Banks v. Vilsack ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
DENISE A. BANKS, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-1807 (RWR)
)
TOM VILSACK, )
)
Defendant. )
_____________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiff Denise A. Banks brings this action against the
Secretary of the United States Department of Agriculture (“USDA”)
under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq., alleging that while employed at the USDA
she was discriminatorily removed from the Senior Executive
Service (“SES”) because of her race and sex. Banks moves in
limine to preclude the USDA from calling a number of witnesses
and introducing certain exhibits at trial arguing that the
evidence is irrelevant. Because some of the challenged evidence
may be relevant to Banks’s damages claim, but the USDA has not
shown that the other challenged evidence is relevant, Banks’s
motion will be granted in part and denied in part.
BACKGROUND
The background of this case is discussed more fully in Banks
v. Vilsack, Civil Action No. 07-1807 (RWR), 2013 WL 1208560
(D.D.C. Mar. 26, 2013). Banks, an African-American woman, “began
-2-
working at the USDA in February 1999 as the Deputy Director for
Civil Rights (Employment) at the SES level.” Id. at *1. “Banks
was supervised by Rosalind Gray.” Id.
Banks was subject to a one-year probationary period
when she was appointed as the Deputy Director. Her
November 1999 performance appraisal for the
probationary period stated that she did not meet
several critical elements of her position and that her
overall performance was rated as “unsatisfactory.” As
a result of her poor performance rating, Gray
recommended that Banks be terminated. Notwithstanding
Gray’s recommendation, Assistant Secretary for
Administration, Paul Fiddick, removed Banks from the
SES position in January 2000 but reassigned her to a
GS–15 position, Special Assistant to the Deputy
Director for Programs in the Office of Civil Rights.
Id. (internal citations omitted).
After being demoted from the SES, Banks continued to work at
the USDA in a management position where she supervised others
including Michele Eiland. See Joint Pretrial Stmt. (“JPS”) at
18-19.
From 2000 to 2004, Banks received overall
performance ratings of “outstanding” on her performance
appraisals. . . . In August 2004, Sadhna True became
the Director for Civil Rights and Employment at the
USDA. In that capacity, True became Banks’s second
line supervisor. In 2005, Banks received the lower
performance rating of “Superior”; in 2006 and 2007, she
received the even lower rating of “Fully Successful.”
. . .
In November 2007, Michael Watts, the acting
Director for Civil Rights, reassigned Banks from her
Division Chief position to the position of special
assistant to the acting Director for Civil Rights.
Banks, 2013 WL 1208560, at *2 (internal citations omitted).
Banks alleges that she “became so depressed over Ms. True’s
-3-
hostile treatment that she had to be hospitalized” in 2008. JPS
at 7.
Banks brings this action against the USDA alleging that the
agency discriminated against her on the basis of race and sex by
removing her from the SES in 2000.1 Banks seeks compensatory
damages for “emotional distress, pain and suffering, loss of
enjoyment of life, damage to reputation, and other losses.” Id.
at 25. She also seeks reinstatement to the SES with full back
pay and benefits. Id.
Banks now moves in limine to exclude some of the USDA’s
proposed witnesses and exhibits under Federal Rule of Evidence
402 arguing that the evidence is irrelevant or inadmissible under
Rule 403. Pl.’s Supplemental Objections to Witnesses & Exs.
(“Pl.’s Supplemental Objections”) at 1. Specifically, she seeks
to preclude (1) testimony from True; (2) testimony from Constance
Bails; (3) testimony to from Watts; (4) testimony from Eiland;
(5) e-mails to or from True; (6) an e-mail from Bails; (7) e-
1
Banks filed a five-count amended complaint against the
USDA alleging that it discriminated and retaliated against her on
the basis of race, sex, and age. Banks, 2013 WL 1208560, at *2.
