Coleman v. Home Depot Inc

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

10-9-2002

Coleman v. Home Depot Inc

Precedential or Non-Precedential: Precedential

Docket No. 00-3496

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PRECEDENTIAL

Filed October 9, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 00-3496 and 00-3656

MARY A. COLEMAN

v.

HOME DEPOT, INC.

Mary A. Coleman,Appellant in No. 00-3496

Home Depot U.S.A., Inc.,*Appellant in No. 00-3656

*Pursuant to FRAP 12(a)

On Appeal From the United States District Court

For the District of New Jersey

(D.C. Civ. No. 98-cv-02022)

District Judge: Honorable Mary Little Cooper

Argued: April 25, 2002

Before: BECKER, Chief Judge, SCIRICA and

RENDELL, Circuit Judges.

(Filed: October 9, 2002)

DAVID A. KRENKEL, ESQUIRE

(ARGUED)

Arbus, Krenkel & Monaghan, LLC

1001 Deal Road

Ocean, NJ 07712

Counsel for Appellant/Cross-Appellee

Mary Coleman

PATRICK G. BRADY, ESQUIRE

(ARGUED)

JOHN M. O’CONNOR, ESQUIRE

CLARA H. RHO, ESQUIRE

Carpenter, Bennett & Morrissey

Three Gateway Center

100 Mulberry Street

Newark, NJ 07102

Counsel for Appellee/Cross-Appellant

Home Depot U.S.A., Inc.

OPINION OF THE COURT

BECKER, Chief Judge.

Plaintiff Mary Coleman, an African American female, who

claims that defendant Home Depot discriminated against

her on the basis of race, gender and age when it refused to

give her a job in sales and when it terminated her from her

position as a cashier, brought suit against Home Depot in

the District Court for the District of New Jersey, alleging

employment discrimination. The jury found for Home

Depot. Coleman’s appeal from the judgment of the District

Court entered on the jury verdict turns on the District

Court’s exclusion from evidence of an EEOC Letter of

Determination in which the Agency concluded that

reasonable cause existed to believe that Home Depot had

discriminated against Coleman because of her sex and race

in connection with her hiring, request for transfer, and

discharge. The District Court excluded the evidence, which

was otherwise admissible pursuant to Fed. R. Evid.

803(8)(C), primarily because it found that its probative

value was low and that any such value was outweighed by

confusion and unfair prejudice. See Fed. R. Evid. 403.

Coleman contends that this ruling was an abuse of

discretion.

This appeal presents the question whether an EEOC

Letter of Determination, which is presumptively probative

when not challenged as untrustworthy under Rule

803(8)(C), can nonetheless be excluded due to the

2

considerations identified in Rule 403. See id. (listing the

considerations as "unfair prejudice, confusion of the issues,

or misleading the jury, or consideration of undue delay,

waste of time, or needless presentation of cumulative

evidence"). Although the Circuits are divided on the issue,

we conclude that an EEOC Letter of Determination is not

per se admissible under Rule 403, and that, like other

probative evidence, it may be excluded if the countervailing

403 factors substantially outweigh its probative value.

While the District Court found that the letter should be

excluded because of the risk of unfair prejudice and

confusion, instead we find that other Rule 403 factors --

undue delay and waste of time -- are sufficient on the

record to tip the scales in favor of finding that the District

Court did not abuse its discretion when it excluded the

letter. The judgment of the District Court will therefore be

affirmed.

I. Background Facts

Coleman applied for a position with Home Depot’s

Lakewood, New Jersey store on July 15, 1996. On her

application, she stated that she was applying for"any"

position, and represented that she had prior work

experience/skills on a cash register, in hardware,

plumbing, lumber, paint, and electrical. [SA491]. Within a

week of submitting her application, Home Depot called

Coleman to its Lakewood store for an interview. Vincent

Kobera, the Store Manager, conducted the hiring interview.

[SA96].

During the interview, Coleman stated that she was most

interested in a sales position, but was told that there was

only an opening as a cashier. [A47-48]. She was also told

that she would have the opportunity down the line to

transfer into a different department. [A48]. Kobera testified

that his goal, as an employer, was to "try to put people in

where they’re going to be most comfortable. I mean when

customers come in, they want to deal with someone in

electrical who has some working knowledge or some point

of reference for that. So, part of the interview process is to

try to find that person’s -- call it niche, if you like, and

where they are going to fit with us. And that’s why during

3

the interview, we talk about everything that’s on the

application." [SA185-186]. During the interview Kobera

questioned Coleman about her experience in electrical,

plumbing, and hardware as indicated on her application

form. [SA97-98].

At the end of the interview, Kobera decided not to offer

Coleman a position in sales, but offered her a position as a

cashier instead. His decision with respect to sales was

based on the fact that during the interview, Mary was

"polite, courteous . . . [but] when I questioned her about

[hardware], she couldn’t answer the questions and even

told me that she didn’t have a lot of knowledge on that, so

that was part of it." [SA184]. In this regard, Kobera testified

that the hardware department at Home Depot "is really

hand tools, power tools, stationary tools in that very

specialized area," but when he asked Mary "if a customer

came in and wanted to buy a power tool for a gift and they

wanted to buy one of the most versatile tools they could

buy, what would she suggest. And Mary said she did not

know. And then I asked her the same thing with hand tools

. . . and she told me that when she worked at the hardware

store, she really didn’t get in to the power tool part of the

business . . . . she said it was more of a small family

business. They carried like nuts and bolts and did like pots

and pans type -- like a little mom and pop hardware store."

