Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-20-1995

West v Phila Electric
Precedential or Non-Precedential:

Docket 93-1647




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                          No. 93-1647


                          JAMES WEST,

                                        Appellant.

                               v.

                  PHILADELPHIA ELECTRIC COMPANY



         On Appeal From the United States District Court
            For the Eastern District of Pennsylvania
                 (D.C. Civil Action No. 91-05863)



                     Argued: March 10, 1994

          Before: GREENBERG, ROTH and ROSENN, Circuit Judges

                (Opinion Filed January 19, l995)



Richard J. Silverberg, Esquire
Jane H. Lovitch, Esquire (Argued)
Richard J. Silverberg & Associates
1717 Arch Street
3700 Bell Atlantic Tower
Philadelphia, PA 19103
          Attorneys for Appellant

David S. Fortney, Esquire
Carolyn P. Short, Esquire (Argued)
Christine L. Ciarrocchi, Esquire
Reed, Smith, Shaw & McClay
1650 Market Street
2500 One Liberty Place
Philadelphia, PA 19103-7301
          Attorneys for Appellee
                       OPINION OF THE COURT




ROTH, Circuit Judge:




          Plaintiff James West appeals from a jury verdict in

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

in this action in which he alleges racial discrimination and

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

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

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

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

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

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

occurrence of these incidents, dating back to 1986.   West

contends that all of this evidence was admissible under the

theory that the violations were continuing.   The rulings of the

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

address the scope of continuing violations theory when a

plaintiff charges the existence of a racially hostile work

environment.

          At trial, West sought to introduce evidence of acts

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

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

continuing violation of Title VII, the district court determined

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

admissibility of much of the evidence proffered by the plaintiff.

In making its determinations, the district court excluded

evidence preceding the 300-day period unless the evidence

involved either the same actor or the same particular form of

discriminatory conduct.

          We conclude, in this hostile work environment context,

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

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

law at issue.   The statutory limitations period is not,

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

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

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

find that the district court here was overly restrictive in its

determinations of admissibility and that the challenged

evidentiary exclusions were erroneous in that they deprived West

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

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

district court for a new trial.



                                  I.

                                  A.
            Plaintiff James West has worked for defendant PECO

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

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

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

he and other African-Americans at the meter repair facility

encountered a continuous pattern of racial harassment.     On

November 23, 1990, West filed administrative charges of racial

discrimination against PECO with the Equal Employment Opportunity

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

filed this complaint in the Eastern District of Pennsylvania.

The complaint alleged that PECO knowingly permitted a hostile

work environment to exist for African-American workers at the

meter repair shop in violation of Title VII and the Pennsylvania

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

PECO unlawfully retaliated against West in the terms and

conditions of his employment after he filed the administrative

charges.2

                                 B.



    1   In particular, West made allegations, and evidence was
admitted at trial, concerning racially harassing conversations,
racially derogatory postings on a bulletin board, slurs and
physical threats, a large noose hanging in the workshop
entranceway, a picture of a Ku Klux Klan member posted in several
locations throughout the workplace, and a Confederate flag
painted on the side of a co-worker's helmet.      Other evidence,
excluded at trial, is discussed below.
    2
       The basis of this claim was PECO's temporary transfer of
West to another work location in 1991.
           Just prior to trial, PECO filed a motion in limine to

exclude certain evidence.   PECO argued that West should be

precluded from presenting evidence pre-dating the period 300 days

before the filing of his administrative complaint.     PECO asserted

that this evidence was time-barred by the limitations period

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

period rendered evidence of earlier acts inadmissible as a matter

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

hostile work environment was a continuing violation.    He asserted

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

had satisfied the statutory requirement under the theory of a

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

for recovery nor the evidence relevant to its proof should be

limited by the filing period.

             At a pretrial conference on PECO's motion, the

district court held that West could establish a continuing

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

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

engaged in prohibited conduct both before and during the 300 day

filing period:
          In this trial, you should plan to organize
          your evidence as to the 300-day period, and
          then you'd have to show as to something prior
          to that time, that the same actor was
          involved. So if there was a different actor,
          there would not be a continuing violation.


