Introduction.
Federal Rule of Evidence 404(b) is the so-called
“prior bad acts” rule. It provides in relevant part:
(b)
Crimes, Wrongs, or Other Acts.
(1) Prohibited
Uses. Evidence
of a crime, wrong, or other act is not admissible to prove a person’s character
in order to show that on a particular occasion the person acted in accordance
with the character.
(2) Permitted
Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.
In sum, Rule 404(b) prohibits an inference based
on a person’s character: (1) a person did something; (2) the person’s action
says something about the person’s character; and (3) the person acted
consistent with that character in connection with the event that gave rise to
the lawsuit. The rule arises mostly in
criminal cases but does come up in civil cases, particularly employment
cases. In general, the forbidden inferential
path in employment cases is along these lines: (1) the employer discriminated
against another employee; (2) the employer is a discriminator; and (3) the
employer discriminated in this case.
There is a big “however,” however. Rule 404(b) permits prior bad acts (or, more
appropriately “other act evidence”) if the other act is offered not to prove
conduct in conformity with character but for a legitimate purpose. The rule
gives a non-exhaustive list of permissible purposes, for example, to prove
motive or intent. Generally then in employment cases a proper inferential path
would be: (1) the employer took an adverse employment action against another
employee under circumstances indicating discrimination; (2) the other act tends
to prove the employer’s discriminatory state of mind; (3) the employer’s state
of mind came into play in the case at hand. Rule 404(b) evidence in employment
cases is sometimes referred to as “me too” evidence.
Other evidentiary filters then apply if evidence
is offered for a proper purpose under Rule 404(b). The evidence must be
relevant (Rule 401). In employment discrimination cases motive and intent are
relevant. Moreover, the other act evidence must pass the test of conditional
relevance under Rule 104(b). This means essentially that the judge must make a
preponderance of the evidence finding that a reasonable juror could decide that
the employer acted with discriminatory intent in connection with the other
employee. Finally, because the impermissible character inference can still arise
from the evidence, the court must determine that the danger of unfair prejudice
arising from an inference from character does not substantially outweigh the
probative value of the evidence when used for the legitimate purpose (e.g., to
prove motive). See generally Huddleston
v. United States, 485 U.S. 681, 689-90 (1988).
Thus, as stated in Aboubaker v. County
of Washtenaw, 11-13001 (E.D. Mich., Feb. 27, 2014):
A three-step inquiry as
to admissibility of 404(b) evidence is used: 1) whether sufficient evidence
exists that the prior act occurred; 2) whether the "other act" is
admissible for a proper purpose under Rule 404(b); and, 3) determine whether
the "other acts" evidence is more prejudicial than probative under
Rule 403. United States v. Poulsen, 655 F.3d 492, 508 (6th Cir. 2011).
To reduce or eliminate the danger that the jury
will misuse the other act evidence and draw an inference based on character,
the court may give a limiting instruction under Rule 105.
That said, following are employment/Rule
404(b) cases decided in 2014.
Other Act Evidence Held
Inadmissible.
Beard
v. AAA of Michigan, No. 14-1294 (6th
Cir., Nov. 20, 2014).
Race discrimination and retaliation case. At
trial, plaintiff was impeached with records from his former employer containing
negative comments and feedback about his leadership. Plaintiff argued on appeal
that the district court erred in admitting these records because they were
inadmissible under Rule 404(b) and were not disclosed in discovery. Court of
appeals found that (1) the prior employment records were used to impeach plaintiff’s
credibility, a proper purpose under Rule 404(B), and (2) pretrial disclosure
was not required because such disclosure is limited to evidence being admitted
for purposes "other than solely for impeachment." Fed.R.Civ.P.
26(a)(3).
Jackson
v. United Parcel Service, Inc., 13-15168
(11th Cir., Nov. 20, 2014).
Race and gender discrimination and retaliation
case. Plaintiff argued that the trial court should have considered other act
evidence of discrimination and retaliation aimed at her co-workers ("me
too" evidence) as proof of defendant’s
intent to discriminate under Evid. R. 404(b). Court of appeals disagreed
because, although use of "me too" evidence can be admitted (citing Goldsmith
v. Bagby Elevator Co., 513 F.3d 1261, 1285 (11th Cir. 2008), the evidence
pertained to a different decisionmaker.
Crosby
v. Gregory, CV 212-140 (S.D. Ga.,
Sept. 10, 2014).
