Kenneth McKenzie, appellant/plaintiff below (hereinafter “Mr. McKenzie”), appeals from an order of the Circuit Court of Mineral County that denied his motion for a new trial. This case involved various claims of employment discrimination by Mr. McKenzie against his former employer, Carroll International Corporation (hereinafter “Carroll”), appellee/defendant below. The case was tried before a jury, and a verdict was returned in favor of Carroll. Here, Mr. McKenzie has made the following assignments of error: (1) prohibiting evidence of discrimination against other employees, (2) denial of motion in limine, (3) refusal to admit physical therapy records, (4) admission of hearsay statements by Byron Read, (5) refusal to admit letter by Byron Read, (6) admission of hearsay statements by Robert Grapes, and (7) other errors. After a careful review of the briefs and record, we reverse and remand this case for a new trial.
I.
FACTUAL AND PROCEDURAL HISTORY
Mr. McKenzie was hired by Carroll in 1982
1
as a welder.
2
At the time of hiring, Mr. McKenzie was 42 years old. Mr. McKenzie voluntarily quit his job after a few months of employment. He was rehired by
In August of 1996, Mr. McKenzie and eight other employees were laid off by Carroll. 3 As a result of being laid off, Mr. McKenzie filed a grievance with the employee union. In the grievance, Mr. McKenzie contended that he should not have been laid off because of his seniority rights. However, Mr. McKenzie was informed that the union contract did not include a seniority provision. Mr. McKenzie thereafter abandoned the union grievance. He then filed a discrimination claim with the West Virginia Human Rights Commission. The Commission conducted an initial investigation, and, after determining that there was insufficient evidence of discrimination, issued a “no probable cause” order.
In March of 1998, Mr. McKenzie filed the instant action against Carroll. Mr. McKenzie alleged in his complaint that Carroll laid him off because of his age and that Carroll failed to recall him because of his age, his perceived disability and because he filed a workers’ compensation claim. 4 The case was tried before a jury in August of 2002. After a four-day trial, the jury returned a verdict in favor of Carroll. Subsequent to the denial of his post-trial motions, Mr. McKenzie filed this appeal.
II.
STANDARD OF REVIEW
This ease appeal stems from an order of the circuit court denying Mr. McKenzie’s motion for a new trial. As a general matter, we have held that “[ajlthough the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court’s ruling will be reversed on appeal when it is clear that the trial court has. acted under some misapprehension of the law or the evidence.” Syl. pt. 4.
Sanders v. Georgia-Pacific Corp.,
III.
DISCUSSION
A. Prohibiting Evidence of Discrimination Against Other Employees
The first issue raised by Mr. McKenzie is that the trial court committed error by prohibiting him from calling witnesses who would provide evidence that they were victims of age discrimination by Carroll.
5
Mr. McKenzie sought to introduce evidence of other alleged acts of age discrimination by Carroll under Rule 404(b) of the West Virginia Rules of Evidence.
6
The issue arose in
Our cases have pointed out, and we so hold, that a trial court’s ruling on a motion in limine is reviewed on appeal for an abuse of discretion.
See Barlow v. Hester Indus., Inc.,
Carroll contends that the trial court’s ruling was correct and that Mr. McKenzie was not precluded from presenting other evidence of alleged age discrimination. Carroll represents that, during the trial, Mr. McKenzie presented evidence of layoff reports, statistics and witness testimony regarding the names, ages and dates of layoff and recall for other employees. Carroll has also cited to federal cases that prohibited plaintiffs in age discrimination cases from calling witnesses to testify about -their own age discrimination experiences. Specifically, Carroll relies upon the decision in
Moorhouse v. Boeing Co.,
Had the Court permitted each of the proposed witnesses to testify about the circumstances surrounding his own lay off, each, in essence, would have presented a prima facie case of age discrimination. Defendants then would have been placed in the position of either presenting the justification for each witnesses’ lay off, or of allowing the testimony to stand unrebut-ted. This latter alternative, of course, would have had an obvious prejudicial impact on the jury’s consideration of [plaintiffs] case.
Moorhouse,
Mr. McKenzie has suggested that not all federal courts prohibit nonlitigant employees from testifying about age discrimination they experienced at the hands of their employers. Federal courts that admit such testimony do so on the grounds that “[t]he testimony of employees, other than plaintiff, is relevant in assessing the employer’s discriminatory intent if the employees’ testimony can logically or reasonably be tied to the adverse employment action taken against the plaintiff.”
Minshall v. McGraw Hill Broad. Co., Inc.,
Moreover, the federal courts that admit such evidence have held that “[t]he probative value of [evidence of] the employer’s [discrimination] of other ... employees is especially high ‘because of the inherent difficulty of proving state of mind.’ ”
Heyne v. Caruso,
Turning to the case at hand, we agree with Carroll that Mr. McKenzie was able to present raw data that suggested older employees were treated differently than younger employees. However, we do not believe that raw data should be the exclusive means by which a plaintiff may attempt to establish age discrimination. Thus, we agree with those federal courts that have found that raw data may be supplemented with testimony by employees or former employees who believe they were victims of employment discrimination.
