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 OCTOBER 25, 2010

United States Magistrate Judge

MEMORANDUM

On March 8, 2010, after a three-day jury trial, civil judgment upon a defense

verdict was entered in favor of Defendant, the Easton Area School District against the Plaintiff,

William Houston. J., Document No. 128. On March 11, 2010, Plaintiff filed a motion for a new

trial pursuant to Federal Rule of Civil Procedure 59, alleging errors of law. For the following

reasons, Mr. Houston’s Motion is denied.

I. BACKGROUND.

Mr. Houston retired from his position with the Defendant Easton Area School

District in July 1999. On June 5, 2003, he brought suit against the Defendant under Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17, alleging the School

District discriminated against him based on his African American race when he received

payment for only 25% of the value of his unused sick days upon his retirement, while four

comparable white employees received payment for 100% of their unused sick days upon their

respective retirements. The case was originally assigned to the Honorable James Knoll Gardner,
and on February 17, 2004, following the consent of the parties, Judge Gardner ordered the

referral of the case to United States Magistrate Judge Arnold C. Rapoport for all further

proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of

Civil Procedure 73. Judge Rapoport denied Defendant’s motion for summary judgment on

November 4, 2004, but on October 3, 2005, granted in part Defendant’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 Mr. Houston because their positions were not

covered under a Pennsylvania statute commonly referred to as Act 93, 24 P.S. § 11-1164,

excluding evidence of historical inequities and excluding secret code language in various

employees’ retirement letters. See Document Nos. 30, 38. Judge Rapoport then placed this case

in suspense on January 24, 2006, pending the conclusion of Wrazien v. Easton Area School

District, a case pending in the Court of Common Pleas of Northampton County. On March 11, 1

2008, following notification by counsel that the state court case had concluded, the case was

transferred out of suspense and referred to arbitration. 

On July 24, 2008, an arbitration award was entered, and on July 29, 2008, Mr.

Houston filed a request for a trial de novo. The parties informally consented to a bench trial

during a telephone conference with Magistrate Judge Rapoport, and on July 31, 2008, Chief

Judge Harvey J. Bartle, III, reassigned the case to the undersigned.

On August 6, 2008, Mr. Houston filed a motion for reconsideration of Judge

Wrazien v. Easton Area Sch. Dist., Northampton County, No. C-48-CV-2001-7915. The decision

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of the Honorable Anthony S. Beltrami, Judge of the Court of Common Pleas of Northampton County was affirmed

by the Commonwealth Court of Pennsylvania at 926 A.2d 585 (Pa. Cmwlth. June 18, 2007)(No. 1891CD2006),

appeal denied, 937 A.2d 448 (Pa. Dec. 4, 2007)(Table, No. 598 MAL 2007).

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Rapoport’s decision on the motion in limine. On October 8, 2008, the motion for reconsideration

was denied. 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 the Defendant. See

Document No. 81. 

Mr. Houston filed a timely appeal challenging the decision of the motion in limine

excluding comparator evidence from the bench trial. On appeal, Mr. Houston did not challenge

the exclusion of the historical inequities evidence. See Third Cir. Op., pp. 5-6 n.6. On

December 8, 2009, the United States Court of Appeals for the Third Circuit, in a nonprecedential opinion, vacated the judgment in favor of Defendant and remanded this case for a

new trial. The Court stated that:

[Mr.] 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 [Mr.] Houston, we will vacate the judgment of

the District Court.

. . . 

We find that under the facts of this case, Act 93 status should not

have been the dispositive factor for purposes of determining

whether [Mr.] Houston was similarly situated to other School

District administrators. 

. . . 

The similarly situated analysis is for the District Court to determine

in the first instance. See Mendelsohn, 128 S.Ct. at 1146

(“[Questions of relevance and prejudice are for the District Court

to determine in the first instance.” (citing U.S. v. Abel, 469 U.S. 45,

54 (1984))). But it appears that Ciccarelli and Hettel may be

similarly situated to [Mr.] Houston. . . . . Evidence of additional

similarly situated employees outside of [Mr.] Houston’s protected

class - each of whom received or was promised 100% of his sick

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pay upon retirement - likely would have changed the entire

complexion of the trial.

Accordingly, we will vacate the judgment in favor of the

School District and remand for a new trial. On 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 [Mr.] Houston.fn8

 The District Court also excluded evidence of alleged “secret

fn8

code” language used in Ciccarelli’s retirement letter because

evidence of his retirement was excluded as not comparable to

Houston. If the court determines on remand that Ciccarelli is an

appropriate comparator, his retirement letter should be admissible

in accordance with the court’s ruling that similar language in

Wrazien’s letter was admissible.

Houston v. Easton Area Sch. Dist., slip op., pp. 2, 9, 10, 11 (3d Cir. Dec. 8, 2009). 