Plaintiff attempted to demonstrate a pattern of
pregnancy discrimination with past acts of pregnancy discrimination by same
decisionmaker. Although "me too" evidence can be admissible under
Rule 404(b) to prove intent where same supervisor is implicated, "courts
are reluctant to consider prior bad acts in this [employment discrimination]
context where those acts do not relate directly to the plaintiffs."
(Quoting Denney v. City of Albany, 247 F.3d 1172, 1189 (11th Cir. 2001).
Distinctions matter, such that a plaintiff must provide evidentiary details; “a
hodgepodge of unproven allegations of discrimination against others does not
create an inference that [the plaintiff herself] was discriminated against
***.” (Citing Hughes v. City of Lake City, No. 3:12-CV-158, 2014 WL
1293525, at *5 (M.D. Fla. Mar. 28, 2014) (citations omitted); Holifield v.
Reno, 115 F.3d 1555, 1563 (11th Cir. 1997)).
Ford v.
County of Hudson, Civ. 07-5002 (D.N.J.,
May 16, 2014).
Defendants filed a motion in limine to exclude
independent investigative report pertaining to alleged harassment and
retaliation by former director of Department of Corrections and certain
deputies culminating in settlements (including one with plaintiff). Although
report was probative of custom and policy its finding of retaliation by DOC
officials “indirectly” invited the forbidden character inference prohibited by
Rule 404(b). Court excluded report in
its entirety but permitted testimony of report’s existence, its general nature,
and that certain officials retaliated and/or discriminated against certain
employees. Court decided to give limiting instruction that the evidence is
relevant only to liability of defendant but not whether individual defendants
retaliated against plaintiff. Court
stated it would consider admitting limited excerpts from report if shown to be
“particularly relevant.”
El-Hallani
v. Huntington National Bank, 13-cv-12983 (E.D.
Mich., Mar. 13, 2014).
Not an employment case but close enough to analogize.
Arab-American plaintiffs alleged that defendant closed their bank accounts due
to their race, ethnicity, and/or religious affiliation. Granting defendant’s
Civ. R. 12(b)(6) motion to dismiss with leave to refile, the court decided that
use of the "doctrine of chances" evidentiary theory (i.e., serial
unusual events cannot be dismissed as coincidence, which seems akin to
statistical randomness analysis but without the analysis) sometimes applied
under Michigan law cannot replace an Evid. R. 404(b) analysis, and does not
permit plaintiff to avoid stricter federal pleading standard under Bell
Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129
S.Ct. 1937 (2009).
Wagoner
v. J.P. Morgan Chase Bank, N.A.,
1:11-cv-01054 (S.D. Ind., Jan. 15, 2014).
In this pregnancy discrimination case it was the
plaintiff who made the Rule 404(b) argument. She sought to exclude evidence
about her performance in positions other than the one from which she was
terminated, arguing that it was impermissible character evidence. Such evidence
could not be used to prove that because plaintiff may have underperformed in
other positions, she also underperformed in the position from which she was
terminated, as to allow it would violate Rule 404(b). If, however, plaintiff opened the door by
presenting evidence of her satisfactory performance in previous positions, then
defendant could rebut such evidence.
Davis
v. International Paper Co., 997 F.Supp.2d 1225
(M.D. Ala. 2014).
Failure to promote case. Evidence of discrimination
against other employees seeking same position, racial epithets and
noose-hanging inadmissible because no evidence of decisionmaker’s involvement.
Davis
v. Lakeside Motor Co. Inc., 3:10-CV-405 (N.D.
Indiana, Nov. 20, 2014).
Court granted plaintiff’s motion in limine
concerning prior claims for unemployment benefits because evidence would not be
admissible under Rule 404(b).
Tamez
v. Donahoe, 12 C 9411 N.D.
Illinois, Sept. 10, 2014).
Plaintiff failed to provide sufficient
information about co-worker’s EEO retaliation case to make the evidence
relevant and admissible under Federal Rules of Evidence 404(b) and 403.
Other Act Evidence Held Admissible/Discoverable.
Moniz
v. City of Delano, 1:13-cv-00093 (E.D.
Cal., Aug. 5, 2014).
Claim based on sexual harassment retaliation.
Defendant moved to exclude “me too” evidence submitted by plaintiff in
opposition to its motion for summary judgment.
District court overruled objection because evidence of other employees
who suffered sexual harassment by the defendant was probative of the
defendant's motive and, therefore, admissible under Rule 404(b). (Citing Goldsmith
v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1286 (11th Cir. 2008); Heyne
v. Carruso, 69 F.3d 1475, 1481 (9th 1995)).
