SUPREME COURT OF ARIZONA
En Banc
MADELINE SHOTWELL, ) Arizona Supreme Court
) No. CV-03-0122-PR
Petitioner, )
) Court of Appeals
v. ) Division One
) No. 1 CA-SA 03-0017
THE HONORABLE GARY DONAHOE, )
Judge of the SUPERIOR COURT OF ) Maricopa County
THE STATE OF ARIZONA, in and for ) Superior Court
the County of MARICOPA, ) No. CV 2000-020518
)
Respondent Judge, )
)
SMITH PAINTING, INC.; MICHAEL C. )
SMITH and LINDA L. SMITH, )
husband and wife, ) O P I N I O N
)
Real Parties in Interest. )
__________________________________)
Special Action from the Superior Court in Maricopa County
The Honorable Gary E. Donahoe, Judge
VACATED, REMANDED
Court of Appeals, Division One
Memorandum Decision (filed Mar. 11, 2003)
VACATED
JACKSON WHITE, P.C. Mesa
by Michael R. Pruitt
and Bobbie J. Rasmusson
Attorneys for Petitioner
STEINER & STEINER, P.C. Phoenix
by Richard A. Steiner
and Norris C. Livoni
Attorneys for Real Parties in Interest
Smith Painting, Inc., Michael C. Smith, and Linda L. Smith
JABBURG & WILK, P.C. Phoenix
by Kraig J. Marton
and Gregory S. Fisher
and
THE GRIMWOOD LAW FIRM Phoenix
by N. Douglas Grimwood
Attorneys for Amicus Curiae
Arizona Employment Lawyers Association
B E R C H, Justice
¶1 This case requires us to determine whether a
reasonable cause determination letter issued by the United
States Equal Employment Opportunity Commission (“EEOC”) is
automatically admissible as evidence in a Title VII employment
discrimination lawsuit. We reject the Ninth Circuit rule that
an EEOC reasonable cause determination is admissible per se and
hold that the Arizona Rules of Evidence govern the admissibility
of such determination letters in cases brought in Arizona state
courts.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Madeline Shotwell filed a Charge of Discrimination
with the EEOC, alleging that her former employer, Smith
Painting, Inc., harassed her and discriminated against her on
the basis of her sex and permitted such an offensive and hostile
work environment that she was constructively discharged from her
job. The EEOC investigated Shotwell’s allegations and issued a
reasonable cause determination letter (the “Determination”)
concluding that Shotwell had been discriminated against. This
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Determination, which is the subject of this litigation, reads as
follows:
Examination of the evidence reveals that [Smith
Painting] created an intimidating, hostile, and
offensive work environment by allowing unwelcome
conduct of a sexual nature, which unreasonably
interfered with [Shotwell’s] work performance.
[Shotwell] indicated that the sexual conduct was
unwelcome by reporting the incidents to both her
supervisor and the owner. As a result, [Smith
Painting] stated that it had extensive interviews with
[Shotwell’s] co-workers and supervising personnel
concerning her claims of sexual harassment. However,
[Smith Painting] later stated that it does not have
any recorded interviews or signed statements, and that
it has not created an internal file regarding
[Shotwell’s] allegations. In addition, [Shotwell] was
demoted after she complained of sexual harassment. As
a result of the treatment she received, and [Smith
Painting’s] failure to address her concerns,
[Shotwell] resigned. Moreover, [Smith Painting] has
no sexual harassment policy.
The [EEOC] has previously determined that the
employer is responsible for the unlawful conduct where
the employer knew[] or should have known of the
conduct, unless the employer can show it took
immediate and appropriate corrective action. [Smith
Painting] had clear knowledge of [Shotwell’s]
complaint[s.] However, [Smith Painting] has no
records which indicate that an investigation occurred
once the sexual harassment was reported. Moreover,
[Smith Painting’s] failure to establish a sexual
harassment policy indicates that it did not exercise
reasonable care to prevent and correct sexual
harassment within the organization.
Accordingly, I find reasonable cause to believe
that [Smith Painting] discriminated against [Shotwell]
by sexually harassing her based on her sex.
