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concluding that the court was "at a loss to see how" anonymous responses to a survey could "possibly be admissible"
Summary of this case from OLLE v. COLUMBIA UNIVERSITYOpinion
Case No. 00-4044-RDR.
June 10, 2004
MEMORANDUM AND ORDER
This is an employment discrimination action brought by the plaintiff pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff asserts claims of sex discrimination and retaliation arising from her termination as a division director with the Kansas Department of Human Resources (KDHR). On June 10, 2004 the court held oral argument on the following motions filed by the defendant: (1) motion in limine or in the alternative to strike witnesses and exhibits previously stricken by the court; (2) motion in limine regarding the computer incident; (3) motion in limine regarding various evidentiary issues; and (4) motion in limine regarding other claims and alleged bad acts. During the hearing, the court made various oral rulings. The purpose of this memorandum and order is to memorialize the rulings made by the court.
Plaintiff was hired by the State of Kansas on August 1, 1996 as Director of Employment and Training of the KDHR. Wayne Franklin was the Secretary of Human Resources. Plaintiff was one of four division directors at KDHR. She was the only female director. On July 20, 1998 and July 22, 1998, Secretary Franklin met with plaintiff concerning her job performance. On August 21, 1998, plaintiff responded with a thirteen-page letter to Secretary Franklin. Plaintiff was terminated in September 1998.
MOTION IN LIMINE OR IN THE ALTERNATIVE TO STRIKE WITNESSES AND EXHIBITS PREVIOUSLY STRICKEN BY THE COURT
The defendant seeks an order preventing plaintiff from referring to witnesses and exhibits previously withdrawn by plaintiff or stricken by the court. Specifically, the defendant seeks an order striking (1) Kristen Crenshaw and Todd Kenney from the plaintiff's witness list, and (2) item 280 on plaintiff's final exhibit list which is identified as "[a]ll correspondence sent to Wayne Franklin by any attorneys representing KDHR."
On February 16, 2001 plaintiff filed a motion to amend her final witness list out of time by adding, inter alia, Christine Crenshaw and Todd Kinney. Subsequently, plaintiff withdrew this request and the magistrate denied the motion as moot. However, in her final witness list, plaintiff listed Christine Crenshaw and Todd Kinney as witnesses. On June 1, 2001 the defendant moved to strike item 220 of plaintiff's witness list which was "[a]ll correspondence sent to Wayne Franklin by any attorneys representing KDHR." On June 7, 2001 the court granted the motion because it was uncontested. Once again, however, the same designation resurfaced as item 280 on plaintiff's final exhibit list of December 29, 2003.
In the order filed by the magistrate, the witnesses are referred to as Kristen Crenshaw and Todd Kenney. The court assumes, because no one has suggested otherwise, that the same people are involved despite the different spelling of the names.
At oral argument on these motions, plaintiff admitted that both witnesses and the exhibit could be stricken. Accordingly, defendant's motion shall be granted.
MOTION IN LIMINE REGARDING THE COMPUTER INCIDENT
The defendant seeks an order preventing the plaintiff from presenting any evidence or making any reference to the reporting of alleged misuse of a state laptop computer checked out to A.J. Kotich; to pornography, pornographic web sites, "inappropriate" web sites or other synonyms; and to the events surrounding the report and investigation. The defendant contends that no reference should be made to any of the aforementioned matters because the court granted summary judgment on plaintiff's claim arising from this matter. The defendant argues that any mention of this matter would be prejudicial to it.
Plaintiff suggests that this incident is relevant and admissible. At oral argument, plaintiff suggested that the computer incident can be used to show discriminatory intent. She contended that the court should consider this issue at the time that the evidence is offered, not prior to trial.
The court is always reluctant to exclude evidence prior to trial. However, the court does not find, at least based upon what plaintiff has presented, that this incident is relevant in light of the claims that remain in this case. The court has already ruled as a matter of law that plaintiff cannot recover under Title VII with respect to the computer incident. With this ruling, the court determines that all references to it should be prohibited, including redacting the letter sent by plaintiff to Secretary Franklin on August 21, 1988. Even if the incident were somehow relevant, the court believes that the prejudicial effect of it outweighs any probative value. Therefore, the court finds that it should be excluded under Fed.R.Evid. 403 as well.
