Reaves v. Pennsylvania State Police et al
Filing
81
MEMORANDUM & ORDER denying defendant's motion in limine 56 . (See memo & order for complete details.) Signed by Chief Judge Christopher C. Conner on 9/26/13. (ki) Modified on 9/26/2013 (ki).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TONY REAVES,
Plaintiff
v.
PENNSYLVANIA STATE POLICE
Defendant
:
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:
:
:
:
:
CIVIL ACTION NO. 1:09-CV-2549
(Chief Judge Conner)
MEMORANDUM
Presently before the court is defendant Pennsylvania State Police’s (“PSP”)
motion in limine to preclude impeachment of a witness based upon prior
statements made by the witness’ attorney (Doc. 56). For the reasons that follow, the
court will deny the motion.
I.
Background
This case arises out of PSP’s termination of plaintiff Tony Reaves (“Reaves”).
Reaves is an African-American. Reaves alleges that during his probationary period
with PSP and prior to his termination, he contacted the PSP Equal Employment
Opportunity (“EEO”) office and Lieutenant Shelton Sneed (“Lt. Sneed”) about his
perceived differential treatment. Sometime in September 2007, Reaves purportedly
sent a complaint letter to Lt. Sneed outlining a number of issues and concerns
regarding his perceived differential treatment. Reaves was officially terminated on
October 4, 2007.
Reaves filed the instant suit on December 28, 2009, alleging violations of Title
VII of the Civil Rights Act of 1964. (Doc. 1). PSP filed a motion for summary
judgment on February 28, 2011. (Doc. 19). Upon consideration of the Report and
Recommendation of Magistrate Judge Methvin (Doc. 39), the court granted PSP’s
motion for summary judgment on the Title VII discrimination claim. The court
denied the motion for summary judgment on the retaliation claim.1 In anticipation
of trial, PSP filed the instant Motion in Limine to preclude the use of statements
made by PSP’s attorney, Tara Patterson (“Attorney Patterson”), for impeachment
during the cross-examination of PSP’s witness, Martin L. Henry, III (“Henry”).
(Doc. 56). The documents that PSP seeks to preclude include answers to
interrogatories and a position statement submitted to the Equal Employment
Opportunity Commission (“EEOC”) (collectively, “the Evidence”).
PSP argues that the use of Attorney Patterson’s statements for impeachment
purposes is improper under Federal Rule of Evidence 613. Specifically, PSP argues
that because the statements of Attorney Patterson are not previous statements
made by the witness, they cannot be introduced pursuant to Rule 613. Reaves
argues that PSP’s submissions are relevant and admissible at trial to establish a
prima facie case, disputed facts, and pretext. Reaves also maintains that Rule 613
does not apply to party admissions such as those contained in the Evidence. The
motion is fully briefed and ripe for disposition.
1
The parties are currently briefing PSP’s motion (Doc. 74) for
reconsideration, which only concerns the causation element of the retaliation claim.
(See Doc. 75).
2
II.
Discussion
The parties’ dispute arises out of the fundamental misconception that Rule
613 may be used as a sword to prevent the use of certain evidence when it is
intended to be used as a shield to assist with the use of certain evidence.
Specifically, PSP argues that “Rule 613 does not permit impeachment [with
Attorney Patterson’s statements] . . . . [because] Rule 613 specifically requires that
the prior inconsistent statement be made by the witness currently under
examination, not the witness’ attorney.” (Doc. 57 at 4) (citing United States v.
Cuevas Pimentel, 815 F. Supp. 81, 84 (D. Conn. 1993)).
To the contrary, Rule 613 does not prohibit the impeachment of Henry with
Attorney Patterson’s statements, it just does not expressly permit it. Rule 613
allows an attorney to impeach a witness with the witness’s prior statement and sets
forth specific procedural requirements for that type of impeachment. PSP is
correct that Rule 613 does not contemplate that a statement made by a witness’s
attorney qualifies as the witness’s prior statement under the Rule.2 However, Rule
613 also does not directly prohibit the impeachment of a witness with admissible
2
Regardless, it is unclear as to whether Attorney Patterson may even be
considered Henry’s attorney. PSP characterizes Attorney Patterson as Henry’s
attorney, (Doc. 57 at 4), but Reaves states that PSP designated Henry to testify as a
fact witness and on behalf of PSP. (Doc. 58 at 5).
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extrinsic evidence that contradicts that witness’ testimony.3 Instead, this method of
impeachment is often referred to as impeachment by contradiction and is condoned
by other Rules of Evidence. See United States v. Gilmore, 553 F.3d 266, 271 (3d Cir.
2009) (“Rule 607 of the Federal Rules of Evidence authorizes impeachment by
contradiction, and Rule 403 governs its application.”).
