Allan N. Karlin, Esq.
H. Sweeney, Esq.
Jane E. Peak, Esq. Jenkins Fenstermaker
Morgantown, West Virginia Huntington, West Virginia
Attorneys for Appellant Jerome F. Buch, Esq.
Seyfarth Shaw, Esq.
L. Nields, Esq.
Seyfarth Shaw, Esq.
Washington, District of Columbia
Attorneys for Appellee
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
trial court's ruling on a motion in limine is reviewed on appeal for an abuse
an action brought for employment discrimination, a plaintiff may call witnesses
to testify specifically about any incident of employment discrimination that
the witnesses believe the defendant perpetrated against them, so long as
the testimony is relevant to the type of employment discrimination that the
plaintiff has alleged.
an action alleging unlawful discrimination under the West Virginia Human
Rights Act, a trial court may, in its discretion, admit evidence from the
record of a prior administrative proceeding held before the West Virginia
Human Rights Commission. In making the admissibility determination, a trial
court should consider whether the evidence sought to be introduced (1) contains
legal conclusions in addition to its factual content; (2) raises questions
of trustworthiness under W. Va. R. Evid. 803(8)(C); (3) presents
problems cognizable under W. Va. R. Evid. 403; and (4) any other
two-part test set for admitting hearsay statements pursuant to W. Va.
R. Evid. 803(4) is (1) the declarant's motive in making the statements
must be consistent with the purposes of promoting [diagnosis or] treatment, and
(2) the content of the statement must be such as is reasonably relied upon
by [health care providers] in treatment or diagnosis. Syllabus point
5, State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
evidence may be admitted under W. Va. R. Evid. 803(6), the proponent must
demonstrate that such evidence is (1) a memorandum, report, record, or data
compilation, in any form; (2) concerning acts, events, conditions, opinions
or diagnoses; (3) made at or near the time of the matters set forth; (4)
by, or from information transmitted by, a person with knowledge of those
matters; (5) that the record was kept in the course of a regularly conducted
activity; and (6) that it was made by the regularly conducted activity as
a regular practice. Syllabus point 7, Lacy v. CSX Transportation,
Inc., 205 W. Va. 630, 520 S.E.2d 418 (1999).
record of a regularly conducted activity that otherwise meets the foundational
requirements of W. Va. R. Evid. 803(6) is presumptively trustworthy, and
the burden to prove that the proffered evidence was generated under untrustworthy
circumstances rests upon the party opposing its admission. Syllabus
point 12, Lacy v. CSX Transportation, Inc., 205 W. Va. 630, 520 S.E.2d
Kenneth McKenzie, appellant/plaintiff below (hereinafter Mr. McKenzie), appeals from an order of the Circuit Court of Mineral County that denied his motion for a new trial. This case involved various claims of employment discrimination by Mr. McKenzie against his former employer, Carroll International Corporation (hereinafter Carroll), appellee/defendant below. The case was tried before a jury, and a verdict was returned in favor of Carroll. Here, Mr. McKenzie has made the following assignments of error: (1) prohibiting evidence of discrimination against other employees, (2) denial of motion in limine, (3) refusal to admit physical therapy records, (4) admission of hearsay statements by Byron Read, (5) refusal to admit letter by Byron Read, (6) admission of hearsay statements by Robert Grapes, and (7) other errors. After a careful review of the briefs and record, we reverse and remand this case for a new trial.
In August of 1996, Mr.
McKenzie and eight other employees were laid off by Carroll. (See
footnote 3) As a result of being laid off, Mr. McKenzie
filed a grievance with the employee union. In the grievance, Mr. McKenzie
contended that he should not have been laid off because of his seniority
rights. However, Mr. McKenzie was informed that the union contract did not
include a seniority provision. Mr. McKenzie thereafter abandoned the union
grievance. He then filed a discrimination claim with the West Virginia Human
Rights Commission. The Commission conducted an initial investigation, and,
after determining that there was insufficient evidence of discrimination,
issued a no probable cause order.
In March of 1998, Mr. McKenzie
filed the instant action against Carroll. Mr. McKenzie alleged in his complaint
that Carroll laid him off because of his age and that Carroll failed to recall him because of his age, his perceived disability
and because he filed a workers' compensation claim. (See
footnote 4) The case was tried before a jury in August
of 2002. After a four-day trial, the jury returned a verdict in favor of
Carroll. Subsequent to the denial of his post-trial motions, Mr. McKenzie
filed this appeal.
