EVIDENCE ABOUT OTHER PEOPLE: WHEN IS IT
ADMISSIBLE IN YOUR PLAINTIFF'S EMPLOYMENT CASE?

by: Ellen J. Messing
© 2000 Ellen J. Messing

1. INTRODUCTION

Plaintiffs in employment cases frequently seek to introduce at trial evidence about the employer-defendant's dealings with employees other than the plaintiff herself. While such evidence may take many forms, two common types are: (1) evidence of allegedly discriminatory acts by the employer directed against individuals, other than the plaintiff, in the plaintiff's protected class; and (2) evidence of the subsequent work performance of other similarly situated employees outside the plaintiff's protected class who were treated more favorably than the plaintiff. This brief overview summarizes authorities that support plaintiffs' efforts to admit such evidence at trial.

2. EVIDENCE OF OTHER ACTS OF DISCRIMINATION BY THE EMPLOYER

Frequently employer-defendants object to the plaintiff's efforts to introduce evidence that the employer has acted in a discriminatory fashion toward other members of the plaintiff's protected group. These objections are understandable: the proffered evidence is likely to have a powerful effect on the jury's view of the employer and the legitimacy of its behavior. In order to overcome those objections, counsel for plaintiffs need to understand their source in the law of evidence and the strong counter-arguments that the law offers. A careful approach to these issues has brought considerable success to plaintiffs relying on both federal and Massachusetts law.

1. DEFENDANTS' ARGUMENTS AGAINST ADMISSION OF "OTHER ACTS" EVIDENCE

Employers generally rely on Fed. R. Evid. 404(b) or analogous provisions of the Massachusetts common law of evidence. These bar "propensity" evidence: that is, one may not prove that the defendant (or whoever) acted fraudulently, unsafely, etc. in this case by showing that it did so on some other occasion. Fed. R. Evid. 404(b); Hon. Paul J. Liacos et al., Handbook of Massachusetts Evidence § 4.4 (7th Ed. 1999). Employers may also rely on Fed. R. Evid. 403, which excludes evidence that is more prejudicial than probative. Some courts have applied these principles to exclude evidence that the relevant actor engaged on another occasion in similar discrimination. See, e.g., McCue v. Kansas Dept. of Human Resources, 165 F. 3d 784 (10th Cir. 1999) (other instance of discrimination by supervisor constitutes impermissible "character" evidence from which discrimination against plaintiff may not be inferred); Kline v. Kansas City Fire Dept., 1999 WL 270013 (8th Cir. 1999) (other discriminatory acts - by non-decisionmakers - more prejudicial than probative).

2. PLAINTIFFS' COUNTER-ARGUMENTS

In order to get "other acts" evidence in, plaintiffs need to proffer it for a purpose permitted under Rule 404(b). Neither Rule 404(b) nor Massachusetts decisional law prohibits the admission of evidence of "other acts" if offered "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . ." Thus, in offering such evidence, plaintiffs should clearly specify its purpose. The most applicable legitimate purposes under the anti-discrimination laws will likely be (1) to demonstrate the employer's discriminatory intent or motive; and/or (2) to demonstrate pretext. In essence, plaintiffs need to show that the proffered evidence will undercut the neutral or innocent explanations advanced by the employer for its conduct.

1. Federal Cases

Such arguments have succeeded in cases in the federal courts brought under both Title VII and c. 151B of the General Laws. The operative legal framework was laid out some years ago in the sex discrimination case of Conway v. Electro Switch Corp., 825 F.2d 593 (1st Cir. 1987), which held admissible, inter alia, evidence that another female employee was subjected to discriminatory treatment by a manager who later served as company president at the time of the plaintiff's discharge. The court characterized such evidence as "relevant to the question of motive" since it is "circumstantial evidence of a discriminatory atmosphere," which "does tend to add 'color' to the employer's decisionmaking processes and to the influences behind the actions taken with respect to the individual plaintiff." Id. at 597 (citations omitted). The court noted that such evidence is admissible even if outside the time frame of the specific events actually being litigated, since its relevance does not turn on its salience to those events, but on the fact that "an employer's willingness to consider impermissible factors . . . in one set of presumably neutral employment decisions . . . might tend to support an inference that such impermissible considerations may have entered into another area of ostensibly neutral employment decisions [affecting the plaintiff]." Id. at 597-98.