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

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

with the employer for failing to remedy a hostile environment as

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

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

employees are relevant as they contribute to the overall hostile

environment. The court rejected this approach, stating:
          [T]he way I want you to present the case is,
          what happened to him to cause him to file the
          charge and where he was 300 days prior to
          that time. Plus anything else that's
          connected . . . through common personnel.


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

on May 26, 1993.3

          At trial, the district court relied upon this ruling to

exclude a substantial amount of evidence.   Although the record

before us is not fully adequate, the individual pieces of

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

as the record permits:

          1.    Ku Klux Klan Christmas Card.

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

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

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

resemblance to its presenter, was "folded in Christmas card

    3
        The order reads, in part, as follows:         "[E]vidence
pertaining to the following shall be excluded from trial: . . .
evidence of alleged racially discriminatory treatment of West by
PECO prior to January 26, 1990, except as may be deemed relevant
at trial."   The court arrived at the January date by counting
back 300 days from West's November 23, 1990 filing with the EEOC.
fashion" and inscribed with the words "To Jim."     Though West

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

later photocopied, distributed to other workers, and posted in

the workplace.     West offered this incident not only to support

his claim of pervasive, continuous racial harassment but also to

shed light on another incident involving the same worker posting

the same picture throughout the workplace in the summer of 1990.4

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

have helped to establish discriminatory intent with regard to the

later incident.

          Though the court initially permitted direct examination

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

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

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

          2.      References to Frank Rizzo.

          At trial, the district court permitted West to testify

about a picture of former Philadelphia Police Commissioner Frank



    4
        The trial court admitted evidence of these later Klan
picture postings because they occurred within the 300-day period.
Specifically, one of West's African-American co-workers, Ronald
Price, testified that Robert Cole approached him with the picture
early in the summer of 1990 and asked Price whether he thought
the picture was funny. Though Price did not, the following day
the picture appeared posted on the door of that worker's
storeroom office, on the gas shop bulletin board, and on a
bulletin board outside the men's room in the electric shop. It
remained posted until sometime in August 1990.    App. at 68-72.
West also testified that he had seen the postings throughout the
summer. App. at 99, 101.
Rizzo that was posted in the workplace in 1987 or 1988.5     West

stated that he found the picture to be racially offensive.

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

testimony about several incidents between himself and a white

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

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

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

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

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

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

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

African-Americans.   

Wiese incidents occurred

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

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

excluded.   

            3.   Pre-300 Day Racial Comments.

            At trial, the court excluded testimony by both West and

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

hostile comments and conversations that occurred prior to the

300-day period.    For example, when West's counsel attempted to
    5
       This was consistent with the court's general rulings on
allegedly racially offensive postings in the workplace, as the
court permitted evidence on such postings dating back to 1986.
App. at 115. The court's rationale for allowing the evidence of
racially derogatory postings prior to the 300-day period was that
this was a particular form of racial harassment that was
pervasive and regular, so that a continuous violation could be
shown with regard to the postings in particular.    App. at 115,
135.
question him regarding hostile conversations with a white

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

precluded the testimony on the grounds that the conversations

occurred prior to 1990 and West had not established that the

verbal harassment by this particular worker was, in itself,

pervasive and regular:
          You haven't established yet, Counsel, that he
          had daily contact with this person,
          Esbiornson, such that the contact could be
          said, assuming the subject was racially
          offensive, to have been pervasive and regular
          so as to go back beyond 1990 in terms of
          contact.


App. at 166-67.

          The court excluded the testimony of Ronald Price about

racially hostile conversations he had experienced prior to 1990.

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

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

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

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

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

alleged hostile work environment was a continuing violation,

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

indicated that for a continuing violation to exist, so that pre-

1990 evidence could be considered admissible, it was necessary to

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

particular worker at issue.    App. at 85.

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

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

should have known of the alleged hostile work environment.     For

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

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

The court sustained an objection to any questioning about the

pre-1990 period, particularly whether Barrett concluded that a

race relations problem existed at the meter shop during that

time.    In addition, although the plaintiff had copies of

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

January 1989, the court excluded any testimony about either the

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

           West also attempted to demonstrate PECO's actual notice

of the hostile work environment through the testimony of Ronald

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

management about the hostile work environment on a number of

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

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

App. at 96.

