NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 12

- 2960

_____________ STEPHEN D. BARTOS,

Appellant

v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PRO TECTION; KATHLEEN A. MCGINTY, in her individual and official capacity; PATRICK MCDONNELL, in his individual and official capacity; KENNETH R. REISINGER, in his individual and official capacity

_______________ On Appeal from the United States District Court for the Middle District of Pennsylvania District Court No. 1

- 08

- cv - 00366 District Judge: The Honorable Yvette Kane

_______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

May 14, 2013 Before: SMITH, FISHER, and CHAGARES, Circuit Judges

(Filed: May 31, 2013 )

_____________________ OPINION

_____________________2

SMITH, Circuit Judge. Stephen D. Bartos worked for the Commonwealth of Pennsylvania in the Department of Environmental Protect ion (DEP) from 1997 until December 11, 2007, when his employment was terminated. Shortly thereafter, Bartos filed a civil complaint in the United States District Court for the Middle District of Pennsylvania against the Commonwealth, DEP, DEP Secretary Ka thleen McGinty, DEP Deputy Secretary of Administration Patrick McDonnell, and Kenneth R. Reisinger, Bartos’s supervisor (collectively, the DEP defendants)

. After the District Court granted partial summary judgment in favor of the DEP defendants, the only claims remaining were a civil rights claim alleging retaliatory termination in violation o f the First Amendment , 42 U.S.C. § 1983, and a claim under Pennsylvania’s Whistleblower Law, 43 P a . S tat . § 1423. Both claims asserted that Bartos had been discharge d because he had submitted a report in March of 2007 that exposed the improper use of grant money for recycling programs

. Thereafter, t he District Court ruled on sev eral motions in limine filed by the parties , and the case proceeded to trial before a jury. The jury found in favor of the DEP defendants on both of Bartos’s claims. This timely appeal followed. 1
Bartos contends that the District Court erred with respect to three evidentiary rulings. In addition, Bartos submits that the Court committed plai n error when it failed to issue a limiting instruction in charging the jury.

1 The District Court exercised jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. We exercise final order jurisdiction under 28 U.S.C. § 1291.3

We review the District Court’s evidentiary rulings under Federal Rules of Evidence 401 and 403 for an abuse of discretion. Sprint/United M gmt. Co. v. Mendelsohn , 552 U.S. 379, 3 84 (2008). Two of Bartos’s co

- workers perjured themselves during their depositions in this action. The DEP defendants moved to preclude the admission of their perjury. The District Court granted their motion. Bartos contends this

was error. W e conclud e that the District Court did not abuse its discretion in finding that the danger of unfair prejudice to the DEP defendants outweighed the evidence’s probative value. Nor do we find any abuse of discretion by the District Court in excluding evidence relat ing to the discipline of two other DEP employees. The record confirms that neither of these employees was similarly situated to Bartos. Reisinger did not superv ise either of these employees. Neither employee’s behavior was the same as Bartos’s conduct. Moreover, the discipline of these other employees was a result of applying different policies , which had been in effect years before Bartos’s discharge

. Bartos also challenges the District Court’s decision to a dmit out

- of

- court statements by several emp loyees. According to Bartos, these statements were hearsay under Federal Rule of Evidence 801(c) and inadmissible under R ule 802. The District Court explained at sidebar that the statements were not hearsay because they were not offered to prove th e trut h of the matters asserted. Instead, the statements were
admissible , the Court concluded , because they were offered to establish the information on which management relied in disciplining and terminating Bartos’s employment. “Whether testimony is hearsay is a question of law over which we exercise plenary review.” United States v. Vosburgh , 602 F.3d 512, 538 (3d Cir. 2010). Provided the4

District Court’s ruling was based on a permissible interpretation, we review its decision

to admit these statements for an abuse of discretion. United States v. Saada , 212 F.3d 210, 220 (3d Cir. 2000). We conclude that the Distri ct Court appropriately concluded that the statements did not constitute hearsay. Accordingly, the Court did not err by allowing the introductio n of these statements

. Finally, we consider Bartos’s contention that the District Court erred by failing to provide either a contemporaneous limiting instruction or a closing instruction to the jury regarding the extrajudicial statements. Bartos acknowl edges that he did not request a limiting instruction regarding these statements . Accordingly, we review for plain error , Fed. R. Civ. P. 51 (d)(2) , and grant relief “sparingly and only to correct a ‘fundamental’ error that would ‘result in manifest injusti ce.’” Simmons v. City of Phila

. , 947 F.2d 1042, 1078 (3d Cir. 1991) (quoting Bowley v. Stotler & Co. , 751 F.2d 641, 652 (3d Cir. 1985)). No manifest injustice resulted here because there was no plain error. For the reasons set forth above, we will affi rm the judgment of the District Court

.