Kessling v. Ohio State University

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TIFFANY KESSLING, DDS,

Plaintiff,

:

v.

Case No. 2:20-cv-1719

Judge Sarah D. Morrison

Magistrate Judge Chelsey M.

OHIO STATE UNIVERSITY, et

Vascura

al.,

:

Defendants.

OPINION AND ORDER

This matter is before the Court on several motions in limine.

I. STANDARD OF REVIEW

Motions in limine allow the Court to rule on the admissibility of evidence in

advance of trial to expedite proceedings and provide the parties with advance notice

of the evidence upon which they may not rely to prove their case. Bennett v. Bd. of

Educ. of Washington Cnty. Joint Vocational Sch. Dist., No. 2:08-CV-0663, 2011 WL

4753414, at * 1 (S.D. Ohio Oct. 7, 2011) (Marbley, J.). The motions therefore serve

“to narrow the issues remaining for trial and to minimize disruptions at trial.”

United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999). To prevail on a motion

in limine, the movant must show that the evidence is clearly inadmissible. Bennett,

2011 WL 4753414, at * 1. If the movant fails to meet this high standard, a Court

should defer evidentiary rulings so that questions of foundation, relevancy, and

potential prejudice may be resolved in the context of trial. Henricks v. Pickaway

Corr. Inst., No. 2:08-CV-580, 2016 WL 4577800, at *2 (S.D. Ohio Sept. 2, 2016).

Whether to grant a motion in limine is within the discretion of the trial court; the

Court may reconsider the admissibility of evidence and even change its ruling on a

motion in limine “as the proceedings give context to the pretrial objections.” Id.

(citing Branham v. Thomas M. Cooley Law Sch., 689 F.3d 558, 562 (6th Cir. 2012)).

II. CROSS-MOTIONS IN LIMINE REGARDING DISMISSED ADVERSE

ACTIONS (ECF Nos. 79, 92.)

The parties filed cross-motions in limine regarding the admissibility of

evidence related to actions that the Court found were not independently adverse at

summary judgment. Though both motions are opposed, the parties agree that many

of the actions about which Kessling originally complained are not suitable issues for

trial.

A. Background

Remaining for trial are Kessling’s Title VII and Title IX retaliation claims

against OSU (Counts I and II) and her § 1983 First Amendment retaliation claim

against Lloyd in his individual capacity (Count III). Kessling based her claims on

the following 20 actions:

(1) Dr. Lloyd threatened to withdraw Dr. Kessling’s academic

appointment;

(2) Drs. Lloyd and Larsen restricted Dr. Kessling’s clinical privileges to

extract teeth;

(3) Ms. Sowers and Dr. Van Putten denied Dr. Kessling additional time

that she requested in the James Clinic;

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(4) Dr. Kessling’s time at the James Clinic was cut from four days to two;

(5) Dr. Kessling was reassigned to less favorable duties within the College;

(6) OSU did not renew Dr. Kessling’s contract and she was instead offered

a less favorable contract;

(7) Defendants did not assist Dr. Kessling with obtaining her board

certification;

(8) Dr. Van Putten was disrespectful to Dr. Kessling;

(9) Dr. Lloyd encouraged Dr. Van Putten to make false allegations about

Dr. Kessling’s competency;

(10) Ms. Sowers collected false information about Dr. Kessling;

(11) Ms. Sowers and Dr. Old demanded that she be removed from the

James Clinic;

(12) Ms. Sowers and Dr. Old imposed an arbitrary deadline for her to

obtain her laser credentials and failed to give her help;

(13) Ms. Sowers and Dr. Old accused her of misusing a laser on a patient;

(14) Ms. Sowers imposed a punitive scheduling template on her;

(15) Ms. Sowers and Dr. Old attacked her productivity and sought to revoke

accommodations given to her for breastfeeding and childcare;

(16) Ms. Sowers and Dr. Old attacked her for mentioning her legal rights in

the workplace:

(17) Ms. Sowers and Dr. Old threatened to refer her to the professionalism

committee;

(18) Ms. Sowers accused her of dishonesty and unprofessionalism;

(19) Dr. Van Putten downgraded his assessment of Dr. Kessling’s clinical

skills in her credentialing application and delayed her recertification to

perform laser procedures; and

(20) Dr. Larsen interfered with Dr. Kessling’s credentialing renewal.

