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In an age discrimination suit, the defendant company may present evidence that it hired another older worker more than year after the plaintiff was fired because such evidence is relevant to the issue of the employer’s alleged discriminatory intent, the 3rd U.S. Circuit Court of Appeals has ruled. In Ansell v. Green Acres Contracting Co., a unanimous three-judge panel found that trial judges have the discretion under Federal Rule of Evidence 404(b) to allow such evidence of a “subsequent good act.” In so ruling, the court rejected the plaintiff’s argument that evidence of a subsequent hiring is always irrelevant to the issue of an employer’s intent as a matter of law. Instead, the court found that since plaintiffs are free to present evidence of an employer’s conduct toward other workers to show pretext, the defense must also be allowed to point to its treatment of other workers both to rebut the plaintiff’s arguments and to bolster the explanations offered by the defense. “Evidence regarding an employer’s treatment of other members of a protected class is especially relevant to the issue of the employer’s discriminatory intent,” Judge D. Brooks Smith wrote. The court also rejected the plaintiff’s argument that favorable treatment of similar workers is unfairly prejudicial. “While not conclusive, an employer’s favorable treatment of other members of a protected class can create an inference that the employer lacks discriminatory intent,” Smith wrote in an opinion joined by Judges Marjorie O. Rendell and Ruggero J. Aldisert. In the suit, plaintiff Harry Ansell claimed that he began working for Green Acres in 1993 as a seasonal laborer on highway maintenance jobs, and was rehired each season until December 1997 when he was permanently laid off. Ansell, who was 45 at the time of the lay-off, claimed that a new foreman hired at the beginning of the 1997 season had set out to increase his crew’s productivity by replacing the older members of his crew with younger workers. At trial, Ansell introduced testimony establishing that foreman Douglas Schiff permanently laid off two truck driver/laborers on his crew. Schiff replaced Roger Myers, 47, with Scott Miller, 26; Ansell was replaced by 28-year-old Harry Fabian Jr. But lawyers for Green Acres told the jury that Schiff had legitimate, non-discriminatory reasons for terminating Ansell, citing evidence of four incidents of insubordination. They pointed to incidents in which Ansell allegedly swore at Schiff during an argument over who should drive a truck; refused to attend a safety meeting; argued with a state inspector; and took time off from work without permission. Evidentiary disputes arose in the trial when defense lawyers said they wanted to present evidence of Schiff’s treatment of other employees over the age of 40. Attorney Jane Lewis Volk of the Volk Law Firm in Sewickley, Pa., sought permission to call Anthony Beddingfield, who, at age 45, was hired by Green Acres in August 1999 for a temporary laborer position and assigned to Schiff’s crew. Beddingfield, she said, would testify that he was asked by Schiff to stay on the crew permanently, and that he was still working for Schiff at the time of trial in 2002. Ansell’s lawyer, Gregory T. Kunkel of Kunkel & Fink in Pittsburgh, argued in a motion in limine that Beddingfield’s testimony was inadmissible “other acts” evidence, offered to show propensity under Federal Rule of Evidence 404(b). Kunkel also argued that the testimony was irrelevant under Rule 404 and unfairly prejudicial under Rule 403. But Senior U.S. District Judge William L. Standish sided with the defense, noting that since Ansell had offered evidence of the hiring of younger workers, the defense must be allowed to offer evidence of hiring older workers. Now the 3rd Circuit has ruled that Standish was within his discretion in allowing the evidence. Smith rejected Ansell’s argument that the defense evidence was an improper attempt to establish Schiff’s “propensity.” “The evidence offered by both defendants and Ansell was not predicated upon an inference that Schiff had a propensity to act in a certain way. Indeed, Schiff’s actions were never in dispute,” Smith wrote. “Rather, the sole question was Schiff’s intent when he acted, or, more precisely, whether the reason offered by Schiff was pretextual,” Smith wrote. Smith also rejected the plaintiff’s argument that Schiff’s treatment of Beddingfield in 1999 was too remote to be relevant to the question of Schiff’s discriminatory intent when he fired Ansell in 1997. Kunkel argued that, in 1997, Schiff was seeking a younger workforce in response to productivity concerns raised that year. The hiring of Beddingfield 20 months later was irrelevant as a matter of law, he argued, because it was too far removed in time, and occurred when productivity was no longer a concern. Smith disagreed, finding that while subsequent actions by an employer “may be less probative” of an employer’s intent than prior actions, they nonetheless “may still be relevant to intent.” A trial judge must “consider the passage of time between the other act and the act alleged to be discriminatory,” Smith found, but “there is, however, no bright line rule for determining when evidence is too remote to be relevant.” Smith concluded that Standish acted within his discretion when he allowed the evidence, and that it was then up to the lawyers to argue to the jury whether the remoteness or subsequent nature of the hiring affected the weight of the evidence. “The passage of time and purportedly changed circumstances were proper issues for counsel to argue to the jury, and for the jury to consider in weighing the evidence,” Smith wrote. (Copies of the 17-page opinion inAnsell v. Green Acres Contracting Co. , PICS NO. 03-1721, are available fromThe Legal Intelligencer . Please call the Pennsylvania Instant Case Serviceat 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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