Orr v. City of Albuquerque

FILED
United States Court of Appeals
Tenth Circuit

July 8, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CYNTHIA ORR; PATRICIA PAIZ,

Plaintiffs - Appellants,

and

STEPHEN ORR,
No. 07-2105
Plaintiff,

v.

THE CITY OF ALBUQUERQUE;
MARY BETH VIGIL,

Defendants-Appellees.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-01-1365-JP/RHS)

Paul J. Kennedy (Mary Y.C. Han, Charlotte L. Itoh, and Grieta A. Gilchrist with
him on the briefs) of Kennedy & Han, P.C., Albuquerque, New Mexico, for
Plaintiffs-Appellants.

Paula I. Forney, Assistant City Attorney (Robert M. White, City Attorney, with
her on the brief), Albuquerque, New Mexico, for Defendants-Appellees.

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.
 Albuquerque police officers Cynthia Orr and Patricia Paiz contend that the

City of Albuquerque and Mary Beth Vigil, the Personnel Director for the

Albuquerque Police Department, discriminated against them on the basis of

pregnancy, in violation of the Pregnancy Discrimination Act of Title VII.

Specifically, Officers Orr and Paiz allege that, when they took maternity leave,

the defendants required them to do so in a manner that adversely affected their

eligibility for early retirement, limited their ability to work overtime, and differed

dramatically from how employees seeking time off for other medical purposes

were treated. Defendants respond that they were merely applying a uniform

policy applicable to all employees. The district court agreed with defendants and

granted summary judgment in their favor. After a thorough review of the record

in this case, we find the evidence sufficient that a reasonable jury could find

defendants’ explanation pretextual and infer discriminatory animus on the basis of

pregnancy. Accordingly, we reverse and remand this matter for trial.

I

Plaintiffs Cynthia Orr and Patricia Paiz, veteran Albuquerque police

officers, sought time off for the births of their children in 2000, a right Congress

has guaranteed them through the Family and Medical Leave Act (“FMLA”).

Under the FMLA’s terms, covered employees are entitled “to take reasonable

leave for medical reasons, for the birth or adoption of a child, and for the care of

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a child, spouse, or parent who has a serious health condition,” 29 U.S.C.

§ 2601(b)(2), and affected employers may not interfere with or discriminate

against an employee seeking to exercise those rights, id. § 2615(a).

Plaintiffs allege that, after their pregnancy-related leave was approved by

their supervisors, Ms. Vigil intervened to instruct them that they would have to

exhaust their accrued sick leave before tapping into vacation time, and that in no

event could they utilize their accrued compensatory time (paid time off awarded

for overtime work and in lieu of a cash payment). Officers Orr and Paiz contend

that others seeking time off for reasons unrelated to pregnancy but still protected

by the FMLA – ranging from kidney dialysis to caring for a sick family member –

were routinely allowed to use compensatory and vacation time before dipping into

sick leave. And, plaintiffs submit, this differential treatment is no small thing for

two reasons. First, under Albuquerque Police Department (“APD” or the

“Department”) policy, sick days, unlike vacation or compensatory time, can be

saved over the years and used to help secure an early retirement. Second, and

conversely, because the amounts of vacation and compensatory time are capped,

one must use or lose them. Only a limited amount of unused vacation time, for

example, can be carried over from year-to-year, with the remainder having to be

“cashed out” at the end of each year. With respect to compensatory time, APD

had a policy in effect during the relevant period requiring officers with more than

250 hours of compensatory time, a group that included both Officers Orr and

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Paiz, to use that time before being allowed to work additional overtime. By

prohibiting their use of compensatory time, defendants effectively prohibited

plaintiffs from working overtime (and earning overtime pay) when they returned

to work.