7
Therefore, we hold that in an action brought for employment discrimination, a plaintiff may call witnesses to testify specifically about any incident of employment discrimination that the witnesses believe the defendant perpetrated against them, so long as the testimony is relevant to the type of employment discrimination that the plaintiff has alleged. “There are, however, limita
tions
B. Denial of Motion in Limine
Prior to trial, Mr. McKenzie filed a motion in limine to prevent Carroll from introducing evidence that the Human Rights Commission (hereinafter referred to as “the Commission”) issued a “no probable cause” finding in the administrative proceeding. However, Mr. McKenzie wanted to be able to introduce evidence of other matters from the record obtained during the proceeding before the Commission. The trial court resolved the motion by holding that, if Mr. McKenzie presented any evidence concerning the claim filed with the Commission, Carroll would be permitted to introduce evidence of the “no probable cause” finding.
We have previously indicated that “[r]ulings on motions in limine lie within the trial court’s discretion.”
State v. Dillon,
Mr. McKenzie argues that his motion in limine should have been granted without conditioning it upon his use of other evidence involving the claim filed with the Commission. Stated more concisely, Mr. McKenzie is asking this Court to hold that a “no probable cause” finding by the Commission cannot be introduced into evidence. This appears to be an issue of first impression for this Court.
The United States Supreme Court has noted in passing that “[p]rior administrative findings made with respect to an employment discrimination claim may ... be admitted as evidence!.]”
Chandler v. Roudebush,
Other federal courts take the position that “the admissibility decision is to be made by the trial court in the exercise of its discretion.”
Abrams v. Lightolier, Inc.,
We believe the position adopted by the Bayfield line of cases have the better approach to this issue. Consequently, we hold that in an action alleging unlawful discrimination under the West Virginia Human Rights Act, a trial court may, in its discretion, admit evidence from the record of a prior administrative proceeding held before the West Virginia Human Rights Commission. In making the admissibility determination, a trial court should consider whether the evidence sought to be introduced (1) contains legal conclusions in addition to its factual content; (2) raises questions of trustworthiness under W. Va. R. Evid. 803(8)(C); (3) presents problems cognizable under W. Va. R. Evid. 403; and (4) any other relevant factor.
In the instant case, Mr. McKenzie sought to preclude Carroll from introducing evidence of the “no probable cause” determination made by the Commission. In the exercise of its discretion, the trial court found that Carroll was barred from introducing such information, but only if Mr. McKenzie did not present evidence of any other information contained in the Commission’s records. We cannot say that the trial court abused its discretion in the manner in which it resolved the motion in limine. We agree with Carroll that Mr. McKenzie sought to leave the door open for him to selectively inform the jury about matters contained in the Commission’s records, while simultaneously preventing the jury from learning of matters that Carroll felt were relevant.
See In re Burks,
C. Refusal to Admit Physical Therapy Records
During the trial, Mr. McKenzie sought to introduce statements that he made to his physical therapist which were contained in his physical therapy records. The statements indicated that he wanted to return to work while undergoing physical therapy. The trial court refused to admit the evidence on the grounds that the physical therapy records were not medical records. Mr. McKenzie argues that the records were admissible under Rule 803(4) of the West Virginia Rules of Evidence. 11
We have held that “[a] trial court’s eviden-tiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard.” Syl. pt. 4,
State v. Rodoussakis,
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(4) Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis of treatment.
Statements, to qualify under the rule, need not be made specifically to a physician. The statement may be directed to such personnel as nurses, technicians, or even family members as long as the purpose of the statement is for diagnosis or treatment. It is the motive to promote diagnosis and treatment, and not the fact as to whom the statements were made, that gives such statements their indicia of trustworthiness.
Franklin D. Cleckley, Vol. 2,
Handbook on Evidence for West Virginia Lawyers,
§ 8-3(B)(4), at 8-129 (2000). The prior decisions of this Court have acknowledged that Rule 803(4) is not confined to statements made only to physicians.
See State v. Pettrey,
This Court held in
State v. Edward Charles L.,
The two-part test set for admitting hearsay statements pursuant to W. Va.R.Evid. 803(4) is (1) the declarant’s motive in making the statements must be consistent with the purposes of promoting [diagnosis or] treatment, and (2) the content of the statement must be such as is reasonably relied upon by [health care providers] in treatment or diagnosis.
