1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-20-1995

West v Phila Electric

Precedential or Non-Precedential:

Docket 93-1647

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Recommended Citation

"West v Phila Electric" (1995). 1995 Decisions. Paper 15.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/15
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 93-1647 

 

 JAMES WEST, 

 Appellant. 

v. 

 PHILADELPHIA ELECTRIC COMPANY 

 

 

 On Appeal From the United States District Court 

 For the Eastern District of Pennsylvania 

 (D.C. Civil Action No. 91-05863) 

 

 Argued: March 10, 1994 

 Before: GREENBERG, ROTH and ROSENN, Circuit Judges

 (Opinion Filed January 19, l995) 

 

Richard J. Silverberg, Esquire 

Jane H. Lovitch, Esquire (Argued) 

Richard J. Silverberg & Associates 

1717 Arch Street 

3700 Bell Atlantic Tower 

Philadelphia, PA 19103 

 Attorneys for Appellant 

David S. Fortney, Esquire 

Carolyn P. Short, Esquire (Argued) 

Christine L. Ciarrocchi, Esquire 

Reed, Smith, Shaw & McClay 

1650 Market Street 

2500 One Liberty Place 

Philadelphia, PA 19103-7301 

 Attorneys for Appellee 

 

 

 OPINION OF THE COURT 

 

ROTH, Circuit Judge: 

 Plaintiff James West appeals from a jury verdict in 

favor of the defendant, Philadelphia Electric Company ("PECO"), 

in this action in which he alleges racial discrimination and 

retaliation in violation of Title VII of the Civil Rights Act of 

1964, as amended, 42 U.S.C. § 2002(e)-(2)(a)(1), and the 

Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. § 955(a). 

West's action is based on his claims of a racially hostile work 

environment at PECO. To prove these claims, West attempted to 

introduce evidence of incidents, and of PECO's notice of the 

occurrence of these incidents, dating back to 1986. West 

contends that all of this evidence was admissible under the 

theory that the violations were continuing. The rulings of the 

district court, which West challenges on appeal, require us to 

address the scope of continuing violations theory when a 

plaintiff charges the existence of a racially hostile work 

environment. 

 At trial, West sought to introduce evidence of acts 

occurring both prior to and during the 300-day period preceding 

the filing of his administrative complaint. Despite West's claim 
that the alleged hostile work environment constituted a 

continuing violation of Title VII, the district court determined 

that it would look to the 300-day period in ruling on the 

admissibility of much of the evidence proffered by the plaintiff. 

In making its determinations, the district court excluded 

evidence preceding the 300-day period unless the evidence 

involved either the same actor or the same particular form of 

discriminatory conduct. 

 We conclude, in this hostile work environment context, 

that the scope of the admissibility of evidence of events, which 

preceded the 300-day period, must be grounded in the substantive 

law at issue. The statutory limitations period is not, 

therefore, necessarily a bar to the admissibility of pre-statute 

acts which bear on the work environment and on the employer's 

awareness of that environment. For the reasons stated below, we 

find that the district court here was overly restrictive in its 

determinations of admissibility and that the challenged 

evidentiary exclusions were erroneous in that they deprived West 

of the opportunity to present his full case to the jury. We 

will, therefore, vacate the judgment and remand the case to the 

district court for a new trial. 

I. 

A. 
 Plaintiff James West has worked for defendant PECO 

since 1972. In 1986, West transferred to PECO's King of Prussia 

meter repair facility, where he continues to work. West alleges 

that since 1986, and continuing at least until the time of trial, 

he and other African-Americans at the meter repair facility 

encountered a continuous pattern of racial harassment. On 

November 23, 1990, West filed administrative charges of racial 

discrimination against PECO with the Equal Employment Opportunity 

Commission ("EEOC"). Subsequently, on September 17, 1991, he 

filed this complaint in the Eastern District of Pennsylvania. 

The complaint alleged that PECO knowingly permitted a hostile 

work environment to exist for African-American workers at the 

meter repair shop in violation of Title VII and the Pennsylvania 

Human Relations Act.1 In addition, the complaint alleged that 

PECO unlawfully retaliated against West in the terms and 

conditions of his employment after he filed the administrative 

charges.2

B. 

 

 1 In particular, West made allegations, and evidence was 

admitted at trial, concerning racially harassing conversations, 

racially derogatory postings on a bulletin board, slurs and 

physical threats, a large noose hanging in the workshop 

entranceway, a picture of a Ku Klux Klan member posted in several 

locations throughout the workplace, and a Confederate flag 

painted on the side of a co-worker's helmet. Other evidence, 

excluded at trial, is discussed below. 

