Aida Acevedo v. City of Reading

• Court: Court of Appeals for the Third Circuit
• Decided: November 24, 2025
• Docket: 24-3001
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 24-3001 ________________

AIDA ACEVEDO, Appellant

v.

CITY OF READING; EDDIE MORAN, (In his individual capacity); NATANAEL RIVERA COLON, a/k/a Nate Rivera (In his individual capacity only) _____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 5:23-cv-01224) District Judge: Honorable Karen S. Marston ________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on September 9, 2025

Before: CHAGARES, Chief Judge, PORTER, and ROTH, Circuit Judges.

(Filed: November 24, 2025)

________________

OPINION* ________________

PORTER, Circuit Judge.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Aida Acevedo sued the city of Reading, PA (“the City”), its mayor, and a former

City employee, asserting sex discrimination and retaliation claims. The District Court

granted summary judgment against Acevedo on her retaliation claim and § 1983 claim,

and it denied her motion for a new trial on her discrimination claim against the City.

Acevedo raises several issues on appeal, but we will affirm.

I

Acevedo began working as the human resources director for the City in 2020. She

reported to Mayor Eddie Moran. Natanael Rivera Colon, another City employee, was

Moran’s long-time friend and special assistant.

Acevedo alleges that, shortly after starting her job, Rivera began making

inappropriate sexual comments that continued for months. She says she reported some of

these incidents to the mayor’s chief of staff, but that no formal action was taken to punish

or deter Rivera. On August 2, 2021, Rivera texted Acevedo a “picture of semen in the

palm of his hand,” accompanied by the statement “15 minutes ago. What a waste.” Joint

Appendix (“J.A.”) 100. Besides reporting the photo to the chief of staff, Acevedo showed

it to several friends and colleagues, including former City employee Dana Rodriguez.

Although Acevedo reported Rivera’s behavior, she asked her supervisors not to

take action, fearing retaliation because of Rivera’s close relationship with Moran. Despite

that request, the City’s managing director, Abe Amoros, retained an outside law firm

(“McNees”), to investigate Rivera’s conduct. After Amoros showed the photo to Moran,

Moran immediately had Rivera removed from the building and suspended pending the

investigation results. While the investigation was ongoing, Acevedo decided that she’d

2 had enough and tendered her resignation, with an effective last day of December 15,

2021.

On or about December 8, Moran summoned Acevedo to his office. He informed

her that the investigation had concluded and that Rivera had been fired. He also asked

Acevedo if she would rescind her resignation. Acevedo agreed.

After these events, Acevedo alleges that she was subject to hostility at work, and

that Moran and Amoros “stripped her of some job duties and responsibilities.” J.A. 101.

She filed a charge of discrimination and retaliation with the EEOC and informed Moran

and Amoros of the charges. Two days later, Acevedo was suspended for alleged

misconduct: lying to City officials, demeaning staff, failing to complete work,

disregarding legal advice, flouting written directives, and engaging outside counsel

without authorization. McNees was brought in once again, this time to investigate

Acevedo’s conduct. Though Acevedo contested the allegations, McNees’s final report

substantiated all but one of the alleged violations. Acevedo was terminated soon after.

Acevedo filed suit in the Eastern District of Pennsylvania, asserting discrimination

and retaliation claims against the City under Title VII and the Pennsylvania Human

Relations Act, and Fourteenth Amendment retaliation and sex discrimination claims

under 42 U.S.C. § 1983 against Moran and Rivera. The District Court granted summary

judgment for the defendants on all claims but the discrimination claim against the City.

That claim, premised on an alleged hostile work environment, proceeded to a jury trial.

During that trial, the District Court excluded a line of testimony from Rodriguez as

hearsay. The jury returned a verdict for the City. The District Court denied Acevedo’s

3 motion for a new trial that contested the hearsay ruling.

Acevedo timely appealed. She challenges (1) the District Court’s exclusion of the

Rodriguez testimony, (2) the denial of her motion for a new trial, (3) the grant of

summary judgment as to the retaliation claim against the City, and (4) the grant of

summary judgment as to the claim against Rivera.

II1

“We review a District Court’s decision to admit or exclude evidence for abuse of

discretion, although our review is plenary as to the district court’s interpretation of the

Federal Rules of Evidence.” United States v. Duka, 671 F.3d 329, 348 (3d Cir. 2011)

(quoting United States v. Riley, 621 F.3d 312, 337 (3d Cir. 2010)).

Likewise, “[t]he standard of review on a motion for a new trial is abuse of

discretion, except where a district court bases its denial of the motion on an application of

law, in which case an appellate court’s review is plenary.” McKenna v. City of

Philadelphia, 582 F.3d 447, 460 (3d Cir. 2009).

Our review of a district court’s grant of summary judgment is plenary, applying

the same standard as the district court. Qin v. Vertex, Inc., 100 F.4th 458, 469 (3d Cir.

