Shotwell v. Donahoe

SUPREME COURT OF ARIZONA
En Banc

MADELINE SHOTWELL, ) Arizona Supreme Court
) No. CV-03-0122-PR
Petitioner, )
) Court of Appeals
v. ) Division One
) No. 1 CA-SA 03-0017
THE HONORABLE GARY DONAHOE, )
Judge of the SUPERIOR COURT OF ) Maricopa County
THE STATE OF ARIZONA, in and for ) Superior Court
the County of MARICOPA, ) No. CV 2000-020518
)
Respondent Judge, )
)
SMITH PAINTING, INC.; MICHAEL C. )
SMITH and LINDA L. SMITH, )
husband and wife, ) O P I N I O N
)
Real Parties in Interest. )
__________________________________)

Special Action from the Superior Court in Maricopa County
The Honorable Gary E. Donahoe, Judge

VACATED, REMANDED

Court of Appeals, Division One
Memorandum Decision (filed Mar. 11, 2003)

VACATED

JACKSON WHITE, P.C. Mesa
by Michael R. Pruitt
and Bobbie J. Rasmusson
Attorneys for Petitioner

STEINER & STEINER, P.C. Phoenix
by Richard A. Steiner
and Norris C. Livoni
Attorneys for Real Parties in Interest
Smith Painting, Inc., Michael C. Smith, and Linda L. Smith
JABBURG & WILK, P.C. Phoenix
by Kraig J. Marton
and Gregory S. Fisher
and
THE GRIMWOOD LAW FIRM Phoenix
by N. Douglas Grimwood
Attorneys for Amicus Curiae
Arizona Employment Lawyers Association

B E R C H, Justice

¶1 This case requires us to determine whether a

reasonable cause determination letter issued by the United

States Equal Employment Opportunity Commission (“EEOC”) is

automatically admissible as evidence in a Title VII employment

discrimination lawsuit. We reject the Ninth Circuit rule that

an EEOC reasonable cause determination is admissible per se and

hold that the Arizona Rules of Evidence govern the admissibility

of such determination letters in cases brought in Arizona state

courts.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Madeline Shotwell filed a Charge of Discrimination

with the EEOC, alleging that her former employer, Smith

Painting, Inc., harassed her and discriminated against her on

the basis of her sex and permitted such an offensive and hostile

work environment that she was constructively discharged from her

job. The EEOC investigated Shotwell’s allegations and issued a

reasonable cause determination letter (the “Determination”)

concluding that Shotwell had been discriminated against. This

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Determination, which is the subject of this litigation, reads as

follows:

Examination of the evidence reveals that [Smith
Painting] created an intimidating, hostile, and
offensive work environment by allowing unwelcome
conduct of a sexual nature, which unreasonably
interfered with [Shotwell’s] work performance.
[Shotwell] indicated that the sexual conduct was
unwelcome by reporting the incidents to both her
supervisor and the owner. As a result, [Smith
Painting] stated that it had extensive interviews with
[Shotwell’s] co-workers and supervising personnel
concerning her claims of sexual harassment. However,
[Smith Painting] later stated that it does not have
any recorded interviews or signed statements, and that
it has not created an internal file regarding
[Shotwell’s] allegations. In addition, [Shotwell] was
demoted after she complained of sexual harassment. As
a result of the treatment she received, and [Smith
Painting’s] failure to address her concerns,
[Shotwell] resigned. Moreover, [Smith Painting] has
no sexual harassment policy.

The [EEOC] has previously determined that the
employer is responsible for the unlawful conduct where
the employer knew[] or should have known of the
conduct, unless the employer can show it took
immediate and appropriate corrective action. [Smith
Painting] had clear knowledge of [Shotwell’s]
complaint[s.] However, [Smith Painting] has no
records which indicate that an investigation occurred
once the sexual harassment was reported. Moreover,
[Smith Painting’s] failure to establish a sexual
harassment policy indicates that it did not exercise
reasonable care to prevent and correct sexual
harassment within the organization.

Accordingly, I find reasonable cause to believe
that [Smith Painting] discriminated against [Shotwell]
by sexually harassing her based on her sex.