I also find reasonable cause to believe that
[Smith Painting] retaliated against [Shotwell] by
demoting her from her Foreman position because she
complained of the sexual harassment.
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I also find reasonable cause to believe [Smith
Painting] constructively discharged [Shotwell] in that
the harassment suffered made working at the company so
unbearable, she was forced to terminate her
employment.
In addition to the foregoing Determination, the EEOC also issued
Shotwell a Notice of Right to Sue confirming that “[t]he EEOC
found reasonable cause to believe that violations of the
statute(s) occurred with respect to some or all of the matters
alleged in the charge,” but advising that the EEOC would not
bring the suit on her behalf. Shotwell then filed a complaint
in superior court alleging sexual harassment in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e)
to 2000(e)(17) (1994) (the “Act”).
¶3 Smith Painting moved in limine to preclude use of the
various letters and notices issued by the EEOC. The trial court
granted Smith Painting’s motion to preclude the Determination,
but denied it as to the Charge of Discrimination and the Notice
of Right to Sue, ruling that the latter two documents would be
admissible. After the superior court denied Shotwell’s motion
for reconsideration, Shotwell petitioned the court of appeals
for special action relief. Believing itself bound by the Ninth
Circuit’s rule that EEOC reasonable cause determination letters
are “per se” admissible, the court of appeals accepted
jurisdiction and granted relief. We granted Smith Painting’s
petition for review. We have jurisdiction pursuant to Article
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6, Section 5(3) of the Constitution of the State of Arizona and
Arizona Revised Statutes (“A.R.S.”) section 12-120.24 (2003).
DISCUSSION
A. Per se Admissibility
¶4 Whether Arizona courts must apply the Ninth Circuit
rule making EEOC reasonable cause determinations automatically
admissible in Title VII litigation and, if not, whether the
court should adopt such a rule are questions of law that we
address de novo. See Nielson v. Patterson, 204 Ariz. 530, 531,
¶ 5, 65 P.3d 911, 912 (2003) (approving de novo review of legal
issues).
¶5 Shotwell premises her position that the Determination
should be automatically admissible on policy concerns and Ninth
Circuit case law holding that EEOC reasonable cause
determinations are per se admissible in Title VII lawsuits.
See, e.g., Bradshaw v. Zoological Soc’y of San Diego, 569 F.2d
1066, 1069 (9th Cir. 1978).
¶6 We are not persuaded that we must or even should adopt
the per se rule. Generally speaking, while federal laws control
the substantive aspects of federal claims adjudicated in state
courts, state rules of procedure and evidence apply unless the
state rules would affect the substantive federal right. See
Felder v. Casey, 487 U.S. 131, 138, 108 S. Ct. 2302, 2306-07
(1988); see also Yauch v. S. Pac. Transp. Co., 198 Ariz. 394,
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399-400, ¶ 12, 10 P.3d 1181, 1186-87 (App. 2000). Arizona’s
Rules of Evidence therefore apply in adjudications of federal
claims so long as their application does not impair a litigant’s
substantive federal rights. Yauch, 198 Ariz. at 399-400, ¶ 12,
10 P.3d at 1186-87; cf. Logerquist v. McVey, 196 Ariz. 470, 481-
90, ¶¶ 33-61, 1 P.3d 113, 124-33 (2000) (interpreting Arizona
Rule of Evidence 703 differently than its federal counterpart).
¶7 Shotwell conceded in her supplemental briefs and at
the oral argument that Arizona courts need not follow the Ninth
Circuit’s per se rule, although she vigorously argued that we
should do so. Implicit in her concession is the acknowledgement
that failure to apply the per se rule would not affect her
substantive federal rights.
¶8 This concession was properly made. Nothing in Title
VII itself affords litigants an unfettered ability to introduce
an EEOC reasonable cause determination in Title VII
adjudications. See 42 U.S.C. §§ 2000(e) to 2000(e)(17); Smith
v. Universal Servs., Inc., 454 F.2d 154, 156 (5th Cir. 1972)
(noting that “[t]he Civil Rights Act admittedly contains nothing
to authorize the admission of the EEOC’s findings into
evidence”); Michael D. Moberly, Admission Possible:
Reconsidering the Impact of EEOC Reasonable Cause Determinations
in the Ninth Circuit, 24 Pepp. L. Rev. 37, 41 (1996) (stating
that “Congress has not addressed whether EEOC reasonable cause
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determinations are admissible in subsequent employment
discrimination litigation”). Thus because the admissibility of
an EEOC determination is a purely evidentiary issue that does
not affect any substantive federal right, Arizona courts are not
required to follow the Ninth Circuit’s per se rule.
