Sur Petition for Rehearing In Banc October 4, 1994.
OPINION OF THE COURT
ROTH, Circuit Judge:
Harold Glass appeals from a jury verdict in favor of the Philadelphia Electric Company ("PECO") in his action claiming race discrimination, age discrimination, and retaliation in employment. Glass alleges that the district court abused its discretion when it repeatedly made evidentiary rulings against him, excluding his evidence concerning the allegedly racially hostile work environment at PECO's Eddystone Plant (the "Eddystone evidence") where he worked from 1984 to 1986. Glass claims that he was substantially prejudiced by the district court's rulings for two reasons. First, while the district court excluded Glass's Eddystone evidence, it admitted PECO's evidence of Glass's performance at Eddystone. Consequently, Glass was prohibited from telling his side of the story. Second, Glass claims that the excluded Eddystone evidence is relevant to the issue of pretext.
We conclude that the district court erred in excluding Glass's Eddystone evidence. We find that the error was not harmless; hence, we will reverse the district court's judgment and remand for a new trial.
Glass worked at PECO for 23 years before he retired in 1990.
While working full-time, Glass attended school to improve his career opportunities. In May 1982, he received an Associate Degree in Electrical Electronics Engineering Technology. In December 1987, he received an Associate Degree in Engineering. In May 1988, he received a Bachelor of Science Degree in Industrial and Management Engineering. In December 1988, he received a Bachelor of Science Degree in Engineering. PECO supported Glass's initiatives to obtain higher education by covering all of his tuition expenses through their tuition reimbursement program.
In addition to his full-time work and continuing education, Glass was an activist on behalf of PECO employees. His involvement with issues of employee and labor relations began in 1968, when, along with other minority employees, he helped organize the Black Grievance Committee ("BGC") to respond to problems of racial fairness at PECO, including inadequate representation of minorities by PECO's uncertified labor organization, the Independent Group Association ("IGA").
For 20 years, from 1968 to 1988, Glass served as an officer of the BGC. He represented employees in handling routine individual grievances before management and negotiated with management about employee concerns.
In addition, he served as the lead in organizing witnesses in three actions against PECO concerning racially discriminatory employment practices. In the early 1970's he was a chief organizer in a pattern and practice race discrimination action filed in federal court against PECO. (Harold Glass, et. al. v. PECO). He was also an organizer and primary contact with counsel in another federal pattern and practice race discrimination suit, Black Grievance Committee, et. al. v. PECO, which resulted in a settlement that removed barriers to black employees' opportunities, increased employee productivity, improved the communications between PECO and its employees, and affected supervisory behavior as a result of an affirmative action training module. In 1982, Glass filed an unfair labor practice charge with the NLRB that resulted in a complaint and settlement requiring PECO to recognize the BGC in its employee handbook as an alternative source for employees seeking help in matters of discrimination or affirmative action. (NLRB v. PECO). The settlement also resulted in a creation of the BGC/IGA Liaison Representative, the position which Glass held during the years 1986 through 1989.
Throughout his 23 years of employment with PECO, Glass received only one performance evaluation which was less than fully satisfactory. This occurred while he was serving as a junior technical assistant ("JTA") at Eddystone. During that time, Glass alleges that he was the target of racial harassment by his co-workers. He further suggests that the harassment had a negative effect upon his work performance.
In 1982, Glass unsuccessfully applied for the position of Affirmative Action Officer in Human Resources. In early 1989, having obtained two baccalaureate engineering degrees, he sought a promotion from the position of JTA to that of Engineer; however, he never heard from the three departments to which he applied. When he inquired later about the status of these applications, he was told that "some of the people were scared to take a chance on [him]." App. at 121. In particular, management pointed to his poor performance evaluation while at the Eddystone Station. App. at 114.