I also find reasonable cause to believe that
[Smith Painting] retaliated against [Shotwell] by
demoting her from her Foreman position because she
complained of the sexual harassment.

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 I also find reasonable cause to believe [Smith
Painting] constructively discharged [Shotwell] in that
the harassment suffered made working at the company so
unbearable, she was forced to terminate her
employment.

In addition to the foregoing Determination, the EEOC also issued

Shotwell a Notice of Right to Sue confirming that “[t]he EEOC

found reasonable cause to believe that violations of the

statute(s) occurred with respect to some or all of the matters

alleged in the charge,” but advising that the EEOC would not

bring the suit on her behalf. Shotwell then filed a complaint

in superior court alleging sexual harassment in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e)

to 2000(e)(17) (1994) (the “Act”).

¶3 Smith Painting moved in limine to preclude use of the

various letters and notices issued by the EEOC. The trial court

granted Smith Painting’s motion to preclude the Determination,

but denied it as to the Charge of Discrimination and the Notice

of Right to Sue, ruling that the latter two documents would be

admissible. After the superior court denied Shotwell’s motion

for reconsideration, Shotwell petitioned the court of appeals

for special action relief. Believing itself bound by the Ninth

Circuit’s rule that EEOC reasonable cause determination letters

are “per se” admissible, the court of appeals accepted

jurisdiction and granted relief. We granted Smith Painting’s

petition for review. We have jurisdiction pursuant to Article

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6, Section 5(3) of the Constitution of the State of Arizona and

Arizona Revised Statutes (“A.R.S.”) section 12-120.24 (2003).

DISCUSSION

A. Per se Admissibility

¶4 Whether Arizona courts must apply the Ninth Circuit

rule making EEOC reasonable cause determinations automatically

admissible in Title VII litigation and, if not, whether the

court should adopt such a rule are questions of law that we

address de novo. See Nielson v. Patterson, 204 Ariz. 530, 531,

¶ 5, 65 P.3d 911, 912 (2003) (approving de novo review of legal

issues).

¶5 Shotwell premises her position that the Determination

should be automatically admissible on policy concerns and Ninth

Circuit case law holding that EEOC reasonable cause

determinations are per se admissible in Title VII lawsuits.

See, e.g., Bradshaw v. Zoological Soc’y of San Diego, 569 F.2d

1066, 1069 (9th Cir. 1978).

¶6 We are not persuaded that we must or even should adopt

the per se rule. Generally speaking, while federal laws control

the substantive aspects of federal claims adjudicated in state

courts, state rules of procedure and evidence apply unless the

state rules would affect the substantive federal right. See

Felder v. Casey, 487 U.S. 131, 138, 108 S. Ct. 2302, 2306-07

(1988); see also Yauch v. S. Pac. Transp. Co., 198 Ariz. 394,

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399-400, ¶ 12, 10 P.3d 1181, 1186-87 (App. 2000). Arizona’s

Rules of Evidence therefore apply in adjudications of federal

claims so long as their application does not impair a litigant’s

substantive federal rights. Yauch, 198 Ariz. at 399-400, ¶ 12,

10 P.3d at 1186-87; cf. Logerquist v. McVey, 196 Ariz. 470, 481-

90, ¶¶ 33-61, 1 P.3d 113, 124-33 (2000) (interpreting Arizona

Rule of Evidence 703 differently than its federal counterpart).

¶7 Shotwell conceded in her supplemental briefs and at

the oral argument that Arizona courts need not follow the Ninth

Circuit’s per se rule, although she vigorously argued that we

should do so. Implicit in her concession is the acknowledgement

that failure to apply the per se rule would not affect her

substantive federal rights.

¶8 This concession was properly made. Nothing in Title

VII itself affords litigants an unfettered ability to introduce

an EEOC reasonable cause determination in Title VII

adjudications. See 42 U.S.C. §§ 2000(e) to 2000(e)(17); Smith

v. Universal Servs., Inc., 454 F.2d 154, 156 (5th Cir. 1972)

(noting that “[t]he Civil Rights Act admittedly contains nothing

to authorize the admission of the EEOC’s findings into

evidence”); Michael D. Moberly, Admission Possible:

Reconsidering the Impact of EEOC Reasonable Cause Determinations

in the Ninth Circuit, 24 Pepp. L. Rev. 37, 41 (1996) (stating

that “Congress has not addressed whether EEOC reasonable cause

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determinations are admissible in subsequent employment

discrimination litigation”). Thus because the admissibility of

an EEOC determination is a purely evidentiary issue that does

not affect any substantive federal right, Arizona courts are not

required to follow the Ninth Circuit’s per se rule.

