                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-9-2002

Coleman v. Home Depot Inc
Precedential or Non-Precedential: Precedential

Docket No. 00-3496




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PRECEDENTIAL

       Filed October 9, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 00-3496 and 00-3656

MARY A. COLEMAN

v.

HOME DEPOT, INC.

Mary A. Coleman,Appellant in No. 00-3496
Home Depot U.S.A., Inc.,*Appellant in No. 00-3656

*Pursuant to FRAP 12(a)

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 98-cv-02022)
District Judge: Honorable Mary Little Cooper

Argued: April 25, 2002

Before: BECKER, Chief Judge, SCIRICA and
RENDELL, Circuit Judges.

(Filed: October 9, 2002)

       DAVID A. KRENKEL, ESQUIRE
        (ARGUED)
       Arbus, Krenkel & Monaghan, LLC
       1001 Deal Road
       Ocean, NJ 07712

       Counsel for Appellant/Cross-Appellee
       Mary Coleman




       PATRICK G. BRADY, ESQUIRE
        (ARGUED)
       JOHN M. O’CONNOR, ESQUIRE
       CLARA H. RHO, ESQUIRE
       Carpenter, Bennett & Morrissey
       Three Gateway Center
       100 Mulberry Street
       Newark, NJ 07102

       Counsel for Appellee/Cross-Appellant
       Home Depot U.S.A., Inc.

OPINION OF THE COURT

BECKER, Chief Judge.
Plaintiff Mary Coleman, an African American female, who
claims that defendant Home Depot discriminated against
her on the basis of race, gender and age when it refused to
give her a job in sales and when it terminated her from her
position as a cashier, brought suit against Home Depot in
the District Court for the District of New Jersey, alleging
employment discrimination. The jury found for Home
Depot. Coleman’s appeal from the judgment of the District
Court entered on the jury verdict turns on the District
Court’s exclusion from evidence of an EEOC Letter of
Determination in which the Agency concluded that
reasonable cause existed to believe that Home Depot had
discriminated against Coleman because of her sex and race
in connection with her hiring, request for transfer, and
discharge. The District Court excluded the evidence, which
was otherwise admissible pursuant to Fed. R. Evid.
803(8)(C), primarily because it found that its probative
value was low and that any such value was outweighed by
confusion and unfair prejudice. See Fed. R. Evid. 403.
Coleman contends that this ruling was an abuse of
discretion.

This appeal presents the question whether an EEOC
Letter of Determination, which is presumptively probative
when not challenged as untrustworthy under Rule
803(8)(C), can nonetheless be excluded due to the

                                2


considerations identified in Rule 403. See id. (listing the
considerations as "unfair prejudice, confusion of the issues,
or misleading the jury, or consideration of undue delay,
waste of time, or needless presentation of cumulative
evidence"). Although the Circuits are divided on the issue,
we conclude that an EEOC Letter of Determination is not
per se admissible under Rule 403, and that, like other
probative evidence, it may be excluded if the countervailing
403 factors substantially outweigh its probative value.
While the District Court found that the letter should be
excluded because of the risk of unfair prejudice and
confusion, instead we find that other Rule 403 factors --
undue delay and waste of time -- are sufficient on the
record to tip the scales in favor of finding that the District
Court did not abuse its discretion when it excluded the
letter. The judgment of the District Court will therefore be
affirmed.

I. Background Facts

Coleman applied for a position with Home Depot’s
Lakewood, New Jersey store on July 15, 1996. On her
application, she stated that she was applying for"any"
position, and represented that she had prior work
experience/skills on a cash register, in hardware,
plumbing, lumber, paint, and electrical. [SA491]. Within a
week of submitting her application, Home Depot called
Coleman to its Lakewood store for an interview. Vincent
Kobera, the Store Manager, conducted the hiring interview.
[SA96].
During the interview, Coleman stated that she was most
interested in a sales position, but was told that there was
only an opening as a cashier. [A47-48]. She was also told
that she would have the opportunity down the line to
transfer into a different department. [A48]. Kobera testified
that his goal, as an employer, was to "try to put people in
where they’re going to be most comfortable. I mean when
customers come in, they want to deal with someone in
electrical who has some working knowledge or some point
of reference for that. So, part of the interview process is to
try to find that person’s -- call it niche, if you like, and
where they are going to fit with us. And that’s why during

                                3


the interview, we talk about everything that’s on the
application." [SA185-186]. During the interview Kobera
questioned Coleman about her experience in electrical,
plumbing, and hardware as indicated on her application
form. [SA97-98].

At the end of the interview, Kobera decided not to offer
Coleman a position in sales, but offered her a position as a
cashier instead. His decision with respect to sales was
based on the fact that during the interview, Mary was
"polite, courteous . . . [but] when I questioned her about
[hardware], she couldn’t answer the questions and even
told me that she didn’t have a lot of knowledge on that, so
that was part of it." [SA184]. In this regard, Kobera testified
that the hardware department at Home Depot "is really
hand tools, power tools, stationary tools in that very
specialized area," but when he asked Mary "if a customer
came in and wanted to buy a power tool for a gift and they
wanted to buy one of the most versatile tools they could
buy, what would she suggest. And Mary said she did not
know. And then I asked her the same thing with hand tools
. . . and she told me that when she worked at the hardware
store, she really didn’t get in to the power tool part of the
business . . . . she said it was more of a small family
business. They carried like nuts and bolts and did like pots
and pans type -- like a little mom and pop hardware store."
[SA 227-228]. Thus, at the end of the interview, Kobera
offered Coleman a position as a part-time cashier, which
she accepted on the spot. [SA99-100].

