Recent 404(b) “Other Acts” Cases In Title VII Employment Context.


Federal Rule of Evidence 404(b) is the so-called “prior bad acts” rule. It provides in relevant part:

(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

In sum, Rule 404(b) prohibits an inference based on a person’s character: (1) a person did something; (2) the person’s action says something about the person’s character; and (3) the person acted consistent with that character in connection with the event that gave rise to the lawsuit. The rule arises mostly in criminal cases but does come up in civil cases, particularly employment cases. In general, the forbidden inferential path in employment cases is along these lines: (1) the employer discriminated against another employee; (2) the employer is a discriminator; and (3) the employer discriminated in this case.

There is a big “however,” however. Rule 404(b) permits prior bad acts (or, more appropriately “other act evidence”) if the other act is offered not to prove conduct in conformity with character but for a legitimate purpose. The rule gives a non-exhaustive list of permissible purposes, for example, to prove motive or intent. Generally then in employment cases a proper inferential path would be: (1) the employer took an adverse employment action against another employee under circumstances indicating discrimination; (2) the other act tends to prove the employer’s discriminatory state of mind; (3) the employer’s state of mind came into play in the case at hand. Rule 404(b) evidence in employment cases is sometimes referred to as “me too” evidence.

Other evidentiary filters then apply if evidence is offered for a proper purpose under Rule 404(b). The evidence must be relevant (Rule 401). In employment discrimination cases motive and intent are relevant. Moreover, the other act evidence must pass the test of conditional relevance under Rule 104(b). This means essentially that the judge must make a preponderance of the evidence finding that a reasonable juror could decide that the employer acted with discriminatory intent in connection with the other employee. Finally, because the impermissible character inference can still arise from the evidence, the court must determine that the danger of unfair prejudice arising from an inference from character does not substantially outweigh the probative value of the evidence when used for the legitimate purpose (e.g., to prove motive). See generally Huddleston v. United States, 485 U.S. 681, 689-90 (1988).

Thus, as stated in Aboubaker v. County of Washtenaw, 11-13001 (E.D. Mich., Feb. 27, 2014):

A three-step inquiry as to admissibility of 404(b) evidence is used: 1) whether sufficient evidence exists that the prior act occurred; 2) whether the “other act” is admissible for a proper purpose under Rule 404(b); and, 3) determine whether the “other acts” evidence is more prejudicial than probative under Rule 403. United States v. Poulsen, 655 F.3d 492, 508 (6th Cir. 2011).

To reduce or eliminate the danger that the jury will misuse the other act evidence and draw an inference based on character, the court may give a limiting instruction under Rule 105.

That said, following are employment/Rule 404(b) cases decided in 2014.

Other Act Evidence Held Inadmissible.

Beard v. AAA of Michigan, No. 14-1294 (6thCir., Nov. 20, 2014).

Race discrimination and retaliation case. At trial, plaintiff was impeached with records from his former employer containing negative comments and feedback about his leadership. Plaintiff argued on appeal that the district court erred in admitting these records because they were inadmissible under Rule 404(b) and were not disclosed in discovery. Court of appeals found that (1) the prior employment records were used to impeach plaintiff’s credibility, a proper purpose under Rule 404(B), and (2) pretrial disclosure was not required because such disclosure is limited to evidence being admitted for purposes “other than solely for impeachment.” Fed.R.Civ.P. 26(a)(3).

Jackson v. United Parcel Service, Inc., 13-15168 (11th Cir., Nov. 20, 2014).

Race and gender discrimination and retaliation case. Plaintiff argued that the trial court should have considered other act evidence of discrimination and retaliation aimed at her co-workers (“me too” evidence) as proof of defendant’s intent to discriminate under Evid. R. 404(b). Court of appeals disagreed because, although use of “me too” evidence can be admitted (citing Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1285 (11th Cir. 2008), the evidence pertained to a different decisionmaker.

Crosby v. Gregory, CV 212-140 (S.D. Ga., Sept. 10, 2014).

