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Hurley v. Vendtech-SGI, LLC

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

February 26, 2018




         Pending are Defendant's Motion in Limine (Doc. #51), and Plaintiff's Motion in Limine (Doc. #53). As set forth below, both motions are granted in part and denied in part. The 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 re-assert 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 justifying a change in the Court's interlocutory ruling.

         Defendant's Motion in Limine

         (1) “David and Goliath” evidence or arguments

         Defendant seeks to exclude comments or references to Defendant's size or wealth, Plaintiff's wealth, or comparing Defendant's wealth or size to Plaintiff's wealth. Additionally, Defendant asks the Court to prohibit Plaintiff from making comments that characterize this case as one involving an individual against a large corporation; referring to Defendant's ability to pay a judgment or afford counsel; indicating the number of attorneys appearing on behalf of Defendant; or mentioning the cost of defense, the number of attorneys or offices of Defendant's counsel, nature or number of exhibits, demonstrative exhibits, and witness fees.

         Plaintiff opposes the motion, arguing he should be able to argue Plaintiff, an individual, is standing up for his rights that Defendant, a corporation, did not respect. Plaintiff also maintains he should be permitted to inquire during voir dire if any of the jurors know of any of the defense attorneys or attorneys at their law firm. Finally, Plaintiff contends he should be permitted to introduce evidence of Defendant's finances, size, and ability to pay punitive damages.

         The Court grants Defendant's motion. In the eyes of the law, there is no difference between Plaintiff and Defendant. With regard to Plaintiff's second concern, the Court will inquire during voir dire if any panel member knows the attorneys or law firms involved in the case. With regard to Plaintiff's third concern, if the Court decides to submit the issue of punitive damages to the jury, Plaintiff will be permitted to elicit and present relevant evidence.

         (2) Hearsay statements

         Defendant asks that all hearsay statements be excluded. Plaintiff does not oppose this motion. Pursuant to Rule 802 of the Federal Rules of Evidence, hearsay statements will not be admitted, unless they meet an exception to the hearsay rule. This motion is granted.

         (3) Evidence purportedly showing an inference of discrimination

         Defendant anticipates Plaintiff may attempt to elicit testimony and/or introduce documents related to other employees disciplined by Defendant to show an inference of discrimination. Defendant believes Plaintiff will introduce evidence regarding other employees of Defendant who were treated differently. Defendant makes no reference in this motion to Stanford Fassett, whose lawsuit is also pending in this Court. But Defendant informs the Court in a footnote to Motion in Limine No. 4 that it does not intend to preclude either party from referencing Fassett's case. Plaintiff opposes this motion. He argues the MHRA is more expansive as to the types of evidence that can be utilized to show race contributed to an employer's decision, and evidence that similarly situated individuals who were treated differently than Plaintiff was could be admissible to show an inference of discrimination.

         While the substantive law of Missouri governs this diversity case, “[t]he Federal Rules of Evidence govern the admissibility of evidence.” Sosna v. Binnington, 321 F.3d 742, 744-45 (8th Cir. 2003). “Evidence of other employer actions is admissible when it supports an inference of discrimination.” Bradford v. Norfolk S. Corp., 54 F.3d 1412, 1419 (8th Cir. 1995) (citation omitted). This evidence “must assist in the development of a reasonable inference of discrimination within the context of each case's respective facts.” Id. “A plaintiff may prove allegations of disparate treatment by demonstrating that he was treated less favorably than similarly situated employees outside the plaintiff's protected class.” E.E.O.C. v. Kohler Co., 335 F.3d 766, 776 (8th Cir. 2003) (citations omitted). “Employees are similarly situated when they are involved in or accused of the same offense and are disciplined in different ways.” Id. (citations omitted); see also Jain v. CVS Pharmacy, Inc., 779 F.3d 753, 759 (8th Cir. 2015).

         The parties focus their arguments on four individuals: Bohrn, Anderson, Brown, and Hill. Bohrn was accused of making inappropriate remarks to female visitors, and looking at female visitors in an inappropriate manner. Anderson was accused of harassing an individual based upon her disability. According to Plaintiff, Brown was accused of eating on the job, and not showing up in uniform, and sleeping on the job. Plaintiff also represents a customer asked that Brown be no longer assigned at a particular federal facility. According to Plaintiff, a different customer complained about Hill for requiring individuals to sign in at a federal facility.

         Based upon the limited information the Court has about these individuals at this time, the Court will permit evidence related to Bohrn and Anderson, but will exclude evidence related to Brown and Hill. The accusations against Bohrn and Anderson appear similar to the accusation against Plaintiff. However, the allegations against Brown and Hill are not similar to the accusation against Plaintiff. For these reasons, Defendant's motion is granted in part and denied in part.

         (4) Evidence of other legal proceedings or administrative charges against Defendant

         Other than Stanford Fassett's lawsuit, which is also pending in this Court, Defendant asks the Court to exclude evidence of other legal proceedings or administrative charges against Defendant. Plaintiff opposes the motion, arguing Defendant's harm to others is relevant to punitive damages. Plaintiff identifies a charge of discrimination and lawsuit filed by William Vannattan in the United States District Court for the District of Kansas, and states the matter involves allegations of age and disability discrimination.

         Although not provided by the parties, the Court acquired and reviewed the Complaint filed in Vannattan's case, No. 2-16-CV-2147, JWL (D. Kan. Mar. 7, 2016). Therein, Vannattan alleges Defendant and two other entities discriminated against him on the basis of his age when it discharged him, and retaliated against him for opposing unlawful employment practices. Vannattan also alleged he was discriminated on the basis of his disability in several respects. Vannattan's allegations against Defendant are dissimilar to Plaintiff's allegations in the case before this Court. There is no allegation of race discrimination, lengthy suspension, or a complaint of harassment against Vannattan. Based upon the information known to the Court at this time, evidence of or testimony about Vannattan's charge of discrimination and lawsuit will not be permitted. Accordingly, Defendant's motion is granted.

         (5) Evidence regarding failure to call an equally available witness or the probable testimony of an absent witness

         Defendant seeks to exclude comment or reference by Plaintiff that Defendant did not call a witness to testify, when that witness is equally available to both parties. Defendant also asks the Court to exclude Plaintiff from speculating as to the probable testimony of any witness who did not testify. Plaintiff does not oppose this motion so long as the motion applies to both parties. Defendant's motion and Plaintiff's request are granted.

         (6) “Golden Rule” arguments or testimony

         Defendant asks the Court to exclude argument or testimony that the jury should place itself in Plaintiff's position, or the damages be based on a scenario whereby the jurors hypothetically sustain injuries or damages similar to that purportedly sustained by Plaintiff. In response to Defendant's motion, Plaintiff concedes he will not use the phrase “put yourself in his shoes, ” and asks that Defendant also be precluded from using that phrase. Plaintiff also seeks wide latitude in closing argument.

         The Court grants Defendant's motion. The parties are prohibited from asking the jurors to put themselves in the party's position, and arguing the jurors should assess damages based upon a scenario where the jurors hypothetically sustain the injuries and damages Plaintiff sustained. Plaintiff's request for wide latitude in closing argument is denied at this time because the Court does not have sufficient information to consider the request.

         (7) Tax implications for damages

         Defendant moves to preclude comments about or reference to any tax implications for a jury award. Plaintiff does not oppose the motion so long as Defendant does not place the matter in controversy by suggesting Plaintiff's verdict would be tax free or would ...

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