¶9 But even if Arizona courts were bound to apply federal

procedural rules to Title VII cases, the split in the federal

circuits addressing this issue would afford us the latitude to

adopt either the Ninth Circuit’s per se rule or the majority

position, a discretionary approach governed by the Federal Rules

of Evidence, which, in this instance, parallel the corollary

Arizona rules. Because both the majority and minority

approaches are federal law, we are free either to adopt or

reject the Ninth Circuit’s per se rule based on our own

reasoning and analysis.

¶10 We begin our analysis by considering the origin of the

per se rule and examining the extent to which it has been

adopted in other jurisdictions. The rule originated in Smith v.

Universal Services, Inc., 454 F.2d 154 (5th Cir. 1972). See

Plummer v. W. Int’l Hotels Co., 656 F.2d 502, 504 (9th Cir.

1981). Reasoning that EEOC investigators are “trained and

experienced in [investigating] discriminatory practices,” the

Fifth Circuit concluded that ignoring such resources “would be

wasteful and unnecessary.” Smith, 454 F.2d at 157. The court

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then found that the “highly probative” nature of an EEOC report

“outweighs any possible prejudice to [a] defendant.” Id.

Finally, the court concluded that although the report was

hearsay, it fell within the exclusion for official reports in

Federal Rule 803(8)(C) and was therefore admissible. Id. at

157-58. The Fifth Circuit has, however, since retreated from

the per se rule. See Cortes v. Maxus Exploration Co., 977 F.2d

195, 201-02 (5th Cir. 1992) (stating that admission of an EEOC

probable cause determination is subject to the trial judge’s

discretion under Rule 403); see also Michael D. Moberly, The

Admissibility of EEOC and Arizona Civil Rights Division

Determinations in State Court Employment Discrimination

Litigation, 33 Ariz. St. L.J. 265, 273-74 & n.48 (2001)

[hereinafter “Moberly”] (noting Fifth Circuit’s retreat from the

per se rule).

¶11 The Ninth Circuit embraced the per se approach in

Bradshaw, 569 F.2d at 1069. In that case, the district court

struck the EEOC determination the plaintiff had attached to her

complaint. Id. at 1068-69. The court of appeals reversed,

concluding, with little analysis, that the EEOC determination

was admissible. Id. at 1069 (citing Smith, 454 F.2d at 156-58).

In Plummer, the Ninth Circuit extended the rule to apply in a

case tried before a jury. 656 F.2d at 505.

¶12 The Ninth Circuit, however, is the only circuit that

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employs the per se admissibility rule. See Plummer, 656 F.2d at

504 n.5; Moberly, supra ¶ 10, at 273 (2001) (stating that only

the Ninth Circuit follows the per se rule). Every other circuit

that has considered the matter affords the trial court

discretion under the Federal Rules of Evidence to examine the

relevance of the determination in light of the facts of the case

and to weigh it against other factors – such as unfair

prejudice, confusion of the jury, or waste of time – that may

militate in favor of excluding all or part of the document. See

Williams v. Nashville Network, 132 F.3d 1123, 1129 (6th Cir.

1997) (holding the admissibility of an EEOC reasonable cause

determination is within the trial court’s discretion); Barfield

v. Orange County, 911 F.2d 644, 649-50 (11th Cir. 1990) (same);

Tulloss v. Near N. Montessori Sch., Inc., 776 F.2d 150, 153-54

(7th Cir. 1985) (same); Johnson v. Yellow Freight Sys., Inc.,

734 F.2d 1304, 1309-10 (8th Cir. 1984) (same); Walton v. Eaton

Corp., 563 F.2d 66, 75 (3d Cir. 1977) (same); see also Cantu v.

