The opinion of the court was delivered by: Gene E.K. Pratter, J.
Susan Seybert has sued her employer, The International Group, Inc. ("IGI"), claiming sexual harassment based on an arguably hostile work environment, retaliatory harassment, and retaliatory discharge, under Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act. After the close of discovery, IGI filed a motion for summary judgment, which was denied by the Court on March 17, 2009. In anticipation of the upcoming trial, Mrs. Seybert has filed a motion in limine seeking to exclude certain of her email exchanges that IGI seeks to use at trial. Mrs. Seybert argues that the emails are irrelevant to the claims and defenses in the case and, even if relevant, are not sufficiently probative, especially given the nature and content of the emails.
Some of the emails at issue have obviously sexual content, and arguably fall under the purview of Federal Rule of Evidence 412, which calls for an in camera hearing to evaluate admissibility. Other emails are not sexual in nature, and do not implicate Rule 412. In the interest of judicial economy, the Court held an in camera hearing on October 8, 2009, to evaluate all of the contested emails, whether or not they are, or may be, covered by Rule 412.
For the reasons that follow, the Court denies Mrs. Seybert's motion in part, and grants the motion in part. The Court denies the motion with respect to all of the challenged exhibits except for one exhibit, Exhibit 62, which is an email exchange containing banter about health topics and Mrs. Seybert's use of antidepressant medications. With respect to Exhibit 62, the Court grants the motion.
To the extent the motion is denied, the denial is without prejudice to Mrs. Seybert to object on any appropriate basis at trial, if and when IGI actually proffers some or all of the exhibits in question. The Court will evaluate the propriety of the offering of the exhibit(s) and the objections at trial, once the Court has the precise context and contours of the case as presented.
II. STATEMENT OF PERTINENT FACTS
The parties' respective assertions of fact are recounted in the Court's March 17, 2009,
Memorandum. For present purposes, it is sufficient to state that Mrs. Seybert claims that her IGI supervisor, Brett Marchand, subjected her to harassment because of her gender and in retaliation for her complaints to management about his sexually harassing conduct. Mrs. Seybert also claims that she was discharged by IGI in retaliation for her complaints regarding Mr. Marchand's behavior.
With respect to overtly sexual behavior, Mrs. Seybert alleges that Mr. Marchand stared at her breasts on two separate occasions. She also alleges that he made the following comment to her, at a work-sponsored Recognition Dinner, regarding a particularly indulgent dessert: "I heard it's really good if you go down deep, into the chocolate, with your berry." This comment was allegedly made in front of Mrs. Seybert's work colleagues, including supervisors.
With respect to offensive actions that were not overtly sexual, Mrs. Seybert alleges that Mr. Marchand berated and yelled at her on a number of occasions, ignored her in a manner that made it difficult for her to do her job correctly, and gave her a bad performance review that deprived her of a raise or bonus and ultimately contributed to her termination by IGI.*fn1
Twelve exhibits are covered by Mrs. Seybert's motion in limine, specifically Exhibit 40, Exhibit 41, Exhibit 44, Exhibit 44A, Exhibit 51, Exhibit 55,*fn2 Exhibit 56, Exhibit 57, Exhibit 59, Exhibit 61, Exhibit 62, Exhibit 63, and Exhibit 79. Seven of these exhibits arguably have some sexual content, while Exhibits 41, 44, 44A, 51, 62, and 63 do not.
The exhibits with sexual content include emails that were exchanged between Mrs. Seybert and other individuals, most of whom were IGI personnel. These emails were exchanged using IGI hardware and software, during Mrs. Seybert's regular hours of employment with IGI, and at IGI office locations. It appears that all of the emails were dated during the last five months of Mrs. Seybert's employment at IGI. They consist of various stories, jokes, photographs, cartoons and the like, along with occasional commentary from Mrs. Seybert or others along the specific email chain. They use sexual words, metaphors, puns, double entendres and other innuendo, in a possible attempt to amuse, entertain and convey various messages in a supposedly humorous fashion.
The exhibits without sexual content also include emails that were exchanged between or among Mrs. Seybert and other individuals, most of whom also were IGI employees. Again, these emails were exchanged using IGI hardware and software, during Mrs. Seybert's regular hours of employment with IGI, and at IGI office locations. With the exception of Exhibit 62, the emails use anecdotes, jokes, and cartoons to convey messages about corporate supervisors, mangement and culture, and the apparent perils and banality of corporate life. Generally, these emails are not flattering to corporate managers as a class, group or category.
A. Applicability of Rule 412 to the Exhibits Involving Sexual Content
Mrs. Seybert asserts, and IGI disputes, that Rule 412 of the Federal Rules of Evidence applies to the Seybert email exchanges that have sexual content. Rule 412, which is titled "Sex Offense Cases; Relevance of Victim's Past Sexual Behavior or Alleged Sexual Predisposition," states:
(a) Evidence generally inadmissible.
The following evidence is not admissible to any civil or criminal proceeding involving alleged sexual misconduct except as ...