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excluding evidence that plaintiff sought to introduce of discrimination by defendant in another suit alleging discrimination because it would have had little probative value in demonstrating a pattern or practice of discrimination in plaintiff's case
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CIVIL ACTION NO. 99-CV-1729
November 14, 2003
MEMORANDUM AND ORDER
Presently before the Court are a Motion in Limine filed by Defendants Seven Seventeen HB Philadelphia Corp. No. 2 and HBE Corp. ("Defendants") (Doc. No. 126) and a Motion in Limine filed by Plaintiff Geary Wilson (Doc. No. 127). For the following reasons, the Motion in Limine filed by Defendants will be granted in part and denied in part, and the Motion in Limine filed by Plaintiff will be denied.
Background
These cases arise out of alleged racial discrimination in the employment practices of Defendants. On January 7, 2000, Plaintiff and others filed their Second Amended Class Action Complaint. On March 7, 2001, this Court granted Defendants' motion to deny class certification. We subsequently dismissed or otherwise disposed of all claims in the complaint except those of Plaintiff Geary Wilson.
Defendants operate hotels and other establishments, including a hotel in St. Louis (the "St. Louis Adam's Mark"), a hotel in Philadelphia (the "Philadelphia Adam's Mark"), and several establishments connected to the Philadelphia Adam's Mark: Quincy's, Player's Sports Club, and Appleby's. Plaintiff alleges that since at least 1996, Defendants have engaged in a pattern or practice of racial discrimination in their employment practices. (Sec. Am. Compl. ¶ 14.)
Plaintiff, a black man, began his employment with the Defendants in or about February, 1997, as a manager of Appleby's. ( Id. ¶ 22.) In early to mid April, 1997, Antoine Piringer, the Defendants' president, visited the Philadelphia Adam's Mark and Appleby's. ( Id. ¶ 25.) Piringer allegedly commented to a waitress at Appleby's that if he had known that Plaintiff was black, Plaintiff would not have been hired. ( Id. ¶ 26.) On April 14, 1997, several days after the Piringer's visit, Chris Hui fired Plaintiff purportedly because sales at Appleby's had dropped significantly since Plaintiff began working. ( Id. ¶ 27.) Plaintiff claims the reason given for his termination was a pretext. A white female replaced Plaintiff as manager of Appleby's. ( Id. ¶ 28.)
In his complaint and other filings, Plaintiff refers to both "Antoine Pirringer" and "Antoine Piringer." We will use "Antoine Piringer," the spelling also used in Defendants' filings.
Discussion
Plaintiff seek relief under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and under 42 U.S.C. § 1981. Title VII makes it unlawful for an employer to refuse to hire or discharge any individual, or to discriminate against any individual with regards to his compensation, terms, conditions or privileges of employment, because of the individual's race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2(a)(1). Under § 1981, all persons within the jurisdiction of the United States are guaranteed the same freedom enjoyed by white citizens of the United States, including the freedom to make and enforce contracts. 42 U.S.C. § 1981(a). Generally, the legal elements of a § 1981 claim are identical to those under Title VII. Schurr v. Resorts Int'l Hotel, Inc., 196 F.3d 486, 499 (3d Cir. 1999). To establish a viable claim of employment discrimination under either provision, the employee must show that the employer "bore a racially discriminatory animus against the employee and that this animus manifested itself in some challenged action, whether it be dismissal, failure to promote, or failure to hire." Lewis v. University of Pittsburgh, 725 F.2d 910, 914 (3d Cir. 1983). To meet this burden, the plaintiff may proceed under a pretext and/or mixed motive theory.
In a pretext case, the plaintiffs claims will be analyzed under the burden-shifting framework first established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, a plaintiff must first show, by a preponderance of the evidence, a prima facie case of discrimination. 411 U.S. at 802. That means the plaintiff must establish that he or she: "(1) is in a protected class, (2) is qualified for the position, (3) suffered an adverse employment action, and (4) was discharged under circumstances that give rise to an inference of unlawful discrimination." Campetti v. Career Educ. Corp., No. 02-CV-1349, 2003 WL 21961438, at *8 (E.D. Pa. June 25, 2003). "Common circumstances giving rise to an inference of unlawful discrimination include the hiring of someone not in the protected class as a replacement or the more favorable treatment of similarly situated colleagues outside of the relevant class." Bullock v. Children's Hasp. of Phila., 71 F. Supp.2d 482, 487 (E.D. Pa. 1999). However, to succeed on the fourth prong, a plaintiff is not limited by either of these circumstances. Instead, a plaintiff need only present evidence adequate to create an inference that the employment decision was based on an illegal discriminatory criterion. Id. at 487-88 (citing Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 355 (3d Cir. 1999)).