Our cases have pointed
out, and we so hold, that a trial court's ruling on a motion in limine is
reviewed on appeal for an abuse of discretion. See Barlow v. Hester
Indus., Inc., 198 W. Va. 118, 130-31, 479 S.E.2d 628, 640-41 (1996); Tennant
v. Marion Health Care Found., Inc., 194 W. Va. 97, 113, 459 S.E.2d 374,
390 (1995). Additionally, we are required to address specific areas
of evidence law regarding motions in limine. Tennant, 194 W.
Va. at 112, 459 S.E.2d at 389. In that regard, this Court reviews a circuit
court's decision on whether to admit evidence pursuant to Rule 404(b)
under an abuse of discretion standard. State v. McGinnis, 193
W. Va. 147, 159, 455 S.E.2d 516, 528 (1994).
Carroll contends that the trial court's ruling was correct and that Mr. McKenzie was not precluded from presenting other evidence of alleged age discrimination. Carroll represents that, during the trial, Mr. McKenzie presented evidence of layoff reports, statistics and witness testimony regarding the names, ages and dates of layoff and recall for other employees. Carroll has also cited to federal cases that prohibited plaintiffs in age discrimination cases from calling witnesses to testify about their own age discrimination experiences. Specifically, Carroll relies upon the decision in Moorhouse v. Boeing Co., 501 F. Supp. 390 (E.D. Pa. 1980), which stated:
Had the Court permitted each of the proposed witnesses to testify about the circumstances surrounding his own lay off, each, in essence, would have presented a prima facie case of age discrimination. Defendants then would have been placed in the position of either presenting the justification for each witnesses' lay off, or of allowing the testimony to stand unrebutted. This latter alternative, of course, would have had an obvious prejudicial impact on the jury's consideration of [plaintiff's] case.
Moorhouse, 501 F. Supp. at 393 (footnote omitted). See Haskell v. Kaman Corp., 743 F.2d 113, 122 (2d Cir. 1984) (Since the testimony of the six former Company officers as to the circumstances of their terminations and those of other Company officers was insufficient to show a pattern and practice of discrimination, it was not relevant to the question of whether [plaintiff] was terminated for age-related reasons. Moreover, the probative value of the testimony was so 'substantially outweighed by the danger of unfair prejudice' that it definitely should have been excluded by the district court in accord with Fed.R.Evid. 403.); Schrand v. Federal Pacific Elec. Co., 851 F.2d 152, 156 (6th Cir. 1988) (The testimony of [two witnesses] about the alleged statement to them that they were being terminated because they were too old should have been excluded. . . . The fact that two employees of a national concern, . . . were allegedly told they were being terminated because they were too old, is simply not relevant to the issue in this case.).
Mr. McKenzie has suggested
that not all federal courts prohibit nonlitigant employees from testifying about age discrimination they experienced at
the hands of their employers. Federal courts that admit such testimony do
so on the grounds that [t]he testimony of employees, other than plaintiff,
is relevant in assessing the employer's discriminatory intent if the employees'
testimony can logically or reasonably be tied to the adverse employment action
taken against the plaintiff. Minshall v. McGraw Hill Broad. Co.,
Inc., 323 F.3d 1273, 1285 (10th Cir. 2003). See Brennan v.
GTE Gov't Sys. Corp., 150 F.3d 21, 27-28 (1st Cir. 1998) (Certainly
comparative evidence in combination with data showing a disproportionate
number of terminated older employees is probative of age discrimination.); Stumph
v. Thomas & Skinner, Inc., 770 F.2d 93, 97-98 (7th Cir. 1985) (permitting
plaintiff to call two witnesses to testify that they were discriminated against
by employer because of their age); Spulak v. K Mart Corp., 894 F.2d
1150, 1156 (10th Cir. 1990) (As a general rule, the testimony of other
employees about their treatment by the defendant is relevant to the issue
of the employer's discriminatory intent.); Kneisley v. Hercules
Inc., 577 F. Supp. 726, 731 (D. Del. 1983) (allowing plaintiff
to call four former employees to testify that they were victims of age discrimination
Moreover, the federal courts
that admit such evidence have held that [t]he probative value of [evidence
of] the employer's [discrimination] of other . . . employees is
especially high 'because of the inherent difficulty of proving state of mind.' Heyne
v. Caruso, 69 F.3d 1475, 1480 (9th Cir. 1995) (quoting Mullen v. Princess
Anne Volunteer Fire Co., 853 F.2d 1130, 1133 (4th Cir.1988)). See Aman v.
