Bland v. Fairfax County Virginia

Filing 97

MEMORANDUM OPINION re: 44 Defendant's Motion in Limine (see order). Signed by District Judge James C. Cacheris on 6/20/2011. (jall)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

MARY GETTS BLAND,

)
)
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Plaintiff,
v.
FAIRFAX COUNTY, VIRGINIA,
Defendant.

1:10cv1030 (JCC/JFA)

M E M O R A N D U M

O P I N I O N

This matter is before the Court on Defendant Fairfax
County, Virginia’s (the “Defendant” or the “County”), Motion in
Limine.

[Dkt. 44.]

For the following reasons, the Court will

grant in part and deny in part Defendant’s Motion in Limine.
I.

Background

This case arises out of alleged incidents of sexual
harassment by a male firefighter in the Fairfax County Fire and
Rescue Department (the “Department”) against a female
firefighter.

Plaintiff Mary Getts Bland (“Plaintiff” or

“Bland”) alleges that by allowing Lieutenant Timothy Young
(“Young”) to harass her, the County violated Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e to e17.
In advance of the jury trial that began on May 23,
2011, Defendant filed a Motion in Limine to exclude certain
testimony and exhibits.

(Memorandum in Support [Dkt. 46]
1

(“Mem.”) at 1.)

Plaintiff opposed on May 18, 2011, [Dkt. 57],

and Defendant replied in support on May 19, 2011, [Dkt. 65].
Defendant’s Motion is before the Court.
II.

Standard of Review

All relevant evidence is admissible unless there are
constitutional, statutory, and rule-based exceptions preventing
its admission.

Fed. R. Evid. 402.

Rule 401 of the Federal

Rules of Evidence defines “relevant” evidence as “evidence
having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.”
Evid. 401.

Fed. R.

A district court’s rulings on the admissibility of

evidence are reviewed for abuse of discretion.

See United

States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006).
III.

Analysis

The County objects to the introduction of evidence in
this case regarding unrelated incidents of alleged sexual
harassment that were not perceived or known by Plaintiff and
that occurred outside of Plaintiff’s work location.
1.)

(Mem. at

Specifically, the County argues that Plaintiff “should be

precluded from introducing the evidence . . . because it is
hearsay; it is irrelevant to any issue in this case; it is not
probative and is prejudicial; and it is likely to confuse the

2

issues and mislead the jury, and be a waste of time.”

(Mem. at

8.)
A.

The County’s Overarching Objection

Defendant makes an overarching argument that “events
and incidents that occurred after Young’s conduct directed at
Bland had ceased, or that occurred away from Bland’s work
location, or that occurred without her knowledge or awareness,
are not admissible as evidence of Bland’s perception that her
work environment was hostile.”

(Mem. at 7 (emphasis added).)

To establish a claim against an employer under Title
VII for creating a hostile work environment because of sexual
harassment, “a plaintiff must show ‘that the offending conduct
(1) was unwelcome, (2) was based on her sex, (3) was
sufficiently severe or pervasive to alter the conditions of her
employment and create an abusive work environment, and (4) was
imputable to her employer.’”

Ziskie v. Mineta, 547 F.3d 220,

224 (4th Cir. 2008) (citing Ocheltree v. Scollon Prod., Inc.,
335 F.3d 325, 331 (4th Cir. 2003)).
As to the third element, “whether the conduct was
‘severe or pervasive’ enough to create an abusive work
environment[,] [t]here are ‘both subjective and objective
components’ to this element.”
Ocheltree, 335 F.3d at 333).

Ziskie, 547 F.3d at 227 (quoting
Thus, “[t]he environment must be

perceived by the victim as hostile or abusive,” the subjective

3

portion, “and that perception must be reasonable[,]” the
objective portion of the test.

Id. (citing Harris v. Forklift

Sys., Inc., 510 U.S. 17, 22 (1993)).

“The objective severity of

harassment should be judged from the perspective of a reasonable
person in the plaintiff’s position, considering all the
circumstances.”

