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One of the most hotly contested issues in employment discrimination lawsuits is whether the plaintiff can tell the jury that the U.S. Equal Employment Opportunity Commission investigated and found “reasonable cause” to believe that discrimination occurred. The federal circuits are split on how trial judges should handle the issue. Two circuits have held that EEOC letters of determination are always admissible. But the majority of the circuits have held that such letters may still be deemed inadmissible under Rule 403 of the Federal Rules of Evidence. Now the 3rd Circuit has issued an opinion that sides with the majority and offers extensive guidance on how trial judges should tackle the issue. “We conclude that an EEOC letter of determination is not per se admissible under Rule 403, and that, like other probative evidence, it may be excluded if the countervailing 403 factors substantially outweigh its probative value,” Chief Judge Edward R. Becker wrote in Coleman v. Home Depot Inc. Becker found that U.S. District Judge Mary Little Cooper of the District of New Jersey did not abuse her discretion when she held that the EEOC letter of determination in Mary Coleman’s case should be excluded because it had little value and that allowing it would result in “undue delay” because it would have forced Home Depot to present extensive evidence to rebut the EEOC’s conclusions. Coleman claimed in the suit that when she was hired by Home Depot, she was treated differently because she is an older, black woman. Instead of hiring her for a sales position, Coleman claimed that Home Depot ignored her experience in hardware, plumbing, lumber, paint and electrical sales, and relegated her to a cashier’s job. In her six-month career with the store, Coleman received nine written warnings about her poor job performance as a cashier for mishandling money due to shortages and overages in her register at the end of the day. She was fired after a customer called the store to complain that Coleman had short-changed him $10. Coleman filed a complaint with the EEOC, alleging discrimination on the basis of race, sex and age. Following an investigation, the EEOC issued a letter of determination that said “reasonable cause” existed to believe that Home Depot had discriminated against Coleman because of her sex and race. In the letter, the EEOC investigators said the evidence showed that women were routinely hired as cashiers, while men with similar or less experience were hired for better-paying sales positions. The letter said Coleman routinely asked to be transferred to sales positions and that she was “highly experienced” in hardware and other sales areas. The EEOC concluded that Coleman’s job performance problems were the result of her being placed in a cashier’s position. When Coleman’s case went to trial, Home Depot’s lawyers argued that the EEOC letter should be excluded from the evidence since the record did not support the EEOC’s findings. Cooper put off ruling on the motion until just before Coleman’s lawyer, David A. Krenkel of Arbus Krenkel & Monaghan in Ocean, N.J., had finished presenting his case in chief. “I will test that report against the evidence which is adduced by the plaintiff at trial, not to see whether I am persuaded — that’s not my job — not to see whether I am persuaded in the direction that the EEOC determined, but to see whether there is reliable evidence upon which the EEOC determination could reasonably have rested,” Cooper said. Midway through the trial, Cooper granted the defense motion, saying the evidence at trial had not supported the EEOC’s conclusion, most notably that Coleman was “highly experienced” since her prior work was limited to “mom & pop” stores. Cooper found that the letter should be excluded because Home Depot would otherwise be forced to present extensive rebuttal evidence. Although Coleman had “substantial evidence” to support her claim, Cooper found that “there is little probative value in the EEOC’s conclusory statements.” Now the 3rd Circuit has ruled that while Cooper’s approach was less than perfect, she was correct in her ultimate decision to exclude the EEOC letter. The legal analysis focuses on the interplay between two rules of evidence. Rule 808(8)(C) creates an exception to the hearsay rule so that a document such as an EEOC letter of determination is not excluded since there is a “presumption of reliability of government records.” In 1976, the U.S. Supreme Court ended any speculation when it held in Chandler v. Roudebush that 808(8)(C) covers EEOC determinations. Since then, two circuits — the 5th and 9th — have held that EEOC letters are always admissible unless the defendant can show under Rule 808 that there is reason to question the letter’s trustworthiness. But several other circuits have held that defendants can move for preclusion under Rule 403, which calls for judges to conduct a balancing test to determine if the “probative value” of a piece of evidence is “substantially outweighed” by its possible negative consequences. The rule lists three possible dangers that judges should consider — unfair prejudice, confusion of the issues, or misleading the jury — as well as factors relating to judicial economy, including “undue delay, waste of time, or needless presentation of cumulative evidence.” Becker found that Rule 403 is an “umbrella rule” that “span[s] the whole of the Federal Rules of Evidence.” In a section of the opinion that resembles a law professor’s lecture on Rule 403, Becker succinctly describes the rule’s purpose and some of its key concepts. “Evidence may be excluded if its probative value is not worth the problems that its admission may cause. … However, there is a strong presumption that relevant evidence should be admitted, and thus for exclusion under Rule 403 to be justified, the probative value of evidence must be ‘substantially outweighed’ by the problems in admitting it,” Becker wrote. The balancing test in Rule 403, he wrote, “ensures that juries are not presented with evidence that is far less probative than it is prejudicial.” In a footnote, Becker commented on the lack of linguistic precision commonly seen in Rule 403 arguments. “It is worth stressing that the term ‘unfair prejudice’ as a factor against which the probative value of evidence is weighed under Rule 403 is often misstated as mere prejudice. Indeed, any evidence that tends to harm a party’s case could be said to be prejudicial. Thus, the prejudicial effect of admitting the evidence must rise to the level of creating an unfair advantage for one of the parties for the evidence to be excluded under Rule 403,” Becker wrote. The 5th Circuit, Becker said, has held that “the probative value of EEOC determinations almost always outweighs any prejudicial impact.” Similarly, the 9th Circuit has held that Rule 808 creates a presumption of admissibility that trumps most objections. But Becker found that the majority of the federal circuits give “less deference to the probative value of agency reports” and have refused to categorically require admission of agency findings. Becker agreed with the majority and found that the Rule 403 factors — and especially considerations of undue delay, waste of time or needless presentation of cumulative evidence — can be used by defendants to tip the scales in favor of exclusion. In Coleman’s case, Becker said he disagreed with Cooper’s “general approach to the Rule 403 calculus.” By requiring that the plaintiff establish an evidentiary basis for the letter, Becker said, Cooper “in effect charged the plaintiff with replicating the record before the EEOC and then evaluated the record produced by plaintiff to see if it justified the report.” But Becker found that Cooper was “clearly correct” about the low probative value of the most critical facet of the EEOC report — that Coleman was not hired as a sales associate despite being a “highly experienced” candidate. Coleman’s experience in hardware sales was exposed at trial to be much thinner, Becker found. If the EEOC report had been admitted, he said, “a great deal of time would have had to have been consumed to counter the report’s conclusion about the fate of other employees, male and female.” Since the EEOC had concluded that Home Depot “systematically” discriminated against female and minority employees, Becker found that “in order to rebut these expansive allegations, Home Depot would have had to present evidence showing that it did not discriminate when it placed former employees in cashier positions or fired them. This would certainly have involved a great deal of testimony — a trial within a trial in fact — about the employment histories of a large number of former employees.” Home Depot was represented in the appeal by attorneys Patrick G. Brady, John M. O’Connor and Clara H. Rho of Carpenter Bennett & Morrissey in Newark, N.J.

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