
    Tiffany CORTES, Plaintiff, v. MAXUS EXPLORATION COMPANY, Defendant.
    Civ. A. No. H-87-2398.
    United States District Court, S.D. Texas, Galveston Division.
    March 11, 1991.
    
      Nancy M. McCoy, Houston, Tex., for plaintiff.
    Samuel E. Hooper, Atty. in Charge (Joseph G. Galagaza, of counsel), Houston, Tex., David A. Wadsworth, Assoc. Counsel, Maxus Energy Corp., Dallas, Tex., for defendant.
   MEMORANDUM OPINION AND ORDER

KENT, District Judge.

Pending before the Court is Plaintiffs Motion in Limine. The instant issue is item number four of that Motion, regarding the Equal Employment Opportunity Commission (EEOC) determination of “no probable cause” on the merits of Plaintiffs EEOC charge of sex discrimination against her former employer, the Defendant in this action. Having considered the Motion as to that particular evidence, the arguments of counsel at the two pretrial conferences of March 4, 1991, and Defendant’s proposed Exhibits Nos. 19, 20, and 21, the Court is of the opinion that the Motion is well taken, and it GRANTS Plaintiffs Motion to exclude the EEOC probable cause finding.

In reaching this conclusion, the Court is expressly mindful of the Fifth Circuit precedent in favor of admitting these EEOC documents; but, relying on the Federal Rules of Evidence and on its discretion in making evidentiary rulings, the Court finds that such an admission in this case would be manifestly unjust.

PRIOR CASE LAW

Initially, the Court notes that, unlike in the vast majority of the Fifth Circuit cases addressing this issue, this trial is to a jury, because of Plaintiffs state law claims pendent to her Title VII claim. As a result, and since this case is being heard subsequent to the adoption of the Federal Rules of Evidence, this Court must apply Fed.R. Evid. 403, and balance the probative value versus the prejudicial effect of the EEOC determination before admitting it for a jury’s consideration. The Fifth Circuit itself utilized this balancing approach in the seminal ease on this issue. Smith v. Universal Services, Inc., 454 F.2d 154, 157 (5th Cir.1972). There, the Fifth Circuit held that an EEOC determination of a probable Title VII violation was admissible, because its probative value outweighed “any possible prejudice” to the employer (opponent of the evidence), and because it would be judicially wasteful to ignore the manpower and resources expended by the EEOC in its investigation.

Later cases seem to have interpreted the Smith decision to mean that EEOC probable cause determinations are always admissible, and are “per se” probative. See Turpen v. Missouri-Kansas-Texas Railroad Co., 736 F.2d 1022, 1026 (5th Cir.1984); Garcia v. Gloor, 618 F.2d 264, 272 (5th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981); accord Plummer v. Western International Hotels, Inc., 656 F.2d 502, 505 (9th Cir.1981). However, this Court perceives that the correct reading of Smith is found in another opinion where the Fifth Circuit said: “[in Smith ] we held that the district court was obligated to admit into evidence the EEOC investigative report and findings because their probative value outweighed any possible prejudice to the employer.” Dickerson v. Metropolitan Dade County, 659 F.2d 574, 579 (5th Cir.1981) (emphasis added). Accordingly, this Court applies Fed.R.Evid. 403.

THE CASE AT BAR

Under Fed.R.Evid. 401 and 403, and after having reviewed the actual EEOC papers at issue in this case, the Court is obliged to exclude the EEOC’s probable cause determination, based on its finding that the determination has little or no probative value for the Defendant-proponent’s case, and that the determination has a substantial likelihood of unfairly prejudicing the Plaintiff-opponent’s ease.

The one and one half page “DETERMINATION” (attached and labeled as Defendant’s Exhibit No. 21), consists of five paragraphs, and appears on official EEOC stationery, with the EEOC seal in the upper left hand corner. Paragraph four contains the actual determination, and recites the evidence supporting that determination. As to that evidence, paragraph four reads:

“The evidence shows that there were other employees involuntarily transferred or reassigned during the same time period. There was no evidence that they had also filed charges or otherwise participated in protected activities.”

These two statements are followed by the three sentence determination of “no probable cause” to believe Plaintiffs allegations.

In connection with the “Determination”, Defendant also proposes to admit the EEOC letter to Plaintiff, dated February 25, 1987, which informs her of the conclusion of the EEOC investigation (attached and labeled as Defendant’s Exhibit No. 20). The evidence discussed in that letter supplements, to some extent, the “evidence” referred to in the EEOC determination on the merits of Plaintiff’s charge. The letter states that three of Defendant’s employees were interviewed in connection with the investigation, that the EEOC reviewed Plaintiff’s 1982 memoranda to the Defendant describing her complaints about her supervisor, and the letter mentions briefly that some of Plaintiff’s co-workers were also reassigned as a result of Defendant’s corporate reorganization.

