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Zubulake v. UBS Warburg LLP

United States District Court for the Southern District of New York · Civil Procedure

Civil ProcedureMotions in limineEvidenceEmployment discriminationRule 404Rule 406Rule 403character evidence

Facts

Zubulake sued UBS for sex discrimination, wrongful termination, and retaliation. UBS sought to introduce evidence that she had worked at ten securities firms in less than twenty years and a Credit Suisse First Boston memorandum describing her performance deficiencies, arguing the latter was admissible as character rebuttal or habit evidence. Zubulake sought to exclude that prior-employment evidence, while UBS separately moved to exclude several categories of plaintiff's proposed evidence, including evidence of alleged discriminatory treatment of another employee, discovery-related matters, SEC compliance, Chapin's arrest, and certain remarks and testimony. The court addressed admissibility of each category under the Federal Rules of Evidence.

Issue

Whether, in this employment discrimination trial, UBS could introduce evidence of Zubulake's alleged performance deficiencies at a prior employer as character, rebuttal, or habit evidence, and whether various categories of plaintiff's proposed evidence should be admitted or excluded. More specifically, the court had to determine the proper application of Rules 404, 406, and 403, and when evidence concerning other employees or discovery misconduct is relevant.

Rule

In an employment discrimination case, a plaintiff's character is not an essential element of any claim or defense, so prior-employment performance evidence may not be admitted to show that the plaintiff acted in conformity with an alleged trait at the defendant employer. Rule 406 habit evidence is limited to a regular, situation-specific, semi-automatic response to a repeated specific situation; generalized workplace insubordination in different environments does not qualify. Even potentially relevant evidence may be excluded under Rule 403 when its slight probative value is substantially outweighed by jury confusion, unfair prejudice, delay, or the risk of a trial within a trial. Evidence of discrimination against other employees may be admitted when sufficiently similar to the plaintiff's allegations and probative of the employer's discriminatory attitude or intent.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nina Patel sues Lakefront Capital Partners in Chicago for sex discrimination and retaliatory discharge. The firm wants to introduce a memorandum from Nina's prior employer in Dallas stating that she was "argumentative, resistant to supervision, and poor at teamwork" to show she likely behaved the same way at Lakefront.

Should the trial court admit the Dallas memorandum for that purpose?

Explanation. The majority opinion treats this as classic propensity reasoning barred by Rule 404. In an ordinary employment discrimination case, the plaintiff's character is not an essential element of any claim or defense. Using prior-employment performance problems to show the plaintiff likely acted the same way at the defendant employer is therefore improper.