TIMOTHY D. DeGIUSTI, District Judge.
Before the Court for consideration are Plaintiff's Motion in Limine [Doc. No. 42] and Defendant's Motion in Limine [Doc. No. 51], which are fully briefed and at issue.
Plaintiff claims that Defendant terminated his 30-year employment in its utilities department in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 101 et seq. The factual and procedural background of the case appears in the Order of August 15, 2018 [Doc. No. 33], denying summary judgment, and will not be repeated here. Both parties seek pretrial rulings on the admissibility of certain evidence that may be offered at the jury trial set on the Court's January 8, 2019 trial docket. Upon consideration of the issues raised by the Motions, the Court makes the following determinations.
Plaintiff seeks to exclude nine exhibits that Defendant intends to offer at trial.
Plaintiff's supervisor, John McCarrell, saw Plaintiff and a co-worker at an Atwoods store in Norman, Oklahoma, during work hours on February 17, 2014. Defendant obtained a copy of a video recording that shows Plaintiff entering and exiting the store on that date. Defendant represents that the video formed part of its investigation into alleged misconduct by Plaintiff (and a co-worker) and was included in the materials considered by the decisionmaker, Kenneth Komiske.
Plaintiff objects to the exhibit on multiple grounds, including authentication (Rule 901), hearsay (Rules 801-803), relevance (Rules 401 and 402), and undue prejudice (Rule 403).
In response, Defendant addresses only the relevance objection. Defendant asserts that the exhibit shows: a) Plaintiff entered and exited the store at certain times (18 minutes apart, although he has said it was a bathroom break); b) Defendant investigated and corroborated Mr. McCarrell's observation; and c) a depiction of "the facts as they appeared to the person making the decision" to discharge Plaintiff. See Def.'s Resp. Br. [Doc. No. 56] at 2-3. This argument makes Defendant's intended use of the video unclear. Defendant seems to assert both that it will use the exhibit to prove certain facts shown by the video (particularly, time stamps showing how long Plaintiff was in the store) and that it will use the video simply to document a basis for Mr. Komiske's decision.
The first potential use would be evidence to prove the truth of the matter asserted, and would constitute hearsay under Rule 801(c). Defendant's failure to explain how it proposes to authenticate or establish a hearsay exception prevents this use of the video.
Plaintiff's discipline for alleged misconduct was the subject of a pre-termination hearing for which Defendant created a PowerPoint presentation to explain its position. Plaintiff objects to admission of the PowerPoint at trial on grounds of authentication, hearsay, and "confusion of the issues, unfair prejudice," citing Rule 403. See Pl.'s Mot. at 3. Plaintiff contends the PowerPoint "contains a collection of double hearsay, arguments, and opinion" and "the jury might mistakenly believe [it] represented the results of an independent investigation and opinions from some neutral third-party." Id. at 4. Defendant contends the PowerPoint was "included in the facts as they appeared to Mr. Komiske" and "is admissible for the same reasons" as the Atwoods surveillance video. See Def.'s Resp. Br. at 3.
The Court again agrees with Defendant, provided the PowerPoint exhibit is properly identified and its limited evidentiary purpose is made clear. Although it comes in a different form, this exhibit is not unlike an internal document that might be prepared by an employee's supervisor to explain a recommendation for discipline of the employee to a higher-level supervisor who would decide the matter. See, e.g., Miller v. Jefferson Cty. Bd. of Cty. Comm'rs, No. 16-CV-2445-JWL, 2018 WL 1116673, *2, *5-7 (D. Kan. Mar. 1, 2018) (memorandum prepared by county employee's manager stating reasons for termination and presented to county commissioners for approval of decision was not hearsay and was relevant to show decision was not pretextual). Reasonable jurors can understand that the PowerPoint was prepared as an informational tool and provided a basis for Mr. Komiske's belief regarding Plaintiff (if witnesses so testify); jurors are unlikely to view it as findings of fact or a matter of actual truth. The Court finds that Plaintiff has not shown the PowerPoint's probative value "is substantially outweighed by a danger of . . . unfair prejudice [or] confusing the issues," as required for the exclusion of relevant evidence under Rule 403. Therefore, Plaintiff's Motion regarding the PowerPoint presentation is denied.
