The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI
NOBLE MASERU, : Case No. 1:18-cv-106
Plaintiff, Judge Matthew W. McFarland
v
UNIVERSITY OF CINCINNATI,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
MOTION IN LIMINE (Doc. 79)
This case is before the Court on the following issues raised by Defendant
University of Cincinnati's Motion in Limine (Doc. 79). The motion seeks, pursuant to Fed.
R. Evid. 104(a), an order in limine preventing Plaintiff Noble Maseru from offering the
following evidence at trial:
(i) Any reference to, testimony, or argument about alleged acts of
discrimination by the University or its employees, including other lawsuits or
charges of discrimination. This prohibition is not intended to Plaintiff's race
discrimination claim;
(ii) | Any reference to, testimony, or argument about the University’s hiring
process and decisions related to the Assistant Professor of Health Policy
Management position;
(iii) Any reference to, testimony, or argument about statistical evidence
regarding the race of employees in the University’s Environmental Health
Department, the University, the City of Cincinnati, or racial climate of society in
general;
(iv) Any reference to, testimony, or argument asking the jurors to “send a
message” or to act as the “conscience of the community,”
(v) | Any reference to, testimony, or argument about the financial position or
resources of the University of Cincinnati;
(vi) Any reference to, testimony, or argument about the University’s Motion for
Summary Judgment, this Court’s decision regarding that Motion, or any other
pretrial rulings in this case; and
(vii) Any reference to, testimony, or argument asking jurors to treat Maseru as a
family member or a friend for purpose of their deliberations, or similar comments
disallowed under jurisprudence related to the “Golden Rule” style of argument.
I. Standard
The purpose of motions in limine is “to avoid delay and ensure an evenhanded
and expedient trial by ruling on certain evidentiary issues in advance of trial.” Enoch v.
Hamilton County Sheriff, No. 1:16-cv-661, 2022 WL 614687, *3 (S.D. Ohio Mar. 2, 2022). This
Court adjudicates motions in limine under its “inherent authority to manage the course
of trials.” Luce v. United States, 469 U.S. 38, 41 n. 4 (1984). Only when evidence is clearly
inadmissible on all potential grounds should a court exclude evidence in limine. Enoch,
2022 WL 614687 at *3. “Unless evidence meets this high standard, evidentiary rulings are
generally deferred until trial[,] so that questions of foundation, relevance, and potential
prejudice may be resolved in the [trial] context.” Encoch, 2022 WL 614687 at *3. It is the
moving party’s burden to show that the evidence it seeks to exclude is clearly
inadmissible. Corp. Commce’n Serv. of Dayton, LLC v. MCI Commce’n Serv., Inc., No. 3:08-cv-
046, 2010 WL 1445169, *1 (S.D. Ohio Apr. 12, 2010).
Denial of a motion in limine does not mean that the evidence is guaranteed to be
admitted at trial; the court will hear objections to such evidence if and when they arise at
trial. Gresh v. Waste Servs. of Am., Inc., 738 F. Supp. 2d 702, 706 (E.D. Ky. 2010). And the
court has the discretion to alter a previous in limine ruling during trial. Luce, 469 US. at
41-42.
II. Analysis
A. Other Alleged Acts of Discrimination by UC
First, UC asks the Court to exclude “any reference to, testimony, or argument
about alleged acts of discrimination by the University or its employees, including other
lawsuits or charges of discrimination.” (Motion in Limine, Doc. 79, Pg. ID 1234.) UC
claims that, as a large public institution, UC has faced many different allegations of
discrimination that have no bearing on this case. UC also argues that any reference to
other alleged acts of discrimination is irrelevant, unfairly prejudicial, and would confuse
the issues for the jurors.
“Evidence that an employer engaged in a pattern or practice of discrimination may
be relevant to proving an otherwise-viable individual claim for disparate treatment under
the McDonnell Douglas framework.” Megivern v. Glacier Hills Inc., 519 F. App’x 385, 399
(6th Cir. 2013). “[W]hether such evidence is relevant is a case by case determination that
depends on many factors, including how closely related the evidence is to plaintiff's
circumstances and theory of the case.” Pelcha v. MW Bancorp, Inc., 455 F. Supp. 3d 481, 508
(S.D. Ohio 2020) (internal quotations omitted).