 

2 The basis of this claim was PECO's temporary transfer of 

West to another work location in 1991. 
 Just prior to trial, PECO filed a motion in limine to 

exclude certain evidence. PECO argued that West should be 

precluded from presenting evidence pre-dating the period 300 days 

before the filing of his administrative complaint. PECO asserted 

that this evidence was time-barred by the limitations period 

established in Title VII. In PECO's view, the statutory filing 

period rendered evidence of earlier acts inadmissible as a matter 

of law. West, on the other hand, maintained that the alleged 

hostile work environment was a continuing violation. He asserted 

that, because he filed within 300 days of a recent occurrence, he 

had satisfied the statutory requirement under the theory of a 

continuing violation. As such, West countered, neither his claim 

for recovery nor the evidence relevant to its proof should be 

limited by the filing period. 

 At a pretrial conference on PECO's motion, the 

district court held that West could establish a continuing 

violation, so that evidence of pre-300-day conduct would be 

admissible, only if West could establish that the same actors had 

engaged in prohibited conduct both before and during the 300 day 

filing period: 

 In this trial, you should plan to organize 

your evidence as to the 300-day period, and 

then you'd have to show as to something prior 

to that time, that the same actor was 

involved. So if there was a different actor, 

there would not be a continuing violation. 

Pretrial Conference, May 21, 1993, transcript at 10; Plaintiff's 

Appendix ("App.") at 44. Plaintiff's counsel objected, arguing 
that, under a hostile work environment claim, liability rests 

with the employer for failing to remedy a hostile environment as 

a whole, without regard to individual workers or harassers. As 

such, the relevant "actor" is the employer; actions of individual 

employees are relevant as they contribute to the overall hostile 

environment. The court rejected this approach, stating: 

 [T]he way I want you to present the case is, 

what happened to him to cause him to file the 

charge and where he was 300 days prior to 

that time. Plus anything else that's 

connected . . . through common personnel. 

App. at 46. The court followed its rulings with an order entered 

on May 26, 1993.3

 At trial, the district court relied upon this ruling to 

exclude a substantial amount of evidence. Although the record 

before us is not fully adequate, the individual pieces of 

evidence, and rulings on them, will be discussed in turn as much 

as the record permits: 

 1. Ku Klux Klan Christmas Card.

 In November 1989, a white co-worker, Robert Cole, 

presented West with a picture of a Ku Klux Klan member, dressed 

in white robe and hood. The picture, which bore a strong 

resemblance to its presenter, was "folded in Christmas card 

 

 

3 The order reads, in part, as follows: "[E]vidence 

pertaining to the following shall be excluded from trial: . . . 

evidence of alleged racially discriminatory treatment of West by 

PECO prior to January 26, 1990, except as may be deemed relevant 

at trial." The court arrived at the January date by counting 

back 300 days from West's November 23, 1990 filing with the EEOC. 
fashion" and inscribed with the words "To Jim." Though West 

informed the co-worker that this offended him, the picture was 

later photocopied, distributed to other workers, and posted in 

the workplace. West offered this incident not only to support 

his claim of pervasive, continuous racial harassment but also to 

shed light on another incident involving the same worker posting 

the same picture throughout the workplace in the summer of 1990.4 

West suggests that the first incident, and his reaction, would 

have helped to establish discriminatory intent with regard to the 

later incident. 

 Though the court initially permitted direct examination 

of West concerning the November 1989 card, it later ruled that 

the incident was time-barred because it occurred prior to the 

300-day filing period. App. at 99-101, 133. 

 2. References to Frank Rizzo.

 At trial, the district court permitted West to testify 

about a picture of former Philadelphia Police Commissioner Frank 

 

 

4 The trial court admitted evidence of these later Klan 

picture postings because they occurred within the 300-day period. 

Specifically, one of West's African-American co-workers, Ronald 

Price, testified that Robert Cole approached him with the picture 

early in the summer of 1990 and asked Price whether he thought 

the picture was funny. Though Price did not, the following day 

the picture appeared posted on the door of that worker's 

storeroom office, on the gas shop bulletin board, and on a 

bulletin board outside the men's room in the electric shop. It 

remained posted until sometime in August 1990. App. at 68-72. 

West also testified that he had seen the postings throughout the 

summer. App. at 99, 101. 
Rizzo that was posted in the workplace in 1987 or 1988.5 West 

stated that he found the picture to be racially offensive. 

Defendant's App. at 161. However, the court excluded West's 

testimony about several incidents between himself and a white 

foreman, Howard Wiese, that could have explained to the jury why 

West found the picture to be offensive. West alleges that on 

several occasions, in 1987 and 1988, Wiese approached him and 

slammed a stick on West's workbench, remarking, "This is how 

Rizzo kept 'city people' in line when he was Police 

Commissioner." App. at 137. West also claims that references to 

"city people" were commonly understood in the shop to refer to 

African-Americans. Id. Because the Wiese incidents occurred 

before the 300-day period and because Wiese had retired and 

"engaged in no conduct in 1990 or thereafter," this evidence was 

excluded. Id. at 137-38. 

