Employer Seeking to Advance New Theory on Eve of Trial Risks Evidence Exclusion

In Burgess v. Bowen, Civil Action No. 1:09cv763 (JCC) (E.D. Va. Oct. 2, 2012), an African American female sued claiming racial discrimination and retaliation after she was terminated from her executive-level position at a federal agency.  The plaintiff served as the Assistant Inspector General for Public Affairs (“AIG-PA”) within the Office of the Special Inspector General for Iraq Reconstruction (the “Agency”).  The Agency discharged her as part of a reorganization despite her claim that she was eligible for a potential transfer to the newly-created position of Director of Public Affairs (“DPA”).  Instead of offering the DPA position to the plaintiff, the Agency offered the DPA position to a white woman, who was an ex-employee of the Agency.

The Agency took the position throughout discovery that its decision was the result of a reorganization due to budget constraints, and not based on the plaintiff’s performance as AIG-PA.  As trial approached, the Agency produced information showing that it considered the plaintiff’s performance substandard, which contributed to its decision.  Before the case went to trial, the parties filed what are called motions in limine to prevent the jury from viewing irrelevant or prejudicial evidence offered by the other party.

In her motion in limine, the plaintiff argued that the Court should exclude the Agency exhibits at trial which could demonstrate that she was discharged or denied the DPA position because of substandard performance.  The plaintiff contended that the Court should prevent the Agency from asserting an “eleventh hour theory,” not previously disclosed to the plaintiff.  Rather than finding that a litigant has a right to advance a new position at trial, the Court instead ruled that the Agency’s evidence could be submitted to the jury because the Agency’s position had been consistent throughout discovery.

The Agency contended that it would not use evidence of the plaintiff’s performance to argue that she was a substandard employee, but to show the jury that she was actually overqualified for the DPA position.  The Agency argued that the evidence showed that the plaintiff requested an assistant when she was the Agency’s AIG-PA, and did not want to perform administrative tasks.  This argument supported the Agency’s theory throughout the litigation that the plaintiff was not the best candidate for the DPA position, which was designed to perform significant administrative work as a part of the reorganization.  The Court agreed with the Agency’s analysis that it had advanced this position during the litigation and that the plaintiff’s performance as AIG-PA factored into its assessment of the plaintiff’s ability to perform the DPA position.  Thus, the jury could view the Agency’s exhibits relating to the plaintiff’s job performance.

While the Court’s decision should serve as a warning to litigants who intend to “hide the ball” before trial, litigants can be comforted in the fact that courts are reluctant to exclude potentially relevant evidence at trial.  Virginia law provides that a court’s ruling on a motion in limine is subject to change as the trial unfolds, particularly if testimony differs from what was expected.  Nonetheless, this case demonstrates that a litigant’s previously disclosed position is an important consideration, and one which may limit a litigant’s options at trial.

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