Gary C. Goodman v. Pennsylvania Turnpike Commission

PRECEDENTIAL
Filed June 24, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 00-2340 & 00-2493
GARY C. GOODMAN,
Appellant (No. 00-2340)
v.
PENNSYLVANIA TURNPIKE COMMISSION; BONNEY C.
DAUBENSPECK; MITCHELL RUBIN; JAMES F. MALONE;
JAMES J. DODARO; BRADLEY MALLORY, in his capacity
as Pennsylvania Turnpike Commissioner; JOHN DURBIN;
DEBORAH L. EVERLY
Pennsylvania Turnpike Commission,
Appellant (No. 00-2493)
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 96-cv-05921)
District Judge: Honorable Franklin S. Van Antwerpen
Argued: May 21, 2001
Before: BECKER, Chief Judge, SLOVITER and AMBRO,
Circuit Judges
(Filed: June 24, 2002)
EDWARD M. BRENNAN, ESQUIRE
(Argued)
101 South Center Street, Suite 2
P.O. Box 930
Pottsville, Pennsylvania 17901
Counsel for Gary C. Goodman
MICHAEL M. BAYLSON, ESQUIRE
(Argued)
FRANK E. NOYES, II, ESQUIRE
Duane, Morris & Heckscher LLP
One Liberty Place
Philadelphia, Pennsylvania 19103
WILLIAM CHESTNUTT, ESQUIRE
Pennsylvania Turnpike Commission
P.O. Box 67676
Harrisburg, Pennsylvania 17106
Counsel for Pennsylvania Turnpike
Commission, et al.

-- 1 of 27 --

OPINION OF THE COURT
AMBRO, Circuit Judge:
In this opinion we address two appeals. First, we
consider the cross-appeal of the Pennsylvania Turnpike
Commission (the "Commission"). It contends that the
Magistrate Judge erred in three respects: (1) in making
three evidentiary rulings; (2) in denying its motions for
judgment as a matter of law pursuant to Federal Rule of
Civil Procedure 50(a) and (b); and (3) in denying its motion
for a new trial pursuant to Federal Rule of Civil Procedure
59. Because we disagree with all of the Commission’s
contentions, we affirm. Second, we address Appellant Gary
C. Goodman’s claim that the Magistrate Judge abused his
discretion by setting his attorney’s fees, which the
Commission pays pursuant to 42 U.S.C. S 1988, too low.
We find no abuse of discretion and affirm.
2
I. Facts and Procedural History
As this appeal follows a jury verdict in Goodman’s favor,
we view the evidence in the light most favorable to the
winner. See United States v. Gricco, 277 F.3d 339, 348 (3d
Cir. 2002). Goodman began his career with the Commission
in 1976 as an Equipment Operator in the maintenance
department. After fifteen months, Goodman moved into fare
collections and received training as a Toll Collector before
becoming an Assistant District Manager. In that capacity,
Goodman reported to Frank Flaherty, the District Manager.
In December of 1994, Flaherty retired, leaving a vacancy in
his position as District V Manager for Fare Collections. On
December 23, 1994, the Commission named Goodman
Acting District Manager1 and posted the promotion
opportunity.
The Commission follows specific policies governing the
promotion process outlined in Policy Letter 65, Policy and
Procedure for Promoting Employees. Policy Letter 65 was
adopted in 1992, after consultation with outside legal
counsel, to improve the efficiency and fairness of promotion
decisions, and to comply with the United States Supreme
Court’s decision in Rutan v. Republican Party of Illinois, 497
U.S. 62 (1990), which held that public employers could be
held liable under 42 U.S.C. S 1983 and the First
Amendment for discriminating against certain employees
because of their political affiliation. After a job vacancy is
properly posted and interested applicants submit the
required material, all qualified applicants are sent to the
pertinent department head, here the head of Fare
Collections. An interview committee from the Fare
Collections Department, consisting of the department head
and other managers, then conducts interviews. The
interview committee forwards the top three to six
candidates to the Personnel Committee, a five member
board that makes personnel recommendations. It must

-- 2 of 27 --

_________________________________________________________________
1. Goodman served as Acting District Manager for approximately
fourteen months. During his tenure as Acting District Manager,
Goodman received no official or written criticism. He received a formal
written commendation for his computer work in the Fare Collections
Department while he served as Assistant District Manager.
3
provide the Personnel Committee with a written
explanation, based on a set of written criteria, stating why
it chose the particular candidates. The Personnel
Committee then reviews the attributes of the top candidates
and selects a single candidate to recommend to the
Turnpike Commissioners (the "Commissioners"), who by
statute must make the final decision. Commission policy
requires that the Personnel Committee prepare a report for
the Commissioners that explains the Committee’s
recommendation. The Commissioners then accept or reject
the recommendation. Typically, they approve the Personnel
Committee’s recommendation.
The Commission’s governing body comprises four
Turnpike Commissioners who are appointed by the
Governor and confirmed by a two-thirds majority of the
State Senate. The Secretary of Transportation sits as a fifth
member with the Commissioners. During the promotion
process for the District V Manager for Fare Collections
position, the Commissioners were Robert A. Brady, James
J. Dodaro, Robert A. Gleason, Jr. , James F. Malone, and
Secretary of Transportation Bradley Mallory. From 1985
until the time of trial, the Commissioners were balanced in
terms of political affiliation, two Democrats and two
Republicans. The Secretary of Transportation, however,
tipped the scale in the direction of the political party of the
Governor. The Personnel Committee, at the relevant time,
consisted of Executive Director John Durbin, Associate
Executive Director Deborah Everly, Risk Manager Dennis
Genevie, Assistant Executive Director Melvin Shelton, and
Assistant Executive Director Michael Kennedy. Each
Commissioner is represented by one member of the
Personnel Committee, thus maintaining the same split in
political affiliation among the Personnel Committee as
among the Commissioners. Commissioner Brady was
represented by Shelton, Commissioner Dodaro by Genevie,
Commissioner Gleason by Everly, and Commissioner
Malone by Kennedy. Durbin sat as a controlling, or swing,
vote by virtue of his position as Executive Director.
The Commission posted the District V Manager position
three times while Goodman was Acting District Manager.
Goodman interviewed twice for the position. According to
4
him, after the first interview, the Personnel Committee took
no action because a new Governor of a different political

-- 3 of 27 --

party had been elected. Likewise, after the second posting,
the Commission conducted no interviews. After the third
posting, the Commission once again held interviews.
Goodman, along with seven other candidates (including Lee
Becker), was interviewed by Samuel Sadler, Deputy
Executive Director for Fare Collections, and two other
district managers in the Fare Collections Department. This
interview committee recommended Goodman, Becker, and
Andre Coleman to the Personnel Committee. These
candidates obtained the three top scores on the interviews.
The candidates were evaluated using such criteria as their
education, prior management experience, training,
computer literacy, communication skills, and knowledge of
the Commission’s rules and policies. Goodman received the
top score, thirty-six out of a possible forty-one points, while
Becker received twenty-nine points and Coleman received
twenty points.
At its meeting in February 1996, the Personnel
Committee asked Sadler, the member of the interview
committee who had summarized the qualifications of each
of the candidates, which candidate was best qualified.
Goodman contends that Sadler stated that Goodman was
the best qualified candidate and cited his fourteen months
of service as Acting District Manager.2 Also, Goodman
alleges that, after much discussion, the Personnel
Committee voted on the candidate each member thought
was the best. Genevie and Shelton voted for Goodman,
while Durbin, Everly, and Kennedy voted for Becker. This
vote was split along party lines: the two Democrats voted
for Goodman and the three Republicans voted for Becker.
Becker is a registered Republican and was the Ward
Committeeman for East Penn Township. The Personnel
Committee ultimately recommended Becker for the
_________________________________________________________________
2. At trial, two Personnel Committee members, Shelton and Genevie,
testified that they recalled Sadler telling them that Goodman was the
most qualified candidate. However, when asked at trial if he thought
Goodman was the best candidate, Sadler refused to answer the question,
stating that all three candidates were qualified and that Goodman
answered the most questions correctly.
5
promotion and the Commissioners approved him on
February 20, 1996.
Goodman then initiated suit in the Eastern District of
Pennsylvania, relying on Rutan. He alleges that he was not
promoted because he and his family members were
registered, active Democrats, and because Becker was a
registered Republican affiliated with, and supported by,
State Senator James Rhoades. Goodman sued the
Commission, as well as seven individual commissioners
and executives associated with it. However, two individual
defendants, Executive Director John Durbin and Associate
Executive Director Deborah Everly, obtained summary
judgment in their favor and the remaining individual

