George v. House of Hope Recovery et al

Filing 131

ORDER SUSTAINING IN PART PLAINTIFF'S OBJECTION TO DEFENDANTS' EXHIBIT 203. (Related document: Plaintiff's Objections to Defendants' Proposed Exhibits 119 .) Signed on 3/29/18 by Magistrate Judge Stacie F. Beckerman. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CONSTANCE GEORGE,
Plaintiff,
v.

Case No. 3:15-cv-01277-SB
ORDER SUSTAINING IN PART
PLAINTIFF’S OBJECTION TO
DEFENDANTS’ EXHIBIT 203

HOUSE OF HOPE RECOVERY and
PATRICIA BARCROFT,
Defendants.
BECKERMAN, Magistrate Judge.
Defendants House of Hope Recovery and Patricia Barcroft (“Defendants”) offer the
Oregon Bureau of Labor and Industries’ (“BOLI”) “No Substantial Evidence Determination”
report as a trial exhibit. (ECF No. 123, Att. 1.) Defendants confirmed at the pre-trial conference
that they seek to introduce as impeachment evidence only a statement in the report attributed to
Plaintiff Constance George (“George”). George objects to the exhibit on the basis of hearsay and
unfair prejudice. (ECF No. 119.)
The Court concludes that George’s statement in the BOLI report is inadmissible hearsay
and may not be admitted as evidence at trial to prove its truth. However, depending on George’s

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ORDER SUSTAINING IN PART PLAINTIFF’S OBJECTION TO
DEFENDANTS’ EXHIBIT 203

testimony at trial, her statement may be used for impeachment, subject to the limitations set forth
below.
A.

Hearsay within Hearsay

Plaintiff does not dispute the trustworthiness of the BOLI report, and it therefore qualifies
as a public record under Federal Rule of Evidence 803(8). See Chandler v. Roudebush, 425 U.S.
840, 863 n.39 (1976). However, the report recounts assertions made by George during George’s
initial interview, which are, themselves, potentially excludable hearsay. Specifically, Defendants
seek to introduce the following statement in the report attributed to George: “[C]omplainant
stated that she did not really believe [Defendants] discriminated against her because of her race.”
(ECF No. 123, Att. 1 at GEORGE 000102.)
There is no evidence in the record that George submitted to the BOLI interview under
penalty of perjury, so the statement in the report does not qualify as a prior statement by a
witness, even if Rule 801(d)(1)(A)’s other conditions are met at trial. Additionally, while the
report writer attributes the statement to George, George did not sign the report or otherwise adopt
it, so the statement does not qualify as one by a party opponent under Rule 801(d)(2)(A). See
U.S. v. Felix-Jerez, 667 F.2d 1297, 1299 (9th Cir. 1982). Defendants do not argue that the
statement qualifies for any other hearsay exception. (ECF No. 123.) Therefore, at this point in
the proceedings, George’s statement in the BOLI report is inadmissible hearsay.
B.

Impeachment

Defendants assert that they will use the statement only for impeachment purposes, and
not to prove the truth of its content, making it nonhearsay under Rule 801(c)(2). (ECF No. 123 at
2-3.) An otherwise inadmissible statement may be used for impeachment under appropriate
circumstances and with a limiting instruction admonishing the jury to consider it for

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ORDER SUSTAINING IN PART PLAINTIFF’S OBJECTION TO
DEFENDANTS’ EXHIBIT 203

impeachment only. See U.S. v. Tafollo-Cardenas, 897 F.2d 976, 980 (9th Cir. 1990). Whether
such an impeachment opportunity will arise will depend upon George’s testimony at trial.
Defendants contend that the statement at issue “directly conflicts with the entire basis for
the instant lawsuit.” (ECF No. 123 at 3.) That is an overstatement. First, according to the BOLI
report, George did identify an example of what she perceived to be a racially discriminatory
remark by Defendant Bancroft:
Complainant [George] based her allegations of race [discrimination] on a
comment made by Respondent Patricia Barcroft, Director of House of Hope
Recovery when Complainant was interviewed for housing. The comment itself is
disputed; Complainant’s version is that Respondent Barcroft asked her how she
felt about “white people.” . . .
Complainant admits that this is the only statement she felt was racially
discriminatory; . . . , during the Complainant[’s] initial interview, [C]omplainant
stated that she did not really believe Respondent discriminated against her
because of her race.
(ECF No. 123, Att. 1 at GEORGE 000101.) Second, because the BOLI report does not provide a
transcript of the interview, the full context of George’s statement is unknown. What is known is
that BOLI conducted this interview while investigating George’s discrimination complaint. (See
id. (“Complainant alleges that she was unlawfully discriminated against because: a. her race
being African American and B. her religion, being a Jehovah witness.”)) Even accepting the
accuracy of the statement, when taken out of its full context its probative value may be easily
outweighed by the risk of unfair prejudice. See Fed. R. Evid. 403. For these reasons, the Court
will not permit Defendants to use this statement to impeach George’s testimony generally.
If George testifies at trial and makes a statement that directly contradicts what she told
the BOLI report writer (i.e., if George volunteers on direct examination her subjective beliefs
about whether Ms. Barcroft discriminated against her based on race), then Defendants may use
George’s statement to the BOLI report writer to impeach that testimony. See Fed. R. Evid. 607;
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ORDER SUSTAINING IN PART PLAINTIFF’S OBJECTION TO
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see also U.S. v. Castillo, 181 F.3d 1129, 1132 (9th Cir. 1999) (explaining impeachment by
contradiction as distinct from Rule 608’s general prohibition against extrinsic evidence).
Defendants may not elicit such testimony from George for the first time on cross-examination for
the purpose of setting up the impeachment opportunity. See id. at 1133-34; U.S. v. KincaidChauncey, 556 F.3d 923, 932 (9th Cir. 2009).
C.

Unfair Prejudice

To avoid any confusion, this Court fully concurs with Judge Simon’s earlier ruling
excluding BOLI’s conclusion that there was no substantial evidence of racial discrimination.
(ECF No. 56.) As Judge Simon noted, “[t]he jury is less likely impartially to consider the
evidence and reach its own conclusions when it knows that an independent state agency has
already reviewed the evidence and decided the ultimate factual issues in this case.” (Id. at 3.)
Because of the potentially prejudicial nature of the report’s conclusion, any use of
individual statements within the report must be done with care. Therefore, if the Court allows
Defendants to use George’s statement for impeachment, they may do only subject to the
following limitations:
1. The report will not be published to the jury, and will not be admitted into evidence. It will
be marked as an impeachment exhibit, and may only be shown to the testifying witness
during the course of impeachment;
2. Under no circumstances may Defendants reveal the report’s conclusion to the jury. In
laying a foundation for any testimony related to this report, the jury may hear evidence
that BOLI conducted an investigation, that George participated in that investigation, and
that BOLI created a report of its findings, but no testimony regarding BOLI’s conclusion
will be permitted; and
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ORDER SUSTAINING IN PART PLAINTIFF’S OBJECTION TO
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3. If Defendants use the report’s excerpt for impeachment, the Court will give a limiting
instruction to inform the jury that they shall not consider the statement for its truth, if
George so requests.
IT IS SO ORDERED.
DATED this 29th day of March, 2018.

STACIE F. BECKERMAN
United States Magistrate Judge

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ORDER SUSTAINING IN PART PLAINTIFF’S OBJECTION TO
DEFENDANTS’ EXHIBIT 203