Plaintiff’s Substantial “Credibility Missteps” Render District Court’s Erroneous Admission Of Employer’s Testimony on Ultimate Issue — That There Was No Sexual Harassment — Harmless Error

The Sixth Circuit recently ruled that a plaintiff’s credibility at trial was so “irreparably undermined” that the district court’s erroneous admission of the employer’s evidence on the ultimate issue — that the employer had not engaged in sexual harassment — was harmless error.  Kendel v. Food & Commercial Workers Local 17-A, 6th Cir. No. 12-3409,  WL (January 22, 2013).

Plaintiff Kendel sued the Food & Commercial Workers Local 17-A, the United Food & Commercial Workers International Union, and Howard Barnes, the former president of Local 17-A, for sexual harassment and gender discrimination.  The district court granted summary judgment for the International. Kendel’s claims against Local 17-A and Barnes proceeded to trial.

Plaintiff Kendel’s Confrontations With Local 17-A President Barnes

Kendel was hired as an administrative assistant by Local 17-A in 1988.  In 1999, Barnes was elected president of Local 17-A.  Barnes retained Kendel as his assistant and appointed her secretary-treasurer of Local 17-A (although that was a position that required election by the union membership).  Kendel asserted that in 2003 and 2004, Barnes began making degrading and harassing comments to her based on sex.  At her deposition, Kendel also stated that by 2004, she believed that Barnes thought she was a political threat to him — that she might run against him for president of Local 17-A.  She admitted that she had supported Barnes’s opponent when he ran for re-election in 2008.

Kendel began making notes of Barnes’s treatment of her, generally on scraps of paper.  Later, she typed the notes.  Kendel used the first typed-version of the notes to support a charge she made to the Ohio Civil Rights Commission (OCRC).  She used a second typed-version of the notes to support the claims in her subsequent lawsuit.

The final confrontation occurred just before the union election on January 17, 2008.  Kendel contended that Barnes confronted her, accusing her of manipulating the calculation of lost time for union election committee members and thereby “sticking votes in [her] bra.”  According to Kendel, at the end of the argument, Barnes grabbed her and tried to choke her.  Kendel called the police, but no charges were filed.  A few days later, Barnes was defeated in the union election and retired from Local 17-A.  Kendel was elected secretary-treasurer of the union.

The International’s Investigation of Kendel’s Charges

Shortly after the final incident with Barnes, Kendel sent a letter to the president of the International, describing that confrontation and asserting that Barnes had created a hostile work environment.  The International hired a lawyer, Mady Gilson, to investigate Kendel’s charges.  Gilson reviewed documents provided by Kendel and interviewed Kendel, Barnes, and other witnesses identified by each of them.  At the conclusion of her investigation, Gilson sent a short memorandum to the International.  Gilson concluded that the relationship between Kendel and Barnes had been “extremely difficult and at times unprofessional.”  However, because Barnes had been defeated in the election and had retired, Gilson concluded that “no further action is necessary.”  The International sent a letter to Kendel summarizing Gilson’s findings and stating that since Barnes had retired, there should be no continuing issues and no further action was necessary.

Kendel filed a charge of discrimination against Local 17-A with the OCRC, including with the charge the first typed-version of her notes.  The OCRC determined that there was no probable cause to find that Local 17-A had engaged in unlawful conduct.  The EEOC adopted the finding of the OCRC and issued a right-to-sue letter.

Kendel filed her lawsuit against Local 17-A, the International, and Barnes, asserting claims of sexual discrimination in violation of Title VII of the Civil Rights Act of 1964 and R.C. Chapter 4112, and intentional infliction of emotional distress under Ohio law.