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Following remand, Mr. Houston moved to vacate waiver of his jury trial on

December 11, 2009 and the motion was granted on December 24, 2009. Defendant filed a

motion in limine on February 15, 2010. On February 19, 2010, a final pretrial conference was

held, and supplemental briefing on the historical inequities issue was submitted on February 22

and 26, 2010. See Document Nos. 120, 121. On March 2, 2010, Defendant’s motion in limine

was denied with respect to exclusion of evidence surrounding the retirements of Piazza, Hettel,

Wrazien and Ciccarelli, but was granted with respect to historical inequity evidence. See

The Third Circuit decision did not acknowledge my footnote in the February 24, 2009

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Memorandum Opinion wherein I stated the following:

Although I affirmed Judge Rapoport’s order deciding the Defendant’s motion in limine, the parties

agreed at trial that the entire transcript of the proceedings in Roger J. Wrazien v. Easton Area

School District (“EASD”), Northampton County, No. C-48-CV-2001-7915, was to be introduced

as a joint exhibit and was evidence in this case. The Wrazien Transcript contained testimony

regarding the retirements of Messrs. Ciccarelli, Hettel and Wrazien, including language in their

retirement letters notifying EASD of their decision to retire. As a result, I have considered that

testimony and evidence in this case notwithstanding Judge Rapoport’s order and my denial of

reconsideration.

Document No. 81, Mem. Op. And Verdict, 2/24/09, p. 3 n.3.

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Document Nos. 117, 118. The historical inequity evidence included deposition testimony from

Mr. Houston, Alfredean Jones and Constance Mazza that Mr. Houston and Mr. Jones suffered 

disparity in their pay beginning in 1975 that continued throughout the entirety of their careers

with the Defendant School District. A jury trial was held on March 3, 4 and 5, 2010 which again

resulted in a verdict for Defendant. Although I excluded argument regarding Plaintiff’s alleged

historical inequities, I allowed Mr. Houston to testify regarding past acts of discrimination. 

Specifically, I instructed the jury that:

Plaintiff will testify regarding past acts of discrimination he allegedly suffered in

the past. This testimony is admissible with respect to Plaintiff’s claim of

emotional distress. These past acts of discrimination are not claims in this case. 

They are being provided to you by the Plaintiff for the limited purpose of

explaining his claim of emotional distress. As with all evidence, it is for you to

determine what weight to give this evidence. 

This instruction was given during Mr. Houston’s direct testimony on March 4,

2010. Mr. Houston then testified regarding three specific acts of discrimination that he had

suffered throughout his life. On March 5, 2010, the jury returned a verdict for Defendant, and on

March 8, 2010, civil judgment was entered in favor of Defendant. See Document No. 128. On

March 11, 2010, Plaintiff filed the instant Motion for a New Trial. See Document No. 130. 

Defendant filed a Response in Opposition to Plaintiff’s Motion on March 26, 2010. See

Document No. 131. 

II. STANDARD.

The ordering of a new trial is a matter committed to the sound discretion of the

district court. Bonjorno v. Kaiser Alum. & Chem. Corp., 752 F.2d 802, 812 (3d Cir. 1984), cert.

denied, 477 U.S. 908 (1986); Fed. R. Civ. P. 59. The grant of a new trial may be justified where,

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for example, material evidence has been improperly excluded or a material issue has been

improperly submitted to the jury. See Petree v. Victor Fluid Power, Inc., 887 F.2d 34, 41 (3d Cir.

1989); 6A James M. Moore, et al., Moore’s Federal Practice, ¶ 59.08. 

When evaluating a motion for a new trial on the basis of trial error, the Court must

first determine whether an error was made in the course of trial, and then must determine

“whether that error was so prejudicial that refusal to grant a new trial would be ‘inconsistent with

substantial justice.’” Farra v. Stanley-Bostitch, Inc., 838 F. Supp. 1021, 1026 (E.D. Pa.1993)

(citations omitted). “Absent a showing of ‘substantial’ injustice or ‘prejudicial’ error, a new trial

is not warranted and it is the court’s duty to respect a plausible jury verdict.” Goodwin v. SevenUp Bottling Co. of Phila., CIV.A. No. 96-CV-2301, 1998 WL 438488, at *3 (July 31, 1998)

(citing Videon Chevrolet, Inc., v. Gen. Motors Corp., Civ. No. 91-4202, 1994 WL 188931, at *2

(E.D. Pa. May 16, 1994), aff’d, 46 F.3d 1120 (3d Cir.1994)). A court can only exercise its

discretion to grant a new trial because the verdict was against the weight of the evidence when

the failure to do so would result in injustice, or would shock the conscience of the court. 

Windsor Shirt Co. v. N.J. Nat’l Bank, 793 F.Supp. 589, 595 (E.D. Pa. 1992)(citing Williamson v.

Consol. Rail Corp., 926 F.2d 1344, 1348 (3d Cir.1991); Feingold v. Raymark Indus., Inc., 1988

WL 76114 at *3 (E.D. Pa. July 19, 1988) and Grace v. Mauser-Werke GMBH, 700 F.Supp.