Ms. Vigil and the City do not contest that they required pregnant women

seeking maternity leave to use sick leave first, or that they prohibited them from

using compensatory leave. Neither do defendants seriously purport to defend

their practices as consistent with the FMLA. 1 Indeed, after plaintiffs initiated

proceedings before the Equal Employment Opportunity Commission in November

2000, the City of Albuquerque entered into an agreement with the Albuquerque

Police Officer’s Association (“APOA”), in June 2001, to allow women seeking

maternity leave (and all others taking leave for FMLA-qualifying purposes) to use

compensatory time and do away with the requirement that they use sick days

before other kinds of leave. For reasons that are not entirely clear from the

record, however, plaintiffs do not bring their suit under the FMLA, but instead

proceed under the Pregnancy Discrimination Act (“PDA”), a component of Title

VII that prohibits intentional discrimination in the workplace on the basis of

1
The relevant Department of Labor (“DOL”) regulations implementing the
FMLA generally allow the use of compensatory time for FMLA purposes, 29
C.F.R. § 825.207(i); 29 C.F.R. § 553.25, and, most notably, indicate that “[n]o
limitations may be placed by the employer on substitution of paid vacation or
personal leave for [FMLA] purposes,” id. § 825.207(e). See D. Ct. Op. at 23
(finding that “Defendants arguably violated [the FMLA regulations]”).

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pregnancy. See 42 U.S.C. § 2000e(k). 2 Ms. Vigil and the City defend this suit on

the basis that, whatever the propriety of their practices under the FMLA, their

actions were not the product of intentional discrimination on the basis of

pregnancy in violation of Title VII.

As it happens, this is the second time the case is before us on appeal. In

response to an initial motion by defendants for summary judgment, the district

court applied the McDonnell Douglas burden shifting rubric to plaintiffs’ Title

VII claims and dismissed them for failure to establish a prima facie case of

discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

We reversed, explaining that defendants’ primary defense – that they neutrally

applied a standard policy to all employees – was relevant to later aspects of the

McDonnell Douglas framework and that, on the limited question whether a prima

facie case existed, plaintiffs had cleared that hurdle by coming forward with

sufficient facts to show that defendants had treated “at least one non-pregnant

2
Plaintiffs also brought a claim of pregnancy discrimination under the
New Mexico Human Rights Act (“NMHRA”). N.M. Stat. § 28-1-1. Because the
burden on plaintiffs to prove their NMHRA claims is identical to their burden
under Title VII, the analysis of plaintiffs’ federal claims that follows applies
equally to their state law claims. See Orr v. City of Albuquerque, 417 F.3d 1144,
1149 n.5 (10th Cir. 2005) (citing Cates v. Regents of New Mexico Inst. of Mining
& Tech., 954 P.2d 65 (N.M. 1998)). The only difference, as the district court
noted, is that plaintiffs may proceed against Ms. Vigil in her individual capacity
under the NMHRA, Sonntag v. Shaw, 22 P.3d 1188, 1193 (N.M. 2001), while,
under Title VII, they may proceed against Ms. Vigil only in her official capacity,
Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993). See D. Ct. Op. at
14-15.

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employee . . . more favorably than them.” Orr v. City of Albuquerque, 417 F.3d

1144, 1152 (10th Cir. 2005) (“Orr I”) (internal quotation and brackets omitted).

We remanded the case, leaving open the possibility of future summary judgment

proceedings on the remaining McDonnell Douglas questions whether defendants

had come forward with evidence suggesting that they had indeed enforced a

neutral policy with all employees, and whether plaintiffs might succeed in

showing such a proffered neutral business explanation to be pretext for intentional

discrimination. Id. On remand, the district court took up those very questions

and eventually granted summary judgment for defendants once again. Plaintiffs

now appeal this second summary judgment, asking us to reverse and send the

matter to trial.

II

A

In our court, PDA claims proceed in much the same manner as other Title

VII claims of disparate treatment. See EEOC v. Ackerman, Hood & McQueen,

Inc., 956 F.2d 944, 947 (10th Cir. 1992); EEOC v. Horizon/CMS Healthcare

Corp., 220 F.3d 1184, 1191 (10th Cir. 2000). Because the plaintiffs in this case

sought to prove intentional discrimination by means of “indirect” proof, we are

obliged to analyze their claims, prior to trial, under the well worn McDonnell

Douglas burden-shifting framework. See Orr I, 417 F.3d at 1149.

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 Pursuant to McDonnell Douglas’s terms, after we determined in Orr I that

plaintiffs had established a prima facie case – showing differential treatment

between employees who were and were not pregnant – the burden shifted to

defendants to articulate a legitimate, non-discriminatory reason for the adverse

employment action suffered by Officers Orr and Paiz. See id. In this appeal, we

do not understand plaintiffs to dispute that the City and Ms. Vigil have proffered

evidence supporting two such non-discriminatory explanations for their conduct.