           5.    Pre-300 Day Harassment Not Witnessed By James

West.

           Information about two hostile events in the pre-1990

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

other workers and was not witnessed by West directly.

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

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

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

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

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

West's counsel attempted to question him concerning his

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

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

           On appeal, West explains that his own testimony was

intended to provide the jury with information concerning how

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

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

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

repeated warnings to remain within the 300-day period when

questioning Price.

           As with the Ku Klux Klan card, West claims that

preclusion of this evidence was prejudicial beyond the mere fact

that it was an important incident helping to establish the

pervasive and continual nature of the hostile work environment.

He suggests that it also sheds light on a similar incident

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

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

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

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

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

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

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

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

1990.

           Finally, plaintiff argues that evidence of the 1989

noose incident was important because Smith filed a complaint

about it with PECO's Affirmative Action Office.   This

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

presentation to establish that PECO knew of the alleged hostile

work environment.

                B.        The Black Doll.

           In 1989, Esbiornson placed a photocopy of a figure on

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

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

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

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

to protect the workers in the shop from further illness.

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

a provisional ruling that it would admit the evidence for

purposes of notice because Smith had filed a complaint with

PECO's Affirmative Action Office.   The superintendent of the

meter shop, William Barrett, investigated the incident and kept

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

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

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

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

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

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

his case as it was probative of both the continuing racial

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

to remedy the alleged hostile work environment.

                                    C.

               After a five day trial, with the above evidence

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

knowingly permitted a hostile work environment to exist at the

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

retaliated against West because he had filed administrative

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

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

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

filing period as a basis for determining the admissibility of

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

requirement before a continuing violation could be established.6

For the reasons which follow, we agree.

      6
        West also claims error in the exclusion of one piece of
evidence from within the 300-day period, for reasons having
nothing to do with the filing period and continuing violations
theory.    In his pre-trial order on the motion in limine, the
court excluded evidence pertaining to the "animal head incident."
Order of May 26, 1993. See App. at 47-48. This notation refers
to the fact that in 1990, while he was attending a high school
gym meet, Price's truck was vandalized when a freshly killed
                                II.

          The district court had subject matter jurisdiction over

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

and supplemental jurisdiction over his state law claim pursuant

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

pursuant to 28 U.S.C. § 1291.

          We review the evidentiary determinations of the trial

court under an abuse of discretion standard.   Glass v.

Philadelphia Electric Co., 

, 191 (3d Cir. 1994); In re

Merritt Logan, Inc., 

, 359 (3d Cir. 1990).    In the

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


deer's head was tied to its hood.    The court excluded this
evidence under Fed. R. Evid. 403, which provides, in relevant
part:

     Although relevant, evidence may be excluded if its
          probative value is substantially outweighed
          by the danger of unfair prejudice, confusion
          of the issues, or misleading the jury . . . .

     We review exclusions under Rule 403 only for abuse of
discretion. In this case, we cannot say that the trial court's
decision was "arbitrary and irrational." This incident occurred
more than 40 miles from the workplace.      There was no direct
evidence linking any of PECO's employees to the deer head. The
circumstantial evidence offered showed that some of the white
PECO workers enjoyed deer hunting, that they discussed hunting at
work, and that one of the workers ate deer meat at work. Given
this weak connection to PECO, the probative value of the evidence
was slight. And on the other side of the Rule 403 balancing, the
incident was appallingly grotesque and abusive of Price.       As
such, admission of the evidence would have run the risk of
inducing unfair bias in favor of Price and, potentially, unfair
bias against PECO.
Evid. 403, an abuse of discretion exists where that decision is

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

Electric Corp., 

, 187 (3d Cir. 1990), cert. denied

(1991).   However, as to the application or

interpretation of a legal standard underlying the admissibility

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

C.A. Hughes & Co., 

, 102 (3d Cir. 1981)("[t]o the

extent the parties challenge the choice, interpretation, or

application of legal precepts, we always employ the fullest scope

of review").

          Our determination that the trial court erred in an

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

erroneous decision to admit or exclude evidence does not

constitute reversible error unless "a substantial right of the

party is affected . . .."   Linkstrom v. Golden T. Farms, 

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

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

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

Lockhart v. Westinghouse Credit Corp., 

, 53, 59 (3d

Cir. 1989).