Plaintiff objects to the admission of audio recordings that were made of his pretermination hearings on the grounds that statements of persons other than himself are hearsay and the recordings are not fully audible. See Pl.'s Mot. at 4. Plaintiff relies on United States v. McIntyre, 836 F.2d 467, 469-70 (10th Cir. 1987), where the court of appeals discussed the procedure for determining the admissibility of partially inaudible tape recordings. Defendant responds only by arguing that each audio tape recording "is a recitation of the facts as they appeared to the person making the decision at issue" and "other than the attorneys, each person present at the [pre-termination] meeting is listed as a witness by Plaintiff or Defendant." See Def.'s Resp. Br. at 3, 4.
The Court finds Defendant's argument to be nonresponsive to the concerns raised by Plaintiff's Motion. First, Defendant does not address the primary objection raised by Plaintiff regarding the quality of the recordings or the audibility of the statements captured by the recordings. Little would be gained from listening to partially inaudible recordings of meetings that were attended by trial witnesses who will testify about what occurred or what was discussed during the meetings.
Further, if the exhibits will be offered to show the truth of statements in the audio recordings, Defendant does not suggest any hearsay exception that would permit the admission of statements by persons other than Plaintiff.
For these reasons, the Court finds that Plaintiff's Motion to prohibit Defendant from using the audio recordings during its case in chief should be granted.
Plaintiff objects to two documents that Defendant intends to offer as evidence of an oral reprimand of Plaintiff dated August 10, 2012, and a written reprimand issued August 23, 2012. Plaintiff contends one document is inaccurate in that the written reprimand was withdrawn, and use of the documents would be improper under the collective bargaining agreement (which imposes a time limit for consideration of reprimands for disciplinary purposes). Plaintiff argues that admitting these documents would be "unfairly prejudicial and inherently confusing and misleading" under Rule 403 and that they constitute "improper character evidence." See Pl.'s Mot. at 5, 6.
Defendant contends the reprimands did not form a basis for Plaintiff's termination and will not be offered to support the decision, but will be offered only to rebut Plaintiff's testimony that he was engaging in the same conduct that a prior supervisor had approved. Defendant contends the reprimands show Plaintiff had been previously been warned about the alleged misconduct.
On the present record, the Court lacks sufficient information to evaluate the parties' arguments, particularly Plaintiff's contention that the reprimands constitute character evidence under Rule 404(a).
As part of Defendant's investigation into whether Plaintiff was performing the activities recorded on his work logs, Defendant created video recordings that allegedly "show the condition of a sewer line after Plaintiff claims he washed it and after it was washed by another Sewer Line Maintenance crew." See Def.'s Resp. Br. at 5 Plaintiff objects to the admission of these recordings, primarily on the ground of hearsay.
Plaintiff objects on hearsay grounds to the admission of an audio recording of an administrative hearing conducted before the Oklahoma Employment Security Commission (OESC) regarding his claim for unemployment benefits.
Plaintiff objects on grounds of hearsay and relevance to the admission of audio recordings of a pre-termination hearing and an OESC hearing regarding another employee, Bill Fox. Defendant makes the same arguments as it did regarding the recordings of Plaintiff's pre-termination and OESC hearings. See Def.'s Resp. Br. at 6-7. For the same reasons (lack of a non-hearsay purpose), the Court finds that Plaintiff's Motion to exclude the audio recordings of Mr. Fox's hearings from Defendant's case in chief should be granted.
Plaintiff's termination was the subject of an arbitration and an EEOC charge that both resulted in rulings favorable to Plaintiff. Defendant objects to the admission of the EEOC's Determination and the arbitrator's Opinion and Award on grounds of relevance under Rules 401 and 402, and undue prejudice under Rule 403.
