Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-12-2006

Moore v. Univ Pgh Higher Ed
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4094




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                    No. 05-4094
                                    __________

                           PATRICIA M. MOORE, M.D.
                                             Appellant

                                           v.

          UNIVERSITY OF PITTSBURGH OF THE COMMONWEALTH
             SYSTEM OF HIGHER EDUCATION; UNIVERSITY OF
           PITTSBURGH PHYSICIANS; M.D. STEVEN T. DEKOSKY,
               individually and in his official capacity as chairman of
         Department of Neurology; M.D. ARTHUR S. LEVINE, individually
            and in his official capacity as the Dean, School of Medicine;
                             UPMC HEALTH SYSTEM
                                     __________

                   On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                             (D.C. Civil No. 02-cv-01734)
                   District Judge: Honorable Terrence F. McVerry
                                     __________

                              Argued on May 18, 2006

            Before: RENDELL and VAN ANTWERPEN, Circuit Judges,
                       and ACKERMAN*, District Judge.

                                (Filed: June 12, 2006)


_______________
   * Honorable Harold A. Ackerman, Senior Judge of the United States District Court
      for the District of New Jersey, sitting by designation.
James B. Lieber [ARGUED]
Lieber & Hammer
5528 Walnut Street
Pittsburgh, PA 15232
Counsel for Appellant
Patricia M. Moore

Martha H. Munsch [ARGUED]
Reed Smith
435 Sixth Avenue
Pittsburgh, PA 15219
Counsel for Appellees
University of Pittsburgh of the Commonwealth
    System of Higher Education;
M.D. Steven T. Dekosky, individually
    and in his official capacity as chairman
    of Department of Neurology;
M.D. Arthur S. Levine, individually
    and in his official capacity as the Dean,
    School of Medicine;
UPMC Health System

John J. Myers
Christine M. Gass [ARGUED]
Eckert, Seamans, Cherin & Mellott
600 Grant Street, 44th Floor
Pittsburgh, PA 15219
Counsel for Appellees
 University of Pittsburgh Physicians

                                       __________

                               OPINION OF THE COURT
                                     __________

RENDELL, Circuit Judge.

              Patricia Moore appeals from the trial verdict against her and the District

Court’s denial of her post-trial motion on her claims for alleged sexual discrimination


                                             2
against the University of Pittsburgh (“University”) and the University of Pittsburgh

Physicians (“UPP”) under Title VII and the Pennsylvania Human Relations Act, and her

claim for alleged breach of contract against the University.1

          Moore called 26 witnesses over the course of 8 trial days to prove that the

University and UPP had discriminated against her on the basis of gender, and that the

University had breached its contract with her when her faculty appointment in the

Department of Neurology and her clinical appointment with UPP were not renewed.

          Defendants called 13 witnesses who testified as to the legitimate,

nondiscriminatory basis for the non renewal, which could be characterized as Moore’s

difficult interpersonal relations with staff as well as her failure to establish a satisfactory

research program.2 There was extensive testimony as to both sides of both of these

issues.

          Moore assigns error to four evidentiary rulings of the District Court. We will

address each in turn.




 1
  Plaintiff’s complaint contained fourteen counts, but all but three were disposed of on
summary judgment. Moore does not appeal the summary judgment order of the District
Court.
 2
  Dr. DeKosky, the apparent decision-maker, summarized his reasons for terminating
Moore, testifying: “As far as I was concerned, Doctor Moore did not perform adequately
with respect to how she dealt with, especially, the people in the clinic, who were her
underlings and she produced nothing in the laboratory. So, my decision at that point, was
there was no reason to maintain her on the faculty here.” Tr. Trans. 3/31/05 at 196, App.
1786.

                                                3
       1.     Exclusions of testimony of three patients.

              Moore complains that the District Court erred by refusing to permit

testimony from three of her former patients, who would have testified as to their positive

personal interactions with Moore and certain problems in the clinic caused by staff

members other than Dr. Moore.

