HENRY S. PERKIN, Magistrate Judge.
This matter is before the Court on Defendant's Third Motion in Limine Withdrawing Defendant's Pending Motion in Limine filed on June 17, 2013. Plaintiff's Memorandum in Response was filed on July 10, 2013, Defendant's Supplemental Brief in Support of the Motion was filed on July 26, 2013, Plaintiff's Memorandum in Opposition of the Defendant's Supplemental Brief was filed on July 29, 2013 and Defendant's Reply to the Response to the Supplemental Brief was filed on July 29, 2013. Having reviewed the contentions of the parties, the Court is prepared to rule on this matter.
Bolden Consent Decree
Defendant moves to exclude evidence of Bolden v. Pennsylvania State Police, Civ. A. No. 73-2604, a class action race discrimination case filed in 1973 and its progeny as well as testimony of Benjamin Brooks, Tyree Blocker and Mark Lomax. Defendant notes that the Bolden litigation applied to hiring and promotion within the ranks of the PSP, which are not at issue in the instant case. In addition, Defendant contends that the Bolden litigation is temporally remote from the incidents in this case. Plaintiff vigorously opposes exclusion of references to the Bolden litigation. The Bolden Consent Decree was dissolved in 1999. While this Court agrees that the Bolden litigation is temporally remote from the incidents in this case, the fourteen years since dissolution of the Bolden consent decree is relevant to Plaintiff's racial discrimination claims. Accordingly, although references to Bolden will be excluded at trial, Plaintiff may introduce evidence regarding events which have transpired since that time.
Events Outside the Scope of the EEOC Charge
Defendant moves to preclude all references beyond the scope of Plaintiff's EEOC charge including the denial of honorable discharge and any evidence of alleged racial discrimination encountered by Plaintiff in the ESS before the events at issue in his EEOC charge. Defendant notes that Plaintiff's denial of an honorable discharge occurred over nine months following Plaintiff's retirement and alleged discriminatory treatment of Plaintiff by Lt. Kruse or Lt. Kulick, Lt. Kruse's predecessor, occurred years before the events at issue. For example, Plaintiff may attempt to place on the record that Lt. Kulick chose a white corporal rather than Plaintiff as second in command or that Lt. Kruse chose a white corporal to fill in when he was on annual leave. Defendant claims that these incidents are untimely and should be barred because a plaintiff may only bring suit in federal courts on claims within the scope of the EEOC charge itself or "the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination, including new acts which occurred during the pendency of proceedings before [the EEOC]." Mot. at 5 (quoting Robinson v. Dalton, 107 F.3d 1018, 1025-26 (3d Cir. 1997). Moreover, Defendant contends that such information would lead to explanations of why those events occurred, which will lead to a separate mini-trial, confuse the jury and otherwise unduly lengthen trial.
Plaintiff responds that the evidence that he was subject to racial discrimination at the ESS before the events giving rise to this action is being introduced solely for background purposes, and not as a distinct claim for relief which is wholly consistent with Supreme Court and Third Circuit precedent. See, e.g., National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002), Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 521 (3d Cir. 2003). Plaintiff further argues that the timely filing of an EEOC charge is not a jurisdictional prerequisite to bringing suit in federal court but is subject to the doctrines of waiver and estoppel. Zipes v. TransWorld Airlines, Inc., 455 U.S. 385, 393 (1982); accord Waiters v. Parsons, 729 F.2d 233, 236 (3d Cir. 1984). Plaintiff notes that the Defendant never raised the issue of Plaintiff's alleged failure to exhaust his administrative remedies in a motion to dismiss or in its summary judgment motion. Even if Defendant had not waived the issue or is not estopped from raising it, Plaintiff argues that "[t]he relevant test in determining whether [a plaintiff] was required to exhaust... administrative remedies... is whether the acts alleged in the subsequent Title VII suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom." Waiters, 729 F.2d at 237. Plaintiff argues that he meets that test because his EEOC charge alleged continuing racial discrimination against him by the PSP, it pointed specifically to the PSP's history of intentional racial discrimination against minorities (as evidenced by the Bolden litigation) and, as to himself, referenced being denied the assignment to head the ESS and then being banished to a year of desk duty at the Gap. Subsequently, and while his case was still pending with the EEOC, Plaintiff claimed that he was forced to retire from the PSP and later was denied an honorable discharge. Both of these issues were included in his federal court lawsuit as part of his Title VII race discrimination claim against the PSP.
