Opinion
Case No. 1:99-CV-142
October 16, 2000
I. Introduction
This matter is before the Court on Plaintiff Kevin Smith's Motion in Limine. On February 23, 1999, Plaintiff filed this civil rights action against the City of Holland Board of Public Works ("BPW"), Timothy Morawski, and Linda Esparaza (collectively "Defendants"). At all times relevant to this lawsuit, Morawski was the BPW's General Manager and Esparaza was the BPW's Administrative Services Director responsible for human resources.
Plaintiff's Complaint alleges three discrete causes of action. Count One alleges that Defendants violated Plaintiff's First Amendment right to freedom of speech by retaliating against him for criticizing the Defendants. Count Two alleges that Defendants violated Plaintiff's Fourteenth Amendment right to due process by failing to provide Plaintiff with a pre-termination hearing. Count Three alleges that Defendants violated Plaintiff's rights guaranteed by Article I, Sections 3 and 5 of the State of Michigan Constitution of 1964. Counts One and Two were brought pursuant to 42 U.S.C. § 1983.
Plaintiff now makes a Motion in Limine requesting that the Court exclude certain facts from being introduced by the Defendants as evidence at trial. For the reasons discussed below, the Court grants the Motion in part and denies the Motion in part.
II. Discussion A. The Reyna Investigation and After-Acquired Evidence
Plaintiff's Motion in Limine requests that this Court exclude certain evidence from trial. Plaintiff argues that the Reyna Investigation (the "Investigation") conducted by the Defendants, and the conclusions of that Investigation are irrelevant and immaterial, the Investigation's probative value is substantially outweighed by the danger of unfair prejudice, and therefore the Investigation should be excluded as evidence pursuant to Federal Rules of Evidence 402 and 403, respectively. In addition, Plaintiff objects to the admission of certain derogatory words he used because he states that Defendants did not become aware of these words until discovery, and therefore his use of them could not have played a part in Defendants' decision to warn and then terminate him. Plaintiff also argues that the Investigation is hearsay and must be excluded pursuant to Federal Rule of Evidence 801.
Plaintiff argues that the Investigation is irrelevant as to the issue of whether or not he was terminated for his statements about the Defendants in violation of his First Amendment right of free speech because the Investigation leading to the warnings he violated was merely a pretext for his firing. Under Federal Rule of Evidence 402, "[a]ll relevant evidence is admissible. . . . Evidence which is not relevant is not admissible." "`Relevant evidence' means evidence having a 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 that evidence." Fed.R.Evid. 401. Obviously, an investigation of Plaintiff's behavior in the workplace and the conclusions of the Investigation will tend to demonstrate whether or not the Defendants' actions in warning and subsequently firing him were pretextual or reasonable in light of the findings of the Investigation. Therefore, the Investigation is relevant and admissible because it tends to show whether or not Defendants' warnings to and termination of Plaintiff were pretextual as alleged by him.
Plaintiff next argues that the Investigation should be excluded pursuant to Federal Rule of Evidence 403 because its "probative value is substantially outweighed by the danger of unfair prejudice. . . ." The "prejudice to be weighed [in Rule 403] is the unfair prejudice caused by the admission of the evidence. Evidence that is prejudicial only in the sense that it paints the [plaintiff] in a bad light is not unfairly prejudicial pursuant to Rule 403." United States v. Sanders, 95 F.3d 449, 453 (6th Cir. 1996). "`Unfair prejudice' within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Fed.R.Evid. 403, 1972 advisory committee's note.
Plaintiff has made no showing that the Investigation and its conclusions will unfairly prejudice him. As previously stated, the Investigation is probative, and therefore relevant as to whether or not the actions of Defendants in warning Plaintiff were pretextual. Although the Investigation and its conclusions may "paint" Plaintiff in a "bad light" in that it may introduce negative remarks and actions by Plaintiff regarding women in his work place, the Investigation's probative value is high since it will tend to demonstrate whether the Defendants' actions were warranted by Plaintiff's activities. Since the probative value of the Investigation is not substantially outweighed by unfair prejudice to Plaintiff, the Court will not exclude it under Rule 403.
