The opinion of the court was delivered by: O'neill, J.
Plaintiff Marie Cange filed a complaint against her former employer, defendant Philadelphia Parking Authority, alleging discrimination based on her national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d and 2000e, the Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071 (Nov. 21, 1991), and the Pennsylvania Human Relations Act, 43 Pa. Stat. § 951 et seq. Both parties have filed numerous motions in limine with responses. Plaintiff has also filed a motion to compel and defendant responded. Relevant facts are set forth in my memorandum deciding the parties' cross motions for summary judgment.
Plaintiff seeks to compel defendant to produce an explanation regarding the disposition of any videos which may have been taken of certain specified employees who were charged with sleeping while on duty. In its response to plaintiff's request for these videos, defendant stated that no videos were available to be produced. Plaintiff insists that defendant was aware as early as February 2007 that it should preserve all of the requested videos. However, she points to no evidence or reason for me to believe that videos existed for all of these employees or, if they did exist, were not destroyed in the regular course of defendant's business prior to February 2007.
Indeed, all of the incidents appear to have occurred in the fall of 2006 or earlier.
Fact discovery closed on May 1, 2009. Defendant provided plaintiff with documents pertaining to these witnesses in response to plaintiff's request in a timely fashion. Plaintiff does not suggest defendant improperly withheld any requested documents or in any other way attempted to delay or evade full and complete disclosure of documents. Plaintiff has been aware that defendant did not provide what plaintiff deems to be a full explanation of the disposition of the videos since the close of discovery, yet she waited over nine months after the close of discovery to move to compel. Plaintiff's motion to compel will be denied.
Plaintiff and defendant each move to preclude the other from introducing certain evidence on the grounds that it is not relevant or unfairly prejudicial. Federal Rule of Evidence 401 defines "relevant evidence" as "evidence having 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." Rule 403, an exception to the rule that all relevant evidence is generally admissible, provides that "[a]lthough 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 considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
I. Defendant's Motion to Exclude Evidence of Purported Discrimination Against Elias Cange, Patrick Jacques and Marise Pierre
Defendant moves to preclude plaintiff from introducing evidence pertaining to defendant's decisions to terminate Elias Cange, Marise Pierre and Patrick Jacques. Defendant anticipates that plaintiff will argue these three individuals were discriminated against by defendant on the basis of their Haitian national origin. Defendant argues such evidence should be excluded because it is irrelevant and unfairly prejudicial.
While evidence of other acts performed by a defendant is not admissible to prove that the defendant's action towards the plaintiff is "in conformity therewith," the other acts may be admissible to prove intent. Fed. R. Evid. 404(b). In employment discrimination cases, the Court of Appeals has permitted the introduction of evidence of other employees who allege discriminatory treatment by the employer if the evidence tends to make it any more or less probable that the employer had a discriminatory intent when it terminated the plaintiff. Abrams v. Lightolier, Inc., 50 F.3d 1204 (3d Cir. 1995) (finding evidence of how the employer treated other members of the protected class probative of whether the employer harbored a discriminatory intent towards the plaintiff); see also Becker v. ARCO Chemical Co., 207 F.3d 176, 194 n.8 (3d Cir. 2000) (collecting cases and stating "as a general rule, evidence of a defendant's prior discriminatory treatment of a plaintiff or other employees is relevant and admissible under the Federal Rules of Evidence to establish whether a defendant's employment action against an employee was motivated by invidious discrimination."). The Court has stated,
The effects of blanket evidentiary exclusions can be especially damaging in employment discrimination cases, in which plaintiffs must face the difficult task of persuading the fact-finder to disbelieve an employer's account of his own motives.
Circumstantial proof of discrimination typically includes unflattering testimony about the employer's history and work practices-evidence which in other kinds of cases may well unfairly prejudice the jury against the defendant. In discrimination cases, however, such background evidence may be critical for [the] jury's assessment of whether a given employer was more likely than not to have acted from an unlawful motive.
Glass v. Philadelphia Elec. Co., 34 F.3d 188, 195 (3d Cir. 1994) (quoting Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir. 1988)).
Evidence that the employer discriminated against other members of the protected class requires a showing that the other employees' situations were closely related to the plaintiff's circumstances, theory of the case and were temporally proximate. See Sprint/United Mgmt. Co. v. Mendelsohn, 128 S.Ct. 1140 (2008) ("The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case."); Stair v. Lehigh Valley Carpenters Local Union No. 600 of United Bhd. of Carpenters and Joiners of America, 813 F. Supp. 1116, 1119 (E.D. Pa. 1993) (finding evidence of discrimination against others was relevant only if the incidents were not too remote in time or too dissimilar from plaintiff's situation).*fn1 In Stair, this Court considered whether evidence of sex discrimination by certain of the defendants against another woman, Kay Doyle, was relevant in the plaintiff's case. The defendants in that case argued the Doyle evidence was not relevant because circumstances involving the plaintiff and Doyle were not similar. Plaintiff was a union member and Doyle was a secretary for the union. There was also a lack of identity between all of the defendants in the Doyle case and the defendants in the Stair action. This Court found that such differences did not render the evidence of discrimination against Doyle irrelevant.
Relevant evidence may be excluded when the probative value of the evidence is substantially outweighed by the danger of unfair prejudice or confusion of the issues. Thus, in Stair, 813 F. Supp. at 1119, because the events involving Doyle had occurred four years prior to the events involving the plaintiff, this Court held that the probative value of the evidence was outweighed by the danger of unfair prejudice under Rule 403 due to the lengthy gap in time. Cf. Abrams, 50 F.3d at 1215 ("Although we find the so-called 'testimonials' of former employees to be less probative of Kurtz's discriminatory attitude and more inflammatory than Kurtz's two age-based comments, we cannot conclude that the determination that its probative value outweighed its prejudicial impact was 'irrational and arbitrary.'")
A. Elias Cange and Patrick Jacques
Defendant argues that evidence pertaining to Elias Cange and Patrick Jacques is irrelevant because the circumstances surrounding their terminations are not sufficiently similar to plaintiff's situation. I find that the evidence pertaining to Cange and Jacques is relevant and should not be excluded. Defendant's motion to exclude all evidence pertaining to these two witnesses will be denied. Plaintiff may introduce evidence relating to Cange and Jacques that tends to make it more probable that defendant acted with a discriminatory intent when it terminated plaintiff. Plaintiff argues this evidence demonstrates that Cange and Jacques were terminated for violating defendant's policies and did not receive progressive discipline while non-Haitian co-workers were not terminated but received suspensions and warnings.*fn2 If proved, such inconsistent behavior on the part of defendant could cause a reasonable jury to doubt the reason offered by defendant for its termination of plaintiff.
The events related to Cange and Jacques occurred in 2005--just one year before the events related to plaintiff. As with plaintiff, William Raymond conducted Cange's and Jacques's grievance hearings. All three allege the discrimination against them was based on their national origin--Haitian. Although there are some differences between Cange and Jacques's terminations on the one hand and plaintiff's termination on the other--e.g. Cange and Jacques' terminations were based on issues related to misappropriation of money while the reason cited for plaintiff's ...