Parallel reasoning has been adopted in other cases, some of which extend the logic of Conway. See, e.g., McMillan v. MSPCA, 140 F. 3d 288, 301 (1st Cir. 1998) (not abuse of discretion for trial court to admit into evidence sexist remarks by decisionmaker to other women, because remarks evinced derogatory attitude toward women, even though remarks "did not involve employment at all," and one was made years before the plaintiff's salary dispute arose); Carey v. Mt. Desert Island Hosp., 156 F 3d 31, 37-39 (1st Cir. 1998) (not abuse of discretion for trial court to admit evidence of sexist remarks by decisionmakers, including remarks unrelated to employment; court notes that circumstantial evidence of gender discrimination "will necessarily be composed of bits and pieces"); Brown v. Trustees of Boston Univ., 891 F 2d 337, 349 (1st Cir. 1989) (same; usefully, 7th Circuit is quoted as opining: "[g]iven the difficulty of proving employment discrimination - the employer will deny it, and almost every worker has some deficiency on which the employer can plausibly blame the worker's troubles - a flat rule that evidence of other discriminatory acts . . . can never be admitted without violating Rule 403 would be unjustified". . . (citation omitted)); Koster v. Trans World Airlines, Inc., 181 F.3d 24, 33-34 (1st Cir. 1999) (in age discrimination case, no abuse of discretion to admit anecdotal evidence, recited by the plaintiff, to the effect that older employees were typically targeted during employer's earlier reduction in force; anecdotal evidence "'may add color' to an employer's decisionmaking process").

Authorities from other federal circuits have adopted similar reasoning, some with parallel expansiveness. See, e.g., Estes v. Dick Smith Ford, Inc, 856 F.2d 1097 (8th Cir. 1988) (abuse of discretion to exclude evidence of employer's other acts of discrimination against black customers as well as against other employees); Hawkins v. Hennepin Technical Ctr., 900 F.2d 153 (8th Cir.), cert. denied, 498 U.S. 854 (1990) (abuse of discretion to exclude evidence of other acts of sexual harassment in case alleging retaliation for sexual harassment; such evidence should be "freely admitted"); Polanco v. City of Austin, 78 F.3d 968 (5th Cir. 1996) (evidence of bias against Hispanic crime victims as well as against other Hispanic officers properly admitted in national origin discrimination case brought by Hispanic officer); Glass v. Philadelphia Electric Co., 34 F. 3d 188 (3d Cir. 1994) (abuse of discretion to exclude evidence of racially hostile work environment in race/age discrimination case).

2. Massachusetts Cases

Noteworthy on this issue are some recent state court decisions, especially the SJC's recent decision in Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 2000 WL 966762 (2000), a national origin discrimination case, upholding the trial judge's admission into evidence of remarks by a supervisor, unrelated to employment, evincing the supervisor's racially discriminatory attitudes. The court upheld the relevance of this testimony to the plaintiff's contentions concerning "the kind of supervision and tone" set by the supervisor and his tolerance of discrimination by his subordinates. See also City of Boston v. MCAD, 39 Mass. App. Ct. 234, 237, 654 N.E.2d 944, 947 (1995) (bigoted remarks of employer's deputy superintendent directed against other African-American officers evidence that plaintiff's treatment was racially biased); Finney v. Madico, Inc., 42 Mass. App. Ct. 46, 51, 674 N.E.2d 655, 658; rev. den., 424 Mass. 1107, 678 N.E.2d 1334 (1997) (evidence of corporate parent's biased remarks about other women support plaintiff's sex discrimination claim against subsidiary).

Other Massachusetts cases, arising outside the employment discrimination context, approach the evidence issues similarly. See, e.g., Morris's Case, 354 Mass. 420, 238 N.E.2d 35 (1968) (evidence of defendant employer's employment of other minor properly admitted to prove defendant's intent to hire minors, since evidence of similar acts is admissible to prove intent); See also Com v. Fleury-Ehrhart, 20 Mass. App. Ct. 429, 480 N.E.2d 661 (1985) (evidence that defendant physician had sexually assaulted two other female patients in same manner as alleged in present case admitted to show pattern of conduct); Com. v. King, 387 Mass. 464, 441 N.E.2d 248 (1982) (upholding admission of evidence of defendant's sexual conduct with minor not involved in present sex-with-minor case, where facts evidenced common pattern).