In late 1989, Glass applied for posted vacancies of Labor Relations Representative (three vacancies) and Affirmative Action Staff Assistant (one vacancy). Glass was rejected in both cases, in favor of younger white applicants because of management's claim that he was not a "team player," App. at 155, a reference to management's perceptions
Glass left the position of Liaison Representative in early 1989 and returned to technical work as a JTA. He retired at age 54 from this position. When he was not selected to fill the aforementioned job openings at PECO in 1989 and 1990, Glass brought this action against PECO on October 3, 1990, claiming that he was discriminated against on e basis of his race and age and in retaliation for his activities as a minority advocate.
The District Court for the Eastern District of Pennsylvania had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1334 over this claim which alleges violations of the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq.; and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. The district court exercised supplemental jurisdiction over claims brought under the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq. We have jurisdiction over Glass's appeal pursuant to 28 U.S.C. § 1291.
We review pre-trial and trial court rulings concerning the admission of evidence for an abuse of discretion. In re Japanese Electronic Products, 723 F.2d 238, 260 (3d Cir.1983), rev'd on other grounds, Matsushita Electronic Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Similarly, we review the district court's decision to include or exclude evidence arising under the Federal Rules of Evidence 401, 402 and 403 for an abuse of discretion. Pfeiffer v. Marion Center Area School District, 917 F.2d 779, 781-82 (3d Cir.1990). We have explained that "error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected...." Linkstrom v. Golden T. Farms, 883 F.2d 269, 269 (3d Cir.1989); Fed.R.Evid. 103(a). 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." Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 53, 59 (3d Cir.1989).
We note at the outset that the trial court admitted PECO's evidence of Glass's conduct at Eddystone and excluded Glass's Eddystone evidence without articulating a balance between the probative value and the prejudicial effect of the evidence as required by Fed.R.Evid. 403
PECO contends that the trial court conducted a Rule 403 balancing when it granted PECO's pre-trial motion in limine. As PECO had requested, the district court ordered that no evidence would be admitted at trial in two categories: 1) pre-May 1989 evidence about alleged discriminatory treatment of Glass by PECO that predates the statutory period covered by Glass's current claims,
If we consider PECO's motion in limine as the equivalent of a specific Rule 403 objection to the Eddystone evidence, then "we must confront the trial court's failure to articulate its balae between the probative value and the prejudicial effect of the evidence in one of two ways: either we decide the trial court implicitly performed the required balance; or, if we decide the trial court did not, we undertake to perform the balance ourselves." United States v. Eufrasio, 935 F.2d 553, 572 (3d Cir.1991) (citation omitted). Independent of either method, "the trial court's failure to expressly articulate a Rule 403 balance when faced with a Rule 403 objection, would not be reversible error per se." Id.
If, on the other hand, we decide that PECO's motion in limine did not constitute a specific Rule 403 objection to the admission of the Eddystone evidence, then the trial court was not required to strike a Rule 403 balance on the record sua sponte.
We determine, however, that we do not in fact need to base our decision here on a resolution of whether or not PECO's pre-trial motion in limine constituted a Rule 403 objection.
On the second day of trial at a sidebar conference, the court ruled that evidence of the allegedly hostile racial environment at Eddystone in the mid-1980's was inadmissible. Glass's counsel made the following offer of proof:
App. at 66. Glass contends that, if the Eddystone evidence had been admitted, it would have shown that the more senior technical employees posted hostile and demeaning images about him on the plant premises and that he was the subject of racially derogatory remarks. It would also have shown that the training and performance of junior technical assistants depended directly on the goodwill
The trial court repeatedly sustained PECO's objections to Glass's attempts to introduce evidence concerning these events. Glass testified that his activities on behalf of employees and as BGC/IGA Representative qualified him for the position of Labor Relations Representative. The requirements for the job of Labor Relations Representative were: a "bachelor's degree in human resource management or labor relations, or significant labor relations work experience or equivalent combination of work experience and successful completion of college courses covering such areas as labor relations, general accounting, managerial accounting, and/or compensation and benefits." Glass had both an appropriate college degree (B.S., Industrial and Management Engineering) and the revant coursework. He also had equivalent work experience developing and handling employee grievances, negotiating with management and settling major lawsuits related to employee relations and labor law. His academic background and his work experience qualified him for the job and afforded him an interview with James Lange, Director of Labor Relations.