Cort Furniture Rental Corp., 85 F.3d 1074, 1086 (3rd Cir. 1996) (Evidence
of discrimination against other employees . . . is relevant to
'whether one of the principal non-discriminatory reasons asserted by [an
employer] for its actions was in fact a pretext for . . . discrimination.' (quoting Glass
v. Philadelphia Elec. Co., 34 F.3d 188, 194. (3rd Cir.1994))); Harpring
v. Continental Oil Co., 628 F.2d 406, 409 (5th Cir. 1980) ([T]he
testimony of . . . similarly situated employees and the reasons
for their discharge are relevant in proving a pattern and practice of age
discrimination.); Estes v. Dick Smith Ford, Inc., 856 F.2d
1097, 1104 (8th Cir.1988) (Evidence of prior acts of discrimination
is relevant to an employer's motive even where this evidence is not extensive
enough to establish discriminatory animus itself.); Heyne v. Caruso,
69 F.3d 1475, 1480 (9th Cir. 1995) (Evidence of [employer's] sexual
harassment of other female workers may be used . . . to prove
his motive or intent in discharging [plaintiff].); Stair v. Lehigh
Valley Carpenters Local Union No. 600 of United Bhd. of Carpenters & Joiners
of America, 813 F. Supp. 1116, 1119 (E.D. Pa. 1993) ([E]vidence
of past conduct or prior incidents of alleged discrimination has a tendency
to make the existence of a fact that is of consequence _ the defendant's
discriminatory motive or intent _ more probable than it would be without
the evidence, and therefore such evidence is, as a general rule, relevant.); Herber
v. Boatmen's Bank of Tennessee, 781 F. Supp. 1255, 1259 n.3 (W.D. Tenn.
1991) ([E]vidence of discrimination against other employees may on
occasion be probative of whether a defendant's employment action against
a plaintiff employee was motivated by intentional discrimination.); Buscemi v. Pepsico,
Inc., 736 F. Supp. 1267, 1271 (S.D.N.Y. 1990) ([T]estimony
or other evidence regarding discriminatory treatment of other employees
would be probative of a discriminatory termination policy such as the one
alleged here.); LaDolce v. Bank Admin. Inst., 585 F. Supp.
975, 977 (N.D. Ill. 1984) ([E]vidence or testimony regarding
[employer's] prior discriminatory conduct with respect to employees other
than [plaintiff] should [not] be excluded. Such evidence might support
an inference of discrimination and is clearly relevant.).
Turning to the case at
hand, we agree with Carroll that Mr. McKenzie was able to present raw data
that suggested older employees were treated differently than younger employees.
However, we do not believe that raw data should be the exclusive means by
which a plaintiff may attempt to establish age discrimination. Thus, we agree
with those federal courts that have found that raw data may be supplemented
with testimony by employees or former employees who believe they were victims
of employment discrimination. (See
footnote 7) Therefore, we hold that in an action brought
for employment discrimination, a plaintiff may call witnesses to testify
specifically about any incident of employment discrimination that the witnesses
believe the defendant perpetrated against them, so long as the testimony
is relevant to the type of employment discrimination that the plaintiff has alleged. There are, however, limitations to the admissibility of
such evidence. Incidents that are too remote in time or too dissimilar from
a plaintiff's situation are not relevant. Stair v. Lehigh Valley
Carpenters Local Union No. 600 of United Bhd. of Carpenters & Joiners
of America, 813 F. Supp. 1116, 1119 (E.D. Pa. 1993). In view
of our holding, we find that it was reversible error for the trial court
to preclude Mr. McKenzie from calling witnesses to testify about their own
alleged experiences with age discrimination by Carroll. (See
We have previously indicated
that [r]ulings on motions in limine lie within the trial court's discretion. State v. Dillon, 191 W. Va.
648, 662, 447 S.E.2d 583, 597 (1994). Our function on . . .
appeal is limited to the inquiry as to whether the trial court acted in a
way that was so arbitrary and irrational that it can be said to have abused
its discretion. State v. McGinnis, 193 W. Va. 147, 159, 455
S.E.2d 516, 528 (1994).
Mr. McKenzie argues that
his motion in limine should have been granted without conditioning it upon
his use of other evidence involving the claim filed with the Commission.
Stated more concisely, Mr. McKenzie is asking this Court to hold that a no
probable cause finding by the Commission cannot be introduced into
evidence. This appears to be an issue of first impression for this Court.