City of Seattle, 752 P.2d 390, 391 (Wash. App. 1988) (noting

that the Second, Third, Fourth, Sixth, Eighth, and Tenth Circuit

Courts of Appeal have rejected the per se rule in favor of a

discretionary standard); cf. Smith v. MIT, 877 F.2d 1106, 1113

(1st Cir. 1989) (holding admissibility of EEOC investigative

materials subject to the discretion of the trial court); Whatley

v. Skaggs Cos., 707 F.2d 1129, 1137 (10th Cir. 1983) (holding

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trial court’s admission of a reasonable cause determination

“appear[ed] to be error,” but that the error was harmless);

Gillin v. Fed. Paper Bd. Co., 479 F.2d 97, 99-100 (2d Cir. 1973)

(refusing to reverse a trial court’s exclusion of an EEOC

investigatory report from evidence); Cox v. Babcock & Wilcox

Co., 471 F.2d 13, 15 (4th Cir. 1972) (recognizing a trial

court’s discretion over whether EEOC records are admissible).

The Ninth Circuit stands alone in refusing to afford the trial

court any discretion in the admission of EEOC reasonable cause

determinations.

¶13 Despite the rule’s lack of support in other

jurisdictions, Shotwell and amicus curiae Arizona Employment

Lawyers Association advance several reasons in favor of adopting

the Ninth Circuit rule. First, they argue, such a bright-line

rule would be easy to apply. Second, per se admissibility will

encourage employers to participate in EEOC investigations.

Third, it will encourage settlement of employment discrimination

cases.

¶14 We have our doubts about the latter propositions.

Whether we adopt the per se rule or not, employers will be

encouraged to participate in investigations and settle their

cases – if indeed such a rule encourages participation and

settlement – because Arizona is in the Ninth Circuit, which

continues to employ the per se rule. Employers usually will not

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know in advance whether a plaintiff intends to file suit in

state or federal court. Therefore, if a per se rule tends to

encourage participation in the EEOC’s investigatory process or

settlement of cases, the incentive remains regardless of any

ruling this court might make on the matter.

¶15 And the assertion that the per se admissibility of

EEOC probable cause determinations encourages employers to

participate in EEOC proceedings and to settle Title VII disputes

is unsupported and certainly debatable. It seems equally likely

that an employer subject to a per se admissibility rule might be

disinclined to participate in an EEOC investigation if the

evidence gathered will ultimately be used in court against the

employer.

¶16 On this point, we recall Arizona’s experience with

Medical Liability Review Panels (“MLRPs”), which were also

initially thought to encourage participation in investigations

and settlement of medical malpractice cases. Eastin v.

Broomfield, 116 Ariz. 576, 583, 570 P.2d 744, 751 (1977); Jona

Goldschmidt, Where Have All the Panels Gone? A History of the

Arizona Medical Liability Review Panel, 23 Ariz. St. L.J. 1018-

19 (1991). Instead, parties often elected not to participate in

the review so they could attack the anticipated adverse findings

of the review panel, which were statutorily admissible per se in

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any ensuing malpractice litigation.1 In light of its

unsuccessful track record, the panel was eventually terminated.

1989 Ariz. Sess. Laws, ch. 289, § 1 (repealing A.R.S. § 12-567).

Thus, we are not persuaded that employers are encouraged to

participate in EEOC investigations or to settle cases by reason

of the per se admission at trial of the EEOC determination.

Nor, we note, has Shotwell presented any evidence or cited any

cases demonstrating that the per se rule encourages the result

she claims.

