Opinion
CIVIL ACTION NO. 01-1560, c/w 02-3054 SECTION "C" (4)
June 1, 2004
Before the Court is Defendant's Motion in Limine. (Rec. Doc. 73). Defendant seeks to prevent Plaintiff from introducing into evidence a Conciliation Agreement entered into by the Equal Employment Opportunity Commission and Defendant. (Civil Action No. 01-191, Rec. Doc. 38, exhibit I). Plaintiff opposes Defendant's Motion.
After a thorough review of the law, the record, the Motion, and the memoranda filed in support thereof and in opposition thereto, Defendant's Motion in Limine is DENIED.
After Plaintiff originally complained to the EEOC of Defendant's behavior, the EEOC and Defendant entered into a Conciliation Agreement wherein Defendant agreed it would not retaliate against Plaintiff for Plaintiffs complaint to the EEOC. After Plaintiff brought her first lawsuit, Defendant fired her allegedly in retaliation for the lawsuit. Plaintiff then brought a second lawsuit for the alleged retaliation and the alleged breach of the conciliation agreement, of which Plaintiff claims to be a third party beneficiary. Defendant now moves to exclude from evidence the conciliation agreement arguing that 42 U.S.C. § 2000e-5 bars its admission. 42 U.S.C. § 2000e-5 provides in pertinent part:
If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned.42 U.S.C. § 2000e-5(b) (emphasis added).
The sole question before this Court is whether the Conciliation Agreement is something "said or done during and as part of such informal endeavors [of conference, conciliation, and persuasion]." The Court concludes that it is not.
The Conciliation Agreement is not something said or done during the conciliation process. Rather, it is the goal towards which all other conciliatory efforts were aimed, the end to which things were said or done. While it may be the culmination of a successful conciliation process, it is not itself part of that process.
Every case Defendant cites for the proposition that the Conciliation Agreement is inadmissible addresses not whether the agreement, if one was actually reached, is admissible but whether those decisions and deliberations leading up to the agreement are admissible. Olitsky v. Spencer Gifts, Inc., 842 F.2d 123 (5th Cir. 1988) (holding that admission of an entire EEOC file, even where a conciliation agreement had not been reached, was error and such error was not harmless); Branch v. Phillips Petroleum Co., 638 F.2d 873 (5th Cir. Unit A 1981); Jimenez v. Paw-Paw's Camper City, Inc., 2001 WL 1445027 (E.D. La. Nov. 14, 2001). Accordingly, those cases so cited are distinguishable on those grounds.
In arguing that the Conciliation Agreement should be excluded, Plaintiff compared the Conciliation Agreement to those materials protected by the common law "deliberative process" and/or the "official information privilege". This privilege shields from disclosure those documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated. Branch v. Phillips Petroleum Co., 638 F.2d 873, 881 (5th Cir. Unit A 1981). It does not, however, shield from disclosure the final governmental decision or policy.
Similarly to the deliberative process privilege, 42 U.S.C. § 2000e-5 does require the exclusion from evidence the opinions, recommendations, and deliberations but it does not require the exclusion from evidence of the result of those opinions, recommendations, and deliberations. To hold otherwise would create many awkward situations in which a court, while it might entertain an action for breach of a conciliation agreement, could not admit the conciliation agreement into evidence. No matter how egregious the behavior constituting the breach, a plaintiff would have a difficult, if not impossible, time convincing the trier of fact that he had a contract with the party in breach. In effect, the conciliation agreement would be rendered unenforceable. This is obviously not the intent of those courts allowing plaintiffs to bring an action for breach of the conciliation agreement and then frequently citing to the conciliation agreement in their opinions. EEOC v. Safeway Stores, Inc., 714 F.2d 567 (5th Cir. 1983). See also Candelaria v. EG G Energy Measurements, Inc., 33 F.3d 1259 (10th Cir. 1994); McKeever v. Atlantic Spring Manuf. Co., Inc., 502 F. Supp. 684 (E.D. Pa. 1980); Johnson v. Housing Authority of City of McAlester, 887 F. Supp. 1440 (E.D. Okla. 1995).
It is true that this Court previously ruled that the conciliation agreement was inadmissible. Johnson v. Medical Center of Louisiana at New Orleans, 2002 WL 31819124 (E.D. La. Dec. 11, 2002), rev'd in part, 351 F.3d 616 (5th Cir. 2003). The Court, at that time, had not yet consolidated Plaintiffs claim for breach of the conciliation agreement. At that point in the litigation, the Court's ruling was implicitly based on the tangentially relevant and overly prejudicial nature of the document, in which the EEOC states it has found reasonable cause to believe a violation of Title VII occurred. Because Plaintiffs retaliation claim has been consolidated with her initial claims, the document is no longer overly prejudicial and is, as afore stated, quite relevant. Accordingly, the Court's earlier concerns have been cured.
Therefore, Defendant's Motion in Limine is DENIED.