                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-28-2003

Ansell v. Green Acres Contr
Precedential or Non-Precedential: Precedential

Docket No. 02-3251




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                          PRECEDENTIAL

                                  Filed October 28, 2003

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                    No: 02-3251


                 HARRY B. ANSELL,
                              Appellant
                         v.
   GREEN ACRES CONTRACTING CO., INC.; PAUL
 HUMBERSTON; THOMAS PISULA; DOUGLAS SCHIFF

  On Appeal From The United States District Court
       For The Western District of Pennsylvania
                  (Civ. A. No. 99-624)
  District Judge: The Honorable William L. Standish

               Argued May 14, 2003
Before: RENDELL, SMITH and ALDISERT, Circuit Judges

          (Opinion Filed: October 28, 2003)
                  Gregory T. Kunkel [Argued]
                  Kunkel & Fink, LLP
                  1208 Allegheny Building
                  P.O. Box 1839
                  Pittsburgh, PA 15230
                  Counsel for Appellant
                             2


                      Charles R. Volk
                      Jane Lewis Volk [Argued]
                      The Volk Law Firm
                      Blaymore I, Suite 301
                      1606 Carmody Court
                      Sewickley, PA 15143
                      Counsel for Appellees


                OPINION OF THE COURT

SMITH, Circuit Judge:
   This employment discrimination case, arising under the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§ 621 et seq., presents a question of admissibility under
Federal Rule of Evidence 404(b) of a subsequent good act
offered by an employer to demonstrate non-discriminatory
intent—namely, the employer’s favorable treatment of
another older worker. Plaintiff Harry Ansell, who was 45
years old, was terminated by his supervisor, Douglas Schiff,
at Green Acres Contracting Company, Inc. (“Green Acres”).
Several seasons later, Schiff hired an employee who was the
same age as Ansell. Ansell argues that the evidence of this
subsequent hiring is irrelevant to his employer’s intent as
a matter of law. He also argues that evidence of the
subsequent act was admitted for an improper purpose and
that its unfair prejudice substantially outweighed its
probative value. Because we conclude that the evidence was
relevant and admitted for a proper purpose, and because
its probative value was not substantially outweighed by
unfair prejudice, we will affirm the judgment of the District
Court.

                             I.
  Green Acres performs highway maintenance work on a
seasonal basis. Harry Ansell worked as a laborer and truck
driver for Green Acres during each season from 1993 until
1997. At the beginning of the 1997 season, Ansell was
assigned to a five person crew led by a new foreman,
                                   3


Douglas Schiff. Ansell          was    permanently       laid   off   in
December of 1997.
   Ansell filed suit in April of 1999 against Green Acres,
Schiff, Green Acres’ Vice President Paul Humberston, and
Green Acres’ President Thomas Pisula (collectively
“defendants”), seeking damages for discharge in violation of
the ADEA and the Pennsylvania Human Relations Act
(“PHRA”), 43 Pa. Con. Stat. Ann. § 951 et seq.1 According to
Ansell’s theory of the case, Schiff sought to increase his
crew’s productivity by replacing the older members of his
crew with younger workers. At trial, Ansell introduced
testimony establishing that Schiff permanently laid off two
truck driver/laborers on his crew. In July of 1997 Schiff
replaced Roger Myers, age 47, with Scott Miller, age 26, and
in December of 1997, Schiff replaced Ansell with Harry
Fabian, Jr., age 28. Schiff also hired an additional worker
in his twenties, Keith Summers, in July 1997 around the
same time he hired Scott Miller.
   Defendants responded that Schiff had legitimate,
nondiscriminatory reasons for terminating Ansell and
offered evidence of four incidents of insubordination
involving Ansell. First, in late July of 1997, Ansell insisted
that he should be assigned to drive the crew truck based on
his seniority, and swore at Schiff when Schiff disagreed.
Then in December, Ansell argued with a state inspector
about a stop and go paddle used for traffic control, refused
to attend a safety meeting, and took time off from work,
without permission, to go hunting.
   Defendants also presented evidence regarding Schiff ’s
treatment of employees over the age of forty. Specifically,
defendants    presented     the   testimony      of   Anthony
Beddingfield, who, at age 45, was hired by Green Acres in
August of 1999 for a temporary laborer position and
assigned to Schiff ’s crew. Beddingfield testified that he was

