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Fassett v. Vendtech-SGI, LLC

United States District Court, W.D. Missouri, Western Division

February 21, 2018

STANFORD FASSETT, Plaintiff,
v.
VENDTECH-SGI, LLC, Defendant.

          ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION IN LIMINE, AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION IN LIMINE

          ORTRIE D. SMITH, UNITED STATES DISTRICT COURT SENIOR JUDGE

         Pending are Plaintiff's Motions in Limine (Doc. #52), and Defendant's Motions in Limine (Doc. #55). As set forth below, both motions are granted in part and denied in part. Parties are reminded these rulings are interlocutory. Thus, the denial of a request to bar evidence at this juncture preserves nothing for review, and the parties may reassert their objections at trial if they deem it appropriate to do so. Evidence barred by this Order shall not be discussed in the jury's presence (including during opening statements) without leave of the Court. The parties are free to suggest (out of the jury's presence) that something has occurred during the trial that justifies a change in the Court's interlocutory ruling.

         Plaintiff's Motions in Limine

         (1) Any suggestion that Plaintiff must show more than a “contributing factor”

         Plaintiff asks the Court to exclude evidence, suggestion, argument, or inference that he must show his race or his protected activity was more than a contributing factor in Defendant's decisions to establish his claims. Defendant opposes the motion arguing, as it did in reply to the summary judgment motion, the recent amendments to the MHRA, which change the language from contributing factor to motivating factor, should be applied retrospectively. Defendant also asks that it be permitted to use the statutory phrase “because of” in its argument.

         This Court previously analyzed and found the August 28, 2017 amendments to the MHRA did not apply retrospectively. Doc. #51, at 4-7. That analysis, which will not be rehashed, applies once again. The parties' arguments must be consistent with the instruction that will be given the jury. That instruction requires Plaintiff to establish his race or protected activity was a “contributing factor” in Defendant's employment decisions. Mo. Approved Instruction 38.01(A) (7th ed. Supp. 2017). Plaintiff's motion is granted. Defendant's request to use the phrase “because of” is denied.

         (2) Any suggestion the government or FPS was at fault

         Plaintiff seeks exclusion of any argument suggesting or testimony eliciting that the responsibility for Defendant's actions should be compared to the government's actions, or the government played a role in the discrimination or retaliation of Plaintiff. Defendant opposes the motion, arguing it was contractually obligated to follow the instructions from the Federal Protective Services (“FPS”); Plaintiff testified he believed FPS made the decision to suspend him, and therefore, discriminated against him; and Plaintiff utilized the cat's paw theory in responding to Defendant's motion for summary judgment, arguing Defendant, although not a decision maker, performed an act motivated by the discriminatory bias of FPS.

         The jury is entitled to know about the relationship between FPS and Defendant, the agreement between them, the alleged delay in the investigation by FPS, and the alleged failure by Defendant to follow up with FPS in a reasonable manner. Further, Plaintiff's testimony indicates he believed FPS was at fault. Plaintiff cannot say FPS is at fault during his deposition, but at trial, maintain Defendant is at fault. Plaintiff, of course, can argue Defendant's alleged failure to follow up with FPS demonstrates a contributing factor. Plaintiff's motion is denied.

         (3) Evidence of Plaintiff's Federal Tort Claims Act claim against FPS

         Plaintiff asks the Court to exclude evidence related to a separate Federal Tort Claims Act (“FTCA”) claim against FPS. Defendant opposes the motion, arguing Plaintiff testified he believed FPS made the decision to suspend him and discriminated against him. As such, Defendant argues Plaintiff has opened the door to the issue of whether FPS or Defendant is at fault. Defendant maintains Plaintiff's claim against FPS indicates his belief that FPS suspended him, and discriminated against him.

         Although it is unclear from the parties' filings, it appears Plaintiff has filed two matters against two different entities claiming entitlement to the same losses. Also, Plaintiff's testimony also indicates he believes FPS, not Defendant, is at fault. For these reasons, the Court denies Plaintiff's motion. Defendant will be permitted to inquire about and introduce evidence regarding Plaintiff's FTCA claim against FPS. To the extent the theories of recovery are different between the two matters, Plaintiff can make that argument. If either party believes the jury may be confused by the introduction of this evidence, a limiting instruction should be proposed prior to trial.

