Branch v. Temple Univ.

1

STEPHEN BRANCH, Appellant v. TEMPLE UNIVERSITY; SEAN OUNAN; SHARON BOYLE

No. 21-3099

United States Court of Appeals, Third Circuit

June 14, 2023

NOT PRECEDENTIAL

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) May 17 2023

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-20-cv-02323) District Judge: Hon. Chad F. Kenney

Before: CHAGARES, Chief Judge, GREENAWAY, JR., and PHIPPS Circuit Judges.

OPINION ^[*]

PHIPPS, Circuit Judge

On January 29, 2020, Temple University fired Stephen Branch, an African American male, who had worked there as a roving facilities engineer for sixteen years. Temple's stated reason for terminating Branch's employment was that he skipped work for three consecutive days in January 2020 and lied about his absence. Challenging that stated ground as pretextual, Branch initiated this suit against Temple, his direct supervisor, and a human resources manager for race discrimination and retaliation under federal and state civil rights laws, see 42 U.S.C. §§ 1981, 2000e-2(a); 43 Pa. Stat. § 955(a), and for interference and retaliation under the Family and Medical Leave Act, see 29 U.S.C. § 2612. In exercising jurisdiction over those claims, see 28 U.S.C. §§ 1331, 1343, 1367, the District Court permitted discovery, denied Temple's motion for summary judgment, see Branch v. Temple Univ., 554 F.Supp.3d 642, 665 (E.D. Pa. 2021), and held a jury trial.

Shortly before trial, Branch moved in limine to exclude after-acquired evidence, or alternatively, to bifurcate the trial into liability and damages phases. Branch did not dispute that Temple could support its case with material it reviewed before terminating Branch, such as Temple's logbooks, swipe card records, and surveillance footage showing Branch leaving campus during his shift. But through his motion, Branch argued that Temple could not rely on evidence acquired after it terminated him. That evidence, obtained in discovery, included time records from a second employer showing that, at various times over the years, Branch simultaneously worked a second job during his Temple shift. It also included incriminating text messages from Branch.

The District Court denied Branch's requests and permitted Temple's Director of Labor Relations to testify about the after-acquired evidence, subject to limiting instructions. The jury returned a verdict for Temple.

Through a timely appeal, Branch invoked this Court's appellate jurisdiction. See 28 U.S.C. §§ 1291, 2107(a). He now disputes the District Court's rulings on the introduction of the after-acquired evidence and the testimony of Temple's Director of Labor Relations. For the reasons below, we will affirm the judgment of the District Court.

I. The Limited Relevance of After-Acquired Evidence in a Discrimination Case

As a general matter, a claim of race discrimination in employment rests on proof that race caused or motivated an employer to take an adverse employment action against an employee. See Connelly v. Lane Const. Corp., 809 F.3d 780, 787-88 (3d Cir. 2016) (recognizing but-for and mixed-motive causation standards under Title VII).^[1] Thus, such claims hinge on the employer's mindset at the time of the adverse employment action. See Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989) (plurality opinion) (explaining that Title VII claims focus on the employer's mindset "at the moment" of the employment decision); see also McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 360 (1995); Geraci v. Moody-Tottrup, Int'l, Inc., 82 F.3d 578, 581 (3d Cir. 1996).

Sometimes, however, in litigating an employment discrimination claim, an employer discovers information that would support or independently justify its adverse employment action. See McKennon, 513 U.S. at 359-60; Mardell v. Harleysville Life Ins. Co., 65 F.3d 1072, 1073 n.1 (3d Cir. 1995). But because that after-acquired evidence cannot retroactively affect the employer's basis for the decision, it is not material to the employer's adverse employment decision. See McKennon, 513 U.S. at 360 ("The employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason."); Mardell, 65 F.3d at 1073 n.1 (similar). The after-acquired evidence, especially when it supplies a ground for discipline wholly unrelated to the employer's contemporaneous justification, cannot be used to negate liability. See Delli Santi v. CNA Ins. Cos., 88 F.3d 192, 205 (3d Cir. 1996) (recognizing that after-acquired evidence is inadmissible where it presents a "different and legitimate reason for discharge").^[2]