[SA 227-228]. Thus, at the end of the interview, Kobera

offered Coleman a position as a part-time cashier, which

she accepted on the spot. [SA99-100].

Coleman began working at Home Depot on July 31,

1996. Before actually beginning work, she received training

on the use of the cash register system, including the

operation of function keys, paperwork associated with

certain types of transactions, and procedures on the use of

the register drawer and counting to close the register.

[SA127; see also Cashier Training Checklist, SA492].

Notwithstanding the training, Coleman received several

warnings about her poor job performance as a cashier with

respect to handling monies (shortages and overages in her

register at the end of the day). [SA102]. Indeed, Coleman

received at least nine separate written warnings about her

performance in her six month career with Home Depot.

4

[SA133-134; 135; 136-137; 137-138; 138-139; 147; 142;

145; 150-151]. These performance warnings indicated that

future problems with her cash transactions would result in

more written warnings, and possibly termination.

Despite her poor performance on the cash register,

Coleman asked for a transfer from the cashier position into

the Hardware Association position. [SA131-132]. This

request was denied. The Assistant Store Manager, Kevin

McCann, testified that Home Depot does not transfer

employees having performance problems from one

department to another:

[W]e do not transfer associates from area to area if they

have performance issues . . . . [H]aving a performance

problem, and in her case, a basic skill such as cash

handling, which really relates to paying attention to

detail and, you know, basic math skills, that could be

a problem on the sales floor, as well.

[SA303]. Kobera testified to the same:

Q: And during the time that you were the floor

manager at [the] Lakewood [store], did you ever

transfer an individual from a department who was

having performance problems as the solution to

that problem by putting them in another

department?

A: No . . . . it doesn’t solve the problem, you don’t get

to the root of it, you’re just moving the problem

and letting someone else deal with it.

[SA221].

Home Depot’s employee handbook states that after three

counseling sessions for the same performance warning, the

employee could be terminated. [SA224]. In addition to her

six-month performance review, which indicated that

Coleman needed improvement, she also received additional

training and assistance on the cash register on four or five

separate occasions by Jean Amato, an employee at the

Lakewood store. [SA158]. Moreover, Anne O’Neil, the Store

Customer Service Manager, worked with Coleman to

remedy her accuracy problems [SA154-155], as did the

head cashier, Sue Gibberson. [SA158]. Despite all this help,

5

Coleman’s performance continued to fall short and she

continued to receive written warnings. Ultimately, after a

customer called the store to complain that Coleman had

short-changed him $10.00, Coleman received her last

warning and was terminated. [SA151]. With respect to her

discharge, Kobera testified:

We had had like -- by now it was nine or ten write-

ups. And we have given her lots of counseling. She had

lots of training . . . . We had done that, and [her

performance] was affecting the customers. I mean

when customers start calling the store and saying I’m

not happy . . . there comes a point where we looked at

-- I looked at Mary -- Kevin and I, we talked about it.

But ultimately it was my decision to look at Mary’s

performance and say I didn’t see that it was going to

get any better, giving her another chance wasn’t going

to correct the problem.

[SA230-231].

II. Procedural History

A. Agency Level

On May 28, 1997, Coleman filed a charge of employment

discrimination with the Equal Employment Opportunity

Commission ("EEOC"). She claimed that Home Depot

discriminated against her on the basis of her sex, race, and

age in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. S 2000(e), et seq., and the Age Discrimination in

Employment Act of 1967, 29 U.S.C. S 621, et seq. by: (i)

hiring her as a cashier instead of as a sales associate in the

Hardware Department; (ii) refusing to transfer her to a sales

associate position within the Hardware Department; and

(iii) terminating her employment. [A28]. Following an

investigation, the EEOC issued a Letter of Determination on

January 26, 1998, in which it concluded that reasonable

cause existed to believe that Home Depot had discriminated

against Coleman because of her sex and race in connection

6

with Coleman’s hiring, request for transfer, and discharge.

We rescribe the letter in the margin.1 [A30-32].

The EEOC concluded that there were no facts to

substantiate plaintiff ’s claim that Home Depot

discriminated against her based on her age.

_________________________________________________________________

1. The letter states, in relevant part:

Evidence reveals that after Charging Party was hired as a cashier,

she constantly requested to be transferred to hardware or another

sales position in areas in which she was highly experienced. During

the same period that she was requesting to be transferred, males

with less experience were being hired directly into sales positions.

Some of the male applicants had indicated on their employment

application that they were applying for available positions and were

hired directly into sales positions.

