Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Herbert v. Architect of Capitol

United States District Court, District of Columbia

January 31, 2013

Cornell HERBERT, Plaintiff,

Page 34

[Copyrighted Material Omitted]

Page 35

[Copyrighted Material Omitted]

Page 36

Leslie David Alderman, III, Alderman, Devorsetz & Hora PLLC, Washington, DC, for Plaintiff.

Fred Elmore Haynes, U.S. Attorney's Office, Washington, DC, for Defendant.



From 2004 through 2011, Plaintiff Cornell Herbert (" Herbert" ), an African

Page 37

American, was employed as a painter in the Paint Shop for the House of Representatives, which falls under the supervision of Defendant, the Architect of the Capitol (" AOC" ). In 2009, Plaintiff filed this action against the AOC, claiming that he was discriminated and retaliated against in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ) and the Congressional Accountability Act of 1995 (the " CAA" ). This Court previously granted-in-part and denied-in-part the AOC's motion for summary judgment. See Herbert v. Architect of Capitol, 839 F.Supp.2d 284 (D.D.C.2012) (setting forth the background of the case). This action is now in the pretrial stage of litigation on the two remaining counts, Counts II and III, and is proceeding towards a jury trial that is yet to be scheduled. Count II alleges that Herbert was retaliated against, due to his prior complaints of discrimination, when the AOC did not select him to serve as a full-time " point man" during a project in 2008. See Second Am. Compl. ¶¶ 44-47. Count III alleges that Herbert was continuously subjected to a discriminatory and retaliatory hostile work environment while he was working at the Paint Shop. See Second Am. Compl. ¶¶ 48-51. Presently before the Court are Plaintiff's [62] Motion in Limine and the AOC's [65] Motion in Limine, both of which request relief in connection with various evidentiary disputes. Upon consideration of the parties' submissions,[1] the relevant authorities, and the record presently before the Court, and for the foregoing reasons, the Court shall DENY Plaintiff's [62] Motion in Limine and GRANT-IN-PART and DENY-IN-PART the AOC's [65] Motion in Limine.


Although neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence expressly contemplate motions in limine, the practice of allowing such motions has developed over time " pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Consistent with the historical origins of the practice, motions in limine are " designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions." Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1070 (3d Cir.1990). Broadly speaking, the Federal Rules of Evidence permit the admission of " relevant evidence" — that is, evidence that " has any tendency to make a fact [of consequence] more or less probable than it would be without the evidence," FED.R.EVID. 401— provided it is not otherwise excluded by the Rules, the Constitution of the United States, or an Act of Congress, FED.R.EVID. 402, and its probative value is not " substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." FED.R.EVID. 403.

In deference to their familiarity with the details of the case and greater experience in evidentiary matters, trial judges are afforded broad discretion in rendering evidentiary rulings, a discretion which extends to assessing the probative value of the proffered evidence and weighing any factors against admissibility.

Page 38

Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008). The trial judge's discretion extends not only to the substantive evidentiary ruling, but also to the threshold question of whether a motion in limine presents an evidentiary issue that is appropriate for ruling in advance of trial. United States v. Valencia, 826 F.2d 169, 172 (2d Cir.1987); accord Rosemann v. Roto-Die, Inc., 377 F.3d 897, 902 (8th Cir.2004); United States v. Layton, 720 F.2d 548, 553 (9th Cir.1983), cert. denied, 465 U.S. 1069, 104 S.Ct. 1423, 79 L.Ed.2d 748 (1984), and overruled on other grounds by United States v. W.R. Grace, 526 F.3d 499 (9th Cir.2008). The trial judge has the " discretion to rule in limine or to await developments at trial before ruling." Stephen A. Saltzburg et al., FEDERAL RULES OF EVIDENCE MANUAL § 103.02 [12] (9th ed. 2006). " [I]n some instances it is best to defer rulings until trial, [when] decisions can be better informed by the context, foundation, and relevance of the contested evidence within the framework of the trial as a whole." Casares v. Bernal, 790 F.Supp.2d 769, 775 (N.D.Ill.2011) (citation omitted).


