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Kirby v. J.C. Penney Corp.

October 27, 2009

MARY KATHLEEN KIRBY, PLAINTIFF,
v.
J.C. PENNEY CORPORATION, INC., DEFENDANT.



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

MEMORANDUM OPINION AND ORDER OF COURT

Presently before the Court is PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF EEOC FINDINGS AND CORRESPONDENCE (Docket entry number 27), and the DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTIONS IN LIMINE (Doc. # 45).*fn1 The motion is ripe for disposition.

I. STATEMENT OF THE CASE

The following background is drawn from the pleadings of the mattter sub judice. Plaintiff brings the present action claiming discrimination due to her race when she was terminated by Defendant from her position as a Custom Decorator on or about May 10, 2007. See, generally, Amended Complaint, Doc. # 14. On November 6, 2007, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging race discrimination, a claim that was cross filed with the Pennsylvania Human Relations Commission ("PHRA")*fn2. Id. at ¶ 2. An investigation by the EEOC followed and on May 13, 2008, a notification was sent to Plaintiff informing her that the file related to her charge of discrimination was being closed and informing her of her right to sue her former employer. See, Doc. # 27 at Exhibit 1. A file was compiled by the EEOC in the course of conducting its investigation. Plaintiff now seeks the exclude a number of specifically identified documents contained within this file, to include the May 13, 2008, correspondence regarding the dismissal and notice of rights.

II. ANALYSIS

Federal Rule of Evidence 401 provides that evidence is relevant if it has "any tendency to 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." Fed.R.Evid. 401. Federal Rule of Evidence 402 provides that "all relevant evidence is admissible." Fed.R.Evid. 402. The Court of Appeals for the Third Circuit has noted that "Rule 401 does not raise a high standard." Hurley v. Atlantic City Police Department, 174 F.3d 95, 109-10 (3d Cir. 1999)(quoting in re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 782-83 (3d Cir. 1994)). Further, the Third Circuit has stated:

[a]s noted in the Advisory Committee's Note to Rule 401, "relevancy is not an inherent characteristic of any item of evidence, but exists only as a relation between an item of evidence and a matter properly provable in a case." Because the rule makes evidence relevant "if it has any tendency to prove a consequential fact, it follows that evidence is irrelevant only when it has no tendency to prove the fact." Blancha v. Raymark Indus., 972 F.2d 507, 514 (3d Cir. 1992)(quoting Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5166, at 74 n. 47 (1978)).

Under Federal Rule of Evidence 403, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403. The Third Circuit has stated that "[t]he weight of the case law holds that Rule 403 may operate on an EEOC report, and that the decision of whether or not an EEOC Letter of Determination is more probative than prejudicial is within the discretion of the trial court and to be determined on a case by case basis." Coleman v. Home Depot, Inc., 306 F.3d 1333, 1345 (3d Cir. 2002)(citations omitted); see also Walton v. Eaton Corp., 563 F.2d 66, 85 (3d Cir. 1977).

Plaintiff objects to the introduction of the identified documents under Fed.R.Evid 403 arguing that the documents' slight (if any) probative value is outweighed by the danger of unfair prejudice and jury confusion. The Court agrees with respect to the Dismissal and Notice of Rights as well as the correspondence from EEOC Investigator Carl Bartolomucci. However, the Court does not agree with respect to the correspondence from Plaintiff's former counsel, Tiffany R. Wasowicz, to the EEOC dated February 14, 2008.

The probative value of the May 13, 2008 Dismissal and Notice of Rights is low and substantially outweighed by confusion and unfair prejudice. At the outset, the Court notes that Plaintiff is not challenging the document as either untrustworthy or not a "public record" under Rule 803(8)(C). As such, admissibility becomes a question under Rule 403. In so considering, the Court is required to balance the probative value and those factors that may substantially outweigh that value. Determinations as to 403 objections are made on a case-by-case basis. Coleman, 306 F.3d at 1345. In this case, there appears to be little probative value to the Dismissal and Notice of Rights. Simply stated, the form appears to be the standard EEOC form 161 (2/08 version), with the standard information identifying the Complainant (Plaintiff), counsel for the parties, and the EEOC charge number assigned by the Pittsburgh area EEOC office. See, Doc. # 27 at Exhibit 1. Beyond that, the report annotates the determination reached by the EEOC forming the basis for the decision to close its file. Specifically, an annotation indicated:

The EEOC issues the following determination: Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any issues that might be construed as having been raised by the charge.

Id. The Court fails to see how what is essentially a non-decision on the part of the EEOC demonstrates any tendency to make the existence of a fact of consequence to the determination of this action more or less probable than it would be without the evidence. The Court notes that Defendant does not challenge the objection to exclude this particular document. Even assuming, arguendo, the Dismissal and Notice of Rights had marginal probative value, any such value would be considerably outweighed by a number of concerns. This document originates from an authoritative government agency, and speaks in terms of an undefined adjudicative process culminating in a conclusory "determination" that the evidence presented to the EEOC did not establish a violation. A jury could easily confuse the meaning of the document as suggestive of the jury's ultimate legal question. Further, in order for any kind of proper context to be provided for the relevance of this determination itself would require the needless presentation of cumulative evidence, namely, an itemization of what evidence was presented and considered by the EEOC. As such, Plaintiff's motion to exclude the Dismissal and Notice of Rights is granted.

Likewise, Plaintiff's motion with respect to the correspondence from EEOC Investigator Carl Bartolomucci is granted. At the outset, the Court notes that this correspondence is hearsay, and appears to be only conceivably relevant for the truth of the matter asserted. Id. at Exhibits 2 and 3. The Court further notes that Defendant has not identified Carl Bartolomucci as a potential witness at trial. It is not clear whether correspondence sent in this fashion in the course of an EEOC investigation satisfies the definition of a public record for purposes of Rule 803(8)(C)*fn3.

The Court need not address that issue in this case in view of its determination that the letters are inadmissible under Fed.R.Evid. 403 for the same ...


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