1. Ansell also claimed damages under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq., and Rehabilitation Act of 1973
(“Rehab Act”), 29 U.S.C. § 701 et seq, but the District Court granted a
motion by defendants for summary judgment on these claims. Ansell did
not appeal this ruling.
                                   4


asked by Schiff to stay on the crew permanently, and that
he was still working for Schiff at the time of trial in 2002.
  Ansell filed a motion in limine objecting to any testimony
by Beddingfield concerning his hiring and treatment by
Schiff.2 Ansell argued that this testimony was inadmissible
“other acts” evidence, offered to show propensity under
Federal Rule of Evidence 404(b). Ansell further argued that
Beddingfield’s testimony was not relevant and was unfairly
prejudicial. Defendants proffered that Beddingfield’s
testimony was admissible to show that Schiff lacked an
intent to discriminate against older workers. The District
Court denied Ansell’s motion, declaring that Beddingfield’s
employment was probative of Schiff ’s intent and that it was
admissible under Rule 404(b). The District Court noted that
Ansell had introduced evidence of numerous people under
age 40 hired by Green Acres after Ansell was fired, and
stated that “if that’s 404(b) evidence [of intent], so is this
other witness.”
  The ADEA and PHRA claims were tried before a jury,
which returned a verdict in favor of the defendants on July
18, 2002.3 Ansell appealed, challenging only the District
Court’s decision to admit the Beddingfield testimony under
Rule 404(b). We have jurisdiction over Ansell’s appeal
pursuant to 28 U.S.C. § 1291.4 We exercise plenary review
over the District Court’s interpretation of the rules of

2. Ansell did not object to testimony presented by defendants regarding
John Bradley, another member of Schiff ’s crew over the age of forty.
Bradley was a flagger who was kept on until the end of the 1997 season.
When the 1998 season began, Bradley did not resume work at Green
Acres because he had taken a job closer to home. However, defendants’
evidence showed that, in June 1998, Bradley called Schiff to ask for a
job and was rehired to work on Schiff ’s crew for the entire season.
Bradley himself testified that, as a worker over 40, he was well treated
by Schiff. With the Bradley evidence having been admitted without
objection, defendants argue that any error with respect to Beddingfield’s
testimony is harmless. Because we affirm the District Court’s decision to
admit the Beddingfield testimony, we do not reach this issue.
3. A prior trial in April 2001 resulted in a mistrial due to a hung jury.
4. The District Court had jurisdiction over the ADEA claim pursuant to
28 U.S.C. § 1331, and exercised supplemental jurisdiction over the PHRA
claim pursuant to 28 U.S.C. § 1367.
                              5


evidence; however, assuming that the evidence could be
admissible in some circumstances, we review the District
Court’s decision to admit that evidence for abuse of
discretion. United States v. Givan, 320 F.3d 452, 460 (3d
Cir. 2003). Admission of evidence is an abuse of discretion
if “the district court’s action was arbitrary, fanciful or
clearly unreasonable. . . . We will not disturb a trial court’s
exercise of discretion unless no reasonable person would
adopt the district court’s view.” Stecyk v. Bell Helicopter
Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002) (internal
quotations omitted).