The Court shall first address the AOC's motion and thereafter turn to Plaintiff's motion. Because of the number and substantive variation of both parties' requests, the Court shall discuss the factual background relevant to each separate request within the context of its analysis of that request. Further, because of the significant overlap between certain matters raised in the parties' respective motions, the Court shall occasionally, in discussing one party's motion, refer to briefing submitted in connection with the opposing party's motion.

A. The AOC's Motion in Limine

The AOC's Motion in Limine requests the following relief: (1) that the AOC be permitted to present at trial evidence of Plaintiff's arrest, indictment, and criminal conviction to interrogate witnesses who testify about Plaintiff's emotional pain and suffering; (2) that the AOC be permitted to present at trial testimony from the Chief Clerk of the House Committee on Oversight and Government that Plaintiff sexually harassed her; (3) that the Court preclude Plaintiff from offering evidence of the " Tonda Cave" investigation— an internal investigation concerning disruptive behavior in the Paint Shop; (4) that the Court preclude Plaintiff from offering evidence about discipline given to Calogero DiPasquale, a white male who was also a painter in the Paint Shop and whom Plaintiff argues received more favorable treatment than Plaintiff; (5) that the Court seat a jury of twelve; and (6) that the Court preclude Plaintiff from offering evidence of discrete acts that allegedly contributed to the creation of the hostile work environment which are not referred to in Plaintiff's statement of his claims in the parties' Joint Pretrial Statement. The Court shall address each request in turn.

1. Evidence Regarding Plaintiff's Arrest, Indictment, and Criminal Conviction

The AOC contends, based upon information gleaned from an online news article, that Plaintiff was arrested, indicted, and convicted for " slashing his former wife's boyfriend with a butcher's knife." Def.'s Reply at 1. Although Plaintiff decries the AOC's reliance on a newspaper article, challenges the AOC's " salacious" characterization of the events, and asserts a blanket objection to the overall accuracy of AOC's allegations, see Pl.'s Opp'n at 1, 2 & n. 2, Plaintiff does not contest the following

Page 39

underlying facts: that Plaintiff was arrested on September 27, 2009, for assaulting his former wife's boyfriend; that on January 20, 2010, Plaintiff was indicted on charges of attempted first-degree murder and malicious assault (which the news article reported carried possible sentences of three to fifteen years, and two to ten years, respectively); that Plaintiff was tried in March 2011; that on March 10, 2011, after a three-day trial, a petit jury found Defendant guilty of two counts of misdemeanor battery, which were merged at his sentencing on May 23, 2011; that Plaintiff was sentenced to one year in prison; and that because of his conviction and sentence to jail, Plaintiff resigned from his employment at the Paint Shop. Def.'s Mem. at 2-3. See also Pl.'s Opp'n, Ex. 1 (May 25, 2011 Cir. Ct. of Jefferson Cty, West Va. Sentencing Order).

The AOC requests that the Court permit it to introduce evidence regarding the fact of, and circumstances surrounding, Plaintiff's arrest, indictment, and conviction. Notably, the AOC does not purport to offer the evidence pursuant to Federal Rule of Evidence 609, which provides for impeachment of a witness's character for truthfulness by evidence of a criminal conviction. Def.'s Reply at 2. Rather, the AOC argues that the evidence is relevant to two issues in this case. First, the AOC asserts that it provides the explanation for Plaintiff's resignation. The Court need not address this argument, however, because the parties have indicated their agreement to enter into a stipulation to the effect that Plaintiff resigned his position for purely personal reasons having nothing to do with the environment or conditions of his employment, and that he does not contend that his claim for damages should include the fact that he resigned from the Paint Shop. See Pl.'s Mem. at 6; Pl.'s Opp'n at 2-3; Def.'s Reply at 2.