MOTION IN LIMINE REGARDING VARIOUS EVIDENTIARY ISSUES
The defendant seeks an order preventing the plaintiff from presenting evidence concerning any of the following: (1) alleged spoliation of evidence or documents; (2) alleged duty of KDHR to investigate and remedy complaints of discrimination and retaliation, in regard to both plaintiff's alleged complaint and the complaints by others; (3) plaintiff allegedly overheard one of defendant's counsel refer to her as a "bitch" at a break in depositions in this lawsuit; (4) the fact or content of a climate survey concerning attitudes and opinions of anonymous KDHR employees; (5) the fact or content of or alleged reasons for a Women's Issues Task Force a/k/a Issues Task Force, its creation, its dissolution, or its study topics; (6) alleged opinions or statements concerning KDHR or any of its employees, where the alleged declarant cannot be or is not identified, or is not actually testifying. The defendant suggests that these matters are irrelevant, barred hearsay, and prohibited under Fed.R.Evid. 403 and 404.
Plaintiff has responded to each of these matters as follows (in the order set forth above): (1) cannot respond because defendant's motion is too vague; (2) too vague, but in any event, should be allowed to present evidence that defendant failed to follow its own policies and procedures because it constitutes pretext; (3) should be allowed because the person who made remark was involved in decision-making that led to termination of plaintiff; (4) evidence is relevant and court should not exclude prior to trial; and (6) too vague to require a response.
The defendant has replied to three of the original issues. The defendant initially suggests in reply that its duty to investigate and remedy complaints or discrimination and retaliation is not relevant here. The defendant, relying uponRandle v. City of Aurora, 69 F.3d 441, 454-55 (10th Cir. 1995), argues that the issue of the investigation and its results are not an issue here. Rather, it suggests that the issue is whether discrimination or retaliation was present in the decision to terminate the plaintiff. The defendant next argues, relying upon Stewart v. Adolph Coors Co., 217 F.3d 1285, 1289 (10th Cir. 2000), that some statement made by a KDHR employee years after plaintiff's discharge is not admissible because it is not probative of Secretary Franklin's motive in 1998 when he made the decision to terminate plaintiff. Finally, the defendant asserts that the anonymous climate survey is not admissible because it contains anonymous comments, is double hearsay, and has nothing to do with plaintiff's discharge which occurred two years earlier.
Spoliation Issue — In the pretrial order, plaintiff makes the following allegation: "Following her discharge, documents criticizing plaintiff and her job performance were placed in her personnel file. Defendant may have engaged in spoliation of documents and evidence." However, the following is also noted in the pretrial order: "[P]laintiff stipulated during the pretrial conference that she is not making any claim for damages or other relief on this alleged possible spoliation of evidence."
Based upon the last statement, the defendant argues that since there is no claim for relief based upon alleged possible spoliation, then there is no reason for factual arguments or evidence concerning this allegation. The court agrees with the contention of the defendant. Plaintiff has been unable to identify any evidence concerning this issue. Accordingly, the court shall exclude any reference to it.
Duty to Investigate and Remedy Complaints — In the pretrial order, plaintiff states: "KDHR had a duty to investigate plaintiff's complaint, but did not"; and that "[n]o investigation of [her] charges had been made to this date, despite KHDR's knowledge of this document [plaintiff's August 21, 1998 letter] and these accusations." The defendant contends that evidence on this issue is not relevant because this is a claim for individual discrimination, not a pattern and practice case. Thus, the defendant contends that this evidence is not relevant.
The court is not inclined to exclude this evidence at this point. In Randle, the Tenth Circuit made the following statement: "The mere fact that an employer failed to follow its own internal procedures does not necessarily suggest that the employer was motivated by illegal discriminatory intent or that the substantive reasons given by the employer for its employment decision were pretextual." 69 F.3d at 454-55 (citing Ingels v. Thiokol Corp., 42 F.3d 616, 623 (10th Cir. 1994) ("To the extent there is any inconsistency at all [in following the employer's internal procedures], it only goes to process and not to purpose or motivation, and could not provide a sufficient basis for a jury to find pretext for age discrimination.")). Although this evidence is not enough to show discrimination, it might add to that finding or assist in determining the defendant's intent. Accordingly, the court shall allow this evidence and then instruct the jury on how it can be considered.