(ECF No. 61, PAGEID # 5860–95.) Kessling argued that each action was an

independent adverse action and that all twenty actions amounted to retaliatory

harassment when considered in aggregate.

On Defendants’ motion for summary judgment, the Court reviewed the

evidence and arguments for each action and found that Kessling could proceed to

trial on actions (1), (2), and (5) individually but concluded that none of the other

seventeen actions were independent adverse actions. (Summary Judgment Opinion

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and Order, ECF No. 72.) The Court did not address whether all twenty actions

collectively constituted retaliatory harassment. (Id. at 28.)

B. Analysis

Defendants move to exclude references and evidence regarding the seventeen

actions that the Court found were not independently adverse, arguing that none is

relevant to the issues remaining for trial and, even if they were, their probative

value is substantially outweighed by the risk of undue delay and time wasted at

trial. (ECF No. 79, PAGEID # 6708.) Kessling responds that she does not intend to

present “the entire array of actions she believes were retaliatory.” (ECF No. 98,

PAGEID # 6792.) Instead, she moves to permit evidence related to actions (4), (6),

(8), and (19), arguing that those actions, though not independently adverse, are

vital to proving her retaliation claims under a theory of retaliatory harassment.

(ECF No. 92, PAGEID # 6756–59; see also ECF No. 98.)

The Court agrees with Kessling that several of the non-adverse actions are

relevant to and probative of her retaliatory harassment theory and must be

permitted at trial. As such Kessling’s motion to permit testimony and evidence of

actions (4), (6), (8), and (19) is GRANTED. (ECF No. 92.) Defendants’ motion to

exclude is DENIED as to those actions and is GRANTED in all other respects.

(ECF No. 79).

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III. DEFENDANTS’ MOTIONS IN LIMINE

A. Motion in Limine to Bifurcate Trial on Punitive Damages and

to Exclude Wealth Evidence from Liability Stage (ECF No. 77)

Defendants move to bifurcate trial on issues of liability and the quantification

of punitive damages on Kessling’s First Amendment retaliation claim against Dr.

Lloyd. In addition, Defendants move to exclude evidence about Lloyd’s wealth from

the liability stage of trial. Kessling agrees with Defendants’ Motion. (Resp., ECF

No. 97.) Accordingly, Defendants’ Motion to Bifurcate Trial on Punitive Damages

and to Exclude Wealth Evidence from Liability Stage is GRANTED. (ECF No. 77.)

B. Motion in Limine Regarding the Questioning of Witnesses at

Trial (ECF Nos. 79)

Defendants filed a motion seeking to complete all questioning of defense

witnesses called during Kessling’s case in chief at the time they are first called to

the stand. (ECF No. 79.) They argue that it would be inefficient and inconvenient

for witnesses to testify twice in the same case. Kessling agrees that defense counsel

should be permitted to complete all questioning of defense witnesses when they are

first called except for Defendant Lloyd. (ECF No. 98.)

The Federal Rules of Evidence give trial courts discretion in controlling the

mode and order of examining witnesses so as to “make those procedures effective for

determining the truth, avoid wasting time, and protect witnesses from harassment

or undue embarrassment.” Fed. R. Evid. 601(a). Defense counsel’s direct

examination of Lloyd will likely be lengthier and cover more topics than what

Kessling will cover in her case in chief. And, as a defendant in this case, Lloyd will

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not be inconvenienced by testifying twice. Thus, deferring Lloyd’s direct

examination until Defendants’ case will allow for the most orderly and efficient

presentation of evidence at trial.

Accordingly, Defendants’ Motion In Limine Regarding the Questioning of

Witnesses at Trial is DENIED as to Defendant Lloyd and GRANTED as to all

other defense witnesses. (ECF No. 79.)

C. Motion in Limine to Exclude Evidence Regarding the

Investigation in which Kessling Participated (ECF No. 95)

Defendants move to exclude all evidence related to OSU’s internal

investigation of a gender discrimination complaint made against Van Putten. They

argue that statements made by Kessling and others during the investigation,

investigation reports, and any disciplinary actions resulting from the investigation

must be excluded because (1) the evidence is not relevant to any non-stipulated

issues, (2) the probative value of the evidence is substantially outweighed by the

dangers of unfair prejudice, of confusing the issues, and of misleading the jury, and

(3) much of the evidence includes inadmissible hearsay. Recognizing that Kessling’s

participation as a witness in the HR investigation is the protected activity on which

her retaliation claims are based, Defendants offer to stipulate that she engaged in a

protected activity but ask that the jury be instructed not to concern themselves with

facts underlying that activity.