-- 4 of 27 --

defendants were voluntarily dismissed before trial.
See Goodman v. Pa. Turnpike Comm., No. 96-cv-5921, 1998
WL 159046 (E.D. Pa. Mar. 20, 1998) (dismissing Durbin
and Everly). The action continued against the Commission
and was referred, pursuant to 28 U.S.C. S 636(c) and the
consent of both parties, to the Magistrate Judge for trial.
A jury trial began on November 15, 1999, before
Magistrate Judge Rapoport, with Goodman offering
testimony and exhibits through nineteen witnesses
describing the promotion process, the qualifications of the
candidates for the promotion, and the facts supporting his
claim that political discrimination was a substantial or
motivating factor in his failure to receive the promotion. His
arguments focused on the political rivalry between the
Goodman family and Republican State Senator Rhoades.
Goodman claims that political support from Senator
Rhoades and his aide, Clyde "Champ" Holman, on behalf of
Becker resulted in Becker being promoted instead of
Goodman. Goodman produced evidence that Becker was
endorsed by Senator Rhoades in a letter drafted by Holman
and signed by the Senator. It was addressed to Samuel
Carnabuci, Assistant Executive Director of the Western
Regional Office of the Commission and a former member of
its Personnel Committee. In the letter, Senator Rhoades
lauded Becker, and stated that "[e]very possible
consideration you can extend to Lee [Becker] in his quest
for employment will be greatly appreciated." Goodman
further testified that Becker told him that he (Becker) had
6
met with Senator Rhoades and Holman to try to secure the
District Manager position. Additionally, Holman testified
that he and the Senator met with Commissioner Gleason,
though it is unclear what that meeting concerned. 3
Goodman, himself a member of the Democratic Party,
also has deep family ties in partisan politics. The rivalry
between the Goodman family and Senator Rhoades dates to
1978, when Goodman’s uncle, James Goodman, defeated
Rhoades for a seat in the Pennsylvania General Assembly.
All members of the Personnel Committee who were asked
at trial denied knowing the political affiliation of either
Goodman or Becker. Further, four members of the
committee testified that they did not discuss political
affiliation at the meeting. Additionally, the members of the
Personnel Committee testified that they never saw Senator
Rhoades’ letter recommending Becker or even knew that he
supported Becker.
Goodman produced two items as circumstantial evidence
of the political influence behind promotional decisions at
the Commission. First, he offered into evidence a document
entitled "1993-1994 Application List." That list contained
several names with the notation "wants promotion." Next to
each name was the source of the application, either"U.S.
Mail" or the name of a political figure--in many cases state

-- 5 of 27 --

senators, representatives, or their staff, including Senator
Rhoades and his aide Holman. Second, he offered a report
entitled "1997 Legislative Budget and Finance Committee
Report." This report contained a review of, and
recommendations as to, the Commission’s promotion
policies. The Magistrate Judge accepted both documents
into evidence.
Also at trial Becker testified that he heard about his
promotion from his boss, Sadler. He specifically stated that
he did not hear of the promotion from Holman, and
specifically denied ever telling Goodman that he heard
about the promotion from Holman. Holman also denied any
such conversation occurred.
_________________________________________________________________
3. Gleason stated in his testimony that the meeting was about his
insurance business.
7
Goodman’s counsel recalled him in an effort to impeach
Becker’s statement. Over the Commission’s objection,
Goodman testified that Becker had told him that he,
Becker, had learned about his promotion from Holman.
Goodman also introduced, over objection, similar testimony
from his father, Cornelius Goodman, that Holman told him
that Senator Rhoades was responsible for Becker’s
promotion. Goodman’s attorney stated multiple times that
he was introducing these statements to impeach Becker’s
and Holman’s contrary testimony under Rule 607 of the
Federal Rules of Evidence. In this context, Goodman’s
counsel did not refer to either statement during his jury
summation, and the Magistrate Judge did not give a
limiting instruction to the jury.
At the close of Goodman’s case, the Commission moved
for judgment under Federal Rule of Civil Procedure 50(a) on
the basis that Goodman had not established a prima facie
case of political discrimination. The Magistrate Judge heard
oral arguments on the motion, examined the sufficiency of
the evidence showing that Goodman’s and Becker’s political
affiliation was a substantial or motivating factor in the
promotion decision, and ultimately denied the
Commission’s motion.
On November 18, 1999, the jury returned a verdict
against the Commission, awarding Goodman $215,000. The
Commission renewed its motion for judgment under Federal
Rule of Civil Procedure 50(b), and in the alternative made
a motion for a new trial pursuant to Federal Rule of Civil
Procedure 59. The Magistrate Judge denied both by an
order entered on July 26, 2000. Also in that order the
Magistrate Judge granted Goodman’s motion for an interim
award of attorney’s fees and costs, awarding $87,450.00 in
fees and $9,213.15 in costs.
Goodman filed a timely appeal contesting the attorney’s
fees as too low. The Commission cross-appealed, contesting

-- 6 of 27 --

three evidentiary decisions as well as the denials of its Rule
50 and Rule 59 motions. We address the cross-appeal first.4
_________________________________________________________________
4. Jurisdiction was proper in the District Court under 28 U.S.C. S 1331
because Goodman brought his claim of political discrimination pursuant
to the First and Fourteenth Amendments to the United States
Constitution and 42 U.S.C. S 1983. We exercise our jurisdiction
pursuant to 28 U.S.C. S 1291.
8
II. The Political Patronage Trilogy
The Supreme Court has decided a trilogy of cases that
governs our decisions in political patronage cases. In Elrod
v. Burns, 427 U.S. 347, 372-73 (1976), and again in Branti
v. Finkel, 445 U.S. 507, 514-15 (1980), the Supreme Court
ruled that public agencies may not constitutionally
discharge employees based on their political affiliation when
those employees’ positions are neither policymaking nor
advisory. See Stephens v. Kerrigan, 122 F.3d 171, 176 (3d
Cir. 1997). It reasoned that an employee’s First Amendment
right outweighs the Government’s interest in maintaining a
system of political patronage. Id.; see also Robertson v.
Fiore, 62 F.3d 596, 600 (3d Cir. 1995) ("The constitutional
prohibition against patronage derives from the coercive
aspects of the spoils system which inhibit the rich political
discourse protected by the First Amendment. Without the
protection afforded by the Constitution, employees might
forgo the expression of their political beliefs or artificially
change their political association to avoid displeasing their
supervisors. Such coercion, whether direct or indirect, is
incongruent with a free political marketplace.").
However, Branti and Elrod did carve out an exception for
positions that are classified as policymaking or advisory, in
which case the Government has the burden of proving that
party affiliation is an appropriate requirement for the
position. Branti, 445 U.S. at 518 ("[T]he ultimate inquiry is
not whether the label ‘policymaker’ or ‘confidential’ fits a
particular position; rather, the question is whether the
hiring authority can demonstrate that party affiliation is an
appropriate requirement for the effective performance of the
public office involved."); Elrod, 427 U.S. at 368 (holding that
party affiliation may be an acceptable requirement for an
employee who "acts as an advisor or formulates plans for
the implementation of broad goals"); see also Peters v. Del.
River Port Auth., 16 F.3d 1346, 1353 (3d Cir. 1994). Branti
and Elrod also held that one could not be discharged for
failing to obtain the sponsorship of the controlling political
party. Branti, 445 U.S. at 516; Elrod , 427 U.S. at 351.
More than a decade later, the Supreme Court added the
third leg of the political patronage trilogy--Rutan v.
Republican Party of Illinois, 497 U.S. 62 (1990). In Rutan,
9

