Wamsley

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT WINCHESTER

SKYLAR WAMSLEY, )

)

Plaintiff, )

) No. 4:24-cv-76

v. )

) District Judge Curtis L. Collier

BEDFORD COUNTY, ) Magistrate Judge Christopher H. Steger

)

Defendant. )

M E M O R AN D U M

Before the Court are four motions in limine by Defendant Bedford County. The first is a

motion in limine to exclude from evidence photographs showing Plaintiff in the hospital (Doc. 27-

7) under Federal Rules of Evidence 401, 402, and 403. (Doc. 33.) The second is a motion in

limine to exclude from evidence medical records or photographs of medical records (Doc. 27-9)

under Federal Rule of Civil Procedure 37 and Federal Rule of Evidence 802. (Doc. 34.) The third

is a motion in limine to exclude lay testimony regarding Plaintiff’s injury. (Doc. 35.) And the

fourth is a motion to exclude evidence of four of Bedford County’s prior termination decisions.

(Doc. 36.) Plaintiff has responded to all four motions (Docs. 43–46) and Defendant has replied

(Docs. 50–53).

I. BACKGROUND

Plaintiff has brought claims alleging discrimination, retaliation, and failure to reemploy

under §§ 4311 and 4312 of the Uniformed Services Employment and Reemployment Rights Act

of 1994 (“USERRA”), 38 U.S.C.S. §§ 4301–4334. (Doc. 20 at 3–5.) Plaintiff alleges his

termination from that position was motivated in part by his military status. (Id.)

Plaintiff was hired by the Bedford County Juvenile Detention Center (“JDC”) on April 10,

2023. (Doc. 28 at 1.) During the hiring process, Plaintiff informed JDC Director Kellee Smith

that he was a member of the National Guard and, as such, would have to take time away for Guard

duty and drills. (Id. at 2; Doc. 27-3 at 30.) This consisted of both weekend training periods and

two-week-long training periods. (Doc. 27-3 at 30.) Plaintiff provided Ms. Smith with a screenshot

of his schedule, including the dates on which he would have to take leave. (Doc. 28 at 1; Doc.

27-2.) Ms. Smith informed Plaintiff that Bedford County would work with his National Guard

schedule. (Doc. 27-3 at 27.) For the first ninety days of his employment, he was a probationary

employee, which meant Ms. Smith had the right to terminate him without disciplinary action or

coaching sessions. (Doc. 28 at 2.)

One of Plaintiff’s two-week training periods began on June 15, 2023. (Doc. 27-2 at 1.)

The next day, on June 16, 2023, Ms. Smith sent an email to Human Resources (“HR”)

representative Shanna Boyette, stating that “[her] last hire, Skylar Wamsley, isn’t going to work

out,” and asking to keep his job posting up “until [she] can work out his release from work.” (Doc.

27-4 at 2.) Plaintiff was not terminated at this point.

On June 29, 2023, while on training leave, Plaintiff texted Ms. Smith to inform her that he

fell six feet onto his back and was rushed to the emergency room during his training. (Doc. 27-6

at 2.) His mother took photographs of Plaintiff at the hospital. (Doc. 27-7.) Plaintiff told Ms.

Smith he had been released from training for the past three days and had physical therapy

scheduled for one-and-a-half weeks later. (Doc. 27-6 at 2.) Ms. Smith told Plaintiff that she

would notify HR and told him to touch base with her in a few days. (Id. at 3.) On July 4, 2023,

Ms. Smith informed Plaintiff that Bedford County would need a doctor’s note clearing him before

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he came back to work. (Id. at 4.) Plaintiff responded that he had an upcoming follow-up

appointment, then he asked if he would get paid while he was out. (Id. at 4–5.) Ms. Smith

responded that he would not get paid because he did not have any leave built up. (Id. at 5.)

On July 7, 2023, Ms. Smith informed Plaintiff that his services were no longer needed and

she would be sending him a separation notice. (Id. at 5.) Previously, Bedford County had

terminated four other employees: Mr. Lynch in 2023 (Doc. 36-2 at 1–2), Ms. Reed (Doc. 36-3 at

1–2), Mr. Hart in 2024 (Doc. 36-5 at 1), and Ms. Draine in 2021 (Doc. 36-6).

