This opinion is fully consistent with the views expressed by Judge Kelly during 1 the panel's conference following the oral argument of the case. Because of illness , Judge Kelly i s presently unable to review the opinion, which is filed without awaiting his express concurrence to avoid undue delay.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-1292

_____________ Sandra Easley, * * Appellant, * Appeal from the United States * District Court for the Eastern v. * District of Arkansas. * American Greetings Corporation, * * Appellee. *

_____________ Submitted: September 21, 1998 Filed: October 19, 1998

_____________ Before BOWMAN, Chief Judge, WOLLMAN and KELLY, Circuit Judges. 1

_____________ BOWMAN, Chief Judge. Sandra Easley brought suit against her former employer, American Greeting s Corporation ("American Greetings" or "the company"), alleging the company fired her in 1 996 in retaliation for reporting sexual harassment by her supervisor in 1993. TheThe Honorable Henry Woods, United States District Judge for the Easter n 2 District of Arkansas. -2- District Court excluded certain evidence Easley sought to introduce, includin g

2 testim ony regarding specific details of the 1993 sexual harassment and testimon y concernin g incidents involving the person who later became Easley's supervisor an d who ultimately fired her in 1996. The case then went to trial, and the jury found fo r Am erican Greetings. The District Court denied Easley's motion for a new trial an d entered judgment on the jur y verdict. Easley appeals, arguing the District Court erred in excluding the above-mentioned evidence. We affirm.
I. Easley worked for American Greetings in its Osceola, Arkansas, plant from June 1978 to October 1996. She started as a forklift driver on the general assembly line and worked her way up to the position of engraver making dies for gree ting cards. In 1993, Easley reported to the company that her superv isor, Ray Ward, was sexually harassing her. American Greetings conducted an immediate investigation, found evidence o f harassme nt, and terminated Ward's employment five days after Easley made he r complaint.
Two months later, the company moved John Hall from its plant in Kentucky to replac e Ward as Easley's supervisor. From the start, Easley and Hall did not have a good relationship. Hall was a friend of Ward, the supervisor whose terminatio n res ultedfrom Easley's sexual harassment complaint. Hall warned Easley that sh e woul d not intimidate him as she had intimidated Ward. Hall also subjected th e employees under his supervision to more rigorou s review than Ward had done. Easley complai nedthat Hall had particularly targeted her work, and that he had done s o because Easley's complaints had caused Hall's friend Ward to be fired.-3-

While under Hall's supervision, Easley's performance at American Greeting s deteriorated. Suffering depression from a recent divorce, her experience with Ward, an d other problems, Easley took a four-month medical leave from work. After thi s leave ended and Easley returned to work, American Greetings permitted Easley t o work fewer hours and at a lower level of efficiency t han other workers. By May 1994, however, Easley had not returned to wh at the company considered an acceptable level of performance. American Greetings issued her an "informative" (an informal notice of job deficiency), but Easley's problems continued. She received a formal warning for leavi ng the plant without notifying her supervisor in 1994, and a second warning fo r fal ling asleep on the job in 1995. Throughout 1995 and 1996, Easley had numerou s disc ussions with Hall and other supervisors regarding the need to improve he r efficiency levels, and she received additional warnings that her job performance was unacceptable.
In 1995, Easley filed a charge of discrimination with the Equal Employmen t Opportunity Commission ("EEOC"). The charge contained two claims: first, that Ward (Easley's former supervisor, who had been fired in 1993) had sexually harassed her; an d second, that Hall was retaliating for Easley's 1993 sexual harassment complain t concerning Ward by scrutinizing Easley's work more closely. The EEOC found th e fir stclaim was "untimely" and dismissed it, but issued a right-to-sue letter on th e second claim. Whil e she was still employed by American Greetings, Easley filed suit for violation of federal and state statutory law and state tort law.
In October 1996, shortly after filing her suit, Easley was fired by America n Greetings. Easley filed a second EEOC charge, adding a claim that Hall terminated her employment in retaliation for her 1993 sexual harassment complaint. The EEOC issued a second right-to-sue letter, and Easley amended her complaint to include claim s regarding her termination.All of Easley's other claims were resolved before trial, either by her dismissal 3 of the claims or by the District Court's grant of American Greetings's motion for partial summary judgment. -4- Befor e trial, American Greetings filed a motion in limine regarding numerou s evidentiary matters. The District Court's rulings on two of the matters in this motion are the subject of this appeal. First, the District Court granted American Greetings's mo tionto exclude specific testimony concerning Ward's 1993 harassment of Easley

