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United States District Court, E.D. Pennsylvania

January 7, 2004.


The opinion of the court was delivered by: JACOB HART, Magistrate Judge


I. Introduction

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 be granted. Page 2

 II. Discussion

 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. Page 3

  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 ADEA claim. Page 4

  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. Page 5

  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 exclusion.

  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. Page 6

 C. Conclusion

  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 is GRANTED.


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