The United States Supreme
Court has noted in passing that [p]rior administrative findings made
with respect to an employment discrimination claim may . . . be
admitted as evidence[.] Chandler v. Roudebush, 425 U.S. 840,
863 n.39, 96 S.Ct. 1949, 1961 n.39, 48 L. Ed. 2d 416, 432 n.39
(1976) (citations omitted). Although Chandler indicated that information
from the record of an administrative agency in an employment discrimination
case may be introduced in a subsequent civil trial, federal courts are split
on the proper method for determining whether [such evidence] will be admissible
in an employment discrimination case tried to a jury. Barfield
v. Orange County, 911 F.2d 644, 649 (11th Cir. 1999). A few federal courts
appear to hold that evidence from an administrative proceeding is, per se, admissible hearsay under Rule 803(8)(C)
of the Federal Rules of Evidence. (See
footnote 9) See Plummer v. Western Int'l Hotels Co.,
656 F.2d 502, 505 (9th Cir. 1981); Smith v. Universal Servs., Inc.,
454 F.2d 154, 157-58 (5th Cir. 1972); Abrams v. Lightolier, Inc.,
702 F. Supp. 509, 512 (D.N.J. 1989); Strickland v. American Can Co.,
575 F. Supp. 1111, 1112 (N.D. Ga.1983).
Other federal courts take the position that the admissibility decision is to be made by the trial court in the exercise of its discretion. Abrams v. Lightolier, Inc., 702 F. Supp. 509, 512 (D.N.J. 1989). See Walton v. Eaton Corp., 563 F.2d 66, 74-75 (3rd Cir. 1977); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972); Johnson v. Yellow Freight Sys., 734 F.2d 1304, 1309 (8th Cir. 1984); Barfield v. Orange County, 911 F.2d 644, 650 (11th Cir. 1999); Cortes v. Maxus Exploration Co., 758 F. Supp. 1182, 1183 (S.D. Tex. 1991). The appellate court in Barfield indicated that when a trial court exercises its
discretion in determining whether to admit findings by an administrative
agency, the court may be guided by such considerations as whether the
report contains legal conclusions in addition to its factual content, whether
the report raises questions of trustworthiness under Rule 803(8)(C), and
whether it presents problems cognizable under Rule 403. (See
footnote 10) Barfield, 911 F.2d at 650.
We believe the position adopted by the Barfield line of cases have the better approach to this issue. Consequently, we hold that in an action alleging unlawful discrimination under the West Virginia Human Rights Act, a trial court may, in its discretion, admit evidence from the record of a prior administrative proceeding held before the West Virginia Human Rights Commission. In making the admissibility determination, a trial court should consider whether the evidence sought to be introduced (1) contains legal conclusions in addition to its factual content; (2) raises questions of trustworthiness under W. Va. R. Evid. 803(8)(C); (3) presents problems cognizable under W. Va. R. Evid. 403; and (4) any other relevant factor.
In the instant case, Mr. McKenzie sought to preclude Carroll from introducing evidence of the no probable cause determination made by the Commission. In the exercise of its discretion, the trial court found that Carroll was barred from introducing such information, but only if Mr. McKenzie did not present evidence of any other information contained in the Commission's records. We cannot say that the trial court abused its discretion in the manner in which it resolved the motion in limine. We agree with Carroll that Mr. McKenzie sought to leave the door open for him to selectively inform the jury about matters contained in the Commission's records, while simultaneously preventing the jury from learning of matters that Carroll felt were relevant. See In re Burks, 206 W. Va. 429, 432 n.1, 525 S.E.2d 310, 313 n.1 (1999) ('[S]auce for the goose' is also 'sauce for the gander.').
We have held that [a] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard. Syl. pt. 4, State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998). Rule 803(4) provides as follows:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
. . . .
(4) Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
Professor Cleckley commented on the scope of Rule 803(4) in his treatise on the rules of evidence as follows:
Statements, to qualify under the rule, need not be made specifically to a physician. The statement may be directed to such personnel as nurses, technicians, or even family members as long as the purpose of the statement is for diagnosis or treatment. It is the motive to promote diagnosis and treatment, and not the fact as to whom the statements were made, that gives such statements their indicia of trustworthiness.