Coleman began working at Home Depot on July 31,
1996. Before actually beginning work, she received training
on the use of the cash register system, including the
operation of function keys, paperwork associated with
certain types of transactions, and procedures on the use of
the register drawer and counting to close the register.
[SA127; see also Cashier Training Checklist, SA492].
Notwithstanding the training, Coleman received several
warnings about her poor job performance as a cashier with
respect to handling monies (shortages and overages in her
register at the end of the day). [SA102]. Indeed, Coleman
received at least nine separate written warnings about her
performance in her six month career with Home Depot.
                                4


[SA133-134; 135; 136-137; 137-138; 138-139; 147; 142;
145; 150-151]. These performance warnings indicated that
future problems with her cash transactions would result in
more written warnings, and possibly termination.

Despite her poor performance on the cash register,
Coleman asked for a transfer from the cashier position into
the Hardware Association position. [SA131-132]. This
request was denied. The Assistant Store Manager, Kevin
McCann, testified that Home Depot does not transfer
employees having performance problems from one
department to another:

       [W]e do not transfer associates from area to area if they
       have performance issues . . . . [H]aving a performance
       problem, and in her case, a basic skill such as cash
       handling, which really relates to paying attention to
       detail and, you know, basic math skills, that could be
       a problem on the sales floor, as well.

[SA303]. Kobera testified to the same:

       Q: And during the time that you were the floor
       manager at [the] Lakewood [store], did you ever
       transfer an individual from a department who was
       having performance problems as the solution to
       that problem by putting them in another
       department?

       A: No . . . . it doesn’t solve the problem, you don’t get
       to the root of it, you’re just moving the problem
       and letting someone else deal with it.

[SA221].

Home Depot’s employee handbook states that after three
counseling sessions for the same performance warning, the
employee could be terminated. [SA224]. In addition to her
six-month performance review, which indicated that
Coleman needed improvement, she also received additional
training and assistance on the cash register on four or five
separate occasions by Jean Amato, an employee at the
Lakewood store. [SA158]. Moreover, Anne O’Neil, the Store
Customer Service Manager, worked with Coleman to
remedy her accuracy problems [SA154-155], as did the
head cashier, Sue Gibberson. [SA158]. Despite all this help,

                                5


Coleman’s performance continued to fall short and she
continued to receive written warnings. Ultimately, after a
customer called the store to complain that Coleman had
short-changed him $10.00, Coleman received her last
warning and was terminated. [SA151]. With respect to her
discharge, Kobera testified:
       We had had like -- by now it was nine or ten write-
       ups. And we have given her lots of counseling. She had
       lots of training . . . . We had done that, and [her
       performance] was affecting the customers. I mean
       when customers start calling the store and saying I’m
       not happy . . . there comes a point where we looked at
       -- I looked at Mary -- Kevin and I, we talked about it.
       But ultimately it was my decision to look at Mary’s
       performance and say I didn’t see that it was going to
       get any better, giving her another chance wasn’t going
       to correct the problem.

[SA230-231].

II. Procedural History

A. Agency Level

On May 28, 1997, Coleman filed a charge of employment
discrimination with the Equal Employment Opportunity
Commission ("EEOC"). She claimed that Home Depot
discriminated against her on the basis of her sex, race, and
age in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. S 2000(e), et seq., and the Age Discrimination in
Employment Act of 1967, 29 U.S.C. S 621, et seq. by: (i)
hiring her as a cashier instead of as a sales associate in the
Hardware Department; (ii) refusing to transfer her to a sales
associate position within the Hardware Department; and
(iii) terminating her employment. [A28]. Following an
investigation, the EEOC issued a Letter of Determination on
January 26, 1998, in which it concluded that reasonable
cause existed to believe that Home Depot had discriminated
against Coleman because of her sex and race in connection

                                6


with Coleman’s hiring, request for transfer, and discharge.
We rescribe the letter in the margin.1 [A30-32].

The EEOC concluded that there were no facts to
substantiate plaintiff ’s claim that Home Depot
discriminated against her based on her age.
_________________________________________________________________

1. The letter states, in relevant part:

        Evidence reveals that after Charging Party was hired as a cashier,
       she constantly requested to be transferred to hardware or another
       sales position in areas in which she was highly experienced. During
       the same period that she was requesting to be transferred, males
       with less experience were being hired directly into sales positions.
       Some of the male applicants had indicated on their employment
       application that they were applying for available positions and were
       hired directly into sales positions.

        Since Charging Party was hired as a cashier rather than a sales
       associate, she experienced performance problems. As a result of not
       being allowed to transfer to a position she was qualified to perform,
       Charging Party’s employment was affected when her employment
       was terminated effective February 13, 1997 for not being able to
       perform the cashier’s job.

