*1 1985, good May in disposing inventory it to act in faith when it risk of of unneeded Virgin plant, re- closed its Islands bauxite or purchased to meet MMA’s normal had 1984, July it when it notified U & W quirements when its contract with MMA was planned inventories while Jt.App. to reduce its own See at 248. terminated. production maintaining pre-existing levels. any This unrebutted evidence contradicts Co., F.Supp. Tube at 79.13 See Welded finding may have implicit the district court unfairly, dishonestly made that MMA dealt V. Conclusion Thus, unreasonably & with U & W.11 U W, moving party partial on motion for its granting The order of the district court summary produce judgment, has failed to summary judgment partial to U & and its W from which it could be inferred summary denying order MMA’s motion for Corp., in bad faith. See HML MMA acted judgment be reversed and case will will 365 F.2d at 83. be remanded to it with instructions to enter judgment for MMA. took a calculated business risk

U & W agreed supply parts it MMA with when accepted It risk that it

needed. would inventory if dispose

have to of unused MMA

canceled the contract or went out business. requirements

This risk is inherent con- oblige tracts. The contract did not MMA to GLASS, Appellant, Harold order, any make more than one let alone notify placing if it would not be its U & W PHILADELPHIA ELECTRIC purchase usual amount of orders. COMPANY. It is indeed unfortunate that U & W was parts to return the it had on hand No. 92-1896. unable May when MMA terminated the contract Appeals, United Court of States 1985, it it but this is risk assumed when Third Circuit. agreed supply requirements MMA’s contract, requirements MMA’s terms.12 In a 1, Argued July 1993. good seller assumes the risk of all faith “[t]he Sept. Decided 1994. buyer’s requirements, variations even Sept. As Amended 1994. to the extent of a determination to discontin ue the business.” Tube Am. v. Welded Co. of Rehearing Sur Petition for Corp., F.Supp. Phoenix Steel In Banc Oct. (E.D.Pa.1974), part, in relevant aff'd (3d Cir.1975); Corp., F.2d 342 see also HML 365 F.2d at 81. MMA did breach its duty