Id. (citing Oncale v. Sundowner Offshore

Servs., Inc., 523 U.S. 75, 81 (1998)).
Whether harassment is severe or pervasive
discrimination “depends on a constellation of surrounding
circumstances, expectations, and relationships.”

Jennings v.

Univ. of N. Carolina, 482 F.3d 686, 696 (4th Cir. 2007) (citing
Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 651 (1999)).
“All the circumstances are examined.”
U.S. at 650-51).

Id. (citing Davis, 526

Significantly, “[e]vidence of a general

atmosphere of hostility toward those of the plaintiff’s gender
is considered in the examination of all the circumstances.”

Id.

(citing Harris, 510 U.S. at 19).
Defendant argues that “Bland cannot rely on incidents
and events that she did not witness and that she was not aware
had occurred to establish that Young’s conduct was sufficiently
severe or pervasive.”

(Mem. at 6.)

The Court disagrees.

Whether the alleged harassment is severe or pervasive
discrimination has both subjective and objective components.
Ziskie, 547 F.3d at 227.

The plaintiff’s perception must be

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reasonable, and “[t]he objective severity of harassment should
be judged from the perspective of a reasonable person in the
plaintiff’s position, considering all the circumstances.”

Id.

Thus, evidence of incidents and events illustrating a general
atmosphere of hostility has a tendency to make the existence of
a severe or pervasive environment, from an objective
perspective, more probable or less probable than it would be
without the evidence.

Fed. R. Evid. 401.

Indeed, as the Fourth

Circuit has stated, “[e]ven if [the plaintiff] did not witness
the conduct . . . it is nonetheless relevant because it could
contribute to the evidence offered to show that the workplace
environment . . . was indeed a hostile one.”
at 225.

Ziskie, 547 F.3d

“Evidence that . . . [the plaintiff’s] co-workers

experienced treatment similar to that claimed by [the plaintiff]
could lend credence to [the plaintiff’s] claims about her own
treatment, show that the harassment she alleges was indeed
pervasive, or support a finding that she was treated badly by
co-workers because of her gender, and not some other reason.”
Id. at 225-26.

The Ziskie court stated that “conduct

experienced by the plaintiff may well be more probative of a
hostile workplace than is conduct the plaintiff did not herself
witness.

But that goes to the weight evidence should be given,

not its relevance or admissibility.”
added).

547 F.3d at 225 (emphasis

Accordingly, evidence that Plaintiff’s co-workers

5

experienced treatment similar to that alleged by Plaintiff is
relevant and admissible as to the objective portion of the
severe or pervasive element, unless there is another exception
barring its admission.
Defendant cites Pueschel v. Peters, 577 F.3d 558 (4th
Cir. 2009), in support of its argument that the Court may not
admit evidence of incidents Bland did not witness and that
occurred after Young’s conduct ceased.
materially different situation.

Pueschel address a

In that case, the plaintiff was

placed by her employer on leave without pay in 1994 and remained
on leave until she was terminated in 1999.

Id. at 561.

The

incidents that the plaintiff alleged created a hostile work
environment occurred in 1997 and 1998, while she was on leave.
Id. at 565.

Thus, the Fourth Circuit held that the plaintiff

could not prevail because the abusive work environment, based
upon her allegations, did not exist until three years after she
left the workplace.

577 F.3d at 565-66.

In this case, Bland

was an employee of the County, reporting to work and at the
workplace during the period of time in which the allegedly
abusive work environment existed.

Thus, Pueschel does not alter

the Court’s reasoning above.
Defendant also cites King v. McMillan, 594 F.3d 301
(4th Cir. 2010), in support.

There, the district court, in

conducting a Federal Rule of Evidence 403 analysis, concluded

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that the probative value of the testimony concerning conduct
that plaintiff was unaware of was not substantially outweighed
by the danger of unfair prejudice and admitted it.
F.3d at 511.