¶9 But even if Arizona courts were bound to apply federal
procedural rules to Title VII cases, the split in the federal
circuits addressing this issue would afford us the latitude to
adopt either the Ninth Circuit’s per se rule or the majority
position, a discretionary approach governed by the Federal Rules
of Evidence, which, in this instance, parallel the corollary
Arizona rules. Because both the majority and minority
approaches are federal law, we are free either to adopt or
reject the Ninth Circuit’s per se rule based on our own
reasoning and analysis.
¶10 We begin our analysis by considering the origin of the
per se rule and examining the extent to which it has been
adopted in other jurisdictions. The rule originated in Smith v.
Universal Services, Inc., 454 F.2d 154 (5th Cir. 1972). See
Plummer v. W. Int’l Hotels Co., 656 F.2d 502, 504 (9th Cir.
1981). Reasoning that EEOC investigators are “trained and
experienced in [investigating] discriminatory practices,” the
Fifth Circuit concluded that ignoring such resources “would be
wasteful and unnecessary.” Smith, 454 F.2d at 157. The court
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then found that the “highly probative” nature of an EEOC report
“outweighs any possible prejudice to [a] defendant.” Id.
Finally, the court concluded that although the report was
hearsay, it fell within the exclusion for official reports in
Federal Rule 803(8)(C) and was therefore admissible. Id. at
157-58. The Fifth Circuit has, however, since retreated from
the per se rule. See Cortes v. Maxus Exploration Co., 977 F.2d
195, 201-02 (5th Cir. 1992) (stating that admission of an EEOC
probable cause determination is subject to the trial judge’s
discretion under Rule 403); see also Michael D. Moberly, The
Admissibility of EEOC and Arizona Civil Rights Division
Determinations in State Court Employment Discrimination
Litigation, 33 Ariz. St. L.J. 265, 273-74 & n.48 (2001)
[hereinafter “Moberly”] (noting Fifth Circuit’s retreat from the
per se rule).
¶11 The Ninth Circuit embraced the per se approach in
Bradshaw, 569 F.2d at 1069. In that case, the district court
struck the EEOC determination the plaintiff had attached to her
complaint. Id. at 1068-69. The court of appeals reversed,
concluding, with little analysis, that the EEOC determination
was admissible. Id. at 1069 (citing Smith, 454 F.2d at 156-58).
In Plummer, the Ninth Circuit extended the rule to apply in a
case tried before a jury. 656 F.2d at 505.
¶12 The Ninth Circuit, however, is the only circuit that
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employs the per se admissibility rule. See Plummer, 656 F.2d at
504 n.5; Moberly, supra ¶ 10, at 273 (2001) (stating that only
the Ninth Circuit follows the per se rule). Every other circuit
that has considered the matter affords the trial court
discretion under the Federal Rules of Evidence to examine the
relevance of the determination in light of the facts of the case
and to weigh it against other factors – such as unfair
prejudice, confusion of the jury, or waste of time – that may
militate in favor of excluding all or part of the document. See
Williams v. Nashville Network, 132 F.3d 1123, 1129 (6th Cir.
1997) (holding the admissibility of an EEOC reasonable cause
determination is within the trial court’s discretion); Barfield
v. Orange County, 911 F.2d 644, 649-50 (11th Cir. 1990) (same);
Tulloss v. Near N. Montessori Sch., Inc., 776 F.2d 150, 153-54
(7th Cir. 1985) (same); Johnson v. Yellow Freight Sys., Inc.,
734 F.2d 1304, 1309-10 (8th Cir. 1984) (same); Walton v. Eaton
Corp., 563 F.2d 66, 75 (3d Cir. 1977) (same); see also Cantu v.
