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Kloeckner v. Perez

United States District Court, E.D. Missouri, Eastern Division

September 30, 2014

THOMAS E. PEREZ, Secretary of Labor, Defendant.


E. RICHARD WEBBER, Senior District Judge.

This matter comes before the Court on "Plaintiff's Motion to Compel Defendant to Produce Unredacted Copy of OIG Complaint" [ECF No. 122], "Defendant's Motion in Limine" [ECF No. 127], "Plaintiff's Motions in Limine" [ECF No. 128], and "Plaintiff's Response and Objections to Defendant's Exhibit List" [ECF No. 130].


This case arises out of the alleged discrimination and termination of Plaintiff Carolyn M. Kloeckner, a former GS-13 Senior Investigator for the Saint Louis District Office (SLDO) of the Employee Benefits Security Administration (EBSA), United States Department of Labor (DOL). On May 1, 2008, Plaintiff timely filed suit in the United States District Court for the District of Columbia, alleging she was subject to a hostile work environment, subject to retaliation for statutorily protected activity, and discriminated against on the basis of her sex, age, [1] and disability [ECF No. 1].[2] Plaintiff's allegations largely center around three individuals: (1) Gary Newman, the Division Supervisor at the SLDO; (2) Steve Newman, the Associate Regional Director; and (3) Steve Eischen, the Regional Director for the Kansas City Regional Office (KCRO) as of June 2004.[3]

On May 15, 2009, the District Court for the District of Columbia granted Defendant's Motion to Transfer for Improper Venue [ECF No. 15], and on May 26, 2009, the case was transferred to this Court. In February 2010, this Court granted Defendant's Motion to Dismiss [ECF Nos. 31-32]. The Eighth Circuit affirmed on appeal, but the Supreme Court reversed, and the case was remanded to this Court. Although the Court referred the case to Alternative Dispute Resolution [ECF No. 76], the parties advised the Court mediation would be unproductive, and the Court vacated its previous order of referral [ECF No. 82].

In March 2014, Plaintiff filed her "Motion to Compel Discovery and Supporting Brief" [ECF No. 77]. The Motion included Plaintiff's request to be "provided a copy of an OIG complaint filed against her that... led to... the difference in treatment she experienced" [ECF No. 77 at 1-2]. Further, "Plaintiff agreed to redact the name of the complainant from the OIG Complaint to avoid any issue under" the law protecting the identity of OIG complainants [ECF No. 77 at 2]. After conducting an in camera review of the OIG complaint, this Court provided a "redacted copy of the complaint to the parties under seal" [ECF No. 82 at 1]. Neither Plaintiff's subsequent discovery requests [ECF No. 84] nor Second Motion to Compel [ECF No. 87] involved seeking the identity of the OIG complainant.

In June 2014, Defendant filed a Motion for Summary Judgment [ECF No. 94], which this Court granted in part and denied in part in August 2014 [ECF No. 109]. The Court granted summary judgment as to Plaintiff's disability discrimination claim and determined Plaintiff could not "go forward with her newly-alleged constructive discharge claim, " leaving intact Plaintiff's sex discrimination, hostile work environment, and retaliation claims [ECF No. 109 at 14, 26]. Subsequently, Plaintiff filed the following documents: another Motion to Compel (seeking an unredacted copy of the OIG complaint) [ECF No. 122], her Motion in Limine [ECF No. 128], and her "Response and Objection to Defendant's Exhibit List" [ECF No. 130]. Similarly, Defendant filed an "Opposition to Plaintiff's Motion to Compel" [ECF No. 126], a Motion in Limine [ECF No. 127], and a "Response to Plaintiff's Objections to Defendant's Exhibit List" [ECF No. 135].

The parties have submitted a Joint Stipulation of Uncontested Facts [ECF No. 115]. As pertinent to the parties' pending motions, the parties agree the following facts are uncontested. Plaintiff was an employee of the Department of Labor's Employee Benefits Security Administration (EBSA) from July 1989 until she was discharged by the Department on July 21, 2006. At the time of her discharge, Plaintiff was a GS-13 Senior Investigator. From June 13, 2004 through Plaintiff's termination, Steven Eischen was the Regional Director for the Kansas City Regional Office of the EBSA. From January 2002 through June 26, 2005, Steven Newman was the Associate Regional Director for the Kansas City Regional Office of the EBSA. From June 26, 2005, through April 2006, Mr. Newman was the Deputy Regional Director for the Kansas City Regional Office. At the time of Plaintiff's discharge, Mr. Newman was a GS-13 Senior Investigator in the St. Louis District Office. From 1996 through Plaintiff's termination, Gary Newman was the District Supervisor for the St. Louis District Office of the EBSA, which is part of the Kansas City Regional Office.

