To me, a lawyer is basically the person that knows the rules of the country. We’re all throwing the dice, playing the game, moving our pieces around the board, but if there is a problem the lawyer is the only person who has read the inside of the top of the box. ~ Jerry Seinfeld
I. Admissibility of Propensity or “Me too” Evidence
Relevance
“Me too” evidence is testimony by or about a nonparty witness who has been similarly treated to support an element of the plaintiff’s claim. Fed. R. of Evid. 404(b), the so-called “prior bad acts” rule, prohibits the use of such evidence as a prognosticator of behavior. How ever, “me too” evidence is generally relevant under Fed. R. Evid. 401 for another purpose, such as to establish an employer’s intent to discriminate, a hostile work environment, or the employer’s liability.1 Thus,for example, “me too” evidence that the defendant dis crim inated against six female employees is admissible not to showthat the defendant must therefore have discriminated againstthe plaintiff, but to show that the defendant was biased againstwomen in general.
In assessing whether the “me too” evidence is relevant andadmissible, the courts assess how closely related the profferedevidence is to the plaintiff’s circumstances and theory of thecase. Relevant factors include whether the same decision makers were involved and whether the nonparty witness wassimilarly situated and treated, taking into consideration temporaland geographic prox imity.2Prior to 2008, the Tenth Circuitoften summarily rejected “me too” evidence of employeeswho did not report to the same supervisor as the plaintiff.However, in Sprint/United Mgmt. Co. v. Mendelsohn,theSupreme Court held that there is no bright line rule govern ing admissibility of “me too” evidence and no one factoris dispositive.3
The Tenth Circuit is more lenient in permitting “me too”evidence to support hostile work environment claims, as the issue is the impact on the plaintiff, rather than on thedefendant’s state of mind.4The plaintiff must be aware ofher co-worker’s harassment during the rele vant time frame,but the plaintiff need not be present.5The harassment doesnot have to be directed at the plaintiff or even a member ofthe plaintiff’s protected class. For example, in Tademy v.Union Pacific Corp.,6the Tenth Circuit held that it was notan abuse of dis cretion to admit evidence of graffiti hostileto Jews in support of the plaintiff’s claim for race discrim i nation, noting that “evidence of a general work atmosphere,including evidence of harassment of other [racial minor ities],may be considered in evaluating a claim.”7To date, theredoes not appear to be any cases extending this theory out side discrimination on the basis of race/national origin.
Finally, “me too” evidence is also admissible to estab lishthe defendant’s actual or constructive know ledge of discrim ination to establish liability. In determining ad missibilityfor this purpose, the Tenth Circuit con siders the extent andseriousness of the other evidence of dis crimination, as wellas the similarity and nearness in time.8
Other Evidentiary Concerns
Of course, relevant “me too” evidence must survive Fed.R. Evid. 401 and 403. In the employment law context, Fed.R. Evid. 401 is to be read broadly–even a minimal degreeof probability” is sufficient–and Fed. R. Evid. 403 is to beapplied narrowly.9The closer the similarities between theplaintiff and the nonparty witnesses, the less likely the courtis to exclude the evidence.10
Practice tips:
Prepare for the admission of “me too” testimony early. Allege in the complaint that the defendant engaged in a “pattern and practice” of discrim ination or a “company-wide policy of discrimi nation,” alert the district court to the issue in the scheduling order, and aggres sively seek discovery of the employer’s treat – ment of, and complaints by, other similarly-situated employees.11 Be ready to argue that pre-Mendelsohn cases ap – plying an overly-narrow interpre tation of Rule 404 are no longer good authority.12
Defendants may seek to introduce counter or “not me” evidence that other similarly-situated employees were not discriminated against.13 However, the cooperation of current employees is almost inherently sus pect, owing to the considerable stick that employers wield over them.
II. Admissibility of Administrative Agency Records and Related Material
The good lawyer is not the man who has an eye to every side and angle of contingency, and qualifies all his qualifications, but who throws himself on your part so heartily, that he can get you out of a scrape. ~ Ralph Waldo Emerson
EEOC Records
Under certain conditions, Fed. R. Evid. 803 authorizes the admission into evidence of administrative find – ings of the EEOC, including the agency’s conclusions or opinions that flow from the investigation.