“Summary judgment [was] entered for the USDA on Banks’s
claims . . . that the USDA retaliatorily removed her from the
SES, issued her a letter of direction, and lowered her
performance rating in 2005,” and on Banks’s claim that she was
subjected to a hostile work environment because of her race,
color, sex, age, and prior EEO activity. Id. at *6. On the eve
of trial, Banks filed a motion to amend her complaint to include
only her claims that she was discriminated against on the basis
of race and sex when she was removed from the SES in 2000. On
June 17, 2013, Banks’s motion to amend her complaint was granted.
-4-
mails to or from Watts; (8) an e-mail from Eiland; (9) Banks’s
Performance Appraisals in 2006 and 2007; (10) exhibits regarding
Banks retaining copies of certain documents; and (11) the 2007
Letter of Direction.2
The USDA counters “that the Court should defer its ruling on
this evidence until trial.” Def.’s Mem. of P. & A. in Opp’n to
Pl.’s Supplemental Objections (“Def.’s Opp’n”) at 2. The USDA
further argues that the “witnesses and exhibits which Plaintiff
seeks to exclude are relevant to Defendant’s defense concerning
Plaintiff’s job performance, and may be relevant on a number of
issues and for a number of purposes.” Id. at 1.
DISCUSSION
“While neither the Federal Rules of Civil Procedure nor the
Federal Rules of [E]vidence expressly provide for motions in
limine, the Court may allow such motions ‘pursuant to the
district court’s inherent authority to manage the course of
trials.’” Barnes v. District of Columbia, Civil Action No. 06-
315 (RCL), 2013 WL 541148, at *1 (D.D.C. Feb. 14, 2013) (quoting
Luce v. United States, 469 U.S. 38, 41 n.4 (1984)). “[T]rial
judges are afforded broad discretion in rendering evidentiary
rulings, a discretion which extends to assessing the probative
value of the proffered evidence and weighing any factors against
admissibility.” Graves v. District of Columbia, 850 F. Supp. 2d
2
Banks also has withdrawn as irrelevant her own witnesses
Judy Calvin and Rhonda Davis and Exhibits 41-45 and 47-49.
-5-
6, 11 (D.D.C. 2011) (citing Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 384 (2008)). “‘In some instances it is
best to defer rulings until trial, when decisions can be better
informed by the context, foundation, and relevance of the
contested evidence within the framework of the trial as a
whole.’” Herbert v. Architect of the Capitol, Civil Action No.
09-1719 (CKK), 2013 WL 384819, at *2 (D.D.C. Jan. 31, 2013)
(quoting Casares v. Bernal, 790 F. Supp. 2d 769, 775 (N.D. Ill.
2011)). However, it is within a trial judge’s discretion to
decide “whether a motion in limine presents an evidentiary issue
that is appropriate for ruling in advance of trial.” Graves, 850
F. Supp. 2d at 11 (citing United States v. Valencia, 826 F.2d
169, 172 (2d Cir. 1987)).
Federal Rule of Evidence 401 provides that “[e]vidence is
relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact
is of consequence in determining the action.” Fed. R. Evid. 401.
“Irrelevant evidence is not admissible.” Fed. R. Evid. 402. The
proponent of the evidence bears the burden of establishing that
the evidence is relevant. See Dowling v. United States, 493 U.S.
342, 351 n.3 (1990). Even if the evidence is relevant, the court
may still exclude it “if its probative value is substantially
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue
-6-
delay, wasting time, or needlessly presenting cumulative
evidence.” Fed. R. Evid. 403.
Banks moves to exclude certain evidence arguing that it is
irrelevant to Banks’s claims that she was discriminated against
on the basis of race and sex by being demoted from the SES in
2000. She contends that this evidence pertains to events that
“are too remote in both time and causation to have any probative
value under Rule 401.” Pl.’s Supplemental Objections at 1. In
the interest of conducting an efficient jury trial and preventing
the jury from hearing inadmissible evidence, Fed. R. Evid.
103(d), Banks’s motion will be decided pretrial.
