# Summers v. City of Charlotte

> District Court, W.D. North Carolina · November 4, 2022

URL: https://www.frixlaw.com/law-library/cases/10259088

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** November 4, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:18-cv-00612-RJC-DSC

SYLIVIA SMITH-PHIFER and LANCE )
PATTERSON, )
)
Plaintiffs, )
)
v. ) Order
)
CITY OF CHARLOTTE, )
)
Defendant. )
)

THIS MATTER comes before the Court on the Parties’ motions in limine. (Doc. Nos. 263
& 267). In the interest of providing the parties with the Court’s rulings ahead of trial, the Court
below lists the Parties’ relevant filings by docket number, a summary of the request, and the
Court’s ruling. Additionally, the Court reserves ruling until they arise at trial on Defendant’s
numerous objections made in chart-form to Plaintiff’s exhibits and its general objections to various
categories of documents or other evidence, unless otherwise ruled on herein. (Doc. Nos. 281, 281-
1).
I. OVERLAPPING REQUESTS

Doc. No. Request Ruling
Plaintiffs’ Request: The Court should rule that
Plaintiffs’ expert Dr. Kurt Geisinger is qualified to
provide expert opinion testimony regarding his
statistical analysis of the promotional process
utilized by Defendant in the 2015-2018 battalion Plaintiffs’ request is GRANTED
chief promotional processes. subject to voir dire qualification at trial.
264; 268
Defendant’s request is DENIED
Defendant’s Request: The Court should exclude WITHOUT PREJUDICE.
testimony from Plaintiffs’ expert witness Kurt
Geisinger to the extent it is not based on sufficient
facts or data, his report is not the product of reliable
principles and methods, he failed to reliably apply
Doc. No. Request Ruling
the principles to the facts of this case, or it otherwise
does not satisfy Fed. R. Evid. 702.
Plaintiff’s request is GRANTED IN
PART. Defendant’s request is
Plaintiffs’ Request: The Court should take judicial DENIED WITHOUT PREJUDICE.
notice of demographic information for the City of The Court will take judicial notice of
Charlotte based on census data from the United relevant United States Census Bureau
States Census Bureau. information presented by Plaintiffs at
264; 268;
trial. Carter v. Ball, 33 F.3d 450 (4th
281
Defendant’s Request: The Court should exclude Cir.1994); Luh v. J.M. Huber Corp., 211
demographic and diversity data including U.S. Fed. App’x 143 (4th Cir. 2006); see also
Census Bureau data regarding race in Charlotte from United States v. Cecil, 836 F.2d 1431,
2010 and 2020. 1452 (4th Cir. 1988); Hollinger v. Home
State Mut. Ins. Co., 654 F.3d 564, 571-
72 (5th Cir. 2011).
Subject to any Court rulings on specific
objections, Plaintiffs’ request is
GRANTED. Defendant’s request is
DENIED.
Fed. R. Civ. P. 32(a)(8) and advisory
Plaintiffs’ Request: The Court should allow
notes; Fed. R. Evid. 801(d)(2)(D); see
Plaintiffs to introduce deposition testimony of Ron
also Kinslow v. 5 Star Field Srvcs.
Carlee and Sheila Simpson from Eschert v. City of
Group, LLC, No. 1:19-cv-1605-MLB,
Charlotte.
264; 268; 2021 WL 3493564, at *3 (N.D. Ga.

281 Aug. 9, 2021)’ Pinkney v. Winn-Dixie
Defendant’s Request: The Court should exclude
Stores, Inc., No. CV214–075, 2014 WL
deposition testimony, trial transcripts from Eschert
7272551, at *2 (S.D. Ga. Dec. 17,
v. City of Charlotte.
2014); In re 3M Combat Arms Earplug

Prod. Liability Litigation, 338 F.R.D.
167, 170 (N.D. Fla. 2021); Brown v.
Vivint Solar, Inc., --- F.Supp.3d ----,
2020 WL 2513518, at *2-3 (M.D. Fla.
2020).
Plaintiffs’ Request: The Court should allow
Plaintiffs to introduce deposition testimony of
Plaintiffs’ request is DENIED.
Mayor Lyles and City Manager Jones.
268; 271- Defendant’s request is GRANTED.