This case is set for trial May 11, 2026.

II. STANDARD OF REVIEW

A motion in limine is “designed to narrow the evidentiary issues for trial and to eliminate

unnecessary trial interruptions.” Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013).

“Orders in limine which exclude broad categories of evidence should rarely be employed.”

Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). “A better practice

is to deal with questions of admissibility of evidence as they arise.” Id. Courts have power to

exclude evidence through a motion in limine only when evidence is “clearly inadmissible on all

potential grounds.” Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004).

Motions in limine “are not proper procedural devices for the wholesale disposition of theories or

defenses.” Bell v. Prefix, Inc., No. 05-74311, 2009 U.S. Dist. LEXIS 101889 at *3 (E.D. Mich.

Nov. 2, 2009). “A court enjoys broad discretion when it decides questions of relevance and

possible prejudice.” Clark v. Louisville-Jefferson Cnty. Metro Gov’t, No. 3:17-CV-00419-GNS-

CHL, 2025 U.S. Dist. LEXIS 259653, at *4 (W.D. Ky. Dec. 16, 2025).

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III. DISCUSSION

A. Defendant’s first motion in limine

Defendant moves to exclude photographs of Plaintiff in the hospital (Doc. 27-7). (Doc.

33.) Defendant argues these photographs are not relevant because they do not show where Plaintiff

was, whether he was injured during military service, or that the injury required a recovery period.

(Doc. 33 at 2.) Defendant also argues even if these photographs are probative, their probative

value is “substantially outweighed by the danger of prejudice to the County and misleading the

jury.” (Id. at 3.) Plaintiff argues the photographs are relevant and testimony at trial would be

sufficient to establish additional facts about them. (Doc. 43 at 2.) Plaintiff also argues the danger

of unfair prejudice of these photographs does not substantially outweigh their probative value. (Id.

at 3.) The Court will first address Defendant’s relevance objection, then it will address

Defendant’s unfair prejudice objection.

Irrelevant evidence is inadmissible. Fed. R. Evid. 402. Evidence is relevant if “it has any

tendency to make a fact more or less probable than it would be without the evidence” and “the fact

is of consequence in determining the action.” Fed. R. Evid. 401. “The Federal Rules of Evidence

set a low bar for relevance.” Cambio Health Sols., LLC v. Reardon, 234 F. App’x 331, 338 (6th

Cir. 2007). “A piece of evidence does not need to carry a party’s evidentiary burden in order to

be relevant; it simply has to advance the ball.” Dortch v. Fowler, 588 F.3d 396, 401 (6th Cir.

2009).

Here, the photographs clear that low bar. They depict Plaintiff in the hospital. And

Plaintiff’s mother submitted a declaration (Doc. 27-8) stating that Plaintiff is her son, she took the

two photographs, they were posted to her Facebook account on June 25, 2023, and they are a true

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and accurate representation of the photographs she took. (Id. at ¶¶ 1–4.) To prevail at trial,

Plaintiff must prove there was an injury during his National Guard training that triggered the

convalescence period to toll his reporting obligation under 38 U.S.C. § 4312(e)(2). Photographs

of Plaintiff, injured, taken immediately after his training could make it more likely that Plaintiff

was injured within the meaning of § 4312(e)(2). Of course, such evidence may not be conclusive;

depending on the trial presentation, they may not even be helpful. But a jury is in the best position

to make that determination. “Vigorous cross-examination, presentation of contrary evidence, and

careful instruction on the burden of proof are the traditional and appropriate means of attacking

shaky but admissible evidence.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993)

(citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).

Defendant also argues that even if relevant, these photographs should be excluded under

Federal Rule of Evidence 403. The Court may exclude relevant evidence “if its probative value is

substantially outweighed by a danger of … unfair prejudice” or “misleading the jury.” Fed. R.

Evid. 403. Defendant argues “[t]he photographs are inherently ambiguous and could reasonably

be perceived as depicting either a person who has suffered a catastrophic spinal injury and is

unconscious or paralyzed, or alternatively, a person who is merely resting after a fall without

having sustained any significant injury.” (Doc. 33 at 3.) Plaintiff represents these photographs

are “highly probative” because they “go directly to the nature and severity of the injury in

question.” (Doc. 43 at 3.)