Plaintiff next argues that the Investigation is hearsay and should be excluded from evidence in accordance with Federal Rules of Evidence 801, and 802. Rule 801(c) states that "`[h]earsay' is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." "Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Fed.R.Evid. 802. Here, Defendants do not offer the Investigation as proof of the truth of the statements made therein, but rather to demonstrate the fairness of the methods used in the Investigation, and validity of the warning and instruction to Plaintiff in light of the conclusions of the Investigation. Since the Investigation is offered for non-hearsay purposes under Rule 801, it will not be excluded pursuant to Rule 802.
Plaintiff finally argues that the word "dyke" and other "derogatory terms" unearthed by Defendants during discovery are irrelevant because Defendants could not have relied upon these statements in warning Plaintiff. Defendants admit that they learned of Plaintiff's use of these terms during discovery, and they were not grounds for termination. Defendants argue, however, that the use of such terms demonstrate how Plaintiff allegedly created a hostile work environment for women, and that this evidence tends to show that their warning of Plaintiff was not pretextual. In the alternative, Defendants assert that the After-Acquired Evidence Rule allows these terms to be introduced into evidence on the issue of Plaintiff's damages.
Plaintiff's argument as to the introduction of the derogatory terms has merit. Defendants admit that Plaintiff's use of these terms did not become apparent until well after Defendants decided to warn and subsequently terminate Plaintiff. Therefore, they are of no relevance to ascertaining whether or not Defendants' actions were reasonable and or warranted at the time they made their decision to warn and then fire Plaintiff.
Defendants' argument as to the introduction of these terms under the After-Acquired Evidence Rule is likewise off the mark. In McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 360-62 (1995), the United States Supreme Court held that after-acquired evidence was not relevant to an employer's liability for age discrimination under the Age Discrimination Employment Act of 1967, but that such evidence would be relevant in determining what remedy was appropriate. McKennon, 513 U.S. at 360-62. "Where an employer seeks to rely upon after-acquired evidence of wrong doing, it must first establish that the wrong doing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge." McKennon, 513 U.S. at 362-63 (emphasis added). In Board of County Comm'rs v. Umbehr, 518 U.S. 668, 685 (1996), the United States Supreme Court applied the After-Acquired Evidence rule in the context of employee First Amendment retaliation claims. See also Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 101-02 (1st Cir. 1997).
Here, Defendants have failed to assert or make any showing that had they uncovered Plaintiff's use of such derogatory terms prior to or at the time of their warning to him, that this conduct was of such severity that Plaintiff would have been terminated on those grounds alone. What Defendants state is that if the use of such terms by Plaintiff "had come to light during the BPW's investigation . . . more serious discipline than a warning might have resulted." (Def. Oppos. Brief at 4) (emphasis added). Defendants do not state what that discipline might have been, or even that the use of these terms, alone, would have necessarily resulted in Plaintiff's termination. Because Defendants failed to assert that Plaintiff's use of such derogatory terms alone would have prompted defendants to terminate him at the time of his actual discharge, the After-Acquired Evidence rule is inapplicable, and the Court will not allow these terms to be introduce as evidence.
B. The Arbitrator's Opinion and Award
Plaintiff next argues that an Arbitrator's Opinion and Award (the "Opinion") should be excluded from evidence because it is prejudicial, irrelevant, and hearsay. The Opinion is the result of arbitration between Services Employees International Union, Local No. 586, Plaintiff's Union, and the BPW in accordance with the parties' Collective Bargaining Agreement (the "CBA"). The arbitration dealt with whether or not BPW properly terminated Plaintiff because he violated BPW management's instructions not to discuss their warnings to him about his conduct with other employees. Defendants argue that the Opinion is highly relevant because it has a tendency to show that their actions in firing Plaintiff were not pretextual but reflected their belief that Plaintiff's violation of their instructions was insubordinate, and therefore proper grounds for his termination under the CBA.
