United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE UNITED STATES DISTRICT COURT
the Court are the Motion in Limine to Exclude and/or
Limit Testimony and Evidence (Doc. 27) filed by
Defendant and the Motion in Limine to Exclude Certain
Defendant Exhibits (Doc. 28) filed by Plaintiff.
Defendant, in its Motion, seeks to preclude Plaintiff from
introducing at trial a "Determination" that was
issued by the Louisiana Commission on Human Rights.
Plaintiff, in her Motion, seeks to preclude Defendant from
introducing at trial a document containing the civil service
test scores for all the candidates who were otherwise
qualified for the position of "Sergeant" within
Defendant's organizational structure. Defendant filed a
memorandum in opposition to Plaintiffs Motion. (See Doc. 30).
For the reasons explained herein, Defendant's
Motion in Limine to Exclude and/or Limit Testimony
and Evidence (Doc. 27) is GRANTED,
and Plaintiffs Motion in Limine to Exclude Certain
Defendant Exhibits (Doc. 28) is DENIED.
seeks to preclude Plaintiff from introducing at trial a
Determination that was issued by the Louisiana Commission on
Human Rights ("LCHR"), in which the LCHR allegedly
made the determination that Defendant violated Title VII of
the Civil Rights Act of 1964, 42 U.S.C. ch. 21, subch. VI, by
engaging in the conduct that gave rise to this lawsuit. The
Determination recounts - briefly and in general terms -
statements made by persons in interviews conducted by the
LCHR and ultimately reaches the conclusion that "the
evidence obtained during the investigation indicates that
[Defendant] improperly used sex as a motivating factor to
deny [Plaintiff] a promotion [and] a subsequent position for
which she interviewed." (Doc. 27-2 at pp. 2-3).
Rule of Evidence 403 permits the Court to "exclude
relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting
cumulative evidence." Fed.R.Evid. 403. The United States
Court of Appeals for the Fifth Circuit has noted that a
"Letter of Violation" issued by the Equal
Employment Opportunity Commission - which is comprised of
information substantially similar in nature to that found in
the Determination issued by the LCHR in this case - may be
excludable "because it 'suggests that[, ]
preliminarily[, ] there is reason to believe that a violation
has taken place' and therefore results in unfair
prejudice to [a] defendant."' EEOC v. Manville
Sales Corp., 27 F.3d 1089, 1095 (5th Cir. 1994) (quoting
Gilchrist v. Jim Slemons Imps., Inc., 803
F.2d 1488, 1500 (9th Cir. 1986)).
probative value of the Determination is substantially
outweighed by the danger of unfair prejudice to the
Defendant. The jury in this case will be tasked with
determining whether Defendant failed to promote or hire
Plaintiff because of her sex. Through the Determination, the
LCHR already has reached the conclusion that Defendant indeed
"improperly used sex as a motivating factor to deny
[Plaintiff] a promotion [and] a subsequent position for which
she interviewed, " essentially suggesting that Defendant
violated Title VII. (Id.). The introduction of the
Determination, therefore, would unfairly prejudice the jury:
the risk that the jury would give undue weight to the
conclusion of the LCHR that Defendant utilized Plaintiffs sex
as a basis for adverse employment actions - and that the jury
thereby would adopt that conclusion as their own due to the
imprimatur of the State of Louisiana -is substantial. See
Manville Sales Corp., 27 F.3d at 1095. The probative
value of the evidence - which is low, considering that the
report merely recounts general details that the LCHR gleaned
through its interviews of persons who will be called by the
parties to testify at trial - is "substantially
outweighed" by this unfair prejudice, and the
Determination therefore shall be excluded from evidence.
seeks to preclude Defendant from introducing at trial a
document containing the civil service test scores for all the
candidates who were otherwise qualified for the position of
"Sergeant" within Defendant's organizational
structure ("civil service test
scores"). Plaintiff argues that the civil service
test scores were not provided to Plaintiff by Defendant
during the discovery period and that, therefore, Defendant
should be precluded from introducing the civil service test
scores at trial.
Rule of Civil Procedure 26(a) requires each party to provide
to the other "a copy ... of all documents,
electronically stored information, and tangible things that
the disclosing party has in its possession, custody, or
control and may use to support its claims or defenses."
Fed.R.Civ.P. 26(a)(1)(A)(ii). "If a party fails to
provide information ... as required by Rule 26(a) . . ., the
party is not allowed to use that information ... to supply
evidence ... at a trial, unless the failure was substantially
justified or is harmless." Fed.R.Civ.P. 37(c)(1).
"In evaluating whether a violation of [R]ule 26 is
harmless, " the Fifth Circuit has instructed courts to
consider four factors: "(1) the importance of the
evidence [, ] (2) the prejudice to the opposing party of
including the evidence[, ] (3) the possibility of curing such
prejudice by granting a continuance[, ] and (4) the
explanation for the party's failure to disclose."
Tex. A&M Research Found, v. Magna Tramp., Inc.,
338 F.3d 394, 402 (5th Cir. 2003).
violation of Rule 26, even assuming that a violation
occurred, is harmless. Counsel for Defendant represented to
the Court that he has an "honest and good faith belief
that Defendant did in fact produce" the civil service
test scores to Plaintiff "on February 10, 2017."
(Doc. 30 at p. 2). Any failure to disclose the civil service
test scores prior to the preparation of the Joint Pretrial
Order, therefore, appears to be inadvertent. Further, the
civil service test scores nonetheless were submitted to
Plaintiff on July 20, 2017, and Plaintiff therefore has
enjoyed five weeks to investigate this document for
authenticity and accuracy, (Id. at p. 3).
Additionally, the civil service test scores demonstrate that
Plaintiff obtained the highest score on the relevant exam
among all qualified applicants, and therefore the civil
service test scores may not be prejudicial to Plaintiff
whatsoever. (Id. at pp. 2-3). Therefore, considering
the factors espoused by the Fifth Circuit in Texas
A&M Research Foundation v. Magna Transportation,
Inc., 338 F.3d 394 (5th Cir. 2003), the Court finds that
Defendant's alleged violation of Rule 26 was harmless and
that the civil service test scores thus shall not be
IT IS ORDERED that the Motion in
Limine to Exclude and/or Limit Testimony and Evidence (Doc.
27) filed by Defendant is GRANTED.
The "Determination" issued by the Louisiana
Commission on Human Rights regarding Defendant's conduct
that gave rise to this action shall be
EXCLUDED from evidence at trial.
IS FURTHER ORDERED that the Motion in Limine
to Exclude Certain Defendant Exhibits (Doc. ...