 3. Pre-300 Day Racial Comments.

 At trial, the court excluded testimony by both West and 

an African-American co-worker, Ronald Price, concerning racially 

hostile comments and conversations that occurred prior to the 

300-day period. For example, when West's counsel attempted to 

 

 

5 This was consistent with the court's general rulings on 

allegedly racially offensive postings in the workplace, as the 

court permitted evidence on such postings dating back to 1986. 

App. at 115. The court's rationale for allowing the evidence of 

racially derogatory postings prior to the 300-day period was that 

this was a particular form of racial harassment that was 

pervasive and regular, so that a continuous violation could be 

shown with regard to the postings in particular. App. at 115, 

135. 
question him regarding hostile conversations with a white 

foreman, William Esbiornson, dating back to 1986, the court 

precluded the testimony on the grounds that the conversations 

occurred prior to 1990 and West had not established that the 

verbal harassment by this particular worker was, in itself, 

pervasive and regular: 

 You haven't established yet, Counsel, that he 

had daily contact with this person, 

Esbiornson, such that the contact could be 

said, assuming the subject was racially 

offensive, to have been pervasive and regular 

so as to go back beyond 1990 in terms of 

contact. 

App. at 166-67. 

 The court excluded the testimony of Ronald Price about 

racially hostile conversations he had experienced prior to 1990. 

App. at 79-85. The court warned counsel, with regard to his 

questioning of the witness: "Make it, sir, during 1990. . . [I]f 

you wish to ask him any questions, follow my directions or 

withdraw him as a witness." App. at 82. Plaintiff's counsel 

objected, reiterating that it was plaintiff's theory that the 

alleged hostile work environment was a continuing violation, 

existing both during and prior to 1990. The court, however, 

indicated that for a continuing violation to exist, so that pre1990 evidence could be considered admissible, it was necessary to 

establish first that there was day-to-day harassment by the 

particular worker at issue. App. at 85. 

 4. Pre-300 Day Notice to Management.
 The court also excluded evidence, from the pre-300 day 

period, that had a bearing upon whether PECO's management knew or 

should have known of the alleged hostile work environment. For 

example, the plaintiff called as a witness William Barrett, the 

superintendent of the meter shop from July 1988 to December 1989. 

The court sustained an objection to any questioning about the 

pre-1990 period, particularly whether Barrett concluded that a 

race relations problem existed at the meter shop during that 

time. In addition, although the plaintiff had copies of 

Barrett's notes discussing a racial incident at the shop in 

January 1989, the court excluded any testimony about either the 

notes or the incident. App. at 122-26. 

 West also attempted to demonstrate PECO's actual notice 

of the hostile work environment through the testimony of Ronald 

Price. Price was prepared to testify that he had complained to 

management about the hostile work environment on a number of 

occasions. The court excluded the testimony, explaining: "300 

days prior to the filing of the complaint, that's the ruling." 

App. at 96. 

 5. Pre-300 Day Harassment Not Witnessed By James 

West.

 Information about two hostile events in the pre-1990 

period was also excluded on the basis that it was harassment of 

other workers and was not witnessed by West directly. 

 A. The 1989 Noose.
 In 1989, a white supervisor, Robert Laurino, allegedly 

waved a noose in front of another African-American in the shop 

and remarked, "You know what we use these for." That worker, 

Vernon Smith, has since died, but Ronald Price was present at the 

time. West and others soon learned of the incident. At trial 

West's counsel attempted to question him concerning his 

knowledge. The court sustained PECO's objections on the ground 

that West's testimony was hearsay. App. at 107-8. 

 On appeal, West explains that his own testimony was 

intended to provide the jury with information concerning how 

reports of the incident affected him. As a competent witness to 

testify as to the incident itself, West contends that he would 

have presented Price had it not been for the court's earlier, 

repeated warnings to remain within the 300-day period when 

questioning Price. 

 As with the Ku Klux Klan card, West claims that 

preclusion of this evidence was prejudicial beyond the mere fact 

that it was an important incident helping to establish the 

pervasive and continual nature of the hostile work environment. 

He suggests that it also sheds light on a similar incident 

occurring within the 300-day period. At trial, the court 

admitted evidence of a large noose that hung near the storeroom, 

by the building's exit door, during the summer of 1990. 

According to Price's testimony, this second noose was full-size, 

made of thick burlap rope, with a circular wrapping that could be 
adjusted so as to place a head through it. App. at 69, 73-77. 

The noose appeared at the same time as the Ku Klux Klan pictures, 

in June 1990. It was placed approximately 20 feet from one of 

the Klan pictures. Like the pictures, it was removed in August 

1990. 

