February 25, 2004

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Arizona Supreme Court Relies on Moberly Articles in Addressing the Admissibility of EEOC Reasonable

Arizona Supreme Court Relies on Moberly Articles in Addressing the Admissibility of EEOC Reasonable Cause Determinations On February 25, 2004, the Arizona Supreme Court issued an opinion in which the court relied on two articles written by Mike Moberly, an RC&A shareholder and head of the firm’s Labor and Employment Law Practice, in determining the admissibility of U.S. Equal Employment Opportunity Commission (“EEOC”) letters under Arizona law.

In Shotwell v. Donahoe, the Arizona Supreme Court addressed the question of whether Arizona courts must apply the Ninth Circuit rule making EEOC reasonable cause letters automatically (“per se”) admissible in Title VII litigation, and if not, whether the court should adopt such a rule. 420 Ariz. Adv. Rep. 17 (Ariz. 2004). If the court found that reasonable cause letters were “per se” admissible, letters such as that in Shotwell, stating that the employer had “discriminated” against an employee “by sexually harassing her,” retaliated against her “because she complained of sexual harassment,” and created “unbearable” working conditions, would be admitted into evidence regardless of the degree of prejudice to the defendant employer.

In assessing the viability of the Ninth Circuit “per se” rule, the court relied on Moberly’s analysis in his 1996 article, Admission Possible: Reconsidering the Impact of EEOC Reasonable Cause Determinations in the Ninth Circuit, 24 Pepp. L. Rev. 37 (1996) and his 2001 article, The Admissibility of EEOC and Arizona Civil Rights Division Determinations in State Court Employment Discrimination Litigation, 33 Ariz. St. L.J. 265 (2001). The Arizona Supreme Court cited to Moberly’s analysis of legislative treatment of EEOC findings, the Fifth Circuit’s retreat from the “per se” rule, and the Ninth Circuit’s solitary stance in continuing to apply the rule. Ultimately, the Court determined that Arizona courts were not governed by the Ninth Circuit rule, but rather by the Arizona Rules of Evidence.

Consequently, Arizona courts must now evaluate EEOC reasonable cause determinations under Arizona Rules of Evidence Rule 403, which provides that even 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, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Thus, Arizona courts may now balance a determination’s probative value against its prejudicial effect in deciding whether to admit it into evidence at trial.
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