If the plaintiff successfully presents a prima facie case under McDonnell Douglas, the burden then "shifts to the employer to articulate some non-discriminatory reason for the challenged action." Lewis, 725 F.2d at 914. If the employer proffers a facially legitimate reason for the challenged action, the "employee must then bear the burden of demonstrating that the reason given by his employer is in fact merely a pretext, i.e. a fiction which obscures the reality of racial discrimination." Id. At all times, however, the plaintiff bears the burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff, even if the plaintiff proves a prima facie case of discrimination. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If a plaintiff elects to proceed under a mixed motive theory, the plaintiff has the burden to show by a preponderance of the evidence that "race, color, religion, sex, or national origin was a motivating factor for any employment practice." Desert Palace, Inc. v. Costa, 123 S.Ct. 2148, 2155 (2003). The plaintiff may meet this burden with either direct or circumstantial evidence. Id. If the plaintiff meets this burden, the employer may present a limited affirmative defense that does not absolve it of liability, but restricts the remedies available to the plaintiff. Id. at 2151. If the employer demonstrates that it would have taken the same action in the absence of the impermissible motivating factor, the court may award declaratory relief, certain types of injunctive relief, attorneys fees and costs, but not damages. 42 U.S.C. § 2000e-5(g)(2)(B).
Defendants' Motions in Limine
Defendants primarily object to the admission of three broad categories of evidence offered by Plaintiff. The first category is trial testimony from an employment discrimination case filed against the Defendants and relating to events at the St. Louis Adam's Mark in 1990 and 1991 (the "St. Louis Case"). The second category is purported evidence of the Defendants' discrimination discovered in a class action brought by black customers of Quincy's and relating to events between 1995 and 1999 (the "Stephens Case"). The third category is purported evidence of employment discrimination discovered in a case filed against the Defendants and relating to events at the Philadelphia Adam's Mark between 1995 and 1997 (the "Williams Case").
I. The St. Louis Case
A. The Disputed Evidence
Plaintiffs in the St. Louis Case, Dewey Helms and Bruce Ey, were two employees of the St. Louis Adam's Mark. Helms, a black man, had been the employment manager at the St. Louis Adam's Mark since February 12, 1990. Ey, a white man, had been the director of personnel since April 8, 1991. Helms and Ey were terminated on September 12, 1991, and later filed suit claiming racial discrimination and retaliatory discharge.
At trial, the evidence showed that Fred Kummer, the chief executive officer and primary owner of the St. Louis Adam's Mark corporate parent was directly involved in the termination of Helms and Ey. The jury ultimately sustained the claims of Helms and Ey and awarded them back pay, lost benefits and punitive damages. The court issued a permanent injunction against the St. Louis Adam's Mark to prevent future discrimination, to provide for reporting to the Equal Employment Opportunity Commission ("EEOC"), and to otherwise redress the harm to Helms andEy.
Plaintiff in this case intends to offer testimony from the St. Louis Case as background evidence of the Defendants' discriminatory attitude. Specifically, Plaintiff offers the following testimony:
Former lounge manager [at the St. Louis Adam's Mark] Michael Westerfield testified under oath that his supervisor Joe Denehey, then corporate food and beverage director of the St. Louis hotel, told him that the lounge he managed "was getting too dark and they didn't want another incident of another type of thing to happen that happened in Philadelphia to their bar there."
Westerfield testified that his supervisor "suggested that we try a couple of things that they did in Philadelphia, one of which was to pull different types of liquor off the bar such as Corvasier, Crown Royal, Hennessey, and to confine the music and not play rap music [in order] to discourage black people from coming into the bar." The supervisor ["]felt if you took it off, that would upset them, and they wouldn't come back."