 Finally, plaintiff argues that evidence of the 1989 

noose incident was important because Smith filed a complaint 

about it with PECO's Affirmative Action Office. This 

information, in turn, would have been a part of West's 

presentation to establish that PECO knew of the alleged hostile 

work environment. 

 B. The Black Doll.

 In 1989, Esbiornson placed a photocopy of a figure on 

the side of his desk, facing Smith. West suggests that it was a 

black "voodoo doll," intended to harass Smith because he had 

argued with Esbiornson the day before. PECO claims that it was a 

"malady doll," listing a variety of physical ailments, intended 

to protect the workers in the shop from further illness. 

 At the hearing on the motion in limine, the court made 

a provisional ruling that it would admit the evidence for 

purposes of notice because Smith had filed a complaint with 

PECO's Affirmative Action Office. The superintendent of the 

meter shop, William Barrett, investigated the incident and kept 

notes of his interviews with Smith and Esbiornson. App. at 48-

51, 53. However, at another pretrial conference, PECO sought 
reconsideration. The court then excluded all evidence pertaining 

to both the incident and the report, on the ground that, because 

West was not personally subject to the incident, it could not 

constitute part of his working environment. App. at 53-54; 111-

12. Again, West argues on appeal that this evidence was vital to 

his case as it was probative of both the continuing racial 

hostility at the meter shop and of PECO's knowledge of and duty 

to remedy the alleged hostile work environment. 

C. 

 After a five day trial, with the above evidence 

excluded, the jury found that West had failed to prove that PECO 

knowingly permitted a hostile work environment to exist at the 

meter repair shop. The jury also found that PECO had not 

retaliated against West because he had filed administrative 

charges. The district court entered judgment in PECO's favor on 

June 11, 1993, and West filed this timely appeal. West argues on 

appeal that the district court erred in emphasizing the 300-day 

filing period as a basis for determining the admissibility of 

evidence and for imposing a "same actor, same conduct" 

requirement before a continuing violation could be established.6 

For the reasons which follow, we agree. 

 

 

6 West also claims error in the exclusion of one piece of 

evidence from within the 300-day period, for reasons having 

nothing to do with the filing period and continuing violations 

theory. In his pre-trial order on the motion in limine, the 

court excluded evidence pertaining to the "animal head incident." 

Order of May 26, 1993. See App. at 47-48. This notation refers 

to the fact that in 1990, while he was attending a high school 

gym meet, Price's truck was vandalized when a freshly killed 
II. 

 The district court had subject matter jurisdiction over 

plaintiff's federal statutory claim pursuant to 28 U.S.C. § 1331 

and supplemental jurisdiction over his state law claim pursuant 

to 28 U.S.C. § 1367. We exercises appellate jurisdiction 

pursuant to 28 U.S.C. § 1291. 

 We review the evidentiary determinations of the trial 

court under an abuse of discretion standard. Glass v. 

Philadelphia Electric Co., 34 F.3d 188, 191 (3d Cir. 1994); In re 

Merritt Logan, Inc., 901 F.2d 349, 359 (3d Cir. 1990). In the 

context of a decision to admit or exclude evidence under Fed. R. 

 

deer's head was tied to its hood. The court excluded this 

evidence under Fed. R. Evid. 403, which provides, in relevant 

part: 

 Although relevant, evidence may be excluded if its 

probative value is substantially outweighed 

by the danger of unfair prejudice, confusion 

of the issues, or misleading the jury . . . . 

 We review exclusions under Rule 403 only for abuse of 

discretion. In this case, we cannot say that the trial court's 

decision was "arbitrary and irrational." This incident occurred 

more than 40 miles from the workplace. There was no direct 

evidence linking any of PECO's employees to the deer head. The 

circumstantial evidence offered showed that some of the white 

PECO workers enjoyed deer hunting, that they discussed hunting at 

work, and that one of the workers ate deer meat at work. Given 

this weak connection to PECO, the probative value of the evidence 

was slight. And on the other side of the Rule 403 balancing, the 

incident was appallingly grotesque and abusive of Price. As 

such, admission of the evidence would have run the risk of 

inducing unfair bias in favor of Price and, potentially, unfair 

bias against PECO. 
Evid. 403, an abuse of discretion exists where that decision is 

shown to be "arbitrary and irrational." Bhaya v. Westinghouse 

Electric Corp., 922 F.2d 184, 187 (3d Cir. 1990), cert. denied

111 S.Ct. 2827 (1991). However, as to the application or 

interpretation of a legal standard underlying the admissibility 

decision, our review is plenary. See Universal Minerals, Inc. v. 

C.A. Hughes & Co., 669 F.2d 98, 102 (3d Cir. 1981)("[t]o the 

extent the parties challenge the choice, interpretation, or 

application of legal precepts, we always employ the fullest scope 

of review"). 