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1. Statements that Kessling made during the HR

investigation will not be excluded.

Starting with statements made by Kessling during the HR investigation,

Kessling argues that the content of her complaints (i.e. that Van Putten and Lloyd

discriminated against her and others because of their gender) is relevant to show

that her protected activity motivated the subsequent actions taken against her.

(ECF No. 99, PAGEID # 6795–97.) She further argues that the probative value of

such evidence is routinely found to outweigh the risks of unfair prejudice at trial.

(Id. at 6795–97, 6800–01.)

The Fourth Circuit’s decision in Buckly v. Muskasey is instructive. 538 F.3d

306, 318–19 (4th Cir. 2008). In that case, a special agent for the Drug Enforcement

Agency brought a Title VII retaliation claim against her employer alleging that the

Agency retaliated against her for participating in a race-discrimination class action

brought against it. Id. at 308–09. Although her participation in the race-

discrimination litigation was the protected activity that formed the basis for her

retaliation claim, the trial court severely limited the agent’s ability to discuss the

substance of that litigation. Id. 317–18. On appeal, the Circuit Court reversed the

trial court’s decision as an abuse of discretion, explaining that:

By prohibiting Buckley from introducing evidence of the [prior

litigation] in all but the most sanitized terms, the court prevented

Buckley from demonstrating why her participation in that litigation so

rankled the relevant DEA decisionmakers that they were provoked to

retaliate against her. . .. [R]etaliation claims like hers, which are based

on retaliation for pursuing discrimination claims in the past, are

inextricably linked to past acts of discrimination. Because such evidence

of prior bad acts speaks directly to the defendant’s motive or intent to

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retaliate, such evidence must be admitted if the plaintiff is to have any

real chance of proving her retaliation claim.

Id. at 319; see also King v. William Beaumont Hosp., No. 10-13623, 2012 WL

5463761, at *4 (E.D. Mich. Nov. 8, 2012) (allowing evidence of plaintiff’s race

discrimination complaint as background and to demonstrate retaliatory motive for

Title VII retaliation claim).

In order to prove her retaliation claim, Kessling must demonstrate that she

engaged in a protected activity and that a causal connection exists between her

protected activity and the adverse actions she suffered. See Nelson v. Christian Bros.

Univ., 226 Fed. Appx. 448, 454 (6th Cir. 2007) (Title VII and Title IX retaliation);

Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 255 (6th Cir. 2006) (First

Amendment retaliation). The statements Kessling made to investigators are relevant

to whether Defendants acted with a retaliatory motive.

Given the probative value of Kessling’s statements, that evidence will not be

excluded ahead of trial. To the extent Defendants object to specific statements by

Kessling on hearsay grounds, those objections will be more appropriately addressed

in context at trial.

2. Statements made by other employees, including those

made by the original complainant, are excluded under

Rule 403.

As for the statements by the complainant and other witnesses during the HR

investigation, Kessling argues that they will provide the jury with helpful context

for understanding her statements and Defendants’ alleged retaliatory motive. (ECF

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No. 99, PAGEID # 6795.) Though other employees’ statements would provide some

background for the statements Kessling made, the minimal probative value is

substantially outweighed by the risk of unfair prejudice in the form of improper

propensity evidence and would require minitrials on the veracity of other

individual’s complaints. See Fed. R. Evid. 403; Fed. R. Evid. 404 (propensity

evidence). As such, statements made by others who participated in the HR

investigation are excluded from trial.

3. Other evidence related to the HR investigation will not be

excluded ahead of trial.

Kessling argues that other evidence related to the HR investigation provides

necessary background for her retaliation claims. (ECF No. 99, PAGEID # 6797–99.)

The Court agrees. Unlike the statements made by others, information about the

investigation itself—how it was conducted and what Defendants knew about it—

may provide important context for Kessling’s claims without running the risk of

unfair prejudice or unnecessarily expanding the issues at trial. As such, it will not

be excluded under Rule 403. To the extent that Defendants object to specific reports

or testimony on hearsay or other grounds, those objections will be more

appropriately addressed in context at trial.