Westerfield testified at trial that his supervisor explained to Westerfield that "too many African Americans in the bar [sic] [and as a result] where the white customers wouldn't come in and spend the money they normally would."
Donna Killian, a White female, was formerly employed by defendants at its St. Louis, Mo. flagship hotel in various managerial positions from 1986 to 1993 . . . testified that the hotel's room's division manager Bob Von Smarch, the second in command at the hotel, instructed her to hire only "older black gentlemen" as bellman in order to "uphold the Old South image of the Hotel" because "that was what Mr. Kummer wanted. It was a decision made by the corporate office."
Ms. Killian testified that Mr. Briquet, the General Manager of the hotel, told her "there would not be any black cocktail waitresses in AJ's," that she "had to monitor the music in AJ's [and] we were to play no black music in AJ's."
Briquet also told Killian that Anton Piringer, then President of the hotel chain, said to Briquet that "AJ's was getting too dark. And that they thought that was because the city knew that there was a black employment manager; and that black people would come in to get hired."
(Pl.'s Opp. Mem. at 14-15 (citations omitted).)
B. Discussion
Defendants claim that this Court should exclude trial testimony from the St. Louis Case as hearsay. Defendants argue that Plaintiff did not make a reasonable attempt to secure the attendance of witnesses from the St. Louis Case. Therefore, they argue, statements from such witnesses do not qualify under the "former testimony" except to the hearsay rule and are not admissible. FED. R. EVID. 804(b)(1); FED. R. EVID. 804(a)(5) (a declarant is unavailable to testify if the proponent of declarant's statement "has been unable to procure the declarant's attendance . . . by process or other reasonable means").
"In civil cases, it has long been the rule that inability to procure attendance by `process or other reasonable means' is satisfied by demonstration of inability to serve a subpoena." Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1190, 1249 (E.D. Pa. 1980), aff'd in part and rev'd in part on other grounds, 723 F.2d 238 (3d Cir. 1983); AEL Indus., Inc. v. Alvarez, No. 88-0391, 1989 WL 97394, at *2 (E.D. Pa. Aug. 17, 1989) ("A witness who is beyond the subpoena power of the court is unavailable."). See also Aubrey Rogers Agency, Inc. v. AIGLife Ins. Co., No. 97-529, 2000 WL 135129, at *2 (D. Del. Jan. 13, 2000) (noting that courts distinguish between the unavailability of fact witnesses and expert witnesses and find fact witnesses unavailable solely because the witnesses are beyond the subpoena power of the court). Accordingly, we conclude that any witness outside the subpoena power of this Court (within 100 miles of this District) is unavailable under Rule 804(a)(5) and their testimony may be admissible under the "former testimony" exception to the hearsay rule.
Defendants also claim that evidence from the St. Louis Case must be excluded because it is irrelevant and, in any event, unfairly prejudicial. FED. R. EVID. 402, 403. They argue that the evidence primarily focuses on the conduct of the CEO, Kummer, who was not a decisionmaker involved in Plaintiffs termination. Defendants also argue that the evidence from the St. Louis Case is temporally and geographically remote, and not sufficiently tied to any employment decision challenged by Plaintiff.
With respect to the evidence from the St. Louis Case relating to Piringer, we previously concluded that such evidence "is indeed relevant to show the states of mind and discriminatory animus of [Piringer], who acted as a decisionmaker in [Wilson's] termination." Wilson v. Seven Seventeen HE Phila. Corp. No. 2, No. 99-1729, slip op. at 33 (E.D. Pa. Dec. 17, 2001). For the same reasons that we found such evidence relevant, we also deemed it admissible under Rule 403. Id. at 33 n. 11. Accordingly, the evidence from the St. Louis Case relating to Piringer is relevant and admissible.
We do not reach the same conclusion with respect to other evidence from the St. Louis Case. Much of that evidence does not relate to Piringer or to Hui, the other person Plaintiff alleges was a decisionmaker involved with his termination. Instead, much of the evidence from the St. Louis Case involves stray discriminatory remarks by nondecisionmakers. If believed, the remarks suggest that the Defendants had a corporate policy of discouraging blacks from patronizing their hotels and nightclubs.
