                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

_____________________________
                              )
DENISE A. BANKS,              )
                              )
          Plaintiff,          )
                              )
          v.                  )     Civil Action No. 07-1807 (RWR)
                              )
TOM VILSACK,                  )
                              )
          Defendant.          )
_____________________________ )

                   MEMORANDUM OPINION AND ORDER

     Plaintiff Denise A. Banks brings this action against the

Secretary of the United States Department of Agriculture (“USDA”)

under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. § 2000e et seq., alleging that while employed at the USDA

she was discriminatorily removed from the Senior Executive

Service (“SES”) because of her race and sex.   Banks moves in

limine to preclude the USDA from calling a number of witnesses

and introducing certain exhibits at trial arguing that the

evidence is irrelevant.   Because some of the challenged evidence

may be relevant to Banks’s damages claim, but the USDA has not

shown that the other challenged evidence is relevant, Banks’s

motion will be granted in part and denied in part.

                            BACKGROUND

     The background of this case is discussed more fully in Banks

v. Vilsack, Civil Action No. 07-1807 (RWR), 2013 WL 1208560

(D.D.C. Mar. 26, 2013).   Banks, an African-American woman, “began
                                -2-

working at the USDA in February 1999 as the Deputy Director for

Civil Rights (Employment) at the SES level.”   Id. at *1.   “Banks

was supervised by Rosalind Gray.”     Id.

     Banks was subject to a one-year probationary period
     when she was appointed as the Deputy Director. Her
     November 1999 performance appraisal for the
     probationary period stated that she did not meet
     several critical elements of her position and that her
     overall performance was rated as “unsatisfactory.” As
     a result of her poor performance rating, Gray
     recommended that Banks be terminated. Notwithstanding
     Gray’s recommendation, Assistant Secretary for
     Administration, Paul Fiddick, removed Banks from the
     SES position in January 2000 but reassigned her to a
     GS–15 position, Special Assistant to the Deputy
     Director for Programs in the Office of Civil Rights.

Id. (internal citations omitted).

     After being demoted from the SES, Banks continued to work at

the USDA in a management position where she supervised others

including Michele Eiland.   See Joint Pretrial Stmt. (“JPS”) at

18-19.

           From 2000 to 2004, Banks received overall
     performance ratings of “outstanding” on her performance
     appraisals. . . . In August 2004, Sadhna True became
     the Director for Civil Rights and Employment at the
     USDA. In that capacity, True became Banks’s second
     line supervisor. In 2005, Banks received the lower
     performance rating of “Superior”; in 2006 and 2007, she
     received the even lower rating of “Fully Successful.”
     . . .
           In November 2007, Michael Watts, the acting
     Director for Civil Rights, reassigned Banks from her
     Division Chief position to the position of special
     assistant to the acting Director for Civil Rights.

Banks, 2013 WL 1208560, at *2 (internal citations omitted).

Banks alleges that she “became so depressed over Ms. True’s
                                   -3-

hostile treatment that she had to be hospitalized” in 2008.         JPS

at 7.

        Banks brings this action against the USDA alleging that the

agency discriminated against her on the basis of race and sex by

removing her from the SES in 2000.1      Banks seeks compensatory

damages for “emotional distress, pain and suffering, loss of

enjoyment of life, damage to reputation, and other losses.”         Id.

at 25.      She also seeks reinstatement to the SES with full back

pay and benefits.     Id.

        Banks now moves in limine to exclude some of the USDA’s

proposed witnesses and exhibits under Federal Rule of Evidence

402 arguing that the evidence is irrelevant or inadmissible under

Rule 403.     Pl.’s Supplemental Objections to Witnesses & Exs.

