Opinion
Civil Action No. 01-CV-02430
May 21, 2004
ORDER
NOW, this 21st day of May, 2004, upon consideration of Defendant's Motion in Limine to Exclude Evidence Regarding the Manner of John Hatzinikolas's [sic] Death; Defendants's Motion in Limine to Exclude Any Evidence Regarding Ream's "Troublemaker" Comment; Defendant's Motion in Limine to Exclude Evidence Regarding Plaintiff's Overtime Claim; Defendant's Motion in Limine to Exclude Plaintiff's Evidence Regarding Her Alleged Constructive Discharge; Defendant's Motion in Limine to Exclude Plaintiff's Evidence of Retaliation; Defendant's Motion in Limine to Exclude Evidence Regarding the Hatzinikolas Incident in 1996; and Defendant's Motion in Limine to Exclude Any Evidence Regarding Alleged Sexual Harassment, each of which motions was filed September 15, 2003; upon consideration of Plaintiff's Omnibus Response to Defendant's Motions in Limine, which response was filed October 14, 2003; upon consideration of the briefs of the parties; and for the reasons expressed herein, IT IS ORDERED that defendant's motions in limine are granted in part and denied in part. IT IS FURTHER ORDERED that Defendant's Motion in Limine to Exclude Evidence Regarding the Manner of John Hatzinikolas's [sic] Death is granted as unopposed. IT IS FURTHER ORDERED that plaintiff is precluded from offering into evidence at trial the manner of John Hatzinikolas' death.
In her Complaint, plaintiff Emilia E. Veress asserted claims against defendant Alumax/Alcoa Mill Products, Inc. ("Alcoa") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) to 2000(e)-17 (Count I and II) and the Pennsylvania Human Relations Act ("PHRA") Act of October 27, 1955, P.L. 744, No. 222, §§ 1-13, as amended, 43 P.S. §§ 951-963 (Counts III and IV) for gender discrimination, national origin discrimination, hostile work environment retaliation, and constructive discharge.
On April 30, 2003, after oral argument, on the record and in the presence of counsel for the parties, the undersigned dictated an Order granting in part and denying in part Defendant's Motion for Summary Judgment. In addition, we articulated on the record the facts of the case and the reasons for our decision. We incorporate those facts and reasons here.
Specifically, we granted Defendant's Motion for Summary Judgment regarding all plaintiff's claims for gender discrimination, plaintiff's claim for constructive discharge, a portion of plaintiff's claim for national origin discrimination and the portion of plaintiff's claim of a hostile work environment. We denied defendant's motion for summary judgment related to plaintiff's claim for hostile work environment discrimination based upon national origin occurring after plaintiff was transferred to the Hot Mill and plaintiff's claim for retaliation.
In her response, plaintiff concedes and agrees that the manner of John Hatzinikolas' death should be precluded. (See Plaintiff's Omnibus Response to Defendant's Motions in Limine, page 2.) Accordingly, we grant defendant's motion in limine as unopposed.
IT IS FURTHER ORDERED that Defendants's Motion in Limine to Exclude Any Evidence Regarding Ream's "Troublemaker" Comment is denied.
In its motion in limine, defendant contends that plaintiff should be precluded from offering evidence of her supervisor Bill Ream's alleged comment to her co-workers that plaintiff was a "troublemaker". Defendant asserts that this statement constitutes inadmissible double hearsay under Rules 801(d)(2)(D) and 805 of the Federal Rules of Evidence because plaintiff cannot identify the persons to whom Mr. Ream was allegedly speaking in order to qualify the statement as an admission of a party opponent. Alternatively, defendant contends that the statement should be excluded because it is a stray comment, is irrelevant, unfairly prejudicial and could mislead and confuse the jury. Thus, defendant contends that the statement should be excluded from evidence under Rules 402 and 403. For the following reasons, we disagree and conclude that the statement is admissible.
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801(c). Plaintiff intends to offer the alleged statement by Mr. Ream through one of plaintiff's co-workers, Jim Gunselman, as evidence that a hostile work environment was created by Mr. Ream at the time plaintiff was transferred to the Hot Mill. The alleged statement by Bill Ream that plaintiff was a "troublemaker" is not offered to prove that she was a troublemaker. Rather, it will be offered to prove that defendant's supervisor fueled the fire of an alleged hostile work environment that existed in the Hot Mill toward plaintiff.