The Third Circuit has repeatedly held that "discriminatory comments by nondecisionmakers, or statements temporally remote from the decision at issue, may properly be used to build a circumstantial case of discrimination." Abrams v. Lightolier Inc., 50 F.3d 1204, 1214 (3d Cir. 1995). See also Walden v. Georgia-Pacific Corp., 126 F.3d 506, 521 (3d Cir. 1997) ("[S]tray remarks by nondecisionmakers maybe properly used by litigants as circumstantial evidence of discrimination."); Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 333 (3d Cir. 1995) ("[A] supervisor's statement about the employer's employment practices or managerial policy is relevant to show the corporate culture in which a company makes its employment decision, and maybe used to build a circumstantial case of discrimination."); Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 54 (3d Cir. 1989) (holding stray remark by major company executive admissible). Not all stray remarks by nondecisionmakers are admissible as circumstantial evidence of discrimination, however. See Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 133 (3d Cir. 1997). Rather, the Third Circuit has held that in deciding whether such remarks are admissible, courts should "evaluate factors pertaining to the declarant's involvement in recognizing a formal or informal managerial attitude, including the declarant's position in the corporate hierarchy, the purpose and content of the statement, and the temporal connection between the statement and the challenged employment action." Id.
We evaluate the admissibility of evidence from the St. Louis Case by applying the Ryder factors. Weighing in favor of admissibility is the fact that the evidence from the St. Louis Case contains statements by Defendants' CEO, Kummer, and other persons with managerial authority. See Ryder, 128 F.3d at 133 (relevancy of evidence enhanced because many statements made by the CEO of the defendant). "When a major company executive speaks, `everybody listens' in the corporate hierarchy, and when an executive's comments prove to be disadvantageous to a company's subsequent litigation posture, it can not compartmentalize this executive as if he had nothing more to do with company policy than the janitor or watchman." Lockhart, 879 F.2d at 55. Recognizing this, courts often admit stray remarks by company executives as evidence of a discriminatory corporate culture. See id. (admitting ageist statement made by company executive even though executive was not involved in decision to terminate plaintiff); Ryder, 128 F.3d at 133 (same); Brewer, 72 F.3d at 333-34 (same). Thus, the first Ryder factor weighs in favor of admissibility.
Weighing against the admissibility of the statements from the St. Louis Case are the remaining two Ryder factors. The evidence that Plaintiff seeks to admit from the St. Louis Case suggests that Defendants had a corporate policy of discouraging blacks from patronizing their hotels and nightclubs. However, Plaintiff does not allege that he was fired because he attracted black customers to Appleby's. Plaintiff does not even allege that the Defendants sought to discourage blacks from patronizing Appleby's. Rather, Plaintiff simply alleges that he was fired because he was black and Piringer had a racially discriminatory animus against blacks. Thus, the purpose and content of the statements from the St. Louis Case are unrelated to Plaintiffs allegations as to why he was fired.
The third factor — the temporal connection between the proffered statements and the challenged action — also weighs against admissibility. The evidence from the St. Louis Case relates to events that occurred in 1990 and 1991, approximately six or seven years before Wilson was fired in 1997. In a previous order, we rejected Defendants' argument that the evidence from the St. Louis Case was irrelevant because it was too remote from the employment action challenged by Plaintiff. See Wilson, slip op. at 32. "There is . . . no bright line rule for determining when evidence is too remote to be relevant. Any such determination must be based on the potential the evidence has for giving rise to reasonable inferences of fact which are `of consequence to the determination of the action . . .'" Ansell v. Green Acres Contracting Co., No. 02-3251, 2003 WL 22451728, at *6 (3d Cir. Oct. 28, 2003) (quoting FED. R. EVID. 401) (citations omitted). Accordingly, we decline to exclude the evidence from the St. Louis Case on the grounds that it is too remote. We conclude however, that the fact that the evidence from the St. Louis Case is between six and seven years removed from the challenged action is a factor that weighs against its admissibility. See Ansell, 2003 WL 22451728, at *7 (holding that in deciding whether to admit evidence of another act of discrimination, "[a] court should consider the passage of time between the other act and the act alleged to be discriminatory"). Cf. Ezold v. Wolf, Block, Schorr Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992) ("Stray remarks by non-decisionmakers or by decisionmakers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote from the date of decision.").
