Plaintiff’s crude emails to coworkers other than alleged harasser inadmissible
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Monday, July 22, 2019

Plaintiff’s crude emails to coworkers other than alleged harasser inadmissible

By Lisa Milam, J.D.

An employer was barred from introducing crude videos she emailed to a coworker; they were barely probative of whether her alleged harasser’s conduct was unwelcome.

A federal judge in the District of Columbia barred an employer from introducing, in a pending sexual harassment trial, two emails sent by the plaintiff to coworkers forwarding videos with "sexual connotations." The employer sought to use the evidence to show the plaintiff readily engaged in "sexual horseplay" and "wasn’t harassed at all." However, the emails were not sent to her alleged harasser, and were presumably inadmissible under Rule 412’s prohibition on sexual predisposition evidence. And their minimal probative value was outweighed by the possibility of prejudice, the judge found (Smith v. Ergo Solutions, LLC, July 12, 2019, Bates, J.).

Crude videos. The employee sought to exclude two emails that she had sent to a coworker, and their respective video attachments. One video, titled "And You Think You Have Balls," shows a man’s testicles enlarged due to a medical condition, and the other, titled "Nasty," shows a monkey urinating into its mouth. The employee also wanted to exclude testimony from the recipient of the emails (and another coworker who saw them). Her coworkers were going to testify that these were examples of the kind of sexual content that the plaintiff would send them, demonstrating that she "willingly engaged in a sexual type of horseplay at the office’ and that she had not been sexually harassed "at all." The employer argued the exhibits were relevant and also probative as to the question whether the alleged harassment was indeed unwelcome.

Evidence was relevant... It was undisputed the videos had a "sexual connotation" and that the plaintiff emailed the videos to coworkers, and there was evidence the alleged harasser was aware she sent the videos. The videos were indicative of the working environment in question, the court noted—particularly "the extent to which all parties willingly participated in sexually-charged conduct in the workplace"—and as such, they have some bearing on the question whether the harasser’s conduct was unwelcome. Accordingly, the evidence cleared the low Federal Rule of Evidence 401 threshold for relevance.

but inadmissible. However, that which gave the videos their probative value also rendered them inadmissible under Rule 412, which bars "sexual predisposition" evidence, and which expressly applies to Title VII sexual harassment claims. Here, the employer sought to show that the plaintiff had engaged in "lewd behavior" rife with "sexual references" in an attempt "to evoke ‘a sexual connotation for the factfinder.’" As the court noted, the value of the evidence "lies in its tendency to undermine [the plaintiff’s] reputation by portraying her as vulgar and perhaps promiscuous," which is precisely what Rule 412 aims to guard against.

In addition, weighing their "meager" probative value against the potential prejudice to the plaintiff, the judge found the emailed videos did not satisfy the exception set forth in Rule 412(b)(2). There was only a tenuous link, at best, between crude emails sent to other coworkers and the alleged harasser’s physical advances, and "barely probative" as to whether those advances were welcomed or their relationship consensual. "A stronger nexus is necessary," the judge said, concluding that the evidence added "very little to the issues that the jury must decide."

On the other hand, the potential prejudice to the plaintiff was clear. "Essentially," the judge said, ‘this evidence asks the jury to conclude that sending crude videos by email to one or more people at her place of employment—but, notably, not to her alleged harasser—made it more likely that [Plaintiff] welcomed sexual advances from [the harasser]." Consequently, the employer did not meet its burden under Rule 412(b)(2). The exception did not apply, and the court excluded the sexual predisposition evidence as inadmissible.

The case is No. 14-382 (JDB).

Attorneys: Samuel Bailey, Jr. (Samuel Bailey & Associates) for Twila Smith. Morris Eli Fischer (Law Offices of Morris E. Fischer) for Ergo Solutions, LLC.

Companies: Ergo Solutions, LLC

Cases: EvidenceDiscovery Privacy Procedure SexualHarassment Discrimination DistrictofColumbiaNews

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