Cartagena v. Service Source, Inc.

Filing 73

MEMORANDUM re: Order 72 granting plaintiff Cartagena's MILs 52 , 53 , 54 & 55 . (See memo for complete details.) Signed by Chief Judge Christopher C. Conner on 1/14/19. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PEDRO CARTAGENA,

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Plaintiff
v.
SERVICE SOURCE, INC.,
Defendant

CIVIL ACTION NO. 1:17-CV-742
(Chief Judge Conner)

MEMORANDUM
Plaintiff Pedro Cartagena (“Cartagena”) filed four pretrial motions (Docs. 5255) in limine seeking to exclude certain testimony and evidence at his upcoming
civil rights trial. Defendant Service Source, Inc. (“Service Source”), opposes each
motion.
I.

Factual Background & Procedural History
Service Source provides food and dining services to members of the United

States military at Fort Indiantown Gap in Annville, Pennsylvania. (Doc. 1 ¶ 13). In
2007, Service Source hired Cartagena to work in the dining hall and to provide
“cleaning and organizational services.” (Id. ¶¶ 12-14). In accordance with federal
law and contract obligations, Service Source primarily employs adults with mental
health-related disabilities. (Id. ¶ 18).
Various individuals purportedly supervised Cartagena and the dining hall
generally, including operations managers and “lower level supervisors.” (Id. ¶¶ 1617). Multiple female coworkers allegedly sexually harassed Cartagena by groping
and improperly touching him and by sending sexually charged text messages and

nude images to his cell phone. (Id. ¶ 19(a)-(b)). This harassing behavior apparently
lasted for a period of several years prior to the filing of the instant action. (Id. ¶ 19).
Cartagena claims that his frequent complaints of sexual harassment were either
insufficiently addressed by management at all levels or ignored completely. (Id.
¶¶ 19(c), 20-22).
Cartagena filed a dual charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations
Commission (“PHRC”). (Id. ¶ 5; see also Doc. 55 at 5-6). After receiving a right-tosue letter, (Doc. 1 ¶ 5), Cartagena commenced this litigation. His complaint raises
four counts against Service Source for creation of a hostile work environment
through sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2 and the Pennsylvania Human Relations Act, 43 PA. STAT. AND
CONS. STAT. ANN. §§ 951-963 (Counts I and II, respectively); negligent supervision
(Count III); and intentional and negligent infliction of emotional distress (Count IV).
Trial is scheduled for February 2019. Cartagena moves in limine to exclude at trial
certain evidence and testimony under the Federal Rules of Evidence. The motions
are fully briefed and ripe for disposition.
II.

Discussion
Cartagena filed four motions in limine in advance of his upcoming civil

rights trial. He seeks to prevent Service Source from introducing evidence or
testimony relating to: (1) his employment disciplinary record; (2) his criminal
history; (3) his history of drug and alcohol use; and (4) any investigations and

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outcomes of his administrative complaints that preceded this civil action. We
will address Cartagena’s motions seriatim.
A.

Employment Disciplinary Record

Cartagena first moves to exclude evidence or testimony pertaining to any
complaints or disciplinary action taken against him during the course of his
employment with Service Source as impermissible character evidence. (Doc. 52).
Service Source argues that this evidence is admissible for the non-propensity
purpose of negating its discriminatory intent. (Doc. 57 at 2-3).
Federal Rule of Evidence 404(b) provides that “[e]vidence of a crime, wrong,
or other act is not admissible to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with the character.” FED. R.
EVID. 404(b)(1). An exception to this rule provides that such evidence “may be
admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
FED. R. EVID. 404(b)(2). Rule 404(b) applies to criminal and civil cases alike. Ansell
v. Green Acres Contracting Co., 347 F.3d 515, 520 (3d Cir. 2003) (citing FED. R. EVID.
404 advisory committee’s note).
“Rule 404(b) is a rule of general exclusion,” precluding other-act evidence
unless the proponent can show a proper purpose other than propensity. United
States v. Repak, 852 F.3d 230, 240 (3d Cir. 2017) (quoting United States v. Caldwell,
760 F.3d 267, 276 (3d Cir. 2014)). Rule 404(b) carries “no presumption of
admissibility,” and thus the proponent of other-act evidence bears the burden of

