United States District Court, D. Maryland
L. Hollander United States District Judge
Oscar L. Price has sued the Grasonville Volunteer Fire
Department (the “Department” or
“GVFD”), defendant, asserting four claims:
employment discrimination on the basis of race, in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. (“Title VII”)
(Count One); a racially hostile work environment, also in
violation of Title VII (Count Two); employment discrimination
on the basis of race, in violation of the Civil Rights Act of
1991, 42 U.S.C. § 1981 et seq. (Count Three);
and retaliation, in violation of Title VII (Count Four).
See ECF 22 (“Amended Complaint”). Trial
is scheduled to begin on January 9, 2017. See ECF
anticipation of trial, the Department has filed an
“Omnibus Motion in Limine” (ECF 88), supported by
a memorandum (ECF 88-1) (collectively, the
“Motion”) and several exhibits. See ECF
88-3 to ECF 88-10. Price opposes the Motion (ECF 90,
“Opposition”) and has submitted several lengthy
exhibits. ECF 90-1 to ECF 90-5. No reply has been filed, and
the time to do so has expired. See Local Rule
hearing is not necessary to resolve the Motion. See
Local Rule 105.6. For the reasons stated below, I shall grant
the Motion in part and deny the Motion in part.
motion in limine is a request for guidance by the
court regarding an evidentiary question.” United
States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983),
aff'd, 469 U.S. 38 (1984). Motions in limine
help to streamline a case, because such motions
“enable a court to rule in advance on the
admissibility of documentary or testimonial evidence and thus
expedite and render efficient a subsequent trial.'”
INSLAW, Inc. v. United States, 35 Fed.Cl. 295, 303
(1996) (citation omitted); see Adams v. NVR Homes,
Inc., 141 F.Supp.2d 554, 558 (D. Md. 2001). However,
such rulings are preliminary, made in the discretion of the
court, to assist counsel in preparation for trial.
Luce, 713 F.2d at 1239-40. When the evidence is
actually offered at trial, the trial court may change its
ruling. Id. at 1239.
motion in limine must be considered in light of the
contentions asserted by the parties. I turn to review the
claims alleged by plaintiff.
has filed suit under Title VII, which prohibits an employer
from, inter alia, discriminating against “any
individual with respect to his compensation terms,
conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). See
Freeman v. Dal-Tile, 750 F.3d 413, 420 (4th Cir. 2014).
The statutory language makes clear that Title VII prohibits
only certain kinds of employment actions, and only actions
taken against an employee on a prohibited basis. See
42 U.S.C. §§ 2000-e2(a).
“the existence of some adverse employment action is
required.” James v. Booz-Allen & Hamilton,
Inc., 368 F.3d 371, 375 (4th Cir. 2004). An
“adverse employment action” is one that
“‘constitutes a significant change in employment
status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities,
or a decision causing a significant change in
benefits.'” Hoyle v. Freightliner, LLC,
650 F.3d 321, 337 (4th Cir. 2011) (quoting Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).
Second, the intentional discrimination must be on the basis
of the plaintiff's “race, color, religion, sex, or
national origin.” See 42 U.S.C. §§
acts that may not be cognizable as adverse actions on their
own may, over time, cumulatively amount to an unlawful
employment practice by creating a hostile work environment.
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 115 (2002); see also Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993); Hoyle, 650 F.3d
at 333-34. Plaintiff advances such a claim.
hostile environment exists ‘[w]hen the workplace is
permeated with discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an
abusive working environment.'” Boyer-Liberto v.
Fontainbleau Corp., 786 F.3d 264, 281 (4th Cir. 2015)
(en banc) (quoting Harris, 510 U.S. at 21
(alterations in Boyer-Liberto)). To show that a
hostile work environment was created on the basis of race, a
plaintiff must establish that the offending conduct (1) was
unwelcome, (2) was based on race, (3) was sufficiently severe
or pervasive to alter the conditions of employment and create
an abusive work environment, and (4) was imputable to the
employer.” Okoli v. City of Baltimore, 648
F.3d 216, 220 (4th Cir. 2011).
also alleges a retaliation claim under Title VII. Title VII
prohibits an employer from “discriminat[ing] against
any of [its] employees . . . because [the employee] has made
a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing” under
Title VII. 42 U.S.C. § 2000e-3(a). In Coleman v.
Maryland Court of Appeals, 626 F.3d 187 (4th Cir. 2010),
aff'd, __U.S.__, 132 S.Ct. 1327 (2012), the
Fourth Circuit stated, 626 F.3d at 190. “The elements
of a prima facie retaliation claim under Title VII are: (1)
engagement in a protected activity; (2) adverse employment
action; and (3) a causal link between the protected activity
and the employment action.” In actuality, however, a
“materially adverse action, ” rather than an
“adverse employment action, ” is “the
proper articulation of the adversity element in retaliation
claims.” Hinton v. Virginia Union Univ., __
F.Supp.3d __, 2016 WL 2621967, at *13 (E. D. Va. May 5,
2016). See also Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 67 (2006); Jensen-Graf v.
Chesapeake Employers' Ins. Co., 616 Fed. App'x.
596, 598 (4th Cir. 2015) (per curiam); Mascone v. Am.
Physical Soc'y, Inc., 404 Fed. App'x. 762, 765
(4th Cir. 2010) (per curiam); Buckley v. Mukasey,
538 F.3d 306, 315 (4th Cir. 2008).
the “materially adverse action” standard is
“less restrictive” than the “adverse
employment action” standard applicable to
discrimination claims. Hinton, 2016 WL 2621967, at
*13 (citing White, 548 U.S. at 62). In the
discrimination context, an “adverse employment
action” must “affect employment or alter the
conditions of the workplace.” But, a materially adverse
action” in the retaliation context “need not
impact conditions in the workplace to be actionable.”