1383, 1387 (E.D. Pa. 1988)).

III. DISCUSSION.

In his Motion for New Trial, Mr. Houston alleges that: 

(1) the Court erred by granting, in part, Defendant’s second Motion in Limine and

precluding Plaintiff from testifying about ongoing racial discrimination in his

salary which allegedly started when Plaintiff became a principal and continued

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through his tenure at Easton Area School District; 

(2) the Court committed prejudicial error by refusing to instruct the jury in

accordance with the determination in Wrazien v. Easton Area School District that 3

25% payment for accrued sick days at the time of an employee’s retirement was a

minimum and not a maximum benefit; 

(3) the court prejudiced plaintiff by allowing into evidence testimony and charts

indicating that non-cabinet officials received only 25% of their accrued sick days; 

(4) the court compounded the error by allowing the jury to see Defendant’s

Exhibit No. 6 which itemized each and every non-cabinet official who only

received 25%; 

(5) whether or not the Defendant opened the door for admissibility of

discrimination in salary differential; and 

(6) whether or not the Plaintiff was denied his Constitutional right to a fair trial. 

See Pl.’s Mot. for New Trial, pp. 6-7. Each of Plaintiff’s arguments in support of his Motion for 4

New Trial are hereafter examined.

A. Whether The Court Erred in Precluding Plaintiff From Testifying

About Ongoing Racial Discrimination in His Salary Which Allegedly

Started When Plaintiff Became A Principal and Continued Through

His Tenure at Easton Area School District.

Mr. Houston’s first argument is that this Court erred in precluding him from

testifying about ongoing racial discrimination in his salary while he was employed at the

Defendant Easton Area School District. This argument challenges the pre-trial decision granting

the Defendant’s motion in limine and excluding evidence that Mr. Houston and Alfredean Jones

suffered historical inequities in salary during employment. It is important to note that this

Mr. Houston’s counsel did not provide the citation for the Wrazien case, but he is referring to

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Wrazien v. Easton Area Sch. Dist., 926 A.2d 585 (Pa. Cmwlth. June 18, 2007).

We note that Plaintiff’s filings lack page numbers. We will refer to the pages of the submissions by

4

the pagination added by the PACER system.

7
historical inequities evidence was also precluded from the bench trial but on appeal to the Third

Circuit from the unfavorable decision following the bench trial, Mr. Houston did not challenge

the pre-trial decision excluding this evidence. Following remand on another issue, this Court

wholly vacated the decision on the motion in limine, and Defendant filed another motion in

limine, containing identical arguments as the first motion in limine. The second motion in limine

was granted as to the exclusion of evidence regarding historical inequities, and trial commenced. 

Mr. Houston intended to offer his personal testimony and that of Connie Mazza and Alfredean

Jones that Mr. Houston and Mr. Jones, the first African American administrators in the

Defendant School District, were subject to racial discrimination in salary starting in 1975 and

continuing throughout their careers at the Defendant Easton Area School District. This was the

only evidence regarding historical inequities offered by Plaintiff in support of his claim for racial

discrimination as to his retirement benefit of 25% of unused sick days. Following the jury’s

verdict against Mr. Houston, he now claims that the exclusion of historical inequities evidence

was erroneous. 

During the final pretrial conference, the Court discussed the Plaintiff’s renewed

request to introduce evidence of historical inequities. N.T., 2/19/10, pp. 2-16. The Court

inquired of Plaintiff’s counsel as to when the events regarding historical inequities occurred. 

Plaintiff’s counsel was not clear on the precise time frame, but admitted that “it’s a long time

ago.” Id. at 3. When pressed for more detail, counsel stated “it could be twenty years. It’s a

long time. We’ll stipulate it’s a long time.” Id. at 4. Plaintiff’s counsel argued that “even

though the initial incident occurred ten, twenty, thirty years ago it had consequences in the

present.” Id. at 5. Plaintiff’s and Defendant’s counsel were permitted to submit supplemental

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briefs following the final pretrial conference. 

On March 2, 2010, Defendant’s motion in limine was partially granted and

historical inequities evidence was excluded. See Document Nos. 117, 118. The following is the

portion of the opinion excluding historical inequities evidence:

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.

 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

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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 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.Fn

 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. 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

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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 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.

 On appeal, Plaintiff did not challenge this Court’s decision excluding “historical Fn

inequity” evidence. Houston v. Easton Area Sch. Dist., slip op., pp. 5-6 n.6 (3d

Cir. Dec. 8, 2009).

See Document Nos. 117-118; 3/2/10 Mem. Op. 

In the instant Motion for New Trial, Plaintiff first contends that I erred in

excluding evidence of ongoing discrimination because I allegedly postured this evidence as new

claims barred by the statues of limitation, yet Plaintiff claims that he never offered the historical

inequities evidence for that purpose. In this regard, the March 2, 2010 memorandum opinion

regarding Plaintiff’s motion in limine speaks for itself. This Court did not exclude the evidence

on the expiration of the applicable statute of limitation. Rather, we excluded the information

because it involved claims not pled in Plaintiff’s complaint and the probative value of this

historical inequity evidence was “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” pursuant to Federal Rule of Evidence 403. 

