IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CONSTANCE GEORGE,

Plaintiff,

v.

HOUSE OF HOPE RECOVERY and 

PATRICIA BARCROFT,

Defendants.

Case No. 3:15-cv-01277-SB

ORDER SUSTAINING IN PART 

 PLAINTIFF’S OBJECTION TO

 DEFENDANTS’ EXHIBIT 203

BECKERMAN, Magistrate Judge.

Defendants House of Hope Recovery and Patricia Barcroft (“Defendants”) offer the 

Oregon Bureau of Labor and Industries’ (“BOLI”) “No Substantial Evidence Determination”

report as a trial exhibit. (ECF No. 123, Att. 1.) Defendants confirmed at the pre-trial conference 

that they seek to introduce as impeachment evidence only a statement in the report attributed to 

Plaintiff Constance George (“George”). George objects to the exhibit on the basis of hearsay and 

unfair prejudice. (ECF No. 119.) 

The Court concludes that George’s statement in the BOLI report is inadmissible hearsay 

and may not be admitted as evidence at trial to prove its truth. However, depending on George’s 

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DEFENDANTS’ EXHIBIT 203
testimony at trial, her statement may be used for impeachment, subject to the limitations set forth 

below. 

A. Hearsay within Hearsay

Plaintiff does not dispute the trustworthiness of the BOLI report, and it therefore qualifies 

as a public record under Federal Rule of Evidence 803(8). See Chandler v. Roudebush, 425 U.S. 

840, 863 n.39 (1976). However, the report recounts assertions made by George during George’s 

initial interview, which are, themselves, potentially excludable hearsay. Specifically, Defendants 

seek to introduce the following statement in the report attributed to George: “[C]omplainant 

stated that she did not really believe [Defendants] discriminated against her because of her race.” 

(ECF No. 123, Att. 1 at GEORGE 000102.) 

There is no evidence in the record that George submitted to the BOLI interview under 

penalty of perjury, so the statement in the report does not qualify as a prior statement by a 

witness, even if Rule 801(d)(1)(A)’s other conditions are met at trial. Additionally, while the 

report writer attributes the statement to George, George did not sign the report or otherwise adopt 

it, so the statement does not qualify as one by a party opponent under Rule 801(d)(2)(A). See 

U.S. v. Felix-Jerez, 667 F.2d 1297, 1299 (9th Cir. 1982). Defendants do not argue that the 

statement qualifies for any other hearsay exception. (ECF No. 123.) Therefore, at this point in 

the proceedings, George’s statement in the BOLI report is inadmissible hearsay.

B. Impeachment

Defendants assert that they will use the statement only for impeachment purposes, and 

not to prove the truth of its content, making it nonhearsay under Rule 801(c)(2). (ECF No. 123 at 

2-3.) An otherwise inadmissible statement may be used for impeachment under appropriate 

circumstances and with a limiting instruction admonishing the jury to consider it for 

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DEFENDANTS’ EXHIBIT 203
impeachment only. See U.S. v. Tafollo-Cardenas, 897 F.2d 976, 980 (9th Cir. 1990). Whether 

such an impeachment opportunity will arise will depend upon George’s testimony at trial. 

Defendants contend that the statement at issue “directly conflicts with the entire basis for 

the instant lawsuit.” (ECF No. 123 at 3.) That is an overstatement. First, according to the BOLI 

report, George did identify an example of what she perceived to be a racially discriminatory 

remark by Defendant Bancroft: 

Complainant [George] based her allegations of race [discrimination] on a 

comment made by Respondent Patricia Barcroft, Director of House of Hope 

Recovery when Complainant was interviewed for housing. The comment itself is 

disputed; Complainant’s version is that Respondent Barcroft asked her how she 

felt about “white people.” . . .

Complainant admits that this is the only statement she felt was racially 

discriminatory; . . . , during the Complainant[’s] initial interview, [C]omplainant 

stated that she did not really believe Respondent discriminated against her 

because of her race. 

(ECF No. 123, Att. 1 at GEORGE 000101.) Second, because the BOLI report does not provide a 

transcript of the interview, the full context of George’s statement is unknown. What is known is 

that BOLI conducted this interview while investigating George’s discrimination complaint. (See 

id. (“Complainant alleges that she was unlawfully discriminated against because: a. her race 

being African American and B. her religion, being a Jehovah witness.”)) Even accepting the 

accuracy of the statement, when taken out of its full context its probative value may be easily 

outweighed by the risk of unfair prejudice. See Fed. R. Evid. 403. For these reasons, the Court 

will not permit Defendants to use this statement to impeach George’s testimony generally. 

If George testifies at trial and makes a statement that directly contradicts what she told 

the BOLI report writer (i.e., if George volunteers on direct examination her subjective beliefs 

about whether Ms. Barcroft discriminated against her based on race), then Defendants may use

George’s statement to the BOLI report writer to impeach that testimony. See Fed. R. Evid. 607; 

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DEFENDANTS’ EXHIBIT 203
see also U.S. v. Castillo, 181 F.3d 1129, 1132 (9th Cir. 1999) (explaining impeachment by 

contradiction as distinct from Rule 608’s general prohibition against extrinsic evidence).

Defendants may not elicit such testimony from George for the first time on cross-examination for 

the purpose of setting up the impeachment opportunity. See id. at 1133-34; U.S. v. KincaidChauncey, 556 F.3d 923, 932 (9th Cir. 2009). 

C. Unfair Prejudice

To avoid any confusion, this Court fully concurs with Judge Simon’s earlier ruling 

excluding BOLI’s conclusion that there was no substantial evidence of racial discrimination. 

(ECF No. 56.) As Judge Simon noted, “[t]he jury is less likely impartially to consider the 

evidence and reach its own conclusions when it knows that an independent state agency has 

already reviewed the evidence and decided the ultimate factual issues in this case.” (Id. at 3.) 

Because of the potentially prejudicial nature of the report’s conclusion, any use of 

individual statements within the report must be done with care. Therefore, if the Court allows

Defendants to use George’s statement for impeachment, they may do only subject to the 

following limitations:

1. The report will not be published to the jury, and will not be admitted into evidence. It will 

be marked as an impeachment exhibit, and may only be shown to the testifying witness 

during the course of impeachment; 

2. Under no circumstances may Defendants reveal the report’s conclusion to the jury. In 

laying a foundation for any testimony related to this report, the jury may hear evidence 

that BOLI conducted an investigation, that George participated in that investigation, and 

that BOLI created a report of its findings, but no testimony regarding BOLI’s conclusion 

will be permitted; and

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DEFENDANTS’ EXHIBIT 203
3. If Defendants use the report’s excerpt for impeachment, the Court will give a limiting 

instruction to inform the jury that they shall not consider the statement for its truth, if 

George so requests. 

IT IS SO ORDERED.

DATED this 29th day of March, 2018.

 

STACIE F. BECKERMAN

United States Magistrate Judge

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DEFENDANTS’ EXHIBIT 203