¶17 Shotwell next argues that this court’s adoption of the

per se rule would foster uniformity in Title VII adjudications,

whether brought in the District Court for the District of

1
An MLRP heard evidence and made a finding as to “whether
the evidence presented to the panel . . . support[ed] a judgment
for the plaintiff or for the defendant.” A.R.S. § 12-567(F)
(Supp. 1988) (repealed, 1989 Ariz. Sess. Laws, ch. 289, § 1).
The Arizona Legislature specifically made MLRP findings and
conclusions admissible in a malpractice trial. See A.R.S. § 12-
567(K) (also repealed). This court noted that, “in order to
minimize the effect of an expected unfavorable panel result,”
which was admissible per se in ensuing medical malpractice
litigation, plaintiffs stood mute rather than presenting
evidence to an MLRP. Phoenix Gen. Hosp. v. Superior Court, 138
Ariz. 504, 505, 675 P.2d 1323, 1324 (1984). Then at trial the
plaintiff would argue that the MLRP findings and conclusions
should be given little weight because the MLRP did not hear the
plaintiff’s evidence. Id. The experience from this related
area contradicts Shotwell’s contention that employers are more
likely to participate in administrative investigations if the
results are automatically admissible at trial and instead
suggests that employers may be less willing to participate in
EEOC proceedings if failing to participate can sabotage the
effect and weight of an EEOC determination that is per se
admissible.

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Arizona or in an Arizona state court. While we acknowledge the

benefits of uniformity and appreciate the systemic concerns

raised by forum shopping,2 we question whether adopting a per se

rule will in fact substantially reduce forum shopping in the

circuit. No other state in the Ninth Circuit that has

considered the issue has embraced the per se rule. See Michail

v. Fluor Mining & Materials, Inc., 225 Cal. Rptr. 403, 403-04

(App. 1986) (upholding a trial court’s exercise of discretion to

determine whether an EEOC determination should be admitted to

support a state law claim); Mahan v. Farmers Union Cent. Exch.,

Inc., 768 P.2d 850, 858-59 (Mont. 1989) (upholding a trial

court’s exclusion of evidence of a probable cause determination

made by a state agency in support of a state law claim); Cantu,

752 P.2d at 391 (upholding a trial court’s exercise of

discretion to determine whether an EEOC determination should be

admitted to support a state law claim). Thus there is no

uniformity between the states in the Ninth Circuit and the

circuit itself, although a consensus is developing among the

states of the circuit to employ a case-by-case analysis under

the rules of evidence of each state. See Michail, 225 Cal.

Rptr. at 404 n.1; Bierlein v. Byrne, 14 P.3d 823, 824-26 (Wash.

Ct. App. 2000); Cantu, 752 P.2d at 391. We therefore conclude

2
Ensuring uniformity is a more compelling motivator when
substantive law is at issue. See Weatherford v. State, ___
Ariz. ___, ___, ¶ 9, 81 P.3d 320, 324 (2003).

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that the preference for uniformity does not dictate that we

adopt the Ninth Circuit’s approach in this case.

¶18 Nor will adoption of a per se rule necessarily

streamline trials. The facts and conclusions contained in the

EEOC reasonable cause determination can and, in most cases, will

have to be demonstrated by other evidence in order for the

plaintiff to prevail. Thus, making the EEOC determination

admissible per se does not necessarily reduce the evidence the

plaintiff must otherwise produce to establish her case. In

addition, the trial judge “may consider that time spent by the

defendant in exposing the weaknesses of the EEOC report would

add unduly to the length of the trial.” Johnson, 734 F.2d at

1309. Presenting the determination then may, in a particular

case, confuse the jury and waste the court’s and jury’s time.

Indeed, because the plaintiff must fully establish her case,

there may be little probative value in presenting the conclusory

statements contained in some EEOC determinations. Under these

circumstances, we are not prepared to say that in every case the

determination’s probative value will outweigh these concerns.

¶19 Shotwell also argues that EEOC determination letters

should be presumed to be trustworthy, and therefore admissible,

because the EEOC has expertise in investigating charges of

discrimination and its reports are made pursuant to law. State

v. Bass, 198 Ariz. 571, 579, ¶ 32, 12 P.3d 796, 804 (2000)

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(calling trustworthiness the “cornerstone” of the hearsay

exceptions). This claim reflects the policies underlying

Arizona Rule of Evidence 803(8)(C), which parallels its

similarly numbered federal counterpart. The Arizona provision

requires that reports compiled by public agencies are excepted

from the hearsay rule “[u]nless the sources of information or

other circumstances indicate lack of trustworthiness.” Ariz. R.

Evid. 803(8).

