IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

___________________________________

:

WILLIAM HOUSTON, : CIVIL ACTION

:

Plaintiff, :

:

 v. : No. 03-3494

:

EASTON AREA SCHOOL DISTRICT, :

:

Defendant. :

___________________________________:

HENRY S. PERKIN MARCH 2, 2010

UNITED STATES MAGISTRATE JUDGE

MEMORANDUM

Presently before the Court following the remand of this

case from the United States Court of Appeals for the Third

Circuit is Defendant’s Motion in Limine seeking exclusion of

evidence relating to “historical inequities,” a “secret code” and

evidence regarding Joseph Piazza, a former Superintendent of the

Defendant, Easton Area School District. For the reasons that

follow, Defendant’s Motion will be granted in part and denied in

part.

I. BACKGROUND.

A one-day bench trial was held on October 15, 2008. In

a February 24, 2009 Memorandum Opinion and Verdict, this Court

entered judgment for Defendant. On December 8, 2009, the United

States Court of Appeals for the Third Circuit, in a nonprecedential opinion, vacated the judgment and remanded this case

for a new trial. On December 23, 2009, Mr. Houston’s Motion to
2

Vacate Waiver of Jury Trial was granted. On December 24, 2009,

in accordance with the December 8, 2009 decision by the United

States Court of Appeals for the Third Circuit remanding this case

for a new trial and for this Court to “engage in a factual

analysis of the relevant factors to determine whether any of the

excluded comparators is similarly situated to [Plaintiff],” the

parties were ordered to provide briefs regarding this issue not

later than January 8, 2010. On January 7, 2010, the parties

filed a Joint Motion for Enlargement of Time to File Briefs

Regarding Appropriate Comparators to Plaintiff. The Motion was

granted nunc pro tunc on January 11, 2010, extending the deadline

for filing briefs to January 22, 2010. 

On February 9, 2010, this Court vacated an October 3,

2005 order which had partially granted Defendant’s prior motion

in limine and an October 8, 2008 order denying Plaintiff’s motion

for reconsideration of the October 3, 2005 order. Defendant’s

previous motion in limine was similar to the motion currently at

issue. On February 15, 2010, Defendant filed the instant Motion

in Limine. On February 18, 2010, Plaintiff filed a Response to

the Motion, which Plaintiff supplemented in a February 22, 2010

letter, and Defendant submitted a letter Reply dated February 26,

2010.
3

II. STANDARD.

Defendant moves to preclude Plaintiff from introducing

evidence on the grounds that it is not relevant or unfairly

prejudicial. “Relevant evidence” according to Federal Rule of

Evidence 401 is defined as “evidence having any tendency to make

the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.” F.R.E. 401. An exception to

the rule that all relevant evidence is generally admissible is

Federal Rule of Evidence 403, which provides that “[a]lthough

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, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” F.R.E. 403. Each of

Defendant’s arguments is hereafter examined.

III. DISCUSSION.

On December 8, 2009, the United States Court of Appeals

for the Third Circuit, in a non-precedential opinion, vacated the

judgment of this Court in favor of Defendant following a non-jury

trial and remanded this case for a new trial. The Court stated:

The District Court granted in part the School

District’s motion in limine, excluding

evidence of the retirement packages of three

of the four alleged comparators on the basis

that they were not similarly situated to

Houston because their positions were not
4

covered under a Pennsylvania statute commonly

known as Act 93, 24 P.S. § 11-1164. Houston

challenges the court’s exclusion of

comparator evidence from the trial. Because

we find Act 93 status should not have been

determinative as to whether the employees

were similarly situated to Houston, we will

vacate the judgment of the District Court.

Houston v. Easton Area Sch. Dist., slip op., p. 2 (3d Cir. Dec.

8, 2009). On February 9, 2010, this Court, in accordance with

the Third Circuit’s directive for a new trial, vacated its

October 3, 2005 order partially granting Defendant’s motion in

limine and this Court’s October 8, 2008 order denying Plaintiff’s

motion to reconsider the October 3, 2005 order. In so doing, it

was the sole intention of this Court to comply with the Third

Circuit’s directive.

Notwithstanding the Third Circuit’s decision remanding

this case for a new trial and this Court’s February 9, 2010

Order, Defendant moves to exclude evidence, testimony and

argument regarding an alleged “secret code,” “historical

inequities” and the retirement of Joseph Piazza on the basis that

the 2003 exclusion of evidence is the law of the case. Defendant

characterizes the Third Circuit decision as leaving intact the

exclusion of historical evidence, exclusion of a “secret code”

and exclusion of Piazza as a comparator, therefore Defendant

maintains that exclusion of this evidence is the law of the case. 