Rule 403 requires a balance between the probative value of the evidence sought to be excluded and the prejudicial effect if the evidence is admitted. Glass v. Philadelphia Elec. Co., 34 F.3d 188, 191 (3d Cir. 1994). After balancing the probative value and prejudicial effect of the evidence, and weighing the Ryder factors, we conclude that the proffered evidence from the St. Louis Case should be admitted, but only to the extent it relates to the alleged racially discriminatory animus of Piringer, who Plaintiff alleges was a decisionmaker involved with his termination. To the extent the proffered evidence from the St. Louis Case does not relate to Piringer, and merely suggests that the Defendants had a corporate policy of discouraging blacks from patronizing their hotels and nightclubs in 1990 or 1991, such evidence is irrelevant, unfairly prejudicial, and must be excluded.
II. The Stephens Case
A. The Disputed Evidence
The plaintiffs in the Stephens Case are black patrons of Quincy's. Plaintiff intends to present live testimony from witnesses in the Stephens Case who will testify based on their personal knowledge that the Defendants discriminated against black patrons of Quincy's between 1995 and 1999. In summary, Plaintiff intends to introduce evidence that: (1) blacks were denied entry to Quincy's if they wore jeans and sneakers but whites were allowed entry if they wore jeans and sneakers; (2) blacks were denied entry to Quincy's absent identification whereas whites did not need to show identification to gain entry; (3) white customers of Quincy's were served before black customers even though black customers arrived first; (4) blacks were required to check their coats and pay a entrance fee whereas on Saturday nights white customers were not required to check their coats or pay any fees; (5) Defendants charged a cover charge on Friday and Monday nights but not on Saturday nights or other nights during the weeks when most of the customers were white; (6) blacks were prohibited from congregating in the hotel lobby whereas white customers were not prohibited from congregating in the lobby; (7) the food served at Quincy's buffet was far superior and the bathrooms were cleaner on nights white customers attended then on nights black customers attended; (8) drinks were watered down on nights black customers attended but not on nights white customers attended; (9) the hotel charged a parking fee on nights black customers attended but not on nights white customers attended; and (10) blacks customers were told that the air conditioning was not working on nights they attended but it did work on nights white customers attended. ( See Pl.'s Opp. at 10-12.)
Defendants also object to the admission of evidence from the Stephens Case on the grounds that it constitutes inadmissible hearsay. In response, Plaintiff states that all of the evidence from the Stephens Case will be presented by live testimony. Thus, Defendants' hearsay objection is moot.
The Defendants object to the admission of the above evidence from the Stephens Case on the grounds that it is irrelevant, and in any event, unfairly prejudicial. Plaintiff claims that the evidence from the Stephens Case is relevant to the Defendants' motive to discriminate. We agree with Defendants and find that the evidence from the Stephens Case is irrelevant and unfairly prejudicial.
In arguing for admissibility, Plaintiff principally relies on Estes v. Dick Smith Ford, Inc., 856 F.2d 1097 (8th Cir. 1988). In Estes, RubenEstes, a black man, was discharged from his job as a car washer/car porter for Dick Smith Ford, a Kansas City car dealership. He later sued alleging age and race discrimination. A jury returned a verdict in favor of Ford and Estes appealed. One of the grounds for Estes' appeal was the claimed erroneous exclusion of evidence of prior acts of discrimination against black customers of Ford. Estes claimed that black customers of Ford were denied rides home in the Service Department's courtesy car that were routinely offered to white customers. Ford contended that the evidence was not sufficient to show a pattern of discrimination, and, in any event, evidence of discrimination against black customers was not probative of discrimination against black employees. The Eighth Circuit held the evidence admissible, stating "[i]t defies common sense to say, as Ford implies, that evidence of an employer's discriminatory treatment of black customers might not have some bearing on the question of the same employer's motive in discharging a black employee." Id. at 1104.
