Walker v. The Housing Authority for the City of Montgomery, Alabama

Filing 87

OPINION. Signed by Honorable Judge Myron H. Thompson on 2/25/15. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

SYNETHIA L. WALKER,

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Plaintiff,
v.
THE HOUSING AUTHORITY FOR
THE CITY OF MONTGOMERY,
ALABAMA,
Defendant.

CIVIL ACTION NO.
2:13cv675-MHT
(WO)

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JANET DeCRENY,
Plaintiff,
v.
THE HOUSING AUTHORITY FOR
THE CITY OF MONTGOMERY,
ALABAMA, and SHANELL
HARDWICK,
Defendants.

CIVIL ACTION NO.
2:13cv846-MHT

OPINION
The

court

questionnaire
Although

the

is

asked

(doc.

no.

court

did

whether
125)

not

let

the

should
it

in

EEOC
be

intake

let

earlier

in.
on

a

notice theory, plaintiffs now claim it should be let in
as a prior consistent statement to show that plaintiff
DeCreny

had

complained

about

color

discrimination

during her employment in contrast to defense counsel's
suggestions
Defendants

otherwise
maintain

during

that

cross-examination.

their

questioning

about

DeCreny’s complaint about discrimination based on color
was limited to complaints within DeCreny's notes/diary
(doc. no. 118) and that the EEOC intake questionnaire
is unrelated.

The court agrees with plaintiffs and

will let the intake questionnaire into evidence to show
prior consistent statements.

I.

Background

From January to April 2013, DeCreny kept written
entries in a word document (doc. no. 118) about events
"concerning" to her about her employment.

The document

includes 12 entries, which cover a range of topics.
these

entries,

defendant

DeCreny

Hardwick,

notes

including

2

her
that

conflicts
Hardwick

In
with
was

"aggressive, unpleasant, and overbearing."

Despite the

complaints about Hardwick, the document never discusses
color discrimination.
Defense

counsel

cross-examination.

brought

this

out

on

He asked about this document, and

DeCreny eventually admitted that the events on the list
were things of concern to her.
race did not appear once.

He then emphasized that

The key exchange is:

“Q.
Okay.
Have you looked at
[document] 118 to see whether the
mention
of
color,
race,
appears
anywhere in here?
“A.

No.

“Q. Do you have a feeling whether it
does or not?
“A.

No.

“Q.
In fact, it doesn't
anywhere in here, does it?
“A.
I
feeling.

just

said

I

don't

appear

have

a

“Q.
You don't know one way or the
other?
“A.
“Q.

No.
Okay.

See if you can find all
3

those words that you used yesterday?
“A.
No,
words.

I

don't

see

those

exact

“Q.
And would you tell the jury how
many
pages
that
single
spaced
memorandum is?
“A.
It's
entries.

a

number

of

different

“Q. No. Pages. Ma'am. Pages. I'm
sorry if I said entries, I apologize.
“A.

No, you didn't.

Eight, nine.

“Q.
Eight and a half.
Eight and a
half pages, [single spaced] not one
mention of any color harassment I'm
finished. Thank you.”
Plaintiffs now move to admit DeCreny’s EEOC intake
questionnaire as a prior consistent statement to rebut
this cross-examination.

II. Discussion
Under

Federal

Rule

of

Evidence

801(d)(1)(B),

a

statement is not hearsay where "the declarant testifies
and

is

subject

to

cross-examination

about

a

prior

statement, and the statement: is consistent with the

4

declarant's testimony and is offered (i) to rebut an
express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence
or motive in so testifying; or (ii) to rehabilitate the
declarant’s credibility as a witness when attacked on
another

ground."

"The

impeaching

attack

may

be

an

express charge, such as directly accusing the witness
of

lying,

bias,

or

improper

influence

or

motive.

Alternatively, impeachment may be in the form of an
implied charge, such as relying on underlying facts or
innuendo

to

demonstrate

the

recent

fabrication

or

improper influence or motive." 5 J. Weinstein and M.
Berger,

Weinstein's

Federal

Evidence

(2014).

The prior consistent statement has to be made

before there is a motive to fabricate.

§ 801.22[1][b]

Tome v. United

States, 513 U.S. 150, 158-59 (1995).
Here,
framed

although

around

defendants

were

defendants’

DeCreny's

cross-examination

notes

clearly

(doc.

implying

no.

that

was

118),
DeCreny

fabricated that there was color discrimination while

5

she

was

at

there.

the

Housing

Authority

after

she

worked

In particular, they drew out that there was not

one reference to color in an eight page single spaced
document
2013.

that

stretched

from

January

2013

to

April

The EEOC intake questionnaire (doc. no. 125), in

which DeCreny specifically notes color discrimination,
is dated on March 25, 2013.
period

as

the

notes/diary

This is within the same
that

DeCreny

kept.

It

refutes the idea that she made up color discrimination
after the fact, as implied in the cross-examination,
and thus fits within the exception.

Cf. Garcia v.

Watkins, 604 F.2d 1297, 1298 (10th Cir. 1979) (allowing
in

evidence

of

prior

consistent

statement

in

a

car

accident case when defendant implied it had never heard
of

plaintiff's

theory

until

the

lawsuit).

However, it is fair game for defendants to question
why

(i)

DeCreny

discrimination

in

included
the

these

EEOC

notes

complaint

about
but

not

color
her

notes/diary and (ii) why the first mention is a March
2013 EEOC report--over a month after Walker was fired

6

and after Walker's March email to the Housing Authority
board alleging color discrimination.
DONE, this 25th day of February, 2015.
/s/ Myron H. Thompson___
UNITED STATES DISTRICT JUDGE