In reviewing this argument, we return to the Third

Circuit decision. On appeal, Plaintiff did not challenge this
5

Court’s exclusion of historical inequities evidence. Id., pp. 5-

6 n.6. Similarly, the Third Circuit noted that, on appeal,

Plaintiff appeared to concede that Piazza, as Superintendent, was

not an appropriate comparator. Id., p. 10 n.7. Because

Defendant again moves in the instant Motion for exclusion of

historical inequity evidence and for exclusion of Piazza as a

comparator, we will hereafter examine these issues.

A. Comparator Evidence.

On February 9, 2010, this Court, in accordance with the

Third Circuit’s directive for a new trial, vacated its October 3,

2005 order partially granting Defendant’s motion in limine and

this Court’s October 8, 2008 order denying Plaintiff’s motion to

reconsider the October 3, 2005 order. The February 9, 2010 Order

effectively cancelled out this Court’s prior rulings excluding

Piazza, Hettel and Ciccarelli as Plaintiff’s comparators. 

In evaluating whether two employees are directly

comparable, the court must look at all relevant factors,

including whether the employees “(I) held the same job

description, (ii) were subject to the same standards, (iii) were

subordinate to the same supervisor, (iv) had comparable

experience, education, and other qualifications provided the

employer considered these latter factors in making the personnel

decision.” Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520,m

522 (7 Cir. 2003). Thus, we must review whether Plaintiff’s th
This analysis is performed pursuant to the Third Circuit’s 1

directive that “[o]n remand, the District Court should engage in a factual

analysis of the relevant factors to determine whether any of the excluded

comparators is similarly situated to Houston.” Houston v. Easton Area Sch.

Dist., slip op., p. 11 (3d Cir. Dec. 8, 2009). 

6

alleged comparators, Karl Hettel, Louis Ciccarelli, Roger Wrazien

and Joseph Piazza, are appropriate comparators to Plaintiff.1

 1. Joseph Piazza.

Defendant specifically moves to preclude evidence,

testimony and/or argument regarding the retirement of Joseph

Piazza, one of the former Superintendents of Defendant, on the

basis that he is not similarly situated to Plaintiff and cannot

be considered a comparator to Plaintiff, therefore any evidence

regarding his retirement package is not relevant in accordance

with Federal Rule of Evidence 401. In its remand decision, the

Third Circuit stated:

[w]e note that Houston appears to concede

that Piazza, as Superintendent, is not an

appropriate comparator. In his Reply Brief,

Houston contends that he is similarly

situated to all the cabinet members

(Cicarelli, Hettel and Wrazien) because all

the cabinet members were subject to the same

standards in employment and they were all

responsible for advising the superintendent. 

Piazza was not a cabinet member - as

Superintendent, he supervised the cabinet

members.

Houston v. Easton Area Sch. Dist., Slip Op., p. 10 n.7 (3d Cir.

Dec. 8, 2009). Plaintiff’s brief regarding possible comparators

is silent regarding Plaintiff’s intention to offer evidence of

Piazza’s retirement. During a February 16, 2010 telephone
7

conference with this Court and Defendant’s counsel, and at the

February 19, 2010 final pretrial conference, Plaintiff’s counsel

conceded that Piazza is not a comparator to Plaintiff. 

Although Plaintiff concedes that Piazza is not a

comparator to Plaintiff, Plaintiff’s counsel intends to introduce

evidence surrounding Piazza’s retirement, presumably

correspondence Piazza submitted in conjunction with his

retirement. During the February 16, 2010 telephone conference,

Defendant’s counsel stated that the Defendant would not object to

introduction of that letter. This verbal statement by counsel

was in direct opposition to the instant Motion to preclude

documents, testimony, evidence and/or argument at trial regarding

Mr. Piazza’s retirement. 

Mindful of Federal Rule of Evidence 403, the probative

value of correspondence regarding Piazza’s retirement is not

“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.” F.R.E. 403. This information may not only assist the

Plaintiff in his attempts to show that he was treated differently

by the Defendant, it may also assist the Defendant in presenting

a legitimate, non-discriminatory reason why Plaintiff was treated

differently than other Caucasian employees.
8

2. Karl Hettel, Louis Ciccarelli and Roger Wrazien.

Hettel and Ciccarelli were promised payment for 100% of

their unused sick days at his retirement. Hettel, as Defendant’s

Director of Personnel before he retired on April 8, 1999, and

Ciccarelli, who was Defendant’s Business Manager before he

retired in 1999, were excluded from Act 93. Act 93 is the

section of the Pennsylvania Public School Code that governs

compensation plans. Wrazien, who was Director of Elementary

Education, and Plaintiff, who was Director of Support Services,

were both Act 93 employees, subject to the same compensation

plans. Defendant argues that Hettel and Ciccarelli were not

similarly situated to Plaintiff because they were not Act 93

employees. 

