The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This is an employment discrimination case in which the plaintiff, Sharon Nuskey, alleges gender discrimination and retaliation against the U.S. Export-Import Bank under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16.
Plaintiff seeks to call Colleen Getz, Michael Cushing, Monika Edwards, Cheryl Conlin, and Mary Beth Adamchick as trial witnesses to offer so-called "me too" testimony. See Sprint v. Mendelsohn, 552 U.S. 379 (2008).*fn1 Plaintiff also seeks to introduce portions of Margaret Kostic's deposition into evidence as "me too" testimony. Ms. Kostic is not available for trial, as she died on May 26, 2010. The purpose for which plaintiff offers such testimony is to support the inference that the plaintiff's supervisor, Michael Forgione, discriminated and retaliated against her when he terminated her on the ground that she was "not a good fit" for the Bank. See Joint Pretrial Statement at 5. Defendant urges the Court to exclude all of these "me too" witnesses. At the Final Pretrial Conference, the Court stated that it would exclude the testimony of Colleen Getz, Michael Cushing, and Monika Edwards and reserved judgment as to Mary Beth Adamchick and Margaret Kostic. This Memorandum Opinion explains the Court's reasoning for excluding or admitting the "me too" testimony.
The Federal Rules of Evidence permit the admission of "relevant evidence," see FED. R. EVID. 401, 402, provided such evidence is not otherwise excluded by the Rules and its probative value is [not] substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
FED. R. EVID. 403. Evidence of an employer's past discriminatory or retaliatory behavior toward other employees -- so-called "me too" testimony -- may, depending on the circumstances, be relevant to whether an employer discriminated or retaliated against a plaintiff. See Sprint v. Mendelsohn, 552 U.S. at 385-88; Parker v. HUD, 891 F.2d 316, 321 (D.C. Cir. 1989); Elion v. Jackson, 544 F. Supp. 2d at 8. Such testimony is neither per se admissible nor per se inadmissible; the question whether such testimony is relevant and sufficiently more probative than unfairly prejudicial in a particular case is "fact-based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case." Sprint v. Mendelsohn, 552 U.S. at 387-88. As this Court has explained, among the factors to consider are whether such past discriminatory behavior by the employer is close in time to the events at issue in the case, whether the same decisionmakers were involved, whether the witness and the plaintiff were treated in a similar manner, and whether the witness and the plaintiff were otherwise similarly situated. See Elion v. Jackson, 544 F. Supp. 2d at 8; see also White v. United States Catholic Conference, Civil Action No. 97-1253, 1998 WL 429842, at *5 (D.D.C. May 22, 1998).*fn2
During Ms. Nuskey's tenure at the Bank, Dr. Getz was the Director of Economic Analysis. Plaintiff proffers that Dr. Getz will testify that while she was working at the Bank she suffered sex discrimination from a male superior, someone other then Mr. Forgione. Plaintiff contends that the purported gender discrimination against Dr. Getz was close in time to the events at issue in this case and that the testimony should be admitted based on the Elion factors. See Joint Pretrial Statement at 12-13.
Plaintiff's contention that the events at issue were close in time is misplaced. Although their tenures at the bank overlapped, the incidents that gave rise to Dr. Getz's complaint occurred approximately ten years before the events at issue in the instant case. Furthermore, Dr. Getz never worked for Mr. Forgione or for Craig O'Connor (another of plaintiff's supervisors), and the parties agree that neither of these individuals is implicated in the Getz case. Moreover, Dr. Getz and the plaintiff were not similarly situated. In fact, Dr. Getz had a different title, different job responsibilities, and reported to different supervisors. The only ascertainable similarities to the Getz situation and the instant case are that Dr. Getz is a woman, the purported discrimination against her also was gender-based, and the purported discrimination originated with a male supervisor. These similarities are not enough to overcome the fact that the incidents were not close in time and that there were different decisionmakers involved. See Elion v. Jackson, 544 F. Supp. 2d at 8-9. Dr. Getz's "me too" testimony is not relevant and will be excluded.
Mr. Cushing is currently the Vice-President in charge of personnel at the Bank. Plaintiff contends that Mr. Cushing had some involvement in the present case and also can testify to the manner in which Bank management handled the Getz case. See Joint Pretrial Statement at 8. Because the Court has ruled that Dr. Getz's "me too" testimony is irrelevant, see supra at 3-4, it follows that Mr. Cushing's testimony regarding the Getz case is also irrelevant.
With respect to the instant case, Mr. Cushing had no involvement in the plaintiff's termination, does not work for Mr. Forgione, and cannot speak to Ms. Nuskey's travel plans.
Mr. Cushing is a male and is a Vice-President at the bank and therefore is not similarly situated. There is no indication that Mr. Cushing can personally attest to the plaintiff's discrimination complaints against Mr. Forgione, except to the extent that he was the Bank's representative in the attempt at mediating this matter. The parties have agreed that testimony about settlement efforts and mediation will not be admitted at trial. Mr. Cushing's proposed testimony is irrelevant.
Monika Edwards is currently employed with the Planning and Policy Office at the Bank. Plaintiff proffers Ms. Edwards to testify about her own experience being treated in a sexist manner by a male supervisor while employed at the Bank. She is further proffered to testify that the Bank made similar promises to both Ms. Edwards and ...