City of Seattle, 752 P.2d 390, 391 (Wash. App. 1988) (noting
that the Second, Third, Fourth, Sixth, Eighth, and Tenth Circuit
Courts of Appeal have rejected the per se rule in favor of a
discretionary standard); cf. Smith v. MIT, 877 F.2d 1106, 1113
(1st Cir. 1989) (holding admissibility of EEOC investigative
materials subject to the discretion of the trial court); Whatley
v. Skaggs Cos., 707 F.2d 1129, 1137 (10th Cir. 1983) (holding
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trial court’s admission of a reasonable cause determination
“appear[ed] to be error,” but that the error was harmless);
Gillin v. Fed. Paper Bd. Co., 479 F.2d 97, 99-100 (2d Cir. 1973)
(refusing to reverse a trial court’s exclusion of an EEOC
investigatory report from evidence); Cox v. Babcock & Wilcox
Co., 471 F.2d 13, 15 (4th Cir. 1972) (recognizing a trial
court’s discretion over whether EEOC records are admissible).
The Ninth Circuit stands alone in refusing to afford the trial
court any discretion in the admission of EEOC reasonable cause
determinations.
¶13 Despite the rule’s lack of support in other
jurisdictions, Shotwell and amicus curiae Arizona Employment
Lawyers Association advance several reasons in favor of adopting
the Ninth Circuit rule. First, they argue, such a bright-line
rule would be easy to apply. Second, per se admissibility will
encourage employers to participate in EEOC investigations.
Third, it will encourage settlement of employment discrimination
cases.
¶14 We have our doubts about the latter propositions.
Whether we adopt the per se rule or not, employers will be
encouraged to participate in investigations and settle their
cases – if indeed such a rule encourages participation and
settlement – because Arizona is in the Ninth Circuit, which
continues to employ the per se rule. Employers usually will not
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know in advance whether a plaintiff intends to file suit in
state or federal court. Therefore, if a per se rule tends to
encourage participation in the EEOC’s investigatory process or
settlement of cases, the incentive remains regardless of any
ruling this court might make on the matter.
¶15 And the assertion that the per se admissibility of
EEOC probable cause determinations encourages employers to
participate in EEOC proceedings and to settle Title VII disputes
is unsupported and certainly debatable. It seems equally likely
that an employer subject to a per se admissibility rule might be
disinclined to participate in an EEOC investigation if the
evidence gathered will ultimately be used in court against the
employer.
¶16 On this point, we recall Arizona’s experience with
Medical Liability Review Panels (“MLRPs”), which were also
initially thought to encourage participation in investigations
and settlement of medical malpractice cases. Eastin v.
Broomfield, 116 Ariz. 576, 583, 570 P.2d 744, 751 (1977); Jona
Goldschmidt, Where Have All the Panels Gone? A History of the
Arizona Medical Liability Review Panel, 23 Ariz. St. L.J. 1018-
19 (1991). Instead, parties often elected not to participate in
the review so they could attack the anticipated adverse findings
of the review panel, which were statutorily admissible per se in
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any ensuing malpractice litigation.1 In light of its
unsuccessful track record, the panel was eventually terminated.
1989 Ariz. Sess. Laws, ch. 289, § 1 (repealing A.R.S. § 12-567).
Thus, we are not persuaded that employers are encouraged to
participate in EEOC investigations or to settle cases by reason
of the per se admission at trial of the EEOC determination.
Nor, we note, has Shotwell presented any evidence or cited any
cases demonstrating that the per se rule encourages the result
she claims.
¶17 Shotwell next argues that this court’s adoption of the
per se rule would foster uniformity in Title VII adjudications,
whether brought in the District Court for the District of
1
An MLRP heard evidence and made a finding as to “whether
the evidence presented to the panel . . . support[ed] a judgment
for the plaintiff or for the defendant.” A.R.S. § 12-567(F)
(Supp. 1988) (repealed, 1989 Ariz. Sess. Laws, ch. 289, § 1).
The Arizona Legislature specifically made MLRP findings and
conclusions admissible in a malpractice trial. See A.R.S. § 12-
567(K) (also repealed). This court noted that, “in order to
minimize the effect of an expected unfavorable panel result,”
which was admissible per se in ensuing medical malpractice
litigation, plaintiffs stood mute rather than presenting
evidence to an MLRP. Phoenix Gen. Hosp. v. Superior Court, 138
Ariz. 504, 505, 675 P.2d 1323, 1324 (1984). Then at trial the
plaintiff would argue that the MLRP findings and conclusions
should be given little weight because the MLRP did not hear the
plaintiff’s evidence. Id. The experience from this related
area contradicts Shotwell’s contention that employers are more
likely to participate in administrative investigations if the
results are automatically admissible at trial and instead
suggests that employers may be less willing to participate in
EEOC proceedings if failing to participate can sabotage the
effect and weight of an EEOC determination that is per se
admissible.
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Arizona or in an Arizona state court. While we acknowledge the
benefits of uniformity and appreciate the systemic concerns
raised by forum shopping,2 we question whether adopting a per se
rule will in fact substantially reduce forum shopping in the
circuit. No other state in the Ninth Circuit that has
considered the issue has embraced the per se rule. See Michail
v. Fluor Mining & Materials, Inc., 225 Cal. Rptr. 403, 403-04
(App. 1986) (upholding a trial court’s exercise of discretion to
determine whether an EEOC determination should be admitted to
support a state law claim); Mahan v. Farmers Union Cent. Exch.,
Inc., 768 P.2d 850, 858-59 (Mont. 1989) (upholding a trial
court’s exclusion of evidence of a probable cause determination
made by a state agency in support of a state law claim); Cantu,
752 P.2d at 391 (upholding a trial court’s exercise of
discretion to determine whether an EEOC determination should be
admitted to support a state law claim). Thus there is no
uniformity between the states in the Ninth Circuit and the
circuit itself, although a consensus is developing among the
states of the circuit to employ a case-by-case analysis under
the rules of evidence of each state. See Michail, 225 Cal.
Rptr. at 404 n.1; Bierlein v. Byrne, 14 P.3d 823, 824-26 (Wash.
Ct. App. 2000); Cantu, 752 P.2d at 391. We therefore conclude
2
Ensuring uniformity is a more compelling motivator when
substantive law is at issue. See Weatherford v. State, ___
Ariz. ___, ___, ¶ 9, 81 P.3d 320, 324 (2003).
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that the preference for uniformity does not dictate that we
adopt the Ninth Circuit’s approach in this case.
¶18 Nor will adoption of a per se rule necessarily
streamline trials. The facts and conclusions contained in the
EEOC reasonable cause determination can and, in most cases, will
have to be demonstrated by other evidence in order for the
plaintiff to prevail. Thus, making the EEOC determination
admissible per se does not necessarily reduce the evidence the
plaintiff must otherwise produce to establish her case. In
addition, the trial judge “may consider that time spent by the
defendant in exposing the weaknesses of the EEOC report would
add unduly to the length of the trial.” Johnson, 734 F.2d at
1309. Presenting the determination then may, in a particular
case, confuse the jury and waste the court’s and jury’s time.
Indeed, because the plaintiff must fully establish her case,
there may be little probative value in presenting the conclusory
statements contained in some EEOC determinations. Under these
circumstances, we are not prepared to say that in every case the
determination’s probative value will outweigh these concerns.
¶19 Shotwell also argues that EEOC determination letters
should be presumed to be trustworthy, and therefore admissible,
because the EEOC has expertise in investigating charges of
discrimination and its reports are made pursuant to law. State
v. Bass, 198 Ariz. 571, 579, ¶ 32, 12 P.3d 796, 804 (2000)
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(calling trustworthiness the “cornerstone” of the hearsay
exceptions). This claim reflects the policies underlying
Arizona Rule of Evidence 803(8)(C), which parallels its
similarly numbered federal counterpart. The Arizona provision
requires that reports compiled by public agencies are excepted
from the hearsay rule “[u]nless the sources of information or
other circumstances indicate lack of trustworthiness.” Ariz. R.
Evid. 803(8).
¶20 We make two observations in response. First, in this
case, no objections to the hearsay nature or trustworthiness of
the report were made. Therefore, the report is presumed to be
trustworthy and exempt from hearsay constraints. Second, as
Shotwell concedes, Rule 803(8)(C) creates an exemption only from
the requirements of the hearsay rule. It does not render any
document satisfying the rule automatically admissible without
regard to the resolution of other evidentiary objections that
may have been made. Indeed, the comments to the hearsay rules
themselves require that the hearsay exceptions that favor
admission must be “counterbalanced by [analysis of the proffered
evidence under] Rules 102 and 403.” Ariz. R. Evid. 801 cmt.;
State v. Cruz, 128 Ariz. 538, 541, 627 P.2d 689, 692 (1981);
Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence § 803.02 (Joseph M. McLaughlin ed., 2d ed. 2003); see
also State v. Yamada, 57 P.3d 467, 481 (Haw. 2002) (holding that
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evidence qualifying under “an exception to the rule against
hearsay . . . does not preclude the trial court from excluding
the evidence, or a portion thereof, pursuant to . . . Rule 403,
assuming that the trial court properly weighs the evidence’s
probative value against the danger of unfair prejudice”).
¶21 In this case, Smith Painting did interpose an
objection under Rule 403, which provides that even relevant
evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Ariz. R. Evid. 403.
Shotwell maintains that because the Determination is highly
probative, its probative value necessarily outweighs other
concerns and it should therefore be admitted. She would have
Arizona courts forgo the Rule 403 analysis for EEOC
determinations.
¶22 We are unpersuaded that doing so would sufficiently
streamline trials that we should forgo the added protections
that our rules make available. Adhering to the Arizona Rules of
Evidence will invest the trial court with the discretion to
admit or exclude reasonable cause determinations on a case-by-
case basis as dictated by an analysis of the EEOC determination
in each case and the factors in that case that militate in favor
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of or against admitting the determination. Although some
measure of predictability may be lost, a better result will be
achieved more often than will occur under a per se rule
requiring admissibility in all instances. For example, under a
discretionary approach the trial court may consider a
determination’s probative value and weigh it against the
expenditure of judicial resources entailed in litigating side
issues or establishing necessary evidentiary foundations. The
trial court will also be able to consider whether an EEOC
reasonable cause determination is reliable, trustworthy, or
probative, and evaluate whether the benefits that might be
derived from its admission are outweighed by other circumstances
such as unfair prejudice, waste of time, or confusion of the
issues.
¶23 In determining the appropriate result in each case, a
trial court may exclude the determination, limit admissibility
to only portions of the determination, or give instructions
addressing the weight to be given to the determination if it is
admitted, or it may employ any combination of these safeguards.
Simply applying our rules of evidence in determining the
admissibility of a determination, as they would be applied to
any other documentary evidence, will provide certainty to
litigants and give trial judges the necessary discretion to
allow appropriate use of the evidence offered. Trial judges
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shackled by a per se rule lack the ability to control the
effects of potentially unfair, prejudicial, duplicative, time
consuming, confusing, and irrelevant evidence that may be
contained in a determination letter. The discretionary approach
allows trial judges, on a case-by-case basis, to apply the Rules
of Evidence in a common-sense manner in evaluating the
determination letters that come before them in the context of
the cases in which they are presented.
¶24 While allowing trial courts discretion under the
Arizona Rules of Evidence rather than adhering to a per se rule
of admissibility may not always produce consistent results,
there will be consistency in the evidentiary standard that will
govern the admissibility of probable cause determinations.
Courts will apply the same standard that applies to the
admissibility of other documentary evidence in state courts.
¶25 The amicus maintains that the per se admissibility
rule accords deference to Congress’s mandate as well as to the
EEOC’s investigative efforts. We think the point is debatable.
Congress may instead have intended that a trial be a complete
re-examination of the facts, independent from that made by the
EEOC. Such an intent is evidenced by its authorization of a
full judicial review. See Tulloss, 776 F.2d at 153-54.
Moreover, as noted in ¶ 8, Congress did not include in Title VII
any language requiring that EEOC determinations be admissible at
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trial. Instead, the textual evidence indicates Congress’s
intent that the case be fully litigated. As evidence of this
intent, Congress provided in Title VII that EEOC investigators
may be called as witnesses at trial. See, e.g., Walton v. Eaton
Corp., 563 F.2d at 75 n.12; Heard v. Mueller Co., 464 F.2d 190,
194 (6th Cir. 1972).
¶26 In sum, we conclude that the court of appeals erred in
holding that the admissibility of the Determination was
controlled by the Ninth Circuit’s per se rule. We hold that the
admissibility of an EEOC determination letter must be resolved
by reference to the Arizona Rules of Evidence.
B. Application of Arizona Rules of Evidence
¶27 Having decided that the Arizona Rules of Evidence will
control the admissibility of an EEOC determination, we turn to
the analysis of the Determination at issue in this case. We
must decide whether the trial court abused its discretion in
deciding that Arizona Rule of Evidence 403 precluded admission
of the Determination because it contained “conclusions.” See
Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506, 917 P.2d 222,
235 (1996) (noting that we review a trial judge’s evidentiary
rulings only for an abuse of discretion).
¶28 Although the EEOC Determination itself is hearsay,
Smith Painting did not object to its admission on that basis.
Moreover, as the embodiment of the conclusions of “an
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investigation made pursuant to authority granted by law,” Ariz.
R. Evid. 803(8)(C), an EEOC determination is assumed to be
trustworthy and therefore admissible hearsay. See Bass, 198
Ariz. at 579, ¶ 32, 12 P.3d at 804.
¶29 Smith Painting did object on Rule 403 grounds,
however. And because Rule 403 and the hearsay bar protect
against different dangers, satisfying one rule does not
necessarily satisfy the concerns addressed by the other. Rule
403 ensures that the probative value of the evidence is not
substantially outweighed by other considerations set forth in
the Rule.
¶30 Because Smith Painting made a timely objection under
Rule 403, the trial court should have analyzed the Determination
to see whether its admission into evidence might “mislead[] the
jury,” or cause “unfair prejudice[,] . . . undue delay, waste of
time, or needless presentation of cumulative evidence.” Ariz.
R. Evid. 403. Smith Painting maintains that the Determination
might well have spawned all of these ill effects because Smith
Painting contests several of the facts upon which the EEOC
investigator relied.3 Moreover, Smith Painting argues, the
3
For example, Smith Painting disagrees that it had no sexual
harassment policy, that Shotwell was demoted because she
complained of sexual harassment, that Shotwell was reassigned
“as a result of the treatment she received,” and that Smith
Painting “failed to address [Shotwell’s] concerns.” Smith
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document is unfairly prejudicial. In addition, because the
Determination at issue here is “conclusory,” it does not obviate
the need for Shotwell to present to the factfinder the
underlying evidence on which the conclusions are based,
therefore wasting time and confusing the issues by requiring
needless presentation of either unnecessary or potentially
cumulative evidence.
¶31 In precluding the Determination, the trial judge
employed the Rule 403 language that the document’s prejudicial
effect substantially outweighed its probative value, but he did
so solely on the ground that the Determination was “conclusory”
and “amounts to nothing more than a witness telling the jury how
to decide the liability issues in this case.” On
reconsideration, the trial court reiterated its conclusion that
the Determination was “unduly prejudicial because it ‘contains a
conclusive finding of liability.’” 10/09/2002 M.E. (quoting
Amentea-Cabrera v. Potter, 279 F.3d 746, 749 (9th Cir. 2002)).
¶32 A document is not necessarily inadmissible, however,
simply because it contains conclusions or is conclusory. See
Larsen v. Decker, 196 Ariz. 239, 242, ¶ 12, 995 P.2d 281, 284
(App. 2000); see also Williams, 132 F.3d at 1128-29 (weighing
the probative value of a determination, which was found to be
Painting asserts that a mini-trial would be necessary on each of
these points.