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Plaintiff next contends that I misunderstood case law regarding ongoing

discrimination tolling the statute of limitations. For support, Plaintiff cites case law from the

Ninth Circuit, specifically Sosa v. Hiraoka, 920 F.2d 1451 (9th Cir. 1990), a case in which a

Mexican American academic sued his employer for national origin discrimination under Title

VII, and Anderson v. Reno, 190 F.3d 930 (9 Cir. 1999), another case from the Ninth Circuit in th

which the appellate court reversed summary judgment and applied the continuing violation

doctrine to admit sexual harassment evidence spanning eight years which was offered by a

female FBI agent. 

Sosa alleged a series of discriminatory incidents starting in 1982 but he filed his

discrimination charge with the Equal Employment Opportunity Commission in 1985. In that

case, the Ninth Circuit held that Sosa could use the continuing violation doctrine to bring in the

earlier incidents even though he was not alleging a company-wide policy but only a series of

“plausibly related” acts of discrimination directed at him because of his identification as a

Mexican-American. Sosa, 920 F.2d at 1456. Similarly, the Ninth Circuit held in Anderson, a

hostile work environment case, that the Plaintiff could prevail under the continuing violation

theory “by presenting evidence that the FBI engaged in a ‘systematic policy of discrimination’ or

by presenting evidence of a series of related discriminatory acts directed at her by FBI

personnel.” Anderson, 190 F.3d at 936. The Anderson court specifically held that viewing

earlier events in the “context of the totality of [Anderson’s] relationship with the FBI,” it is

apparent they were “part of a pattern that started years ago and that had continued to the time she

first made a timely complaint, and even beyond.” Id. at 937. 

Although persuasive, the cases cited by Plaintiff are not binding on this Court. 

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The United States Supreme Court in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), established a bright-line distinction between discrete

acts, which are individually actionable, and acts which are not individually actionable but may be

aggregated to make out a hostile work environment claims. Morgan indicates that although

related discrete acts may be time-barred, such acts may be viewed as background evidence when

considering acts of discrimination that have been timely alleged. 536 U.S. at 113, 122 S.Ct. at

2061. We review the law applicable in this Circuit on continuing violation theory. “The 5

continuing violation theory allows ‘a plaintiff [to] 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.” Rush v. Scott Specialty Gases,

113 F.3d 476, 480 (3d Cir. 1997)(quoting West v. Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir.

1995)). For the theory to apply, a Plaintiff must fulfill a two-part test: First, the plaintiff must

demonstrate at least one discriminatory act occurred within the statutory period. Second, the

plaintiff must show a continuing pattern of discrimination, i.e. something more than just an

occurrence of isolated or sporadic acts of intentional discrimination. Id. (citing West, 45 F.3d at

754-55). In evaluating the second prong, courts should consider the subject matter, frequency

and permanence of the discrimination. Id. (citations omitted); LaRose v. Phila. Newspapers, Inc.,

21 F.Supp.2d 492, 498 (E.D. Pa. 1998). In examining the statute of limitations argument

presented by Defendant’s counsel in the instant case, we held that “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.” See

Neither Plaintiff nor Defendant ever cited Morgan in connection with this case.

5

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Document No. 117, 3/2/10 Mem. Op. Exclusion of the historical inequities evidence was not

based upon the fact that the statute of limitation barred an action for such claims.

Plaintiff next contends that this Court erred in excluding historical inequities

evidence because “‘Me-Too’ evidence of non-parties is admissible in discrimination litigation”

citing Sprint/United Management Co. v. Mendelsohn ____ US _____ (2009). Pl.’s Mem. Law 6

in Supp. Mot. New Trial, pp. 10-11. In Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379,

128 S.Ct. 1140, 170 L.Ed.2d 1 (2008), the United States Supreme Court held that evidence by

nonparties alleging discrimination at the hands of supervisors who played no role in challenged

employment decisions is “neither per se admissible nor per se inadmissible,” id. at 381, 128 S.Ct.

1140, and that district courts must engage in a “fact-intensive, context-specific inquiry” to

determine whether to exclude such evidence under Rule 403. Id. at 388. The Mendelsohn Court

did not rule that Plaintiff’s “me too” evidence was inadmissible per se. Rather, the Court

considered the relevance and prejudicial effect of the proffered evidence “in the context of the

facts and arguments of [this] particular case,” id. at 1147, and only then ruled the evidence

inadmissible. In making the pretrial decision to exclude evidence of historical inequities, I

considered the relevance and the prejudicial effect of the proffered evidence and then ruled the

evidence inadmissible in accordance with the dictate of the Court in Mendelsohn.