-- 7 of 27 --

the Supreme Court extended Branti and Elrod and ruled
that promotions, transfers, recalls, and hiring decisions
involving public employees may not be based on party
affiliation and support unless the Government can show
that party affiliation is an appropriate requirement for the
position involved. Rutan, 497 U.S. at 75."Thus, Rutan
encompasses claims of political discrimination when an
employer takes an adverse employment action because
s/he does not want to fill employment positions that would
otherwise be available to his or her supporters." Stephens,
122 F.3d at 176.
With the above precedents in mind, our Court has
developed a three-prong test in political patronage
discrimination cases. "To make out a claim of
discrimination based on political association, a public
employee must prove (1) that the employee works for a
public agency in a position that does not require a political
affiliation, (2) that the employee maintained an affiliation
with a political party, and (3) that the employee’s political
affiliation was a substantial or motivating factor in the
adverse employment decision." Robertson, 62 F.3d at 599
(citing Laskaris v. Thornburgh, 733 F.2d 260, 265 (3d Cir.
1984)). Implicit in the third prong is a requirement that the
plaintiff produce sufficient evidence to show the defendant
knew of plaintiff’s political persuasion. Laskaris, 733 F.2d
at 265; see also Stephens, 122 F.3d at 177 (splitting the
analysis of the third prong into two parts, knowledge and
causation). Proof of knowledge can come from direct or
circumstantial evidence. Stephens, 122 F.3d at 178-79.
Finally, if the above elements are satisfied, the employer
"may avoid a finding of liability by demonstrating by a
preponderance of the evidence that it would have made the
same decision even in the absence of the protected
affiliation." Robertson, 62 F.3d at 599.
III. The Commission’s Rule 50 Motions for Judgment
as a Matter of Law
In filing the Rule 50 motions for judgment as a matter of
law, the Commission contended that Goodman did not
carry his burden on the third prong of the political
patronage analysis. While the parties stipulated as to the
10
first two prongs, the Commission claims that Goodman did
not show sufficient proof that it had knowledge of
Goodman’s political affiliation and that Goodman did not
provide legally sufficient evidence to demonstrate that his
political affiliation was a substantial or motivating factor in
being denied the promotion.5 We disagree and thus affirm.
Federal Rule of Civil Procedure 50 states, in pertinent
part:
(a) Judgment as a Matter of Law.

-- 8 of 27 --

(1) If during a trial by jury a party has been fully heard
on an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find for that
party on that issue, the court may determine the issue
against that party and may grant a motion for
judgment as a matter of law against that party with
respect to a claim or defense that cannot under the
controlling law be maintained or defeated without a
favorable finding on that issue.
(b) Renewing Motion for Judgment After Trial;
Alternative Motion for New Trial. If, for any reason, the
court does not grant a motion for judgment as a matter
of law made at the close of all the evidence, the court
is considered to have submitted the action to the jury
subject to the court’s later deciding the legal questions
raised by the motion. The movant may renew its
request for judgment as a matter of law by filing a
motion no later than 10 days after entry of judgment--
_________________________________________________________________
5. The Commission also contends that Goodman failed to produce, as
required by his theory of the case (that Goodman lost the promotion to
Becker because Goodman was a Democrat and Becker was a Republican
supported by a Republican State Senator), proof of the Commission’s
knowledge of Becker’s political affiliation. However, we find Goodman’s
theory simply to be that the Commission failed to promote him because
of his strong affiliation with the Democratic Party. Therefore, there was
no requirement that Goodman produce evidence of the Commission’s
knowledge of Becker’s political affiliation. See Stephens, 122 F.3d at 180
("[I]f the plaintiffs’ political affiliation was a substantial or motivating
factor in his decision not to promote them, they have established a basis
for finding the requisite causation.").
11
and may alternatively request a new trial or join a
motion for a new trial under Rule 59. . . .
We exercise plenary review over orders granting or
denying a motion for judgment as a matter of law and apply
the same standard as did the Magistrate Judge. Lightning
Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993).
As with grants of summary judgment, the reviewing court
"must draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility
determinations or weigh the evidence." Reeves v. Anderson
Plumbing Prods., 530 U.S. 133, 150 (2000). Generally, a
Rule 50 motion should be granted only if evidence is not
sufficient for a jury reasonably to find liability. Lightning
Lube, 4 F.3d at 1166. Although judgment as a matter of law
should be granted sparingly, a scintilla of evidence will not
enable the non-movant to survive a Rule 50 motion. See id.
"The question is not whether there is literally no evidence
supporting the party against whom the motion is directed
but whether there is evidence upon which the jury could
properly find a verdict for that party." Id. (internal quotation
omitted).

-- 9 of 27 --

Key to surviving a Rule 50 motion is a legally sufficient
evidentiary basis for the verdict. The rule in this Circuit is
that erroneously admitted evidence should not be
considered when ruling on motions for judgment as a
matter of law. Lightning Lube, 4 F.3d at 1199-1200; Lippay
v. Christos, 996 F.2d 1490, 1500-01 (3d Cir. 1993). The
Supreme Court has recently adopted an analogous rule
holding that federal courts of appeals, in reviewing Rule
50(b) motions, have the power first to exclude inadmissible
evidence and then to examine the trial record to see if the
remaining admissible evidence can support the verdict.
Weisgram v. Marley Co., 528 U.S. 440, 457 (2000).
Additionally, when reviewing a trial record containing
inadmissible hearsay, courts of appeals are not limited to
remanding to the district court, but rather can review the
Rule 50(b) motion without the inadmissible evidence. Id.
Before deciding whether the Magistrate Judge properly
denied the Rule 50 motions for judgment as a matter of
law, we must first determine what evidence was properly
before him and therefore should be considered in our Rule
12
50 analysis. After deciding these issues, we examine
whether the Commission had knowledge of Goodman’s
political affiliation and whether that political affiliation was
a substantial or motivating factor in his being denied the
promotion.
A. Evidence Issues
On appeal, the Commission argues that the Magistrate
Judge erroneously admitted three items into evidence: (1)
the testimony of Goodman and his father relating to
statements that Becker allegedly made to Goodman and
that Champ Holman (Senator Rhoades’ aide) allegedly made
to Goodman’s father; (2) Carnabuci’s list of entry-level job
applicants and testimony regarding it; and (3) excerpts from
the 1997 audit report prepared by the Legislative Budget
and Finance Committee. We review the Magistrate Judge’s
evidentiary rulings for abuse of discretion. Bohler-Uddeholm
Am., Inc. v. Ellwood Group, Inc., 247 F.3d 79, 111 (3d Cir.
2001).
1. Alleged Hearsay Statements of Goodman and his
Father
The Magistrate Judge admitted Goodman’s testimony
that Becker told him that "Champ [Holman] called me last
night and told me that I got the job." This testimony
followed Becker’s taking the stand and denying that he
learned of the promotion from Holman. The Magistrate
Judge also admitted testimony by Cornelius Goodman,
Goodman’s father, that Holman twice told him that Senator
Rhoades was "to blame" for Becker’s promotion over
Goodman. This testimony similarly came after Holman
testified that he did not make those statements. The
Commission argues that both statements were inadmissible

