Summary
concluding that a consent decree could be introduced to establish defendant's intent to discriminate against plaintiff
Summary of this case from United States v. HamdanOpinion
CIVIL ACTION NO: 02-0055, SECTION: "R" (1).
April 11, 2003
ORDER AND REASONS
Before the Court is defendants' Motion for Summary Judgment Regarding The Consent Decree. The motion also raises whether Federal Rules of Evidence 403, 404(b), and 408 prevent plaintiff prom introducing the consent decree to support her Title VII claim of discrimination. To the extent that plaintiff states a claim based on the consent decree, the Court grants defendants' motion for summary judgment. The Court further finds that Rules 403, 404(b) and 408 do not prevent plaintiff from introducing the consent decree into evidence consistent with this Order.
I. Background
Plaintiff, Debra Rice Safford, asserts that defendant, St. Tammany Parish Fire Protection District No. 1, did not hire her on account of her gender and age. Safford claims that her May 2000 application for a full-time firefighter position was unjustifiably passed over in favor of four younger, less-qualified men. Safford applied for a firefighter position for a second time in August 2001. Safford alleges that her second application was passed over in favor of three younger, less-qualified men.
Plaintiff's complaint alludes to a consent decree that defendant entered into with the United States Department of Justice in 1980. The complaint provides:
X-B.
Defendants were obligated to hire/promote certain percentages of women and minorities by a Consent Decree the Fire District entered into with the United States Department of Justice in approximately 1980. Defendants secured their release from the Consent Decree shortly before the round of hiring in which they hired four (4) younger, male applicants and rejected Plaintiff's May 2000 application. Defendants secured their release from the Consent Decree when they failed to inform the Justice Department that the Fire District had lost one of only two female firefighters due to their discriminatory actions.
X-C.
On information and belief, during the period while they were subject to the Consent Decree and thereafter, Defendants failed to institute sufficient policies, procedures and guidelines to prevent discrimination such as that practiced against Plaintiff and/or to affirmatively rectify past discrimination. Alternatively, Defendants breached whatever policies, procedures and guidelines were in effect in their hiring/promotion policies as they affected Plaintiff. In addition, Defendants' failure to institute sufficient anti-discrimination policies precludes their ability to assert a good faith defense in these proceedings.
(Third Amended And Supplemental Complaint.) The consent decree is part of the public record. (Pl.'s Opp. to Def.'s Mot. for Summ. J., Ex. C, Consent Decree.) Before he retired, Chief Eddie Poppler was in charge of the fire department's efforts to comply with the consent decree. After he retired, compliance fell into new hands that began to seek release from the consent decree. The fire department sought release from the consent decree as early as July 1999. It ultimately obtained release in May 2000, the same month that it rejected Safford's first employment application. (Id., Exs. E and L.) Defendant obtained release from the decree even though, in 1999, one of the department's two female firefighters resigned mid-year complaining of discrimination. A September 21, 1999 letter from the fire department to the Department of Justice notes that a firefighter resigned, but the letter does not mention that the firefighter was female. In an April 4, 2000 letter to the Department of Justice, defendant represents that it had two female firefighters in December 1999. Plaintiff alleges that this representation is false and misleading because one of the two female firefighters resigned mid-year. Defendant does not respond to this allegation.
Defendants move for partial summary judgment on plaintiff's claims based on the 1980 consent decree. Defendants further assert that the consent decree is inadmissible pursuant to Federal Rules of Evidence 403, 404(b) and 408.
II. Discussion
A. Motion for Summary Judgment
Defendants assert that summary judgment on plaintiff's claims based on the consent decree is warranted because plaintiff was not a party to the consent decree. In opposition to defendants' motion, plaintiff concedes that she has no standing to assert a claim based on the consent decree. (Pl.'s Opp. to Def.'s Mot. for Summ. J., at 13.) Consistent with this concession, plaintiff points out that she did no: file a contempt action, and did not request a mandatory injunction under state law. Rather, plaintiff's claim is for monetary damages for an alleged violation of Title VII.
To the extent that plaintiff's complaint can be construed as stating a cause of action based on the consent decree, the Court grants defendants' motion for summary judgment. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2551 (1986). Plaintiff may proceed with her cause of action under Title VII.
B. Motion in Limine
In the motion for summary judgment, defendants seek to exclude the consent decree from evidence pursuant to Federal Rules of Evidence 403, 404(b) and 408. The Court provided plaintiff the opportunity to respond to these arguments. Before moving to address the applicability of each of these rules of evidence, the Court notes that plaintiff's failure to mention the consent decree in her EEOC complaint is of no moment. Defendants cite no law requiring plaintiff to list in the EEOC complaint each piece of evidence that may be introduced at trial.