Overhearing a Comment at Depositions in this Case — In the pretrial order, plaintiff includes a statement allegedly overheard by plaintiff during a break in the depositions taken in this case on November 21, 2000, more than two years after plaintiff's termination. Plaintiff asserts that she overheard Deanne Hay, one of the attorneys representing defendant, state to Glenn Griffeth, a KDHR staff attorney, "I see what you mean, she is a bitch." From that, plaintiff suggests that Mr. Griffeth used the word "bitch" in describing her.
The defendant suggests that this comment has no probative value. The alleged statement was made years after termination of plaintiff's employment by a person with whom plaintiff never worked. Moreover, the defendant argues that it is double hearsay.
Again, the court agrees with the defendant. The court sees little or no probative value here. The court shall grant this motion and exclude any reference to this incident.
Anonymous climate survey — In 2000, KDHR conducted an anonymous climate survey of KDHR employees. This occurred under Secretary Rick Beyer. The results were then compiled by employees of the Kansas Division of Personnel Services. The defendant suggests that this survey is hearsay and has no probative value.
Once again, the court agrees with the defendant. The court is at a loss to see how this evidence can possibly be admissible. Even to the extent that it has some relevance, the court would exclude it under Rule 403 because its probative value is outweighed by its prejudicial impact.
Women's Task Force/Issues Task Force — A group of employees was formed prior to plaintiff's termination to look at advancement opportunities in the workplace at KDHR. It goal was to see what could be done to make women more promotable so as to get more women into higher level positions. This group of employees met during work hours and was paid during this activity.
The defendant argues that the task force information has no probative value and is inadmissible because this is not a failure to promote case. Moreover, the defendant points out that plaintiff held one of the top positions at KHDR.
The court shall not grant this aspect of the defendant's motion. Evidence concerning this group and the issues that they considered might produce some relevant evidence concerning the defendant's intent. Accordingly, this aspect of defendant's motion shall be denied.
MOTION IN LIMINE REGARDING OTHER CLAIMS AND ALLEGED BAD ACTS
The defendant seeks an order preventing the plaintiff from referring to or introducing evidence on any of the following: (1) sexual harassment against any person committed or allegedly committed by any State of Kansas employee; (2) discrimination against any other person, other than plaintiff, committed or allegedly committed by defendant or any State of Kansas employee; (3) retaliation as to any person other than plaintiff, committed or allegedly committed by defendant or any State of Kansas employee; (4) alleged acts of harassment or gender-based conduct or statements toward any individual other than plaintiff; (5) making or filing by any person other than plaintiff, of any claim or charge of discrimination or retaliation (internal or external, formal, written, informal or verbal), including but not limited to any internal or external investigation of any such claim, any KHRC or EEOC or similar administrative charge, any lawsuit, or of settlement of any such claim, charge or lawsuit; and (6) investigation, settlement, or result of any claim of discrimination or retaliation, including any internal or external claim, KHRC or EEOC or similar administrative charge, and any lawsuit.
Plaintiff suggests that she should be allowed to present evidence of other claims and bad acts because (1) defendant has asserted an affirmative defense that it has effective policies and procedures for receiving and handling discrimination complaints; or (2) they can show a hostile or abusive work environment; or (3) they can show discriminatory intent.
The defendant has responded that it is not using the policy or procedures as an affirmative defense. The defendant notes that it did raise this defense in its answer, but that it is no longer raised in the pretrial order. The defendant next suggests that other reasons given for using this evidence by plaintiff lack merit. The defendant notes that plaintiff has not raised a sexual harassment claim or hostile work environment, so this evidence is not relevant here where plaintiff raises only a discrimination claim based upon termination and retaliation claim. Finally, the defendant argues that this evidence is not relevant on the issue of the discriminatory intent for factual and legal reasons. The defendant notes that the various other claims and bad acts are not causally connected to plaintiff's claim in type, time, or factual basis.
Evidence of other acts is not admissible to prove the character of a person in order to show action in conformity therewith. Fed.R.Evid. 404(b). However, it is relevant and admissible to prove motive or intent. Id. But, even if the evidence is relevant, it must be more probative than prejudicial to be admissible. Fed.R.Evid. 403. The decision to exclude or admit evidence under Rule 403 is within the sound discretion of the court. Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119, 1124 (10th Cir. 1995).