Fed. R. Evid. 803(8), the “public records” exception to the hearsay rule, allows into evidence a record or state – ment of a public agency that sets out “factual findings from a legally author – ized investigation.”14 Opinions or conclusions based on factual findings are also admissible under the Rule.15 The administrative record is presumed admissible unless the opponent estab – lishes that it is un trustworthy.16 Whether to admit the evidence is committed to the dist rict court’s discretion, and the district court must also consider Fed. R. Evid. 102 and 403.17 In deter mining “trustworthiness” under Fed. R. Evid. 803(8), courts consider the nonexclusive list of factors laid out in the Advisory Committee’s Notes, which include: (1) the timeliness of the investigation; (2) the special skill or experience of the official; (3) whether a hearing was held and the level at which it was conducted; and (4) possible motivation problems.18
In the employment law context, the Tenth Circuit has been wary of admitting EEOC and related state agency findings and conclusions. The lack of formal procedures and an opportunity to crossexamine wit nesses have weighed heavily against the admission of this evidence.19
Of course, documents contained within the EEOC’s investigative file, including the defendant’s posi tion statement and the plaintiff’s charge of discrimination and re buttal, may be admitted if relevant and satisfy an ex – ception to the hearsay rule. Often, the documents are admissible as party ad – missions under Fed. R. Evid. 801(d)(2) or for impeachment under Fed. R. Evid. 801(d)(1)(A).20
The evidence must also survive a likely Fed. R. Evid. 408 objection. Some defense counsel have argued that their clients’ position statements and other communications with the EEOC are inadmissible under Rule 408. Rule 408 provides in relevant part that “offers of compromise” and “evi – dence of conduct or statements made in compromise negotiations” are not admissible to “prove or disprove the validity of a disputed claim or to impeach by a prior inconsistent state – ment or a contradiction.”21
The argument is flawed: How can the employer’s position statement – a document written to a federal agency disclaiming liability and lacking the traditional hallmark of an offer (i.e., a dollar amount) – constitute an offer of compromise to the plaintiff? Any reli – ance on the nearly 30-year old decision by the Tenth Circuit’s in E.E.O.C. v. Gear Petroleum, Inc.22 is misplaced. In that case, defense counsel had writ ten two letters to the EEOC in which he contended that the employee’s termi – nation was part of a plan to adopt a mandatory retirement policy. During his deposition in the ensuing litigation, defense counsel testified to the contrary, and the EEOC sought to introduce the letters at trial to establish pretext and motive. At trial, defense counsel con – tended that the letters were inadmis sible as Rule 408 evidence because they were part of the settlement and concilia tion procedures required under the ADEA. The Tenth Circuit upheld the district court’s exclusion of the letters under the “clearly erroneous” standard. However, the Tenth Circuit specifically stated that it was not cre ating a per se rule of inad – missibility and that “[e]ach case must be judged on the basis of the particular record involved.”23 The Tenth Circuit was clearly influenced by the fact that the lawsuit was brought by the EEOC, not the employee, and the EEOC is statutorily mandated to attempt settlement of ADEA claims, as well as by the district court’s finding that the defense counsel’s communications with the EEOC were “undertaken in the interest of encourag – ing some form of reconciliation of this matter,”24 Cases in other jurisdic tions have persuasively held that position statements are not inadmissible Rule 408 evidence.25
One final note: Title VII has a pro – vi sion barring the admissibility in a “subsequent proceeding” of anything “said or done” in informal proceedings in the post-investigation, conciliation phase by the Commis sion, its officers, and its employees.26 This provision binds the Commis sion, not plaintiffs, and re lates to the Commission’s postinvestigatory, conciliation phase. Further, this provision does not protect purely factual material.
Unemployment Records
Federal courts are reluctant to admit benefit determinations by state unem – ploy ment agencies into evidence. The determinations them selves are usually only minimally probative on the issue of discrimi nation, particularly as the standards for approving benefits (in Colorado, “unemployed through no fault of [employee’s] own [conduct]”) differs from the standards to establish wrongdoing under the federal employment statutes.27
However, the documents and statements contained within the state unemployment agency’s file may be admitted at trial as, for example, admis – sions by a party opponent to establish pretext and for impeachment purposes.28 More over, the fact that the defendant contested the plaintiff’s claim for un – employment may be introduced to establish that the defendant unlaw fully retaliated against the plaintiff for en – gaging in protected activity.29
III. Substantive and Evidentiary Issues Related to an Employee’s Clandestine Recordings
Argument weak; speak loudly! – a handwritten note by Theodore Roosevelt in the margins of one of his speeches
More and more, employees are secretly recording work conver sa tions. Whether to introduce a client’s sur – reptitious recording at trial re quires an analysis of substantive and evidentiary law and a good deal of common sense. Federal law permits the recording of private conversations if the record ing is not made for the purpose of commit – ting a criminal or tortious act.30 Thus, in the typical employ ment law case, whether the recording violates state law is not relevant to determinations of admissibility (although it is certainly pertinent to other issues, discussed be – low).31 In any event, Colorado is a one-party consent state, thus it is not illegal for an employee situated in Colo ra do to record conversations to which she is a party as long as the other participant is not located in a two-party consent state.32
The other substantive issue to con – sider is whether the recording violates a written policy of the employer. Many employers have implemented “norecording” policies that prohibit employees from record ing workplace interactions. Thus, there is a risk that an employer will seize the opportunity to argue that the plaintiff’s surrepti – tious record ing violated the employer’s written policies, justifying the plaintiff’s termination. Recently, Section 7 of the National Labor Relations Act (NLRA) was construed to generally prohibit broad bans on workplace recordings as unlawfully interfering with the rights of employees to en gage in concerted activity regarding their terms and con – ditions of em ployment.33 Plaintiff’s counsel should therefore consider chal – lenging any such policy by the defendant.