Accordingly, this appeal focuses on the final McDonnell Douglas question –

namely, whether plaintiffs have adduced evidence from which a reasonable jury

could conclude that the defendants’ proffered non-discriminatory reasons for their

actions are pretext for intentional discrimination on the basis of pregnancy. See

Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 & n.10 (1981);

Swackhammer v. Sprint/United Management Co., 493 F.3d 1160, 1163 (10th Cir.

2007) (Plaintiffs must come forward with “evidence of differential treatment

sufficient to permit an inference that the true explanation . . . was intentional

discrimination.”); Miller v. Eby Realty Group LLC, 396 F.3d 1105, 1111 (10th

Cir. 2005) (“[T]he factfinder must be able to conclude, based on a preponderance

of the evidence, that discrimination was a determinative factor in the employer’s

actions–simply disbelieving the employer is insufficient.”); see also Martin J.

Katz, Reclaiming McDonnell Douglas, 83 Notre Dame L. Rev. 109, 130-31

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(2007) (discussing the chain of inferences under McDonnell Douglas at the

pretext stage, “from error, to lie, to cover-up, to discrimination”).

In assessing this question, we approach it de novo, viewing the facts (and

all reasonable inferences the facts entail) in the light most favorable to plaintiffs

as the summary judgment respondents. We are also cognizant that plaintiffs are

not limited in their proof on this score; pretext can be shown in any number of

ways, “including but not limited to differential treatment of similarly situated

employees and procedural irregularities.” Trujillo v. PacifiCorp, 524 F.3d 1149,

1158 (10th Cir. 2008). Neither, of course, do we look at each piece of evidence

in isolation; rather, in assessing whether plaintiffs have shown pretext, we are

obliged to consider their evidence in its totality. See Beaird v. Seagate Tech.,

Inc., 145 F.3d 1159, 1174 (10th Cir. 1998); Horizon/CMS Healthcare Corp., 220

F.3d at 1200.

B

The first and primary justification defendants offer for their conduct is that

they were simply following a written departmental policy – one that purportedly

required all APD employees taking leave for any FMLA – qualifying purpose to

use their accrued sick days before other types of leave, and flatly prohibited the

use of compensatory leave. In support of their position, defendants point to

written regulations that indisputably (i) allowed the city to designate any leave

taken for a FMLA-qualifying purpose as FMLA leave, (ii) prohibited the use of

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compensatory time for FMLA leave, and (iii) required sick leave be exhausted

before other types of leave be used for FMLA leave.

The difficulty with this line of defense is that Officers Orr and Paiz have

come forward with evidence suggesting that the regulations in question were not

issued until May 2000, a month after Officer Orr gave birth to her child, and that

they remained in draft form throughout 2000, when both plaintiffs sought and

took maternity leave. Indeed, plaintiffs’ proof suggests that the regulations in

question did not take effect until February 2001, and even then they were changed

almost immediately pursuant to the APOA agreement in June 2001.

Defendants offer no rejoinder to plaintiffs’ proof but reply instead that we

should consider the draft status of their regulations immaterial because those

regulations did nothing more than clarify and continue pre-existing APD policy

requiring the use of sick leave and precluding the use of compensatory time for

any FMLA-qualifying leave. Plaintiffs have presented evidence, however, from

which a reasonable jury could conclude that material differences do exist between

the then-controlling policy and the draft rules defendants cite. Indeed, the

controlling policy in effect during the relevant period explicitly states that

“[e]mployees may use accrued vacation as all or part of the 12-workweek FMLA

entitlement.” App. at 586, 622 (emphasis added). Additionally, Assistant City

Attorney Judy Kelley testified that her understanding of the controlling APD

policy was that employees had the option of taking vacation leave for any FMLA-

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qualifying absence – something quite different from the mandatory requirement in

the draft policy that sick leave must be exhausted first. Notably, too, plaintiffs

have adduced still further evidence suggesting that, written policies aside, as a

practical matter the Department regularly permitted employees seeking non-

pregnancy FMLA leave to avoid tapping into their sick leave accounts during the

period in question. In fact, all of the several APD officers whose testimony the

district court admitted 3 indicated that it was routine to use some combination of

compensatory time, accrued vacation time, and sometimes sick leave (though not

first) for non-pregnancy FMLA absences. 4

3
Plaintiffs presented additional unsworn statements from other APD
officers along these same lines; the district court, however, refused to consider
them on the ground that they did not comply with 28 U.S.C. § 1746. We discern
no abuse of the district court’s considerable discretion in holding as it did, and so
limit our review to the same declarations considered by the district court.

