Shotwell v. Donahoe

• Citation: 207 Ariz. 287,85 P.3d 1045
• Decision Date: 25 February 2004
• Docket Number: No. CV-03-0122-PR.,CV-03-0122-PR.
• Parties: Madeline SHOTWELL, Petitioner, v. The Honorable Gary DONAHOE, Judge of the Superior Court of The State of Arizona, in and for the County of Maricopa, Respondent Judge, Smith Painting, Inc.; Michael C. Smith and Linda L. Smith, husband and wife, Real Parties in Interest.
• Court: Arizona Supreme Court

85 P.3d 1045

207 Ariz. 287

Madeline SHOTWELL, Petitioner, v. The Honorable Gary DONAHOE, Judge of the Superior Court of The State of Arizona, in and for the County of Maricopa, Respondent Judge, Smith Painting, Inc.; Michael C. Smith and Linda L. Smith, husband and wife, Real Parties in Interest.

No. CV-03-0122-PR.

Supreme Court of Arizona, En Banc.

February 25, 2004.

Jackson White, P.C. by Michael R. Pruitt and Bobbie J. Rasmusson, Mesa, for Petitioner.

Steiner & Steiner, P.C. by Richard A. Steiner and Norris C. Livoni, Phoenix, for Real Parties in Interest Smith Painting, Inc., Michael C. Smith, and Linda L. Smith.

Jaburg & Wilk, P.C. by Kraig J. Marton and Gregory S. Fisher and The Grimwood Law Firm by N. Douglas Grimwood, Phoenix, for Amicus Curiae Arizona Employment Lawyers Association.

BERCH, Justice.

¶ 1 This case requires us to determine whether a reasonable cause determination letter issued by the United States Equal Employment Opportunity Commission ("EEOC") is automatically admissible as evidence in a Title VII employment discrimination lawsuit. We reject the Ninth Circuit rule that an EEOC reasonable cause determination is admissible per se and hold that the Arizona Rules of Evidence govern the admissibility of such determination letters in cases brought in Arizona state courts.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Madeline Shotwell filed a Charge of Discrimination with the EEOC, alleging that her former employer, Smith Painting, Inc., harassed her and discriminated against her on the basis of her sex and permitted such an offensive and hostile work environment that she was constructively discharged from her job. The EEOC investigated Shotwell's allegations and issued a reasonable cause determination letter (the "Determination") concluding that Shotwell had been discriminated against. This Determination, which is the subject of this litigation, reads as follows:

Examination of the evidence reveals that [Smith Painting] created an intimidating, hostile, and offensive work environment by allowing unwelcome conduct of a sexual nature, which unreasonably interfered with [Shotwell's] work performance. [Shotwell] indicated that the sexual conduct was unwelcome by reporting the incidents to both her supervisor and the owner. As a result, [Smith Painting] stated that it had extensive interviews with [Shotwell's] co-workers and supervising personnel concerning her claims of sexual harassment. However, [Smith Painting] later stated that it does not have any recorded interviews or signed statements, and that it has not created an internal file regarding [Shotwell's] allegations. In addition, [Shotwell] was demoted after she complained of sexual harassment. As a result of the treatment she received, and [Smith Painting's] failure to address her concerns, [Shotwell] resigned. Moreover, [Smith Painting] has no sexual harassment policy.

The [EEOC] has previously determined that the employer is responsible for the unlawful conduct where the employer knew[ ] or should have known of the conduct, unless the employer can show it took immediate and appropriate corrective action. [Smith Painting] had clear knowledge of [Shotwell's] complaint[s.] However, [Smith Painting] has no records which indicate that an investigation occurred once the sexual harassment was reported. Moreover, [Smith Painting's] failure to establish a sexual harassment policy indicates that it did not exercise reasonable care to prevent and correct sexual harassment within the organization.

Accordingly, I find reasonable cause to believe that [Smith Painting] discriminated against [Shotwell] by sexually harassing her based on her sex.

I also find reasonable cause to believe that [Smith Painting] retaliated against [Shotwell] by demoting her from her Foreman position because she complained of the sexual harassment.

I also find reasonable cause to believe [Smith Painting] constructively discharged [Shotwell] in that the harassment suffered made working at the company so unbearable, she was forced to terminate her employment.

In addition to the foregoing Determination, the EEOC also issued Shotwell a Notice of Right to Sue confirming that "[t]he EEOC found reasonable cause to believe that violations of the statute(s) occurred with respect to some or all of the matters alleged in the charge," but advising that the EEOC would not bring the suit on her behalf. Shotwell then filed a complaint in superior court alleging sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1994) (the "Act").

