IN THE SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA Civil Division

Transcription

1 IN THE SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA Civil Division KATONNA TERRELL : Plaintiff, : v. : Civil Action No Calendar 2 FRITZ JONES, et. al : Judge Rankin Trial Date January 23, 2006 : Defendants. : PLAINTIFF'S MOTION IN LIMINE In this case the Plaintiff, Katonna Terrell, alleges that the Defendants, Mr. Fritz Jones and his company, the Jones Electric Company, Inc., sexually harassed and discriminated against her on the basis of sex in violation of the D.C. Human Rights Act, D.C. Code (a), when Mr. Jones fired Ms. Terrell from her position as a secretary/receptionist in August Ms. Terrell alleges that Mr. Jones fired her because she refused to have sex with him. Ms. Terrell also alleges that Mr. Jones sexually assaulted her on two occasions while she worked for Mr. Jones and Jones Electric Company. In this motion Plaintiff moves to exclude the testimony of Robin McCann, Catherine Sauls and Regina Jackson, witnesses identified by the Defendants on the Revised Joint Pretrial Statement, as irrelevant and inadmissible character evidence. A. Background. In addition to working for the Defendants as a secretary/ receptionist for approximately three months in 2003, Ms. Terrell and her daughter Amani, had lived in an apartment in a building owned by Mr. Jones at 3335 C Street, S.E. for approximately 7 years. In May 2003, Mr. Jones offered Ms.

2 Terrell a job working as a secretary/receptionist in his office located at Mr. Jones and Jones Electric Company s office at th Street, N.E. Ms. Terrell had been unable to work at her usual employment as a security guard for some time due to an injury and was several months behind in her rent when she accepted the job. Mr. Jones office is a small one and throughout the time Ms. Terrell worked there, she and Mr. Jones were the only persons working in the office. B. Description of the Expected Testimony of Ms. McCann and Ms. Sauls. According to Defendants counsel, Ms. McCann and Ms. Sauls are former employees of Mr. Jones and Jones Electric Company and will testify that Mr. Jones is a nice man and that he did not sexually harass or assault them while they worked for Mr. Jones and Jones Electric Company. Neither Ms. McCann nor Ms. Sauls worked for the Defendants during the time Ms. Terrell worked for Mr. Jones and neither was present in the office at any time while Ms. Terrell worked for in the Defendants office. C. Description of the Expected Testimony of Ms. Jackson. Ms. Jackson is a tenant in Mr. Jones apartment building at 3335 C Street, S.E. the same building where Ms. Terrell and her daughter lived for seven years. According to Defendants counsel, Ms. Jackson will testify that she observed that Ms. Terrell dressed and acted in a sexually provocative manner towards Mr. Jones on occasions when he visited the apartment building, not at the office at th Street, N.E., where the Ms. Terrell alleges that the sexual discrimination and assaults occurred. Argument The Rules of Evidence provide that "evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion." Federal Rule of Evidence 404(a) quoted in Neuren v. Adduci, Mastriani, 2

3 Meeks & Schill, 43 F.3d 1507, 1511, (D.C. Cir. 1995). Ms. McCann s and Ms. Saul s testimony that Mr. Jones is a nice man and that he did not sexually harass or assault them when they worked for the Mr. Jones is precisely the type of character evidence prohibited by the evidence rules. Ms. McCann and Ms. Sauls have no personal knowledge of what Mr. Jones did or did not do in the office while Ms. Terrell was working there. Accordingly, they should not be permitted to testify. Barrios v. Kody Marine, 2000 WL (U.S. Dist. Ct., E.D. La. 2000); see also, Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, (7 th Cir. 1991). In an early sex discrimination case, Connecticut v. Teal, 457 US 440, 453, 102 S. Ct. 2525, 2535 (1982), the Supreme Court rejected the use of such evidence of no sex discrimination against other women. It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees' group. We recognized in Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978), that fairness to the class of women employees as a whole could not justify unfairness to the individual female employee because the "statute's focus on the individual is unambiguous." Id., at 708, 98 S.Ct., at Similarly, in another sex discrimination case, the United States Court of Appeals for the District of Columbia Circuit disallowed the defendant s use of evidence of the plaintiff's alleged poor performance with her former employer that was unknown to the defendant employer when it fired the plaintiff. Neuren, 43 F.3d at In Neuren a law firm fired the plaintiff, a female attorney, and offered evidence in its defense that the plaintiff had missed deadlines and was difficult to work with when she worked for a previous employer, another law firm. Id. at The Court of Appeals held that this character evidence should not have been admitted for any purpose -- not even 3

