Opinion
Civ. No. 99-879, SECTION: "R" (4).
February 10, 2000.
ORDER AND REASONS
Before the Court is defendants' motion in limine, seeking to (1) exclude evidence of the "Wal-Mart incident" and Assistant Chief Corkern's divorce; (2) preclude plaintiff from seeking speculative damages; and (3) preclude plaintiff from referring to wiretaps as "illegal." For the following reasons, defendants' motion is granted in part and denied in part.
A. "Wal-Mart Incident" and Chief Corkern's Divorce
Defendants seek to preclude plaintiff from introducing any evidence relating to an accusation of payroll fraud and theft against Assistant Chief Corkern's present wife, Vicki, who is also a police officer at the Hammond Police Department, on the grounds that it is irrelevant and prejudicial. These accusations allegedly occurred while Vicki Corkern was working a detail at Wal-Mart in 1994. Plaintiff claims that the evidence is relevant to prove that she was treated differently from others similarly situated, because the incident involved both Vicki Corkern and her husband. Inasmuch as the Wal-Mart incident involves the lack of disciplinary action taken against another woman, the Court agrees that evidence of the incident is both irrelevant and prejudicial. The Court does not see how evidence that the City and/or the HPD failed to discipline another woman is relevant to prove plaintiff's disparate treatment claim, that is, that she was discriminated against on the basis of her sex. Because this episode carries little or no probative force, admitting it at trial would likely confuse and prejudice the jury. In addition, the incident occurred in 1994, years before the events that form the basis for plaintiff's claims. Therefore, the Court grants defendants' motion to exclude evidence of the Wal-Mart incident.
Defendants also seek to preclude plaintiff from introducing evidence relating to Assistant Chief Corkern's divorce, namely, correspondence indicating that the HPD failed to discipline Assistant Chief Corkern and Vicki Corkern, for their allegedly improper use of recorded telephone conversations. The Court's reasoning in the Wal-Mart incident is equally applicable here. Evidence that another female officer was not disciplined will not help plaintiff prove her disparate treatment claim. Further, this incident occurred in 1992, and is thus too far-removed from the actions in plaintiff's complaint to be relevant. Thus, the Court grants defendants' motion as to the correspondence relating to Assistant Chief Corkern's divorce.
B. Speculative Damages
Defendants seek to preclude plaintiff from recovering any damages based on their alleged delay in allowing her to take the Captain's exam, which she claims resulted in a failure to promote her to Captain. Plaintiff has styled her disparate treatment claim as a denial of promotion. In order to make a prima facie showing for such a claim, plaintiff must show that (1) she is a member of a protected class under Title VII; (2) she applied and was qualified for a promotion for which her employer was seeking applicants; (3) she was rejected despite her qualifications; and (4) afterwards, the position remained open and the employer continued to seek candidates with plaintiff's qualifications. See Munoz v. Orr, — F.3d —, 2000 WL 6156 at *3 (5th Cir. Jan. 5, 2000), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817 (1973). This Court finds that plaintiff cannot recover damages for a failure to promote claim because she could not satisfy the last three elements of the requisite prima facie showing. Specifically, plaintiff was not qualified for the position before she took the exam. Thus, she neither applied for nor was rejected from the position. In any case, even if plaintiff could make a prima facie showing, the mere possibility that she might have been promoted after she passed the exam and became qualified for the job is too speculative to warrant damages. Thus, defendants' motion is granted as to plaintiff's speculative damages. Plaintiff may, however, introduce evidence of the delay in taking the exam in order to show the alleged pattern and practice of harassment and discrimination by defendants.
C. "Illegal" Wiretaps
Defendants seek to preclude plaintiff from referring to certain recordings of phone calls she made from the Hammond Police Department as "wiretaps," "illegal," "wrongful," or from insinuating that they were illegal. Plaintiff responds that the HPD has a policy that allows phones to be recorded only for a legitimate law enforcement purpose, that is, in the ordinary course of duties, and that because plaintiff's private conversations were not for such a purpose, the interception was wrongful and illegal. Defendants aver that the HPD records all incoming and outgoing telephone calls from the department's phone system indiscriminately, except calls made from phones in the offices of the Chief, Assistant Chief and Captains. The federal wiretapping statute excludes from coverage
any telephone . . ., equipment, or facility, or component thereof, . . . being used . . . by an investigative or law enforcement officer in the ordinary course of his duties.18 U.S.C. § 2510(5)(a). In the context of phone calls made to or from phones within the police department, courts have reasoned that
police departments commonly have recorded systems due to the need to preserve and to accurately recall messages pertaining to emergencies or to official police business . . . such a system indiscriminately and routinely records all activities on established designated lines, and is not comparable to the selective use of recording equipment that eavesdrop in telephone conversations.Knight v. Dept. of Police, 619 So.2d 1116, 1119 (La.App. 4th Cir. 1993), quoting Jandek v. Village off Brookfield, 520 F. Supp. 815 (N.D. Ill. 1981) (holding recording did not violate Fourth Amendment or any statutory provisions). Thus, to the extent that the HPD indiscriminately recorded incoming and outgoing phone calls, its policy is in the ordinary course of police business. Accordingly, plaintiff may not refer to the recorded conversations at issue-particularly in her opening statement-as wrongful or illegal, nor may she imply that they are wrongful or illegal, unless and until she introduces evidence at trial that the HPD's policy was not to record all calls, but rather specifically targeted plaintiff. Thus, defendants' motion is granted as to the recorded telephone conversations at this time. Plaintiff may, however, argue that defendants misused the information they collected by recording plaintiff's conversations, even if the calls were lawfully recorded.
New Orleans, Louisiana, this 9th day of February, 2000.