Prue v. University of Washington et al, No. 2:2007cv01859 - Document 77 (W.D. Wash. 2009)
Court Description: ORDER denying plaintiff's 56 MOTIONS IN LIMINE to Admit EEOC Interview Notes filed by George Prue, granting in part and denying in part dfts' 54 MOTIONS IN LIMINE filed by Rachael Hogan, University of Washington by Judge Robert S. Lasnik. (RS)
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Prue v. University of Washington et al Doc. 77 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 GEORGE PRUE, 9 Plaintiff, Case No. C07-1859RSL 10 11 12 v. UNIVERSITY OF WASHINGTON, et al., Defendants. 13 ORDER DENYING PLAINTIFF’S MOTION IN LIMINE AND GRANTING IN PART DEFENDANTS’ MOTION IN LIMINE 14 15 16 This matter comes before the Court on the parties’ motions in limine. Plaintiff 17 seeks an order finding admissible the Equal Employment Opportunity Commission’s 18 notes from interviews with Aaron Hinkhouse and former defendant Rachael Hogan.1 19 Defendant seeks an order excluding several categories of evidence. Plaintiff does not 20 object to excluding certain evidence, including: (1) evidence of the parties’ settlement 21 negotiations, (2) evidence of unrelated employee complaints, and (3) evidence or 22 statements regarding general EEOC statistics or the prevalence of adverse findings. The 23 24 25 26 1 The Court dismissed plaintiff’s claims against Hogan on February 6, 2009. Plaintiff has not named Hinkhouse as a defendant. ORDER REGARDING MOTIONS IN LIMINE - 1 Dockets.Justia.com 1 Court will exclude that evidence and focus on the matters that are disputed. 2 A. 3 EEOC Reasonable Cause Determination and Interview Notes. Defendant seeks to exclude the EEOC’s letter stating that it had “determined there 4 is reasonable cause to believe that the allegations are true.” Defendants’ Motion, Ex. A. 5 However, in the Ninth Circuit, an EEOC reasonable cause determination is per se 6 admissible in a Title VII lawsuit. See, e.g., Plummer v. Western Int’l Hotels Co., Inc., 7 656 F.2d 502, 505 (9th Cir. 1981). Accordingly, defendants’ request to exclude the 8 determination is denied. 9 Plaintiff also seeks to admit the EEOC investigator’s notes from interviews with 10 Hogan and University employee Aaron Hinkhouse. The investigator, Kari Thompson, 11 interviewed both employees by telephone on August 15, 2006 and conducted a follow-up 12 telephone interview with Hogan the following day. Thompson typed her notes and signed 13 them. 14 Plaintiff concedes that the notes are hearsay. They are offered for the truth of the 15 matter asserted. Plaintiff contends that the notes are nevertheless admissible under 16 Federal Rule of Evidence 803(8)(B), which creates an exception to the hearsay rule for 17 “[r]ecords, reports, statements, or data compilations, in any form, of public offices or 18 agencies, setting forth . . . matters observed pursuant to duty imposed by law as to which 19 matters there was a duty to report.” If the notes are admissible on that basis, then plaintiff 20 contends that the statements therein are not hearsay because they are non-party 21 admissions under Rule 801(d)(2)(D). As for the first contention, the Court finds that the 22 public records exception does not apply in this case. Plaintiff argues that the notes 23 “record what Ms. Hogan and Mr. Hinkhouse said to Ms. Thompson during their 24 interviews with her.” Plaintiff’s Reply at p. 4. However, Ms. Thompson is not a court 25 26 ORDER REGARDING MOTIONS IN LIMINE - 2 1 reporter, and she did not attempt to make a transcript of the telephone interviews. The 2 majority of the contents of the notes is a summary, not actual quotations from the 3 interviewees. Nor do the notes contain only factual statements about what Thompson 4 observed. Rather, they contain her summary of what the witnesses said to her and her 5 impressions of their statements. See Declaration of Jillian Cutler, (Dkt. #57), Ex. A 6 (Notes at PRUE 0083 (“WT is vague as to how she got the impression that he wanted a 7 job that helped people”)); see also Hogan Dep. at p. 206 (explaining that the notes 8 reflected “[Thompson’s] words”). Plaintiff has not cited any cases in which the EEOC’s 9 interview notes were admitted. Therefore, the notes are not admissible pursuant to the 10 11 public records exception. Plaintiff also contends that the records are admissible under the residual hearsay 12 exception. Federal Rule of Evidence 807 states that some hearsay statements may be 13 admissible if (1) the statement if offered as evidence of a material fact, (2) the statement 14 is more probative on the point for which it is offered than any other evidence which the 15 proponent can procure through reasonable efforts, and (3) the general purposes of the 16 evidence rules and the interests of justice will be best served by admission of the 17 statement. The second and third requirements are not met in this case. Plaintiff argues 18 that the notes are more probative than other evidence of the witnesses’ pre-litigation 19 statements, but both witnesses made other pre-litigation statements that do not suffer from 20 the problems the notes present. In fact, the EEOC interviews occurred one year after 21 plaintiff’s non-selection for the position, so they do not reflect the witnesses’ 22 contemporaneous memory of the events. In addition, both witnesses will testify at trial. 23 Their live testimony, under oath, will be more probative than a third party’s summary of 24 their telephone interviews. Moreover, the witnesses found that the notes in some respects 25 26 ORDER REGARDING MOTIONS IN LIMINE - 3 1 did not accurately reflect what they told the investigator. Because the EEOC intends to 2 quash any trial subpoena that might issue, Thompson will not be available to testify at 3 trial about the accuracy of the notes. Under these circumstances, the notes are not 4 sufficiently reliable or probative to justify their admissibility under the residual exception. 