Andazola v. Logan's Roadhouse, Inc.

Filing 91

MEMORANDUM OPINION AND ORDER that the portion of defendant's Motion in Limine to Exclude Witnessas and Exhibits that were not timely and properly disclosed during discovery that requests exclusion of the DVD entitled "Muffy the Vampire Slayer" is GRANTED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 5/10/2013. (AHI)

FILED
2013 May-10 PM 02:53
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
BRANDY A. ANDAZOLA,
Plaintiff,
vs.
LOGAN’S ROADHOUSE, INC.,
Defendant.

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Civil Action No. CV-10-S-316-NW

MEMORANDUM OPINION AND ORDER
The complaint filed by plaintiff, Brandy A. Andazola, alleged, among other
things, that defendant, Logan’s Roadhouse, Inc., violated Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e et seq., by failing to promote her to the
General Manager positions at defendant’s two restaurants in Florence and Athens,
Alabama because of her sex.1 Plaintiff also accused defendant of violating Title VII
by terminating her employment, either because of her gender, or in retaliation for her
complaints about gender discrimination and sexual harassment in the workplace.2
Plaintiff further alleged that defendant violated the Equal Pay Act of 1963, 29 U.S.C.
§ 206(d) and, arguably, Title VII, by paying her less than a similarly-situated male
employee.3 In addition to her federal-law claims, plaintiff’s complaint contained
1

See doc. no. 1 (Complaint).

2

Id.

3

Id.

supplemental state-law claims for intentional infliction of emotional distress,
negligent hiring, training, supervision, and retention, defamation, and invasion of
privacy. Plaintiff also accused defendant of condoning acts of sexual harassment,
failing to properly respond to complaints of sexual harassment, and making false
statements about plaintiff.4
This court entered summary judgment in favor of defendant on all of plaintiff’s
claims, except for: her Title VII claim that she had been denied a promotion to the
General Manager position of defendant’s Athens, Alabama restaurant because of her
sex;5 and, the state-law negligent training, supervision, and retention claim predicated
upon defendant’s handling of plaintiff’s complaints of sexual harassment against
certain employees.6

4

Id.

5

See doc. no. 48 (Memorandum Opinion and Order on Summary Judgment), at 45-54.

6

Id. at 65-69. As discussed in the memorandum opinion entered in response to defendant’s
motion for summary judgment, plaintiff’s state law claim
is based upon the assertion that defendant “negligently failed to discipline or
terminate those employees [of its Florence, Alabama restaurant — i.e., Peter Austin,
the Kitchen Manager, and Thomas Moody, an hourly-wage employee who initially
was hired as a server, but later had bartender functions added to his duties —] who
actively harassed . . . [plaintiff],” failed to administer its policies against sexual
harassment, failed to properly train its employees concerning [sexual] harassment,
and failed to protect plaintiff from [sexual] harassment.
Id. at 66-67 (citation omitted, alterations supplied).

2

The case has been pre-tried, and was docketed for trial on August 14, 2012,7
but was continued on the motion of plaintiff’s attorney, who complained of eye
ailments that required medical attention.8 In an effort to facilitate the resolution of
this litigation, the court recently ruled on both of plaintiff’s pretrial motions, and six
of defendant’s pretrial motions.9 Two requests from defendant’s final pending
pretrial motion remain unresolved.10
Defendant’s “Motion In Limine to Exclude Witnesses and Exhibits that Were
Not Timely and Properly Disclosed During Discovery” challenges plaintiff’s attempt
to introduce various trial evidence, including a digital video disc (“DVD”) entitled
“Muffy the Vampire Slayer.”11 This court withheld a ruling upon the admissibility
of that DVD, pending in camera review.12 The court ordered plaintiff to submit
copies of the DVD to the court and defense counsel.13 Plaintiff now has complied
with that order.14 Accordingly, upon consideration of the briefs of the parties, oral
7

See doc. no. 56 (Pretrial Order).

8

See doc. no. 27 (Motion to Continue Trial).

9

See doc. no. 87 (Memorandum Opinion and Order).

10

See id. at 19 (discussing the reasons for withholding a ruling on the request to exclude
plaintiff’s “me too” evidence), 27 (discussing the reasons for withholding a ruling on the request to
exclude the DVD entitled “Muffy the Vampire Slayer”).
11

Doc. no. 70 (Motion in Limine to Exclude Witnesses and Exhibits Not Disclosed During
Discovery), at 2 n.1.
12

Doc. no. 87 (Memorandum Opinion and Order), at 39.