         (4) Testimony concerning whether Plaintiff's age or race had anything to do with his hiring

         While there is no dispute as to Plaintiff's age and race at the time of hiring, Plaintiff asks the Court to exclude testimony that his age or race had anything to do with why he was hired. Defendant does not oppose Plaintiff's request with regard to his age because his age claims are no longer pending. But Defendant opposes Plaintiff's motion with regard to his race because Plaintiff's race goes to Defendant's motivation, or lack thereof. The Court agrees with Defendant. Plaintiff's motion is denied. Testimony concerning Plaintiff's race at the time of hiring with Defendant or whether it had anything to do with Defendant's decision to hire Plaintiff will not be excluded.

         (5) Any suggestion that there must be direct evidence of racist comments

         Plaintiff concedes this is not a direct evidence case, and argues that allowing questions about whether anyone made racially offensive statements to or about him would mislead the jury. He contends the jury may believe there must be some sort of racial comment to succeed on a race discrimination claim. In response, Defendant states it does not intend to argue Plaintiff must have direct evidence of discrimination, such as racist comments, to prevail on his discrimination claim. But Defendant argues the non-existence of direct evidence is relevant to whether Defendant discriminated against Plaintiff. The Court agrees with Defendant. Plaintiff's motion is granted in that the parties shall not argue direct evidence is required, but his motion is denied in that Defendant will be permitted to inquire about racist comments, or lack thereof.

         (6) Evidence Plaintiff was not qualified for his position

         Plaintiff asks the Court to exclude evidence that Plaintiff was not qualified for his position. Defendant objects to Plaintiff's motion to the extent it seeks to preclude it from presenting evidence that Plaintiff was not “suitable” when he was suspended. As best the Court can tell, the portion of the Statement of Work that defines “suitability” has not been provided the parties. Regardless, the jury instruction does not require Plaintiff to establish he was qualified for the position. In that regard, Plaintiff's motion is granted. Defendant will not be permitted to present evidence or argue Plaintiff was not qualified for his position. With regard to whether Plaintiff was “suitable” when he was suspended, the Court will consider that request once it has had the opportunity to review relevant portion of the Statement of Work.

         (7) EEOC and MCHR investigation, comments, and conclusions

         Plaintiff asks this Court to prohibit Defendant from offering any comments, conclusions, notes, or documentation of alleged statements by the Equal Employment Opportunity Commission or the Missouri Commission on Human Rights, as well as statements Plaintiff purportedly made to these entities. Defendant does not object to Plaintiff's motion but requests the Court exclude all aspects of the agencies' proceedings. The Court agrees with both parties. Plaintiff's motion and Defendant's request are granted. Nothing in the administrative proceedings shall be introduced or offered. Likewise, counsel shall not make arguments based upon the contents of the administrative proceedings.

         (8) Use of the petition to cross-examine witnesses or argue the case

         Plaintiff believes Defendant will utilize his Petition, and more specifically, an error in the Petition, against him. Plaintiff argues introduction of the Petition and questions about the Petition will cause confusion, could prejudice him, and admission of such evidence or argument is improper. Defendant does not oppose this motion so long as Plaintiff is precluded from doing the same. The Court grants Plaintiff's motion and Defendant's request. Neither party shall use the Petition to cross-examine witnesses or argue his or its case.

         (9) Evidence of collateral source earnings of Plaintiff

         Plaintiff asks the Court to exclude evidence of his earnings from collateral sources - specifically, military retirement benefits, military disability benefits, and unemployment benefits. Defendant opposes this motion to the extent this information becomes relevant when Plaintiff opens the door by testifying about the hardships linked his salary loss during suspension. Defendant takes particular issue with Plaintiff's receipt of unemployment compensation, arguing that evidence is probative to Plaintiff's alleged emotional distress damages.

         “Under the collateral source rule, an employer is entitled to no credit for moneys paid to the injured employee by third parties.” Salitros v. Chrysler Corp., 306 F.3d 562, 573 (8th Cir. 2002) (citation omitted). Unemployment benefits are considered a collateral source. Id. (citation omitted). Defendant has not cited - and the Court has been unable to find - case law supporting Defendant's request to use Plaintiff's receipt of unemployment benefits to counter Plaintiff's claim for emotional distress caused ...


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