                              II.
  Federal Rule of Evidence 404(b) states, in pertinent part:
    Other Crimes, Wrongs, or Acts.—Evidence of other
    crimes, wrongs, or acts is not admissible to prove the
    character of a person in order to show action in
    conformity therewith. It may, however, be admissible
    for other purposes, such as proof of motive,
    opportunity, intent, preparation, plan, knowledge,
    identity, or absence of mistake or accident . . .
Rule 404(b) thus prohibits the admission of other acts
evidence for the purpose of showing that an individual has
a propensity or disposition to act in a particular manner.
Gov’t of the Virgin Islands v. Pinney, 967 F.2d 912, 914 (3d
Cir. 1992). Such evidence may, however, be admitted if
offered for a proper purpose apart from showing that the
individual is a person of a certain character. Id.
   The typical Rule 404(b) case presents a prosecutor in a
criminal case seeking to introduce evidence of prior bad
acts of a defendant. If the purpose of the evidence is to
show that the conduct charged was not performed
inadvertently, accidentally, or without guilty knowledge and
intent (that is, for one of the specific permissible uses
outlined in Rule 404(b)), it is admissible. See, e.g., Givan,
320 F.3d at 460-62 (discussing admissibility of prior
conviction for drug distribution to show knowledge, intent,
and absence of mistake with respect to nature of drugs);
United States v. Vega, 285 F.3d 256, 261-62 (3d Cir. 2002)
(discussing admissibility of prior bad acts to show
                             6


knowledge with respect to drug conspiracy). If the evidence
is presented for the improper purpose of showing a
propensity to act in a certain way, it is inadmissible. The
evidence admitted in this case differs from garden variety
Rule 404(b) matter because it is evidence, not of a prior bad
act in a criminal case, but of a subsequent good act in a
civil case. Nonetheless, this evidence is encompassed by the
plain text of Rule 404(b) which addresses “other . . . acts,”
not just prior bad acts. See United States v. Echeverri, 854
F.2d 638, 645 (3d Cir. 1988) (“[T]here may be cases in
which evidence of subsequent . . . acts may properly be
admitted under Rule 404(b) [to show knowledge or
intent.]”); see also United States v. Germosen, 139 F.3d
120, 128 (2d Cir. 1998) (“The fact that the evidence
involved a subsequent rather than prior act is of no
moment.”). Likewise, Rule 404(b) applies equally to civil, as
well as criminal, cases. Fed. R. Evid. 404 advisory
committee’s note.
  For other acts evidence to be admissible under the
exceptions listed in Rule 404(b), (1) the evidence must have
a proper purpose; (2) it must be relevant under Rule 401
and 402; (3) its probative value must outweigh its
prejudicial effect under Rule 403; and (4) the court must
charge the jury to consider the evidence only for the limited
purpose for which it was admitted. United States v.
Sampson, 980 F.2d 883, 886 (3d Cir. 1992) (citing
Huddleston v. United States, 485 U.S. 681, 691-92 (1988)).
Ansell argues that the Beddingfield testimony fails the first
three elements of this test, i.e., that the evidence was
admitted for an improper purpose, that it is irrelevant, and
that any probative value is outweighed by unfair prejudice.
We address each of these arguments in turn.

                             A.
  To be admissible under Rule 404(b), other acts evidence
must be offered for a proper purpose, i.e., a purpose other
than showing that an individual has a propensity or
disposition for certain activity. Pinney, 967 F.2d at 914. We
have held that “a court must be able to articulate a way in
which the tendered evidence logically tends to establish or
refute a material fact in issue, and that chain of logic must
                              7


