Free Motion in Limine - District Court of Delaware - Delaware

Case 1:06-cv-00725-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE KENNETH S. MITCHELL, Plaintiff, v. WACHOVIA CORPORATION, t/a WACHOVIA SECURITIES, WACHOVIA SECURITIES, L.L.C., WACHOVIA SERVICES, INC., WACHOVIA BANK OF DEL, N.A., TODD D. GAUTHIER, CAROLYN J. BEAM, and DOROTHY A. DIFEBO, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. 06-725 (GMS) JURY TRIAL DEMANDED

PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION IN LIMINE TO BAR EVIDENCE OF JAMES FINNEY'S CHARGE OF DISCRIMINATION

BIGGS AND BATTAGLIA Victor F. Battaglia, Sr. (Del. Bar #156) Steven F. Mones (Del. Bar #2611) 921 N. Orange Street P.O. Box 1489 Wilmington, DE 19899-1489 Tel: 302-655-9677 Fax: 302-655-7924 [email protected] Attorneys for Plaintiff April 10, 2008

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Plaintiff Kenneth S. Mitchell responds as follows to defendants' motion in limine seeking to bar evidence of a Charge of Discrimination against Wachovia filed by a former employee: Plaintiff, a Financial Advisor employed by the Wachovia defendants, is pursuing claims of race and gender discrimination, and other related claims, under federal and state law. Among the witnesses plaintiff identified for trial is James Finney, a former Wachovia employee who filed a Charge of Discrimination against Wachovia alleging racial and gender discrimination. Plaintiff submits that evidence of Mr. Finney's charge is relevant, probative, and should be admitted. Mr. Finney, an African-American male, worked as a teller at the Wachovia Prices Corner branch from March to December 2006. Affidavit of James K. Finney (copy attached as Exhibit1). Mr. Finney was, during that time period, the only African-American male, and indeed, the only male, in the branch. Finney Affidavit. Plaintiff and Mr. Finney worked at Prices Corner during different time periods, but they were the only African-American males in the branch during the time they worked there. Mr. Finney alleged that he was harassed and treated poorly and disrespectfully by Wachovia white female employees due to his race or gender. Finney Affidavit. In general, evidence of an employer's conduct towards other employees is relevant and admissible. Ansell v. Green Acres Contracting Co., 347 F.3d 515, 521 (3d Cir. 2003). This general rule applies in this case as, contrary to defendants' assertions, there are common grounds between the claims of plaintiff and Mr. Finney. A key element of commonality between the allegations of plaintiff and Mr. Finney, aside from them being the only African-American males in the branch, is that the Financial Center Manager ("FCM" or "branch manager") was defendant Dorothy A. DiFebo. Mr. Mitchell has

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leveled detailed allegations of wrongful conduct against Ms. DiFebo in this action. Mr. Finney has asserted that Ms. DiFebo did nothing to stop the harassment directed at him despite his protests up the branch chain of command. Finney Affidavit. Ms. DiFebo was in the same chain of command as Mr. Finney (on the "bank" side of Wachovia), and was the ultimate decisionmaker as to the running of the Prices Corner branch. See, e.g., Deposition of Dorothy A. DiFebo at 34:19-35:20 (excerpts attached as Exhibit-2) (bank tellers reported to a Teller Manager who reported to Ms. DiFebo). Defendants' reliance on this Court's evidentiary decision in Keller v. City of Wilmington, 2006 WL 839406, mem. op. at 2 (D.Del. Mar. 30, 2006) (copy attached as Exhibit-3), is, therefore, misplaced as the Court noted there that evidence of other claims of discrimination would have been admissible had the others been exposed to the same decisionmaker. Despite being the branch manager, and hence responsible for all business conducted at the branch, Ms. DiFebo testified that she did not even know the exact nature of Mr. Finney's Charge of Discrimination despite it having been made less than one year before her deposition. Ms. DiFebo testified, under oath, that she believed Mr. Finney had filed a claim against Wachovia for unemployment compensation, not discrimination. DiFebo Dep. 81:25-83-1.

