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Evidence was found improper because its relevance was based on a premise that the employer had a propensity to act in a certain way. Plaintiffs in employment discrimination cases frequently seek to introduce evidence of the “prior bad acts” of the employer. In response, employers attempt to exclude such evidence on the grounds that it is designed merely to embarrass or harass and that it is not helpful in proving the underlying discrimination claim. Last year, in Becker v. ARCO Chemical Co., 207 F.3d 176 (3d Cir. 2000), the 3rd U.S. Circuit Court of Appeals examined the admissibility of evidence of an employer’s prior bad acts in an age discrimination case. The appeals court reversed the trial court’s decision because the trial court had improperly received into evidence testimony regarding certain prior bad acts of the employer, in violation of Rule 404(b) of the Federal Rules of Evidence. The court explained that the admission of the evidence was improper because its relevance was predicated on the premise that the employer had a propensity to act in a certain way and was, therefore, inadmissible character evidence. In contrast, in Lewis v. Triborough Bridge and Tunnel Authority, No. 97 CIV 0607, 2001 WL 21256 (S.D.N.Y. Jan. 9, 2001), a court allowed the admission of evidence of an employer’s prior bad acts under Rule 404(b) in a sexual harassment case. The court so ruled because it believed the prior bad acts tended to prove a fact at issue in the case — whether the employer took appropriate action to remedy the harassment being claimed by the plaintiff — rather than the employer’s allegedly bad character. RULE 404(B) BARS CHARACTER EVIDENCE — WITH EXCEPTIONS Federal Rule of Evidence 401 governs the threshold question of relevance of evidence introduced in federal court. Even if evidence is relevant under Rule 401, however, its admissibility may be limited by Rule 404(b). Rule 404(b) disallows “[e]vidence of other crimes, wrongs, or acts [offered] … to prove the character of a person in order to show action in conformity therewith.” Rule 404(b), however, makes an exception for evidence of prior acts offered to show some other rationale, such as “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. …” Because these rationales are offered to prove something other than bad character, they are the means by which prior acts come into evidence. See, e.g., Waterson v. Plank Road Motel Corp., 43 F. Supp.2d 284, 288 (N.D.N.Y 1999). Becker illustrates that courts recognize the significant effect that admission of prior-bad-acts evidence may have on an employer, even if admitted for the stated purpose of proving a fact other than bad character and accompanied by a limiting instruction. In Becker, the plaintiff sued ARCO Chemical Co., alleging violations of the Age Discrimination in Employment Act, 29 U.S.C. 621-634, and the Pennsylvania Human Relations Act, Pa. Stat. Ann., Tit. 43, �� 951-963. William Becker, age 51, was employed by ARCO and its predecessor for 24 years, and worked in its physical testing laboratory at the time of his discharge. James Victor and Kermit Ramey were Becker’s supervisors during the pertinent time period. At trial, Becker presented various types of evidence that, he argued, supported his claim of age discrimination. Becker’s evidence included his own testimony that Victor and Ramey fabricated evidence about another employee’s work performance in order to facilitate that employee’s termination. Becker testified that Victor and Ramey even asked him to lie about the employee’s performance in order to corroborate their fabricated story. He testified that when he refused to lie, Victor and Ramey responded that they would fire the other employee without his help. This was the prior-bad acts-evidence at issue in the case. The district court determined that the prior-bad-acts evidence was admissible under Rule 404(b) because it was offered to prove ARCO’s “plan, knowledge, intent and preparation.” 207 F.3d at 188. The court gave the jury a limiting instruction, explaining that it could consider the prior acts evidence only for these delineated purposes and could not consider it with regard to Victor and Ramey’s characters. A jury verdict was entered in Becker’s favor. He was awarded a judgment of $736,095. The district court denied a motion for a new trial, but the 3rd Circuit reversed and granted a new trial. It held that the district court erred by finding the prior bad acts evidence was admissible under Rule 404(b). The court explained that the 3rd Circuit adheres to a four-prong test in determining the admissibility of evidence under Rule 404(b). To be admissible, “the evidence must have a proper purpose under Rule 404(b); … it must be relevant;” it must satisfy the balancing test of Rule 403; and the court must give the jury a limiting instruction. Id. at 189. The court found that the first prong was at issue in this case. It analyzed Becker’s contentions that the prior-bad-acts