Since Charging Party was hired as a cashier rather than a sales

associate, she experienced performance problems. As a result of not

being allowed to transfer to a position she was qualified to perform,

Charging Party’s employment was affected when her employment

was terminated effective February 13, 1997 for not being able to

perform the cashier’s job.

Evidence reveals that Charging Party had received and [sic] overall

rating of "3" on December 15, 1996. In addition, evidence reveals

that a similarly situated white employee, who had received warnings

for shorting and/or overage, was allowed to transfer to another

department.

The evidence as a whole makes it reasonable to conclude that

Charging Party was discriminated against because of her sex

(Female) and race (Black) with respect to Charging Party’s hiring,

transfer and/or job assignment and discharge allegation.

* * *

During the course of the investigation, the Commission has

uncovered evidence which indicates that Respondent has

discriminated against females with respect to hiring and other terms

and conditions of employment, i.e., wages and transfers and/or job

assignments into sales positions.

Evidence reveals that females were being hired as cashiers at a

starting salary of $8.00 regardless of their prior experience. When

females applied for an open position, they were placed in the cashier

department while males who applied for open positions with no

experience in sales were placed in sales jobs at a higher salary.

7

B. The District Court Suit and the Court’s

Rationale for Excluding the Evidence

Coleman’s civil action alleged that Home Depot had

discriminated against her on the basis of her gender and

race in violation of Title VII by: (i) hiring her on July 31,

1996 as a cashier instead of as a sales associate and failing

thereafter to transfer her from a cashier to sales associate

position in the Hardware Department; and (ii) terminating

her employment on February 13, 1997.

On June 23, 2000, after the close of discovery and

shortly before trial was scheduled, Home Depot moved in

limine to preclude Coleman from introducing into evidence

at trial the EEOC’s determination letter. Home Depot

argued that the record did not support the EEOC’s

findings, which failed to reference any specific evidence,

and that, as a result, the probative value of the

Determination Letter was outweighed by its prejudicial

effect. At the in limine hearing, the District Court delayed

ruling on the motion to exclude the report, deciding instead

to:

listen to the evidence very carefully, the evidence that

is adduced on the plaintiff ’s case in chief, and I will

make a ruling on this before the plaintiff has to rest.

So that if all or any part of this EEOC determination is

admitted, it’s admitted after the Court has had an

_________________________________________________________________

Evidence further reveals that males hired as cashiers were

subsequently transferred into sales positions. However, the females

hired as cashiers who were transferred, were being transferred

either to the service desk or refund department, not to sales

positions.

Females have systematically been placed in cashiers’ position and

not given the opportunity to advance into sales positions.

Based on the evidence of record, there is reasonable cause to

believe that sex (Female) were [sic] motivating factors in

Respondent’s decision not to hire and/or transfer qualified females

into sales positions at a higher rate of pay.

[A31-32].

8

opportunity to see what reliable evidence there is, to

support what the EEOC said.

* * *

I won’t exclude the report on the basis that I can’t

see what evidence the EEOC relied on, but I will test

that report against the evidence which is adduced by

the plaintiff at trial, not to see whether I am persuaded

(that’s not my job), not to see whether I am persuaded

in the direction that the EEOC determined, but to see

whether there is reliable evidence upon which the

EEOC determination could reasonably have rested.

[SA9-11].

After considering the testimony and other evidence

submitted by Coleman, the District Court granted Home

Depot’s motion and precluded Coleman from submitting the

EEOC Letter of Determination. The District Court reasoned

as follows:

Let me give the legal basis for the evidence evaluation

first. The law that applies to this determination is

straightforward. The United States Supreme Court

decided in a 1976 ruling, Chandler v. Roudebush , that

EEOC findings are admissible under the hearsay rules

-- that is specifically Rule 803(8)(C) -- in a federal trial.

The Supreme Court in Chandler did not limit the

discretion of the trial judge to consider whether despite

the hearsay admissibility of the report itself, the report,

nevertheless, should be excluded, "If sufficient negative

factors are present." That is a quote from the notes of

the Advisory Committee on the proposed rules under

Rule 803(8)(C).

Thereupon arose a split of authority in the Circuits,

but the Third Circuit, as always, clearly held that it is

within the discretion of the District Court to admit or

to refuse to admit the EEOC’s findings of fact and its

determination on the merits of the charges. That was

the Third Circuit decision in Walton v. Eaton

Corporation . . . .

* * *

9

[T]his is a case-by-case determination that must be

made. In the jurisprudence that has arisen around the

country which has been cited in the parties’ briefs, the

factors that the Court should consider have emerged

and those include whether the report itself presents a

danger of unfair prejudice to the defendant, whether

time spent during the trial will be unduly lengthened if

the report is admitted and the defendant must

introduce evidence to expose the weaknesses in the

report, thus unduly adding to the length of the trial,

what factual basis is stated in the report for both the

findings and the conclusions in the EEOC report and

whether those factual supports are borne out by the

record before the EEOC, and whether the report is

conclusory in nature or reflects ample detail and a fair

summary of the detail of relevant facts pertaining to

the charge. Those are some of the factors that the

Courts have weighed in making this case-by-case

determination.