The probative value of the photographs is not substantially outweighed by the risk of unfair

prejudice. The probative value of these photographs is high. They contribute to a central,

contested issue in this case—whether Plaintiff was injured on his military leave such that his

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reporting period to return under 38 U.S.C. § 4312(e)(2) was tolled. And the danger of unfair

prejudice or misleading the jury is minimal, especially alongside testimony and other evidence

about the photographs. These photographs are no more ambiguous than any other photograph of

an injury that does not include a medical description in the photograph. And any ambiguity about

what the photographs depict—for example, whether they depict “either a person who has suffered

a catastrophic spinal injury and is unconscious or paralyzed, or alternatively, a person who is

merely resting after a fall without having sustained any significant injury” (Doc. 33 at 3)—can be

resolved on cross examination. “Unfavorable evidence is always prejudicial, but not always

impermissibly prejudicial, under the rules.” McDonald v. City of Memphis, No. 2:12-cv-2511,

2016 U.S. Dist. LEXIS 193726, at *14 n.6 (W.D. Tenn. Aug. 26, 2016). A jury may analyze these

photographs alongside the testimony and other evidence presented at trial and come to its own

conclusions about how much weight to give them or whether they prove what Plaintiff is using

them to show. But these photographs do not “invite[] the jury to decide the case on an improper

basis, unrelated to the probative value of the evidence.” United States v. Shrock, 855 F.2d 327,

335 (6th Cir. 1988). Therefore, the Court will DENY Defendant’s first motion in limine (Doc.

33).

B. Defendant’s second motion in limine

Defendant moves to exclude medical records or photographs of medical records1 from his

alleged military injury under Federal Rule of Civil Procedure 37 and Federal Rules of Evidence

1 Plaintiff attached to his response to Defendant’s motion for summary judgment a

photograph of the medical records (Doc. 27-9). To the extent that Plaintiff is in possession of the

paper copies of the medical records, this ruling applies to both the photographs of the records in

that exhibit, any other copies of those exhibits, and the actual records themselves.

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801 and 802. (Doc. 34.) Because the Court resolves this motion under Federal Rule of Civil

Procedure 37, it will not address Defendant’s hearsay arguments.

Defendant asserts Plaintiff “untimely produced these photographs for the first time in

response to the County’s [m]otion for [s]ummary [j]udgment.” (Doc. 34 at 2.) Plaintiff had

provided a medical records release for Defendant to obtain medical records “relating to the injury

[Plaintiff] allege[d] occurred during military training in June 2023.” (Doc. 34-2 at 15–16.) That

medical release was sent and returned no records, and when Defendant asked if Plaintiff had

records in his possession, Plaintiff’s counsel replied that he believed Plaintiff did not. (Doc. 34 at

2, Doc. 34-3 at 1.) On March 12, 2026, one day before filing a response to Defendant’s motion

for summary judgment, Plaintiff’s counsel notified Defendant that “on pressing [Plaintiff] further

he recalled they put him under a weird pseudonym at the hospital,” but that “he was able to find

the email he sent to his commanding officers with his records after the injury,” but that “a key page

on it is blurry, and he does not have the original.” (Doc. 34-4 at 1.)

Defendant argues that Plaintiff’s “failure to disclose these records was harmful and not

substantially justified” because Defendant has been deprived of the opportunity to test, verify, or

rebut the information and could not question Plaintiff, pursue further discovery, or question

medical providers. (Doc. 34 at 5.) Plaintiff argues that the delay in disclosure was harmless

because the records “do not inject a new theory or unexpected category of damages,” and

Defendant may cross-examine witnesses at trial about this evidence. (Doc. 44 at 4.)

Under Federal Rule of Civil Procedure 26, a party must provide “a copy—or a description

by category and location—of all documents, electronically stored information, and tangible things

that the disclosing party has in its possession, custody, or control and may use to support its claims

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or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(ii). If

a party “learns that in some material respect the disclosure or response is incomplete or incorrect,

and if the additional or corrective information has not otherwise been made known to the other

parties during the discovery process or in writing,” then the party must “supplement or correct its

disclosure or response.” Id. 26(e)(1).

