Opinion
Civil Action No: 00-2277-DJW
July 2, 2002
MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Motions in Limine (doc. 121). For the reasons set forth below, the Court will grant the motion to exclude evidence regarding Martha Hutcheson's illness, but will deny the motion to exclude evidence regarding Ms. Hutcheson's 1991 performance issues.
I. Background Information
This is an employment discrimination case in which Plaintiff contends, among other things, that she was discriminated and retaliated against in violation of the Americans with Disabilities Act, 42 U.S.C. § 12111 ("ADA"). Martha Hutcheson, who is the subject of these motions in limine, was Plaintiff's supervisor when the alleged discrimination and retaliation took place. With respect to her ADA retaliation claim, Plaintiff contends that she was subjected to adverse employment actions after she complained about being required to undergo a fitness for duty evaluation and about other actions that Defendants took against her allegedly based on their misperception that she suffered from a disability.
II. Exclusion of Evidence Regarding Martha Hutcheson's Illness
Defendants move to exclude all evidence regarding Martha Hutcheson's illness, an illness from which she died following the termination of Plaintiff's employment. Defendants request, however, that they retain the right to introduce into evidence the fact that Ms. Hutcheson died before trial and is therefore unavailable to testify.
Plaintiff agrees that evidence relating to Ms. Hutcheson's illness should be excluded. The Court will therefore grant the motion in limine as to Ms. Hutcheson's illness. At trial, the parties shall be precluded from mentioning Ms. Hutcheson's illness or presenting any testimony or other evidence regarding her illness, with the exception that the parties may introduce into evidence the fact that Ms. Hutcheson died before trial so as to explain to the jury her absence from the trial.
III. Exclusion of Evidence Regarding Ms. Hutcheson's 1991 Performance Issues
Defendants also move to exclude all evidence regarding performance problems Ms. Hutcheson had in 1991. This would include evidence and documents relating to her 1991 performance review and a recommendation that she receive counseling, in which she was criticized for the manner in which she verbally reprimanded her subordinates. Defendants contend that this evidence is too remote in time, inasmuch as the alleged discrimination and retaliation against Plaintiff did not occur until 1999. They assert that this evidence is irrelevant and therefore inadmissable under Fed.R.Evid. 402. They also contend that this evidence poses the risk of prejudicing Defendants and confusing the jury and should therefore be excluded under Fed.R.Evid. 403.
A. Exclusion Based on Lack of Relevance
The scope of relevancy is bounded only by the liberal standard of Rule 401, which defines "relevant evidence" as that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." United States v. McVeigh, 153 F.3d 1166, 1190 (10th Cir. 1998) (quoting Fed.R.Evid. 401). "Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case." Fed.R.Evid. 401 advisory committee's note to 1972 proposed rules. All relevant evidence is admissible except when exclusion is called for by the Federal Rules, by the statutes, or by constitutional considerations. Fed.R.Evid. 402.
As the Tenth Circuit has noted, relevancy "incorporates notions of both materiality and probativity." McVeigh, 153 F.3d at 1190. A fact is "material" or "of consequence" when its existence "would provide the fact-finder with a basis for making some inference, or chain of inferences, about an issue that is necessary to a verdict." Id. (quotation marks and citation omitted). Evidence is sufficiently probative if it tends to show the existence of the asserted fact is "more . . . probable than it would be without the evidence." Id. (quotation marks and citations omitted). Only a "minimal degree of probativity" is required. Id.
Applying these standards, the Court finds that evidence relating to performance problems that Ms. Hutchseon had in 1991 are material and probative, particularly with respect to Plaintiff's ADA retaliation claim. To prevail on that claim, Plaintiff must first establish a prima facie case of retaliation. See Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1264 (10th Cir. 2001). To do so, Plaintiff must prove the following elements: (1) she engaged in an activity protected by the ADA; (2) she was subjected to an adverse employment action subsequent to or contemporaneous with the protected activity; and (3) a causal connection existed between the protected activity and the adverse action. Id.
Ms. Hutcheson's 1990-1991 Appraisal Summary indicates that "[s]ubordinates fear reprimands from [Ms. Hutcheson]" and that Ms. Hutcheson "displays inappropriate behavior at times." A "Performance Improvement Plan" given to Ms. Hutcheson in 1991 indicated "[i]nappropriate behavior in the workplace — reduces individuals to the point of non-productive. Insists on things being done the way [Hutcheson] wants. Disruptive/Disregard." In that same year, Ms. Hutcheson's supervisor recommended that she participate in the Employee Assistance Program, based on the following reasons:
I have received numerous complaints regarding Martha [Hutcheson's] interaction with subordinates and peers. She is perceived by staff members as exhibiting demanding, domineering, and controlling behavior. . . . There is also an underlying fear that criticism of Martha [Hutcheson] will result in repercussion from Martha [Hutcheson]."