Evidence of alleged acts of discrimination by UC, generally, would be irrelevant
to Plaintiff’s claims, unduly prejudicial, and risk confusion of the issues, thus warranting
exclusion pursuant to Fed. R. Evid. 403. However, alleged acts of discrimination within
UC’s Department of Environmental Health would be relevant to Plaintiff’s claims, such
as evidence of racial discrimination within the hiring process of professors with the
Department. See Storrs v. University of Cincinnati, No. 1:15-cv-136, 2018 WL 684759, *7
(S.D. Ohio Feb. 2, 2018). Such evidence’s probative value to Plaintiff's claims is not
substantially outweighed by undue prejudice or risk of confusing the issues, because
such evidence would be directly related to whether UC’s Department of Environmental
Health has a pattern or practice of discrimination.
Accordingly, UC’s Motion in Limine (Doc. 79), to the extent it seeks to exclude
references to other allegations or claims against UC, is GRANTED IN PART and
DENIED IN PART. Specifically, the motion is DENIED to the extent it seeks to exclude
evidence of racial discrimination in the Department of Environmental Health. To the
extent the motion seeks exclusion of other unrelated claims or allegations of
discrimination, it is GRANTED.
B. UC’s Process and Decision Related to the Assistant Professor Position
Second, UC asks the Court to exclude “any reference to, testimony, or argument
about the University’s hiring process and decisions related to the Assistant Professor of
Health Policy Management position.” (Motion in Limine, Doc. 79, Pg. ID 1234.) UC
argues that such evidence is irrelevant and would mislead the jury. Plaintiff claims that
such request is overbroad. The Court agrees with Plaintiff.
Plaintiff's claims are based on UC’s hiring process in its entirety. UC’s hiring
process for the Associate Professor position and Assistant Professor position were
intertwined. It appears that those who applied for either position were considered for
both the Associate Professor and Assistant Professor positions. Thus, the entirety of the
hiring process, including UC’s consideration of applicants for the Assistant Professor
position, is probative to Plaintiff's claims. And UC fails to show how evidence of the
hiring process and decisions related to the Assistant Professor position would mislead
the jury. Thus, UC failed to satisfy its burden of showing that evidence regarding the
Assistant Professor position is clearly inadmissible.
Accordingly, UC’s Motion in Limine (Doc. 79), to the extent seeks to exclude
evidence of UC’s hiring process and decisions related to the Assistant Professor position,
is DENIED.
C. Demographic Statistics
Third, UC asks the Court to exclude “JaJny reference to, testimony, or argument
about statistical evidence regarding the race of employees in the University’s
Environmental Health Department, the University, the City of Cincinnati, or racial
climate in society in general.” (Motion in Limine, Doc. 79, Pg. ID 1234.) Again, UC makes
the argument that such evidence is irrelevant and unfairly prejudicial, pursuant to Fed.
R. Evid. 401 and 403. Plaintiff opposes exclusion of such evidence, arguing that UC’s
request is overbroad.
Under Sixth Circuit precedent, statistics are not admissible as evidence of pretext
where the plaintiff does not establish the number of qualified minorities available in each
labor market. Smith v. Leggett Wire Co., 220 F.3d 752, 761 (6th Cir. 2000). However, such
holding is limited to situations where a plaintiff solely relies on statistical evidence to
prove pretext. Specifically, the Sixth Circuit has held that statistical evidence is admissible
when a defendant’s “explanations are inherently suspect” or a plaintiff can offer “other
direct or circumstantial evidence suggesting that the proffered reasons are not true[.]”
Thompson v. Ohio State Univ., 639 F. App’x 333, 341-42 (6th Cir. 2016). Here, the Court has
previously held that Plaintiff possesses enough evidence for a reasonable juror to
determine that UC’s proffered reasons are pretextual. (See Order Denying Defendant's
Motion for Summary Judgment, Doc. 70.) Outside of mentioning that a broad array of
such demographic statistics would be unfairly prejudicial or confuse the jury, UC fails to
satisfy its burden that such evidence, as it relates to the Department of Environmental
Health, is clearly inadmissible.
