Becker v. Arco Chemical Co

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

3-20-2000

Becker v Arco Chemical Co

Precedential or Non-Precedential:

Docket 98-1636 and 98-1888

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Filed March 20, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 98-1636 and 98-1888

WILLIAM P. BECKER

v.

ARCO CHEMICAL COMPANY,

Appellant in No. 98-1636

WILLIAM P. BECKER

v.

ARCO CHEMICAL COMPANY,

William P. Becker,

Appellant in No. 98-1888

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Judge: Honorable Eduardo C. Robreno

(D.C. Civil No. 95-07191)

Argued January 27, 2000

BEFORE: GREENBERG, ROTH, and STAPLETON,

Circuit Judges

(Filed: March 20, 2000)

George P. Wood (argued)

Carmen R. Matos (argued)

Stewart, Wood, Branca & Matos

411 Cherry Street

Norristown, PA 19401

Attorneys for William P. Becker

Maureen M. Rayborn

Daniel V. Johns (argued)

Niza M. Motola

Ballard Spahr Andrews &

Ingersoll, LLP

1735 Market Street, 51st Floor

Philadelphia, PA 19103-7599

Attorneys for ARCO Chemical

Company

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter is before this court on an appeal from an

order denying defendant ARCO Chemical Company's

("ARCO") motion for judgment as a matter of law, or in the

alternative, for a new trial, or in the alternative, for a

remittitur, entered on June 30, 1998, in this employment

discrimination case following a jury verdict in favor of the

plaintiff, William P. Becker ("Becker"). See Becker v. ARCO

Chem. Co., 15 F. Supp.2d 600, 621 (E.D. Pa. 1998) ("Becker

I"). Becker cross-appeals from the district court's order of

July 23, 1998,1 which granted in part and denied in part

his motion to "mold" the verdict to include post-trial

_________________________________________________________________

1. On August 31, 1998, the district court entered an order denying

Becker's motion for reconsideration of its July 23, 1998 order. While

Becker's notice of appeal recites that it is from the orders of July 23,

1998, and August 31, 1998, effectively the cross-appeal is from the July

23, 1998 order on the fee petition and motion to"mold" the verdict.

2

interest on the front pay award and pre-trial interest on the

back pay award, and to reflect adverse tax consequences

Becker suffered by virtue of the lump sum damages award

on his age discrimination claims. See Becker v. ARCO

Chem. Co., 15 F. Supp.2d 621, 639-40 (E.D. Pa. 1998)

("Becker II"). Becker also cross-appeals from that aspect of

the district court's July 23, 1998 order which granted in

part and denied in part his petition for attorney's fees and

costs. Id.

Plaintiff sued ARCO under the Age Discrimination in

Employment Act ("ADEA"), 29 U.S.C. SS 621 et seq., and the

Pennsylvania Human Relations Act ("PHRA"), Pa. Stat.

Ann., tit. 43, SS 951 et seq. (West 1991), contending that

ARCO discriminated against him on the basis of his age by

terminating his employment with the company on March 4,

1994. At the time of his discharge, Becker was 51 years

old. After an 11-day trial which resulted in a verdict in

Becker's favor, the district court on November 4, 1997,

entered a judgment of $736,095.00 for Becker on the verdict.2

While the appeal and cross-appeal raise several

allegations of error, we only need address one issue--

whether ARCO is entitled to a new trial under Fed. R. Civ.

P. 59(a) based on the district court's admission, over

ARCO's repeated objections, of Becker's testimony

pertaining to the "manner" in which ARCO allegedly earlier

had terminated another employee, Linwood Seaver. For

convenience, we refer to Becker's testimony in this regard

as "the Seaver evidence." ARCO contends that the

admission of this evidence violated Fed. R. Evid.

(hereinafter cited in the text as "Rule") 404(b), 403, and

608(b), and that the district court's error in admitting the

testimony was not harmless.

For the reasons that follow, we hold that the district

court erred by admitting the Seaver evidence pursuant to

Rule 404(b). We also conclude that Rule 608(b) clearly does

not provide a basis for introducing Becker's testimony on

this point. Moreover, based on the record presented, we

_________________________________________________________________

2. The total judgment represented the following amounts: (1)

$186,095.00 in back pay; (2) $380,000.00 in front pay; and (3)

$170,000.00 in compensatory damages.

3

cannot say that it is highly probable that the district court's

admission of this evidence did not affect ARCO's

substantial rights. See McQueeney v. Wilmington Trust Co.,

779 F.2d 916, 924, 927-28 (3d Cir. 1985). Hence, the

district court's erroneous evidentiary ruling requires us to

reverse its order of June 30, 1998, insofar as it denied

ARCO's motion for a new trial, and remand the matter to

the district court with directions to grant a new trial on the

age discrimination claims as to all issues. See id. at 931.

Because we are remanding the matter for a new trial in its

entirety, we will dismiss Becker's cross-appeal as moot, and

we will not address ARCO's additional arguments presented

in its appeal.3 See J&R Ice Cream Corp. v. California

Smoothie Licensing Corp., 31 F.3d 1259, 1266 (3d Cir.

1994).

II. JURISDICTION and STANDARD OF REVIEW

The district court exercised subject matter jurisdiction

over Becker's ADEA claim pursuant to 28 U.S.C. S 1331,

and had supplemental jurisdiction over the PHRA claim

pursuant to 28 U.S.C. S 1367. We exercise appellate

jurisdiction over this appeal pursuant to 28 U.S.C.S 1291.

_________________________________________________________________

3. At the outset, we note that ARCO has not challenged that aspect of

the district court's opinion and order denying its motion for judgment as

a matter of law pursuant to Fed. R. Civ. P. 50(b) based on the sufficiency

of Becker's evidence of age discrimination. See Becker I, 15 F. Supp.2d

at 606-09. Therefore, we will not consider whether ARCO is entitled to

judgment as a matter of law on that basis. We also note that we have

considered whether we could grant a partial new trial limited to the issue

of ARCO's liability for age discrimination, but it is apparent to us that

the issues of liability and damages are so intertwined that a new trial in

its entirety is warranted in the circumstances. See Vizzini v. Ford Motor

Co., 569 F.2d 754, 760 (3d Cir. 1977) (discussing circumstances in

which court may grant partial new trial) (quoting Gasoline Prods. Co. v.

Champlin Ref. Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515 (1931)); 11

Charles Alan Wright, et al., Federal Practice and Procedure, S 2814, at

150 (2d ed. 1995) ("It therefore now may be regarded as settled that if an

error at trial requires a new trial on one issue, but this issue is

separate

from the other issues in the case and the error did not affect the

determination of the other issues, the scope of the new trial may be

limited to the single issue.").

4

In Bhaya v. Westinghouse Electric Corp., 922 F.2d 184

(3d Cir. 1990), we explained that when reviewing the

district court's decision to grant or deny a motion for a new

trial, we must give substantial deference to the trial judge's

decision " `who saw and heard the witnesses and has the

feel of the case which no appellate printed transcript can

impart.' " Id. at 187 (quoting Cone v. West Virginia Pulp &

Paper Co., 330 U.S. 212, 216, 67 S.Ct. 752, 755 (1947)).

We also stated that "[p]articular deference" is appropriate

where the decision to grant or deny a new trial rested on

the district court's evidentiary ruling that itself was

entrusted to the trial court's discretion. See id.; see also

Link v. Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 921-22

(3d Cir. 1986) ("Where a contention for a new trial is based

on the admissibility of evidence, the trial court has great

discretion . . . which will not be disturbed on appeal absent

a finding of abuse.") (internal quotation marks omitted).

We have indicated that a finding of reversible error " `may

not be predicated upon a ruling which admits or excludes

evidence unless a substantial right of the party is

affected.' " See Glass v. Philadelphia Elec. Co., 34 F.3d 188,

191 (3d Cir. 1994) (quoting Linkstrom v. Golden T. Farms,

883 F.2d 269, 269 (3d Cir. 1989)); see also Fed. R. Evid.

103(a); Fed. R. Civ. P. 61. "In reviewing evidentiary rulings,

if we find nonconstitutional error in a civil suit, such error

is harmless only `if it is highly probable that the error did

not affect the outcome of the case.' " Glass, 34 F.3d at 191

(quoting Lockhart v. Westinghouse Credit Corp. , 879 F.2d

43, 53, 59 (3d Cir. 1989)).

We review the district court's decision to admit evidence

of a party's "prior bad acts" (which we will call "Rule 404(b)

evidence") under Rules 404(b) and 403 for an abuse of

discretion. See United States v. Morley, 199 F.3d 129, 133

n.6 (3d Cir. 1999); J&R Ice Cream, 31 F.3d at 1268; see

also Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 110

(3d Cir. 1999) ("We review evidentiary rulings for abuse of

discretion . . . with substantial deference under Rule 403.")

(citation omitted); United States v. Balter, 91 F.3d 427, 437

(3d Cir. 1996) ("Trial court rulings under Rule 404(b) are

reviewed for an abuse of discretion and may be reversed

only when they are `clearly contrary to reason and not

5

justified by the evidence.' ") (quoting United States v.

Bethancourt, 65 F.3d 1074, 1079 (3d Cir. 1995) (citation

omitted)). Where, however, the district court fails to explain

its grounds for denying a Rule 403 objection and its

reasons for doing so are not otherwise apparent from the

record, there is no way to review its discretion. See United

States v. Himelwright, 42 F.3d 777, 781 (3d Cir. 1994). In

those circumstances, we need not defer to the district

court's ruling, and we may undertake to examine the record

and perform the required balancing ourselves. See id.; see

also United States v. Sriyuth, 98 F.3d 739, 745 n.9 (3d Cir.

1996).

III. FACTS and PROCEEDINGS

A. Statement of Facts

We recite the germane facts from Becker's perspective as

the verdict winner. See J&R Ice Cream, 31 F.3d at 1262.

ARCO's predecessor, Sinclair-Koppers Company, hired

Becker as a chemist in its Product Development

Department in 1970. In 1980, Becker transferred to ARCO's

headquarters in Newtown Square, Pennsylvania, where the

company assigned him to work in the physical testing

laboratory until his discharge in March 1994. The physical

testing laboratory is a part of ARCO's Chemical Research

Services Group, which in turn is part of ARCO's Research

and Development Department ("RDD"). At the time of

Becker's discharge in 1994, Andrew Goldsmith

("Goldsmith") was Manager of the Research Services Group,

and James Victor ("Victor") was the Manager of the

Chemical Analysis and Physical Testing Laboratories. Victor

was Becker's immediate supervisor, and Goldsmith was

Victor's immediate supervisor and Becker's "second-level

supervisor." Goldsmith's predecessor in his position was

Dr. Kermit Ramey ("Ramey"), who retired from ARCO in

1992.

The physical testing laboratory conducted routine

strength and durability tests on various materials used in

a variety of products. ARCO employed Becker as a"Senior

Principal Scientist," and in that capacity, he supervised

6

three professionals, ten laboratory technicians and was

responsible for testing thousands of samples. As the

laboratory supervisor, Becker's responsibilities also

included providing test results to ARCO's in-house

customers that had submitted the samples for testing.

Becker's position additionally required him to submit

reports to his superiors which detailed his laboratory

activities during specific time periods. App. at 2849.4

In each year of his employment with ARCO, Becker

received written performance evaluations, which he

submitted for the jury's consideration. In each performance

evaluation Becker's overall ratings from 1970 to 1993 were

average, above average, and in some years, superior.

Moreover, each year from 1970 to 1993, ARCO increased

Becker's salary either by a merit increase or a bonus. Even

in his last year of employment, ARCO awarded Becker a

one percent bonus.

Becker testified at trial that in May 1985, Kermit Ramey,

then the Manager of the Research Services Group, told him

that he was going to have a new supervisor, James Victor.

According to Becker, Ramey told him that Dr. James

Connor ("Connor"), Vice President of the RDD,"want[ed] to

have younger people in management, [and] therefore, Jim

Victor is going to be your new boss." App. at 2835.

Becker also testified that in March 1987, Victor advised

him during a telephone conversation about Becker's 1986

performance review that "he [had] to knock[him] down a

notch." App. at 2838. According to Becker, Victor stated

that he was taking Becker "off the fast track," because

"younger people are complaining because you older guys

are getting all the money allocated for the merit budget."

App. at 2839. Becker testified at trial that he was left with

the impression after his conversation with Victor that he

(Becker) was one of those "old guys," and that he was "in a

pretty bad spot" at that point. Id.

_________________________________________________________________

4. Throughout this opinion, we cite the Joint Appendix as "App. at ___."

Similarly we refer to the trial exhibits, which are bound and paginated

separately, as "TE at ___." Also, we refer to the parties' briefs in the

appeal from ARCO's post-trial motion as "Appellant ARCO's Br. at ___"

and "Appellee Becker's Br. at ___."

