Zubulake v. Ubs Warburg LLC.

• Decision Date: 16 March 2005
• Docket Number: No. 02 Civ. 1243SAS.,02 Civ. 1243SAS.
• Citation: 382 F.Supp.2d 536
• Parties: Laura ZUBULAKE, Plaintiff, v. UBS WARBURG LLC, UBS Warburg, and UBS AG, Defendants.
• Court: U.S. District Court — Southern District of New York

382 F.Supp.2d 536

Laura ZUBULAKE, Plaintiff, v. UBS WARBURG LLC, UBS Warburg, and UBS AG, Defendants.

No. 02 Civ. 1243SAS.

United States District Court, S.D. New York.

March 16, 2005.

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James A. Batson, Liddle & Robinson, LLP, New York City, for Plaintiff.

Bettina B. Plevan, Proskauer Rose LLP, New York City, for Defendants.

OPINION AND ORDER

SCHEINDLIN, District Judge.

Laura Zubulake is suing her former employer, UBS Warburg LLC (hereinafter "UBS"), for sex discrimination, including disparate treatment and wrongful termination, and retaliation in violation of, inter alia, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Both parties have filed motions in limine that are addressed in this Opinion and Order.

I. PLAINTIFF'S MOTION TO PRECLUDE EVIDENCE OF HER PRIOR EMPLOYMENT

Plaintiff seeks to preclude defendants from using evidence of plaintiff's prior employment to show that she had a propensity for certain performance deficiencies. Defendants intend to proffer two categories of evidence. First, UBS seeks to introduce evidence of plaintiff's employment history, specifically the fact that she worked for ten different securities firms in a period of less than twenty years. Because this evidence is relevant to plaintiff's ability to find subsequent employment it is admissible.

The second category of evidence involves plaintiff's poor work performance at Credit Suisse First Boston ("CSFB") and, in particular, the performance appraisal she received shortly before negotiating a severance package. See May 5th 1999 Memorandum from Jay Plourde entitled "Performance Deficiencies." Plaintiff claims that this is character evidence which is inadmissible under Federal Rule of Evidence 404(b). Defendants claim that this evidence is admissible because: (1) plaintiff's character is in issue;¹ (2) the evidence is proffered to prove matters other than plaintiff's character, specifically to rebut her contention that she was not insubordinate and uncooperative; and (3) the evidence is admissible to prove habit pursuant to Rule 406. Defendants' arguments are rejected.

An almost identical issue involving previous employment was addressed in Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507 (D.C.Cir.1995). In that case, plaintiff sued her employer Adduci, Mastriani, Meeks & Schill ("AMM & S"), a Washington D.C. law firm, for sex discrimination in violation of Title VII. In addition to introducing evidence of plaintiff's performance problems at AMM & S, defendants introduced evidence concerning plaintiff's prior employment with another law firm, Dow, Lohnes & Albertson ("DL & A"). See id. at 85 (defendants introduced written evaluations of plaintiff's work at DL & A and related testimony regarding plaintiff's difficulties in getting along with staff and meeting deadlines while an associate at DL & A).

Defendants argued that the DL & A evidence was admissible to demonstrate that plaintiff had the same difficulties at a previous law firm that she had at AMM & S or, failing that, to impeach her testimony regarding her reasons for leaving DL & A. The court rejected the argument that the DL & A evidence was admissible because it demonstrated that plaintiff displayed similar work-related problems in her former employment. In finding that the district court abused its discretion in admitting this evidence, the court stated:

Both AMM & S and the district court misapprehend the Federal Rules' treatment of character evidence. Under Federal Rule of Evidence 404, "[e]vidence of a person's character or a trait of [her] character is not admissible for the purpose of proving that [she] acted in conformity therewith on a particular occasion," except in certain defined circumstances none of which is present here. Fed.R.Evid. 404(a). Additionally, Rule 404(a) provides specifically that evidence of prior acts cannot be introduced to prove the character of a person in order to show that she acted in conformity therewith. Fed.R.Evid. 404(b). When the district court admitted the DL & A evidence relating to Neuren's difficulties with personal relationships at that firm, it noted that the evidence was "relevant with respect to how she performed at another firm.... [AMM & S is] just showing that this is the same problem that this woman had." (citation omitted). Thus, the district court admitted the evidence for the purpose specifically prohibited by Rule 404 — as evidence that she acted in conformity with her behavior at DL & A while working for AMM & S.