Note that the cases are virtually uniform in holding that evidence is admissible under the theories recited above only if it arguably bears on the intent of one who actually participated in the decision(s) at issue. See, e.g., Laurin v. Providence Hosp., 150 F. 3d 52 (1st Cir. 1998).

3. EVIDENCE OF SUBSEQUENT PERFORMANCE OF COMPARATORS

Plaintiffs often seek to admit evidence of acts or omissions subsequent to the challenged employment decision, by person(s) outside the plaintiff's protected class who received more favorable treatment than the plaintiff with respect to the employment decision at issue. A typical example is evidence of the successful candidate's subsequent performance in a job that the plaintiff sought, but was denied for allegedly discriminatory reasons. Defendants typically oppose such evidence on the ground that the subsequent performance of the successful candidate is irrelevant, since it could not shed any light upon the employer's motive or intent at the earlier point in time when the employment decision was made. Many courts have agreed. See, e.g., Farahmand v. Cohen, 1999 WL 80262 (E.D. Pa. 1999).

In appropriate cases, however, plaintiffs can, and should, challenge this logic. The evidence may well be relevant to proof of pretext, because it constitutes circumstantial evidence that the successful candidate was in fact less suited to the position at issue than the employer claimed, or than the plaintiff was at the time of the decision. Some courts have recognized that such evidence proves pretext. See, e.g., Strauss v. Microsoft Corp. 814 F. Supp. 1186 (S.D. N.Y 1993) (in sex discrimination case, court considered, as evidence of pretext, evidence that male promoted instead of female plaintiff was unable to deal with technical questions after being promoted and asked plaintiff to do technical editing that was now part of male's new job); Berggruen v. Caterpillar, Inc., 1995 WL 708665 (N.D. Ill. 1995) (in failure-to-promote race discrimination case, court denied defendant's motion in limine seeking exclusion of subsequent performance of seven individuals promoted instead of plaintiff; court held that in absence of a specific showing as to how the defendant would be prejudiced, court "cannot discount" possibility that evidence may be relevant to showing pretext); Eichler v. Riddell, Inc., 1997 WL 17809 (N.D. Ill. 1997) (in gender/age layoff case, court denied defendant's motion in limine seeking exclusion of evidence that some of male's responsibilities were later taken away, "presumably due to his lack of competence to perform them," and that the consolidated department was reorganized, as relevant to plaintiff's contention that she was more qualified).

While the author is unaware of any Massachusetts state court decisions in employment cases specifically on point, plaintiffs should note that analogous logic has been applied in at least one Massachusetts case. In Cox v. Vermont Cent. R. Co., 170 Mass. 129, 139-40, 49 N.E. 97, 102 (1898) (cited in Liacos, supra at 172), a case involving alleged negligence in the warehousing of grain, the SJC upheld the introduction of testimony to the effect that defendant's watchman was in the habit of on-the-job intoxication several years before the events at issue in the case. The court reasoned that the testimony was relevant to proof of the watchman's lack of suitability for his post, as well as to proof that his unsuitability should have been known to the defendant. While obviously factually distinguishable in multiple respects from an employment discrimination case, Cox does appear to stand for the proposition that evidence of the demonstrated performance deficiencies of an employee in performing his job may appropriately be introduced to challenge the propriety of an employer's decision to place him in that job. As such, Cox may be useful to cite in support of an argument for admitting evidence of the post-hire performance of plaintiff's comparator.

Footnotes

[1]The author gratefully acknowledges the research assistance of Jeremy P. Cattani, Esq. of Messing, Rudavsky & Weliky, P.C. in the preparation of this article.

[2]The author is indebted to, and recommends, the excellent overview article, Edward J. Imwinkelreid and Louis A. Jacobs, "Evidentiary Issues in Employment Discrimination Cases," (NELA 1999 Tenth Annual Convention, New Orleans, LA.), June 30 - July 3, 1999, at 841.