Even though Glass had met the education requirements and had the experiential background in labor relations, a qualification characterized as "preferred" on the job posting, he was rejected in favor of younger, white candidates, none of whom had comparable employee or labor relations experience. Lange testified that one reason he rejected Glass was his poor performance at Eddystone. Glass attempted to pursue the extent of Lange's knowledge of the Eddystone events on cross-examination:
App. at 357-58.
PECO also claimed that Glass was rejected because of poor interpersonal skills, the focus of the testimony of Malcolm Riley, Glass's boss at Eddystone. Riley testified about Glass's role as BGC representative while at Eddystone during the same period. Glass was not permitted to cross-examine Malcolm Riley about the relationship between the hostile work environment and Riley's judgment that Glass's behavior during this time evidenced poor interpersonal skills:
App. at 404.
Glass was similarly denied the opportunity to introduce evidence of the circumstances at Eddystone in the context of his claim that PECO's refusal to hire him as an engineer in 1989-90 was discriminatory. Alvin Weigand, head of the engineering division in which Glass worked, testified that he told Glass that a promotion to engineer would be conditioned
At trial, Weigand testified that he imposed the probationary period because of Glass's poor performance while at Eddystone. Glass attempted to pursue the extent of Weigand's knowledge of the Eddystone events on cross-examination:
App. at 426. With PECO's objection sustained, Glass was repeatedly unable to introduce any evidence concerning the racially hostile environment at Eddystone station, management's failure to take corrective action when it learned of the harassment, or the connection between these incidents and his negative performance evaluation.
We find that the district court abused its discretion for the following reasons: First, in the federal courts, the scope of permissible cross-examination is set forth in Fed.R.Evid. 611(b): "Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness." See also United States v. Sullivan, 803 F.2d 87, 90 (3d Cir.1986). The district court erred by allowing PECO's witnesses, Lange, Riley and Weigand, to testify about their knowledge of the events at Eddystone but then not allowing Glass to cross-examine those witnesses as to the basis or extent of their knowledge.
Second, we find that the Eddystone evidence is independently relevant to a key aspect of the case: whether one of the principal non-discriminatory reasons asserted by PECO for its actions was in fact a pretext for age or race discrimination. In St. Mary's Honor Center v. Hicks, the Supreme Court confirmed that, under the well-established burden-shifting formula of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), in a Title VII case alleging employment discrimination:
Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093; see St. Mary's Honor Center, ___ U.S. at ___, 113 S.Ct. at 2749 (reaffirming "our repeated admonition that the Title VII plaintiff at all times bears the `ultimate burden of persuasion'" of intentional discrimination). This formula applies equally to claims of age discrimination in employment under ADEA. See Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.1987) (in banc). Since Glass had introduced sufficient evidence to establish a prima facie case and PECO had asserted several nondiscriminatory reasons
Our decision is buttressed by the judicial inhospitability to blanket evidentiary exclusions in discrimination cases. The Eighth Circuit explained in reversing simil evidentiary exclusions in an employment discrimination suit:
Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir.1988).
Citing this passage from Estes, the Eighth Circuit in Hawkins v. Hennepin Technical Center, 900 F.2d 153, 155 (8th Cir.1990), reversed summary judgment for the defendant in a disparate treatment sex discrimination case holding that the district court abused its discretion in barring the plaintiff from introducing evidence of prior sexual harassment of herself and other employees of the defendant. The magistrate judge had determined that any evidence, beyond the fact that the plaintiff had filed certain harassment complaints against the defendant in the past, was not relevant to the plaintiff's claim that she suffered disadvantageous employment decisions as a result of her gender and in retaliation for complaints of sexual harassment made by her while employed by the defendant.
