Opinion
CIVIL ACTION No. 01-CV-3427
July 17, 2003
MEMORANDUM AND ORDER
Presently before the Court is a Motion in Limine filed by Defendant GMAC Commercial Mortgage Corporation ("GMAC") to exclude certain evidence and expert witnesses proffered by Plaintiff John M. Ofsharick ("Ofsharick") in connection with his reverse sex and age discrimination claim filed in this Court. Ofsharick, formerly employed as the Director of Training for GMAC's Residents Advantage/Tenant Services Division ("Tenant Services"), was discharged after GMAC sold the Tenant Services Division to an independent company. Ofsharick contends that, shortly after his separation from GMAC, he applied for a position with GMAC's Training and Development Division, but, in violation of federal and state law, was provided neither an opportunity to interview nor hired because of his sex and age.
In the instant motion, GMAC requests that this Court preclude Ofsharick from offering: (1) evidence or argument concerning the sex and/or age of employees working in GMAC's Human Resources Department; (2) testimony from former GMAC employee William R. Mawhinney, Jr. ("Mawhinney"); (3) expert testimony from Dr. Karen Cherwony ("Dr. Cherwony"); (4) expert testimony from Dr. Ward Brian Zimmerman ("Dr. Zimmerman"); and (5) the EEOC Letter of Determination finding that GMAC committed violations of federal anti-discrimination laws. For the following reasons, GMAC's Motion in Limine is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
Since this Court has already detailed the full factual background of the instant case in our October 30, 2002 Memorandum and Order dismissing GMAC's summary judgment motion, we provide only a brief recitation of the facts pertinent to GMAC's Motion in Limine.
On April 1, 1997, Ofsharick was hired by GMAC as the Director of Training for its Tenant Services Division, a GMAC marketing company that provided services and products to apartment residents, and earned an annual salary of approximately $120,000.00. In or around the summer of 1999, GMAC sold the Tenant Services Division to U.S. Online Holdings, Inc. ("U.S. Holdings"), a corporate entity separate from GMAC. On July 6, 1999, as a result of the sale to U.S. Holdings, Ofsharick, who was 54 years old at the time, and other Tenant Services' employees were discharged from employment with GMAC. Ofsharick does not dispute the circumstances involving his termination from GMAC.
Prior to the sale of Tenant Services, GMAC conducted several meetings with affected employees to inform them of the status of the impending sale and to explain its impact upon their employment with Tenant Services. According to Ofsharick, during a meeting in May 1999, Linda Pickles ("Pickles"), a GMAC Human Resources Officer, and David Creamer, GMAC's Chief Executive Officer, informed these employees that GMAC would make every effort to place any employees discharged as a result of the sale to U.S. Holdings in other positions within GMAC.
Prior to his discharge from Tenant Services, Ofsharick attempted to secure employment in other GMAC businesses. Upon learning of an opportunity within GMAC's Training and Development Department, in June 1999, Ofsharick met with Pickles to discuss the possibility of working as a training specialist. The salary for this position amounted to approximately $40,000 annually. Although Ofsharick ultimately told Pickles that he was not interested in the position and unwilling to accept such a pay decrease, Ofsharick informed Pickles that he was willing to take some salary cut in order to continue working for GMAC.
On September 7, 1999, nearly two months after Ofsharick left GMAC's employ, GMAC terminated Mawhinney, its Vice President of Training and Development. After his discharge, GMAC decided that it would replace Mawhinney' s position with the lower level position of Training and Development Manager. Accordingly, on September 12, 1999, GMAC posted an advertisement in an area newspaper, The Philadelphia Inquirer, for the Training and Development Manager position. Upon learning of this position and believing he was qualified, Ofsharick sent an e-mail message expressing his interest in applying for the position to GMAC's staffing coordinator, Lisa D'Angolell, and copied the message to Pickles. GMAC did not respond to Ofsharick's e-mail message nor did Ofsharick receive an interview for the position. On October 18, 1999, GMAC offered the Training and Development Manager position to Sandra Morris, a 39-year old woman, who accepted the job at a starting salary of $60,000. Ofsharick was a 54-year old man at the time.