The EEOC report in this case does not contain any

footnotes or references to exactly what evidence is

being relied upon. It simply states, "evidence reveals"

or "evidence as a whole" or "based on the evidence of

record." I have reviewed the report line by line in order

to determine whether it should be excluded or admitted

in whole or in part. I conclude that it must be excluded

in whole, that it cannot be redacted or admitted in its

entirety without creating the very danger of unfair

prejudice and confusion which Rule 403 requires the

Court to avoid in making discretionary evidentiary

rulings.

At the heart of my ruling is the core finding of the

EEOC report that -- and here I quote from Page 2--

"Evidence reveals that after the charging party was

hired as a cashier, she constantly requested to be

transferred to hardware or another sales position in

areas where she was highly experienced. During the

same period that she was requesting to be transferred,

males with less experience were being hired directly

into sales positions."

10

One of the bases for that "highly experienced"

conclusion is stated above in the EEOC letter. It says,

"During her interview, the charging party informed the

respondent that she had experience in several areas

such as plumbing, hardware, electrical, paint and

lumber. The charging party has more than 15 years

sales experience."

There is no indication in the EEOC determination

where this factual basis comes from. The Court has

now had the opportunity to review the application form

which is in evidence, P-15, and it shows that these

areas were checked off. However, the countervailing

accounts of what was testified to in the interview are

not nearly as strong in the trial as stated in the EEOC

letter.

Also, the statement that she has more than 15 years

sales experience found in the EEOC letter, is not

supported even by the application form, P-15 in

evidence. If we were to assume it to be truthful and

accurate, there is approximately 13 years of experience

at the family hardware store listed there. Also, the

testimony concerning whether males who had less

sales experience were being hired directly into the sales

department, is one which is sharply in issue here in

the course of the trial and it will be open to each party

to argue to this jury whether these males had more or

less experience than Ms. Coleman indicated during her

application and interview.

The finding of the EEOC Commission is that the

evidence as a whole makes it reasonable to conclude

that the charging party was discriminated against

because of her sex (female) and race (black) with

respect to the charging party’s hiring, transfer and/or

job assignment and discharge. It makes additional

findings such as, "Has uncovered evidence which

indicates that respondent has discriminated against

females with respect to hiring and other terms and

conditions of employment, i.e., wages and transfers

and other job assignments into sales positions."

* * *

11

All of these findings are not supported by the

evidence that has been presented by plaintiff, except

for the raw numerical data, as to which I have had to

give the jury a limiting instruction as I have admitted

that into evidence.

The conclusion of this Court is that substantial

evidence has been presented to the jury on the claims

brought forward by plaintiff in this case, but it differs

from the assertions which are the findings in the EEOC

report. For that reason, I find there is little probative

value in the EEOC’s conclusory statements regarding

the same record.

I further find that those conclusory statements

regarding the evidence are expressly stated to be the

basis of the EEOC’s determination and to admit the

determinations without revealing that they are based

upon findings that are supported by the evidence in

this case, would be, I believe, an erroneous ruling in

the sound exercise of this Court’s discretion.

This jury would, in effect, be receiving an EEOC

determination in the nature of an expert opinion on

conclusions which this lay jury is as equipped to reach

from the evidence and its own experience and

instructions in the law where this jury will have had

the opportunity to view all of the evidence and will have

the ability to draw its own conclusions from the

evidence presented regarding whether Ms. Coleman

was or was not subjected to disparate treatment in her

assignments and in her termination in this case.

[A5-11] (emphasis added).

The jury returned a verdict in favor of Home Depot.

Coleman appeals, arguing that the District Court abused its

discretion in excluding the EEOC determination letter from

trial.2 The District Court had jurisdiction pursuant to 28

_________________________________________________________________

2. We note that Home Depot is also a cross-appellant in this case; it

appealed the District Court’s order precluding Home Depot from

presenting evidence relating to Coleman’s alleged misrepresentations

about her employment history. Since the parties did not brief the issue

in the present appeal, and, at all events, in light of our holding that the

District Court did not abuse its discretion by excluding the EEOC Letter

of Determination, Home Depot’s appeal is essentially moot.

12

U.S.C. S 1331. We have appellate jurisdiction based on 28

U.S.C. S 1291.

We review the admissibility of evidence for abuse of

discretion. See Abrams v. Lightolier, Inc., 50 F.3d 1204,

1213 (3d Cir. 1995). "An abuse of discretion is a‘clear error

of judgment,’ and not simply a different result which can

arguably be obtained when applying the law to the facts of

the case." SEC v. Infinity Group Co., 212 F.3d 180, 195 (3d

Cir. 2000) (quoting In re Tutu Well Contamination Litig., 120

F.3d 368, 387 (3d Cir. 1997)). This standard applies to Rule

803(8)(C) and EEOC determination letters. Walton v. Eaton

Corp., 563 F.2d 66, 75 (3d Cir. 1977).

