Jamar v. Jacobs Technology

Filing 54

MEMORANDUM OPINION AND ORDER that the defendant's motion in limine is GRANTEDin part, it is ORDERED that plaintiff will not be permitted to present evidence of race-based comments made by co-workers who were not involved in making any employment decisions that affected him, With regard to the testimony of Bo Jones, defendant's motion in limine is held in abeyance; Plaintiff's motion in limine is DENIED; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/4/2012. (AHI)

FILED
2012 Oct-04 PM 04:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
DARRICK JAMAR,
Plaintiff,
v.
JACOBS TECHNOLOGY, INC.,
Defendant.

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Civil Action No. CV-10-S-3529-NE

MEMORANDUM OPINION AND ORDER
Plaintiff, Darrick Jamar, an African-American male, asserts claims against his
former employer, Jacobs Technology, Inc., for racially disparate treatment and racebased termination under Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq.1 The scope of plaintiff’s potential relief was substantially
narrowed by an opinion and order entered on June 14, 2012, by the provisions of
which this court granted defendant’s motion for partial summary judgment, and
dismissed all of plaintiff’s claims for backpay that accrued after August 31, 2010.2
A jury trial on plaintiff’s remaining claims for relief is set for October 22, 2012.3 The
case currently is before the court on both parties’ motions in limine.4

1

See doc. no. 1 (Complaint).

2

Doc. no. 40, at 11.

3

Doc. no. 44 (Pretrial Order), at 10.

4

Doc. no. 45 (defendant’s motion in limine); doc. no. 47 (plaintiff’s motion in limine).

I. DEFENDANT’S MOTION IN LIMINE
Defendant seeks the exclusion at trial of the following items of evidence: (1)
racial comments made by plaintiff’s co-workers; (2) rumors; and (3) testimony from
plaintiff’s former co-worker Bo Jones.
A.

Racial Comments by Plaintiff’s Co-Workers
Defendant first asks the court to exclude evidence of racially harassing

comments allegedly made by plaintiff’s co-workers. Specifically, defendant points
to the following portion of plaintiff’s proposed statement of facts from the Pretrial
Order:
Shortly after plaintiff began working for Jacobs, his supervisor had a
discussion with him about the use of “the ‘n’-word” on the site by the
other white employees. At that time, Jamar was told that the word was
used and that it just happens. Jamar heard his co-workers use that racial
term on numerous occasions, sometimes directed at him, sometimes
directed at other African-Americans. Jamar was often subjected to racist
jokes and called racist nicknames on the job site. Plaintiff was often
made the scapegoat when a piece of work had not been done properly,
even if he did not work on that item.5
Defendant also points to plaintiff’s deposition testimony, wherein he stated that in
2005, shortly after he was hired by defendant, his foreman, a white male, asked him
if he was offended by the use of the offensive racial slur “nigger,” because the

5

Pretrial Order, at 3-4.

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foreman knew that many of the other employees often used that word.6 Plaintiff also
testified that he heard his co-workers use the word “nigger” approximately once a
month.7 Sometime between 2006 and 2008, a coworker named Clint Smith told
plaintiff that there was a difference between “black people” and “niggers.”8
Sometimes, when plaintiff would drive some of his coworkers to a job site, they
would call him “Hope,” referring to the African-American chauffeur whose character
was played by Morgan Freeman in the movie Driving Miss Daisy.9 When plaintiff
rode in a truck between two white coworkers, those coworkers referred to their
seating arrangement as a “reverse Oreo.”10 Finally, during the 2008 Presidential
election, a coworker showed plaintiff a picture of an Air Force One plane that had
been digitally altered to add big wheels and curb scrapers, as though it had been
“pimped out.”11 Defendant seeks the exclusion of this evidence — and any other
similar evidence of race-based comments or actions from coworkers — as irrelevant
and/or unfairly prejudicial.
The Federal Rules of Evidence define as “relevant” any evidence that: “(a) .
6

Doc. no. 32 (defendant’s summary judgment evidentiary submission), Exhibit A
(Deposition of Darrick Jamar), at 46-52.
7

Id. at 52.

8

Id. at 54.

9

Id. at 57-58.

10

Id. at 146.

11

Id. at 147.

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. . has any tendency to make a fact more or less probable than it would be without the
evidence; and (b) . . . is of consequence in determining the action.” Fed. R. Evid.
401. A 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.
This court agrees with defendant that evidence of racial remarks by plaintiff’s
co-workers is not relevant to any issue in this case.12 None of the individuals alleged
to have made these comments were involved in the reduction-in-force decisions that
led to plaintiff’s loss of employment. “Stray remarks” made by co-workers who were
not involved in the employment decision challenged by the plaintiff generally are not
considered as evidence of discrimination. Standard v. A.B.E.L. Services, Inc., 161
F.3d 1318, 1329-30 (11th Cir. 1998).
Plaintiff does not challenge that point in his response brief.13 Instead, he
asserts that the co-workers’ remarks are relevant to his request for punitive damages,
which will require him to prove at trial that defendant exhibited “malice or reckless
indifference to [his] federally protected rights.” 42 U.S.C. § 1981a(b)(1) (alteration
12

It is important to note that plaintiff did not assert a claim for a race-based hostile work
environment in this case.
13

See doc. no. 53 (plaintiff’s response to defendant’s motion in limine), at 1-2.