contract with U & W contravene its 11. The district court stated that “MMA’s not believe unbri- the contracts were terminated expose great dled U & W to risk in attempt- [to discretion MMA'sactions. He that had he testified requiring keep inventory time, it to the same even suppliers ed to return his stock at that though requires own] MMAhad decreased its accepted approximately would have of it 80-85% corresponding duty good Jt.App. to act in faith.” attempted in returns. When U & W to return Thus, implied provision at 209. a notice be- parts suppliers plant to its after the closed in good performance required "a cause faith ad- May suppliers accept refused to U & expressly vanced notice.” Id. The court never they U & W did W’s returns. believes so because found that MMA acted in bad faith but that they longer good no considered U & W a custom- finding implicit to add its decision a second er based on U & W’s lack of recent orders and requirement agree- notice into the blanket order plant closing. rumors MMA’s ments. case, disposition (“McCal- 13.Because of our we do 12. U & W co-owner John McCallum lum”) argument not reach U & W’s that the district try testified he did not to return of his reducing damages stock when received the court erred in because it he reduction and/or duty mitigate. cancellation orders from MMA because he did had not met its *2 (argued), Alice W. Ballard Lynn Malm- gren, Ballard, PA, Samuel & Philadelphia, appellant. for (argued), Hope Dona S. Kahn Comisky, A. Tuttle, Anderson, Kail, Richard G. Olick & Oshinsky, PA, Philadelphia, appellee. for BECKER, ROTH, Before: ALITO and Judges. Circuit OPINION OF THE COURT ROTH, Judge: Circuit appeals Harold jury Glass from a verdict in favor of Philadelphia Compa- Electric (“PECO”) ny claiming his action race dis- crimination, discrimination, age and retalia- employment. alleges tion Glass that the district court abused its discretion when it repeatedly evidentiary made rulings against him, excluding his allegedly racially work hostile environment at (the “Eddystone Plant evidence”) where he from worked 1984 to substantially Glass claims that he was prejudiced by rulings the district court’s First, two reasons. while the district court excluded Glass’s it ad- perfor- mitted PECO’s evidence of Glass’s Eddystone. Consequently, mance at Glass prohibited telling his side of the Second, story. claims that Glass the exclud- ed evidence is relevant to the pretext. issue We that the district court erred conclude excluding evidence. harmless; We find the error was not hence, we will reverse the district court’s judgment and remand for a trial.1 new instructions, appeals grounds up appropriate jury 1. Glass also to draw follow jury pretext ing precedents Mary’s district court’s instructions to the on set forth in St. Honor - Hicks, -, legal light contained an incorrect standard. Center v. U.S. (1993), See, disposition, progeny. of our we will not reach this issue. and its opportuni e.g., We Young, will leave to the district court the Hook v. Ernst & 28 F.3d 366 remand, Cir.1994). ty, light presented of the evidence PECO, which resulted a settlement I. employees’ oppor- removed barriers to black years for 23 before Glass worked tunities, employee productivity, im- increased career, During he retired in 1990.2 proved the communications between PECO capacities: worked in three different clerical employees, supervisory and its and affected *3 (1967 (1984 1984), 1986, to technical to and as a result of an affirmative action behavior (1986 1990), employee to and advocate 1982, training In filed an module. Glass 1989). to charge practice unfair labor with the NLRB full-time, working Glass attended While complaint in that resulted a and settlement improve opportunities. school to his career requiring recognize to in its PECO BGC 1982, May In an Associate De- he received employee handbook as an alternative source Engineering gree in Electrical Electronics help employees seeking for in matters of 1987, Technology. In he received December (NLRB discrimination or affirmative action. Engineering. In Degree an Associate in PECO). in v. The settlement also resulted a 1988, May he received a Bachelor Science Represen- creation of the Liaison BGC/IGA Degree Management Engi- in Industrial and tative, position during which Glass held 1988, neering. In December he received a years through Degree Engineering. in Bachelor Science Throughout years employment his 23 supported PECO Glass’s initiatives to obtain PECO, only perfor- with Glass received one higher by covering tuition education all fully mance evaluation which was less than expenses through tuition their reimburse- satisfactory. This occurred while he was program. ment junior serving as a technical assistant In addition to his con- full-time work and (“JTA”) time, Eddystone. During education, tinuing an on Glass was activist alleges target that he Glass was the of racial employees. behalf of PECO His involvement by his harassment co-workers. He further employee with issues of and labor relations suggests negative that the harassment had a 1968,when, began along in with other minor- upon performance. effect his work ity employees, helped organize he the Black (“BGC”) respond Grievance Committee 1982, unsuccessfully applied In Glass for PECO, problems of racial fairness at includ- position of Affirmative Action Officer in ing inadequate representation of minorities 1989, early having Human In Resources. by organization, PECO’s uncertified labor engineering obtained two baccalaureate de- (“IGA”). Independent Group Association grees, sought promotion posi- he a from the however, Engineer; tion of JTA to that of he years, For 20 from 1968 to Glass departments never heard from the three repre- served as an officer of the He BGC. applied. inquired which he When he later employees handling in sented routine individ- applications, about the status of these he was grievances management nego- ual and before people told “some of the were scared to management employee tiated with about con- App. take a chance at 121. In [him].” cerns. particular, management pointed poor to his addition, orga In in he served as the lead Eddy- evaluation while at the nizing against witnesses in three actions App. stone Station. at 114. concerning racially discriminatory PECO em ployment practices. early In applied posted 1970’s he In late Glass va- organizer pattern prac Representative was a chief in a and cancies of Labor Relations (three vacancies) tice race discrimination action filed in federal and Affirmative Action (Harold (one Glass, court vacancy). PECO. et. al. Staff Assistant PECO). organizer rejected cases, younger He was also an in both in favor of primary contact in applicants management’s with counsel another fed white because of pattern practice player,” App. eral race discrimination claim that he was not a “team suit, Committee, management’s percep- Black Grievance et. al. v. a reference early part cutting program 2. Glass chose to take retirement as caused the need for econom- plan during a offered an cost overall ic retrenchment. Cir.1990). explained tenure or conduct as an em- tions of Glass’s We have that “error addition, may ployee predicated upon In ruling advocate. PECO filled be which posting, admits or positions, other without that Glass excludes evidence unless a sub- for, right party in- stantial would like to have been considered is affected....” Officer, Farms, cluding that of Action Linkstrom v. T. Affirmative Golden Cir.1989); 103(a). again filled which was and that of Fed.R.Evid. Employee Specialist, reviewing evidentiary rulings, Relations which was if we find non- 1989, by suit, filled once 1988 and once constitutional error in a civil such error only white candidate each case. is harmless “if it highly probable the error did not affect the outcome of the position Represen- Glass left the of Liaison case.” Westinghouse Lockhart v. Credit early tative 1989 and returned to technical *4 (3d 43, 53, Cir.1989). Corp., 879 F.2d 59 a age work as JTA. He retired at 54 from position. this he was not When selected to A. job openings fill the aforementioned at 1990, brought 1989 and We note at the outset that the trial 3, 1990, against action PECO on October court admitted PECO’s evidence of Glass’s claiming that he was discriminated Eddystone conduct at and excluded Glass’s age on the basis of his race and articulating evidence without minority retaliation for his activities as a probative balance between the value and the advocate. prejudicial required effect of the evidence as by jurisprudence Fed.R.Evid. 4033 and the The District Court for the Eastern District See, e.g., this Court. United States v. Pennsylvania subject jurisdic- had matter (3d Cir.1985) Downing, 1224, 753 F.2d 1243 pursuant §§ tion to 28 U.S.C. 1331 and 1334 (declining question to decide the Rule 403 alleges over this claim which violations of the where the district court neither mentioned 1866, 1981; Rights § Act 42 Civil U.S.C. Rule 403 on the record nor “conducted the 1964, Rights the Civil Act of 42 U.S.C. balancing required by rule”); United 2000, § seq.-, Age et and the Discrimination (3d Cir.) 761, Long, States v. 574 F.2d 770 Act, 621, Employment § 29 seq. U.S.C. et (Adams, (the concurring) record should re supplemental The district court exercised occurred), flect, minimally, balancing least jurisdiction brought over claims under the denied, 985, t. Act, Pennsylvania Human cer Relations 43 P.S. (1978). 577, Therefore, it is jurisdiction § seq. et We have over purposes not clear for of our review that the appeal pursuant § Glass’s to 28 U.S.C. 1291. actually any district court excluded evidence despite under Rule II. the district court’s language suggesting rulings that its involve pre-trial We review and trial court concerns, some Rule 403 i.e.: not “Let’s relit rulings concerning the admission of evidence igate the I’ll matter. sustain the for an Japanese abuse discretion. In re objection.” App. at 358. Products, (3d Electronic Cir.1983), grounds, rev’d on other Matsushi PECO contends that the trial court con- Co., balancing granted ta Electronic Industrial Ltd. v. Zenith ducted Rule 403 when it 574, 106 Corp., Radio pre-trial U.S. S.Ct. 89 PECO’s motion in As limine. (1986). Similarly, requested, L.Ed.2d 538 the we review PECO had the district court or- district court’s decision to include or exclude dered that no evidence would be admitted 1) arising categories: pre-May evidence under the Federal Rules of two 1989 evi- discriminatory Evidence alleged 402 and 403 for an abuse of dence treatment about by discretion. predates v. Marion Center Area of Glass PECO that the statuto- Pfeiffer District, claims, ry period by School 781-82 covered Glass’s current issues, misleading jury, by 3. Fed.R.Evid. 403 states: the or consid- time, relevant, delay, of undue waste Although may erations he excluded if probative substantially presentation outweighed value is needless of cumulative evidence. by danger prejudice, of unfair confusion of 2) hand, by prior agree- eluding, on one the references evidence of settlement performance Eddy- into ments or consent decrees entered the defense to Glass’s performance PECO. the district court’s order does poor While stone and the effect his granting give reasons for rating attempts there had on his later motion, opposition motion in and, hand, Glass’s promotion prof- on the other PECO’s motion in limine appears to invoke fers at those times as to what made Glass by opposing Rule 403 PECO’s claims that the impact he would show prejudicial, confusing and will evidence “is performance racial on his and his harassment App. promote delay proceedings.” in the evaluation, we conclude repeated grant district court’s refusal attempts to admit the evi- PECO’s motion in limine If we consider dence was an abuse of discretion. objection equivalent specific of a Rule to the then “we must trial court’s failure to articulate confront the B. probative its balance value and between day the second of trial at a On sidebar prejudicial effect of the evidence one of conference, the court ruled that evidence of ways: we the trial court two either decide allegedly hostile racial environment at balance;

