Perry v. The Schumacher Group of Louisiana

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

PAMELA M. PERRY,

Plaintiff,

v. Case No: 2:13-cv-36-FtM-29DNF

THE SCHUMACHER GROUP OF

LOUISIANA, a Louisiana

corporation, THE SCHUMACHER

GROUP OF FLORIDA, INC., a

Florida corporation, COLLIER

EMERGENCY GROUP, LLC, a

Florida limited liability

company, HEALTH MANAGEMENT

ASSOCIATES INC., a Michigan

corporation and NAPLES HMA,

LLC, a Florida limited

liability company,

Defendants.

OPINION AND ORDER

This matter comes before the Court on defendant Naples HMA,

LLC’s Omnibus Motion in Limine (Doc. #305) filed on September 18,

2020. Plaintiff filed a Response in Opposition (Doc. #313) on

October 16, 2020. For the reasons that follow, the motion is

denied.

I.

The Schumacher Group (TSG), consisting of defendants the

Schumacher Group of Louisiana, Inc., the Schumacher Group of

Florida, Inc., and the Collier Emergency Group, LLC (CEG), is a

corporation that provides healthcare staffing services at medical

facilities in certain states throughout the country. (Doc. #142,

p. 12.) In 2011, CEG entered into an exclusive agreement with

defendant Naples HMA, LLC (HMA) to staff the emergency departments

at two hospitals in Naples, Florida. (Doc. #244-1, p. 30.)

Plaintiff Pamela Perry, M.D., an African American female emergency

physician, was hired in June 2011 to serve as the medical director

in the emergency department at one of the hospitals, Pine Ridge.

(Doc. #244, p. 5.) Plaintiff’s employment was subsequently

terminated in 2012, and she has filed suit against the defendants

alleging various discrimination and retaliation claims. (Doc.

#235.) HMA now seeks to preclude plaintiff from introducing

certain evidence, testimony, and argument on a variety of issues.

(Doc. #305.) The Court will address these issues in turn.

II.

A. Damages: Back Pay, Lost Wages, Front Pay

HMA’s motion raises several arguments relating to potential

damages, including back pay, lost wages, and front pay.

(1) Back Pay Is Not Determined By Jury

HMA asserts that plaintiff is not entitled to have a jury

consider and decide the issue of back pay. While such a request

may stretch the proper scope of a motion in limine, the law is

clear that the issue of back pay is for the Court and not the jury.

A prevailing plaintiff in a Title VII case is “presumptively

entitled to back pay,” Nord v. U.S. Steel Corp., 758 F.2d 1462,

1472 (11th Cir. 1985), which refers to “the compensation that the

plaintiff would have received from the employer had the

discrimination not occurred.” E.E.O.C. v. Joe’s Stone Crab, Inc.,

15 F. Supp. 2d 1364, 1376 (S.D. Fla. 1998). HMA argues that any

award of back pay should be determined by the Court rather than

the jury, and suggests plaintiff disagrees. (Doc. #305, pp. 1-2;

Doc. #312, p. 4 n.1.) Plaintiff does not address this issue in

its response, but the Court agrees that “[b]ack pay under Title

VII is an equitable remedy, and as a result, it does not include

a right to a jury determination.” Holland v. Gee, 677 F.3d 1047,

1064 n.8 (11th Cir. 2012); see also Brown v. Ala. Dep’t of Transp.,

597 F.3d 1160, 1184 (11th Cir. 2010) (“Backpay in this Circuit is

considered equitable relief, whether granted under Title VII,

which provides solely for equitable remedies, or §§ 1981 and 1983,

which provide for legal remedies as well. The determination of

backpay under any of these provisions therefore entails no rights

under the seventh amendment.” (marks and citations omitted).

Accordingly, the issue of back pay will be decided by the Court,

not the jury.