Franklin D. Cleckley, Vol. 2, Handbook on Evidence for West Virginia Lawyers, § 8-3(B)(4), at 8-129 (2000). The prior decisions of this Court have acknowledged that Rule 803(4) is not confined to statements made only to physicians. See State v. Pettrey, 209 W. Va. 449, 549 S.E.2d 323 (2001) (concluding that statements made by a child abuse victim, during play therapy treatment with a trained social worker, counselor or psychologist, may be admitted under Rule 803(4)); State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990) (determining that statements made by children during treatment with a psychologist may be admitted under Rule 803(4)).
This Court held in State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990), that, to be admissible under Rule 803(4), a statement must meet two criteria:
The two-part test set for admitting hearsay statements pursuant to W. Va.R.Evid. 803(4) is (1) the declarant's motive in making the statements must be consistent with the purposes of promoting [diagnosis or] treatment, and (2) the content of the statement must be such as is reasonably relied upon by [health care providers] in treatment or diagnosis.
Syl. pt. 5, Edward Charles L., 183 W. Va. 641,398 S.E. 2d 123.
Clearly, Mr. McKenzie was
undergoing physical therapy to rehabilitate the work-related injury to his
hand. During the course of that treatment, Mr. McKenzie made several statements
that were recorded by his physical therapist. Those statements indicated
that Mr. McKenzie wanted to return to work, but that Carroll would not permit
him to do so until he was 100% rehabilitated. We believe that the statements
made by Mr. McKenzie to his physical therapist satisfy the Edward Charles L. factors, and
should not have been excluded on the grounds that they did not come within
the medical records exception of Rule 803(4). See Puckett v. Porsche
Cars of North America, Inc., 976 F. Supp. 957, 963 (D. Nev.
1997) (finding statements made to a physical therapist admissible under Fed. R. Evid.
803(4)); Galli v. Reutter, 384 N.W.2d 43, 46 (Mich. Ct. App.
1986) (finding statements made to physical therapist were admissible under
the medical diagnosis or treatment exception set forth in Mich. R. Evid.
803(4)). Although we find that the trial court erroneously precluded the
statements on the grounds that they were not medical records under Rule 803(4),
we make make no ruling on whether or not Mr. McKenzie established a proper
foundation for introducing the statements. (See
We have previously held
that [t]he action of a trial court in admitting or excluding evidence
in the exercise of its discretion will not be disturbed by the appellate
court unless it appears that such action amounts to an abuse of discretion. Syl.
pt. 10, State v. Huffman, 141 W. Va. 55, 87 S.E.2d 541 (1955), overruled
on other grounds by, State ex rel. R.L. v. Bedell, 192 W. Va.
435, 452 S.E.2d 893 (1994). Accord Syl. pt. 7, State ex rel. Weirton
Med. Ctr. v. Mazzone, 214 W. Va. 146, 587 S.E.2d 122 ( 2002).
Carroll argues on appeal that the handwritten notes were admissible as a business record under Rule 803(6) of the West Virginia Rules of Evidence. (See footnote 14) This Court addressed the application of Rule 803(6) in Syllabus point 7 of Lacy v. CSX Transportation, Inc., 205 W. Va. 630, 520 S.E.2d 418 (1999):
Before evidence may be admitted under W. Va. R. Evid. 803(6), the proponent must demonstrate that such evidence is (1) a memorandum, report, record, or data compilation, in any form; (2) concerning acts, events, conditions, opinions or diagnoses; (3) made at or near the time of the matters set forth; (4) by, or from information transmitted by, a person with knowledge of those matters; (5) that the record was kept in the course of a regularly conducted activity; and (6) that it was made by the regularly conducted activity as a regular practice.
We also held in Syllabus point 12 of Lacy, that [a] record of a regularly conducted activity that otherwise meets the foundational requirements of W. Va. R. Evid. 803(6) is presumptively trustworthy, and the burden to prove that the proffered evidence was generated under untrustworthy circumstances rests upon the party opposing its admission. 205 W. Va. 630, 520 S.E.2d 418.
The facts developed at
trial in this case clearly establish that the handwritten notes of Mr. Read
fall squarely under Rule 803(6) as a record of a regularly conducted business activity. Carroll presented evidence that Mr. Read routinely wrote
comments about the performance of employees on the job cost records.
Consequently, we find no error in the admission of the notes by Mr. Read
that were contained in the job cost records. (See
[e]vidence of other . . . wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.
Rule 403 of the West Virginia Rules of Evidence is identical to its federal counterpart.
following are not excluded by the hearsay rule, even though the declarant
is available as a witness:
. . . .
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term business as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.