King, 594

The court further concluded that it could avoid

any unfair prejudice by only admitting testimony of harassment
that occurred during “‘the same timeframe’ of [plaintiff’s]
employment.”

Id.

The Fourth Circuit affirmed the trial court

on this instruction because “Rule 403 judgments are preeminently
the province of the trial courts.”
quotation marks omitted).

Id. (internal citations and

Defendant, in its reply, argues that

King therefore limited admissible evidence to the “same time
frame” as the “alleged harassment.”

(Reply [Dkt. 65] at 2.)

That is incorrect; King states that “[t]he court further
concluded that it could avoid unfair prejudice by only admitting
testimony of harassment that occurred during ‘the same
timeframe’ of King’s employment.”
added).

594 F.3d at 511 (emphasis

Thus, King does not limit admissible evidence to the

timeframe of the alleged harassment, but to the time of the
employment.1

1

Defendant also cites Mems v. City of St. Paul, Department of Fire and Safety
Services, 327 F.3d 771 (8th Cir. 2003), for support. In that case, the
Eighth Circuit approved of a jury instruction stating that “[a] Plaintiff may
only rely on evidence relating to discrimination that he was aware of during
the time that he was allegedly subjected to a hostile work environment. A
Plaintiff cannot subjectively perceive behavior towards others as creating a
hostile work environment unless he knew about the behavior.” Id. at 783
(emphasis added). The instructions address the plaintiff’s subjective
perception. To the extent the Eighth Circuit would have approved the same
instruction as to the objective element of the severe or pervasive inquiry,
the Court declines to follow it for the reasons set forth above.

7

B.

Character Evidence

Defendant, in its reply, argues that “Bland’s claim
that the County is seeking to exclude evidence of ‘Young’s
penchant for sexually objectifying women,’ clearly demonstrates
Bland’s intent to offer the evidence to disparage Young’s
character.”

(Reply at 2.)

Rule 404 of the Federal Rules of Evidence governs
whether and when character evidence is admissible.

“Evidence of

a person’s character or a trait of character is not admissible
for the purpose of proving action in conformity therewith on a
particular occasion.”

Fed. R. Evid. 404(a); see also Securities

and Exchange Comm’n v. Drescher, No. 99civ1418, 2001 WL 1602978,
at *2 (S.D.N.Y. Dec. 13, 2001) (“[A]s a general matter, character
evidence in civil cases is inadmissible.”); see also King, 594
F.3d at 511 (“Further, the court reduced the risk of confusion by
instructing the jury that the testimony was not character
evidence.”).

Rule 404(b), however, provides that “[e]vidence of

other . . . wrongs[] or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith[, but] [i]t may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.”

Rule 404(b) applies to civil cases.

See Huddleston

v. United States, 485 U.S. 681, 685 (1988) (stating that “Federal

8

Rule of Evidence 404(b) . . . applies in both civil and criminal
cases”).

The upshot of these rules is that a person’s character

or a trait of character, including evidence of other acts, is not
admissible for the purpose of proving action in conformity
therewith on a particular occasion.

It is, though, admissible

for other purposes.
The threshold requirements for admitting evidence
under Rule 404(b) are (1) whether the evidence is relevant to an
issue other than character and (2) whether the probative value of
the evidence is substantially outweighed by its prejudicial
effect.

Parks v. Wilson, 68 F.3d 461 (Table), 1995 WL 610341, at

*2 (4th Cir. 1995) (citing Morgan v. Foretich, 846 F.2d 941, 944
(4th Cir. 1988)).

A trial court’s rulings under Rule 404(b) are

in its discretion unless the rulings are an “arbitrary,
irrational exercise of discretion.”

Id. (citing Garraghty v.

Jordan, 830 F.2d 1295, 1298 (4th Cir. 1987)).

A district court’s

decision not to admit Rule 404(b) evidence will only be reversed
for an abuse of discretion.

Id.

Thus, with respect to evidence of “Young’s penchant
for sexually objectifying women,” that evidence will be
inadmissible for the purpose of proving action in conformity
therewith.

