Free Response to Motion - District Court of Arizona - Arizona

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Jeffrey L. Lowry, SBN 8293 (New Mexico ­ Pro Hac Vice) Aaron C. Viets, SBN 12164 (New Mexico ­ Pro Hac Vice) Rodey, Dickason, Sloan, Akin & Robb, P.A. 201 Third St., NW, Suite 2200 Albuquerque, New Mexico 87102 Telephone: (505) 765-5900 Paul A. Conant, SBN 012667 Thomson Conant, PLC Northern Trust Bank Tower, Suite 925 2398 East Camelback Road Phoenix, AZ 85016 Telephone: (602) 508-9010 Attorneys for Defendants Albertsons, Inc. and Debra A. Collette

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Lewis Silverman, Cynthia Silverman, Plaintiffs, vs. Albertson's, Inc., a corporation, and Debra A. Collette, Defendants. CIV-03-2268 PHX/NVW

DEFENDANT ALBERTSONS, INC.'S RESPONSE TO PLAINTIFF'S MOTION IN LIMINE RE: EEOC DISPOSITION OF SILVERMAN'S CHARGE OF DISCRIMINATION

Plaintiff asks the Court to exclude evidence that the Equal Employment Opportunity Commission (EEOC) dismissed his charge of discrimination against Albertsons, Inc. (Albertsons). He argues that such evidence is not relevant and is unfairly prejudicial. Plaintiff is incorrect. Evidence that the EEOC dismissed Plaintiff's

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discrimination charge is relevant, and its probative value is not outweighed by the danger of unfair prejudice. I. The EEOC's determination is relevant. There can be little question that the EEOC's dismissal of Plaintiff's charge is relevant. The dismissal relates directly to the very matter before this Court, namely, whether Plaintiff was a victim of religious discrimination. In any event, the question of relevance in this context has been settled for some time. See Plummer v. Western Int'l Hotels, Co., 656 F.2d 502, 504 (9th Cir. 1981) (EEOC "report" is "highly probative"); Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1500 (9th Cir. 1986) (EEOC probable cause determination is "highly probative"). II. The EEOC's determination is not unfairly prejudicial. There is an important distinction in the law between preliminary agency findings and conclusive agency determinations. Both are weighed under Rule 403. See, e.g., Beachy v. Boise Cascade Corp., 191 F.3d 1010, 1015 (9th Cir. 1999) (applying Rule 403 to final agency determination based on insufficient evidence); Heyne v. Caruso, 69 F.3d 1475, 1483 (9th Cir. 1995) (applying Rule 403's balancing test to probable cause determination, which is not "a final ruling"). Conclusive agency determinations, however, are more properly excluded as prejudicial. The Ninth Circuit has recognized that when the jury is informed that an investigative agency has examined the evidence and expressed a conclusion on liability, the jury "may find it difficult" to evaluate the evidence independently. Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1500 (9th Cir. 1986); see also Amantea Cabrera v. Potter, 279 F.3d 746, 749 (9th Cir. 2002) (finding no error in trial court's refusal to admit administrative law judge's decision and order).
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A.

The EEOC's decision in this case is preliminary and not a statement of the final merits.

This case does not involve a conclusive determination by any agency. This case instead involves a preliminary EEOC decision. As Plaintiff points out, the EEOC's dismissal and notice of rights is, by its express terms, not a conclusive agency statement about the merits of his case. According to the documents the EEOC sent to Plaintiff, the EEOC conducted "a preliminary review" of his religious discrimination allegation. (See PS 001013, attached to Pl's Mot. Limine Re: EEOC Disposition of Silverman's Charge of Discrimination.) The EEOC believed the charge should be dismissed following the preliminary review, but it expressly stated that the "dismissal is not a statement on the merits of" the case. (Id.) The EEOC's decision is therefore fundamentally different from the administrative decisions in Gilchrist and Amantea Cabrera, and even the one in Beachy. Beachy involved a state agency "Notice of Dismissal" that apparently lacked an indication that it was not a final, conclusive agency determination as to whether a violation of law had occurred. Beachy, 191 F.3d at 1015. B. Preliminary agency decisions are not unfairly prejudicial.

The only type of preliminary agency decisions the Ninth Circuit has examined are "probable cause" determinations, and the Ninth Circuit has readily found them admissible. See, e.g., Heyne, 69 F.3d at 1483 (reversible error for the trial court to exclude probable cause finding); Plummer, 656 F.2d at 505 (same); see also Beachy, 191 F.3d at 1015 (probable cause findings are per se admissible). This is why Plaintiff is so eager to distinguish the decision in this case from a probable cause determination, but really there is no material difference. The only distinction between a probable cause

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determination and the agency decision in this case is the fact that the former favors plaintiffs and the latter does not, which of course is not a principled reason to treat them differently. In both instances, the decisions are preliminary and thus less likely to be unfairly prejudicial than final decisions. See Gilchrist, 803 F.2d at 1500 ("potential prejudicial impact of" of an agency's "suggestion" regarding whether a violation of law has occurred, such as with a probable cause finding, "does not outweigh the highly probative nature" of the determination). In both instances, the risk that the jury will substitute its own judgment for that of the agency is necessarily reduced if not eliminated because the agency has expressly made only a preliminary decision, not one on the final merits. Id. To the extent Plaintiff suggests that the jury in this case will not be able to read the documentary evidence or comprehend the expressly preliminary nature of the EEOC investigation, the Court should dismiss his position out of hand. See United States v. Johnson, 319 U.S. 503, 519 (1943) (rejecting assumption that "juries are too stupid to see the drift of evidence"). In terms of Rule 403, the probative value of evidence that the EEOC dismissed Plaintiff's charge after a preliminary assessment is not substantially outweighed by unfair prejudice. "[M]erely because [the EEOC's decision is] harmful" to Plaintiff does not mean that it is unfairly prejudicial. Plummer, 656 F.2d at 504. Conclusion It is highly relevant that the EEOC dismissed Plaintiff's religious discrimination charge after a preliminary review. Plaintiff will not be unfairly prejudiced if the jury learns this fact. The jury will be able to read the supporting documents. It will

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understand that the EEOC merely made a preliminary determination and that it did not

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express a position on the final merits of this lawsuit. Defendant therefore respectfully requests that the Court deny Plaintiff's motion in limine. Dated this 8th day of September, 2005. Respectfully submitted, RODEY DICKASON SLOAN AKIN & ROBB, P.A.

/s/ Aaron C. Viets Jeffrey L. Lowry Aaron C. Viets 201 Third St., Suite 2200 Albuquerque, New Mexico 87102 Attorneys for Defendants CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing Defendant Albertsons, Inc.'s Response to Plaintiff's Motion in Limine Re: EEOC Disposition of Silverman's Charge of Discrimination was sent electronically on this 8th day of September, 2005 to all counsel of record.

By

By:

/s/ Aaron C. Viets Aaron C. Viets

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