(“Pl.’s Supplemental Objections”) at 1.      Specifically, she seeks

to preclude (1) testimony from True; (2) testimony from Constance

Bails; (3) testimony to from Watts;      (4) testimony from Eiland;

(5) e-mails to or from True; (6) an e-mail from Bails; (7) e-


        1
       Banks filed a five-count amended complaint against the
USDA alleging that it discriminated and retaliated against her on
the basis of race, sex, and age. Banks, 2013 WL 1208560, at *2.
“Summary judgment [was] entered for the USDA on Banks’s
claims . . . that the USDA retaliatorily removed her from the
SES, issued her a letter of direction, and lowered her
performance rating in 2005,” and on Banks’s claim that she was
subjected to a hostile work environment because of her race,
color, sex, age, and prior EEO activity. Id. at *6. On the eve
of trial, Banks filed a motion to amend her complaint to include
only her claims that she was discriminated against on the basis
of race and sex when she was removed from the SES in 2000. On
June 17, 2013, Banks’s motion to amend her complaint was granted.
                                 -4-

mails to or from Watts; (8) an e-mail from Eiland; (9) Banks’s

Performance Appraisals in 2006 and 2007; (10) exhibits regarding

Banks retaining copies of certain documents; and (11) the 2007

Letter of Direction.2

     The USDA counters “that the Court should defer its ruling on

this evidence until trial.”    Def.’s Mem. of P. & A. in Opp’n to

Pl.’s Supplemental Objections (“Def.’s Opp’n”) at 2.   The USDA

further argues that the “witnesses and exhibits which Plaintiff

seeks to exclude are relevant to Defendant’s defense concerning

Plaintiff’s job performance, and may be relevant on a number of

issues and for a number of purposes.”      Id. at 1.

                              DISCUSSION

     “While neither the Federal Rules of Civil Procedure nor the

Federal Rules of [E]vidence expressly provide for motions in

limine, the Court may allow such motions ‘pursuant to the

district court’s inherent authority to manage the course of

trials.’”   Barnes v. District of Columbia, Civil Action No. 06-

315 (RCL), 2013 WL 541148, at *1 (D.D.C. Feb. 14, 2013) (quoting

Luce v. United States, 469 U.S. 38, 41 n.4 (1984)).    “[T]rial

judges are afforded broad discretion in rendering evidentiary

rulings, a discretion which extends to assessing the probative

value of the proffered evidence and weighing any factors against

admissibility.”   Graves v. District of Columbia, 850 F. Supp. 2d

     2
       Banks also has withdrawn as irrelevant her own witnesses
Judy Calvin and Rhonda Davis and Exhibits 41-45 and 47-49.
                                 -5-

6, 11 (D.D.C. 2011) (citing Sprint/United Mgmt. Co. v.

Mendelsohn, 552 U.S. 379, 384 (2008)).     “‘In some instances it is

best to defer rulings until trial, when decisions can be better

informed by the context, foundation, and relevance of the

contested evidence within the framework of the trial as a

whole.’”   Herbert v. Architect of the Capitol, Civil Action No.

09-1719 (CKK), 2013 WL 384819, at *2 (D.D.C. Jan. 31, 2013)

(quoting Casares v. Bernal, 790 F. Supp. 2d 769, 775 (N.D. Ill.

2011)).    However, it is within a trial judge’s discretion to

decide “whether a motion in limine presents an evidentiary issue

that is appropriate for ruling in advance of trial.”    Graves, 850

F. Supp. 2d at 11 (citing United States v. Valencia, 826 F.2d

169, 172 (2d Cir. 1987)).

     Federal Rule of Evidence 401 provides that “[e]vidence is

relevant if: (a) it has any tendency to make a fact more or less

probable than it would be without the evidence; and (b) the fact

is of consequence in determining the action.”    Fed. R. Evid. 401.

“Irrelevant evidence is not admissible.”    Fed. R. Evid. 402.   The

proponent of the evidence bears the burden of establishing that

the evidence is relevant.   See Dowling v. United States, 493 U.S.

342, 351 n.3 (1990).   Even if the evidence is relevant, the court

may still exclude it “if its probative value is substantially

outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue
                                      -6-

delay, wasting time, or needlessly presenting cumulative

evidence.”       Fed. R. Evid. 403.

        Banks moves to exclude certain evidence arguing that it is

irrelevant to Banks’s claims that she was discriminated against

on the basis of race and sex by being demoted from the SES in

2000.       She contends that this evidence pertains to events that

“are too remote in both time and causation to have any probative

value under Rule 401.”       Pl.’s Supplemental Objections at 1.     In

the interest of conducting an efficient jury trial and preventing

the jury from hearing inadmissible evidence, Fed. R. Evid.

103(d), Banks’s motion will be decided pretrial.

