The opinion of the court was delivered by: Magistrate Judge Caiazza
The Plaintiff's Motion in Limine to preclude the introduction of certain "Standard Teaching Applications" (Doc. 63) will be denied.
In this age discrimination lawsuit, the Plaintiff complains of the Defendants' failure to hire him for any of the six full time elementary teaching positions available for the school year 2002/2003. See Pl.'s Br. (Doc. 64) at 2. Although the admissibility of Mr. Watson's concurrent application (dated March 12, 2002) is not in question, counsel argues that the Plaintiff's prior applications are not relevant and should be excluded. See id. at 3-4.
In response, the Defendants explain that Mr. Watson's prior applications reflected different grade point averages ("GPAs") under his educational background. See Defs.' Br. (Doc. 65) at 2. For his matriculation at Geneva College, the Plaintiff's 2002 application listed a GPA of 2.7, his 1999 application reflected 2.71, and an undated application identified a GPA of 2.9; for Westminster College, the Plaintiff's 1999 and 2002 applications stated a GPA of 4.0, and the undated application listed 3.5. Id. While the Defendants concede they did not review or rely on the prior applications in declining to hire the Plaintiff for the 2002/2003 school year, see id. at 1, counsel argue the evidence is relevant under Federal Rule of Evidence 608(b)(1).
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime . . ., may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness . . . concerning [his] character for truthfulness or untruthfulness . . . .
Numerous courts have held that a witness' provision of inaccurate information on a job application is probative of truthfulness under Rule 608(b)(1). See, e.g. , Schmidt v. Medicalodges, Inc., -- F. Supp.2d --, 2007 WL 3333356, *3 (D. Kan. Nov. 8, 2007) (allowing cross-examination of witness, and admission of evidence establishing misrepresentation, regarding false statements on employment application; truthfulness of witness, called by plaintiff to support her allegations of sexual harassment, "was a material issue in [the] case") (collecting cases); Davidson Pipe Co. v. Laventhol & Horwath, 120 F.R.D. 455, 462-63 (S.D.N.Y. 1988) ("employment applications . . . carry an obligation for truthfulness, [and] falsehoods . . . may be probative of a lack of credibility") (citation omitted). The only question, then, is whether the court in its discretion should allow the evidence. See Fed. R. Evid. 608(b)(1).
In this regard, the court considers whether the evidence is remote in time, whether it is cumulative of other evidence, whether there is some likelihood that the untruthfulness occurred,*fn1 whether the deceptive acts demonstrate a propensity for deception where there is a premium on veracity, and the relationship between the subject matter of the prior deceptive act and the litigation.*fn2 The parties have not addressed these factors, so the court reaches them independently.
The undersigned has no reason to exclude the evidence based on temporal proximity. Only three years passed between the 1999 and 2002 applications, and there is no reason to suspect the undated application far preceded the one in 2002.
See discussion supra ; see also Davidson, 120 F.R.D. at 463 (indicating thirty-year old misrepresentation would be too remote, but five-year gap would not) (citation and internal quotations omitted). The remoteness inquiry also is informed by the fact that applications for ...