Plaintiff attempted to demonstrate a pattern of pregnancy discrimination with past acts of pregnancy discrimination by same decisionmaker. Although “me too” evidence can be admissible under Rule 404(b) to prove intent where same supervisor is implicated, “courts are reluctant to consider prior bad acts in this [employment discrimination] context where those acts do not relate directly to the plaintiffs.” (Quoting Denney v. City of Albany, 247 F.3d 1172, 1189 (11th Cir. 2001). Distinctions matter, such that a plaintiff must provide evidentiary details; “a hodgepodge of unproven allegations of discrimination against others does not create an inference that [the plaintiff herself] was discriminated against ***.” (Citing Hughes v. City of Lake City, No. 3:12-CV-158, 2014 WL 1293525, at *5 (M.D. Fla. Mar. 28, 2014) (citations omitted); Holifield v. Reno, 115 F.3d 1555, 1563 (11th Cir. 1997)).

Ford v. County of Hudson, Civ. 07-5002 (D.N.J., May 16, 2014).

Defendants filed a motion in limine to exclude independent investigative report pertaining to alleged harassment and retaliation by former director of Department of Corrections and certain deputies culminating in settlements (including one with plaintiff). Although report was probative of custom and policy its finding of retaliation by DOC officials “indirectly” invited the forbidden character inference prohibited by Rule 404(b). Court excluded report in its entirety but permitted testimony of report’s existence, its general nature, and that certain officials retaliated and/or discriminated against certain employees. Court decided to give limiting instruction that the evidence is relevant only to liability of defendant but not whether individual defendants retaliated against plaintiff. Court stated it would consider admitting limited excerpts from report if shown to be “particularly relevant.”

El-Hallani v. Huntington National Bank, 13-cv-12983 (E.D. Mich., Mar. 13, 2014).

Not an employment case but close enough to analogize. Arab-American plaintiffs alleged that defendant closed their bank accounts due to their race, ethnicity, and/or religious affiliation. Granting defendant’s Civ. R. 12(b)(6) motion to dismiss with leave to refile, the court decided that use of the “doctrine of chances” evidentiary theory (i.e., serial unusual events cannot be dismissed as coincidence, which seems akin to statistical randomness analysis but without the analysis) sometimes applied under Michigan law cannot replace an Evid. R. 404(b) analysis, and does not permit plaintiff to avoid stricter federal pleading standard under Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).

Wagoner v. J.P. Morgan Chase Bank, N.A., 1:11-cv-01054 (S.D. Ind., Jan. 15, 2014).

In this pregnancy discrimination case it was the plaintiff who made the Rule 404(b) argument. She sought to exclude evidence about her performance in positions other than the one from which she was terminated, arguing that it was impermissible character evidence. Such evidence could not be used to prove that because plaintiff may have underperformed in other positions, she also underperformed in the position from which she was terminated, as to allow it would violate Rule 404(b). If, however, plaintiff opened the door by presenting evidence of her satisfactory performance in previous positions, then defendant could rebut such evidence.

Davis v. International Paper Co., 997 F.Supp.2d 1225 (M.D. Ala. 2014).

Failure to promote case. Evidence of discrimination against other employees seeking same position, racial epithets and noose-hanging inadmissible because no evidence of decisionmaker’s involvement.

Davis v. Lakeside Motor Co. Inc., 3:10-CV-405 (N.D. Indiana, Nov. 20, 2014).

Court granted plaintiff’s motion in limine concerning prior claims for unemployment benefits because evidence would not be admissible under Rule 404(b).

Tamez v. Donahoe, 12 C 9411 N.D. Illinois, Sept. 10, 2014).

Plaintiff failed to provide sufficient information about co-worker’s EEO retaliation case to make the evidence relevant and admissible under Federal Rules of Evidence 404(b) and 403.

Other Act Evidence Held Admissible/Discoverable.

Moniz v. City of Delano, 1:13-cv-00093 (E.D. Cal., Aug. 5, 2014).

Claim based on sexual harassment retaliation. Defendant moved to exclude “me too” evidence submitted by plaintiff in opposition to its motion for summary judgment. District court overruled objection because evidence of other employees who suffered sexual harassment by the defendant was probative of the defendant’s motive and, therefore, admissible under Rule 404(b). (Citing Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1286 (11th Cir. 2008); Heyne v. Carruso, 69 F.3d 1475, 1481 (9th 1995)).