However, UC has established that statistical evidence relating to the
demographics of all of UC’s employees and the City of Cincinnati’s employees is clearly
inadmissible. For evidence to be relevant, it must have: (1) “any tendency to make a fact
more of less probable than it would be without the evidence;” and (2) “the fact is of
consequence in determining the action.” Fed. R. Evid. 401. The demographics of those
employed by UC as a whole and the City of Cincinnati possesses neither requirement.
This case rises and falls on hiring practices within UC’s Department of Environmental
Health. Therefore, the Court agrees that the demographic makeup of UC employees or
the City of Cincinnati employees is clearly inadmissible.
Lastly, while UC asks this Court to order that neither Plaintiff nor his counsel may
make any mention of the social climate in our country, Plaintiff fails to make any
substantive argument or cite any case law on the issue. It is UC’s burden to show that
such reference would be clearly inadmissible. It failed to do so.
Thus, UC’s Motion in Limine (Doc. 79), to the extent it seeks to exclude any
reference, testimony, or argument of statistical evidence regarding the race of employees
in UC’s Environmental Health Department, UC, the City of Cincinnati, or racial climate
in society in general, the motion is GRANTED IN PART and DENIED IN PART. First,
the motion is DENIED to the extent it seeks to exclude statistical evidence regarding the
race of employees in UC’s Department of Environmental Health. Second, the motion is
GRANTED to the extent it seeks to exclude statistics regarding the race of employees at
UC or the City of Cincinnati. Lastly, the motion is DENIED to the extent seeks to exclude
any evidence of the racial climate in society.
D. Sending a Message and Conscience of the Community Comments
Fourth, UC asks the Court to exclude “[a]ny reference to, testimony, or argument
asking the jurors to ‘send a message’ or to act as the ‘conscience of the community.”
(Motion in Limine, Doc. 79, Pg. ID 1234.) UC argues that such statements are inherently
prejudicial because they urge the jury to render a verdict based on “passion and
prejudice.” (Id. at Pg. ID 1239.) The Court agrees. Statements such as these “should be
excluded as they would inappropriately ask the jury to assume a position adversarial” to
UC. Storrs, 2018 WL 684759 at *8. Thus, UC’s Motion in Limine (Doc. 79) is GRANTED
to the extent it seeks to exclude references by Plaintiff or counsel that the jury should
“send a message” or act as the “conscience of the community” when deliberating.
E. UC’s Financial Position and Resources
Fifth, UC asks the Court to exclude “any reference to, testimony, or argument
about the financial position or resources of the University.” (Motion in Limine, Doc. 79,
Pg. ID 1234.) UC argues that such comments are irrelevant pursuant to Fed. R. Civ. P.
401. UC also argues that any minimal probative value such evidence has is outweighed
by the danger of confusing and inflaming the jury and is thereby inadmissible pursuant
to Fed. R. Civ. P. 403.
Again, the Court agrees with UC. Any slight probative value reference to UC’s
financial resources is clearly outweighed by the real danger of unfair prejudice and risk
of misleading the jury. See Storrs, 2018 WL 684759; see also Pierano v. Momentive Specialty
Chem., Inc., No. 2:11-cv-00281, 2012 WL 5389830 (S.D. Ohio Nov. 5, 2012). Thus, pursuant
to Fed. R. Civ. P. 403, UC’s Motion in Limine (Doc. 79) is GRANTED to the extent it seeks
to exclude any reference or argument relating to UC’s financial resources.
F. Prior Filings and Orders
Sixth, UC also seeks exclusion of any reference to, testimony, or argument
regarding prior filings in this case, specifically UC’s Motion for Summary Judgment (Doc.
56) and this Court’s Order Denying Defendant University of Cincinnati’s Motion for
Summary Judgment (Doc. 70) and any other pretrial rulings. UC argues that any evidence
relating to pretrial motions and files is irrelevant and inadmissible pursuant to Fed. R.
Evid. 403.
The Court agrees that any reference to the fact that UC filed a motion for summary
judgment and this Court’s subsequent order denying the motion is irrelevant to the issues
to be decided at trial. See Storrs, 2018 WL 684759 at *3. Additionally, even if evidence of
the motion and order had any probative value, such slight probative value would be
substantially outweighed by danger of confusing the issues and misleading the jury.