The EEOC investigated Plaintiff's charge of discrimination and issued a written decision dated August 3, 2016, finding "reasonable cause that [Plaintiff] was terminated based on his age (52 at the time)." See Pl.'s Resp. Def.'s Mot. Summ. J., Ex. 1 [Doc. No. 28-1] (hereafter, "Determination"]. Defendant asserts that the EEOC's Determination "is irrelevant, contains inadmissible hearsay, and lacks trustworthiness" and "its probative value is substantially outweighed by the danger of unfair prejudice." See Def.'s Mot. at 2, 4.
Although not entirely clear, Defendant's hearsay argument seems to be that EEOC decisions are inherently unreliable and lack sufficient trustworthiness to be treated as public records under Rule 803(8).
In this case, the Court finds that Defendant has not carried its burden to show a lack of trustworthiness in the EEOC's Determination that would disqualify it from being treated as a public record. Defendant merely points to one part of the Determination as unreliable: a finding that Plaintiff and his co-worker were following customary practices approved by a supervisor when they engaged in conduct that Defendant targeted for discipline. Defendant contends this statement is inconsistent with certain evidence, but it is unclear whether that evidence was presented to the EEOC during its investigation. Plaintiff contends the evidence was not before the EEOC; Defendant has not disputed this contention. Therefore, the Court finds that EEOC's Determination is admissible under the public records exception to the hearsay rule.
As to Defendant's Rule 403 objection, the rule in this circuit is that district "courts have discretion in deciding whether to admit EEOC determinations into evidence." Nulf v. Int'l Paper Co., 656 F.2d 553, 563 (10th Cir. 1981); accord Tuffa, 644 F. App'x at 855; White, 552 F. App'x at 848; see also Cervantes, 1 F. App'x at 765 ("a district court has discretion whether to admit an EEOC probable cause determination at trial"). Where the determination merely summarizes the parties' evidence and reaches a conclusion, one might reasonably question the probative value of the exhibit and find its value is substantially outweighed by a likelihood that the jury would misunderstand a reasonablecause finding or give undue deference to the EEOC's expertise in discrimination matters. See, e.g., Denny v. Hutchinson Sales Corp., 649 F.2d 816, 822 (10th Cir. 1981) (affirming exclusion of agency probable-cause finding under Rule 403); see also Hall, 988 F.2d at 1058 (affirming exclusion of agency no-cause finding because "all the evidentiary matter before the [agency] could be presented to the jury" and "the only purpose to be served by admitting into evidence the [agency] report would be to suggest to the jury that it should reach the same conclusion") (internal quotation omitted). In this case, the EEOC's Determination consists of a brief two-page summary of the EEOC charge, facts shown by evidence submitted during the investigation, and conclusory findings of age discrimination but no race discrimination or retaliation. Thus, the Determination appears to have little probative value.
However, Plaintiff asserts that the probative value of the EEOC's Determination is not limited to the agency's finding of probable age discrimination. Plaintiff contends "the EEOC determination contains non-cumulative evidence and independent relevance for which there is not [sic] evidentiary alternative." See Pl.'s Resp. Br. at 8. As one example, Plaintiff points to a statement in the Determination that Defendant confirmed to the EEOC "that other employees had not been treated in this manner," referring to hiring private investigators and using GPS tracking to monitor Plaintiff's activities (Determination at 1), but Defendant has later taken a different position. See Def.'s Reply Br. Supp. Mot. Summ. J. [Doc. No. 29] at 4 & Ex. 20 [Doc. No. 29-2] (providing testimony that Defendant's police department investigated and used GPS tracking to determine misconduct by parking enforcement officer). Plaintiff also points to the EEOC's finding that he and Mr. Fox "were never notified or warned that they may have been violating any of [Defendant's] policies prior to their immediate suspension" (Determination at 1) as showing that Defendant did not provide the EEOC with any evidence of prior discipline, which is inconsistent with Defendant's proposed evidence in this case of prior reprimands. Plaintiff argues that the EEOC's Determination thus provides "evidence of admissions, shifting positions and inconsistent explanations," which provides proof of pretext and lack of credibility. See Pl.'s Resp. Br. at 10.
At this point, Plaintiff's contentions stand unrefuted and are supported by the case record. Therefore, accepting Plaintiff's representations regarding the likely trial evidence, the Court finds that the EEOC Determination should be admitted. Defendant's Motion regarding the EEOC's Determination is denied.
