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Banks v. Vilsack

United States District Court, District Circuit

July 31, 2013

DENISE A. BANKS, Plaintiff,
v.
TOM VILSACK, Defendant.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, Chief Judge.

Plaintiff Denise A. Banks brings this action against the Secretary of the United States Department of Agriculture ("USDA") under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., alleging that while employed at the USDA she was discriminatorily removed from the Senior Executive Service ("SES") because of her race and sex. Banks moves in limine to preclude the USDA from calling a number of witnesses and introducing certain exhibits at trial arguing that the evidence is irrelevant. Because some of the challenged evidence may be relevant to Banks's damages claim, but the USDA has not shown that the other challenged evidence is relevant, Banks's motion will be granted in part and denied in part.

BACKGROUND

The background of this case is discussed more fully in Banks v. Vilsack, Civil Action No. 07-1807 (RWR), 2013 WL 1208560 (D.D.C. Mar. 26, 2013). Banks, an African-American woman, "began working at the USDA in February 1999 as the Deputy Director for Civil Rights (Employment) at the SES level." Id. at *1. "Banks was supervised by Rosalind Gray." Id.

Banks was subject to a one-year probationary period when she was appointed as the Deputy Director. Her November 1999 performance appraisal for the probationary period stated that she did not meet several critical elements of her position and that her overall performance was rated as "unsatisfactory." As a result of her poor performance rating, Gray recommended that Banks be terminated. Notwithstanding Gray's recommendation, Assistant Secretary for Administration, Paul Fiddick, removed Banks from the SES position in January 2000 but reassigned her to a GS-15 position, Special Assistant to the Deputy Director for Programs in the Office of Civil Rights.

Id. (internal citations omitted).

After being demoted from the SES, Banks continued to work at the USDA in a management position where she supervised others including Michele Eiland. See Joint Pretrial Stmt. ("JPS") at 18-19.

From 2000 to 2004, Banks received overall performance ratings of "outstanding" on her performance appraisals. ... In August 2004, Sadhna True became the Director for Civil Rights and Employment at the USDA. In that capacity, True became Banks's second line supervisor. In 2005, Banks received the lower performance rating of "Superior"; in 2006 and 2007, she received the even lower rating of "Fully Successful."
In November 2007, Michael Watts, the acting Director for Civil Rights, reassigned Banks from her Division Chief position to the position of special assistant to the acting Director for Civil Rights.

Banks, 2013 WL 1208560, at *2 (internal citations omitted). Banks alleges that she "became so depressed over Ms. True's hostile treatment that she had to be hospitalized" in 2008. JPS at 7.

Banks brings this action against the USDA alleging that the agency discriminated against her on the basis of race and sex by removing her from the SES in 2000.[1] Banks seeks compensatory damages for "emotional distress, pain and suffering, loss of enjoyment of life, damage to reputation, and other losses." Id. at 25. She also seeks reinstatement to the SES with full back pay and benefits. Id.

Banks now moves in limine to exclude some of the USDA's proposed witnesses and exhibits under Federal Rule of Evidence 402 arguing that the evidence is irrelevant or inadmissible under Rule 403. PI.'s Supplemental Objections to Witnesses & Exs. ("Pl.'s Supplemental Objections") at 1. Specifically, she seeks to preclude (1) testimony from True; (2) testimony from Constance Bails; (3) testimony to from Watts; (4) testimony from Eiland; (5) e-mails to or from True; (6) an e-mail from Bails; (7) e- mails to or from Watts; (8) an e-mail from Eiland; (9) Banks's Performance Appraisals in 2006 and 2007; (10) exhibits regarding Banks retaining copies of certain documents; and (11) the 2007 Letter of Direction.[2]

The USDA counters "that the Court should defer its ruling on this evidence until trial." Def.'s Mem. of P. & A. in Opp'n to PL's Supplemental Objections ("Def.'s Opp'n") at 2. The USDA further argues that the "witnesses and exhibits which Plaintiff seeks to exclude are relevant to Defendant's defense concerning Plaintiff's job performance, and may be relevant on ...


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