¶20 We make two observations in response. First, in this

case, no objections to the hearsay nature or trustworthiness of

the report were made. Therefore, the report is presumed to be

trustworthy and exempt from hearsay constraints. Second, as

Shotwell concedes, Rule 803(8)(C) creates an exemption only from

the requirements of the hearsay rule. It does not render any

document satisfying the rule automatically admissible without

regard to the resolution of other evidentiary objections that

may have been made. Indeed, the comments to the hearsay rules

themselves require that the hearsay exceptions that favor

admission must be “counterbalanced by [analysis of the proffered

evidence under] Rules 102 and 403.” Ariz. R. Evid. 801 cmt.;

State v. Cruz, 128 Ariz. 538, 541, 627 P.2d 689, 692 (1981);

Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal

Evidence § 803.02 (Joseph M. McLaughlin ed., 2d ed. 2003); see

also State v. Yamada, 57 P.3d 467, 481 (Haw. 2002) (holding that

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evidence qualifying under “an exception to the rule against

hearsay . . . does not preclude the trial court from excluding

the evidence, or a portion thereof, pursuant to . . . Rule 403,

assuming that the trial court properly weighs the evidence’s

probative value against the danger of unfair prejudice”).

¶21 In this case, Smith Painting did interpose an

objection under 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.” Ariz. R. Evid. 403.

Shotwell maintains that because the Determination is highly

probative, its probative value necessarily outweighs other

concerns and it should therefore be admitted. She would have

Arizona courts forgo the Rule 403 analysis for EEOC

determinations.

¶22 We are unpersuaded that doing so would sufficiently

streamline trials that we should forgo the added protections

that our rules make available. Adhering to the Arizona Rules of

Evidence will invest the trial court with the discretion to

admit or exclude reasonable cause determinations on a case-by-

case basis as dictated by an analysis of the EEOC determination

in each case and the factors in that case that militate in favor

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of or against admitting the determination. Although some

measure of predictability may be lost, a better result will be

achieved more often than will occur under a per se rule

requiring admissibility in all instances. For example, under a

discretionary approach the trial court may consider a

determination’s probative value and weigh it against the

expenditure of judicial resources entailed in litigating side

issues or establishing necessary evidentiary foundations. The

trial court will also be able to consider whether an EEOC

reasonable cause determination is reliable, trustworthy, or

probative, and evaluate whether the benefits that might be

derived from its admission are outweighed by other circumstances

such as unfair prejudice, waste of time, or confusion of the

issues.

¶23 In determining the appropriate result in each case, a

trial court may exclude the determination, limit admissibility

to only portions of the determination, or give instructions

addressing the weight to be given to the determination if it is

admitted, or it may employ any combination of these safeguards.

Simply applying our rules of evidence in determining the

admissibility of a determination, as they would be applied to

any other documentary evidence, will provide certainty to

litigants and give trial judges the necessary discretion to

allow appropriate use of the evidence offered. Trial judges

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shackled by a per se rule lack the ability to control the

effects of potentially unfair, prejudicial, duplicative, time

consuming, confusing, and irrelevant evidence that may be

contained in a determination letter. The discretionary approach

allows trial judges, on a case-by-case basis, to apply the Rules

of Evidence in a common-sense manner in evaluating the

determination letters that come before them in the context of

the cases in which they are presented.

¶24 While allowing trial courts discretion under the

Arizona Rules of Evidence rather than adhering to a per se rule

of admissibility may not always produce consistent results,

there will be consistency in the evidentiary standard that will

govern the admissibility of probable cause determinations.

Courts will apply the same standard that applies to the

admissibility of other documentary evidence in state courts.

¶25 The amicus maintains that the per se admissibility

rule accords deference to Congress’s mandate as well as to the

EEOC’s investigative efforts. We think the point is debatable.

Congress may instead have intended that a trial be a complete

re-examination of the facts, independent from that made by the

EEOC. Such an intent is evidenced by its authorization of a

full judicial review. See Tulloss, 776 F.2d at 153-54.