Ofsharick holds a bachelor's degree in Spanish from Temple University and earned a master's degree in adult education from the University of Georgia. (Ofsharick Dep. at 8-9.)
II. DISCUSSION
GMAC argues that evidence pertaining to the statistical makeup of GMAC's Human Resources Department, the testimony of former employee Mawhinney, and the EEOC Letter of Determination are, inter alia, irrelevant, overly prejudicial and should not be admitted under Federal Rules of Evidence 402 and 403. Further, GMAC contends that testimony and reports generated from proffered experts Dr. Cherwony and Dr. Zimmerman must be precluded because their expert opinions will not "assist the trier of fact to understand the evidence or to determine a fact in issue" as required under Federal Rule of Evidence 702. We discuss each of GMAC's objections in turn.
A. Statistical Information
GMAC contends that Ofsharick should be precluded from introducing statistical evidence of the sex and/or age composition of GMAC employees working in its Human Resources Department because these statistics are not probative of unlawful discrimination. Ofsharick counters that he does not intend to introduce a statistical analysis of GMAC's workforce, but merely seeks to provide evidence demonstrating that, at the time Ofsharick sought the Training and Development Manager position, and other times relevant to this litigation, this department was mostly, or, at times, entirely populated by females in their twenties and thirties. Ofsharick contends that this evidence is relevant because it supports his allegation that Pickles, in seeking to maintain a workforce comprised only of young women, intentionally discriminated against him by failing to interview him for this position. We agree with Ofsharick and find that this evidence is relevant under Federal Rule of Evidence 401 as it has a tendency to make an inference of discrimination more or less probable in support of his discrimination claim.
Apart from a few exceptions, Federal Rule of Evidence 402 provides that "[a]11 relevant evidence is admissible." Fed.R.Evid. 402. Evidence is relevant if it 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." Fed.R.Evid. 401. The United States Court of Appeals for the Third Circuit advises:
As noted in the Advisory Committee's Note to Rule 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." Because the rule makes evidence relevant "if it has any tendency to prove a consequential fact, it follows that evidence is irrelevant only when it has no tendency to prove the fact." 22 Charles A. Wright Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5166, at 74 n. 47 (1978) (emphasis added). Thus the rule, while giving judges great freedom to admit evidence, diminishes substantially their authority to exclude evidence as irrelevant. Id. § 5166, at 74.Blancha v. Raymark Industries, 972 F.2d 507, 514 (3d Cir. 1992). As the Third Circuit commented, the definition of relevance under Rule 401 was not intended to "raise a high standard." Hurley v. Atlantic City Police Dep't., 174 F.3d 95, 109-10 (3d Cir. 1999). Thus, under the minimum standard of relevancy, we find that evidence relating to the sex and age make-up of the Human Resources Department under Pickles management at periods of time pertinent to this litigation, is relevant to Ofsharick's contention that Pickles favored hiring younger females for Human Resources positions and did not offer Ofsharick an interview on the basis of his sex and age.
Although GMAC argues that the sex and age composition of the Human Resources Department is irrelevant because Ofsharick fails to identify the sex and age characteristics of its applicants, we find that GMAC will have ample opportunity at trial to rebut Ofsharick's inference of discrimination by introducing evidence to explain how the Human Resources Department came to be comprised of women in their twenties or thirties and few men at periods of time relevant to Ofsharick's claim. Since we find that evidence relating to the sex and age composition of GMAC's Human Resources Department at times pertinent to Ofsharick' s claim is probative pursuant to Rule 402, we deny GMAC's motion to exclude this evidence.
B. Mawhinney's Testimony
GMAC next objects to admission of testimony from or evidence pertaining to Mawhinney, a former GMAC employee, on grounds of relevance under Rule 402 and on the basis that his testimony will cause unfair prejudice to GMAC under Rule 403. In a letter dated July 5, 2003, Ofsharick's counsel advised the Court that he is withdrawing Mawhinney as a potential witness in this case. We accept Ofsharick's withdrawal and, therefore, grant GMAC's motion in limine to preclude testimony and evidence relating to the circumstances of Mawhinney's termination from GMAC.
