NOT PRECEDENTIAL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.
6