implicitly performed required *5 Eddystone in the mid-1980’s was inadmissi- not, or, if the trial court did we decide we following ble. Glass’s counsel made the offer perform undertake to the balance ourselves.” proof: of Eufrasio, States v. United 935 F.2d permitted, If BALLARD: would also Cir.1991) omitted). (3d (citation Indepen- offer of the environment Mr. method, dent of either “the trial court’s fail- Glass encountered at Station expressly ure to articulate a Rule 403 balance junior when he went there as a technical objection, when faced with a Rule 403 would why assistant in 1984 to show had diffi- he per se.” Id. not be reversible error there, culty performing to show that he If, hand, on the other we decide that discriminatory was the of a victim and in limine PECO’s motion did constitute a harassing environment there. And I un- specific objection Rule 403 to the admission Judge’s ruling derstand Your of two—Your of the then the trial ruling days ago say Honor’s of two required court was not to strike a Rule 403 stay away I should from that as well. sponte.4 balance on the record sua We note THE COURT: That’s correct. understanding that PECO’s and Glass’s of significant what the trial court did is to our that, App. Eddy- at 66. Glass contends if the analysis. parties Both communicated at oral admitted, stone evidence had been it would argument judge their belief that the trial have shown that more senior technical evidentiary rulings his based on Rule 403. employees posted demeaning hostile and im- determine, however, We ages plant premises that we do not in about him on the and subject fact need to base our racially derogatory decision here on a that he was the pre-trial resolution of or whether not PECO’s remarks. It would also have shown that the motion in limine constituted a Rule 403 ob- training performance junior and technical jection.5 Reviewing transcript, depended directly goodwill the trial in- assistants on the Indeed, ‘specific’ objection requirement may 4. "Since the be difficult for the district court 103(a) with, complied Fed.R.Evid. was not pre-trial stage adequate at the make an assess- judge required trial was not to deal with Rule balancing. ment of the Rule 403 See In re Paoli dynamics always [T]he 403.... of trial do not Litigation, R.R. Yard PCB 859-60 detail_ permit analysis a Rule 403 in ... fTlo (3d Cir.1990) ("[I]n order to exclude evidence require balancing a detailed statement in each pretrial stage, under Rule 403 at the a court must every case is unrealistic.... [W]here [a] complete enough point have record invoked, [objection] Rule 403 is not the trial surrogate issue to be considered a virtual for a judge’s balancing ruling." will be subsumed in his record.”) Long, United States v. Cir.), denied, cert. (1978) added). (emphasis L.Ed.2d 657 experienced part. more A In support of the techni- cal assistants and senior technical assistants Now, Q you any investigation did do re- junior who train and evaluate the technical garding his behavior assistants. Glass maintains see whether he had been the victim of opportunity perform to learn and and his unfair treatment there? effectively impaired the hostile envi- No, A I did not. ronment in which he worked. Q you Did he tell that he had been the repeatedly The trial court sustained victim of unfair treatment there? objections attempts to in- Glass’s Yes, A he had. troduce evidence these events. Q you Did people posted he tell had that his activities on Glass testified behalf pictures hostile of him on the wall ... employees Representative and as BGC/IGA qualified position him for the of Labor Rela- Objection, MS. KAHN: ... Representative. requirements tions Q ... when he ... job Representative of Labor Relations MS. KAHN: ... Your Honor. degree a “bachelor’s in human were: re- Q ... Eddystone? relations, management source or labor THE relitigate COURT: Let’s not significant experience labor relations work Eddystone matter. I—I’ll sustain the ob- equivalent experience combination of work jection. completion college and successful courses covering relations, gener- such areas as labor App. at 357-58. accounting, managerial accounting, al and/or rejected PECO also claimed that Glass was compensation and benefits.” Glass had both skills, poor interpersonal because of the focus (B.S., appropriate college degree an Industri- testimony Riley, of Malcolm *6 Management Engineering) al and and the Eddystone. Riley boss at testified about equivalent relevant coursework. He also had representative role as BGC while at experience developing handling work and Eddystone during period. the same Glass employee grievances, negotiating with man- permitted was not to cross-examine Malcolm agement settling major and lawsuits related Riley relationship about the between the hos- employee to relations and labor law. His Riley’s tile work judgment environment and background experi- academic and his work during Glass’s behavior this time evi- qualified job ence him for the and afforded poor interpersonal denced skills: him Lange, an interview with James Director Q time, you Riley, Do remember a Mr. of Labor Relations. somebody Eddystone put when at Station though Even Glass had met the education pictures up some on the board of Harold requirements experiential and had the back- Glass? ground relations, qualification in labor a Objection, MS. KAHN: Your Honor. “preferred” job post- characterized as Objection, constantly Your Honor. This is ing, rejected he was in younger, favor of brought into the It case. was ruled that it candidates, compa-