2024). “Under that standard, summary judgment is appropriate only if, construed in the

light most favorable to the non-moving party, the record shows that there is no genuine

1 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.

4 dispute of material fact and that the moving party is entitled to judgment as a matter of

law.” Id.; Fed. R. Civ. P. 56(a).

III

A

Acevedo’s counsel called Rodriguez to the stand on the third day of trial. He

showed Rodriguez the photo of Rivera’s hand holding semen and asked her to “just

describe [Acevedo’s] physical or emotional condition as you could see it” when showing

the picture. J.A. 74. Rodriguez responded by purporting to quote Acevedo’s words at the

time: “[s]he was like, do you believe something like this? No. Do you believe he does

something like this to the HR manager[?]” J.A. 74. Defense counsel then made a hearsay

objection, which the Court sustained.

The Court concluded that Rodriguez’s testimony was hearsay offered “for the

truth of how [Acevedo] reacted to the photograph” and that neither the excited utterance

nor the then-existing mental state hearsay exceptions applied. J.A. 74. The Court likewise

excluded Acevedo’s counsel’s follow-up questions: “Did Ms. Acevedo tell you how she

was feeling at that moment?” and “Did she tell you why she was upset?” J.A. 75.

Rodriguez ultimately testified about more general changes she observed in Acevedo’s

demeanor following the incident.

Hearsay is a statement that “(1) the declarant does not make while testifying at the

current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter

asserted.” Fed. R. Evid. 801(c). Federal Rule of Evidence 803 enumerates exceptions to

that general definition. At issue here is the state of mind exception, which excludes from

5 hearsay “[a] statement of the declarant’s then-existing state of mind . . . or emotional,

sensory, or physical condition . . . but not including a statement of memory or belief to

prove the fact remembered or believed.” Fed. R. Evid. 803(3).

As she did before the District Court, Acevedo argues that Rodriguez’s proposed

testimony was either (1) not hearsay, because it was not offered for the truth of the matter

asserted; or (2) should have been admitted under the state of mind exception. As to the

first point, Acevedo argues that Rodriguez’s testimony “wasn’t tendered to prove the

harassment took place but was offered to show Acevedo’s state of mind at the recounting

of what she had experienced and the effect it had on her.” Appellant’s Br. at 28. Like the

District Court, we find this argument unavailing. Pointing to a different reason for the

testimony (i.e., Acevedo’s feelings rather than whether the harassment occurred at all)

does not overcome the rule against hearsay unless the articulated reason serves a

“legitimate non-hearsay function.” United States v. Price, 458 F.3d 202, 208 (3d Cir.

2006). Here, it does not. Whether those statements fall within the state of mind exception

is a separate question, to which we now turn.

The District Court concluded that Rodriguez’s proposed testimony did not fit

within the state of mind exception because Acevedo’s statements to Rodriguez—

describing how Acevedo felt when she received the photo—occurred some indeterminate

time after that underlying event. See J.A. 2147–48 (Acevedo testifying that she could not

recall if she showed the photo to Rodriguez on the same day she received it). But

contemporaneity is built into the text of the Rule, confined as it is to “then-existing” state

of mind. Fed. R. Evid. 803(3). Like several other hearsay exceptions, the state of mind

6 exception requires it. See, e.g., United States v. Hernandez, 176 F.3d 719, 726 (3d Cir.

1999) (“[T]here are times when a state of mind, if relevant, may be proved by

contemporaneous declarations of feeling or intent.” (citation modified)); 30B Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 6834 (2025 ed.)

(“Statements communicating a prior state of mind are not admissible under Rule 803(3).

Only statements about what the declarant is feeling at the time the statement is made can

be admitted under the rule. In other words, qualifying statements must concern what the

declarant ‘was thinking in the present.’ ”). As the District Court noted, this requirement

furthers the principles justifying the exception—contemporaneous state of mind

utterances are believed to be more reliable or sincere because the declarant has not had

time to reflect and possibly “fabricate or misrepresent” her thoughts. United States v.

Reyes, 239 F.3d 722, 743 (5th Cir. 2001); see Wright & Miller, § 6832.

The District Court afforded Acevedo’s counsel a chance to “lay the foundation” to

satisfy the contemporaneity requirement. J.A. 2564. Counsel failed to do so (and, in fact,

argued that no contemporaneity was required at all). The District Court did not abuse its

discretion in concluding that Rodriguez’s proposed testimony (1) was excludable as

hearsay; and (2) was not admissible under the state of mind hearsay exception.

B

Acevedo’s motion for a new trial turned on her evidentiary challenge regarding

Rodriguez’s testimony. After confirming its prior hearsay ruling, the District Court

further held that even if that ruling had been in error, such error would have been

harmless. See Hirst v. Inverness Hotel Corp., 544 F.3d 221, 228 (3d Cir. 2008)

7 (“Discretionary evidentiary rulings will give rise to reversible error only where ‘a

substantial right of the party is affected.’ ” (quoting Becker v. ARCO Chem. Co., 207 F.3d

176, 180 (3d Cir. 2000))). We afford these conclusions “[p]articular deference” where, as

here, they rest on evidentiary rulings that were themselves “entrusted to the trial court’s

discretion.” Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 187 (3d Cir. 1990). We

find no abuse of discretion in the District Court’s denial of Acevedo’s motion for a new

trial.

C

Acevedo asserted her retaliation claim against the City believing that she was fired

because of protected activities—complaining about Rivera’s conduct and filing a charge

with the EEOC—rather than because of the independent investigation that revealed

policy violations. Like her argument before the District Court, Acevedo contends on

appeal that the independent investigation was pretext, “simply designed to provide cover

for a planned retaliatory firing.” Appellant’s Br. at 8.

We analyze claims for retaliation under the three-step burden-shifting framework

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Marra v. Phila.

Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007). First, “the employee bears the initial

burden of establishing a prima facie case of retaliation.” Id. Second, if the employee

clears step one, “the burden of production shifts to the employer to articulate some

legitimate, non-retaliatory reason for the adverse employment action.” Id. Third, if the

employer clears step two, “the burden of production returns to the employee, who must

8 now show, by a preponderance of the evidence, that ‘the employer’s proffered

explanation was false, and that retaliation was the real reason for the adverse employment

action.’ ” Id. (quoting Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006)).

The District Court determined that each party met its burden under the first two steps of

the McDonnell Douglas framework, but that Acevedo could not meet her burden at step

three. J.A. 25–38. She challenges only that determination.

Once the employee establishes prima facie retaliation and the employer articulates

a legitimate, non-retaliatory reason for the adverse employment action, the employee

satisfies step three of the McDonnell Douglas framework by demonstrating that the

articulated reason was pretextual. To establish pretext, the employee must present

evidence “from which a factfinder could reasonably either (1) disbelieve the employer’s

articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was

more likely than not a motivating or determinative cause of the employer’s action.”

Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).

Acevedo does not challenge the legitimacy of the independent McNees

investigation, which resulted in the City’s articulated reason for terminating her. Rather,

Acevedo’s argument boils down to this: Because her protected activities were a but-for

cause of her termination, the District Court erred in granting summary judgment for the

City. But Acevedo has not shown that “her protected activity made a difference” in the

City’s decision to terminate her employment. Appellant’s Br. at 43.

Acevedo’s brief spills a lot of ink discussing certain witness testimony, the

temporal proximity of her protected activity and the adverse employment action, her own

9 declaration, and the severity of the City’s decision to terminate her employment. But

none of those arguments seriously cast doubt on the independence and accuracy of the

McNees investigation, which found that Acevedo committed multiple violations of two

separate City policies. The City fired her based on those policy violations alone. The

record contains no material facts creating a genuine dispute that Acevedo’s protected

activities made a difference in her termination, even construing those facts most

favorably to Acevedo. Put simply, even if Acevedo did not report Rivera and did not file

an EEOC charge, the outcome here would have been the same. We agree with the District

Court that the City was entitled to summary judgment.

Finally, Acevedo challenges the District Court’s decision on her § 1983 claim for

sexual harassment. On appeal, Acevedo renews her argument that Rivera was “cloaked

with de facto authority over Acevedo” and therefore acted “under color of state law”

when he harassed her. Appellant’s Br. at 45 (emphasis and capitalization omitted).

To state a claim under § 1983, “a plaintiff must allege the violation of a right

secured by the Constitution and the laws of the United States, and must show that the

alleged deprivation was committed by a person acting under color of state law.” West v.

Atkins, 487 U.S. 42, 48 (1988). To be liable, the defendant must “have exercised power

possessed by virtue of state law and made possible only because the wrongdoer is clothed

with the authority of state law.” Bonenberger v. Plymouth Twp., 132 F.3d 20, 23 (3d Cir.

1997) (quoting West, 487 U.S. at 49) (internal quotation marks omitted). A defendant

who lacks a “formal title of supervisor” can still be liable if his “regular duties

10 nonetheless include a virtually identical supervisory role.” Id.

For the same reasons discussed by the District Court, the record shows that Rivera

was not clothed with the authority of state law when he harassed Acevedo. Acevedo

concedes that Rivera had no formal supervisory authority. And the record does not

support Acevedo’s assertion that Rivera exercised de facto control over her. In fact,

Acevedo has shown no instance where Rivera exercised (or attempted to exercise)

supervisory authority over her. Rivera’s alleged “close friendship” with the mayor—even

if it did imbue him with perceived influence generally—does not itself support Acevedo’s

contention that Rivera had any de facto supervisory control over her as the human

resources director in particular.

* * *

For all these reasons, we will affirm the District Court’s order denying a new trial

and its grant of summary judgment.