13

Id.

14

See doc. no. 89 (Notice of Mailing to Court); doc. no. 90 (Notice of Mailing to Opposing

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argument of the parties’ counsel, and in camera review of the challenged DVD, the
court is prepared to rule on defendant’s motion to exclude the proposed item of
evidence.
DISCUSSION
A party who “fails to provide information or identify a witness as required by
Rule 26(a) or (e), . . . is not allowed to use that information or witness to supply
evidence on a motion or at trial, unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c). In addition to the requirements of the Federal Rules
of Civil Procedure that parties make initial disclosures and respond to interrogatories,
requests for production, and requests for admission, see Fed. R. Civ. P. 26, 33, 34, &
36, Federal Rule of Civil Procedure 26 requires parties to “supplement or correct”
their disclosures or responses “in a timely manner if the 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.” Fed. R. Civ. P. 26(e).
“The burden is on the party facing the [discovery] sanctions . . . to make the
requisite showing of harmlessness” under Federal Rule of Civil Procedure 37(c).
Abrams v. Ciba Specialty Chemicals Corp., No. 08-0068-WS-B, 2010 WL 779283,
Counsel).

4

*29 (S.D. Ala. Mar. 2, 2010) (alteration supplied) (citing Yeti by Molly, Ltd. v.
Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001) (“Implicit in Rule
37(c)(1) is that the burden is on the party facing sanctions to prove harmlessness.”));
Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir. 2001) (similar);
Harrison Bros. Dry Dock & Repair Yard, Inc. v. Pan Agri International, Inc., No.
08-0486-WS-B, 2009 WL 3273926, *3 (S.D. Ala. Oct. 9, 2009) (“The burden is on
the nondisclosing party to demonstrate . . . that its failure to disclose . . . is
harmless.”)).
Plaintiff contends: that the subject DVD “is a sex video [that Florence Kitchen
Manager] Peter Austin had around Logan’s premises and gave to [plaintiff]”; that
Gina Fell, a “Key Hourly Manager” of defendant’s Florence restaurant, knew that
Peter Austin had given the DVD to plaintiff; and that plaintiff intends to offer the
DVD “as a visual aid — a demonstrative evidence item.”15 None of the foregoing
statements address the issue of whether plaintiff’s failure to disclose the DVD “was
substantially justified or is harmless” as required by Federal Rule of Civil Procedure
37(c). Plaintiff’s failure to prove substantial justification or harmlessness is, alone,
justification for excluding the non-disclosed evidence.

15

Doc. no. 75 (Response to Motion in Limine to Exclude Witnesses and Exhibits Not
Disclosed During Discovery), at 4 (alterations supplied).

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Even so, and out of an abundance of caution, the court has subjected that
evidence to in camera review in an effort to determine its relevance, and to weigh its
probative value against its potential for unfair prejudice.
“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Fed. R. Evid. 401. “Relevant evidence is admissible unless
any of the following provides otherwise: the United States Constitution; a federal
statute; [the Federal Rules of Evidence]; or other rules prescribed by the Supreme
Court. Irrelevant evidence is not admissible.” Fed. R. Evid. 402 (alteration
supplied). Notwithstanding the general admissibility of relevant evidence under Rule
202, “[t]he court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403 (alteration supplied).
Upon review, the DVD entitled “Muffy the Vampire Slayer” bears little, if any,
relevance to plaintiff’s two remaining claims. First, plaintiff asserts a Title VII claim
for the denial of a promotion to the General Manager position of defendant’s Athens,
Alabama restaurant because of her sex.16 However, plaintiff alleges that defendant’s
16

See doc. no. 48 (Memorandum Opinion and Order on Summary Judgment), at 45-54

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former regional manager, David Rodriguez, recommended to his supervisor, Jim
Kuehnhold, that the position be awarded to Hank Luking.17 Plaintiff does not assert
that Florence Kitchen Manager Peter Austin had any input on that promotional
decision.18 Thus, Austin’s alleged actions with regard to the DVD have no bearing
on plaintiff’s failure to promote claim.
Further, plaintiff asserts a state-law negligent training, supervision, and
retention claim predicated upon defendant’s handling of plaintiff’s complaints of
sexual harassment against certain employees, including Florence Kitchen Manager
Peter Austin.19 Even so, plaintiff does not argue that her complaints included
allegations that Austin kept the DVD entitled “Muffy the Vampire Slayer” at the

(denying summary judgment on plaintiff’s Title VII claim based on the denial of the Athens
promotion).
17

Doc. no. 48 (Memorandum Opinion and Order on Summary Judgment), at 15-16.