            The USDA argues that the challenged witnesses and exhibits

are relevant for three reasons.3        First, the USDA argues that the

evidence may be relevant to Banks’s damages claim.        The USDA

argues that Watts’s and Eiland’s testimony is relevant to whether

the USDA harmed Banks’s professional reputation and career

because both Watts and Eiland “have worked at the USDA and in the

civil rights community for years” with Banks.        Def.’s Opp’n at 4-

5.4   Banks counters that Watts and Eiland do not have any

knowledge about her professional reputation and career during the




        3
       The USDA does not individually address every piece of
evidence that Banks challenges. Instead, the USDA argues
generally that the challenged evidence is admissible.
        4
       The USDA does not argue that the challenged e-mails from
Watts and Eiland are likewise relevant to Banks’s damages claim.
                                  -7-

relevant time period.5   However, Banks concedes that if the USDA

establishes that Watts and Eiland have a foundation to testify

about these issues, their testimony would be admissible.    See

Pl.’s Reply to Def.’s Opp’n to Pl’s Supplemental Objections

(“Pl.’s Reply”) at 4.    To the extent that Watts and Eiland offer

testimony relevant to Banks’s claim for damages for harm caused

to her professional reputation and career during the period for

which she alleges the harm, they may testify as to these issues

assuming that their testimony is not otherwise inadmissible.

Thus, Banks’s motion to exclude Watts’s and Eiland’s testimony

regarding Banks’s professional reputation and career will be

denied without prejudice.

     The USDA also argues that if Banks testifies that she is

entitled to damages because she was hospitalized in 2008,

“Plaintiff’s claim concerning Ms. True and any testimony or

evidence related thereto” would be relevant to impeach Banks’s

testimony.   Def.’s Opp’n at 4.   The USDA does not specify what

evidence would be relevant or carry its burden of justifying how

that evidence is relevant to impeach Banks.   However, in her

reply, Banks concedes that if she testifies that her health

issues in 2008 were caused by her demotion from the SES in 2000,

the USDA can offer True’s testimony.    Pl.’s Reply at 2.   Thus, if

     5
       Banks has not made clear for what period of time she is
seeking damages or whether she is seeking damages for harm caused
to her professional reputation within the USDA, outside the USDA,
or both.
                                 -8-

Banks offers evidence that her health issues in 2008 were caused

by her demotion in 2000, the USDA may offer relevant evidence to

impeach Banks’s testimony including True’s testimony.

Accordingly, Banks’s motion to exclude True’s testimony will be

denied without prejudice.

     Second, the USDA argues that the challenged evidence is

relevant to whether Banks should be reinstated.   However, the

USDA has not met its burden to show how the challenged evidence

is relevant to whether Banks should be reinstated.   “[A] district

court ‘has broad discretion to fashion appropriate equitable

relief for a Title VII plaintiff’ including, but not limited to,

reinstatement[.]”    Webb v. District of Columbia, 146 F.3d 964,

976 (D.C. Cir. 1998) (quoting Castle v. Rubin, 78 F.3d 654, 657

(D.C. Cir. 1996)).   However, it is an abuse of discretion for the

district court to reinstate a Title VII plaintiff who prevails on

the merits “without any consideration of evidence that suggested

that reinstatement may not have been an appropriate remedy.”     Id.

For instance, the district court may consider “evidence of

extreme animosity between the plaintiff and the defendant

employer,” id. at 977 (internal quotation marks omitted),

evidence that the employer is genuinely dissatisfied with the

plaintiff’s job performance, id., and the impact that

reinstatement would have on a displaced employee, see Lander v.

Lujan, 888 F.2d 153, 157 (D.C. Cir. 1989).   While evidence that

pertains to whether Banks should be reinstated would be relevant,
                                  -9-

the USDA has not shown how the challenged evidence “has any

tendency to make a fact more or less probable than it would be

without the evidence.”   See Fed. R. Evid. 401.    Instead, the USDA

states only that “evidence concerning [Banks’s] performance after

her removal is both important to and relevant for the Court’s

decision on whether to grant” Banks’s request to be reinstated to

the SES.    Def.’s Opp’n at 4.   Although relevance is a “low

hurdle,” United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir.

1989), this conclusory allegation does not cross it.

       In any event, the court, not the jury, would decide whether

Banks is entitled to equitable relief, such as reinstatement.

