                                                    NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-1530
                                      _____________

                                     KELLY J. VAY,
                                               Appellant

                                             v.

                  ROBERT HUSTON, Administrator, Laboratory Director
                    of the Office of the Medical Examiner of Allegheny;
                 STEPHEN PILARSKI, former Administrator of the Office
                of the Medical Examiner of Allegheny County and currently
             Deputy Manager of Allegheny County in his individual capacity;
                MICHAEL BAKER, former Manager of Morgue Operations,
                                  in his individual capacity;
                    MICHAEL CHICHWAK, Manager of Investigations,
       in his individual capacity; ALLEGHENY COUNTY OF PENNSYLVANIA
                                        ____________

                 On Appeal from the United States District Court for the
                           Western District of Pennsylvania
                            (W.D. Pa. No. 2-14-cv-00769)
                     District Judge: Honorable Mark A. Kearney

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   February 5, 2018

             Before: CHAGARES, SCIRICA, and COWEN, Circuit Judges.

                                 (Filed: February 23, 2018)

                                       ____________

                                         OPINION
                                       ____________

       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
CHAGARES, Circuit Judge.

       Plaintiff Kelly Vay brought this action for harassment and discrimination on the

basis of sex, in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e, et seq.,

and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Stat. §§ 952-63, against

Robert Huston, Stephen Pilarski, Michael Baker, Michael Chichwak, and Allegheny

County (collectively, the “defendants”), stemming from her former employment as a

forensic investigator in the Allegheny County Medical Examiner’s Office. After a seven

day trial, the jury returned a verdict in favor of the defendants. Vay appeals, seeking a

new trial and contending that the District Court abused its discretion in making a number

of evidentiary rulings. We disagree, and so we will affirm.

                                             I.1

       We write solely for the parties and therefore recite only the facts necessary to our

disposition. Vay was employed as a forensic investigator in the Allegheny County Office

of the Medical Examiner from 2009 through 2014. On December 3, 2013, Vay was placed

on administrative leave, which lasted until April 2014, during the pendency of an

investigation by the District Attorney’s Office. Vay was then on medical leave from April

through December 2014. When she refused to return to work, the County terminated

Vay’s employment on December 16, 2014.




       1
          Because the jury returned a verdict in the defendants’ favor, we set forth the facts
in the light most favorable to them. See Watson v. Se. Pa. Transp. Auth., 207 F.3d 207,
211 n.2 (3d Cir. 2000).
                                              2
       Vay brought this action in June 2014, alleging that Vay and other women at the

Medical Examiner’s Office were mistreated because of their gender. Vay then filed an

amended complaint after her employment was terminated. The matter proceeded to trial

in early 2017. During the course of trial, Vay produced evidence of disciplinary actions

taken against her during her time at the Medical Examiner’s Office that she contends

were motivated by her gender. During trial, the defendants produced testimony detailing

Vay’s unprofessional behavior, insubordination, and resulting discipline during the course

of her employment. They also produced the testimony of Assistant County Solicitor Jacob

Lifson, who testified that a decision was made to place Vay on administrative leave during

the pendency of an ongoing criminal investigation by the District Attorney’s Office into

the leak of information in a high profile homicide case.

       After a seven day trial, the jury returned a verdict for defendants. This timely

appeal followed.

                                             II.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

       We exercise plenary review over the District Court’s interpretation of the Federal

Rules of Evidence. United States v. Duka, 671 F.3d 329, 348 (3d Cir. 2011). We review

the District Court’s application of the Rules and its decisions to admit or exclude evidence

for abuse of discretion, id., and “[w]e will only reverse if we find the District Court’s

error was not harmless,” Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 80 (3d Cir.

2009). We will not overturn a jury verdict “unless the record is critically deficient of that

                                              3
quantum of evidence from which a jury could have rationally reached its verdict.” Swineford

v. Snyder Cty., 15 F.3d 1258, 1265 (3d Cir. 1994).

                                            III.

       Vay contends that the District Court abused its discretion by: (1) permitting

testimony from defense witnesses about whether a criminal investigation by the District

Attorney’s Office into Vay motivated a decision to place her on administrative leave;

(2) limiting the cross-examination on the bias of a defense witness; (3) refusing to permit

Vay to take the stand a second time to rebut that same defense witness; and (4) excluding

some comparator witnesses when it ruled that they were not similarly situated to Vay.