¶ 3 Smith Painting moved in limine to preclude use of the various letters and notices issued by the EEOC. The trial court granted Smith Painting's motion to preclude the Determination, but denied it as to the Charge of Discrimination and the Notice of Right to Sue, ruling that the latter two documents would be admissible. After the superior court denied Shotwell's motion for reconsideration, Shotwell petitioned the court of appeals for special action relief. Believing itself bound by the Ninth Circuit's rule that EEOC reasonable cause determination letters are "per se" admissible, the court of appeals accepted jurisdiction and granted relief. We granted Smith Painting's petition for review. We have jurisdiction pursuant to Article 6, Section 5(3) of the Constitution of the State of Arizona and Arizona Revised Statutes ("A.R.S.") section 12-120.24 (2003).

DISCUSSION

A. Per se Admissibility

¶ 4 Whether Arizona courts must apply the Ninth Circuit rule making EEOC reasonable cause determinations automatically admissible in Title VII litigation and, if not, whether the court should adopt such a rule are questions of law that we address de novo. See Nielson v. Patterson, 204 Ariz. 530, 531,

¶ 5, 65 P.3d 911, 912 (2003) (approving de novo review of legal issues).

¶ 5 Shotwell premises her position that the Determination should be automatically admissible on policy concerns and Ninth Circuit case law holding that EEOC reasonable cause determinations are per se admissible in Title VII lawsuits. See, e.g., Bradshaw v. Zoological Soc'y of San Diego, 569 F.2d 1066,1069 (9th Cir.1978)

.

¶ 6 We are not persuaded that we must or even should adopt the per se rule. Generally speaking, while federal laws control the substantive aspects of federal claims adjudicated in state courts, state rules of procedure and evidence apply unless the state rules would affect the substantive federal right. See Felder v. Casey, 487 U.S. 131, 138, 108 S.Ct. 2302, 2306-07, 101 L.Ed.2d 123 (1988)

; see also Yauch v. S. Pac. Transp. Co., 198 Ariz. 394, 399-400, ¶ 12, 10 P.3d 1181, 1186-87 (App.2000). Arizona's Rules of Evidence therefore apply in adjudications of federal claims so long as their application does not impair a litigant's substantive federal rights. Yauch, 198 Ariz. at 399-400, ¶ 12, 10 P.3d at 1186-87; cf. Logerquist v. McVey, 196 Ariz. 470, 481-90, ¶¶ 33-61, 1 P.3d 113, 124-33 (2000) (interpreting Arizona Rule of Evidence 703 differently than its federal counterpart).

¶ 7 Shotwell conceded in her supplemental briefs and at the oral argument that Arizona courts need not follow the Ninth Circuit's per se rule, although she vigorously argued that we should do so. Implicit in her concession is the acknowledgement that failure to apply the per se rule would not affect her substantive federal rights.

¶ 8 This concession was properly made. Nothing in Title VII itself affords litigants an unfettered ability to introduce an EEOC reasonable cause determination in Title VII adjudications. See 42 U.S.C. §§ 2000e to 2000e-17; Smith v. Universal Servs., Inc., 454 F.2d 154, 156 (5th Cir.1972) (noting that "[t]he Civil Rights Act admittedly contains nothing to authorize the admission of the EEOC's findings into evidence"); Michael D. Moberly, Admission Possible: Reconsidering the Impact of EEOC Reasonable Cause Determinations in the Ninth Circuit, 24 Pepp. L.Rev. 37, 41 (1996) (stating that "Congress has not addressed whether EEOC reasonable cause determinations are admissible in subsequent employment discrimination litigation"). Thus because the admissibility of an EEOC determination is a purely evidentiary issue that does not affect any substantive federal right, Arizona courts are not required to follow the Ninth Circuit's per se rule.

¶ 9 But even if Arizona courts were bound to apply federal procedural rules to Title VII cases, the split in the federal circuits addressing this issue would afford us the latitude to adopt either the Ninth Circuit's per se rule or the majority position, a discretionary approach governed by the Federal Rules of Evidence, which, in this instance, parallel the corollary Arizona rules. Because both the majority and minority approaches are federal law, we are free either to adopt or reject the Ninth Circuit's per se rule based on our own reasoning and analysis.

¶ 10 We begin our analysis by considering the origin of the per se rule and examining the extent to which it has been adopted in other jurisdictions. The rule originated in Smith v. Universal Services, Inc., 454 F.2d 154 (5th Cir.1972). See Plummer v. W. Int'l Hotels Co., 656 F.2d 502, 504 (9th Cir.1981)

. Reasoning that EEOC investigators are "trained and experienced in [investigating] discriminatory practices," the Fifth Circuit concluded that ignoring such resources "would be wasteful and unnecessary." Smith, 454 F.2d at 157. The court then found that the "highly probative" nature of an EEOC report "outweighs any possible prejudice to [a] defendant." Id. Finally, the court concluded that although the report was hearsay, it fell within the exclusion for official reports in Federal Rule 803(8)(C) and was therefore admissible. Id. at 157-58. The Fifth Circuit has, however, since retreated from the per se rule. See Cortes v. Maxus Exploration Co., 977 F.2d 195, 201-02 (5th Cir.1992) (stating that admission of an EEOC probable cause...