-- 10 of 27 --

hearsay offered for the truth of the matter asserted. On the
other hand, Goodman argues that the statements were not
hearsay and were admissible under Federal Rule of
Evidence 607, which says that "the credibility of a witness
may be attacked by any party, including the party calling
the witness."6
_________________________________________________________________
6. In his appellate brief, Goodman deemphasizes the Rule 607 argument
and contends that the statements were admissible under Rule 803(3),
13
We conclude that under the circumstances these
statements should not be deemed hearsay. Federal Rule of
Evidence 801(c) defines hearsay as "a statement, other than
one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted." In this case, Goodman’s counsel noted explicitly
at trial that the statements of Goodman and his father were
introduced to impeach the testimony of Becker and
Holman. It made sense for Goodman to introduce the
statements for this purpose. Regardless whether Holman
actually told Becker about his promotion, and regardless
whether Senator Rhoades was in fact "to blame" for the
promotion, witnesses who make such statements and later
deny them tend to lack credibility, and may be impeached
on that ground. Thus, the statements are direct evidence by
which the jury could assess Becker’s and Holman’s
truthfulness. In this case they were not introduced"to
prove the truth of the matter asserted" and therefore lack
the defining characteristic of hearsay under the Federal
Rules.
The Commission points to our holding in United States v.
Sebetich, 776 F.2d 412 (3d Cir. 1985), as supporting its
position. In that case, we held that "[i]t is well established
. . . that witnesses may not be called for the purposes of
circumventing the hearsay rule by means of Rule 607."
Id. at 429. A party can attack a witness’s credibility using
otherwise inadmissible evidence, but cannot pretend that
inadmissible hearsay evidence is being used to impeach a
witness so that the jury will hear its substance. In Sebetich,
two bank robbery defendants had evidence that another
man named Chester Sala had told people that he intended
to commit the bank robberies of which the defendants were
accused. The defendants sought to call a witness, Williams,
to testify to Sala’s statements, but the District Court
_________________________________________________________________
which provides a hearsay exception for the declarant’s then existing state
of mind. We disagree and find the cases that Goodman cites for this
proposition not on point. However, we will focus on his original
argument that the statements are not hearsay because they were
introduced for impeachment and not to prove the truth of the matter
asserted.
14

-- 11 of 27 --

refused to admit the testimony because it was hearsay.7
The defendants argued that they should have been
permitted to call Sala himself and, assuming that he denied
making the statement, impeach his testimony through their
witness, Williams, who would testify to the statement.
Williams’ testimony, although superficially introduced for
the purpose of impeaching Sala’s credibility, would
therefore reveal to the jury the defendants’ substantive
argument that Sala committed the bank robberies. Not
surprisingly, we concluded that a defendant may not invoke
"impeachment" as a talisman to circumvent the hearsay
rules.
But Sebetich does not apply to this case. Sebetich and
his codefendants were trying to admit Sala’s statements for
substantive purposes under a hearsay exception at the
same time that they were ostensibly proposing to admit it
for "impeachment" purposes under Rule 607. It was
obvious that their intent was to place the substance of the
statement before the jury. Here, by contrast, Goodman’s
counsel made it clear that he was introducing the disputed
testimony for impeachment purposes under Rule 607.
Moreover, in his closing remarks to the jury Goodman’s
counsel made no mention of these statements as
substantive evidence, a step he likely would have taken had
he intended the statements to prove the truth of the matter
asserted. Moreover, the evidence does not show that
Goodman’s counsel acted in bad faith when he engaged in
these actions. See United States v. Webster, 734 F.2d 1191,
1192 (7th Cir. 1984) (finding that, because the prosecutor
did not act in bad faith, the District Court properly
admitted evidence for impeachment purposes that the
defendant insisted was being used as hearsay).8
_________________________________________________________________
7. In fact, as Sebetich notes, this evidentiary ruling was erroneous,
because the statement was admissible under the state of mind exception
to the hearsay rule. Fed. R. Evid. 803(3). Sebetich, 776 F.2d at 428.
8. Nor was it improper under the hearsay rule for Goodman’s counsel to
question Becker in the first place about hearing of his promotion from
Holman. What is significant about that testimony is that the
conversation took place, which suggests circumstantially that Becker’s
political ties helped secure his promotion. Becker’s testimony that the
15
In addition, unlike here, the attempt to admit the
putative impeachment evidence in Sebetich lacked
credibility on its face because Sala was otherwise
uninvolved in the case and his credibility therefore did not
matter. What mattered is whether he actually did rob the
banks that the defendants were accused of robbing. Indeed,
the defendants in Sebetich must have hoped that the jury
would find Sala credible so that his statements would
exonerate them. By contrast, our case turns heavily on
questions of motive, intent, and credibility--whether Becker
and Holman tend to tell inconsistent stories about political

-- 12 of 27 --

affiliation matters regardless whether those stories are true.
But even if the statements were hearsay offered by way of
impeachment as a subterfuge to put into evidence
otherwise inadmissible evidence, their admission was
harmless. "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 v. Philadelphia Elec.
Co., 34 F.3d 188, 191 (3d Cir. 1994) (quoting Lockhart v.
Westinghouse Credit Corp., 879 F.2d 43, 53, 59 (3d Cir.
1989)). Likewise, Federal Rule of Civil Procedure 61 reads
in relevant part: "No error in either the admission or the
exclusion of evidence . . . is ground for granting a new trial
or for setting aside a verdict or for vacating, modifying, or
otherwise disturbing a judgment or order, unless refusal to
take such actions appears to the court inconsistent with
substantial justice." In this case, we ask whether it is
"highly probable" that the jury would have reached the
same verdict absent the alleged hearsay evidence. We
conclude that it is.
Even if the District Court was wrong that the statements
are not hearsay, the overall evidence, which we describe
more fully in Part III(B), was sufficient to support the jury’s
_________________________________________________________________
conversation occurred cannot be hearsay because he experienced it
firsthand. The truth of the matter asserted in the conversation--that
Becker received the promotion--is not in issue. That fact is obviously
true. Thus, even if its admission was erroneous, it would be harmless
error.
16
verdict with or without these statements. The jury heard
extensive evidence that the Commission knew about and
considered Goodman’s political affiliation. Moreover,
Goodman’s counsel explicitly described the disputed
statements as impeachment evidence and did not mention
them as substantive evidence during his closing arguments.
Those steps made it significantly less likely that the jury
relied on them in reaching its decision.9 Finally, even if the
evidence was hearsay and thus inadmissible for substantive
purposes, it still shows that Holman and Becker
contradicted themselves on this issue and thus tends to
impeach their testimony.
In summary, we affirm the Magistrate Judge’s admission
of the statements as non-hearsay pursuant to Rule 801.
Because the statements were not admitted to prove the
truth of the matter asserted, they were not hearsay. In any
case, we do not rely on them to support the Magistrate
Judge’s denial of the Rule 50 motions and conclude that
the jury would have returned the same verdict regardless
whether they were admitted. Thus, even if the statements
were hearsay admitted sub rosa as substantive evidence,
we find them harmless.