4 to challenge Plaintiff's credibility. Id. at The firm's defense was based on Neuren's behavior at the defendant firm, not on her past conduct at a prior job or her character. Id. With regard to Ms. Jackson, the proposed testimony is even more remote, irrelevant and inadmissible. As Defendants counsel has explained it, Ms. Jackson will testify that Ms. Terrell dressed and acted in a sexually provocative manner towards Mr. Jones on occasions when he visited the apartment building Mr. Jones owned at 3335 C Street, S.E. and in which Ms. Jackson and Ms. Terrell were tenants. Ms. Jackson did not on any occasion observe Mr. Jones and Ms. Terrell at the office where the Defendants employed Ms. Terrell at th Street, N.E. First, this testimony conflicts with Mr. Jones defense which is that he had no sexual contact with Ms. Terrell of any kind, at any time and that he did not sexually assault or harass her. If that is Mr. Jones defense, then testimony that Ms. Terrell dresses or acts sexually provocatively at home, in her apartment building, is irrelevant to his theory of defense and will be offered for no other reason than to humiliate, embarrass and intimidate Ms. Terrell. Such evidence should be excluded on the grounds that it is irrelevant, unfairly prejudicial and will confuse the jury. See, Federal Rules of Evidence 402 and 403. Moreover, testimony of prior sexual conduct is generally inadmissible in cases alleging sexual offenses. See, FRE 412 and D.C. Code and In McLean v. U.S. 377 A.2d 74 (D.C. 1977) the D.C. Court of Appeals upheld the trial court s refusal in a criminal rape case to allow two defense witnesses to testify that the complainant was sexually promiscuous. Our Court of Appeals held as follows: The reputation of a woman for unchastity raises unnecessary collateral issues which are nearly impossible to rebut, it diverts the jury's attention from the principal issues at trial and it results in prejudice to the complaining witness which greatly outweighs its extremely limited probative value. Reputation testimony should not be admitted except in the most 4

5 unusual cases where the probative value is precisely demonstrated and outweighs the prejudicial effect of the testimony. McLean. 377 A.2d at 79. If courts allow parties to call witnesses about prior or subsequent behavior, unrelated to the circumstances at issue in the case, then the door will be opened to many more witnesses, trials will be unnecessarily lengthened and juries will be confused and diverted from the issues in the case. For example, in this case, if Mr. Jones is allowed to call witnesses to testify that he did not harass them, should Ms. Terrell be permitted to call witnesses that she never made a claim of sexual harassment against any former or subsequent employer? The rules of evidence restrict character evidence and evidence of past sexual conduct to keep the focus on the particular events and circumstances relevant to the case before it, and to avoid unduly complicating and prolonging trials. See, Rauh v. Coyne, 744 F.Supp (D.D.C. 1990). CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court grant this motion in limine concerning the testimony of Ms. McCann, Ms. Sauls and Ms. Jackson and prohibit any similar testimony by any other witnesses the Defendants may try to present at trial. Respectfully submitted, By: Daniel S. Kozma # The Law Office of Daniel S. Kozma 2120 L Street, N.W., Suite 245 Washington, D.C Attorney for Plaintiff 5

6 Certificate of Service I HEREBY CERTIFY that a copy of the foregoing PLAINTIFF'S MOTION IN LIMINE and a proposed Order were served by first class mail, postage prepaid, this day of, 2005, to: Alan Scott Gregory Attorney at Law 7600 Georgia Avenue, N.W. Suite 412 Washington, D.C Daniel S. Kozma 6

7 IN THE SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA Civil Division KATONNA TERRELL : Plaintiff, : v. : Civil Action No. 04ca Calendar 2 FRITZ JONES, et. al : Judge Rankin Trial Date January 23, 2006 : Defendants. : ORDER Upon consideration of plaintiff s motion in limine and the Court being fully apprised in the premises, it is hereby ORDERED that plaintiff s motion is GRANTED; and it is further ORDERED that Defendants will not be allowed to call as witnesses at trial Robin McCann, Catherine Sauls and Regina Jackson or any other witness who is called to offer character testimony about the defendant, Mr. Jones, or the plaintiff, Ms. Terrell. ENTERED this day of, Judge, District of Columbia Superior Court 7

8 Copies to: Daniel S. Kozma Law Office of Daniel S. Kozma 2120 L Street, N.W., Suite 245 Washington, D.C Alan Scott Gregory Attorney at Law 7600 Georgia Avenue, N.W. Suite 412 Washington, D.C