4. Summary Conclusion on Motion to Exclude

Accordingly, Defendants’ motion to exclude evidence regarding OSU’s

investigation of Van Putten is DENIED as to statements made by Kessling during

the investigation, investigation reports, and the results of the investigation and is

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GRANTED as to statements made by other witnesses, including the original

complainant, prior to and during the investigation.

IV. KESSLING’S MOTIONS IN LIMINE

A. Motion in Limine to Exclude Evidence Regarding to Kessling’s

Work Performance (ECF No. 93)

Kessling moves to exclude evidence regarding her work performance that was

collected by Ms. Sowers. (ECF No. 93.) Defendants argue that information about

Kessling’s work performance is necessary to show that Defendants had a non-

retaliatory motive for taking certain actions against her. (ECF No. 96.) Kessling

argues that the information Sowers collected cannot be used to show a non-

retaliatory motive and must excluded for two reasons. First, Kessling argues that

the probative value of evidence about her work performance is substantially

outweighed by the risk of unfair prejudice and of unnecessarily expanding the

issues at trial. She argues that documents and emails identifying issues with her

work performance are inaccurate and either predated or are factually distinct from

retaliatory actions taken against her. However, in ruling on her separate motion in

limine discussed above, the Court will allow Kessling to present evidence that Van

Putten (1) “falsely accused her of providing below-standard care” (part of action (8))

and (2) that he “downgraded” his evaluation of her (part of action (19)). This

evidence opens the door to Defendants’ evidence showing that that Kessling

provided substandard care and that she deserved a downgraded evaluation.

Whether Van Putten was aware of issues with Kessling’s work performance and

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whether his concerns with her performance were valid are fertile grounds for cross

examination, they are not reasons for excluding probative evidence at trial.

Second, Kessling argues that a jury could not find that Defendants were

motivated to take certain actions due to issues with her work performance without

contradicting the Summary Judgment Opinion and Order. According to Kessling,

the Court found that none of the work-performance information collected by Sowers

“was relied upon or used to take” an adverse action against her. (ECF No. 93,

PAGEID # 6762.) The Court made no such finding. Instead, the Court concluded

that Kessling failed to submit evidence connecting Sowers’s collection of information

to an adverse action taken against her. (Summary Judgment Opinion and Order,

ECF No. 72, at 21–22.) The Court’s conclusion that Kessling failed to meet her

burden of production is a far cry from an affirmative finding that Defendants were

unaware of information about her work performance and that such information did

not motivate the actions taken against her. Thus, permitting evidence about

Kessling’s work performance at trial would not lead a jury to contradict the Court’s

findings at summary judgment.

Accordingly, Kessling’s motion in limine to exclude evidence about her work

performance is DENIED. (ECF No. 93.)

B. Motion in Limine to Exclude References to Court’s Dismissal of

Parties and Claims and to the Findings of the Ohio Civil Rights

Commission (ECF No. 94)

Kessling moves to exclude references to (1) the Court’s dismissal of certain

claims and defendants at summary judgment and (2) the disposition of Kessling’s

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prior charge to the Ohio Civil Rights Commission. (ECF No. 94.) Defendants do not

oppose this Motion in Limine, so it is GRANTED.

V. CONCLUSION

For the reasons set forth above:

• Kessling’s Motion to Permit Evidence Regarding Actions (4), (6), (8), and

(19) is GRANTED. (ECF No. 92.) Defendants’ cross-motion to exclude is

DENIED as to those actions and is GRANTED in all other respects.

(ECF No. 79).

• Defendants’ Motion to Bifurcate Trial on Punitive Damages and to

Exclude Wealth Evidence from Liability Stage is GRANTED. (ECF No.

77.)

• Defendants’ Motion In Limine Regarding the Questioning of Witnesses at

Trial is DENIED as to Defendant Lloyd and is GRANTED as to all other

defense witnesses. (ECF No. 79.)

• Defendants’ Motion in Limine to Exclude Evidence Regarding the

Investigation in which Kessling Participated is GRANTED as to

statements made by individuals other than Kessling prior to and during

the investigation and DENIED in all other respects. (ECF No. 95.)

• Kessling’s Motion in Limine to Exclude Evidence Regarding to Her Work

Performance is DENIED. (ECF No. 93.)

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• Kessling’s Motion in Limine to Exclude References to the Court’s

Dismissal of Parties and Claims and to the Findings of the Ohio Civil

Rights Commission is GRANTED. (ECF No. 94.)

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE

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