The court of appeals disagreed, finding that evidence of the nature of the harassment complaints and the defendant's disposition of those complaints was highly relevant to the plaintiff's case because "an atmosphere of condoned sexual harassment in a workplace increases the likelihood of retaliation for complaints in individual cases." 900 F.2d at 156. See also Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421 (7th Cir.1986) (affirming district court's decision to admit plaintiff's evidence of harassment against other black workers in case alleging racially discriminatory discharge because "evidence was relevant both in showing that Allis Chalmers condoned racial harassment by its workers and in rebutting Allis Chalmers' defense that it had fired Hunter for cause.").
For the foregoing reasons, we conclude that the district court abused its discretion by repeatedly barring Glass at trial from introducing evidence about the hostile work environment at Eddystone and from eliciting testimony of how it related to Glass's performance, which, according to PECO, had operated to defeat his candidacy for the positions of Labor Relations Representative and Engineer. We will, therefore, reverse the district court's judgment and remand this case for a new trial.
Harold Glass, who was employed for many years by the Philadelphia Electric Company ("PECO"), sued his former employer for allegedly discriminating against him based on race and age and for allegedly retaliating against him because of his pursuit of other discrimination claims.
On appeal, the plaintiff contended, among other things, that the district court abused its discretion under Fed.R.Evid. 403 by excluding evidence that he had been subjected to a racially hostile environment when he worked at PECO's Eddystone Generating ation in the mid-1980's. The plaintiff argued that this evidence was relevant to show that PECO's asserted reasons for denying the promotions were pretextual and that this evidence should not have been excluded under Rule 403. See Appellant's Br. at 17-26. The majority agrees with the plaintiff's argument and therefore reverses the judgment of the district court and remands for a new trial. In doing so, the majority makes little effort to explain why the excluded evidence had probative value or to address the factors weighing against exclusion. In my view, when both sides of the Rule 403 balance are carefully considered and the proper standard of appellate review is applied, the district court's rulings under Fed.R.Evid. 403 must be sustained. Moreover, even if those rulings were incorrect, they were harmless with respect to several of the positions at issue. For these reasons, I dissent.
Before addressing the merits of the district court's evidentiary rulings, I will briefly supplement the procedural history set out in the majority opinion. Prior to trial, PECO filed a motion in limine seeking to preclude the plaintiff from introducing evidence of discriminatory acts that allegedly occurred before "the statutory period covered by the charge [Glass] filed with the Pennsylvania Human Relations Commission and the Equal Employment Opportunity Commission...." Defendant's Motion In Limine at 1. PECO argued that this evidence was not relevant under Fed.R.Evid. 401 and that it should in any event be excluded under Fed.R.Evid. 403. PECO stated:
Memorandum of Law in Support of Defendant's Motion In Limine at 4-5. See also id. at 15-16.
The plaintiff then filed a lengthy memorandum in opposition to this motion. In this memorandum, the plaintiff stated that he "propose[d] to introduce evidence of his employment history, including his activities as an employee representative, to prove he was qualified for the positions he now claims he was denied because of his age and race." App. 3-4. After describing the plaintiff's
App. 9-10. The memo also stated:
App. 8-9. Not once in this memo did the plaintiff state that he proposed to introduce evidence that he was subjected to racial harassment or a racially hostile work environment during the period when he worked at PECO's Eddystone station (from 1984 to 1986) or at any other time.
PECO next filed a reply memorandum. PECO argued that the plaintiff's pre-1989 experience representing other employees was not relevant with respect to several of the positions to which he claimed he should have been promoted. However, with respect to some other positions — the position of Affirmative Action Staff Assistant and three positions as a Labor Relations Representative — PECO offered "to stipulate that plaintiff's activities on behalf of other employees provided him with the experience to meet certain criteria set forth in the job requisitions" for those positions. Reply Memorandum of Law in Support of Defendant's Motion In Limine at 7.
The plaintiff then filed a surreply objecting to the proposed stipulation because it would deprive him of "the opportunity to present the depth and texture of those qualifications to a jury." App. 16. This surreply, like the plaintiff's prior memorandum, made absolutely no mention of racial harassment or a racially hostile atmosphere at Eddystone or anywhere else.