Still, the overall relevance of a piece of evidence depends on the purpose for which it is offered. See United States v. Morley, 199 F.3d 129, 133 (3d Cir. 1999) ("Here, as in so many cases, inquiries of relevance and proper purpose are intimately intertwined."); see also United States v. Hamann, 33 F.4th 759, 769 (5th Cir. 2022) ("Evidence can be relevant for multiple purposes."); United States v. Davis, 596 F.3d 852, 860 (D.C. Cir. 2010) (same); Lopez v. Tyson Foods, Inc., 690 F.3d 869, 882-83 (8th Cir. 2012) (same). And although after-acquired evidence is not relevant to an employer's state of mind at the time of the adverse employment action, it may be relevant for other purposes. It may be material to damages because it may justify the denial of reinstatement and front pay as well as back pay to start from the date of the employer's discovery of the new evidence. See McKennon, 513 U.S. at 361-62 (explaining how after-acquired evidence may limit damages); Anthony v. Trax Int'l Corp., 955 F.3d 1123, 1133 (9th Cir. 2020) ("[A]t the very least, McKennon permits the use of after-acquired evidence to limit damages."). Similarly, after-acquired evidence may be used to rebut or impeach contrary testimony, see Vichare v. AMBAC Inc., 106 F.3d 457, 467-68 (2d Cir. 1996), or to corroborate facts associated with the employer's contemporaneously-asserted justification for the adverse employment action, see Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 147 n.17 (2d Cir. 1999).

Several rules pertain generally to evidence that is relevant for one purpose but not another, and those apply with equal force to after-acquired evidence. The Federal Rules of Evidence enable a judge, upon a party's objection, to issue a limiting instruction to "restrict the evidence to its proper scope," Fed.R.Evid. 105, or to exclude the evidence "if its probative value is substantially outweighed by a danger of . . . unfair prejudice," id. 403. Similarly, when the purpose of evidence relates to separate issues, the Federal Rules of Civil Procedure allow district judges, at their discretion, to hold separate trials on those issues "to avoid prejudice." Fed.R.Civ.P. 42(b).

II. The Challenged Rulings Related to the Alleged Prejudicial Effects of After-Acquired Evidence

The District Court permitted Temple's use of after-acquired evidence at trial subject to several limiting instructions to the jury. On appeal, Branch disputes the adequacy of these instructions and contends that a more protective measure was required: either bifurcation or exclusion of the after-acquired evidence.

A. The Denial of Branch's Motion to Bifurcate

Through his pretrial motion, which Temple opposed, Branch requested bifurcation of the trial into liability and damages phases. He did so in effort to prevent the afteracquired evidence from influencing the jury's decision on whether Temple discriminated against him.

A ruling on a request to bifurcate trial receives abuse-of-discretion review, see Thabault v. Chait, 541 F.3d 512, 529 (3d Cir. 2008), and here the District Court was well within its discretion to deny Branch's request, see Vichare, 106 F.3d at 467. Separating trials "is not to be the usual course," Arthur R. Miller, 9A Federal Practice & Procedure § 2388 (3d ed. 2023), and even if the trial were bifurcated, after-acquired evidence could be permissibly used at the liability phase to rebut or impeach any contrary testimony by Branch, see United States v. Verdugo, 617 F.3d 565, 578 (1st Cir. 2010) ("A party ordinarily may introduce extrinsic evidence to impeach testimony by contradiction if the extrinsic evidence concerns a subject that is not collateral to the issues being tried."). See generally Daniel R. Coquillette et al., 8 Moore's Federal Practice § 42.20[4][a] (2023); Fed.R.Civ.P. 42(b), advisory committee's note to 1966 amendment. And in this case, the distinctions between the permissible and impermissible purposes of after-acquired evidence are not so bewildering or unfairly prejudicial as to exceed the prophylactic power of a limiting instruction. See Mardell, 65 F.3d at 1073 n.2 ("While bifurcation may sometimes be advisable as a vehicle to insure that after-acquired evidence not be improperly used during the liability phase, in other cases cautionary instructions or stipulations may render it unnecessary.").

B. The Denial of Branch's Motion to Exclude and the Overruling of his Trial Objections

Branch next argues that the District Court's instructions in this case were deficient and did not overcome the prejudicial effects of the after-acquired evidence.

1. Temple's Use of After-Acquired Evidence to Impeach Branch

Branch's trial testimony prompted Temple's initial use of the after-acquired evidence. After Branch stated that his second job did not interfere with his work, Temple cross-examined him with time records in direct rebuttal: they showed that his second job took time away from his shift at Temple. Similarly, when Branch testified that he did not sleep on the job, Temple offered text messages to contradict him. As this information...