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Burns v. Slippery Rock University of Pennsylvania

January 16, 2008

STEPHANIE BURNS, PLAINTIFF,
v.
SLIPPERY ROCK UNIVERSITY OF PENNSYLVANIA, ET AL., DEFENDANT.



The opinion of the court was delivered by: Ambrose, Chief District Judge

MEMORANDUM OPINION and ORDER OF COURT

There are six Motions in Limine pending: 1) To preclude Defendants from introducing evidence concerning Plaintiff's performance in a subsequent Fall 2005 day care center field assignment filed by Plaintiff (Docket No. 75); 2) To preclude Defendant from introducing Dr. Vucinich's May 11, 2006, Letter Concerning Plaintiff's Thyroid Exam filed by Plaintiff (Docket No. 76); 3) To preclude Defendants from introducing evidence concerning Plaintiff's 2003 head lice filed by Plaintiff (Docket No. 77); 4) To exclude testimony and records from trial filed by Defendant Slippery Rock University of Pennsylvania ("SRU") (Docket No. 78); 5) To preclude evidence on Plaintiff's disability filed by Defendant West Middlesex Area School District ("West Middlesex") (Docket No. 79); and 6) To preclude evidence on Plaintiff's Damages filed by West Middlesex (Docket No. 80). The parties have filed responses thereto. Therefore, the issues are now ripe for disposition.

1. Plaintiff's Motion in Limine to preclude Defendants from introducing evidence concerning Plaintiff's performance in a subsequent Fall 2005 day care center field assignment (Docket No. 75)

Plaintiff argues that evidence concerning her performance in a subsequent Fall 2005 day care field assignment should be precluded based on two reasons: 1) it is inadmissible as character evidence under Rule 404(b)*fn1 to show she performed poorly during the prior spring 2005 field assignment; and 2) it is inadmissible as evidence of habit under Rule 406*fn2 because it shows nothing more than a "mere tendency." (Docket No. 75, p. 11). In response, SRU argues that evidence of "Plaintiff's poor performance in yet another "field" assignment the very next semester... is direct evidence that the reasons for removing her from the first assignment were not pretextual." (Docket No. 82, p. 5). West Middlesex argues in a similar vein. (Docket No. 87, pp. 1-2).

The Third Circuit has applied a four part test in determining whether to admit evidence under Rule 404(b):

(1) The evidence must have a proper purpose;

(2) It must be relevant;

(3) Its probative value must outweigh its potential for unfair prejudice; and

(4) The court must charge the jury to consider the evidence only for the limited purposes for which it is admitted.

U.S. v. Rahamin, 168 Fed.Appx. 512, *519, 2006 WL 436021, *4 (3d Cir. 2006), citing United States v. Cruz, 326 F.3d 392, 395 (3d Cir.2003), citing Huddleston v. United States, 485 U.S. 681, 691-92 (1988). The threshold issue under Rule 404(b) is "'whether th[e] evidence is probative of a material issue other than character." United States v. Sriyuth, 98 F.3d 739, 745 (3d Cir. 1996), quoting Huddleston v. United States, 485 U.S. 681, 686 (1988). I find the evidence at issue is inadmissible. Defendants wish to introduce the evidence as direct evidence of Plaintiff's "poor performance." This, however, would demonstrate nothing more than Plaintiff's tendency to act in conformity with her previous alleged behavior. Under these circumstances, the admission of this evidence violates Rule 404(b). Therefore, Plaintiff's Motion in Limine to preclude Defendants from introducing evidence concerning Plaintiff's performance in a subsequent Fall 2005 day care center field assignment (Docket No. 75) is granted.

2. Plaintiff's Motion in Limine to preclude Defendant from introducing Dr. Vucinich's May 11, 2006, Letter Concerning Plaintiff's Thyroid Exam (Docket No. 76)

Plaintiff argues that Dr. Vucinich's thyroid consultation of Plaintiff, which occurred one year after the incident in question, is irrelevant under Rule 402*fn3 and Dr. Vucinich's letter of May 11, 2006, is inadmissible hearsay under Rule 801(c)*fn4 and 802*fn5 and should be excluded under Rule 403.*fn6 (Docket No. 76). As SRU and West Middlesex acknowledge in their responses, the only issue remaining in this case is whether Defendants regard Plaintiff as being substantially limited in the major life activity of speaking. (Docket No. 82, p. 6; Docket No. 87, p. 2). Defendants do not intend to introduce Dr. Vucinich's letter.*fn7 Id. Therefore, Plaintiff's Motion in Limine to preclude Defendant form introducing Dr. Vucinich's May 11, 2006, Letter Concerning Plaintiff's Thyroid Exam (Docket No. 76) is denied as moot.

3. Plaintiff's Motion in Limine to preclude Defendants from introducing evidence concerning Plaintiff's 2003 head lice (Docket No. 77)

Plaintiff argues that evidence of Plaintiff's head lice in 2003 is not relevant under Rule 402 and lacks any probative value under Rule 403 because it is unfairly prejudicial, misleading to the jury and confuses the issues. (Docket No. 77). Additionally, Plaintiff argues that said evidence is also inadmissible character evidence under Rule 404(a)*fn8 because character is not an essential element of an employment discrimination claim. Id. In response, SRU argues that the evidence is relevant to show Plaintiff's lack of professionalism. (Docket No. 82, pp. 1-4). Similarly, West Middlesex argues that it is relevant to show Plaintiff's "poor hygiene, unprofessionalism, and conduct." (Docket No. 87, pp. 1-2). I disagree with SRU and West Middlesex. I do not find a single incident that occurred two years prior to be relevant to Plaintiff's claims of discrimination or tend to ...


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