The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
KIRK MENARD CIVIL ACTION
VERSUS
TARGA RESOURCES LLC NO. 19-00050-BAJ-SDJ
RULING AND ORDER
Before the Court is Defendant's Motion In Limine (Doc. 77) and Plaintiffs
Motion In Limine To Exclude Introduction Of Photograph (Doc. 78). Both
motions are opposed. (Doc. 82; Doc. 83). For the reasons stated herein,
Defendant's Motion (Doc. 77) is GRANTED IN PART and DENIED IN PART, and
Plaintiff's Motion (Doc. 78) is DENIED.
I, FACTS
This is an employment retaliation case. (Doc. 14; Doc. 74). Plaintiff alleges that
he was retaliated agamst when Defendant terminated his employment on
October 11, 2018, in violation of the Louisiana Environmental Whistleblower Statute,
La. Rev. Stat. § 80:2027. (Doc. 14, p. 2, 9-10; Doc. 74, p. 1). Defendant asserts that it
terminated Plaintiffs employment for non-retaliatory reasons, including Plaintiffs
alleged inappropriate conduct. (Doe. 42, p. 3-5; Doc. 74, 6~7). This matter is set for a
bench trial. (Doc. 111).
II. LEGAL STANDARD
The party objecting to the admissibility of evidence bears the burden of
showing that the evidence is inadmissible. Lyondell Chem. Co. v.
Occidental Chem. Corp., 608 F.3d 284, 295 (5th Cir. 2010).
a. Relevance and Prejudice
Federal Rule of Evidence 401 provides that evidence is relevant if: “(a) it has
any tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.” Under
Federal Rule of Evidence 402, relevant evidence is admissible unless the
United States Constitution, a federal statute, the Federal Rules of Evidence or other
rules prescribed by the Supreme Court provide otherwise. Pursuant to
Federal Rule of Evidence 408, “the court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the
folowing: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” The
United States Court of Appeals for the Fifth Circuit has explained, however, that
while “excluding relevant evidence in a bench trial because it is cumulative or a waste
of time is clearly a proper exercise of the judge's power, |] excluding relevant evidence
on the basis of ‘unfair prejudice’ is a useless procedure.” Gulf States Utilities Co. v.
Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. 1981).
b. Hearsay
Under the Federal Rules of Evidence, hearsay is defined as “a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the
statement.” Fed. R. Evid. 801(c)(1)-(2). Hearsay is not admissible unless a federal
statute, the Federal Rules of Evidence, or “other rules prescribed by the
supreme Court” provide otherwise. Fed. R. Evid. 802. After a party properly objects
to the admission of evidence as hearsay, the proponent of the evidence bears the
burden to show that the statement is not offered as hearsay or falls within an
exception to the hearsay rule. Dempster v. Lamorak Ins. Co., No. CV 20-95,
2020 WL 5552681, at *3 (.D. La. Sept. 16, 2020) (citations omitted).
IH. DISCUSSION
a. Defendant’s Motion in Limine
Defendant seeks to exclude the following evidence: (1) Defendant's response to
Plaintiffs Louisiana Workforce Commission unemployment claim and _ the
Louisiana Workforce Commission’s decision on Plaintiffs unemployment claim
77-2); (2) Louisiana Department of Environmental Quality’s “Notices of
Deficiency, Deficiency Clear Letter, Warning Letter, Expedited Penalty Agreement,
violations, or penalties issued against [Defendant]” (Doc. 77-6-Doc. 77-8);
(8) Plaintiffs recorded telephone call with Brogan Smith (Doc. 77-3); (4) Plaintiffs
recorded telephone call with Matthew Fitzgerald (Doc. 77-4); and (5) information
regarding Perry Berthelot’s character or reputation (Doc. 77-4). (Doc. 77, p. 2).
For the reasons stated below, the Court finds that the
Louisiana Workforce Commission and Louisiana Department of Environmental
Quality documents are admissible. (Doc. 77-2; Doc. 77-6—Doc. 77-8). Additionally, the
Court finds that the transcripts of Plaintiffs telephone calls with Smith and
Fitzgerald are inadmissible. (Doc. 77-3—Doc. 77-4).
i. Louisiana Workforce Commission Documents
Defendant seeks to exclude “unemployment forms” from _ the
Louisiana Workforce Commission. (Doc. 77-2). Defendant argues that the
unemployment forms are “inadmissible hearsay, irrelevant, highly prejudicial, and
should be excluded at trial of this matter.” (Doc. 77-1, p. 1).