Syl. pt. 5,
Edward Charles L.,
Clearly, Mr. McKenzie was undergoing physical therapy to rehabilitate the work-related injury to his hand. During the course of that treatment, Mr. McKenzie made several statements that were recorded by his physical therapist. Those statements indicated that Mr. McKenzie wanted to return to work, but that Carroll would not permit him to do so until he was 100% rehabilitated. We believe that the statements made by Mr. McKenzie to his physical therapist satisfy the
Edward Charles L.
factors, and should not have been excluded on the grounds that they did not come within the medical records exception of Rule 803(4).
See Puckett v. Porsche Cars of North America, Inc.,
D. Admission of Hearsay Statements by Byron Read
Mr. McKenzie finally contends that the trial court committed error in allowing the introduction of statements by Byron Read, a deceased former plant manager for Carroll. The statements were handwritten notes by Mr. Read that were contained in “job cost” records that were generated during the period 1999 to 2000.
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These handwritten notes reflect that Mr. McKenzie performed his job slower than other employees. The principal argument by Mr. McKenzie is that those notes were generated after the litigation began and were therefore improper
We have previously held that “[t]he action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.” Syl. pt. 10,
State v. Huffman,
Carroll argues on appeal that the handwritten notes were admissible as a business record under Rule 803(6) of the West Virginia Rules of Evidence.
14
This Court addressed the application of Rule 803(6) in Syllabus point 7 of
Lacy v. CSX Transportation, Inc.,
Before evidence may be admitted under W. Va. R. Evid. 803(6), the proponent must demonstrate that such evidence is (1) a memorandum, report, record, or data compilation, in any form; (2) concerning acts, events, conditions, opinions or diagnoses; (3) made at or near the time of the matters set forth; (4) by, or from information transmitted by, a person with knowledge of those matters; (5) that the record was kept in the course of a regularly conducted activity; and (6) that it was made by the regularly conducted activity as a regular practice.
We also held in Syllabus point 12 of
Lacy,
that “[a] record of a regularly conducted activity that otherwise meets the foundational requirements
of
W. Va. R. Evid. 803(6) is presumptively trustworthy, and the burden to -prove that the proffered evidence was generated under untrustworthy circumstances rests upon the party opposing its admission.”
The facts developed at trial in this case clearly establish that the handwritten notes of Mr. Read fall squarely under Rule 803(6) as a record of a regularly conducted business activity. Carroll presented evidence that Mr. Read routinely wrote comments about the performance of employees on the “job cost” records. Consequently, we find no error in the admission of the notes by Mr. Read that were contained in the “job cost” records. 15
IV.
CONCLUSION
The circuit court’s order denying Mr. McKenzie’s motion for a new trial is reversed. This case is remanded for a new trial consistent with this opinion.
Reversed and Remanded.
Notes
. Mr. McKenzie was actually hired by a company called Gaylord East. The company was bought by Carroll in 1991.
. Carroll manufactures various types of industrial kitchen and restaurant equipment.
. Except for Mr. McKenzie and another worker, the other employees who were laid off were under the age of forty.
. During the pendency of the lawsuit, Mr. McKenzie was recalled to work in December of 1998. However, over the course of the next two years, Mr. McKenzie was laid off twice because of work shortages. In May of 2000, Mr. McKenzie was fired because of insubordinate conduct: he had called the plant manager a liar in front of other employees.
. Mr. McKenzie's brief lists six witnesses that were precluded from giving age discrimination testimony.
. Rule 404(b) provides, in part, that
“[e]vidence of other ... wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]”
. Obviously we do not believe that a plaintiff should be allowed to parade dozens of witnesses to testify about their alleged discrimination experiences with an employer, but a single digit number of witnesses, as in this case, is not too burdensome or repetitious.
. The extent to which the witnesses were prepared to testify is not clear to this Court. However, the witnesses should only be permitted to testily about age discrimination as it relates to them personally-not other employees.
. Federal Rule 803(8)(C) provides, in pertinent part:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(8) Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
Rule 803(8)(C) of the West Virginia Rules of Evidence is identical to its federal counterpart.
. Rule 403 of the Federal Rules of Evidence provides:
Although 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.
Rule 403 of the West Virginia Rules of Evidence is identical to its federal counterpart.
. Mr. McKenzie also argues that the records were admissible under Rule 803(6) and Rule 801(d)(1)(B). We need not consider these alternative grounds.
. Carroll has presented other grounds in this appeal as to why the statements should not have been admitted. We, however, are only concerned with the grounds chosen by the circuit court at the time of its ruling. Should this issue arise in a second trial, neither party is precluded from arguing other grounds for admitting or excluding the statements.
. The "job cost” records were computer printouts that reflected how long it took each employee to perform a task.
. Ride 803(6) provides as follows:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
. Mr. McKenzie additionally assigned error to issues regarding (1) the refusal'to admit a letter by Byron Read, (2) the admission of hearsay statements by Robert Grapes, and (3) several issues raised as other errors. "We do not find merit in those issues and therefore we summarily reject them.”
State ex rel. Caton v. Sanders,