See also: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; HARASSMENT
OTHER ACTS OR OCURRENCES–Excessive Force Actions.

1.  “Other Acts” of Discrimination Against Plaintiff

In a discrimination case, acts of discrimination by the same employer against the plaintiff other than those charged in the complaint have been held admissible to show that plaintiff was justified in resigning from employment.{footnote}Taylor v. Western and Southern Life Ins. Co., 966 F.2d 1188 (7th Cir. 1992) (prior acts of discrimination).{/footnote}

2.  Discriminatory Treatment of  Others

Discriminatory treatment of persons other than the plaintiff may be relevant to show a defendant’s intent or motive in his actions toward the plaintiff.{footnote}Zaken v. Boerer, 964 F.2d 1319 (2d Cir. 1992), cert. denied, 506 U.S. 975, 113 S.Ct. 467, 121 L.Ed.2d 375 (statement by vice president of sales as to reasons for discharge of employee’s predecessor admissible against chief executive officer); Abrams v. Lightolier Inc., 50 F.3d 1204 (3d Cir. 1995) (treatment of five former employees admissible in age discrimination suit); Black Law Enforcement Officers Ass’n v. City of Akron, 824 F.2d 475 (6th Cir. 1987); Hogan v. American Telephone & Telegraph Co., 812 F.2d 409, 410 (8th Cir. 1987); Miller v. Poretsky, 595 F.2d 780, 784-85 (D.C. Cir. 1978).

{/footnote}  Sporadic, isolated incidents are insufficient to establish racial animus, however.{footnote}Goff v. Continental Oil Co., 678 F.2d 593 (5th Cir. 1982) (three sporadic and isolated incidents); Hogan v. American Telephone & Telegraph Co., 812 F.2d 409, 411 (8th Cir. 1987) (one past incident); Miller v. Poretsky, 595 F.2d 780, 785 (D.C. Cir. 1978) (one past incident).

See also Figures v. Board of Public Utilities of City of Kansas City, 967 F.2d 357 (10th Cir. 1992) (judgment awarded to another employee excluded as more prejudicial than probative).{/footnote}  Other incidents of discrimination may also be excluded becuase of undue prejudice,{footnote}West v. Philadelhia Elec. Co., 45 F.3d 744 (3d Cir. 1995) (harrassment outside workplace not directly tited to employer); Kelly v. Boeing Petroleum Services, Inc., 61 F.3d 350 (5th Cir. 1995).

But see Abrams v. Lightolier Inc., 50 F.3d 1204 (3d Cir. 1995) (age-related remarks and treatment of five former employees not unduly prejudicial in age discrimination suit).{/footnote} confusion or waste of time.{footnote}Ramos-Melendez v. Valdejully, 960 F.2d 4 (1st Cir. 1992) (testimony of other employees as to alleged discriminatory demotions properly excluded).{/footnote}

Evidence of disparate treatment of other similarly situated employees faced with disciplinary action is  relevant to prove unlawful discrimination.{footnote}Gomez v. Martin Marietta Corp., 50 F.3d 1511 (10th Cir. 1995).

See also Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471 (5th Cir. 1992) (employer’s decision not to investigate possible drug use by younger employee admissible in age-discrimination case){/footnote}

2(a).  Demographic Data on Employees. 

Lists of employees indicating their age or race have been held admissible in discrimination cases to prove or disprove disparate treatment.{footnote}Whalen v. Unit Rig, Inc., 974 F.2d 1248 (10th Cir. 1992), cert. denied 507 U.S. 973, 113 S.Ct. 1417, 122 L.Ed.2d 787 (list of emplloyees in declining order of age admissible in age discrimination case over objections of undue prejudice and confusion); Denison v. Swaco Geolograph Co., 941 F.2d 1416 (10th Cir. 1991) (ages of persons discharged).{/footnote}  It has been held, however, that the listing of birth dates cannot with‑out more be thought evidence of age discrimination.{footnote}Sheehan v. Daily Racing Form, Inc.,  __ F.3d __ (7th Cir. 1997) (list of employees and their ages insuffient to defeat motion for summary judgment).
CHECK Timm v. Mead Corp., 32 F.3d 273, 276 (7th Cir. 1994); Gustovich v. AT & T Communications, Inc., 972 F.2d 845, 848‑49 (7th Cir. 1992) (per curiam); Armbruster v. Unisys Corp., 32 F.3d 768, 780‑81 (3d Cir. 1994); Wilson v. Fire‑ stone Tire & Rubber Co., 932 F.2d 510, 514 (6th Cir. 1991).{/footnote}