 Our determination that the trial court erred in an 

evidentiary determination does not, however, end our review. An 

erroneous decision to admit or exclude evidence does not 

constitute reversible error unless "a substantial right of the 

party is affected . . .." Linkstrom v. Golden T. Farms, 883 F.2d 

269, 269 (3d Cir. 1989); Fed. R. Evid. 103(a). Nonconstitutional 

error in a civil suit may be deemed harmless "if it is highly 

probable that the error did not affect the outcome of the case." 

Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 53, 59 (3d 

Cir. 1989). 

 III. 

A. 

 Title VII of the Civil Rights Act of 1964 makes it "an 

unlawful employment practice for an employer . . . to 
discriminate against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, 

because of such individual's race, color, religion, sex, or 

national origin." 42 U.S.C. § 2000e-2(a)(1). The Supreme Court 

has recognized that Title VII's protection is not limited to 

"economic" or "tangible" discrimination, such as the denial or 

loss of a job or promotion. It is violated as well by a "work 

environment abusive to employees because of their race, gender, 

religion, or national origin." Harris v. Forklift Systems, Inc., 

114 S.Ct. 367, 371 (1993). See also Meritor Sav. Bank, FSB v. 

Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405 (1986) ("a 

plaintiff may establish a violation of Title VII by proving that 

discrimination based on sex has created a hostile or abusive work 

environment."). 

 To be cognizable within the meaning of Title VII, 

harassment, whether based on race or sex,7 must affect a "term, 

condition, or privilege" of the plaintiff's employment. In 

Meritor, the Court held that the harassment "must be sufficiently 

severe or pervasive 'to alter the conditions of [the victim's] 

employment and create an abusive working environment.'" 477 U.S. 

at 67. Recently, in Harris, the Court explained that this 

standard is intended to 

 

 

7 The Court has recognized no difference in standards 

applicable to racially and sexually hostile work environments. 

See Harris 114 S.Ct. at 371; 114 S.Ct. at 373 (Ginsburg, J., 

concurring)("Title VII declares discriminatory practices based on 

race, gender, religion, or national origin equally unlawful"); 

Meritor, 477 U.S. at 66. 
 take[] a middle path between making 

actionable any conduct that is merely 

offensive and requiring the conduct to cause 

a tangible psychological injury. 

114 S.Ct. at 370. 

 In Andrews v. City of Philadelphia, 895 F.2d 1469 (3d 

Cir. 1990), we discussed the standard of liability for a hostile 

work environment claim. First, we adopted what has become known 

as a "totality of the circumstances" approach. 

 To bring an actionable claim for . . . 

harassment because of an intimidating and 

offensive work environment, a plaintiff must 

establish 'by the totality of the 

circumstances, the existence of a hostile or 

abusive working environment . . . .' 

Id. at 1482 (citing Vance v. Southern Bell Tel. and Tel. Co., 863 

F.2d 1503, 1510 (11th Cir. 1989)). See also Spain v. Gallegos, 

26 F.3d 439, 451-52 (considering all the circumstances, plaintiff 

should be allowed opportunity to prove claims regarding sexually 

hostile work environment). This approach has been endorsed by 

the Supreme Court: 

 [W]e can say that whether an environment is 

"hostile" or "abusive" can be determined only 

by looking at the circumstances. These may 

include the frequency of the discriminatory 

conduct; its severity; whether it is 

physically threatening or humiliating, or a 

mere offensive utterance; and whether it 

unreasonably interferes with an employee's 

work performance. 

Harris, 114 S.Ct. at 371. In addition, in Andrews, we set forth 

five elements necessary to establish a successful hostile work 

environment claim: 
 (1) the plaintiff suffered intentional 

discrimination because of his or her 

membership in the protected class; 

 (2) the discrimination was pervasive and 

regular; 

 (3) the discrimination detrimentally affected 

the plaintiff; 

 (4) the discrimination would have 

detrimentally affected a reasonable person of 

the same protected class in that position; 

and, 

 (5) the existence of respondeat superior 

liability. 

895 F.2d at 1482. 

The use of both a subjective and an objective standard (parts 3 

and 4 above) also was explicitly adopted by the Supreme Court in 

Harris: 

 Conduct that is not severe or pervasive 

enough to create an objectively hostile or 

abusive work environment--an environment that 

a reasonable person would find hostile or 

abusive--is beyond Title VII's purview. 

Likewise, if the victim does not subjectively 

perceive the environment to be abusive, the 

conduct has not actually altered the 

conditions of the victim's employment, and 

there is no Title VII violation. 

114 S.Ct. at 370. 

B. 

 West's claim, that PECO knowingly permitted a hostile 

work environment to exist for its African-American workers at the 

meter repair shop, is governed by these standards. At trial, 
West attempted to proffer evidence which, if credited by the 

jury, could have established the five elements above. However, 

it was this precise breadth of West's evidence, demonstrating 

that the alleged harassment was "pervasive and regular," which 

the district court believed was in conflict with the statute. 