                               III.

                                A.

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

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

compensation, terms, conditions, or privileges of employment,

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

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

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

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

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

environment abusive to employees because of their race, gender,

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

, 371 (1993).    See also Meritor Sav. Bank, FSB v.

Vinson, 

, 66, 

, 2405 (1986) ("a

plaintiff may establish a violation of Title VII by proving that

discrimination based on sex has created a hostile or abusive work

environment.").

           To be cognizable within the meaning of Title VII,

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

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

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

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

employment and create an abusive working 

.   Recently, in Harris, the Court explained that this
standard is intended to
    7
        The Court has recognized no difference in standards
applicable to racially and sexually hostile work environments.
See 

; 114 S.Ct. at 373 (Ginsburg, J.,
concurring)("Title VII declares discriminatory practices based on
race, gender, religion, or national origin equally unlawful");

.
          take[] a middle path between making
          actionable any conduct that is merely
          offensive and requiring the conduct to cause
          a tangible psychological 

.

          In Andrews v. City of Philadelphia, 

(3d
Cir. 1990), we discussed the standard of liability for a hostile

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

as a "totality of the circumstances" approach.
          To bring an actionable claim for . . .
          harassment because of an intimidating and
          offensive work environment, a plaintiff must
          establish 'by the totality of the
          circumstances, the existence of a hostile or
          abusive working environment . . . .'

(citing Vance v. Southern Bell Tel. and Tel. Co., 

, 1510 (11th Cir. 1989)).    See also Spain v. Gallegos,

, 451-52 (considering all the circumstances, plaintiff

should be allowed opportunity to prove claims regarding sexually

hostile work environment).     This approach has been endorsed by

the Supreme Court:
          [W]e can say that whether an environment is
          "hostile" or "abusive" can be determined only
          by looking at the circumstances. These may
          include the frequency of the discriminatory
          conduct; its severity; whether it is
          physically threatening or humiliating, or a
          mere offensive utterance; and whether it
          unreasonably interferes with an employee's
          work performance.

.    In addition, in Andrews, we set forth

five elements necessary to establish a successful hostile work

environment claim:
          (1) the plaintiff suffered intentional
          discrimination because of his or her
          membership in the protected class;

          (2) the discrimination was pervasive and
          regular;

          (3) the discrimination detrimentally affected
          the plaintiff;

          (4) the discrimination would have
          detrimentally affected a reasonable person of
          the same protected class in that position;
          and,

          (5) the existence of respondeat superior
          

.

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

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

Harris:
          Conduct that is not severe or pervasive
          enough to create an objectively hostile or
          abusive work environment--an environment that
          a reasonable person would find hostile or
          abusive--is beyond Title VII's purview.
          Likewise, if the victim does not subjectively
          perceive the environment to be abusive, the
          conduct has not actually altered the
          conditions of the victim's employment, and
          there is no Title VII 

.

                               B.

          West's claim, that PECO knowingly permitted a hostile

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

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

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

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

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

the district court believed was in conflict with the statute.

Despite the requirement that the harassment be pervasive and

regular, the court concluded that the statutory filing period

limited the proper scope of evidence admissible to prove the

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

each individual actor, who West wished to demonstrate had

participated in creating the hostile work environment, West had

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

conduct.

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

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

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

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

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

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

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

must be filed within 300 days "after the alleged unlawful

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


    8
         The 300-day period applies where the plaintiff has
initially instituted proceedings with a State or local agency.
Otherwise, the applicable period is 180 days. 42 U.S.C. S 2000e-
5(e).
a civil suit under Title VII.   Alexander v. Gardner-Denver Co.,

, 47, 

, 1019 (1974).

            Though the requirement sounds exacting--300 days after

the alleged unlawful employment practice occurred--courts have

grappled with cases presenting questions of precisely when a

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

is a discrete trigger event and the discrimination is overt.