“If a party fails to provide information or identify a witness as required by Rule 26(a) or

(e), the party is not allowed to use that information or witness to supply evidence on a motion, at

a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ.

P. 37(c)(1). “[H]armlessness . . . is the key under Rule 37, not prejudice.” Sommer v. Davis, 317

F.3d 686, 692 (6th Cir. 2003). The Court of Appeals for the Sixth Circuit has adopted five factors

to determine whether an omitted or late disclosure is substantially justified or harmless. Howe v.

City of Akron, 801 F.3d 718, 747–48 (6th Cir. 2015). Those factors are:

(1) the surprise to the party against whom the evidence would be offered; (2) the

ability of that party to cure the surprise; (3) the extent to which allowing the

evidence would disrupt the trial; (4) the importance of the evidence; and (5) the

nondisclosing party’s explanation for its failure to disclose the evidence.

Id. (quoting Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 396–97 (4th Cir. 2014)).

The burden is on the “potentially sanctioned party” to demonstrate harmlessness. R.C. Olmstead,

Inc. v. CU Interface, LLC, 606 F.3d 262, 272 (6th Cir. 2010). “District courts have broad discretion

in applying these factors and need not apply each one rigidly. The factors simply lend themselves

to the task at the heart of Rule 37(c)(1): separating ‘honest,’ harmless mistakes from the type of

‘underhanded gamesmanship’ that warrants the harsh remedy of exclusion.” Bisig v. Time Warner

Cable, Inc., 940 F.3d 205, 219 (6th Cir. 2019). Plaintiff acknowledges disclosure of these records

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was delayed. (Doc. 44 at 3.) The Court finds that Plaintiff’s failure to disclose these records was

not substantially justified and was not harmless.

First, the information was a surprise. Defendant did not have the medical records in its

possession nor the ability to retrieve them without knowledge of the pseudonym under which

Plaintiff was admitted, which Plaintiff had knowledge of. “[T]he advisory committee note to Rule

37 ‘strongly suggests that ‘harmless’ involves an honest mistake on the part of a party coupled

with sufficient knowledge on the part of the other party.” Borg v. Chase Manhattan Bank USA,

N.A., 247 F. App’x 627, 637 (6th Cir. 2007) (quoting Vance by & Through Hammons v. United

States, No. 98-5488, 1999 U.S. App. LEXIS 14943, at *16–17 (6th Cir. June 25, 1999))2. While

Defendant knew of the existence of medical records, it did not know the substance of the

information in those records and did not believe they would be available for trial. See RJ Control

Consultants, Inc. v. Multiject, LLC, 100 F.4th 659, 669 (6th Cir. 2024) (finding surprise to the

defendants even when expert witness was identified because the defendants would not have been

familiar with the substance of the testimony). This factor weighs against Plaintiff.

Second and third, the ability of Defendant to cure that surprise and the disruption to the

trial. Courts typically treat these two factors together. See, e.g., Caudle v. Nielsen Co. (US), LLC

No. 17-13737, 2020 U.S. Dist. LEXIS 211317, at *7–8 (E.D. Mich. Nov. 12, 2020); EQT Prod.

Co. v. Magnum Hunter Prod., Inc., No. 5:16-cv-150-JMH-REW, 217 U.S. Dist. LEXIS 80288, at

*12–13 (E.D. Ky. May 25, 2017). Because of this late disclosure, Defendant could not question

2 Plaintiff cites Stanley v. FCA U.S., LLC, 51 F.4th 215, 221 (6th Cir. 2022) for the

proposition that “corrective efforts weigh strongly against a finding of unjustified nondisclosure.”

(Doc. 44 at 4.) That is inapposite; it is about corrective action regarding bankruptcy asset

disclosure, not disclosure of evidence in a discovery dispute.