              Moore analogizes her case to that of Glass v. Philadelphia Elec. Co., 

(3d Cir. 1994). In Glass, the plaintiff alleged employment discrimination on the

basis of race and age. At trial, the plaintiff presented evidence that he was better qualified

for the position but was rejected in favor of less qualified, younger, white candidates. 

The employer justified its failure to promote Glass by reference to his purportedly

poor performance during a stint at a previous plant. 

attempted to

introduce evidence of a hostile racial environment at that previous plant and its impact on

his performance, but this evidence was excluded by the district court. On appeal, we held

that the district judge erred in excluding the evidence of racial harassment and found that

the error was not harmless, reversing and remanding for a new trial. 

We

found that the evidence relating to Glass’s explanation for his poor performance was

relevant to whether the non-discriminatory reason asserted by the employer was in fact a

pretext for age and race discrimination.

              Moore urges that the testimony of Mr. Douglas, Ms. Byers, and Ms.

Mehalik was wrongly believed by the District Court to relate to patient care, while it

actually had to do with Moore’s interactions with people. The latter was definitely at

                                              4
issue in the trial. At trial, following a proffer by Moore’s counsel, the District Court

ruled that the testimony would not be relevant. Moore urges that this was error and that

Glass requires us to order a retrial. We disagree.

               By way of proffer, Moore’s counsel stated that Mr. Douglas would have

testified to an event that occurred two months after the decision had been reached not to

renew Dr. Moore. The District Court held that, given the time frame, Mr. Douglas’

testimony would not be relevant.    We find no error in this ruling.

               With respect to Ms. Byers and Ms. Mehalik, although not permitted in her

case in chief, these witnesses were called by Dr. Moore in rebuttal. On rebuttal, both Ms.

Byers and Ms. Mehalik testified regarding the fact that Dr. Moore was in different

examination rooms each time they saw her. Ms. Byers also testified regarding negative

experiences she had with the clinic staff in scheduling appointments, and in particular

with Melanie Mielo. Tr. Trans. 4/4/05 at 187-94, app. 2071-8; Tr. Trans. 4/4/05 at 194-6,

app. 2081-3.

               While we disagree with the District Court’s reasoning in excluding the

evidence (which was explained upon post-trial motion as relating to the fact that their

testimony pertained to the standard of Moore’s care of patients, and that this was not at

issue in the case (Memorandum Opinion 8/03/05, page 7)), we conclude that the

exclusion was nonetheless harmless.     Patients Byers and Mehalik testified in rebuttal,

and there was a great deal of evidence regarding patient complaints about the clinic and

its staff through other witnesses. While the District Court arguably should have

                                              5
permitted Byers and Mehalik to testify as to their positive personal interactions with Dr.

Moore, such testimony would have been merely cumulative. In particular, we observe

that Michael Oliverio, a third patient, was permitted to testify in Moore’s case-in-chief.

Mr. Oliverio wrote a letter, which was admitted in evidence and read to the jury, thanking

Dr. Moore for her thoroughness, kindness and patience, and expressing his pleasure at

having been her patient. Tr. Trans. 3/22/05 at 37-8, app. 744-5. He testified that the

letter accurately reflected how he felt about his experience with Dr. Moore. 

Dr. Bartley Griffith, whose wife was a patient of Dr. Moore’s, testified that he

thought Moore was exemplary in taking care of his wife. He stated

              [Dr. Moore’s] approach to my wife seemed to be very personal,
              seemed to be one which fostered hopefulness, very important in
              a patient with a chronic disabling disease. She was always
              available, left us a number of contact numbers including her
              home. So, I felt very comfortable with Dr. Moore’s
              involvement. I’ve had a number of other neurologists who have
              taken care of my wife over our period now together with this
              disease since she was really 17 years old. So, I’ve been with my
              wife since I was 21 years old as her husband. I think I know a
              reasonable neurologist when I see one in terms of taking care of
              my wife, and you know, I thought Dr. Moore was exemplary.


Tr. Trans. 3/29/05 at 34, app. 1305. Furthermore, counsel’s proffer did not indicate any

specific experience of Ms. Byers or Ms. Mehalik that was unusual or critical to Dr.