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demonstrating its applicability. Caldwell, 760 F.3d at 276 (internal quotation marks
and citation omitted).
Admission of other-act evidence under Rule 404(b) requires satisfaction of
four distinct steps. Id. First, the proponent of the other-act evidence must identify
a proper, non-propensity purpose that is “at issue” in, or relevant to, the case at
hand. Id. Second, after identifying a proper non-propensity purpose that is “at
issue,” the proponent must carefully articulate how the other-act evidence is
relevant to proving that purpose without relying on propensity. Id. This step
requires the proponent to set forth a “chain of inferences” that connects the otheract evidence to the proper purpose, “no link of which is a forbidden propensity
inference.” Id. at 277 (quoting United States v. Davis, 726 F.3d 434, 442 (3d Cir.
2013)). Third, the court must perform a Rule 403 balancing analysis to ensure that
the probative value of the other-act evidence is not substantially outweighed by its
“inherently prejudicial nature[.]” Id. at 277 (citation omitted). Finally, if requested,
the court must provide a proper limiting instruction. Id. (citations omitted). This
process demands “careful precision” from both the proponent of the other-act
evidence and the trial judge determining its admissibility. United States v. Brown,
765 F.3d 278, 291 (3d Cir. 2014) (citing Caldwell, 760 F.3d at 274).
Cartagena alleges that Service Source failed to address sexual harassment
from female coworkers resulting in a hostile work environment. (Doc. 1 ¶¶ 19, 25,
28; see also Doc. 61 at 2). To prevail on a hostile work environment claim against
his employer, Cartagena must prove that (1) he suffered intentional discrimination
on the basis of sex, (2) the discrimination was severe or pervasive, (3) he was
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detrimentally affected by the discrimination, (4) such discrimination would
detrimentally affect a reasonable person in similar circumstances, and (5) the
existence of respondeat superior liability. Mandel v. M & Q Packaging Corp., 706
F.3d 157, 167 (3d Cir. 2013) (citation omitted). An employer may be held directly
liable for sexual harassment perpetrated by the victim’s non-supervisory coworker
“only if the employer failed to provide a reasonable avenue for complaint or,
alternatively, if the employer knew or should have known of the harassment and
failed to take prompt and appropriate remedial action.” Huston v. Procter &
Gamble Paper Prods. Corp., 568 F.3d 100, 104-05 (3d Cir. 2009); see also Vance v.
Ball State Univ., 570 U.S. 421, 427 & n.1 (2013). When the harassing employee is the
plaintiff’s supervisor, the plaintiff must establish the employer’s vicarious liability.
Vance, 570 U.S. at 427; Huston, 568 F.3d at 104.
Service Source proffers evidence of Cartagena’s disciplinary history to prove
the absence of discriminatory intent. (Doc. 57 at 3). Intent is a non-propensity
purpose for character evidence. FED. R. EVID. 404(b)(2). However, Service Source’s
intent is not at issue in this case. Hostile work environment claims focus on the
discriminatory intent of the offending supervisor or coworker—the employer is not
presumed to have been the genesis of the discrimination. Rather, the fifth element
of a hostile work environment claim turns on the reasonableness of the employer’s
preventative and corrective measures to address the harassment. See Vance, 570