After relating his own experience of using compensatory time for FMLA
leave, Deputy Chief of Police Davalos proceeded to testify that this was a
“customary” practice within APD. The district court admitted Deputy Chief
Davalos’s testimony but deemed his discussion of the Department’s customary
practices “conclusory,” and gave it no weight. One might well question the
district court’s decision on this score, given that Mr. Davalos was Deputy Chief
of Police and that he explained he was personally aware of the Department’s
practices and procedures as a result of his position.
4
Defendants reply that they tried to apply their policy to three men
seeking FMLA leave for medical purposes having nothing to do with a pregnancy.
But this happened only after defendants were on notice of plaintiffs’ complaints.
In these circumstances, a reasonable jury could (though of course need not) view
these facts as part of a post-hoc effort to cover up past discriminatory practices,
or at least not informative of the Department’s practices and policies prior to the
filing of this lawsuit. See Plotke v. White, 405 F.3d 1092, 1103 (10th Cir. 2005)
(continued...)

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 At bottom, then, plaintiffs have presented evidence suggesting that (i) they

were required to use sick leave for their maternity leave at a time when, (ii) the

Department’s regulations in force permitted the use of vacation time for FMLA

leave, and (iii) other employees seeking FMLA leave for purposes unrelated to a

pregnancy were routinely allowed to use vacation or compensatory time. Given

this evidence and our precedent, we cannot help but conclude that a reasonable

jury could find defendants’ proffered justification to be pretextual for intentional

discrimination. In fact, the record before us contains strong parallels with Randle

v. City of Aurora, a case in which the plaintiff, a Filipino woman, brought a Title

VII suit claiming employment discrimination on the basis of race and national

origin, alleging that she was passed over for a promotion in favor of a white

woman. 69 F.3d 441, 445 (10th Cir. 1995). The defendant city sought to explain

its action on the basis that the position required an Associate’s Degree, which the

plaintiff indisputably did not have. Id. at 446, 453-54. Arguing that this

proffered race-neutral defense was pretextual, plaintiff put forward evidence that

the city allowed the white woman who was hired to substitute two years of

college for an actual Associate’s Degree. Id. at 453-54. Moreover, when the city

4
(...continued)
(holding that post-hoc reasons for an adverse employment decision constitute
evidence of pretext); Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1093
(10th Cir. 2007); see also Katz, supra, 83 Notre Dame L. Rev. at 127-28 (noting
that from “the fact of a cover-up, the factfinder . . . might conclude that the
employer lied to cover up a discriminatory decision”).

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discovered that the white woman it hired had not even completed those two years

of college, it allowed her to keep the position. Id. at 454. In the face of this

evidence, we held that the plaintiff had established a genuine issue of fact as to

whether the city’s claim that she was not qualified for the position was pretextual.

Id. at 454. If anything, the evidence adduced by Officers Orr and Paiz is even

stronger: they have shown not only that defendants’ putative policy was regularly

flouted, as the plaintiff did in Randle, but also that the controlling written policy

actually permitted the sort of leave they sought. See also Trujillo, 524 F.3d at

1159 (finding sufficient evidence of pretext to preclude summary judgment

where, among other things, “there was evidence that the [defendant’s] policy did

not reflect what actually occurred in practice”).

C

To be sure, defendants offer a fall-back justification for Ms. Vigil’s actions.

Whatever the Department’s policy and practice may have been, defendants insist

that Ms. Vigil honestly, if perhaps mistakenly, believed Department policy

required the use of sick leave for all FMLA-qualifying absences, and precluded

the use of compensatory time all-together. In response to the fact that so many

employees took leave for reasons unrelated to a pregnancy without being forced

to tap into their sick leave accounts, defendants stress that Ms. Vigil did not

personally review every employee’s leave request; only when someone flagged a

request as a potential problem did she become involved. At bottom then,

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defendants submit, the fact that Officers Orr and Paiz were singled out was just

the product of happenstance, mistake, or administrative oversight.

