Opinion
CAUSE NO. TH00-0108-C-T/H
October 24, 2003
ENTRY ON DEFENDANT'S MOTION IN LIMINE
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Anthony Nwanna claims that his former employer, the United States Bureau of Prisons ("BOP") terminated him in violation of the anti-retaliation provisions of Title VII because he participated in an EEO proceeding brought by another BOP employee.
Mr. Nwanna's lawsuit began with other claims as well, including a claim for racial and/or national origin discrimination in the workplace and in the decision to terminate his employment. The court previously granted summary judgment to the Defendant on all claims. The Seventh Circuit Court of Appeals affirmed this court's dismissal of the workplace discrimination claim but reversed this court's summary judgment ruling on the termination discrimination and retaliation claims. This entry refers only to the retaliation claim because in an October 21, 2003 letter to Defense counsel, a copy of which was faxed to the court, and in a subsequent informal telephone conference among the court and all counsel, Mr. Nwanna's lawyer indicated that the termination discrimination claim is being abandoned. Thus, these rulings are made with the understanding that Mr. Nwanna's sole claim at trial will be that he was terminated for retaliatory reasons, in violation of Title VII.
The Defendant, John Ashcroft, answering for the BOP, filed a Motion in Limine seeking to exclude the following matters from discussion or revelation at trial by the parties, their counsel, and their witnesses: 1) references to Plaintiff's claims that he was subject to unequal terms and conditions of employment, including claims concerning training, overtime scheduling, payment for overtime, performance appraisals, and Carol Smeltzer's treatment of him, to include Plaintiffs Exhibits 13 and 18; 2) any "me too" testimony which may attempt to support Plaintiffs allegations by asserting that other individuals have been discriminated against or retaliated against by the Bureau of Prisons; 3) any evidence, hearsay or otherwise, concerning other acts of alleged discrimination or retaliation by the Bureau of Prisons; 4) any memos or letters prepared after Plaintiff's termination with respect to his student loan defaults, including letters dated April 25, 1996 and May 25, 1996, as identified in Plaintiffs Exhibits 24 and 27; 5) Affidavit/Interviews from Plaintiff, J.J. Clark, Chris Rollins, Beverly Macklin, Rick Stallkamp, Mark Franklin, Carolyn Smeltzer, and John Smith as identified in Plaintiff's Exhibits 34-44; 6) the EEO Preliminary Investigation as identified in Plaintiffs Exhibit 19; 7) the EEO Affidavit/Interview of Plaintiff submitted in lwuagwu's EEO charge as identified in Plaintiffs Exhibit 50; 8) EEO Statistical Evidence as identified in Plaintiffs Exhibits 48 and 49; and 9) Plaintiffs job description and his performance standard for his position with the Bureau of Prisons as identified in Plaintiffs Exhibits 45 and 46. The court addresses each of these matters in turn:
1. References to Plaintiff's Claims that He was Subject to Unequal Terms and Conditions of Employment
The Plaintiffs claims of unequal terms and conditions of employment were dismissed by the court, thus, any evidence of discriminatory work conditions against the Plaintiff is irrelevant in the trial of the retaliation claim and inadmissible under Federal Rule of Evidence 402. Even if relevant, such evidence should be excluded under Rule 403 because its probative value would be substantially outweighed by the danger of unfair prejudice to the Defendant and confusion of the issues. Furthermore, the Plaintiff has not presented any argument about possible probative value of the evidence. The Defendant's Motion in Limine is GRANTED as to any evidence of discrimination concerning unequal terms and conditions of employment. This exclusion includes Plaintiff's Exhibits 13 and 18, which pertain to a suggestion Plaintiff made to the Clinical Director about a way to improve the quality of patient care.
2. "Me Too" Testimony and
3. Evidence Concerning Other Acts of Alleged Discrimination or Retaliation
The Defendant essentially lodges attacks on some of the same type of evidence, but from two different evidentiary angles in the second and third parts of his motion. Defendant raised both arguments in anticipation that Plaintiff would attempt to elicit testimony from various current and former BOP employees about allegedly discriminatory conduct that the witnesses may have personally experienced (anticipated testimony of Marcel Ihenacho, Charleston Iwuagwu, and Dr. Fred Lee Crockett) and about allegedly discriminatory conduct that the witnesses may have personally witnessed (anticipated testimony of Ihenacho, Iwuagwu, Crockett, Martin, Garrett, and Franklin). Additionally, Defendant argues for both motions that any testimony by the Plaintiff in the form of the Plaintiffs own individual observations about how other African-American PAs of Nigerian descent were treated should be excluded. In the second part of the motion, Defendant argues that this testimony is irrelevant, and even if relevant, its probative value is outweighed by the prejudicial effect of permitting such testimony. As for the third part of the motion, Defendant argues that the testimony should be excluded to the extent the information is not based on personal knowledge, but merely expressed as an opinion about alleged discrimination in the workplace, generally.