GMAC also requests that this Court exclude evidence relating to other unidentified charges of discrimination filed against GMAC and not just Mawhinney's claims. Since Rule 403 requires a fact-intensive balancing test to assess the probative value of specific evidence sought to be introduced, we cannot grant GMAC's request to exclude all evidence pertaining to other speculative charges of discrimination filed against GMAC and, therefore, limit our Memorandum and Order to exclude only that evidence relating to charges of discrimination filed by Mawhinney.
C. Dr. Cherwony's Testimony
GMAC next objects to the admissibility of the report and testimony from Dr. Cherwony, a human resources expert offered by Ofsharick to assess whether GMAC followed prudent human resources practices when it did not interview Ofsharick for the Training and Development Manager position. GMAC does not seem to dispute Dr. Cherwony's qualifications as an expert in the area of human resources, but contends that her opinion must be excluded because it is not based on any standard practices or readily-adhered to employment procedures and argues that a lay juror is capable of assessing the reasons underlying Pickles' decision not to interview Ofsharick without the expert's assistance. In response, Ofsharick merely recites the applicable law governing the admissibility of expert testimony and asserts that Dr. Cherwony is sufficiently qualified to give an expert opinion on human source matters. Although Dr. Cherwony may be qualified to opine on matters relating to the field of human resources, we find that her testimony and report must be excluded under the clear language of Federal Rule of Evidence 702 and the United States Supreme Court's analysis of that rule in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589 (1993). Federal Rule of Evidence 702 provides that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Evid. 702. In Daubert, the Supreme Court further clarified Rule 702 and held that a court acts as a gatekeeper in assessing whether expert testimony will assist the trier of fact, and must make an initial determination that the expert testimony offered is fundamentally relevant and reliable. 509 U.S. at 589. "Reliability focuses on trustworthiness: the proffered evidence must be based on valid techniques . . . By contrast, relevance requires a valid connection between the proffered evidence and a fact in issue." Dunn v. Hercules, Inc., No. Civ. A. 93-4175, 1995 U.S. Dist. LEXIS 1891, at *4 (E.D. Pa. Feb. 14, 1995). To assess the reliability and relevance of expert testimony, Daubert sets forth a non-exhaustive list of factors including whether: "1) a theory or technique is scientific knowledge that will assist the trier of fact; 2) the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error, and the existence and maintenance of standards controlling the technique's operation; and 4) the general acceptance of the theory or technique." Daubert, 509 U.S. at 592-93; Montgomery County v. Microvote Corp., 320 F.3d 440, 447 (3d Cir. 2002). The Supreme Court extended the Daubert analysis, which involved experts testifying to practices in the context of science and technology, to non-scientific fields in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). In the non-scientific context, the Supreme Court noted that "the factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony."Id. at 150.
In this case, we find that Dr. Cherwony's testimony and accompanying report do not meet the threshold requirement under Rule 702 that the expert opinion must "assist the trier of fact" in understanding the evidence or facts in issue. See Fed.R.Evid. 702. This Court fails to see how Dr. Cherwony's report, which does not assess whether GMAC's actions could be construed as discriminatory in comparison to its usual employment practices and provides mere conjecture that Pickles should have interviewed Ofsharick, is relevant to a juror's understanding of the case. Further, whether Pickles should have laid off or interviewed Ofsharick for a position in GMAC's Human Resources Department is not relevant to determine whether GMAC acted with discriminatory intent, and clearly not an inquiry that requires expert testimony. This Court finds that a lay juror would be capable of evaluating the facts at issue in this case to reach a determination of whether GMAC intentionally discriminated against Ofsharick without the presentation of Dr. Cherwony's testimony. Since Dr. Cherwony's expert opinion, which merely voices disagreement with Pickles decision not to interview Ofsharick, would not assist a juror in understanding the evidence or facts at issue, it must be excluded at trial.
Dr. Cherwony also comments on GMAC's decision to terminate Ofsharick from his position as the Director of Training for GMAC in July 1999. Since neither party contends that this termination resulted from discrimination, Dr. Cherwony's expert conclusion as to this employment decision is not relevant to the instant action.