(2) Evidence of Back Pay, Lost Wages After October 1, 2014

HMA recognizes that the Sixth Amended Complaint alleges that

HMA is a joint employer with TSG. HMA argues, however, that

plaintiff “should be precluded from introducing evidence at trial

regarding any alleged lost wages after October 1, 2014,” the date

HMA terminated its staffing agreement with TSG. (Doc. #305, p.

2.) HMA argues that plaintiff’s contractual relationship was only

with TSG, so that once HMA terminated its relationship with TSG on

October 1, 2014, her position at HMA would have terminated and HMA

could have no possible liability to plaintiff beyond that date.

(Id. at 2-9.)

While presented as a request to preclude the admission of

evidence, HMA is essentially seeking a judicial determination of

the sufficiency of the evidence beyond a certain date. See id.

p. 8 (“It is Plaintiff’s burden to establish her damages, including

any damages beyond the termination of the contract under which she

was allegedly employed. Plaintiff has failed to meet this burden

here, and the Court is not required to recreate the hypothetical

career path of Plaintiff to award back pay beyond the termination

of Naples HMA’s contract with TSG.” (citations omitted)). As

plaintiff argues (Doc. #313, pp. 7-8), such a determination goes

beyond the proper scope of a motion in limine. See Whidden v.

Roberts, 334 F.R.D. 321, 324-25 (N.D. Fla. 2020) (“A motion in

limine is not a permissible substitute for a motion for summary

judgment.”); Arthrex, Inc. v. Parcus Med., LLC, 2014 WL 2700802,

*1 (M.D. Fla. June 13, 2014) (agreeing with plaintiff that

defendant’s argument regarding insufficient evidence was

“essentially a motion for summary judgment” and “is not a proper

motion in limine”); Burkhart v. R.J. Reynolds Tobacco Co., 2014 WL

12617550, *4 (M.D. Fla. Apr. 30, 2014) (“[A] motion in limine

should not be used to resolve factual disputes or weigh

evidence.”); Bishop v. Textron, Inc., 2006 WL 6866491, *2 (S.D.

Fla. Jan. 25, 2006) (denying motion in limine based on lack of

evidence, but without prejudice to renewal “after the close of

evidence or during the charge conference in this case”).

Accordingly, the Court denies this portion of HMA’s motion.

(3) Front Pay

HMA next seeks to preclude plaintiff from seeking or

introducing evidence relating to an award of front pay after the

October 1, 2014 termination of the HMA-TSG contract. (Doc. #305,

p. 9.) “[F]ront pay is simply money awarded for lost compensation

during the period between judgment and reinstatement or in lieu of

reinstatement,” Pollard v. E.I. du Pont de Nemours & Co., 532 U.S.

843, 846 (2001), and “prevailing Title VII plaintiffs are

presumptively entitled to either reinstatement or front pay.”

U.S. E.E.O.C. v. W&O, Inc., 213 F.3d 600, 619 (11th Cir. 2000)

(citation omitted)). Like back pay, “[f]ront-pay is an equitable

remedy that is properly decided by the Court without submission to

a jury.” Gerry v. City of Hialeah, 152 F. Supp. 2d 1350, 1351

(S.D. Fla. 2001); see also U.S. E.E.O.C., 213 F.3d at 619

(reaffirming “the principle that front pay is an equitable remedy

awarded at the discretion of the district court”); Eleventh Circuit

Pattern Jury Instruction 4.5 (“Front pay is an equitable remedy to

be determined by the court at the conclusion of the jury trial.”).

For the same reasons it asserts against back pay and lost

wages, HMA argues plaintiff cannot meet her burden of establishing

front pay damages after October 1, 2014. (Doc. #305, p. 9.) And

for the same reasons the Court rejected HMA’s back pay/lost wages

argument, the Court finds this issue is not appropriate to decide

on a motion in limine. See Whidden, 334 F.R.D. at 324-25; Arthrex,

2014 WL 2700802, *1; Burkhart, 2014 WL 12617550, *4; Bishop, 2006

WL 6866491, *2. Accordingly, HMA’s request is denied.