However, critically, this letter states on its face that Plaintiff was not one of those employees interviewed during the EEOC visit to Defendant’s facility, and further, that Plaintiff was never interviewed by the EEOC at any time regarding her claims of sex discrimination. This Court is consequently unable to understand how the EEOC can conduct a sufficiently complete investigation without interviewing a complainant, and, more to the point, is unpersuaded by the Defendant’s argument of probative value, regarding such an incomplete, conclusory and factually biased document.

RULE 403 BALANCING: PROBATIVE NATURE

The Court finds this EEOC probable cause determination to be conclusory in the extreme, given the inexplicable absence of the most critical information — the personal statement of the Plaintiff herself. As a result, the Court also finds the determination clearly non-probative of the issue in this case of whether or not Plaintiff was sexually harassed or the victim of sex discrimination. Since the EEOC documents themselves demonstrate that the Plaintiff was never interviewed in connection with the administrative investigation, and since that the EEOC determination itself in no way details or describes the “evidence” referred to in paragraph four, this Court cannot admit this fundamentally deficient determination under Fed.R.Evid. 403, for the document has a demonstrable lack of probative value.

For guidance, the Court has considered the EEOC determination reproduced in relevant part in the Smith opinion; but the EEOC’s two sentence discussion of the evidence supporting its official determination in the instant case cannot compare favorably to the EEOC’s evidentiary recitation in Smith. Smith, 454 F.2d at 159. Instead, the EEOC determination in this case is far more similar to the EEOC determination excluded by the trial court in Estes v. Dick Smith Ford, Inc., 856 F.2d 1097 (8th Cir.1988). There, the Eighth Circuit affirmed the trial court’s exclusion of a two sentence EEOC determination adverse to the Plaintiff, saying:

“... there is little probative value in the EEOC’s conclusory statements regarding the same evidence [presented to the jury]. To admit the report under these circumstances would amount to admitting the opinion of an expert witness as to what conclusions the jury should draw, even though the jury had the opportunity and the ability to draw its own conclusions from the evidence.”

Estes, 856 F.2d at 1105, citing Johnson v. Yellow Freight System, 734 F.2d 1304, 1309 (8th Cir.), cert. denied, 469 U.S. 1041, 105 S.Ct. 525, 83 L.Ed.2d 413 (1984) (emphasis added).

The Court acknowledges the Fifth Circuit’s discussion in Smith of the judicial wastefulness of ignoring the “manpower and resources expended on the EEOC investigation”, and agrees that the detailed evidentiary statements and findings of fact included in many EEOC probable cause determinations would often be very probative of the issues presented at trials of this type. However, this Court feels constrained to expressly find that at least in jury trials, nothing in Smith, or any applicable Fifth Circuit rulings mandates that the conclusion itself of an EEOC probable cause determination is “per se” probative or admissible, where, as here, such is predicated upon obvious factual unreliability. Under the Federal Rules of Evidence, and its duty to its litigants, the Court must evaluate the merits or deficiencies of all parts of all documents offered in the context of the precise facts of each case, in determining admissibility.

RULE 403 BALANCING: PREJUDICIAL EFFECT

Assuming the Court is correct in its evaluation of the non-probative nature of this document, a full analysis nonetheless requires an examination of the possible prejudicial effect of admitting it into evidence. Where the EEOC investigation is fatally deficient on its face, as a result of which the EEOC’S probable cause determination is at best incomplete, this Court finds that its admission would be highly prejudicial, and not reasonably probative at all. Moreover, the Court finds that in this case, the same characteristics of the EEOC determination that make it not probative of the proponent’s case make the report unfairly prejudicial to the opponent. Additionally, the Court also finds the document likely to critically mislead the jury, in that the jury will be required to consider the Plaintiff’s testimony, while the EEOC investigator clearly did not. Fed.R.Evid. 403.

The unsubstantiated assertions in paragraph four of the determination as to what “the evidence shows” are bare conclusions, and grossly deficient in the absence of the Plaintiff’s version of the facts. If admitted for the jury’s consideration, those conclusions would operate to influence the trier of fact, but without any demonstrable basis or foundation. Further, since the conclusions are without sufficient evidentiary foundation, the opponent of the assertions is unfairly prejudiced, in that rebuttal of the conclusions via specific facts is difficult or impossible. Indeed, this Court’s admission of such evidence, in the context set forth above, might even rise to the level of a due process violation, particularly where the jury is asked to consider plainly deficient documents on official United States agency stationery, with the corresponding official seal apparent. (The appearance of such insignia on a document will indubitably influence the jury; but, such an influence is permissible and does not rise to the level of unfair prejudice, as proscribed by Fed.R.Evid. 403, unless the content of the document is, in itself, not probative, as here.)

CONCLUSION

The Court finds that the EEOC probable cause determination in this case is properly excluded, under Fed.R.Evid. 403, and thus GRANTS Plaintiff’s Motion in Limine as to item four.

IT IS SO ORDERED.