For support of the argument that evidence of other discrimination is always

admissible, Plaintiff cites Phillip v. ANR Freight Sys., Inc., 945 F.2d 1054 (8th Cir. 1991), in

“Me-too” evidence is “testimony by nonparties alleging discrimination at the hands of persons who

6

played no role in the adverse employment decision challenged by the plaintiff.” Sprint/United Mgmt. Co. v.

Mendelsohn, 552 U.S. at 383, 128 S.Ct. at 1144.

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which the appellate court reversed the trial court for excluding evidence of other discrimination. 

Pl.’s Mem. Law in Supp. Mot. New Trial, pp. 11-12. Plaintiff contends that this rule was

followed by the Third Circuit in Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515 (3d

Cir. 2003), wherein the Court held that evidence of an employer’s conduct toward other

employees is relevant and admissible to show pretext and for establishing or negating

discriminatory intent. Pl.’s Mem. Law in Supp. Mot. for New Trial, p. 12. Plaintiff omits from

his argument, however, the language in Ansell wherein the Third Circuit advises:

A court should consider the passage of time between the other act and the act

alleged to be discriminatory. There is a point at which a prior or subsequent act

becomes so remote in time from the alleged discriminatory act at issue, that the

former cannot, as a matter of law, be relevant to intent. See, e.g., Hurley v.

Atlantic City Police Dep’t, 174 F.3d 95, 112 (3d Cir.1999) (certain prior acts of

sexual harassment against plaintiff inadmissible because they were too remote in

time); cf. Echeverri, 854 F.2d at 645 (presence of cocaine in defendant’s

apartment four years after last overt act of RICO and drug conspiracy at issue, and

18 months after termination of the conspiracy, was not relevant to conspirators’

knowledge or intent). Similarly, changed circumstances may also affect whether

or not a subsequent good act is relevant. See, e.g., United States v. Hill, 40 F.3d

164, 168-69 (7th Cir.1994) (excluding evidence offered by defendant, who was

accused of stealing a check from the mail, that she failed to steal valuables placed

before her by postal inspectors in a sting operation occurring five months after the

offense; passage of time, combined with defendant’s awareness that she was a

suspect, rendered her failure to commit a similar crime “only tangentially

relevant”).

There is, however, no bright line rule for determining when evidence is too

remote to be relevant. See, e.g., United States v. Pollock, 926 F.2d 1044, 1048

(11th Cir.1991) (“Indeed, decisions as to impermissible remoteness are so

fact-specific that a generally applicable litmus test would be of dubious value.”).

Any such determination must be based on the potential the evidence has for giving

rise to reasonable inferences of fact which are “of consequence to the

determination of the action,” Fed. R. Evid. 401, and will not be disturbed on

appeal unless it amounts to an abuse of discretion, Glass v. Phil. Electric Co., 34

F.3d 188, 191 (3d Cir.1994). 

. . . . 

Federal Rule of Evidence 403 states that “[a]lthough relevant, evidence

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may be excluded if its probative value is substantially outweighed by the danger

of unfair prejudice.” A district court’s explicit balancing analysis under Rule 403

should only be disturbed if it is “irrational or arbitrary.” Abrams, 50 F.3d at 1213

(upholding district court’s determination that testimony by other co-workers

alleging age-based discrimination was more probative than prejudicial). Where

the district court fails to explicitly articulate the Rule 403 balancing: “we [either]

decide the trial court implicitly performed the required balance; or, if we decide

the trial court did not, we undertake to perform the balance ourselves.” Glass, 34

F.3d at 192 (internal quotation omitted); accord United States v. Mastrangelo,

172 F.3d 288, 295 (3d Cir.1999). 

Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 524 -525 (3d Cir. 2003).

Federal Rule 403 allows this Court to exclude relevant evidence if the probative

value of the evidence 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.” Fed. R. Evid. 403. This is an “umbrella rule” applied “in

tandem with other Federal Rules under which evidence would be admissible.” Coleman v. Home

Depot, Inc., 306 F.3d 1333, 1343 (3d Cir. 2002). Although there is a strong presumption that

relevant evidence should be admitted, exclusion under Rule 403 is justified if the probative value

of evidence is “‘substantially outweighed’ by the problems in admitting it.” Id. at 1343-44. Rule

403 requires a balance between the probative value of evidence sought to be excluded and the

prejudicial effect if the evidence is admitted. Glass v. Phila. Elec. Co., 34 F.3d 188, 191 (3d Cir.

1994). This “balancing inquiry is, at its core, an essentially discretionary one that gives the trial

court significant latitude to exclude evidence.” Kelley v. Wegman’s Food Mkts., Inc., No.

CIV.A. 02-1377, 2003 WL 21091390, at *5 (E.D. Pa. May 15, 2003)(citing Johnson v. Elk Lake

Sch. Dist., 283 F.3d 138, 156 (3d Cir. 2002)). Moreover, “before an evidentiary ruling may be

reversed for an abuse of discretion, it must be shown that ‘the district court’s action was

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arbitrary, fanciful or clearly unreasonable. [The Third Circuit] will not disturb a trial court’s

exercise of discretion unless no reasonable person would adopt the district court’s view.” Id.