1. Relevance
First, Defendant argues that information regarding Defendant’s decision not
to respond to Plaintiffs unemployment claim should be excluded because it is
irrelevant. (Doc. 77-1, p. 2). Defendant explains that the issue in this case is whether
Plaintiff was terminated for legitimate, non-retaliatory reasons or whether he was
terminated in violation of the Louisiana Whistleblower statute. Ud.). Defendant
contends that its decision not to respond to Plaintiffs unemployment claim has no
tendency to make Plaintiffs allegation that he “would not have been terminated but-
for his protected conduct under [the Louisiana Whistleblower Statute] more or less
' The evidence at issue is a seven-page document from the Louisiana Workforce Commission
addressing “important information about [Plaintiff's] unemployment claim deductible
income,” “instructions and options for filing an appeallf],” “important information about
[Plaintiffs] unemployment claim qualifying separation determination,” and “notice of
unemployment claim filed[].” (Dee. 77-2).
true.” (Ud.).
Contrarily, Plaintiff argues that evidence regarding Defendant’s failure to
respond to Plaintiffs unemployment claim is relevant because it rebuts Defendant’s
asserted legitimate, non-retaliatory reasons for Plaintiffs termination.?
(Doc. 88, p. 1). Plaintiff seeks to intreduce the documents to establish a single fact—
that Defendant did not contest Plaintiffs eligibility for unemployment. (/d. at p. 2).
Plaintiff explains that had Defendant responded to the
Louisiana Workforce Commission with non-retaliatory reasons for terminating
Plaintiff, 1t would have been relieved from any lability for Plaintiffs unemployment
benefits. dd. at p. 2-3). Accordingly, Plaintiff argues that the evidence is relevant
“because it calls into question Defendant’s later claims that it had a non-retaliatory
basis for [Plaintiffs] termination.” Ud. at p. 3).
Rule 401 defines relevant evidence as evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.
Fed. R. Evid. 401. Evidence which is not relevant is not admissible. Fed. R. Evid. 402.
Implicit in the above definition are two distinct requirements: (1) the evidence must
be probative of the proposition it is offered to prove; and (2) the proposition to be
proved must be one that is of consequence to the determination of the action. Nale v.
Finley, No, 3:19-CV-00473, 2020 WL 7213000, at *2 (W.D. La. Dec. 7, 2020) (citing
2 Plaintiff states that Defendant's “primary defense in this case is that it terminated
[Plaintiff] not because of his pretected acts in refusing to dilute a water sample and reporting
that illegal request to his supervisor, but rather because of his alleged inadequate work
performance and inappropriate workplace conduct. . .” (Doc. 838, p. 3).
United States v. Hall, 653 F.2d 1002, 1005 (5th Cir. 1981)). Here, the
Louisiana Workforce Commission documents have a tendency to make a fact—
whether Defendant responded to Plaintiffs unemployment claim—more or less
probable than it would be without the evidence. See Fed. R. Evid. 401. Defendant's
lack of response to Plaintiffs unemployment claim is a fact of consequence because it
bears on whether and when Defendant had legitimate, non-retaliatory reasons for
terminating Plaintiff, a central issue in this employment retaliation case. See id.
Accordingly, the Court finds that the Louisiana Workforce Commission documents
are relevant.
2. Hearsay
Second, Defendant argues that the Louisiana Workforce Commission
documents are inadmissible hearsay. (Doc. 77-1, p. 1). Plaintiff responds that the
documents are not hearsay because they fall within the public records exception to
the general prohibition against hearsay. Fed. R. Evid. 803(8). (Doc. 88, p. 1).
Federal Rule of Evidence 803(8) excepts the following from the rule against hearsay:
A record or statement of a public office if:
(A) it sets out:
(i) the office's activities;
(ii) matter observed while under a legal duty to report,
but not including, in a criminal case, a matter observed
by law-enforcement personnel; or
G1) ina civil case or against the government in a criminal
case, factual findings from a legally authorized
investigation; and
(B) the opponent does not show that the source of information or
other circumstances indicate a lack of trustworthiness.
Fed. R. Evid. 8038(8).