On May 6, 2005, Plaintiff filed an informal EEO charge of discrimination with the Department of Labor relating to the conduct of Steven Eischen, Steven Newman, and Gary Newman, who all learned about this charge filed against them. Plaintiff's last day in the EBSA office was May 18, 2005. On June 5, 2005, Plaintiff filed a formal charge of discrimination with the Department of Labor relating to the conduct of Eischen, Steven Newman, and Gary Newman. Plaintiff was first put on AWOL effective June 13, 2005. She continued to be on AWOL or Family Medical Leave though her discharge. Plaintiff had 17 years of satisfactory service with the EBSA and no prior discipline when she was terminated.

The parties stipulated documents maintained by the Department of Labor in the ordinary course of its business and/or produced during the course of this litigation by the Department are business records that may be introduced into evidence without the need to call a custodian of records from the Department. The parties reserved the right to make other objections to the Department's records during trial.

On September 26, 2014, the Court conducted a pretrial conference to hear argument of the parties' pretrial motions [ECF No. 138]. At the conclusion of the proceedings, the Court took the motions under submission. After review of the parties' motions, supporting exhibits and memoranda, and consideration of the parties' arguments, the Court rules as follows.


Plaintiff asks the Court "to order Defendant to provide Plaintiff with an unredacted copy of the OIG complaint at issue in this case for the reasons set forth in Plaintiff's Trial Brief (doc. 119)... which are incorporated by reference herein." In her Trial Brief [ECF No. 119], Plaintiff claims she did not object to redaction of the identity of the OIG complainant during the discovery phase just in case "there was insufficient evidence to proceed to trial." Plaintiff believes she already knows the identity of the complainant, and argues an unredacted copy of the complaint will aid her in calling "into question the fairness of the manager assigned to investigate the complaint."

In response [ECF No. 126], Defendant points out the motion was submitted over four months after the Court's deadline for discovery motions, and argues the motion is not in compliance with Local Rule 37 - 3.04. Further, Defendant mentions Plaintiff's previous agreement to the redaction of the complainant's identity and Plaintiff's failure to bring up the issue in her second motion to compel in May 2014. Defendant concludes the disclosure of the OIG complainant would "chill[] the OIG complaint process" and contends the redaction does not "prevent Plaintiff from pursuing her long-standing theory of who made the complaint and connecting it with her allegation[s][.]"

This Court's interest in protecting the anonymity of the OIG complainant outweighs whatever probative value Plaintiff believes would result from disclosure. This interest is reflected in the Court's previous decision to provide a redacted copy of the complaint [ See ECF No. 82]. Thus, the Court denies Plaintiff's Motion to Compel.


In this Motion, Defendant asks the Court for evidentiary rulings on the following sixteen matters.

1. Constructive Discharge References

Defendant asks to the Court to preclude any reference by Plaintiff "to, or inference of, any claims that she was forced to resign or quit' or felt compelled to quit or resign' and the like." Defendant anticipates Plaintiff will attempt to offer testimony regarding her previouslydismissed constructive discharge claim.

In response, Plaintiff claims she intends to show ("consistent" with her Complaint alleging "hostile work environment discrimination based on gender") "the hostile work environment resulted in a tangible, adverse employment action." Plaintiff seeks to "explain to the jury the facts and circumstances surrounding her departure" in May 2005. Believing the circumstances to be relevant to her remaining claims, Plaintiff intends to present the following evidence at trial: (1) the hostile work environment and its impact on her mental health caused her to leave her job; and (2) her managers created this environment to try to force her to quit.

To avoid confusion of the issues and unfair prejudice to Defendant [Fed. R. Evid. 403], the Court will exclude evidence offered by Plaintiff using the language "forced to quit" or "forced to resign, " as well as evidence characterizing her managers as conspiring to "force her to quit" or "force her to retire." Plaintiff may present evidence portraying her situation as one where the managers "made her life miserable" and conspired to do so.

2. References to "Sexual Harassment"

Defendant seeks to bar Plaintiff's use of the term "sexual harassment" and asks the Court to instruct Plaintiff to use the term "hostile work environment" "when talking of harassment based on sex." Defendant emphasizes the jury may be confused, "as they may not be able to differentiate between quid pro quo' sexual harassment and hostile work environment' harassment based on sex."