Arbitration opinions and awards are generally admissible as evidence in retaliation, wrongful discharge suits, and 42 U.S.C. § 1983 actions. See McDonald v. City of West Branch, Mich., 466 U.S. 284, 292 n. 13 (1984); Graef v. Chemical Leaman Corp., 106 F.3d 112, 117 (5th Cir. 1997) Arbitral decisions are binding on the Court to the extent they resolve contractual rights under a Collective Bargaining Agreement ("CBA"), but are not binding regarding retaliation and discrimination claims. Owens v. Texico, Inc., 857 F.2d 262, 265 (5th Cir. 1988). "While an arbitration decision in favor of an employer is sufficient to carry employer's burden of articulating some legitimate . . . reason for the employee's rejection, the arbitrator's decision is not conclusive to the issue, nor even persuasive if the court deems it not to be." Givan v. Greyhound Lines, Inc., 616 F. Supp. 1223, 1226 (S.D.Ohio 1985); see also Bromley v. Michigan Educ. Association-NEA, 82 F.3d 686, 692 (6th Cir. 1996) ("The weight to be accorded . . . [an arbitral decision] depends, however, on the facts and circumstances of the particular case."). Whether or not to exclude evidence of an arbitrator's opinion and award depends on several factors, including but not limited to the following: (1) the degree of procedural fairness in the arbitral forum, (2) the adequacy of the record, and (3) the competence of the arbitrator. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 n. 21 (1974).
The Court can find no indicia of procedural unfairness in the arbitral forum nor has Plaintiff made any showing to the contrary; in fact the arbitrator, after hearing evidence from both sides, set aside Plaintiff's termination, reduced his penalty to a sixty day suspension, and reinstated Plaintiff to his former position. (Roumell, Jr., Arb. at 40-41.) The arbitral record appears quite adequate given that it includes recitations of the evidence presented to the arbitrator, and his conclusions based on that evidence and the corresponding arbitration standards. Finally, given that Arbitrator Roumell has a 33-year history of involvement in various employment arbitration decisions and processes, his competency as an arbitrator in this context is obvious. ( See Def. Opp. Exh. 3.)
The Federal Rules of Evidence start from the premise that records like the arbitration award are admissible "unless the sources of information or the method or circumstances of preparation indicate lack of trustworthiness." Fed.R.Evid. 803(6); see also Fed.R.Evid. 803(8)(C) ("unless the sources of information or other circumstances indicate lack of trustworthiness."). The burden of establishing the untrustworthiness of such documents is on the opponent of the evidence. See Graef, 106 F.3d at 118. Plaintiff has made no showing of untrustworthiness as to the Opinion.
Since arbitration awards can be introduced as evidence in § 1983 actions, the Opinion is highly probative of whether or not the Defendants acted in accordance with the CBA when they penalized Plaintiff for insubordination, the Opinion has satisfactorily met three of the factors outlined by the Alexander Court, and Plaintiff has provided no evidence that the Opinion is untrustworthy, the Opinion can be admitted as evidence.
While the Opinion can be introduced as evidence on the issue of pretext, the Court recognizes the potential for a Rule 403 problem; that is that the jury might improperly base its decision solely on the factual findings of the Arbitrator. In order to stem the possibility of an improper jury decision, the Court will issue a limiting instruction regarding the Opinion, and its proper evidentiary use by the Defendants.
In addition to their previous argument, as Defendants have correctly pointed out, Plaintiff's Complaint includes claims under Michigan state law; violation of his rights under Article 1, §§ 3 and 5, of the Michigan Constitution. Federal courts must apply state law to pendant state law claims. United Mine Workers v. Gibbs, 383 U.S. 715, 725-26 (1966); Greene v. Distelhorst, 1997 U.S. App. LEXIS 15461, at * 12 (6th Cir. June 23, 1997). Under Michigan law, "factual findings made by an arbitrator after a proper arbitration proceeding are conclusive in a later-filed law suit between the same parties, including a situation in which the earlier arbitration involved a contractually based wrongful discharge claim and the later involves a claim that the employee's discharge violated one or more state civil rights statutes." Cole v. West Side Auto Employees Federal Credit Union, 583 N.W.2d 226, 229-30 (Mich.Ct.App. 1998). Therefore, under Michigan law, the Opinion can be introduced into evidence as to Plaintiff's state law claims.
Defendants' proper citation to Michigan law as to the significance of the factual findings in the Opinion, however, does not foreclose Plaintiff's claim that Defendants violated his rights under the Michigan Constitution. See Arslanian v. Oakwood United Hospital, 240 Mich. App. 540 (2000). The arbitrator decided only the issue of Plaintiff's termination for insubordination. The arbitrator did not address the issue of whether Defendants' actions could also be attributed to Plaintiff's criticisms of management or whether Defendants' actions violated the Michigan Constitution. As pointed out by this Court in its Opinion of June 8, 2000, "[t]hese findings [by the arbitrator] do not foreclose the possibility that Morawski violated Plaintiff's rights under the Michigan Constitution. . . . [A] reasonable jury might conclude that Morawski's decision to terminate Plaintiff was motivated by Plaintiff's protected conduct." Smith v. City of Holland Bd. of Public Works, 102 F. Supp.2d 422, 430-31 (W.D.Mich. 2000). Therefore, this Court will issue the proper limiting instruction to the jury regarding the effects of the arbitrator's factual findings as to Plaintiff's state law claims.