white none of whom had not relevant. employee experience. rable or labor relations Now, agree. THE COURT: let me Lange rejected testified that one reason he see counsel one moment at sidebar. poor performance Eddy- Glass was his App. attempted pursue stone. Glass to at 404. extent Lange’s knowledge similarly opportunity Glass was denied the events cross-examination: to introduce evidence of the circumstances at No, Q my question previous perfor- is the Eddystone in the context of his claim that you mance that identified one of the as engineer him PECO’s refusal to hire as an why you reasons turned him down.... discriminatory. Weigand, 1989-90 was Alvin

A Uh-huh. engineering head of the division in which Q worked, Eddy- ... that was his Glass testified that he told Glass stone, isn’t it? promotion engineer that a would be condi- subject matter of the direct examina- satisfactorily performing a to the on his

tioned affecting credibility matters years. denied tion and position for two Glass JTA v. the witness.” See also United States Sul- probationary told that the having ever been (3d Cir.1986). livan, years but instead under- period was for two by allowing wit- district court erred waiting period dura- that a of indefinite stood nesses, Lange, Riley Weigand, testify any and being imposed on him. In tion was knowledge Eddy- event, about their of the events period, whether two probationary a allowing to cross- stone but then not Glass years open-ended, applied was not those witnesses to the basis or engineering examine degreed candidate for an other knowledge. job. of their job. extent declined the Glass Second, evi we find trial, imposed Weigand testified that he At key independently relevant to a dence probationary period because of Glass’s princi aspect of the case: whether one of the Eddystone. poor performance while non-diseriminatory pal reasons asserted Weigand’s pursue the extent of attempted to pretext PECO for its actions was fact knowledge of the events on cross- Mary’s age or race discrimination. St. examination: Hicks, Supreme Honor v. Court Center Now, Q you you aware of said were that, confirmed under the well-established performance problems, in the past his burden-shifting Doug formula of McDonnell you How did know what technical field. Green, Corp. v. las U.S. S.Ct. you thought problems kinds of he had had? (1973), Dept. 36 L.Ed.2d 668 Texas What, Sorry. question. That’s a terrible Burdine, Community Affairs problems, quote, quote, performance close (1981),in S.Ct. you were aware of? alleging employment a Title VII case dis receiving A I was aware that he was crimination: satisfactory performance appraisals First, prov- has the burden of Station, job and I was JTA ing by preponderance of the evidence a being promoted aware that he was not prima discrimination. facie case of Sec- progression, TA which is the normal ond, proving if the succeeds couple my organization, that was in down a case, prima to the facie burden shifts levels. legitimate, defendant to articulate some *7 Q you that he had had diffi- Were aware non-discriminatory employ- reason for the culty job Eddystone personal of a Third, rejection. ee’s should the defendant nature in connection with the other em- burden, carry must then ployees? by opportunity prove prepon- an have Objection, KAHN: Your honor. MS. legitimate derance of the evidence that the history Again, going we’re back into which by were not reasons offered the defendant was ruled irrelevant. reasons, pretext his true but were objection’s THE sustained. COURT: discrimination. objection App. at 426. sus- With PECO’s Burdine, 252-53, 450 U.S. at 101 S.Ct. at tained, repeatedly Glass was unable to intro- — Center, 1093; Mary’s see St. Honor U.S. racially duce evidence at-, (reaffirming 113 at 2749 “our S.Ct. station, hostile environment at repeated plain- that the Title admonition VII management’s failure to take corrective ac- tiff at all times bears the ‘ultimate burden of harassment, tion when it learned of the discrimination). persuasion’” of intentional the connection between these incidents and age applies equally This formula to claims of negative performance evaluation. in employment discrimination under ADEA. Inc., Spencer Gifts, Chipollini find that the district court abused its See We (3d Cir.1987) (in bane). First, following discretion for the reasons: in F.2d Since courts, scope permissible the federal of had introduced sufficient evidence to prima cross-examination is set forth in Fed.R.Evid. establish a facie case and PECO had 611(b): nondiscriminatory reasons “Cross-examination should be limited asserted several actions, including poor perfor in barring for its Glass’s discretion from intro- Eddystone, mance at evidence ducing prior evidence of sexual harassment have been admitted to is relevant should of herself employees and other of the defen- help proving of inten Glass meet his burden magistrate judge dant. The had determined pro tional discrimination Glass’s counsel any evidence, beyond the fact that the posed proffer on three occasions dur her plaintiff had filed certain harassment com- rejection ing district court’s the trial. The plaints against past, the defendant in the was preclusion proffers was error. The plaintiffs relevant claim that she deprived hearing full evidence Glass of a disadvantageous suffered employment deci- was, therefore, pretext on the issue of gender sions as a result of her and in retalia- error; rather, highly prob not harmless complaints tion for of sexual harassment evidentiary rulings able that the affected the by employed by made her while the defen- Westing outcome of the case. Lockhart v. dant. Corp., house Cir. Credit 1989).6 appeals disagreed, The court of finding that evidence of the nature of the harassment judicial Our decision is buttressed complaints disposition and the defendant’s inhospitability evidentiary to blanket exclu- complaints highly those relevant to the Eighth sions in discrimination eases. The plaintiffs case atmosphere because “an explained reversing Circuit similar eviden- tiary employment workplace in an condoned sexual harassment in a exclusions discrimi- nation suit: increases the likelihood retaliation for complaints in individual eases.” 900 F.2d at evidentiary