7

Becker testified that in August 1990, he met with Ramey

and Victor and discussed Linwood Seaver's work

performance. According to Becker, Ramey asked Becker to

confirm his (Ramey's) understanding concerning certain

aspects of Seaver's work on the "Fibersorb project," a

project that Becker had supervised. Becker testified at trial

that Ramey asked him if he recalled that the project was a

"disaster," with bad data and poor test results. Becker

further testified that he told Ramey that he could not

confirm Ramey's impression in that regard because it was

completely contrary to his (Becker's) recollection of the

results achieved on the project. Becker testified that Ramey

said in response that "it doesn't make any difference

anyhow, Seaver isn't coming back here regardless. He's

fired and that's that." App. at 3232-33.

The record also reflects that in late 1991, ARCO offered

certain employees an early retirement package. ARCO

approached Becker with the offer, but he rejected it

because he wanted to continue working for the company.

App. at 2840; app. at 3255. Becker discussed the

retirement package with Victor, and specifically addressed

the reasons why he could not accept the offer. Becker

explained that he "loved his job," "could not afford to

retire," and that he planned on remaining at ARCO"for the

duration." App. at 2842. According to Becker, Victor was

"upset" at Becker's comments concerning his hopes of

continued employment at ARCO, see id., and was "aloof

and standoffish" towards him after that conversation. App.

at 2843.

Testimony adduced at trial shows that in Becker's 1991

performance evaluation (completed in February 1992),

Victor criticized Becker's handling of certain aspects of "the

dylark test" that Becker performed during October 1991.

App. at 2850-52. Becker described dylark as a "plastic

material that can be molded into different shapes." Becker's

principal responsibility in conducting the dylark test was to

test the product's strength so that the material could be

compared meaningfully to a competitor's similar plastic

material. App. at 2843. Becker testified that he completed

the tests in what he considered to be a timely manner, and

reported their results to the customer. Nevertheless, Victor

8

criticized Becker's performance of the dylark test, stating

that Becker's "personal credibility was damaged" because

he failed to provide test data as promised and failed to

communicate fully the details of the testing to the

customer. TE at 154.

After Victor refused to retract his negative comments in

Becker's 1991 evaluation, Becker filed an Employee

Problem Resolution ("EPR") appeal. ARCO designed the EPR

process to assist employees with resolving employment

performance issues without fear of reprisal. Apparently,

ARCO did not resolve Becker's EPR appeal concerning his

1991 evaluation to his satisfaction. App. at 2856.

According to Becker, in July 1992, he found a note on

his desk in the morning when he came to work. The note

said "Congradulations [sic], short timer. ha ha." TE at 502.

He took the note as meaning that he would not be

employed at ARCO much longer. Becker did not know who

put the note on his desk, but he had it notarized to prove

that he received it that day.

In June 1993, Dr. Kenneth McDaniel ("McDaniel") and

Dr. Andrew Thompson ("Thompson"), two of Becker's ARCO

customers, expressed dissatisfaction with the timeliness of

certain foam samples submitted to Becker's laboratory.

App. at 3095-96. Apparently, McDaniel and Thompsonfirst

mentioned the perceived problems to their supervisor, Dr.

John Televantos ("Televantos"). App. at 3112. Televantos, in

turn, orally communicated these complaints and his own

dissatisfaction with the physical testing laboratory to

Becker's second-level supervisor, Goldsmith. App. at 3095-

98. Later, both McDaniel and Thompson wrote memoranda

which memorialized their complaints and the basis for

them. TE at 35-36. Specifically, both McDaniel and

Thompson complained that the slow turnaround time in

Becker's laboratory caused them to transfer the necessary

testing work to ARCO's South Charleston, West Virginia,

facility.

Sometime shortly after Goldsmith and Victor learned of

the customers' complaints about Becker's laboratory, they

consulted the Director of the Employee Assistance Program,

David Sullivan, Ed. D. ("Sullivan"), and the Human

9

Resources Director, Ronald Shearer ("Shearer"), about the

situation. Subsequently, Goldsmith and Victor told Becker

that he was required to meet with Sullivan to discuss the

basis for his performance problems. TE at 39. It appears

from the record that McDaniel and Thompson wrote their

memoranda to document their complaints around the same

time frame that Goldsmith and Victor referred Becker for

the evaluation. App. at 3132. Becker's supervisors,

however, did not provide him with copies of the written

complaints prior to his first meeting with Sullivan. App. at

1115.

Becker met with Sullivan twice in July 1993. Sullivan's

notes indicate that he believed that Becker was under

stress related to work and the alleged customer complaints,

but that he "exhibited no signs of dysfunction," and thus

was "capable of carrying out his duties." TE at 525. In view

of the customer complaints and his supervisors' referral for

the psychological evaluation, Becker feared at this point

that his position was in jeopardy. Becker clearly was

distressed by the fact that his supervisors required him to

consult with Sullivan.

In response to the McDaniel and Thompson memoranda,

Becker submitted written "rebuttals" directed to his

customers and supervisors. In those memoranda, Becker

explained his position and characterized the customers'

data and ultimate conclusions concerning his work as

inaccurate and without merit. TE at 42-47; see also TE at

566-84. Becker wrote these rebuttals in January 1994,

after he met with Sullivan.

Early on March 4, 1994, Victor, Goldsmith and Shearer

met with Becker and informed him that he was terminated

effective immediately. App. at 2865. Insofar as we can

ascertain, ARCO took this step without prior warning. As

might be expected, Becker, who had been employed by

ARCO and its predecessors for about 24 years, was

shocked by this treatment. In a letter dated March 4, 1994,

Shearer confirmed Becker's dismissal, and referred to

unresolved "performance issues" as its basis. TE at 637.

ARCO's brief explains that Goldsmith and Victor decided in

early 1994 to fire Becker because of Becker's (1) repeated

problems with his customers; (2) continual refusal to

10

respond "constructively" to customer complaints; and (3)

"apparent obsession with creating and distributing

confrontational and often insulting rebuttal memoranda."

Appellant ARCO's Br. at 15.

According to Becker's theory at the trial, his customers

fabricated the alleged problems with his laboratory at his

supervisors' direction. Thus, in Becker's view, the

customers' complaints were "trumped up" so that ARCO

could cite them as a legitimate basis for terminating his

employment. See Appellee Becker's Br. at 10; app. at 3132;

app. at 3274-76. Thus, the validity of the customer

complaints which allegedly served as part of the

justification for Becker's dismissal became a central issue

in the case.

Robert Smith ("Smith"), a laboratory technician, replaced

Becker almost immediately after Becker's termination.

Smith was 43 years old at the time of his promotion to

Becker's position. Becker had hired and trained Smith, and

was primarily responsible for his performance reviews.

Appellee Becker's Br. at 11; app. at 2876-77. According to

Becker, Smith was a very accurate and good technician,

but he lacked the level of Becker's technical expertise and

knowledge. Moreover, Becker also had indicated in Smith's

1993 evaluation that he needed to develop further his

interpersonal skills. Id. at 2877.

ARCO offered to make Becker a lump sum payment

"equal to 24 weeks of [Becker's] base pay, minus applicable

withholdings," contingent on his signing a separation

agreement requiring him, inter alia, to waive any future age

discrimination claim against ARCO. Thus, ARCO offered

Becker one week's pay for every year he had worked for

ARCO or its predecessor. ARCO also said that it would pay

him "four weeks' pay" and pay him for 30 days of unused

vacation time. These payments were not contingent on

Becker signing the release. Becker refused to sign the

waiver, and subsequently filed this suit.

B. Procedural History

Becker filed his complaint in the district court on

November 15, 1995, alleging violations of the ADEA (count

11

1) and the PHRA (count 2), and asserting a state law claim

for intentional infliction of emotional distress (count 3). The

district court granted ARCO's motion for summary

judgment on the intentional infliction of emotional distress

claim by order entered July 1, 1997, but denied its motion

as to the state and federal age discrimination claims. App.

at 602-06. The remaining counts proceeded to a singular

trial on liability and damages. On November 3, 1997, the

jury found that ARCO violated the ADEA and the PHRA by

terminating plaintiff 's employment, and awarded Becker

$736,095.00 in damages.

Subsequently, the parties filed post-trial motions, the

dispositions of which are the basis for these appeals. First,

ARCO filed a motion for judgment as a matter of law

pursuant to Fed. R. Civ. P. 50(b), or in the alternative for a

new trial pursuant to Fed. R. Civ. P. 59(a), or in the

alternative for a remittitur. The district court denied

ARCO's motion in its entirety by memorandum opinion and

order entered June 30, 1998. See Becker I, 15 F. Supp.2d

at 600. Second, Becker petitioned the district court for an

award of $562,421.25 in attorney's fees and $36,613.95 in

costs, and filed a separate motion to "mold" the verdict to

include post-trial interest on the front pay award and pre-

trial interest on the back pay award, and to reflect adverse

tax consequences he suffered by reason of receiving his

back pay and front pay award in a lump sum. By

memorandum opinion and order entered July 23, 1998, the

district court granted in part and denied in part Becker's

petition for attorney's fees and costs, and his motion to

mold the verdict. See Becker II, 15 F. Supp.2d at 621. Then

on August 31, 1998, the district court entered an order

denying plaintiff 's motion for reconsideration of the prior

July 23, 1998 order in Becker II.

ARCO appeals from the district court's order in Becker I,

and Becker cross-appeals from the district court's order in

Becker II and its order denying reconsideration. Becker

does not appeal from the summary judgment on the

intentional infliction of emotional distress claim.

IV. DISCUSSION

ARCO contends that it is entitled to a new trial on the

federal and state age discrimination claims based in part on

12

the district court's erroneous admission of certain evidence

pertaining to the circumstances surrounding ARCO's

discharge of Becker's co-employee, Linwood Seaver. ARCO

contends that the court should have excluded the evidence

pursuant to Rules 404(b), 403 and 608(b). Principally, it

claims that there was not a proper basis under Rule 404(b)

for admitting the "manner" in which ARCO terminated

Seaver. Alternatively, it argues that assuming arguendo

that Rule 404(b) permitted the evidence's admission, the

district court should have excluded it under a balancing

analysis pursuant to Rule 403.

As previously mentioned, the district court permitted

Becker to testify that, in August 1990, in connection with

ARCO's dismissal of Seaver, Ramey asked Becker to

confirm Ramey's understanding regarding the outcome of

the "Fibersorb project," a project on which Seaver had

worked and Becker had supervised personally. Specifically,

Ramey asked Becker to confirm Ramey's understanding

that the project was unsuccessful, which in turn obviously

reflected poorly on Seaver. Becker's testimony on this point,

in its entirety, is as follows:

Q. Now, I have another question about--taking you

back in time, if I may, to the time period of 1990,

around the time period of 1990, did there come a

time when you had a meeting with Dr. Ramey and

Mr. Victor regarding another ARCO employee?

A. Yes.

Q. And can you tell the jury and his Honor about that

briefly?

A. Yes, I was asked by Mr. Victor to come to Dr.

Ramey's office. It was in the early afternoon of

August the 15th. Mr. Victor was there with Dr.

Ramey. Dr. Ramey handed me a letter that Mr.

Seaver had written to Dr. Griffith, the vice

president of research and development. Dr. Ramey

said that he wanted me just to focus on the part of

the letter that had to do with Fibersorb and that

Dr. Ramey wanted--needed to respond back to Dr.

Griffith in regards to the Seaver letter.

13

Dr. Ramey said that according to his recollection

of the first meeting, there was some--it [ i.e., the

project] was a total disaster with bad data

presented and poor test results.

Q. And did you respond to that?

A. Yes, I did.

Q. And what was your response?

A. Well, I was totally shocked because we had

presented extensive laboratory data which showed

that that was totally opposite of what Dr. Ramey

had told me--had said about the bad data

presented and poor test results.

Q. What was your impression at that time?

A. Well, he was asking me if I had--if my recollections

were the same as his. And of course, they weren't

and I told him so.

Q. And what did you tell him?

A. I explained to him the entire circumstances of the

meeting that Dr. Ramey was referring to and after

I finished, Dr. Ramey said that it doesn't make any

difference anyhow, Seaver isn't coming back here

regardless. He's fired and that's that.