However, the blanket exclusion of “any other pretrial rulings” is overbroad at this stage.
See id. Without the benefit of context, the Court is unwilling to go so far as to exclude all
references made to any prior rulings in this case.
Thus, UC’s Motion in Limine (Doc. 79) is GRANTED IN PART and DENIED IN
PART to the extent it seeks to exclude reference to the Motion for Summary Judgment,
the Order Denying University of Cincinnati Motion for Summary Judgment and any
other prior rulings. The motion is GRANTED to the extent it seeks to exclude reference
to UC’s Motion for Summary Judgment (Doc. 56) and this Court’s Order Denying
University of Cincinnati’s Motion for Summary Judgment (Doc. 70). However, the
motion is DENIED to the extent it seeks to exclude reference to all other pretrial rulings.
G. The Golden Rule
Lastly, UC asks the Court to exclude any reference to, testimony, or argument by
Plaintiff or his counsel that the jury should “treat [Plaintiff] as a family member or a friend
for purpose of their deliberations . . .” (Motion in Limine, Doc. 79, Pg. ID 1235.) As this
Court has held in the past, “golden rule style arguments are improper because they ask
jurors to be partial.” Storrs, 2018 WL 684759 at *8. Thus, UC’s Motion in Limine (Doc. 79)
is GRANTED to the extent it seeks to exclude “Golden Rule” arguments.
III. Conclusion
For the reasons above, the Court rules as follows:
(1) The Court GRANTS IN PART and DENIES IN PART Defendant's motion in
limine to the extent it seeks to exclude any reference to, testimony, or argument
about alleged acts of discrimination by Defendant or its employees, including
other lawsuits or charges of discrimination. Specifically, the motion is DENIED
to the extent it seeks to exclude evidence of racial discrimination in the
Department of Environmental Health. To the extent the motion seeks exclusion
of other unrelated claims or allegations of discrimination, it is GRANTED.
(2) The Court DENIES Defendant's motion in limine to the extent it seeks to
exclude any reference to, testimony, or argument about Defendant's hiring
process and decision related to the Assistant Professor of Health Policy
Management position.
(3) The Court GRANTS IN PART and DENIES IN PART Defendant's motion in
limine to the extent it seeks to exclude any reference to, testimony, or argument
about statistical evidence regarding the race of employees in Defendant's
Environmental Health Department, the Defendant, generally, the City of
Cincinnati, or racial climate of society in general. First, the motion is DENIED
to the extent it seeks to exclude statistical evidence regarding the race of
employees in UC’s Department of Environmental Health. Second, the motion
is GRANTED to the extent it seeks to exclude statistics regarding the race of
10
employees at UC or the City of Cincinnati. Lastly, the motion is DENIED to
the extent seeks to exclude any evidence of the racial climate in society.
(4) The Court GRANTS Defendant's motion in limine to the extent it seeks to
exclude any reference to, testimony, or argument asking the jurors to “send a
message” or to act as the “conscience of the community.”
(5) The Court GRANTS Defendant's motion in limine to the extent it seeks to
exclude any reference to, testimony, or argument about the financial position
or resources of Defendant.
(6) The Court GRANTS IN PART and DENIES IN PART Defendant's motion in
limine to the extent it seeks to exclude any reference to, testimony, or argument
about Defendant’s Motion for Summary Judgment (Doc. 56), the Court’s Order
Denying Defendant University of Cincinnati’s Motion for Summary Judgment
(Doc. 70), or any other pretrial rulings in this case. Specifically, the motion is
GRANTED to the extent it seeks to exclude reference to UC’s Motion for
Summary Judgment (Doc. 56) and this Court’s Order Denying University of
Cincinnati’s Motion for Summary Judgment (Doc. 70). However, the motion is
DENIED to the extent it seeks to exclude reference to all other pretrial rulings.
(7) The Court GRANTS Defendant’s motion in limine to the extent it seeks to
exclude any reference to, testimony, or argument asking jurors to treat Plaintiff
as a family member or a friend for purpose of their deliberations, or similar
comments disallowed under jurisprudence related to the “Golden Rule” style
argument.
11
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
JUDGE MATTHEW W,. McFARLAND
12