The USDA argues that the challenged witnesses and exhibits
are relevant for three reasons.3 First, the USDA argues that the
evidence may be relevant to Banks’s damages claim. The USDA
argues that Watts’s and Eiland’s testimony is relevant to whether
the USDA harmed Banks’s professional reputation and career
because both Watts and Eiland “have worked at the USDA and in the
civil rights community for years” with Banks. Def.’s Opp’n at 4-
5.4 Banks counters that Watts and Eiland do not have any
knowledge about her professional reputation and career during the
3
The USDA does not individually address every piece of
evidence that Banks challenges. Instead, the USDA argues
generally that the challenged evidence is admissible.
4
The USDA does not argue that the challenged e-mails from
Watts and Eiland are likewise relevant to Banks’s damages claim.
-7-
relevant time period.5 However, Banks concedes that if the USDA
establishes that Watts and Eiland have a foundation to testify
about these issues, their testimony would be admissible. See
Pl.’s Reply to Def.’s Opp’n to Pl’s Supplemental Objections
(“Pl.’s Reply”) at 4. To the extent that Watts and Eiland offer
testimony relevant to Banks’s claim for damages for harm caused
to her professional reputation and career during the period for
which she alleges the harm, they may testify as to these issues
assuming that their testimony is not otherwise inadmissible.
Thus, Banks’s motion to exclude Watts’s and Eiland’s testimony
regarding Banks’s professional reputation and career will be
denied without prejudice.
The USDA also argues that if Banks testifies that she is
entitled to damages because she was hospitalized in 2008,
“Plaintiff’s claim concerning Ms. True and any testimony or
evidence related thereto” would be relevant to impeach Banks’s
testimony. Def.’s Opp’n at 4. The USDA does not specify what
evidence would be relevant or carry its burden of justifying how
that evidence is relevant to impeach Banks. However, in her
reply, Banks concedes that if she testifies that her health
issues in 2008 were caused by her demotion from the SES in 2000,
the USDA can offer True’s testimony. Pl.’s Reply at 2. Thus, if
5
Banks has not made clear for what period of time she is
seeking damages or whether she is seeking damages for harm caused
to her professional reputation within the USDA, outside the USDA,
or both.
-8-
Banks offers evidence that her health issues in 2008 were caused
by her demotion in 2000, the USDA may offer relevant evidence to
impeach Banks’s testimony including True’s testimony.
Accordingly, Banks’s motion to exclude True’s testimony will be
denied without prejudice.
Second, the USDA argues that the challenged evidence is
relevant to whether Banks should be reinstated. However, the
USDA has not met its burden to show how the challenged evidence
is relevant to whether Banks should be reinstated. “[A] district
court ‘has broad discretion to fashion appropriate equitable
relief for a Title VII plaintiff’ including, but not limited to,
reinstatement[.]” Webb v. District of Columbia, 146 F.3d 964,
976 (D.C. Cir. 1998) (quoting Castle v. Rubin, 78 F.3d 654, 657
(D.C. Cir. 1996)). However, it is an abuse of discretion for the
district court to reinstate a Title VII plaintiff who prevails on
the merits “without any consideration of evidence that suggested
that reinstatement may not have been an appropriate remedy.” Id.
For instance, the district court may consider “evidence of
extreme animosity between the plaintiff and the defendant
employer,” id. at 977 (internal quotation marks omitted),
evidence that the employer is genuinely dissatisfied with the
plaintiff’s job performance, id., and the impact that
reinstatement would have on a displaced employee, see Lander v.
Lujan, 888 F.2d 153, 157 (D.C. Cir. 1989). While evidence that
pertains to whether Banks should be reinstated would be relevant,
-9-
the USDA has not shown how the challenged evidence “has any
tendency to make a fact more or less probable than it would be
without the evidence.” See Fed. R. Evid. 401. Instead, the USDA
states only that “evidence concerning [Banks’s] performance after
her removal is both important to and relevant for the Court’s
decision on whether to grant” Banks’s request to be reinstated to
the SES. Def.’s Opp’n at 4. Although relevance is a “low
hurdle,” United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir.
1989), this conclusory allegation does not cross it.
In any event, the court, not the jury, would decide whether
Banks is entitled to equitable relief, such as reinstatement.