While we agree with the reasoning in Estes, we do not agree with its application to this case. In Estes, the court admitted the evidence against Ford in part because the purported discrimination against black customers occurred in the same department where Estes worked, and because Estes alleged that the manager involved in the decision to fire him also authorized the discriminatory policy against black customers. Id. The court noted, however, that Ford's arguments against admissibility "might have merit if the Ford employees allegedly responsible for the discrimination against customers were unconnected with the employees who allegedly fired Estes." Id. Here, the purported discrimination against black customers of the Defendants allegedly occurred at Quincy's, not at Appleby's where Plaintiff worked. Plaintiff does not allege that the Defendants discriminated against black customers of Appleby's, or that any of the persons purportedly involved in the discrimination at Quincy's discriminated against him. There is simply no logical connection between the evidence from the Stephens Case and Plaintiffs claims. Accordingly, we do not agree that Estes supports Plaintiffs position.
Indeed, in another Eighth Circuit case the court affirmed the decision of the trial court to exclude evidence of other acts of discrimination by defendants when those alleged acts were not committed by persons who worked with the plaintiffs. See Kline v. City of Kansas City, Fire Dept., 175 F.3d 660, 666 (8th Cir. 1999) ("We agree with the trial court that the acts of people who did not supervise or allegedly discriminate against the plaintiffs (and who in most cases did not even work in the same area as the plaintiffs) are not probative of the city's motive, opportunity, intent, or knowledge.").
Defendants rely on Moorhouse v. Boeing Co., 501 F. Supp. 390 (E.D. Pa.), aff'd 639 F.2d 774 (3d Cir. 1980) to support their position that the evidence from the Stephens Case should be excluded. In Moorhouse, six plaintiffs brought separate age discrimination cases against Boeing. One of the plaintiffs, Moorhouse, sought to introduce testimony from the other five plaintiffs at his trial in order to show a pattern or practice of discrimination. The court excluded this evidence as unduly prejudicial. In essence, the court ruled, each witness would have presented a prima facie case of discrimination, forcing Boeing to justify the layoffs or allow the testimony to stand unrebutted. The former option would, in effect, require Boeing to try all six cases together. The court noted that the testimony of the proposed witnesses "would be of little probative value to show the existence of a pattern or practice" of discrimination at Boeing. Id. at 394. Because of its limited probative value and the danger of unfair prejudice, the court excluded the testimony. Id. at 393-94.
We agree that Moorhouse supports Defendants' position. As in Moorhouse, Defendants face several distinct suits for discrimination, one of which is the Stephens Case. However, evidence from the Stephens Case would have little probative value in showing a pattern or practice of discrimination relevant to Plaintiffs case. The evidence from the Stephens Case suggests that Defendants had a pattern or practice of discriminating against blacks customers of Quincy's. It does not suggest that Defendants had a pattern or practice of discriminating of discriminating against blacks at Appleby's. In Moorhouse, the court excluded evidence from the other discrimination cases because it found little to connect the various cases. See id. at 394. Similarly, we see little connection between Plaintiffs claims and the evidence from the Stephens Case. Balancing the probative value of the evidence from the Stephens Case against its possible prejudicial effect, we find that the balance weighs against admission. FED. R. EVID. 403.
III. Evidence From The Williams Case
A. The Disputed Evidence
Arnold M. Williams was employed as a bartender/barback at Adam's Mark in Philadelphia beginning December 17, 1991. During 1995 and 1996, Williams worked primarily as a bartender at Players and on weekends at Quincy's. In June, 1997, Williams was fired by the Defendants purportedly for providing a free drink to a former hotel employee in violation of hotel policy. Williams alleged that he was fired because Defendants believed that Williams was responsible for a large African-American weekend clientele at Quincy's. Williams sued Defendants alleging racial discrimination. The case settled before trial.
Plaintiff intends to offer evidence discovered in the Williams Case that Kummer, Piringer, and Mather discriminated against black employees and customers of the Philadelphia Adam's Mark during the period of time relevant to Plaintiffs employment. Much of the evidence is related to the Defendants' purported corporate policy of discouraging blacks from patronizing Quincy's. Plaintiff intends to offer the evidence through live testimony or depositions.