        Evidence reveals that Charging Party had received and [sic] overall
       rating of "3" on December 15, 1996. In addition, evidence reveals
       that a similarly situated white employee, who had received warnings
       for shorting and/or overage, was allowed to transfer to another
       department.

        The evidence as a whole makes it reasonable to conclude that
       Charging Party was discriminated against because of her sex
       (Female) and race (Black) with respect to Charging Party’s hiring,
       transfer and/or job assignment and discharge allegation.

        * * *

        During the course of the investigation, the Commission has
       uncovered evidence which indicates that Respondent has
       discriminated against females with respect to hiring and other terms
       and conditions of employment, i.e., wages and transfers and/or job
       assignments into sales positions.

        Evidence reveals that females were being hired as cashiers at a
       starting salary of $8.00 regardless of their prior experience. When
       females applied for an open position, they were placed in the cashier
       department while males who applied for open positions with no
       experience in sales were placed in sales jobs at a higher salary.

                                7


B. The District Court Suit and the Court’s
Rationale for Excluding the Evidence

Coleman’s civil action alleged that Home Depot had
discriminated against her on the basis of her gender and
race in violation of Title VII by: (i) hiring her on July 31,
1996 as a cashier instead of as a sales associate and failing
thereafter to transfer her from a cashier to sales associate
position in the Hardware Department; and (ii) terminating
her employment on February 13, 1997.

On June 23, 2000, after the close of discovery and
shortly before trial was scheduled, Home Depot moved in
limine to preclude Coleman from introducing into evidence
at trial the EEOC’s determination letter. Home Depot
argued that the record did not support the EEOC’s
findings, which failed to reference any specific evidence,
and that, as a result, the probative value of the
Determination Letter was outweighed by its prejudicial
effect. At the in limine hearing, the District Court delayed
ruling on the motion to exclude the report, deciding instead
to:

       listen to the evidence very carefully, the evidence that
       is adduced on the plaintiff ’s case in chief, and I will
       make a ruling on this before the plaintiff has to rest.
       So that if all or any part of this EEOC determination is
       admitted, it’s admitted after the Court has had an
_________________________________________________________________

        Evidence further reveals that males hired as cashiers were
       subsequently transferred into sales positions. However, the females
       hired as cashiers who were transferred, were being transferred
       either to the service desk or refund department, not to sales
       positions.

        Females have systematically been placed in cashiers’ position and
       not given the opportunity to advance into sales positions.

        Based on the evidence of   record, there is reasonable cause to
       believe that sex (Female)   were [sic] motivating factors in
       Respondent’s decision not   to hire and/or transfer qualified females
       into sales positions at a   higher rate of pay.

[A31-32].

                                8


       opportunity to see what reliable evidence there is, to
       support what the EEOC said.

        * * *

        I won’t exclude the report on the basis that I can’t
       see what evidence the EEOC relied on, but I will test
       that report against the evidence which is adduced by
       the plaintiff at trial, not to see whether I am persuaded
       (that’s not my job), not to see whether I am persuaded
       in the direction that the EEOC determined, but to see
       whether there is reliable evidence upon which the
       EEOC determination could reasonably have rested.

[SA9-11].

After considering the testimony and other evidence
submitted by Coleman, the District Court granted Home
Depot’s motion and precluded Coleman from submitting the
EEOC Letter of Determination. The District Court reasoned
as follows:

        Let me give the legal basis for the evidence evaluation
       first. The law that applies to this determination is
       straightforward. The United States Supreme Court
       decided in a 1976 ruling, Chandler v. Roudebush , that
       EEOC findings are admissible under the hearsay rules
       -- that is specifically Rule 803(8)(C) -- in a federal trial.
       The Supreme Court in Chandler did not limit the
       discretion of the trial judge to consider whether despite
       the hearsay admissibility of the report itself, the report,
       nevertheless, should be excluded, "If sufficient negative
       factors are present." That is a quote from the notes of
       the Advisory Committee on the proposed rules under
       Rule 803(8)(C).

        Thereupon arose a split of authority in the Circuits,
       but the Third Circuit, as always, clearly held that it is
       within the discretion of the District Court to admit or
to refuse to admit the EEOC’s findings of fact and its
determination on the merits of the charges. That was
the Third Circuit decision in Walton v. Eaton
Corporation . . . .

* * *

                         9


 [T]his is a case-by-case determination that must be
made. In the jurisprudence that has arisen around the
country which has been cited in the parties’ briefs, the
factors that the Court should consider have emerged
and those include whether the report itself presents a
danger of unfair prejudice to the defendant, whether
time spent during the trial will be unduly lengthened if
the report is admitted and the defendant must
introduce evidence to expose the weaknesses in the
report, thus unduly adding to the length of the trial,
what factual basis is stated in the report for both the
findings and the conclusions in the EEOC report and
whether those factual supports are borne out by the
record before the EEOC, and whether the report is
conclusory in nature or reflects ample detail and a fair
summary of the detail of relevant facts pertaining to
the charge. Those are some of the factors that the
Courts have weighed in making this case-by-case
determination.

