Microsoft, a company engaged in the development and sale of computer software, publishes a journal entitled Microsoft Systems Journal (the “Journal”). From March 14, 1988, until her employment was terminated effective January 19, 1990, Strauss was employed as an assistant editor of the Journal.

Subsequent to her termination, by letter dated January 23, 1990, counsel for Microsoft described to Strauss the procedures by which she could remove her personal belongings from her office and return those items that belonged to Microsoft. Specifically, the January 23, 1990 letter indicated that Strauss was to return all computer hardware, books and software that she received as an employee of Microsoft, as opposed to books and software received as personal gifts. She was not required, however, to return periodicals.[2]

On January 25, 1990, Strauss removed her possessions from Microsoft's offices. Denise Putnam (“Putnam”), a Microsoft employee, remained with Strauss and made a written record of what she packed into boxes for removal. Eric Maffei (“Maffei”), an editor of the Journal, also remained in the office for part of the time that Strauss packed her belongings. Strauss contends that neither Putnam nor Maffei complained that she was removing Microsoft property from the office.

By letter dated February 8, 1990, however, counsel for Microsoft wrote to Strauss's attorneys setting forth a list of 126 items that Strauss allegedly had taken from her office. The February 8, 1990 letter indicated that Strauss had removed some of the 126 items “with total disregard for our agreement that only personal items (as opposed to books and software received in your client's job capacity) would be removed.” See letter from Peter L. Miller to Julian R. Birnbaum of 2/8/90, annexed to Def.'s Resp. to Pl.'s Mot. In Limine to Preclude Evidence In Supp. of Microsoft's Counterclaim as Exh. “A.”

Subsequently, in September 1991, Strauss commenced the present action for sex discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), and the New York State Human Rights Law, N.Y.Exec.Law § 296 et seq. On October 24, 1991, Microsoft filed an answer and counterclaim asserting that Strauss had converted Microsoft's property.

*2 Strauss now moves for an order precluding Microsoft from offering any evidence in support of its counterclaim at trial. Specifically, Strauss argues that, as Microsoft has failed to disclose sufficient evidence in the Amended Joint Pretrial Order (the “JPO”) to establish any of the necessary elements of conversion, it should be precluded from offering evidence in support of its claim at trial. The Court disagrees.

Conversion is defined as “ ‘any unauthorized exercise of dominion or control over property by one who is not the owner of the property which interferes with and is in defiance of a superior possessory right of another in the property.’ ” Jim Henson Prods., Inc. v. John T. Brady & Assocs., 867 F.Supp. 175, 191 (S.D.N.Y.1994) (quoting Meese v. Miller, 79 A.D.2d 237, 436 N.Y.S.2d 496, 500 (1981)). While Microsoft ultimately may not be able to prove all of the elements of its conversion counterclaim at trial, the Court concludes that it has set forth sufficient evidence in the JPO to warrant permitting its claim to go forward. Specifically, Microsoft listed its conversion counterclaim as a claim for relief in the JPO. See JPO at ¶ IV(b). In addition, the parties stipulated that, on January 25, 1990, Strauss came to the Journal's office to remove her personal property. On February 8, 1990, Microsoft wrote to Strauss's counsel demanding the return of listed items that Strauss had removed from the offices. Id. at ¶¶ V(24) and (25).[3]Microsoft also indicated in the JPO that the evidence will show that the property identified in the February 8, 1990 letter belongs to it. Id. at ¶ 22(a).

Strauss complains that Microsoft has not designated which items listed in the February 8, 1990 letter belong to Microsoft rather than to Strauss. Based on the information contained in the JPO, however, the Court concludes that ownership of each of the listed items is a disputed issue of fact for the jury to determine at trial. Accordingly, plaintiff's motion in limine seeking to preclude evidence in support of Microsoft's counterclaim is denied.

Prior to commencing this action, plaintiff brought her charges before the EEOC for investigation. On January 12, 1991, the EEOC issued a written determination, concluding that the evidence failed to substantiate Strauss's claim that Microsoft violated Title VII. See EEOC Determination, annexed to the Def.'s Mem. in Supp. of its Mot. In Limine Regarding the Admissibility of Certain Evidence and the Determination of any Damages as Exh. “A.” Specifically, with respect to Strauss's claim that Microsoft discriminated against her by failing to promote her to the position of technical editor of the Journal, the EEOC concluded that the successful candidate for the position of technical editor was more qualified than Strauss. Id. With regard to the issue of retaliatory discharge, the EEOC determined that Microsoft made several attempts to resolve the dispute with Strauss informally, but that matters “eventually escalated to the point where she could no longer work for [Microsoft].” Id.