That is, evidence that Young harassed Jane Doe is

inadmissible to prove that Young harassed Bland.

It may be

admissible for other purposes, however, including, under Ziskie,

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547 F.3d at 225, to show that the workplace environment was
indeed an objectively hostile one.
C.

The Lynchburg Incident

Bland intends to present evidence that Young harassed
Stacey Williams at a firefighters’ convention sometime in 2004
or 2006 in Lynchburg, Virginia.

(Opp. at 3; Mem. at 9.)

Williams is expected to testify about statements that Young made
to her that she felt were inappropriate and that she reported to
Mohler, and Bland is expected to call Mohler to testify to
Williams’s reporting to him.

(Opp. at 3; Mem. at 9.)

The County first argues that Mohler’s testimony
regarding Williams’s statements to him “does not meet the
requirement of [Federal Rule of Evidence] 801(d)(2) and is
therefore inadmissible hearsay.”

(Mem. at 9.)

Federal Rule of Evidence 801(d)(2) provides that “[a]
statement is not hearsay if . . . [t]he statement is offered
against a party and is . . . a statement by the party’s agent or
servant concerning a matter within the scope of the agency or
employment, made during the existence of the relationship.”
Defendant’s argument, however, assumes the statement is hearsay.
“‘Hearsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.”
Evid. 801(c).

Fed. R.

Thus, an essential element of whether a statement

10

is hearsay at all is determining for what purpose(s) the
statement is offered.

If not offered for the truth of the

matter it asserts, it is not hearsay.

Significantly, “‘evidence

is not hearsay when it is used only to prove that a prior
statement was made and not to prove the truth of the
statement.’”

United States v. Ayala, 601 F.3d 256, 272 (4th

Cir. 2010) (quoting Anderson v. United States, 417 U.S. 211, 220
n.8 (1974)).

Thus, a statement is not hearsay when the

statement is offered to show that the County was on notice of
the statement.

See Green v. Adm'rs of the Tulane Educ. Fund,

284 F.3d 642, 660 (5th Cir. 2002) (holding that testimony as to
three other complaints of sexual harassment was not hearsay
because it was offered to prove that the employer was on notice
of the complaint rather than for the truth of the matter
asserted), abrogation on other grounds recognized by McCoy v.
City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007); see also
Southerland v. Sycamore Cmty Sch. Dist. Bd. of Educ., 125 F.
App'x 14, 22 (6th Cir. 2004) (holding that rumor testimony and
notes were admissible as non-hearsay because they were not
offered to prove the truth of the matters they asserted, but
instead were used to show that government officials had
knowledge of the problem); Dixon v. Int’l Fed’n of Accountants,
No. 09cv2839, 2010 WL 1424007, at *2 n.4, (S.D.N.Y. Apr. 9,
2010) (holding that evidence of complaints by other employees

11

against the plaintiff was non-hearsay because it was not offered
for the truth of the matter asserted--that the plaintiff
actually did the things complained of--but offered to show that
plaintiff’s employer was on notice of the complaints).

A

statement is also not hearsay if it is offered to prove
knowledge or show the effect on the listener or listeners’ state
of mind.
1988).

United States v. Safari, 849 F.2d 891, 894 (4th Cir.

Thus, when used to show notice, knowledge, or effect on

the listener, Mohler’s statement is not hearsay and,
accordingly, the Court will not bar it on that basis.

It may,

however, be barred for other reasons.
Defendant next argues that the fact that Williams was
not a County employee and that the alleged conduct occurred when
Mohler and Williams were not at work means that the statement
cannot be imputable to the County.

(Mem. at 10.)

The County

also argues that the Williams statement is inadmissible because
Bland was not aware of the event, and thus it has no probative
value and is prejudicial.

(Mem. at 10.)

As to its relevance, to establish a claim against an
employer under Title VII for creating a hostile work environment
because of sexual harassment, as stated above, “a plaintiff must
show that the offending conduct . . . was imputable to her
employer.’”