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Plaintiff about the medical records during his deposition nor pursue any other discovery in

response to the existence of these medical records. While Defendant may cross-examine Plaintiff

about such evidence at trial, it did not have the opportunity to develop this evidence through

depositions or during discovery. And trial is set for May 11, 2026, with the final pretrial

conference set for April 30, 2026; any more depositions or a re-opening of discovery would change

the trial date, which this Court intends to maintain. “Harm should be assessed based on the realities

of the situation, the case status, and the schedule.” EQT Prod., 2017 U.S. Dist. LEXIS 80288, at

*14. There would not be enough time to cure the defect without pushing back the trial date which

would disrupt both parties’ preparation and the Court’s calendar.

Fourth, the importance of the evidence. “On its own, this factor can cut both ways. ‘The

more important the proof, the greater the effect of preclusion, but also the greater the harm in tardy

disclosure.’” Bisig, 940 F.3d at 220 (quoting EQT Prod., 2017 U.S. Dist. LEXIS 80288, at *5).

Some courts have found that greater importance could weigh in favor of sanctions. See, e.g.,

Olmstead v. Fentress Cnty., No. 2:16-cv-00046, 2019 U.S. Dist. LEXIS 24356, at *18 (M.D. Tenn.

Feb. 14, 2019). Here, the evidence is important to develop Plaintiff’s case about whether he had

an injury within the meaning of 38 U.S.C. § 4312(e) that tolled the reporting period by which he

had to report to work. While there may be other possible evidence to that effect, including

testimony by Plaintiff and others, the photographs of medical records can establish the

convalescence period and the cause of injury. The Court finds this factor is neutral.

Finally, the explanation of the non-disclosing party for the delay. While Plaintiff provided

a medical records release, it was ineffectual because Plaintiff was treated under a pseudonym,

which made obtaining the records difficult. But Plaintiff asserts he was able to recall that they put

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him under a pseudonym and was able to find photos of the medical records in his email. (Doc. 29-

3.) This information was not provided to Defendant until after the dispositive-motion deadline

and until Plaintiff submitted his response to Defendant’s motion for summary judgment.

Plaintiff’s counsel was able to learn from his client that Plaintiff was treated under a pseudonym

“upon pressing him further,” and then Plaintiff “was able to find the email he sent to his

commanding officers with his records after his injury.” (Doc. 29-3 at 1.) This information could

have been obtained sooner with a search of Plaintiff’s email or with further questioning of Plaintiff.

Plaintiff also represents that he “produced these documents in connection with summary

judgment.” (Doc. 44 at 4.) But that fact works against Plaintiff. The fact that this supplement

came months after the initial deadline and only in response to Defendant’s summary-judgment

motion makes Plaintiff’s explanation about the difficulty of retrieving these records less salient,

and favors a finding against this being substantially justified. Vance, 1999 U.S. App. LEXIS

14943, at *15 (finding “the fact that the supplement came five months after the initial deadline and

that it came in response to a motion for summary judgment” to “ultimately tip[] the balance in

defendant’s favor on this issue”). The Court finds this factor favors Defendant.

Four of the five Howe factors favor Defendant. Therefore, the Court finds that the

photographs of the medical records were disclosed in violation of Rule 26 and the omission was

neither harmless nor substantially justified. Therefore, the Court will GRANT Defendant’s

second motion in limine (Doc. 34) and exclude the photographs of the medical records (Doc. 27-

9), other photographs of the medical records, and, to the extent the parties have access to the

medical records, the medical records themselves.

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C. Defendant’s third motion in limine

Defendant seeks to exclude lay testimony regarding Plaintiff’s injury under Federal Rules

of Evidence 702 and 403. Defendant argues “Mr. Wamsley’s mother and/or fiancé should not be

permitted to testify about (1) what caused Mr. Wamsley’s claimed injury, (2) the extent,

symptoms, or severity of Mr. Wamsley’s claimed injury, or (3) any facts beyond their personal

knowledge or that would require specialized knowledge.” (Doc. 35 at 1.) Plaintiff argues such

testimony is within their personal knowledge and “no medical or other specialized skill set is

needed to describe what they observed.” (Doc. 45 at 2.)

Under Federal Rule of Evidence 701, lay witness testimony is limited to testimony “(a)

rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s

testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701. A lay witness also may

only testify to a matter if the witness has personal knowledge of that matter. Fed. R. Evid. 602.