*3 Microsoft now moves for an order deeming the EEOC determination admissible at trial. Strauss opposes this motion, contending that the evidence is inadmissible under Federal Rule of Evidence 403. The Court concludes that the EEOC determination is admissible evidence.

The Supreme Court has held that prior administrative findings made with respect to an employment discrimination claim are admissible under the exception to the hearsay rule pertaining to public records and investigatory files. Chandler v. Roudebush, 425 U.S. 840, 863 n. 39 (1976); Fed.R.Evid. 803(8)(C). Specifically, Rule 803(8)(C) applies “unless the sources of information or other circumstances indicate lack of trustworthiness.” Fed.R.Evid. 803(8)(C). As Strauss offers no evidence that the EEOC determination is untrustworthy, the Court finds that the EEOC finding is admissible under Rule 803(8)(C).

Once an administrative finding passes muster under Rule 803, the Court next must determine whether the probative value of admitting such evidence 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 the needless presentation of cumulative evidence. See Fed.R.Evid. 403.

Engaging in the appropriate balancing test under Rule 403, the Court concludes that the probative value of the EEOC determination in the instant case is not outweighed by the danger of unfair prejudice or any other relevant consideration. The Court recognizes that an EEOC finding is not binding either on the Court or the jury, “and is to be given no more weight than any other testimony given at trial.” Smith v. Universal Servs., Inc., 454 F.2d 154, 157 (5th Cir.1972). Nonetheless,

Id.; see also Barfield v. Orange County, 911 F.2d 644, 649 (11th Cir.1990) (upholding trial judge's determination that the danger of unfair prejudice was too small to overcome the highly probative nature of an EEOC determination), cert. denied, 500 U.S. 954 (1991); Plummer v. Western Int'l Hotels Co., 656 F.2d 502, 505 (9th Cir.1981) (“An EEOC determination, prepared by professional investigators on behalf of an impartial agency, has been held to be a highly probative evaluation of an individual's discrimination complaint.”) (permitting introduction of EEOC determination in jury trial); Abrams v. Lightolier, Inc., 702 F.Supp. 509, 512 (D.N.J.1988) (concluding that the probative nature of an EEOC determination generally outweighs its prejudicial effect). To hold otherwise would render the EEOC investigation process meaningless. Accordingly, the Court finds that the EEOC determination is admissible at trial.

*4 To guard against potential prejudice, however, the Court shall provide the jury with a limiting instruction at the appropriate time. See Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1500–01 (9th Cir.1986) (finding no reversible error in admission of EEOC age discrimination letter of violation where judge instructed jury of its obligation to evaluate the evidence independently); Abrams v. Lightolier, Inc., 702 F.Supp. at 512 (utilizing jury instruction to ensure that the jury did not deem the EEOC determination dispositive). In addition, Strauss remains free to present evidence refuting the findings of the EEOC and pointing out any deficiencies contained in its determination. See McClure v. Mexia Indep. Sch. Dist., 750 F.2d 396, 400 (5th Cir.1985) (citing Plummer v. Western Int'l Hotels Co., 656 F.2d at 505 n. 9). Under these conditions, the Court concludes that admission of the EEOC determination at trial does not violate Rule 403.

Microsoft next moves to preclude plaintiff from offering certain remarks and e-mail messages at trial. Specifically, Microsoft seeks to preclude evidence that (1) Jon Lazarus (“Lazarus”), the Journal's editor, referred to another woman in the office as the “Spandex Queen;” (2) Lazarus told a temporary receptionist that he would give her $500 if she would permit him to call her “Sweet Georgia Brown;” (3) Lazarus referred to himself as the “president of the Amateur Gynecology Club;” (4) plaintiff received an e-mail message containing a satirical essay entitled “Alice in UNIX Land;” (5) Lazarus forwarded to the Journal staff an e-mail advertisement containing a product announcement for replacement “Mouse Balls;” (6) Lazarus forwarded to a male Journal staff member an e-mail message containing a Reuter's news report on Finland's proposal to institute a sex holiday; (7) Lazarus forwarded a parody of a play entitled “A Girl's Guide to Condoms” to a male staff member via e-mail, who later forwarded it to plaintiff. According to Microsoft, this evidence is inadmissible under Federal Rules of Evidence 401, 402 and 403 because it is irrelevant, unfairly prejudicial to Microsoft and would confuse and mislead the jury. The Court finds this argument meritless.

