February 17, 2021 Articles

Admission of Administrative Agency Documents in a Federal Trial

When responding to arguments concerning the admissibility of documents from an administrative agency, such as the EEOC, be prepared to explain to the court how it should balance the probative value of the documents against the potential prejudicial effect on the defendant.

By Michael R. Lied

A recurring issue for employment lawyers going to trial in a discrimination case is the admissibility of materials resulting from a government investigation, such as a determination letter generated by the Equal Employment Opportunity Commission (EEOC).

By way of background, the U.S. Supreme Court has determined that administrative findings may be admissible in a federal trial as public records under Federal Rule of Evidence 803(8). Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 110 (1991); Chandler v. Roudebush, 425 U.S. 840, 863 n.39 (1976). Most courts have concluded that it is up to the trial court’s discretion whether to admit such evidence from administrative agencies. E.g., Ponce v. Billington, 679 F.3d 840, 847 (D.C. Cir. 2012).

Tulloss v. Near North Montessori School

In Tulloss v. Near North Montessori School, Inc., 776 F. 2d 150 (7th Cir. 1985), the plaintiff wanted to admit the EEOC determination of reasonable cause as well as the agency’s investigatory file. The Seventh Circuit noted that from the record, it was not clear whether the district court admitted the determination, but there was no abuse of discretion where the evidentiary material available to the EEOC was also available to the district court. There was also no error in excluding the entire EEOC investigatory file, in particular because the plaintiff had been told the court would rule on materials in the file on an item-by-item basis. The Seventh Circuit stated the following with respect to the district court’s responsibility in evaluating EEOC materials:

The role of the EEOC file in Title VII litigation can best be assessed by recalling the role of the EEOC in the overall statutory scheme enacted by the Congress. The EEOC operates to investigate claims of discrimination, to promote conciliation and to institute civil suits against employers or unions which have been charged with discriminatory practices. The proceedings before the EEOC are nonbinding and nonadjudicative in nature.

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[T]he fact-finder is a district judge rather than an administrative agency hearing officer. Consequently, in determining the admissibility of EEOC records at a trial in a United States district court, we must “ever be mindful that Congress, in enacting Title VII, thought it necessary to provide a judicial forum for the ultimate resolution of discriminatory employment claims. It is the duty of courts to assure the full availability of this forum.”

Id. at 152 (citations omitted).

Nuccio v. Shell Pipeline Company

In carrying out that responsibility, courts will review each proposed piece of evidence individually under the Federal Rules rather than apply a blanket finding as to EEOC material before it. In Nuccio v. Shell Pipeline Company, LP, No. 19-446-WBV-DPC, 2020 U.S. Dist. LEXIS 233094 (E.D. La. Dec. 11, 2020), for example, the district court excluded an EEOC determination letter but admitted an EEOC notification of conciliation failure.

Joseph Nuccio, who was blind in one eye, asserted that his employer, Shell Pipeline, knew this but allowed him to work for many years—until he had a driving accident. According to Nuccio, this led to Shell Pipeline forcing him to take an eye exam and demoting him, acts that Nuccio claimed were prohibited under the American with Disabilities Act (ADA) and that deprived him of equal employment opportunities.

Nuccio filed a charge of discrimination with the EEOC. The EEOC eventually issued a letter of determination, finding reasonable cause to believe Shell Pipeline violated the ADA and inviting Shell Pipeline to join with the EEOC in conciliation. Shell Pipeline filed a written response to the letter of determination, asserting the letter was flawed and challenging several factual and substantive issues in the letter. Conciliation was not successful and the EEOC issued a notice of conciliation failure.

The case headed to trial. Shell Pipeline filed a motion in limine, seeking to exclude from trial the EEOC determination letter and the EEOC notice of conciliation failure. Shell Pipeline asserted that the court should exclude the determination letter under Federal Rule of Evidence 403 because it contained definitive statements that illegal conduct occurred, which created a risk of prejudice to Shell Pipeline that far outweighed any probative value, and because the letter would usurp the jury’s decision-making process.