include no link involving an inference that a bad person is
disposed to do bad acts.” Id. at 915; accord Becker v. ARCO
Chem. Co., 207 F.3d 176, 191 (3d Cir. 2000).
   The District Court ruled that Beddingfield’s testimony
was offered to establish that Schiff did not have a
discriminatory intent when he discharged Ansell, intent
being an enumerated proper purpose under Rule 404(b).
Ansell contends that Beddingfield’s testimony was not
evidence of intent, but rather was evidence of Schiff ’s good
character or propensity not to discriminate against older
workers, introduced to show that he acted “in conformity
therewith” when he fired Ansell. As such, Ansell argues that
Beddingfield’s testimony is classic propensity evidence that
is inadmissible under Rule 404(b).
   The nature of the underlying case illustrates the true
purpose of Beddingfield’s testimony. At trial, the parties did
not dispute that Ansell made out a prima facie case of age
discrimination under the ADEA. Likewise, there was no
dispute that Green Acres advanced a legitimate,
nondiscriminatory reason for its decision to fire Ansell.
Accordingly, the sole question for the jury was whether the
legitimate reason advanced by Green Acres was the true
reason for the termination, or whether that reason was
simply a pretext for unlawful discrimination. See generally
Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d
Cir. 1997) (en banc) (discussing McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973)).
   Evidence of an employer’s conduct towards other
employees has long been held relevant and admissible to
show that an employer’s proffered justification is pretext.
See, e.g., McDonnell Douglas Corp., 411 U.S. at 804 (stating
that evidence that employees of another race were treated
differently   from    the    plaintiff under      comparable
circumstances is “[e]specially relevant” to whether
employer’s proffered explanation is pretextual); Becker v.
ARCO Chemical Co., 207 F.3d 176, 194 n.8 (3d Cir. 2000)
(citing cases holding that, “as a general rule, evidence of a
defendant’s prior discriminatory treatment of a plaintiff or
other employees is relevant and admissible under the
Federal Rules of Evidence to establish whether a
defendant’s employment action against an employee was
                              8


motivated by invidious discrimination”). A plaintiff alleging
employment discrimination may challenge the employer’s
proffered explanation by showing “that the employer treated
other, similarly situated persons out of his protected class
more favorably, or that the employer has discriminated
against other members of his protected class or other
protected categories of persons.” Fuentes v. Perskie, 32 F.3d
759, 765 (3d Cir. 1994); accord Abrams v. Lightolier Inc., 50
F.3d 1204, 1214-15 (3d Cir. 1995) (holding that “evidence
as to [a supervisor’s] attitude toward other older employees
and the manner in which he treated them” was relevant to
whether supervisor “harbored a discriminatory attitude
against older workers, and if credited, that evidence made
the existence of an improper motive for the discharge
decision more probable.”). Thus, other acts are admissible
under Rule 404(b) in the employment discrimination
context for the proper purpose of establishing or negating
discriminatory intent. E.g., Coletti v. Cudd Pressure Control,
165 F.3d 767, 776-77 (10th Cir. 1999); Heyne v. Caruso, 69
F.3d 1475, 1479-80 (9th Cir. 1995).
  The District Court admitted evidence offered by Ansell
showing that Green Acres hired numerous individuals
under the age of 40 after Ansell was fired. In his closing
argument, Counsel for Ansell read the court’s instruction
on pretext back to the jury and then argued:
      Production evidently does not improve for Doug
    Schiff, and what is Doug Schiff ’s first move? What
    does he do? He fires Roger Myers. He fired Roger
    Myers, who, at that time, was 47. . . .
      . . .
      Who does Doug Schiff replace Roger Myers with?
    Scott Miller. Age twenty-six. Scott replaces Roger, and
    then he also hires Keith Summers, who was age
    twenty-five.
Counsel for Ansell concluded:
      And I submit to you that Doug had accomplished
    what he set out to do. He accomplished getting rid of
    the older workers to increase productivity. And you
    could see the difference in the ages. You could see from
                              9