Plaintiff argued in his Brief in Opposition to Defendant's Motion in Limine that such testimony is admissible because it is relevant to prove discriminatory intent or pretext. The Plaintiff further asserted that to the extent the court was concerned with the potential prejudicial impact of the testimony, the court could allow Plaintiff to make an offer of proof, rather than issuing a blanket order to preclude such testimony. Additionally, the Plaintiff argued that testimony that a witness provides based on personal knowledge with regard to any acts of discrimination or retaliation should be allowed under Federal Rules of Evidence 602 and 701.
Recognizing the potential strength of both the Plaintiff's and Defendant's arguments, the court accepted Plaintiff's invitation and permitted Plaintiff to make a proffer of evidence on this argument. However, Plaintiff did not submit a proffer of evidence, but instead, faxed the previously discussed letter to the court on October 21, 2003. The relevant portions of the letter indicated the Plaintiff would be "prepared to discuss at the pre-trial conference the withdrawal of claims that relate specifically to discrimination solely on the basis of race" and concluded as follows: "Therefore, I believe that the information before the Court is sufficient to permit the Court to rule on Defendant's Motion in Limine as they relate to any proffer of evidence that I would need to make to oppose certain portions of that motion." In an informal telephone conference with the court and Defense counsel later the same day, the Plaintiff clarified that Plaintiff would not raise at trial the argument that Plaintiff experienced discrimination on the basis of race and/or national origin, but intends to pursue the retaliation claim only. Plaintiff also disclosed that he would not present the testimony of Ihenacho, Iwuagwu, and Crockett at trial. The court therefore need not address the merits of the arguments raised by both parties concerning the admissibility of the testimony of Ihenacho, Iwuagwu, and Crockett. Defendant's motion to prohibit Ihenacho, Iwuagwu, and Crockett from offering at trial any "me too" testimony and opinion testimony about other acts of discrimination is GRANTED.
This leaves the issue of whether the Plaintiff or any of the remaining witnesses may testify as to any discrimination against other individuals by the Defendant that the witness has observed. Both parties agree that testimony by a witness must be based on that witness's personal knowledge. See Fed.R.Evid. 602. Neither party seems to suggest that hearsay testimony should be admitted. See Fed.R.Evid. 802.
One issue appears to be the extent to which witnesses may be permitted to offer their opinion concerning certain events. Rule 701 provides that a witness not testifying as an expert, who wishes to provide testimony in the form of opinions or inferences "is limited to those opinions or inferences which are (a) rationally based on the perception of the witness" and (b) "helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Precisely about what the witnesses may purport to opine is unknown to the court. Again, although the Plaintiff suggested that the court request an offer of proof from the Plaintiff regarding this testimony, when the court requested a proffer of evidence, the Plaintiff did not follow through. The Defendant's brief is equally unclear as to what specific testimony it seeks to have excluded. The court can offer only as specific a ruling in this motion in limine as the parties' briefs permit. It is clear that conclusory lay opinions with respect to whether certain actions were done with discriminatory or retaliatory intent is often not helpful to a clear understanding of the testimony, and should, thus, rarely be admissible. See Hester v. BIC Corp., 225 F.3d 178, 185 (2d Cir. 2000) (holding that in employment discrimination actions, "Rule 701(b) bars lay opinion testimony that amounts to a naked speculation concerning the motivation for a defendant's adverse employment decision" because "`the witness's opinion as to the defendant's [ultimate motivations] will often not be helpful within the meaning of Rule 701 because the jury will be in as good a position as the witness to draw the inference as to whether or not the defendant' was motivated by an impermissible animus" (quoting United States v. Rea, 958 F.2d 1206, 1216 (2d Cir. 1992)); Lynch v. City of Boston, 180 F.3d 1, 17 (1st Cir. 1999) ("Even though rationally based on the witness's personal perception, lay opinion testimony will be excluded if it is not `helpful' to the trier of fact. Lay opinions are not helpful when the jury can readily draw the necessary inferences and conclusions without the aid of the opinion." (citing 7 J. Wigmore, Wigmore on Evidence §§ 1917- 18)); Mitroff v. Xomox Corp., 797 F.2d 271, 276 (6th Cir. 1986) (stating "seldom will be the case when lay opinion on an ultimate issue will meet the test of being helpful to the trier of fact since the jury's opinion is as good as the witness'"). Therefore, the Defendant's motion is GRANTED and the court bars any opinion testimony about discrimination or retaliation in the workplace or on employment or termination decisions by the BOP.
