Varlesi v. Wayne State University et alMEMORANDUM Regarding Judicial Notice of Bureau of Labor Statistics DataE.D. Mich.January 16, 2013UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION TINA M. VARLESI Plaintiff, -vs- Case No. 10-CV-14793 WAYNE STATE UNIVERSITY, a Michigan HON. DENISE PAGE HOOD non-profit corporation; CAROL PREMO, PH.D., ANWAR NAJOR-DURACK, DEAN PHYLLIS I. VROOM, SHAWNA J. LEE, ANTONIO GONZALES-PRENDES, MARGARET BRUNHOFER, THE SALVATION ARMY, a foreign non-profit corporation; and JOYCE STEFANSKI, jointly and severally, Defendants. ____________________________________________________________________________ Deborah Gordon Law Miller Canfield Paddock and Stone Deborah L. Gordon (P27058) Megan P. Norris (P393 18) Carol A. Laughbaum (P41711) M. Misbah Shahid (P73450) Attorneys for Plaintiff Attorney for WSU, Premo, Najor-Durack, 33 Bloomfield Hills Parkway, Suite 220 Vroom, Lee & Gonzales-Prendes Bloomfield Hills, Michigan 48304 150 W. Jefferson, Suite 2500 248-258-2500/FAX 248-258-7881 Detroit, Michigan 48226 dgordon@deborahgordonlaw.com 313-963-6420 claughbaum@deborahgordonlaw.com norris@millercanfield.com shahid@millercanfield.com MEMORANDUM REGARDING JUDICIAL NOTICE OF BUREAU OF LABOR STATISTICS DATA Plaintiff Tina Varlesi by her attorneys Deborah Gordon Law requests that this Court take judicial notice of pertinent Department of Labor wage statistics and states as follows: FRE 201 provides that a Court may take judicial notice of facts not subject to reasonable dispute when they can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Exhibit A, FRE 201. The court must take judicial notice if a party 2:10-cv-14793-DPH-MJH Doc # 123 Filed 01/16/13 Pg 1 of 4 Pg ID 4548 -2- requests it and the court is supplied with the necessary information. FRE 201 (c)(2) The court may take judicial notice at any stage of the proceeding. FRE 201(d) On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. FRE 201(e) In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. FRE 201(f). Plaintiff requests that pursuant to FRE 201 the Court take judicial notice of the Occupational Employment Statistics for social workers compiled by the U.S. Department of Labor Bureau of Labor Sta t i s t ics , and publ ished on i t s websi te , http://www.bls.gov/oes/current/oes211029.htm. See Exhibit B, Bureau of Labor Statistics OES Occupational Employment and Wages, May 2011. Public records and governmental documents - including Bureau of Labor Statistics – have long been held to be a proper subject for judicial notice. See Pierce v. New York Cent.R.Co. 304 F.Supp.44 (W.D. MI 1969)(acknowledging that federal district court can take judicial notice of publications of Bureau of Labor Statistics of United States Department of Labor). This is also true with respect to public records and governmental documents available from reliable sources on the internet. United States ex rel Dingle v. BioPort Corp, 270 F.Supp.2d 968, 972 (W.D. MI 2003)(“government documents are generally considered not to be subject to reasonable dispute... This includes public records and government documents available on the internet.”) See also Trundle v. Astrue, 2010 WL 5421418 (E.D. Cal 2010)(The U.S. Department of Labor, Bureau of Labor Statistics “is a source whose accuracy cannot reasonably be questioned, and judicial notice may be taken” of its website.) Case law confirms that Bureau of Labor Statistics, specifically, including internet data, are routinely the subject of judicial notice. See Hillensbeck v. U.S. 74 Fed. CL 477 (2006) (court taking judicial notice of BLS website data, citing FRE 201); Woodfin 2:10-cv-14793-DPH-MJH Doc # 123 Filed 01/16/13 Pg 2 of 4 Pg ID 4549 1M Civ JI 3.13 - Fact Judicially Noticed In this case, you must accept it as a fact that _____. -3- Suite Hotels LLC v. City of Emeryville, 2007 WL81911 (N.D. Cal 2007)(judicial notice of BLS statistics showing wages in the hotel industry); Vandegrift v. Atlantic Envelope Co., 2003 WL 22871661(E.D. Pa 2003)(judicial notice of Bureau of Labor Statistics workforce data); Giles Industries, Inc. v. U.S., 650 F.2d 274 (Ct.Cl. 1981); U.S. ex rel Berglund v. Boeing Co. 2012 WL 1902599 (D.Or. 2012); Rhoades v Walsh, 2009 WL 2600094 (D.Me.2009); Knoch v. Astrue, 2009 WL 691926 (M.D.Fla 2009); In re Davis, 336 B.R.604 (W.D. N.Y. 2006). The website data at issue regarding the wages of social workers, Exhibit B, is clearly properly the subject of judicial notice pursuant to FRE 201. Apparently the only bar to judicial notice of this data would be a failure to adequately identify the website where it is published. In Polley v. Allen, 132 S.W.3d 223 (2004) both the trial and appeals court agreed that this precise data - occupational wage statistics published by the U.S. Department of Labor, Bureau of Labor statistics - was authoritative and could be the subject of judicial notice. On appeal, however, the court agreed that judicial notice was improper in that the party offering it had not specifically identified the website/URL from which she claimed the data came. By contrast, in this case, Plaintiff has specifically identified the website and source of this government data, http://www.bls.gov/oes/current/oes211029.htm. As set forth above, Plaintiff respectfully requests that this Court take judicial notice of the statistical facts set forth in Exhibit B, and issue an appropriate jury instruction pursuant to M Civ JI 3.13 - Fact Judicially Noticed.1 Plaintiff submits that an appropriate jury instruction on this issue is: In this case, you must accept it as a fact that the wage statistics for social workers 2:10-cv-14793-DPH-MJH Doc # 123 Filed 01/16/13 Pg 3 of 4 Pg ID 4550 presented to you from the U.S. Department of Labor, Bureau of Labor Statistics website are true and accurate. Respectfully Submitted, DEBORAH GORDON LAW Deborah L. Gordon (P27058) /s/Carol A. Laughbaum (P41711) Attorneys for Plaintiff 33 Bloomfield Hills Parkway, Suite 220 Bloomfield Hills Michigan 48304 Telephone 248 258 2500 dgordon@deborahgordonlaw.com Dated: January 16, 2013 claughbaum@deborahgordonlaw.com CERTIFICATE OF SERVICE I hereby certify that on January 16, 2013, I electronically filed the foregoing document with the Clerk of the Court using the ECF system which will send notification of such filing to all attorneys of record. DEBORAH GORDON LAW Deborah L. Gordon (P27058) /s/Carol A. Laughbaum (P41711) Attorneys for Plaintiff 33 Bloomfield Hills Parkway, Suite 220 Bloomfield Hills Michigan 48304 Telephone 248 258 2500 dgordon@deborahgordonlaw.com claughbaum@deborahgordonlaw.com 2:10-cv-14793-DPH-MJH Doc # 123 Filed 01/16/13 Pg 4 of 4 Pg ID 4551