Because Mr. Ream's statement is not offered to prove that plaintiff was actually a troublemaker, but rather for another unrelated purpose, the statement does not fit the definition of hearsay, and as non-hearsay, is admissible. Fed.R.Evid. 801(c).
In the alternative, defendant contends that the alleged statement is not admissible under either Rules 402 or 403 of the Federal Rules of Evidence. To make a determination on the relevance of evidence we must read Rules 401, 402 and 403 together.
Rule 401 defines "relevant evidence" as "evidence having 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.
Rule 402 provides that "[a]11 relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible." Fed.R.Evid. 402.
Finally, 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
We conclude that Mr. Ream's alleged statement, if believed by a jury, is relevant evidence which makes it more probable to believe that Mr. Ream attempted to have plaintiff held in lower regard by her co-workers as a troublemaker, and this might be perceived by others as management's way of communicating that plaintiff was not wanted in the Hot Mill. Moreover, such a statement could be inferred by plaintiff's co-workers as a license to treat plaintiff poorly without retribution by management for their actions. Thus, we conclude that this statement is relevant to issues plaintiff intends to prove. Moreover, we conclude that as relevant evidence it is admissible under Rule 403.
Finally, most relevant evidence offered against a party tends to prejudice that party in some manner. It is only if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury that such relevant evidence should be excluded under Rule 403. In this case, we conclude that the probative value to plaintiff of Mr. Ream's statement outweighs any danger of unfair prejudice, confusion of issues or of misleading the jury.
IT IS FURTHER ORDERED that Defendant's Motion in Limine to Exclude Evidence Regarding Plaintiff's Overtime Claim is denied. IT IS FURTHER ORDERED that Defendant's Motion in Limine to Exclude Plaintiff's Evidence Regarding Her Alleged Constructive Discharge is denied. IT IS FURTHER ORDERED that Defendant's Motion in Limine to Exclude Plaintiff's Evidence of Retaliation is denied. IT IS FURTHER ORDERED that of Defendant's Motion in Limine to Exclude Evidence Regarding the Hatzinikolas Incident in 1996 is denied. IT IS FURTHER ORDERED that Defendant's Motion in Limine to Exclude Any Evidence Regarding Alleged Sexual Harassment is granted in part and denied in part. IT IS FURTHER ORDERED that defendant's motion in limine is denied regarding evidence of plaintiff being shunned by her co-workers based upon plaintiff's claims of sexual harassment against Mr. Hatzinikolas.
Defendant seeks to preclude plaintiff from offering any evidence at trial that she was denied overtime as part of her retaliation claim. Specifically, defendant contends that plaintiff actually worked more overtime the year she claims she was denied overtime than in the previous year. In addition, defendant contends that the overtime claim was not mentioned in plaintiff's Complaint filed with the Pennsylvania Human Relations Commission and was not included as a "discriminatory act" in answers to interrogatories. For the following reasons, we deny defendant's motion in limine.
Defendant concedes that plaintiff asserted in her Complaint (Paragraph 43) that she claimed denial of overtime work in retaliation for reporting about sexual harassment by her co-worker. None of defendant's interrogatory questions ask plaintiff to identify any acts of retaliation she was subjected to. Finally, there appears to be a genuine dispute whether plaintiff was denied overtime based upon defendant's assertion that plaintiff received more overtime in the period she claims she was denied it than in the same period a year earlier. What defendant actually seeks by this motion in limine is another bite at the summary judgment apple.
We conclude that evidence offered by both parties will go to the weight the jury gives to each party's evidence, whom the jury believes and whether plaintiff will satisfy her burden of proof on this alleged item of damages. Thus, we conclude that plaintiff may present her evidence, defendant may present its evidence, and it will be for the jury to decide whom it believes. Thus, we deny defendant's motion in limine.
Defendant seeks to preclude plaintiff from offering any evidence of her constructive discharge at trial. In support of its contention, defendant asserts that on April 30, 2003 we granted Defendant's Motion for Summary Judgment concerning plaintiff's claim for constructive discharge.
Plaintiff dismissed by the court that would support her constructive discharge claim also support her claim that defendant created a retaliatory hostile work environment. Plaintiff asserts that her evidence will include events she endured throughout her time in the hot mill together with the final event she endured related to her alleged insubordination to the company nurse which plaintiff contends constituted a constructive discharge. For the following reasons, we agree with defendant in part, with plaintiff in part and deny defendant's motion in limine.
