Opinion
No. 4:99CV3168.
February 17, 2000.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION IN LIMINE
The defendant moves in limine to bar certain matters from trial on the grounds of relevance and potential prejudice pursuant to Federal Rules of Evidence 401, 402, and 403. (filing 34). First, the defendant's motion asks that evidence of the charges of discrimination filed by other employees be excluded, and that the plaintiff's right to sue letter from the United States Equal Employment Opportunity Commission be excluded. The plaintiff does not oppose such exclusions. Therefore, I shall exclude such evidence from trial. Second, the defendant's motion asks that evidence of events that transpired prior to the promotion of Sandy Linder to the position of facility manager be excluded, as well as events of unlawful discrimination based on race and gender, not related to the plaintiff. The plaintiff opposes such exclusions.
The first issue is whether evidence of events that transpired prior to the promotion of Sandy Linder to the position of facility manager should be excluded on the grounds of relevance. Title VII prohibits employers from discharging an employee because of her sex or race. 42 U.S.C. § 2000e-2(a)(1). "A plaintiff may prove such disparate treatment by showing that she was treated less favorably than similarly situated employees who are not in the plaintiff's protected class." Stanback v. Best Diversified Products, Inc., 180 F.3d 903, 910 (8th Cir. 1999). So, to succeed on her claim, a plaintiff must produce "` specific tangible evidence' showing a disparity in the treatment of similarly situated employees." Id. (citing Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1109 n. 4 (8th Cir. 1998)). A plaintiff has the burden of proving that she and the other employees, who are not members of a protected class, were "similarly situated in all relevant respects." Harvey v. Anheuser-Busch, 38 F.3d 968, 972 (8th Cir. 1994). This means that a plaintiff must show that she and the other employees were involved in the same or similar conduct, that is, conduct of "comparable seriousness," but that she was subjected to a more severe form of discipline. Lynn v. Deaconess Medical Center-West, 160 F.3d 484, 488-89 (8th Cir. 1998). Moreover, she must show that the same decision-maker was involved in the disciplinary actions because "[w]hen different decision-makers are involved, two decisions are rarely `similarly situated in all relevant respects.'" Harvey, 38 F.3d at 972.
At the time the plaintiff was discharged from her employment with the defendant, Sandy Linder was the facility manager. As facility manager, Linder was responsible for the production of the site. To this end, she was involved in all personnel decisions that resulted in the termination of an employee, including the decision to discharge the plaintiff. In fact, Linder asserts that she had the final word, as facility manager, in such personnel decisions. However, she was not the sole decision-maker in the termination process.
To better understand the role of Linder as facility manager in the termination process, it would be beneficial to examine the role of each player. At the initial stage, the defendant has numerous supervisors that control and regulate an employee's job performance in a particular area as well as his or her behavior. A supervisor, through the use of guidelines, has the ability to discipline or reprimand employees for most behavior. However, a supervisor has no authority to terminate an employee. If an employee needs to be terminated as a result of his or her conduct, a supervisor must refer the matter to the human resources department. At the second stage, the human resources department investigates the referral and issues a report and recommendation to terminate or not. At the final stage, the human resources department's report and recommendation are taken to the facility manager, who makes a decision on whether or not to terminate. The facility manager's decision is final. That said, however, if the human resources department disagrees with the decision, it may appeal to some higher power that rests outside the facility.
It is unclear whether a supervisor's referral to the human resources department involves even a hint of discretion, or whether it is mandated by the guidelines (in other words, the defendant's guidelines instruct that if `x' happens, then a supervisor must refer a situation to the human resources department). If a supervisor is a true decision-maker with respect to a referral for termination, then his or her decision not to refer is significant. For example, the plaintiff may be able to establish that other employees who engaged in conduct of comparable seriousness were not referred to the human resources department for termination by the same supervisor that referred her. The other employees and their conduct, then, would never have been subject to an investigation by the human resource department. More important, the other employees and their conduct would never have been before the facility manager. Thus, the other employees would not have been subject to the final decision of the facility manager. In short, if a supervisor is a true decision-maker, then who was the facility manager at the time of a decision not to refer a situation to the human resources department may not be relevant. This is only true, however, if the more favorable treatment occurred at the supervisory level.
In addition, the human resources department, it seems, has a pivotal and independent role in the termination of an employee. It is the sole obligation of the human resources department to investigate a supervisor's referral for termination. The human resources department, through an investigator, interviews witnesses. The investigator then distills her findings into a report, and issues her report and a recommendation to the facility manager. The facility manager, it appears, does not conduct an independent investigation. Instead, the facility manager relies on the human resources investigator. This may be important. For example, the plaintiff may be able to show that unlawful discrimination rests in the human resources department — that Zita Scheiding, the human resources investigator in this case, investigated other employees who engaged in conduct of comparable seriousness, but nonetheless structured her report in such a way to support a recommendation not to terminate. In that case, the human resources investigator may be the proper focus of the charge of unlawful discrimination — was the investigation conducted or the report made in a discriminatory manner? If so, and the plaintiff is able to establish that the influence of the human resources investigator's report or recommendation is strong enough that it may control the decision of the facility manager, whoever it may be, then the identity of the facility manager at the time of a decision to terminate an employee may not be relevant.
Of course, I understand that the scenarios detailed above may not be representative of the termination process. A supervisor may not be a true decision-maker. The human resources investigator's report and recommendation may not influence the ultimate decision to terminate or not to terminate an employee. But I believe, based on the evidence before me, that these stages of discrimination are possible. As a result, I am not willing to exclude the proposed evidence on the grounds of relevance.
Even so, the defendant contends that the probative value of such evidence is outweighed by the prejudice it would cause. Rule 403 provides that I may exclude even relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403. I will make quick work of this. This evidence is not the type that Rule 403 was meant to exclude. This evidence is at the heart of the plaintiff's prima facie case of disparate treatment. It is also evidence of pretext. Therefore, I find that evidence is relevant and essential to the plaintiff's case and hence not excludable on this ground. The motion shall be denied.
The second issue is whether events of unlawful discrimination based on race and gender, not related to the plaintiff should be excluded on the grounds of relevance. In particular, the defendant requests that I exclude evidence of other employees conduct that is not of comparable seriousness, and that I exclude evidence of subsequent discipline unless the same decision-maker was involved in the discipline of the other employees and the plaintiff (the latter aspect is similar to the request in the first issue above). I agree with the defendant that such evidence is not relevant as to the plaintiff's prima facie case of disparate treatment, or her illustration of pretext. At this time, however, I do not know what evidence will be offered at trial, nor do I know the context it will be offered. In its motion, the defendant asks that I exclude a large number of incidents that involve other employees that it alleges are not relevant, but it cites only one example. The example appears to be irrelevant and excludable, but I am left to discern the rest. As a result, I am uncomfortable with the blanket exclusion that the defendant requests in its motion. When the similarity of the situations of the other employees has been shown, or not shown, I shall be in a position to determine the admissibility of the evidence.
IT IS THEREFORE ORDERED that the defendant's Motion in Limine, filing 34, is granted in part and denied in part.