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In those increasingly rare cases where an employment discrimination claim goes to trial, there is almost always uncertainty as to whether the jury will be allowed to learn of the administrative agency’s decision (likely that it believes there was discrimination). The plaintiff will likely want it admitted, and the defenses will try to have the decision excluded. The admissibility and probative value of a U.S. Equal Employment Opportunity Commission determination was addressed by the 3rd U.S. Circuit Court of Appeal in its recent decision Coleman v. Home Depot Inc., 306 F.3d 1333 (3d Cir. 2002). DISCRIMINATION ALLEGED Mary Coleman, a black woman, applied for a position with Home Depot in the summer of 1996. She represented to the company that she had prior work experience in hardware, plumbing, lumber, paint and electrical. During her interview, however, Coleman had little knowledge of the type of hardware sold by Home Depot, so she was hired as a cashier. She was trained as a cashier but received nine separate written warnings about her performance during her six months with the company. Nevertheless, a few months into her employment, Coleman applied for a transfer from cashier to a position in hardware sales. Home Depot, like most companies, has a policy against transferring employees with performance issues. As such, Coleman’s application was denied. Ultimately, Coleman was terminated after a customer complained about being short-changed at her register. To Home Depot, it became clear that Coleman’s performance was not going to improve. EEOC INVESTIGATION Coleman filed a charge of discrimination with the EEOC a few months after her termination. She claimed sex, race and age discrimination in violation of Title VII and the Age Discrimination in Employment Act. The EEOC investigated her charge and issued a Letter of Determination concluding that “reasonable cause existed to believe that Home Depot had discriminated against Coleman because of her sex and race in connection with [her] hiring, request for transfer and discharge.” Significantly, the EEOC letter made factual findings that “males with less experience were being hired directly into sales positions; [a] similarly situated white employee, who had received warnings … was allowed to transfer to another department; [and] [t]hat [Home Depot] has discriminated against [other] females with respect to hiring and other terms and conditions of employment.” The EEOC also found that Coleman was “highly experienced” in hardware sales. Shortly before trial, Home Depot moved to preclude Coleman from introducing the EEOC’s determination letter into evidence. The trial court ultimately excluded the letter, finding that the “factual” findings of the commission did not appear to be supported any (stated) evidence. As such, the commission’s determination was little more than a conclusory statement, which was of little probative value. The court believed that the jury would consider the EEOC’s determination to be like “an expert opinion” based upon the same information which would be considered by the jury itself. The jury returned a verdict in favor of Home Depot. Coleman appealed, arguing that the trial court abused its discretion in excluding the EEOC determination letter from trial. TRUSTWORTHINESS OF LETTER The 3rd Circuit began its consideration with a lengthy discussion of Federal Rule of Evidence 803(8)(c). Rule 803(8)(c) provides that government records and reports are not hearsay “unless the sources of information or other circumstances indicate lack of trustworthiness.” Factors to be considered in determining the trustworthiness of government reports include: The timeliness of the investigation. The skill or experience of the official making the determination. Whether a hearing was held. Possible motivation issues that could affect the report. The 3rd Circuit found that while the District Court seemed to be skeptical about the trustworthiness of the EEOC’s determination, it did not specifically invoke this as a reason to exclude the letter. As such, the court moved on to consider whether the determination should be admitted into evidence under Rule 403′s balancing of its probative as compared to the danger of unfair prejudice. VALUE VS. PREJUDICE Generally, Rule 403 “recognizes that a cost/benefit analysis must be employed to determine whether or not to admit evidence; relevance alone does not ensure its admissibility. That is, evidence may be excluded if its probative value is not worth the problems that its admission may cause, e.g. unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time or needless presentation of cumulative evidence.” Coleman argued that EEOC reports, in general, are necessarily highly probative so as to outweigh “any possible prejudice to defendant.” This argument was supported by decisions from the 5th and 9th Circuits, which have both held that agency reports are per se admissible, as their probative value necessarily outweighs the negative factors in Rule 403. The 3rd Circuit noted that the 5th and 9th Circuit opinions were in the minority and that the majority of courts have refused to “categorically require admission of agency findings.” The Colemancourt found that the 3rd Circuit was in agreement with the majority of appellate courts, based on its earlier decision in Walton v. Eaton Corp., 563 F.2d 66 (3d Cir. 1977). Specifically, the Colemancourt held that “a District Court has the discretion to exclude probative EEOC Letters of Determination where the negative factors listed in Rule 403 substantially outweigh the probative value of the EEOC determinations.” Applying Waltonand Rule 403 to the case at hand, the 3rd Circuit initially found that the EEOC determination was of low probative value, based upon the EEOC’s failure to reference any evidence “upon which to base its conclusion that a white employee with evaluations as poor as Coleman’s was allowed to transfer to another department or that women were systematically hired as cashiers irrespective of their experience and never transferred to sales positions, unlike male cashiers.” The appellate court also found that Coleman’s own testimony regarding her pre-hiring experience exposed the EEOC’s characterization of her as a “highly experienced” candidate as unsupported. While this aspect of the letter could have been, and was, easily rebutted, the EEOC’s sweeping assertions of discrimination would have required the parties to present “a great deal of testimony — a trial within a trial in fact — about the employment history of a large number of former employees.” This would have ultimately caused “undue delay and waste of time” which substantially outweighed the low probative value of the EEOC’s determination. Coleman’s appeal was, therefore, denied. FINDINGS USUALLY CONCLUSORY As most employment attorneys know, the vast majority of claims brought before the EEOC or Pennsylvania Human Relations Commission result in findings that the allegations of discrimination are not supported by the evidence presented. Such a finding, however, often does not dissuade a disgruntled employee from filing a lawsuit. Because “no cause” findings are almost always issued by way of a checked box in a form letter, employers (and their counsel) will almost never get the opportunity to introduce the agency determination into evidence. As the United States District Court for the Eastern of Pennsylvania explained in Sorge v. Right’s Knitwear Corp., (E.D. Pa. 1994), an agency form letter “is not a determination report which reviews factual findings and contains results of extensive interviews and studies. . . . ” As such, “ this document has no probative value” under Rule 403. Only findings that discrimination has occurred seem to merit detailed discussion from the EEOC or PHRC. As the Colemandecision highlights, counsel for both parties should be wary of the agency’s decision. In Coleman, it appears as though the plaintiff admitted that the EEOC’s characterization of her as “highly experienced” was unjustified. Relying on the EEOC’s determination, therefore, was cold comfort. From the defense perspective, Home Depot appeared to have a justifiable skepticism over the facts supporting the EEOC’s sweeping statements of determination, for which there appeared to be no factual basis. Ultimately, while the EEOC’s determination may have helped drive the case to trial, it was of little use or value in supporting Coleman’s case. Sidney R. Steinberg is a partner in Post & Schell’s ( www.postschell.com) business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.

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