See 42 U.S.C. § 2000e-5(g)(1).     Thus, even if the evidence is

relevant to whether Banks should be reinstated, this is not an

issue for the jury to decide and admitting the evidence before

the jury may cause undue delay, confuse the issues, or mislead

the jury.   Accordingly, this evidence will be excluded under Rule

403.

       Finally, the USDA argues that the challenged witnesses’

testimony is admissible under Federal Rule of Evidence 608.      Rule

608 provides that

       [a] witness’s credibility may be attacked or supported
       by testimony about the witness’s reputation for having
       a character for truthfulness or untruthfulness, or by
       testimony in the form of an opinion about that
       character. But evidence of truthful character is
       admissible only after the witness’s character for
       truthfulness has been attacked.

Fed. R. Evid. 608(a).
                                -10-

     In order to offer reputation evidence under Fed. R.
     Evid. 608(a), a party must establish that the character
     witness is qualified by having an “acquaintance with
     the witness,” his “community,” and “the circles in
     which he has moved, as to speak with authority of the
     terms in which generally the witness is regarded.”

United States v. Whitmore, 359 F.3d 609, 616 (D.C. Cir. 2004)

(quoting Michelson v. United States, 335 U.S. 469, 478 (1948)).

“[T]he foundational requirement for opinion evidence regarding a

witness’s character for truthfulness is less stringent than that

for reputation evidence[.]”    Id. at 617.

     Reputation testimony . . . need not be derived from the
     witness’s residential community and a character witness
     need not physically reside in that community. . . . A
     witness’s opinion testimony must be based on underlying
     facts that demonstrate that the opinion is rationally
     based on the first-hand perception of the witness and
     would be helpful to the jury in evaluating the
     subject’s truthfulness.

United States v. McCallum, 885 F. Supp. 2d 105, 119 (D.D.C. 2012)

(internal citation omitted) (citing Whitmore, 359 F.3d at 617

n.3, 618).   “[E]vidence offered under [608(a)] is subject to

discretionary exclusion under Rule 403.”     28 Charles Alan Wright

& Victor J. Gold, Federal Practice and Procedure § 6114 (2d ed.

2012); see also Whitmore, 359 F.3d at 618 (holding that the

district court did not abuse its discretion by excluding opinion

and reputation evidence attacking the credibility of a witness

under Rules 608(a) and 403).

     Here, the USDA has not carried its burden of demonstrating

that any of its witnesses meet the foundational requirements for

opinion and reputation testimony concerning another’s character
                               -11-

for truthfulness and that such testimony is not otherwise

inadmissible under Rule 403.   Nor has the USDA demonstrated that

it will need to rehabilitate any proposed witness by eliciting

testimony about that witness’s character for truthfulness.     Thus,

the USDA has not shown that any of its challenged witnesses will

provide testimony admissible under Rule 608(a).

                       CONCLUSION AND ORDER

     Watts and Eiland may offer testimony relevant to Banks’s

claim for damages for harm to her professional reputation and

career.   If Banks argues that her health issues in 2008 were due

to her demotion from the SES, then the USDA may offer testimony

from True to impeach Banks’s testimony.   The USDA has not shown

that the other challenged testimony and exhibits are admissible.

Accordingly, it is hereby

     ORDERED that Banks’s motion [80] in limine be, and hereby

is, GRANTED IN PART and DENIED IN PART without prejudice.

Testimony from Bails, e-mails to or from True (Defendant’s

Exhibits 16, 18, 21-25, 27-28, 31, 33-35, 42, 44-45, 53, and 57),

an e-mail from Bails (Defendant’s Exhibit 19), e-mails to or from

Watts (Defendant’s Exhibits 32, 41, 51-52, 58, 60), an e-mail

from Eiland (Defendant’s Exhibit 17), Banks’s Performance

Appraisals from 2006 and 2007 (Defendant’s Exhibits 20, 64),

exhibits regarding Banks retaining copies of certain documents

(Defendant’s Exhibits 36-40), and the 2007 Letter of Direction

(Defendant’s Exhibit 50) are precluded.   Banks’s request to
                               -12-

preclude testimony from Watts, Eiland, and True is denied without

prejudice.

     SIGNED this 31st day of July, 2013.


                                              /s/
                                      RICHARD W. ROBERTS
                                      Chief Judge