 The EEOC report in this case does not contain any
footnotes or references to exactly what evidence is
being relied upon. It simply states, "evidence reveals"
or "evidence as a whole" or "based on the evidence of
record." I have reviewed the report line by line in order
to determine whether it should be excluded or admitted
in whole or in part. I conclude that it must be excluded
in whole, that it cannot be redacted or admitted in its
entirety without creating the very danger of unfair
prejudice and confusion which Rule 403 requires the
Court to avoid in making discretionary evidentiary
rulings.

 At the heart of my ruling is the core finding of the
EEOC report that -- and here I quote from Page 2--
"Evidence reveals that after the charging party was
hired as a cashier, she constantly requested to be
transferred to hardware or another sales position in
areas where she was highly experienced. During the
same period that she was requesting to be transferred,
males with less experience were being hired directly
into sales positions."

                         10


 One of the bases for that "highly experienced"
conclusion is stated above in the EEOC letter. It says,
"During her interview, the charging party informed the
respondent that she had experience in several areas
such as plumbing, hardware, electrical, paint and
lumber. The charging party has more than 15 years
sales experience."

 There is no indication in the EEOC determination
where this factual basis comes from. The Court has
now had the opportunity to review the application form
which is in evidence, P-15, and it shows that these
areas were checked off. However, the countervailing
accounts of what was testified to in the interview are
not nearly as strong in the trial as stated in the EEOC
letter.

 Also, the statement that she has more than 15 years
sales experience found in the EEOC letter, is not
supported even by the application form, P-15 in
evidence. If we were to assume it to be truthful and
accurate, there is approximately 13 years of experience
at the family hardware store listed there. Also, the
testimony concerning whether males who had less
sales experience were being hired directly into the sales
department, is one which is sharply in issue here in
the course of the trial and it will be open to each party
to argue to this jury whether these males had more or
less experience than Ms. Coleman indicated during her
application and interview.

 The finding of the EEOC Commission is that the
evidence as a whole makes it reasonable to conclude
that the charging party was discriminated against
because of her sex (female) and race (black) with
respect to the charging party’s hiring, transfer and/or
job assignment and discharge. It makes additional
findings such as, "Has uncovered evidence which
indicates that respondent has discriminated against
females with respect to hiring and other terms and
conditions of employment, i.e., wages and transfers
and other job assignments into sales positions."

 * * *

                         11


 All of these findings are not supported by the
evidence that has been presented by plaintiff, except
for the raw numerical data, as to which I have had to
give the jury a limiting instruction as I have admitted
that into evidence.

 The conclusion of this Court is that substantial
evidence has been presented to the jury on the claims
brought forward by plaintiff in this case, but it differs
from the assertions which are the findings in the EEOC
report. For that reason, I find there is little probative
value in the EEOC’s conclusory statements regarding
the same record.

 I further find that those conclusory statements
regarding the evidence are expressly stated to be the
       basis of the EEOC’s determination and to admit the
       determinations without revealing that they are based
       upon findings that are supported by the evidence in
       this case, would be, I believe, an erroneous ruling in
       the sound exercise of this Court’s discretion.

        This jury would, in effect, be receiving an EEOC
       determination in the nature of an expert opinion on
       conclusions which this lay jury is as equipped to reach
       from the evidence and its own experience and
       instructions in the law where this jury will have had
       the opportunity to view all of the evidence and will have
       the ability to draw its own conclusions from the
       evidence presented regarding whether Ms. Coleman
       was or was not subjected to disparate treatment in her
       assignments and in her termination in this case.

[A5-11] (emphasis added).

The jury returned a verdict in favor of Home Depot.
Coleman appeals, arguing that the District Court abused its
discretion in excluding the EEOC determination letter from
trial.2 The District Court had jurisdiction pursuant to 28
_________________________________________________________________

2. We note that Home Depot is also a cross-appellant in this case; it
appealed the District Court’s order precluding Home Depot from
presenting evidence relating to Coleman’s alleged misrepresentations
about her employment history. Since the parties did not brief the issue
in the present appeal, and, at all events, in light of our holding that the
District Court did not abuse its discretion by excluding the EEOC Letter
of Determination, Home Depot’s appeal is essentially moot.

                                12


U.S.C. S 1331. We have appellate jurisdiction based on 28
U.S.C. S 1291.

We review the admissibility of evidence for abuse of
discretion. See Abrams v. Lightolier, Inc., 50 F.3d 1204,
1213 (3d Cir. 1995). "An abuse of discretion is a‘clear error
of judgment,’ and not simply a different result which can
arguably be obtained when applying the law to the facts of
the case." SEC v. Infinity Group Co., 212 F.3d 180, 195 (3d
Cir. 2000) (quoting In re Tutu Well Contamination Litig., 120
F.3d 368, 387 (3d Cir. 1997)). This standard applies to Rule
803(8)(C) and EEOC determination letters. Walton v. Eaton
Corp., 563 F.2d 66, 75 (3d Cir. 1977).

III. Discussion

A. Rule 803(8)(C)

Fed. R. Evid. 803(8)(C) provides:

       The following are not excluded by the hearsay rule,
       even though the declarant is not available as a witness
       . . . . (8) Records, reports, statements or data
       compilations, in any form, of public offices or agencies,
       setting forth . . . (C) in civil actions and proceedings
       . . . factual findings resulting from an investigation
       made pursuant to authority granted by law, unless the
       sources of information or other circumstances indicate
       lack of trustworthiness.

