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RAUH v. COYNE

May 1, 1990

Margaret W. RAUH, Plaintiff,
v.
Marshall B. COYNE, et al., Defendants; Renate BOTTALICO, et al., Plaintiffs, v. Marshall B. COYNE, et al., Defendants


Harold H. Greene, United States District Judge.


The opinion of the court was delivered by: GREENE

HAROLD H. GREENE, UNITED STATES DISTRICT JUDGE.

 A number of motions are pending in these cases which the parties believe should be decided expeditiously because their disposition will control the length and timing of discovery and the timing of the trial. *fn1"

 A. Defendants' Motion in Limine

 Defendants have filed a motion in limine regarding the admissibility of several categories of evidence, and plaintiff has filed an opposition. The Court has considered the papers, and it has come to the following conclusions with regard to this motion.

 Plaintiff, who claims discriminatory discharge from her position on account of sex and marital status, wishes to introduce at trial evidence of alleged animus by defendants against black employees and customers. Defendants' motion in limine is directed at that proposed action. Upon a review of the precedents cited by the two parties, many of which deal with issues at variances with those here, the Court has concluded that it will not admit evidence regarding alleged racial discrimination, both because such evidence would not be relevant within the meaning of Federal Rule of Evidence 401 and because it would cause unfair prejudice outweighing any probative value. Rule 403.

 Under the standard test of relevancy, evidence is deemed relevant if it has a tendency to make any fact that is of consequence to the determination of the action more probable or less probable than without the evidence. See Rule 401. There is little reason in common experience to infer that an employer who discriminates against blacks in his employment decisions is also likely to discriminate against women. To be sure, such a correlation does exist in some situations -- as plaintiff points out, some employers discriminate against everyone who is not a white male -- but this is not the normal experience. Discrimination against blacks has an entirely different history in this country in general and in geographical sections and particular industries than has discrimination against women.

 In view of the weak correlation between the two types of discrimination, the proposed evidence against black employees would be likely to be of little probative value but it would have very great potential for prejudice. See, e.g., Schrand v. Federal Pacific Electric Co., 851 F.2d 152, 156 (6th Cir. 1988); Steinberg v. St. Regis Sheraton Hotel, 583 F. Supp. 421 (S.D.N.Y. 1984). *fn2" With respect to this evidence, the motion in limine will accordingly be granted.

 2. Subsequent Acts of Sexual Harassment

 Defendants also seek to bar testimony of complaints of sexual harassment at defendants' establishment that were made after plaintiff was removed. These complaints occurred within a relatively short period of time (fifteen months) after her firing. Furthermore, while, to be sure, the particular manager who allegedly was involved in these subsequent activities was someone other than the person who allegedly discriminated against plaintiff, defendant Coyne, the principal in the hotel and the corporations, remained at his post, and he was apparently the ultimate decisionmaker in all the incidents. Such subsequent incidents, as long as they are not remote in time will therefore be admitted, and to that extent the motion will be denied.

 3. Defendants' Statement at Unemployment Office

 At a proceeding at an unemployment compensation office, defendants' attorney stated that plaintiff Rauh had not been discharged for misconduct. *fn3" A tape recording exists of this statement, and defendants ask that plaintiff be prohibited from using it.

 Defendant Coyne had stated during discovery in this lawsuit that plaintiff was discharged for insubordination, a term that falls broadly within the definition of "misconduct" under District of Columbia employment compensation law. See D.C. Code ยง 46-111(b)(2) (1981). Whatever defendants' current explanations and excuses, it seems clear that, if only on the basis of the doctrine of collateral estoppel, they should be barred from now claiming that their statement should not be admitted. That statement is ...


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