    Kevin and Keith, the difference in the young worker.
    That’s what Doug wanted. Doug wanted to get younger
    guys. He wanted them, and he thought that was going
    to correct his production problems.
      When we talked in openings — when I talked to you
    in opening statements, I said in discrimination cases,
    actions speak louder than words. Well, what are Doug
    Schiff ’s actions? He got rid of the older workers and he
    replaced them with the younger ones.
   Beddingfield’s testimony was offered to rebut Ansell’s
argument that his termination was motivated by an
overarching plan to eliminate older workers, and to
corroborate     defendants’    evidence   of    a   legitimate,
nondiscriminatory reason for Ansell’s termination. In her
proffer, counsel for defendants explained: “[Counsel for
Plaintiff] has tried to show discriminatory intent by showing
how [Schiff] treated one other individual over forty; that is,
Roger Myers. So, we should be permitted to respond to that
by showing intent with another employee over forty.” And in
its closing argument, counsel for defendants stated: “If
[Schiff] didn’t want guys on his crew who were over forty,
why did he talk to Tony Beddingfield to stay on? . . . [D]oes
it show an intent to create a youth movement? Does it
show an intent to design this crew that’s all young men or
women? No.”
  The evidence offered by both defendants and Ansell was
not predicated upon an inference that Schiff had a
propensity to act in a certain way. Indeed, Schiff ’s actions
were never in dispute. Rather, the sole question was
Schiff ’s intent when he acted, or, more precisely, whether
the reason offered by Schiff was pretextual. See, e.g.,
Heyne, 69 F.3d at 1480 (holding that evidence of employer’s
sexual harassment of other employees was inadmissible to
prove that plaintiff herself was harassed, but was
admissible to show employer’s motive or intent in
discharging plaintiff).
  The principal case on which Ansell relies illustrates this
distinction. In Becker, an ADEA plaintiff introduced
evidence that his employer had previously asked him to
fabricate a reason to terminate another worker. 207 F.3d at
                                    10


194. We held that such evidence was inadmissible to show
that the employer subsequently fabricated a reason to
terminate the plaintiff. The evidence offered in Becker,
therefore, was not offered to show intent, but to show action
in conformity with the prior acts—the fabrication of
evidence to support a termination. Nevertheless, we were
careful to note that plaintiff ’s evidence might be admissible
under Rule 404(b) to show discriminatory intent. Id. at 194
n.8 (citing cases for the proposition that “evidence of a
defendant’s prior discriminatory treatment of a plaintiff or
other employee is relevant and admissible” to establish
defendant’s motive). The evidence in Becker did not,
however, establish the other employee’s age, and therefore
was not probative of the employer’s intent to discriminate
against workers in the protected class. Id. at 194 n.8.
There, the evidence was probative only if the jury were to
conclude that, in conformity with a past act, the employer
fabricated a reason to terminate the plaintiff. Under Rule
404(b), such evidence is inadmissible.5

5. The other cases relied on by Ansell, Neuren v. Adduci, Mastriani,
Meeks & Schill, 43 F.3d 1507 (D.C. Cir. 1995), and McCluney v. Jos.
Schlitz Brewing Co., 728 F.2d 924 (7th Cir. 1984), are similarly
distinguishable. In McCluney, the plaintiff claimed to have been
wrongfully terminated for his opposition to an allegedly discriminatory
transfer policy. The trial court, however, accepted the employer’s
explanation of its motivation for the plaintiff ’s dismissal, holding that
the plaintiff ’s evidence was insufficient to support a finding that the
plaintiff had actually challenged the transfer policy as discriminatory. Id.
at 926-27. The Seventh Circuit agreed with the District Court that
evidence offered by plaintiff regarding his prior complaints about sexual
discrimination was inadmissible to show that plaintiff acted similarly
with respect to the transfer policy. Id. at 929.
  In Neuren, the employer claimed that it terminated plaintiff for failure
to meet deadlines and introduced evidence that the plaintiff had
experienced similar performance problems with another employer. 43
F.3d at 1510. The D.C. Circuit held that the evidence should not have
been admitted because it was offered to show that, in conformity with
her prior conduct, the plaintiff had, in fact, continued to miss deadlines.
Id. at 1511. In both McCluney and Neuren, therefore, the proposition at
issue was whether plaintiffs had acted in a certain manner, not
plaintiffs’ intent in so acting. Accordingly, evidence that those plaintiffs
had engaged in prior acts similar to those alleged was inadmissible
under Rule 404(b).
                                   11


  Here, defendants introduced into evidence the fact that
Beddingfield was 45 years old when Schiff asked him to
stay on with the crew. This evidence thus purported to
rebut Ansell’s theory that he was fired as part of a broader
plan to “get[ ] rid of the older workers to increase
productivity,” and to support the legitimate reason
advanced by defendants for the termination. We conclude
that Beddingfield’s testimony was admitted for the proper
purpose of establishing Schiff ’s intent when he terminated
Ansell.