3.  Discriminatory Comments or Beliefs

In lawsuits alleging discrimination in the workplace, comments by a supervisor indicating discriminatory beliefs have been held admissible and not unduly prejudicial.{footnote}E.E.O.C. v. Manville Sales Corp., 27 F.3d 1089 (5th Cir. 1994), cert. denied 115 S.Ct. 1252, 131 L.Ed.2d 133.{/footnote}  It has also been held that general claims of bias not involving the same supervisor as involved in the plaintiff’s claim are inadmissible.{footnote}Callanan v. Runyon, 75 F.3d 1293 (8th Cir. 1996).{/footnote}  Evidence regarding discriminatory comments not linked to personnel decisions has also been held properly excluded.{footnote}Figures v. Board of Public Utilities of City of Kansas City, 967 F.2d 357 (10th Cir. 1992).

But see Abrams v. Lightolier Inc., 50 F.3d 1204 (3d Cir. 1995) (age-related remarks admissible in age discrimination suit).{/footnote}

3(a).  Hearsay Issues

Out-of-court statements by management describing a company’s employment practices have been held properly inadmissible double hearsay.{footnote}Armbruster v. Unisys Corp., 32 F.3d 768 (3d Cir. 1994).{/footnote}  Likewise, an employee’s interrogatory response quoting a fellow employee who was in turn quoting a supervisor has been held inadmissible double hearsay.{footnote}Gross v. Burggraf Const. Co., 53 F.3d 1531 (10th Cir. 1995).{/footnote}  In a suit alleging discrimination in the sale of a home, the seller’s agent’s statement "they don’t want niggers" was held admissible against the seller as an admission.{footnote}Moss v. Ole South Real Estate, Inc., 933 F.2d 1300 (5th Cir. 1991).{/footnote}  Racist comments made by an employer’s owner and manager have also been held admissible hearsay under the "state of mind" exception.{footnote}Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241 (6th Cir. 1995).
{/footnote}

4.  Retaliatory Conduct

Prior acts of an employer may have a bearing on whether an improper motive was a "but for" cause of retaliatory discharge.  Evidence of retaliatory conduct with others may also be relevant to whether a defendant acted in bad faith toward the plaintiff, or with an improper motive or intent.{footnote}  Jay Edwards, Inc. v New England Toyota Distributor, Inc.,  708 F.2d 814, 824 (1st Cir.), cert. denied, 464 U.S. 894, 104 S.Ct. 241, 78 L.Ed 2d 231 (1983).{/footnote} 

5.  Excesive Force Actions

 A prior, unrelated complaint of racism against a defendant police officer has been held inadmissible in the absence of evidence that excessive force was used, and any official findings or conclusions resulting from the complaint.{footnote}Ricketts v. City of Hartford, 74 F.3d 1397 (2d Cir. 1996).{/footnote}

6.  Action by EEOC or State Investigative Agencies

Findings by the EEOC or corresponding state investigative agencies that an employer unlawfully discriminated against the plaintiff have been held properly excluded in a federal suit arising from the same facts,{footnote}E.E.O.C. v. Manville Sales Corp., 27 F.3d 1089 (5th Cir. 1994), cert. denied 115 S.Ct. 1252, 131 L.Ed.2d 133 (unduly prejudicial; EEOC letter stated legal conclusion); Walker v. NationsBank of Florida N.A., 53 F.3d 1548 (11th Cir. 1995) (EEOC determination).{/footnote} as have been findings that no unlawful discrimination took place.{footnote}Hall v. Western Production Co., 988 F.2d 1050 (10th Cir. 1993) (report of Wyoming Fair Employment Commission).{/footnote} 

Similarly, evidence of an uncontested injunction issued as a result of an EEOC investigation under the Fair Housing Act of a landlord’s discrimination against the handicapped has been held properly excluded as more prejudicial than probative.{footnote}Bronk v.Ineichens, 54 F.3d 425 (7th Cir. 1995).{/footnote}

On the other hand, a consent decree entered into by defendant in a prior civil rights suit has been held admissible to show motive or intent in a subsequent suit for racial harassment and intimidation.{footnote}Johnson v. Hugo’s Skateway, 974 F.2d 1408 (4th Cir. 1992).{/footnote}