West v. Phila ElectricWest v. Phila Electric
Opinions of the United States Court of Appeals for the Third Circuit
1-20-1995
West v Phila Electric
Precedential or Non-Precedential:
Docket 93-1647
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Recommended Citation
“West v Phila Electric” (1995). 1995 Decisions. Paper 15. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/15
(Opinion Filed January 19, 1995)
Richard J. Silverberg, Esquire
Jane H. Lovitch, Esquire (Argued)
Richard J. Silverberg & Associates
1717 Arch Street
3700 Bell Atlantic Tower
Philadelphia, PA 19103
Attorneys for Appellant
David S. Fortney, Esquire
Carolyn P. Short, Esquire (Argued)
Christine L. Ciarrocchi, Esquire
Reed, Smith, Shaw & McClay
1650 Market Street
2500 One Liberty Place
Philadelphia, PA 19103-7301
Attorneys for Appellee
ROTH, Circuit Judge:
Plaintiff James West appeals from a jury verdict in favor of the defendant, Philadelphia Electric Company (“PECO“), in this action in which he alleges racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended,
At trial, West sought to introduce evidence of acts occurring both prior to and during the 300-day period preceding the filing of his administrative complaint. Despite West‘s claim
We conclude, in this hostile work environment context, that the scope of the admissibility of evidence of events, which preceded the 300-day period, must be grounded in the substantive law at issue. The statutory limitations period is not, therefore, necessarily a bar to the admissibility of pre-statute acts which bear on the work environment and on the employer‘s awareness of that environment. For the reasons stated below, we find that the district court here was overly restrictive in its determinations of admissibility and that the challenged evidentiary exclusions were erroneous in that they deprived West of the opportunity to present his full case to the jury. We will, therefore, vacate the judgment and remand the case to the district court for a new trial.
I.
A.
Plaintiff James West has worked for defendant PECO since 1972. In 1986, West transferred to PECO‘s King of Prussia meter repair facility, where he continues to work. West alleges that since 1986, and continuing at least until the time of trial, he and other African-Americans at thе meter repair facility encountered a continuous pattern of racial harassment. On November 23, 1990, West filed administrative charges of racial discrimination against PECO with the Equal Employment Opportunity Commission (“EEOC“). Subsequently, on September 17, 1991, he filed this complaint in the Eastern District of Pennsylvania. The complaint alleged that PECO knowingly permitted a hostile work environment to exist for African-American workers at the meter repair shop in violation of Title VII and the Pennsylvania Human Relations Act.1 In addition, the complaint alleged that PECO unlawfully retaliated against West in the terms and conditions of his employment after he filed the administrative charges.2
Just prior to trial, PECO filed a motion in limine to exclude certain evidence. PECO argued that West should be precluded from presenting evidеnce pre-dating the period 300 days before the filing of his administrative complaint. PECO asserted that this evidence was time-barred by the limitations period established in Title VII. In PECO‘s view, the statutory filing period rendered evidence of earlier acts inadmissible as a matter of law. West, on the other hand, maintained that the alleged hostile work environment was a continuing violation. He asserted that, because he filed within 300 days of a recent occurrence, he had satisfied the statutory requirement under the theory of a continuing violation. As such, West countered, neither his claim for recovery nor the evidence relevant to its proof should be limited by the filing period.
At a pretrial conference on PECO‘s motion, the district court held that West could establish a continuing violation, so that evidence of pre-300-day conduct would be admissible, only if West could establish that the same actors had engaged in prohibited conduct both before and during the 300 day filing period:
In this trial, you should plan to organize your evidence as to the 300-day period, and then you‘d have to show as to something prior to that time, that the same actor was involved. So if there was a different actor, there would not be a continuing violation.
Pretrial Conference, May 21, 1993, transcript at 10; Plaintiff‘s Appendix (“App.“) at 44. Plaintiff‘s counsel objected, arguing
[T]he way I want you to present the case is, what happened to him to cause him to file the charge and where he was 300 days prior to that time. Plus anything else that‘s connected . . . through common personnel.
