L'Etoile v. New England Finish Systems, Inc., Civil No. 06-CV-390-JL.

• Decision Date: 10 September 2008
• Docket Number: Civil No. 06-CV-390-JL.
• Citation: 575 F.Supp.2d 331
• Parties: Nicole L'ETOILE v. NEW ENGLAND FINISH SYSTEMS, INC.
• Court: U.S. District Court — District of New Hampshire

Page 331

575 F.Supp.2d 331

Nicole L'ETOILE v. NEW ENGLAND FINISH SYSTEMS, INC.

Civil No. 06-CV-390-JL.

United States District Court, D. New Hampshire.

September 10, 2008.

COPYRIGHT MATERIAL OMITTED

Heather M. Burns, Upton & Hatfield LLP, Concord, NH, for Nicole L'Etoile.

Charla B. Stevens, McLane Graf Raulerson & Middleton, Manchester, NH, for New England Finish Systems, Inc.

ORDER

JOSEPH N. LAPLANTE, District Judge.

The plaintiff, Nicole L. L'Etoile, has sued her former employer, New England Finish Systems, Inc. ("New England Finish") for discrimination, including a hostile work environment, and retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1), 2000-e-3(a). L'Etoile worked as a taper for the company, a drywall contractor, from early 2002 until her termination in the spring of 2004. This court has jurisdiction under 28 U.S.C. § 1331 (federal question). Each side has filed a number of motions in limine seeking to exclude certain evidence from the upcoming trial. The court heard argument on these motions at the final pre-trial conference in this matter on September 4, 2008. Based on those arguments, as well as those set forth in the parties' filings, the court makes the following rulings on the motions in limine.

I. L'Etoile's motion to exclude the finding of "No Probable Cause" by the New Hampshire Human Rights Commission

Prior to L'Etoile's commencement of this action, she had filed a charge of discrimination against New England Finish with the New Hampshire Human Rights Commission ("NHHRC"), alleging, inter alia, the same unlawful conduct. Following an investigation, the NHHRC found that there was no probable cause for the charge. That finding, unaccompanied by any explanation, analysis, or subsidiary findings, was announced in a letter to the parties' counsel. The Equal Employment Opportunity Commission ("EEOC") subsequently adopted the NHHRC's finding, again, without any accompanying explanation. L'Etoile moves to exclude any evidence of the NHHRC's or the EEOC's finding under Rule 403 of the Federal Rules of Evidence.¹

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 First Circuit has upheld the use of this rule to exclude a finding of "reasonable grounds to believe that unlawful discrimination has occurred" by the Maine Human Rights Commission from the ensuing trial of the discrimination claim because "such an agency determination, unaccompanied by relevant facts, tends to be more prejudicial than probative." Patten v. Wal-Mart Stores E., Inc., 300 F.3d 21, 26-27 (1st Cir.2002).

This court agrees with that approach here. Neither the NHHRC's nor the EEOC's "finding" of no probable cause for L'Etoile's complaint offers any explanation of why or how the agency reached that conclusion, giving the findings little probative value. New England Finish responds that the findings likewise carry little risk of unfair prejudice, but, assuming that is true, other criteria under Rule 403—"considerations of undue delay, waste of time, or needless presentation of cumulative evidence"—weigh heavily against admitting them. That much is clear from the briefing on the motion in limine, which consists largely of L'Etoile's attacks on, and New England Finish's defense of, the methods of the NHRRC's investigator. Allowing this battle to play out at trial would expend significant resources for little benefit. As the court of appeals observed in Patten, the conclusory findings have little probative force anyway, and would distract the jury from its ultimate task, which is to decide whether the alleged acts of discrimination and retaliation in fact occurred, not whether the NHHRC correctly decided that they likely did not.

A number of courts have relied on similar concerns in excluding, or upholding the exclusion of, agency resolutions of employment discrimination charges, i.e., the "likelihood that the trial will deteriorate into a protracted and unproductive struggle over how the evidence admitted at trial compared to the evidence considered by the agency." Paolitto, 151 F.3d at 65; see also, e.g., Coleman v. Home Depot, Inc., 306 F.3d 1333, 1347 (3d Cir.2002); Hall v. W. Prod. Co., 988 F.2d 1050, 1058 (9th Cir.1993); Tulloss v. Near N. Montessori Sch., Inc., 776 F.2d 150, 153-54 (7th Cir. 1985); Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304, 1309-10 (8th Cir.1984); Cook v. Hatch Assocs., No. 02-065A, 2007 WL 1267023, at *2-*3 (W.D.N.Y. Apr.30, 2007). In line with these and other like decisions, the court grants L'Etoile's motion to exclude evidence of the findings of no probable cause by the NHHRC and EEOC.²

II. The parties' motions to exclude events not involving L'Etoile's employment at New England Finish

L'Etoile seeks to prevent New England Finish from presenting evidence that no other woman besides her has complained about sex discrimination at the company and that, since she left, another woman has worked there without incident. New England Finish, in turn, seeks to prevent L'Etoile from presenting evidence that women who worked at the company before her also experienced sex discrimination. Each side characterizes the other's evidence as irrelevant and unduly prejudicial. See Fed.R.Evid. 402, 403.