After receiving these submissions, the district court, a few days before trial, entered an order granting PECO's motion. Because the district court did not explain the basis for its ruling, it is unclear whether the court held that the evidence of pre-1989 events was not relevant or whether the court concluded that the evidence should be excluded under Rule 403. In any event, however, I do not think that the plaintiff can attack this ruling on the ground that it improperly precluded him from proving that he had been subjected to racial harassment at Eddystone prior to 1989. Having explained to the district court precisely what evidence of pre-1989 events he wanted to introduce and precisely why he wanted to introduce that evidence, and having said nothing about evidence of racial harassment or a racially hostile atmosphere at Eddystone or anywhere else, the plaintiff cannot, in my view, argue that the district court erred in failing to admit such evidence. See Fed.R.Evid. 103(a)(2); Northeast Women's Center, Inc. v. McMonagle, 868 F.2d 1342, 1352-53 (3d Cir.), cert. denied, 493 U.S. 901, 110 S.Ct. 261, 107 L.Ed.2d 210 (1989).
When the trial began two days after the district court's order granting the motion in limine had been entered and sent to the parties, the plaintiff's counsel made an oral offer of proof, and the following colloquy occurred:
While this oral offer of proof, unlike the plaintiff's prior memoranda, referred to evidence of racial harassment at Eddystone, plaintiff's counsel still did not explain how prooof this harassment, apparently by co-workers,
The exchanges that led to these specific rulings are quoted in the opinion of the court (see Maj. at 193-94), and therefore I will not repeat them here. I will, however, note two salient features of these exchanges. First, at no point did the plaintiff's attorney refer to the concept of "pretext" or provide a clear explanation of the relevance of the Eddystone evidence. Second, at no point did the trial judge refer to Rule 403 or provide a clear explanation of the basis of his rulings excluding the evidence in question. Faced with this ambiguous record, I think it is appropriate to give both sides the benefit of the doubt. Consequently, I construe the remarks of plaintiff's counsel as having preserved the argument that the Eddystone evidence was relevant to show pretext, and (like counsel for both parties
According to our precedents, "[a] trial judge is given `very substantial discretion' when striking a Rule 403 balance." Eufrasio, 935 F.2d at 572. A trial judge's ruling under Rule 403 may be reversed only if the judge committed an abuse of discretion. Id. Indeed, we have held that "a trial judge's decision to admit or exclude evidence under Fed.R.Evid. 403ay not be reversed unless it is `arbitrary and irrational.'" Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 187 (3d Cir.1990), cert. denied, 501 U.S. 1217, 111 S.Ct. 2827, 115 L.Ed.2d 997 (1991), (quoting United States v. DePeri, 778 F.2d 963, 973-74 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 and 476 U.S. 1159, 106 S.Ct. 2277, 90 L.Ed.2d 720 (1986)); see also United States v. Friedland, 660 F.2d 919, 929 (3d Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2268, 73 L.Ed.2d 1283 (1982); United States v. Long, 574 F.2d 761, 767 (3d Cir.), cert. denied, 439 U.S. 985, 99 S.Ct. 577, 58 L.Ed.2d 657 (1978). We have also observed:
United States v. Long, 574 F.2d at 767; see also Eufrasio, 935 F.2d at 572. As the Seventh Circuit aptly wrote in a case quite similar to this one:
Sims v. Mulcahy, 902 F.2d 524, 531 (7th Cir.), cert. denied, 498 U.S. 897, 111 S.Ct. 249, 112 L.Ed.2d 207 (1990) (citation omitted).