App. at 46. The court followed its rulings with an order entered on May 26, 1993.3
At trial, the district court relied upon this ruling to exclude a substantial amount of evidence. Although the record before us is not fully adequate, the individual pieces of evidence, and rulings on them, will be discussed in turn as much as the record permits:
1. Ku Klux Klan Christmas Card.
In November 1989, a white co-worker, Robert Cole, presented West with a picture of a Ku Klux Klan member, dressed in white robe аnd hood. The picture, which bore a strong resemblance to its presenter, was “folded in Christmas card
Though the court initially permitted direct examination of West concerning the November 1989 card, it later ruled that the incident was time-barred because it occurred prior to the 300-day filing period. App. at 99-101, 133.
2. References to Frank Rizzo.
At trial, the district court permitted West to testify about a picture of former Philadelphia Police Commissioner Frank
3. Pre-300 Day Racial Comments.
At trial, the court excluded testimony by both West and an African-American co-worker, Ronald Price, concerning racially hostile comments and conversations that occurred prior to the 300-day period. For example, when West‘s counsel attempted to
You haven‘t established yet, Counsel, that he had daily contact with this person, Esbiornson, such that the contact could be said, assuming the subject was racially offensive, to have been pervasive and regular so as to go back beyond 1990 in terms of contact.
App. at 166-67.
The court excluded the testimony of Ronald Price about racially hostile conversations he had experienced prior to 1990. App. at 79-85. The court warned counsel, with regard to his questioning of the witness: “Make it, sir, during 1990. . . [I]f you wish to ask him any questions, follow my directions or withdraw him as a witness.” App. at 82. Plaintiff‘s counsel objected, reiterating that it was plaintiff‘s theory that the alleged hostile work environment was a continuing violation, existing both during and prior to 1990. The court, hоwever, indicated that for a continuing violation to exist, so that pre-1990 evidence could be considered admissible, it was necessary to establish first that there was day-to-day harassment by the particular worker at issue. App. at 85.
4. Pre-300 Day Notice to Management.
West also attempted to demonstrate PECO‘s actual notice of the hostile work environment through the testimony of Ronald Price. Price was prepared to testify that he had complained to management about the hostile work environment on a number of occasions. The court excluded the testimony, explaining: “300 days prior to the filing of the complaint, that‘s the ruling.” App. at 96.
5. Pre-300 Day Harassment Not Witnessed By James West.
Information about two hostile events in the pre-1990 period was also excluded on the basis that it was harassment of other workers and was not witnessed by West directly.
A. The 1989 Noose.
On appeal, West explains that his own testimony was intended to provide the jury with information concerning how reports of the incident affected him. As a competent witness to testify as to the incident itself, West contends that he would have presented Price had it not been for the court‘s earlier, repeated warnings to remain within the 300-day period when questioning Price.
As with the Ku Klux Klan card, Wеst claims that preclusion of this evidence was prejudicial beyond the mere fact that it was an important incident helping to establish the pervasive and continual nature of the hostile work environment. He suggests that it also sheds light on a similar incident occurring within the 300-day period. At trial, the court admitted evidence of a large noose that hung near the storeroom, by the building‘s exit door, during the summer of 1990. According to Price‘s testimony, this second noose was full-size, made of thick burlap rope, with a circular wrapping that could be
Finally, plaintiff argues that evidence of the 1989 noose incident was important because Smith filed a complaint about it with PECO‘s Affirmative Action Office. This information, in turn, would have been a part of West‘s presentation to establish that PECO knew of the alleged hostile work environment.
B. The Black Doll.
In 1989, Esbiornson placed a photocopy of a figure on the side of his desk, facing Smith. West suggests that it was a black “voodoo doll,” intended to harass Smith because he had argued with Esbiornson the day before. PECO claims that it was a “malady doll,” listing a variety of physical ailments, intended to protect the workers in the shop from further illness.