Gilson’s Deposition Testimony

Kendel’s lawyer took a videotape deposition of Gilson in the lawsuit.  Kendel’s lawyer asked Gilson to described her investigation and to give her “impression” of her interview with Barnes.  Gilson testified that “there was a lot of acrimony between [Kendel and Barnes], largely of a political nature.  * * * I felt that they both were participants in a very difficult working relationship.”  Kendel’s lawyer asked Gilson about the results of the investigation and she responded that she concluded there was no “actionable harassment;”  no conduct rose to the level of sexual harassment.  When Kendel’s lawyer asked Gilson to explain what she meant when she said that the relationship between Kendel and Barnes was “unprofessional,” Gilson stated that Kendel spoke of Barnes in very disrespectful terms and often made allegations that were extreme and unwarranted.  Gilson saw the conflict between Kendel and Barnes as a “political dispute.”

The defendants moved for summary judgment.  The district court dismissed all claims against the International and dismissed the intentional infliction of emotional distress claims against Local 17-A and Barnes.  However, the court denied summary judgment on Kendel’s sex discrimination claims under Title VII and R.C. Ch. 4112.  Barnes’s use of sexually-explicit and derogatory language could plausibly support a hostile work environment sex discrimination claim.

Motion  In Limine and Trial

Kendel filed a motion in limine to prevent the introduction of Gilson’s videotape deposition at trial on two bases:  (1) that the testimony constituted inadmissible hearsay – Gilson had not personally witnessed any interactions between Kendel and Barnes; and (2) the testimony was irrelevant, and any probative value was outweighed by the unfair prejudice that would result from jurors substituting Gilson’s judgment and opinions for their own.  The district court denied Kendel’s motion.

At the close of plaintiff’s case, Kendel objected to allowing the defendants to introduce Gilson’s deposition in their case-in-chief.  The trial court denied that motion as well — in Kendel’s direct examination, she referred to the complaint she had filed with the International and entered her letter in evidence, but did not introduce into evidence the International’s letter in response.  The district court reasoned that Kendel had raised the implication that both Local 17-A and the International had taken no action in response to her complaint.  It would be unfair to bar the defendants from putting on evidence to clarify what they had done.  The court suggested that it would address giving a limiting instruction at an appropriate time, but Kendel failed to request such an instruction prior to the Gilson testimony in defendants’ case or upon completion of defendants’ testimony.

Upon completion of the evidence, Kendel’s counsel proffered a jury instruction to limit the jury’s consideration of Gilson’s legal opinion that plaintiff had no actionable claims.  The court revised that instruction, and in response, Kendel moved to strike all of Gilson’s testimony.  The court denied that motion, reiterating that Gilson’s testimony was relevant to show that Local 17-A and the International had responded to Kendel’s complaint.

The court gave the following limiting instruction to the jury:

* * * You’ve heard the testimony of Mady Gilson.  Her testimony was admitted to show that an investigation was conducted by the International Union after Ms. Kendel made a written complaint.  You should disregard Gilson’s testimony that there was no conduct that rose to the level of sexual harassment under federal law and not consider that portion of her testimony for any purpose.  (Emphasis added).

The jury then returned a verdict for the defendants.  Kendel filed post-trial motions for a new trial and renewed judgment as a matter of law, based primarily on the admission of Gilson’s testimony.  The court denied the motions in a fifty-one page opinion.  The court highlighted the fact the Kendel had created three versions of her notes, and that this “ever-changing documentary evidence” and her evasive answers before the jury had effectively destroyed her credibility.  As a result, any error in the admission of Gilson’s legal conclusion on the ultimate issue was harmless.

The Sixth Circuit’s Affirmance

A.        Standard of Review

On appeal, the district court’s denial of Kendel’s new trial motion was subject to an abuse of discretion standard, as were the district court’s evidentiary decisions.  While the appellate court reviewed the factual findings underlying the conclusions of law for clear error, the district court’s conclusions of law were subject to de novo review.

To obtain a new trial, it was not sufficient for Kendel to show that the trial court had erred in admitting Gilson’s testimony.  Kendel had to show that she suffered prejudice from that error.  The measure of whether error is harmless is the traditional “fair assurance” standard.  That standard “calls for reversal when the appellate court lacks a ‘fair assurance’ that the outcome of a trial was not affected by evidentiary error.”