There is substantial precedent— including from the First Circuit—recognizing that evidence of an employer's treatment of other employees of the same protected class as the plaintiff is admissible, under Rule 404(b) of the Federal Rules of Evidence, on the question of whether the employer acted with the prohibited discriminatory intent in its actions toward the plaintiff. See Cummings v. Std. Register Co., 265 F.3d 56, 63 (1st Cir.2001); Brown v. Trs. of Boston Univ., 891 F.2d 337, 349-50 (1st Cir.1989); see also, e.g., Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir.2008); Ansell v. Green Acres Contracting Co., 347 F.3d 515, 520-25 (3d Cir.2003); Heyne v. Caruso, 69 F.3d 1475, 1479 (9th Cir.1995); Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir.1990); Elion v. Jackson, 544 F.Supp.2d 1, 8-9 (D.D.C.2008); Zubulake v. UBS Warburg LLC, 382 F.Supp.2d 536, 544 (S.D.N.Y. 2005). This is true whether the evidence in question reflects favorably or unfavorably on the employer's treatment of those employees, or whether the treatment occurred prior or subsequent to the events of which the plaintiff complains. See Ansell, 347 F.3d at 523-24; Brown, 891 F.2d at 350; Elion, 544 F.Supp.2d at 8-10.³ As the Supreme Court recently held, "such evidence is neither per se admissible nor per se inadmissible," Sprint/United Mgmt. Co. v. Mendelsohn, ___ U.S. ___, 128 S.Ct. 1140, 1143, 170 L.Ed.2d 1 (2008), but "depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case." Id. at 1147.

Neither party's arguments in support of or objection to the motions in limine address this well-established body of law. Instead, each party takes the internally inconsistent position that its evidence of other women's experiences at New England Finish is relevant, but the other party's is not. For this reason, the court must deny the broad-based motions in limine in large part. This ruling, however, is without prejudice to renewal of the objections to specific examples of the challenged evidence when it is offered at trial, keeping in mind the First Circuit's admonition that such evidence may be admissible even if "it cover[s] different time periods, different supervisors, and different areas of the company." Cummings, 265 F.3d at 63. So, before either party attempts to introduce any such evidence, it shall make a detailed proffer as to the nature of the treatment at issue and how it relates to L'Etoile's circumstances and the parties' theories of liability and defense,⁴ see Mendelsohn, 128 S.Ct. at 1147.

There is some testimony challenged by New England Finish, however, that is obviously irrelevant to the issue of the company's intent in its actions toward her, namely, evidence of discrimination experienced by other women while working for different companies altogether. L'Etoile offers another theory of relevance in support of some of this testimony: that "[e]vidence of the harassment of third parties can help to prove a legally cognizable claim of a hostile environment." Hernandez-Loring v. Universidad Metropolitana, 233 F.3d 49, 55 n. 4 (1st Cir.2000). That is correct, but much of the harassment of other women alleged here, at least as proffered in L'Etoile's objection, does not appear to have ever infected her working environment at New England Finish.

Indeed, L'Etoile admits that one of the women she wants to call as a witness to these events, Monique Fuhrmann, never even worked for New England Finish, but maintains that her experiences at other companies are admissible to corroborate L'Etoile's claim that she was hired only when New England Finish had a job where it was required to employ a woman, then laid off as soon as that job ended. It suffices to say that this proffered testimony as to why other employers laid off Fuhrmann is not probative of why New England Finish laid off L'Etoile.

Nor could the sexist comments Fuhrmann—or any of the other women tapers L'Etoile intends to call as witnesses—allegedly heard while working for a different employer have contributed to the hostility of L'Etoile's work environment at New England Finish. Some courts have taken a broad view of "environment" in this context, holding that harassment of co-workers may serve as evidence in a hostile environment suit, even where it was unknown to the plaintiff. See Hurley v. Atl. City Police Dep't, 174 F.3d 95, 114-15 (3d Cir.1999); Perry v. Ethan Allen, Inc., 115 F.3d 143,...