United States District Court, W.D. Missouri, Western Division
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
D. SMITH, UNITED STATES DISTRICT COURT SENIOR JUDGE
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
Motions in Limine
Any suggestion that Plaintiff must show more than a
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.
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.
Any suggestion the government or FPS was at fault
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.
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.
Evidence of Plaintiff's Federal Tort Claims Act claim
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.
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
Testimony concerning whether Plaintiff's age or race had
anything to do with his hiring
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
Any suggestion that there must be direct evidence of racist
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.
Evidence Plaintiff was not qualified for his
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
EEOC and MCHR investigation, comments, and
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
Use of the petition to cross-examine witnesses or argue the
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.
Evidence of collateral source earnings of 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.
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 ...