III. Discussion

A. Rule 803(8)(C)

Fed. R. Evid. 803(8)(C) provides:

The following are not excluded by the hearsay rule,

even though the declarant is not available as a witness

. . . . (8) Records, reports, statements or data

compilations, in any form, of public offices or agencies,

setting forth . . . (C) in civil actions and proceedings

. . . factual findings resulting from an investigation

made pursuant to authority granted by law, unless the

sources of information or other circumstances indicate

lack of trustworthiness.

The rationale of Rule 803(8)(C) is explicated in the advisory

committee’s note as being grounded on a presumption of

reliability of government records. The note explains that it

is "assum[ed] that a public official will perform his duty

properly." Fed. R. Evid. 803(8)(C) advisory committee’s note.

As was explained in Zenith Radio Corp. v. Matsushita Elec.

Indus. Co., Ltd., 505 F. Supp. 1125, 1145 (E.D.Pa. 1980),

"the drafters of 803(8)(C) were motivated by a variation on

the theme underlying all hearsay exceptions -- that

circumstantial guarantees of trustworthiness are provided

by the presumption that governmental officials will perform

their duties faithfully. Accordingly, they were agreeable to

the receipt into evidence of governmental agency findings."3

_________________________________________________________________

3. See also Melville v. Am. Home Assurance Co., 443 F. Supp. 1064, 1112

(E.D.Pa. 1977) ("The conceptual underpinning for this exception, similar

13

With respect to EEOC determinations in particular, the

United States Supreme Court itself has held that prior

administrative findings made with respect to an

employment discrimination claim may be admitted, as of

course, pursuant to Fed. R. Evid. 803(8)(C) as evidence at

a "federal-sector trial de novo." Chandler v. Roudebush, 425

U.S. 840, 863 n. 39 (1976).

The principal basis on which government records and

reports may be excluded is the Rule 803(8)(C)

trustworthiness proviso. As the Rule itself states, the

findings are admissible "unless the sources of information

or other circumstances indicate lack of trustworthiness."

Fed. R. Evid. 803(8)(C). The advisory committee’s note

explains:

Factors which may be of assistance in passing upon

the admissibility of evaluative reports include: (1) the

timeliness of the investigation; (2) the special skill or

experience of the official; (3) whether a hearing was

held and the level at which conducted; (4) possible

motivation problems . . . . Others no doubt could be

added.

Fed. R. Evid. 803(8)(C) advisory committee’s note (internal

citations omitted). Case law has added to the list of

trustworthiness considerations.4

_________________________________________________________________

to that upon which other hearsay exceptions are based . . . is that public

records or reports, by virtue of their being based on legal duty and

authority, contain sufficient circumstantial guarantees of

trustworthiness to justify their use at trial.").

4. In Zenith Radio Corp., for example, the court developed an additional

seven factors addressing the adequacy of the investigative/evaluative

process of agency determinations:

(1) The finality of the agency findings, i.e. , the state of the

proceedings at which the findings were made (whether they are

subject to subsequent proceedings or de novo review), and the

likelihood of modification or reversal of the findings.

(2) The extent to which the agency findings are based upon or are

the product of proceedings pervaded by receipts of substantial

amounts of material which would not be admissible in evidence

14

Most notably, a report may be untrustworthy "if the

report appears to have been made subject to a suspect

motivation. For example, if the public official or body who

prepared the report has an institutional or political bias,

and the final report is consistent with that bias." Federal

Rules of Evidence Manual 1688-89 (Stephen A. Saltzburg et

al. eds., 7th ed. 1998); see also Pearce v. E.F. Hutton Group,

Inc., 653 F.Supp. 810, 814 (D.D.C. 1987) (excluding

findings made in a congressional report because,"[g]iven

the obviously political nature of Congress, it is questionable

whether any report by a committee or subcommittee of that

body could be admitted under rule 803(8)(C) against a

private party. There would appear to be too great a danger

that political considerations might affect the findings of

such a report"). An EEOC report might also be

untrustworthy where it is made in contemplation of

litigation. See Harris v. Birmingham Bd. of Educ., 537 F.

Supp. 716, 721-22 (N.D. Ala. 1982), aff ’d in part & rev’d in

part, 712 F.2d 1377 (11th Cir. 1983) (finding that an EEOC

determination was not trustworthy where it was made six

_________________________________________________________________

(e.g., hearsay, confidential communications, ex parte evidence), and

the extent to which such material is supplied by persons with an

interest in the outcome of the proceeding.

(3) If the findings are products of hearings, the extent to which

appropriate safeguards were used (Administrative Procedure Act,

Due Process), and the extent to which the investigation complied

with all applicable agency regulations and procedures.

(4) The extent to which there is an ascertainable record on which

the findings are based.

(5) The extent to which the findings are a function of an executive,

administrative, or legislative policy judgment (as opposed to a

factual adjudication) or represent an implementation of policy.

(6) The extent to which the findings are based upon findings of

another investigative body or tribunal which is itself vulnerable as a

result of trustworthiness evaluation.

(7) Where the public report purports to offer expert opinion, the

extent to which the facts or data upon which the opinion is based

are of a type reasonably relied upon by experts in a particular field.

Zenith Radio Corp., 505 F. Supp. at 1147.