Even if Ofsharick could demonstrate that Dr. Cherwony's testimony would assist a juror in assessing whether GMAC acted with discriminatory intent, her report must nevertheless be precluded because it fails to set forth the methodology Dr. Cherwony utilized in forming her conclusions such that the reliability of her testimony could be established.Daubert, 509 U.S. at 591-93; Walker v. Gordon, 46 Fed. Appx. 691, 695 (3d Cir. 2002). Although "the relevant reliability concerns may focus upon personal knowledge or experience" of the expert, in this case, it is unclear what previous knowledge or specialized experience in the human resources field Dr. Cherwony relies upon in support of her opinion. See Kumho Tire, 526 U.S. at 150. Since the methodology underlying Dr. Cherwony's conclusions is unclear and her opinion does not assist the juror in assessing Ofsharick's discrimination claim, we must preclude Ofsharick from introducing expert testimony or evidence from Dr. Cherwony.
D. Dr. Zimmerman's Testimony
GMAC also contends that any testimony presented by Ofsharick's damages expert, Dr. Zimmerman, must be excluded because it will not assist the jury and is unfairly prejudicial in light of the minimal probative value it provides. Specifically, GMAC argues that Dr. Zimmerman analyzed incorrect figures in calculating the damages Ofsharick incurred by GMAC's alleged discriminatory practices, which resulted in a wholly inaccurate damages report. Ofsharick concedes that Dr. Zimmerman relied on incorrect figures in formulating his damages report and agrees to withdraw Dr. Zimmerman as a witness. Accordingly, we accept Ofsharick's withdrawal of this damages expert witness and grant GMAC's motion in limine to exclude any testimony or reports offered by Dr. Zimmerman at trial.
E. EEOC Letter of Determination
GMAC challenges the admissibility of the EEOC Letter of Determination ("EEOC Letter"), which found that GMAC discriminated against Ofsharick on the basis of his sex and age. First, GMAC argues that the EEOC Letter is unfairly prejudicial because it would cause undue delay and jury confusion, which, balanced against its minimal probative value, weighs in favor of exclusion under Federal Rule of Evidence 403. Second, GMAC contends that the EEOC factual findings are untrustworthy and amount to legal conclusions, thus constituting inadmissible hearsay under Federal Rule of Evidence 803(8)(c). Ofsharick concedes that the EEOC Letter is not per se admissible, but argues that GMAC fails to provide a persuasive reason to preclude this evidence and is merely attempting to attack the EEOC's factual findings and conclusions. We find that, by admitting the EEOC Letter, its minimum probative value is substantially outweighed by the danger of unfair prejudice, undue delay and presenting needlessly cumulative evidence.
While other United States Circuit Courts of Appeal view EEOC Letters of Determination as per se more probative than prejudicial under Rule 403, the Third Circuit recently adopted the position that the trial court must weigh whether the EEOC Letter is more probative than prejudicial under Rule 403 when considering its admissibility. Coleman v. Home Depot, Inc., 306 F.3d 1333, 1344-45 (3d Cir. 2002). Rule 403 provides:
Although relevant, evidence may be excluded 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. The purpose of weighing the evidence under Rule 403 is to ensure that "juries are not presented with evidence that is far less probative than it is prejudicial." Coleman, 306 F.3d at 1344. In interpreting Rule 403, the Third Circuit recognized that:
Evidence should be excluded under Rule 403 only sparingly since the evidence excluded is concededly probative. The balance under the rule should be struck in favor of admissibility. Finally, we note that in determining the probative value of evidence under Rule 403, "we must consider not only the extent to which it tends to demonstrate the proposition which it has been admitted to prove, but also the extent to which that proposition was directly at issue in the case."Blancha, 972 F.2d at 516 (citations omitted). In the context of the admissibility of EEOC Letters, Coleman instructs that "relevance alone does not ensure its admissibility" and "evidence may be excluded if its probative value is not worth the problems that its admission may cause."Coleman, 306 F.3d at 1343. Factors that could substantially outweigh the relevance of the evidence include unfair prejudice, misleading the jury, undue delay and presentation of cumulative evidence. Fed.R.Evid. 403.