5 6 7 For all of these reasons, plaintiff’s motion to admit the notes is denied. B. Hogan Discipline and Training. Defendants seek to exclude evidence that Hogan was given formal counseling and 8 interview training after the EEOC issued its probable cause determination. Defendants 9 contend that the actions should be excluded as a subsequent remedial measure. Evidence 10 Rule 407 states that if measures are taken after an event “that, if taken previously, would 11 have made the injury or harm less likely to occur, evidence of the subsequent remedial 12 measures is not admissible to prove . . . culpable conduct.” 13 Plaintiff argues that employee discipline cannot make misconduct less likely to 14 occur because discipline can only be imposed after the misconduct has already occurred. 15 In this instance, the focus of the action was to train Hogan on proper interview 16 techniques, a remedial purpose. In fact, plaintiff specifically contends that if the 17 University had trained Hogan sooner, plaintiff’s experience could have been avoided. 18 Plaintiff also concedes that he seeks to offer the evidence to show that Hogan “failed to 19 use consistent interview practices when she interviewed Mr. Prue,” a key issue in this 20 case. Plaintiff’s Opposition at p. 6. Plaintiff therefore seeks to introduce the evidence to 21 prove culpable conduct. Although plaintiff argues that defendants were required to take 22 action after the EEOC determination, the record does not support their assertion. Finally, 23 plaintiff argues that the subsequent training shows that the University could have 24 conducted the training before the interviews occurred. Defendants, however, are not 25 26 ORDER REGARDING MOTIONS IN LIMINE - 4 1 disputing that proposition. 2 Even if the formal counseling were viewed solely as discipline rather than a 3 remedial measure, it would be excluded under Federal Rule of Evidence 403. The fact 4 that the University imposed counseling and training two years after the alleged 5 discrimination, and only after the EEOC issued its determination, is not probative of 6 whether Hogan actually discriminated against plaintiff. Admitting the evidence could 7 prejudice defendants by improperly leading the jury to conclude that by disciplining 8 Hogan, the University was admitting that she violated the law. Accordingly, evidence 9 regarding the University’s subsequent counseling and training of Hogan is excluded. 10 11 C. Questions and Argument About “Implicit Bias” and “Stereotyping.” Defendants seek to exclude testimony and questions about “implicit bias” and 12 “stereotyping.” Plaintiff’s counsel asked defendants’ witnesses questions about those 13 topics during their depositions. Defendants contend that there will be no expert testimony 14 to explain what “implicit bias” means. However, the term “bias” and the issue of 15 stereotyping are within the understanding of a typical juror. If the witnesses questioned 16 about the topics do not understand the terms, they can so state. Accordingly, using the 17 terms will not unduly confuse the jury. 18 Moreover, as is the case in many employment discrimination cases, plaintiff lacks 19 direct evidence of discrimination. As a result, he has to prove his case with 20 circumstantial evidence and inferences. Precluding him from using terms like “bias” and 21 “stereotyping” would unfairly limit his ability to prove his case. Finally, although 22 defendants argue that plaintiff has not shown that stereotyping played a role in this case, 23 they can make that argument to the jury. The Court will not exclude questions and 24 testimony using those terms. 25 26 ORDER REGARDING MOTIONS IN LIMINE - 5 1 D. Argument Regarding Inability to Understand Discrimination Experienced by 2 Individuals of a Different Race. 3 Defendants argue that plaintiff should be precluded from testifying about or having 4 his counsel argue that “individuals of a different race than Plaintiff are incapable of 5 understanding or appreciating the cultural background of discrimination suffered by an 6 African American man.” Defendants’ Motion at p. 10. It does not appear that plaintiff or 7 his counsel plan to do so. Furthermore, unlike the case on which defendants rely, plaintiff 8 is not planning to present testimony from other lay witnesses about their opinion of 9 whether discrimination occurred. Id. at p. 11 (citing Hester v. BIC, 225 F.3d 178, 184 (2d 10 Cir. 2000)). Rather, plaintiff “reserve[s] the right to present evidence and arguments to 11 the jury regarding his experiences and perceptions of discrimination as a 55-year-old 12 African-American man.” Plaintiff’s Reply at p. 10. Plaintiff can testify about his own 13 experiences and perceptions under Federal Rule of Evidence 701, so the Court will not 14 preclude that testimony. Nor will the Court preclude him from explaining why he 15 believed that defendants discriminated against him. 16 E. 17 Handwritten Notes. During discovery, the University produced three pages of handwritten notes from 18 2007 that reference its response to the EEOC’s reasonable cause determination and the 19 possibility of disciplining Hogan. Plaintiff does not dispute that the notes can be admitted 20 only if a witness properly authenticates them. Otherwise, the notes cannot be read into 21 the record, admitted, or referenced. 22 23 For all of the foregoing reasons, plaintiff’s motion in limine (Dkt. #56) is DENIED and defendants’ motion in limine (Dkt. #54) is GRANTED IN PART AND DENIED IN 24 25 26 ORDER REGARDING MOTIONS IN LIMINE - 6 1 PART as set forth above.2 2 3 DATED this 29th day of April, 2009. 4 5 A 6 Robert S. Lasnik United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 21 22 23 24 25 26 The Court notes that the findings and conclusions in this order, like all rulings in limine, are preliminary and can be revisited at trial based on the facts and evidence as they are actually presented. See, e.g., Luce v. United States, 469 U.S. 38, 41 (1984) (explaining that a ruling in limine “is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.”). Subject to these principles, the Court issues this ruling for the guidance of the parties. ORDER REGARDING MOTIONS IN LIMINE - 7
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