Substantive issues aside, there are multiple evidentiary issues to con sider. A recording must normally be accom – panied by proof that the record ing is what it is purports to be to satisfy Fed. R. Evid. 901(a). Authen tication is rare – ly an issue, however, as long as the plaintiff is a participant to the conver – sation, particularly if the other party identifies himself or herself.34
Because the recordings are extra – judicial, the hearsay rules must be satisfied. The evidence may come in as an admission of a party-opponent under Rule 801(d)(2)(A).35 Recordings typically survive Fed. R. Evid. 1002 “best evi – dence” objections, as a recording is likely the best evidence of the under – lying conversations, as opposed to witnesses attempting to recall, months or years later, the sub stance of these conversations. There is no effective substitute for a record ing, since a written tran script fails to convey the full dynamics of a conversation.36
Practice tip:
In considering whether to intro duce a surreptitious recording, plaintiff’s counsel must consider not only its probative value, but also the danger that the jury simply may not like the fact that the plaintiff has secretly recorded the employer. The plaintiff’s justification for making the recording and the number and content of the recordings must be factored into the analysis. Plaintiff’s counsel should seek a limiting instruction precluding the defendant from introducing any evidence regarding the potential illegality of the employee’s recording or that it was in violation of the employer’s written policies. If the court refuses such a limiting instruc tion, counsel should be prepared to demonstrate to the jury (if true) that the employer’s handbook recognizes a limited right to privacy of em ployees. What’s good for the goose is good for the gander.
IV. Limiting the Admission of After-Acquired Evidence at Trial
When you have no basis for an argument, abuse the plaintiff. ~ Cicero
An employee is not barred lawsuit from bringing a discrimination lawsuit where information is discovered after the employee’s termination that would otherwise have justified discharge. Defendants often argue that they would have eventually discovered this information and would have then had a legitimate reason to ter mi nate the employee. How ever, while such discovery does not re lieve the em ployer of liability, the con duct may be used to limit damages.
Typically, back pay represents the plaintiff’s lost wages from the date of wrongful termination to the end of trial. Front pay, in turn, repre sents lost wages between the date of judgment and rein – statement or in lieu of reins tatement. In McKennon v. Nashville Banner Publishing,37 the Supreme Court established the “general rule” that if an employer is able to establish that it would have discharged the employee for misconduct it discovered after wrongful termination, reinstatement and front pay are not appropriate.”38 Although backpay may be limited from the date of the wrongful termination to the date the employer discovered the new infor – mation, there is no absolute rule barring such recovery. Rather, the district court must consider “extra ordinary equitable circumstances that affect the legiti mate interests of either party.”39
An employer seeking to introduce after-acquired evidence of employee misconduct to limit damages must satis – fy two hurdles. First, the em ployer must establish, outside the presence of the jury, that: (1) it was unaware of the conduct at the time it terminated the employee, and (2) the employer would have fired the employee on those grounds alone if it had been aware of the conduct.40 Second, and only after an employer has met this initial showing, may the district court consider whether to limit the damages available to the wrongfully terminated employee.41
The after-acquired evidence should not be admitted at trial until after liability has been fixed. Thus, when faced with potentially dam aging posttermination conduct, plaintiff’s counsel should seek to bifurcate the trial between liability and damages and file an appropriate motion in limine.42
Federal courts disagree regarding whether post-termination conduct can ever reduce a plaintiff’s award of dam – ages.43 It is an open question in the Tenth Circuit. In Medlock v. Ortho Biotech, Inc.,44 the employer tried to limit the plaintiff’s damages based on the em – ployee’s post-termination conduct at an unemployment hearing. While not fore – closing “the possibility” that such a limitation was permitted under McKennon, the Tenth Circuit concluded that the district court did not abuse its discre – tion in refusing to limit the plaintiff’s damages. The court explained that “[in] this case, as in most cases in which the alleged misconduct arises as a direct result of retaliatory termination, the neces sary balancing of the equities hardly mandates a McKennon-type instruc tion on after-occurring evidence.” In a more recent opinion, Zisumbo v. Ogden Regional Medical Center,45 the Tenth Circuit upheld the district court’s decision to limit the plaintiff’s back pay to the period between his termination and a sub sequent assault conviction. The plaintiff did not argue that evidence of post-termination misconduct could never reduce damages, how ever, and thus the Tenth Circuit did not address that broader legal question.
