Opinion
Civ. No. 99-0528 SECTION: E/2.
March 17, 2000.
RULING ON MOTION
Plaintiff Leon Penn ("Penn") has filed a motion in limine to exclude character evidence, on which he seeks an expedited hearing. An expedited hearing was granted and the matter was considered. Plaintiff seeks to prohibit defendants from calling witnesses or otherwise introducing evidence of plaintiff's job performance subsequent to his discharge from Riverboat Services, Inc., contending that this falls under the category of "character" evidence.
Plaintiff was fired by defendant Robert Heitmeier and his company, Riverboat Services, from his position as a seaman aboard the Star Casino in New Orleans. Penn filed a charge of racial discrimination with the Equal Employment Opportunity Commission. The issues involved in this charge were settled and Heitmeier agreed to rehire Penn and promoted him to mate. Heitmeier had obtained the contract to provide marine crew services to Bally's Casino aboard the Bally's boat, the M/V BELLE OF NEW ORLEANS. Penn was assigned as mate aboard that vessel.
The captain of the vessel, Dennis O'Leary, has stated in an affidavit that other personnel working for Riverboat Services encouraged him to write Penn up so that he could be fired, and used racial epithets to describe Penn, an African-American. Ultimately, O'Leary was fired and eventually, Penn was also fired. Defendants assert that the reason Penn was fire the second time by Heitmeier was because he refused to navigate the vessel in inland waters.
Defendants have conducted extensive discovery regarding Penn's job performance at subsequent jobs, including Vessel Management Services, Inc., and Cudd Pressure Control. At least one of his employers has provided information that Penn handled the boat well in open waters, but expressed reservations handling it in inland waters.
Plaintiff seeks exclusion of all evidence regarding Penn's job performance at subsequent jobs, contending that it is inadmissible "character" evidence under Rule 404 of the Federal Rules of Evidence, and alternately, it is unduly prejudicial and subject to exclusion under Rule 403 of the Federal Rules of Evidence. Rule 404 enunciates the rules concerning the admissibility of character or trait of character evidence. Rule 403 allows the Court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, issue confusion, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The core issue in this cause of action brought under Title VII is whether the defendant's discharge was motivated by retaliation or racially motivated. In order to establish a prima facie case for unlawful retaliation or racially motivated employment decisions under Title VII, 42 U.S.C. § 2000e-3(a), plaintiff must prove (1) that he engaged in activity protected by Title VII, or that he is a member of a protected racial group; (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse employment action. Grimes v. Texas Dept. of Mental Health, 102 F.3d 137, 140 (5th cir. 1996); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). In the case of a racially motivated employment decision, in order to establish a prima facie case, plaintiff must also show that he was replaced by someone not in the protected category. An employee is engaged in Title VII protected activity if he has "opposed any practice made an unlawful employment practice" by Title VII or "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VII. Grimes, 102 F.3d at 140, quoting Long, 88 F.3d at 304.
If the plaintiff establishes a prima facie case of retaliation or racial discrimination, an inference of discrimination is raised and the burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the challenged employment action, here termination. If the defendant meets its burden of production by evidencing a reason which, if believed, would support a finding that it did not act in a discriminatory manner, then the inference of discrimination raised by the prima facie case is erased. However, the plaintiff still must prove ultimately that the defendant intentionally discriminated against him, although if plaintiff disproves the defendant's proffered reason for the adverse action, the factfinder may, but is not required to, infer a discriminatory motive. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-511, 113 S.Ct. 2742, 2747-2749 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803-805, 93 S.Ct. 1817, 1825 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-57, n. 10, 101 S.Ct. 1089, 1094-95, n. 10 (1981); Grimes, 102 F.3d at 140.
Here defendant has offered a defense to plaintiff's Title VII case that, if accepted, would be a legitimate, non-discriminatory reason for his discharge, i.e., plaintiff would not navigate the vessel and it was a necessary part of his job. Plaintiff's subsequent job performance on this very point is highly relevant to the defendant's defense. It is not character evidence, i.e., the mental and ethical traits marking and individualizing a person, but fact based, eye-witness evidence of how he performed in similar jobs. The admission of such evidence is not governed by FRE 404. Neither does the Court find it excludable under FRE 403, as it is highly relevant evidence, which is not particularly prejudicial to the plaintiff, and does not implicate any of the other considerations raised by FRE 403.
Webster's New Collegiate Dictionary (G. C. Merriam Co. 1977).
In fact, if the testimony is quoted accurately by plaintiff's counsel, a portion of the testimony would appear somewhat favorable to the plaintiff.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of plaintiff Leon I. Penn in limine to exclude character evidence be and is hereby DENIED.
New Orleans, Louisiana, March 16, 2000.