      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                   IN AND FOR KENT COUNTY


STATE HUMAN RELATIONS      :
COMMISSION ex rel. THEODORA:                        C.A. No: K13C-01-007 RBY
BUTLER                     :
                           :
             Plaintiff,    :
                           :
   v.                      :
                           :
MARY FIELD and DELAWARE    :
COMMUNITY MANAGEMENT, LLC, :
                           :
             Defendants.   :


                          Submitted: November 19, 2014
                           Decided: January 15, 2015


                        Upon Consideration of Plaintiff’s
                              Motion in Limine
                                  DENIED

                                     ORDER


Oliver J. Cleary, Esquire, Department of Justice, Wilmington, Delaware for Plaintiff.

Michael P. Morton, Esquire, Greenville, Delaware for Defendants.




Young, J.
State Human Rel. Comm. ex. rel. Theodora Butler v. Mary Field, et. al.
C.A. No.: K13C-01-007 RBY
January 15, 2015

                                        SUMMARY
       The factual basis giving rise to this entire matter was described in the Order
determining a Motion for Summary Judgment herein filed on January 14, 2014.
Those facts are adopted by reference here.
                                        DISCUSSION
       By her Motion in Limine, Plaintiff now seeks to exclude two pieces of
evidence, both relating to her sense of humor. The first consists of alleged email
exchanges between herself and Ms. Schafer, in which she sent jokes similarly
tasteless to the ones forming the basis of this lawsuit. In particular, Plaintiff points to
an email, purported to have originated from her email account, recounting a barb
involving a Catholic Priest and a Nun. The second category of evidence Plaintiff
attempts to exclude, is any reference to the type of comedians she enjoys.
Specifically, Plaintiff highlights an answer she gave in her deposition that she is a fan
of the comedians Tracy Morgan and Chris Rock.
       Plaintiff supposes that Defendants will use the evidence of her sense of humor
to malign her character. According to Plaintiff, this evidence, if offered, would be
impermissible character evidence, as it does not fall under one of the D.R.E.
exceptions. Specifically, Plaintiff argues that the email containing the Catholic joke,
as well as her deposition testimony, do not speak to her character for truthfulness or
untruthfulness, as called for by D.R.E. 609(a)(1) and (b)(1).1 Aside from these

       1
         D.R.E. 609(a)(1) provides in relevant part, that the credibility of a witness may be
attacked in the limited circumstance that “the evidence may refer to character for truthfulness or
untruthfulness.” D.R.E. 609(b)(1) provides in relevant part, that specific instances of conduct
pertaining to character “may...if probative of truthfulness or untruthfulness, be inquired into on

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State Human Rel. Comm. ex. rel. Theodora Butler v. Mary Field, et. al.
C.A. No.: K13C-01-007 RBY
January 15, 2015

exceptions, D.R.E. 608(b) forbids extrinsic evidence of character.2
       Plaintiff additionally makes a relevance objection, under D.R.E 401, to the
sense of humor evidence. Formulated rather vaguely, Plaintiff contends that the
alleged Catholic joke email and her preference in comedians are irrelevant to the
matters at the heart of the case. Plaintiff avers that her lawsuit concerns the actions
of DCM in not responding to her Complaint – this is the discrimination alleged – not
the joke sent by Ms. Schafer. Plaintiff further argues that the admission of the
evidence will serve to confuse and mislead the jury. Plaintiff portends that the jury
will think that the case is about the joke, rather than DCM’s purported failure to
address Plaintiff’s concerns adequately. As per Plaintiff, the Court should, pursuant
to D.R.E. 403, rule against the admissibility of said evidence.
       Defendants respond by vehemently asserting that Plaintiff’s sense of humor is,
in fact, at the core of the case. The relevancy is said to be almost self-apparent. This
is an appropriate characterization. Plaintiff formulates her suit as a disparate treatment
and disparate impact claim. The significance of this is that disparate treatment claims
require a showing of discriminatory intent.3 The bulk of Defendants’ counter
argument is, that far from a discriminatory impetus, they did not act upon Plaintiff’s

cross examination of the witness (1) concerning the witnesses’ character for truthfulness or
untruthfulness...”
       2
         D.R.E 609(b) provides in relevant part: “[s]pecific instances of the conduct of a witness,
for the purpose of attacking or supporting the witness’ credibility...may not be proved by
extrinsic evidence.”
       3
        Fair Housing of the Dakotas, Inc. v. Goldmark Property Management, Inc., 778
F.Supp.2d 1028, 1037 (D.N.D. 2011)(“[p]roof of discriminatory purpose is crucial for a disparate
treatment claim”).

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State Human Rel. Comm. ex. rel. Theodora Butler v. Mary Field, et. al.
C.A. No.: K13C-01-007 RBY
January 15, 2015

Complaint, because they felt that the two emailing pen-pals had resolved the matter
on their own. Plaintiff’s sense of humor is directly relevant to this point. Defendants
do not seek to admit this evidence to assail Plaintiff’s character, but rather to dispute
that there was a conflict that required intervention. Furthermore, the existence of a
discriminatory intent is a question to be resolved by the jury. Such evidence as the
email containing the Catholic joke or Plaintiff’s taste in comedy are appropriate in
order for the jury to make credibility determinations, regarding Defendants’ true
motive for not taking remedial action. \To exclude this evidence would leave the jury
with a one-sided perspective of the event. Rather than mislead the jury, this evidence
will provide a more holistic view.
                                     CONCLUSION
       Evidence of the Plaintiff’s taste in comedy is central to the issues raised by
this case. Indeed, the origin of this suit is rooted in comedic undertakings. To
exclude this evidence would do disservice to the men and women of the jury, who
will ultimately weigh the facts of this matter. Thus, Plaintiff’s Motion in Limine is
DENIED.
       IT IS SO ORDERED.
                                               /s/ Robert B. Young
                                                          J.

RBY/lmc
oc: Prothonotary
cc: Counsel
     Opinion Distribution
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