The opinion of the court was delivered by: Judge Rambo
The only remaining claim in this federal civil rights case is Plaintiff, Alok Sarin's ("Sarin"), claim that he was subjected to a racially/ethnically hostile work environment by Defendant, Poojan, Inc. d/b/a Arby's ("Poojan"), his former employer, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Trial is scheduled for April 4, 2011. Pending are four motions in limine.
Because the court writes only for the parties, it will relay only those facts necessary to dispose of the currently pending motions. For a complete factual and procedural history, see Magistrate Judge Prince's Report and Recommendation dated April 30, 2010, (Doc. 42), and this court's order dated June 28, 2010, (Doc.47), adopting that Report and Recommendation.
On August 9, 2006, Sarin filed a complaint with the Pennsylvania Human Relations Commission ("PHRC"), alleging harassment, discrimination, and wrongful discharge on the basis of national origin. (Doc. 31-3.) In January 2007, the PHRC made a finding of probable cause, (Doc. 14-3), and in September 2007, issued a right-to-sue letter.
Sarin filed a complaint in federal court containing four counts: Count I under Title VII claiming discrimination based on national origin; Count II under the Pennsylvania Human Relations Act ("PHRA"), also claiming discrimination based on national origin; Count III for common-law fraud; and Count IV for unjust enrichment. Upon motion by Poojan, the court dismissed Counts III and IV of the complaint on December 22, 2008. (Docs. 6 & 19.)
On January 24, 2010, Poojan moved for summary judgment on the two remaining counts. The two remaining counts consisted of a disparate treatment claim and a hostile work environment claim. The court granted summary judgment on the disparate treatment claim, but denied summary judgment on Sarin's hostile work environment claim. (See Docs. 42 & 47.) The hostile work environment claim is scheduled to proceed to trial on April 4, 2011.
Before the court are four motions in limine: (1) Plaintiff's motion in limine to preclude Defendant from referencing affirmative defense number 10, (Doc.49); (2) Plaintiff's motion in limine to preclude Defendant from referencing any evidence relating to Plaintiff's termination which was obtained after he was terminated, (Doc. 51); (3) Defendant's motion in limine to preclude evidence relating to previously dismissed claims, including evidence related to lost pay and benefits, (Doc. 53); and, (4) Defendant's motion in limine to preclude evidence related to the findings by the Pennsylvania Human Relations Commission, (Doc. 55). These motions have been briefed by the parties, and are ripe for disposition.
A. Plaintiff's motion in limine regarding affirmative defense number 10
In response to Sarin's complaint, Poojan filed an answer that included eleven affirmative defenses. Sarin seeks to preclude Poojan's assertion of its tenth affirmative defense: that "Plaintiff unreasonably failed to take advantage of preventative or corrective opportunities provided by Defendant or to avoid harm otherwise." (Doc. 23, Affirmative Defenses, ¶ 10.) Specifically, Sarin argues that this affirmative defense is only available to a defendant who has not taken a tangible employment action against a plaintiff, and because Sarin was terminated by Poojan it cannot maintain this defense. Poojan does not dispute that the defense is unavailable where a tangible employment action resulted from a hostile work environment; instead, it argues that no tangible employment action occurred in this case because Sarin's termination resulted not from a violation of Title VII, but rather, solely from the actions of Sarin.
In Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998), the Supreme Court clarified that employers - like Poojan - are vicariously liable for supervisory harassment that culminates in a tangible employment action such as discharge, demotion, or undesirable reassignment. But if there is no tangible employment action, the employer has an affirmative defense if it can prove two elements: "(a) that the employer exercised reasonable care to prevent and correct promptly any [harassing] behavior, and (b) that the . . . employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998). The burden of establishing this defense is the employer's, and it is not an element of the plaintiff's case. Durham Life Ins. Co. v. Evans, 166 F.3d 139, 152 (3d Cir. 1999).
Based on the currently established record, the court cannot conclude, at this stage, that Poojan should be precluded from asserting this defense. The defense is available to Poojan if the evidence at trial suggests that Sarin suffered no "tangible employment action." As described in Faragher, a "tangible employment action" refers to an employment action that culminated directly from the hostile work environment. Faragher, 524 U.S. at 808. If Poojan can successfully convince the jury that Sarin was fired solely because of his own behavior, unrelated to the hostile work environment claim, the defense remains available. However, if the jury concludes, after hearing all of the evidence, that Sarin was fired as a consequence of the hostile work environment- or that he was constructively discharged because of the hostile work environment - then the defense is unavailable.
Ultimately, it is for the jury to decide why Sarin was terminated. A carefully worded jury instruction, and an appropriately tailored verdict slip with jury interrogatories, will ensure that the jury considers these issues ad seriatim so as not to reach the issue of whether the affirmative defense is available before it reaches the preliminary determination as to whether Sarin was terminated as a consequence of a hostile work environment. Accordingly, Sarin's motion in limine will be denied.
B. Plaintiff's motion in limine to preclude Defendant from referencing evidence related to his ...