                                                 NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                          __________

                          No. 10-4330
                          __________


                    WILLIAM HOUSTON,
                               Appellant
                           v.

             EASTON AREA SCHOOL DISTRICT


                           _________

         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                   (D.C. No. 2-03-cv-03494)
            Magistrate Judge: Hon. Henry S. Perkin
                          __________

           Submitted Under Third Circuit LAR 34.1(a)
                      September 12, 2011

    Before: SLOVITER, SCIRICA, and SMITH, Circuit Judges

                  (Filed: September 13, 2011)

                          __________

                           OPINION
                          __________
SLOVITER, Circuit Judge.

       This is the second time that William Houston has appealed evidentiary rulings

following trial judgments in favor of the defendant Easton Area School District on

Houston’s employment discrimination claim. On the first appeal, we vacated and

remanded the judgment because the presiding Magistrate Judge was overly restrictive in

barring the introduction of evidence regarding potentially similarly situated individuals.

On this appeal, Houston contends, among other things, that the Magistrate Judge made

the opposite mistake and was overly permissive in allowing the defendant to introduce

evidence of another set of comparators. This time, we will affirm.1

                                             I.

       Houston, a former school district administrator who is African-American,

contends that the Easton Area School District (“the District”) discriminated against him

on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e et seq. At the time of his retirement in 1998, Houston was a so-called “cabinet

member” administrator. Cabinet member was an informal title denoting a direct

reporting line to the Superintendent. Upon retirement, Houston received credit and

payment for only 25% of his unused, accrued sick leave. The following year, 1999, three

other cabinet member administrators—all white—retired and received 100% of their

accrued sick leave. Houston contends that this different treatment was based on race.




       1
         The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and we have
jurisdiction pursuant to 28 U.S.C. § 1291.
                                             2
       Prior to the initial trial, the District’s motion to exclude evidence relating to the

retirement packages of three, white comparators (who were not covered by the same plan

as Houston) and to exclude evidence of historically unequal pay for black employees

within the District was granted.2 The case was reassigned to another Magistrate Judge,

and Houston’s motion for reconsideration of the evidentiary rulings was denied. After a

one-day bench trial, the Magistrate Judge found in favor of the District. Houston

appealed, but only challenged the exclusion of the white comparators’ retirement

information, not the exclusion of the historic unequal pay evidence. We agreed that the

evidence regarding the comparators was erroneously excluded because Act 93 status was

not the only relevant factor, vacated the judgment, and remanded to the District Court.

Houston v. Easton Area Sch. Dist., 355 F. App’x 651 (3d Cir. 2009).

       On remand, the District moved in limine to exclude, once more, the evidence of

historic unequal pay. Over Houston’s objection, the Magistrate Judge granted the motion

and excluded the evidence. Consistent with our earlier opinion, the Magistrate Judge

permitted Houston to introduce evidence relating to the retirements of white cabinet

member comparators. The Magistrate Judge also permitted the District to introduce

evidence of other administrators who only received 25% of their accrued sick days, just


       2
         Specifically, evidence regarding the retirements of Messrs. Ciccarelli, Hettel, and
Piazza was excluded because they were not covered by the District’s Act 93
compensation plan, whereas Houston was covered. In contrast, evidence regarding Mr.
Wrazien’s retirement was permitted because he, like Houston, was an Act 93 employee.
Act 93, 24 Pa. Stat. Ann. § 11-1164, requires school districts to adopt compensation plans
for certain school administrators whose positions are not included in a bargaining unit.
Superintendents, business managers, and personnel directors are specifically excluded
from Act 93 coverage.
                                               3
like Houston. Houston argued that this evidence should not have come in because these

other administrators were not cabinet members, in contrast to Houston and the three

white cabinet members who received 100% of their sick leave. Houston also requested a

jury instruction specifically instructing the jury that the District was not limited under

Pennsylvania state law to awarding Houston 25% of his accrued sick leave. The District

Court denied this request.

       At the conclusion of the second trial, this time a jury trial, the jury returned a

verdict in favor of the District. Houston then filed a motion for a new trial, which was

denied. Houston appeals and requests a new trial.

                                              II.

       We review a district court’s evidentiary ruling for abuse of discretion. Walden v.

Ga.-Pac. Corp., 126 F.3d 506, 517 (3d Cir. 1997). The same standard also applies to a

district court’s refusal to give a particular jury instruction, United States v. Khorozian,

333 F.3d 498, 508 (3d Cir. 2003), and a district court’s decision to deny a motion for a

new trial, Montgomery Cnty. v. Microvote Corp., 320 F.3d 440, 445 (3d Cir. 2003).

                                             III.

       Houston first contends that it was error for the District Court to exclude evidence

of historic inequality in pay between employees of different races. Houston had every

opportunity to challenge this evidentiary ruling on his first appeal, but failed to do so.

Accordingly, the law-of-the-case doctrine dictates that this argument was waived. See

Cowgill v. Raymark Indus., Inc., 832 F.2d 798, 802 n.2 (3d Cir. 1987) (noting that a party

waives a contention that could have been but was not raised on a prior appeal).

                                              4
       Even if this argument had not been waived, the District Court did not abuse its

discretion by concluding that the probative value of the historic unequal pay evidence

was outweighed by the potential for prejudice and confusion. Although the evidence was

arguably relevant to the issue of discriminatory intent, nowhere in his complaint did

Houston assert a claim for ongoing pay discrimination. Instead, he only asserted a claim

for discrimination in retirement benefits. Moreover, Houston’s counsel admitted at the

final pretrial conference that the proffered historic pay evidence covered a period that

was a long time ago. Accordingly, the evidence risked confusing the jury and prejudicing

the defendant with allegations tangentially related to the current dispute. See Ansell v.

Green Acres Contracting Co., Inc., 347 F.3d 515, 524 (3d Cir. 2003) (“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.”).3

       Houston also contends that it was error for the District Court to permit the

introduction of evidence that non-cabinet administrators also received only 25% of their

accrued sick leave. There was no abuse of discretion and the jury was entitled to

consider whether these administrators were similarly situated to Houston, particularly

given the evidence that the “cabinet member” distinction was an informal one. Any

alleged prejudice to Houston was also cured by his counsel’s extensive cross-examination

of the witness called to testify on this issue.

       3
         We also reject Houston’s contention that the District opened the door to the
historic pay inequality evidence or that such evidence was admissible under a continuing
violation theory.
                                                  5
       There is also no merit to Houston’s related argument that the jury should have

been instructed that as a matter of state law the 25% credit was a minimum benefit, not a

maximum benefit. The District Court refrained from providing a specific charge to that

effect because it did not believe that it was a settled matter of law, and because, in any

event, the District Superintendent testified that she believed that she had authority to

provide Houston with more than 25% credit. Because the defense evidence itself

indicated that there was discretion, there was no prejudice by not instructing that such

discretion existed as a matter of law.

       Houston’s right to a fair trial was preserved and his arguments on appeal are

unavailing.

                                             IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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