APPENDIX

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

HOUSTON DISTRICT OFFICE

403 MAIN STREET. OTH FLOOR

HOUSTON. TX 77002

February 25, 1987

Mrs. Tiffany Cortes

1334 Beaujolais Lane

Houston, Texas 77079

RE: Charge No. [ XXX-XX-XXXX ]

Respondent: Diamond Shamrock

Dear Mrs. Cortes:

This is to advise you that the investigation of your charge has been concluded.

The evidence concerning your allegation of discrimination on the basis of your sex, female, and retaliation shows:

"participation AS A WITNESS

1. .While it is true that you provided information to Leticia Castillo regarding her allegations of employment discrimination, there is no evidence that the company was aware of this. You have also stated to the investigator that the company was not aware of your participation in Ms. Castillo's investigation.

2. During the course of the investigation, specifically, on the day the investigator interviewed employees at the Respondent's facility, you were among approximately five (5) people to be interviewed. You and one (]) other person were not interviewed. Consequently, you did not act as a witness on that day, nor were • you contacted as a witness on any other day.

3. Of the approximately five (5) people identified by Respondent on that day, four (4) are still employed. Respondent was aware of their participation in EEOC's investigation.

OPPOSITION TO TITLE VII

1 The records provided by you and the company indicate that in 1982 you submitted to the Respondent memoranda regarding Mr. Acero’s conduct relating to his failure to follow work rules and regulations, and his inability to adequately supervise. Additionally, when he began to supervise more closely, you complained that this war an attempt to thwart your career development. This evidence does not support the allegations in that you did not complain of issues wnich voulc constitute a Title VII violation.

Tiffany Cortes vs. Diamond Shamrock

Charge No. [ XXX-XX-XXXX ]

Page 2

REASSIGNMENT AND DISCHARGE

1. Of the employees in the Petroleum Engineering Department, three (3) other females and two (2) males were offered the same opportunity to be reassigned. Additionally, five (5) other females and two (2) other males were discharged. All of this occurred as a result of corporate restructuring during the early part of 1986.

2. The records indicate that you resigned rather than return to the supervision of Mr. Acero.

Any further evidence in support of your position or which contradicts the above evidence, must be provided within 15 days from the date of this letter. Failure to do so will result in a determination being made without further discussions.

If a determination is issued which finds that there is not reasonable cause to believe that Respondent violated the law in the manner alleged by you, a Notice of Right -to Sue will be enclosed. The Notice of Right to Sue entitles you to pursue the case further in Federal District Court, if you desire to do so. However, it must be filed in Federal District Court within 90 days from the date that you receive it.

If there is reasonable cause to believe that the Respondent did violate the law, an invitation to conciliate will be enclosed.

In either case, 11.1 Letter of Determination will be serf by certified rw : 1 and it it \uur respor.sibii i c> it clair t'r.r letter.

?ircerelv,

Equal Opportunity Specialist (E)

cc: Leopoldo Fraga, dr.

Attorney at Lav-

Lyric Office Centre

440 Lou it.: ar.;. , f-. : t c I c 1 0

Houston, loaf 7 7001

EQUAL EMPLOYE,-NT OPPOÚ1'UNITY COMMISSION

HOUSTON DISTRICT OFFICE

40b MAIN STREET. GTH FLOOR

HOUSTON. 7 X 770055

Charge No. [ XXX-XX-XXXX ]

Ms. Tiffany Cortes

1334 Beaujolais fare

Houston, Texas 77079 CHARGING PART

Diamond Shamrock Exploratior Company

3040 Post Oak Boulevard, Suite 2200

Houston, Texas 77056 RESPONDENT

DETERMINATION

Under the authority vested in me by the Commission’s Procedural Regulations, I Issue on behalf of the Commission, the following determination as to the merits of the subject charge filed under Title VII of the Civil Rights Pct.

All Title VII jurisdictional requirements have been met.

Charging Party alleged that she was retaliated against in violation of Title VII of the Civil Rights Act of 1964, as amended, by being involuntarily transferred because she participated in an EEOC investigation. She further alleged that her discharge was retaliaton and sex discrimination because she refused to transfer under her former supervisor who, allegedly, had previously sexually harassed her.

The evidence shows that there were other employees involuntarily transferred or reassigned during the same time period. There was no evidence that they had also filed charges or otherwise participated in protected activities. There is not reasonable cause to believe that Charging Party's proposed transfer was retaliatory. There is not reasonable cause to believe that the proposed transfer to work under her former supervisor constituted discrimination because of her sex, female, nor that her resignation constituted constructive discharge based on sex and retaliation. No determination is made as to any other issues which might be construed as having been raised by this charge.

Tiffany Cortes vs. Diamond Shamrock Exploration Company

Charge No. [ XXX-XX-XXXX ]

Page 2

This determination concludes the Commission's processing of this charge. Should the Charging Party wish to pursue this matter further, the party may do so by filing a private action in federal district court against the respondent named above, within ninety (90) days of receipt of this letter, and by taking the other procedural steps set out in the enclosed Notice of Right to Sue.

On behalf of the Commission:

Enclosure:

Notice of Right to Sue  