United States District Court, E.D. Pennsylvania
January 7, 2004.
DESMOND HOTEL & CONFERENCE CENTER
The opinion of the court was delivered by: JACOB HART, Magistrate Judge
ORDER AND OPINION
In this action, plaintiff James Beverly ("Beverly") originally alleged
that the Desmond Hotel and Conference Center ("Desmond") was liable to
him under Title VII of the Civil Rights Act for racial and religious
discrimination, and under the ADEA for discrimination on the basis of
age. Many of Beverly's claims were dismissed, however, in two orders
entered by the Honorable Stewart Dalzell ruling on Desmond's motion for
summary judgment. The sole claim remaining for trial is Beverly's claim
under the ADEA that Desmond did not promote him from a kitchen worker to
a busboy because of his age.
Desmond has filed a motion in limine in which it seeks to preclude the
entry at trial of evidence of (a) remarks alleged to have been made
regarding Beverly's race and/or religion; and (b) remarks on Beverly's
age made by non-decisionmakers. As set forth below, Desmond's motion will
A. Racially and Religiously Offensive Remarks
Desmond seeks the suppression of the following seven incidents alleged
by Beverly: (1) Desmond's Food and Beverage Director having said "we kill
the Muslim in my country now"; (2) Chef Scan Gow's use of the word
"nigger" in Beverly's presence; (3) Human Resources Director Sharon
Faux's statement to Beverly that "slavery has been over"; (4) a Desmond
supervisor's referring to co-workers by race and gender; (5) co-worker
David Manno's calling Beverly a "nigger"; (6) the same co-worker's
reference to another co-worker as a "fat nigger"; and (7) the same
co-worker's statement to Beverly that the supervisor "don't want you
niggers out there on the patio."
Desmond argues that these statements are not relevant to the surviving
ADEA case because they do not 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," as required by Federal
Rule of Evidence 401. It also argues that the racial comments are so
inflammatory that they should be excluded under FRE 403, which permits
the exclusion of even relevant evidence where its probative value is
substantially outweighed by the danger of unfair prejudice.
Beverly, however, argues that racially offensive remarks made by
co-worker David Manno are still relevant because they led to the
altercation which preceded his termination by Desmond. Accordingly to
Beverly, it was only after his termination that he had a discussion with
Michael Chain, Desmond's General Manager, in which he asked him why he
had not been promoted to busboy. Beverly maintains that Chain told him it
was because he was too old. He argues that it is important that he be
able to give "his side" of the altercation.
Manno's comments might well be found relevant if Beverly were arguing
that Desmond used his altercation with Manno as a pretext to terminate
him, where the real reason was his age. However, Judge Dalzell
specifically found in his Order of July 2, 2003, that: "Although Chain's
comments support Beverly's claim for failure to promote, they do not
indicate that Chain sought to terminate him on the grounds of his age."
Order at 14, ¶ (fff). On this basis, he entered summary judgment in
favor of Desmond on Beverly's claim for discriminatory discharge on the
basis of age. Id. at ¶ (ggg). Since the jury will not consider
whether Beverly was wrongfully terminated, it will have no need to hear
anyone's side of the facts surrounding his termination.
The racially and religiously offensive remarks to which Desmond has
pointed have no real relevance to Beverly's ADEA claim. The cases Beverly
has cited in his response are not a propos. In Lyons v. England,
307 F.3d 1092 (9th Cir. 2002), evidence of racially discriminatory
remarks for which the employer was no longer liable were admitted as
background evidence, as Beverly points out. However, unlike this case,
Lyons was a case alleging racial discrimination, so the remarks were some
evidence of the employer's attitude to race. Race is not an issue in this
case as it now stands.
Beverly has also cited Whitten v. Farmland Industries. Inc.,
759 F. Supp. 1522 (D. Kan. 1991), to show that "[c]ourts have admitted
statements made by managerial and supervisory employees of the defendant
which were reckless and mean-spirited to provide evidence of the
defendant's conduct." In Whitten, however, the "reckless" remarks were
introduced in connection with Whitten's claim of fraud, and not with his
Finally, Beverly argues that "[c]ourts have held that facts underlying
the counts no longer before the court may be presented to the court, as
long as those facts are relevant to the remaining count," citing United
States v. Abdelhag, 246 F.3d 990 (7th Cir. 2001). Abdelhag is dissimilar
to this case, since the court there was speaking of the factual
underpinning for criminal charges. In any case, the essence of the
Abdelhag cite is that the facts admitted must still be relevant. Beverly
has not shown relevance. Accordingly, Desmond's motion in limine will be
granted with respect to the seven incidents it has listed.
B. Co-Worker Comments As To Beverly's Age
Desmond also seeks to suppress testimony that Beverly's co-workers,
younger dishwashers, told him that he was "too old to be washing
dishes . . . especially with a college background." Beverly Deposition
Excerpt, attached to Desmond's Motion as Exhibit A.
As the Honorable R. Barclay Surrick recently observed in Wilson v.
Seven Seventeen HB Philadelphia Corp., Civ. A. No. 99-1729, 2003 WL
22709073 (E.D. Pa. Nov. 14, 2003), the Third Circuit has repeatedly held
that discriminatory comments by nondecisionmakers may be used to build a
circumstantial case of discrimination. 2003 WL 22709073 at *5, citing
Abrams v. Lightolier Inc., 50 F.3d 1204, 1214 (3d Cir. 1995), and also
Walden v. Georgia-Pacific Corp., 126 F.3d 506, 521 (3d Cir. 1997), cert.
denied 523 U.S. 1074 (1998); Brewer v. Quaker State Oil Refining Corp.
72 F.3d 326, 333 (3d Cir. 1995).
However, not all stray remarks by nondecisionmakers are admissible.
Rather, although the remarks are not categorically excludable, a court
retains its normal discretion to exclude such evidence under general
relevancy principles as set forth in Fed.R.Evid. 401. Walden,
supra at 521-522.
In Ryder v. Westinghouse Electric Corp., 128 F.3d 128, 133 (3d Cir.
1997), the Court of Appeals for the Third Circuit directed courts
considering stray remarks to "evaluate factors pertaining to the
declarant's involvement in recognizing a formal or informal managerial
attitude, including the declarant's position in the corporate hierarchy,
the purpose and content of the statement, and the temporal connection
between the statement and the challenged employment action." Here, the
temporal connection between the challenged remarks and Desmond's failure
to promote Beverly to the position of busboy is not clear. It is
apparent, however, that the other Ryder factors weigh in favor of
The remarks were made by other dishwashers, who had no real position in
the corporate hierarchy at Desmond Hotel & Conference Center. They do
not seem to imply, and they do not purport to convey, the attitude of
management. Moreover, the purpose and content of the statements was not
directed toward Beverly's suitability to be a busboy, but a dishwasher.
Therefore, the remarks do not "reflect the declarant's involvement in
recognizing a formal or informal managerial attitude" to Beverly's age,
as required by Ryder, and would be of no use in building a circumstantial
case of age discrimination. For this reason, they are properly excluded.
In accordance with the above discussion, I now enter the following
AND NOW, this 7th day of January, 2004, upon consideration of Defendant
Desmond Hotel and Conference Center's Motion in Limine to Exclude Certain
Evidence, docketed as Document No. 36 in this case, and Plaintiff James
Beverly's response thereto, it is hereby ORDERED that Defendant's motion
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