As Defendant notes, in determining the scope of the investigation, this Court must examine "1) whether the disputed claim would have been discovered by the EEOC in the course of a reasonable investigation; and 2) whether the claim which would have been uncovered [was] reasonably within the scope of the charge filed with the EEOC.'" Supp. Br. at 4-5 (quoting Tourtellotte v. Eli Lilly and Co., 2013 WL 1628603, at *4 (E.D. Pa. Apr. 16, 2013)(citing Davis v. Kraft Foods N. America, 2006 WL 237512, at *6 (E.D. Pa. Jan. 31, 2006)(quoting Hicks v. ABT Assoc., Inc., 572 F.2d 960, 967 (3d Cir. 1978)). In this case, we agree with Plaintiff that the disputed claim as to the background information of Plaintiff's treatment in the ESS prior to the events giving rise to this action and the denial of an honorable discharge to Plaintiff would have been discovered by the EEOC in the course of a reasonable investigation and that those claims were reasonably within the scope of the charge filed with the EEOC because they substantially overlap with Plaintiff's constructive discharge claim in his exhausted administrative charge. Thus, Defendant's Motion is denied with respect to evidence of Plaintiff's denial of an honorable discharge and evidence of alleged racial discrimination encountered by Plaintiff in the ESS before the events at issue in his EEOC charge.
Carter v. Commonwealth of Pa, PSP
Next, Defendant seeks to preclude Plaintiff from introducing at trial the complaint and answer and all references to the case Carter v. Commonwealth of PA, PSP, No. 08cv5421 (E.D. Pa.). Carter was a class action in which the plaintiffs raised Title VII and ADEA claims regarding the alleged restriction of overtime compensation to minority plaintiffs assigned to a PSP troop with duty related to construction work on the Pennsylvania Turnpike. The context is a 400-hour overtime limit on troopers assigned to certain duties that do not include ESS duties. In that context, the PSP admitted:
125. As a result of the Grievance Board's decision, in mid-2007, the PSP implemented 400 hour limit on overtime per trooper.
129. However, while the troopers subject to the August 22, 2007 cease and desist list were prohibited from working overtime, other troopers throughout the department continued to receive overtime hours far exceeding the departments imposed 400 hour restriction rule, benefitting their yearly salary and retirement earnings.
Defendant contends that the Carter case has no relevance to Plaintiff's case because the instant case involves ESS, a specialized unit not subject to the 400-hour limit that applied to overtime for construction work on the turnpike. The admission that the PSP had not enforced its overtime policy for troopers assigned to the turnpike is a far cry from overtime abuse/theft. Alternatively, Defendant argues that unfair prejudice to the PSP outweighs any probative value, because a jury could inappropriately confuse what applies to non-specialized units such as a construction crew and what applies to ESS. Defendant contends that any clarification between the ESS and non-specialized rank and file including an explanation that the 400-hour restriction does not apply to ESS, would lead to additional confusion and unduly lengthen trial.
Plaintiff responds that there is a "well-established rule that factual allegations in the trial court pleadings of a party in one case may be admissible in a different case as evidentiary admissions of that party." Hardy v. Johns-Mansville Sales Co., 851 F.2d 742, 745 (5th Cir.1988); see Pfizer Inc. v. Teva Pharmaceuticals USA, Inc., 2006 WL 3041102 at *4 (D.NJ. Oct. 26, 2006); see also David F. Binder, Hearsay Handbook § 35:1 (4th ed. 2012) (noting that courts have deemed it reversible error to preclude assertions made by a party-opponent in a pleading in another case). Plaintiff contends that these two admissions are relevant in this case because the first relates to the timing of the newly-promulgated 400 hour rule which was adopted in 2007, the same year that the PSP undertook its investigation of Plaintiff for overtime abuse. Plaintiff notes that there is no evidence that the 400 hour rule was applied to officers working in the ESS, and a jury could conclude that the PSP did not consider it important to limit the number of overtime hours that ESS could work because their hours were a function of their protectees' schedules. Second, Plaintiff contends that these admissions are relevant because they support his claim that the PSP singled him out for selective enforcement. In Plaintiff's Supplemental Memorandum of Law, Plaintiff's counsel states that he will present the Defendant's Answer in Carter for one purpose: establishing the facts that the Defendant had a 400 hour overtime limit that it did not enforce.
Defendant distinguishes Carter as not relevant to the instant litigation because some of the plaintiffs in Carter were white and the overtime limit in Carter is not applicable to specialized units such as ESS. This Court does not agree with Defendant, however, that clarification between the ESS and non-specialized rank and file including an explanation that the 400-hour restriction does not apply to ESS, would lead to additional confusion and unduly lengthen trial. Accordingly, Defendant's Motion is denied with ...