1. The Applicability of Rule 403
Rule 403 provides:
Although 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.
FED. R. EVID. 403. The parties dispute whether the probative value of the consent decree is substantially outweighed by the dancer of prejudice, confusion, and delay. The parties do not cite to Fifth Circuit authority that is squarely on point. The Fifth Circuit has, however, recognized that an employer's history
practices may be probative as to its intent to discriminate. See, e.g., Vance v. Union Planters Corporation, 209 F.3d 438, 445 (5th Cir. 2000); see also Kelly v. Boeing Petroleum Services, Inc., 61 F.3d 350, 360 (5th Cir. 1995) (recognizing that an employer's history and work practices are background evidence that may be critical for the jury's assessment of whether an employer acted from an unlawful motive) Indeed, a district court can abuse its discretion by limiting a plaintiff's ability to show the "atmosphere" in which the plaintiff operated. Kelly, 61 F.3d at 358 (quoting Ratliff v. Governor's Highway Safety Program, 791 F.2d 394, 402 (5th Cir. 1986)). In the same breath, however, the Kelly court found that the district court did not abuse its discretion in ruling at trial that the probative value of evidence of past discriminatory acts would be substantially outweighed by the danger of unfair prejudice and confusion of the issues. Id. at 360. The Kelly court reached this conclusion for three reasons: (1) the supervisor responsible for the past discriminatory act was not involved the decision-making process affecting the plaintiff's employment conditions; (2) there was a dearth of evidence showing the discriminatory animus of the relevant decision-makers; and (3) defendant presented "overwhelming evidence" that the adverse employment action was caused by a personality conflict. Id.
As is the case with most consent decrees, the consent decree in dispute does not stand as evidence that the fire department ever discriminated against other employees in the past. The consent decree provides that it "shall not constitute an admission of any violation of law." (Consent Decree.) As such, the consent decree does not stand as evidence of past discriminatory acts toward other employees. This reduces its probative value, but it does not necessitate its exclusion. Rather, introducing the consent decree to illuminate defendant's evidence of a 1977 consent decree to prove that discriminatory intent motivated an incident that took place in 1986. Figures v. Board of Public Utilities of Kansas City, Kansas, 1990 WL 94346, *7-8 (D.Kan. 1990) aff'd 967 F.2d 357 (10th Cir. 1992). The Figures court noted that because the consent decree did not constitute a finding of liability, the plaintiff could not use the consent decree to intimate that the defendant had, in fact, discriminated in the past. See also Kolstad v. American Dental Association, 139 F.3d 958, 970 (D.C. Cir. 1998) (affirming district court's decision to exclude from evidence a prior consent decree that had expired at the time of the disputed events), rev'd on other grounds 527 U.S. 526, 119 S.Ct. 2118 (1999); Greyhound Computer Corporation, Inc. v. Int'l Business Machines Corp., 559 F.2d 488 (9th Cir. 1977).
Safford asserts that defendant's decision to not hire her in May 2000, despite being obligated by a 1980 consent decree to hire more women, is probative of defendant's discriminatory intent. This is the argument that the plaintiff in Hugo's successfully made. See Hugo's, 974 F.2d at 1413; but see Figures, 1990 WL 94346, *7-8, aff'd 967 F.2d 357. In addition, Safford asserts that the manner in which defendant sought release from the consent decree is probative as to defendant's discriminatory intent because defendant misrepresented its compliance status to the Department of Justice to obtain release from the consent decree less than one year before it rejected Safford's first employment application. If Safford only argued that a 20-year-old consent decree was in effect when defendant rejected her employment application, the Court would find the probative value of introducing the consent decree to be low. But, here, the Court agrees with Safford that defendant's representations to the Department of Justice, which were made in 1999 and 2000, are highly probative as to defendant's intent to discriminate against Safford.
Defendant obtained release from the consent decree in May 2000, the same month that it rejected plaintiff's first employment action. The parties do not provide the exact date of these events, but defendant does not dispute the allegation that the consent decree was in effect when it decided not to hire Safford.