The effects of blanket exclu- 156. See also Hunter v. especially Allis-Chalmers damaging sions can be in em- (7th Corp., Cir.1986) cases, ployment discrimination in which (affirming plaintiffs district must face difficult task of court’s to admit decision persuading plaintiffs the fact-finder to an disbelieve evidence of harassment employer’s account of his own motives. other black alleging racially workers case

discriminatory discharge because “evidence in showing relevant both that Allis Chal- proof typi- Circumstantial of discrimination mers condoned racial harassment cally unflattering testimony includes about rebutting workers and Allis Chalmers’ de- employer’s history practic- and work cause.”). fense that it had fired Hunter for which in es—evidence other kinds of cases may unfairly prejudice jury well

against the defendant. In discrimination III. eases, however, background such may jury’s be critical for assessment of reasons, foregoing For the we conclude given employer likely whether a was more that the district court abused its discretion *8 than not to have acted from an unlawful by repeatedly barring trial from motive. introducing evidence about the hostile work Ford, Inc., Estes v. Dick Smith eliciting environment and from (8th Cir.1988). 1097, 1103 testimony perfor- of how related to Glass’s mance, which, PECO, according oper- to had Estes, Citing passage Eighth this from the candidacy to positions ated defeat his for the in Hennepin Circuit Hawkins v. Technical (8th Representative Engi- of Labor Relations Center, Cir.1990), re- will, therefore, neer. reverse the district summary judgment We versed for the defendant disparate judgment in court’s and remand this for a treatment sex discrimination case holding case that the district court abused its new trial. balancing, requested,

6. A Rule 403 if would be a items of evidence would be better part any ruling particular aspect on a of the by judge, testimony made on remand the trial evidence, might as such evidence be us, context, proffered, by than it would out of conclude, pretext. relevant to the issue of however, We stage proceedings. at this balancing particular that such a trial, ALITO, majority Judge, dissenting: opinion. Prior to Circuit seeking preclude a motion in limine filed Glass, employed many Harold who was plaintiff introducing evidence of dis- years by Philadelphia Company Electric criminatory allegedly acts that occurred be- (“PECO”), employer sued his former for al- statutory period by fore “the covered discriminating against him legedly based charge Pennsylvania [Glass] filed with the allegedly retaliating age race and and for Equal Human Relations Commission and the pursuit against him because of his of other Opportunity Employment Commission....” discrimination claims.1 His case was tried Defendant’s Motion In Limine at 1. PECO jury, jury requested before and the argued that this evidence was relevant special interrogatories answer asked under Fed.R.Evid. 401 and that it should in against whether PECO had discriminated any event be excluded under Fed.R.Evid. age plaintiff on the basis of race or or had 403. PECO stated: illegally against him retaliated when it failed if this Court were to conclude that [E]ven promote variety positions him to a might some or all of this evidence be mar- jury filled in the 1980’s. found were late The admissible, ginally relevant and otherwise retaliation, no such discrimination or and the introduced, if it is the Court will be forced judgment court entered for PECO. preside over—and defendants will be contended, appeal, plaintiff among On against forced to defend collat- —numerous things, other that the district court abused eral matters to be tried within the main its discretion under Fed.R.Evid. 403 ex- trial. These mini-trials would concern ac- cluding subjected evidence that he had been tions decision-makers who were not in- racially to a hostile environment when he volved at all of the action in the fall Eddystone Generating worked at PECO’s challeng- and winter of 1989 that Glass is plaintiff Station the mid-1980’s. The ar- instances, ing many they In this case. gued that this evidence was relevant to show many would concern events which occurred denying that PECO’s asserted reasons for years actually before events contro- promotions pretextual were and that this versy Furthermore, by admitting here. evidence should not have un- been excluded jury will hear an overa- Appellant’s der Rule 403. See Br. at 17-26. tangential, bundance of collateral and irrel- majority agrees plaintiffs argu- The with the undoubtedly evant issues which will con- judgment ment and therefore reverses the fuse its consideration of the true issues the district court and remands for a new this case. There would be at least several so, doing majority trial. In makes little days ultimately, extra of trial time and explain why effort to the excluded evidence admitted, should this evidence be defen- probative had value or to address the factors unfairly prejudiced dant will be in its de- weighing view, my exclusion. fense. when both sides of the Rule 403 balance are in Support Memorandum of Law of Defen- carefully proper considered and the standard dant’s Motion In Limine 4-5. See also id. appellate applied, review is the district at 15-16. rulings court’s under Fed.R.Evid. 403 must Moreover, sustained. if be even those rul- lengthy then filed a memoran-

ings incorrect, they were were harmless with opposition dum in to this motion. In this respect positions to several of the at issue. memorandum, stated that he reasons, For these I dissent. “propose[d] to introduce evidence of his em- *9 ployment history, including his activities as

