Mercado v. Austin Police Dept., 84-1471

• Decision Date: 14 March 1985
• Docket Number: No. 84-1471,84-1471
• Citation: 754 F.2d 1266
• Parties: 37 Fair Empl.Prac.Cas. 532, 36 Empl. Prac. Dec. P 35,091, 17 Fed. R. Evid. Serv. 1032 Consuelo MERCADO, Plaintiff-Appellant, v. AUSTIN POLICE DEPARTMENT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1266

754 F.2d 1266

37 Fair Empl.Prac.Cas. 532,

36 Empl. Prac. Dec. P 35,091,

17 Fed. R. Evid. Serv. 1032

Consuelo MERCADO, Plaintiff-Appellant, v. AUSTIN POLICE DEPARTMENT, Defendant-Appellee.

No. 84-1471.

United States Court of Appeals, Fifth Circuit.

March 14, 1985.

James M. Simons, Austin, Tex., for plaintiff-appellant.

Robert Icenhauer-Ramirez, Asst. City Atty., Austin, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before RUBIN and HILL, Circuit Judges, and HINOJOSA ^*, District Judge.

ALVIN B. RUBIN, Circuit Judge:

The plaintiff filed this Title VII suit, ¹ contending that she was discharged by the City of Austin because of her national origin and in retaliation for filing an EEOC complaint seven years earlier. After hearing her testimony, the judge asked her counsel what additional evidence he would offer in support of her case. Counsel's response to the judge's question did not indicate that he would offer anything but cumulative or irrelevant testimony. He made no proffer of evidence, either then or in his subsequent motion for a new trial. At the conclusion of the plaintiff's testimony, the district judge invited the defendant to move for involuntary dismissal of the case pursuant to Fed.R.Civ.P. 41(b) and then granted the motion. While the procedure was unconventional, we conclude that the plaintiff was not denied due process of law and has shown no prejudice as a result of the procedure followed. Accordingly, we affirm.

I.

Consuelo Mercado testified in support of her claims and was cross-examined at length. Appraising her credibility, which the district court was best qualified to assess, the district court found that she simply did not establish the requisite elements of her charge of discrimination or retaliation. She made vague assertions that she was treated differently from other supervisors, testified that she was not asked for her opinion very often or invited to birthday parties, and referred to trifling deemed slights. On cross-examination, counsel for defendant prodded her into admitting that: (1) she really did not personally know how the City had treated a number of the other supervisors; (2) her supervisors allowed her to discuss her complaints directly with high ranking officials more often than they allowed other supervisors to do; (3) there were numerous problems with her performance, which were well documented in written evaluations, such as poor communication with her subordinates, failure to take constructive criticism appropriately or at all, accosting one of her subordinates in the parking lot, threatening her subordinates with the placing of damaging memos in their files if they talked to each other, and filing a negative report on one of her subordinates because the subordinate had done more than her share of the work and had helped a new employee with his work.

Defense counsel impeached Mercado's credibility in many ways. She admitted that a key Police Department supervisory official whom she charged with prejudice against Mexican-Americans was in fact married to a Mexican-American. She also admitted that she chose to be discharged rather than to accept assistance from the City's personnel department in locating a nonsupervisory job with the City of comparable pay grade and job classification. In sum, the evidence garnered on cross examination from Mercado herself was so damaging that, after she left the stand, virtually no later witness could have helped her to establish a prima facie case.

After hearing Mercado, the district judge addressed her counsel and asked whether he had any further witnesses. Counsel said he planned to call two expert witnesses and three employees of the Austin Police Department. The judge then informed Ms. Mercado's counsel that the reason for making his inquiry was "that based upon the testimony this court has heard so far, the court is inclined at the present time to dismiss this case outright. I can find absolutely no basis on testimony of the plaintiff for the complaints contained in the complaint." The court added,

If you had any witnesses that might establish a prima facie case of some kind, which you have not done in the court's view on the basis of the plaintiff's testimony, the court would be willing to spend more time on this. I'm not going to continue to waste time not only of this court, which has many other cases to handle, but the staff of this court, to take evidence in a case unless you have got more than I have heard in the last half day.

Counsel's only reply was:

I can't represent to the court that the police department witnesses that we would call--and they would be the three that I have enumerated earlier--would add anything different than what the plaintiff has testified to. I just think they would add corroborative--

Except for a vague statement that one of the experts might produce evidence about a pattern of discrimination, counsel made no proffer of any kind. Even surprise at these events on April 9, 1984, does not explain why no proffer was later made when, on April 19, counsel for Mercado sought a new trial.

The pretrial order states that a list of witnesses would be filed but none was filed with the court although counsel states he gave a list to opposing counsel. There was, therefore, no way in which the district court might have known that there was other evidence favorable to Mercado. Even now, in brief and at oral argument counsel has not stated any specific way in which the testimony of the witnesses mentioned to the court would have established the requisite elements of Mercado's case. The brief engages only in speculation: "The other witnesses the Plaintiff proposed to call might well have supplied any missing links in her prima facie case."

This is not a case in which counsel lacked time to prepare. It had been pending on the court's docket for nearly two years. Mercado had twice sought and received extensions of time to complete discovery. In January, 1984, she asserted to the trial court that discovery had been completed. She then sought an order compelling the defendant to answer interrogatories on March 16. On March 23, that motion was denied but the defendant was ordered to give her access to the records containing the information sought by her interrogatories. That same day, the judge granted Mercado's motion for a continuance so that she could gather that information. Then on the Sunday afternoon prior to the Monday-morning trial, she served a subpoena duces tecum, requesting the same statistical data to which the trial judge had given her access in March. At trial, the district judge refused to enforce this subpoena which was clearly designed to subvert and defeat the objective of his March 23 order.

II.

Fed.R.Evid. 103(a) forbids an appellate court to predicate error on a ruling excluding evidence "unless a substantial right of the parties is affected, and ... in case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked." Moreover, we have repeatedly held that, when a trial judge excludes the testimony of a witness in whole or in part, we cannot determine that there was error in the exclusion if the appellant made no offer of proof in the court below. ² Because Mercado's counsel had taken depositions of at least some of the witnesses who might have been called, had been granted access to the Police Department's records (although he had not taken advantage of this access), and over a two-year period had received extensions for further discovery, we find no excuse for his failure either to make an oral offer of proof sufficiently specific to satisfy the judge or to direct the judge's attention to some testimony in one of the depositions to indicate the type of specific testimony that would have been forthcoming. ³

In the absence of any list of witnesses with an indication of the nature of their testimony, any proffer of evidence, and any statement of counsel concerning what the evidence might be, it would have been a sheer waste of time for the court to indulge counsel in the suggested ritual by allowing him to adduce duplicative and unhelpful testimony or to fish for material to support his case. Thus, the judge's exclusion of the lay witnesses from the police department, pursuant to Fed.R.Evid. 403, was not an abuse of discretion, for counsel's own statement implied, if it did not state directly, that these witnesses would add nothing new to Mercado's testimony. ⁴

Mercado's expert witness, as stated in her counsel's resume, would have expressed the opinion that discrimination "was an element of" the personnel action taken. Although counsel stated that the expert's opinion was based upon Mercado's testimony and upon additional materials, the district court...