Ziskie, 547 F.3d at 224 (internal quotations and

citations omitted).

As for imputing Young’s conduct to the

12

County, “[i]n a case where an employee is sexually harassed by a
coworker . . . the employer may be liable only ‘if it knew or
should have known about the harassment and failed to take
effective action to stop it.’”

Howard v. Winter, 446 F.3d 559,

565 (4th Cir. 2006) (emphasis added) (quoting Ocheltree, 335
F.3d at 334).
Rule 401 of the Federal Rules of Evidence defines
“relevant” evidence as “evidence having any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.”

Fed. R. Evid. 401.

The fact

that Williams was not an employee of the County and the alleged
conduct occurred at a convention in Lynchburg and not at Bland’s
work makes tenuous any connection to the fact of consequence it
is meant to address: whether the County was on notice that Young
harassed Bland, a County employee, at work.

That Young

allegedly harassed a non-Department employee, at a nonDepartment work event in Lynchburg, has little bearing on
whether the County knew or should have known about Young’s
alleged harassment of a Department coworker on Department time
and in the County.
Moreover, as to whether it is prejudicial, Rule 403
provides that all relevant evidence is admissible unless its
probative value is “substantially outweighed by the danger of

13

unfair prejudice, confusion of the issues, or misleading the
jury.”

Fed. R. Evid. 403.

As the Fourth Circuit has stated,

Rule 403 “only requires suppression of evidence that results in
unfair prejudice--prejudice that damages an opponent for reasons
other than its probative value, for instance, an appeal to
emotion, and only when that unfair prejudice substantially
outweighs the probative value of the evidence.”

United States

v. Mohr, 318 F.3d 613, 619-20 (4th Cir. 2003) (internal
quotation marks and citation omitted).

And, trial courts have

discretion in making Rule 403 determinations.

See, e.g., United

States v. Morison, 844 F.2d 1057, 1078 (4th Cir. 1988), cert.
denied, 488 U.S. 908 (1988) (“[T]he appraisal of the probative
and prejudicial value of evidence under Rule 403 is entrusted to
the sound discretion of the trial judge; absent extraordinary
circumstances, the Court of Appeals will not intervene in its
resolution.”).
Here, the Court finds that the probative value of the
Williams incident is substantially outweighed by the danger of
unfair prejudice.

As set forth above, any connection between

the Williams incident and a fact of consequence here is tenuous,
at best.

On the unfair prejudice side of the inquiry, evidence

that Young allegedly harassed a non-County employee outside of
may confuse the issue of whether he harassed a County employee
at work.

Thus, this evidence will result in unfair prejudice,

14

as it will damage the opponent for reasons other than its
probative value, and that unfair prejudice substantially
outweighs its minimal probative value.
D.

The Philadelphia Incident

A witness, Charleen Ray, an employee of the County, is
expected to testify that Young made statements to her while they
were attending a conference in Philadelphia.

(Mem. at 10.)

According to Defendant, Ray never reported these statements.
Id.
Defendant argues that Ray’s testimony about Young’s
alleged harassment does meet the requirements of Rule 801(d)(2)
and is therefore inadmissible hearsay.

Id.

Like that above,

this argument assumes the statement is hearsay and, then, argues
that it does not fall within an exception to the hearsay rule.
For the same reasons set forth above, the Court will permit the
statement for its non-hearsay purposes only, if it is otherwise
relevant and admissible.
According to Defendant, Ray never reported Young’s
conduct.

Thus, Ray’s testimony regarding the conduct is not

relevant to whether the County was on notice of that conduct.
It is, however, relevant and admissible as an instance that goes
to whether Plaintiff experienced a hostile work environment.
Defendant argues that Bland was not aware of this incident
“during the time that she alleges she was harassed by Young.”

15

(Mem. at 11.)

That will not prohibit its admission, for the

reasons set forth in Section A above.