This line of argument often can provide a good defense; after all, people

make mistakes and Title VII does not provide a cause of action for every human

resources department error. See Young v. Dillon Cos., 468 F.3d 1243, 1250 (10th

Cir. 2006) (“[O]ur role is to prevent intentional discriminatory . . . practices, not

to act as a ‘super personnel department,’ second guessing employers’ honestly

held (even if erroneous) business judgments.”). Rather, Title VII requires a

plaintiff to come forward with evidence from which a jury could conclude that the

defendants’ behavior was the result of something more than a mistake – namely,

discriminatory animus. See id.; Swackhammer, 493 F.3d at 1168; see also Miller,

396 F.3d at 1111.

Plaintiffs acknowledge their burden in this vein and point us to evidence

presented by Detective Dita Dow, in the form of a sworn affidavit, as well as two

APD memoranda appended to her affidavit, suggesting that in 1997 Ms. Vigil

treated eight other pregnant female police officers just as she treated plaintiffs in

2000, requiring them to use sick time for maternity leave. Detective Dow

testified that these female officers, through counsel, asked Ms. Vigil and the

Department to review their cases, emphasizing that other employees were freely

allowed to use compensatory and vacation time for FMLA leave. The Department

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agreed to undertake such a review and, ultimately, seemingly acknowledged Ms.

Vigil’s disparate treatment by restoring all of the pregnant officers’ sick leave.

The district court found that this evidence “seems to contradict statements

by . . . . [Ms.] Vigil that [she] interpreted [the APD policy], which was in effect

in 1997, to disallow use of compensatory time for parental leave [and] appears to

suggest pregnancy/sex based discrimination by Defendant Vigil beginning at least

as of 1997, and therefore evidence of pretext in this case,” rather than mere

mistake. D. Ct. Op. at 29-30. We agree. This is not to say that Detective Dow’s

evidence would necessarily preclude a jury from accepting defendants’ claim of

mistake. 5 But neither can we gainsay that a reasonable jury could disbelieve

defendants’ claim that Ms. Vigil’s treatment of Officers Orr and Paiz was merely

a mistake. The evidence shows that Ms. Vigil singled out the FMLA leave

requests of ten separate pregnant women over the course of three years; enforced

against them a rule at odds with Department policy and practice; and, critically,

continued to do so after being put on notice that her actions were inconsistent

with Department policy and practice. Simply put, the evidence is sufficient to

5
Along these lines, one might well ask: why would defendants agree to
restore the 1997 sick leave time of Detective Dow and her colleagues, and yet
persist in just the opposite course, enforcing a sick leave first policy, with respect
to plaintiffs in 2000? Such contradictory behavior does seem to suggest some
degree of confusion and mismanagement. See Salguero v. City of Clovis, 366
F.3d 1168, 1178 (10th Cir. 2004) (Title VII does not make “inconsistent or
irrational employment practices illegal.”).

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allow, if not compel, a reasonable fact-finder to conclude that Ms. Vigil did not

honestly err but instead intentionally singled out pregnant women for differential

treatment. Cf. Swackhammer, 493 F.3d at 1169-70 (“Evidence that the employer

. . . was mistaken . . . is not sufficient to show that the employer’s explanation is

unworthy of credibility. . . . The relevant inquiry is . . . whether it honestly

believed those reasons and acted in good faith upon those beliefs.”) (quotation

and citation omitted).