Plaintiff contends that this type of behavior was part of a pattern of abusive and retaliatory behavior by Ms. Hutcheson, which is demonstrated by another warning she received in 1997. That warning stated:
Your behavior and the way you interact with staff has become a major departmental problem and must change immediately. Confrontational and intimidating behavior, accusations, finger pointing, verbal abuse and inability to accept disagreements or other points of view have been observed.
The Court finds that the evidence relating to Ms. Hutcheson's performance issues in 1991 is both material to and probative of Plaintiff's claim that Ms. Hutcheson had a history of retaliating against employees who disagreed with her. That, in turn, is material to and probative of Plaintiff's claim that Ms. Hutcheson (and therefore Plaintiff's employer) subjected Plaintiff to adverse employment actions for complaining about the fitness for duty evaluation and other adverse employment actions that Defendants allegedly took against Plaintiff based on a perceived disability.
In light of the above, the Court will decline to grant the motion in limine on relevance grounds.
B. Exclusion Based on Unfair Prejudice and Confusion of the Issues
Pursuant to Fed.R.Evid. 403, a court may exclude relevant evidence when "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.
The exclusion of relevant evidence under Rule 403 "is an extraordinary remedy and should be used sparingly." Joseph v. Terminix Inter'l Co., 17 F.3d 1282, 1284 (10th Cir. 1994). Consequently, "[t]he standard for exclusion under Fed.R.Evid. 403 is somewhat exacting." C.A. Assoc. v. Dow Chem. Co., 918 F.2d 1485, 1489 (10th Cir. 1990). In deciding whether to exclude evidence under Fed.R.Evid. 403, the trial judge must balance the probative value of, and need for, the evidence against the harm likely to result from its admission. Id. In doing so, the court must keep in mind that Rule 403 authorizes the exclusion of relevant evidence only when the countervailing consideration (e.g., the danger of unfair prejudice or confusion) "substantially outweighs" the probative value of such evidence. Fed.R.Evid. 403.
1. Unfair prejudice
The danger of "unfair prejudice" under Rule 403 is not simply the tendency of evidence to undermine a party's position. Rather, "unfair" prejudice is prejudice arising from the tendency of the proffered evidence to lead the jury to render findings "on an improper basis, commonly, though not necessarily, an emotional one." Fed.R.Evid. 403 advisory committee's note to 1972 proposed rules. Because one party or the other will almost always consider a piece of evidence to be prejudicial, courts generally believe that the jury is best able to determine the truth when given access to all of the relevant admissible evidence. S.E.C. v. Peters, 978 F.2d 1162, 1171 (10th Cir. 1992). In determining whether to exclude evidence because of the danger of unfair prejudice, the court should "give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value." Id. (quotation marks and citations omitted).
Defendants do not explain in what way they will be unfairly prejudiced by this evidence. They merely state the "the evidence will be . . . prejudicial under Rule 403, FRE." Doc. 121 at p. 3. The Court does not find that this evidence would tend to suggest to the jury that it render its findings based on any emotional reason or other improper basis. The Court believes that the jury should be allowed to consider this evidence and give it the value it deems appropriate. The Court will therefore decline to exclude this evidence on the basis of unfair prejudice.
2. Confusion of the issues
The danger of "confusion of the issues" arises when "circumstantial evidence would tend to sidetrack the jury into consideration of factual disputes only tangentially related to the facts at issue in the current case." United States v. McVeigh, 153 F.3d 1166, 1191 (10th Cir 1998). Defendants contend that the evidence regarding Ms. Hutcheson's 1991 performance issues could confuse the jury because Ms. Hutcheson's alleged propensity to unfairly criticize employees and take other adverse actions against them for disagreeing with her is not the equivalent of retaliating against employees for complaining about violations of the ADA.
Although the Court foresees the possibility of some confusion, the Court finds this risk to be minimal and one that does not "substantially outweigh" the probative value of the evidence. Moreover, the Court believes that any risk of confusion may be minimized by proper jury instructions. See In re: Hardesty, 242 B.R. 712, 716 (Bankr.D.Kan. 1999) (proper instructions should minimize the potential for jury confusion; evidence therefore need not be excluded on basis of jury confusion).
In light of the above, the Court will decline to exclude this evidence on the basis of confusion of the issues.
IT IS THEREFORE ORDERED that Defendants' Motion in Limine (doc. 121) to exclude evidence regarding Martha Hutcheson's illness is granted. At trial, the parties shall be precluded from mentioning Ms. Hutcheson's illness or presenting any testimony or other evidence regarding her illness, with the exception that the parties may introduce into evidence the fact that Ms. Hutcheson died before trial so as to explain to the jury her absence from the trial.
IT IS FURTHER ORDERED that Defendants' Motion in Limine (Doc. 121) to exclude evidence regarding Martha Hutcheson's 1991 performance issues is denied.