The rationale of Rule 803(8)(C) is explicated in the advisory
committee’s note as being grounded on a presumption of
reliability of government records. The note explains that it
is "assum[ed] that a public official will perform his duty
properly." Fed. R. Evid. 803(8)(C) advisory committee’s note.
As was explained in Zenith Radio Corp. v. Matsushita Elec.
Indus. Co., Ltd., 505 F. Supp. 1125, 1145 (E.D.Pa. 1980),
"the drafters of 803(8)(C) were motivated by a variation on
the theme underlying all hearsay exceptions -- that
circumstantial guarantees of trustworthiness are provided
by the presumption that governmental officials will perform
their duties faithfully. Accordingly, they were agreeable to
the receipt into evidence of governmental agency findings."3
_________________________________________________________________

3. See also Melville v. Am. Home Assurance Co., 443 F. Supp. 1064, 1112
(E.D.Pa. 1977) ("The conceptual underpinning for this exception, similar

                                13


With respect to EEOC determinations in particular, the
United States Supreme Court itself has held that prior
administrative findings made with respect to an
employment discrimination claim may be admitted, as of
course, pursuant to Fed. R. Evid. 803(8)(C) as evidence at
a "federal-sector trial de novo." Chandler v. Roudebush, 425
U.S. 840, 863 n. 39 (1976).

The principal basis on which government records and
reports may be excluded is the Rule 803(8)(C)
trustworthiness proviso. As the Rule itself states, the
findings are admissible "unless the sources of information
or other circumstances indicate lack of trustworthiness."
Fed. R. Evid. 803(8)(C). The advisory committee’s note
explains:

       Factors which may be of assistance in passing upon
       the admissibility of evaluative reports include: (1) the
       timeliness of the investigation; (2) the special skill or
       experience of the official; (3) whether a hearing was
       held and the level at which conducted; (4) possible
       motivation problems . . . . Others no doubt could be
       added.

Fed. R. Evid. 803(8)(C) advisory committee’s note (internal
citations omitted). Case law has added to the list of
trustworthiness considerations.4
_________________________________________________________________

to that upon which other hearsay exceptions are based . . . is that public
records or reports, by virtue of their being based on legal duty and
authority, contain sufficient circumstantial guarantees of
trustworthiness to justify their use at trial.").
4. In Zenith Radio Corp., for example, the court developed an additional
seven factors addressing the adequacy of the investigative/evaluative
process of agency determinations:

       (1) The finality of the agency findings, i.e. , the state of the
       proceedings at which the findings were made (whether they are
       subject to subsequent proceedings or de novo review), and the
       likelihood of modification or reversal of the findings.

       (2) The extent to which the agency findings are based upon or are
       the product of proceedings pervaded by receipts of substantial
       amounts of material which would not be admissible in evidence

                                14


Most notably, a report may be untrustworthy "if the
report appears to have been made subject to a suspect
motivation. For example, if the public official or body who
prepared the report has an institutional or political bias,
and the final report is consistent with that bias." Federal
Rules of Evidence Manual 1688-89 (Stephen A. Saltzburg et
al. eds., 7th ed. 1998); see also Pearce v. E.F. Hutton Group,
Inc., 653 F.Supp. 810, 814 (D.D.C. 1987) (excluding
findings made in a congressional report because,"[g]iven
the obviously political nature of Congress, it is questionable
whether any report by a committee or subcommittee of that
body could be admitted under rule 803(8)(C) against a
private party. There would appear to be too great a danger
that political considerations might affect the findings of
such a report"). An EEOC report might also be
untrustworthy where it is made in contemplation of
litigation. See Harris v. Birmingham Bd. of Educ., 537 F.
Supp. 716, 721-22 (N.D. Ala. 1982), aff ’d in part & rev’d in
part, 712 F.2d 1377 (11th Cir. 1983) (finding that an EEOC
determination was not trustworthy where it was made six
_________________________________________________________________

       (e.g., hearsay, confidential communications, ex parte evidence), and
       the extent to which such material is supplied by persons with an
       interest in the outcome of the proceeding.

       (3) If the findings are products of hearings, the extent to which
       appropriate safeguards were used (Administrative Procedure Act,
       Due Process), and the extent to which the investigation complied
       with all applicable agency regulations and procedures.

       (4) The extent to which there is an ascertainable record on which
       the findings are based.

       (5) The extent to which the findings are a function of an executive,
       administrative, or legislative policy judgment (as opposed to a
       factual adjudication) or represent an implementation of policy.

       (6) The extent to which the findings are based upon findings of
       another investigative body or tribunal which is itself vulnerable as a
       result of trustworthiness evaluation.

       (7) Where the public report purports to offer expert opinion, the
       extent to which the facts or data upon which the opinion is based
       are of a type reasonably relied upon by experts in a particular field.

Zenith Radio Corp., 505 F. Supp. at 1147.

                                15


months after litigation had been filed and that"[t]he
trustworthiness of the determination is further eroded by
the obvious disregard of the affidavits submitted by the
defendant to the EEOC. The court is appalled by the
numerous erroneous and obviously slanted statements
contained in the determination, the list of which is too
lengthy to set out").