App. at 3232-33. As both parties recognize, the inference

that Becker drew from this alleged conversation was that

Ramey and Victor wanted Becker to corroborate that Seaver

performed poorly on the Fibersorb project, and thus, in

essence, asked Becker to "lie" about the quality of Seaver's

work. See app. at 674 (Def.'s Mem. in Supp. of Mot. for a

New Trial); see also app. at 3238. Indeed, both Becker's

testimony and his counsel's closing argument conveyed the

message to the jury that it was Becker's impression that

Ramey and Victor solicited his assistance in fabricating

evidence of Seaver's poor performance on the project to

facilitate Seaver's termination.5

_________________________________________________________________

5. For example, during Becker's cross-examination, ARCO's counsel

elicited Becker's interpretation of the significance of Ramey's comments

14

While the record on the point is somewhat confusing, we

have studied it intensely and it appears to us that Becker's

counsel first raised the specific subject of the"Seaver

evidence" during Becker's testimony on redirect

examination. When ARCO objected to this testimony,

Becker's counsel argued that the evidence was admissible

at that juncture to contradict ARCO's prior testimony to the

effect that it retained older employees. App. at 2956 ("Your

honor, they opened the door when they were proud to say

these people stayed. . . . This goes to the credibility and the

pretext issues that are paramount in this case."); app. at

2954 (by the court: "[T]here are two questions [pertaining to

admissibility]: number one, whether this can be done on

redirect. And I find I have a problem with that. But even

assuming that this is proper redirect, the question would

be whether you can introduce evidence of prior bad acts by

the decision maker as a way of impeaching the decision

maker's [credibility]."). At that time, the court excluded the

testimony, holding as follows:

THE COURT: I find that it is beyond the scop e of

redirect. I also find that even if it is within the scope of

redirect, under [the] 403 analysis, the evidence should

not be allowed into the case.

_________________________________________________________________

to him at the meeting on August 15, and what Ramey wanted Becker to

do:

Q. And your observations today, were that you were asked to lie,

correct?

A. Say that again?

Q. Your observations today when you spoke earlier were that you

were asked to lie. It was your impression that you were asked to

lie,

correct?

A. At that time?

Q. Yes.

A. That's my feelings [sic], yes.

App. at 3238; see also app. at 3242-46; app. at 3268-69 (Becker's

closing argument).

15

On the one hand, . . . whatever probative value the

evidence may have is substantially outweighed by the

danger of unfair prejudice involving a different

situation with a different employee, and the danger of

confusion to the jury as to what the issues are in this

particular case.

So that evidence, I find will be excluded.

App. at 2958.

The next day, October 24, 1997, Becker filed a

memorandum of law in support of his attempt to introduce

the "manner" of Seaver's termination, arguing that it was

relevant to establish ARCO's "intent" in terminating plaintiff

and "plan" of fabricating reasons for terminating older

employees under Rule 404(b). See app. at 607-11

("Plaintiff 's Memorandum of Law in Support of Introducing

the Manner of Terminating Older Employees."). We

understand that this was the first point at which Becker

offered the evidence under Rule 404(b).

On October 25, 1997, ARCO filed its opposition to

Becker's memorandum, contending that Becker was

offering his testimony concerning the "manner" in which

ARCO allegedly terminated Seaver for an improper purpose

under Rule 404(b). Specifically, it argued that Becker

sought to establish from this evidence that, "because

[ARCO] found it necessary to discharge another employee

who was over 40, it must have been because of age

discrimination, and therefore, because [ARCO] found it

necessary to discharge plaintiff, it must also be because of

age discrimination." App. at 615.

In response to Becker's memorandum, the court heard

oral argument on October 27, 1997, and appears to have

retreated from its prior position regarding the testimony's

admissibility. Because it is crucial to our analysis to

understand the district court's rationale for admitting this

evidence, we will highlight the relevant portions of the

discussion between the court and counsel on this point:

THE COURT: [O]kay, it doesn't strike me that it [the

Seaver evidence] has anything to do with the reasons

why--why Mr. Seaver was terminated[.] [I]t has to do

with modus operandi of Mr. Victor and Dr. Ramey.

16

. . . .

MS. MATOS [Becker's attorney]: It goes t o the state

of mind and the way that they--

THE COURT: See, I think your motion kind . . . of

asks for more than you need. I mean this doesn't seem

to me [to have] anything to do [with] the reason why

Seaver was terminated. That is not at issue.

The question is how--the point would be that if the

jury believed the testimony, it would show that Mr.

Victor and Dr. Ramey had previously created a pretext

to get rid of an employee.

Now that doesn't mean that they didn't have cause to

get rid of the employee, or that it was right or wrong.

It wouldn't get us down that road. So, that's what I--I

find your motion nothing out of the ordinary.

Lets hear from the defendant, what's the problem

with this.

. . . .

MR. JOHNS [ARCO's attorney]: [Y]ou 're going to ask

the question, plaintiff will get up and ask the question

and leave this inference out there.

THE COURT: Well, the inference, there is no

inference, I mean if you ask somebody to falsify

testimony, [t]hat's pretty clear. That has nothing to do

with it. That is--that would go to whether or not the

decision maker had previously created--it goes to

credibility, whether or not he had previously had

trumped up charges. I mean that's basically what it is.

. . . .

MR. JOHNS: Again, your Honor, the plaintiff is

confusing the decision maker in that case, which is

Kermit Ramey, with the decision makers in this case

which are Andrew Goldsmith and Jim Victor. And as

well, your honor, I believe that this is basically just a

spin on . . . what actually was testified to at Mr.

Becker's deposition.

17

He testified at length about these circumstances and

never once said that anyone asked him to fabricate or

lie about this.

THE COURT: Well, I think that's proper cross-

examination, he may have a problem explaining that

. . . because that would seem to be pretty important.

MR. JOHNS: That's correct, your Honor, but I

thought your ruling now was that they could only ask

Mr. Victor and no[t] re-open--

THE COURT: No, they will ask Mr. Victor. Mr. V ictor

may say yes, it all happened. If Mr. Victor denies it,

then in rebuttal then they can, they can put on a

witness that would address that issue.

MR. JOHNS: . . . . And plaintiff 's allegat ions relating

to Mr. Victor are solely that Mr. Victor may have been

present at this meeting. Even the plaintiff does not get

up and say that Mr. Victor asked him to fabricate

evidence. And Mr. Victor is the decisionmaker here, not

Dr. Ramey. And therefore, your Honor, we believe that

this is totally prejudicial at this late stage of the game.

THE COURT: Well, let's take it one step at a t ime.

We'll see what Mr. Victor says.

App. at 3063-67.

Quite predictably, Becker's counsel questioned Victor

concerning the events that allegedly transpired, but he

denied ever having been present in a meeting in which

Ramey asked Becker to recollect Seaver's performance in a

manner that was contrary to Becker's actual impressions.

Subsequently, Becker's counsel outlined the substance of

the proposed rebuttal testimony, and the court again

addressed the admissibility of the Seaver evidence. At that

juncture, the district court considered again whether

Becker could testify, consistently with Rule 404(b), about

his recollection of the meeting in which Seaver and the

Fibersorb project were discussed. The colloquy during this

later discussion reveals the district court's theory of

admissibility under Rule 404(b) for this evidence:

THE COURT: . . . It's not being offered to say that

Mr. Victor is a bad person because he had-he had done

18

this in the past. It's being offered to show a pattern, or

habit. A pattern or habit can only be shown by

indicating what the person has done in the past.

Now, if they were going to show that he had--you

know, he was nasty to his neighbor, that's something

else.

MR. JOHNS: That's correct, your Honor, but one

instance in 1990 in which Mr. Victor sat in and

listened to Dr. Ramey does not establish a pattern or

habit. And under the rule, I think clearly the case law

is clear on that, that this should be excluded on that

basis.

. . . .

THE COURT: What you're saying is that you can' t

have a habit out of one act?

MR. JOHNS: That's right, your Honor.

. . . .

MS. MATOS: [in response] I don't think w e referred

to that rule, we referred to Rule 404(b). And actually

we are under Rule 404(b) . . . .

And under that rule, even in criminal cases, if a

criminal commits a crime in the past, even if he's not

convicted[,] that can be used.

THE COURT: Well, I mean it seems to me that in this

case the event is nearly identical and as such it would

be probative of plan, knowledge, intent and preparation.

I would agree with you if it had to do with some other

conduct that is not probative, but we have allegedly the

same case.

. . . .

Now, I'm not telling you that its true. The jury may

not believe it at all, may think its ridiculous, but I can't

--I don't think there will be any stronger evidence. . . .

Now, that's entirely up to the folks in the jury to

believe it, but I think they ought to hear it.

. . . .

19

[T]he point here is that you had an employee, and

the employee, there was a request, according to the

plaintiff, that he falsif[y] evidence. What difference does

it make if he's 80 years old, if he's 21 years old. The

point is that his testimony is that exactly what is

happening in this case, I was asked to do it before, that

goes to motive, intent and practice. . . .

App. at 3225-30 (emphasis added). As these passages

show, the court admitted the evidence under Rule 404(b),

but did not perform a Rule 403 analysis on the record at

that time.6

The court, however, later did provide a limiting

instruction to the jury in its charge, stating the purposes

for which the Seaver evidence could be considered. But the

court's jury instruction on this point was rather cursory,

and we cannot understand how the jury could have derived

much meaning from it:

Now you've also heard evidence of Mr.--Dr. Ramey

made comments to Mr. Becker in the presence of Mr.

Victor, concerning the termination of another ARCO

Chemical employee. Those statements were not

admitted into evidence to prove the character of Dr.

Ramey or Mr. Victor in order to show that they

performed similar acts when terminating Mr. Becker's

employment. You may only consider that evidence as

proof of motive, intent, preparation, plan or knowledge.

App. at 3298 (emphasis added).

We must determine whether the district court abused its

discretion in admitting this evidence under Rule 404(b),

and if not, whether the balancing test of Rule 403

nonetheless compels the conclusion that the court erred in

admitting the testimony. We begin with the concept of

relevancy. Rule 401 defines relevant evidence as"evidence

having any tendency to make the existence of any fact that

_________________________________________________________________

6. While the district court did not make an analysis under Rule 403 at

the time that it ruled that the Seaver evidence was admissible, it

provided its rationale for admitting the evidence under Rule 403 in its

memorandum opinion denying ARCO's post-trial motion. See Becker I,

15 F. Supp.2d at 613-15.

20

is of consequence to the determination of the action more

probable or less probable than it would be without the

evidence." Fed. R. Evid. 401. Relevant evidence is

admissible unless the rules of evidence or other controlling

constitutional provisions, statutes or rules provide

otherwise. See Fed. R. Evid. 402; Sriyuth, 98 F.3d at 745.

Rule 404(b) is one of the rules limiting the admissibility

of otherwise relevant evidence. See Sriyuth, 98 F.3d at 745;

see also United States v. Scarfo, 850 F.2d 1015, 1019 (3d

Cir. 1988) (citing Huddleston v. United States , 485 U.S.

681, 687, 108 S.Ct. 1496, 1500 (1988)). In Sriyuth, we

reiterated the long-standing principle that Rule 404(b)

precludes the admission of evidence of other crimes,

wrongs or acts to prove a person's character. Sriyuth, 98

F.3d at 745; see also United States v. Johnson , 199 F.3d

123, 128 (3d Cir. 1999) (permitting admission of evidence of

prior robbery to show defendant's "common plan" in

prosecution under 18 U.S.C. S 1951 for conspiracy to

interfere with interstate commerce by robbery, and noting

that we favor admission of Rule 404(b) evidence"if relevant

for any other purpose than to show a mere propensity or

disposition on the part of the defendant to commit the

crime") (internal quotation marks omitted); Scarfo, 850 F.2d

at 1019 ("We have said that we will refuse to admit

evidence of prior criminal acts which has no purpose except

to infer a propensity or disposition to commit crime.")

(internal quotation marks omitted). Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order

to show action in conformity therewith. It may,

however, be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.

. . .

We have adopted a four-prong test to determine the

admissibility of Rule 404(b) evidence:

`(1) the evidence must have a proper purpose under

Rule 404(b); (2) it must be relevant under Rule 402; (3)

its probative value must outweigh its prejudicial effect

under Rule 403; and (4) the [district] court must

21

charge the jury to consider the evidence only for the

limited purpose for which it was admitted.'

See J&R Ice Cream, 31 F.3d at 1268 (quoting United States

v. Console, 13 F.3d 641, 659 (3d Cir. 1993) (quoting United

States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992))); see

also Himelwright, 42 F.3d at 781 (stating that for "other

crimes" evidence to be admitted, it must be relevant

logically, under Rules 404(b) and 402, to any issue other

than the defendant's propensity to commit the act in issue,

and its probative value must outweigh its prejudicial effect).

In denying ARCO's motion for a new trial, the district

court found Becker's testimony admissible under Rule

404(b) because it was evidence of a "scheme or plan of

fabricating reasons used by the decisionmaker in

terminating employees." Becker I, 15 F. Supp.2d at 614.