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

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

continuous violation.    To accommodate these more indeterminate

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

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

limitation, is subject to waiver, estoppel, and equitable

tolling."   Zipes v. Trans World Airlines, Inc., 

,

393, 

, 1132 (1982); Oshiver v. Levin, Fishbein,

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

            One such equitable exception to the timely filing

requirement is the continuing violation theory.    Under this

theory, the plaintiff may pursue a Title VII claim for

discriminatory conduct that began prior to the filing period if

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

pattern of discrimination of the defendant.    Bronze Shields, Inc.
v. New Jersey Dept. of Civ. Serv., 

, 1081 (3d Cir.

1981), cert. denied, 

(1982); Jewett v.

International Tel. and Tel. Corp., 

, 91 (3d Cir),
cert. denied, 

(1981).       In fact, in Bronze Shields,

we cited with approval a Senate Conference Committee report

recognizing that "certain types of violations are continuing in

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

the required time period from the last occurrence of the

discrimination and not from the first 

.

               To establish that a claim falls within the continuing

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

must demonstrate that at least one act occurred within the filing

period:       "The crucial question is whether any present violation

exists."        United Airlines, Inc. v. Evans, 

, 558, 

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

the harassment is "more than the occurrence of isolated or

sporadic acts of intentional discrimination."       

.        The relevant distinction is between the occurrence of

isolated, intermittent acts of discrimination and a persistent,

on-going pattern.9

    9
        In making this distinction, a number of the Courts of
Appeals have adopted the approach of the Fifth Circuit in Berry
v. Board of Supervisors of Louisiana State Univ., 

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

, 474-75 (5th Cir. 1989).    We also find this approach,
providing a non-exhaustive list of factors, to be helpful.
Following the Berry court, the inquiry into the existence of a
continuing violation would consider:

        (i)      subject   matter--whether   the   violations
                constitute the same type of discrimination;
                (ii) frequency; and (iii) permanence--whether
                the nature of the violations should trigger
           Once the plaintiff has alleged sufficient facts to

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

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

violation has occurred within that 300 days.     Plaintiff may then

offer evidence of, and recover for, the entire continuing

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

and the substantive law at issue, rather than the statutory

filing period, should govern evidentiary determinations of the

trial court.

                                  C.

             Throughout the trial, West maintained that the alleged

hostile work environment satisfied the conditions of a continuing

violation.     Hostile work environment and continuing violation

claims have similar requirements of frequency or pervasiveness.

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

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

the two:
             In the arena of sexual [or racial]
             harassment, particularly that which is based
             on the existence of a hostile environment, it
             is reasonable to expect that violations are
             continuing in nature: a hostile environment
             results from acts of sexual [or racial]


           the employee's awareness of the need to
           assert   her   rights   and   whether   the
           consequences of the act would continue even
           in the absence of a continuing intent to
           discriminate.

Martin v. Nannie and Newborns, Inc., 

(10th Cir.
1993).
            harassment which are pervasive and continue
            over time, whereas isolated or single
            incidents of harassment are insufficient to
            constitute a hostile environment.
            Accordingly, claims based on hostile
            environment sexual [or racial] harassment
            often straddle both sides of an artificial
            statutory cut-off date.


Jenson v. Eveleth Taconite Co., 

, 877 (D.Minn.
1993).     See also Waltman v. International Paper Co., 

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

relevant to the continuing violation theory because a hostile

environment claim usually involves a continuing violation.");

Stair v. Lehigh Valley Carpenters Local No. 600, 

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

the many cases which, without discussing the issue of timeliness

or admissibility, rely upon evidence of events, occurring long

before the relevant filing periods, to establish a hostile work

environment.    See, e.g., Harris, 

(considering acts

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

(considering acts of harassment spanning four year

period).

            Although we decline to adopt a per se rule that a

properly alleged hostile work environment claim also constitutes

a continuing violation, we agree that West has alleged facts

sufficient to support application of the continuing violations

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

plaintiff involved racial harassment--the nooses, the Klan

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

alleged to have occurred consistently over the period since 1986,

with increased frequency in 1989-1990.     The most physically

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

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

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

hostile conversations appear to have recurred without respite.

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

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

duty of the plaintiff to assert his rights arising from that

deprivation.

          Despite these proffers, the trial court excluded much

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

West's claims as individually focussed on particular workers or

on particular forms of continuing conduct.     This strict

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

hostile work environment where both the existence of hostility

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

300-day period.