                                   B.
   Evidence is relevant if it makes “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. As discussed above,
evidence regarding an employer’s treatment of other
members of a protected class is especially relevant to the
issue of the employer’s discriminatory intent. Becker, 207
F.3d at 194 n.8.
  Ansell nevertheless argues that Schiff ’s treatment of
Beddingfield in 1999 is not relevant to Schiff ’s intent when
terminating Ansell because the treatment was favorable and
occurred several years after Ansell’s termination, at a time
when productivity was no longer an issue. Based on these
distinctions, Ansell suggests that Schiff ’s treatment of
Beddingfield did not make it any more or less probable that
Schiff was acting with discriminatory intent when firing
Ansell.6
   Ansell cites no authority for the proposition that an
employer’s favorable—as opposed to discriminatory—
treatment of other employees is irrelevant to intent. Nor

6. Ansell’s trial counsel noted in his cross-examination of Beddingfield
and his closing argument that Schiff ’s subsequent hiring of Beddingfield
occurred three months after Schiff was served with notice of Ansell’s
lawsuit. Ansell does not suggest on appeal that this affected the
relevance of that subsequent hiring. We thus have no reason to consider
in this appeal whether actions taken by an employer after he becomes
aware of a discrimination suit can have any bearing on that employer’s
intent at the time of the adverse employment action.
                             12


does Ansell offer any reason why favorable treatment would
not make the presence or absence of discriminatory intent
“more probable or less probable.” Instead, Ansell cites cases
holding that a defendant employer is not entitled to
dismissal or summary judgment simply because it has
treated other members of the protected class favorably.
E.g., Connecticut v. Teal, 457 U.S. 440, 455 (1982). Far
from suggesting that evidence of favorable treatment is
irrelevant, Teal states: “Proof that [a] work force was
racially balanced or that it contained a disproportionately
high percentage of minority employees is not wholly
irrelevant on the issue of intent when that issue is yet to be
decided.” Id. at 454 (internal quotation omitted). While not
conclusive, an employer’s favorable treatment of other
members of a protected class can create an inference that
the employer lacks discriminatory intent. See, e.g., Pivirotto
v. Innovative Sys., Inc., 191 F.3d 344, 354 (3d Cir. 1999)
(“The fact that a female plaintiff claiming gender
discrimination was replaced by another woman might have
some evidentiary force and it would be prudent for a
plaintiff in this situation to counter (or explain) such
evidence.”). Accordingly, that Beddingfield testified he was
treated favorably rather than unfavorably provides no basis
to challenge the relevancy of his testimony.
  Ansell further argues that Schiff ’s treatment of
Beddingfield in 1999 is too remote to be relevant to the
question of Schiff ’s discriminatory intent when he fired
Ansell in 1997. According to Ansell, Schiff sought out a
younger workforce in 1997 in response to productivity
concerns raised that year. According to Ansell, Schiff ’s
actions vis-a-vis Beddingfield twenty months later were not
relevant as a matter of law because they were too far
removed in time, and occurred when productivity was no
longer a concern.
   Subsequent actions by an employer against co-workers
may be less probative of an employer’s intent than prior
actions “because the logical relationship between the
circumstances . . . and the employer’s decision to terminate
is attenuated.” Coletti, 165 F.3d at 777. That is not to say,
however, that subsequent acts can have no probative value;
they may still be relevant to intent. Echeverri, 854 F.2d at
                             13


