Harold Glass v. Philadelphia Electric Company

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

*190I.

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 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 Eddy-stone 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 percep*191tions 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 of 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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 non-constitutional 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 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, 99 S.Ct. 577, 58 L.Ed.2d 657 (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, *192and 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 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 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, in-eluding, on the one hand, the references by the defense to Glass’s performance at Eddy-stone 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 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 Eddy-stone 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 *193and 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 Eddy-stone. 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 Eddy-stone, 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 condi*194tioned 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 Eddy-stone 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-diseriminatory 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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (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, 101 S.Ct. at 1093; see St. Mary’s Honor Center, — U.S. at-, 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 bane). Since Glass had introduced sufficient evidence to establish a prima facie case and PECO had asserted several nondiscriminatory reasons *195for 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 blanket evidentiary exclusions in discrimination eases. The Eighth Circuit explained in reversing similar eviden-tiary 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.
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 eases, 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.1988).

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 plaintiffs 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 plaintiffs case because “an atmosphere of condoned sexual harassment in a workplace increases the likelihood of retaliation for complaints in individual eases.” 900 F.2d at 156. See also Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421 (7th Cir.1986) (affirming district court’s decision to admit plaintiffs evidence of harassment against other black workers in case alleging racially discriminatory discharge because “evidence was relevant both in showing that Allis Chal-mers 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 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, - U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), and its progeny. See, e.g., Hook v. Ernst & Young, 28 F.3d 366 (3d Cir.1994).

. 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.

. Fed.R.Evid. 403 states:

Although relevant, evidence may he excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

. "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_ fTlo 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, 99 S.Ct. 577, 58 L.Ed.2d 657 (1978) (emphasis added).

. 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.”)

. 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.