The Court will first address Defendant’s arguments about the symptoms and severity of Plaintiff’s

injuries and then will address Defendant’s arguments regarding causation.

“Lay opinion testimony on a specific medical diagnosis may not be admissible without

proper expert support, but lay testimony as to a plaintiff’s symptoms generally is.” Williams v.

Hamilton Cnty., Case No. 1:15-cv-74, 2018 U.S. Dist. LEXIS 55239, at *3–4 (E.D. Tenn. Mar.

31, 2018) (citing McDonald, 2016 U.S. Dist. LEXIS 193726, at *5). “Courts have held that lay

witnesses can testify regarding injuries they witness, such as bruising.” Hornback v. Czartorski,

No. 3:20-cv-703-RGJ, 2022 U.S. Dist. LEXIS 166699, at *4 (W.D. Ky. Sep. 14, 2022).

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Here, the Court finds that Plaintiff’s mother and fiancée are in a position to observe the

character and extent of Plaintiff’s injuries they witnessed. Such testimony would not be improper

lay opinions. Their testimony would be limited to their observations of Plaintiff in the hospital,

his recovery, and the injuries they observed with their own senses. It does not require medical

expertise to testify to mere observations of Plaintiff and symptoms Plaintiff may have been

experiencing, so long as this testimony does not cross the line into scientific or technical testimony.

As to causation, “[c]ourts have held that, when injuries are of such a character as to require

skilled and professional persons to determine the cause and extent of the injuries, the cause of the

injuries must be determined by medical testimony.” Jama v. City of Memphis, No. 03-2965, Ma/P,

2006 U.S. Dist. LEXIS 101675, at *7 (W.D. Tenn. Dec. 29, 2006). However, a lay witness can

testify to causation, “if that causation is within a lay person’s realm of knowledge,” but not “where

technical or specialized testimony is necessary, such as where there are multiple possible causes

of an injury or where specialized medical issues are involved.” Williams, 2018 U.S. Dist. LEXIS

55239, at *4.

Similarly to the extent and symptoms of Plaintiff’s injury, the Court finds that a general

bar on causation testimony is not appropriate in this case. “Lay testimony ‘results from a process

of reasoning familiar in everyday life,’ whereas ‘an expert’s testimony results from a process of

reasoning which can be mastered only by specialists in the field.’” United States v. White, 492

F.3d 380, 401 (6th Cir. 2007) (quoting State v. Brown, 836 S.W.2d 530, 549 (Tenn. 1992)). Here,

the question is whether Plaintiff suffered an injury during military training. It does not appear that

the questions in this case require any apportionment of liability, any discussion of complex medical

causes, or any testimony more specific than testimony about whether there was an injury during

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training. Of course, if more complicated questions of medical diagnosis, treatment, or causation

arise during trial that would not be in a lay person’s realm of knowledge, Defendant is free to re-

raise this objection. But the Court finds that Plaintiff’s mother and fiancée have the requisite

personal knowledge from being present at the hospital and observing Plaintiff after his time at the

hospital. Fed. R. Evid. 602. Further, they may testify to their opinions rationally based on their

perception of Plaintiff and can testify to general causal connections to the extent these do not cross

into medical testimony. Fed. R. Evid. 701.

Defendant also moves to exclude this evidence under Federal Rule of Evidence 403. See

supra IIIA. Defendant argues that testimony by Plaintiff’s fiancée and mother would “invite the

jury to credit emotionally charged, non-expert opinions in place of competent medical evidence,

creating a substantial risk that the case would be decided on sympathy rather than facts.” (Doc.

35 at 2.) Plaintiff argues that “testimony from Mr. Wa[]m[s]ley’s mother and fiancée[] would not

mislead the jury and unfairly prejudice Defendant.” (Doc. 45 at 3.)

The Court agrees with Plaintiff. The probative value of this evidence is high because it

goes to whether Plaintiff was injured within the meaning of 38 U.S.C. § 4312(e)(2), a central issue

in this case. Defendant argues that these witnesses were not present during training, lack expert

knowledge, and would be emotionally charged. But those topics are ripe for cross-examination.