Moreover, as noted in ¶ 8, Congress did not include in Title VII

any language requiring that EEOC determinations be admissible at

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trial. Instead, the textual evidence indicates Congress’s

intent that the case be fully litigated. As evidence of this

intent, Congress provided in Title VII that EEOC investigators

may be called as witnesses at trial. See, e.g., Walton v. Eaton

Corp., 563 F.2d at 75 n.12; Heard v. Mueller Co., 464 F.2d 190,

194 (6th Cir. 1972).

¶26 In sum, we conclude that the court of appeals erred in

holding that the admissibility of the Determination was

controlled by the Ninth Circuit’s per se rule. We hold that the

admissibility of an EEOC determination letter must be resolved

by reference to the Arizona Rules of Evidence.

B. Application of Arizona Rules of Evidence

¶27 Having decided that the Arizona Rules of Evidence will

control the admissibility of an EEOC determination, we turn to

the analysis of the Determination at issue in this case. We

must decide whether the trial court abused its discretion in

deciding that Arizona Rule of Evidence 403 precluded admission

of the Determination because it contained “conclusions.” See

Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506, 917 P.2d 222,

235 (1996) (noting that we review a trial judge’s evidentiary

rulings only for an abuse of discretion).

¶28 Although the EEOC Determination itself is hearsay,

Smith Painting did not object to its admission on that basis.

Moreover, as the embodiment of the conclusions of “an

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investigation made pursuant to authority granted by law,” Ariz.

R. Evid. 803(8)(C), an EEOC determination is assumed to be

trustworthy and therefore admissible hearsay. See Bass, 198

Ariz. at 579, ¶ 32, 12 P.3d at 804.

¶29 Smith Painting did object on Rule 403 grounds,

however. And because Rule 403 and the hearsay bar protect

against different dangers, satisfying one rule does not

necessarily satisfy the concerns addressed by the other. Rule

403 ensures that the probative value of the evidence is not

substantially outweighed by other considerations set forth in

the Rule.

¶30 Because Smith Painting made a timely objection under

Rule 403, the trial court should have analyzed the Determination

to see whether its admission into evidence might “mislead[] the

jury,” or cause “unfair prejudice[,] . . . undue delay, waste of

time, or needless presentation of cumulative evidence.” Ariz.

R. Evid. 403. Smith Painting maintains that the Determination

might well have spawned all of these ill effects because Smith

Painting contests several of the facts upon which the EEOC

investigator relied.3 Moreover, Smith Painting argues, the

3
For example, Smith Painting disagrees that it had no sexual
harassment policy, that Shotwell was demoted because she
complained of sexual harassment, that Shotwell was reassigned
“as a result of the treatment she received,” and that Smith
Painting “failed to address [Shotwell’s] concerns.” Smith

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document is unfairly prejudicial. In addition, because the

Determination at issue here is “conclusory,” it does not obviate

the need for Shotwell to present to the factfinder the

underlying evidence on which the conclusions are based,

therefore wasting time and confusing the issues by requiring

needless presentation of either unnecessary or potentially

cumulative evidence.

¶31 In precluding the Determination, the trial judge

employed the Rule 403 language that the document’s prejudicial

effect substantially outweighed its probative value, but he did

so solely on the ground that the Determination was “conclusory”

and “amounts to nothing more than a witness telling the jury how

to decide the liability issues in this case.” On

reconsideration, the trial court reiterated its conclusion that

the Determination was “unduly prejudicial because it ‘contains a

conclusive finding of liability.’” 10/09/2002 M.E. (quoting

Amentea-Cabrera v. Potter, 279 F.3d 746, 749 (9th Cir. 2002)).

¶32 A document is not necessarily inadmissible, however,

simply because it contains conclusions or is conclusory. See

Larsen v. Decker, 196 Ariz. 239, 242, ¶ 12, 995 P.2d 281, 284

(App. 2000); see also Williams, 132 F.3d at 1128-29 (weighing

the probative value of a determination, which was found to be

Painting asserts that a mini-trial would be necessary on each of
these points.

