Opinion
Civil Action No. 00-2355, Section "C" (4)
December 9, 2002
MINUTE ENTRY
Before the Court is Plaintiff's Motion in Limine to Exclude Evidence of Plaintiff's Absences Prior to May 5, 1998, and Evidence or the Arbitration Between Murphy and Pichon's Union. For the following reasons the motion is DENIED IN PART and GRANTED IN PART.
1. Plaintiff's Absences Prior to May 5, 1998
Plaintiff contends that under Fed.R.Evid. 401, "the only attendance-related facts that are of consequence to the determination of this case are those related to Pichon's attendance between May 5, 1998 and her termination on April 15, 1999." (Pl. Mot., p. 5). Alternatively, Plaintiff argues that if the Court finds the prior absences to be relevant, they should be excluded under Rule 403.
Defendant contends that Pichon's prior absences are relevant, because Murphy considered Pichon's entire history of absenteeism in making the termination an decision, which resulted in this law suit. Further, Defendant argues than such evidence must be admitted, "because it bears directly on an essential element of Pichon's damages claim," namely her claim for liquidated damages under the FMLA, alleging willful violation of the statute. Defendant submits that it must be able to present evidence of Pichon's history of absenteeism and the company a good-faith attempt to apply its Absentee Control Program ("APC") and the Family Medical Leave Act ("FMLA") correctly and fairly.
Because Plaintiff's claims involve broader issues than simply whether her absences between May 5, 1998, and April 15, 1999, were covered by the FMLA; evidence of the prior absences is relevant. Further, "[e]vidence is not prejudicial merely because admitting it may sway the jury against a party . . . `prejudicial' cannot be equated with `harmful' in all cases; rather, it connotes `harmful' plus `non-probative.'" Graef v. Chemical Leaman Corp., 106 F.3d 112, 118 (5th Cir. 1997), quoting Smith v. Universal Services, Inc., 454 F.2d 154, 157 (5th Cir. 1972).
Here, Pichon's history of absenteeism is probative of Murphy's implementation of the ABC and FMLA. To exclude such evidence would prevent Murphy from defending against Plaintiff's claim of willful violation of the FMLA. Accordingly, evidence of Plaintiff's absences prior to May 5, 1998 is admissible.
2. Arbitration Between Murphy and Pichon's Union
Following termination of employment, Plaintiff filed a union grievance resulting in arbitration. The arbitral decision found that Pichon was terminated for just cause. Defendant now seeks to introduce into evidence the arbitral decision in its entirety. Plaintiff contends that the arbitral decision is (1) not relevant and/or unduly prejudicial under Rules 402 and 403; and (2) inadmissible hearsay under Rule 802, which is being offered to prove Pichon's history of absenteeism prior to May 5, 1998.
Admissibility of an arbitral decision is within the sound discretion of the district court. See Graef, 106 F.3d at 116 (5th Cir. 1997) citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 n. 21, 94 S.Ct. 1011, 1025 n. 21, 39 L.Ed.2d 147 (1974); see, also Baker v. Union Pac. R.R., 145 F. Supp.2d 837, 843 (S.D. Tex. 2001) (applying Graef and admitting arbitral decision in employment dispute where plaintiff alleged employer discriminated and retaliated based on race in violation of Title VII). In Graef, the Fifth Circuit identified sever factors to assist in resolving such evidentiary questions, including: "(1) the degree of procedural fairness in the arbitral forum, (2) the adequacy of the record, and (3) the competence of the arbitrator." Id., 106 F.3d at 117, citing Gardner-Denver, 415 U.S. at 60 n. 21, 94 S.Ct. at 1025 n. 21.
Plaintiff argues that the only issue in this case is whether Murphy violated the FMLA by failing to excuse one or more post-May 5, 1998 absences. First, Plaintiff argues the arbitral decision is not relevant, because it concerns the broader issue of whether Murphy had just cause to fire Pichon and specifically refers to Pichon's history of absenteeism. Again, Plaintiff's narrow view that this is her " only claim" is misplaced. As discussed above, Plaintiff's prior absences and history of absenteeism are relevant. Likewise, as discussed above such evidence is not "unduly prejudicial."
Second, Plaintiff contends that introduction of the arbitral decision will confuse or mislead the jury. Plaintiff submits that the jury will likely give undue weight to the arbiter's findings. Specifically, Plaintiff points out the different standard of proof involved in the just cause determination at arbitration than that required at trial under the FMLA. Although Plaintiff's argument has some merit, any possible confusion of the jury can be cured prophylactically by the Court's charge to the jury.
Third, Plaintiff contends that the arbitral decision is inadmissible hearsay under Rule 802. Defendant counters that the arbitral decision falls within the exceptions to the hearsay rule outlined in Rules 803(6), Records of Regularly Conducted Activity and 803(8)(C), Public Records and Reports. "The Federal Rules of Evidence start from the premise that [arbitral decisions] are generally admissible `unless the sources of information or other circumstances indicate lack of trustworthiness.'" See Graef, 106 F.3d at 118, quoting Fed. P. Evid. 803(6), (8)(C). Moreover "the burden of establishing the untrustworthiness of such documents is on the opponent of the evidence." Id., citing Cortes v. Maxus Exploration Co., 977 F.2d 195, 201 (5th Cir. 1992); Moss v. Ole South Real Estate, Inc., 933 F.2d 1300, 1305 (5th Cir. 1991).
Plaintiff has failed to make a showing of any evidence that the arbitration decision was the result of any procedural or substantive unfairness. Thus, the hearsay rule does not prohibit the introduction of the arbitral decision. However, the arbitral decision is not admissible in its entirety. Previously, the Court excluded expert opinion testimony embracing whether sinusitis qualified as a "serious health condition" under the FMLA. (See December 2, 2002 Minute Entry). In accord with the Court's previous ruling, all reference in the arbitral decision to whether Plaintiff's medical condition and/or sinusitis qualifies as a "serious health condition" under the FMLA shall be redacted.
According, IT IS ORDERED that Plaintiff's Motion in Limine to Exclude Evidence of Plaintiff's Absences Prior to May 5, 1998, and Evidence of the Arbitration Between Murphy and Pichon's Union is DENIED IN PART and GRANTED IN PART as follows:
(1) Plaintiff's Motion In Limine IS DENIED, with respect to Evidence of Plaintiff's Absences Prior to May 5, 1998.
(2) Plaintiff's Motion In Limine IS DENIED IN PART and GRANTED IN PART, with respect to Evidence of the Arbitration Between Murphy and Pichon's Union. Evidence of the Arbitration is admissible, however, in order to comply with the Court's previous evidentiary rulings, IT IS FURTHER ORDERED that all reference in the arbitral decision to whether Plaintiff's medical condition and/or sinusitis qualified as a "serious health condition" under the FMLA shall be redacted.