15

months after litigation had been filed and that"[t]he

trustworthiness of the determination is further eroded by

the obvious disregard of the affidavits submitted by the

defendant to the EEOC. The court is appalled by the

numerous erroneous and obviously slanted statements

contained in the determination, the list of which is too

lengthy to set out").

While the District Court was skeptical about whether the

EEOC had the proper factual basis to come to the

conclusions that it did in the EEOC Letter of

Determination, none of the aforementioned trustworthiness

considerations have been invoked in this case, either here

or in the District Court. We assume therefore that the

EEOC determinations were trustworthy and review the

District Court’s decision to exclude the EEOC Letter of

Determination only under Rule 403.

B. Rule 403

Rule 403 provides:

Although 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.

Fed. R. Evid. 403. Rule 403 is an "umbrella rule" spanning

the whole of the Federal Rules of Evidence. See Federal

Rules of Evidence Manual 251 (Stephen A. Saltzburg et al.

eds., 7th ed. 1998) ("[T]he Trial Judge must apply [Rule

403] in tandem with other Federal Rules under which

evidence would be admissible."). Accordingly, it is generally

applied to evidence otherwise admissible under Rule

803(8)(C).5 See, e.g., Zenith Radio Corp., 505 F. Supp. at

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5. The Fifth Circuit has noted that it is possible to confuse "the test for

admissibility under Rule 803(8)(C) with that for excluding otherwise

admissible evidence under Rule 403." Cortes v. Maxus Exploration Co.,

977 F.2d 195, 201 (5th Cir. 1992). As that Court has explained:

Under Rule 803(8)(C), investigative reports made by government

agencies are removed from the rule against hearsay unless

16

1146 ("[W]here the probative value of [evidence admissible

pursuant to Rule 803(8)(C)] is outweighed by the danger of

unfair prejudice . . . or needless presentation of cumulative

evidence attendant upon the opponents’ efforts to establish

untrustworthiness of the report, the court may exclude the

report under F.R.E. 403.").

Rule 403 recognizes that a cost/benefit analysis must be

employed to determine whether or not to admit evidence;

relevance alone does not ensure its admissibility. That is,

evidence may be excluded if its probative value is not worth

the problems that its admission may cause, e.g. unfair

prejudice, confusion of the issues, misleading the jury,

undue delay, waste of time, or needless presentation of

cumulative evidence.6 However, there is a strong

presumption that relevant evidence should be admitted,

and thus for exclusion under Rule 403 to be justified, the

probative value of evidence must be "substantially

outweighed" by the problems in admitting it. As a result,

evidence that is highly probative is exceptionally difficult to

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circumstances indicate untrustworthiness. Because of this

presumption that agency reports are not to be excluded under the

hearsay rule, this court has held that the party opposing the

admission of the report under Rule 803(8)(C) must prove the report’s

untrustworthiness. . . . Rule 403 gives trial courts the discretion to

exclude relevant evidence "if its probative value is substantially

outweighed by the danger of unfair prejudice . . ." This court, on

several occasions, has found investigative reports and files of the

EEOC to be highly probative. We also warned . . . that Rule 403

should not be misused in such a way that "would end the

presumption that evaluative reports are admissible hearsay under

Rule 803(8)(C)." None of these decisions should be read as leaving

district courts without discretion under Rule 403 to exclude such

reports if their probative value is substantially outweighed by

prejudicial effect or other considerations enumerated in the rule.

Id. (internal citations omitted).

6. It is worth stressing that the term "unfair prejudice" as a factor

against which the probative value of evidence is weighed under Rule 403

is often misstated as mere prejudice. Indeed, any evidence that tends to

harm a party’s case could be said to be prejudicial. Thus, the prejudicial

effect of admitting the evidence must rise to the level of creating an

unfair advantage for one of the parties for the evidence to be excluded

under Rule 403.

17

exclude. See, e.g., United States v. Krenzelok, 874 F.2d 480,

482 (7th Cir. 1989) ("Its probative value was . .. great. Its

prejudicial effect may well have been great too. But when

the trial judge is in doubt, Rule 403 requires admission

(this is the force of "substantially outweighed") . . . .).7

Rule 403 necessarily requires that the District Court

engage in balancing to determine whether the probative

value of the evidence is "substantially outweighed" by the

negative factors listed in Rule 403. See United States v.

Long, 574 F.2d 761, 766 (3d Cir. 1978) (noting that even if

the District Court does not invoke Rule 403, "the trial

judge’s balancing will be subsumed in his ruling"). In

balancing, "the proper equation places on one side the

maximum reasonable probative force for the offered

evidence," while "the other side of the equation should

include the likely prejudicial impact of the evidence."

Federal Rules of Evidence Manual 242 (Stephen A.

Saltzburg et al. eds., 7th ed. 1998). The balancing test in

Rule 403 ensures that juries are not presented with

evidence that is far less probative than it is prejudicial.