645; cf. Ryder v. Westinghouse Elec. Corp., 128 F.3d 128,
132-33 (3d Cir. 1997) (age-discriminatory comments made
by CEO and other supervisors one year after plaintiff ’s
termination were relevant to show managerial attitudes). A
court should consider the passage of time between the
other act and the act alleged to be discriminatory. There is
a point at which a prior or subsequent act becomes so
remote in time from the alleged discriminatory act at issue,
that the former cannot, as a matter of law, be relevant to
intent. See, e.g., Hurley v. Atlantic City Police Dep’t, 174
F.3d 95, 112 (3d Cir. 1999) (certain prior acts of sexual
harassment against plaintiff inadmissible because they
were too remote in time); cf. Echeverri, 854 F.2d at 645
(presence of cocaine in defendant’s apartment four years
after last overt act of RICO and drug conspiracy at issue,
and 18 months after termination of the conspiracy, was not
relevant to conspirators’ knowledge or intent). Similarly,
changed circumstances may also affect whether or not a
subsequent good act is relevant. See, e.g., United States v.
Hill, 40 F.3d 164, 168-69 (7th Cir. 1994) (excluding
evidence offered by defendant, who was accused of stealing
a check from the mail, that she failed to steal valuables
placed before her by postal inspectors in a sting operation
occurring five months after the offense; passage of time,
combined with defendant’s awareness that she was a
suspect, rendered her failure to commit a similar crime
“only tangentially relevant”).
   There is, however, no bright line rule for determining
when evidence is too remote to be relevant. See, e.g., United
States v. Pollock, 926 F.2d 1044, 1048 (11th Cir. 1991)
(“Indeed, decisions as to impermissible remoteness are so
fact-specific that a generally applicable litmus test would be
of dubious value.”). Any such determination must be based
on the potential the evidence has for giving rise to
reasonable inferences of fact which are “of consequence to
the determination of the action,” Fed. R. Evid. 401, and will
not be disturbed on appeal unless it amounts to an abuse
of discretion, Glass v. Phil. Electric Co., 34 F.3d 188, 191
(3d Cir. 1994). Here, we cannot say that the District Court
abused its discretion. A reasonable person could infer that
Schiff ’s hiring and treatment of Beddingfield made it less
likely that Schiff acted with discriminatory intent when he
                             14


terminated Ansell. The passage of time and purportedly
changed circumstances were proper issues for counsel to
argue to the jury, and for the jury to consider in weighing
the evidence. See, e.g., Fitzgerald v. Henderson, 251 F.3d
345, 365 (2d Cir. 2001) (“Any question as to the weight to
be accorded the [other acts evidence] in connection with
[the later discrimination] claims is, of course, a matter for
the jury.”).

                             C.
   Federal Rule of Evidence 403 states that “[a]lthough
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.”
A district court’s explicit balancing analysis under Rule 403
should only be disturbed if it is “irrational or arbitrary.”
Abrams, 50 F.3d at 1213 (upholding district court’s
determination that testimony by other co-workers alleging
age-based discrimination was more probative than
prejudicial). Where the district court fails to explicitly
articulate the Rule 403 balancing: “we [either] 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.” Glass, 34 F.3d at 192 (internal
quotation omitted); accord United States v. Mastrangelo,
172 F.3d 288, 295 (3d Cir. 1999). In this case, because the
District Court did not articulate a balancing analysis, we
undertake that analysis here.
   Ansell claims that the danger of unfair prejudice
outweighed the probative value of the subsequent acts
evidence provided by Beddingfield. He argues that the
probative value of the evidence was minimal because of its
remoteness in time and the changed circumstance, and
that such probative value was outweighed by the prejudice
arising from the admission of this evidence since it changed
the outcome of the case and resulted in a verdict in favor
of defendants. However, “[p]rejudice does not simply mean
damage to the opponent’s cause.” Goodman v. Pa. Turnpike
Comm’n, 293 F.3d 655, 670 (3d Cir. 2002) (quoting 1
McCormick on Evidence § 185 at 645 (John W. Strong, et
al. eds., 5th ed. 1999)).
                                    15