Under this rule, a proponent of a document must show that the document
(1) was “prepared by a public office;” and (2) “set[ ] out information as specified in the
Rule.” Advisory Committee Note to Fed. R. Evid. 803(8). When the proponent satisfies
these requirements, “the burden is on the opponent to show that the source of
information. or other circumstances indicate a lack of trustworthiness.” Id.; see also
Cooper v. Meritor, Inc., 363 F. Supp. 3d 695, 698 (N.D. Miss. 2019). Here, Plaintiff
asserts that the documents were prepared by the Louisiana Workforce Commission
pursuant to the agency’s official duties under Louisiana law. (Doc. 88, p. 1). Plaintiff
also explains that the documents set out factual statements regarding the agency’s
investigation into Plaintiffs entitlement to unemployment benefits. Ud.). Plaintiff
has satisfied the requirements of Federal Rule of Evidence 808(8){A).
Accordingly, the burden shifts to Defendant to show that the source of the
information or other circumstances indicate a lack of trustworthiness. See
Advisory Committee Note to Fed. R. Evid. 803(8); see also Fed. R. Evid. 803(8)(B).
Defendant has made no argument regarding the trustworthiness of the documents,
but merely vaguely contends that the documents are “hearsay.” (Doc. 77-1, p. 1, 3).
Defendant has not satisfied its burden of showing a lack of trustworthiness. See
Fed. R. Evid. 803(8)(B). The Court therefore finds that the Louisiana Workforce
Commission documents fall squarely into the public records exception to the general
rule against hearsay provided in Federal Rule of Evidence 8038(8).
3. Louisiana Law
Third, Defendant relies on Louisiana Revised Statutes § 23:1636 to seek
exclusion of the Louisiana Workforce Commission documents. Section 1686 provides
the following:
[N]o findings of fact or law, judgment, opinion, conclusion, or final order
made by an unemployment compensation hearing officer,
administrative law judge, or any person with the authority to make
findings of fact or law in any action or proceeding pursuant to the
administration of this Chapter shall be conclusive or binding in any
separate or subsequent action or proceeding.?
Defendant contends that any findings of fact, opinions, conclusions, or final orders
from the Louisiana Workforce Commission concerning Plaintiffs unemployment
claim should be excluded. (Doc. 77-1, p. 2).
Plaintiff responds that Section 1636 does not act as an absolute prohibition on
the introduction of otherwise relevant and admissible evidence related to an
unemployment claim. (Doc. 838, p. 2). Specifically, Plaintiff argues that he does not
seek to intreduce the documents as conclusive evidence of any fact at issue or to
establish the Louisiana Workforce Commission’s findings as “preclusive” in this
3 La. Rev. Stat. § 23:1636 states in full:
Notwithstanding any provision in this Chapter relative to conclusiveness and
finality of administrative determinations, no findings of fact or law, judgment,
opinion, conclusion, or final order made by an unemployment compensation
hearing officer, administrative law judge, or any person with the authority to
make findings of fact or law in any action or proceeding pursuant to the
administration of this Chapter shall be conclusive or binding in any separate
or subsequent action or proceeding. Said determinations shall not be used as
conclusive evidence in any separate or subsequent action or proceeding
between an individual and his or her present or prior employer brought before
an arbitrator, court, or judge of the state of Louisiana or the United States,
regardless of whether the prior action was between the same or related parties
or involved the same facts.
matter. Ud.). Just because the documents are not to be given conclusive effect,
Plaintiff argues, does not mean that the documents are not relevant. (id.). The Court
agrees.
This matter is set for a bench trial. The Court will properly weigh the evidence
at the time of trial, recognizing that the Louisiana Workforce Commission documents
are not “conclusive evidence.” See La. Rev. Stat. § 23:16386.