B.        Evidentiary Error

The Sixth Circuit reduced Kendel’s numerous assignments of error regarding the admission of Gilson’s testimony to two claims: (1) it was prejudicial error for the court to admit Gilson’s legal opinion that there was no conduct by Barnes that rose to the level of sexual harassment under federal law, and (2) it was prejudicial error for the court to admit the rest of Gilson’s testimony because all of Gilson’s testimony was hearsay, irrelevant, and any probative value was outweighed by unfair prejudice under the balancing test of Federal Rule of Evidence 403.

1.         Ultimate issue testimony

The Sixth Circuit assumed that it was error for the district court to admit Gilson’s legal conclusion — the district court admitted as much.  While opinion evidence is not automatically objectionable under Federal Rule of Evidence 704(a) when it embraces an ultimate issue, nonetheless, it must be helpful to the trier of fact.  A lay witness’s opinion as to an ultimate issue will “seldom” meet this test because “the jury’s opinion is as good as the witness’[s].”

Thus, the issue for decision by the appellate court was whether the trial court’s limiting instruction was sufficient to render any error harmless.

Courts generally presume that properly-instructed juries are capable of considering evidence for one purpose but not another.  The presumption applies “unless there is an ‘overwhelming probability’ that the jury will be unable to follow the court’s instructions and a strong likelihood that the effect of the evidence would be ‘devastating’ to the defendant.”  Kendel failed to convince the Sixth Circuit that there was an overwhelming probability that the jury would be unable to follow the district court’s timely instruction.  The trial court’s instruction was clear.  In addition, the court prohibited the defendants from referencing Gilson’s testimony in closing argument.

Furthermore, although Gilson’s legal conclusion was “clearly damaging,” the Sixth Circuit could not agree that it was so devastating that even a clear and properly-placed jury instruction could not be effective.  First, the jury heard testimony establishing Gilson’s role — she had been hired by the International.

Second, the defendants “irreparably undermined” Kendel’s credibility during cross-examination and with the testimony of defense witnesses.  None of Kendel’s witnesses could testify that they ever heard Barnes using sexually derogatory language toward her.  More importantly, although Kendel had made contemporaneous notes regarding various incidents, cross-examination of Kendel revealed that she had added the most inflammatory accusations for the first time to the version of her notes she created for use at trial.  She even changed certain terms from her original notes to be more supportive of her accusations that the harassment was gender-based.

Finally, numerous witnesses, including witnesses called by Kendel, supported Gilson’s conclusion that the hostility between Kendel and Barnes was primarily of a political nature.  As a result, the Sixth Circuit concluded that the body of evidence could not be classified as “closely balanced.”  As a result, the district court’s careful instruction provided “fair assurance” that the jury was not affected by Gilson’s ultimate opinion testimony.  Substantial justice did not require overturning the jury’s verdict.

2.         Gilson’s Other Testimony

Kendel also asserted that the district court committed error by admitting Gilson’s testimony other than her ultimate conclusion because the testimony was (1) inadmissible hearsay, and (2) irrelevant and/or the unfair prejudice of the testimony outweighed its relevance.  The Sixth Circuit rejected both arguments.

Gilson’s testimony was not impermissible hearsay.  It was not introduced to prove the truth of her statements — what had happened between Barnes and Kendel — but to rebut Kendel’s implication that the International had ignored her harassment complaint.

For the same reason, Gilson’s testimony was relevant.  And the appellate court was not convinced that the relevance of that testimony was substantially outweighed  by the danger of unfair prejudice — especially in light of Kendel’s significant credibility problems.  Again, there was a fair assurance that any error was harmless.

Lessons To Be Learned

Trial judges and appellate courts are loath to overturn a jury verdict.  The parties have had their day in court.  An independent jury — the cornerstone of due process under the American judicial system — has determined who wins and who loses.  Unless there is clear error that mars the fairness of the process, courts will not undermine the jury’s determination.  If it appears that substantial justice was done, the jury’s verdict will stand.

The Kendel decision can be found at:

http://www.ca6.uscourts.gov/opinions.pdf/13a0081n-06.pdf

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