12 Fed. R. Civ. P. 32(a)(3), (4); Fed. R.

Civ. P. 30(b)(6).
Defendant’s Request: The Court should exclude
deposition testimony of Marcus Jones and Vi Lyles.
Subject to any Court rulings on specific
Plaintiffs’ Request: The Court should allow
objections Plaintiffs’ request is
268; 271- Plaintiffs to introduce deposition testimony of Ron
GRANTED. Defendant’s request is
12 Carlee and Brian Schweitzer.
DENIED. Fed. R. Civ. P. 32(a)(4)(B).
Doc. No. Request Ruling
Defendant’s Request: The Court should exclude
deposition testimony of Ron Carlee & Brian
Schweitzer.
Plaintiffs’ Request: The Court should allow
The Court reviewed David Morris’s
Plaintiffs to introduce deposition testimony of David
deposition testimony and concludes
268; 271- Morris.
based on the depositions that
12; 281
Defendant’s request is GRANTED.
Defendant’s Request: The Court should exclude
Plaintiffs’ request is DENIED.
deposition testimony of Dr. Morris.
Plaintiffs’ Request: The Court should allow Plaintiff
Defendant’s request is GRANTED
to introduce evidence dated before 2015, including
subject to reconsideration at trial if the
specifically from Plaintiffs’ exhibit list exhibits 14,
Plaintiffs persuade the Court that the
24, 43, 44, 10, 23, and 49, as background information
probative value is substantially
supporting Plaintiffs’ claims or as evidence showing
outweighed by a danger of unfair
264; 268; a pattern and practice of discrimination.
prejudice, confusing the issues,
281
misleading the jury, undue delay,
Defendant’s Request: The Court should exclude
wasting time, or needlessly presenting
evidence of events prior to 2015, specifically
cumulative evidence. Plaintiff’s request
documents related to the 2006-2014 promotional
is DENIED WITHOUT
processes and seven comparator witnesses related to
PREJUDICE. Fed. R. Evid. 403.
the promotional processes between 2009 and 2014.
II. DEFENDANT’S REQUESTS