4, Prejudice
Fourth, Defendant argues that if the documents are not hearsay and are found
to be relevant, the probative value of such information is substantially outweighed
by the danger of unfair prejudice and confusion pursuant to Federal Rule of Evidence
403. (Doc. 77-1, p. 1, 3). Plaintiff responds that considerations of unfair prejudice and
confusion are not applicable when the evidence will be considered by the Court and
not by ajury. (Doc. 83, p. 4). Again, the Court agrees. The Fifth Circuit has noted that
for bench trials, as here, “excluding relevant evidence on the basis of ‘unfair prejudice’
is a useless procedure.” Gulf States Utilities Co. v. Ecodyne Corp., 635 F.2d 517, 519
(5th Cir. Unit A, 1981). When ruling on admissibility under Rule 403 in a jury trial,
a Judge is expected to discern and weigh improper inferences that a jury might draw
from certain evidence. Id. In a bench trial “the same judge can also exclude those
improper inferences from his mind in reaching a decision.” Id. Accordingly, the Court
will not exclude the Louisiana Workforce Commission documents based on undue
prejudice or confusion. The Court finds that the Louisiana Workforce Commission
documents are admissible. (Doc. 77-2).
ii. Louisiana Department of Environmental Quality
Documents
Defendant also seeks to exclude any testimony or evidence concerning
Louisiana Department of Environmental Quality documents because they are
inadmissible hearsay and irrelevant. (Doc. 77-1, p. 7; Doc. 77-6—-Doc. 77-8).
Alternatively, Defendant argues that the probative value of the LDEQ documents is
substantially outweighed by the risk of unfair prejudice and confusion.
(Doc. 77-1, p. 7).
Plaintiff responds that these documents fall into the public records exception
to the hearsay rule provided in Federal Rule of Evidence 8038(8). (Doc. 88, p. 10).
Additionally, Plaintiff asserts that the documents are relevant because the
documents tend to show that Defendant had a motive for asking Plaintiff to dilute
water samples, since further violations could result in additional enforcement action
by LDEQ. CUd.). Plaintiff contends that the evidence is therefore probative of
Defendant's true, retaliatory reasons for terminating Plaintiff. (d.).
As with the Louisiana Workforce Commission documents, the documents are
created by a public office and describe information related to factual findings from a
legally authorized investigation. See Fed. R. Evid. 803(8); see also Advisory
Committee Note to Fed. R. Evid. 803(8). Defendant does not argue that the documents
contain a lack of trustworthiness. /d.; see also Cooper vu. Meritor, Inc.,
363 F. Supp. 3d 695, 698 (N.D. Miss. 2019). Therefore, the records fall into the public
records exception to the general rule against hearsay. Fed. R. Evid. 803(8).
The LDEQ documents are relevant because they have a tendency to make a
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fact of consequence—Defendant’s motive—more or less probable than it would be
without the evidence. Fed. R. Evid. 401. As previously noted, excluding the LDEQ
documents based on unfair prejudice or confusion would be a “useless procedure” for
a bench trial. See Gulf States Utilities Co. v. Ecodyne Corp., 635 F.2d 517, 619
(5th Cir. Unit A, 1981). Accordingly, the Court finds that the LDEQ documents are
admissible. (Doc. 77-6—Doc. 77-8).
iii, Plaintiffs Telephone Calls with Brogan Smith and
Matthew Fitzgerald
Finally, Defendant seeks to exclude Plaintiffs telephone calls with
Brogan Smith and Matthew Fitzgerald, including the purported transcripts of the
telephone calls and any statements or information contained therein.
(Doc. 77-8—Doc. 77-4). Because the parties present similar arguments regarding both
telephone calls, the Court will address them together.
Defendant argues, and Plaintiff concedes, that the transcripts are hearsay, but
Plaintiff seeks to “reserve his rights” to introduce the transcript for “any other
purposes that may be allowed under the law, including to the extent it might be
admissible for impeachment.” (Doc. 77-1, p. 4-7; Doc. 88, p. 5, 7). Because the parties
agree that the transcripts are hearsay, the Court will exclude the purported
transcripts of Plaintiffs telephone calls with Smith and_ Fitzgerald.
(Doc. 77-3—Doc. 77-4).
To the extent that Plaintiff seeks to introduce specific information or
statements from the telephone calls through Plaintiffs testimony, the Court will
address the hearsay exceptions raised by Plaintiff, as well as Defendant’s arguments
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regarding inadmissibility, at that time. Additionally, the Court will consider
whether certain information or statements may be admissible for impeachment.
purposes at the time of trial. With nearly two hundred pages of transcripts of
Plaintiffs telephone calls, it is impractical for the Court to determine the
admissibility of each statement at this time without clarity as to which statements
Plaintiff seeks to intreduce or whether the reasons for seeking admission are
permissible under the Rules of Evidence. (See Doc. 77-8—Doc. 77-4).
b. Plaintiff's Motion in Limine
Plaintiff seeks to exclude a photograph showing his fiancé’s hemorrhoids.®
(Doc. 78-1, p. 2; Doc. 74-2). Plaintiff asserts that his fiancé was pregnant at that time
and “sent the picture to [Plaintiff] to get his opmion on whether she should seek
medical treatment for her pregnancy-related condition.” (Doc. 78-1, p. 2). Defendant
asserts that Plaintiff showed this photograph to a co-worker. (Doc. 82-1, p. 1).