Despite the requirement that the harassment be pervasive and 

regular, the court concluded that the statutory filing period 

limited the proper scope of evidence admissible to prove the 

claim. The district judge in effect concluded that in regard to 

each individual actor, who West wished to demonstrate had 

participated in creating the hostile work environment, West had 

to prove that this individual had engaged in on-going violative 

conduct. 

 At trial, the judge explained to counsel: "You're 

proceeding under a certain section of the statute which has [a] 

certain time limitation on it. I've applied that time limitation 

and you may take it from that point all the way up to today." 

App. at 89-90. In that ruling and the rulings described above, 

the court was referring to Title VII's filing period. According 

to 42 U.S.C. 2000e-5(e), a charge of employment discrimination 

must be filed within 300 days "after the alleged unlawful 

employment practice occurred."8 This filing is a prerequisite to 

 

 

8 The 300-day period applies where the plaintiff has 

initially instituted proceedings with a State or local agency. 

Otherwise, the applicable period is 180 days. 42 U.S.C. S 2000e5(e). 
a civil suit under Title VII. Alexander v. Gardner-Denver Co., 

415 U.S. 36, 47, 94 S.Ct. 1011, 1019 (1974). 

 Though the requirement sounds exacting--300 days after 

the alleged unlawful employment practice occurred--courts have 

grappled with cases presenting questions of precisely when a 

"practice" occurred. That date may be more inflexible when there 

is a discrete trigger event and the discrimination is overt. 

However, there are cases in which the plaintiff does not know he 

has been harmed; similarly there are cases of an ongoing, 

continuous violation. To accommodate these more indeterminate 

situations, the Supreme Court has recognized that the filing of a 

timely charge is "a requirement that, like a statute of 

limitation, is subject to waiver, estoppel, and equitable 

tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 

393, 102 S.Ct. 1127, 1132 (1982); Oshiver v. Levin, Fishbein, 

Sedran & Berman, F.3d (3d Cir. 1994). 

 One such equitable exception to the timely filing 

requirement is the continuing violation theory. Under this 

theory, the plaintiff may pursue a Title VII claim for 

discriminatory conduct that began prior to the filing period if 

he can demonstrate that the act is part of an ongoing practice or 

pattern of discrimination of the defendant. Bronze Shields, Inc. 

v. New Jersey Dept. of Civ. Serv., 667 F.2d 1074, 1081 (3d Cir. 

1981), cert. denied, 102 S.Ct. 3510 (1982); Jewett v. 

International Tel. and Tel. Corp., 653 F.2d 89, 91 (3d Cir), 
cert. denied, 102 S.Ct. 515 (1981). In fact, in Bronze Shields, 

we cited with approval a Senate Conference Committee report 

recognizing that "certain types of violations are continuing in 

nature," making it appropriate to "measure[] the running time of 

the required time period from the last occurrence of the 

discrimination and not from the first occurrence." 667 F.2d at 

1081. 

 To establish that a claim falls within the continuing 

violations theory, the plaintiff must do two things. First, he 

must demonstrate that at least one act occurred within the filing 

period: "The crucial question is whether any present violation 

exists." United Airlines, Inc. v. Evans, 431 U.S. 553, 558, 97 

S.Ct. 1885, 1889 (1977). Next, the plaintiff must establish that 

the harassment is "more than the occurrence of isolated or 

sporadic acts of intentional discrimination." Jewett, 653 F.2d 

at 91. The relevant distinction is between the occurrence of 

isolated, intermittent acts of discrimination and a persistent, 

on-going pattern.9

 

 

9 In making this distinction, a number of the Courts of 

Appeals have adopted the approach of the Fifth Circuit in Berry 

v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971, 

981 (5th Cir. 1983) and Waltman v. International Paper Co., 875 

F.2d 468, 474-75 (5th Cir. 1989). We also find this approach, 

providing a non-exhaustive list of factors, to be helpful. 

Following the Berry court, the inquiry into the existence of a 

continuing violation would consider: 

 (i) subject matter--whether the violations 

constitute the same type of discrimination; 

(ii) frequency; and (iii) permanence--whether 

the nature of the violations should trigger 
 Once the plaintiff has alleged sufficient facts to 

support use of the continuing violation theory, however, the 300-

day filing period becomes irrelevant -- as long as at least one 

violation has occurred within that 300 days. Plaintiff may then 

offer evidence of, and recover for, the entire continuing 

violation. At that point as well, the Federal Rules of Evidence 

and the substantive law at issue, rather than the statutory 

filing period, should govern evidentiary determinations of the 

trial court. 

C. 