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minimal, against the potential for a jury attaching “undue
weight” to the determination by adopting its conclusions as fact
rather than as “a mere finding of probable cause”); Johnson, 734
F.2d at 1309 (weighing the probative value of an EEOC
determination, which was found to be minimal given the
“substantial evidence . . . presented to the jury on all matters
summarized in the report,” against the fact that admitting the
determination “under these circumstances would amount to
admitting the opinion of an expert witness as to what
conclusions the jury should draw, even though the jury had the
opportunity and the ability to draw its own conclusions from the
evidence presented,” and the fact that admitting the
determination would require a prolonged trial “to apprise the
jury of the nature and extent of the EEOC investigation”). That
the document contained some conclusory statements therefore is
not, by itself, enough to render it inadmissible.
¶33 The trial court did not explain why it believed the
Determination’s prejudicial effect substantially outweighed its
probative value or set forth any other ground under Rule 403 for
excluding the document. While the Determination appears to be
probative, from the record before us we cannot tell whether the
trial court weighed its probative value against its potential
prejudicial effect or whether the court considered any of the
other dangers against which Rule 403 protects, such as
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“confusion of the issues, . . . undue delay, waste of time, or
needless presentation of cumulative evidence.” Ariz. R. Evid.
403. For the benefit of the appellate court, a trial court
conducting its Rule 403 analysis should explain on the record
its Rule 403 weighing process. The court should also consider
whether portions of the determination might be admissible or
whether other safeguards, such as offering a limiting jury
instruction, might be employed.
¶34 A proper Rule 403 balancing of probative value and
prejudicial effect begins with a proper assessment of the
“probative value of the evidence on the issue for which it is
offered.” State v. Gibson, 202 Ariz. 321, 324, ¶ 17, 44 P.3d
1001, 1004 (2002) (quoting Joseph M. Livermore et. al., Arizona
Practice: Law of Evidence § 403, at 82-83, 84-86 (4th ed. 2000)
(footnotes omitted)). “The greater the probative value . . .
and the more significant in the case the issue to which it is
addressed, the less probable that factors of prejudice or
confusion can substantially outweigh the value of the evidence.”
Id. That the Determination assists Shotwell and harms Smith
Painting does not necessarily mean that its probative value
necessarily outweighs all other concerns. Indeed, “[i]f the
issue is not in dispute, or if other evidence is available of
equal probative value but without the attendant risks of the
offered evidence, then a greater probability of substantial
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outweighing exists.” Id. The prejudice that Rule 403 speaks to
is that which suggests a “decision on an improper basis, such as
emotion, sympathy, or horror.” State v. Mott, 187 Ariz. 536,
545, 931 P.2d 1046, 1055 (1997).
¶35 In this case, the Determination concludes that
reasonable cause exists to believe that Smith Painting
“discriminated against [Shotwell] by sexually harassing her
based on her sex,” that Smith Painting retaliated against
Shotwell “because she complained of the sexual harassment,” and
that Shotwell was ultimately “constructively discharged” by the
“unbearable” conditions at Smith Painting. The content of the
Determination is certainly probative of matters at issue in the
case. From the record before us, however, we cannot determine
whether the trial court found the letter probative but unfairly
prejudicial, or whether it excluded the letter because other 403
factors outweighed the probative value of the conclusory letter.
Nor can we tell whether the trial court considered methods of
limiting the Determination’s prejudicial effect, such as
admitting only portions of the Determination or providing
limiting instructions.
¶36 We therefore remand this case to the trial court to
balance the Determination’s probative value and its prejudicial
effect under Arizona Rule of Evidence 403. In that weighing
process, the trial court must consider whether the probative
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value of the Determination was substantially outweighed by the
“confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence” that its admission would
have caused.
CONCLUSION
¶37 We decline to follow the rule of per se admissibility
of EEOC determination letters in Title VII litigation and
instead conclude that Arizona courts must apply the Arizona
Rules of Evidence in determining whether such evidence should be
admitted. Because the court of appeals applied a per se
admissibility rule in this case and the trial court abused its
discretion under Rule 403, we vacate both decisions and remand
the case to the trial court for proceedings consistent with this
opinion.
__________________________________
Rebecca White Berch, Justice
CONCURRING:
_________________________________________
Charles E. Jones, Chief Justice
_________________________________________
Ruth V. McGregor, Vice Chief Justice
_________________________________________
Michael D. Ryan, Justice
_________________________________________
Andrew D. Hurwitz, Justice
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