See 42 U.S.C. § 2000e-5(g)(1). Thus, even if the evidence is
relevant to whether Banks should be reinstated, this is not an
issue for the jury to decide and admitting the evidence before
the jury may cause undue delay, confuse the issues, or mislead
the jury. Accordingly, this evidence will be excluded under Rule
403.
Finally, the USDA argues that the challenged witnesses’
testimony is admissible under Federal Rule of Evidence 608. Rule
608 provides that
[a] witness’s credibility may be attacked or supported
by testimony about the witness’s reputation for having
a character for truthfulness or untruthfulness, or by
testimony in the form of an opinion about that
character. But evidence of truthful character is
admissible only after the witness’s character for
truthfulness has been attacked.
Fed. R. Evid. 608(a).
-10-
In order to offer reputation evidence under Fed. R.
Evid. 608(a), a party must establish that the character
witness is qualified by having an “acquaintance with
the witness,” his “community,” and “the circles in
which he has moved, as to speak with authority of the
terms in which generally the witness is regarded.”
United States v. Whitmore, 359 F.3d 609, 616 (D.C. Cir. 2004)
(quoting Michelson v. United States, 335 U.S. 469, 478 (1948)).
“[T]he foundational requirement for opinion evidence regarding a
witness’s character for truthfulness is less stringent than that
for reputation evidence[.]” Id. at 617.
Reputation testimony . . . need not be derived from the
witness’s residential community and a character witness
need not physically reside in that community. . . . A
witness’s opinion testimony must be based on underlying
facts that demonstrate that the opinion is rationally
based on the first-hand perception of the witness and
would be helpful to the jury in evaluating the
subject’s truthfulness.
United States v. McCallum, 885 F. Supp. 2d 105, 119 (D.D.C. 2012)
(internal citation omitted) (citing Whitmore, 359 F.3d at 617
n.3, 618). “[E]vidence offered under [608(a)] is subject to
discretionary exclusion under Rule 403.” 28 Charles Alan Wright
& Victor J. Gold, Federal Practice and Procedure § 6114 (2d ed.
2012); see also Whitmore, 359 F.3d at 618 (holding that the
district court did not abuse its discretion by excluding opinion
and reputation evidence attacking the credibility of a witness
under Rules 608(a) and 403).
Here, the USDA has not carried its burden of demonstrating
that any of its witnesses meet the foundational requirements for
opinion and reputation testimony concerning another’s character
-11-
for truthfulness and that such testimony is not otherwise
inadmissible under Rule 403. Nor has the USDA demonstrated that
it will need to rehabilitate any proposed witness by eliciting
testimony about that witness’s character for truthfulness. Thus,
the USDA has not shown that any of its challenged witnesses will
provide testimony admissible under Rule 608(a).
CONCLUSION AND ORDER
Watts and Eiland may offer testimony relevant to Banks’s
claim for damages for harm to her professional reputation and
career. If Banks argues that her health issues in 2008 were due
to her demotion from the SES, then the USDA may offer testimony
from True to impeach Banks’s testimony. The USDA has not shown
that the other challenged testimony and exhibits are admissible.
Accordingly, it is hereby
ORDERED that Banks’s motion [80] in limine be, and hereby
is, GRANTED IN PART and DENIED IN PART without prejudice.
Testimony from Bails, e-mails to or from True (Defendant’s
Exhibits 16, 18, 21-25, 27-28, 31, 33-35, 42, 44-45, 53, and 57),
an e-mail from Bails (Defendant’s Exhibit 19), e-mails to or from
Watts (Defendant’s Exhibits 32, 41, 51-52, 58, 60), an e-mail
from Eiland (Defendant’s Exhibit 17), Banks’s Performance
Appraisals from 2006 and 2007 (Defendant’s Exhibits 20, 64),
exhibits regarding Banks retaining copies of certain documents
(Defendant’s Exhibits 36-40), and the 2007 Letter of Direction
(Defendant’s Exhibit 50) are precluded. Banks’s request to
-12-
preclude testimony from Watts, Eiland, and True is denied without
prejudice.
SIGNED this 31st day of July, 2013.
/s/
RICHARD W. ROBERTS
Chief Judge