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U.S. at 427; Huston, 568 F.3d at 104. Cartagena’s negligent supervision claim
likewise does not implicate matters of discriminatory intent.1
Service Source also fails at step two. The second step in the Rule 404(b)
process is crucial. Caldwell, 760 F.3d at 276. The proponent must do more than
merely “pigeonhole” the evidence into one of the categories permitted by Rule
404(b)(2); the proponent must demonstrate that the other-act evidence actually
“prove[s] something other than propensity.” Id. (alteration in original) (citation
omitted). Thus, “[i]n proffering such evidence, the [proponent] must explain how it
fits into a chain of inferences—a chain that connects the evidence to a proper
purpose,” free of any propensity inference. Davis, 726 F.3d at 442 (citing United
States v. Sampson, 980 F.2d 883, 887 (3d Cir. 1992)).
Assuming arguendo that intent as hereinabove described is at issue, the
proffered disciplinary records reveal no connection to the sexual harassment
allegations. Service Source attached three documents to its brief in opposition, to
wit: an annual evaluation dated January 22, 2016; an employee counseling form
dated December 20, 2014; and an annual evaluation dated July 31, 2008. (Doc. 57-1).
Together, these documents suggest that Cartagena struggled with tardiness and
unexcused absences as well as managing frustration and engaging in occasional
teasing. (Id. at 4, 7-8, 10). Absent entirely from these documents is any information
relevant to the sexual harassment undergirding Cartagena’s hostile work

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Service Source cabins the scope of the proffered character evidence to
Counts I through III of the complaint. (See Doc. 57 at 3).
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environment and negligent supervision claims or Service Source’s efforts to address
said harassment. (See id.) On this record, the court is compelled to conclude that
Cartagena’s employment disciplinary record is being offered for an impermissible
propensity purpose. Because Service Source fails at steps one and two, we need
not engage in Rule 403 balancing. However, Service Source is not precluded from
introducing evidence or testimony regarding the general policies and procedures
governing the management and discipline of its employees.
B.

Criminal History

Cartagena moves pursuant to Federal Rule of Evidence 609 to exclude
testimony and evidence of his 2003 arrest and conviction for impersonating a police
officer. (Doc. 53). Service Source represents that this evidence would be proffered
in the limited context of testimony by its expert, Barbara Long, M.D., Ph.D. (“Dr.
Long”). (Doc. 59 at 3). According to Service Source, Dr. Long relied upon
Cartagena’s 2003 conviction in drafting her psychiatric evaluation expert report.
(Id.) Dr. Long only referenced the conviction when briefly summarizing
Cartagena’s “legal history,” noting that he received mandatory mental health
treatment in connection with his conviction for impersonating a police officer.2
(Doc. 59-1 at 6).

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Dr. Long also notes in her report that Cartagena was convicted of
transporting cocaine into the United States from Guatemala. (See Doc. 59-1 at 6).
Service Source fails to explain how this conviction relates to Dr. Long’s expert
opinion appertaining Cartagena’s mental illness and hallucinations and does not
seek to admit this conviction for impeachment purposes. (See Doc. 59).
Accordingly, Service Source may not introduce any evidence or testimony of this
supposed narcotics conviction.
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In rendering an expert opinion, the expert may rely on “facts or data in the
case that the expert has been made aware of or personally observed.” FED. R. EVID.
703. The facts or data underlying the opinion need not be independently admissible
so long as experts in the particular field “would reasonably rely on those kinds of
facts or data in forming an opinion on the subject.” FED. R. EVID. 703. The party
proffering the expert opinion may only disclose to the jury the otherwise
inadmissible facts or data underlying the opinion if “their probative value in
helping the jury evaluate the opinion substantially outweighs their prejudicial
effect.” FED. R. EVID. 703.
As a threshold matter, neither party identifies an independent admissible
purpose for the evidence of Cartagena’s 2003 conviction. The evidence, on its face,
appears to contravene Rule 404’s prohibition against introducing evidence of a
crime or other act to prove a person’s character and that the person acted in
conformity therewith on a particular occasion. See FED. R. EVID. 404(b)(1). And
Rule 609 generally prohibits introduction of this evidence for impeachment
purposes as the conviction is more than 10 years old. See FED. R. EVID. 609(b).
Introduction of this evidence is likely to prejudice the jury against Cartagena
because he was convicted of impersonating a police officer. The conviction’s
probative value is substantially diminished by the fact that it occurred 15 years ago,
long before the alleged sexual harassment in this case occurred. Moreover, there is
no indication that Dr. Long specifically relied on the circumstances of this
conviction in formulating her opinion that Cartagena suffers from “the presence of
recurrent depressive episodes with psychotic features (delusions, possible auditory
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hallucinations) that happen only during these episodes.” (Doc. 59-1 at 13). Dr. Long
notes that she relied on “the psychiatric evaluation and testing,” but does not clarify
whether she is referencing the 2004 psychiatric evaluation,3 the March 1, 2018
expert report produced by Dr. Pogos H. Voskanian, or the psychiatric evaluation
Dr. Long conducted in creating her expert report. (See id. at 8-10, 13; Doc. 65 at 2).
For all of these reasons, we cannot conclude that the probative value of
Cartagena’s 2003 conviction substantially outweighs its prejudicial effect. Dr. Long
is prohibited from testifying about the 2003 conviction if she did not rely on it in
reaching her expert opinion. To the extent Dr. Long did consider Cartagena’s 2003
hallucination episode, she may not testify as to the nature and circumstances of the
conviction but may note that she relied on medical records indicating Cartagena
suffered from hallucinations as early as 2003.
C.