GMAC argues that the EEOC Letter is of little probative value because it merely recites the allegations of the parties and the largely undisputed facts of the case that will be presented at trial. The remainder of the EEOC Letter, GMAC contends, includes inaccurate facts and incorrectly concludes that because Pickles did not believe Ofsharick would accept a lower paying position, GMAC discriminated against him. GMAC argues that the EEOC's conclusion would mislead the jury to believe that by speculating that Ofsharick would not accept a lower paying position, GMAC engaged in intentional discrimination under the law.
We agree that the roughly three-page EEOC Letter has little probative value and find several troubling aspects of the EEOC Letter that weigh in favor of exclusion under Rule 403. The EEOC Letter primarily contains facts agreed upon by the parties and allegations that will be submitted at the trial. By presenting the EEOC Letter to the jury, we find that Ofsharick will unnecessarily present cumulative evidence that the jury will hear at trial. Apart from a summary of the facts and issues of Ofsharick's claim, the EEOC Letter devotes only one paragraph setting forth its conclusion:
Based on this analysis, I have determined that the evidence obtained during the investigation establishes a violation of the statutes in that the selecting official was speculative at best in presuming that the Charging Party would not accept the position of Training and Development Manager that ranged in salary from $50,000 to $75,000, and thus failed to grant him an interview and possible offer for the contested position. Further, the evidence reveals that at the time in question, no male managers directly reported to the selecting official and of the females who directly reported to the official, all were in their twenties and thirties except one.
(EEOC Letter, GMAC's Mot. Ex. F.) Since the EEOC Letter fails to identify the "the time in question" that is at issue in Ofsharick's case, and never interviewed Pickles, the selecting official, or assessed her credibility, we find that, weighed against its minimal probative value, admission of the EEOC Letter will unnecessarily waste time by forcing the parties to dispute the facts and presumptions underlying the EEOC's conclusions.
For these reasons, we are also concerned with the trustworthiness of the EEOC's findings considering its lack of investigation in issuing this report. "[S]ince trustworthiness can also become an issue at trial itself, it can bear upon the time-related factors in Rule 403." Coleman, 306 F.3d at 1346. The EEOC did not interview Ofsharick or any witness from GMAC in gathering evidence, and consulted primarily, if not exclusively, with Ofsharick' s attorney in compiling the facts underlying its conclusion. Moreover, the EEOC did not conduct a fact-finding conference before issuing its conclusions. We find that forcing GMAC, at trial, to rebut the EEOC's conclusions, which are largely based upon a cursory investigation, would result in both a waste of time and undue delay, and create essentially a "trial within a trial." Since the EEOC Letter contains little probative evidence and would serve only to prolong the trial unnecessarily and waste time, we find that exclusion of this evidence is warranted under Rule 403.
While we exclude the EEOC Letter pursuant to Rule 403, we find that Federal Rule of Evidence 803(8)(c) also applies. Rule 803(8)(c) establishes that a public report that is untrustworthy is inadmissible hearsay. Since we are concerned that the EEOC conducted an incomplete and cursory investigation of Ofsharick's discrimination charges, we find that the EEOC Letter is untrustworthy and should also be precluded under Rule 803(8)(c).
ORDER
AND NOW, this day of July 2003, in consideration of the Motion in Limine filed by Defendant GMAC Commercial Mortgage Corporation ("Defendant") (Doc. No. 16) and the Response of Plaintiff John M. Ofsharick ("Plaintiff") (Doc. No. 17), it is ORDERED that the Motion in Limine is GRANTED IN PART and DENIED IN PART to the extent that:
1. Plaintiff's request to withdrawal William Mawhinney from the list of potential witness is GRANTED.
2. Defendant's request to preclude Plaintiff from introducing expert testimony of evidence from Dr. Karen Cherwony is GRANTED.
3. Defendant's request to preclude Plaintiff from introducing the EEOC Letter of Determination is GRANTED.
4. By the agreement of the parties, Defendant's request to preclude Plaintiff from introducing the expert testimony of Dr. Ward Brian Zimmerman is GRANTED.