Moore’s case. In light of the ample testimony regarding Moore’s positive interactions

with patients, we conclude that any testimony by Ms. Byers and Ms. Mehalik was merely

cumulative and “it is highly probable that the error did not affect the outcome of the


                                             6
case.” 

.



       2.     Admission of evidence from staff members.

              Moore contends that three staff members were improperly permitted to

testify regarding problems they experienced with Dr. Moore, because these incidents

were not reported to Dr. DeKosky, the decision maker, and thus did not serve as the basis

for Moore’s nonrenewal. Moore relies on a series of cases that hold that evidence

regarding reasons that did not form the basis for the decision at issue is not relevant as to

whether the defendant had a “legitimate” reason for having taken the challenged action.

See, e.g., Woodman v. WWOR-TV, Inc., 

(2d Cir. 2005); Kendrick v. Penske

Transp. Service, 

(10th Cir. 2000); Shorter v. ICG Holdings, Inc., 

(10th Cir. 1999); Biolchini v. General Electric Co., 

(7th Cir. 1999);

Hammel v. Eau Galle Cheese Factory, 

, at *5 (W.D. Wis. 2003).

Moore urges that, as such, they are nothing more than “other acts” evidence prohibited by

Rule 404(b). We disagree.

              First, it is not entirely clear that decision makers, including Dr. DeKosky,

did not learn of these incidents. The evidence on this issue is equivocal. The pattern of

behavior exhibited by Moore, as described by the staff witnesses came to the attention of

management and Dr. DeKosky. Melanie Mielo, the clinic manager, testified that she

informed the departments’ vice chairs and the department administrators that the staff was

tense and anxious on clinic days when Dr. Moore was scheduled to see patients because

                                              7
she was often unreasonable and disrespectful to the staff. Tr. Trans. 3/30/05 at 201, 203,

app. 1658, 1660. In addition, Ms. Boyd also testified that she complained to the

department administrator about a negative encounter with Dr. Moore. Tr. Trans. 3/30/05

at 84, app. 1563. Dr. DeKosky testified that he received reports from the department

administrator about altercations and disagreements between Dr. Moore and the clinic

staff. Tr. Trans. 3/31/05 at 175-6, app. 1765-66.

              Second, “other acts” evidence that is prohibited by Rule 404(b) is evidence

of unrelated acts that would be offered to prove that a person acted in similar fashion in

the instant setting. See Ansell v. Green Acres Contracting Co., Inc., 

, 520

(3d Cir. 2003). However, here, the acts as to which the three staff members, Ms. Trimber,

Ms. Boyd, and Ms. O’Leary, testified were precisely the acts complained of. Moore

urges that Becker v. ARCO, 

(3d Cir. 2000), is controlling. However, in that

case, the challenged testimony concerned previous acts. As we explained, the problem

was that the jury would likely draw an “inference that ARCO was likely to have

fabricated customer complaints and other performance problems in Becker’s case merely

because ARCO had previously engaged in similar impropriety . . 

.

This is not the case here.

              Moreover, the testimony of these three individuals was introduced as part of

the defendant’s case after Moore had testified to positive interactions with staff,

specifically including Ms. Boyd. Tr. Trans. 3/17/05 at 92, app. 389 (“I thought I had very

good relations with Marlene Boyd....”). Moore also testified that she was unaware of any

                                              8
incident involving her that caused a decline in staff morale. Tr. Trans. 3/16/05 at 170,

app. 271. Moore further testified that she did not criticize the staff publicly, and that her

argument with Mindy Losego, a clinical research coordinator, was the only time she had

raised her voice to any employee at the University of Pittsburgh. Tr. Trans. 3/21/05 at 80,

app. 556; Tr. Trans. 3/1705 at 10, app. 306. In addition, Moore elicited testimony about

her demeanor and interactions with the clinic staff from a number of witnesses. Given all

of this, we conclude that Moore opened the door to rebuttal of this type, and therefore the

testimony of Ms. Trimber, Ms. Boyd, and Ms. O’Leary was permissible.

       3.     Introduction of letter from Vanderbilt.

              Moore testified on direct examination that she had been employed from

1981 to 1987 at Vanderbilt University and that: “The department at Vanderbilt would

have been delighted had I stayed there with my RO1 [grant], but I was eager to move to a

place where I thought there would be a larger group of people with whom I could work.”