History of Drug or Alcohol Use

Cartagena moves to exclude any evidence or testimony regarding drug or
alcohol use throughout his life as impermissible character evidence under Federal
Rule of Evidence 404. (See Doc. 54). Service Source clarifies that it only seeks to
introduce this evidence for impeachment purposes and to assess damages for
Cartagena’s emotional distress claim. (See Doc. 58).
The Federal Rules of Evidence generally prohibit the introduction of
evidence of a person’s character or character trait to prove the person acted in

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A 2004 psychiatric evaluation indicates that Cartagena was acting on a
hallucination when he committed the crime in connection with his mental illness.
(Doc. 65 at 2).
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conformity therewith on a particular occasion. FED. R. EVID. 404(a)(1). However,
evidence of a witness’s character may be admitted to impeach that witness’s
credibility. FED. R. EVID. 404(a)(3) (citing FED. R. EVID. 607-09). When proffered
impeachment evidence would ordinarily be barred under Rule 404(a), the district
court “must weigh the probative value of . . . impeachment evidence against its
potential prejudicial impact.” United States v. Pantone, 609 F.2d 675, 681 (3d Cir.
1979); cf. United States v. Greenidge, 495 F.3d 85, 99 (3d Cir. 2007).
Service Source asserts that Cartagena’s current use of prescription drugs to
treat his mental illness and physical pain, combined with his purported past abuse
of drugs and alcohol, “can be counterproductive and may affect his ability to
perceive and recall the event[s] he claims involve[d] sexual harassment.” (Doc. 58
at 3). In support of this position, Service Source claims that Dr. Long “explain[s]
that given his use of substances, [Cartagena’s] memory and mental capacity may be
at issue.” (Id.) But Dr. Long’s expert report is devoid of any indication that
Cartagena’s memory is impaired by substance abuse.
The report details that Cartagena used cocaine and abused alcohol when he
was in his twenties but that he has not struggled with substance abuse since then.
(Id. at 6, 13). In June 2017, a female coworker purportedly sat on Cartagena’s lap
causing injury to his arthritic knee.4 (Id. at 2). Cartagena’s doctor prescribes him

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Cartagena’s complaint filed April 26, 2017, indicates that the alleged sexual
harassment occurred over a period of years and ended in 2016. (Doc. 1 ¶ 19). It is
unclear whether this incident occurred in June 2016 or after the filing of the
complaint. For purposes of this opinion, we will assume the incident occurred in
June 2017.
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nonsteroidal anti-inflammatory drugs and oxycodone for pain arising from this
knee injury which he takes daily. (Id. at 6, 13). Dr. Long opines that Cartagena
“may currently have a substance dependency or addiction to oxycodone” which
“may complicate his psychiatric picture.” (Id. at 14 (emphasis added)). However,
Dr. Long at no point states that this potential dependency impacts his memory. Per
contra, following a two-day psychiatric interview and mental status examination,
Dr. Long described Cartagena’s presentation as follows:
Speech was logical and goal-directed without looseness of
associations, flight of ideas, thought blocking, or other
problems of thought flow. Thought content was
responsive to questions without evidence of delusions or
elevated suicide drive.
Concentration throughout the testing and interview was
unimpaired. Serial three subtraction was completed
without error. Short-term, immediate, and long-term
memory was good.
(Id. at 11) (emphasis added). The report provides no basis to infer that Cartagena’s
drug or alcohol use has affected his memory or tendency to testify truthfully in this
case.
We cannot conclude at this juncture that Cartagena’s history of drug and
alcohol use is probative of his truthfulness or untruthfulness for impeachment
purposes. Admitting testimony or evidence of a decades old cocaine and alcohol
habit and the more recent, lawful prescription drug use poses a high risk of unfairly
prejudicing the jury against Cartagena. At present, Service Source’s assertion that
Cartagena’s “use of substances” may impact his memory is mere speculation.
Cartagena may be cross-examined about his memory or truthfulness as any other