Essentially, what defendant seeks to achieve by its motion in limine is to limit plaintiff's damages. Damages in hostile work environment claims may include front and back pay. Pollard v. A.I, du Pont de Nemours Company, 532 U.S. 843, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001). Plaintiff is not barred from recovering damages for that portion of a hostile work environment that falls outside the period of filing a timely charge. National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
In this case, we agree with defendant that we granted summary judgment on plaintiff's constructive discharge claim. Therefore, plaintiff may not send to the jury a separate cause of action alleging constructive discharge and collect separate damages for that cause of action.
However, evidence of what factual circumstances existed relating to defendant's alleged constructive discharge of plaintiff's employment is evidence that may support plaintiff's claim for a hostile work environment. Moreover, evidence of plaintiff's constructive discharge may be evidence in support of plaintiff's retaliation claim because it may support a finding of an adverse employment action by the jury on the retaliation claim.
Accordingly, we conclude that while plaintiff has no separate claim for constructive discharge, plaintiff may present evidence of an alleged constructive discharge in support of her remaining claims. Hence, we deny defendant's motion in limine.
Defendant seeks to exclude plaintiff from presenting any evidence of retaliation because defendant contends that plaintiff cannot prove that she was subjected a to any adverse employment action, the disciplinary action which plaintiff complains of does not rise to the level of an adverse employment action, and the actions of her co-workers cannot be evidence of retaliation because they do not have the authority to impose an adverse action on a fellow co-worker. For the following reasons, we disagree with defendant and deny its motion in limine.
Initially, we note that on April 30, 2003 we denied Defendant's Motion for Summary Judgment on the plaintiff's claim for retaliation. We consider defendant's within motion in limine an untimely request for reconsideration of our previous Order. Rule 7.1(g) of the Rules of Civil Procedure for the United States District Court for the Eastern District of Pennsylvania requires that "[m]otions for reconsideration or reargument shall be served and filed within ten (10) days after the the entry of the judgment, order, or decree concerned." Defendant filed its within motion in limine on September 15, 2003, well outside the ten days it had to seek reconsideration of our April 30, 2003 Order denying summary judgment. Thus, we conclude that defendant's within motion is untimely. Therefore, we deny defendant's motion.
In addition, we conclude that plaintiff may present evidence of her alleged loss of overtime, evidence of her alleged constructive discharge and evidence of Bill Ream's alleged statement about plaintiff being a troublemaker. All of this evidence, among other evidence, will be offered by plaintiff in support of her claim for retaliation. We conclude, as we did on April 30, 2003, that this evidence creates genuine issues of fact regarding whether defendant retaliated against plaintiff. Accordingly, we deny defendant's motion in limine.
Defendant seeks to preclude plaintiff from offering evidence of John Hatzinikolas' alleged sexual harassment of plaintiff in 1996. Defendant contends that because it disciplined Mr. Hatzinikolas after the incident and the incident never happened again, any testimony regarding the alleged conduct would be irrelevant, unfairly prejudicial and could mislead and confuse the jury. Thus, defendant asserts that the court should exclude this evidence pursuant to Federal Rules of Evidence 402 and 403. For the following reasons, we disagree with defendant and deny its motion in limine.
Again, defendant attempts to seek untimely reconsideration of our April 30, 2003 Order. As we stated on the record at that time, plaintiff will be allowed to present evidence of the Hatzinikolas incident as a factual basis for her retaliation and hostile work environment claims. If we were to grant defendant's motion, the jury would be left with nothing more than a generic complaint by plaintiff that she engaged in some unknown protected activity and that she was labeled a troublemaker for doing so. The jury might spend time speculating as to the nature of her prior complaint, rather than concentrating at the issues at hand.
At trial, upon request of defendant, the court can give a cautionary instruction to the jury that the evidence concerning the alleged sexual harassment is merely background evidence related to plaintiff's protected activity rather than a claim that will need to be decided by the jury. Such a cautionary instruction will clear any confusion or unfair prejudice against defendant.
Accordingly, because we have already decided this issue and because any confusion or unfair prejudice to defendant can be properly explained to the jury, we deny defendant's motion in limine.