We will address each of these issues in turn.

                                             A.

       Vay argues that the District Court abused its discretion by permitting testimony

establishing that Vay was placed on administrative leave due to a criminal investigation

by the District Attorney’s Office. Vay argues that this evidence should have been excluded

pursuant to Rules 403 and 802 of the Federal Rules of Evidence. Vay argues that this evidence

was hearsay and that it was prejudicial because it might have confused the jury and

painted her as a criminal.

       Hearsay is any statement offered at trial by someone other than the declarant for

the purpose of proving the truth of the matter asserted. Fed. R. Evid. 801(c). Here, the

challenged testimony was offered to explain the reason that motivated the defendants’

decision to place Vay on administrative leave, not to prove the truth of whether in fact



                                                4
she was under investigation. As such, it was not hearsay. Rinehimer v. Cemcolift, Inc.,

292 F.3d 375, 383 (3d Cir. 2002).2

       Rule 403 provides that “[t]he court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” Rule 403 “creates a presumption of admissibility.”

United States v. Claxton, 766 F.3d 280, 302 (3d Cir. 2014). Typically, “we exercise great

restraint in reviewing a district court’s ruling on the admissibility of evidence under Rule

403.” Gov’t of Virgin Islands v. Archibald, 987 F.2d 180, 186 (3d Cir. 1993). The District

Court did not err in admitting this evidence. Vay put at issue the reason behind the decision

to place her on administrative leave, as she claimed that it was due to gender discrimination

and retaliation. Thus, the County’s explanation for its decision was highly probative.

Additionally, the District Court issued a limiting instruction specifically addressing out of

court statements not offered for the truth of the matter asserted. This mitigated the

potential prejudicial effect of the evidence. Rinehimer, 292 F.3d at 383. Accordingly,

the District Court did not err in finding that the probative value of this evidence was not

substantially outweighed by the potential for prejudice.

                                              B.



       2
        Vay also argues that this evidence is inadmissible unless the ultimate county
decisonmaker, County Manager Willy McKain, was the one to provide the testimony.
However, the witness that did testify, Assistant County Solicitor Jacob Lifson, was
personally aware of and involved in the decision to place Vay on administrative leave.
As such, he was competent to testify. See Fed. R. Evid. 602.
                                              5
       Vay next argues that the District Court abused its discretion in limiting her counsel’s

cross-examination of Lifson on his bias due to his past romantic interest in Vay. The

District permitted Vay’s counsel to ask Lifson whether he had past romantic interest in

Vay. Vay contends that this was not sufficient for her to establish bias because she

wanted to question whether he had a sexual interest in her, elicit certain statements that

Vay claims he had made to her, and elicit testimony that Vay had rejected his advances.

The District Court did permit cross-examination of Lifson on other topics, including

other areas of his potential bias.

       “[W]hether a trial court has abused its discretion in limiting the cross-examination

of a witness for bias depends on ‘whether the jury had sufficient other information before

it, without the excluded evidence, to make a discriminating appraisal of the possible biases

and motivation of the witnesses.’” United States v. Chandler, 326 F.3d 210, 219 (3d Cir.

2003) (quoting Brown v. Powell, 975 F.2d 1, 4 (1st Cir. 1992)). We have held that “the

district court may properly exercise its discretion in this area by imposing reasonable

limits on the scope of cross-examination, weighing such factors as undue prejudice, relevancy,

and delay due to repetition.” Douglas v. Owens, 50 F.3d 1226, 1230 (3d Cir. 1995).

       The District Court did not abuse its discretion by limiting the cross-examination of

Lifson. Vay was permitted some cross-examination on the issue of Lifson’s potential

bias due to his romantic interest in Vay, and elicited testimony to that effect. See id.

(“[A] party is guaranteed ‘only an opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to whatever extent, the defense might

wish.’” (quoting Kentucky v. Stincer, 482 U.S. 730, 739 (1987) (quotation marks omitted))).

                                               6
Once that bias was elicited, it was not an abuse of discretion for the District Court to

decline to permit further cross-examination on that topic. See id. Further, there was no

doubt that Lifson’s bias had been shown as the District Court stated, in the presence of

the jury, that “bias has been established.” Appendix (“App.”) 1974-75. Accordingly, we

will affirm the District Court’s ruling.