The district court also reasoned that "evidence of an

instance in which a pretext was fabricated in connection

with the termination of another employee, could also be

relevant to the issue of whether Mr. Victor, the decision

maker in this case, acted with discriminatory intent." Id.

Reading these passages in conjunction with the court's

statements on the record during the trial, we understand

that the district court predicated its admissibility ruling on

its conclusion that the Seaver evidence showed the plan,

pattern or practice ARCO utilized in terminating its

employees, which in turn was relevant to determining a

specific disputed fact in the case--whether ARCO provided

pretextual reasons to support Becker's dismissal. This

specific disputed fact, in turn, was relevant to an ultimate

fact in dispute--whether ARCO intentionally discriminated

against Becker because of his age. Hence, the proffered

purpose for introducing evidence tending to establish

ARCO's plan in terminating employees was so that the jury

could infer that ARCO had a discriminatory intent in

discharging Becker from the way it allegedly terminated

Seaver. On appeal, Becker repeats this theory of

admissibility. See Appellee Becker's Br. at 40.

ARCO contends that the district court's ruling in this

regard is erroneous for two reasons. First, it asserts that

the Seaver evidence could not be admitted to establish

Victor's or Goldsmith's "scheme" or "plan" because neither

22

had asked Becker to recall any aspects of Seaver's

performance on the Fibersorb project. As ARCO correctly

points out, even according to Becker's version of the events

that took place at the August 1990 meeting, Ramey--not

Victor--asked Becker to substantiate Ramey's recollection

concerning the disastrous results on the Fibersorb project.

Appellant ARCO's Br. at 39. Second, ARCO contends that

the event at issue, i.e., the meeting at which Ramey

allegedly asked Becker to corroborate a fabricated

performance deficiency, was too remote in time from

Becker's eventual discharge to constitute evidence

establishing ARCO's common scheme or plan. Thus,

ARCO's contentions clearly implicate the first inquiry under

the four-part analysis we described in J&R Ice Cream,

namely, whether the testimony is admissible for a proper

purpose under Rule 404(b). Given the two theories of

admissibility proffered here, we must consider whether the

Seaver evidence is admissible either to establish ARCO's

intent or "scheme or plan."7 See Becker I, 15 F. Supp.2d at

614.

_________________________________________________________________

7. We point out that Becker has not argued that the Seaver evidence was

admissible for any other purpose other than establishing ARCO's intent

and common scheme or plan, despite the fact that the district court, in

a somewhat conclusory fashion, cited other purposes listed in Rule

404(b) which it believed supported the admission of this evidence under

the rule. For example, in its ruling on the record, the district court

stated that, in addition to establishing ARCO's"intent" and/or "scheme

or plan," the Seaver evidence was probative of, inter alia, ARCO's

"knowledge," "motive" and "preparation." App. at 3228, 3230. Even if

Becker had contended before us that these additional exceptions

provided a legitimate basis for admitting the Seaver evidence under Rule

404(b), we summarily would have rejected that argument. First, it cannot

be argued plausibly that evidence of ARCO's alleged fabrication of

Seaver's poor performance could establish ARCO's"preparation" or

"motive" in connection with Becker's termination. Compare Balter, 91

F.3d at 437 (holding that district court properly admitted Rule 404(b)

evidence that defendant in murder-for-hire criminal trial boasted about

his prior experience as a murderer for hire under the theory that it

established the defendant's motive and preparation; the witness testified

that the defendant stated that he "had done this type of thing before . .

.

that he had not been doing it, but would do it because he needed the

money," and "that he knew what he had to do, he had done it before and

he knew what he had to do to kill [the victim].") (internal quotation

23

First, we will consider Becker's contention that the

Seaver evidence is admissible for purposes of establishing

ARCO's intent to discriminate against Becker. While

Becker's brief does not articulate clearly how this evidence

tends to establish ARCO's intent to discriminate against

Becker, it appears that Becker hoped, through this

evidence, to demonstrate that ARCO terminated him in a

similar manner, i.e., by fabricating performance problems

to justify its predetermined decision to fire him. See

Appellee Becker's Br. at 40. Becker contends, therefore,

that the evidence was relevant logically to a disputed issue

and admitted for a proper purpose under Rule 404(b)--to

establish the discriminator's intent. In support of this

argument, Becker asserts that similar evidence of past

discriminatory treatment of other employees has been

admitted in employment discrimination suits for that same

purpose.

To be sure, our precedents teach that in an employment

discrimination case in which the employee's proof of

intentional discrimination is comprised of circumstantial

evidence, the trier of fact may infer an employer's

discriminatory intent where the plaintiff 's evidence renders

the employer's asserted nondiscriminatory reasons for the

plaintiff 's discharge weak, implausible, inconsistent or

contradictory. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d

Cir. 1994); see also Sheridan v. E.I. DuPont de Nemours and

Co., 100 F.3d 1061, 1067 (3d Cir. 1996) (en banc).

Arguably, the Seaver evidence rendered ARCO's purported

nondiscriminatory reasons weak or implausible, because it

made it more likely that Becker performed satisfactorily and

that ARCO fabricated reasons in order to facilitate his

lawful termination. It is in this sense, then, that the Seaver

evidence arguably is relevant logically to the issue of

ARCO's discriminatory intent towards Becker.

_________________________________________________________________

marks omitted); see also Sriyuth, 98 F.3d at 747. Moreover, we fail to see

how this evidence could be admitted under the theory that it was

relevant to show ARCO's knowledge in terminating Becker. Obviously,

there was no issue in this case about ARCO's knowledge of the

circumstances surrounding Becker's dismissal. Thus, we will confine our

analysis in the text to the two primary theories proffered in support of

admissibility--intent and scheme or plan.

24

Nevertheless, while Becker may have demonstrated that

the evidence is relevant logically to the issue of ARCO's

intent, the inquiry under Rule 404(b) requires a more

searching analysis which also focuses on the chain of

inferences supporting the proffered theory of logical

relevance. In Morley, we recently reiterated the self-evident

proposition that "a proponent's incantation of the proper

uses of [Rule 404(b) evidence] . . . does not magically

transform inadmissible evidence into admissible evidence."

Morley, 199 F.3d at 133. Indeed, when a proponent of Rule

404(b) evidence contends that it is both relevant and

admissible for a proper purpose, "the proponent must

clearly articulate how that evidence fits into a chain of

logical inferences, no link of which may be the inference

that the defendant has the propensity to commit the crime

charged." See id. (internal quotation marks omitted);

Himelwright, 42 F.3d at 782 (citing United States v. Jemal,

26 F.3d 1267, 1272 (3d Cir. 1994)); Government of the

Virgin Islands v. Pinney, 967 F.2d 912, 915 (3d Cir. 1992)

("In order . . . to admit evidence under Rule 404(b), a court

must be able to articulate a way in which the tendered

evidence logically tends to establish or refute a material fact

in issue, and that chain of logic must include no link

involving an inference that a bad person is disposed to do

bad acts.").

The Seaver evidence fails this test because the logical

connection between ARCO's alleged "fabrication" of

performance problems in relation to Seaver's dismissal and

its purported conduct in terminating Becker is the

inference that ARCO was likely to have fabricated customer

complaints and other performance problems in Becker's

case merely because ARCO previously engaged in a similar

impropriety in facilitating Seaver's dismissal. The problem

is, as we recognized in Morley, "this is the very evil that

Rule 404(b) seeks to prevent." See Morley, 199 F.3d at 134.

Put another way, the evidence of ARCO's "manner" of

terminating Seaver simply is not relevant on the issue of

whether ARCO discriminated against Becker absent the

inference that ARCO had a propensity to act in a certain

way, and that in firing Becker, it acted in conformity with

its prior conduct. Compare Pinney, 967 F.2d at 917 ("In this

case . . . there is no chain of logical inferences between a

25

rape of Jamilla by [the defendant] and [the victim's

credibility, which was the proffered purpose for admitting

the evidence under Rule 404(b)], which does not involve an

inference that if Pinney raped Jamilla he is likely to have

raped [the victim] as well."); see also Government of the

Virgin Islands v. Archibald, 987 F.2d 180, 187 (3d Cir.

1993) (finding that evidence that defendant had sexual

intercourse with ten year-old victim's sister who was 13 or

14 years old at the time was inadmissible under Rule

404(b); court held that the evidence "suggested to the jury

that [defendant] had a propensity to engage in intercourse

with minor females, and that he had a particular affinity for

underage daughters of Ursula Williams"). Accordingly,

because Becker has failed to articulate how the Seaver

evidence fits into a chain of logical inferences pointing

towards ARCO's intent without involving the inference that

because ARCO committed the first act it was more likely to

have committed the second, see Pinney, 967 F.2d at 916,

we cannot agree with the district court's conclusion that

the evidence was admissible under Rule 404(b) to establish

ARCO's intent to discriminate against Becker.

Our recent opinion in Morley supports our conclusion in

this regard. See 199 F.3d at 129. There the government

charged the defendant, Morley, with conspiracy, mail fraud,

bank fraud and wire fraud in connection with his conduct

in allegedly attesting to a signature on a forged will. The

government's theory of the case was that Holmes, Morley's

business associate, had an agreement with the decedent's

two sons whereby he would draft a "fake will" that would

make it seem that the decedent left the two sons with the

entirety of his estate. Pursuant to the parties' agreement,

however, Holmes and the two sons each would receive 1/3

of the estate, and according to the government, Holmes was

supposed to split his 1/3 share with Morley. Morley's role

in offense was that he attested to the signature on the fake

will. Morley's defense was that while he admitted that he

attested to the will outside the testator's presence, he did

not know that Holmes forged the testator's signature. See

id. at 131-32.

Over Morley's objection, the government introduced

evidence which established that 14 months prior to his

26

arrest, he asked his parents to notarize 100 savings bonds

purportedly signed by their rightful owner. As it turned out,

Holmes apparently also had forged the signatures on the

bonds. At trial, however, the government did not introduce

any evidence to establish that Morley knew of the forgery.

Nevertheless, Morley did not deny that he asked his parents

to notarize the bonds, and it was undisputed that his

parents eventually complied with his request. See id. at

132.

The government argued that this evidence was relevant to

establish Morley's "knowledge, intent, plan, and modus

operandi of falsely witnessing the will of a dead man who

was neither known nor present." Id. After the jury convicted

Morley on all counts, he appealed, contending that the

district court erroneously admitted the evidence showing

that he asked his parents to notarize the forged bonds.

We vacated Morley's conviction and remanded for a new

trial. In particular, we found that the evidence of his prior

conduct in asking his parents to notarize the savings bonds

was not admissible under Rule 404(b) to establish his

knowledge and intent in attesting to a forged signature on

the will. We explained our reasoning in part as follows:

[T]he government asserts that the challenged evidence

was relevant to Morley's knowledge and intent at the

time Holmes [the business associate] asked him to sign

the will as a `third witness.' . . . This refrain is repeated

throughout the government's brief. Yet, upon close

examination, the only connection between Morley's

request to his parents to notarize the bond, and his

alleged attestation on the forged will is the inference

that Morley was likely to have been guilty of the latter

merely because he had previously engaged in a `similar'

impropriety. This is the very evil that Rule 404(b) seeks

to prevent. Evidence pertaining to the notarized bonds

is simply not relevant to whether Morley knew the

signature on the [alleged testator's] will was forged

absent the natural (and improper) inference that lurks

beneath the surface of the government's use of this

evidence. At trial, the prosecution did not even attempt

to establish that Morley knew the signature on the

bonds was forged.

27

Id. at 133-34 (footnote omitted). We further clarified that

last statement in a footnote:

We do not mean to suggest that the evidence would

necessarily have been proper if the government had

shown that Morley knew the signature on the bonds

was a forgery. We do, suggest, however, that the

government's failure to establish that guilty knowledge

further undermines the government's assertion that

the prior conduct was relevant to Morley's intent in

attesting to the forged signature on the fake will.

Id. at 134 n.8.

We determined that the chain of logical inferences the

government offered in support of the admission of the Rule

404(b) evidence in Morley was tainted by an impermissible

inference concerning the defendant's character and his

propensity to commit the charged crime. See id. at 137.

Indeed, it was obvious to us that the only reason that

Morley's request to his parents to notarize the forged bonds

was relevant to the issue of his intent and knowledge with

respect to his attestation of the fake will was because that

prior conduct was similar in nature to the charged offense

and showed that he had certain "propensities," which in

turn made it more likely that Morley knew the will was fake

when he signed it. We observed that the best explanation of

why the government offered the evidence was so that the

jury could infer from it that Morley "was the kind of guy

who had done it before, [and therefore was] the kind of guy

who will do it again." Id. at 134.