At the hearing on the motion in limine, the court made a provisional ruling that it would admit the evidence for purposes of notice because Smith had filed a сomplaint with PECO‘s Affirmative Action Office. The superintendent of the meter shop, William Barrett, investigated the incident and kept notes of his interviews with Smith and Esbiornson. App. at 48-51, 53. However, at another pretrial conference, PECO sought
C.
After a five day trial, with the above evidence excluded, the jury found that West had failed to prove that PECO knowingly permitted a hostile work environment to exist at the meter repair shop. The jury also found that PECO had not retaliated against West because he had filed administrative charges. The district court entered judgment in PECO‘s favor on June 11, 1993, and West filed this timely appeal. West argues on appeal that the district court erred in emphasizing the 300-day filing period as a basis for determining the admissibility of evidence and for imposing a “same actor, same conduct” requirement before a continuing violation could be established.6 For the reasons which follow, we agree.
The district court had subject matter jurisdiction over plaintiff‘s federal statutory claim pursuant to
We review the evidentiary determinations of the trial сourt under an abuse of discretion standard. Glass v. Philadelphia Electric Co., 34 F.3d 188, 191 (3d Cir. 1994); In re Merritt Logan, Inc., 901 F.2d 349, 359 (3d Cir. 1990). In the context of a decision to admit or exclude evidence under
Our determination that the trial court erred in an evidentiary determination does not, however, end our review. An erroneous decision to admit or exclude evidence does not constitute reversible error unless “a substantial right of the party is affected . . ..” Linkstrom v. Golden T. Farms, 883 F.2d 269, 269 (3d Cir. 1989);
III.
A.
Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer . . . to
To be cognizable within the meaning of Title VII, harassment, whether based on race or sex,7 must affect a “term, condition, or privilege” of the plaintiff‘s employment. In Meritor, 477 U.S. at 67, the Court held that the harassment “must be sufficiently severe or pervasive ‘to alter the conditions of [the victim‘s] employment and create an abusive working environment.‘” Recently, in Harris, the Court explained that this standard is intended to
In Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990), we discussed the standard of liability for a hostile work environment claim. First, we adopted what has become known as a “totality of the circumstances” approach.
To bring an actionable claim for . . . harassment because of an intimidating and offensive work environment, a plaintiff must establish ‘by the totality of the circumstances, the existence of a hostile or abusive working environment . . . .’
Id. at 1482 (citing Vance v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503, 1510 (11th Cir. 1989)). See also Spain v. Gallegos, 26 F.3d 439, 451-52 (3d Cir. 1994) (considering all the circumstances, plaintiff should be allowed opportunity to prove claims regarding sexually hostile work environment). This approach has been endorsed by the Supreme Court:
[W]e can say that whether an environment is “hostile” or “abusive” can be determined only by looking at the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee‘s wоrk performance.
Harris, 114 S.Ct. at 371. In addition, in Andrews, we set forth five elements necessary to establish a successful hostile work environment claim:
the plaintiff suffered intentional discrimination because of his or her membership in the protected class; - the discrimination was pervasive and regular;
- the discrimination detrimentally affected the plaintiff;
- the discrimination would have detrimentally affected a reasonable person of the same protected class in that position; and,
- the existence of respondeat superior liability.
The use of both a subjective and an objective standard (parts 3 and 4 above) also was explicitly adopted by the Supreme Court in Harris:
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive--is beyond Title VII‘s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim‘s employment, and there is no Title VII violation.
B.