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witness, but without additional evidence of probative value, Service Source may not
reference his history of drug and alcohol use for impeachment purposes.
Service Source also argues that Cartagena’s drug and alcohol use is relevant
to whether he suffered emotional distress from the alleged sexual harassment.
Service Source fails to specify exactly how such evidence bears on Cartagena’s
emotional distress claim. (See Doc. 58 at 4). Cartagena supposedly represented to
Dr. Long that “he did not know if he had been emotionally damaged by the alleged
conduct of [his female coworkers].” (Doc. 58-1 at 2). Dr. Long stated that
Cartagena’s treating physician notes “cover the interval of the alleged sexual
harassment and reveal no complaints of any anxiety or other emotional distress due
to alleged sexual harassment.” (Id. at 7). Service Source is free to seek admission
of such evidence pursuant to the Federal Rules of Evidence. However, Service
Source has not explained why Cartagena’s use of oxycodone since June 2017 is
probative of whether he suffered emotional distress from the alleged sexual
harassment he suffered “[f]or a period of several years through 2016.” (Doc. 1 ¶ 19
(emphasis omitted); see also Doc. 58 at 3). We will grant Cartagena’s motion in
limine to exclude testimony and evidence of his drug and alcohol use without
prejudice to Service Source’s right to raise the issue at trial subject to a more
persuasive demonstration of relevance.
D.

Administrative Complaints and Investigations

Cartagena moves to exclude presentation to the jury of “any investigations,
findings, decisions, [or] terminations” by the EEOC and PHRC related to

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Cartagena’s claims.5 (Doc. 55 at 6). The decision of whether an EEOC
administrative record or determination is admissible is “within the sound discretion
of the trial court.” See Coleman v. Home Depot, Inc., 306 F.3d 1333, 1345 (3d Cir.
2002). The district court should determine if such evidence is more probative than
prejudicial pursuant to Federal Rule of Evidence 403 based on “the proof value of
the particular report as and when offered at trial.” Id.; see also Walton v. Eaton
Corp., 563 F.2d 66, 75 & n.12 (3d Cir. 1977). Courts within the Third Circuit
regularly exclude investigative and evaluative EEOC and PHRC findings. Waters v.
Pa. Human Relations Comm’n, No. 1:13-CV-2652, 2017 WL 24670, at *3 (M.D. Pa.
Jan. 3, 2017) (collecting cases).
Service Source expressly states that it neither intends to introduce the
underlying facts of the EEOC or PHRC’s analysis nor evidence of the termination of
both investigations by the respective agencies. (Doc. 60 at 3). Rather, Service
Source represents that it only intends to “reference the facts on which [Cartagena]
based his original EEOC and PHRC complaint(s)” to highlight discrepancies
between those facts and the sexual harassment allegations underlying the instant
civil suit. (Id.) Cartagena raises no objection to the introduction of such evidence.
We will grant Cartagena’s motion to exclude any evidence or testimony pertaining
to the EEOC and PHRC’s investigative or evaluative findings related to his claims.

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Cartagena purports to attach the EEOC’s right-to-sue letter to his motion in
limine. (Doc. 55 at 6). However, no such letter was ever filed on the docket.
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However, Service Source may introduce evidence of the facts underlying
Cartagena’s administrative complaints subject to the Federal Rules of Evidence.
III.

Conclusion
The court will grant Cartagena’s motions (Docs. 52-55) in limine. An

appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:

January 14, 2019