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Smith v. Specialty Pool Contractors

March 25, 2009

ROBERT SMITH, PLAINTIFF,
v.
SPECIALTY POOL CONTRACTORS, DEFENDANT.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM ORDER

In anticipation of trial, both parties have filed Motions in Limine. The Motions have been fully briefed and are ready for disposition. The Motions will be addressed seriatim.

Plaintiff's Motion in Limine to Exclude Evidence of His Old Misdemeanor Convictions (Document No. 38)

Pursuant to Fed. R. Evid. 404(a) and 609, Plaintiff seeks to exclude evidence of his prior misdemeanor convictions for Driving Under the Influence of Alcohol ("DUI"), Simple Assault, and Resisting Arrest. Defendant responds that Plaintiff's June 1999 conviction for Resisting Arrest is admissible under Fed. R. Evid. 609(a)(1) and that "both the Resisting Arrest and Simple Assault convictions, pursuant to Fed. R. Evid. 404(b), are directly relevant to Plaintiff's subjective perception that the work environment at Specialty Pool was hostile or abusive."

Pursuant to Fed. R. Evid. 609(b), "[e]vidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction . . . unless the court determines, in the interest of justice, that the probative value of the conviction . . . substantially outweighs its prejudicial effect. . . ." Plaintiff has three DUI convictions: the first in 1987; the second in August 1995; and the third in September 1995. Plaintiff's conviction for Simple Assault occurred in 1990. These four convictions each occurred outside the ten-year limitation period provided for in Rule 609(b). The Court does not find that the probative value of these convictions substantially outweigh their prejudicial effect should same be admitted as evidence into the trial. Accordingly, Plaintiff's DUI and Simple Assault convictions will be excluded pursuant to Fed. R. Evid. 609(b).

In June 1999, Plaintiff was convicted of Resisting Arrest under 18 Pa. Cons. Stat. § 5104, a second degree misdemeanor in Pennsylvania which carries with it a maximum penalty of two years. 18 Pa. Cons. Stat. § 1104. The Court recognizes that the admissibility of this particular conviction is a close call as it is approaching the ten-year limitation period provided for in Rule 609(b). However, upon careful consideration of both Rule 609(a) and the factors regarding exclusion under Rule 403, the Court finds that the probative value (attacking the character for truthfulness of a witness) of Plaintiff's June 1999 conviction for Resisting Arrest is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Accordingly, said conviction will be admissible pursuant to Fed. R. Evid. 609.

Defendant also argues that Plaintiff's conviction for Simple Assault and his conviction for Resisting Arrest should be admitted pursuant to Fed. R. Evid. 404(b) as the convictions "bear directly on the likelihood of Plaintiff's subjective perception of the hostility or abusiveness of the environment at Specialty Pool." The Court finds this argument to be without merit. Accordingly, neither Plaintiff's conviction for Simple Assault nor his conviction for Resisting Arrest will be admitted under Fed. R. Evid. 404(b).

Accordingly, this Motion is GRANTED IN PART and DENIED IN PART. Plaintiff's conviction for Resisting Arrest will be admissible for the limited purpose as set forth in Fed. R. Evid. 609, to wit, attacking the character for truthfulness of a witness.

Plaintiff's Motion In Limine to Preclude Evidence of Employment History (Document No. 39)

Plaintiff seeks to exclude evidence that he was dismissed from his prior employment with Jiffy Lube for what Defendant calls "stealing" and allegedly was "required after a magistrate hearing" to pay $1,200 restitution to Jiffy Lube. Plaintiff argues that any information with regard to his dismissal from Jiffy Lube is not relevant to the issue of whether Defendant created a racial and/or religious hostile environment and, therefore, should not be admitted.

Defendant responds that, pursuant to Fed. R. Evid. 608(b), it seeks to introduce non-extrinsic evidence of Plaintiff's "theft" related termination from employment with Jiffy Lube, which will be offered solely as a fact bearing on the truthfulness of Plaintiff as a witness. The Court agrees with Defendant that character evidence as to Plaintiff's truthfulness and credibility will be particularly relevant in this case as Plaintiff is the only witness on his behalf who will testify as to whether Defendant created a racial and/or religious hostile work environment.

Pursuant to Fed. R. Evid. 608(b), "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, . . . , 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 (1) concerning the witness' character for truthfulness. . . ."

Accordingly, this Motion in Limine is DENIED and examination of Plaintiff pertaining to Plaintiff's alleged "theft" related termination from Jiffy Lube and the restitution payment will be permitted.

Plaintiff's Motion In Limine to Preclude Evidence of Smith's Post-Employment Conduct (Document No. 40)

Plaintiff seeks to preclude evidence as to his post-employment conduct, i.e., "that instead of attempting to find a sedentary job to cover his financial obligations, he spends his days sleeping, watching television, and shooting pool in a pool league." Resp. at 1. Plaintiff argues that what he "did or did not do, after his employment with Defendant has nothing to do with whether Defendant created a hostile work environment or retaliated against Smith while Smith was employed.*fn1 Therefore, his post-employment conduct is irrelevant to liability." Pl's Mot. at 2.

Defendant responds that this evidence should be admitted under Fed. R. Evid. 404(b) "as proof of Plaintiff's motive and intent in filing this lawsuit. Plaintiff had a clear and direct motive for filing this lawsuit given his current financial situation." Resp. at 2.

Undeniably, character evidence under Rule 404 is often admitted in criminal cases. The argument has been made that circumstantial use of character evidence ought to be allowed in civil cases to the same extent as in criminal cases. However, as the Commentary to Rule 404 explains:

Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows ...


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