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, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION SYNETHIA L. WALKER, ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. THE HOUSING AUTHORITY FOR THE CITY OF MONTGOMERY, ALABAMA, Defendant. CIVIL ACTION NO. 2:13cv675-MHT (WO) ) ) ) ) ) ) ) ) ) ) ) ) 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

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