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excluding testimony of EEOC investigator on the basis that it was cumulative
Summary of this case from Cambra v. Restaurant SchoolOpinion
Civil Action No. 00-1756 Section "N"(2)
November 13, 2001
APPEARANCES: Christian Lewis, representing plaintiff; Lillian Thornton, representing movant; Larry Canada and Doris Bobadilla, representing defendant
HEARING ON MOTION
MOTION: EEOC's Motion to Quash Subpoenas and for a Protective Order
ORDERED:
XXX: GRANTED. The investigative report and factual findings of the Equal Employment Opportunity Commission ("EEOC") may be admitted into evidence under the hearsay exception for reports of public agencies, Fed.R.Civ.P. 803(8)(c), although the court retains the discretion to exclude such evidence under Fed.R.Evid. 403. Lindsey v. Prive Corp., 161 F.3d 886, 894 (5th Cir. 1998); EEOC v. Manville Sales Corp., 27 F.3d 1089, 1095 (5th Cir. 1994); Cortes v. Maxus Expl. Co., 977 F.2d 195, 201 (5th Cir. 1992).
However, the entire investigative file of the EEOC is 1121 admissible because it does not fall within Fed.R.Civ.P. 803(8)(c). McClure v. Mexia Indep. Sch. Dist., 750 F.2d 396, 401 (5th Cir. 1985). "Appellate courts have generally upheld to exclusion of EEOC investigatory files, which often represent a mish-mash of self serving and hearsay statements and records. . . . [J]ustice requires that the testimony of to witnesses be given in open court, under oath, and subject to cross-examination." Waller v. Thames, 852 F.2d 569, 1988 WL 76532, at 2 (6th Cir. July 26, 1988) (quotation omitted) (citing Olitsky v. Spencer Gifts, Inc., 842 F.2d 123 (5th Cir. 1988); Tulloss v. Near No. Montessori Sch., 776 F.2d 150, 154 (7th Cir. 1985); Gillen v. Federal Paper Co., 479 F.2d 97, 99 (2d Cir. 1973)).
Further, the Fifth Circuit has held that, once the investigative report and findings have been admitted into evidence, the testimony of an EEOC investigator may be excluded as cumulative and prejudicial under Fed.R.Civ.P. 403. Dickerson v. Metropolitan Dade County, 659 F.2d 574, 579 (5th Cir. Unit B 1981). Trial of plaintiffs employment discrimination claims is de novo and the jury in this case must decide, independent of the EEOC's determination and based on the evidence before it, whether the alleged discrimination occurred. Manvile, 27 F.3d at 1095; Dickerson, 659 F.2d at 579. Neither the entire contents of the EEOC's file nor the testimony of its investigator, Robin Mayoral, will aid the jury in that process. I find that such testimony would be cumulative and should be excluded under Fed.R.Evid. 403 because its prejudicial effect outweighs its probative value.
Further, the contents of the EEOC's file are protected by the common-law "deliberative process" or "official information" privilege, as explained and delineated in Branch v. Phillips Petroleum Co., 638 F.2d 873 (5th Cir. Unit A 1981). This privilege "shield[s] from disclosure those documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Id. at 881 (citations and quotation omitted); accord National Labor Relations Bd. v. Sears. Roebuck Co., 421 U.S. 132, 150-52 (1975). Thus, to the extent that documents in the file "are internal working papers m which opinions are expressed, policies are formulated, and actions are recommended, they are privileged." Branch, 638 F.2d at 882. The testimony of the EEOC's District Director, Patricia T.F. Bivins, and Investigator Mayoral concerning those documents is similarly privileged.
Accordingly, the subpoenas issued to Mayoral and Bivins are quashed.