Lewis v. Louisiana State University

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

SHARON LEWIS, CIVIL ACTION

Plaintiff

VERSUS NO. 21-198-SM-RLB

BOARD OF SUPERVISORS OF LOUISIANA

STATE UNIVERSITY AND AGRICULTURAL

AND MECHANICAL COLLEGE,

Defendant

ORDER AND REASONS

Before the Court are four Motions in Limine (Nos. 1, 2, 4, and 6) filed by Defendant,

Board of Supervisors of Louisiana State University and Agricultural and Mechanical

College (the “Board”).1

LEGAL STANDARD

“It is well settled that motions in limine are disfavored.”2 “Motions in limine are

frequently made in the abstract and in anticipation of some hypothetical circumstance

that may not develop at trial.”3 “An order in limine excludes only clearly inadmissible

evidence; therefore evidence should not be excluded before trial unless it is clearly

inadmissible on all potential grounds.”4 “Instead, courts should reserve evidentiary

rulings until trial so that questions as to the evidence ‘may be resolved in the proper

context.”5 “When ruling on motions in limine, the Court ‘maintains great discretion [as

1 R. Docs. 481, 483, 486, 488. The other motions in limine filed by the Board will be decided separately.

2 Auenson v. Lewis, No. CIV. A. 94-2734, 1996 WL 457258 at *1 (E.D. La. Aug. 12, 1996) (citing Hawthorne

Partners v. AT & T Technologies, Inc., 831 F.Supp. 1398, 1400 (N.D.Ill.1993).

3 Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir. 1980) (superseded on other grounds).

4 Rivera v. Robinson, 464 F. Supp. 3d 847, 853 (E.D. La. 2020) (quoting Auenson v. Lewis, 1996 WL

457258, at *1 (E.D. La. Aug. 12, 1996).

5 Washington v. E. Baton Rouge Par. Sch. Bd., No. CV 21-00192-BAJ-RLB, 2023 WL 2072083 at *1 (M.D.

La. Feb. 17, 2023) (quoting Auenson, 1996 WL 457258, at *1).

to] evidentiary determinations.’”6 If the evidence is not clearly inadmissible on all

grounds, the better course is for the court to decline to rule in advance of trial so that it

will have the opportunity to resolve issues in context.

LAW AND ANALYSIS

I. The Board’s Motion in Limine No. 1 will be denied in part and

granted in part.

In its Motion in Limine No. 1,7 the Board seeks exclusion of evidence, argument,

and testimony regarding “claims that have been previously dismissed by this Court,

abandoned by Plaintiff, and not alleged in the operative complaint.”8 The Board argues

Plaintiff “conceded dismissal” of the following claims by not directly opposing the Board’s

Motion for Summary Judgment as to these claims:

(1) race discrimination under Title VII; (2) gender discrimination under Title VII

based on her pay; (3) retaliation under Title VII and Title IX based on denied

committee assignments; (4) retaliation under Title VII based on the hiring of Frank

Wilson; and (5) a retaliatory hostile work environment under Title VII and Title

IX.9

The Board argues evidence related to these claims should be excluded.

In its recent Order and Reasons, the Court denied summary judgment as to

Plaintiff’s claims of race and gender discrimination under Title VII and retaliation under

Title VII and Title IX.10 Accordingly, evidence related to these claims is relevant and not

unfairly prejudicial. The Court will deny the Board’s requests to exclude evidence related

to these claims.

As for the Board’s concern regarding evidence related to a retaliatory hostile work

environment claim, the Court has acknowledged that a claim for retaliatory hostile work

6 Jackson v. State Farm Fire & Cas. Co., 656 F. Supp. 3d 676 (W.D. La. 2023) (quoting Parker v. John W.

Stone Oil Distributors, L.L.C., 2019 WL 5212285, at *2 (E.D. La. Oct. 16, 2019)).

7 R. Doc. 481.

8 Id. at p. 1.

9 R. Doc. 481-1 at 6.

10 See Order and Reasons on the Board’s Motion for Summary Judgment.

environment is not cognizable under Fifth Circuit precedent.11 However, the Board has

not indicated which, if any, evidence Plaintiff might introduce to support an alleged

retaliatory hostile work environment claim that would differ from the evidence used to

support a hostile work environment based on sex, which the Court has recognized as one

of Plaintiff’s unresolved and viable claims.12 Accordingly, evidence related to Plaintiff’s

hostile work environment claim based on sex is relevant and not unfairly prejudicial. The

Court will deny the Board’s request to exclude evidence related to Plaintiff’s claim of a

hostile work environment based on sex.13

Finally, the Board seeks to exclude evidence related to Plaintiff’s claims for pre-

April 8, 2020 Title IX retaliation and her Civil RICO claims against the Board and the

dismissed defendants.14 Specifically, the Board seeks to exclude evidence of:

[A]ny evidence, argument or testimony concerning the October 2018 PM-73

investigation regarding Plaintiff and the resulting alleged discipline; the alleged

denial of promotions dating back to 2013; the denial of access to resources and

administrative support staff dating back to 2013; disciplinary actions predating

April 8, 2020; and receipt of alleged significantly lower compensation dating back

to 2013.15

The Board argues that evidence “regarding dismissed claims that [is] irrelevant to

remaining claims should be excluded at trial.”16 However, the Court finds this evidence

regarding pre-April 8, 2020 Title IX retaliation may be relevant to some or all of Plaintiff’s

remaining claims, including Title IX retaliation. Accordingly, the Court finds evidence

11 See Order and Reasons on the Board’s Motion for Summary Judgment at p. 1-2 (citing Heath v. Bd. of

Sup. for South. Univ. & Agri. and Mech. Coll., 850 F.3d 731, 741 n.5 (5th Cir. 2017) (“We have not recognized

a retaliatory hostile work environment cause of action.”)).

12 See Order and Reasons on the Board’s Motion for Summary Judgment.

13 Defendant argues Plaintiff did not make a claim of a sexually hostile work environment in her Second

Amended Complaint. (R. Doc. 481-1 at 3). However, Plaintiff addressed this claim in her opposition to the

motion for summer judgment (R. Doc. 432) and the Court has denied summary judgment on this claim (See

Order and Reasons on Board’s Motion for Summary Judgment).

14 R. Doc. 481-1 at p. 5.

15 Id.

16 Id. (citing Bosley v. Allain, 2011 U.S. Dist. LEXIS 45726 at *3-4 (M.D. La. Apr. 27, 2011).

related to discriminatory incidents outside of the statutory periods may be relevant to

Plaintiff’s remaining claims and are not unfairly prejudicial and therefore will deny the

Board’s request to exclude this evidence. The Plaintiff will not be allowed to offer

evidence, argument or testimony regarding her dismissed civil RICO claims against the

Board or to elicit testimony that the Board engaged in a conspiracy or an illegal scheme

and the request to exclude this evidence will be granted.17

Accordingly, the Board’s Motion in Limine No. 1 will be denied in part and granted

in part.

II. The Board’s Motion in Limine No. 2 will be denied.

In its Motion in Limine No. 2,18 the Board seeks exclusion of evidence, argument,

and testimony related to events outside the statutory period for Plaintiff’s Title IX and

Title VII claims.19 The Court acknowledges that Plaintiff’s recovery for Title IX and Title

VII claims are limited to events that took place after April 8, 2020 and June 19, 2020,

respectively.20 The Court also has held that discrete incidents of racial or sexual

harassment occurring in 2016 or before may not be used under the “continuing violation

theory” to support Plaintiff’s claim that there was a pattern or practice of harassment so

severe and pervasive as to constitute a hostile work environment.21

Nevertheless, incidents occurring outside of the statutory period may be used as

evidence of a discriminatory or retaliatory atmosphere regarding Plaintiff’s remaining

Title IX and/or Title VII claims. “[B]ecause an employer's past discriminatory policy and

practice may well illustrate that the employer's asserted reasons for disparate treatment

17 The Court held that neither party may introduce the Fifth Circuit’s opinion in Lewis v. Danos, No. 22-

30670 (5th Cir. Oct. 12, 2023). R. Doc. 505.

18 R. Doc. 483.

19 Id. at p. 1.

20 See R. Doc. 107 and Order and Reasons on the Board’s Motion for Summary Judgment).

21 See Order and Reasons on the Board’s Motion for Summary Judgment.

are a pretext for intentional discrimination, this evidence should normally be freely

admitted at trial.”22 A background of discrimination or retaliation may be probative of an

instance of that same type of discrimination. Blanket evidentiary exclusions are

particularly disfavored in employment discrimination cases “in which plaintiffs must face

the difficult task of persuading the fact-finder to disbelieve an employer’s account of its

own motives.”23

The Board’s Motion in Limine No. 2 will be denied.24

III. The Board’s Motion in Limine No. 4 will be denied.

In its Motion in Limine No. 4,25 the Board seeks exclusion of evidence, argument,

and testimony regarding Frank Wilson’s alleged sexual harassment of Plaintiff before

2016 and regarding whether LSU investigated Plaintiff’s allegations about Wilson after

her termination in 2022.26

The Board argues evidence of Wilson’s alleged sexual harassment of Plaintiff prior

to 2016 is irrelevant to Plaintiff’s remaining Title IX retaliation claim, which only involves

conduct occurring after April 8, 2020.27 The Court has recently held that there is a genuine

issue of material fact as to who ordered Plaintiff’s termination and why.28 To the extent

Wilson’s past harassment of Plaintiff was known to the individual(s) who terminated

Plaintiff and to the extent Plaintiff’s reporting of said harassment was causally connected

to her termination, the evidence is probative and not unfairly prejudicial.