18

See id.

19

Id. at 65-69. As discussed in the memorandum opinion entered in response to defendant’s
motion for summary judgment, plaintiff’s state law claim
is based upon the assertion that defendant “negligently failed to discipline or
terminate those employees [of its Florence, Alabama restaurant — i.e., Peter Austin,
the Kitchen Manager, and Thomas Moody, an hourly-wage employee who initially
was hired as a server, but later had bartender functions added to his duties —] who
actively harassed . . . [plaintiff],” failed to administer its policies against sexual
harassment, failed to properly train its employees concerning [sexual] harassment,
and failed to protect plaintiff from [sexual] harassment.
Id. at 66-67 (citation omitted, bracketed alterations supplied).

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workplace, or that he gave a copy of the DVD to plaintiff.20 Likewise, plaintiff does
not argue that Florence Manager Gina Fell’s alleged knowledge of the DVD can be
imputed to defendant.21 Thus, the DVD has no bearing on plaintiff’s negligence
claim.
Instead of articulating the relevance of the DVD entitled “Muffy the Vampire
Slayer” to either of her claims, plaintiff simply asserts that she “will offer the . . .
DVD as a visual aid — a demonstrative evidence item.”22 However, even after
reviewing the briefs of plaintiff and oral argument of plaintiff’s counsel, this court is
not clear what the DVD is intended to “demonstrate.” The record is devoid of
allegations that plaintiff (or any other person) was shown the content of the DVD,
either within or outside the workplace.23 At most, plaintiff may have seen the box in
which the DVD is packaged.
In addition to its low probative value, the DVD entitled “Muffy the Vampire
Slayer” has a high potential for confusing the issues and unfairly prejudicing
defendant. The DVD case bears the warning: “This DVD contains Nudity and
Strong Sexual Content. Recommended for viewers over 18.” And rightfully so: the
20

See doc. no. 75 (Response to Motion in Limine to Exclude Witnesses and Exhibits Not
Disclosed During Discovery), at 4 (discussing the bases for admitting the DVD).
21

See id.

22

Id. (alterations supplied).

23

See id.

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DVD contains foul language, female nudity, and sexual contact between female
actors. (It does not, however, contain penetrative sexual intercourse of any kind.)
Introducing the DVD into evidence would distract jurors from relevant issues, and
unfairly inflame the jury’s passions against defendant and its managers.
Like the DVD, the box in which the DVD is packaged has a high potential for
confusing the issues and unfairly prejudicing defendant. The front of the box
contains the word “Muffy” and depicts a scantily-clad woman and two seductive
female companions. The back of the box contains multiple references to sex, as well
as to “call girls,” “lesbians,” and “vampires.” Based on the warning on the box, it is
clear that the DVD contains “Nudity and Strong Sexual Content,” but it is not clear
that the DVD contains no penetrative sexual intercourse. Introducing the box into
evidence would invite jurors to speculate on the DVD’s content, and thus distract
them from relevant issues and inflame their passions against defendant.
In sum, plaintiff has not shown that her failure to disclose the DVD entitled
“Muffy the Vampire Slayer” “was substantially justified or is harmless” as required
by Federal Rule of Civil Procedure 37(c). Further, she has not established that the
DVD is relevant to either of her two remaining claims as required by Federal Rule of
Evidence 401. Finally, she has not demonstrated that any probative value of the DVD
(or its packaging) is not “substantially outweighed by the danger of unfair prejudice,
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confusion of the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence” as required by
Federal Rule of Evidence 403.
Accordingly, the portion of defendant’s “Motion In Limine to Exclude
Witnesses and Exhibits that Were Not Timely and Properly Disclosed During
Discovery”24 that requests exclusion of the DVD entitled “Muffy the Vampire Slayer”
is GRANTED.
DONE and ORDERED this 10th day of May, 2013.

______________________________
United States District Judge

24

Doc. no. 70.

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