. Second, the District Court excluded testimony about some interactions between Easley andWard's replacement, Hall, that occurred before Hall became Easley's supervisor. Easley and Hall had met each other at company meetings, through business phone calls, and through similar corporate activities before Hall was transferred to the Osceol a plant. Easley claimed that during several work-related telephone conversations in 1992 Hall had invited Easley to meet him for a drink on Beale Street in Memphis. Easley on these occasions declined Hall's invitations. Easley also claimed that during a company meeting in early 1993 Hall had invited her to join him in a hot tub wit hout her swimsuit, another invita

tion that she declined. Easley sought to introduce the evidence because she felt it would help the jury understand that Hall had fired her because of her 1993 sexual harassment complaint, not because of deficient work performance.
The parties tried Easley's retaliation claim. Easley argued she was retaliate d 3 against and fired for reporting Ward's sexu al harassment in 1993. American Greetings argued Easle y was fired for poor job performance. The jury reached a unanimou s verdict in favor of American Greetings. The District Court entered judgment on this verdict. Easley moved for a new trial and, when the motion was denied, entered this appeal.-5- II.
This Court will reverse a district court's ruling on the admissibility of evidence only if it fin ds the district court abused its discretion. See Harris v. Secretary, United States. Dep't o f the Army , 119 F.3d 1313, 1321 (8th Cir. 1997). "A district court has wide discretion in ruling on the admissibility of proffered evidence . . . ." Id.
The District Court e xcluded specific testimony regarding Ward's harassment of Easley because it

"would be highly prejudicial . . . and would outweigh any probative ef fect." Tr. of Prelim. M. at 3 (Sept. 29, 1997). The District Court also indicate d specifi c testimony concerning Ward's harassment would be needless cumulativ e evidence: "[T]he jury was told generally of th e sexual harassment, but the plaintiff was no t permitted to go into a blow-by-blow account of Ward's misconduct. It wa s undisputed, and the jury was informed, tha t the plaintiff had been sexually harassed by her former supervisor, Ray Ward." Easley v. American Greetings Corp. , No. J-C-96- 122, at 1 (E.D. Ark. Jan. 2, 1998) (order denying motion for new trial). The District Court thereby invoked Rule 403 of the Federal Rules of Evidence. Rule 403 permits a court to exclude evidence if "its probative value is substantially outweighed by th e danger of unfair prejudice, confusion of the issues, or misleading the jury, or b y consideration of undue delay, waste of time, or needless presentation of cumulativ e evidence." Fed. R. Evid. 403.
We conclude it was not

an abuse of discretion to exclude testimony concerning the specific act s of Ward's harassment on a finding that the danger of unfair prejudice substantially outweighed the probative value of such evid ence. The proffered evidence had little pro bative value, because the severity of harassment would not make it more or less likely for an employer to retaliate against an employee who had complained

. The serious nature of the harassment, however, created a risk of unfair prejudic e against American Greetings, despite the company's prompt investigation of Easley' s complaint and termination of Ward's employment. Such testimony also would-6-

enc ourage the jury to grant the plaintiff relief on the grounds she had suffered fro m War d's conduct, not because she had shown her discharge was retaliation fo r complaining about Ward's actions.
We next review the decision of the District Court to exclude testimon y concerning Hall's alleged overtures to Easley. In its order denying Easley's motion for a new trial, the District Court made clear it excluded this testimony pursuant to Rule 403:
Had John H all been the plaintiff's supervisor at the time of the hot tu b incident, then that evidence would have been more proba tive than unfairly prejudicial. In this case, the Court believed that Hall's invitation to join him i n a hot tub at a company meeting would have been unfairl y prejudicial to Hall since , at the time of the "invitation," it would not have been a violation of Title VII.
Eas ley v. American Greetings Corp. , No. J-C-96-122, at 2 (E.D. Ark. Jan. 2, 1998 ) (order denying motion for new trial). Aft er a review of the record, we find the District Court did not abuse its discretion when it determined the evidence should be excluded pursuant to Rule 403.
First , the relevance and probative value of the proffered evidence were slight

. Tes timony concerning Hall's advances would have little relevance to Easley's theory of the case. Before and during trial Easley asser ted she had been fired for complaining about Ward 's behavior, not for refusing Hall's advances. Testimony that Hal l unsuccessfully extended social invitation s to Easley on a few occasions would provide little help in convincing the jury that Hall had retali ated against Easley because she had complai ned about his friend's behavior and had caused that friend to be fired. Easley also admitted in her deposition that Hall had not sexually harassed her, and she did not seek to recover on a hostile-workplace theory for Hall's alleged overtures.-7-

Second, it is clear that the District Court had a reasonable basis for concluding that the proffered testimony's slight probative value was substantially outweighed by counterbalancing Rule 403 considerations. Admitting the e vidence would have opened the door to the introduction of evidence on collateral iss ues (the existence, context, and appropriateness of Hall's overtures to Easley) that only would prolong the trial and that might confus e the jury. The testimony also would have created a risk of unfai r prejudice: the jury might c onclude Easley should recover on the grounds that Hall had sexually hara ssed her or that he had retaliated because she had rejected his advances, when neither of these issues was properly before the jury.
III.
For the reasons stated above, we conclude the District Court did not abuse it s discretion when it excluded the proffered testimony. Therefore, we affi rm the judgment of the District Court. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.