The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
STANFORD FASSETT, )
)
Plaintiff, )
)
vs. ) Case No. 16-01221-CV-W-ODS
)
VENDTECH-SGI, LLC, )
)
Defendant. )
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
Pending 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 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 that justifies a change in the
Court’s interlocutory ruling.
Plaintiff’s Motions in Limine
(1) Any suggestion that Plaintiff must show more than a “contributing factor”
Plaintiff 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.
This 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.
(2) Any suggestion the government or FPS was at fault
Plaintiff 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.
The 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.
(3) Evidence of Plaintiff’s Federal Tort Claims Act claim against FPS
Plaintiff 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.
Although 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 trial.
(4) Testimony concerning whether Plaintiff’s age or race had anything to do
with his hiring
While 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 excluded.
(5) Any suggestion that there must be direct evidence of racist comments
Plaintiff 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.
(6) Evidence Plaintiff was not qualified for his position
Plaintiff 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 Work.
(7) EEOC and MCHR investigation, comments, and conclusions
Plaintiff 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 proceedings.
(8) Use of the petition to cross-examine witnesses or argue the case
Plaintiff 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.
(9) Evidence of collateral source earnings of Plaintiff
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.
“Under 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 by
lost income. Accordingly, Plaintiff’s motion is granted. Evidence regarding Plaintiff’s
earnings from collateral sources shall be excluded.
(10) Ages of Plaintiff’s adult children
Plaintiff seeks to exclude references to the oldest child’s age because it may
unfairly prejudice Plaintiff if jurors do not condone a child born out of wedlock.
Defendant does not oppose this motion. Accordingly, this motion is granted.
(11) Any mention of Plaintiff changing his surname
Plaintiff asks the Court to exclude evidence that his surname on his birth
certificate was “Devore,” but he later legally changed his surname to “Fassett.”
Defendant does not oppose this motion. Accordingly, this motion is granted.
(12) Grandview police report concerning a lost or stolen weapon
Plaintiff’s personnel file contains a police report in which he reported a gun stolen
from his home. Plaintiff later found the gun, and corrected the police report. Plaintiff
seeks to exclude evidence of the police report. Defendant does not oppose this motion.
Accordingly, this motion is granted.
(13) Expert testimony
Because Defendant has not identified an expert witness, Plaintiff asks the Court
to preclude Defendant from offering any expert testimony at trial. Defendant does not
oppose this motion so long as Plaintiff is precluded from offering expert testimony at
trial. Plaintiff’s motion and Defendant’s request are granted.
(14) Witnesses or evidence not disclosed
To the extent Defendant did not disclose witnesses or evidence pursuant to Rule
26 of the Federal Rules of Civil Procedure or in discovery responses, Plaintiff asks that
those witnesses and evidence be excluded. Plaintiff also contends Defendant should
be precluded from calling anyone other than the four individuals listed in its Rule
26(a)(1) disclosures. In general, Defendant does not oppose this motion. Defendant
clarifies its Rule 26(a)(1) disclosures also listed “witnesses identified by Plaintiff,” and
“individuals whose identity is made known throughout the course of discovery.” Doc.
#60-2. While Defendant should have supplemented its Rule 26(a)(1) disclosures, many
witnesses were identified during the course of discovery. For example, witnesses
identified in answers to interrogatories have been known. And any witnesses who were
deposed have been identified. Plaintiff’s motion is granted; however, Defendant will not
be limited to the four individuals listed on its Rule 26(a)(1) disclosures, so long as the
proffered witness has been identified to Plaintiff during the course of discovery.
(15) Evidence of the affirmative defense of failure to exhaust
Plaintiff asks to exclude evidence of the affirmative defense of failure to exhaust
administrative remedies. Defendant does not oppose this motion. Accordingly, this
motion is granted.
(16) Evidence of the affirmative defense of statute of limitations
Plaintiff seeks to exclude evidence related to the statute of limitations affirmative
defense. Defendant does not oppose this motion. Accordingly, this motion is granted.
(17) Evidence or argument that all actions taken by Defendant were taken in
good faith or reasonable business judgment based on legitimate reasons
Plaintiff seeks to prohibit Defendant from setting forth evidence or arguing its
decisions with regard to Plaintiff were business judgments or were made in good faith.
Defendant opposes the motion, arguing the amendments to the MHRA require the
Court to give a business judgment instruction. Defendant also contends that, prior to
the amendments, one Missouri appellate court held a trial court would not create
reversible error if it decided not to give a business judgment instruction.
As set forth in the Court’s Order on the motion for summary judgment, the
amendments to the MHRA will not be applied retrospectively. Accordingly, the
legislature’s directive to give a business judgment instruction does not apply to this
matter. In this regard, Plaintiff’s motion is granted. However, Defendant is permitted to
elicit or introduce evidence setting forth why it made the decisions it did with regard to
Plaintiff. In this respect, Plaintiff’s motion is denied.