Practice tip:
The Supreme Court in McKennon recognized the “not … insubstantial” concern that employers might as a routine matter undertake extensive discovery into an employee’s back – ground or performance to reduce damages. Consider whether an overlyaggressive defendant has exceeded the bounds of good faith litigation tactics and, if appropriate, address the issue with the district court. The EEOC’s Enforcement Guidance states that any purposeful attempt by a respondent to obtain derogatory information about a charging party is retaliatory, and “is one example of an extraordinary equitable circum stance that may warrant ad – ditional relief.”
If a client’s misconduct is of a seri – ous enough nature, consider not seeking damages incurred after the date of defendant’s discovery so the evidence loses its relevance and is not admissible.46
V. The Admissibility of Collateral Source Payments
[Trial] is like a box of choco – late, you never know what you’re going to get. – Forrest Gump.
The common law collateral source rule allows a prevailing plaintiff to seek full recovery from a defendant even though an independent source has compensated the plaintiff in full or in part for the loss.47 The rule has several justifications, including that public policy favors giving the in jured plaintiff a double recovery rather than allowing a wrongdoer to enjoy reduced liability.48 It is both a substantive rule of law and a rule of evidence. In federal statutory em ployment law cases, federal com – mon law and the Federal Rules of Evi dence apply.49
Employers often seek to intro duce evidence at trial of payments made to injured employees as an effort to offset or reduce the award of damages, and plaintiff’s counsel must move to exclude the evidence. Whether a particular source of in come should be offset is a question of law for the court. As an affirmative defense, the defendant employer has the burden of proving a benefit is not collateral and should be set off.50
In the Tenth Circuit, application of the collateral source rule is dis cretionary.51 The following factors are pertinent: (1) whether the benefit is funded fully by the employer or whether the employee contributes; (2) whether granting or deny – ing an offset would result in a windfall to either party; (3) whether the benefit would have been available to the em – ployee if the employee had con tinued working; and (4) whether other public interests are involved.52With respect to the fourth factor, if the employer has a duty independent of the employee to make the pay ments to further social interests beyond those negotiated be – tween employer and employee, the benefit is likely collateral.53
The “well-accepted trend” is that payments from the public treasury, including social security and social security disability payments,54 state unemployment compensation and workers’ compensation payments,55 PERA benefits,56 and Medicare/Medicaid benefits57 are collateral sources and are not offset from a plaintiff’s recovery. Earned but unused vacation has also been treated as collateral as it is compen – sation accrued by the employee under the employer’s policies.58
Benefits that the employer pays for with no contribution by the employee, are not mandated by law, and are meant to serve as a substitute for wages are typically treated as not collateral and may be used to set off a plaintiff’s award of damages. These non-collateral benefits include long-term and shortterm disability benefits paid for by the employer59 and severance payments.60
When the government is a defendant to a lawsuit there are additional public policy considerations. In some cases, the Tenth Circuit has found it unjust to award a windfall to the plaintiff at the expense of the public treasury.61 In others, the Tenth Circuit has found such arguments unconvincing, as it is impossible to distinguish accurately which part of a fund that has been produced by millions of contributions is attributable to the government and which part is attributable to a particular injured party.62
If a benefit is held to be collateral, it is rarely allowed to be presented to the jury, even if it may be “relevant” to another issue. For example, defendants have argued that evidence of disability and medical insurance benefits are relevant to establish that the plaintiff is malingering.63 Courts rarely accept the argument, however, and the erroneous admission of collateral evidence is rarely harmless, acknowledging the very real risk that “juries will be more likely to find no liability if they know that plaintiff has received some compensation.”64
Practice tip:
Plaintiff’s counsel should always address collateral benefits in a motion in limine.
Meredith Munro is a partner at King & Greisen, LLP where she practices civil rights and employment law. She can be reached at 303.298-9878 and munro.kinggreisen.com.
ENDNOTES:
1 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973) (evidence that employees of another race were treated differently than plaintiff under comparable circumstances is “[e]specially relevant” to whether employer’s proffered explanation is pretextual). Favorable Tenth Circuit cases allowing the plaintiff to introduce “me too” evidence to show intent or pre – text include: Greene v. Safeway Stores, Inc., 98 F.3d 554, 560-561 (10th Cir. 1996) (statistical evidence of other employees’ termination to support ADEA case); Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990) (not error to allow employees in protected age group to testify about the circumstances under which they left their employment); Holmes v. Sw. Reg’l Med. Ctr., Inc., No. 12-CV-225, 2014 U.S. Dist. LEXIS 153727 *4-12 (N. Dist. OK, October 30, 2014) (admitting comparator evidence to show pretext in ADA/FMLA case).
2 Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008).
3 Id. (error for district court to apply per se rule that, to be similarly situated, employ – ees must share the same supervisor).
4 See Maes v. Leprino Foods Co, Inc., No. 15-cv-0022, 2017 U.S. Dist. LEXIS 41341, 2017 WL 1077638 (D. Colo. March 22, 2017) (plaintiff allowed to testify in Title VII action about what coworkers told her despite fact that coworkers held different positions, had different supervisors, and suffered discrimination at different times in different ways, as long as plaintiff could establish that her coworkers’ com – ments occurred during her employment); Ridgell-Boltz v. Colvin, No. 12-1495, 2014 U.S. App. LEXIS 8122, 565 Fed. App’x 680, 685 (10th Cir. April 30, 2014) (reversing dismissal against plaintiff based, in part, on testimony by two non – party witnesses of similar mistreatment).
5 Hirase-Doi v. U.S. West Commc’n, Inc., 61 F.3d 777, 782 (10th Cir. 1995) (open question whether plaintiff can rely on atmosphere alone to establish hostile work environment claim or must instead demonstrate some hostility directed at her); Jackson v. Quanex Corp., 191 F.3d 647, 661 (6th Cir. 1999) (“racial epithets need not be hurled at the plaintiff in order to contribute to a work environment that was hostile to her”) (open question whether plaintiff can rely on atmosphere alone to establish hostile work environ ment claim or must instead demonstrate some hostility directed at her).
6 Tademy v. Union Pacific Corp., 520 F.3d 1149 (10th Cir. 2008).
7Id. at 1164. Accord Unal v. Los Alamos Public Schools, No. 15-2055, 2016 U.S. App. LEXIS 1480 at * 6, 83 Fed. App’x 729, 737 (10th Cir. Jan. 29, 2016) (“evi – dence of harassing comments direct ed at other nationalities will support an infer – ence of a national-origin-based hostile work environment if [Plaintiff] was pre – sent when they were made or otherwise became aware of them during the time that she was allegedly subject to a hostile work environment”).
8 Good examples of constructive notice cases include Hirase-Doi, 61 F.3d at 782 (evidence showing that “as many as eight to ten [female] employees” were being sexually harassed during one male employee’s three-month tenure raised genuine factual dispute on constructive notice) and Deters v. Equifax Credit Info. Serv., 202 F.3d 1262, 1274 (10th Cir. 2000) (evidence of sexual harassment by perpetrator that is similar in nature and near in time admissible to impute liability).
9 Deters, 202 F.3d at 1274.
10 See Gaige v. Saia Motor Freight Line, No. 15-6191, 2016 U.S. App. LEXIS 21289, 672 Fed. App’x. 787 (10th Cir. Nov. 29, 2016) (district court did not err in excluding evidence that defendant also interfered with the FMLA leave of two other employees as testimony was only minimally relevant and would lead to a mini-trial).
11 See Donlin v. Petco Animal Supplies Stores, Inc., No. Civ. 17-0395 2017 LEXIS 168280, (D. N. M. October 10, 2017) (granting company-wide discovery of information and documents concerning employees outside plaintiff’s “employing unit” who have filed internal or external FMLA or ADA claims in part because of company-wide HR policies).
12 See Holmes v. Sw. Reg’l Med. Ctr., Inc., No. 12-CV-225, 2014 U.S. Dist. LEXIS 153727 *4-12 (N. Dist. Okla. October 30, 2014) (declining to rely on pre-2008 Tenth Circuit cases applying per se rules).