Shell Pipeline highlighted the following language in the determination letter in arguing prejudice:

The totality of the evidence shows that Respondent’s requiring Charging Party to undergo an eye exam after the subject accident was an illegal medical examination or inquiry. It was not based on reasonable, objective information and was not justified by business necessity or job relatedness. The evidence also shows that Respondent unlawfully demoted Charging Party because of his disability.

In addition to arguing prejudice, Shell Pipeline also asserted that the letter should be excluded because it contained significant factual inaccuracies, which would create jury confusion and cause undue delay by requiring a trial within a trial of the letter itself.

Nuccio opposed the motion, arguing that the letter should be allowed under Federal Rule of Evidence 803(8)(A)(iii) and (B) as a public record consisting of factual findings from a legally authorized investigation. According to Nuccio, the letter should be admitted under the public record exception to the hearsay rule absent a showing by Shell Pipeline that it was untrustworthy. Nuccio also asserted that the letter should not be excluded under Rule 403.

Regarding the notice of conciliation failure, Shell Pipeline argued that the court should exclude it under Federal Rules of Evidence 401 (relevance) and 403 (prejudice). Specifically, Shell Pipeline contended that the notice was not relevant because the validity of the conciliation process was not being challenged, and to the extent the court found the notice to be relevant, it should still be excluded as unduly prejudicial.

The court observed that Shell Pipeline did not allege that the letter and notice should be excluded because they were untrustworthy; rather, Shell Pipeline’s position distilled to arguing that both documents should be excluded because the probative value was outweighed by the prejudice Shell Pipeline would suffer if either document was admitted.

Addressing the determination letter, the court balanced the prejudicial effect against its likely probative value in light of the facts of the case and concluded that the risk of prejudice significantly outweighed any probative value. The court observed that the Fifth Circuit has drawn a distinction between EEOC “letters of violation” and “letters of reasonable cause,” clarifying that “a letter of reasonable cause is more tentative in its conclusions whereas a letter of violation states the categorical legal conclusion that a violation has taken place.” EEOC v. Manville Sales Corp., 27 F. 3d 1089, 1095 (5th Cir. 1994). As Shell Pipeline pointed out, several sentences (containing such phrases as “illegal medical examination” and “unlawfully demoted”) were clear legal conclusions. According to the court, those definitive statements (which were more akin to a “letter of violation”), coupled with the “unexplained factual inaccuracies” in the letter, showed a substantial risk of prejudice to Shell Pipeline if the letter was admitted at trial. As a result, the court excluded the letter under Rule 403.

The court reached a different conclusion with respect to the notice of conciliation failure. Shell Pipeline argued that the court should exclude the notice because it was not relevant and, to the extent it was relevant at all, its prejudicial effect outweighed that relevance and would cause juror confusion, much like the determination letter. Nuccio contended that Shell Pipeline’s relevance argument was “nonsensical” because Shell Pipeline itself made the notice relevant by arguing that Nuccio’s claims were untimely. Challenging timeliness put the notice directly at issue. Balancing the relevance of the notice against its purported prejudice, the court agreed with Nuccio that the notice was relevant and that the risk of prejudice to Shell Pipeline did not outweigh its probative value. Accordingly, the notice was not subject to exclusion under Rule 403. Nuccio v. Shell Pipeline Co., LP, No. 19-446-WBV-DPC, 2020 U.S. Dist. LEXIS 233094 (E.D. La. Dec. 11, 2020).

The lessons of the case law discussed above are that if you intend to proffer agency findings and documents, be prepared to present compelling arguments not only that the materials are relevant but also that the potential prejudicial effect does not overwhelm their probative value. And if you intend to seek to exclude those materials, highlight the potential prejudicial effect of legal conclusions and definitive statements made by the EEOC, as well as any issues that could arise from any inaccuracy in the EEOC’s recitation of facts or findings.

Michael R. Lied is a partner at Howard & Howard Attorneys PLLC.

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