Here, too, the chain of logical inferences supporting the

admission of the Seaver evidence to show ARCO's intent

involves a link predicated on the suggestion that in

terminating Becker, ARCO engaged in a "similar

impropriety" as that which allegedly had occurred in

connection with Seaver's dismissal. Specifically, the initial

factual proposition, i.e., that ARCO fabricated Seaver's poor

performance, and the ultimate conclusion, i.e. , that ARCO

discriminated against Becker, are linked by the inference

that if ARCO fabricated Seaver's poor performance on the

Fibersorb project to facilitate his dismissal, it is more likely

that ARCO fabricated the customer complaints about

28

Becker to achieve the same result. From that premise the

jury could have inferred that ARCO intentionally

discriminated against Becker, inasmuch as the Seaver

evidence would have demonstrated that ARCO's proffered

legitimate nondiscriminatory reasons for Becker's

termination were weak, implausible and/or contradictory.

See Fuentes, 32 F.3d at 764.

We point out in this regard that Becker's most

comprehensive explanation of what he considered to be the

logical relevance of the Seaver evidence to the issue of

ARCO's intent occurred during the court's colloquy with

counsel on this point, but that the counsel's proffered

justification for admitting the evidence amounted to little

more than a "mantra-like recitation of the provisions of

Rule 404(b)." Morley, 199 F.3d at 137; see app. at 3227

("[A]ctually we were under 404(b), `It may however be

admissible for other purposes such as motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.' ") (quoting Fed. R. Evid. 404(b)).

Merely citing the relevant Rule of Evidence, however, is of

little assistance to either the trial or appellate court in

determining the difficult issue presented when confronted

with a proffer of Rule 404(b) evidence, and it falls woefully

short of the proponent's obligation when offering such

evidence purportedly for a non-character purpose. See

Morley, 199 F.3d at 137.

We also find it significant that in this appeal Becker has

failed to present an alternative chain of inferences by which

the Seaver evidence logically could be connected to the

issue of ARCO's intent, with no link predicated on an

inference concerning ARCO's propensity to act in a certain

way. Of course, this is not surprising given the record

presented here and Becker's theory of the case. Compare

United States v. Dise, 763 F.2d 586, 592-93 (3d Cir. 1985)

(defendant's prior similar incidents of misconduct were

relevant to establish his intent to injure inmates where

defendant contended that he acted only to maintain safety

or to prevent harm). Indeed, our review of the record

confirms that Becker grounded his case against ARCO

largely on his assertion that the customer complaints and

alleged performance problems were pretextual. Yet only if

29

the jury were to draw the inference that in terminating

Becker, ARCO must have fabricated his alleged

performance deficiencies, would the Seaver evidence have

established circumstantially ARCO's intent to discriminate

against Becker. As we observed in Morley, this sort of

character-based inference "is the very evil that Rule 404(b)

seeks to prevent." Morley, 199 F.3d at 134. Therefore, we

hold that the district court erred in admitting the Seaver

evidence based on its conclusion that it could be

introduced for the non-character purpose of establishing

ARCO's intent to discriminate against Becker.8 See Pinney,

967 F.2d at 916.

_________________________________________________________________

8. We have not overlooked numerous cases which have held that, as a

general rule, evidence of a defendant's prior discriminatory treatment of

a plaintiff or other employees is relevant and admissible under the

Federal Rules of Evidence to establish whether a defendant's

employment action against an employee was motivated by invidious

discrimination. See, e.g., United States Postal Serv. Bd. of Governors v.

Aikens, 460 U.S. 711, 713 n.2, 103 S.Ct. 1478, 1481 n.2 (1983) (stating

that evidence of an employer's comments were admissible to prove race

discrimination); Robinson v. Runyon, 149 F.3d 507, 512-13 (6th Cir.

1998) (noting that evidence of a racially hostile atmosphere was

admissible in Title VII suit to illustrate decisionmaker's attitude);

Heyne

v. Caruso, 69 F.3d 1475, 1480 (9th Cir. 1995) (same, in sexual

harassment suit under Title VII); Brown v. Trustees of Boston Univ., 891

F.2d 337, 349-50 (1st Cir. 1989) (permitting evidence of remarks made

by president of the University concerning another woman on theory that

the remarks could be construed as demonstrating sexist attitude); Estes

v. Dick Smith Ford, Inc., 856 F.2d 1097, 1102-04 (8th Cir. 1988) (noting

that "circumstantial proof of discrimination typically includes

unflattering testimony about the employer's history and work practices");

Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1423-24 (7th Cir. 1986)

(upholding district court's admission of evidence of harassment of other

workers to show that employer condoned racial harassment); see also

Abrams v. Lightolier, Inc., 50 F.3d 1204, 1214 (3d Cir. 1995) (age-related

comments and evidence of how supervisor treated older employees was

probative of whether supervisor harbored discriminatory attitude against

older workers); Glass, 34 F.3d at 194-95 (evidence of prior racial

harassment was relevant to whether plaintiff was terminated because of

age and/or race discrimination). In those cases, the courts admitted the

evidence because of the discriminatory nature of the prior conduct,

which in turn tended to show the employer's state of mind or attitude

towards members of the protected class. Thus, in those circumstances,

the inference of the employer's discriminatory attitude came from the

30

Becker next contends that the Seaver evidence is

admissible under the alternative theory that it

circumstantially established ARCO's "plan," which is a

_________________________________________________________________

nature of the prior acts themselves, and the prior acts of discrimination

were not offered for the purpose of establishing the fact that the

employer engaged in any particular act or course of conduct in

connection with the plaintiff 's termination. Compare Heyne, 69 F.3d at

1480 (in Title VII quid pro quo action where plaintiff claimed that her

employer came to her mobile home after work and propositioned her for

sex and employer denied propositioning plaintiff, court of appeals held

that plaintiff was entitled to introduce evidence of employer's treatment

of other female employees, as it was probative of whether he terminated

her because she rebuked his advances; nevertheless it stated specifically

that "[the employer's] alleged harassment of other female employees

cannot be used to prove that [the employer] propositioned [plaintiff] on

the night before she was fired.") (citing Fed. R. Evid. 404(b)).

But it is clear from the limited nature of the Seaver evidence that the

district court did not admit it based on the theory that it tended to

establish, by its very nature, ARCO's discriminatory attitude towards its

older employees. Compare Abrams, 50 F.3d at 1214-15. Rather, the

district court admitted the testimony based on the theory that ARCO

trumped up charges against any employee it wanted to discharge, not

just the older ones, and the evidence was admitted for the specific

purpose of establishing that ARCO fabricated performance problems in

Becker's case. This distinction is confirmed by the fact that the jury did

not hear any evidence pertaining to Seaver's age. The district court ruled

that Becker could not testify on that point because it was hearsay and

irrelevant, given the purpose for which the evidence was admitted. App.

at 3230 (district court stating "[w]hat difference does it make if he's

[Seaver] 80 years old, or if he's 21 years old? The point is that his

testimony is that exactly what is happening in this case, I was asked to

do it before, [and] that goes to motive, intent and practice.").

Thus, the rather circumscribed nature of Becker's testimony

concerning the "manner" in which ARCO terminated Seaver

distinguishes this evidence from the type of Rule 404(b) evidence

generally admitted in employment discrimination trials for the purpose of

establishing the employer's overall discriminatory attitude towards

members of a protected class. Here the Seaver evidence, standing alone,

does not suggest that ARCO possessed a discriminatory attitude towards

its older workforce, and thus it was probative of the issue of ARCO's

intent to discriminate only if the jury were to conclude that in firing

Becker, it acted in the same way that it did when it discharged Seaver.

31

specific non-character purpose listed in Rule 404(b). Becker

argues that the district court properly admitted the

evidence to establish, under Rule 404(b), ARCO's plan,

scheme, "practice," "modus operandi" or "pattern" of

fabricating reasons for terminating unwanted employees.

See app. at 3230.

This assertion does little to answer the question of

whether the evidence is admissible pursuant to that

exception, however, as we have recognized that where proof

of "a plan or design is not an element of the offense[,] . . .

evidence that shows a plan must be relevant to some

ultimate issue in the case." See J&R Ice Cream, 31 F.3d at

1269 (internal quotation marks omitted). Therefore, in order

to determine if the Seaver evidence properly was admitted

to show ARCO's "scheme or plan," which the district court

described alternatively as ARCO's "pattern,""practice," and

"modus operandi," we must pinpoint the evidential fact that

Becker sought to prove from his testimony in that regard.

From that initial inquiry, we must determine if the

evidence, in the form that it was admitted at trial, satisfied

the criteria necessary for admitting Rule 404(b) evidence on

the theory that it establishes circumstantially ARCO's plan

or scheme.

As to the initial question, i.e., the evidential fact that

Becker sought to establish in admitting the testimony,

Becker contends that the evidence was admitted to prove

ARCO's intent. Given our discussion above, this argument

obviously is unavailing. To reiterate, the Seaver evidence

cannot be admitted based on the theory that it was relevant

to prove the ultimate disputed issue in the case, given the

circumstance that the evidence would establish ARCO's

intent to discriminate against Becker only if the jury drew

the inference that in terminating him, ARCO acted in

conformity with its purported prior conduct in terminating

Seaver.

As we have indicated, notwithstanding Becker's contrary

arguments, the Seaver evidence could be material only to

establish circumstantially that ARCO fabricated the

performance deficiencies and customer complaints that

allegedly formed the basis for Becker's termination. The

question, then, is whether and in what circumstances

32

evidence concerning a defendant's prior conduct is

admissible under Rule 404(b) as proof of the defendant's

plan, where the evidence is admitted for the specific

purpose of establishing that the defendant committed a

subsequent act that is disputed in the case.

Commentators indicate that evidence tending to establish

a defendant's plan or scheme under Rule 404(b) may be

admitted for the purpose of proving the defendant's

commission of the subsequent act itself where that issue is

disputed. See, e.g., 1 John William Strong, ed., McCormick

on Evidence S 190, at 800-01 (4th ed. 1992) ("McCormick")

("Each crime should be an integral part of an over-arching

plan explicitly conceived and executed by the defendant or

his confederates. This will be relevant as showing motive,

and hence the doing of the criminal act, the identity of the

actor, or his intention.") (emphasis added) (footnote

omitted); see also II Wigmore, Evidence S 300, at 238

(Chadbourne rev. 1979) (discussing distinction between

proving intent through similarity of prior act and act in

issue and proving the commission of the subsequent act

itself by virtue of evidential theory that the two acts are

part of a singular plan or design, and explaining that

"[d]esign or plan, . . . is not a part of the issue, . . . but is

the preceding mental condition which evidentially points

forward to the doing of the act designed or planned.. . . In

proving design, the act is still undetermined , and the proof

is of a working plan, operating towards the future with

such force as to render probable both the act and the

accompanying state of mind.") (emphasis added); II

Wigmore, supra S 304, at 249 ("When the very doing of the

act charged is still to be proved, one of the evidential facts

receivable is the person's design or plan to do it.").

Nevertheless, for the reasons that follow, we hold that the

district court erred in admitting the Seaver evidence on its

theory that it established circumstantially the existence of

ARCO's plan or scheme in terminating its employees.

In J&R Ice Cream we explained the general theory behind

admitting proof of a defendant's prior act to establish his

"plan," which in turn demonstrates the defendant's

commission of the subsequent act in issue:

33

Ordinarily, when courts speak of `common plan or

scheme,' they are referring to a situation in which the

charged and the uncharged [acts] are parts of a single

series of events. In this context, evidence that the

defendant was involved in the uncharged [act] may

tend to show a motive for the charged [act] and hence

establish the commission of the . . . [act], the identity

of the actor, or his intention.

See id. at 1268-69 (internal quotation marks omitted)

(quoting Pinney, 967 F.2d at 916) (alterations in original);

see also 22 Charles Alan Wright & Kenneth W. Graham,

Jr., Federal Practice and Procedure S 5244, at 499-500

(West 1978) ("The justification for admitting evidence of

other crimes to prove a plan is that this involves no

inference as to the defendant's character; instead, his

conduct is said to be caused by his conscious commitment

to a course of conduct of which the charged crime is only

a part."); see, e.g., Console, 13 F.3d at 659; United States v.

Levy, 865 F.2d 551, 558 (3d Cir. 1989).