I. employee representative, prove an to he was addressing qualified positions Before the merits of the dis- for the he now claims he evidentiary rulings, trict briefly age court’s I will was denied because of his and race.” supplement procedural history in App. describing plaintiffs set out 3-4. After 623; 1981; § § 1. He asserted claims under Title VII of the Civil U.S.C. 42 U.S.C. and the Penn- Act, Rights seq.; sylvania § § Act U.S.C. 2000e et Human 43 P.S. Relations 951 et Act, Age Employment seq. Discrimination in as an officer of the Black depth work Grievance and texture qualifications of those Committee, jury.” App. the memorandum stated: to a surreply, 16. This like the plaintiffs prior memorandum, made abso- story directly of Mr. [T]he Glass’ activism lutely no mention of racial harassment or a supports quali- his contention that he was racially atmosphere hostile or jobs denied,

fied for the he and that was anywhere else. despite qualifications, reject- these he was pretextual ed for reasons.... receiving submissions, After these the dis court, days trial, trict a few short, before entered Mr. pre-1989 Glass’ evidence is granting an order PECO’s motion. Because purpose showing relevant for the he that the district explain court did not the basis for particularly qualified was for the 1989- ruling, it is unclear whether the court held positions, history and that this entire that the pre-1989 evidence of events was not employee of activism in and labor relations relevant or whether the court concluded that promotion consistent with a into one of the evidence should be excluded under Rule them. event, any however, 403. In I do not think App. 9-10. The memo also stated: plaintiff that the can ruling attack important [I]t is to note what Plaintiff does ground that it improperly precluded him regard pre-1989 not intend with to evi- proving subjected that he had been to dence. Plaintiff does not to intend racial harassment Eddystone prior to any make actionable pro- of Defendant’s Having 1989. explained to the district court predate motional decisions which the limi- precisely what pre-1989 evidence of events period tations in this action. Nor does he wanted to precisely why introduce and he prove Plaintiff intend to existence wanted to introduce that and hav pattern practice of discrimination.... ing nothing said about evidence of racial App. 8-9. Not once this memo did the racially harassment or a atmosphere hostile plaintiff proposed state that he to introduce anywhere else, subjected that he to racial cannot, view, my argue that the district harassment or a racially hostile work envi- court in failing erred to such admit evidence. during period ronment when he worked 103(a)(2); See Fed.R.Evid. Northeast Wom (from station 1984 to Center, en’s McMonagle, Inc. v. 1986) or at other time.2 Cir.), denied, 1352-53 cert. reply PECO next filed a memorandum. (1989). argued plaintiffs pre-1989 began the trial days When two after the experience representing employees other granting district court’s order the motion in respect not relevant with to several of the limine had been entered and sent to the positions to which he claimed he should have parties, plaintiffs counsel an made oral promoted. However, been with respect to proof, offer of following colloquy and the positions other position some of Affir- —the occurred: mative Action Staff posi- Assistant and three [plaintiffs MS. BALLARD If counsel]: Representative— tions as a Labor Relations permitted, I would also offer evidence of stipulate PECO offered “to plaintiffs the environment Mr. Glass encountered at employees activities on behalf of pro- other Eddystone Station he went there as when him experience vided with the to meet cer- junior technical assistant 1984 to show job requisitions” tain criteria set forth in the why there, difficulty he had performing positions. for those Reply Memorandum of show that he was the of a discrimi- victim Support Law in of Defendant’s Motion In natory harassing environment there. Limine your I Judge’s ruling And understand surreply then filed a objecting ruling days ago two—Your Honor’s of two proposed stipulation say because would stay away should from that as deprive him of opportunity present “the well. *10 racially

2. Nor was harassment or a opposition hostile envi- tiff's affidavit in to the motion in Eddystone plain- ronment at mentioned in the limine. App. Accordingly, bring ate to that in.” 67. That’s correct. THE COURT: I think that the cases cited the do not right. All And that BALLARD: MS. “ evidentiary majority concerning ‘blanket pictures that were would include the ” (see Maj. (quoting at Estes exclusions’ ... placed on the wall Ford, Inc., 1097, 1103 v. Dick Smith Right. THE COURT: Cir.1988)) Instead, (8th pertinent.4 are at all degraded Mr. BALLARD: ... MS. plaintiff the I think that it was incumbent on personality. Glass’ con request to admit evidence to renew Right. rulings All THE COURT: these cerning Eddystone as the trial events so; plaintiff the district prejudice your developed. renew- The did are made without ruled; specific court and it is these then ing if a later time it turns out from them at view, rulings, my that we must review. testimony might that it be appropriate the chief, your bring that in. But on case specific exchanges led to these admissible, opinion it’s not at this the court rulings quoted I’ve ruled that are the (see 193-94), Maj. I will not and therefore time. will, however, repeat I note two them here. App. 66-67. First, exchanges. salient features of these proof, unlike the this oral offer of While attorney point plaintiffs no did the refer to memoranda, plaintiffs prior referred to evi- concept “pretext” provide a clear Eddystone, dence of racial harassment Eddy- explanation of the relevance of the explain plaintiffs still did not how counsel Second, point at no did the stone evidence. harassment, proof apparently co- of this provide judge refer to Rule 403 or workers,3 prove that was relevant to rulings explanation clear of the basis of his retaliated officials had discriminated excluding question. the evidence in Faced they plaintiff record, when denied him ambiguous I think it with this is give promotions years particu- appropriate In both sides the benefit of certain later. Consequently, I the doubt. construe the re lar, plaintiffs counsel did not claim that this having pre plaintiffs marks of counsel as was relevant to show that PECO’s argument served the that the evi denying pro- reasons for these (like pretext, dence was relevant to show Thus, pretextual. if I motions were had been parties5) counsel for both construe the judge, I that I would the trial am sure ruling having district court’s been based grasped, plaintiffs prior have based on the implicit balancing pursuant on an to Rule exchange, that memoranda and this short Eufrasio, 403. See United States prove proposing the harass- — (3d Cir.), denied, U.S.-, 553, 572 cert. purpose of show- ment at (1991). 116 L.Ed.2d 280 S.Ct. ing if pretext. But even it is assumed that regard, I note that district court did this plaintiffs proof oral offer of was suffi- say “relitigate it did not want to convey point, cient to the fact remains 358), (App. and I matter” inter judge categorically that the trial did not bar pret essentially accepting this reference as Eddystone. proof of the On the events argument in favor of under exclusion contrary, judge expressly stated that his interpretation Rule 403. If this of the dis rulings on the motion in limine were “made reasoning generous, it trict court’s is too prejudice plaintiffs] to the [the without re- generous my reading no more than newing if at a later time it out turn[ed] them plaintiffs explanation of the relevance of the Thus, testimony might appropri- from the that it be evidence. based on these App. pretrial 3. See stated that his order was made without 405-06. prejudice plaintiff's attempt to the to admit the by majority 4. The two cases discussed —Estes Second, point. evidence at a later in Estes Center, Hennepin and Hawkins v. F.2d Technical Hawkins, case, unlike this introduction of the denied, (8th Cir.) cert. purpose question sought evidence in for the (1990), —are proving pattern of discrimination. readily distinguishable the current case on First, important grounds. at least two those 15; pretrial categorically pro argument cases concern orders Appellant's 5. See Br. at oral Tr. at hibiting the admission of certain judge expressly whereas in this case the trial