The Tenth Circuit has made clear that "[a]s a general rule, the testimony of other employees about their treatment by the defendant is relevant to the issue of the employer's discriminatory intent." Spulak v. K-Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990). However, the plaintiff must demonstrate the relevance of evidence regarding other employees by showing that the evidence can "`logically or reasonably be tied to the decision to terminate [the plaintiff].'" Id. at 1156 (quotingSchrand v. Federal Pacific Electric Co., 851 F.2d 152, 156 (6th Cir. 1988)). Even if the evidence is relevant, the trial court may still exclude it if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or undue delay. Curtis v. Oklahoma City Public Schools, 147 F.3d 1200, 1217 (10th Cir. 1998).
Accordingly, testimony from other employees may be relevant in assessing an employer's discriminatory motive or retaliatory motive if the testimony establishes a pattern of retaliatory behavior or discriminatory behavior or tends to discredit the employer's assertion of legitimate motives. However, once again, for the evidence to be relevant, the plaintiff must show the circumstances involving the other employees are such that their statements can logically or reasonably be tied to the decision to terminate the plaintiff. This appears to require the same type of discrimination during the same time period under similar circumstances. See Heno v. Sprint/United Management Co., 208 F.3d 847, 856 (10th Cir. 2000).
"Discriminatory incidents which occurred either several years before the contested action or anytime after are `not sufficiently connected to the employment action in question to demonstrate pretext.'" Id. (quoting Simms v. State of Oklahoma, 165 F.3d 1321, 1330 (10th Cir. 1990)). Plaintiff can meet the similar circumstances requirement by showing that the same supervisors were involved in prior discriminatory employment actions. Id.; see also McCue v. State of Kansas Dept. of Human Resources, 165 F.3d 784, 790 (10th Cir. 1999). Finally, stray sexual comments or comments based on sex should typically not be admitted unless the plaintiff can link them to personnel decisions or the individuals making those decisions.Heno, 208 F.3d at 856.
First, it appears that the defendant is not using the policy and procedures defense. There is no mention of it in the pretrial order. Accordingly, this evidence cannot be admitted for that purpose. We next turn to the issue of these other acts as evidence of discriminatory intent or retaliatory intent. The court has carefully reviewed the circumstances of the following employees as set forth in the defendant's reply brief: Michelle St. Clair, Sue Simmons, Maria Zulaica, Heather Bizoe, Susan Kavanaugh, Chad Lopez, Randy Fisher, Kelly Mason, Bonnie Kuhn, Thelma Drayton, Linda Aldridge, Marilyn Dewitt, Larry Belcher, Jimmie Lichlyter, Carl Corona, Linda Weaver, Rosalinda Day and Caryn McCue. The court does not find that the claims and circumstances of these employees are sufficiently similar in type and time to allow their admission in this case. To the extent that some of these employees had claims that are similar to plaintiff's or arise during the time period that plaintiff was an employee, the court finds that any probative value is outweighed by their prejudicial impact. Accordingly, the court shall grant this motion at least as to the employees noted above.
The court has some concerns about the testimony of Heather Whitley and the testimony of others concerning her employment. However, at this time the court is unwilling to exclude all such testimony. The court needs to hear more about her circumstances before making a ruling.
The court notes that the defendant has pointed out that plaintiff has listed a number of witnesses who will testify about sexual harassment and gender discrimination against females in the KDHR workplace. Generally, in order for any of this evidence to be allowed, the court will need some foundation that it is logically or reasonably tied to the decision to terminate the plaintiff. The court will not allow broad testimony about gender discrimination at KDHR that is not tied to plaintiff's circumstances. This means that the other evidence must be the same type of discrimination during the same time period under similar circumstances. It is difficult for the court to exclude any testimony without some idea of its nature and basis. The court shall inform counsel that it intends to carefully examine the evidence that is attempted to be introduced.
IT IS THEREFORE ORDERED that defendant's motion in limine or in the alternative to strike witnesses and exhibits previously stricken by the court (Doc. # 174) be hereby granted.
IT IS FURTHER ORDERED that defendant's motion in limine regarding the computer incident (Doc. # 175) be hereby granted.
IT IS FURTHER ORDERED that defendant's motion in limine regarding various evidentiary issues (Doc. # 177) be hereby granted in part and denied in part as set forth in the foregoing memorandum.
IT IS FURTHER ORDERED that defendant's motion in limine regarding other claims and alleged bad acts (Doc. # 172) be hereby granted in part and denied in part as set forth in the foregoing memorandum.