(quoting Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002)(internal

citations omitted).

After balancing the probative value and prejudicial effect of the evidence, I

concluded that the proffered evidence regarding historical inequities evidence should be

excluded. Because the offer of proof by Plaintiff’s counsel was insufficient, including counsel’s

lack of clarity as to when the discrimination occurred, Connie Mazza’s presumption that race was

the reason that Plaintiff and Mr. Jones suffered pay disparity so many years ago, and Plaintiff’s

lack of proof that he and Mr. Jones asked every Superintendent for a pay increase, allowing the

jury to speculate on how this disparity occurred tipped the balance toward exclusion of this

evidence pursuant to Rule 403. To the extent that the proffered evidence suggested that the

Defendant had a policy of paying black employees less than their white counterparts thirty years

ago, the evidence was unfairly prejudicial because the issue in this case was disparity in payment

of retirement benefits at the time of Mr. Houston’s retirement in 1998. 

B. Whether the Court Erred in Refusing to Instruct the Jury That 25%

Payment for Accrued Sick Days at Retirement Was A Minimum and Not A

Maximum Benefit.

At the close of the evidence on March 5, 2010, Plaintiff submitted an additional

Supplemental Point for Charge which read as follows:

In this case, the Pennsylvania Courts have determined that the Superintendent had

apparent authority to determine fringe benefits under the existing Act 93 Plan, and

that the Superintendent was not limited to awarding the 25% of accumulated sick

pay otherwise discussed in the Act 93 Plan. Hence, as a matter of law, the 25% of

accumulated sick pay mentioned in the other paragraph must be viewed as a

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minimum benefit, not a maximum benefit. WRAZIEN v. Easton Area School

District 926 A.2d 585 (Pa. Commw. Ct. 2007).

See Dkt. No. 125. I held a supplemental charge conference on March 5, 2010. During that

conference, I discussed the jury instruction at issue as follows:

The first is the plaintiff, which in the last hour and a half has filed a

supplemental points for charge which I believe has probably been given to you,

Mr. Freund, as well as myself in hard fashion. This is based upon -- this is a

request for a charge, and I’m going to read it into the record because it’s very

brief. 

. . . . 

I’ve reviewed that point for charge and I’ve read the case twice, my law clerk has

read it, we’ve discussed it over the lunch hour. 

I do not believe that this case sets forth that proposition, set forth in the

point, as a matter of law. The case does hold that the superintendant [sic] did

have authority to negotiate that as a fringe benefit. I believe the case turned on

that point and that’s why Mr. Wrazien won the case. That point has already been

brought out in this case. Mrs. Meck herself has testified that she believed she had

the authority to do that, as she apparently did in the Wrazien case because that’s

cited in Judge Leavitt’s opinion in the Commonwealth court.

So I don’t believe that requires a separate point for charge. It was argued. 

It was presented in this case. And I really don’t think it’s in dispute in this case

that she had that authority. She said, and I think the plaintiff asserts that she used

that. The fact is the plaintiff is saying that she used it in a discriminatory manner. 

She should have – while you have that authority and you may have discretion in

doing that, you can’t do it to violate somebody’s rights under Title VII of the Civil

Rights Act. I believe that’s a correct position, but that’s for the jury to find

factually in fact whether she did that. I am going to deny that point for charge.

N.T., 3/5/10, pp. 80:11-82:3. 

The additional point for charge suggested by Mr. Houston mischaracterized the

holding in the Commonwealth Court case, therefore I did not give the proposed charge. In

reviewing Plaintiff’s and Defendant’s arguments in the instant Motion for New Trial as to

Plaintiff’s Proposed Jury Instruction, we again reviewed Wrazien v. Easton Area Sch. Dist., 926

A.2d 585 (Pa. Cmwlth. 2007). In that case, the Commonwealth Court specifically stated, “the

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Act 93 Plan gave Meck [the Superintendent] the express right to determine the fringe benefits for

retiring school administrators such as Wrazien. This includes the authority to negotiate with

Wrazien and to authorize the payment of all of his unused sick days as part of his retirement

package.” Id. at 590. 

Where a party claims that a jury instruction was erroneous as a matter of law, the

instruction is reviewed to determine “whether the charge, taken as a whole and viewed in light of

the evidence, fairly and adequately submit[ted] the issues in the case to the jury .” Link v.

Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 922 (3d Cir. 1986). A court’s review of a jury

instruction should be undertaken with an eye towards the instructions in their totality and “not a

particular sentence or paragraph in isolation.” In re Braen, 900 F.2d 621, 626 (3d Cir.1990), cert.

denied, 498 U.S. 1066, 111 S.Ct. 782, 112 L.Ed.2d 845 (1991). In addition to showing that the

Court committed legal error in giving a certain instruction, a party must also show that the error

had a prejudicial effect. Advanced Display Sys., Inc. v. Kent State Univ., 212 F.3d 1272, 1281

(Fed. Cir. 2000). Prejudicial legal error exists where “it ‘appears to the court [that the error is]

inconsistent with substantial justice.’” Id. at 1281 (citing Fed. R. Civ. P. 61).