Doc. No. Request Ruling
Neither granted nor denied. Defendant
fails to identify any specific witness or
exhibit that is duplicative, repetitive,
The Court should not allow Plaintiff to introduce,
and/or cumulative. However, the Court
admit into evidence, or otherwise refer to
264 will not waste the jury’s time with
duplicative, repetitive, and/or cumulative evidence
duplicative, repetitive, and/or cumulative
at trial.
evidence. The Court will consider at trial
any objections or requests to exclude
specific testimony and exhibits.
GRANTED. Plaintiffs did not file
deposition transcript excerpts from
Clumpner v. City of Charlotte as such the
Court does not anticipate Plaintiffs
The Court should exclude Plaintiffs’ use of
264; 271- introducing depositions from Clumpner
deposition transcripts from Clumpner v. City of
12; 281 v. City of Charlotte. The Court will
Charlotte.
consider at trial any objections or
requests related to such deposition
transcripts if Plaintiffs attempt to
introduce such transcripts.
The Court should exclude the Motion for Summary
Judgment filed in the Clumpner v. City of Charlotte
264 GRANTED.
case and the Complaint and the City’s Answer from
Summers v. City of Charlotte.
Neither granted nor denied. Of course,
The Court should not permit Plaintiff’s counsel to personal opinions of lawyers are not
make comments in front of the jury regarding her permitted. The Court will not tolerate
264 opinion that the City did not provide certain counsel for either party making
documents that were not questions to witnesses, but inappropriate and/or potentially
rather personal opinions and impressions. prejudicial comments, opinions, and/or
impressions in front of the jury.
DENIED. The Court rejects
Defendant’s failure to exhaust argument
related to the following Title VII claims:
(1) Smith-Phifer’s claims based on the
2015, 2018, and 2019 promotional
The Court should exclude evidence regarding Title
processes; and (2) Patterson’s claims
264; 281 VII claims for which Plaintiffs failed to exhaust
based on the 2018 promotional process.
administrative remedies.
Fort Bend County v. Davis, 139 S. Ct.
1843, 1849 (2019); Walton v. Harker, 33
F.4th 165, 175 (4th Cir. 2022); Fed. R.
Civ. P. 8(c)(1); Jones v. Bock, 549 U.S.
199, 212 (2007).
Doc. No. Request Ruling
Neither granted nor denied. Of course,
The Court should exclude any hearsay testimony, hearsay is not admissible unless an
264
documents or other records. exception applies. The Court will apply
the Federal Rules of Evidence.
The Court should exclude any testimony from
264 Plaintiff’s expert witness Kurt Geisinger as it relates GRANTED.
to Plaintiffs’ claims before 2015 and after 2018.
DENIED WITHOUT PREJUDICE.
Defendant fails to provide with any
specificity the reasons that the Court
The Court should exclude testimony from Plaintiff’s
264 should exclude Dr. Moira Artigues
expert witness Dr. Moira Artigues.
testimony. The Court will apply Federal
Rule of Evidence 702 to any expert
testimony.
The Court should exclude testimony from Plaintiffs’
expert witnesses until a sufficient foundation for Neither granted nor denied. The Court
264 their expertise has been established and a sufficient will apply Federal Rule of Evidence 702
factual foundation for the expert witnesses’ opinions to any expert testimony.
has been established.
Defendant’s request is GRANTED
subject to reconsideration at trial if the
Plaintiffs persuade the Court that the
probative value is substantially
The Court should exclude evidence of other cases of outweighed by a danger of unfair
discrimination and retaliation levied against the prejudice, confusing the issues,
Charlotte Fire Department, including but not limited misleading the jury, undue delay,
to, any evidence related to claims made by Larkin wasting time, or needlessly presenting
264; 281
Anderson, Lee Belton, Michael Clumpner, Kent cumulative evidence. Plaintiff’s request
Davis, Crystal Eschert, Larry Mackey, Shane Nantz, is DENIED WITHOUT PREJUDICE.
Marty Puckett, Tim Rogers, Greg Sharpe, or Willie Fed. R. Evid. 403.
Summers.
Subject to the Court’s ruling on any other
objections made, this decision does not
limit Plaintiffs from calling these
witnesses for other reasons.
DENIED as to Nick Delacanal for the
The Court should exclude 14 potential witnesses that
limited purpose of authenticating an
were not previously disclosed by Plaintiffs in either
exhibit. Fed. R. Civ. P. 37(c)(1);
their Rule 26 Initial Disclosures or supplements
Southern States Rack & Fixture, Inc. v.
Rule 26 disclosures. Those witnesses are: Pam
Sherwin-Williams Co., 3118 F.3d 592,
264; 281 Barkley, Kevin Coppage, Vicki Foster, Austin
597 (4th Cir. 2003).
Nantz, Lee Belton, Nick Delacanal, Victoria

Johnson, Glenn Jones, Tommy McClain, Gary
DENIED as to Kevin Coppage, Vicki
McCormick, Jerry Newfarmer, Harry Peyton,
Foster, Austin Nantz, Greg Sharpe,
Mechelle Price, and Greg Sharpe.
Victoria Johnson. Fed. R. Civ. P.
Doc. No. Request Ruling
37(c)(1); Southern States Rack &
Fixture, Inc. v. Sherwin-Williams Co.,
3118 F.3d 592, 597 (4th Cir. 2003).