Applying an abuse-of-discretion standard, I think that the trial judge's ruling in this case must be sustained. I recognize that evidence that the plaintiff was subjected to racial harassment or a racially hostile atmosphere at Eddystone has some probative value for the purpose of showing that PECO's reliance on plaintiff's poor evaluation while at Eddystone was pretextual. If the plaintiff was harassed at Eddystone, that harassment might have caused or contributed to his poor performance rating. Thus, evidence of harassment at Eddystone is relevant to show that the plaintiff's performance rating for that period was inaccurate. The plaintiff's poor rating at Eddystone was cited as a reason for PECO's denial of the plaintiff's requests for promotion to positions as a Labor Relations Specialist and to an engineering position. If the officials who made the decisions concerning these promotions knew or believed that the Eddystone evaluation had been affected by the harassment and was therefore inaccurate, that would tend to show that their reliance on this rating was pretextual. Consequently, proof of the plaintiff's harassment at Eddystone could form part of a chain of reasoning leading to the inference that the PECO decisionmakers discriminated or retaliated against the plaintiff.
But while the evidence of harassment at Eddystone that the plaintiff was precluded from introducing thus has some probative value, its probative value is limited. First, with respect to the positions as a Labor Relations Representative, PECO did not rely heavily on the plaintiff's performance at Eddystone as an explanation for its decisions. The official responsible for filling these positions, James Lange, listed numerous other reasons why he did not choose the plaintiff. Among other things, Lange mentioned: his belief that the plaintiff was unable "to function as a change agent" and was "wedded to the past way of doing things" (9/25/92 Tr. at 154-56); his concern about the plaintiff's "ability to be objective in the area of labor relations" (id. at 163); his view that the plaintiff was not a "team player" (id. at 163-64); PECO's policy of giving preference to candidates from within the same department (9/29/92 Tr. at 109); the plaintiff's failure to meet educational requirements (id. at 113);
On the other side of the Rule 403 balance, I think that there is substance to PECO's contention that permitting proof of the alleged discrimination at Eddystone might have led to a mini-trial and caused substantial unfair prejudice. As PECO put it in its brief:
Appellee's Br. at 14 (footnotes omitted). Even if PECO's estimate of the length and complexity of this "minitrial" is exaggerated, I still think that these considerations were legitimate and weighed appreciably in favor of exclusion. Furthermore, introduction of evidence of harassment at Eddystone might well have led the jury to believe that these events were part of a pattern of discrimination by PECO and, since even the plaintiff did not advance such a claim (see supra, at 4), the introduction of this evidence had a potential for causing PECO unfair prejudice.
In short, there are clearly factors on both sides of the Rule 403 balance, and reasonable minds can differ as to whether that balance tilts in favor of admission or exclusion of the Eddystone evidence. My colleagues obviously believe that the balance tilts in favor of admission. Our function, however, is not to balance the Rule 403 factors ourselves. Rather, we are supposed to afford substantial deference to the balance struck by the trial judge and, if that is done, his rulings in this case must be sustained. His rulings did not
Moreover, even if the trial judge's rulings constituted abuses of his discretion, those rulings were harmless with respect to the positions as Labor Relations Representative. As noted (see pages 199-200 supra), Lange, in discussing those positions, provided a long list of other reasons for not selecting Glass, and Lange stated in effect that he did not rely heavily on Glass's performance at Eddystone. Thus, even if Glass had succeeded in showing that Lange's relatively minor reliance on the Eddystone evaluation was pretextual, it is "highly probable" that the jury's verdict concerning the positions as Labor Relations Representative would not have been affected. See Lippay v. Christos, 996 F.2d 1490, 1500 (3d Cir.1993); McQueeney v. Wilmington Trust Co., 779 F.2d 916, 924 (3d Cir.1985). Accordingly, any erroneous evidentiary rulings made by the district court were harmless with respect to those positions.
For these reasons, I dissent.
Before: BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, and MCKEE, Circuit Judges.
SUR PETITION FOR REHEARING IN BANC
Oct. 4, 1994
The Petition for Rehearing filed by appellee in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service having not voted for rehearing by the court in banc, the petition for rehearing is denied.
Judges GREENBERG, HUTCHINSON, and ALITO would have granted rehearing.