See also Ziskie, 547 F.3d

at 225.
Defendant further argues that Bland indicated to
Defendant that she will seek to introduce the transcript of
Ray’s interview with Captain Felicia Edwards, the Department’s
Equal Employment Opportunity (“EEO”) officer who investigated
Bland’s complaint against Young.

(Mem. at 11 n.1; Plaintiff’s

Trial Ex. 17.)
Defendant argues this transcript is inadmissible
hearsay and irrelevant.

Id.

Stating that something is hearsay

does not make it so, and as set forth above there are nonhearsay purposes available to Bland.

If statements contained in

the transcript are hearsay, however, those statements will be
inadmissible.

Plaintiff has provided the Court with no

indication of what statements from and for what purposes she
will proffer these transcripts.

Thus, Plaintiff has presented

the Court no argument as to whether those statements are
admissible for non-hearsay purposes.

Accordingly, the

transcripts are inadmissible.
E.

Stacey Bailey’s Alleged Harassment

According to Defendant, Stacey Bailey and Hector
Rivera are expected to testify that Bailey was harassed by Young
beginning in the spring or summer of 2008.

16

(Mem. at 11.)

Defendant first argues that this testimony, “which is based on
Young’s statements to Bailey, does not meet the requirement of
Fed. R. Evid. 801(d)(2) and is therefore inadmissible hearsay.”
This argument fails for the same reasons set forth above.

It

will be admissible only for any non-hearsay purposes, such as
being used only to prove that a prior statement was made and not
to prove the truth of the statement.

Ayala, 601 F.3d at 272.

Defendant next argues that this testimony should not
be admissible because it is irrelevant in that it occurred after
the alleged harassment of Bland stopped and because Bland was
unaware of it.

(Mem. at 11-12.)

First, if it is offered to

support the objective element of the severe or pervasive
inquiry, it is relevant and admissible for that purpose, for the
reasons set forth above.

Second, if it is being offered for the

inquiry of whether Young’s conduct is imputable to the County,
by using the testimony to show that the County failed to take
effective action to stop Young’s conduct, Winter, 446 F.3d at
565, the testimony is relevant and will be admissible unless
Defendant shows some other bar to its admissibility.
F.

O’Connor’s Testimony of Young’s Statement

Sean O’Connor is expected to testify that Young made
the statement to him at work that “working in recruitment is the
best way to get p***y.”

(Mem. at 12.)

Defendant first argues

that this testimony “is inadmissible hearsay because it does not

17

does not meet the requirement of Fed. R. Civ. P. 801(d)(2)(D).”
Id.

That argument fails for the reasons set forth above, and

the Court will permit the statement for its non-hearsay purposes
unless there is another bar to its admission.
As to its non-hearsay purpose, Plaintiff represented
at oral argument regarding this Motion in Limine that the
O’Connor statement goes to Young’s motive and intent.

As to

that, the Court finds that the probative value of O’Connor’s
statement is substantially outweighed by the danger of unfair
prejudice.

Young’s motive or intent in working in recruitment

is not, in itself, at issue.
gender is.
relevant.

That Bland was harassed because of

Thus, testimony to show that fact is, of course,
The particular term O’Connor would use in his

testimony, however, is particularly offensive and is minimally
probative, as opposed to a less offensive statement to the
effect that Bland was harassed based on her gender.

Thus, this

evidence will result in unfair prejudice, as it will damage the
opponent for reasons other than its probative value, such as its
offensiveness, and that unfair prejudice substantially outweighs
the minimal probative value of the evidence.
G.

Young’s Other Sexual Relationships

Bland is expected to ask Young about other women with
whom he has had consensual sexual relationships.

18

(Mem. at 12.)

Young’s consensual sexual relationships are irrelevant and
testimony about and concerning them is inadmissible.
H.

Mr. Bland’s Testimony of Harassment of Other’s
Female Firefighters

M. Bland, who is Bland’s husband, is expected to
testify that he is “aware of” a female employee who was sexually
harassed by male firefighters at Fire Station 1.

