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Admissibility of Evidence of Employers' Prior Bad Acts in Discrimination Cases

Plaintiffs in employment discrimination cases frequently seek to introduce evidence of the so-called “prior bad acts” of the employer.  In response, employers attempt to exclude such evidence on grounds that it is designed merely to embarrass or harass, and is not related to or helpful in proving the underlying discrimination claim.  As reflected by the cases we will discuss below, the admissibility of such evidence is often critically important to the case outcome.  

In Becker v. ARCO Chemical Co., 207 F.3d 176 (3d Cir. 2000), the Third Circuit Court of Appeals examined the admissibility of evidence of an employer’s prior bad acts in an age discrimination case.  The court reversed the trial court’s decision because it 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 therefore was inadmissible character evidence.


By contrast, in Lewis v. Triborough Bridge and Tunnel Authority, No. 97 CIV 0607 (PKL), 2001 WL 21256 (S.D.N.Y. Jan. 9, 2001), Judge Leisure of the U.S. District Court for the Southern District of New York allowed the admission of evidence of an employer’s prior bad acts under Rule 404(b) of the Federal Rules of Evidence in a sexual harassment case.  The court allowed this evidence to be admitted because it believed the prior bad acts tended to prove a fact that was in issue in the case, rather than the employer’s allegedly bad character.  The fact that was in issue was whether or not the employer took appropriate action to remedy the harassment being claimed by the plaintiff.
As illustrated by these cases, the admissibility of prior bad acts evidence under Rule 404(b) turns on the interrelationship between the prior bad acts evidence and the fact that the proponent of the evidence is seeking to establish.  If the court believes that the evidence is offered to prove a fact that is in issue, like motive, plan, intent, or knowledge, the evidence may be admitted to prove that fact.  However, if an argument can be fashioned that the evidence is relevant only based on an impermissible inference as to the defendant’s character, the prior acts evidence may be excluded.


When a court allows admission of evidence of an employer’s prior bad acts under Rule 404(b) believing that it has been offered to prove a fact without reference to the employer’s alleged character, the prior bad acts may nonetheless have the same secondary effect of reflecting poorly on the employer’s character.  Although the court may give the jury a limiting instruction directing it to consider the prior bad acts evidence only for the proponent’s asserted reason, it is possible that the evidence may nevertheless color the jury’s view of the employer’s character.  

Thus, if evidence of an employer’s prior bad acts exists, plaintiff’s counsel often fights vigorously in an effort to demonstrate that the evidence is being offered to prove a fact in issue, knowing that, if admitted, it will serve the additional purpose of affecting the jury’s perception of the employer’s character.  In turn, employers can be expected to argue that the evidence is relevant to prove a fact in issue only by consideration of the impermissible inference that the employer acted in conformity with its allegedly bad character.


Background
Federal Rule of Evidence 401 governs the threshold question of relevance of evidence introduced in federal court.1  However, even if evidence is relevant under Rule 401, 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.”  However, 404(b) 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 vehicle by which prior acts come into evidence under the rule.2  


Becker

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.  Becker indicates that erroneous admission of prior bad acts evidence can have such a devastating effect on a jury’s perception of an employer that it may warrant reversal of a jury verdict and award of a new trial.  


In Becker, plaintiff sued ARCO Chemical Company (“ARCO”) alleging age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, and the Pennsylvania Human Relations Act (“PHRA”), Pa. Stat. Ann., tit. 43, §§ 951-963.  Becker, age 51, was employed by ARCO and its predecessor for 24 years, and worked in their physical testing laboratory at the time of his discharge.  James Victor and Dr. Kermit Ramey were Becker’s supervisors during the pertinent time period.  At trial, Becker presented various types of evidence which 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 so-called “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).  The court held that it was admissible because it was offered to prove ARCO’s “plan, knowledge, intent and preparation.”3  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’s and Ramey’s character.

After trial, a jury verdict was entered in Becker’s favor.  He was awarded a judgment of $736,095.00.  Subsequently, ARCO filed a motion for a new trial, which the district court denied.  In denying its motion, the district court elaborated on its Rule 404(b) reasoning, explaining that the prior bad acts evidence was admissible because it showed ARCO’s plan or practice of fabricating reasons to terminate employees.  


The Third Circuit Court of Appeals reversed the district court’s denial of ARCO’s motion and granted a new trial.  The court held that the district court erred by finding the prior bad acts evidence was admissible under Rule 404(b).


The court explained that the Third Circuit adheres to a four-prong test in determining the admissibility of evidence under Rule 404(b).  To be admissible, (1) “the evidence must have a proper purpose under Rule 404(b),” (2) “it must be relevant,” (3) it must satisfy the balancing test of Rule 403, and (4) the court must give the jury a limiting instruction.4  The court explained that the first prong was at issue in this case.  In this regard, the court analyzed Becker’s contentions that the prior bad acts evidence was properly introduced to show either (1) ARCO’s intent to discriminate against him, or (2) its “plan, scheme, ‘practice,’ ‘modus operandi’ or ‘pattern’ of fabricating reasons for terminating unwanted employees.”5

As to the issue of intent, the court explained that although the priorbad acts evidence was relevant to ARCO’s discriminatory intent, it was nonetheless inadmissible under Rule 404(b).  Emphasizing the importance of a rationale other than general bad character, the court explained that in order to be admissible under Rule 404(b), “‘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.6  The court concluded that Becker failed to satisfy this test reasoning that evidence showing 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 [Becker], it acted in conformity with its prior conduct.”7


The court similarly rejected Becker’s contention 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 concluded that determining the prior acts evidence admissible for this purpose, under the facts of this case, was no different than allowing it into evidence to show ARCO’s propensity to act in a certain way and, therefore, that in this case it acted in conformance with its prior acts.  In reaching this conclusion, the court reasoned that the prior bad acts evidence and Becker’s allegations, when combined, were not sufficient to establish a plan or scheme.  