Tr. Trans. 3/16/05, app 186-87.

              On cross-examination, defense counsel asked whether it was true that

Moore’s contract with Vanderbilt had not been renewed. Plaintiff answered:

              It is the practice of every university that I have been in to
              discuss with a faculty member the plans for both the faculty
              member and the department a year prior to the end of a contract.
              And at that time, Dr. Fenichel, who was the chairman of the
              department, and I sat down and talked. And he mentioned to me
              that.

              ....


                                              9
              At the time that Dr. Fenichel and I had the discussion, I
              mentioned to him that I wanted to leave to go someplace where
              I would have more collegial interactions with laboratory
              workers. And so we agreed that I would leave voluntarily and
              he wrote he would not renew my appointment. Subsequent to
              that, I did receive my RO-1 grant and if I had wished to stay,
              according to Dr. Fenichel, they would have reappointed me.

Tr. Trans. 3/17/05 at 108-9, app. 405-6.


              Defense counsel then confronted Moore with a letter from Vanderbilt

University dated April 3, 1986, addressed to her, which stated:

              This letter is to document our prior conversation. Your
              appointment on the faculty will not be renewed when your
              present three-year term expires on June 30, 1987.

              Moore’s counsel objected on the basis of hearsay, which was overruled by

the District Court but which Moore still urges on appeal. We agree with the District

Court that the letter was properly used to test Moore’s credibility in light of her equivocal

response, to demonstrate that she had in fact been told by Vanderbilt that her contract was

not being renewed and that, as she ultimately testified, she was aware that her contract

had expired. Furthermore, Moore admitted the essence of what the letter stated

independently upon further questioning by counsel. Tr. Trans. 3/17/05 at 113-4, app.

410-11. Accordingly, any error was harmless.

       4.     Melanie Mielo’s communication to Dr. DeKosky

              While questioning Dr. DeKosky, Moore’s counsel attempted to introduce a


                                             10
portion of the doctor’s deposition concerning a statement made to him by the clinic

manager, Melanie Mielo, after Dr. DeKosky had received Moore’s EEOC charge. The

District Court excluded the evidence as having been made in anticipation of litigation.

Counsel did not make an offer of proof, nor was the substance of the statement apparent

from the record at the time, nor is it part of the record on appeal. However, counsel

apparently agrees that it had to do with Mielo’s failure to accede to Dr. Moore’s wish to

have the same examining room, as an accommodation to her vision problems. Mielo’s

testimony at trial was to the effect that Moore had made such a request to Mielo, although

Mielo stated that she was unaware of Moore’s vision problems.       At her deposition, she

had answered “No,” to the question of whether Moore had asked her “to make sure she

had the same exam room because she had problems with her eyesight.” Tr. Trans.

3/30/05 at 181, app. 1638.

               During Dr. DeKosky’s testimony, on cross-examination, Moore’s counsel

attempted to impeach Mielo’s credibility by introducing Dr. DeKosky’s previous

deposition testimony, in which he stated that Ms. Mielo had told him shortly after

Moore’s nonrenewal that she knew about Moore’s visual problems. The District Court

did not permit this. Moore’s counsel urges that the evidence would demonstrate gender

discrimination, although this is not readily apparent, nor was that aspect ever explained to

the District Court.

              We credit Moore’s argument on appeal that the District Court’s reason for

excluding the evidence, namely, that it was in anticipation of litigation, was not proper,

                                             11
but we conclude, nonetheless, that there was no harmful error in excluding the evidence.

              Given the dubious probative value of this line of questioning as it pertained

to gender discrimination, and the lack of any offer of proof as to the point Moore sought

to make, we find no abuse of discretion in the District Court’s ruling. Once the disability

discrimination count was removed from the case on summary judgment, this line of

questioning could only be relevant as to gender discrimination, and we find its probative

value, even if it were arguably permissible impeachment, too attenuated to require its

admission.

              Accordingly, we will AFFIRM the order of the District Court.




                                            12