Free Motion in Limine - District Court of Arizona - Arizona

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David C. Larkin #006644 DAVID C. LARKIN, P.C. 4645 South Lakeshore Drive, Suite 6 Tempe, Arizona 85282 Telephone (480) 491-2900 Fax (480) 755-4825 Attorney for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Lewis Silverman, Cynthia Silverman, Plaintiffs, vs. Albertsons, Inc., a corporation, Debra A. Collette, Defendants. Plaintiff Lewis Silverman moves the Court in limine to exclude evidence regarding the EEOC disposition of Mr. Silverman's charge of discrimination. Defendant Albertsons Answer, paragraph 9, states in part: "9. . . . The EEOC dismissed the charge upon a finding of no probable cause. . . ." This statement is false. The EEOC Dismissal and Notice of Rights, a copy of which is attached hereto, has a box checked for the following: "The EEOC issues the following determination: Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge. This is not a finding on the merits. The accompanying August 27, 2003 EEOC cover letter which is also attached hereto, regarding the dismissal of the charge states expressly that "This dismissal is not a statement of the merits of your case." Further, the EEOC Dismissal and Notice of Rights and the statement of disposition and the cover letter are not relevant and would be prejudicial because the extent of the No. CIV-O3-2268-PHX-NVW PLAINTIFF'S MOTION IN LIMINE RE: EEOC DISPOSITION OF SILVERMAN'S CHARGE OF DISCRIMINATION

Case 2:03-cv-02268-NVW

Document 87

Filed 08/26/2005

Page 1 of 3

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investigation is not divulged, nor are the standards by which this determination was made. This exhibit and any mention of this determination should also be precluded as not relevant and prejudicial. The August 27, 2003 EEOC Dismissal and Notice of Rights and cover letter regarding Dismissal of Claim are not relevant and would be unfairly prejudicial if they were admitted. In Beachy v. Boise Cascade Corporation, 191 F.3d 1010, 1015 (9th Cir. 1999), the Ninth Circuit held as follows: We now hold that an agency's determination that insufficient facts exist to continue an investigation is not per se admissible in the same manner as an agency's determination of probable cause. Whereas the latter type of determination indicates only that there is probable cause to believe a violation has occurred, the former type of determination in effect constitutes a finding of no probable cause and terminates the agency's inquiry. In this sense, a determination of insufficient facts is a final ruling by the agency. There is a much greater risk of unfair prejudice involved in introducing a final agency ruling as opposed to a probable cause determination, because a jury might find it difficult to evaluate independently evidence of discrimination after being informed of the investigating agency's final results. See Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1500 (9th Cir.1986). (Emphasis added) Accordingly, the Court should exclude in limine any evidence of the EEOC disposition of Mr. Silverman's charge of discrimination, including its investigation and the results of its investigation. Plaintiff proposes the following language for the order granting plaintiff's motion in limine: Plaintiff Lewis Silverman's motion in limine regarding EEOC disposition of his discrimination charge is granted and it is ORDERED, that no evidence shall be offered, whether testimony or documentary, nor shall any witness examination questions be asked intended

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to obtain testimony, nor shall any statements of counsel be made, regarding the EEOC disposition of plaintiff Lewis Silverman's charge of discrimination, including but not limited to its investigation and the results of its investigation. Respectfully submitted this 26th day of August, 2005. DAVID C. LARKIN, P.C. By: s/ David C. Larkin David C. Larkin Attorney for Plaintiffs

Electronic notice and service of documents provided to: Jeffrey L. Lowry, Esq. Rodey, Dickason, Sloan, Akin & Robb, P.A. 201 Third Street NW, Suite 2200 Albuquerque, New Mexico 87102 Attorneys for Defendant /s David C. Larkin

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