(Mem. at 13.)

According to Defendant, “Bland’s knowledge of the alleged
harassment comes from his alleged discussions with the alleged
harassers, and not from any firsthand knowledge or observation
of the harassment.”

Id.

Plaintiff concedes the statements to

which Mr. Bland will testify will be statements made to him by
other firefighters, but does not know when these statements were
made or who made them.

Without some basis as to how these

statements will not be hearsay, the Court will find them
inadmissible.
I.

Plaintiff’s Testimony About Harassment by
Firefighters Other than Young

Stacey Bailey is also expected to testify that, from
February 2005 to February 2006, she was subjected to a hostile
work environment by several individuals with whom she worked at
Fire Station 30 and by individuals other than Young at Fire
Station 40.

(Mem. at 13.)

Defendant argues that “Bailey’s

testimony about statements made to her by other firefighters
does not meet the requirement of Fed. R. Evid. 801(d)(2) and is
therefore inadmissible hearsay.” Id.
19

This argument fails as

set forth above, and Bailey’s testimony will be admissible for
its non-hearsay purposes.
Defendant also argues that “Bland was not aware of the
alleged harassment of Bailey during the time that she alleges
that she was harassed by Young,” so Bailey’s testimony is
irrelevant.
above.

Id.

This argument fails for the reasons set forth

Bailey’s testimony of other incidents is relevant and

will be admissible unless another rule bars its admission.
Defendant also argues this testimony’s probative value
is far outweighed by its prejudice to the County.

Id.

Here,

the Court finds that the probative value of Bailey’s testimony
is not necessarily substantially outweighed by the danger of
unfair prejudice.

The evidence is relevant and any danger of

prejudice will be addressed with a limiting instruction.

The

Court will not bar Bailey’s testimony wholesale, but depending
on the particular testimony, the Court will revisit the Rule 403
balancing.
J.

Prior EEO Investigations

Bland is expected to seek the introduction of
documents from the Department’s prior EEO office investigations,
some of which were investigated by Edwards when she was the
Department’s EEO officer. (Mem. at 14.)

As an initial matter,

these documents appear to be Plaintiff’s Trial Exhibit 18, but
do not appear to be included in the exhibits delivered to the

20

Court pre-trial on May 19.

Defendant argues that “the contents

of these documents do not meet the requirements of Fed. R. Evid.
801(d)(2) and are therefore inadmissible hearsay.”
this argument fails for the same reasons.

Id.

Again,

If the statements

contained in the documents that Plaintiff seeks to introduce
into evidence are relevant and have a non-hearsay purpose, they
will be admissible.
At oral argument regarding this Motion in Limine,
Plaintiff represented to the Court that these investigations
contain findings by the Department’s EEO officer and that she
intended to use these investigations to show a pattern of
conduct.

The findings of these investigations are necessarily

hearsay, in that they could only be offered for the truth of
what they assert, i.e. that what they say really happened.

The

same is true for the purpose of showing a pattern of conduct.
For there to be a pattern (and putting aside any Rule 404(a)
concerns), the prior incidents must have occurred.

For

Plaintiff to show they indeed occurred, Plaintiff must offer the
investigations for the truth of what the statements assert.
Thus, the EEO investigations will be inadmissible.
The Court notes that the Supreme Court has explained
that “prior administrative findings made with respect to an
employment discrimination claim,” such as Equal Employment
Opportunity Commission determinations, are admissible under the

21

Federal Rules of Evidence.

Chandler v. Roudebush, 425 U.S. 840,

863 n.39 (1976) (citing Fed. R. Evid. 803(8)(C)).

Documents

from the Department’s prior EEO office investigations, however,
are not qualifying administrative findings.

Thus, this rule

does not permit their admission in and of itself.
IV.

Conclusion

For these reasons, the Court will grant in part and
deny in part Defendant’s Motion in Limine.
An appropriate Order will issue.

June 20, 2011
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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