Discussion
Defendants object to the admission of evidence from the Williams Case on the grounds that it will be presented as deposition testimony and is therefore hearsay. We agree. If Plaintiff intends to offer evidence consisting of deposition testimony, he must show that the deposition witness is unavailable. FED. R. EVID. 804(a). A witness is unavailable if they are beyond the subpoena power of the Court. Zenith Radio, 505 F. Supp. at 1249.
Defendants also object to the evidence from the Williams Case on the grounds that it is unfairly prejudicial. We adopt our reasoning and conclusions above where we excluded certain evidence from the St. Louis Case. To the extent the evidence from the Williams Case relates to an alleged racially discriminatory animus on the part of Piringer or Hui, such evidence is relevant and admissible. However, to the extent the evidence from the Williams Case does not relate to Piringer or Hui, but merely to Defendants' purported corporate policy of discouraging blacks from patronizing Quincy's or Player's Sports Club, we conclude that the danger of unfair prejudice of such evidence substantially outweighs its limited probative value, and it must be excluded. FED. R. EVID. 403; Moorhouse, 501 F. Supp. 393-94.
In addition to the arguments below, Defendants also object to the admission of affidavits and court opinions on various grounds. Plaintiff disclaims any intention to present such evidence. (Pl.'s Opp. at 22.) Thus, Defendants' objection is moot.
Defendants also object to the admission of proposed testimony and documents related to the discrimination claims of other plaintiffs who have cases pending against the Defendants. For example, Plaintiff lists Greg Evans, Marian Jengo, and Timothy Walters, all of whom have separate discrimination cases pending against Defendants, as witnesses. Plaintiff also lists Laron Way and Lottie Patton who are witnesses in other pending discrimination cases against Defendants, as witnesses in his case. Defendants claim that this testimony and other evidence should be excluded as irrelevant and unfairly prejudicial.
To the extent the proposed evidence relates solely to the isolated discrimination claims of the other plaintiffs, we agree with Defendants that the testimony should be excluded. See Moorhouse, 501 F. Supp. at 392-94 (excluding testimony from other plaintiffs "because the isolated actions taken against them individually would be of limited probative value to show the existence of a pattern or practice" of discrimination). If, on the other hand, the proposed evidence has a connection to the Plaintiffs claims, then it maybe admissible. Accordingly, we decline to categorically exclude the testimony of Evans, Jengo, Walters, Way or Patton at this time.
One way that the evidence would be connected to Plaintiffs claims and therefore relevant and likely admissible is if it showed a racially discriminatory animus on the part of Piringer or Hui, the alleged decisionmakers involved with Plaintiffs termination.
Finally, Defendants object to the admission of memos and corporate documents from 1998 and 1999 because these documents reflect procedures in effect more than a year after Plaintiffs termination. We decline to exclude the documents on this ground. See Ansell, 2003 WL 22451728, at *6 (holding there is no "bright line rule for determining when evidence is too remote to be relevant" and affirming district court's decision to admit evidence of employer's acts subsequent to termination of plaintiff). See also Ryder, 128 F.3d at 133-34 (admitting comments made approximately one year after challenged action). Instead, at trial we will balance the probative value of the evidence against the danger of unfair prejudice in deciding whether to admit these documents.
Plaintiffs Motion in Limine
Plaintiff seeks to exclude from evidence at trial certain of the Defendants' proposed exhibits he claims were requested in discovery but never produced. The Defendants respond that they identified the proposed exhibits in response to Plaintiffs interrogatories more than three years ago, but Plaintiff never specifically requested the exhibits. Because Plaintiff has known of the existence of the proposed exhibits for more than three years, we fail to see how Plaintiff is prejudiced by their introduction into evidence. Accordingly, Plaintiffs motion is denied.
An appropriate order follows.
ORDER
AND NOW, this 14th day of November, 2003, upon consideration of the Motion in Limine filed by Defendants Seven Seventeen HB Philadelphia Corp. No. 2 and HBE Corp. (collectively, "Defendants") (Doc. No. 126) and a Motion in Limine filed by Plaintiff Geary Wilson (Doc. No. 127), it is ORDERED that:
1. Defendants' Motion in Limine is GRANTED in part and DENIED in part.
2. Plaintiffs Motion in Limine is DENIED.
IT IS SO ORDERED