## Facts

- Willard Keene sued his former employer, Sears, Roebuck & Co., Inc., alleging wrongful termination.
- Sears maintained it terminated Keene because he improperly gave customers discounts before the official start of a sale.
- Keene disputed that he engaged in the asserted misconduct.
- In advance of trial, Keene proposed calling third-party witnesses to testify—by reputation and/or opinion—that he had good character and a good work reputation.
- Sears moved in limine to exclude the proposed character/reputation testimony.

## Issues

1. Whether, in a civil wrongful-termination case, a plaintiff may introduce reputation or opinion testimony about his good character to prove he did not commit the specific workplace misconduct offered as the employer’s reason for discharge.
2. Whether Federal Rules of Evidence 404(a) and 405 bar the proposed reputation/opinion testimony because it is offered for propensity and because character is not an essential element of the claims or defenses.
3. Whether, even if marginally relevant, the evidence should be excluded under Federal Rule of Evidence 403.

## Decision

- The court granted Sears’s motion in limine.
- The court excluded Keene’s proposed reputation/character testimony offered to show he was unlikely to have engaged in the alleged discounting misconduct.
- The court reasoned that the evidence was improper propensity evidence in a civil case and, in any event, warranted exclusion under Rule 403 balancing.

## Legal Principles

- Federal Rule of Evidence 404(a) generally prohibits using character evidence to prove that a person acted in accordance with that character trait on a particular occasion; the usual exceptions for accused persons in criminal cases do not apply in ordinary civil litigation.
- Under Federal Rule of Evidence 405, reputation or opinion evidence is permissible only when character evidence is otherwise admissible; specific instances of conduct are generally limited to situations where character is an essential element of a claim or defense.
- In a wrongful-termination dispute focused on whether an employee committed a specific act of workplace misconduct, a party’s general “good character” or “good work reputation” is typically not an essential element of the cause of action or defense, and reputation/opinion testimony offered to show the employee “would not have done it” is treated as impermissible propensity proof.
- Federal Rule of Evidence 403 allows exclusion of relevant evidence if its probative value is substantially outweighed by dangers such as unfair prejudice, confusion of the issues, misleading the jury, undue delay, or cumulative proof; broad character-reputation proof may invite mini-trials and distract from the concrete facts surrounding the termination decision.

## Conclusion

Keene could not use third-party reputation or opinion testimony about his good character to prove he did not commit the discounting misconduct Sears identified as the reason for his discharge; the court excluded the evidence under Rules 404 and 405 and, alternatively, under Rule 403.


Keene v. Sears, Roebuck & Co., Inc., 2007 U.S. Dist. LEXIS 65103 (2007)