Depoy et. al. v. The Trustees of the Gill Odd Fellows’ Home of Vermont, No. 155-3-11 Wrcv (Teachout, J., Nov. 26, 2013).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text
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                                              STATE OF VERMONT

SUPERIOR COURT                                                                          CIVIL DIVISION
Windsor Unit                                                                            Docket No. 155-3-11 Wrcv

TRICIA DEPOY and
NANCY GRATTAN,

         Plaintiffs,

v.

THE TRUSTEES OF THE GILL ODD
FELLOWS’ HOME OF VERMONT,

         Defendant.

                                      DECISION
           Defendant’s Motion in Limine (Alleged Harrassment of Co-Workers)
                                     (Motion #15)


       On September 9, 2013, Defendant moved in limine to prohibit Tricia Depoy and
Nancy Grattan (collectively, “Plaintiffs”) from offering evidence about alleged
harassment of other employees by Leslie Whittington, Defendant’s former administrator.
Defendant argues that such evidence is irrelevant to any issues in this case and would
serve only to improperly bolster Plaintiffs’ claims.

        Plaintiffs opposed Defendant’s motion on September 24, 2013, claiming that
evidence about Ms. Whittington’s harassment of employees other than Plaintiffs
demonstrates a common scheme or plan by Defendant to retaliate against employees.
Plaintiffs further assert that this evidence indicates that Defendant maintained a hostile
work environment.

        On October 4, 2013, Defendant filed a reply to Plaintiffs’ opposition, again
asserting that evidence about its former administrator’s harassment of other employees
was irrelevant and also detailing how much delay and confusion admitting such evidence
would cause during the trial.

                                                        ANALYSIS

         V.R.E. 404(b) establishes that generally “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show that he acted in
conformity therewith.” V.R.E. 404(b). However, such evidence “may be admissible for
other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Id. Here, the parties dispute
Plaintiffs’ purpose for seeking to introduce evidence about alleged harassment of other
employees by Defendant’s former administrator.

        Defendant argues that the evidence should be inadmissible because it would tend
to show only that Defendant’s former administrator routinely harassed her subordinates
and that she likely retaliated against Plaintiffs as part of this general harassment.
Defendant also asserts that if such evidence were admitted, it would unnecessarily
confuse the jury and cause undue delay because Defendant would be forced to address
each harassment claim raised by Plaintiffs despite these claims being unrelated to the
parties or specific allegations in this case.

        Plaintiffs counter that evidence regarding other acts of harassment and retaliation
by Defendant’s former administrator suggests that all of her actions were part of a plan to
harass or retaliate against her employees. Secondly, Plaintiffs argue that evidence of
other acts of harassment tends to show that Defendant created a hostile work
environment.

        Plan. Plaintiffs argue that Defendant’s former administrator harassed numerous
employees and, therefore, the specific actions she took against Plaintiffs were part of a
common scheme of harassment. However, Plaintiffs never detail how any of these
allegations demonstrate a common plan by Defendant or why Defendant would have such
a plan. In cases where evidence regarding a common plan is admissible, the actual plan
or scheme is identifiable and serves a specific purpose. See, e.g., Sweet v. Roy, 173 Vt.
418, 436-37 (2002) (highlighting the many different events that suggested defendants had
a plan “to gain ownership of all the mobile homes in their park”); State v. Catsam, 148
Vt. 366, 382 (1987) (noting that the similarities between different incidents of sexual
molestation indicated a plan to continue committing such acts). There must be “at a
minimum, a clear inference of the existence of a plan from the prior acts.” Id.

        Plaintiffs’ allegations of a common plan fall closer to pure, inadmissible character
evidence. In effect, Plaintiffs’ highlighting of unrelated allegations of harassment by
Defendant’s former administrator would suggest to the jury that she likely harassed
Plaintiffs because she had done the same to other employees. See Loso v. Yankee Med.,
Inc., 2009 WL 3320269, at *2 (Vt. Oct. 8, 2009) (explaining that in the absence of a link
between the proposed evidence and the alleged wrong, the evidence should be excluded
because its principal purpose would be to suggest that an individual acted in conformance
with earlier, unrelated actions). As the Supreme Court stated in Sweet v. Roy with
reference to a Rule 404(b) exception, “it is important that the exception not become a
pretext for admission of character evidence.” 173 Vt. At 439.

        Even if the Plaintiff were able to provide more specific evidence of an identifiable
plan with a specific purpose, admissibility is subject to the balancing test of V.R.E. 403.
Addressing such evidence would cause confusion and undue delay. If evidence regarding
the harassment of other employees were admitted, Defendant would need to address each
specific instance, explain its version of what occurred, and argue why it is not relevant
here. This result supports finding evidence of the harassment of other employees

                                             2
inadmissible. See Wisch v. Lakatos, 2005 WL 6154120, at *1 (Vt. Jan. 2005) (“The court
reasonably found that the proffered evidence [about the mistreatment of other patients]
could require a time-consuming and potentially confusing mini-trial on each of the four
unrelated cases to determine its facts, similarity, and relevance to the case at bar, and
would be unfairly prejudicial to defendant.”)


         Hostile work environment. The evidence of Defendant’s administrator’s alleged
harassment of other employees is also inadmissible to prove that Defendant created a
hostile work environment.1 This claim relates to the environment created around Plaintiff
Depoy. No Vermont statute or case authorizes a plaintiff to offer evidence regarding the
treatment of other employees generally to support a claim for a hostile work environment.
Even in Perry v. Ethan Allen, Inc., Plaintiff Depoy’s strongest authority supporting her
position, the Second Circuit specified that “[e]vidence of the harassment of women other
than Perry, if part of a pervasive or continuing pattern of conduct, was surely relevant to
show the existence of a hostile environment at Ethan Allen.” 115 F.3d 143, 151 (2d Cir.
1997) (emphasis added). As stated above, Plaintiffs’ allegations are insufficient to show
a plan and do not warrant admitting evidence of Defendant’s former administrator’s
harassment of other employees. Again, even if such evidence were admissible, the focus
of the trial would be diverted to become an investigation of every employee’s treatment
by Defendant resulting in confusion for the jury and unjustified use of time. Therefore,
evidence regarding harassment of employees other than Plaintiffs is inadmissible.

                                                  ORDER

           Defendant’s Motion in Limine is hereby granted.

           Dated at Woodstock, Vermont, this ___ day of November, 2013.



                                                       Honorable Mary Miles Teachout
                                                       Superior Court Judge




1
    Only Plaintiff Depoy has a “hostile work environment” claim remaining in the case.

                                                      3