But beyond the issue of lay opinions, the larger question remains about whether the Plaintiff, or other witnesses, may give testimony about the BOP's treatment of other employees, such as Iwuagwu, Ihenacho, Drs. White and Carter. Such testimony presents potential dangers in terms of relevance, prejudice, confusion and distraction of the jury from the issues to be decided. The court is also aware, based on the submissions the Plaintiff made in opposition to the Defendant's Motion for Summary Judgment (when he was acting pro se) and other statements of the Plaintiff, such as Exhibit 50, Mr. Nwanna has previously made statements about actions taken by the BOP regarding other employees which contain information about which he has no firsthand knowledge, and he has a tendency to characterize such things as discriminatory or retaliatory. If Mr. Nwanna, or anyone else, were to blurt out unfounded statements or characterizations of events in the presence of the jury, the prejudice to the Defendant could not be undone. Consequently, the court proceeds cautiously. The court previously offered the Plaintiff the opportunity to proffer the firsthand basis of potential testimony about the BOP's treatment of other employees, and no such proffer has been received. The court's offer to consider such a proffer outside of the presence of the jury remains open. But until a proffer is made to the court, and is approved, the Defendant's Motion in Limine with respect to any testimony about the BOP's treatment of any employee other than the Plaintiff is also GRANTED. The Plaintiff will have to show through his proffer that the testimony will be based on firsthand, personal knowledge observations, not hearsay, and that there is sufficient evidence (again, based on firsthand, personal knowledge observations, not hearsay or unsupported personal opinions of a witness) for the jurors to conclude that the treatment of others was discriminatory/retaliatory as part of an ongoing, pervasive pattern of discrimination/retaliation. Absent such a showing, any reference to such things is prohibited.
4. Letters of April 25, 1996 and May 25, 1996
The Defendant argues that two letters concerning Plaintiff's student loans, dated April 25, 1996 and May 25, 1996, (Pl.'s Exs. 24, 27) should be excluded. The letter dated April 25, 1996, is a letter written by Plaintiff to the U.S. Department of Education regarding the dispute on the default status of the student loan. The letter dated May 25, 1996, is a letter from the U.S. Department of Education to Plaintiff informing Plaintiff that his loan had been sold to a new lender.
Defendant argues that they are not relevant because the April 25, 1996 letter was never provided to the Warden and the May 25, 1996 letter was prepared after Plaintiff's employment ended. Plaintiff argues only generally that they are relevant and that to the extent Plaintiff believes he provided a copy of the April 25 letter to the BOP, the issue is an issue of fact for the jury.
To succeed on a claim of retaliation, a plaintiff must demonstrate that the proffered reason for the discharge by the Defendant is a pretext, which may be accomplished by demonstrating that the proffered reason is not credible. See Milbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir. 2002). The possible relevance of the letters, if any, as posed by the parties, would be to determine the Warden's state of mind. Plaintiff was first notified in the afternoon of April 10, 1996 of his possible termination when he was given a letter of proposed termination. The reason stated in the letter for the proposed termination was that Plaintiff had failed to reveal defaulted student loans on his application for employment at the prison. After April 10, Plaintiff was given several opportunities to explain why he did not disclose the defaulted loans. On May 3, 1996, Plaintiff was officially informed that he was terminated.
With respect to the May 25, 1996 letter, it is clear that the letter was created after Plaintiff was terminated and could not have had bearing on the Warden's intent. Aside from a conclusory statement that the May 25 letter is relevant, Plaintiff has offered no explanation as to how the letter is relevant. The Defendant's motion to exclude the May 25, 1996 letter is GRANTED.
The relevance of the April 25, 1996 letter (Pl.'s Ex. 24) would be conditioned on whether the Warden had read the letter before May 3, 1996. The Plaintiff implies in his objection to the Motion in Limine that he will testify that he gave a copy of Exhibit 24 to the Warden prior to May 3. The content of Exhibit 24 seems to be the Plaintiff's explanation to the Department of Education that his student loans were not actually in default. As such, if the Plaintiff can offer proof that Exhibit 24 was made available to the Warden prior to the termination decision, it would have some relevance on whether the Warden's decision was based on the student loans. Under those conditions, the Motion in Limine as to the Exhibit 24 is DENIED.
Although, it is curious that the Plaintiff would actually want to offer such an exhibit. First, the April 25 letter is essentially an admission that the U.S. Department of Education was in fact treating his loans as being in default, a fact that he had not disclosed to the BOP. Second, he states in that letter: "I have not been able to obtain any meaningful job or credit because of this erroneous GSL classification on my credit." Such a statement suggests that he did not consider his BOP job to be meaningful, or perhaps that he concealed the defaulted loan information in order to obtain that job. Nonetheless, the Plaintiff is the master of his evidence, and if he adequately documents delivery of a copy of Exhibit 24 as indicated above, he can offer it into evidence if he desires to do so.