A jury instruction must properly apprise the jury of the law, when taken as a

whole. Agere Sys., Inc. v. Atmel Corp., No. CIV.A. 92-CV-864, 2005 WL 2994702, at *5 (E.D.

Pa. Aug. 17, 2005) (citing McNulty v. Citadel Broad. Co., 58 Fed. App’x 556, 565 (3d Cir.

2003)(citing Limbach Co. v. Sheet Metal Workers Int’l Ass’n, 949 F.2d 1241, 1259 n.15 (3d Cir.

1991))). As a general matter, a party is entitled to a jury instruction that accurately and fairly sets

forth the current status of the law. Id. (citing McPhee v. Reichel, 461 F.2d 947, 950 (3d

Cir.1972)(“It is the responsibility of the trial judge to provide the jury with a clear and accurate

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statement of the law. . . .”)). This does not provide a litigant with the right to a jury instruction

“of its choice, or precisely in the manner and words of its own preference.” Id. (quoting Douglas

v. Owens, 50 F.3d 1226, 1233 (3d Cir.1995)(citing Heller Int’l Corp. v. Sharp, 974 F.2d 850, 860

(7th Cir.1992) and Anderson v. Branen, 17 F.3d 552, 559-60 (2d Cir.1994))). 

Mr. Houston received instructions that complied with the Court’s duty to explain

to the jury, in a dispassionate and accurate way, the current state of the law though it did not do

so using each and every word that Mr. Houston proposed to the Court. The additional point for

charge suggested by Mr. Houston mischaracterized the holding in the Commonwealth Court

case, therefore I did not give the proposed charge. Neither party received precisely the jury

charge that it requested, but that is not proper grounds for a new trial absent prejudicial legal

error. For the foregoing reasons, Mr. Houston’s motion for a new trial based on the Court’s

failure to give the jury charge he requested is denied. See Agere Sys., Inc., 2005 WL 2994702,

at *5.

C. Whether The Court Erred and Prejudiced Plaintiff By Allowing into

Evidence Testimony and Defendant’s Exhibit 6 Indicating That NonCabinet Officials Received Only 25% of Their Accrued Sick Days.

Plaintiff next contends that the Court erred in allowing testimony and Defendant’s

Exhibit 6 into evidence. Defendant’s Exhibit 6 lists all Cabinet, administrators and supervisors

who retired since August 31, 1995. Plaintiff contends that Defendant was permitted to defend on

the basis that it only paid non-cabinet officials 25% of accrued sick days consistently, but the

non-cabinet officials were not comparators. Therefore, according to Plaintiff, that testimony was

irrelevant and highly prejudicial. Defendant’s Exhibit 6 was prepared by John Castrovinci, the

Defendant’s current Director of Human Resources, who testified at length about Exhibit 6. 

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Plaintiff objects to introduction of this list because the 25% standard for non-cabinet officials

was, according to Plaintiff, irrelevant. 

 Defendant’s Exhibit 6 included potential comparators to Plaintiff regarding

retirement benefits. Plaintiff objects to the inclusion of Act 93 administrators as comparators. 

Defendant contends that the non-Cabinet level administrators who, like Plaintiff, are subject to

the District’s Act 93 plan, must be considered comparators because their status is equivalent as a

matter of law. 24 P.S. § 11-1164. Defendant further argues that admitting evidence of the

retirement benefits awarded to the Act 93 employees was not a substantial error that warrants a

new trial because Plaintiff had ample opportunity to present evidence and arguments to the jury

as to how they should interpret the retirement information provided. 

The trial judge has broad latitude in ruling on questions of admissibility of

evidence. U.S. v. Rockwell, 781 F.2d 985, 987 n.3 (3d Cir. 1986). Defendant’s Exhibit 6 related

to the question of whether Mr. Houston was treated differently and was therefore relevant. 

Plaintiff’s counsel questioned Mr. Castrovinci extensively on cross-examination regarding

Defendant’s Exhibit 6, parsing out which persons on the list were cabinet members and which

were not cabinet members. Thus, any prejudice to Plaintiff by inclusion of non-Cabinet members

was mitigated if not eliminated by Plaintiff’s counsel’s cross-examination regarding Defendant’s

Exhibit 6.

Plaintiff also contends that defense counsel should not have been permitted to

publish to the jury the chart of each non-cabinet official who only received 25% reimbursement. 

Although Plaintiff’s counsel does not provide the exhibit number to which he objects, this Court

surmises that Plaintiff’s counsel refers to Defendant’s Exhibit 8, entitled “Fringes, Act 93.” Mr.

