Strict Contemporaneity for State-of-Mind Hearsay and the Role of Independent Investigations in Retaliation Claims: Commentary on Acevedo v. City of Reading (3d Cir. 2025)

I. Introduction

This commentary examines the Third Circuit’s non-precedential decision in Aida Acevedo v. City of Reading, No. 24-3001 (3d Cir. Nov. 24, 2025), in which the court affirmed the Eastern District of Pennsylvania’s rulings in a workplace sexual harassment and retaliation case brought by the City of Reading’s former human resources director.

Although designated “not precedential” under the Third Circuit’s Internal Operating Procedures, the opinion is doctrinally rich. It clarifies:

How strictly courts apply the contemporaneity requirement for the Rule 803(3) “state of mind” hearsay exception;
The evidentiary burden on employees to show pretext where an employer relies on an independent outside investigation as its non-retaliatory reason for termination; and
The limits of § 1983 liability for sexual harassment by a co-employee who lacks formal or de facto supervisory authority, in the “under color of state law” analysis.

The plaintiff, Aida Acevedo, alleged that:

She was subjected to months of sexual harassment by Natanael (“Nate”) Rivera Colon, a close friend and special assistant to Mayor Eddie Moran;
The harassment culminated in Rivera texting her a photograph of semen in his hand, captioned “15 minutes ago. What a waste”; and
After she complained internally and later filed a charge with the EEOC, the City retaliated by suspending and then terminating her.

She sued under:

Title VII and the Pennsylvania Human Relations Act (PHRA) against the City, alleging sex discrimination (hostile work environment) and retaliation; and
42 U.S.C. § 1983 against Mayor Moran and Rivera, alleging Fourteenth Amendment sex discrimination and retaliation, including a § 1983 sexual harassment claim against Rivera individually.

The District Court:

Granted summary judgment for defendants on all claims except the hostile work environment discrimination claim against the City;
Tried that hostile work environment claim to a jury, which returned a defense verdict; and
Denied Acevedo’s motion for a new trial, which challenged an evidentiary ruling excluding certain testimony from former City employee Dana Rodriguez as hearsay.

On appeal, Acevedo challenged:

The exclusion of Rodriguez’s testimony as hearsay;
The denial of her motion for a new trial on that basis;
The grant of summary judgment against her on the Title VII/PHRA retaliation claim against the City; and
The grant of summary judgment on her § 1983 sexual harassment claim against Rivera on the “color of state law” element.

The Third Circuit (Chief Judge Chagares, and Judges Porter and Roth, with Judge Porter writing) affirmed on all fronts. While it did not create binding precedent, the opinion crystallizes several important practical lessons in evidence, employment discrimination law, and § 1983 doctrine.

II. Summary of the Opinion

The Third Circuit’s holdings can be summarized as follows:

A. Hearsay Ruling and Exclusion of Rodriguez’s Testimony

At trial on the hostile work environment claim, Acevedo’s counsel attempted to elicit testimony from Dana Rodriguez describing Acevedo’s words and emotional state when Acevedo showed Rodriguez the semen photograph. When asked to describe Acevedo’s condition, Rodriguez responded by quoting Acevedo’s statements (“do you believe something like this? … do you believe he does something like this to the HR manager?”). The District Court sustained a hearsay objection, finding:

The statements were offered for their truth as to how Acevedo “reacted to the photograph,” making them hearsay; and
They did not fall within the Rule 803(3) state-of-mind exception because there was no foundation that the statements were contemporaneous with the emotional state triggered by receiving the text.

The Third Circuit held there was no abuse of discretion. The statements were hearsay, not offered for a genuinely non-hearsay purpose, and did not qualify under the “then-existing” state-of-mind exception due to lack of demonstrated contemporaneity. The trial judge had offered counsel the opportunity to lay such a foundation; counsel did not do so.

B. Denial of Motion for a New Trial

Acevedo moved for a new trial, arguing that excluding Rodriguez’s testimony was erroneous and prejudicial. The District Court reiterated its hearsay analysis and added that, even if the exclusion were erroneous, the error was harmless in light of the full trial record.