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minimal, against the potential for a jury attaching “undue

weight” to the determination by adopting its conclusions as fact

rather than as “a mere finding of probable cause”); Johnson, 734

F.2d at 1309 (weighing the probative value of an EEOC

determination, which was found to be minimal given the

“substantial evidence . . . presented to the jury on all matters

summarized in the report,” against the fact that admitting the

determination “under these circumstances would amount to

admitting the opinion of an expert witness as to what

conclusions the jury should draw, even though the jury had the

opportunity and the ability to draw its own conclusions from the

evidence presented,” and the fact that admitting the

determination would require a prolonged trial “to apprise the

jury of the nature and extent of the EEOC investigation”). That

the document contained some conclusory statements therefore is

not, by itself, enough to render it inadmissible.

¶33 The trial court did not explain why it believed the

Determination’s prejudicial effect substantially outweighed its

probative value or set forth any other ground under Rule 403 for

excluding the document. While the Determination appears to be

probative, from the record before us we cannot tell whether the

trial court weighed its probative value against its potential

prejudicial effect or whether the court considered any of the

other dangers against which Rule 403 protects, such as

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“confusion of the issues, . . . undue delay, waste of time, or

needless presentation of cumulative evidence.” Ariz. R. Evid.

403. For the benefit of the appellate court, a trial court

conducting its Rule 403 analysis should explain on the record

its Rule 403 weighing process. The court should also consider

whether portions of the determination might be admissible or

whether other safeguards, such as offering a limiting jury

instruction, might be employed.

¶34 A proper Rule 403 balancing of probative value and

prejudicial effect begins with a proper assessment of the

“probative value of the evidence on the issue for which it is

offered.” State v. Gibson, 202 Ariz. 321, 324, ¶ 17, 44 P.3d

1001, 1004 (2002) (quoting Joseph M. Livermore et. al., Arizona

Practice: Law of Evidence § 403, at 82-83, 84-86 (4th ed. 2000)

(footnotes omitted)). “The greater the probative value . . .

and the more significant in the case the issue to which it is

addressed, the less probable that factors of prejudice or

confusion can substantially outweigh the value of the evidence.”

Id. That the Determination assists Shotwell and harms Smith

Painting does not necessarily mean that its probative value

necessarily outweighs all other concerns. Indeed, “[i]f the

issue is not in dispute, or if other evidence is available of

equal probative value but without the attendant risks of the

offered evidence, then a greater probability of substantial

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outweighing exists.” Id. The prejudice that Rule 403 speaks to

is that which suggests a “decision on an improper basis, such as

emotion, sympathy, or horror.” State v. Mott, 187 Ariz. 536,

545, 931 P.2d 1046, 1055 (1997).

¶35 In this case, the Determination concludes that

reasonable cause exists to believe that Smith Painting

“discriminated against [Shotwell] by sexually harassing her

based on her sex,” that Smith Painting retaliated against

Shotwell “because she complained of the sexual harassment,” and

that Shotwell was ultimately “constructively discharged” by the

“unbearable” conditions at Smith Painting. The content of the

Determination is certainly probative of matters at issue in the

case. From the record before us, however, we cannot determine

whether the trial court found the letter probative but unfairly

prejudicial, or whether it excluded the letter because other 403

factors outweighed the probative value of the conclusory letter.

Nor can we tell whether the trial court considered methods of

limiting the Determination’s prejudicial effect, such as

admitting only portions of the Determination or providing

limiting instructions.

¶36 We therefore remand this case to the trial court to

balance the Determination’s probative value and its prejudicial

effect under Arizona Rule of Evidence 403. In that weighing

process, the trial court must consider whether the probative

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value of the Determination was substantially outweighed by the

“confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence” that its admission would

have caused.

CONCLUSION

¶37 We decline to follow the rule of per se admissibility

of EEOC determination letters in Title VII litigation and

instead conclude that Arizona courts must apply the Arizona

Rules of Evidence in determining whether such evidence should be

admitted. Because the court of appeals applied a per se

admissibility rule in this case and the trial court abused its

discretion under Rule 403, we vacate both decisions and remand

the case to the trial court for proceedings consistent with this

opinion.

__________________________________
Rebecca White Berch, Justice

CONCURRING:

_________________________________________
Charles E. Jones, Chief Justice

_________________________________________
Ruth V. McGregor, Vice Chief Justice

_________________________________________
Michael D. Ryan, Justice

_________________________________________
Andrew D. Hurwitz, Justice

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