 Throughout the trial, West maintained that the alleged 

hostile work environment satisfied the conditions of a continuing 

violation. Hostile work environment and continuing violation 

claims have similar requirements of frequency or pervasiveness. 

There is a natural affinity between the two theories. A number 

of courts, in fact, have remarked upon the correlation between 

the two: 

 In the arena of sexual [or racial] 

harassment, particularly that which is based 

on the existence of a hostile environment, it 

is reasonable to expect that violations are 

continuing in nature: a hostile environment 

results from acts of sexual [or racial] 

 

the employee's awareness of the need to 

assert her rights and whether the 

consequences of the act would continue even 

in the absence of a continuing intent to 

discriminate. 

Martin v. Nannie and Newborns, Inc., 3 F.3d 1410 (10th Cir. 

1993). 
harassment which are pervasive and continue 

over time, whereas isolated or single 

incidents of harassment are insufficient to 

constitute a hostile environment. 

Accordingly, claims based on hostile 

environment sexual [or racial] harassment 

often straddle both sides of an artificial 

statutory cut-off date. 

Jenson v. Eveleth Taconite Co., 824 F.Supp. 847, 877 (D.Minn. 

1993). See also Waltman v. International Paper Co., 875 F.2d 

468, 476 (5th Cir. 1989)("The Meritor Savings Bank decision is 

relevant to the continuing violation theory because a hostile 

environment claim usually involves a continuing violation."); 

Stair v. Lehigh Valley Carpenters Local No. 600, 813 F. Supp. 

1112, 1115 (E.D. Pa. 1993). Moreover, this view is implicit in 

the many cases which, without discussing the issue of timeliness 

or admissibility, rely upon evidence of events, occurring long 

before the relevant filing periods, to establish a hostile work 

environment. See, e.g., Harris, 114 S.Ct. 367 (considering acts 

of harassment spanning two and one-half year period); Meritor, 

106 S.Ct. 2399 (considering acts of harassment spanning four year 

period). 

 Although we decline to adopt a per se rule that a 

properly alleged hostile work environment claim also constitutes 

a continuing violation, we agree that West has alleged facts 

sufficient to support application of the continuing violations 

theory in this case. First, all of the incidents alleged by the 

plaintiff involved racial harassment--the nooses, the Klan 

pictures, the black doll, the harassing conversations and the 
postings on the bulletin board. Second, the incidents are 

alleged to have occurred consistently over the period since 1986, 

with increased frequency in 1989-1990. The most physically 

threatening and hostile of the incidents--the large burlap noose 

and the Klan photographs--are alleged to have remained in the 

workplace for a period of months. The postings, threats, and 

hostile conversations appear to have recurred without respite. 

Finally, the harassment did not cause a discrete event such as a 

lost job or a denied promotion and, thus, it did not trigger a 

duty of the plaintiff to assert his rights arising from that 

deprivation. 

 Despite these proffers, the trial court excluded much 

of West's pre-300-day evidence. In effect, the court looked upon 

West's claims as individually focussed on particular workers or 

on particular forms of continuing conduct. This strict 

application is not appropriate, however, in a claim of a racially 

hostile work environment where both the existence of hostility 

and the employer's awareness of hostility can long predate the 

300-day period. 

 Here, the court required the plaintiff to stay within 

the 300-day period unless he could show a continuing violation by 

the same individual. Thus, at the pre-trial conference the court 

ruled: "You should plan to organize your evidence as to the 300-

day period, and then you'd have to show as to something prior to 

that time, that the same actor was involved. So if there was a 
different actor, there would not be a continuing violation." 

App. at 44. During the course of the trial, the court admitted 

evidence of racially hostile postings dating back to 1986 because 

it found that that specific form of harassment was sufficiently 

regular and pervasive as to constitute a continuing violation. 

 The additional restrictions upon the continuing 

violations theory were error. To prove a hostile work 

environment, West had the burden of establishing that he suffered 

intentional, pervasive, and regular racial discrimination of 

which PECO supervisors and management were aware and which PECO 

permitted to continue. Nowhere in the case law establishing 

these standards is there a requirement that the discriminatory 

conduct of each co-worker, who participated in creating the 

hostile environment, be pervasive and/or on-going. We believe 

that West proffered sufficient evidence to demonstrate that the 

hostile environment was on-going. Once he had done so, evidence 

of incidents of pre-300-day discriminatory activity was 

admissible if the incidents were related to the overall hostile 

environment. 

 In contrast to the limitations imposed by the trial 

court, our cases direct that a hostile work environment claim 

should be addressed in the "totality of the circumstances." 

Specifically, in Andrews, this court precluded an individualized, 

incident-by-incident approach. 895 F.2d at 1485. We cautioned: 

 A play cannot be understood on the basis of 

some of its scenes but only on its entire 
performance, and similarly, a discrimination 

analysis must concentrate not on individual 

incidents, but on the overall scenario. . . . 