Defendant points to Plaintiffs alleged action of showing the photograph to the
co-worker as an instance of inappropriate conduct and one of its reasons for
terminating Plaintiffs employment. (Id.).
4 Plaintiff argues that he could properly admit information contained in the transcripts by
testifying about what he was told. (Doc. 83, p. 5). Plaintiff asserts that information contained
in the transcripts, if properly admitted, falls within the following hearsay exceptions: (1) an
opposing party’s statement pursuant to Rule 801(d)(2)(D); (2) a statement against interest
pursuant to Rule 804(b)(3); and (8) evidence of habit pursuant to Rule 404. (Dac. 83, p. 5-10}.
Defendant contends that any evidence concerning the recorded telephone calls should be
excluded as inadmissible hearsay. (Doc. 77-1, p. 4-7). Additionally, Defendant argues that,
pursuant to Rule 404, Plaintiff should not be permitted to introduce character or reputation
evidence contained in the transcript of the Fitzgerald telephone call regarding
Perry Berthelot, the individual Plaintiff contends retaliated against him. (Ud. at p. 5).
5 The photograph is identified as Exhibit 53 on Defendant’s Trial Exhibit List.
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Plaintiff argues that there is no dispute as to what the photograph depicts
because the parties have stipulated that the photograph contains the very type of
images Defendant claims would have been a basis for termination. (Doc. 78-1,
p. 2-4). The disputed fact here is whether Plaintiff showed the photograph to a
co-worker, not the image depicted in the photograph. (/d. at p. 2). Accordingly,
Plaintiff argues that the photograph need not be introduced. (/d. at p. 4).
Defendant argues that the photograph is relevant because it has a tendency to
make “the only fact of consequence in determining this action—i.e. one of
[Defendant's] reasons for terminating Plaintiffs employment because he engaged in
inappropriate conduct by showing the [p]hotograph to a co[-|worker,[] more probable
than it would be without the [p]hotograph. ..” (Doc. 82-1, p. 1). Defendant also asserts
that the photograph is relevant to Plaintiffs credibility because Plaintiff maintains
that he did not show the photograph to his co-worker. (Id.). Finally, Defendant argues
that introducing the photograph at trial does not present any danger of wasting time
or presenting cumulative evidence, but even if such dangers were present, they do
not substantially outweigh the photograph’s probative value in establishing that
Defendant’s reasons for terminating Plaintiff were not a pretext for retaliation. (Id.).
The Court finds that the photo is relevant because it has a tendency to make a
fact-—here, Defendant’s reasons for terminating Plaintiffs employment—more or less
probable than it would be without the evidence. Fed. R. Evid. 401. This fact is of
consequence. See id. Accordingly, the Court finds that the photograph is admissible.
The Court is aware of Plaintiffs concerns regarding the personal nature of the
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photograph. However, the Court will allow Plaintiff to move for introduction of the
photograph under seal and for review in camera.
IV. CONCLUSION
Accordingly,
IT IS ORDERED that Defendant's Motion In Limine (Doe. 77) is
GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that the Louisiana Workforce Commission
documents (Doc. 77-2) and the Louisiana Department of Environmental Quality
documents (Doc. 77-6; Doc. 77-7; Doc. 77-8) are deemed ADMISSIBLE.
IT IS FURTHER ORDERED that the transcripts of Plaintiffs telephone
calls with Brogan Smith (Doc. 77-3) and Matthew Fitzgerald (Doc. 77-4) are deemed
INADMISSIBLE.
IT IS FURTHER ORDERED that Plaintiffs Motion In Limine To
Exclude Introduction Of Photograph (Doc. 78) is DENIED.
IT IS FURTHER ORDERED that the photograph identified as Exhibit 53 on
Defendant’s Trial Exhibit List is deemed ADMISSIBLE.
Baton Rouge, Louisiana, this oe, of March, 2021
bea
JUDGE BRIA ACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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