Rule 403 does not exist to bar shaky, unhelpful, or unpersuasive evidence; it exists to bar evidence

that is substantially and unfairly prejudicial. And here, the Court does not find that testimony by

Plaintiff’s fiancée and mother “invite[] the jury to decide the case on an improper basis, unrelated

to the probative value of the evidence.” Shrock, 855 F.2d at 335. Therefore, the Court will DENY

Defendant’s third motion in limine (Doc. 35).

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D. Defendant’s fourth motion in limine

Defendant moves to prohibit Plaintiff from introducing “evidence, testimony, or argument

that the County’s termination decisions involving other employees demonstrate discriminatory

intent under [USERRA].” (Doc. 36 at 1.) This motion comes under Federal Rule of Evidence

401. See supra IIIA (discussing the standard for Federal Rule of Evidence 401). During discovery,

the termination of four former employees arose. Two employes, Mr. Lynch and Ms. Reed, were

not within their ninety-day probationary period, whereas two, Ms. Hart and Ms. Draine, were.

(Doc. 36 at 2.) Plaintiff “does not oppose exclusion of evidence related to Mr. Lynch and Ms.

Reed.” (Doc. 46 at 2.)

“A plaintiff may…establish a prima facie case of discrimination or retaliation under

USERRA by putting forward evidence of ‘disparate treatment of certain employees compared to

other employees with similar work records or offenses.’” Savage v. Fed. Express Corp., 856 F.3d

440, 451 (6th Cir. 2017) (quoting Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 754 (6th Cir.

2012)).

USERRA does not require a plaintiff to identify a similarly situated employee who

was treated more favorably to establish a prima facie case, as under the McDonnell

Douglas framework. The focus of our inquiry in a USERRA claim is whether the

plaintiff and ‘his proposed comparators engaged in acts of comparable seriousness,’

and whether their different treatment gives rise to a reasonable inference of

discriminatory motivation.

Id. Defendant argues evidence about Mr. Hart and Ms. Draine is irrelevant because “Mr. Hart and

Ms. Draine [] were not treated more favorabl[y] or treated differently [despite] acts of comparable

seriousness.” (Doc. 36 at 2); see Fed. R. Evid. 401; see, supra, IIIA (discussing the standard for

Federal Rule of Evidence 401). Defendant additionally represents

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Mr. Hart was late and inexplicably absent from shifts. Ms. Draine provided

insufficient notice of her need for relief from a shift and failed to communicate. Mr.

Wamsley, on the other hand, was named in detainee grievances, ate detainee’s food,

visited his girlfriend in the parking lot during work, and exhibited poor judgment

and inappropriate behavior.

(Doc 36 at 3.) Several of these allegations involve matters of proof, such as whether Plaintiff

actually engaged in the alleged conduct of eating a detainee’s food, visiting his girlfriend during

work, and exhibiting poor judgment. And the precise comparison between these two individuals

and Plaintiff may be more or less probative depending on what the conduct was.

Fact issues remain about whether these two incidents were sufficiently similar to Plaintiff’s

case. For that reason, the Court will not rule on this motion at this time. See McDole v. City of

Saginaw, 07-13697-BC, 2009 U.S. Dist. LEXIS 109494, at *18 (E.D. Mich. Nov. 24, 2009)

(describing, in an employment discrimination case, the district court’s decision to reserve ruling

on Defendant’s motion in limine “because of disputes about the facts related to the incidents that

were necessary to determine whether they were or were not similar to Plaintiff's case.”). Therefore,

the Court will RESERVE RULING on Defendant’s motion in limine as to Mr. Hart and Ms.

Draine. Because Plaintiff does not oppose exclusion of testimony as to Mr. Lynch and Ms. Reed,

the Court will GRANT Defendant’s motion as to Mr. Lynch and Ms. Reed.

IV. CONCLUSION

The Court will DENY Defendant’s first and third motions in limine (Docs. 33, 35). The

Court will GRANT Defendant’s second motion in limine (Doc. 34). And the Court will GRANT

IN PART and RESERVE RULING IN PART on Defendant’s fourth motion in limine (Doc.

36).

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AN APPROPRIATE ORDER WILL ENTER.

/s/

CURTIS L. COLLIER

UNITED STATES DISTRICT JUDGE

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