Prior Bad Acts Or Other Crimes in Discrimination and Retaliation Cases Under Md. Rule 5-404(B) and Fed. R. Evid. 404

• Jurisdiction: Maryland

V. PRIOR BAD ACTS OR OTHER CRIMES IN DISCRIMINATION AND RETALIATION CASES UNDER MD. RULE 5-404(B) AND FED. R. EVID. 404

A. MD. RULE 5-404(b) and Discrimination, Retaliation, and Other Employment Law Cases

Until 2011, Md. Rule 5-404(b) regarding other crimes or prior bad acts had been interpreted as a rule of exclusion (i.e., such relevant evidence is excluded unless it meets certain tests known as the MIMIC factors (motive, intent, absence of mistake, identity, or common scheme) in both civil and criminal cases).²⁴

FEDERAL RULE OF EVIDENCE 404(b) has been interpreted as a rule of inclusion of evidence (i.e., the relevant evidence is included unless it is excluded for prejudice or other reasons).

In 2011, the Court of Appeals in the case of Ruffin Hotel Corp. of Maryland, Inc. v. Gasper, 418 Md. 594, 17 A.3d 676 (2011), aff'g in part Gasper v. Ruffin Hotel Corp. of Maryland, Inc., 183 Md. App. 211, 960 A.2d 1228, 104 Fair Empl. Prac. Cas. (BNA) 1594 (2008), Judge Joseph Murphy held that Md. Rule 5-404(b) only applied to criminal defendants. A former Court of Special Appeals case, Lewin Realty III, Inc. v. Brooks, 138 Md. App. 244, 771 A.2d 446 (2001), had held that Md. Rule 5-404(b) applied to civil cases.²⁵

Such evidence is often relevant in discrimination cases for comparison to prove discrimination circumstantially, to prove notice by an employer, or to prove motive (i.e., discriminatory motive). The evidence would be analyzed under the relevance and prejudice issues outlined in Section 3 above in a civil action rather than the MIMIC factors. See Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 388 (2008), for a discussion by the U.S. Supreme Court on the factors to consider in determining relevance for certain evidence in age discrimination cases.²⁶

The danger of prejudice and confusion (i.e., that because another employee/harasser/assailant engaged in such behavior, that behavior would be attributed to the employer or to a different employee or agent who was alleged to have harassed or assaulted the plaintiff) is something that must be considered and addressed by both the plaintiff's attorney and the defendant's attorney in presenting the case. If notice or another element of the case is an element of the cause of action or an operative fact that must be proven, plaintiffs have a stronger argument for admitting such evidence, albeit with a limiting instruction. Defendants need to carefully consider motions in limine to prevent such evidence or to limit such evidence. Ruffin Hotel Corp. of Maryland, Inc....