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Castrovinci testified that Defendant’s Exhibit 8 is a summary of the Act 93 benefits afforded to

the Act 93 employees and is a chart of the benefits under Act 93 broken down into different

categories of employees.. Defendant’s counsel identified it as a schedule of benefits that flowed

from Plaintiff’s Exhibit 3, the Act 93 agreement for the Defendant School District. 

At trial, Plaintiff’s counsel objected to Defendant’s Exhibit 8 on the grounds of

relevancy, and this Court inquired of Mr. Castrovinci whether D-8 was prepared for the purpose

of this litigation or in the ordinary course of business. N.T., 3/5/10, pp. 35-36. Mr. Castrovinci

replied that the summary was not prepared for this litigation, but rather was in the ordinary

course of business, and I overruled Plaintiff’s counsel’s objection. Id. at 36. Plaintiff’s counsel

did not cross-examine Mr. Castrovinci regarding Defendant’s Exhibit 8.

As previously stated, the trial judge has broad latitude in ruling on questions of

admissibility of evidence. U.S. v. Rockwell, 781 F.2d at 987 n.3. In this case, because

Defendant’s Exhibit 8 was prepared in the ordinary course of business and was directly related to

Plaintiff’s Exhibit P-3, I overruled Plaintiff’s objection to testimony regarding D-8 and its

admission into evidence. 

D. Whether The Defendant Opened The Door For Admissibility of

Discrimination in Salary Differential.

During the trial, defense counsel cross-examined Mr. Houston regarding damages

using Mr. Houston’s deposition transcript. Plaintiff’s counsel approached the bench and advised

the Court that it was his intention on re-direct and show Mr. Houston the pages of his transcript

regarding Mr. Houston’s testimony about historical inequities in his salary because defense

counsel “opened the door” regarding this testimony. I sustained an objection by defense counsel

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and indicated that the order on the Motion in Limine would stand. Plaintiff contends that ruling

was erroneous.

Federal Rule of Evidence 611(b) defines the scope of cross-examination. That

Rule specifically states “[c]ross-examination should be limited to the subject matter of the direct

examination and matters affecting the credibility of the witness. The court may, in the exercise

of discretion, permit inquiry into additional matters as if on direct examination.” Fed. R. Evid.

611. On direct examination in support of his claim for emotional distress, I permitted Mr.

Houston to testify regarding three specific acts of discrimination he suffered during his lifetime

over the objections of Defendant’s counsel. Defendant’s counsel cross-examined Mr. Houston

using his deposition, focusing on specific areas of questioning and the fact that Mr. Houston had

not shared the prior incidents of discrimination at his deposition. Counsel specifically focused

on the dearth of information provided by Plaintiff to establish his damages. This questioning did

not render relevant other portions of the deposition which addressed completely different issues,

and Defendant is correct in its contention that Plaintiff’s deposition testimony regarding

“historical inequities” was no more admissible than his live testimony regarding “historical

inequities.” Accordingly, Plaintiff’s claim of error fails.

E. Whether Plaintiff Was Denied His Constitutional Right To A Fair

Trial. 

The Sixth Amendment, by its terms, is applicable only to criminal actions, but

“the right to trial by jury [is] preserved,” U.S. CONST. amend VII, in civil cases by the Seventh

Amendment. Bailey v. Sys. Innovation, Inc., 852 F.2d 93, 97 (3d Cir. 1988). Plaintiff contends

that the following evidentiary rulings denied Plaintiff his right to a fair trial:

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(A) the trial court excluded evidence of racial discrimination in salary directed

against Plaintiff and Al Jones; (B) by excluding this evidence of racial

discrimination, the jury was led to believe that Plaintiff was treated fairly by the

Defendant and he reached the highest echelon at the School District as a black

employee; (C) by permitting the Defendant to introduce into evidence the

non-cabinet officials, the Judge was denigrating Plaintiff’s role as an official and

letting the jury compare his stature to the non-cabinet officials who were not

appropriate comparators; and (D) by its evidentiary rulings, Plaintiff was placed in

the box of being the most promoted African American in Easton Area School

District who should not be complaining about racial discrimination whereas the

jury was not told about the racial discrimination in salary in the promotion.

Pl.’s Mem. Law in Supp. Mot. New Trial, pp. 16-17. Plaintiff is restating arguments previously

made and discussed above. As such, there is no need to address these arguments for which

Plaintiff’s counsel provides no citations to the record or citation of case law to support his

contention that Mr. Houston was denied a right to a fair trial.

The Court, on remand, endeavored to provide Mr. Houston with a fair and

equitable jury trial. The outcome of that trial, although disappointing for Mr. Houston as the

unsuccessful party, was not the product of an unconstitutional trial. 

IV. CONCLUSION.

Mr. Houston has failed to show the necessary substantial injustice or prejudicial

error in the challenged rulings. Goodwin, 1998 WL 438488, at *3. Because I was within my

discretion in making the challenged rulings, a new trial is not warranted and Mr. Houston’s

motion for a new trial is denied. An appropriate Order will follow.

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