Another commentator has explained the conceptual basis

for admitting Rule 404(b) evidence to prove the existence of

a "plan" slightly differently: "In a true plan case, the courts

hold that the prosecutor may prove any uncharged crime

by the defendant which shows that the defendant in fact

and in mind formed a plan including the [prior act] and the

[ ]charged [act] as stages in the plan's execution." See 1

Edward J. Imwinkelried, Uncharged Misconduct Evidence

S 3:22, at 117 (West 1999) ("Imwinkelried I"); see also 1

Christopher B. Mueller, Laird C. Kirkpatrick, Federal

Evidence S 113, at 667 (2d ed. 1994) ("What is crucial in

this setting is that the other acts . . . , considered in light

of the circumstances, support an inference that the

defendants . . . formed a plan or scheme that contemplated

commission of the charged crime. . . . `[S]urrounding

circumstances must support an inference that the crimes

were related in the defendant's mind,' and both the other

acts and the charged crime `must be part of a common or

continuing scheme.' ") (quoting Imwinkelried I) (footnotes

omitted); 22 Wright & Graham, supra S 5244, at 499-500

("The justification for admitting evidence of other crimes to

prove a plan is that this involves no inference as to the

34

defendant's character; instead his conduct is said to be

caused by his conscious commitment to a course of

conduct of which the charged crime is only a part. The

other crime is admitted to show this larger goal rather than

the defendant's propensity to commit crimes.") (footnote

omitted) (emphasis added). Imwinkelried's treatise thus

explains the concept of a "true plan" in the context of

criminal cases:

Both crimes must be part of a common or continuing

scheme; the plan must encompass or include both

crimes; the crimes must be connected, mutually

dependent, and interlocking. All these variations

express the same core thought that both crimes must

be inspired by the same impulse or purpose. Both

crimes must be steps toward the accomplishment of

the same final goal. They are different stages of the

plan. It is not enough for the prosecution to show that

the defendant had a plan including crimes similar to

the charged crime; the prosecution must show that the

plan included the specific crime the defendant is now

charged with.

Imwinkelried I, supra S 3:22, at 119 (footnotes omitted). In

this instance, the logical relevance of the prior act to the

fact in issue, i.e., ARCO's commission of the subsequent

act, is that it shares with the subsequent act a similar

purpose or motivation--a common goal. See 22 Wright &

Graham, supra S 5244, at 500; id. S 5244, at 483 (West

Supp. 1999) ("To be properly admissible under Rule 404(b)

it is not enough to show that each crime was `planned' in

the same way; rather, there must be some overall scheme

of which each of the crimes is but a part.").

The Seaver evidence is not admissible as proof of ARCO's

"plan" based on these principles, inasmuch as there was no

evidence presented that the two terminations were

connected, mutually dependent, or part of any larger goal of

ARCO's. See Imwinkelried I, supraS 3:22, at 119; 1 Mueller

& Kirkpatrick, supra S 113, at 667; 22 Wright & Graham,

supra S 5244, at 483 (West Supp. 1999). The district court

did not admit the Seaver evidence on the theory that the

two terminations were part of ARCO's large-scale plan to

eliminate its older employees and create a younger

35

workforce. To the contrary, the district court's comments

clearly demonstrate that it rejected the proposition that the

Seaver evidence could be used to suggest that conclusion to

the jury. Moreover, it is rather obvious that the two

terminations are unrelated in the sense that one had

nothing to do with the other, except for the fact that,

allegedly, ARCO facilitated both by fabricating legitimate

reasons to support the adverse employment actions.

Finally, the fact that the two incidents were over three

years apart, while not conclusive, certainly undercuts the

possibility that the two events were examples of any"plan"

on ARCO's part.

Instead, the record shows that the district court admitted

the evidence based on the theory that it tended to show

ARCO's "pattern," "practice" or "modus operandi" of

fabricating legitimate reasons for terminating its employees

when it wanted to eliminate them from its workforce. See

App. at 3063, 3225, 3230. In J&R Ice Cream we explained

that "a common plan or scheme may consist of incidents

[that] were sufficiently similar to earmark them as the

handiwork of the same actor, and thus constitute signature

evidence of identity." See J&R Ice Cream, 31 F.3d at 1269

(internal quotation marks omitted) (alteration in original)

(quoting Pinney, 967 F.2d at 916); see also United States v.

Echeverri, 854 F.2d 638, 645-46 (3d Cir. 1988); United

States v. Herman, 589 F.2d 1191, 1198 (3d Cir. 1979). As

we explained in J&R Ice Cream, "[t]his method of proving

identity through the use of [Rule 404(b) evidence] is

sometimes labeled proof of modus operandi and

distinguished from the use of a common plan or scheme to

prove identity." J&R Ice Cream, 31 F.3d at 1269 n.9

(internal quotation marks omitted).9

_________________________________________________________________

9. Wright & Graham's treatise distinguishes between evidence admitted

on the basis that it proves the existence of a "plan" from evidence

admitted on the theory that it shows a unique modus operandi, hence

establishing the actor's identity. 22 Wright & Graham, supra S 5244, at

501-02. Their treatise suggests that proof of an actor's modus operandi

should not be admitted on the theory that the striking similarities

between the uncharged act and the subsequent act and their unique

features demonstrate the actor's "plan." Rather, their treatise suggests

that Rule 404(b) evidence which can be considered proof of the actor's

modus operandi should be admitted based on "the exception for use of

other crimes evidence to prove identity." Id. at 502.

36

Weinstein's treatise provides an instructive explication of

the rationale supporting the admission of Rule 404(b)

evidence as proof of the actor's modus operandi :

Other-crime evidence may be admitted if the evidence

of the other crimes is so distinctive that it can be seen

as a `signature' identifying a unique defendant, such as

the infamous Jack the Ripper. Thus, the issue in these

cases is whether the defendant committed the act at

all, unlike in intent cases, in which the issue is

whether the defendant had the requisite state of mind

when he or she committed the act. There are many

instances in which the details of the other crime show

an individuality that is highly probative of the

conclusion that the charged crime was committed by

the same person.

. . . [E]vidence of the commission of the same type of

crime is not sufficient on this theory unless the

particular method of committing the offense, the modus

operandi (or m.o.) is sufficiently distinctive to constitute

a signature. Other crimes evidence is not permissible

to identify a defendant as the perpetrator of the

charged act simply because he or she has at other

times committed the same garden variety criminal act,

since this would be identification based on the

forbidden inference of propensity. The question for the

court is whether the characteristics relied on are

sufficiently idiosyncratic to permit an inference of

pattern for purposes of proof.

2 Jack B. Weinstein & Margaret A. Berger, Weinstein's

Federal Evidence 2d S 404.22[5][c], at 404-117 to 404-120

(1999). Thus, under this theory, the evidence is admitted

for the purpose of establishing that the defendant actually

committed the act for which he is charged, and its

admission into the case normally arises in the criminal

context where there is a question as to the identity of the

perpetrator of the crime. See Pinney, 967 F.2d at 916; see

also, e.g., United States v. McGuire, 27 F.3d 457, 461 (10th

Cir. 1994) (admitting testimony concerning eight other

robberies with which defendant allegedly was involved;

court found that robberies had "many common

characteristics which would tend to show that the

37

defendant was involved in the [instant] robbery and that

the latter robbery was but a part of a larger common

scheme or plan."); 2 Weinstein & Berger, supra S 404.22[4],

at 404-102 (noting that courts "sometimes admit, in the

name of identity, evidence of a crime that has some

unusual features as the charged crime . . . .").

We understand the district court's admission of the

Seaver evidence as predicated on its theory that the

similarity between the two events--the alleged fabrication of

performance problems to facilitate Seaver's dismissal and

the alleged fabrication of customer complaints to support

Becker's termination--demonstrated ARCO's modus

operandi, which in turn could establish circumstantially a

fact in issue--namely, whether ARCO fabricated reasons in

order to facilitate Becker's dismissal. See Becker I, 15 F.

Supp.2d at 614 ("[T]he lies Becker was allegedly asked to

tell, i.e., lies about the quality of Mr. Seaver's work, were

similar to the reasons cited by ARCO for Becker's

termination."). Indeed, a review of the colloquy between the

court and counsel concerning the admissibility of this

evidence and the purpose for which it was proffered

confirms that the district court predicated its ruling on its

belief that the similarities between what allegedly occurred

in Seaver's case and what allegedly transpired in

connection with Becker's termination were sufficient to

establish a pattern of conduct on ARCO's part which

suggested that it fabricated reasons to justify Becker's

dismissal.

But there are two problems with admitting the Seaver

evidence on the theory that it establishes ARCO's pattern,

practice or modus operandi: identity was not a disputed

issue in this case, and it cannot be argued successfully

that the similarities between the two events show a unique

or distinctive modus operandi. Compare J&R Ice Cream, 31

F.3d at 1269; Pinney, 967 F.2d at 917. Indeed, with respect

to the first issue, the parties only disputed whether ARCO

indeed fabricated Becker's alleged performance deficiencies

and encouraged customer complaints in order to legitimize

an otherwise improper dismissal. In other words, the

parties disputed whether the alleged act (the fabrication of

problems in Becker's case) even occurred, not whether

38

ARCO, as opposed to some other person or entity,

committed it. Compare J&R Ice Cream, 31 F.3d at 1269

(identity of actor was not in dispute; rather, issue was

whether the subsequent act occurred); United States v.

LeCompte, 99 F.3d 274, 278 (8th Cir. 1996) (same); United

States v. Shackleford, 738 F.2d 776, 783 (7th Cir. 1984)

(same) (overruled on other grounds, Huddleston v. United

States, 485 U.S. 681, 108 S.Ct. 1496 (1988)).

Despite this obvious distinction, it is clear that the

evidential fact that Becker, the proponent of the Rule 404(b)

evidence, sought to prove was the same--that ARCO indeed

committed a particular act that is disputed in this case.

Moreover, as in the case where the government introduces

Rule 404(b) evidence to establish the actor's identity by

modus operandi, Becker contended that the similarities

between the prior and subsequent acts provided a sufficient

foundational basis to establish the actor's "plan," and

hence the commission of the subsequent act itself. See 2

Weinstein & Berger, supra S 404.22[5][c], at 404-119 to 120

("The question for the court [in admitting prior acts on the

theory that they are so distinctive to as to identify the

defendant as the perpetrator of the crime] is whether the

characteristics relied on are sufficiently idiosyncratic to

permit an inference of pattern for purposes of proof."); see

also Edward J. Imwinkelried, Using a Contextual

Construction to Resolve the Dispute over the Meaning of the

Term "Plan" in Federal Rule of Evidence 404(b) , 43 U. Kan.

L. Rev. 1005, 1007-08 (1995) ("Imwinkelried II") ("The

prosecutor would point to as many similarities as possible

between the charged crime and the . . . uncharged offenses.

Indeed, there is a good deal of authority that standing

alone, proof of an accused's commission of recent, similar

crimes is sufficient foundational proof of the existence of a

`plan.' ").

In this sense, then, Becker pointed to the Seaver evidence

and argued that ARCO had developed a distinct strategy

that it followed in terminating its unwanted employees

which made it more likely that it adhered to its plan in

terminating Becker. Compare Gastineau v. Fleet Mortgage

Corp., 137 F.3d 490, 495 (7th Cir. 1998) (where parties

disputed authenticity of employer's memorandum

39

indicating that plaintiff was terminated for discriminatory

reasons, court of appeals upheld admission of evidence

showing that in prior litigation with his employer, plaintiff

produced a contract that the employer denied ever signing;

court determined that evidence established that plaintiff

had "a common scheme or plan in disputes with his former

employers-creating false documents in anticipation of

litigation"); United States v. Baker, 82 F.3d 273, 276 (8th

Cir. 1996) ("[The witness] testified to a remarkably similar

series of prior actions by [the defendant]: a motorist is

stopped for speeding, a firearm is discovered, and the

motorist is given the choice of facing charges or`working it

out' with [the defendant].").

Thus, as we see it, the dispositive question in this case

is whether Rule 404(b) permitted Becker to introduce

evidence of one alleged similar instance of prior conduct by

ARCO's supervisory employee to establish ARCO's"plan"

(otherwise described as its pattern, practice or"common

design") and hence the commission of a similar subsequent

act by a different ARCO employee, where the identity of the

actor is not an issue and the similarities between the two

events are not sufficient to show a distinct modus operandi.10

_________________________________________________________________

10. Certain commentators suggest that courts often (and improperly)

conflate the two theoretical underpinnings for admissibility of Rule

404(b) evidence under the label of a "common scheme or plan." For

example, courts have admitted Rule 404(b) evidence to establish the

defendant's purported pattern of conduct that suggests the defendant

committed the subsequent act, even where the issue is not identity of

the perpetrator, and/or the prior events are not sufficiently distinct to

qualify as evidence of "modus operandi." Imwinkelried's treatise thus

explains:

Some courts are quite liberal in admitting uncharged misconduct

under the rubric of `plan.' If the proponent can show a series of

similar acts, these courts admit the evidence on the theory that a

pattern or systematic course of conduct is sufficient to establish

a

plan [which in turn establishes the commission of the act].

Similarity or likeness between the crimes suffices. In effect,

these

courts convert the doctrine into a plan-to-commit-a-series-of-

similar-crimes theory.