(18) Evidence of the affirmative defense of failure to mitigate
Plaintiff argues Defendant, who has the burden of demonstrating failure to
mitigate damages, has no evidence that he failed to mitigate his damages. He asks that
the Court exclude any argument or reference to the failure to mitigate. Defendant
opposes the motion, arguing it properly pleaded this affirmative defense, and a
reasonable jury could conclude Plaintiff did not reasonably in trying to mitigate his
damages. The Court agrees with Defendant. Plaintiff’s motion is denied.
(19) Any assertion of an affirmative defense not included in Defendant’s answer
Plaintiff asks the Court to exclude evidence of any affirmative defense not
included in Defendant’s answer. Defendant does not oppose this motion so long as
Plaintiff is precluded from presenting evidence or making arguments regarding matters
not raised in his Petition. Defendant contends Plaintiff should not be permitted to
present evidence related to his vacation allotment because he did not mention anything
about a vacation allotment in his Petition. Defendant provides no other examples, and
as such, it is unclear what other matters may not have been raised in the Petition.
In the Petition, Plaintiff alleged he lost benefits and privileges at work because of
Defendant’s conduct. Doc. #1-1, ¶¶ 19, 24, 28, 32, 37, 41, 52. The Court believes
vacation time is a benefit of employment, and fins the vacation allotment matter was
raised in Plaintiff’s Petition. Plaintiff’s motion is granted, and Defendant’s request is
denied.
(20) Any mention of financial adversity or prosperity
Plaintiff contends evidence or argument about Defendant’s financial status
should be excluded from trial until a finding of liability for punitive damages is made.
Defendant does not oppose this motion. Accordingly, this motion is granted.
(21) Evidence of dismissed claims
Plaintiff seeks to preclude evidence, argument, or reference to claims that have
been dismissed or claims on which the Court has granted summary judgment.
Defendant does not oppose this motion. Accordingly, this motion is granted.
(22) Speculation or facts of which a witness has no personal knowledge
Plaintiff asks the Court to exclude testimony that amounts to speculation or
conjecture. Defendant does not oppose the motion so long as Plaintiff is precluded
from presenting testimony from any witness that amounts to speculation or conjecture.
Plaintiff’s motion is granted, and Defendant’s request is granted.
(23) Evidence, argument, and inference regarding Plaintiff accessing the legal
system, Plaintiff’s motives, or Plaintiff’s counsel’s motives
Plaintiff argues Defendant should not be permitted to attack Plaintiff’s motivation
for exercising his legal rights or to impugn Plaintiff’s counsel. Defendant does not
oppose Plaintiff’s request, and agrees to refrain from presenting argument or evidence
regarding Plaintiff’s decision to obtain counsel, file charges or the lawsuit, using terms
such as “lawyer-driven,” questioning Plaintiff’s motives, or attacking Plaintiff’s counsel.
However, Defendant objects to any limitation to its ability to talk about the case being
about money, particularly with regard to the remedies Plaintiff seeks. Defendant argues
it should not be precluded from arguing the inappropriateness of Plaintiff’s request for
monetary relief or the absence of proof to support such a request. Plaintiff’s motion is
granted. Defendant’s request is also granted.
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 the wealth or size of Defendant 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 comment on the undue complexity
Defendant is seeking to create, particularly if there are several attorneys and exhibits.
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 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 Kaseem Hurley, 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 Hurley’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. Brown was accused of sleeping on
the job, and urinating inside a guard shack. Hill was accused of being argumentative
and disrespectful. 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 in any way 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 Kaseem Hurley’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. Unfortunately, neither
party points to or describes any particular legal proceeding or administrative charge it
would like excluded or admitted. As such, the Court does not have sufficient
information at this time to consider this motion. Accordingly, this motion is denied
without prejudice.
(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 the 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 be a windfall. Defendant’s motion and Plaintiff’s request are granted.
(8) Evidence regarding settlement negotiations
Pursuant to Rule 408 of the Federal Rules of Evidence, Defendant asks the
Court to exclude evidence regarding settlement negotiations. Plaintiff does not oppose
this motion. This motion is granted.
(9) Evidence or arguments regarding discovery disputes and objections
Defendant moves to exclude testimony, evidence, and argument concerning
alleged delay in or inadequacy of discovery responses, or objections to discovery.
Plaintiff does not oppose this motion so long as it applies to both parties. Defendant’s
motion and Plaintiff’s request are granted.
(10) Evidence or statements regarding court orders
Defendant argues the parties should not be permitted to make arguments or
statements regarding the Court’s rulings and orders. Plaintiff does not oppose this
motion. Accordingly, the motion is granted.
(11) Evidence of punitive damages
Defendant moves to exclude evidence or argument relating to Plaintiff’s claims
for punitive damages until the jury has determined punitive damages are warranted.
Plaintiff does not oppose the motion if the case is bifurcated, and he has the opportunity
to present evidence of Defendant’s finances during the punitive damages phase.
Defendant’s motion is granted in part and denied in part. To the extent Plaintiff is
asking to bifurcate the trial, that request is denied. The Court will not allow evidence
relevant to punitive damages unless and until it has determined Plaintiff has established
a submissible claim for punitive damages.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
DATE: February 21, 2018 ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT