Dirty Jokes on Sex Harassment Plaintiff's Computer Ruled Fair Game

Federal judge denies motion asking that all of the plaintiff's e-mails be deemed inadmissible

Shannon P. Duffy
The Legal Intelligencer

October 23, 2009

A plaintiff in a hostile work environment case who claims that her boss' sexual innuendo was offensive and humiliating cannot block the jury from hearing about the dirty jokes found on her own workplace computer, a federal judge has ruled.
In such cases, U.S. District Judge Gene E.K. Pratter found, the plaintiff's own sense of humor -- in her e-mails with co-workers and friends -- may be relevant to the jury's inquiries about whether she would be offended by her boss' attempt at salty humor.
In her 17-page opinion in Seybert v. International Group Inc., Pratter denied a motion asking that all of plaintiff Susan Seybert's e-mails be deemed inadmissible.
Since a sexual harassment plaintiff must satisfy both an objective and a subjective test when aiming to show a hostile work environment, Pratter said, the defense lawyer must be given the right to explore the plaintiff's own workplace speech habits in an effort to undermine her claim that she was offended.
As a result, Pratter found that IGI and its lawyer, William T. Wilson of MacElree Harvey in West Chester, Pa., are "entitled to pursue the argument that the e-mails are relevant to Mrs. Seybert's possible appreciation of this type of humor, and specifically, whether she was subjectively offended by [her supervisor's] comment."
In so ruling, Pratter rejected an in limine motion by plaintiffs attorney Julie A. Uebler of Rubin Fortunato & Harbison in Paoli, Pa., asking that all of her client's personal e-mails be deemed inadmissible under Rule 412 of the Federal Rules of Evidence.
In her brief, Uebler was sharply critical of IGI's argument that the sexual humor e-mails between and among Seybert's friends and co-workers were relevant because Seybert had put her "sensibilities" and "emotional condition" at issue by "voluntarily" bringing a sexual harassment lawsuit.
"This lawsuit is not about whether Plaintiff has the 'sensibilities' to find e-mails with sexual content acceptable or not -- it is about whether her boss subjected her to sexual harassment. This is exactly the type of defense practice that Rule 412 was designed to prevent," Uebler argued.
But in response, Wilson argued that Rule 412 -- which is captioned "Relevance of Victim's Past Sexual Behavior or Alleged Sexual Predisposition" -- didn't even apply because the issue was not Seybert's sexual history, but only her sexual banter with co-workers.
The judge seemed inclined to agree, expressing considerable skepticism about whether Rule 412 should even come into play.
"It is by no means clear that Rule 412 must apply to any of the e-mails at issue," Pratter wrote.
"Although some of the e-mails include sexual content, none of them expressly involve the sexual 'behavior' or 'predisposition' of Mrs. Seybert or anyone else involved in this case. Likewise, none of the e-mails bear on Mrs. Seybert's personal sexual 'reputation' per se, in that none of them involve her actual or alleged personal sexual activity," Pratter wrote.
Instead, Pratter said, the e-mails "contain sexual stories, jokes, images and metaphors of a more general nature, exchanged in an apparent attempt at humor, however ill-advised or lame."
But Pratter found that judges in the Eastern District of Pennsylvania have been consistently applying Rule 412 when making such evidentiary rulings in sexual harassment cases and there was no immediate need to buck that trend.
Instead, Pratter said she decided to "err on the side of caution, and assuming, without deciding, that Rule 412 applies" to hold an in camera hearing to decide the relevance and admissibility of each separate e-mail.
Now Pratter has declared that all of the e-mails survive the Rule 412 challenge but has left open the door to other objections at the time of trial.
Seybert claims that her supervisor, Brett Marchand, stared at her breasts on two occasions and responded negatively when she told him to stop.
She also claims that, at a company dinner, Marchand leaned down in her direction and said, loudly and in front of co-workers: "I heard it's really good if you go down deep, into the chocolate, with your berry."
Seybert testified in her deposition that, in response to Marchand's comment, she was "mortified" and could feel herself turning red.
"This was a comment that was made in front of senior management and my peers and I was horrified by it," she testified.
In a prior ruling, Pratter refused to grant summary judgment to IGI, finding that although Seybert had alleged only three incidents that had "overt sexual overtones," there was also evidence to show that Marchand's sexual conduct was immediately followed by other hostility toward Seybert including belittling her and yelling at her, and later giving her bad performance reviews.
"Although not all of this mistreatment was overtly sexual, under the 'totality of the circumstances,' a jury could find that Ms. Seybert was mistreated and harassed 'because of' her gender or sex," Pratter wrote.
Jury selection is set to begin Oct. 30 and Pratter has now issued her ruling on the most hotly disputed motion in limine.
In it, Uebler was seeking to block IGI from introducing any of Seybert's personal e-mails to co-workers and friends that included jokes about sex or about corporate life.
The private and consensual sexual banter among a plaintiff and her friends is irrelevant to the issue of whether the plaintiff would be offended by similar language from her boss in a non-friendly and unwelcome context, Uebler argued.
Uebler urged Pratter to consider her own reaction when weighing the possible unfair prejudice such e-mails could cause at trial.
"The court's own reaction to the e-mails seems to clearly illustrate the dangers of unfair prejudice," Uebler wrote. During a telephone conference, Uebler noted, Pratter remarked that upon seeing Seybert's e-mail, she expected that both parties in this case will look "unattractive" to the jury.
But Pratter, in rejecting Uebler's motion, declared that "the risk of prejudice here is low, given that the emails mostly contain jokes and stories about generic topics, made up characters or representative figures. ... They do not bear on Mrs. Seybert's own sexual history or personal sexual conduct, but only on the issue of whether she appreciates or is offended by possibly crass sexual humor in the workplace."