                                              C.

       Vay next argues that the District Court erred by not permitting her to take the

stand a second time to offer rebuttal testimony on the topic of Lifson’s bias. After Lifson

was cross-examined on his romantic interest in Vay, Vay sought to take the stand to offer

rebuttal testimony that Lifson had flirted with her. Vay had previously testified during

her case-in-chief, so the District Court did not permit her to testify in rebuttal of Lifson.

Vay contends that this was an abuse of discretion. We disagree.

       We have held that the “purpose of rebuttal testimony is to explain, repel, counteract

or disprove the evidence of the adverse party.” United States v. Chrzanowski, 502 F.2d

573, 576 (3d Cir. 1974). “The admissibility of evidence in rebuttal is committed to the

discretion of the trial judge.” Id. Typically, “a party’s right to impeach the credibility of

the opposing party’s witness is limited to the questioning of that witness on cross

examination.” United States v. Rockwell, 781 F.2d 985, 989 (3d Cir. 1986). We will not

reverse a District Court’s decision on rebuttal evidence “in the absence of gross abuse of

discretion.” Chrzanowski, 502 F.2d at 576.

       Here, the District Court did not abuse its discretion by denying Vay the opportunity

to take the stand to offer more evidence attacking Lifson’s credibility, when she had already

                                               7
taken the stand in her case-in-chief. We have held that “evidence which properly belongs

in the case-in-chief but is first introduced in rebuttal may be rejected, so as to avoid prejudice

to the defendant and to ensure the orderly presentation of proof.” Emerick v. U.S. Suzuki

Motor Corp., 750 F.2d 19, 22 (3d Cir. 1984). As the District Court observed, Vay and

her counsel were aware of this testimony and its potential relevance and could have

brought it out in the direct examination of Vay. Thus, the District Court did not abuse its

discretion by enforcing this rule against Vay.

                                               D.

       Finally, Vay argues that the District Court abused its discretion by excluding some

of her comparator evidence. The District Court ruled in a motion in limine that Jimmy

Johnson, Anthony Bofo, Curtis Williams, Edmond Nelson, and Tom Jakiela were not

proper comparators because they were not similarly situated to Vay. In that same ruling,

the District Court observed that Vay was not prohibited from offering the same evidence

for an otherwise admissible purpose. Vay contends that the District Court erred by

excluding this evidence. We disagree.

       In a discrimination case, a plaintiff may offer comparator evidence, which is evidence

“that the employer has treated more favorably similarly situated persons not within the

protected class.” Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 645 (3d

Cir. 1998). We have held that “[t]he plaintiff has the burden of demonstrating that similarly

situated persons were treated differently.” Id. In determining whether employees are

similarly situated, we take into account factors such as the employees’ work responsibilities

and supervisors, the nature of the misconduct, and “the particular criteria or qualifications

                                                8
identified by the employer as the reason for the adverse action.” Id. at 647; see also Lee v.

Kan. City S. Ry. Co., 574 F.3d 253, 259-61 (5th Cir. 2009); Burks v. Wis. Dep’t of Transp.,

464 F.3d 744, 751 (7th Cir. 2006).

       Here, the District Court did not abuse its discretion in holding that these individuals

did not commit violations of equal seriousness to those of Vay and were thus not similarly

situated to her. Bofo was a supervisor who had a different position and responsibilities

than did Vay, and there was no evidence that he engaged in comparable misconduct. As

to Williams, the supervisor to whom he was insubordinate was not a management-level

employee with the authority to discipline Williams, and the other evidence of his misconduct

was of a different nature than that of Vay’s. In addition, Nelson engaged in dissimilar

misconduct. Vay was disciplined for destruction of County property when she broke a hole

into a wall. Nelson then wrote a message next to the hole; he was ordered to remove the

writing, but was not otherwise disciplined. Finally, there was no evidence that Johnson or

Jakiela engaged in comparable misconduct, as they did not swear at the same, relevant

management-level employees. Cf. Mandel v. M & Q Packaging Corp., 706 F.3d 157,

170 (3d Cir. 2013). Further, any error would be harmless. Vay was permitted to, and

did, present other comparator evidence.

                                             IV.

       For the foregoing reasons the District Court did not err in denying Vay’s motion

for a new trial. The judgment of the District Court will be affirmed.




                                              9