C. Correspondence with, and Testimony of Kathy Lentz
Defendants have indicated that they intend to introduce either correspondence between Plaintiff and Ms. Kathy Lentz, journal entries by Plaintiff regarding Ms. Lentz, or Ms. Lentz's direct testimony; Ms. Lentz is neither a work colleague of Plaintiff's nor has she any connection to Plaintiff's place of employment. Defendants intend to use this evidence in order to establish that Plaintiff's emotional distress was not solely the result of his job termination, and that Plaintiff has a tendency to behave in an inappropriately sexualized manner towards women. Defendants attempt to introduce this Trojan Horse into evidence under the guise of Federal Rule of Evidence 405(a) and (b). Plaintiff argues that the correspondence between he and Ms. Lentz, the journal entries, or any testimony by Ms. Lentz should not be admitted pursuant to Federal Rules of Evidence 402 and 403 because they are irrelevant and unfairly prejudicial. The Court agrees.
Federal Rule of Evidence 405(a) and (b) state the following:
(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of the charge, claim, or defense, proof may be made of specific instances of that person's conduct.
Ms. Lentz is not a colleague of Plaintiff nor does she work at Plaintiff's place of employment. Defendants admit that Plaintiff's "relationship with Ms. Lentz [did not] contribute in any way to a hostile work environment. . . ." (Def. Opp. at 11.) Defendants assert that they terminated Plaintiff because he flaunted their instructions not to discuss their meeting with him after confronting Plaintiff about allegations of a hostile work environment relating to women; not because of Plaintiff's extramarital relationships. Plaintiff's conduct in a relationship outside of the work place with a non-BPW employee adds little if anything to Defendants' argument that his termination was not pretextual. Thus, the correspondence, the journal entries, and Ms. Lentz's possible testimony are of little probative value on the issue of whether or not Defendants' action were pretextual.
As stated previously, "unfair prejudice" means a tendency to suggest a decision on an improper basis, commonly, an emotional one. See Fed R. Evid. 403, 1972 advisory committee's note. What the evidence of the correspondence, the journal entries, and Ms. Lentz's testimony might do is unfairly cause the jury to decide against Plaintiff based on its emotional response to the information that Plaintiff had an extramarital relationship with Ms. Lentz. In addition, "[t]he availability of other means of proof may also be an appropriate factor" when deciding on whether the probative value of evidence is substantially outweighed by unfair prejudice. Fed.R.Evid. 403, 1972 advisory committee's note. In this instance, Defendants have an ample number of workplace witnesses to attest to Plaintiff's alleged creation of a hostile work environment towards women. Nothing about the correspondence, the journal entries, or Ms. Lentz's testimony is essential, or even probative, and as stated above, they are of little relevance to Defendants' argument that they warned Plaintiff based on his workplace activities. Therefore, the Court will exclude the correspondence, the journal entries, and Ms. Lentz's testimony from evidence pursuant to Federal Rule of Evidence 403 because their probative value is substantially outweighed by the danger of unfair prejudice.
Conclusion
For the reasons stated above, Defendants can introduce the Arbitrator's Opinion and Award into evidence, but may not introduce any derogatory terms used by Plaintiff and discovered after his termination, nor the correspondence, the journal entries, or testimony of Ms. Lentz about her relationship with Plaintiff. The Court will also give the jury an appropriate limiting instruction regarding the weight and use of the Arbitrator's Opinion and Award.
ORDER
In accordance with the Opinion of this date;
IT IS HEREBY ORDERED that Plaintiff Kevin Smith's Motion in Limine (Dkt. No. 43) is GRANTED in part and DENIED in part. Specifically, Defendants can introduce into evidence the Arbitrator's Opinion and Award, but cannot introduce into evidence any derogatory terms admitted to use by Plaintiff after his termination, nor the correspondence, the journal entries, or testimony of Ms. Lentz regarding her relationship with Plaintiff.
IT IS SO ORDERED.