In response, Plaintiff acknowledges she is not claiming she was subjected to unwelcome verbal or physical sexual advances. Plaintiff emphasizes she has no plans to introduce evidence other than that presented in her summary judgment motion, adding she has no objection to the final jury instruction referring to the relevant claim as "gender harassment" or "gender hostile work environment."

To avoid confusion of the issues and unfair prejudice to Defendant [Fed. R. Evid. 403], Plaintiff must avoid presenting evidence that characterizes her treatment as "sexual harassment." At the pretrial conference, both parties agreed "hostile work environment based on gender" is a fair characterization of the particular claim at issue.

3. Punitive Damages References

Defendant seeks exclusion of any reference to or request for punitive damages by Plaintiff, requesting Plaintiff be "precluded from inferences such as sending a message to the government, ' aggravating circumstances, ' punish the defendant, ' warning to others, ' deter future conduct, ' etc." Plaintiff acknowledges there is no claim for punitive damages, "and she does not intend to request such relief at trial."

At pretrial conference, both parties agreed this point is now moot.

4. Evidence Relating to Medical Bills or Expenses

Defendant seeks to exclude "evidence relating to medical bills and expenses allegedly incurred by, or paid by or on behalf of, Plaintiff." Plaintiff states it does not intend to introduce evidence of medical bills or expenses.

At pretrial conference, both parties agreed this point is now moot.

5. Witness Testimony Regarding Identity of OIG Complainant

Defendant seeks to bar "testimony from various witnesses regarding the identity of" the OIG complainant. Defendant references its Response to Plaintiff's Motion to Compel on this issue. In response, Plaintiff incorporates by reference her arguments on this issue discussed in her Trial Brief and Motion to Compel. However, Plaintiff acknowledges she would not attempt to elicit the identity of the complainant through witnesses if the Court orders the identity to remain confidential.

Because the admissibility of this evidence will turn on the basis upon which such witnesses claim to know the identity of the OIG complainant, the Court is unwilling at this stage to make a definitive ruling. Accordingly, Plaintiff is not permitted to call any witness for such a purpose without first bringing it to the attention of the Court and allowing it to evaluate the purported foundation and rule on the admissibility of the testimony.

6. References to DUI Arrests

Defendant argues Plaintiff should be precluded from introducing evidence of Steve Newman's DUI arrests, evidence that Steve Newman admitted to having a "problem with alcohol, " and related inferences involving Steve Newman's drivers' license. Defendant contends such evidence is irrelevant to Plaintiff's claims and would be an improper character attack for purposes of a credibility determination.

Plaintiff argues Steve Newman's two prior DUI arrests and the admission of an alcohol problem "make it more likely that S. Newman consumed alcohol at inappropriate times (at work) as Plaintiff contends." Plaintiff contends this evidence is relevant to her alleged interactions with Steve Newman at work, as well as her theories about Steve Newman's affair with Laura Lammert.

Federal Rule of Evidence (FRE) 609 allows parties to attack a witness' character for truthfulness by introducing extrinsic evidence of convictions for certain crimes. Fed.R.Evid. 609 (emphasis added). No other specific instances of a witness' conduct, introduced for the purpose of attacking their character for truthfulness, may be proved through extrinsic evidence. Fed.R.Evid. 608(b). Rather, a party may ask a witness about such conduct on crossexamination, if it is probative of the witness' character for truthfulness. Id. However, "crossexamination about arrests without convictions is precluded[.]" U.S. v. Dennis, 625 F.2d 782, 798 (8th Cir. 1980).

Here, Steve Newman's arrests were not followed by convictions. Thus, if Steve Newman testifies, Plaintiff is barred from impeaching him through extrinsic evidence of his DUI arrests (or the other DUI-related evidence). See Fed.R.Evid. 608(b). Further, Plaintiff would be unable to impeach Steve Newman by asking him on cross-examination about his arrests, alleged alcoholism admission, or drivers' license issues, because: (1) questions about the arrest would be improper here under Dennis; and (2) the Court finds all three forms of the DUI evidence on which this objection is based are not probative of Newman's character for truthfulness or untruthfulness. See Fed.R.Evid. 608(b). This addresses Defendant's "character attack" and "credibility determination" concern.

Further, Plaintiff may not introduce evidence of this DUI-related evidence for any other purpose (e.g., pursing her theory Steve Newman consumed alcohol at work). Although such evidence is technically relevant to Plaintiff's theories, its probative value is substantially outweighed by the danger of unfairly ...

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