The AOC's second point, however, remains fiercely contested. Plaintiff is claiming that he suffered emotional damages as a result of the discrimination and retaliation he endured at the Paint Shop— some of which, the AOC argues, occurred after his arrest. Def.'s Mem. at 3. At trial, Plaintiff intends to offer four witnesses who will testify about his emotional pain and suffering— including friends and/or relatives and Plaintiff's treating physician. Pl.'s Opp'n at 2. Plaintiff will himself presumably testify to the same. The AOC argues that " [a]ppropriate impeachment of that testimony will be inquiry into the other issues in Plaintiff's life at the relevant time period that were the likely causes of Plaintiff's emotional pain and suffering— e.g., the fact that he faced the possibility of a lengthy prison sentence." Def.'s Mem. at 3.

Plaintiff counters that the " real reason" behind the AOC's introduction of this evidence is to embarrass Plaintiff and prejudice the jury against him. Pl.'s Opp'n at 1. He argues that the prejudice that would result from the introduction of evidence about his encounter with the criminal justice system substantially outweighs any minimal relevance the criminal proceedings may have to the question of his hostile environment damages. Id. at 5-6. Plaintiff further argues that the introduction of such evidence could lead to a time-consuming " mini-trial" regarding the circumstances of Plaintiff's arrest, incitement, criminal trial, conviction, and incarceration. Id. Accordingly, Plaintiff submits that all evidence relating to his criminal activity be excluded as more prejudicial than probative pursuant to Federal Rule of Evidence 403. Id.

Upon consideration of the parties' arguments, it is clear to the Court that, in light of Plaintiff's anticipated proffer at trial of evidence regarding his alleged emotional

Page 40

damages, evidence that other stress factors in his life (particularly those as objectively taxing as divorce and criminal justice proceedings) were more significant contributors to Plaintiff's emotional pain and suffering than the alleged problems at work, would be highly probative as to Plaintiff's entitlement to recover damages. While Plaintiff argues that his arrest and subsequent conviction are of minimal relevance because they occurred at the " tail end" of his employment at the Paint Shop, Plaintiff provides no factual support whatsoever for this argument. See Pl.'s Mem. at 7. It is not even clear to the Court on which date Plaintiff's employment with the AOC terminated. To be sure, this is not entirely surprising, given Plaintiff's pattern of vague submissions throughout the course of this litigation. Indeed, even at this late stage in the action, the Court observes that Plaintiff has failed, in his statement of claims and description of proposed witness testimony included in the parties' present Joint Pretrial Statement, to sufficiently specify the discrete conduct upon which his hostile environment claim is based, not to mention the timeframes applicable thereto. It is expected that the revised Joint Pretrial Statement, which by prior order of this Court, is to be filed on March 4, 2013, will cure these defects. See Order (Jan. 31, 2013), ECF. No. [74].

The Court need not belabor the point except to note that Plaintiff cannot on the one hand attempt to claim damages for employment induced emotional distress for a time period lasting over six years from 2004 through 2011, see Pretrial Stmt. at 1, without subjecting himself to cross-examination about other stress factors present in his life during that time. The Court further notes that, among those incidents that Plaintiff does identify in his Second Amended Complaint (the operative complaint in this action) as having occurred on a specific date, or range of dates, more than a few are alleged to have occurred after both the dates of his purported arrest (September 27, 2009) and alleged indictment (January 20, 2010). See Second Am. Compl. ¶ 36 (verbal assault and physical threats from a co-worker relating to a dispute about the music playing on Plaintiff's radio in May 2010); id. ¶ 36-37 (reprimand regarding incident described in paragraph 36 received by Plaintiff on May 25, 2010); ¶ 38 (continual assignment to difficult and grunt work, until and including the time of the filing of the Second Amended Complaint, on February 22, 2011). Other " ongoing" conduct of which Plaintiff has complained apparently continued at least until, and including, March 30, 2011, the date on which he filed his opposition to the AOC's summary judgment motion— which was after his March 10, 2011 trial and conviction. See, Pl.'s Stmt. of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.