-- 13 of 27 --

2. Carnabuci’s List
Second, the Commission contests the admission into
evidence of a document entitled "1993-1994 Application
List." Sam Carnabuci, a former member of the
Commission’s Personnel Committee, testified at trial as to
this document. It contains the names of both entry-level
and promotion applicants, the date of application, and the
"source" for each name. The source, the means by which
the applicant made known his application to the
Commission, was either a person’s name or "U.S. Mail."
Many of the names listed as sources were state senators,
state representatives, or their aides (including Holman).
_________________________________________________________________
9. This issue would not even surface, of course, if the trial judge had
given a limiting instruction to the jury to preclude any consideration by
the jurors of the arguably hearsay statements. While we encourage this
prophylactic measure in future cases, in this case we do not believe that
the statements, even if admitted in error, affected the trial outcome.
17
Some of the names contained notations, including the
notation "wants promotion." Carnabuci testified that this
notation meant that the listed person wanted a promotion
within the Commission.
The Commission objected to the list "because it is
overwhelmingly concerning hires rather than promotions,"
i.e., because it was highly prejudicial and only slightly
probative. The Commission argues that the list "is
irrelevant and unfairly prejudicial" because Carnabuci’s list
"contains three to four references to persons seeking
promotions out of hundreds of entries over nine pages."
Commission’s Br. at 40. Because hiring actions at the
Commission, unlike promotions, are allowed to involve
referrals from legislators and other politicians, the
Commission argues that the admission of the entire list
"created a strong and harmful (but unsubstantiated)
impression that political considerations were routinely used
in personnel matters" at the Commission. Id.
Although not explicitly, the Commission contends that
the Magistrate Judge abused his discretion when he
erroneously admitted the list. It presents this argument
under Federal Rule of Evidence 403, which provides:
"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, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." The
Commission claims that the unfair prejudicial effect of the
list substantially outweighs its probative value.
The list certainly contains relevant evidence, i.e., the
names of Commission employees seeking promotions and a
political "source" for their application. The Commission
concedes this much when it argues that the Magistrate

-- 14 of 27 --

Judge should have admitted the list with all information
redacted except those individuals noted as "wants
promotion." Commission Br. at 40-41. Additionally, in his
deposition of Carnabuci, Goodman’s attorney asked
Carnabuci about the fact that one of the names on the
list--Frank Syzdek--did not have "wants a promotion" next
to his name but was in fact someone who wanted and
received a promotion, according to the testimony of Senator
18
Rhoades. Carnabuci stated that, although it was his normal
practice to write "wants promotion" next to the name of
someone who wanted a promotion, he could not explain
why that was not done with Syzdek’s name. This testimony
cast doubt on the assertion that only those names with
"wants promotion" next to them were promotion candidates,
making plausible the inference that throughout the list
there were possible promotion candidates.
More importantly, even though the list was dated one or
two years before the material events in this case occurred,
it was relevant because it showed the existence of political
influence on promotions after the Rutan decision and the
adoption of Policy Letter 65. Furthermore, Carnabuci was
on the Personnel Committee at the time he had the list,
which shows specifically that there was political influence
on Personnel Committee decisions after Rutan.
Given the relevance and probative value of the list, the
Magistrate Judge did not abuse his discretion in admitting
it into evidence. We therefore affirm his evidentiary ruling,
and will later consider this substantive evidence in the Rule
50 analysis.
3. 1997 Legislative Budget and Finance Committee
Report
Finally, the Commission contests the admission of
excerpts from the 1997 Legislative Budget and Finance
Committee Report10 as unfairly prejudicial under Rule 403.
It contends that the Report "had no probative value
because it only discussed the [Legislative Budget and
Finance Committee’s] views that promotion practices at the
_________________________________________________________________
10. The Report was based on a factual investigation conducted by a
public agency, and was admitted under an exception to the hearsay rule
for public records and reports. Fed. R. Evid. 803(8)(C). Rule 803(8)(C)
permits evidence of "factual findings resulting from an investigation
made pursuant to authority granted by law, unless the sources of
information or other circumstances indicate lack of trustworthiness."
The Commission has given us no reason to doubt the Report’s
trustworthiness, so we conclude that it is reliable and qualifies for the
hearsay exception. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167
(1988).
19

-- 15 of 27 --

Commission were not optimum, and should be done in a
different way," and was not relevant to whether Goodman
was denied a promotion for political reasons. The
Commission also contends that admission of the Report
"created an unfairly prejudicial stigma that the
Commission’s promotions are subject to political influence."
On the other hand, Goodman argues that the Report
called into question whether the Commission was following
the strictures of Rutan and Policy Letter 65. He posits that
while the Report did not contain an explicit statement that
the Commission was violating its own internal policies as
well as the Supreme Court’s clear mandate in Rutan, it
contained evidence from which the jury could infer that the
Commission was violating those policies. We agree and hold
that the Magistrate Judge did not abuse his discretion in
admitting the Report into evidence.
Again, Federal Rule of Evidence 403 allows a court to
exclude evidence when the unfair prejudicial effect
substantially outweighs the evidence’s probative value.
However, "the . . . prejudice against which the law guards
[is] . . . unfair prejudice -- . . . prejudice of the sort which
cloud[s] impartial scrutiny and reasoned evaluation of the
facts, which inhibit[s] neutral application of principles of
law to the facts as found." Wagenmann v. Adams, 829 F.2d
196, 217 (1st Cir. 1987) (emphasis added). "[P]rejudice does
not simply mean damage to the opponent’s cause." 1
McCormick on Evidence S 185 at 645 (John W. Strong, et al.
eds., 5th ed. 1999). If it did, most relevant evidence would
be deemed "prejudicial." However, the fact that probative
evidence helps one side prove its case obviously is not
grounds for excluding it under Rule 403. Excluded evidence
must be unfairly prejudicial, not just prejudicial.
Here, there is no doubt that the Report prejudices the
Commission’s position. The Commission admits as much in
the inconsistent positions it advocates, arguing that the
Report contains no relevant evidence as to Goodman’s
claim that political considerations played a part in his not
receiving the promotion, and at the same time claiming that
the Report creates a "stigma" that politics play a role in
promotions at the Commission. The question is whether the
20
Report’s danger of unfair prejudice substantially outweighs
its probative value.
The Report’s section on promotions begins with a
description of the Commission’s promotion process, and
then discusses Rutan and Policy Letter 65, specifically
stating that "referrals based on party affiliation or support
are prohibited." That section of the Report then concludes
that the Commission "has not adopted . . . promotion
policies in line with merit-based principles of personnel
administration." Finally, after discussing the Human
Resources Department, the Personnel Committee, and

-- 16 of 27 --

merit-based promotions, the Report concludes: "The
[Comission] should adopt and implement a merit-based
. . . promotion system, abolish the Personnel Committee,
and delegate to the Human Resources Department full
authority and responsibility for all traditional functions
associated with modern personnel administration in a
public sector organization."
We believe that the Report strongly implies, although
never explicitly states, that the Commission uses political
patronage in its promotions. Evidence that the Commission
engages in political favoritism, even after Rutan and Policy
Letter 65, is clearly relevant. While this information might
surely prejudice the Commission, the prejudice is not
unfair. In any case, the Magistrate Judge did not abuse his
discretion in finding that the danger of unfair prejudice did
not substantially outweigh the report’s probative value. He
thus properly admitted it.
B. Knowledge of Political Affiliation
Having determined what evidence can be considered in
evaluating the propriety of the denial of the Rule 50
motions, we look to both aspects of the contested third
prong of the political patronage test: knowledge and
causation. See Robertson, 62 F.3d at 599. We first ask
whether the plaintiff knew of the plaintiff’s political
persuasion. Laskaris, 733 F.2d at 265; Stephens, 122 F.3d
at 177-79. Proof of knowledge can take the form of direct or
circumstantial evidence.
21
As to the knowledge subprong, two cases from this
Circuit frame our analysis. First, under Laskaris, even if an
employer knows that patronage is a problem in general,
plaintiffs alleging wrongful discharge for political reasons
pursuant to Branti and Elrod cannot sustain their burden of
proof without any evidence that the employer knew of their
political affiliation. Laskaris, 733 F.2d at 266. Here, the
Commission denied knowledge of Goodman’s political
affiliation and cites Laskaris in support of its claim that
Goodman did not prove knowledge. Second, under
Stephens, circumstantial evidence can rebut an employer’s
denials that it knew an employee’s political affiliation, and
therefore establish knowledge. Stephens, 122 F.3d at 177.
Despite their factual and legal distinctions, both cases can
be read together to support our conclusion that Goodman
presented sufficient evidence for a reasonable jury to find
that the Commission knew of his strong affiliation with the
Democratic Party.
In Laskaris, two former Pennsylvania Department of
Transportation ("PennDOT") employees sued alleging,
pursuant to 42 U.S.C. SS 1983 and 1985, that their
discharges were politically motivated. The two, Democrats,
had been discharged eight months after Governor
Thornburgh, a Republican, took office. Laskaris , 733 F.2d
at 262. Our Court was asked to analyze whether the

-- 17 of 27 --

evidence presented at trial would have survived a directed
verdict motion at the close of trial. Id. at 265 ("[W]e must
decide whether [plaintiffs] adduced sufficient evidence from
which a jury could reasonably find that their political
affiliation was a substantial or motivating factor in their
discharge.") The answer to that question turned on whether
the plaintiffs produced evidence "sufficient to show that the
defendants knew their political persuasions." Id. at 265. In
ruling that they did not satisfy that burden, we held that
the evidence they presented--(1) that the two were
Democrats; (2) that they were qualified for their positions;
(3) that one was replaced by a Republican; and (4) the
existence of a letter from Pennsylvania Representative
Peterson to the new PennDOT Secretary saying that it was
time to "clean out the political hacks" and that he thought
Governor Thornburgh would "clean house with the
Thornburgh broom"-- was "simply insufficient . . . to show
22
that any of the defendants knew that [plaintiffs] were
Democrats." Id. at 265.
In Stephens, five police officers sued the City of
Allentown, the Mayor, and the President of the Fraternal
Order of Police ("FOP"), pursuant to 42 U.S.C.SS 1983 and
1985, claiming that they were denied promotions because
of their political affiliation and because they openly opposed
the Mayor’s candidacy. Stephens, 122 F.3d at 172, 175.
The District Court granted the defendants summary
judgment on the SS 1983 and 1985 claims, holding that the
police officers did not present " ‘evidence sufficient to
establish that Mayor Heydt knew their political affiliations’
[or] . . . ‘any direct evidence that Mayor Heydt refused to
promote the plaintiffs in order to leave room for his own
political supporters.’ " Id. at 177.
On appeal, our Court held that "a jury may . . . infer
knowledge on the part of an employer when the employee
proffers evidence that the information was generally known
to co-workers." Id. (distinguishing Geraci v. Moody-Tottrup,
Int’l, Inc., 82 F.3d 578, 582 (3d Cir. 1996) (where it was
"sheer speculation" that co-workers violated plaintiff’s trust
and told management that she was pregnant)). There, the
Mayor denied knowing of plaintiffs’ political affiliations or
whether they supported or opposed his candidacy. Despite
that denial, the police officers offered evidence that the
contentious debate among the police ranks drew clear lines
of who supported the Mayor and who did not, and that it
was well known among their co-workers that they
supported the Mayor’s opponent. Id. at 177-78. In addition,
the officers offered circumstantial evidence of an
information "pipeline" between the Mayor and his police
supporters who knew of plaintiffs’ opposition to the Mayor,
including continuing communication between FOP
leadership concerning personnel policies. Id. at 178-79. In
fact, the Mayor himself testified at his deposition that he
knew who his supporters were within the police
department, but denied knowing his opponents despite

-- 18 of 27 --

testimony that he had confronted one of his opponents
within the department. Id. at 178. This circumstantial
evidence, we held, was enough for a jury to infer the
Mayor’s knowledge of plaintiffs’ political affiliations, and
23
could support a finding that the failure to promote was the
result of political discrimination. Id. at 179-80.
The Commission points out that, procedurally, Laskaris
involved judgment as a matter of law whereas Stephens
involved summary judgment. According to the Commission,
we should therefore find Laskaris more on point. However,
contrary to the Commission’s assertion, the quantum of
evidence offered to prove the Commission’s knowledge of
Goodman’s political affiliation, viewed "in the light most
favorable to [Goodman] and giving [Goodman] the
advantage of every fair and reasonable inference," is well
beyond that in Laskaris.
The Personnel Committee members who considered
Goodman’s promotion were Shelton, Durbin, Everly,
Genevie, and Kennedy. The first four were called by
Goodman to testify at trial, and only Genevie suggested that
he knew Goodman’s political affiliation ("I assumed he was
a Democrat because his uncle was . . . a Democrat."). All
others denied knowledge of his status as an active
Democrat.
In an effort to rebut these denials, Goodman offered
extensive circumstantial evidence that supported at least
an inferential knowledge of his political affiliation. First,
Goodman’s uncle, Jim Goodman, was extremely active in
the Democratic Party, serving as a State Representative
from 1964-1980, and in one contentious election defeated
Senator Rhoades. Jim Goodman was also a Turnpike
Commissioner appointed by a Democratic governor and
served on the Liquor Control Board during Governor
Casey’s term.
Second, the entire Goodman family participated in
Democratic politics. They supported Democratic candidate
Mark Singel against Republican candidate Tom Ridge in the
1994 gubernatorial election. Moreover, Goodman’s brother,
Neil, works for a Democratic state representative. Goodman
was active in his uncle’s and brother’s campaigns as well as
the Singel campaign. Champ Holman even testified that he
saw Goodman "working the polls." Likewise, Goodman’s
father, Cornelius Goodman, worked for the Pennsylvania
Revenue Department at the same time Personnel
24
Committee member Durbin did, and each knew the other’s
political affiliation. Also, Cornelius Goodman testified that
he made known generally that his family supported
Democratic candidates statewide.

-- 19 of 27 --

Third, each of the Personnel Committee members who
testified--Shelton, Durbin, Everly, and Genevie--had a
connection to politics, casting doubt on their claims that
they were unfamiliar with Goodman’s extensive political
ties. Shelton was a ward leader under Congressman Brady,
who is the Chairman of the Democratic Party for the City of
Philadelphia. Durbin worked for the State Senate
Appropriations Committee and reported to Senator
Tilghman, a Republican, in the 1970s. Everly was a staff
member for Republican State Senator Jubelirer from 1981-
1991. Genevie was a PennDOT administrator from 1971-
1979 and worked closely with state legislators on
construction projects. Moreover, each of the Personnel
Committee members "represented" a Commissioner on the
Committee. The five Commissioners were patronage
appointees of the Governor, and, as already noted, the
practice was to have two Democrats, two Republicans, and
the Secretary of PennDOT (who usually belonged to the
party of the Governor). This political "majority" typically
carried through to the Personnel Committee. Commissioner
Gleason, in particular, was a Republican County Chairman.
He knew of Jim Goodman’s political reputation and that the
Goodmans were very active in Pennsylvania Democratic
politics. In addition, as already mentioned, Genevie knew
Jim Goodman and "assumed Goodman was a Democrat
because his uncle was . . . a Democrat."
Fourth, Senator Rhoades and his aide, Champ Holman,
obviously knew the party affiliation of his opponent, Jim
Goodman, and that Appellant Goodman worked on his
uncle’s and other Democratic campaigns in the home town
they shared. Rhoades and Holman had frequent
communication with the Executive Director of the
Commission, Carnabuci and later Durbin, with respect to
"recommending" their constituents to entry-level positions
and promotions within the Commission. Likewise, Holman
and Everly knew each other and had worked together in the
State Senate. The jury may well have inferred that Everly
knew Goodman’s political affiliation through Holman.
25
We find all of this to be more than sufficient
circumstantial evidence to support the Commission’s
knowledge of Goodman’s political affiliation. When
analyzing a Rule 50 motion, we view the evidence in the
light most favorable to the nonmovant and give that
nonmovant the advantage of every fair and reasonable
inference. Lightning Lube, 4 F.3d at 1166. All of this
evidence could support a jury inference that the Personnel
Committee members, savvy to and products of
Pennsylvania politics themselves, knew of Goodman’s
Democratic political affiliation despite their denials.
C. Substantial Factor
After determining that Goodman presented sufficient
evidence of the Commission’s knowledge of his political

-- 20 of 27 --

affiliation to survive the Rule 50 motions, we determine if
he presented enough evidence that political affiliation was
a substantial or motivating factor in the Commission’s
decision not to promote him. See Robertson, 62 F.3d at 599.
This has been labeled the causation requirement:"[I]f
[Goodman’s] political affiliation was a substantial or
motivating factor in [the] decision not to promote [him], [he]
ha[s] established a basis for finding the requisite
causation." Stephens, 122 F.3d at 180. Again, the
Commission avers that Goodman did not meet his burden
and the Magistrate Judge erred in denying the Rule 50
motions.
"Proof that the defendant’s explanation is unworthy of
credence is simply one form of circumstantial evidence that
is probative of intentional discrimination, and it may be
quite persuasive." Reeves, 530 U.S. at 147.
This is not to say that such a showing by the plaintiff
will always be adequate to sustain a jury’s finding of
liability. . . . For instance, an employer would be
entitled to judgment as a matter of law if the record
conclusively revealed some other, nondiscriminatory
reason for the employer’s decision, or if the plaintiff
created only a weak issue of fact as to whether the
employer’s reason was untrue and there was abundant
. . . evidence that no discrimination had occurred.
26
Id. at 148. Goodman must show that he put forth evidence
that could satisfy his burden of proof. Discrediting the
Commission’s reason for not promoting him, standing
alone, does not necessarily mean he has sustained that
burden. We look to the entire record, viewing all the
evidence in the light most favorable to Goodman, to make
this determination. See Reeves, 530 U.S. at 150.
At trial, the Personnel Committee members each
vehemently denied that politics had any role in their
decision to promote Becker over Goodman. In fact, in
response to the Rutan decision, the Commission adopted
Policy 65 to govern promotions, which specifically provided:
The Commission provides equal opportunity to all
persons regardless of . . . party affiliation or support. In
regard to this final category [party affiliation or
support], [in] Rutan v. Republican Party of Illinois, the
United States Supreme Court held that it is a violation
of the First Amendment to make employment-related
decisions regarding positions with public employers
based on the party affiliation or support of an applicant
or employee. Accordingly, recommending someone for
promotion, or making any other employment decision,
based on party affiliation or support is prohibited.
The Personnel Committee members and the Commission
claim to have followed this Policy in their decisions in this
case.

-- 21 of 27 --

Although the Personnel Committee was initially divided in
its support for the two candidates, after lengthy discussions
and a presentation by the Fare Collections Department
head indicating that both were qualified, the Committee
chose Becker in a consensus decision. Everly cited her
belief that Becker had better interpersonal skills based on
her experience with the two. Although she had previously
commended Goodman for his computer skills, she believed
that interpersonal skills were a better test for the position.
Durbin had worked with Becker, and testified that he
believed Becker had what the position needed. Sadler, the
Fare Collections Department head, testified that he thought
each candidate was qualified, but that Goodman had
scored higher on the evaluation; however, the Personnel
27
Committee members denied he said this to them. The
Personnel Committee members denied having knowledge of
Becker’s or Goodman’s political affiliation, denied ever
seeing the letter from Senator Rhoades, denied that any
"pipeline" existed from the Commissioners to the Personnel
Committee, and denied that politics played a role in the
promotion. Further, Senator Rhoades, Champ Holman, and
Becker each denied discussing the promotion beyond
Becker’s request for a general reference letter.
Despite these denials, Goodman introduced sufficient
circumstantial evidence to permit a reasonable jury to find
that political affiliation was a substantial factor in the
decision not to promote him. First, the Commission had a
history of improper promotion practices using sponsorship
as a factor, which remained uncorrected as of 1996, as
documented by the 1997 Legislative Budget and Finance
Committee Report. This document strongly implied that
political patronage continued to drive promotion decisions
at the Commission. Moreover, Carnabuci’s list showed that
political patronage was still assisting Commission
employees in securing promotions, even after Rutan and
Policy Letter 65. That list included names with the notation
"wants promotion" next to them and with "Champ,"
meaning Champ Holman, listed as the source.
Second, Senator Rhoades, at the request of Becker, wrote
a reference letter in support of Becker, addressed to then-
Commission Executive Director Carnabuci. Senator
Rhoades knew Becker to be an active Republican. He also
met with Commissioner Gleason after the letter was written
but before the decision to promote Becker was made
(though, as noted supra n.3, there was testimony that
Senator Rhoades, Gleason and Holman met to discuss
Gleason’s insurance business).
Third, Gleason’s representative on the Personnel
Committee was Everly, and he testified that when he
received letters of recommendation concerning promotions,
he would pass them on to Everly, asking her to make sure
they received consideration. He testified that her response

-- 22 of 27 --

to these requests was "[a]bsolutely, they would." Everly also
testified evasively when asked why a previous Democratic
28
member of the personnel committee, Mike Palmero, had
been demoted after Tom Ridge became Governor.
Third, Personnel Committee member Sheldon testified
that support for the two candidates, while no formal vote
was taken, came out along party lines. The two Democrats
voted for Goodman while the three Republicans voted for
Becker.
Fourth, Goodman had nothing but commendations in his
personnel file, several of those written by Everly herself.
Moreover, Goodman was Acting District Manager for
fourteen months. In that capacity he did not receive any
negative reviews.
Fifth, Goodman’s evaluation scores were the highest of
the three final candidates. Further, Sadler, the
representative of the interview committee, recommended
Goodman to the Personnel Committee for the promotion.11
Our review of the Magistrate Judge’s decision is tempered
by the contours of Rule 50, and allows us to reverse a
denial of a Rule 50 motion only if "viewing the evidence in
the light most favorable to [Goodman] and giving [it] the
advantage of every fair and reasonable inference, there is
insufficient evidence from which a jury could reasonably
find liability." Wittekamp v. Gulf & Western, Inc., 991 F.2d
1137, 1141 (3d Cir. 1993); accord Lightning Lube , 4 F.3d at
1166. We conclude that Goodman successfully rebutted the
Commission’s claim that political affiliation played no part
in the decision not to promote him. Further, Goodman
produced sufficient circumstantial proof for a jury
reasonably to find liability. Hence we affirm the Magistrate
Judge’s denial of the Commission’s Rule 50 motions.
_________________________________________________________________
11. We note that in this evaluation we do not consider the two
statements previously discussed in section III.A.1 alleged to be hearsay
testimony. We properly exclude these statements because they were not
offered as substantive evidence and therefore cannot support a finding
that political affiliation was a substantial or motivating factor in the
decision not to promote Goodman.
29
IV. Rule 59 Motion for a New Trial
As part of its Rule 50 motion, the Commission moved, in
the alternative, for a new trial pursuant to Federal Rule of
Civil Procedure 59. The Magistrate Judge denied that
motion and the Commission now appeals. Because we
affirm the denial of the Rule 50 motion, we proceed to
decide whether the Magistrate Judge properly denied the

-- 23 of 27 --

Rule 59 motion. We hold that he did.
Federal Rule of Civil Procedure 59 states, in pertinent
part:
Rule 59. New Trials; Amendment of Judgments
(a) Grounds. A new trial may be granted to all or any
of the parties and on all or part of the issues (1) in an
action in which there has been a trial by jury, for any
of the reasons for which new trials have heretofore
been granted in actions at law in the courts of the
United States; and (2) in an action tried without a jury,
for any of the reasons for which rehearings have
heretofore been granted in suits in equity in the courts
of the United States. On a motion for a new trial in an
action tried without a jury, the court may open the
judgment if one has been entered, take additional
testimony, amend findings of fact and conclusions of
law or make new findings and conclusions, and direct
the entry of a new judgment.
A motion for a new trial should be granted where
substantial errors occurred in admission or rejection of
evidence. Becker v. Arco Chem. Co., 207 F.3d 176, 180 (3d
Cir. 2000). Here, the Commission alleges that it is entitled
to a new trial because the Magistrate Judge made three
erroneous evidentiary rulings that affected its substantial
rights: (1) allowing the alleged hearsay testimony of
Goodman and his father, Cornelius Goodman, into
evidence; (2) admitting Carnabuci’s "1993-1994 Application
List" into evidence; and (3) permitting in evidence excerpts
from the 1997 Legislative Budget and Finance Committee
Report.
However, we have already found that, in the context in
which each contested item was admitted, the Magistrate
30
Judge did not err. Additionally, even if the Magistrate
Judges had erred in admitting the supposed hearsay
evidence, that error is harmless because sufficient other
evidence would have resulted in the same outcome at trial.
See supra S III.A.1. In this context and given no other
evidence to support its motion for a new trial, we disagree
with the Commission and affirm the Magistrate Judge’s
denial of the Rule 59 motion for a new trial.
V. Counsel Fees
Finally, we address the initial appeal in this case--
Goodman’s contention that the Magistrate Judge abused
his discretion in setting attorney’s fees. Because Goodman
prevailed in his S 1983 action, the Magistrate Judge shifted
Goodman’s attorney’s fees and costs to the Commission
pursuant to 42 U.S.C. S 1988,12 awarding $87,450 in fees
and $9,213.25 in costs. Goodman now argues that the
Magistrate Judge abused his discretion in three respects:

-- 24 of 27 --

(1) by choosing an hourly rate that was too low; (2) by
applying a contingency multiplier to the fee; and (3) by not
increasing the fee for the "superior work" of Goodman’s
attorney. We review the reasonableness of a fee award for
abuse of discretion. See Gen. Motors Corp. Pick-Up Truck
Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 782 (3d Cir.
1995).
_________________________________________________________________
12. 42 U.S.C. S 1988 provides, in pertinent part:
(b) Attorney’s fees
In any action or proceeding to enforce a provision of sections 1981,
1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public
Law 92-318 [20 U.S.C.A. S 1681 et seq.], the Religious Freedom
Restoration Act of 1993 [42 U.S.C.A. S 2000bb et seq.], the Religious
Land Use and Institutionalized Persons Act of 2000[42 U.S.C.A.
S 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A.
S 2000d et seq.], or section 13981 of this title, the court, in its
discretion, may allow the prevailing party, other than the United
States, a reasonable attorney’s fee as part of the costs, except that
in any action brought against a judicial officer for an act or omission
taken in such officer’s judicial capacity such officer shall not be held
liable for any costs, including attorney’s fees, unless such action
was clearly in excess of such officer’s jurisdiction.
31
First, Goodman argues that the Magistrate Judge abused
his discretion in setting the reasonable hourly fee at $200.
However, this hourly rate was among four that Goodman’s
counsel recommended as reasonable.13 Further, the
Commission does not object to the $200 hourly rate,
instead advocating for the reasonableness of that rate. In
fact, several cases suggest that $200 is within the range of
reasonableness for fee awards in the Eastern District of
Pennsylvania. See Becker v. Arco Chem. Co., 15 F. Supp. 2d
621, 631 (E.D. Pa. 1998), dismissed as moot by 207 F.3d
176 (3d Cir. 2000) ("[A]ttorneys representing plaintiffs in
civil rights cases are awarded an hourly rate of between
$150 to $250, depending on their level of experience.");
Churchill v. Star Enters., No. 97-3527, 1998 WL 254080, at
*3-4 (E.D. Pa. Apr. 17, 1998) (partner awarded $250 hourly
rate and second-year associate granted $100 hourly rate in
a Family and Medical Leave Act action); Valentin v. Crozer-
Chester Medical Center, No. 95-3722, 1998 WL 32665, at *3
(E.D. Pa. Jan. 26, 1998) (lawyer with "seventeen years
(experience) in the area[s] of disability, worker’s
compensation and employment discrimination" was
awarded $225 an hour); Burks v. City of Philadelphia, 974
F. Supp. 475, 484 n.7 (E.D. Pa. 1997) (self-described
"highly experienced and skillful civil rights lawyer" was
awarded $205 as an hourly rate); Smith v. Int’l Total Servs.,
Inc., No. 95-2038, 1997 WL 667872, at *2-3 (E.D. Pa. Oct.
9, 1997) (lawyer with seven years experience in"complex
litigation," but with relatively little experience in
employment law, awarded $150 to $160 per hour); Herkalo
v. National Liberty Corp., No. 94-CV-7660, 1997 WL

-- 25 of 27 --

539754, at *3 (E.D. Pa. Aug. 7, 1997) (approving hourly
rates of $175 to $195 for experienced partners, and $85 to
$125 for associates, for sex discrimination suit); Tobin v.
Haverford School, 936 F. Supp. 284, 292 (E.D. Pa. 1996)
(lawyer with twenty years at the bar, but with relatively
little experience in employment cases, was found to
command $165 in the marketplace). Because $200 was
among the rates suggested by Goodman’s counsel, because
the Commission does not contest this as a reasonable rate,
_________________________________________________________________
13. The rates Goodman’s counsel suggested as reasonable were $200,
$225, $250, and $275. See Blue Brief at 17.
32
and because $200 falls well within the range of
reasonableness for similar cases in the Eastern District of
Pennsylvania, we cannot say that the award in this case
was unreasonable and therefore cannot say that the
Magistrate Judge abused his discretion in setting the
reasonable hourly rate and awarding Goodman $87,450.00.
Second, Goodman’s argument that the Magistrate Judge
erred in failing to apply a contingency multiplier fails. In
City of Burlington v. Dague, 505 U.S. 557 (1992), the
Supreme Court held that contingency multipliers are not
permitted for fees awarded pursuant to fee shifting
statutes. Id. at 566-67. In holding that"enhancement for
contingency is not permitted under the fee shifting statutes
at issue," in that case 42 U.S.C. S 6972(e) and 33 U.S.C.
S 1365(d), the Court analogized the fee award to those
under 42 U.S.C. S 1988 (the provision under which the fee
was awarded in Goodman’s case), and stated: "[O]ur case
law construing what is a ‘reasonable’ fee applies uniformly
to all [fee shifting statutes]." Id. at 562, 567. Thus, we
affirm the Magistrate Judge’s denial of the contingency
multiplier requested by Goodman.
Finally, Goodman asks us to hold that the Magistrate
Judge abused his discretion by not finding that his
counsel’s superior quality of representation made this one
of those "very rare circumstances where the attorney’s work
is so superior and outstanding that it far exceeds the
expectations of clients and normal levels of competence,"
and thus justifies an increase in the awarded fee. Rode v.
Dellarciprete, 892 F.2d 1177, 1184 (3d Cir. 1990). As the
Magistrate Judge concluded, we do not find this to be that
"rare case," and therefore affirm.
VI. Conclusion
We affirm the Magistrate Judge’s denial of the Rule 50
motions because we find that he properly decided that
there was sufficient evidence from which a jury reasonably
could find liability. We similarly affirm his denial of the
Commission’s Rule 59 motion for a new trial. Finally, we
detect no abuse of discretion in the award of attorney’s fees
to Goodman’s counsel.

-- 26 of 27 --

33
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
34

-- 27 of 27 --