In 1999, defendant had two female firefighters. One of these two women resigned mid-year, complaining of gender discrimination. (Pl.'s Opp. to Def.'s Mot. for Summ. J., Exs. D, F and L.) As part of its campaign to be released from the consent decree, defendant sent a letter to the Department of Justice dated September 21, 1999 indicating that the "only activity we have had in our employees [in the past few months] is to have one firefighter resign." ( Id., Ex. L.) The letter does not point out the highly salient fact that the firefighter who resigned was female or that she voiced complaints about gender discrimination. Further, an April 4, 2000 letter to the Department of Justice included a compliance report for the year ending in December 1999. In the report, defendant represents that it had two female firefighters in December 1999. ( Id., Ex. E.) Plaintiff asserts that this statement is false and misleading. Plaintiff's assertion is supported by the record, and defendant makes no argument to the contrary. From this record, then, it is at least arguable that the fire department made false and misleading statements to the Department of Justice in the course of seeking release from the consent decree. These statements, which were made in September 1999 and April 2000, are highly probative of defendant's intent to discriminate against women in May 2000, when it denied Safford's employment application.
Of course, introduction of the consent decree certainly raises the specter of prejudice. Defendants assert that introduction of the consent decree will cause prejudice, confusion and undue delay in that it will force defendants to (1) explain to the jury the difference between disparate impact cases like the consent decree case and disparate treatment cases like this one; (2) explain statistical disparities in the workforce during the late 1970s and 1980s; (3) justify the department's refusal to hire or promote the claimants involved in the consent decree case; and (4) justify its decision not to hire or promote certain individuals since the consent decree went into effect. These concerns all relate to whether the consent decree stands as evidence of past discriminatory behavior toward other employees. The consent decree, however, provides on its face that it "shall not constitute an admission of any violation of law." (Consent Decree.) The Court therefore finds that the prejudice, confusion and delay that defendants' envision are unlikely.
On balance, the Court concludes that the danger of prejudice, confusion and delay does not substantially outweigh the probative value of the consent decree. Hugo's, 974 F.2d at 1413; Vance, 209 F.3d at 445. The Court will, however, take certain steps to guard against prejudice and confusion. First, the Court bars plaintiff from intimating that the consent decree stands as evidence of any discriminatory act toward any other fire department employee, pre-1980 or otherwise. Second, the Court will provide instructions that focus the jury on the fact that the consent decree does not constitute evidence of a violation of law.
2. The Applicability of Rule 404(b)
Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .
FED. R. EVID. 404(b). This Court has already held that plaintiff may not hold the consent decree out as evidence of past acts of discrimination toward other employees. Plaintiff may use defendant's representations during the course of getting released from the consent decree to establish defendant's intent to discriminate against Safford. Because Rule 404(b) permits introduction of evidence to demonstrate intent, the rule does not render the consent decree inadmissible for this purpose. See also Hugo's, 974 F.2d at 1413.
3. The Applicability of Rule 408
Rule 408 provides:
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
FED. R. EVID. 408 (emphasis added). This rule is intended to encourage the compromise and settlement of disputes, in part by ensuring freedom of communication with respect to compromise negotiations. United States Aviation Underwriters, Inc. v. Olympia Wings, Inc., 896 F.2d 949, 956 (5th Cir. 1990); see also J. McLaughlin, Weinstein, M. Berger, Weinstein's Federal Evidence, Second Edition, 408.02 ¶ (2003). The rationale applies in situations, as here, in which a plaintiff attempts to introduce evidence of a settlement between the same defendant but a different plaintiff. Hudspeth v. Commissioner of Internal Revnue Service, 914 F.2d 1207, 1213 (9th Cir. 1990); Abundis v. United States, 15 Cl. Ct. 619, 620-21 (Cl.Ct. 1988). The rule, however, may be used only to exclude settlement documents that are introduced to prove or disprove the liability or the amount or the claim that was the subject of the compromise. Olympia Wings, 896 F.2d at 956; see also Carney v. The American University, 151 F.3d 1090, 1095 (D.C. Cir. 1998); Uforma/Shelby Business Forms, Inc. v. Nat'l Labor Relations Board, 111 F.3d 1284, 1293-94 (6th Cir. 1997).
Again, the Court repeats that plaintiff may not use the consent decree to establish that defendant engaged in discriminatory activity against other employees. The Court finds, however, that the consent decree can be introduced as described above to establish defendant's intent to discriminate against plaintiff. Rule 408 does not render the consent decree inadmissible for this use. Olympia Wings, 896 F.2d at 956.
III. Conclusion
For the foregoing reasons, the Court grants defendant's motion for summary judgment on plaintiff's claims based on the consent decree. In regard to Rule 403, the Court finds that plaintiff may introduce the consent decree to attempt to establish defendant's discriminatory intent as to Safford, particularly by probing into the circumstances surrounding defendant's attempts to seek release from the consent decree. Plaintiff may not, however, introduce the consent decree as evidence of past discriminatory activity, pre-1980 or otherwise, toward other fire department employees. Rules 404(b) and 408 do not prohibit plaintiff from introducing the consent decree for these purposes.