The factfinder in this type of case should 

not necessarily examine each alleged incident 

in a vacuum. What may appear to be a 

legitimate justification for a single 

incident of alleged harassment may look 

pretextual when viewed in the context of 

several other related incidents. 

Id. at 1484 (citation omitted). 

 The "totality" approach cannot support the "same actor" 

or "same form of discrimination" requirements imposed at trial 

here. Because a hostile work environment claim is a single cause 

of action, rather than a sum of discrete claims, each to be 

judged independently, the focus is the work atmosphere as a 

whole. If an employer knowingly (actually or constructively) 

permits a hostile work environment to exist, it is of no import 

that the collection of incidents comprising the claim were 

committed by a variety of individuals.10 Rather, by implicitly 

condoning harassing behavior, the employer may facilitate its 

spread by a greater number of harassing employees. As one court 

has observed, 

 A hostile work environment is like a disease. 

It can have many symptoms, some of which 

change over time, but all of which stem from 

the same root. The etiology in this case is 

pure gender bias. 

 

 

10 Similarly, in this regard, it was error to exclude 

evidence of notice of racial harassment given to PECO by other 

employees. The company's notice of racial harassment is always 

relevant, regardless of its source, because it bears upon the 

duty of the company to investigate and to remedy a hostile work 

environment. 
Hansel v. Public Service Co., 778 F.Supp. 1126, 1132 (D. Colo. 

1991). See also Waltman, 875 F.2d at 475 ("The fact that not all 

the incidents of harassment involve the same people does not show 

a lack of recurrence or frequency.") Stair, 778 F.Supp. at 1134 

("It does not matter that the form of harassment changed over 

time, nor does it matter that the identity of those responsible 

changed over time."). Moreover, in the present case, there was a 

fair overlap in the identity of the harassers in the incidents 

offered at trial. 

 We conclude that the trial court was also overly 

restrictive in its application of the "pervasiveness" 

requirement. At one stage, it precluded evidence of racially 

harassing comments because the plaintiff had not established that 

there was "daily contact" with the harasser. App. at 166-67. As 

the Supreme Court made clear in Harris, frequency is a factor to 

be considered, but it is to be considered in context, including 

the severity of the incidents. 

 The number of incidents of harassment is but 

one factor to be considered in the totality 

of the circumstances. A Title VII plaintiff 

does not prove racial harassment or the 

existence of a hostile working environment by 

alleging some 'magic' threshold number of 

incidents. 

Daniels v. Essex Group, Inc., 937 F.2d 1264, 1275 (7th Cir. 

1991). See also Waltman, 875 F.2d at 475-76 ("The fact that 

there were gaps between the specific incidents to which Waltman 

testified does not demonstrate a lack of continuity."). 
 Finally, the court's decision to exclude evidence of 

harassment of other African-Americans, not witnessed by West, was 

also in error. In some instances, evidence of harassment of 

others will support a finding of discriminatory intent with 

regard to a later incident.11 For example, evidence of the 1989 

noose incident was relevant to establish knowledge by PECO of 

racial animosity and discriminatory intent when the second noose 

appeared in the summer of 1990. Certainly, the jury's knowledge 

of the incident and its aftermath would have precluded defense 

counsel from arguing, in their opening statement, that the worker 

who made the second noose "did not understand it as being 

racially offensive or potentially offensive." App. at 59. 

Furthermore, evidence of harassment of other workers, because 

they were African-American, was relevant to an examination of 

West's claims that he, too, was harassed. Daniels, 937 F.2d at 

1275 (evidence of harassment of others "serve[] to demonstrate 

that Daniels did not weave his allegations out of whole cloth, 

and bolster the confidence of the finder of fact in the 

plaintiff's veracity and in the objective reasonableness of his 

claims."). 

 

IV. 

 

 

11 Vance v. Southern Bell Tel., 863 F.2d 1503, 1511 (11th 

Cir. 1989)("[T]he jury could have properly considered evidence of 

discriminatory acts . . . directed at employees other than the 

plaintiff, as tending to show the existence of racial animus in 

the present case."). 
 For the foregoing reasons, we conclude that the 

district court abused its discretion by holding that pre-1990 

evidence was not admissible as proof of a continuing violation of 

a hostile work environment unless it involved either the same 

actor or the same form of conduct. Similarly, the exclusion of 

evidence that PECO was notified of allegedly discriminatory 

harassment prior to the 300-day period was error, as was the 

decision to preclude evidence of harassment of other AfricanAmericans at the meter shop on the grounds that their harassment 

was irrelevant to West's claim of a hostile work environment. 

We cannot say, with a sure conviction, that these errors did not 

prejudice the plaintiff in the presentation of his case to the 

jury. We will, therefore, vacate the judgment of the district 

court and remand this case for a new trial.