Rule 401 of the Federal Rules of Evidence provides that evidence is relevant if it makes “the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. As the Court concluded in its prior opinions denying summary judgment, evidence of Lazarus's inappropriate office comments and e-mail messages, when viewed in light of Strauss's other evidence of pretext, could lead a reasonable jury to conclude that Microsoft's proffered reason for failing to promote Strauss is not the true reason for its actions. See Strauss v. Microsoft Corp., 856 F.Supp. 821, 825 (S.D.N.Y.1994); Strauss v. Microsoft Corp., 814 F.Supp. 1186, 1194 (S.D.N.Y.1993). Accordingly, while Lazarus's remarks and e-mail messages do not inevitably prove that gender played a part in his employment decisions, such evidence certainly is relevant under Rule 401. See Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130, 1133 (4th Cir.1988) (“Use of racial aspersions obviously provides an indication that the speaker might be more likely to take race into account in making a hiring or membership decision. The probative value of this evidence is apparent from the nature of the words involved.”); Conway v. Electro Switch Corp., 825 F.2d 593, 597 (1st Cir.1987) (upholding admission of circumstantial evidence of discriminatory atmosphere at plaintiff's place of employment); Marfia v. T.C. Ziraat Bankasi, 874 F.Supp. 560, 564 (S.D.N.Y.1994) (“Statements manifesting discriminatory attitudes on the part of employers surely are relevant to a claim of discrimination.”); Stewart v. Peat, Marwick, Mitchell & Co., 52 Fair Empl.Prac.Cas. (BNA) 445, 86 Civ. 0613, 1989 U.S. Dist. LEXIS 3304, at *22 (S.D.N.Y. Apr. 4, 1989) (“A statement by an employer showing his animus toward members of a particular race is a common way of proving that race made a difference in the employer's employment decision.”).

*5 Microsoft argues that, even if this evidence is relevant, it should be excluded pursuant to Rule 403 because its probative value is outweighed by the danger of unfair prejudice. Specifically, Microsoft characterizes Lazarus's remarks and e-mail messages as attempts at humor and argues that the evidence is inadmissible because it is not directly connected to Microsoft's promotion and termination decisions.[4] The Court finds, however, that the evidence is probative despite the fact that the statements did not relate directly to either of the specific decisions at issue. Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d at 1134. Furthermore, while testimony concerning the remarks and e-mail messages may be embarrassing or offensive, such prejudice is directly associated with the probative value of the evidence. As the evidence thus does not “unfairly” prejudice Microsoft, it is admissible under Rule 403. See George v. Celotex Corp., 914 F.2d 26, 31 (2d Cir.1990) (finding no “unfair” prejudice where prejudice derived from evidence's probative value); Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d at 1135 (“[T]he Federal Rules favor placing even the nastier side of human nature before the jury if to do so would aid its search for truth.”); Wilson v. City of Aliceville, 779 F.2d 631, 635 (11th Cir.1986) (stating that “what is prejudicial to the defendant is beneficial to the plaintiff”). Accordingly, Microsoft's motion to preclude evidence of Lazarus's office behavior is denied.

Microsoft next contends that the Court should determine as a matter of law the appropriate cut-off date for purposes of calculating back pay. Specifically, Microsoft seeks an order denying an award of back pay for any period after February 1991. As material factual issues exist concerning Strauss's employment history after her termination from Microsoft, however, defendant's motion is denied.

The parties do not dispute that Strauss was discharged from Microsoft effective January 19, 1990. Microsoft contends that, in May 1990, plaintiff commenced employment at Technology Solutions as an account executive providing public relations services to a software company. Subsequently, in October 1990, Strauss was fired from that position, allegedly because her account was “impossible to work for.” See Deposition of Karen Strauss, undated, annexed to the Mem. in Opp'n to Def.'s Mot. In Limine as Exh. “B,” at 290. In February 1991, Strauss began working at the H.W. Wilson Company, but was soon fired because of her absence due to an ankle injury. In October 1991, Strauss commenced employment at New York University.