5. Affidavit/Interviews
Defendant argues that the affidavits and/or interviews, obtained during the course of Plaintiffs EEO charge, taken of Plaintiff, J.J. Clark, Chris Rollins, Beverly Macklin, Rick Stallkamp, Mark Franklin, Andrew Rupska, Yves Paul-Blanc, Carolyn Smeltzer, and John Smith (Pl.'s Exs. 34-44) are not admissible in lieu of the witness testifying at trial because they are hearsay and should be excluded under Rule 802. Plaintiff has not argued that any exceptions to the hearsay rule are applicable. The Defendant's motion to exclude the affidavits/interviews obtained during the course of the Plaintiffs EEO charge is GRANTED.
6. EEO Preliminary Investigation
Defendant argues that the EEO Preliminary Investigation (Pl.'s Ex. 19) should be excluded because it constitutes hearsay. Because the Plaintiff has not advanced any response to the Defendant's argument to explain how the Investigation report falls under an exception to the hearsay rule, Defendant's motion to exclude the EEO Preliminary Investigation Report is GRANTED.
7. EEO Affidavit/Interview of Plaintiff Submitted in Mr. Iwuagwu's EEO Charge
Defendant argues that Plaintiff's Affidavit/Interview submitted pursuant to Iwuagwu's EEO charge (Pl.'s Ex. 50) should be excluded as inadmissible hearsay. Additionally, Defendant argues that the evidence is not relevant because only the fact that Plaintiff made a statement in support of Iwuagwu's EEO charge is relevant, not the contents of the affidavit. Lastly, Defendant argues, even if relevant, the probative value would be outweighed by the unfair prejudice on the Defendant who would be required to defend itself in a mini-trial concerning Iwuagwu's claims.
Actually, it is only relevant that the Plaintiff made a statement in support of Marcel Ihenacho's EEO complaint prior to his termination. Exhibit 50 was a statement of the Plaintiff given in support of Iwuagwu's EEO complaint in November of 1995, well after Plaintiffs termination. Thus, even the giving of Exhibit 50 is not relevant.
Plaintiff argues that the affidavit and interview statement on behalf of Iwuagwu goes to support general evidence of discrimination. Second, Plaintiff argues that the statements are based on Plaintiffs personal knowledge. Third, Plaintiff argues that the affidavit/interview, as well as the testimony of others who were subjected to either discrimination or retaliation, serve as the basis for Plaintiffs non-subjective analysis and that the information concerning Iwuagwu's complaint is relevant to demonstrate an ongoing, pervasive pattern of discrimination and/or retaliation.
The court need not address the relevance issue because the materials constitute inadmissible hearsay and are excluded pursuant to Rule 802. It is apparent from the Plaintiffs argument that the statements in the Affidavit/Interview would be offered for the truth of the matter asserted. Moreover, the Plaintiff has not demonstrated why the evidence would fall under an exception to the hearsay rule. Even if the court determined the material to be relevant, it is not clear why the same information could not be conveyed by Plaintiff during his testimony at trial. Defendant's motion to exclude Plaintiffs Affidavit/Interview taken in the course of Iwuagwu's charge is GRANTED.
Again, as previously discussed, lay opinions by the Plaintiff about whether the BOP's treatment of Iwuagwu (or anyone else, for that matter) was discriminatory or retaliatory will not be admissible.
8. EEO Statistical Evidence
Defendant argues that the EEO Statistical Evidence (Pl.'s Exs, 48, 49) should be excluded because they constitute inadmissible hearsay. Plaintiff has not advanced any argument as to why the statistical evidence should fall under an exception to the hearsay rule; thus, the Defendant's motion is GRANTED and the court holds that the statistical evidence is inadmissible.
9. Plaintiff's Job Description and Performance Standards
Defendant seeks to exclude the job description and performance standards information submitted by Plaintiff (Pl.'s Exs. 45, 46). Plaintiff has not explained the relevance of the documents in its Brief in Opposition. Consequently, the court will not speculate as to the possible relevance of the documents to the issues at trial. Defendant's motion to exclude the job description and performance standards documents is GRANTED.
CONCLUSION
The Defendant's Motion in Limine is GRANTED in part and DENIED in part. With respect to all matters for which the motion is granted, it is ORDERED that the parties and their counsel and witnesses shall not mention or refer to such matters in the presence of the jury or offer evidence of such matters to the jury, without counsel first consulting and obtaining express permission from the court outside the presence of the jury. Counsel are ORDERED to inform the parties and all of their witnesses of this order, and are to explain it to them so that their testimony does not violate this ruling.
ALL OF WHICH IS ORDERED.