United States Equal Employment Opportunity Commission v. Suntrust Bank, 8:12-cv-1325-T-33 (M.D. Fla., May 6, 2014).

“Me too” evidence held admissible under Rule 404(b) in sexual harassment case to prove defendant’s motive, intent, or plan to discriminate, to Faragher/Ellerth affirmative defense and to whether defendant’s anti-discrimination and anti-retaliation policies were effective, where plaintiff’s complaints of harassment and retaliation overlapped temporally with claims of other plaintiffs and involved same supervisor. (Citing Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008); Phillips v. Smalley Maint. Servs., Inc., 711 F.2d 1524, 1532 (11th Cir. 1983); Walters v. Cent. Fla. Invests. Inc., No. 6:01-cv-1390, 2006 U.S. Dist. LEXIS 21197, at *8 (M.D. Fla. Mar. 28, 2006)(“Evidence of McGriff’s harassment of other women who worked under him may be admitted to show plan, motive, opportunity, intent, and pattern. Defendants’ handling of Lawver’s complaint also is relevant to the effectiveness of Defendants’ anti-harassment policy and the Defendants’ affirmative defense raised under Faragher/Ellerth.”)). Court also rejected defendant’s Rule 403 argument that evidence would result in a “mini-trial” and cause juror confusion.

Goold v. Hilton Worldwide, Inc., 1:13-cv-00438 (E.D. Cal. April 8, 2014).

Plaintiff claimed he was fired after complaining about sexual harassment suffered by a former employee. On motion to compel defendants to produce information about complaints made to or about four individuals and adverse employment actions suffered by the complainants. Court notes that there is no per se prohibition on the introduction of this type of evidence. (Citing Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008)). Admissibility of “me too” evidence depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case. Evidence of other acts or wrongs generally may be admitted to demonstrate motive under Rule 404(b). Given that the issue is whether other employees made discrimination complaints and, as a result, Defendants retaliated against them, the evidence is discoverable.

King v. CVS Caremark Corp., 2 F.Supp.3d 1252 (N.D. Ala. 2014).

Age discrimination (among other claims) case. Ruling on a motion to strike evidence submitted in opposition to defendant’s summary judgment motion, the court decides that “me too” evidence of ageist comments by decisionmaker concerning another employee were relevant to pretext and admissible under Rule 404(b). (Citing Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008)).


Aboubaker v. County of Washtenaw, 11-13001 (E.D. Mich., Feb. 27, 2014).

Plaintiff claimed discriminatory failure by current employer to interview him for a “drain inspector” position. Defendants’ moved in limine to exclude evidence pertaining to claims previously dismissed in case, to wit (1) discriminatory demotion/reclassification; and (2) unfair treatment in previous position. Court cites Evid. R. 404(b) but its application of rule is implicit. Court does state test for admissibility of Rule 404(b) evidence that is useful for lawyers practicing in the Sixth Circuit:

Courts have recognized the use of other crimes or other bad acts permissible as evidence at trial. United States v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1984). A three-step inquiry as to admissibility of 404(b) evidence is used: 1) whether sufficient evidence exists that the prior act occurred; 2) whether the “other act” is admissible for a proper purpose under Rule 404(b); and, 3) determine whether the “other acts” evidence is more prejudicial than probative under Rule 403. United States v. Poulsen, 655 F.3d 492, 508 (6th Cir. 2011).

Step 1 refers to Evid. R. 104(b), the rule on conditional relevance (in a nutshell, collateral “me-too” evidence must be supported by evidence that the “me-to” event actually occurred; for more see Huddleston v. United States, 485 U.S. 681, 689-90 (1988).

With respect to evidence of the alleged discriminatory demotion/reclassification, the court decided that if defendants argued at trial that plaintiff did not meet minimum qualification standards resulting from his demotion/reclassification, then evidence regarding the reason for his downward reclassification is admissible (presumably under Evid. R. 404(b)). Likewise, evidence of unfair treatment in previous position is admissible (again, presumably under Rule 404(b)) if decisionmakers sought or reviewed information about plaintiff emanating from previous supervisors allegedly responsible for unfair treatment (including evaluations of plaintiff and other like documents in plaintiff’s personnel file). Court appears to connect Rule 404(b) to the “cat’s paw” theory of liability, although not explicitly stated.

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