Plaintiff respectfully submits that the jury must weigh Ms. DiFebo's credibility in this case, and Mr. Finney's testimony, and the Charge of Discrimination itself, bear on that issue. The Third Circuit has ruled that "evidence as to [a supervisor's] attitude toward other older employees and the manner in which he treated them was relevant" to a discrimination analysis. Abrams v. Lightolier, Inc., 50 F.3d 1204, 1214-1215 (3d Cir. 1995). If one substitutes "African-American" for "older," and "she" for "he," one would have an accurate description of

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the hostile atmosphere towards African-Americans created or fostered by Ms. DiFebo within her branch. Defendants argue that Mr. Finney worked for a different Wachovia entity than did plaintiff. As pointed out in detail in plaintiff's brief opposing defendants' motion for summary judgment, a Wachovia "bank" (financial center) served as the base of operations for several Wachovia entities possessing different appellations. Operation of the bank itself falls under the "Wachovia Bank" name, while the securities and brokerage activities fall under the "Wachovia Securities" name. A Financial Specialist nominally employed by "Wachovia Bank" may also act under a "Wachovia Securities" securities license when engaging in trades. As a result, the specific entity which provided Mr. Finney with a paycheck is irrelevant to the issue of whether he suffered discriminatory conduct under the Wachovia roof managed by Ms. DiFebo. Under Rule 402 of the Federal Rules of Evidence, "All relevant evidence is admissible" unless otherwise excluded by specific rule or authority. Evidence pertaining to the only two African-American males in a white female-dominated office is directly relevant to plaintiff's claims. In particular, both Mr. Finney and plaintiff were subjected to the discriminatory conduct while they were each the only African-American male in the branch. This evidence is specific, probative, and relevant. Defendants appear to be equating the situation involving Mr. Finney with that in W.V. Realty, Inc. v. Northern Ins. Co., 334 F.3d 306 (3d Cir. 2003). There, in a bad faith insurance claim case, plaintiff was allowed to pursue a line of questioning concerning the existence of hundreds of bad faith lawsuits against the insurer. No specifics of the hundreds of cases were mentioned, and there was a legitimate concern that the jury would automatically equate the case at bar with the hundreds of other cases about which no other information had been presented. By

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contrast, in this case, we are dealing with one other individual, having one specific claim, that relates to one office in which both he and plaintiff worked, and which one office was managed by a defendant. There is no likelihood of misleading or confusing the jury in this case. Defendants' contention that Mr. Finney's testimony would lead to a "mini-trial" is unfounded given the narrow scope of his testimony. Moreover, any evidence defendants would need is already in their possession as they previously investigated and defended his claim. The extra time involved is insignificant compared to the probative value of the testimony concerning the overtly hostile and discriminatory atmosphere in the Prices Corner branch towards AfricanAmerican males. Lastly, defendants object to the admissibility of Mr. Finney's charge of discrimination on the grounds that it has not been authenticated. That is simply incorrect. The Charge of

Discrimination was authenticated in, and a copy attached to, Mr. Finney's affidavit which was included as Exhibit-13 of the Appendix to Plaintiff's Answering Brief in Opposition to Defendants' Motion for Summary Judgment (another copy attached hereto as Exhibit-1). Therefore, plaintiff respectfully asks the Court to deny defendants' motion to bar testimony of, and evidence concerning, witness James K. Finney. BIGGS AND BATTAGLIA /s/ Steven F. Mones Steven F. Mones (Del. Bar #2611) 921 N. Orange Street P.O. Box 1489 Wilmington, DE 19899-1489 Tel: 302-655-9677 Fax: 302-655-7924 [email protected] Attorneys for Plaintiff Kenneth S. Mitchell

April 10, 2008

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