While the District Court was skeptical about whether the
EEOC had the proper factual basis to come to the
conclusions that it did in the EEOC Letter of
Determination, none of the aforementioned trustworthiness
considerations have been invoked in this case, either here
or in the District Court. We assume therefore that the
EEOC determinations were trustworthy and review the
District Court’s decision to exclude the EEOC Letter of
Determination only under Rule 403.

B. Rule 403

Rule 403 provides:

       Although relevant, evidence may be excluded if its
       probative value is substantially outweighed by the
       danger of unfair prejudice, confusion of the issues, or
       misleading the jury, or by considerations of undue
       delay, waste of time, or needless presentation of
       cumulative evidence.

Fed. R. Evid. 403. Rule 403 is an "umbrella rule" spanning
the whole of the Federal Rules of Evidence. See Federal
Rules of Evidence Manual 251 (Stephen A. Saltzburg et al.
eds., 7th ed. 1998) ("[T]he Trial Judge must apply [Rule
403] in tandem with other Federal Rules under which
evidence would be admissible."). Accordingly, it is generally
applied to evidence otherwise admissible under Rule
803(8)(C).5 See, e.g., Zenith Radio Corp., 505 F. Supp. at
_________________________________________________________________

5. The Fifth Circuit has noted that it is possible to confuse "the test for
admissibility under Rule 803(8)(C) with that for excluding otherwise
admissible evidence under Rule 403." Cortes v. Maxus Exploration Co.,
977 F.2d 195, 201 (5th Cir. 1992). As that Court has explained:

       Under Rule 803(8)(C), investigative reports made by government
       agencies are removed from the rule against hearsay unless

                                16


1146 ("[W]here the probative value of [evidence admissible
pursuant to Rule 803(8)(C)] is outweighed by the danger of
unfair prejudice . . . or needless presentation of cumulative
evidence attendant upon the opponents’ efforts to establish
untrustworthiness of the report, the court may exclude the
report under F.R.E. 403.").

Rule 403 recognizes that a cost/benefit analysis must be
employed to determine whether or not to admit evidence;
relevance alone does not ensure its admissibility. That is,
evidence may be excluded if its probative value is not worth
the problems that its admission may cause, e.g. unfair
prejudice, confusion of the issues, misleading the jury,
undue delay, waste of time, or needless presentation of
cumulative evidence.6 However, there is a strong
presumption that relevant evidence should be admitted,
and thus for exclusion under Rule 403 to be justified, the
probative value of evidence must be "substantially
outweighed" by the problems in admitting it. As a result,
evidence that is highly probative is exceptionally difficult to
_________________________________________________________________

       circumstances indicate untrustworthiness. Because of this
       presumption that agency reports are not to be excluded under the
       hearsay rule, this court has held that the party opposing the
       admission of the report under Rule 803(8)(C) must prove the report’s
       untrustworthiness. . . . Rule 403 gives trial courts the discretion to
       exclude relevant evidence "if its probative value is substantially
       outweighed by the danger of unfair prejudice . . ." This court, on
       several occasions, has found investigative reports and files of the
       EEOC to be highly probative. We also warned . . . that Rule 403
       should not be misused in such a way that "would end the
       presumption that evaluative reports are admissible hearsay under
       Rule 803(8)(C)." None of these decisions should be read as leaving
       district courts without discretion under Rule 403 to exclude such
       reports if their probative value is substantially outweighed by
       prejudicial effect or other considerations enumerated in the rule.

Id. (internal citations omitted).

6. It is worth stressing that the term "unfair prejudice" as a factor
against which the probative value of evidence is weighed under Rule 403
is often misstated as mere prejudice. Indeed, any evidence that tends to
harm a party’s case could be said to be prejudicial. Thus, the prejudicial
effect of admitting the evidence must rise to the level of creating an
unfair advantage for one of the parties for the evidence to be excluded
under Rule 403.

                                17


exclude. See, e.g., United States v. Krenzelok, 874 F.2d 480,
482 (7th Cir. 1989) ("Its probative value was . .. great. Its
prejudicial effect may well have been great too. But when
the trial judge is in doubt, Rule 403 requires admission
(this is the force of "substantially outweighed") . . . .).7

Rule 403 necessarily requires that the District Court
engage in balancing to determine whether the probative
value of the evidence is "substantially outweighed" by the
negative factors listed in Rule 403. See United States v.
Long, 574 F.2d 761, 766 (3d Cir. 1978) (noting that even if
the District Court does not invoke Rule 403, "the trial
judge’s balancing will be subsumed in his ruling"). In
balancing, "the proper equation places on one side the
maximum reasonable probative force for the offered
evidence," while "the other side of the equation should
include the likely prejudicial impact of the evidence."
Federal Rules of Evidence Manual 242 (Stephen A.
Saltzburg et al. eds., 7th ed. 1998). The balancing test in
Rule 403 ensures that juries are not presented with
evidence that is far less probative than it is prejudicial.

