United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
final pretrial hearing held on December 13, 2017, I ruled
some of the pending motions, but took others under
submission. This order provides the final rulings on issues
discussed at the hearing.
Motion in Limine regarding Missouri Law
moved in limine for an order excluding “Improper
Evidence Mischaracterizing Tucker's Authority under
Missouri law.” [# 112]. At the hearing I directed
plaintiff to provide a proposed jury instruction regarding
this issue, and plaintiff has done so. Both parties have
filed additional briefs on the issue. Although I agree with
plaintiff that the applicable Missouri law provides that the
Circuit Judges must approve the Sheriff's appointment and
compensation of deputies, I do not agree that any of
plaintiff's proposals for handling these issues at trial
discussed in more detail in my ruling on the summary judgment
motions and in the Court of Appeals decision in this case,
factual disputes remain regarding whether Jenkins was
subjected to an adverse employment action as well as whether
Tucker was responsible for any adverse action. Plaintiff
contends that being given a choice between taking a full-time
job as a road deputy or a part-time job as a bailiff
constituted adverse employment action. Summary judgment was
not appropriate because there was evidence from which a jury
might conclude that this was an adverse employment action.
This is a factual dispute remaining for trial.
is also a factual dispute about whether Tucker caused this
alleged adverse employment action. This dispute arises
because, as I understand the expected evidence,
Tucker is expected to testify that his only role in this
alleged adverse employment action was to transfer
plaintiff's position from the Court budget to the
Sheriff's department budget. The Sheriff is expected to
testify that he was told by the County Commissioners to offer
this choice to plaintiff, after the County Commission reduced
the Sheriff's department budget. Tucker apparently
intends to testify that he did not direct either the Sheriff
or the County Commission to do this, and that he is not
responsible for whatever employment action Jenkins faced.
Plaintiff Jenkins argues, on the other hand, that defendant
Tucker should not be allowed to testify to these facts or to
argue that he did not cause the alleged adverse employment
action because, plaintiff argues, Missouri law provides that
the Circuit Judge has authority over the Sheriff's hiring
and compensation of deputies. This legal dispute is based on
several Missouri statutes.
57.250 of the Missouri Revised Statutes provides, in part:
The sheriff … shall be entitled to such number of
deputies and assistants, to be appointed by such official,
with the approval of a majority of the circuit judges of the
circuit court, as such judges shall deem necessary for the
prompt and proper discharge of such sheriff's duties
relative to the enforcement of the criminal law of this
state. Such judges of the circuit court, in their order
permitting the sheriff to appoint deputies or assistants,
shall fix the compensation of such deputies or assistants and
in setting such number and compensation shall have due regard
for the financial condition of the county. …
statutes have other provisions concerning the appointment and
payment of deputies and other county employees, including
provisions that explain the budget process. See Baker v.
Stone County, 41 F.Supp.2d 965 (W. D. Mo. 1999). Under
§ 50.540, Mo. Rev. Stat., each county office holder must
prepare and submit to the county clerk an estimated budget,
which then is presented to the County Commission. The County
Commission may revise the budget requests, § 50.740, and
Missouri law requires the County Commission to balance its
budget and not run a deficit, § 50.610. The sheriff has
the final decision-making authority to fire deputies. §
57.275, Mo. Rev. Stat.
is correct that under these statutes Tucker, as the Circuit
Judge, had authority to approve the hiring and compensation
of deputies. Plaintiff's request that I tell the jury
that Tucker had the final authority to determine Jenkins'
salary and whether she worked full or part time, to approve
all personnel recommendations, and to do the other things set
out in plaintiff's other proposed instructions [# 124],
however, goes too far. None of those propositions is dictated
by Missouri law, and I will not instruct the jury otherwise.
Additionally, because this trial will consider only the
claims against Tucker in his individual capacity, I need not
determine at this point whether Tucker was the “final
decision maker” for municipal liability purposes.
Cf. Soltesz v. Rushmore Plaza Civic Ctr., 847 F.3d
941 (8th Cir. 2017). Similarly, plaintiff's proposed
instructions that the County Commission may not require
Tucker to take a variety of actions are not appropriate.
it is not appropriate for the Court to tell defendant Tucker
or any other witnesses that they cannot testify about the
facts of the case. The jury is entitled to hear each
side's version of the facts. Of course both counsel can
challenge the other side's evidence through
cross-examination of the witnesses. Counsel may not, however,
argue with the witnesses about whether what the witnesses say
they did or did not do was consistent with Missouri law. At
the end of the case I will instruct the jury about the law.
Those instructions will include instructions about whatever
provisions of Missouri law are necessary for the jury's
decision, based on the evidence and issues that are presented
at trial. At this point, I anticipate that the instructions
may include a description of the law contained in §
57.250 regarding the Circuit Judge authority over the number
and compensation of deputies and about the County
Commission's authority over the budget process and the
Sheriff's authority over the deputies. As always, counsel
will have the opportunity during closing arguments to argue
to the jury about how the lawyer believes the jury should
view the evidence under the jury instructions. But counsel
may not use cross-examination to engage in a debate with any
witness or with other counsel about the meaning of Missouri
law. And again, the question in this trial is whether Tucker
retaliated against Jenkins; the trial deals only with the
claim against Tucker in his individual capacity. The legal
question about who was the “final decision maker”
for purposes of imposing municipal liability on the County is
not an issue in this trial.
Motion in Limine Regarding “me too”
of its motion in limine [#119] defendant seeks to prevent
plaintiff from introducing evidence regarding the termination
of Donna Williams, David Moore and Ted Harrell. Plaintiff
contends that these witnesses were terminated in retaliation
for supporting Tucker's opponent in the election.
Defendant argues that this is propensity evidence that is not
admissible under Rule 404(b), Fed. R. Evid., and that any
probative value it might have outweighed by the danger of
unfair prejudice, confusing the issues, misleading the jury,
causing undue delay and necessitating the introduction of
collateral or cumulative evidence and so should be excluded
under Rule 403, Fed. R. Evid.
Court must consider proposed “me too” evidence in
the context of the facts and arguments in a particular case,
considering “many factors, including how closely
related the evidence is to the plaintiff's circumstances
and the theory of the case.” Dindinger v. Allsteel,
Inc.,853 F.3d 414, 424 ...