199 record, 249, (1990) (citation of the interpretations it seems to me 112 L.Ed.2d 207 omit- ted). following: that the issue before us is the did district the court commit reversible error Applying an standard, abuse-of-discretion concluding Eddystone that the evidence’s I think that the trial judge’s ruling in this probative purpose value for the proving of case must be recognize sustained. I that pretext substantially outweighed was by plaintiff evidence that the subjected the was to danger racial prejudice, racially of unfair harassment or a confusion of the hostile atmo- Eddystone issues, sphere probative has some misleading jury, by the consid- val- purpose ue for the showing that PECO’s delay of undue erations and waste of time? plaintiffs poor reliance on evaluation while at See Fed.R.Evid. 403. therefore turn to this Eddystone pretextual. was plaintiff If the question. Eddystone, was harassed at that harassment might have caused or II. poor contributed to his performance rating. Thus, evidence of According precedents, to our “[a] trial Eddystone harassment at is relevant to show judge given Very is substantial discretion’ plaintiffs performance rating for striking when a Rule 403 balance.” Eufra period was plaintiffs inaccurate. The sio, F.2d at A judge’s ruling 935 poor rating was cited as a may under Rule 403 be if only reversed reason for PECO’s plaintiffs denial of the judge committed an abuse of discretion. Id. requests promotion positions as a La- Indeed, we have held that judge’s “a trial Specialist bor Relations engineer- and to an decision to admit or exclude evidence under ing position. If the officials who made the may Fed.R.Evid. 403 not be reversed unless promotions decisions these knew it ‘arbitrary is Bhaya and irrational.’” v. or believed that evaluation Westinghouse 184, Corp., Elec. 922 F.2d 187 been had affected the harassment and was (3d Cir.1990), denied, 1217, cert. 501 U.S. 111 inaccurate, therefore that would tend to show 2827, (1991), S.Ct. 115 L.Ed.2d 997 (quoting that their rating reliance on pretex- this DePeri, 963, United States v. 778 F.2d 973- Consequently, proof tual. plaintiffs of the (3d Cir.1985), denied, 74 1110, cert. 475 U.S. harassment at part could form 1518, 106 89 S.Ct. L.Ed.2d 916 and 476 U.S. reasoning a chain of leading to the inference 1159, 2277, (1986)); 106 S.Ct. 90 L.Ed.2d 720 that the PECO decisionmakers discriminated Friedland, see United also States v. 660 F.2d or retaliated plaintiff. (3d 919, Cir.1981), denied, 929 cert. 456 U.S. But while the evidence of harassment at 989, 2268, (1982); 102 S.Ct. plaintiff precluded Long, United States v. 767 introducing thus probative has some Cir.), denied, cert. value, probative First, value is limited. (1978). L.Ed.2d We have also ob respect with to the positions as a Labor served: Representative, Relations rely PECO did not judicial heavily plaintiffs If desirable, self-restraint ever is Ed- dystone explanation as an is for its analysis when a Rule 403 decisions. of a trial court responsible The official for filling posi- these appellate reviewed an tribunal. tions, Lange, James listed numerous other 767; States Long, United 574 F.2d at see why reasons he did not plaintiff. choose the Eufrasio, also 935 F.2d at 572. As the Sev- Among things, Lange other mentioned: his aptly enth Circuit quite wrote in a case simi- belief that the was unable “to func- lar one: change tion as a agent” and was “wedded to balancing probative prej- value and (9/25/92 past way doing things” Tr. at effect, udicial comparisons like other of 154-56); plaintiffs his concern about intangibles, requires an judg- exercise of “ability objective to be in the area of labor ment rather Only than a computation. (id. 163); relations” his view that an extreme appellate judges case are com- (id. player” was not a “team at 163- petent second-guess judgment 64); policy giving preference person spot, judge. the trial candidates from department within the same (7th Mulcahy, Sims v. (9/29/92 109); plaintiffs Tr. at failure to Cir.), denied, cert. (id. requirements 113); U.S. S.Ct. meet educational *12 200 proof of the al- permitting that plaintiff related to contention the concerns about and Eddystone might confidentiality, credibility, leged [and] discrimination “issues like Moreover, substan- mini-trial and caused at 168. have led to a Id. trustworthiness.” initially put in been it Lange prejudice. stated that he had As PECO