Lewis

Unlike Becker, the proponents of the prior bad acts evidence in Lewis succeeded in convincing the court that evidence of the employer’s prior bad acts tended to prove a fact in issue in the case.  


In Lewis, 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.  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.8  Senesi, a TBTA employee, was solely responsible for the investigation of plaintiffs’ sexual harassment claims.  


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.9  Defendants moved in limine for exclusion of this evidence under Rules 401, 404(b) and 403.  

As a threshold matter, the court found the prior bad acts evidence to be highly relevant under Rule 401 for two reasons.  First, the court articulated that 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 plaintiffs’ complaints of harassment.  Since Senesi was the TBTA’s only means of investigating such claims, his selection was directly correlated to whether it took appropriate actions to remedy the harassment.  Secondly, the court found the prior bad acts evidence to be 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 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 for the purpose of showing that the TBTA chose the incorrect person to administer its sexual harassment policy.

Finally, the court rejected defendants’ claim that the evidence should be excluded under Rule 404(b).  In determining whether to allow the prior bad acts evidence under Rule 404(b), the court explained that the Second Circuit adheres to an “inclusionary rule,” under which prior acts evidence is admissible if it (1) is offered “for any purpose other than to show defendant’s...propensity...” to act in a certain way, (2) is relevant, and (3) satisfies the balancing test of Rule 403.10  


The court found that the evidence of Senesi’s prior bad acts was not offered to show his bad character, but instead was offered 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).


Conclusion
In preparing its case, an employer should expect that if evidence of its prior bad acts is determined to be admissible, this evidence may be used for at least two purposes – proving the fact in issue and showing that the employer has a propensity to act in a certain bad way.  Thus, an employer must evaluate its trial strategy and the possible wisdom of exploring a pre-trial settlement in light of the effect that bad character evidence may have on its credibility in the eyes of a jury.


Thus, where evidence of an employer’s prior bad acts is introduced in a discrimination suit, the employer must challenge the plaintiff’s assertion that the evidence is not being offered to prove the employer’s bad character.  The employer also should attempt to advocate against the plaintiff’s proffered reason for admission of the prior bad acts evidence, and should seek to demonstrate that one of the necessary inferences to be derived from this evidence is the impermissible inference of showing that the employer acted in conformity with its allegedly bad character.



1 Fed R. Evid. 401 (“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”)  See also Fed. R. Evid. 402 (“All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.  Evidence which is not relevant is not admissible.”)
2 See Waterson v. Plank Road Motel Corp., 43 F.Supp. 2d 284, 288 (N.D.N.Y 1999) (allowing evidence of prior bad acts in a sexual harassment case under Rule 404(b) to show that the work environment was sexually hostile); EEOC v. Nat’l Cleaning Contractors, Inc., No. 90CIV6398(BSJ), 1996 WL 278078, at *2 (S.D.N.Y May 23, 1996) (allowing evidence of an alleged harasser’s previous harassment under 404(b) to prove his motive or intent for terminating plaintiff).
  Although prior acts may be admissible under Rule 404(b), they are still subject to exclusion under the balancing test of Federal Rule of Evidence 403.  Rule 403 prohibits admission of evidence if the danger of unfair prejudice substantially outweighs its probative value.  Evidence that is remote in time or substance from the subject at issue may be inadmissible on the grounds that the risk of unfair prejudice outweighs the probative value of the evidence, even if the evidence offered is admissible under Rule 404.  See Perry v. Ethan Allen, Inc., 115 F.3d 143, 150 (2d Cir. 1997) (holding that evidence of events six months prior to alleged harassment in a hostile work environment claim properly excluded on the grounds that “they were too remote to be probative”); Brown v. Trustees of Boston Univ., 891 F.2d 337, 350-51 (1st Cir. 1989) (explaining in a sexual harassment case that defendant’s remarks about working women did not qualify as “closely related discriminatory conduct,” but instead were inadmissible as “ambivalent evidence,” the relevance of which demanded “an untenable leap” of inference); cf. Finley v. Cowles Business Media, No. 93 Civ. 5051 (DLC), 1994 WL 665019, at *1-3 (S.D.N.Y. Nov. 23, 1994) (allowing evidence of prior acts of discrimination to show knowledge and intent in an age discrimination case, but cautioning against a “significant increase in the time or complexity of the trial” if a “mini-trial” on the truth of the other allegations was necessary).

3 Becker v. ARCO Chemical Co., 207 F.3d at 188.
4 Id. at 189.
5 Id. at 195.
6 Id. at 191 (quoting United States v. Morley, 199 F.3d 129, 133 (3d Cir. 1999)).
7 Id. at 191.
8 Lewis v. Triborough Bridge and Tunnel Authority, 77 F.Supp.2d 376 (S.D.N.Y. 1999).
9 Lewis, 2001 WL 21256, at *2.
10 Id. at *3 (quoting United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994)).

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