In the case sub judice, the Evidence is admissible as substantive evidence and
for impeachment by contradiction, provided it is introduced under a witness with
the appropriate personal knowledge as to its contents. A plaintiff making a Title
VII retaliation claim must initially show that: (1) he engaged in a protected activity
under Title VII; (2) the employer took an adverse employment action against him;
and (3) there was a causal connection between his participation in the protected
activity and the adverse employment action. Moore v. City of Philadelphia, 461 F.3d
331, 341-42 (3d Cir. 2006). Whether Reaves engaged in a protected activity is central
3
Under common law, the use of extrinsic evidence for purposes of
impeachment was typically prohibited. U.S. v. McNeill, 887 F.2d 448, 453 (3d Cir.
1989) (“Extrinsic evidence is evidence offered through other witnesses rather than
through cross-examination of the witness himself or herself.”); Carter v. Hewitt, 617
F.2d 961, 969-70 (3d Cir. 1980) (“[I]f refutation of the witness’s denial [of the acts
charged] were permitted through extrinsic evidence, these collateral matters would
assume a prominence at trial out of proportion to their significance.”). However,
where the matter inquired into is non-collateral, extrinsic evidence may be used to
dispute the witness’s testimony. United States v. Hively, 547 F. Supp. 318, 320 (M.D.
Pa. 1982). A matter is non-collateral when it is relevant to the merits of the case.
See Hively, 547 F. Supp. at 320. The common law collateral fact rule is not directly
memorialized in the Federal Rules of Evidence. See KENNETH S. BROUN ET AL .,
MC CORMICK ON EVIDENCE § 49 (7th ed. 2013). Instead, the court must employ a
discretionary approach pursuant to Rule 403 to determine if the probative value of
the contradictory extrinsic evidence is substantially outweighed by the danger of
unfair prejudice. Morgan v. Covington Twp., 648 F.3d 172, 179 (3d Cir. 2011).
4
to establishing a prima facie case under Title VII. Attorney Patterson’s statements
are relevant as substantive evidence to establish that Reaves complained of
differential treatment, an activity protected by Title VII. Similarly, for purposes of
impeachment, Reaves can utilize the Evidence to contradict Henry’s testimony that
Reaves never filed a complaint regarding differential treatment. For both
impeachment purposes and as substantive evidence, the Evidence is highly
probative of and material to a central element of Reaves’ claim. It is not
substantially outweighed by the danger of unfair prejudice under Rule 403.
Moreover, the statements are not hearsay under Rule 801(d)(2) because they
are party admissions. Party admissions are statements made by the party against
whom the statements are offered or by a person speaking on behalf of that party.
See FED . R. EVID . 801 advisory committee’s note. Admissions by attorneys are
admissible as party admissions against their clients only when their statements
directly relate to the management of the litigation. Lightning Lube, Inc. v. Witco
Corp., 4 F.3d 1153 (3d Cir. 1993). The instant statements of Attorney Patterson
constitute party admissions of PSP related to Reaves’ case because she made them
in her role as an advocate for PSP. See Purgess v. Sharrock, 33 F.3d 134, 144 (2d
Cir. 1994) (deciding that counsel’s statement of fact in legal brief, subject to penalty
of sanctions, constituted party admission); Olitsky v. Spencer Gifts, Inc., 964 F.2d
1471, 1476-77 (5th Cir. 1992) (holding that a party’s position statement to the EEOC
was admissible as evidence); Palmer v. Nassan, Civ. A. No. 10-922, 2011WL 286127
(W.D. Pa. Jan. 26, 2011) (determining that the contents of e-mail from Defendant’s
5
attorney regarding subject of litigation constituted a party admission under Rule
801(d)(2)). Thus, the Evidence is potentially admissible both as substantive
evidence and for purposes of impeachment by contradiction.
III.
Conclusion
For the foregoing reasons, the court will deny the motion. An appropriate
order follows.
/S/ CHRISTOPHER C. CONNER
CHRISTOPHER C. CONNER
Chief Judge, Middle District of Pennsylvania
Dated:
September 26, 2013
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TONY REAVES,
Plaintiff
v.
PENNSYLVANIA STATE POLICE
Defendant
:
:
:
:
:
:
:
CIVIL ACTION NO. 1:09-CV-2549
(Chief Judge Conner)
ORDER
AND NOW, this 26th day of September, 2013, upon consideration of
Defendant’s motion in limine (Doc. 56), and for the reasons set forth in the
accompanying memorandum, it is hereby ORDERED that Defendant’s motion in
limine (Doc. 56) is DENIED.
/S/ CHRISTOPHER C. CONNER
CHRISTOPHER C. CONNER
Chief Judge, Middle District of Pennsylvania
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