. . . .

40

Compare Jankins v. TDC Management Corp., 21 F.3d 436,

440-41 (D.C. Cir. 1994) (reversing jury finding in favor of

plaintiff who introduced Rule 404(b) evidence of defendant's

alleged failure to pay subcontractors on the theory that it

_________________________________________________________________

In these cases, the similarity between the crimes is ordinarily

inadequate to satisfy the modus operandi doctrine. . . .

In reality, these courts are arguably permitting the proponent to

introduce propensity evidence in violation of the prohibition in

the

first sentence of Rule 404(b). Proof of a number of similar

burglaries

. . . may be probative of the defendant's status as a professional

criminal; and the similarities may tend to show that when faced

with similar, random opportunities for committing a crime, the

defendant repeatedly chooses to use roughly the same methodology.

However, if the similarities are insufficient to establish modus

and

there is no inference of a true plan in the defendant's mind, the

proponent is offering the evidence on a forbidden theory of logical

relevance.

Imwinkelried I, supra S 3:24, at 128-29 (footnotes omitted); see also 1

Mueller & Kirkpatrick, supra S 113, at 667 (explaining the admission of

Rule 404(b) evidence on the theory that it establishes the defendant's

plan or scheme, and hence the defendant's commission of the

subsequent act, and noting "[i]t is not enough that other crimes

resemble the charged crime. If they are not sufficiently similar to the

charged offense or not distinctive enough to be admitted to show modus

operandi (hence identity), admitting other crimes to show plan or scheme

merely because they bear some resemblance to the charged offense

cannot be defended."); see also 22 Wright & Graham, supra S 5244, at

482-83 (West Supp. 1999) (where court admitted evidence in statutory

rape case showing that in two previous instances, the defendant

similarly enticed victims (who all were runaways) into exchanging sex for

food and shelter, commentators suggested that court erred because prior

similar instances were "evidence of propensity, not plan"; "To say that

the defendant had a `plan' to seduce every runaway he could may not do

violence to the language but it does undermine the policy of Rule 404(b)

by permitting the use of propensity to prove conduct."). But see II

Wigmore, supra S 304, at 249 ("When the very doing of the act charged

is still to be proved, one of the evidential facts receivable is the

person's

design or plan to do it. . . . The added element[in these circumstances],

must be, not merely a similarity in the results, but such a concurrence

of common features that the various acts are naturally to be explained as

caused by a general plan of which they are the individual

manifestations.").

41

demonstrated a common scheme or plan by which the

defendant systematically committed fraud; court found that

the prior instances were dissimilar and temporally remote

from plaintiff 's and defendant's dispute and could not be

admitted on that theory, or to show the defendant's intent)

(citing, inter alia, I Wigmore, Evidence S 304, at 202-03 (3d

ed. 1940)).

Contrary to the district court's legal conclusion on this

point, see Becker I, 15 F. Supp.2d at 614, we hold that

standing alone, the similarities between the Seaver evidence

and the allegations of fact in this case do not provide a

sufficient foundation from which the existence of ARCO's

"scheme or plan" of fabricating reasons in terminating its

employees may be inferred so as to justify admitting the

Seaver evidence on that basis. We cannot agree that the

"plan" exception listed in Rule 404(b) supports the

admission of the Seaver evidence to show that ARCO

engaged in a similar impropriety in Becker's case simply by

virtue of the "similarity" between the two alleged events.

Consequently, we find, notwithstanding contrary

protestations, that the district court admitted the evidence

for "exactly the purpose that Rule 404(b) declared to be

improper, . . . namely, to establish the defendants'

propensity to commit the charged act." See J&R Ice Cream,

31 F.3d at 1269 (internal quotation marks and citation

omitted); see also Herman, 589 F.2d at 1198 (finding that

district court erred in admitting testimony that defendant

engaged in similar extortion scheme which was unrelated to

extortion scheme with which he was charged; court found

that testimony did not demonstrate that the similarities

were so distinctive so as to justify an inference that the

defendant participated in both transactions, and modus

operandi "was at best a collateral issue in the case"; "What

was centrally in issue was whether [the defendant] was the

kind of person who would take a bribe.") (citing Rules

404(b) and 403); State v. G.V., 744 A.2d 137, 142 (N.J.

2000) (per curiam) (in prosecution of father for, inter alia,

sexual assault against his daughter, court found that the

trial court erred in admitting evidence of father's prior

sexual molestation of his other daughter at the same time

of the day (evening) and at about the same age as the

victim; prosecutor's summation alluded to the fact that

42

evidence demonstrated a "[s]imilar fact pattern," and

showed "the way he operate[d]," and court observed "If that

is not an allusion to propensity, then we do not know what

would be.").

We find support for our conclusion in this regard in our

opinion in J&R Ice Cream, 31 F.3d at 1268-69, where we

addressed the evidentiary use of similar uncharged acts of

misconduct to demonstrate a scheme or plan under Rule

404(b). There the plaintiff, J&R Ice Cream Corp., a former

franchisee, sued the defendants/franchisors, collectively

referred to as defendant "California Smoothie," under the

New Jersey Consumer Fraud Act ("the Act"). 11 After

terminating its franchise rights, J&R Ice Cream sued

California Smoothie because it sustained losses in

connection with a California Smoothie store it opened in a

mall in Florida. J&R Ice Cream obtained a jury verdict in its

favor, based on its theory that California Smoothie violated

the Act by making certain representations to it during

franchise negotiations. Specifically, the jury found that

California Smoothie violated the Act by, inter alia, (1)

misrepresenting the amount of J&R Ice Cream's potential

gross sales in its first operation of a California Smoothie

franchise, and (2) misrepresenting California Smoothie's

expertise in selecting profitable locations for franchises, and

in choosing the Florida site for J&R Ice Cream's store. See

id. at 1265.

On appeal, California Smoothie challenged the district

court's admission of the testimony of two unrelated former

California Smoothie franchisees as to misrepresentations

California Smoothie allegedly made to them. Specifically,

the district court permitted J&R Ice Cream to introduce

testimony that California Smoothie made similar

representations to the other two franchisees regarding the

sales and profits a California Smoothie franchise would

produce. See id. at 1268. While the district court originally

admitted the testimony to establish California Smoothie's

_________________________________________________________________

11. The plaintiff also asserted a common law negligence claim based on

the defendant's alleged negligence in selecting a poor site for plaintiff

's

franchise and its negligence in negotiating the lease there. See J&R Ice

Cream, 31 F.3d at 1264.

43

"intent" and "common scheme or plan," it later determined

that the testimony was admissible under Rule 404(b) as

evidence of California Smoothie's "plan," i.e., "common

scheme or business practice of representing sales and profit

figures to potential franchisees." See id.

We held that the district court erred in admitting this

testimony under its theory that it tended to establish

California Smoothie's scheme, plan or pattern of

representing sales and profit figures in order to induce

potential franchisees to acquire a California Smoothie

franchise. We began our analysis of the issue of the

admissibility of this testimony under Rule 404(b) with the

statement that, contrary to the district court's

determination, the "testimony was not admissible as

evidence of a common scheme or plan." See id. In support

of that conclusion, we outlined the basic theories for

admitting Rule 404(b) evidence under the rationale that

such evidence demonstrates the defendant's common

scheme or plan. See id. at 1269. After explaining that the

evidence was not relevant to an ultimate issue in the case

such as motive, identity or intent because those issues

were undisputed, we concluded that the "evidence was

admitted for exactly the purpose Rule 404(b) declared to be

improper, . . . namely to establish the defendant's

propensity to commit the charged act." Id. (internal citation

and quotation marks omitted).

After reviewing the possible theories offered in support of

the district court's ruling, we ultimately held that the

court's admission of this evidence was reversible error.

Importantly, in reaching our conclusion, we found the

district court's comments particularly relevant because the

court had acknowledged that it admitted the prior

testimony for an improper purpose when it stated that " `[i]n

the context of this case, I believe that it was proper to show

that it was more likely that representations of sales figures

were made to . . . [J&R Ice Cream] by demonstrating that

the officials of California Smoothie had a practice of making

such representations.' " Id. (alteration in original) (quoting

from district court record). Thus, J&R Ice Cream rejected

the district court's conclusion that the testimony was

admissible under Rule 404(b) as evidence of California

44

Smoothie's "business practice," i.e., its pattern, scheme or

plan of representing sales and profit figures to potential

franchisees, for the specific purpose of showing that

California Smoothie made the same sort of representations

to the plaintiff.

Just as in J&R Ice Cream, the district court admitted the

Seaver evidence to establish a contested material fact based

only on the similarity of the prior event to a subsequent,

unrelated occurrence which was alleged to have happened

in Becker's case. Here, the district court admitted the

Seaver evidence on the theory that it was more likely that

ARCO fabricated its purported nondiscriminatory reasons

for terminating Becker if ARCO's management had a

pattern or practice of inventing performance problems in

order to facilitate the termination of other employees. See

app. at 3225-28 ("It's not being offered to say that Mr.

Victor is a bad person because he had-he had done this in

the past. It's being offered to show a pattern, or habit. . . .

I mean it seems to me that in this case the event is nearly

identical and as such it would be probative of plan . . . I

would agree with you if it had to do with some other

conduct that is not probative, but we have allegedly the

same case. . . ."). Moreover, as in J&R Ice Cream, the

district court admitted the Seaver evidence because, in its

view, the evidence mirrored Becker's version of the events

leading up to his discharge, thus tending to corroborate

Becker's theory of his case. Compare J&R Ice Cream, 31

F.3d at 1269 (holding that district court abused its

discretion in admitting evidence on the theory that it

showed that "it was more likely" that the defendant made

similar representations to the plaintiffs, where

representations formed in part the factual basis for the

jury's finding on the consumer fraud count against

defendant).

We believe that the district court's rationale for admitting

the Seaver evidence mirrors in all material respects the

district court's reasoning that we expressly rejected in J&R

Ice Cream. Compare app. at 3230 ("The point is that

[Becker's] testimony is [allegedly] exactly what is happening

in this case, I was asked to do it before, that goes to motive,

intent and practice.") (emphasis added); app. at 3225 ("It's

45

being offered to show a pattern, or habit.") with J&R Ice

Cream, 31 F.3d at 1269 ("I believe that it was proper to

show that it was more likely that representation of sales

figures were made to [plaintiff] by demonstrating that

[defendant] had a practice of making such representations.")

(emphasis added). Thus, our opinion in J&R Ice Cream

leads us to the inescapable conclusion that the district

court erred in admitting the Seaver evidence on the theory

that it established ARCO's common scheme, plan or pattern

of action. It is obvious in view of J&R Ice Cream that Becker

introduced the Seaver evidence for an improper purpose--

solely to establish ARCO's propensity to fabricate reasons

to justify terminating its employees so that the jury would

conclude that ARCO did the same thing when it dismissed

Becker. We believe that the not so hidden message behind

Becker's testimony regarding the Seaver incident essentially

was that because ARCO did it once, it was likely that it did

it again. But as we previously have admonished,"[t]his type

of inference is precisely the kind prohibited by Rule 404(b)."

Pinney, 967 F.2d at 917.

Becker contends that our opinion in J&R Ice Cream is

factually distinguishable and therefore does not compel the

conclusion that the district court erred in admitting the

Seaver evidence. He argues specifically that we predicated

our analysis in J&R Ice Cream on our finding that

California Smoothie's business practice of representing

potential profits was not admissible to prove California

Smoothie's intent because intent was not an essential

element to a claim under the Act. See J&R Ice Cream, 31

F.3d at 1268.

We need not tarry on this argument, however, as it does

not address that aspect of our opinion in J&R Ice Cream

which is dispositive here. It is true that in J&R Ice Cream

we ruled that evidence of California Smoothie's"business

practice" was not admissible to establish its intent because

intent was not an essential element of the claim at issue.

But we further determined that the district court should

not have admitted the testimony of the other franchisees on

the theory that it established California Smoothie's

business "plan" because it did not satisfy the criteria for

admitting evidence under that exception in Rule 404(b). It

46

is the latter aspect of the reasoning in J&R Ice Cream which

we find determinative. Indeed, parallel with our conclusion

with respect to the disputed evidence in J&R Ice Cream, we

have determined that the Seaver evidence was not

admissible for the express purpose of proving ARCO's

intent to discriminate against Becker, and our finding in

that regard thus has required us to consider whether it

could be admitted under the "plan" exception listed in Rule

404(b). And to the extent that the plaintiff in J&R Ice Cream

sought to establish the same type of contested evidential

fact through the admission of a similar form of"business

practice" evidence, our analysis there clearly compels our

conclusion that the Seaver evidence is not admissible as

proof of ARCO's common scheme, plan, pattern or modus

operandi of fabricating performance problems in

terminating its employees.