Coleman submits that EEOC reports are necessarily of
high probative value, especially given the expertise and long
experience of the Agency in employment discrimination
matters. She finds support for this view in federal appellate
case law. Smith v. Universal Services, Inc., 454 F.2d 154,
157 (5th Cir. 1972); Plummer v. Western Int’l Hotels Co.,
656 F.2d 502, 505 (9th Cir. 1981). The Smith Court
intimated that the probative value of EEOC determinations
almost always outweighs any prejudicial impact:

       [T]o ignore the manpower and resources expended on
       the EEOC investigation and the expertise acquired by
       its field investigators in the area of discriminatory
       employment practices would be wasteful and
       unnecessary.
_________________________________________________________________

7. An interesting hypothetical question as to the meaning of Rule 403 is
posed by positing a report or other evidence whose probative value on
the scale of values was 100%. It would appear that, as such, it could not
properly be excluded under Rule 403 because it could not be
"substantially outweighed" by the countervailing factors.

                                18


        The fact that an investigator, trained and experienced
       in the area of discriminatory practices and various
       methods by which they can be secreted, has found that
       it is likely that such an unlawful practice has occurred,
       is highly probative of the ultimate issue involved in
       such cases. Its probative value, we believe, at least
       outweighs any possible prejudice to defendant.
       "Prejudicial" cannot be equated with "harmful" in all
       cases; rather it connotes "harmful," plus"non-
       probative."

454 F.2d at 157.8

Although we decline to hold that EEOC reports are per se
admissible as more probative than prejudicial, the
argument that EEOC reports that are not challenged as
untrustworthy are presumptively probative is not without
force. But the other Rule 403 factors -- especially
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence, which are often
necessary to counter an EEOC report -- could "kick-in" and
control, especially where the report could be shown to be of
low probative value. The weight of the case law holds that
Rule 403 may operate on an EEOC report, and that the
decision of whether or not an EEOC Letter of Determination
is more probative than prejudicial is within the discretion of
the trial court, and to be determined on a case-by-case
basis. Hines v. Brandon Steel Decks, Inc., 886 F.2d 299,
302 (11th Cir. 1989); United States v. MacDonald , 688 F.2d
224, 229-30 (4th Cir. 1982); Johnson, 734 F.2d at 1309;
Cortes, 977 F.2d at 201-02.
_________________________________________________________________

8. We note that the Fifth and Ninth Circuits take the minority view that
agency reports are per se admissible as the probative value necessarily
outweighs the negative factors in Rule 403. The majority view, on the
other hand, gives less deference to the probative value of agency reports,
refusing to categorically require admission of agency findings. See e.g.,
Paolitto v. Crawford, 151 F.3d 60, 65 (2nd Cir. 1998) (adopting the
majority position that leaves "the question of whether to admit EEOC . . .
findings to the sound discretion of the district court"); Johnson v. Yellow
Freight System, Inc., 734 F.2d 1304, 1309 (8th Cir. 1984) ("While EEOC
reports may contain information that would be useful to the jury, their
probative value may be outweighed by problems that would result from
their admission.").

                                19


This view is apparently the law of this Circuit, based
upon a terse discussion in Walton. 563 F.2d at 75. At all
events, we think that Walton reflects the better view, and
we take this opportunity to endorse the majority position in
Walton and to clarify that a District Court has the
discretion to exclude probative EEOC Letters of
Determination where the negative factors listed in Rule 403
substantially outweigh the probative value of the EEOC
determinations. In other words, we decline Coleman’s
invitation to conclude that, based on the presumption of
admissibility under Rule 803(8)(C), EEOC Letters of
Determination are per se more probative than prejudicial
under Rule 403, and will review the District Court’s
exclusion of the EEOC letter based on the principles
discussed supra.

We note in this regard that the assessment of probative
value under Rule 403 should take into consideration the
proof value of the particular report as and when offered at
trial. Here that proof value could be said to be low, given
the fact that it would have been introduced to the jury after
all the evidence had been offered (which evidence was at
odds with the EEOC report), and was more conclusory than
factual in nature. See, e.g., Paolitto , 151 F.3d at 65; see
also Johnson, 734 F.2d at 1309. Further its value is not
increased based on the agency’s expertise, as the District
Court seemed to think, because it is not an "expert report."
Evaluative public records and reports, admissible under
Article VIII of the Federal Rules of Evidence, are distinct
from expert opinion evidence, identified in Article VII. They
are subject to entirely different standards of admissibility,
et alia.

C. Application to This Case
As we have explained, the District Court delayed ruling
on the motion to exclude the Letter of Determination at the
in limine hearing. Rather, the Court allowed Coleman to
present her case-in-chief at trial before making a decision.
Referencing Walton, the District Court concluded that the
risk of unfair prejudice and confusion substantially
outweighed the probative value of the EEOC Letter of
Determination. The District Court found that the probative

                                20


value of the document was particularly low since the
evidence presented at trial differed from the findings of the
EEOC in a critical respect -- the EEOC’s finding that
Coleman was "highly experienced" in sales was clearly
undermined by the testimony presented at trial, even by
Coleman herself.

