plaintiff was "through with the matter and ha[d] no additional
information to offer. . . ." Id. Seaman recommended
that the matter be administratively closed, to be reopened upon
the receipt of additional information. The report concluded
with the statement: "CASE CLOSED." Id.
In conducting Affirmative Action's portion of the
investigation, Waters contacted plaintiff on two occasions and
interviewed all of the officers at Marlboro regarding the
locker incident. Just prior to her resignation on July 28,
1988, plaintiff was contacted and told that the investigation
was complete. She was told that she had nothing to worry about
and that she was well liked at Marlboro. Plaintiff was told her
problems were a result of her friendship with Willis. In a
letter addressed to plaintiff dated July 21, 1988, and signed
by Farley and Equal Employment Opportunity-Affirmative Action
Officer Shirley Bridgewater, plaintiff was informed that
Affirmative Action had found that on two occasions a less
senior white female officer was given preferential treatment in
shift assignments. However, Affirmative Action found no
evidence of preference given with respect to duty or regular
days off. While the letter makes specific reference to racial
discrimination, it did not address plaintiff's claims with
respect to her locker or to her return to Marlboro. Rather, the
letter stated that plaintiff "ha[s] submitted [her] resignation
and stated no desire for corrective action." Id.,
In a memorandum circulated to all Human Services Police
Personnel from Brennan dated September 20, 1988, well after
plaintiff resigned, Brennan stated that any discriminatory or
derogatory acts and comments "motivated by either race,
ethnicity or sex" violate DHS' policy against discrimination.
Brennan went on to warn that those employees violating this
policy would be subject to "severe disciplinary action."
Id., Exhibit 3. Prior to this memorandum, no notice of
any kind was circulated to the DHS police force outlining the
department's policy against discrimination. In addition, none
of the members of the DHS police force received any training on
race relations or prohibited discriminatory behavior aside from
certain training that the fully trained police officers
received at the police academy. It should be noted that none of
the provisional police officers received any such training. In
only two instances during the time relevant to the instant
action were officers disciplined for engaging in discriminatory
actions. The first involved Olsen's reference to Willis as a
"nigger." Olsen was ordered to apologize to Willis. The second
involved Hoy's altercation with Willis concerning the PBA
cards. Brennan testified that as a result of Hoy's actions he
was "reprimanded." The record does not indicate the nature of
the reprimand that Hoy received.
CONCLUSIONS OF LAW*fn4
In a letter dated April 19, 1990, S. Howard Woodson, Jr., the
director of Affirmative Action, responded to a discrimination
complaint filed by Willis against DHS on August 8, 1988 (the
"Woodson Report"). See Plaintiff's Exhibit 5.
Affirmative Action is a division of the New Jersey Department
of Personnel, a state agency. In the Woodson Report,
Affirmative Action found, on nearly the identical facts
presented above, that a hostile work environment existed at
Marlboro. Affirmative Action further found probable cause to
believe that Willis was subjected to harassment on the basis of
his race and color while he was employed at Marlboro.
Id. At trial, defendant contested the admissability of
the Woodson Report on hearsay grounds. The Court reserved
ruling on the admissability of the report and permitted the
parties to brief the issue.
There is conflicting authority on whether a preliminary EEOC
determination, or a similar determination made by an equivalent
state agency, is admissible into evidence. Many courts have
held that determinations such as these are admissible hearsay
under the federal Business
Records Act, 28 U.S.C. § 1732, or under the public records
exception of the hearsay rule outlined in Fed.R.Evid.
803(8)(C). Abrams v. Lightolier, Inc., 702 F. Supp. 509,
512 (D.N.J. 1988) (citing Plummer v. Western Int'l
Hotels Co., 656 F.2d 502, 505 (9th Cir. 1981);
Bradshaw v. Zoological Society of San Diego,
569 F.2d 1066, 1069 (9th Cir. 1978); Smith v. Universal Services
Inc., 454 F.2d 154, 157-58 (5th Cir. 1972); Strickland
v. American Can Co., 575 F. Supp. 1111, 1112 (N.D.Ga.
1983)). Some courts have made such a determination even in
cases tried to a jury. See Plummer, 656 F.2d 502;
Strickland, 575 F. Supp. 1111. Other courts have
examined the issue under Fed.R.Evid. 403 and have excluded such
evidence as unduly prejudicial. See Ledford v.
Rapid-American Corp., 47 Fair Empl.Prac.Cas. (BNA) 312,
313, 1988 WL 3428 (S.D.N.Y. 1988); Coffin v. South Carolina
Department of Social Servs., 562 F. Supp. 579, 591 (D.S.C.
The Third Circuit, however, has held that the admissibility
decision is to be made by the trial court in the exercise of
its discretion. Walton v. Eaton Corp., 563 F.2d 66, 75
(3d Cir. 1977). In exercising its discretion, this Court will
admit the Woodson Report into evidence. The Court believes that
the probative value of the report outweighs its prejudicial
effect. While EEOC letters of determination or similar
state-issued reports may be excluded in situations where the
administrative decision has been shown to be particularly
untrustworthy, see Abrams, 702 F. Supp. at 512 (citing
Fed.R.Evid. 803(8)(C); Johnson v. Yellow Freight System,
Inc., 734 F.2d 1304, 1309-10 (8th Cir.), cert.
denied, 469 U.S. 1041, 105 S.Ct. 525, 83 L.Ed.2d 413
(1984)), in the instant matter, no such showing of
untrustworthiness has been made.
While this Court has chosen to admit the Woodson Report, it
should be noted that this Court has made its own independent
determination of the facts, based upon the testimony and
evidence adduced at trial, and has found them to be consistent
with the Woodson Report.
Plaintiff's Title VII Claim.
The Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),
set forth the standard for allocating proof in a Title VII case
alleging discriminatory treatment. The Court again outlined
that test in Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981). In Burdine, the Court summarized the holding
in McDonnell Douglas:
First, the plaintiff has the burden of proving by
the preponderance of the evidence a prima facie
case of discrimination. Second, if the plaintiff
succeeds in proving the prima facie case, the
burden shifts to the defendant "to articulate some
legitimate, nondiscriminatory reason for the
employee's rejection." Third, should the defendant
carry this burden, the plaintiff must then have an
opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by
the defendant were not its true reasons, but were
a pretext for discrimination
Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093
(citations omitted). The Court, however, went on to explain
that, although intermediate evidentiary burdens exist, "[t]he
ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff." Id. at 253,
101 S.Ct. at 1093.