     [T]he . . . prejudice against which the law guards [is]
     . . . unfair prejudice— . . . prejudice of the sort which
     cloud[s] impartial scrutiny and reasoned evaluation of
     the facts, which inhibit[s] neutral application of
     principles of law to the facts as found. . . . [P]rejudice
     does not simply mean damage to the opponent’s cause.
     If it did, most relevant evidence would be deemed
     prejudicial.
Id. (internal quotations omitted).
   Unfair prejudice under Rule 403 could arise if a jury uses
404(b) evidence to infer propensity rather than intent. See
Robert S. v. Stetson School, Inc., 256 F.3d 159, 171 (3d Cir.
2001). However, Ansell did not raise this possible improper
use as a basis for unfair prejudice, nor did he request a
limiting instruction at trial which could have cured such
prejudice.7 Because Ansell did not request a limiting
instruction at trial, nor raise the failure to give a limiting
instruction as an issue on appeal (either with respect to
unfair prejudice or as the fourth prong of Rule 404(b)
admissibility), this argument is waived. See, e.g., FDIC v.
Deglau, 207 F.3d 153, 169 (3d Cir. 2000) (issues not raised
in appellant’s brief are waived); Barrett v. Orange County
Human Rights Comm’n, 194 F.3d 341, 348 n.1 (2d Cir.
1999) (where counsel did not request limiting instruction,
district court was not required to give one sua sponte for
out of court statements by commissioners admitted to show
that the commission was motivated to terminate plaintiff
because of insubordinate behavior rather than his
protected speech); Palmquist v. Selvik, 111 F.3d 1332, 1343
(7th Cir. 1997) (counsel who did not request limiting
instruction at close of evidence waived right to challenge
failure to give instruction); cf. also United States v. Curtis,
280 F.3d 798, 802 (7th Cir. 2002) (no plain error where

7. “Fed. R. Evid. 105 [ ] provides that the trial court shall, upon request,
instruct the jury that the similar acts evidence is to be considered only
for the proper purpose for which it was admitted.” Huddleston, 485 U.S.
at 691-92; see also Givan, 320 F.3d at 461-62 (recognizing that a
limiting instruction is the primary means by which the prejudicial effect
of other acts evidence is minimized and explaining that “it is a basic
tenant of our jurisprudence that a jury is presumed to have followed the
[limiting] instructions the court gave it”).
                              16


defendant did not request and judge did not give limiting
instruction with respect to 404(b) evidence); United States v.
Simmons, 679 F.2d 1042, 1050 (3d Cir. 1982) (where
defendant did not object to 404(b) prior bad acts evidence
or request a limiting instruction, its admission was not
plain error).
  Ansell also suggests that he was unfairly prejudiced
because the admission of evidence of Schiff ’s treatment of
Beddingfield improperly indicated to the jury that Ansell
had to prove that Schiff was still discriminating several
years later. We can conceive of no way the jury reasonably
could have concluded that continuing discrimination was
an element of the plaintiff ’s case. Certainly, the jury was
not instructed that continuing discrimination was part of
the plaintiff ’s burden of proof, nor did counsel argue any
such theory of the case.
   Ansell has not demonstrated unfair prejudice arising
from Beddingfield’s testimony. Thus, it was impossible for
the probative value of this evidence, even if minimal, to be
substantially outweighed by unfair prejudice.

                              III.
   In the end, we return to the fact that “[t]he drafters
contemplated that Rule 404(b) would be construed as a rule
of ‘inclusion’ rather than ‘exclusion.’ ” United States v.
Scarfo, 850 F.2d 1015, 1019 (3d Cir. 1988). Because we
hold that the District Court did not abuse its discretion in
admitting Schiff ’s treatment of Beddingfield as evidence
bearing on his prior intent with respect to Ansell, we will
affirm the judgment of the District Court.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