evidence was properly introduced to show either ARCO’s intent to discriminate against him, or its “plan, scheme, ‘practice, modus operandi or pattern’ of fabricating reasons for terminating unwanted employees.” Id. at 195. The court explained that although the prior-bad-acts evidence was relevant to ARCO’s discriminatory intent, it was still inadmissible under Rule 404(b). Emphasizing the importance of a rationale other than general bad character, the court explained that “the proponent must clearly articulate how … [the] evidence fits into a chain of logical inferences, no link of which may be the inference that the defendant has the propensity” to commit bad acts. Id. at 191. The court found that Becker failed this test: Evidence that ARCO lied in terminating another employee had no bearing on ARCO’s intent to discriminate against Becker “absent the inference that [it] had a propensity to act in a certain way, and that in firing [him], it acted in conformity with its prior conduct.” Id. The court also rejected Becker’s claim that the prior-bad-acts evidence was admissible under Rule 404(b) as evidence of ARCO’s plan or practice of terminating employees for false reasons. The court ruled that determining the evidence admissible for this purpose was no different from allowing it into evidence to show ARCO’s propensity to act in a certain way and, therefore, that in this case, it acted in conformity with its prior acts. In contrast, the proponents of the prior-bad-acts evidence in Lewis succeeded in convincing the court that such evidence tended to prove a fact at issue in the case. In Lewis, the plaintiffs sued the Triborough Bridge and Tunnel Authority (TBTA) and its employee Peter Senesi, alleging hostile work environment, sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2000e-15, and the New York State Human Rights Law, N.Y. Exec. Law � 296. The plaintiffs were toll collectors at the TBTA’s Whitestone facility and alleged harassment by employees of an outside company hired to perform cleaning services at their workplace. Lewis v. Triborough Bridge and Tunnel Authority, 77 F. Supp.2d 376 (S.D.N.Y. 1999). Senesi, a TBTA employee, was solely responsible for the investigation of the plaintiffs’ sexual harassment claims. The plaintiffs sought to introduce evidence that Senesi viewed pornographic movies while at work and that he was known as the “porno king of Whitestone Bridge.” This was the prior-bad-acts evidence at issue in this case. 2001 WL 21256, at *2. The defendants moved in limine for exclusion of this evidence under rules 401, 404(b) and 403. ‘LEWIS’ COURT FOUND PRIOR BAD ACTS HIGHLY RELEVANT As a threshold matter, the court found the prior-bad-acts evidence highly relevant under Rule 401 for two reasons. First, Senesi’s background and credentials were pertinent because, to defend the sexual harassment claim, the TBTA was required to establish that it took appropriate action to correct the plaintiffs’ complaints of harassment. Because Senesi was the TBTA’s only means of investigating such claims, his selection was directly relevant to whether it had taken appropriate action. Second, the evidence was relevant because the workplace atmosphere is generally relevant in a hostile-work-environment claim. Next, the court engaged in a Rule 403 balancing analysis. The court gave short shrift to the defendants’ claim that the danger of unfair prejudice outweighed the probative value of the prior-bad-acts evidence. The court explained that it did not envision that a jury would view this evidence other than to show that the TBTA chose the wrong person to administer its sexual harassment policy. Finally, the court rejected the defendants’ claim that the evidence should be excluded under Rule 404(b). It explained that the 2nd Circuit adheres to an “inclusionary rule,” under which prior-acts evidence is admissible if it is offered “for any purpose other than to show defendant’s … propensity” to act in a certain way, if it is relevant and if it satisfies the balancing test of Rule 403. Id. at *3. The court found that the evidence of Senesi’s prior bad acts was not offered to show his bad character, but instead to show that the TBTA had selected an inappropriate person to administer its sexual harassment policy. Thus, having already found the prior-bad-acts evidence relevant under Rule 401 and sufficiently probative under Rule 403, the court held that it was admissible under Rule 404(b). Thus, when evidence of an employer’s prior bad acts is introduced in a discrimination suit, the employer must challenge the plaintiff’s assertion that it is not being offered to prove the employer’s bad character. The employer also should advocate against the plaintiff’s proffered reason for admission of this evidence and should seek to show that one of the necessary inferences to be derived from this evidence is the impermissible one that the employer acted in conformity with its allegedly bad character.

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