Although they did not hold the same job descriptions, 

Hettel, Ciccarelli, Plaintiff and Wrazien were cabinet level

employees or high level central office administrators who

reported to or were subordinate to the Superintendent. All of

these men except Hettel were labeled Directors of various

departments or divisions, Hettel was arguably the director of the

Defendant’s business unit. It is unclear if these individuals

were subject to the same standards. Wrazien had thirty-eight

years of service to Defendant, Plaintiff had thirty-six years of

service to Defendant, Hettel had thirty-four and one-half years

of service to Defendant, and Ciccarelli had twenty-one and one-
9

half years of service to Defendant. Ciccarelli did not hold a

four-year college degree, but both Hettel and Plaintiff held

Master’s degrees, and Wrazien had at least a college degree

because he was a long-time teacher with Defendant. Hettel,

Wrazien and Ciccarelli all retired within one year after

Plaintiff retired.

Based on the above, it appears that Hettel, Wrazien and 

Ciccarelli are appropriate comparators to Plaintiff, and

information related to these individuals and their retirements

will be submitted to the jury. 

B. Secret Code Language.

Defendant next moves to exclude evidence of an alleged

“secret code” in various employees’ retirement letters. 

Defendant notes that out of Piazza, Hettel, Ciccarelli and

Wrazien, the four Caucasian males Plaintiff alleges were treated

more favorably than him, only Wrazien and Ciccarelli used alleged

“secret code” language in their retirement letter. Defendant

notes that in Wrazien’s letter, he requests “medical benefits”

when he states “I respectfully request that I be extended the

same courtesies that have been provided to other Central Office

Administrators upon retirement until both my wife and I are

Medicare eligible.” 2/26/99 Ltr. from Wrazien to Meck.

Because evidence of the retirements of Ciccarelli and

Wrazien will not be excluded on the basis that they are
10

comparators to Plaintiff, both retirement letters of Ciccarelli

and Wrazien are admissible and may be submitted to the jury for

their consideration. Moreover, these letters may be relevant

under Federal Rule of Evidence 401 to the jury’s determination of

whether Defendant discriminated against Plaintiff with respect to

payment of Plaintiff’s accrued sick days at his retirement. 

C. Historical Inequities.

Finally, Defendant moves to exclude evidence, argument

and testimony regarding “historical inequities” relating to

alleged racial discrimination that Plaintiff claims took place

during Plaintiff’s thirty years working at the Defendant School

District. According to Defendant, the statute of limitations on

these allegedly discriminatory acts bars documents, evidence

and/or argument at trial. 

In his Complaint, Plaintiff averred that he filed a

charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”) within 180 days of the unfair employment

practice, a Notification of Right to Sue dated April 28, 2003 was

received from the EEOC on or about April 30, 2003, and Plaintiff

filed this Complaint within 90 days of receipt of the

Notification of the Right to Sue. Compl., p. 1 ¶4. The EEOC

charge of discrimination was never available to this Court,

therefore we refer to the Complaint to reveal Plaintiff’s claims

before this Court.
11

Plaintiff made the following claims in the Complaint: 

13. On August 14, 2001, Plaintiff learned for

the first time that Defendant intentionally

purposefully implemented a secret,

undisclosed racially discriminatory policy

for Cabinet level management upon their

retirement, namely, white Cabinet members

received One Hundred (100%) percent of

accrued vacation days at retirement and One

Hundred (100%) percent of accrued sick days,

but African American Cabinet members only

received Twenty-Five (25%) percent of accrued

sick days.

14. On August 14, 2001, Plaintiff learned and

discovered for the first time about the

discriminatory retirement policy, namely,

that upon retirement, Defendant intentionally

discriminatorily paid white Cabinet level

management One Hundred (100%) percent of

accrued sick days and paid African American

Cabinet level management Twenty-Five (25%)

percent of accrued sick days, and Defendant

hid the racially discriminating policy from

Plaintiff and the public until Plaintiff

learned it on August 14, 2001.

15. As a direct and proximate result of

Defendant’s invidiously discriminatory

actions, as aforesaid, Plaintiff has suffered

damages due to loss of past income, benefits

and commissions, and/or earnings in excess of

Seventy-Five Thousand ($75,000.00) Dollars.