(4) Damages Relating to Travel, Lodging, and Meals

HMA next seeks to preclude plaintiff from offering evidence

of over $85,000 in travel expenses caused by her need to commute

to her subsequent employment, including lodging and meals, that

would not have been incurred if she had been permitted to remain

in her position at Pine Ridge. (Doc. #305, pp. 9-10.) HMA argues

that because plaintiff turned down employment offers that would

have required less of a commute and offered a higher salary, she

“has failed to properly mitigate her damages and should not be

entitled to any avoidable ‘travel-related expenses’ incurred due

to her subsequent employment.” (Id. p. 12.)

The primary function of this portion of HMA’s position is to

improperly expand the proper scope of a motion in limine. HMA

does not seek a ruling on the admissibility of evidence related to

plaintiff’s travel expenses, and in fact does not even argue such

evidence is inadmissible. Rather, HMA seeks to have the Court

weigh the evidence in the record and make a legal determination

that plaintiff failed to mitigate her damages. The Court declines

to do so. See Voss v. City of Key West, Fla., 24 F. Supp. 3d

1228, 1233 (S.D. Fla. 2014) (“The Court agrees with Defendant that

the reasonableness of Plaintiff’s mitigation efforts is an issue

to be decided by the jury at trial.”). Accordingly, this portion

of HMA’s motion is denied.

(5) Potential Testimony

The remainder of HMA’s motion seeks to preclude the

introduction of several out-of-court statements that HMA asserts

are inadmissible. (Doc. #305, pp. 12-30.) HMA argues the

statements, which all involve racial and/or gender issues, are

inadmissible as, inter alia, irrelevant, unduly prejudicial, and

hearsay. (Id.) Plaintiff responds that the statements at issue

are not hearsay because they are not being offered for the truth

of the matter asserted, but rather “to show Plaintiff heard what

was said and that it contributed to her perception of workplace

culture.” (Doc. #313, p. 13); see United States v. Trujillo, 561

Fed. App’x 840, 842 (11th Cir. 2014) (“Generally, an out-of-court

statement admitted to show its effect on the listener is not

hearsay.” (citation omitted)). Plaintiff also argues that any

admissibility questions should be resolved at trial. (Doc. #313,

p. 13.)

The Court finds HMA’s arguments can be more appropriately

addressed during the trial. See Ramirez v. E.I. Dupont De Nemours

& Co., 2010 WL 3516103, *1 (M.D. Fla. Sept. 3, 2010) (“The Court

notes that it is capable of deciding hearsay issues during the

trial and that a motion in limine predicated upon the exclusion of

hearsay seems a bit tedious at this juncture . . . . The Court

will assess hearsay considerations during the trial of this case,

and accordingly, denies the motion to exclude hearsay evidence

without prejudice. Defendant is free to re-raise the arguments

asserted in this Motion during trial, as appropriate.”); Mee Indus.

v. Dow Chem. Co., 2008 WL 874836, *1 (M.D. Fla. Mar. 27, 2008)

(“Motions in limine are disfavored; admissibility questions should

ordinarily be ruled upon as they arise at trial. Accordingly, if

evidence is not clearly inadmissible, evidentiary rulings must be

deferred until trial to allow questions of foundation, relevancy,

and prejudice to be resolved in context.” (citations omitted)).

While the statements at issue are at least suspect, the Court

cannot say at this point of the proceedings that they are clearly

inadmissible. Therefore, HMA’s request to exclude the statements

at issue is denied without prejudice to re-raising these issues at

trial.

Accordingly, it is hereby

ORDERED:

Naples HMA, LLC’s Omnibus Motion in Limine (Doc. #305) is

DENIED.

DONE AND ORDERED at Fort Myers, Florida, this 25th day

of November, 2020.

0 Ep

: le hy ) Z. A, Gob

ade E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Counsel of record