Microsoft argues that Strauss should not be awarded back pay for any period after she was discharged from Technology Solutions. It is well-settled that “[a] Title VII plaintiff is entitled to backpay from the date of discharge until the date the plaintiff secures employment that is comparable to that from which she was unlawfully terminated, less interim earnings or amounts earnable with reasonable diligence.” Sims v. Mme. Paulette Dry Cleaners, 638 F.Supp. 224, 230 (S.D.N.Y.1986). Where a plaintiff has obtained equivalent employment elsewhere and quits without sufficient reason, “ ‘the backpay award must be offset by the amount the plaintiff would have earned had he kept the job.’ ” Id. at 229 (quoting Griffen v. George B. Buck Consulting Actuaries, Inc., 566 F.Supp. 881, 882 (S.D.N.Y.1983)). This rule also applies where the plaintiff engages in willful misconduct in order to be fired. See id.; see also Ford Motor Co. v. EEOC, 458 U.S. 219, 231 n. 15 (1982) (stating that deductions should be made “ ‘not only for actual earnings by the worker but also for losses which he willfully incurred’ ”) (quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197–98 (1941)); Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1277 (4th Cir.1985) (stating that a Title VII claimant must use reasonable diligence to maintain any suitable employment that is secured). Termination from subsequent employment does not toll the back pay period, however, when the claimant's conduct inducing discharge is motivated by unreasonable working conditions. See EEOC v. Delight Wholesale Co., 973 F.2d 664, 670 (8th Cir.1992).

*6 In order to establish whether the amount of Strauss's back pay award should be offset by the amount she would have earned had she kept her job at Technology Solutions, it is necessary to determine whether Strauss used reasonable diligence in attempting to maintain her employment there. As the reason for Strauss's discharge is disputed, the Court cannot determine the parameters of the back pay period as a matter of law.

Alternatively, Microsoft argues that Strauss's disability in February 1991 bars recovery of any back pay thereafter. In support of this proposition, Microsoft relies on Saulpaugh v. Monroe Community Hosp, 4 F.3d 134, 145 (2d Cir.1993), cert. denied, 510 U.S. 1164, 114 S.Ct. 1189 (1994). In Saulpaugh, the district court excluded lost wages incurred after January 1, 1988 from its damages calculations because of plaintiff's permanent disability after that date. Id. at 140. The Second Circuit affirmed, holding that, as plaintiff would not have been entitled to her salary while disabled, her losses after 1988 were not the result of the discrimination that she suffered. Id. at 145.

In the present case, however, Strauss's disability appears to have been temporary, as she obtained employment at New York University in October 1991. Moreover, it is disputed whether Strauss would have been entitled to her salary at Microsoft during the period of her disability. In light of these material issues of fact, a determination of the back pay period cannot be made at the present time.

For the reasons set forth above, plaintiff's motion for an order precluding evidence in support of defendant's counterclaim is denied. Defendant's motion for an order (1) permitting the admission of the EEOC determination at trial is granted; (2) deeming certain statements and e-mail messages proffered by plaintiff inadmissible is denied; and (3) determining the appropriate cut-off date for the calculation of back pay damages is denied. The parties are directed to submit supplemental proposed jury instructions and a proposed special verdict form addressing the damages issue on or before June 12, 1995. Trial shall commence on Monday, June 19, 1995, at 10:00 a.m.

SO ORDERED.

The factual background of this action is set forth fully in Strauss v. Microsoft Corp., 814 F.Supp. 1186 (S.D.N.Y.1993). Accordingly, only those facts bearing on the current motions shall be summarized herein.

Plaintiff has failed to provide the Court with a copy of the January 23, 1990 letter. The Court reminds the parties of their obligation to provide the Court with all relevant documents referred to in their motion papers.

The February 8, 1990 letter is listed as Plaintiff's Exhibit 150 in the JPO.

In support of this contention, Microsoft relies upon Haskell v. Kaman Corp., 743 F.2d 113, 120 (2d Cir.1984) and Chappell v. GTE Prods. Corp., 803 F.2d 261, 268 (6th Cir.1986), two cases which were expressly distinguished from the instant action in the Court's prior opinion. See Strauss v. Microsoft Corp., 814 F.Supp. at 1194 n. 9.