Hinton, 2016 WL 2621967, at *13; see White,
548 U.S. at 64-67.
White, the Court stated: “The scope of the
antiretaliation provision extends beyond workplace-related or
employment-related retaliatory acts and harm.”
Id. at 67. Further, the Court explained,
id. at 63: “An employer can effectively
retaliate against an employee by taking actions not directly
related to his employment or by causing him harm outside the
workplace.” Therefore, under White, effect on
terms or conditions of employment is no longer necessary to
establish a retaliation claim. Id. at
noted, plaintiff has also sued under 42 U.S.C. § 1981.
In relevant part, § 1981(a) provides: “All persons
within the Jurisdiction of the United States shall have the
same right . . . to make and enforce contracts . . . as is
enjoyed by white citizens.” Section 1981(b) states:
“For purposes of this section, the term ‘make and
enforce contracts' includes the making, performance,
modification, and termination of contracts, and the enjoyment
of all benefits, privileges, terms, and conditions of the
Title VII, 42 U.S.C. § 1981 prohibits,
inter alia, “discrimination in employment on
the basis of race.” Yashenko v. Harrah's NC
Casino Co., LLC, 446 F.3d 541, 551-52 (4th Cir. 2006);
see Johnson v. Ry. Express Agency, Inc., 421 U.S.
454, 459-60 (1975) (“§ 1981 affords a federal
remedy against discrimination in private employment on the
basis of race”). Section 1981(b) was enacted as part of
the Civil Rights Act of 1991 in order to overrule
legislatively the Supreme Court's holding in
Patterson v. McLean Credit Union, 491 U.S. 164
(1989), to the effect that § 1981 applied “only to
the formation of a contract” and not “to conduct
by the employer after the contract relation has been
established, including breach of the terms of the contract or
imposition of discriminatory working conditions.”
Id. at 176-77. See generally CBOCS West, Inc. v.
Humphries, 553 U.S. 442, 449-51 (2008) (discussing
post-Patterson enactment of § 1981(b)).
framework for proof of claims of employment discrimination
under § 1981 is the same as the framework applicable to
a Title VII claim. See Love-Lane v. Martin,
355 F.3d 766, 786 (4th Cir. 2004) (stating, in case involving
employment discrimination claim under Title VII, § 1981,
and § 1983, that “the elements required to
establish such a case are the same under all three
statutes”) (citing St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 506 n. 1 (1993)). In particular,
discrimination may be proven by one of two methods: (1)
“‘direct or indirect'” evidence of
discrimination, under “‘ordinary principles of
proof, '” Burns v. AAF-McQuay, Inc., 96
F.3d 728, 731 (4th Cir. 1996) (citation omitted); or (2) the
burden-shifting approach articulated by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See, e.g., Lightner v. City of Wilmington,
N.C. , 545 F.3d 260, 263 n.* (4th Cir. 2008)
(“[T]he McDonnellDouglasframework applies to
discrimination claims under . . . § 1981.”);
Love-Lane, 355 F.3d at 786 (stating that “the
McDonnell Douglas framework, developed for Title
VII, has been used to evaluate race discrimination
claims under the three statutes, ” i.e., Title
VII, § 1981, and § 1983); Gairola v. Com. of
Va. Dept. of Gen'l Servs., 753 F.2d 1281, 1285-86
(4th Cir. 1985).
however, Section 1981 claims are not subject to the same
exhaustion and timeliness requirements as those asserted
pursuant to Title VII.” Sewell v. Strayer
Univ., 956 F.Supp.2d 658, 673 (D. Md. 2013) (citing
White v. BFI Waste Servs., LLC, 375 F.3d 288, 291-92
(4th Cir. 2004)); cf. Johnson, 421 U.S. at
460, stating that “the filing of a Title VII charge and
resort to Title VII's administrative machinery are not
prerequisites for the institution of a § 1981
action.”). Accordingly, a plaintiff's claims for
employment discrimination under § 1981 are not limited
to factual allegations that the plaintiff exhausted through
the EEOC's administrative process. “The timeliness
of Section 1981 claims is instead governed either by state
law (as to allegations of misconduct during the formation of
an employment contract) or by the four-year statute of
limitations established by 28 U.S.C. § 1658 (as to
allegations of misconduct after the formation of the
employment relationship).” Sewell, 956
F.Supp.2d at 673.
rules of evidence are important to the Court's analysis
of the Motion. Under Rule 402 of the Federal Rules of
Evidence, “[r]elevant evidence is admissible”
unless rendered inadmissible pursuant to some other legal
provision, but “[i]rrelevant evidence is not
admissible.” Notably, “[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. Of course, under Rule 403, even if the evidence is
relevant, the court “may exclude [it] if its probative
value is substantially outweighed by a danger of . . . unfair
prejudice, ” or would confuse the issues, mislead the
jury, cause undue delay, waste time, or
“needlessly” involve “presenting cumulative
this background, I turn to the parties' contentions.
The EEOC Determination of September 18, 2013
Department seeks to exclude “[a]ny evidence regarding
the EEOC's September 18, 2013 Determination issued with
regard to Oscar Price[.]” ECF 88, ¶ 1. The
Department seeks to exclude the evidence on the basis of
prejudice, as well as lack of probative value in a trial
de novo. See ECF 88-1 at 2-4.
EEOC determined that Mr. Price was “subjected to racial
harassment in the form of offensive race-based comments made
by the President and various officers, as well as finding his
gear removed from his locker and placed in the back of the
fire house.” ECF 88-3. It concluded that “this
conduct was severe and pervasive and that because ...