GRANTED as to Lee Belton, Glenn
Jones, Tommy McClain, Gary
McCormick, Harry Peyton, Mechelle
Price, Pam Barkley, and Jerry
Newfarmer to the extent Plaintiffs seek to
call these witnesses during their case-in-
chief. Fed. R. Civ. P. 37(c)(1); Southern
States Rack & Fixture, Inc. v. Sherwin-
Williams Co., 3118 F.3d 592, 597 (4th
Cir. 2003).
RESERVE RULING. The Plaintiffs
shall not call these witnesses until further
argument before the Court and the
The Court should exclude testimony from two Court’s ruling. The Court notes that the
264; 281
former City of Charlotte attorneys. proponent of the attorney-client privilege
bears the burden to demonstrate its
applicability. See Hawkins v. Stables,
148 F.3d 379, 382-83 (4th Cir. 1998).
RESERVE RULING. Plaintiffs assert
that they intend to admit a single exhibit
that is a recording or interview the Fire
Chief. The Court is willing to complete
an in camera review of the interview if
The Court should exclude all newspaper articles and Plaintiffs submit it for the Court’s
264; 281
news stories. review. Plaintiffs are not permitted to
introduce the interview without further
review and ruling from the Court due to
potential prejudice, confusing the issues,
and misleading the jury pursuant to Fed.
R. Evid. 403.
GRANTED. The Court will issue an
adverse inference instruction on the
relevant lost or destroyed responsive
The Court should not permit Plaintiff to broadly and
documents. The Court will consider any
generally state in front of the jury that documents are
objections to exclude comments made by
missing, lost, or have been destroyed, but should
264 Plaintiffs and their counsel as they arise.
only be allowed to discuss documents or information
However, the Court will not tolerate
actually missing that are relevant to Plaintiff’s
counsel for either party making
claims.
inappropriate and/or potentially
prejudicial comments, opinions, and/or
impressions in front of the jury.
Doc. No. Request Ruling
The Court should exclude evidence of front pay and
264; 281 GRANTED.
back pay before the jury.
The Court should exclude the Court’s discovery
orders, Memorandum & Recommendation, and the GRANTED IN PART AND DENIED
Order Adopting the Memorandum & IN PART, as to the Court’s Orders
Recommendation. Additionally, the Court should pursuant to Fed. R. Evid. 401 & 403. The
264; 281
not allow Plaintiff to reference, allude to, address Court will consider any objections made
during voir dire, or introduce or elicit testimony or during trial as to the City’s discovery
evidence of any objections stated in any of the City’s responses if they arise.
written responses to discovery.
Il. PLAINTIFFS’ REQUESTS
Ruling
The Court should exclude Aaron Phifer’s
Complaint, his claims, and his deposition testimony. GRANTED.
DENIED WITHOUT PREJUDICE.
The Court should allow Plaintiff to introduce | The Court will allow the use of Chief
268 deposition testimony of Former Fire Chief Jon | Hannan’s deposition testimony if Chief
Hannan. Hannan does not appear and comply with
the trial subpoena.
The Court should exclude evidence of the reasons DENIED WITHOUT PREJDUICE.
. ae The Court will consider at trial any
268 Defendant did not promote Plaintiffs or the reasons □□□
. . . objections or requests to exclude specific
why it selected other candidates for promotions. . ws
testimony and exhibits.
The Court exclude Defendant from arguing that it
investigated Plaintiff Smith-Phifer’s July 1, 2016 | DENIED WITHOUT PREJDUICE.
268 discrimination complaint, March 2, 2017 grievance, | The Court will consider at trial any
and June 30, 2018 complaint; and Plaintiff | objections or requests to exclude specific
Patterson’s May 12, 2016 grievance and June 1, | testimony and exhibits.
2018 grievance.

SO ORDERED.

November 3, 2022

Robert J. Conrad, Jr. 9,
United States District Judge “ee

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10259088. Public record. Not legal advice.