Coleman submits that EEOC reports are necessarily of

high probative value, especially given the expertise and long

experience of the Agency in employment discrimination

matters. She finds support for this view in federal appellate

case law. Smith v. Universal Services, Inc., 454 F.2d 154,

157 (5th Cir. 1972); Plummer v. Western Int’l Hotels Co.,

656 F.2d 502, 505 (9th Cir. 1981). The Smith Court

intimated that the probative value of EEOC determinations

almost always outweighs any prejudicial impact:

[T]o ignore the manpower and resources expended on

the EEOC investigation and the expertise acquired by

its field investigators in the area of discriminatory

employment practices would be wasteful and

unnecessary.

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7. An interesting hypothetical question as to the meaning of Rule 403 is

posed by positing a report or other evidence whose probative value on

the scale of values was 100%. It would appear that, as such, it could not

properly be excluded under Rule 403 because it could not be

"substantially outweighed" by the countervailing factors.

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The fact that an investigator, trained and experienced

in the area of discriminatory practices and various

methods by which they can be secreted, has found that

it is likely that such an unlawful practice has occurred,

is highly probative of the ultimate issue involved in

such cases. Its probative value, we believe, at least

outweighs any possible prejudice to defendant.

"Prejudicial" cannot be equated with "harmful" in all

cases; rather it connotes "harmful," plus"non-

probative."

454 F.2d at 157.8

Although we decline to hold that EEOC reports are per se

admissible as more probative than prejudicial, the

argument that EEOC reports that are not challenged as

untrustworthy are presumptively probative is not without

force. But the other Rule 403 factors -- especially

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence, which are often

necessary to counter an EEOC report -- could "kick-in" and

control, especially where the report could be shown to be of

low probative value. The weight of the case law holds that

Rule 403 may operate on an EEOC report, and that the

decision of whether or not an EEOC Letter of Determination

is more probative than prejudicial is within the discretion of

the trial court, and to be determined on a case-by-case

basis. Hines v. Brandon Steel Decks, Inc., 886 F.2d 299,

302 (11th Cir. 1989); United States v. MacDonald , 688 F.2d

224, 229-30 (4th Cir. 1982); Johnson, 734 F.2d at 1309;

Cortes, 977 F.2d at 201-02.

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8. We note that the Fifth and Ninth Circuits take the minority view that

agency reports are per se admissible as the probative value necessarily

outweighs the negative factors in Rule 403. The majority view, on the

other hand, gives less deference to the probative value of agency reports,

refusing to categorically require admission of agency findings. See e.g.,

Paolitto v. Crawford, 151 F.3d 60, 65 (2nd Cir. 1998) (adopting the

majority position that leaves "the question of whether to admit EEOC . . .

findings to the sound discretion of the district court"); Johnson v. Yellow

Freight System, Inc., 734 F.2d 1304, 1309 (8th Cir. 1984) ("While EEOC

reports may contain information that would be useful to the jury, their

probative value may be outweighed by problems that would result from

their admission.").

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This view is apparently the law of this Circuit, based

upon a terse discussion in Walton. 563 F.2d at 75. At all

events, we think that Walton reflects the better view, and

we take this opportunity to endorse the majority position in

Walton and to clarify that a District Court has the

discretion to exclude probative EEOC Letters of

Determination where the negative factors listed in Rule 403

substantially outweigh the probative value of the EEOC

determinations. In other words, we decline Coleman’s

invitation to conclude that, based on the presumption of

admissibility under Rule 803(8)(C), EEOC Letters of

Determination are per se more probative than prejudicial

under Rule 403, and will review the District Court’s

exclusion of the EEOC letter based on the principles

discussed supra.

We note in this regard that the assessment of probative

value under Rule 403 should take into consideration the

proof value of the particular report as and when offered at

trial. Here that proof value could be said to be low, given

the fact that it would have been introduced to the jury after

all the evidence had been offered (which evidence was at

odds with the EEOC report), and was more conclusory than

factual in nature. See, e.g., Paolitto , 151 F.3d at 65; see

also Johnson, 734 F.2d at 1309. Further its value is not

increased based on the agency’s expertise, as the District

Court seemed to think, because it is not an "expert report."

Evaluative public records and reports, admissible under

Article VIII of the Federal Rules of Evidence, are distinct

from expert opinion evidence, identified in Article VII. They

are subject to entirely different standards of admissibility,

et alia.

C. Application to This Case

As we have explained, the District Court delayed ruling

on the motion to exclude the Letter of Determination at the

in limine hearing. Rather, the Court allowed Coleman to

present her case-in-chief at trial before making a decision.

Referencing Walton, the District Court concluded that the

risk of unfair prejudice and confusion substantially

outweighed the probative value of the EEOC Letter of

Determination. The District Court found that the probative

20

value of the document was particularly low since the

evidence presented at trial differed from the findings of the

EEOC in a critical respect -- the EEOC’s finding that

Coleman was "highly experienced" in sales was clearly

undermined by the testimony presented at trial, even by

Coleman herself.

We disagree with the District Court’s general approach to

the Rule 403 calculus. The District Court in effect charged

the plaintiff with replicating the record before the EEOC

and then evaluated the record produced by plaintiff to see

if it justified the report. But neither the plaintiff nor the

District Court had access to the whole EEOC record. 9 What

the District Court had was: (1) A letter from Home Depot to

the EEOC about a consent decree entered in a class action

case against Home Depot; (2) A response from Home Depot

to the EEOC; (3) Coleman’s EEOC charge questionnaire,

filled out by Coleman herself. It does not appear, however,

that the District Court knew how the EEOC came to its

determination or that it had access to all the information

upon which the EEOC relied. In particular we do not know

if the EEOC had any evidence upon which to base its

conclusion that a white employee with evaluations as poor

as Coleman’s was allowed to transfer to another

department or that women were systematically hired as

cashiers irrespective of their experience and never

transferred to sales positions, unlike the male cashiers. See

supra.

On the other hand, the District Court was clearly correct

about the low probative value of the most critical facet of

the EEOC report: that Coleman was not hired as a sales

associate despite being a "highly experienced" candidate.

Coleman’s experience in hardware sales, so central to the

Home Depot modus operandi, was exposed by her own

testimony to be gossamer.10 That is a matter within her own

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9. The EEOC does not appear to have clear standards for how it gathers

information. The Federal Laws Prohibiting Job Discrimination: Questions

and Answers, available at http://www.eeoc.gov/task/pch-lit.html, states

that "[i]n investigating a charge, EEOC may make written requests for

information, interview people, review documents, and, as needed, visit

the facility where the alleged discrimination occurred."

10. Kobera, the Store Manager at the Home Depot where Coleman

worked, testified that Home Depot attempts to place employees in sales

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ken. Yet had the EEOC report been admitted, a great deal

of time would have had to have been consumed to counter

the report’s conclusion about the fate of other employees,

male and female. Because the EEOC Letter of

Determination concluded that Home Depot had

systematically discriminated against female and minority

employees, in order to rebut these expansive allegations,

Home Depot would have had to present evidence showing

that it did not discriminate when it placed former

employees in cashier positions or fired them. This would

certainly have involved a great deal of testimony-- a trial

within a trial in fact -- about the employment histories of

a large number of former employees.11

The District Court opined that the EEOC Letter of

Determination would be unfairly prejudicial or confusing,

but we find the argument that the evidence would have

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positions who have a "working knowledge or some point of reference" in

the particular area so that they can best assist customers. For example,

Home Depot wanted employees in the hardware department to be able to

recommend a versatile power tool to customers. See discussion supra.

11. A number of cases have considered the amount of time that it would

take to counter a trustworthiness challenge as a consumption of time

factor cognizable under Rule 403. See McShain v. Cessna Aircraft Co.,

563 F.2d 632, 636 (3d Cir. 1977) (holding that the District Court did not

abuse its discretion by excluding an NTSB report because the "reception

of such reports into evidence would have involved a lengthy . . . inquiry

into the ‘circumstances bearing on the trustworthiness’ of the

investigators’ conclusions. Thus, it may well have been that, in the

course of the eighteen-day trial, the additional probative value of the

excluded reports was substantially outweighed by the opportunity to

avoid undue delay of waste of time"); see also Zenith Radio Corp., 505 F.

Supp. at 1146 ("[W]here the probative value of [evidence admissible

pursuant to 803(8)(C)] is outweighed by . . . needless presentation of

cumulative evidence attendant upon the opponents’ efforts to establish

untrustworthiness of the report, the court may exclude the report under

F.R.E. 403."). The trustworthiness challenge will generally be disposed of

at the in limine hearing stage, but not always. Moreover, a finding of

trustworthiness by the judge does not preclude a trustworthiness

challenge by the objecting party at trial. Therefore since trustworthiness

can also become an issue at trial itself, it can bear upon the time-related

factors in Rule 403.

22

created the potential risk of undue delay and waste of time

to be stronger. Weighing undue delay and waste of time

against the low probative value of the EEOC determination,

it appears that the District Court acted properly. We are

satisfied that the EEOC Letter of Determination wrongly

classified Coleman as "highly experienced"-- the evidence

demonstrated that Coleman knew little about hand and

power tools and had only worked in a "mom and pop"

hardware stare, see discussion supra-- and that it was of

such low probative value that the Court could have found

that it was "substantially outweighed" by the fact that

Home Depot would have had to rebut the EEOC’s finding

that the company engaged in a pattern of race and gender

discrimination by presenting information about numerous

former Home Depot employees.

In sum, we conclude that the District Court did not

abuse its discretion in deciding that the probative value of

the EEOC Letter of Determination was "substantially

outweighed" by the problems created by its introduction.

Although the District Court did not know the full extent of

the evidence relied upon by the EEOC to conclude that

Home Depot had wrongly: (1) hired Coleman as a cashier;

(2) refused to transfer her to a sales position; and (3)

terminated her, considering that the EEOC clearly was

mistaken in the critical conclusion that Coleman was a

"highly experienced" employee, the District Court did not

abuse its discretion in finding that the EEOC Letter of

Determination had such a low probative value that the

undue delay that would have been involved in the rebuttal

of the allegations of systematic discrimination contained in

the EEOC determination "substantially outweighed" that

low probative value. The judgment of the District Court will

therefore be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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