13 See, e.g., Connecticut v. Teal, 457 U.S. 440, 455 (1982) (“Proof that [a] work force was racially balanced or that it contained a disproportionately high percentage of minority employees is not wholly irrelevant on the issue of intent when that issue is yet to be decided.”).
14 Fed. R. Evid. 803(8)(A)(iii) and (B) provide in relevant part: “[t]he following are not excluded by the rule against hear – say, regardless of whether the declarant is available as a witness… (8) Public Records. A record or statement of a public office if: (A) it sets out…: (iii) in a civil case … factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or other circum stances indi – cate a lack of trustworthiness.”
15 Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 162-163 (1988).
16 Id. at 167.
17 Id. at 167-68.
18 Denny v. Hutchinson Sales Corp., 649 F.2d 816, 822 (10th Cir. 1981).
19 See e.g., Hall v. W. Prod. Co., 988 F.2d 1050, 1057-58 (10th Cir.1993) (district court did not abuse discretion in ex – cluding state agency report finding no discrimination where “all the evidentiary matter before the [Wyoming Fair Em – ployment Commission] could be presented to the jury” and, thus, sole purpose of admitting report “would be to suggest to the jury that it should reach the same conclusion” as agency) (internal quota – tions omitted); Guides, Ltd. v. Yarmouth Group Prop. Mgmt., Inc., 295 F.3d 1065, 1075 (10th Cir. 2002) (not abuse of discretion to exclude no cause finding by Colorado Civil Rights Commission). Cf. Whatley v. Skaggs Cos., 707 F.2d 1129, 1137 (10th Cir. 1983) (district court’s admission of three-page cause finding in favor of plaintiff, “raises a substantial question [of error]” in light of the cumulative hearsay, but was harmless error); Tuffa v. Flight Servs. & Sys., No. 15-1163, 2016 U.S. App. LEXIS 6384, 644 Fed. Appx. 853 (10th Cir. April 5, 2016) (holding that district court did not err in excluding EEOC cause finding in favor of 18 plaintiffs because the jury may unduly defer to the EEOC, different standards apply, and different theories of liability were at issue).
20 See e.g., Guides, 295 F.3d at 1075 (re – cog nizing that EEOC file may contain impeachment evidence); Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471, 1476-77 (5th Cir. 1992) (error to admit entire EEOC file, but defendant’s position statement admissible); Gage v. Metro. Water Reclam. Dist., 365 F. Supp. 2d 919, 937 (N.D. Ill. 2005) (employer’s position statement in an EEOC proceeding may be admissible as an admission and for impeachment).
21 The rule was amended in 2006 to clarify that Fed. R. Evid. 408 compromise offers and negotiations cannot be used for impeachment. Rule 408 statements may be admitted for another purpose, including proving a witness’s bias or prejudice.
22 E.E.O.C. v. Gear Petroleum, Inc., 948 F.2d 1542, 1545 (10th Cir. 1991) (cited with approval in the Advisory Commit – tee notes for excluding for impeachment).
23 Id. at 1544.
24 See id. (describing mandate in ADEA and noting that “[i]n this case, the crucial inquiry involves whether the . . . letters were part of compromise negotiations between the EEOC and [the employer]”).
25 See Olitsky , 964 F.2d at 1476-77 (district court did not abuse its discretion in ad – mitting position statement into evidence because it “set forth purely factual in – formation and related [the employer’s] position on the merits…[and] contained no reference to conciliation efforts …[nor] made any offers of settlement nor respond – ed to any such offers by the EEOC”); Binder v. Long Island Lighting Co., 933 F.2d 187, 193 (2d Cir. 1991) (holding district court abused its discre tion in re – fusing to admit position statement, explaining “[f]actual statements regarding past events are distinguishable from offers of compro – mise, and, if the principal ob jective of an EEOC proceeding is to ascertain what has occurred and, wherever possible, to resolve disputes without liti gation, a rule that allows employers to give off-therecord accounts of relevant events will not necessarily advance that objective.”).
26 42 U.S.C. § 2000e-5(b).
27 See Kelly v. Municipal Courts, 97 F.3d 902, 910 (7th Cir. 1996) (not abuse of discretion to exclude written determination by Indiana Division of Employment and Training Services that plaintiff was not terminated for just cause because standard differed from relevant federal constitutional issues); Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1358 (4th Cir. 1995) (not abuse of discretion to exclude Virginia Employment Commission report denying benefits on basis plaintiff voluntarily quit job because report was more prejudicial than probative); Blumensaadt v. Standard Prods. Co., 744 F. Supp. 160, 163-164 (N.D. Ohio 1989) (“[c]ourts have repeat – edly held that determinations by various state agencies, upon the issue of just cause, were not necessarily probative of the discrimination issue,” citing cases); aff’d, 911 F.2d 731 (6th Cir. 1990).
28 E.g., Rupp, II v. Purolator Courier Corp., 45 F.3d 440 (10th Cir. 1994) (letter to employer regarding unemployment ad – missible as party admission); Starrett v. Wadley, 876 F.2d 808, 823 (10th Cir. 1989) (not abuse of discretion to exclude plaintiff’s application for unemployment in which she gave mixed reasons for hav – ing quit work, as danger of jury confusion regarding unemployment compensation outweighed minimal probative value of evidence); Smith v. Board of Okla. Cnty. Comm’rs, No. CIV-10-782-D, 2013 U.S. Dist. LEXIS 16606 *6, 2013 WL 466491 (W.D. Ok., February 7, 2013) (excluding benefits determination by Oklahoma Employment Security Commission but leaving open the possibility that other portions of the record may be admissible to show employer falsely contested bene – fits to establish pretext).
29 E.g., Williams v. W.D. Sports. N.M., Inc.,
497 F.3d 1079, 1090 (10th Cir. 2007) (employer’s written objection to un em – ployment benefits supported intent to retaliate and pretext).
30 18 U.S.C. § 2511(2)(d).
31 Zhou v. Pittsburg State Univ., 252 F. Supp. 2d 1194, 1204 (D. Kan. 2003), aff’d on other grounds, 2004 WL 1529525 (10th Cir. July 8, 2004).
32 In the case of a conflict, it is unclear whether the law of Colorado or the state of the unwitting participant would govern. The following website, updated as of January 2018, lists each state’s law: www.justia.com/50-state-surveys/recording -phone-calls-and-conversations.
33 Section 7 of the NLRA guarantees em – ployees the right “to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protec – tion.” 29 U.S.C. § 157. In Whole Foods Market Group, Inc. v. NLRB, 363 NLRB No. 87 (2015), the Second Circuit affirmed the National Labor Relations Board’s order holding that Whole Foods’ prohibition on all recording without management appro – val interfered with employees’ exercise of Section 7 rights. (“This is not to say that every no-recording policy will infringe on employees’ Section 7 rights. It should be possible to craft a policy that places some limits on recording audio and video in the work place that does not violate the Act.”).
34 Zhou, 252 F. Supp. 2d at 1204 (finding sufficient that plaintiff testified that voice was his and the individual recorded stated his name); Stringel v. Methodist Hosp. of Ind., Inc., 89 F.3d 415, 420-23 (7th Cir. 1996) (“No one was in a better position [than participant in the conver – sation] to know whether the tape truly and accurately reflected his conversation”).
35 See Rauh v. Coyne, 744 F. Supp. 1181, 1183 (D. D.C. 1990) (admitting discri – mination plaintiff’s tape recording as an admission of a party-defendant).
36 See Byrd v. Reno, No. 96-2375, 1998 WL 429767 at *1 (D. D.C. Mar. 18, 1998) (“there is not and cannot be anything that is the substantial equivalent of the tape recording of a conversation. . . . [t]here is literally no substitute for the tape recordings.”).
37 McKennon v. Nashville Banner Publish – ing 513 U.S. 352 (1995).
38 Id. at 362-63. The Court left the door slightly open for permitting reinstatement and front pay, noting that the “proper boundaries of remedial relief . . . must be addressed by the judicial system in the ordinary course of further decisions, for the factual permutations and the equitable considerations they raise will vary from case to case.”
39 Id.
40 Ricky v. Mapco, Inc., 50 F.3d 874, 876 (10th Cir. 1995).
41 Perkins v. Silver Mountain Sports Club and Spa, LLC, 557 F.3d 1141, 1145 (10th Cir. 2009).
42 Id. at 1149; Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 554 (10th Cir. 1999).
43 See Jones v. Nissan N. Am., Inc., No. 09- 5786, 2011 U.S. App. LEXIS 17412, 438 Fed. Appx. 388, 406-07 (6th Cir., August 18, 2011 (compiling cases)).
44 Medlock.,164 F.3d at 555.
45 Zisumbo v. Ogden Regional Medical Center, 801 F.3d 1185, 1205 (10th Cir. 2015).
46 See EEOC v. Prof’l Bureau of Collec – tions of Maryland, Inc., 686 F. Supp. 2d 1151 (D. Colo. 2010) (evidence that plaintiff was searching for jobs on com – pany time and dealing drugs on company property not admissible to support afteracquired evidence defense because plaintiffs stipulated that they were not seeking reinstatement or front pay).
47 Green v. Denver & Rio Grande W.R.R. Co., 59 F.3d 1029, 1032 (10th Cir. 1995); Berg v. United States, 806 F.2d 978, 984 (10th Cir. 1986).
48 Green, 59 F.3d at 1032.
49 Id., at 1032-34; Cox v. Wilson, No. 15- cv-0128, 2016 LEXIS 160293 *12-15 (D. Colo. Nov. 17, 2016) (unless the underlying federal statute directs other – wise, federal common law collateral source rule applies).
50 See Sender v. Mann, 423 F. Supp. 2d 1155, 1170-1171 (D. Colo. 2006).
51 Cf. EEOC v. Sandia Corp., 639 F.2d 600, 625, 626 (10th Cir.1980) (acknowledg – ing that making a setoff discretionary with the district court is “somewhat questionable”); Green, 59 F.3d at 1032 (interpreting Eichel v. New York Central R.R., 375 U.S. 253 (1963) as holding that setoff is not discretionary).
52 Clawson v. Mt. Coal Co., L.L.C., 2007 U.S. Dist. LEXIS 5017, 40-41 (D. Colo. Jan. 24, 2007).
53 Eichel v. New York Central R.R. Co., 375 U.S. 253 (1963) (payments from the state unemployment fund are collateral and not deducted even though partially funded through employer tax contri bu tions because employer had a duty independent of the employee to make the payments).
54 EEOC v. Wyoming Ret. Sys., 771 F.2d 1425, 1431-32 (10th Cir.1985) (social security payments); Whatley v. Skaggs Cos., 707 F.2d 1129, 1138-39 (10th Cir.), cert. denied, 464 U.S. 938 (1983) (disability benefits); Starling v. Union Pac. R.R. Co., 203 F.R.D. 468, 483 (D. Kan. 2001) (excluding “any reference to or evidence of plaintiff having received railroad retirement, disability, or sickness benefits, or payments from any private insurer or other collateral source”).
55 Sandia, 639 F.2d at 626; Cooper v. Cobe Laboratories, Inc., 743 F. Supp. 1422, 1435 (D. Colo. 1990) (“This Court follows the rule that [plaintiff’s] unemployment benefits should not be deducted from any back pay award.”); Jones v. Esurance Ins. Co., No. 15-cv-00278, 2016 U.S. Dist. LEXIS 51585 * (D. Colo. Aril 18, 2016) (workers’ compensation collateral and not admissible at trial).
56 Dept. of Human Servs. v. State Pers. Bd., 371 P.3d 748 (Colo. App. 2016).
57 Berg v. United States, 806 F.2d 978, 986 (10th Cir.1986); Cox v. Wilson, No. 15- cv-0128, 2016 LEXIS 160293 *12-15 (D. Colo. Nov. 17, 2016). See Adamscheck v. Am. Family Mut. Ins. Co., 818 F.3d 576 (10th Cir. 2016) (underinsured motorist benefits under an insurance policy issued to plaintiff by employer are collateral and not subject to setoff, relying on Colorado law that workers’ compen – sation is not collateral).
58 Sandia, 639 F.2d at 626.
59 Clawson v. Mt. Coal Co., L.L.C., 2007 U.S. Dist. LEXIS 5017, *41-43 (D. Colo. Jan. 24, 2007).
60 Sandia, 639 F.2d at 626.
61 EEOC. v. Wyoming Ret. Sys., 771 F.2d 1425, 1431-32 (10th Cir. 1985) (upholding discretionary reduction of back pay award by social security benefits based on dis – tinction between purely private litigation and litigation where “the state was a party and tax funds were at stake”).
62 Berg, 806 F.2d at 984 (plaintiff need only show “that he or she contributed to a special fund that is separate and distinct from general government revenues”).
63 See e.g., Prager v. Campbell County Memorial Hosp., 731 F.3d 1046, 1059 (10th Cir. 2013) (in federal diversity action, refusing to allow evidence of medical provider discounts as a purported “truer reflection of the plaintiff’s damages,” because it “conflicts with a fundamental tenet of the collateralsource rule: that a tortfeasor may not reap the benefit of any special payment arrangement involving a collateral source”).
64 Green v. Denver & Rio Grande W.R.R. Co., 59 F.3d 1029, 1032-33 (10th Cir. 1995) (finding reversible error where the district court admitted evidence of plaintiff’s disability payments under the Railroad Retirement Act).; see also Eichel, 375 U.S. at 255 (“evidence of collateral benefits is readily subject to misuse by a jury”).