West‘s claim, that PECO knowingly permitted a hostile work environment to exist for its African-American workers at the meter repair shop, is governed by these standards. At trial,
At trial, the judge explained to counsel: “You‘re proceeding under a certain section of the statute which has [a] certain time limitation on it. I‘ve applied that time limitation and you may take it from that point all the way up to today.” App. at 89-90. In that ruling and the rulings described above, the court was referring to Title VII‘s filing period. According to
Though the requirement sounds exacting--300 days after the alleged unlawful employment practice occurred--courts have grappled with cases presenting questions of precisely when a “practice” occurred. That date may be more inflexible when there is a discrete trigger event and the discrimination is overt. However, there are cases in which the plaintiff does not know he has been harmed; similarly there are cases of an ongoing, continuous violation. To accommodate these more indeterminate situations, the Supreme Court has recognized that the filing of a timely charge is “a requirement that, like a statute of limitation, is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132 (1982); Oshiver v. Levin, Fishbein, Sedran & Berman, ___ F.3d ___ (3d Cir. 1994).
One such equitable exception to the timely filing rеquirement is the continuing violation theory. Under this theory, the plaintiff may pursue a Title VII claim for discriminatory conduct that began prior to the filing period if he can demonstrate that the act is part of an ongoing practice or pattern of discrimination of the defendant. Bronze Shields, Inc. v. New Jersey Dept. of Civ. Serv., 667 F.2d 1074, 1081 (3d Cir. 1981), cert. denied, 102 S.Ct. 3510 (1982); Jewett v. International Tel. and Tel. Corp., 653 F.2d 89, 91 (3d Cir),
To establish that a claim falls within the continuing violations theory, the plaintiff must do two things. First, he must demonstrate that at least one act occurred within the filing period: “The crucial question is whether any present violation exists.” United Airlines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889 (1977). Next, the plaintiff must establish that the harassment is “more than the occurrence of isolated or sporadic acts of intentional discrimination.” Jewett, 653 F.2d at 91. The relevant distinction is between the occurrence of isolated, intermittent acts of discrimination and a persistent, on-going pattern.9
C.
Throughout the trial, West maintained that the alleged hostile work environment satisfied the conditions of a continuing violation. Hostile work environment and continuing violation claims have similar requirements of frequency or pervasiveness. There is a natural affinity between the two theories. A number of courts, in fact, have remarked upon the correlation between the two:
In the arena of sexual [or racial] harassment, particularly that which is based on the existence of a hostile environment, it is reasonable to expect that violations are continuing in nature: a hostile environment results from acts of sexual [or racial]
harassment which are pervasive and continue over time, whereas isolated or singlе incidents of harassment are insufficient to constitute a hostile environment. Accordingly, claims based on hostile environment sexual [or racial] harassment often straddle both sides of an artificial statutory cut-off date.
Jenson v. Eveleth Taconite Co., 824 F.Supp. 847, 877 (D.Minn. 1993). See also Waltman v. International Paper Co., 875 F.2d 468, 476 (5th Cir. 1989)(“The Meritor Savings Bank decision is relevant to the continuing violation theory because a hostile environment claim usually involves a continuing violation.“); Stair v. Lehigh Valley Carpenters Local No. 600, 813 F. Supp. 1112, 1115 (E.D. Pa. 1993). Moreover, this view is implicit in the many cases which, without discussing the issue of timeliness or admissibility, rely upon evidence of events, occurring long before the relevant filing periods, to establish a hostile work environment. See, e.g., Harris, 114 S.Ct. 367 (considering acts of harassment spanning two and one-half year period); Meritor, 106 S.Ct. 2399 (considering acts of harassment spanning four year period).
Although we decline to adopt a per se rule that a properly alleged hostile work environment claim also constitutes a continuing violation, we agree that West has alleged facts sufficient to support application of the continuing violations theory in this case. First, all of the incidents alleged by the plaintiff involved racial harassment--the nooses, the Klan pictures, the black doll, the harassing conversations and the
Despite these proffers, the trial court excluded much of West‘s pre-300-day evidence. In effect, the court looked upon West‘s claims as individually focussed on particular workers or on particular forms of continuing conduct. This strict application is not appropriate, however, in a claim of a racially hostile work environment where both the existence of hostility and the employer‘s awareness of hostility can long predate the 300-day period.