while tial unfair performance plaintiffs the about concerned brief: that, when he heard Eddystone, he added prove the permitted Had Glass been reason for explanation of the plaintiffs the his contends influenced which he events expla- during period, this rating poor his Eddystone, performance evaluations con- some of the “helped alleviate nation entitled to offer would have been PECO Second, the Tr. at 158. cerns.” 9/25/92 (1) did not occur as proof that the events bring evidence able to out some plaintiff was (2) contended; perfor- and that his Eddystone. attorney His harassment at of nega- would have been mance evaluation plaintiff had told testimony that the elicited occurred. or not such events tive whether harass- a “victim of Lange that he had been on two have been trials The results would “experience[d] problems.” and had ment” trial on the occurrence collateral issues —a Third, me that the it seems to Id. at 158-59. harassment, a and vel non of incidents harassment at value of evidence of probative effect, any, concerning the if of such substantially Eddystone undermined was during events on Glass’s unwillingness argue that the plaintiffs the Together, these two trials-with- and 1985. responsible who were decisionmakers PECO scope in equal have been in-a-trial would promotions at issue be- denying him the for was actual- complexity to the trial that evaluation lieved ly held. ap- previously explained, inaccurate. As (footnotes omitted). at 14 Appellee’s Br. that evidence of harassment pears to me length if PECO’s estimate of Even primarily, if not exclu- is relevant exaggerated, complexity of “minitrial” is this reasoning that sively, part of a chain of that these considerations were I still think chain, includes, link in the the conclu- as one in weighed appreciably favor legitimate and that PECO officials cited sion Furthermore, introduction of of exclusion. a reason for their decisions evaluation as Eddystone might of harassment at evidence actually though they did not believe even jury that these have led the to believe well was an accurate reflec- that this evaluation pattern of discrimina- part events were plaintiffs abilities. Plaintiffs tion of the and, since even tion PECO however, strenuously, argued counsel has (see supra, at such a claim did not advance prove not want that she did 4), of this had a the introduction they gave decisionmakers lied when PECO causing prejudice. unfair potential for plaintiff.6 promoting for not their reasons Instead, theory short, clearly that these plaintiffs there are factors on both guilty balance, of “unconscious forms of officials were and reasonable of the Rule 403 sides question of pretext.”7 Putting aside the to whether that balance minds can differ as whether, law, plaintiff in a as a matter of in favor of admission or exclusion tilts may prevail case based disparate treatment My colleagues obvious- evidence. discrimination,8 of “unconscious” on evidence ly that the balance tilts favor believe plaintiffs reliance on it seems to me that the function, however, is not admission. Our theory substantially di- this unconventional factors ourselves. balance the Rule 403 probative value of the evidence minished Rather, substantial supposed we are to afford Eddystone. of harassment by the trial to the balance struck deference and, done, rulings in this balance, judge if that is of the Rule 403 On the other side rulings did not must be sustained. His to PECO’s case I think that there is substance stated, 8. Compare my International Brotherhood Team "[M]endacity,” she "was not States, proof. that the defense witnesses n. I think sters v. United telling they [gave truth when case were n. S.Ct. (1977), 1854-55 Argument Tr. decisions].” reasons for their Oral Benjamin Oppenheimer, Neg with David at 12. Discrimination, ligent 141 U.Pa.L.Rev. (1993). 7. Id. at 53. They hearing, majority of his discretion. and a judges constitute abuses the circuit certainly arbitrary regular most were not or irration- of the circuit in having active service Bhaya, banc, at 187. And this case is rehearing by al. not voted for the court surely not one of those “extreme petition case[s]” rehearing is denied. judges may properly appellate “sec-

which *13 judgment” judge. ond-guess the of the trial GREENBERG, Judges HUTCHINSON, Sims, F.2d at 531.9 902 granted and rehearing. ALITO would have Moreover, judge’s rulings even if the trial discretion,

constituted abuses of his those

rulings respect harmless with to the were

positions Representative. as Labor Relations (see pages supra), Lange,

As noted 199-200 discussing positions, provided long those Glass, selecting list of other reasons for not America, Appellee, UNITED STATES of Lange stated effect that he did not heavily rely Eddy- on v. Thus, stone. even if Glass had succeeded in Jay MUMMERT, Appellant. H. showing Lange’s relatively minor reli pre- ance on the evaluation was No. 94-7119. textual, “highly probable” jury’s it is that the Appeals, United States Court of positions verdict as Labor Third Circuit. Representative Relations would not have Christos, Lippay v. been affected. See 26, Argued July 1994. (3d 1490, 1500 Cir.1993); McQueeney F.2d Sept. Decided 1994. Co., Wilmington Trust Cir.1985). Accordingly, any erroneous evi

dentiary rulings made the district court respect posi

were harmless with to those

tions. reasons,

For these I dissent. BECKER, STAPLETON,

Before:

MANSMANN, GREENBERG,

HUTCHINSON, SCIRICA, COWEN,

NYGAARD, ALITO, ROTH, LEWIS, and

MCKEE, Judges. Circuit

SUR PETITION FOR REHEARING

IN BANC

Oct. Rehearing appel- Petition filed

lee in having the above-entitled case been judges participated

submitted to the who

the decision of this Court to all the other judges regu-

available circuit of the circuit in service, judge

lar active and no who con- having

curred in the decision asked for re- view, concluding rely In addition to that the district court the district court did not because 611(b) abused its discretion under Fed.R.Evid. excluding Rule issue majority rulings states that the district court’s 611(b) prevent and because Rule does not reason, viz., were erroneous for an additional judge excluding Rule evidence under they improperly scope because limited the during See States v. cross-examination. United 611(b). cross-examination under Fed.R.Evid. Beechum, (5th Cir.1978). flawed, Maj. analysis my at 193-94. This