United
States Equal Employment Opportunity Commission v. Suntrust Bank, 8:12-cv-1325-T-33 (M.D. Fla., May 6, 2014).
"Me too" evidence held admissible
under Rule 404(b) in sexual harassment case to prove defendant's motive,
intent, or plan to discriminate, to Faragher/Ellerth affirmative defense and to
whether defendant’s anti-discrimination and anti-retaliation policies were
effective, where plaintiff’s complaints of harassment and retaliation
overlapped temporally with claims of other plaintiffs and involved same
supervisor. (Citing Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286
(11th Cir. 2008); Phillips v. Smalley Maint. Servs., Inc., 711 F.2d
1524, 1532 (11th Cir. 1983); Walters v. Cent. Fla. Invests. Inc., No.
6:01-cv-1390, 2006 U.S. Dist. LEXIS 21197, at *8 (M.D. Fla. Mar. 28,
2006)("Evidence of McGriff's harassment of other women who worked under
him may be admitted to show plan, motive, opportunity, intent, and pattern.
Defendants' handling of Lawver's complaint also is relevant to the effectiveness
of Defendants' anti-harassment policy and the Defendants' affirmative defense
raised under Faragher/Ellerth.")). Court also rejected defendant’s Rule
403 argument that evidence would result in a "mini-trial" and cause
juror confusion.
Goold
v. Hilton Worldwide, Inc., 1:13-cv-00438 (E.D.
Cal. April 8, 2014).
Plaintiff claimed he was fired after complaining
about sexual harassment suffered by a former employee. On motion to compel
defendants to produce information about complaints made to or about four individuals
and adverse employment actions suffered by the complainants. Court notes that
there is no per se prohibition on the introduction of this type of evidence.
(Citing Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388
(2008)). Admissibility of "me too" evidence depends on many factors,
including how closely related the evidence is to the plaintiff's circumstances
and theory of the case. Evidence of other acts or wrongs generally may be
admitted to demonstrate motive under Rule 404(b). Given that the issue is
whether other employees made discrimination complaints and, as a result,
Defendants retaliated against them, the evidence is discoverable.
King v.
CVS Caremark Corp., 2 F.Supp.3d 1252 (N.D.
Ala. 2014).
Age discrimination (among other claims) case.
Ruling on a motion to strike evidence submitted in opposition to defendant’s
summary judgment motion, the court decides that "me too" evidence of
ageist comments by decisionmaker concerning another employee were relevant to
pretext and admissible under Rule 404(b). (Citing Goldsmith v. Bagby
Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008)).
Aboubaker
v. County of Washtenaw, 11-13001 (E.D. Mich.,
Feb. 27, 2014).
Plaintiff claimed discriminatory failure by current
employer to interview him for a “drain inspector” position. Defendants’ moved
in limine to exclude evidence pertaining to claims previously dismissed in
case, to wit (1) discriminatory demotion/reclassification; and (2) unfair
treatment in previous position. Court cites Evid. R. 404(b) but its application
of rule is implicit. Court does state test for admissibility of Rule 404(b)
evidence that is useful for lawyers practicing in the Sixth Circuit:
Courts have recognized
the use of other crimes or other bad acts permissible as evidence at trial.
United States v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1984). A three-step
inquiry as to admissibility of 404(b) evidence is used: 1) whether sufficient
evidence exists that the prior act occurred; 2) whether the "other
act" is admissible for a proper purpose under Rule 404(b); and, 3)
determine whether the "other acts" evidence is more prejudicial than
probative under Rule 403. United States v. Poulsen, 655 F.3d 492, 508 (6th Cir.
2011).
Step 1 refers to Evid. R. 104(b), the rule on
conditional relevance (in a nutshell, collateral “me-too” evidence must be
supported by evidence that the “me-to” event actually occurred; for more see Huddleston v. United
States,
485 U.S. 681, 689-90 (1988).
With respect to
evidence of the alleged discriminatory demotion/reclassification, the court
decided that if defendants argued at trial that plaintiff did not meet minimum
qualification standards resulting from his demotion/reclassification, then
evidence regarding the reason for his downward reclassification is admissible
(presumably under Evid. R. 404(b)). Likewise, evidence of unfair treatment in
previous position is admissible (again, presumably under Rule 404(b)) if
decisionmakers sought or reviewed information about plaintiff emanating from
previous supervisors allegedly responsible for unfair treatment (including
evaluations of plaintiff and other like documents in plaintiff’s personnel
file). Court appears to connect Rule 404(b) to the “cat’s paw” theory of
liability, although not explicitly stated.