We disagree with the District Court’s general approach to
the Rule 403 calculus. The District Court in effect charged
the plaintiff with replicating the record before the EEOC
and then evaluated the record produced by plaintiff to see
if it justified the report. But neither the plaintiff nor the
District Court had access to the whole EEOC record. 9 What
the District Court had was: (1) A letter from Home Depot to
the EEOC about a consent decree entered in a class action
case against Home Depot; (2) A response from Home Depot
to the EEOC; (3) Coleman’s EEOC charge questionnaire,
filled out by Coleman herself. It does not appear, however,
that the District Court knew how the EEOC came to its
determination or that it had access to all the information
upon which the EEOC relied. In particular we do not know
if the EEOC had any evidence upon which to base its
conclusion that a white employee with evaluations as poor
as Coleman’s was allowed to transfer to another
department or that women were systematically hired as
cashiers irrespective of their experience and never
transferred to sales positions, unlike the male cashiers. See
supra.

On the other hand, the District Court was clearly correct
about the low probative value of the most critical facet of
the EEOC report: that Coleman was not hired as a sales
associate despite being a "highly experienced" candidate.
Coleman’s experience in hardware sales, so central to the
Home Depot modus operandi, was exposed by her own
testimony to be gossamer.10 That is a matter within her own
_________________________________________________________________

9. The EEOC does not appear to have clear standards for how it gathers
information. The Federal Laws Prohibiting Job Discrimination: Questions
and Answers, available at http://www.eeoc.gov/task/pch-lit.html, states
that "[i]n investigating a charge, EEOC may make written requests for
information, interview people, review documents, and, as needed, visit
the facility where the alleged discrimination occurred."

10. Kobera, the Store Manager at the Home Depot where Coleman
worked, testified that Home Depot attempts to place employees in sales
                                21


ken. Yet had the EEOC report been admitted, a great deal
of time would have had to have been consumed to counter
the report’s conclusion about the fate of other employees,
male and female. Because the EEOC Letter of
Determination concluded that Home Depot had
systematically discriminated against female and minority
employees, in order to rebut these expansive allegations,
Home Depot would have had to present evidence showing
that it did not discriminate when it placed former
employees in cashier positions or fired them. This would
certainly have involved a great deal of testimony-- a trial
within a trial in fact -- about the employment histories of
a large number of former employees.11

The District Court opined that the EEOC Letter of
Determination would be unfairly prejudicial or confusing,
but we find the argument that the evidence would have
_________________________________________________________________

positions who have a "working knowledge or some point of reference" in
the particular area so that they can best assist customers. For example,
Home Depot wanted employees in the hardware department to be able to
recommend a versatile power tool to customers. See discussion supra.

11. A number of cases have considered the amount of time that it would
take to counter a trustworthiness challenge as a consumption of time
factor cognizable under Rule 403. See McShain v. Cessna Aircraft Co.,
563 F.2d 632, 636 (3d Cir. 1977) (holding that the District Court did not
abuse its discretion by excluding an NTSB report because the "reception
of such reports into evidence would have involved a lengthy . . . inquiry
into the ‘circumstances bearing on the trustworthiness’ of the
investigators’ conclusions. Thus, it may well have been that, in the
course of the eighteen-day trial, the additional probative value of the
excluded reports was substantially outweighed by the opportunity to
avoid undue delay of waste of time"); see also Zenith Radio Corp., 505 F.
Supp. at 1146 ("[W]here the probative value of [evidence admissible
pursuant to 803(8)(C)] is outweighed by . . . needless presentation of
cumulative evidence attendant upon the opponents’ efforts to establish
untrustworthiness of the report, the court may exclude the report under
F.R.E. 403."). The trustworthiness challenge will generally be disposed of
at the in limine hearing stage, but not always. Moreover, a finding of
trustworthiness by the judge does not preclude a trustworthiness
challenge by the objecting party at trial. Therefore since trustworthiness
can also become an issue at trial itself, it can bear upon the time-related
factors in Rule 403.

                                22


created the potential risk of undue delay and waste of time
to be stronger. Weighing undue delay and waste of time
against the low probative value of the EEOC determination,
it appears that the District Court acted properly. We are
satisfied that the EEOC Letter of Determination wrongly
classified Coleman as "highly experienced"-- the evidence
demonstrated that Coleman knew little about hand and
power tools and had only worked in a "mom and pop"
hardware stare, see discussion supra-- and that it was of
such low probative value that the Court could have found
that it was "substantially outweighed" by the fact that
Home Depot would have had to rebut the EEOC’s finding
that the company engaged in a pattern of race and gender
discrimination by presenting information about numerous
former Home Depot employees.

In sum, we conclude that the District Court did not
abuse its discretion in deciding that the probative value of
the EEOC Letter of Determination was "substantially
outweighed" by the problems created by its introduction.
Although the District Court did not know the full extent of
the evidence relied upon by the EEOC to conclude that
Home Depot had wrongly: (1) hired Coleman as a cashier;
(2) refused to transfer her to a sales position; and (3)
terminated her, considering that the EEOC clearly was
mistaken in the critical conclusion that Coleman was a
"highly experienced" employee, the District Court did not
abuse its discretion in finding that the EEOC Letter of
Determination had such a low probative value that the
undue delay that would have been involved in the rebuttal
of the allegations of systematic discrimination contained in
the EEOC determination "substantially outweighed" that
low probative value. The judgment of the District Court will
therefore be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                23
