This was a successful motion in  limine to exclude the defendant’s evidence of alleged accommodations to employees other than the plaintiff.

            Plaintiff hereby moves the court in limine to instruct defendant the hospital and its counsel as follows:

            The hospital is precluded from making any reference or from introducing any evidence whatsoever that refers, relates, or concerns the defendant’s alleged accommodations of other disabled employees.

            Plaintiff objects to any documentary or testamentary evidence on this issue, including but not limited to defendant’s proposed exhibit number D55, on the following grounds:

1.                  The evidence is irrelevant pursuant to Federal Rules of Evidence, Rule 402;

2.                  The evidence is improper character evidence pursuant to Federal Rules of Evidence, Rule 404;

3.                  The evidence is hearsay and does not fall within any exception to the hearsay rule, including Federal Rules of Evidence, Rule 803(6); and,

4.                  The evidence must be excluded under any circumstances pursuant to Federal Rules of Evidence, Rule 403.





Federal Rules of Evidence, Rule 402 provides that irrelevant evidence is inadmissible.  Relevant evidence is defined as “…evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  (Federal Rules of Evidence, Rule 401.)

Plaintiff’s two causes of action are based on her allegation that the hospital failed to provide reasonable accommodation for her disability, in violation of the ADA and the FEHA.  Neither the ADA nor the FEHA provides an affirmative defense to the defendant based on its assertion that the hospital has provided accommodations to other disabled employees.  Neither the ADA nor the FEHA contain any language that allows a defendant, such as the hospital, to use evidence of alleged accommodations to different employees to somehow evidence its “good faith” in engaging in the interactive process with the plaintiff.  Whether or not other employees have asked for, and received, accommodation from the hospital is of no consequence to the determination of whether the hospital acted in accordance with applicable law as to the plaintiff.  In fact, the evidence offered by the defendant does not establish that the accommodations purportedly provided complied with applicable law or that the employees allegedly accommodated were satisfied with the conduct of the hospital.

Just as plaintiff cannot point to accommodations provided by the defendant to other employees as evidence that the same or similar accommodation should have been provided to her, the defendant can not use its alleged record of providing accommodations as evidence that it accommodated plaintiff in good faith.  As noted by the court in Myers v. Hose, 50F.3d 278 4th Cir. 1995), “similarity” in civil rights law involves comparisons between a protected class and another class of persons.  Id. at 284.  The plaintiff in Myers argued that other employees similarly situated to him were accommodated differently than he was.  The court stated:  “Myers’ argument misses the point, however.  Here, the analogy is inapposite because all employees to whom Myers compares himself are also disabled.” (emphasis in original.) Id. 

Similarly, defendant’s argument here misses the point.  The comparison of the handling of plaintiff’s request for accommodation to the handling of requests for accommodation from other similarly situated disabled employees is inapposite.  Evidence supporting this argument is, therefore, irrelevant.




Federal Rules of Evidence, Rule 404, provides that “Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion…” None of the exceptions to Rule 404 are applicable.
            Defendant seeks the introduction of this evidence so as to attempt to prove that as to the particular instance of plaintiff’s request for accommodation, it must have acted reasonably and in good faith because it has accommodated other employees in the past.  This is prohibited by Rule 404.  Whatever defendant has or has not done with respect to other employees cannot be used in any manner whatsoever so as to attempt to establish the defendant’s conduct in responding to plaintiff’s request for accommodation.



Federal Rules of Evidence, Rule 803(6) allows for the introduction of data compilation if it was “made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of regularly conducted business activity, and if it was the regular practice of that business activity” to make the compilation.

Defendant’s compilation goes back to 1992 and spans five years to 1997.  Defendant has not (and plaintiff contends that it cannot) establish that this compilation was made at or near the time that each alleged accommodation was made, that it was made in the regular course of business and, most importantly, that it was the regular practice of the hospital to make such a compilation.  In fact, it may be that the compilation was made in response to plaintiff’s complaints of the hospital’s handling of her accommodation request, evidencing circumstances of preparation that indicate lack of trustworthiness.  Where such circumstances are evidenced, the compilation is inadmissible under Rule 803(6).

The compilation is incomplete and vague.  The compilation does not state the length of time between the employee’s request for accommodation and implementation of the accommodation.  The compilation does not specify what the disability of each employee was.  The compilation does not specify what type of request was received from each employee’s doctor (if any) and what the specific nature of the request was.  The compilation does not specify whether a grievance action or a civil action or a filing with the EEOC or the DFEH was made prior to the implementation of the accommodation by the hospital.  The compilation does not meet the requirements of Rule 803(6).



Federal Rules of Evidence, Rule 403 provides that 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…”

Admission of any evidence regarding the hospital’s alleged accommodations of other employees will undoubtedly prejudice and confuse the jury.  There is a very real danger that, despite applicable law, the jury will reason that if the hospital accommodated other employees, it must have accommodated plaintiff.  The jury may also feel unwarranted sympathy for the defendant based on the defendant’s assertion that it takes the requests of disabled employees “seriously” as evidenced by the alleged other accommodations.  The jury risks confusion if faced with a technical legal argument that cautions that the prior alleged accommodations are not in any way related to the claims being advanced in this action.  Confusion will also result by virtue of the illogical nature of defendant’s argument.  In that regard, defendant contends that the prior record of accommodating employees evidences its good faith in responding to plaintiff’s request for accommodation.  Taking defendant’s argument to the extreme, the hospital could accommodate 99% of its employees, deny accommodation to 1% of its employees on the ground that it simply did not like or trust these employees, and still claim compliance with applicable law based on its record with other employees.  There is simply no way to avoid prejudice and confusion if this evidence were admitted.