The Third Circuit, applying an abuse of discretion standard with “particular deference” to the trial court’s evidentiary-based new-trial ruling, affirmed the denial of a new trial.

C. Retaliation Claim Against the City

On the Title VII and PHRA retaliation claims, the District Court applied the McDonnell Douglas burden-shifting framework. The court assumed Acevedo made a prima facie case (step one) and that the City articulated legitimate non-retaliatory reasons for her termination (step two): findings by an outside law firm (McNees) that she violated multiple City policies. But it granted summary judgment, holding she failed at step three to rebut those reasons as pretextual.

On appeal, Acevedo argued her protected activities (complaints about Rivera and EEOC charge) were a “but-for” cause of her termination and that the investigation was “simply designed to provide cover for a planned retaliatory firing.”

The Third Circuit rejected this argument, holding:

Acevedo did not meaningfully challenge the independence or accuracy of the McNees investigation;
Her evidence (temporal proximity, her own declaration, selected witness testimony, and the severity of the sanction) was insufficient to cast serious doubt on the City’s stated reliance on the policy violations; and
The record, even viewed favorably to Acevedo, contained no genuine dispute that the City would have terminated her even had she never engaged in the protected activity.

Thus, she failed to raise a triable issue of pretext, and summary judgment for the City was properly granted.

D. § 1983 Sexual Harassment Claim Against Rivera

For her § 1983 sexual harassment claim against Rivera, Acevedo needed to prove that Rivera acted “under color of state law.” She argued that Rivera was “cloaked with de facto authority” over her because of his close relationship with the mayor and his role as a special assistant.

The Third Circuit, agreeing with the District Court, held:

Rivera had no formal supervisory authority over Acevedo;
The record did not show any instance in which he exercised or attempted to exercise supervisory authority over her; and
A “close friendship” with the mayor and generalized perceived influence do not, without more, amount to “de facto control” over a specific employee for § 1983 purposes.

Because Rivera was not “clothed with the authority of state law” when he harassed Acevedo, he did not act under color of state law, and summary judgment was properly entered in his favor on the § 1983 claim.

III. Detailed Analysis

A. Precedents Cited and Their Influence

The opinion weaves together federal evidence law, civil procedure, employment discrimination doctrine, and § 1983 “state action” jurisprudence. The cited precedents frame the court’s analysis at each stage.

1. Standards of Review and Evidence Law

United States v. Duka, 671 F.3d 329, 348 (3d Cir. 2011) and United States v. Riley, 621 F.3d 312, 337 (3d Cir. 2010): These cases supply the standard of review for evidentiary rulings: abuse of discretion for the decision to admit or exclude evidence, but plenary review for the legal interpretation of the Federal Rules of Evidence. They underscore that appellate courts rarely overturn trial-level evidentiary calls unless the lower court misapplied the law or made an unreasonable judgment.
Federal Rule of Evidence 801(c) and 803(3): Rule 801(c) defines hearsay as an out-of-court statement offered “to prove the truth of the matter asserted.” Rule 803(3) provides an exception for statements of “then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition,” but specifically excludes statements of “memory or belief to prove the fact remembered or believed.”
United States v. Price, 458 F.3d 202, 208 (3d Cir. 2006): Price is important for the notion of a “legitimate non-hearsay function.” A party cannot evade the hearsay rule simply by asserting a different purpose; the alternative purpose must be genuine and not dependent on the truth of the assertion.
United States v. Hernandez, 176 F.3d 719, 726 (3d Cir. 1999) and United States v. Reyes, 239 F.3d 722, 743 (5th Cir. 2001): Hernandez emphasizes that when a declarant’s state of mind is relevant, it may be proved by “contemporaneous declarations” of feeling or intent. Reyes further explains that contemporaneous statements are considered more reliable because the declarant has not had time to “fabricate or misrepresent” her thoughts.
Wright & Miller, Federal Practice and Procedure § 6834 (2025 ed.): The treatise, quoted by the court, reinforces that Rule 803(3) does not admit statements about prior states of mind. Only statements about what the declarant is feeling or thinking at the time of the statement qualify.

These authorities collectively support the court’s conclusion that, without proof that Acevedo’s statements to Rodriguez were made at or very near the time she experienced the emotional shock of receiving the photograph, the Rule 803(3) exception does not apply.

2. Motions for New Trial and Harmless Error

McKenna v. City of Philadelphia, 582 F.3d 447, 460 (3d Cir. 2009): McKenna supplies the standard of review for motions for a new trial: abuse of discretion, except for pure legal questions, which are reviewed de novo.
Hirst v. Inverness Hotel Corp., 544 F.3d 221, 228 (3d Cir. 2008) and Becker v. ARCO Chem. Co., 207 F.3d 176, 180 (3d Cir. 2000): These cases establish that discretionary evidentiary rulings warrant reversal only when they affect a “substantial right” of a party. That is, even if an evidentiary error occurred, it must have had a substantial impact on the outcome.
Bhaya v. Westinghouse Electric Corp., 922 F.2d 184, 187 (3d Cir. 1990): Bhaya stresses that appellate courts grant “particular deference” to a trial court’s handling of new trial motions grounded in evidentiary decisions, because such rulings are entrusted to the trial judge’s discretion.

These precedents position the evidentiary ruling on Rodriguez’s testimony within a framework that is highly deferential to the trial court, making reversal on appeal an uphill battle once the trial judge has carefully explained both the admissibility analysis and harmless-error assessment.

3. Summary Judgment and Employment Discrimination

Qin v. Vertex, Inc., 100 F.4th 458, 469 (3d Cir. 2024) and Fed. R. Civ. P. 56(a): The court quotes Qin for the familiar summary judgment standard—no genuine dispute of material fact and entitlement to judgment as a matter of law, with the evidence viewed in the light most favorable to the non-movant.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Marra v. Philadelphia Housing Authority, 497 F.3d 286, 300 (3d Cir. 2007): These cases set out and adapt the three-step McDonnell Douglas burden-shifting framework for retaliation claims:
1. Plaintiff’s prima facie case of retaliation;
2. Employer’s articulation of a legitimate, non-retaliatory reason;
3. Plaintiff’s showing that the proffered reason is pretextual.
Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006) and Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994): These cases define pretext in the Third Circuit. A plaintiff may show pretext either by:
- Presenting evidence from which a factfinder could reasonably disbelieve the employer’s articulated reasons; or
- Showing that discrimination (or retaliation) is more likely than not a motivating or determinative cause.

These authorities frame Acevedo’s retaliation claim. The key issue on appeal was step three: whether Acevedo raised a genuine factual dispute that the City’s stated reliance on the McNees investigation was a sham.

4. § 1983 and State Action / “Under Color of State Law”

West v. Atkins, 487 U.S. 42, 48–49 (1988): West sets the basic § 1983 standard: a plaintiff must show (1) the violation of a federal right, and (2) that the violation was committed by a person “acting under color of state law.” The second element is satisfied when a defendant exercises 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 Township, 132 F.3d 20, 23 (3d Cir. 1997): Bonenberger is crucial in cases involving de facto supervisors. It holds that a person without a formal supervisory title can still act under color of state law if his “regular duties nonetheless include a virtually identical supervisory role.” In other words, § 1983 focuses on power and function, not just formal job titles.

These cases supply the legal test the court applied to Rivera’s role. The Third Circuit reads them to require demonstrable supervisory authority—formal or functional—over the plaintiff, not merely generalized influence or social connection to higher officials.

B. The Court’s Legal Reasoning

1. The Hearsay Exclusion and Rule 803(3)’s Contemporaneity Requirement

The contested testimony involved Rodriguez recounting what Acevedo said as she showed her the semen photograph. The core legal questions were:

Were those statements hearsay?
If so, did they fall within the Rule 803(3) state-of-mind exception?

Acevedo argued:

The statements were not hearsay because they were not offered to prove that the harassment occurred, but rather to show the impact on her emotional state; and alternatively
Even if hearsay, they fell within the state-of-mind exception as evidence of her then-existing emotional condition.

The Third Circuit, aligning with the District Court, rejected both prongs.

a. Hearsay vs. Non-Hearsay Purpose

The court emphasizes that simply asserting an alternative purpose (emotional impact) does not automatically make an out-of-court statement non-hearsay. Citing United States v. Price, the court notes that the alternative purpose must serve a “legitimate non-hearsay function.”

Here, the description—“do you believe something like this? … do you believe he does something like this to the HR manager?”—was directly tied to Acevedo’s reaction to the photograph and her emotional distress about Rivera’s conduct. But the trial court reasonably determined that admitting the statements would invite the jury to accept as true the underlying implications (that such conduct occurred), and thus they were being offered “for the truth of how [Acevedo] reacted,” not merely as background.

Given the deference owed to the trial court’s assessment of purpose and effect, the Third Circuit agreed that the testimony was hearsay under Rule 801(c).

b. State-of-Mind Exception and “Then-Existing” Condition

The crux of the dispute involved Rule 803(3)’s “then-existing” requirement. The court underscores:

The exception covers statements about what the declarant is feeling or thinking at the time the statement is made;
It does not cover statements describing how the person felt at some prior time; and
“Contemporaneity is built into the text of the Rule.”

The record did not establish when Acevedo showed the photograph and spoke to Rodriguez relative to when she first received the text. Indeed, Acevedo testified she could not recall whether she showed the photograph to Rodriguez the same day she received it. Without that temporal anchor, the trial court could not conclude the statements reflected a “then-existing” condition rather than a reflective description of past feelings.

The opinion points to:

Hernandez: state of mind may be proved by “contemporaneous declarations of feeling or intent”; and
Wright & Miller: Rule 803(3) permits “what the declarant was thinking in the present,” not “statements communicating a prior state of mind.”

Critically, the trial judge invited Acevedo’s counsel to “lay the foundation” for contemporaneity. Counsel instead argued that no such foundation was required. Having failed to supply any basis for finding the statements contemporaneous with the triggering event, Acevedo could not bring the statements within Rule 803(3).

The Third Circuit thus held the trial court did not abuse its discretion either in classifying the testimony as hearsay or in rejecting the state-of-mind exception.

2. The Motion for New Trial and Harmless Error

Because the motion for a new trial was predicated on the allegedly erroneous exclusion of the Rodriguez testimony, the appellate disposition of the new-trial motion followed logically from the evidentiary ruling.

The District Court:

Reaffirmed that its hearsay ruling was correct; and
Independently held that any error would have been harmless in light of the overall record, so it did not affect a “substantial right” of Acevedo.

On appeal, the Third Circuit:

Emphasized the “particular deference” owed where new-trial rulings flow from discretionary evidentiary determinations (Bhaya); and
Found no abuse of discretion in the trial court’s assessment that the excluded statements were not outcome-determinative.

The opinion does not re-litigate the factual weight of other evidence, but the logic is clear: Rodriguez still testified about general changes she observed in Acevedo’s demeanor after the incident. The jury had ample evidence of Acevedo’s emotional distress and the workplace environment; the incremental probative value of hearing the precise words Acevedo used to Rodriguez—separated by an uncertain time gap from the event—was not enough to warrant a new trial.

3. Retaliation Claim: Pretext and Independent Investigations

The retaliation claim implicates the full three-step McDonnell Douglas structure, but the appellate focus is firmly on step three: pretext.

a. Steps One and Two: Prima Facie Case and Employer’s Reason

The District Court held, and the Third Circuit accepted, that:

Acevedo met her initial burden to establish a prima facie case of retaliation (protected activity, adverse action, and a causal link); and
The City articulated legitimate, non-retaliatory reasons for terminating her—namely, the results of the McNees investigation, which substantiated all but one of several alleged policy violations (lying to officials, demeaning staff, failing to complete work, disregarding legal advice, flouting directives, and engaging outside counsel without authorization).

Thus, the dispute centered on whether the investigation and its findings were a pretext for retaliation.

b. Step Three: Showing Pretext

Under Fuentes and Moore, Acevedo had to present evidence from which a reasonable jury could either:

Disbelieve the City’s stated reliance on the investigation and policy violations; or
Conclude that retaliation was “more likely than not” a motivating or determinative factor in the termination decision.

Acevedo’s appellate argument rested heavily on the notion that her protected activity was a “but-for” cause of her termination—that it “made a difference” in the City’s decision. In retaliation jurisprudence under Title VII, “but-for” causation (i.e., the adverse action would not have occurred absent the protected activity) is indeed the ultimate causation standard. But the Third Circuit’s opinion underscores that:

Merely asserting but-for causation is not enough to survive summary judgment;
The plaintiff must produce evidence that undermines the credibility or sufficiency of the employer’s stated reasons; and
A thorough, independent investigation by outside counsel can, if not attacked on its integrity, provide a strong non-retaliatory explanation that is difficult to rebut.

The court notes that Acevedo’s brief “spills a lot of ink” on:

Testimony from certain witnesses;
The temporal proximity between her protected activity (EEOC charge) and her suspension/termination;
Her own declaration; and
The perceived severity of the termination sanction.

But none of this, in the court’s view, “seriously cast[s] doubt on the independence and accuracy of the McNees investigation,” which found substantial policy violations. Acevedo did not attack:

The qualifications or independence of McNees;
The fairness of the process (e.g., whether she had an opportunity to respond); or
Any particular factual finding by McNees in a way that would suggest bias, fabrication, or selective enforcement.

Thus, the panel reasoned:

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.

That final sentence is an explicit finding that Acevedo’s evidence did not raise a reasonable inference that retaliation was a “but-for” cause, given the substantiated policy violations. As a result, no reasonable jury could find pretext, and summary judgment for the City was appropriate.

4. § 1983 Sexual Harassment and “Under Color of State Law”

Acevedo’s § 1983 claim against Rivera required her to show that his harassment was carried out “under color of state law.” The court applies the familiar framework from West and Bonenberger:

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.”
Formal supervisory status is not necessary; a defendant can be a de facto supervisor if his regular duties amount to a “virtually identical supervisory role.”

Acevedo argued Rivera was “cloaked with de facto authority over Acevedo” due to his position as the mayor’s special assistant and his “close friendship” with the mayor. She effectively contended that his influence within City Hall made his actions functionally coercive and state-backed.

The court rejected this for several reasons:

Acevedo conceded Rivera had no formal supervisory authority over her as human resources director.
The record contained “no instance where Rivera exercised (or attempted to exercise) supervisory authority over her.” There were no directives about her work, no control over her schedule, pay, or assignments, and no wielding of disciplinary authority.
Generalized “perceived influence” deriving from a friendship with the mayor is insufficient. § 1983 is concerned with the misuse of actual state-conferred power over the plaintiff’s employment, not with the harasser’s political capital or social standing.

The court’s reasoning draws a clear line:

Title VII and similar statutes can reach workplace harassment by co-workers or non-supervisors under certain conditions (e.g., employer liability for failing to remedy known harassment); but
§ 1983 requires an abuse of governmental power, not merely workplace proximity or influence.

On this record, Rivera’s actions, however reprehensible, were not actions of a government official wielding state authority over Acevedo; they were personal acts of harassment by a co-worker without supervisory power. Hence, he did not act “under color of state law,” and the § 1983 claim could not proceed.

C. Impact and Significance

1. Evidentiary Practice: A Strict Approach to Rule 803(3)

The opinion reinforces a strict approach to the Rule 803(3) state-of-mind exception in several ways:

Contemporaneity is essential. Lawyers cannot assume emotional-state statements will be admitted simply because they describe feelings. They must establish when the statements were made relative to the event that triggered the emotions.
Foundation matters. The District Court offered Acevedo’s counsel an opportunity to lay a foundation showing contemporaneity; counsel rejected that path. The opinion serves as a caution that strategic insistence on an expansive legal theory can be costly where a narrower evidentiary foundation could suffice.
Non-hearsay purposes must be genuine. Citing Price, the court insists on a “legitimate non-hearsay function.” Attempting to re-label statements as “state of mind” or “effect on the listener” will not work if the jury must still accept the substantive truth to draw the urged inference.

Practically, trial lawyers in harassment and emotional-distress cases must:

Pin down the timing of out-of-court statements in discovery and witness prep;
Develop clear foundations for contemporaneity; and
Be prepared to argue alternative bases (e.g., present sense impression, excited utterance) with solid factual grounding, not just legal assertions.

2. Retaliation Litigation: Independent Investigations as Robust Non-Retaliatory Reasons

The opinion underscores the strength of a truly independent investigation as a non-retaliatory reason for adverse employment action:

For employers: Retaining outside counsel (as the City did with McNees) to investigate alleged misconduct can provide a powerful defense against retaliation claims, as long as:
- The investigation is genuinely independent and impartial;
- Its scope and methodology are reasonable; and
- The employer’s decision is demonstrably based on the investigation’s findings, not on the employee’s protected activity.
For employees/plaintiffs: When the employer points to an independent investigation as its reason:
- It is not enough to focus solely on temporal proximity or generalized skepticism;
- The plaintiff should gather evidence that the investigation was:
  - Biased or preordained;
  - So procedurally flawed as to be unreliable (e.g., refusal to interview key witnesses, ignoring exculpatory evidence); or
  - Applied selectively or inconsistently compared to how other employees were treated.
- Alternatively, a plaintiff may show that the alleged “policy violations” themselves are trivial, fabricated, or not actually relied on in other comparable cases.

Acevedo suggests that, absent such targeted attacks on the integrity or substance of an independent investigation, plaintiffs will find it difficult to raise a triable issue of pretext.

3. § 1983 Sexual Harassment: Narrowing “De Facto Supervisor” Claims

The decision also clarifies the boundaries of § 1983 liability for sexual harassment in public employment:

“De facto” supervisory authority must be concrete and job-related. The Third Circuit reads Bonenberger to require proof that the defendant exercised, as part of his regular duties, powers similar to a supervisor—such as directing work, controlling schedules, or initiating discipline.
Informal influence is not enough. Being a mayor’s “close friend” or “special assistant” may create political leverage or social capital, but those qualities alone do not equate to state action under § 1983 when directed at a co-employee who does not report to the harasser.
Strategic pleading choices matter. In public-sector harassment cases, plaintiffs must consider:
- Title VII and PHRA as the primary vehicles for hostile work environment claims; and
- § 1983 claims only where the harasser has demonstrable state-conferred power over the plaintiff, or where municipal policymakers are directly involved.

For municipal employers and individual defendants, this reasoning provides some assurance that non-supervisory employees will not automatically face § 1983 liability for harassment, even if they have political connections. For plaintiffs, it highlights the need to develop concrete evidence of supervisory authority—formal or functional—when asserting § 1983 harassment claims.

4. Appellate Deference and the Difficulty of Overturning Jury Verdicts

Finally, the opinion illustrates how layered standards of review make it difficult to reverse jury verdicts:

Evidentiary rulings are reviewed for abuse of discretion;
New trial motions based on such rulings receive “particular deference”; and
Harmless-error principles require a showing that an error materially affected the outcome.

In combination, these doctrines mean that plaintiffs who lose at trial face long odds in overturning results based on excluded evidence, especially when the trial record otherwise contains similar or cumulative evidence (such as other testimony describing emotional distress).

IV. Complex Concepts Simplified

A. Hearsay and the “State of Mind” Exception

Hearsay is an out-of-court statement offered to prove that what it says is true. It is generally not allowed because the person who made the statement is not in court to be cross-examined.

The Rule 803(3) “state of mind” exception allows some hearsay in. It covers statements like:

“I am scared right now.” (present fear)
“I intend to resign tomorrow.” (present intent)

But it does not cover:

“Yesterday I was scared.” (past feeling)
“I think he harassed me last week.” (statement of belief used to prove past facts)

To fit within Rule 803(3), the statement must describe how the person feels or what she intends at the moment she speaks. This is why the timing of Acevedo’s statements to Rodriguez was crucial. Without proof that she spoke while still in the immediate emotional shock of receiving the text, the court could not treat the statements as “then-existing” state of mind.

B. The McDonnell Douglas Framework and “Pretext”

In workplace retaliation cases, courts often use the McDonnell Douglas three-step process:

Plaintiff’s prima facie case: show protected activity, adverse action, and a causal connection (often aided by temporal proximity).
Employer’s reason: the employer must state a non-retaliatory reason (e.g., poor performance, misconduct).
Pretext: the plaintiff must then show that the employer’s reason is not true or not the real reason, and that retaliation actually motivated the decision.

“Pretext” means the stated reason is a cover story. Plaintiffs can show this by, for example:

Pointing to inconsistencies in the employer’s explanations;
Showing that the employer treated similar employees differently; or
Demonstrating that the investigation or process used to justify the decision was biased or fundamentally flawed.

In Acevedo, the outside investigation and its findings formed the employer’s reason. Because Acevedo did not seriously attack that investigation’s integrity or correctness, she failed to show pretext.

C. “Under Color of State Law” in § 1983

To sue under § 1983, a plaintiff must show that the defendant acted “under color of state law.” This essentially means:

The defendant used power granted by the government (state or local); and
That power made the wrongful act possible (for example, a police officer using arrest powers to assault someone, or a supervisor using authority over pay or promotions to retaliate).

A co-worker who has no authority over another employee’s job duties, pay, or discipline usually does not act “under color of state law” when harassing that employee, even if they both work for the government. For § 1983 purposes, the key is not just that the harasser is a government employee, but that he is misusing government power over the victim.

In Acevedo, Rivera was a City employee and a friend of the mayor, but he did not supervise Acevedo, and there was no evidence he exercised boss-like power over her. Thus, his misconduct was not treated as a misuse of state authority under § 1983.

D. Standards of Review on Appeal

Understanding how appeals work is critical:

Abuse of discretion: Used for evidentiary rulings and new trial decisions. The appellate court will uphold the district court unless its decision was unreasonable or based on a clear error of judgment.
Plenary (de novo) review: Applied to pure legal questions like the interpretation of rules or statutes.
Summary judgment review: The appellate court looks at the record anew (plenary review) to ask whether any reasonable jury could find for the non-moving party on the relevant issues.

Because the evidentiary and new-trial issues in Acevedo were reviewed for abuse of discretion, Acevedo faced a high bar in seeking reversal.

V. Conclusion

Acevedo v. City of Reading is a non-precedential decision, but it offers clear and instructive guidance on several recurring issues:

It reaffirms a strict reading of Rule 803(3), emphasizing that only “then-existing” state-of-mind statements—tied by foundation to contemporaneous emotions—are admissible under the exception.
It illustrates how an independent investigation by outside counsel can provide a robust, legitimate, non-retaliatory basis for termination, and underscores that plaintiffs must attack such investigations’ integrity or substance to establish pretext.
It clarifies the limits of § 1983 liability for workplace harassment, reaffirming that “under color of state law” requires more than mere influence or friendship with policymakers; actual or de facto supervisory authority over the plaintiff is key.
It highlights the deferential appellate posture towards trial-level evidentiary and new-trial rulings, particularly where the trial court has carefully articulated its reasoning and harmless-error assessment.

For practitioners, the decision underscores the importance of:

Meticulous evidentiary groundwork (especially on timing and purpose for hearsay exceptions);
Strategic focus on undermining employers’ proffered reasons—especially when those rest on outside investigations; and
Thoughtful selection and development of § 1983 claims, anchored in demonstrable state-conferred authority rather than generalized influence.

Although not binding precedent, Acevedo aligns with and clarifies existing Third Circuit doctrine in ways that will likely shape how litigants frame evidence, retaliation theories, and § 1983 harassment claims in future employment cases within the Circuit.