The district court ultimately granted summary judgment to defendants in

large measure because it came to conclude that Detective Dow’s evidence was

inadmissible under Federal Rule of Evidence 408. Specifically, after

acknowledging that it strongly suggested pretext, the district court ruled that

Detective Dow’s evidence implicated compromise discussions between herself

and the Department and thus could not be considered under the terms of Rule 408

and our decision in Bradbury v. Phillips Petroleum Co., 815 F.2d 1356, 1363

(10th Cir. 1987). Notably, while defendants did argue for holding Detective

Dow’s evidence inadmissible in their summary judgment motion, they never cited

Rule 408 and, on appeal before us, they do not defend the district court’s holding;

rather, they suggest that Detective Dow’s evidence concerns only a voluntarily

agreement by them in 1997 to conduct an internal review of the allegations their

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employees raised at the time about the disparate treatment of pregnant women. 6

But even assuming without deciding that the district court was correct, and that

Rule 408 is implicated by Detective Dow’s evidence, we are not persuaded that

either the Rule or Bradbury requires its exclusion.

As the district court rightly noted, we held in Bradbury that evidence

pertaining to the compromise “of a claim,” Fed. R. Ev. 408(a), includes evidence

regarding the compromise of related cases, not just the one at hand. See

Bradbury, 815 F.2d at 1363-64. But, critically, after declaring the rule that Rule

408 applies to exclude evidence regarding the compromise of related cases, we

emphasized that “Rule 408 does not completely bar the admission of compromise

evidence.” Id. at 1364. “For example, in a list that is illustrative rather than

exhaustive, the Rule states that evidence of other wrongs may be admitted to

show . . . the absence of mistake.” Id.; see also id. (finding that the “purposes not

prohibited” by Rule 408 parallels the “other purposes” enumerated in Rule

404(b)). From there, we proceeded to hold that evidence from prior settlements

can be “probative on the issue whether the incident involving [the parties in the

current dispute] was simply an isolated mistake or, rather, part of a series of

6
On appeal, defendants carefully argue only that, assuming Detective
Dow’s evidence implicates a settlement agreement, then Rule 408 would support
its exclusion; they then remind us that we may affirm on grounds other than those
relied upon by the district court and proceed to argue various alternative theories
of affirmance. Appellees’ Br. at 38 & n.18.

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incidents that might illustrate outrageous conduct on the part of [the defendant].”

Id. We see no daylight between our ultimate holding in Bradbury and this case.

Even if the evidence involving Detective Dow and the other pregnant women

implicates compromise discussions to which Rule 408 applies, by its terms Rule

408 and our case law permit the use of such evidence to show not liability per se

but the absence of mistake. And that is exactly what plaintiffs properly seek to

show in this case – namely, that Ms. Vigil’s treatment of Officers Orr and Paiz

was not a random accident, as defendants claim, but part of a larger and deliberate

pattern of treating pregnant women differently from other employees seeking

FMLA leave.

***

Officers Paiz and Orr allege that defendants discriminated against them

when they took leave for the births of their children. Defendants seek to justify

their treatment of plaintiffs in two ways: First, defendants say they were simply

following Department policy. Second, and alternatively, defendants argue that

even if they weren’t applying Department policy, Ms. Vigil simply made a good

faith mistake in requiring plaintiffs to exhaust sick leave and prohibiting them

from using compensatory and sick time. After a thorough review of the record in

this case, we find that the plaintiffs have presented evidence undermining both of

defendants’ explanations – and done so in a manner a reasonable jury could find

suggestive of pretext for intentional discrimination. While defendants are of

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course free to argue at trial that their treatment of plaintiffs was not the product of

unlawful discrimination, we believe, after two rounds of summary judgment

proceedings and appeals, that is where this matter must properly proceed.

Reversed and remanded.

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07-2105- Orr v. City of Albuquerque

HARTZ, Circuit Judge, concurring:

I join Judge Gorsuch’s opinion. I write separately solely to emphasize my

view that the appeal turns on two particular items of evidence. First, I think that

the affidavit from Deputy Police Chief Ruben Davalos was entitled to substantial

weight. Given his high position in the chain of command, he was competent to

testify to Department practice and policy regarding FMLA leave and

compensatory time. Second, as Judge Gorsuch’s opinion clearly demonstrates,

Detective Dow’s evidence was admissible. The district court apparently relied on

Plaintiffs’ failure to challenge the assertion in one of Defendants’ briefs that the

evidence was inadmissible because it reflects a settlement. But that

assertion—one sentence in a 24-page brief—cited no authority, not even Fed. R.

Evid. 408, and Defendants do not press the point on appeal. In this circumstance,

I think it appropriate for us to address whether the evidence should have been

excluded under Rule 408.