In accordance with the collective bargaining agreement, the union initiated an arbitration when a grievance regarding Plaintiff's termination was unsuccessful in obtaining relief. After a hearing, the arbitrator found that Plaintiff had been wrongly discharged and ordered reinstatement with back pay and restoration of other benefits. Defendant sought judicial review of the arbitration award; the state court case remains pending on appeal. See Am. Fed'n of State, Cty. & Mun. Emps., Local 2875 v. City of Norman, No. 114,640, Order (Okla. Civ. App. Sept. 16, 2016) (affirming district court's order vacating award but remanding with directions to remit matter to arbitrator for decision regarding progressive discipline), cert. granted (Mar. 27, 2017).
Defendant asserts the arbitrator's decision "is wholly irrelevant" because it has been vacated. See Def.'s Mot. at 4. This assertion is inaccurate; the question of whether the arbitrator's award should be confirmed or vacated has not reached a final disposition in the state court litigation. Like its objection to the EEOC's Determination, Defendant also asserts the arbitrator's opinion "is unreliable" because the arbitrator ignored or misstated certain evidence. See id. at 4-5. The Court understands this assertion to raise an objection based on the public records exception to the hearsay rule. See supra note 11. As with the EEOC's Determination, the Court finds that Defendant has not carried its burden to show a lack of trustworthiness in the arbitrator's opinion that would disqualify it from being treated as a public record.
Finally, Defendant asserts that any "probative value [of the arbitrator's opinion] is outweighed by the risk of unfair prejudice." Id. at 4. Plaintiff admits "the arbitrator did not purport to decide any issues of age discrimination." See Pl.'s Resp. Br. at 12. But he argues that "the arbitrator did decide whether there was sufficient cause for termination" and that the arbitrator's finding on this issue "is obviously relevant since it goes directly to the employer's explanation/pretext prongs of the McDonnell Douglas analysis." Id.
After reviewing the arbitrator's Opinion and Award [Doc. No. 1-3] and considering the parties' arguments and pertinent legal authorities, the Court finds little, if any, probative value in the opinion and that its value is substantially outweighed by a danger of unfair prejudice. Neither party acknowledges Supreme Court precedent holding that an "arbitral decision may be admitted as evidence [in an employment discrimination case] and accorded such weight as the court deems appropriate." Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 (1974). Although the Court in Alexander adopted no standards to govern the trial court's discretion, it offered the following guidance:
Id. at 60 n.21. Consideration of these factors in this case leads the Court to conclude first that, as acknowledged by Plaintiff, the arbitrator's opinion says nothing about the possibility that Defendant's conduct was motivated by age discrimination. On the other hand, there is a real possibility that the jury would be swayed by the arbitrator's opinion regarding the fairness or adequacy of Defendant's decision-making process and the wisdom of its termination decision. These are improper considerations for the jury in determining the issues of pretext and age discrimination that will be presented for decision at trial. Therefore, the Court finds that the arbitrator's Opinion and Award should not be admitted into evidence, even though it will necessarily be referred to during the parties' arguments and presentation of relevant evidence.
In summary, the Court rules on the issues presented by the parties' Motions in Limine as follows:
IT IS THEREFORE ORDERED that Plaintiff's Motion in Limine [Doc. No. 42] is GRANTED in part and DENIED in part, and Defendant's Motion in Limine [Doc. No. 51] is GRANTED in part and DENIED in part, as set forth herein.
IT IS SO ORDERED.
The Court does not view the collective bargaining agreement (CBA) governing Plaintiff's employment as a contested exhibit because, although he purports to object to its admission, the CBA is listed in Final Pretrial Report by both parties (Pl.'s Ex. 18, Def.'s Ex. 1) and the parties agree that parts of the CBA are relevant and admissible. See Pl.'s Mot at 1; Def.'s Resp. Br. at 1-2. The Court is confident that counsel can, through reasonably cooperative efforts, reach a mutual agreement regarding an appropriate CBA exhibit to be used at trial.