Here, the court required the plаintiff to stay within the 300-day period unless he could show a continuing violation by the same individual. Thus, at the pre-trial conference the court ruled: “You should plan to organize your evidence as to the 300-day period, and then you‘d have to show as to something prior to that time, that the same actor was involved. So if there was a
The additional restrictions upon the continuing violations theory were error. To prove a hostile work environment, West had the burdеn of establishing that he suffered intentional, pervasive, and regular racial discrimination of which PECO supervisors and management were aware and which PECO permitted to continue. Nowhere in the case law establishing these standards is there a requirement that the discriminatory conduct of each co-worker, who participated in creating the hostile environment, be pervasive and/or on-going. We believe that West proffered sufficient evidence to demonstrate that the hostile environment was on-going. Once he had done so, evidence of incidents of pre-300-day discriminatory activity was admissible if the incidents were related to the overall hostile environment.
In contrast to the limitations imposed by the trial court, our cases direct that a hostile wоrk environment claim should be addressed in the “totality of the circumstances.” Specifically, in Andrews, this court precluded an individualized, incident-by-incident approach. 895 F.2d at 1485. We cautioned:
A play cannot be understood on the basis of some of its scenes but only on its entire
performance, and similarly, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario. . . . The factfinder in this type of case should not necessarily examine each alleged incident in a vacuum. What may appear to be a legitimate justification for a single incident of alleged harassment may look pretextual when viewed in the context of several other related incidents.
Id. at 1484 (citation omitted).
The “totality” approach cannot support the “same actor” or “samе form of discrimination” requirements imposed at trial here. Because a hostile work environment claim is a single cause of action, rather than a sum of discrete claims, each to be judged independently, the focus is the work atmosphere as a whole. If an employer knowingly (actually or constructively) permits a hostile work environment to exist, it is of no import that the collection of incidents comprising the claim were committed by a variety of individuals.10 Rather, by implicitly condoning harassing behavior, the employer may facilitate its spread by a greater number of harassing employees. As one court has observed,
A hostile work environment is like a disease. It can have many symptoms, some of which change over time, but all of which stem from the same root. The etiology in this case is pure gender bias.
We conclude that the trial court was also overly restrictive in its application of the “pervasiveness” requirement. At one stage, it precluded evidence of racially harassing comments because the plaintiff had not established that there was “daily contact” with the harassеr. App. at 166-67. As the Supreme Court made clear in Harris, frequency is a factor to be considered, but it is to be considered in context, including the severity of the incidents.
The number of incidents of harassment is but one factor to be considered in the totality of the circumstances. A Title VII plaintiff does not prove racial harassment or the existence of a hostile working environment by alleging some ‘magic’ threshold number of incidents.
Daniels v. Essex Group, Inc., 937 F.2d 1264, 1275 (7th Cir. 1991). See also Waltman, 875 F.2d at 475-76 (“The fact that there were gaps between the specific incidents to which Waltman testified does not demonstrate a lack of continuity.“).
IV.
Notes
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .We review exclusions under Rule 403 only for abuse of discretion. In this case, we cannot say that the trial court‘s decision was “arbitrary and irrational.” This incident occurred more than 40 miles from the workplace. There was no direct evidence linking any of PECO‘s employees to the deer head. The circumstantial evidence offered showed that some of the white PECO workers enjoyed deer hunting, that they discussed hunting at work, and that one of the workers ate deer meat at work. Given this weak connection to PECO, the probative value of the evidence was slight. And on the other side of the Rule 403 balancing, the incident was appallingly grotesque and abusive of Price. As such, admission of the evidence would have run the risk of inducing unfair bias in favor of Price and, potentially, unfair bias against PECO.
- (i) subject matter--whether the violations constitute the same type of discrimination; (ii) frequеncy; and (iii) permanence--whether the nature of the violations should trigger the employee‘s awareness of the need to assert her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate.