## Facts

- William P. Becker worked for ARCO Chemical Company for many years and was terminated in March 1994 at age 51 from a physical testing laboratory position in Pennsylvania.
- ARCO asserted Becker was discharged for performance-related reasons.
- Becker alleged the stated reasons were fabricated and that age motivated the termination, bringing claims under the ADEA and the Pennsylvania Human Relations Act.
- To show pretext, Becker introduced testimony about ARCO’s prior termination of another employee, Linwood Seaver, contending ARCO had similarly manufactured performance-based grounds in that earlier termination.
- Over ARCO’s repeated objections, the district court admitted Becker’s Seaver-related testimony, relying on Federal Rules of Evidence 404(b) and/or 406 and issuing a limiting instruction.
- After an 11-day trial, the jury found for Becker and awarded approximately $736,095 in back pay, front pay, and compensatory damages.
- The district court denied ARCO’s Rule 59(a) motion for a new trial and entered judgment; it also made post-trial rulings including attorneys’ fees determinations.
- ARCO appealed; Becker cross-appealed certain post-trial rulings.

## Issues

1. Whether the district court abused its discretion by admitting testimony about ARCO’s earlier termination of Seaver under Rules 404(b) and/or 406, and whether the admission warranted a new trial under Rule 59(a).
2. Whether any error in admitting the Seaver evidence was harmless.
3. Whether Becker’s cross-appeal regarding fees and post-trial adjustments remained justiciable if the judgment was vacated.

## Decision

- The Third Circuit held the district court abused its discretion by admitting the Seaver evidence under Rule 404(b) and by treating it as admissible “habit” evidence under Rule 406.
- The court concluded the evidence’s unfair prejudice substantially outweighed any probative value under Rule 403 and that the error was not harmless.
- The court vacated the judgment and remanded for a new trial on Becker’s age-discrimination claims.
- Becker’s cross-appeal was dismissed as moot in light of the vacatur and remand.

## Legal Principles

- Rule 404(b) permits “other acts” evidence only for a proper, non-propensity purpose (e.g., motive, intent, plan, absence of mistake); it may not be used to argue that because a party acted wrongfully before, it likely acted wrongfully again.
- To use other-acts evidence to show plan or modus operandi, the proponent must show sufficient similarity and distinctiveness between the acts; general allegations of similar wrongdoing are insufficient.
- Rule 406 habit evidence requires a regular, semi-automatic response to a repeated situation; a single prior incident ordinarily cannot establish habit or routine practice.
- Even relevant evidence may be excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice, including the risk of improper propensity reasoning.
- An evidentiary error requires a new trial when it affects a party’s substantial rights; repeated, central use of improper evidence may render the error non-harmless.

## Conclusion

The Third Circuit vacated a plaintiff’s age-discrimination verdict and ordered a new trial because testimony about a prior termination of another employee functioned as improper propensity evidence, did not qualify as habit, and created unfair prejudice that was not harmless.


Becker v. Arco Chem. Co., 207 F.3d 176 (3d Cir. 2000)