In its motion in limine defendant seeks to preclude plaintiff from offering certain evidence that defendant asserts was originally offered to support plaintiff's claim for a hostile work environment based upon gender discrimination rather than a hostile work environment based national origin. Specifically, defendant seeks to preclude reference to four incidents which the undersigned concluded was weak evidence of a gender based hostile work environment as follows: (1) that because of plaintiff's prior sexual harassment claim against Mr. Hatzinikolas, plaintiff was shunned by her co-workers in the hot mill; (2) evidence that a co-worker Bill Gunselman (referring to plaintiff dating her boyfriend) stated to plaintiff that she was a "stupid fucking cow and gives free milk"; (3) that co-worker Jay Sherrick called plaintiff "short shit", "troublemaker" and told her "he wanted to see if plaintiff could put a whole banana in her mouth"; and (4) that sometime in 1999 Mr. Gunselman told plaintiff "because you open your fucking mouth, you're going to be a laborwoman" and that he was going to make her "do all the work". Defendant contends that all of these alleged incidents should be excluded from evidence pursuant to Federal Rules of Evidence 402 and 403. Plaintiff does not specifically respond to defendant's motion other than to generically state that all evidence of plaintiff's alleged sexual harassment should be admissible. For the following reasons, we grant in part and deny in part defendant's motion in limine.
Regarding evidence of plaintiff's prior sexual harassment claim against Mr. Hatzinikolas, and the allegation that plaintiff was shunned by her co-workers in the hot mill, we have already ruled that plaintiff may present evidence of the underlying claim against Mr. Hatzinikolas. Moreover, we conclude that evidence that plaintiff was allegedly shunned by her co-workers for making that claim may have a tendency to prove plaintiff's claim for retaliation. Plaintiff's proposed evidence may have a tendency to make the existence of a fact at issue more probable than it would without the evidence. See Fed.R.Evid 401. Thus, it is relevant evidence and is therefore admissible under Rule 402. Furthermore, defendant fails to specifically state how if relevant, the proposed evidence could mislead or confuse the jury or how the probative value of this evidence is substantially outweighed by the danger of unfair prejudice. Accordingly, we deny defendant's motion in limine on item (1) above.
Next, we agree with defendant on item (2) regarding Mr. Gunselman's comment about plaintiff's relationship with her boyfriend. We conclude that this statement may be relevant to a fact of consequence or issue to be decided by the jury. Plaintiff's personal relationship and Mr.
Gunselman's characterization of it may be relevant to the issues in this case depending on when the statement was made and if it were made in the presence of supervisory employees. This matter is better addressed at trial where the court may hear testimony regarding the statement and the circumstances surrounding the making of the statement. Thus, we deny defendant's motion in limine without prejudice to raise the issue at the trial of this case.
Regarding item (3), we grant defendant's motion in part and deny it in part. We agree that Mr. Sherrick's comments about plaintiff being a "short shit" and that he wanted to see her put a whole banana in her mouth may not be relevant to the facts and issues in this matter. The facts and circumstances surrounding these statements must be presented at trial to ascertain if the statement was made in the presence of supervisory personnel. However, Mr. Sherrick's comments that plaintiff was a "troublemaker" is relevant and does have a tendency to circumstantially prove facts and issues in this matter. Accordingly, we grant in part and deny in part defendant's motion in limine on this portion of the motion.
Finally, we deny defendant's motion in limine on item (4). Specifically, we conclude that Mr. Gunselman's alleged statement to plaintiff because she opened her mouth, she would be made to do all the work is relevant to plaintiff's claims for retaliation and as such is admissible. Again, defendant fails to assert that if we conclude that the evidence is relevant, how the jury would be mislead or confused or how or how the probative value of this evidence is substantially outweighed by the danger of unfair prejudice to defendant. Accordingly, we deny this portion of defendant's motion in limine.
IT IS FURTHER ORDERED that defendant's motion in limine to preclude evidence of Mr. Gunselman's alleged statements regarding plaintiff and her boyfriend is denied without prejudice for defendant to raise the issue at trial consistent with footnote 8.
IT IS FURTHER ORDERED that defendant's motion in limine to preclude evidence of Mr. Sherrick's alleged statement to plaintiff that she is a troublemaker is denied.
IT IS FURTHER ORDERED that defendant's motion in limine to preclude evidence of Mr. Sherrick's alleged statement referring to plaintiff as a "short shit" and that "he wanted to see her put a whole banana in her mouth" are denied without prejudice for defendant to raise the issue at trial consistent with footnote 8.
IT IS FURTHER ORDERED that defendant's motion in limine to preclude plaintiff from offering evidence of Mr. Gunselman's alleged statements to plaintiff that she will be a "labor woman" and that she will be made to do all the work is denied.