the officials who

made the decisions concerning these promotions knew or believed

that the Eddystone evaluation had been affected by the harassment

and was therefore inaccurate, that would tend to show that their

reliance on this rating was pretextual.   Consequently, proof of

the plaintiff's harassment at Eddystone could form part of a

chain of reasoning leading to the inference that the PECO

decisionmakers discriminated or retaliated against the plaintiff.

          But while the evidence of harassment at Eddystone that

the plaintiff was precluded from introducing thus has some

probative value, its probative value is limited.   First, with
respect to the positions as a Labor Relations Representative,

PECO did not rely heavily on the plaintiff's performance at

Eddystone as an explanation for its decisions.    The official

responsible for filling these positions, James Lange, listed

numerous other reasons why he did not choose the plaintiff.

Among other things, Lange mentioned:    his belief that the

plaintiff was unable "to function as a change agent" and was

"wedded to the past way of doing things" (9/25/92 Tr. at 154-56);

his concern about the plaintiff's "ability to be objective in the

area of labor relations" (id. at 163); his view that the

plaintiff was not a "team player" (id. at 163-64); PECO's policy

of giving preference to candidates from within the same

department (9/29/92 Tr. at 109); the plaintiff's failure to meet

educational requirements (id. at 113); and concerns about the

plaintiff related to "issues like credibility, confidentiality,

[and] trustworthiness."   Id. at 168.   Moreover, while Lange

stated that he had initially been concerned about the plaintiff's

performance at Eddystone, he added that, when he heard the

plaintiff's explanation of the reason for his poor rating during

that period, this explanation "helped alleviate some of the

concerns."   9/25/92 Tr. at 158.   Second, the plaintiff was able

to bring out some evidence of harassment at Eddystone.    His

attorney elicited testimony that the plaintiff had told Lange

that he had been a "victim of harassment" and had "experience[d]

problems."   Id. at 158-59.   Third, it seems to me that the
probative value of evidence of harassment at Eddystone was

substantially undermined by the plaintiff's unwillingness to

argue that the PECO decisionmakers who were responsible for

denying him the promotions at issue believed that the Eddystone

evaluation was inaccurate.   As I previously explained, it appears

to me that evidence of harassment at Eddystone is relevant

primarily, if not exclusively, as part of a chain of reasoning

that includes, as one link in the chain, the conclusion that PECO

officials cited the Eddystone evaluation as a reason for their

decisions even though they did not actually believe that this

evaluation was an accurate reflection of the plaintiff's

abilities.   Plaintiff's counsel has argued strenuously, however,

that she did not want to prove that the PECO decisionmakers lied

when they gave their reasons for not promoting the plaintiff.12

Instead, the plaintiff's theory was that these officials were

guilty of "unconscious forms of pretext."13   Putting aside the

question of whether, as a matter of law, a plaintiff in a

disparate treatment case may prevail based on evidence of

"unconscious" discrimination,14 it seems to me that the

12
 . "[M]endacity," she stated, "was not in my proof." I think
that the defense witnesses in this case were telling the truth
when they [gave the reasons for their decisions]. Oral Argument
Tr. at 12.
13
 .   Id. at 53.
14
 . Compare International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 335 n.15 (1977), with David Benjamin
Oppenheimer, Negligent Discrimination, 141 U. Pa. L. Rev. 899
(1993).
plaintiff's reliance on this unconventional theory substantially

diminished the probative value of the evidence of harassment at

Eddystone.

          On the other side of the Rule 403 balance, I think that

there is substance to PECO's contention that permitting proof of

the alleged discrimination at Eddystone might have led to a mini-

trial and caused substantial unfair prejudice.   As PECO put it in

its brief:
          Had Glass been permitted to prove the events
          which he contends influenced his performance
          evaluations at Eddystone, PECO would have
          been entitled to offer proof (1) that the
          events did not occur as Glass contended; and
          (2) that his performance evaluation would
          have been negative whether or not such events
          occurred. The results would have been trials
          on two collateral issues -- a trial on the
          occurrence vel non of incidents of
          harassment, and a trial concerning the
          effect, if any, of such events on Glass's
          performance during 1984 and 1985. Together,
          these two trials-within-a-trial would have
          been equal in scope and complexity to the
          trial that was actually held.


Appellee's Br. at 14 (footnotes omitted).   Even if PECO's
estimate of the length and complexity of this "minitrial" is

exaggerated, I still think that these considerations were

legitimate and weighed appreciably in favor of exclusion.

Furthermore, introduction of evidence of harassment at Eddystone

might well have led the jury to believe that these events were

part of a pattern of discrimination by PECO and, since even the

plaintiff did not advance such a claim (see supra, at 4), the
introduction of this evidence had a potential for causing PECO

unfair prejudice.

          In short, there are clearly factors on both sides of

the Rule 403 balance, and reasonable minds can differ as to

whether that balance tilts in favor of admission or exclusion of

the Eddystone evidence.   My colleagues obviously believe that the

balance tilts in favor of admission.    Our function, however, is

not to balance the Rule 403 factors ourselves.    Rather, we are

supposed to afford substantial deference to the balance struck by

the trial judge and, if that is done, his rulings in this case

must be sustained.   His rulings did not constitute abuses of his

discretion.   They most certainly were not arbitrary or

irrational.   Bhaya, 922 F.2d at 187.   And this case is surely not

one of those "extreme case[s]" in which appellate judges may

properly "second-guess the judgment" of the trial judge.     Sims,

902 F.2d at 531.15

          Moreover, even if the trial judge's rulings constituted

abuses of his discretion, those rulings were harmless with

respect to the positions as Labor Relations Representative.     As
15
 . In addition to concluding that the district court abused its
discretion under Fed. R. Evid. 403, the majority states that the
district court's rulings were erroneous for an additional reason,
viz., because they improperly limited the scope of cross-
examination under Fed. R. Evid. 611(b). Maj. typescript at 14.
This analysis is flawed, in my view, because the district court
did not rely on Rule 611(b) in excluding the evidence at issue
and because Rule 611(b) does not prevent a trial judge from
excluding evidence under Rule 403 during cross-examination. See
United States v. Beechum, 582 F.2d 898, 907 (5th Cir. 1978).
noted (see pages 11-12 supra), Lange, in discussing those

positions, provided a long list of other reasons for not

selecting Glass, and Lange stated in effect that he did not rely

heavily on Glass's performance at Eddystone.   Thus, even if Glass

had succeeded in showing that Lange's relatively minor reliance

on the Eddystone evaluation was pretextual, it is "highly

probable" that the jury's verdict concerning the positions as

Labor Relations Representative would not have been affected.    See

Lippay v. Christos, 996 F.2d 1490, 1500 (3d Cir. 1993); McQueeny

v. Wilmington Trust Co., 774 F.2d 916, 924 (3d Cir. 1985).

Accordingly, any erroneous evidentiary rulings made by the

district court were harmless with respect to those positions.

          For these reasons, I dissent.