The DL & A character evidence does not fall within any of the exceptions expressly contemplated by Rule 404(b). See Fed.R.Evid. 404(b) (exceptions for proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident). Moreover, appellee's argument that this evidence is admissible because character was "in issue" in the case is equally unavailing. Under the "character in issue" doctrine, character evidence is admissible where character itself is "an element of a crime, claim, or defense." Fed.R.Evid. 404(a), Notes of Advisory Committee on Proposed Rules. An example of evidence admissible where character is "in issue" is evidence of the chastity of a victim in a prosecution for the crime of seduction where chastity is an element of that crime. Id. In this case, AMM & S has not offered a plausible theory under which Neuren's character could be considered an element of its defense. AMM & S's business justification for Neuren's termination was that she had difficulty in interpersonal relationships with co-workers and in meeting deadlines. Strictly speaking, this defense is based on Neuren's behavior at the firm, not her character. Consequently, her character was not "in issue" in the sense contemplated by the exception to the rule.

Id. at 511. Several lower courts in the District of Columbia have reached similar conclusions. In Zenian v. District of Columbia, 283 F.Supp.2d 36 (D.D.C.2003), the District wanted to introduce documentary evidence pertaining to plaintiff's performance problems prior to July 1995. The district court precluded such use, stating:

If the District is offering the evidence to show that plaintiff has always been a bad employee, it is doing exactly what it cannot do: introduce evidence of a person's character to prove that his behavior on one or more occasions was consistent with that character. Fed.R.Evid. 404(a). The only purpose of proving that plaintiff was a bad employee before 1995 is to prove that he was an equally bad employee after 1995. That, of course, is exactly what a litigant cannot do.

Id. at 40. See also Rauh v. Coyne, 744 F.Supp. 1181 (D.D.C.1990) (holding inadmissible evidence concerning plaintiff's job performance before and after her employment at defendants' establishment).

The reasoning found in these cases is persuasive. Because this is an employment discrimination case, plaintiff's character is not in issue, either as an essential element of a claim or defense. See EEOC v. HBE Corp. 135 F.3d 543, 553 (8th Cir.1998) (plaintiff's moral character was not an essential element of his retaliatory discharge claim). And no matter how defendants try to frame their intended use — whether to rebut plaintiff's contention that she was not insubordinate and uncooperative or whether to prove that she was insubordinate and uncooperative outright — they are seeking to introduce inadmissible propensity evidence. Because none of the exceptions found in Rule 404(b) apply here, such evidence is inadmissible to prove that plaintiff acted insubordinately at UBS.

Finally, defendants argue that the evidence at issue is admissible under Rule 406 as evidence of plaintiff's habit of behaving insubordinately in response to conflicts in the workplace. Rule 406 provides as follows: "Evidence of the habit of a person or of the routine practice of an organization ... is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice." The Advisory Committee Note to Rule 406 of the Federal Rules of Evidence defines "habit" as follows: "`A habit ... is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic.'" Fed.R.Evid. 406, Advisory Committee Note (quoting McCormick on Evidence, § 195 at 462-63 (2d. ed.1972)).

Habit is conduct that is situation-specific, i.e., specific, particularized conduct capable of almost identical repetition. Character, on the other hand, is a generalized description of a person's disposition or a general trait such as honesty, violence or peacefulness. There is a tension between Rule 404 (character) and Rule 406 (habit) which stems from the difficulty in distinguishing between admissible evidence of habit and inadmissible character evidence. See Simplex, Inc. v. Diversified Energy Sys., Inc., 847 F.2d 1290, 1293 (7th Cir.1988) ("We are cautious in permitting the admission of habit or pattern-of-conduct evidence under Rule 406 because it necessarily engenders the very real possibility that such evidence will be used to establish a party's propensity to act in conformity with its general character, thereby thwarting Rule 404's prohibition against the use of character evidence except for narrowly prescribed purposes.").

"[B]efore a court may admit evidence of habit, the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere `tendency' to act in a given manner, but rather, conduct that is `semi-automatic' in nature." Id. "Although a precise formula cannot be proposed for determining when the...