The Board further argues evidence of Wilson’s alleged sexual harassment of

22 Id. (quoting Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350, 359 (5th Cir. 1995)).

23 Hawkins v. Hennepin Technical Center, 900 F.2d 153, 155(8th Cir.

24 R. Doc. 483.

25 R. Doc. 486.

26 Id. at p. 1.

27 R. Doc. 486-1 at pp. 3-4.

28 Order and Reasons on the Board’s Motion for Summary Judgment.

Plaintiff prior to 2016 cannot be used to establish her Title VII hostile work environment

claim, which may only involve conduct occurring after June 19, 2020.29 As discussed

above, the Court has held that discrete incidents of sexual harassment occurring in 2016

or before may not be used under the “continuing violation theory” to support Plaintiff’s

claim that there was a pattern or practice of harassment so severe and pervasive as to

constitute a hostile work environment on the basis of sex.30

Nevertheless, incidents occurring outside of the statutory period may be used as

evidence of a discriminatory atmosphere regarding Plaintiff’s Title VII claim for a hostile

work environment on the basis of sex. “[B]ecause an employer's past discriminatory

policy and practice may well illustrate that the employer's asserted reasons for disparate

treatment are a pretext for intentional discrimination, this evidence should normally be

freely admitted at trial.”31

Finally, the Board argues evidence of Wilson’s rehiring and/or the failure of LSU

to investigate allegations of Wilson’s sexual harassment after Plaintiff’s termination

should be excluded.32 The Board claims these events did not occur during Plaintiff’s

tenure at LSU, and so could not have been evidence of hostile work environment or

retaliation against her.33

Plaintiff has not raised any allegations regarding Wilson’s conduct towards her

after his rehire. However, Plaintiff has argued Wilson’s rehiring evinces sexual

discrimination and/or retaliation on the part of the decisionmaker(s) who were aware of

Plaintiff’s allegations of sexual harassment against Wilson and nonetheless rehired him.34

29 R. Doc. 486-1 at pp. 4-5.

30 Order and Reasons on the Board’s Motion for Summary Judgment.

31 Id.

32R. Doc. 486-1 at 7.

33 Id.

34 See, e.g., R. Doc. 432 at p. 25.

As such, evidence regarding the rehiring of Wilson is relevant to Plaintiff’s remaining

claims for Title VII sex discrimination and hostile work environment and/or Title IX

retaliation.

The Board claims Plaintiff is not entitled to introduce evidence regarding any

investigation, or lack thereof, of Wilson that occurred after her termination since “this

post-termination conduct is not at issue.”35 The Court acknowledges Plaintiff may not

recover for any claims based on post-termination conduct by the Board, and Plaintiff does

not assert any such claims. However, Plaintiff’s remaining Title VII and Title IX claims

involve a genuine issue of material fact as to who ordered Plaintiff’s termination and

why.36 To the extent the individual(s) who terminated Plaintiff were aware of Plaintiff’s

allegations of Wilson’s sexual harassment and failed to investigate them, the evidence is

probative and not unfairly prejudicial.

Accordingly, the Board’s Motion in Limine No. 4 will be denied.

IV. The Board’s Motion in Limine No. 6 will be granted in part and

denied in part.

In its Motion in Limine No. 6,37 the Board seeks exclusion of evidence, argument,

and testimony related to Board involvement in athletics.38 Specifically, the Board seeks to

exclude any evidence related to “(1) Southern Association of Colleges and Schools

Commission on Colleges (“SACSCOS”) Standard 5.2.b; (2) the termination of Joe Alleva;

and (3) the hiring of Scott Woodward.”39 The Board argues this evidence is not relevant

to any of Plaintiff’s remaining Title IX or Title VII claims, since, it claims “Brian Kelly is

the person who made the decision to terminate Lewis, not the Board of Supervisors.”40

35 R. Doc. 486-1 at 11.

36 Order and Reasons on the Board’s Motion for Summary Judgment.

37 R. Doc. 488.

38 Id. at p. 1.

39 R. Doc. 488-1 at p.1.

40 Id. at p. 4.

The Court grants the Board’s request to exclude evidence regarding the

termination of Joe Alleva and the hiring of Scott Woodward. This testimony is irrelevant

to Plaintiffs allegations and has no probative value. Any slight probative value it may have

is outweighed by the risk of unfair prejudice.#

SACSCOS Standard 5.2.b may have some relevance to the disputed issue of

material fact as to who ordered Plaintiff's termination.42 Accordingly, the Court denies

the Board’s request to exclude this evidence.

The Board’s Motion in Limine No. 6 will therefore be granted in part and denied

in part.

CONCLUSION

Accordingly;

IT IS ORDERED that the Board’s Motions in Limine Nos. 2, and 4, are DENIED

and Motions in Limine Nos. 1 and 6 are DENIED IN PART and GRANTED IN

PART.43

New Orleans, Louisiana, this 3rd day of December, 2023.

Sexe —_

SUSIE ont

UNITED STATES DISTRICT JUDGE

41 Neither will the Plaintiff be allowed to elicit testimony regarding Will Wade.

42 Order and Reasons on the Board’s Motion for Summary Judgment.

43 R, Docs. 481, 483, 486, 488.