16. As a direct and proximate result of

Defendant’s invidiously discriminatory

actions, as aforesaid, Plaintiff suffered

mental anxiety, anguish, distress,

humiliation, and sleeplessness which damages

exceed Seventy-Five Thousand ($75,000.00)

Dollars.

Compl., pp. 2-3 ¶¶ 13-16. Plaintiff alleged that on his

retirement, he was subjected to disparate treatment in his

retirement benefits on the basis of his race. During the
On appeal, Plaintiff did not challenge this Court’s decision 2

excluding “historical inequity” evidence. Houston v. Easton Area Sch. Dist.,

slip op., pp. 5-6 n.6 (3d Cir. Dec. 8, 2009). 

12

discovery period, the depositions of Constance Mazza, Alfredean

Jones, and Plaintiff were taken. 

Plaintiff intends to submit “historical evidence” that

there existed a pattern or practice of disparity in the payment

of salaries to assistant principals and principals since the

1970s. Defendant seeks to exclude this evidence as time-barred.2

As previously noted in this Court’s decision on

Defendant’s first Motion in Limine, an employment discrimination

charge “shall be filed by or on behalf of the person aggrieved

within three hundred (300) days after the alleged unlawful

employment practice occurred” in a state such as Pennsylvania

with an agency analogous to the EEOC. See 42 U.S.C. §

2000e-5(f)(1). Otherwise, a plaintiff must file the charge of

unlawful discrimination within one hundred eighty (180) days of

the alleged act of discrimination. In Robinson v. Dalton, 107

F.3d 1018, 1021 (3d Cir. 1997), the United States Court of

Appeals for the Third Circuit held that the three hundred day and

one hundred eighty day time periods are akin to a statute of

limitations. Thus, if an aggrieved party fails to file a timely

complaint, he is precluded from judicial remedy.

Plaintiff’s discrimination claim in his Complaint is

based upon discrimination that occurred at his retirement. 
13

Plaintiff did not amend his Complaint during the course of this

litigation to include a pay disparity claim. Pursuant to Federal

Rule of Evidence 401, this evidence may be relevant with respect

to show Defendant’s intent. However, the probative value of this

historical inequity evidence is “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” because it involves

claims that were not pled by Plaintiff in his Complaint. See

F.R.E. 403. 

Assuming, arguendo, that Plaintiff presents this

historical inequity evidence as a continuing violation theory. 

In order for this information to escape the bar of the statute of

limitations, Plaintiff would be required to demonstrate that the

Defendant’s conduct is more than the occurrence of isolated or

sporadic acts. Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir.

2001). The three factors required for a continuing violation

theory are: (1) subject matter -– whether the violations

constitute the same type of [harm], tending to connect them in a

continuing violation; (2) frequency -- whether the acts are

recurring or more in the nature of isolated incidents; and (3)

degree of permanence – whether the act had a degree of permanence

which should trigger the plaintiff’s awareness of and duty to

assert his/her rights and whether the consequences of the act
14

would continue even in the absence of a continuing intent to

discriminate. Id. Plaintiff’s accusations that Defendant

discriminated against him with respect to pay for over twenty

years since the 1970s are vague and non-specific as to time and

are remote from Plaintiff’s 1998 retirement. Despite the alleged

degree of permanence of this discriminatory pay disparity, the

alleged disparity should have triggered Plaintiff’s awareness of

his need to timely assert his rights. Once Mr. Houston failed to

institute suit within the applicable statutory period for

inadequate pay, he lost his ability to resurrect these claims by

characterizing them as a continuing violation. Accordingly,

Defendant’s Motion in Limine with respect to evidence regarding

“historical inequities” will be granted and historical inequity

evidence will be excluded from the purview of the jury. 

IV. CONCLUSION.

Defendant’s Motion in Limine is denied with respect to

exclusion of evidence surrounding the retirements of Piazza,

Hettel, Wrazien and Ciccarelli and this evidence. The Motion is

granted with respect to historical inequity evidence. 

A separate Order follows consistent with this

Memorandum.
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

___________________________________

:

WILLIAM HOUSTON, : CIVIL ACTION

:

Plaintiff, :

:

 v. : No. 03-3494

:

EASTON AREA SCHOOL DISTRICT, :

:

Defendant. :

___________________________________:

ORDER

AND NOW, this 2nd day of March, 2010, upon

consideration of the Motion in Limine (Document No. 109) filed on

February 15, 2010, it is hereby ORDERED that the Motion is

GRANTED part and DENIED in part consistent with the accompanying

Memorandum.

BY THE COURT:

/s/ Henry S. Perkin 

HENRY S. PERKIN

UNITED STATES MAGISTRATE JUDGE