          Here, the court required the plaintiff to stay within

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

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

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

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

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

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

evidence of racially hostile postings dating back to 1986 because

it found that that specific form of harassment was sufficiently

regular and pervasive as to constitute a continuing violation.

          The additional restrictions upon the continuing

violations theory were error.    To prove a hostile work

environment, West had the burden of establishing that he suffered

intentional, pervasive, and regular racial discrimination of

which PECO supervisors and management were aware and which PECO

permitted to continue.   Nowhere in the case law establishing

these standards is there a requirement that the discriminatory

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

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

that West proffered sufficient evidence to demonstrate that the

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

of incidents of pre-300-day discriminatory activity was

admissible if the incidents were related to the overall hostile

environment.

          In contrast to the limitations imposed by the trial

court, our cases direct that a hostile work environment claim

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

Specifically, in Andrews, this court precluded an individualized,

incident-by-incident 

.   We cautioned:

          A play cannot be understood on the basis of
          some of its scenes but only on its entire
            performance, and similarly, a discrimination
            analysis must concentrate not on individual
            incidents, but on the overall scenario. . . .
            The factfinder in this type of case should
            not necessarily examine each alleged incident
            in a vacuum. What may appear to be a
            legitimate justification for a single
            incident of alleged harassment may look
            pretextual when viewed in the context of
            several other related incidents.

(citation omitted).

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

or "same form of discrimination" requirements imposed at trial

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

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

judged independently, the focus is the work atmosphere as a

whole.    If an employer knowingly (actually or constructively)

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

that the collection of incidents comprising the claim were

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

condoning harassing behavior, the employer may facilitate its

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

has observed,
          A hostile work environment is like a disease.
          It can have many symptoms, some of which
          change over time, but all of which stem from
          the same root. The etiology in this case is
          pure gender bias.

    10
         Similarly, in this regard, it was error to exclude
evidence of notice of racial harassment given to PECO by other
employees. The company's notice of racial harassment is always
relevant, regardless of its source, because it bears upon the
duty of the company to investigate and to remedy a hostile work
environment.
Hansel v. Public Service Co., 

, 1132 (D. Colo.

1991).   See also 

("The fact that not all

the incidents of harassment involve the same people does not show

a lack of recurrence or frequency.")   

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

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

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

fair overlap in the identity of the harassers in the incidents

offered at trial.

          We conclude that the trial court was also overly

restrictive in its application of the "pervasiveness"

requirement.   At one stage, it precluded evidence of racially

harassing comments because the plaintiff had not established that

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

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

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

the severity of the incidents.
          The number of incidents of harassment is but
          one factor to be considered in the totality
          of the circumstances. A Title VII plaintiff
          does not prove racial harassment or the
          existence of a hostile working environment by
          alleging some 'magic' threshold number of
          incidents.


Daniels v. Essex Group, Inc., 

, 1275 (7th Cir.

1991).   See also 

-76 ("The fact that

there were gaps between the specific incidents to which Waltman

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

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

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

others will support a finding of discriminatory intent with

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

noose incident was relevant to establish knowledge by PECO of

racial animosity and discriminatory intent when the second noose

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

of the incident and its aftermath would have precluded defense

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

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

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

Furthermore, evidence of harassment of other workers, because

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

West's claims that he, too, was harassed.   

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

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

and bolster the confidence of the finder of fact in the

plaintiff's veracity and in the objective reasonableness of his

claims.").



                                IV.

    11
        Vance v. Southern Bell Tel., 

, 1511 (11th
Cir. 1989)("[T]he jury could have properly considered evidence of
discriminatory acts . . . directed at employees other than the
plaintiff, as tending to show the existence of racial animus in
the present case.").
           For the foregoing reasons, we conclude that the

district court abused its discretion by holding that pre-1990

evidence was not admissible as proof of a continuing violation of

a hostile work environment unless it involved either the same

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

evidence that PECO was notified of allegedly discriminatory

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

decision to preclude evidence of harassment of other African-

Americans at the meter shop on the grounds that their harassment

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

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

prejudice the plaintiff in the presentation of his case to the

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

court and remand this case for a new trial.