We also point out that the district court stated that it

believed that the evidence was admissible under the theory

that it tended to show ARCO's "habit" when confronted with

the task of having to terminate its employees. App. at 3225-

26. It thus appears that the district court confused the

concepts of "modus operandi" and "habit or practice," the

latter of which is addressed in Rule 406, which provides:

Evidence of the habit of a person or of the routine

practice of an organization, whether corroborated or

not and regardless of the presence of eyewitnesses, is

relevant to prove that the conduct of the person or

organization on a particular occasion was in conformity

with the habit or routine practice.

The Advisory Committee Notes provide an instructive

explanation of the theoretical basis for this rule:

Character and habit are close akin. Character is a

generalized description of one's disposition, or of one's

disposition in respect to a general trait, such as

honesty, temperance, or peacefulness. Habit, in

modern usage, both lay and psychological, is more

specific. It describes one's regular response to a

repeated specific situation. . . . A habit [ ] . . . [ ] is the

person's regular practice of meeting a particular kind

of situation with a specific type of conduct, such as the

47

habit of going down a particular stairway two stairs at

a time, or of giving the hand-signal for a left turn, or of

alighting from railway cars while they are moving. The

doing of the habitual acts may become semi-automatic.

Fed. R. Evid. 406 advisory committee's note (internal

quotation marks omitted); see also 1 McCormick, supra

S 195, at 826 ("By and large, the detailed patterns of

situation-specific behavior that constitute habits are

unlikely to provoke such sympathy or antipathy as would

disturb the process of evaluating the evidence.").

Clearly, Rule 406 does not support the introduction of

the Seaver evidence on the basis that it was ARCO's"habit"

to fabricate reasons for terminating its employees. The

Seaver evidence did not show ARCO's "regular response to

a specific situation," as the nature of the alleged conduct--

the fabrication of reasons to justify its employees'

dismissals--is not the sort of semi-automatic, situation-

specific conduct admitted under the rule. Moreover, the

Seaver evidence ostensibly showed only, at best, one other

instance in which ARCO exhibited its alleged repetitive

behavior.

Finally, Becker contends that even if the court erred in

admitting the evidence pursuant to Rule 404(b), the

evidence was admissible under Rule 608(b). Appellee

Becker's Br. at 37-38 & n.10. Nevertheless, as ARCO

correctly points out, Rule 608(b) does not provide a basis

for admitting this testimony, inasmuch as the plain

language of the first sentence of the Rule prohibits the

introduction of extrinsic evidence to prove specific instances

of a witness's conduct for the purpose of attacking the

witness's credibility.12 See United States v. Davis, 183 F.3d

_________________________________________________________________

12. Rule 608(b) provides (emphasis added):

(b) Specific instances of conduct. Specific in stances of the

conduct

of a witness, for the purpose of attacking or supporting the

witness'

credibility, other than conviction of crime as provided in rule

609,

may not be proved by extrinsic evidence. They may, however, in the

discretion of the court, if probative of truthfulness or

untruthfulness, be inquired into on cross-examination of the

witness (1) concerning the witness' character for truthfulness or

untruthfulness, or (2) concerning the character for truthfulness or

untruthfulness of another witness as to which character the witness

being cross-examined has testified.

48

231, 257 (3d Cir.) (discussing distinction between Rules

404(b) and 608(b) and finding that "Rule 608(b) applies

because the government did not introduce extrinsic

evidence about these other acts [by the testifying witness];

all it did was ask [the witness] about them"), as amended,

197 F.3d 662, 663 & n.1 (3d Cir. 1999). The Seaver

evidence clearly qualifies as extrinsic evidence, whether we

assume that Becker introduced it to contradict Victor's

testimony concerning the events which allegedly transpired

at the meeting in August 1990, or alternatively, to impeach

ARCO's suggestion through its witnesses that it retained its

older workers. In either event, Rule 608(b) does not support

the admission of the testimony, and we cannot uphold the

district court's ruling on that alternative basis.

As the foregoing discussion demonstrates, we have

considered each of the various rationales the district court

proffered in connection with its ruling on the Seaver

evidence, but have determined that none supports the

admission of Becker's testimony on this point. We hold,

therefore, that the district court abused its discretion in

admitting the Seaver evidence. In view of our finding in this

regard, we need not consider whether the evidence was

admissible under the balancing analysis contemplated by

Rule 403.

Despite the district court's error in admitting the

evidence under Rule 404(b), we would not be required to

reverse and remand for a new trial if we could find that the

court's admission of Seaver evidence was harmless. As we

have indicated, a finding of reversible error"may not be

predicated upon a ruling which admits or excludes evidence

unless a substantial right of the party is affected." See

Glass, 34 F.3d at 191 (internal quotation marks omitted).

"In reviewing evidentiary rulings, if the Courtfinds

nonconstitutional error in a civil suit, such error is

harmless only if it is highly probable that the error did not

affect the outcome of the case." Id. (internal quotation

marks omitted); see also McQueeney, 779 F.2d at 924-25

(stating that standard we adopted in Government of the

Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976),

governs harmless error determination in civil and criminal

cases).

49

At oral argument, Becker's counsel contended that if the

district court's evidentiary ruling was incorrect, the error

was harmless. Becker also pointed out that the court

provided a jury instruction, which we have reproduced in

its entirety above, that outlined the purposes for which the

Seaver evidence could be considered.

In response, ARCO countered that its admission was far

from harmless, inasmuch as this evidence was particularly

powerful and damaging to ARCO given its defense strategy.

It also pointed out that Becker's position before us--that

the testimony was insignificant in light of the other

evidence in the record--clearly was undermined by the fact

that Becker's attorneys repeatedly sought its admission

during the course of the trial.

We have reviewed the entire record in this case, and we

conclude that ARCO has the better argument here. First,

we note that the jury instruction the district court provided

concerning the proper uses of the Rule 404(b) evidence

does little to convince us that the district court's error was

harmless in the circumstances. In Sampson, we found that

the district court's jury instruction concerning the proper

uses of Rule 404(b) evidence provided inadequate guidance

to the jury on that point because it "simply repeat[ed] the

entire litany of permissible theories under Rule 404(b)," and

failed to limit the government to the theories it proffered in

support of admission of the evidence. 980 F.2d at 889.

Here, the district court's instruction is just as troublesome

as the one we addressed in Sampson, inasmuch as it

suffers from identical deficiencies. In our view, these

problems in the jury instruction certainly increase the

likelihood that the jury utilized this evidence for an

improper purpose-namely, to find ARCO liable based on an

impermissible inference concerning ARCO's "character" and

its propensity to fabricate or "trump up" problems with its

employees. Thus, the jury instruction the district court

provided here hardly supports Becker's harmless error

argument. See also State v. Fortin, No. 1-95/96 Sept. Term

1998, 2000 WL 202643, at *9 (N.J. Feb. 23, 2000) (when

Rule 404(b) evidence is admitted the trial court should give

a specific charge with reference to the factual content of the

case so that the jury may understand the purposes for

50

which the evidence may be considered); G.V., 744 A.2d at

144 (rejecting harmless error argument and observing that

"even if the evidence had been admissible on the subsidiary

issues in the case, the charge in this case left the jury

wholly unguided as to how to use the evidence for such

limited purposes").

Moreover, quite apart from the lack of real guidance in

the jury instruction, given its nature, we do not believe that

it can be argued successfully that the district court's error

in admitting the Seaver evidence was harmless. Just as we

found in J&R Ice Cream with respect to the Rule 404(b)

evidence there, the Seaver evidence clearly was prejudicial

because it portrayed ARCO as an organization engaged in a

scheme to get rid of its unwanted employees by lying to

them and falsifying complaints and other performance

problems to facilitate the disfavored employees' dismissals.

Also, the evidence was particularly damaging given the

theory of Becker's case--that his alleged performance

problems were fabricated and that the customer complaints

were "inaccurate" and "misleading." Furthermore, ARCO's

seemingly cruel way of dismissing Becker, a long-time

employee, could not have endeared it to the jury, thus

making the Seaver evidence all the more damaging. Indeed,

the district court noted the significance of the Seaver

evidence and its value to the plaintiff 's case, app. at 3229

("I don't think there will be any stronger evidence"), and

Becker's counsel spent a significant time in her closing

argument explaining her theory as to how this evidence

proved Becker's case against ARCO.13

_________________________________________________________________

13. Seizing on this evidence, admitted on the last day of trial, plaintiff

's

counsel made the following comments in her closing:

Now, we've also relied on other evidence, not just the

inconsistencies and contradictions. That's one part of it. If their

position is inconsistent or contradictory, you canfind that's

pretext.

Well, what's the evidence of pretext? We can rely on comments from

individuals as well.

. . . .

Now, in 1990 Dr. Ramey asked Mr. Becker to agree with him that

another individual's work, [Linwood] Seaver, was bad. Mr. Becker

51

Given these circumstances, we cannot say with

confidence that it is "highly probable that the error did not

substantially affect" ARCO's rights. J&R Ice Cream, 31 F.3d

at 1269 (citing Lippay v. Christos, 996 F.2d 1490, 1500 (3d

Cir. 1993)). To the contrary, the most we can say after

reviewing the record is that even without the Seaver

evidence, it would have been sufficient to support a verdict

in Becker's favor and that he would have had a reasonable

chance of obtaining that verdict.14 Accordingly, we are left

_________________________________________________________________

didn't do that. He didn't agree to lie. He wouldn't. And Mr. Victor

was present during that meeting. Mr. Victor was there, and his

presence there has some meaning. He was a participant by his

silence, by his being there. Just like if you said, I'm going to

kill so

and so and there's two people involved and one of them doesn't say

anything. Well, Mr. Victor was there and Mr. Becker refused to lie

for Dr. Ramey.

And you heard his testimony. I'm going to fire him anyway, he's

terminated. It doesn't matter if he did good work, just like it

doesn't

matter if Mr. Becker did good work. The same type of plan, the same

type of operation. Mr. Victor couldn't recall, couldn't remember. I

don't know, I don't recall, I don't remember. How many times did he

say that? Very selective memory. That's very important.

Mr. Becker refused to go along with it. And you know what, Mr.

Victor said, Mr. Becker doesn't lie. You heard him say that. He

never

lied to him. He's known to him to be a truthful person.

App. at 3268-69. Later in the closing, Becker's counsel stated:

In addition, the comment about asking Mr. Becker to lie about Mr.

Seaver's work so they could fire him in a similar manner. This,

together with the prima facie case we submit, please, shows that

age

played a role in Mr. Becker's firing, and of course, his rejection

of

that early retirement offer where he was targeted.

App. at 3279.

14. As we have indicated in note 3, supra, ARCO does not argue in this

appeal that it is entitled to judgment as a matter of law pursuant to Rule

50 based on the sufficiency of Becker's evidence of age discrimination.

We also point out here that ARCO does not contend that we should

instruct the district court to enter a judgment in its favor based on the

insufficiency of the remaining, properly admitted evidence concerning

ARCO's liability for age discrimination. See Weisgram v. Marley Co., 120

52

with no alternative but to reverse the district court's denial

of ARCO's post-trial motion insofar as it requested a new

trial on all issues, and remand the matter to the district

court with directions to grant a new trial on the federal and

state age discrimination claims.

V. CONCLUSION

We conclude with the following observation. The

proceedings in this matter and in Morley as well as other

cases we have cited demonstrate that great care must be

taken when a party offers Rule 404(b) evidence. The rule is

not easy to apply and its misapplication may lead to a

significant waste of the parties' and the court's time.

Indeed, in this case the result might have been the same

without the Seaver evidence. The important point is that a

party cannot justify admission of Rule 404(b) evidence

merely by reciting in conclusory terms that the evidence is

admissible under that rule.

For the foregoing reasons, we are constrained to hold

that the district court erred in admitting the Seaver

evidence, and that we cannot say that ARCO's substantial

rights were not affected. Accordingly, we will reverse the

district court's order of June 30, 1998, insofar as it denied

ARCO's motion for a new trial under Rule 59(a), and will

remand the matter to the district court with directions to

grant a new trial on all issues pertaining to the age

discrimination claims. Moreover, inasmuch as we have

determined that a new trial in its entirety is warranted, we

dismiss Becker's cross-appeal as moot.

_________________________________________________________________

S.Ct. 1011, 1022 (2000) ("We . . . hold that the authority of courts of

appeals to direct the entry of judgment as a matter of law extends to

cases in which, on excision of testimony erroneously admitted, there

remains insufficient evidence to support the jury's verdict."). In any

event, our review of the record and the remaining evidence presented at

trial confirms that ARCO is not entitled to a judgment in its favor at

this

juncture.

53

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

54