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supplied). According to plaintiff, evidence of his coworkers’ race-based comments
will be relevant to counter any attempt by defendant to prove that it acted in good
faith to prevent discrimination, because such evidence demonstrates that defendant
did not effectively enforce its anti-discrimination policies. Even if the challenged
comments might have some relevance to plaintiff’s request for punitive damages, this
court concludes that any probative value of that evidence is substantially outweighed
by the danger of unfair prejudice and confusion of the issues. See Fed. R. Civ. P. 403.
As defendant points out,
[i]f the jury were permitted to hear testimony about these alleged
comments from other Millwrights — most of which did not occur close
in time to the decision at issue — the jury would be unfairly allowed to
focus on whether or not inappropriate comments were used by nondecisionmakers — something that is not at issue in this lawsuit.14
The jury also might be misled into believing that race-based harassment is a
significant issue in this case when, in fact, plaintiff never asserted a harassment claim.
In summary, plaintiff will not be permitted to present evidence of race-based
comments made by co-workers who were not involved in making any employment
decisions that affected him.
B.

Rumors
Next, defendant seeks the exclusion from trial of any evidence of rumors
14

Doc. no. 46 (defendant’s brief in support of motion in limine).

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plaintiff allegedly heard about defendant’s race discrimination generally or, more
specifically, the termination of his employment. Defendant points to the following
portion of plaintiff’s proposed statement of facts from the Pretrial Order:
When Jesse Ortner became the site manager, plaintiff was
informed by a coworker that Ortner was trying to terminate plaintiff.
During that time, three Jacobs employees, including Jamar, were
investigated for improper computer use at work. No wrongdoing was
uncovered, but Jamar was told by a supervisor that, if the other two
employees had not been involved in the investigation, Jamar would have
been terminated then.15
Additionally, plaintiff testified during his deposition that a coworker told him he had
heard a rumor that Jesse Ortner, the project manager, “was going to lay off all the way
up to the black guy.”16 Van Daniels, plaintiff’s foreman, and Jimmy Morgan, the
general foreman, both told plaintiff they heard the same rumor. However, no one ever
told plaintiff that they had personally heard Ortner describe such a plan.17 Plaintiff
also testified that he heard a rumor about Ortner trying to terminate his employment
and, based on that rumor, he concluded that Ortner was “targeting” him.18
Defendant seeks to exclude any such testimony about rumors as irrelevant and
impermissible hearsay. “Hearsay” is defined as “a statement that: (1) the declarant

15

Pretrial Order, at 4.

16

Jamar Deposition, at 87.

17

Id. at 87-88.

18

Id. at 68-69, 73-74.

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does not make while testifying at the current trial or hearing; and a party offers in
evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid.
801(c). Hearsay is not admissible at trial unless an exception applies. Fed. R. Evid.
802. Defendant asserts that the rumors are hearsay, because they are being offered
to prove the truth of the matter asserted therein: i.e., that Ortner was attempting to
terminate plaintiff’s employment. Plaintiff disputes that characterization, and asserts
that he, instead, would be offering the rumors to prove the fact that the rumors
existed.19 Even though the evidence of rumors might be admissible for that limited
purpose, plaintiff still cannot overcome (and, indeed, made little attempt in his brief
to overcome) defendant’s other arguments, i.e., that the rumors are not relevant; and,
even if they were relevant, the danger of unfair prejudice would substantially
outweigh the probative value. This court agrees that the “rumor evidence” has little
probative value. Plaintiff suggests that the evidence might provide some context for
other facts that will be placed into evidence, including plaintiff’s motivation for
asking Ortner if he was going to be laid off, and how the reduction-in-force by which
plaintiff lost his employment generally was organized.20 Even those facts are of little
probative value, however, and there is no reason why they could not be established

19

See doc. no. 53, at 3.

20

See id. at 3-4.

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through other evidence. Furthermore, and importantly, there is a significant danger
that the “rumor evidence” would cause unfair prejudice, confusion of the issues,
and/or misleading of the jury. The salient evidence is what actually happened with
regard to plaintiff’s employment, not what was rumored to be happening.
No evidence about any rumors of Ortner’s plans for plaintiff’s employment will
be admitted at trial.
C.

Bo Jones
Finally, defendant seeks to exclude any testimony from Bo Jones, another

African-American employee of Jacobs who believes that he was targeted for
termination because of his race. Plaintiff first disclosed Jones as a witness in his
Amended Initial Disclosures, which were served on defendant on November 1, 2011.
There, plaintiff stated:
Upon information and belief, Bo Jones, [sic] was targeted for
termination by Jesse Ortner once he became Site Manager, while
employed by Jacobs Technology. According to Mr. Jones, he was
targeted because of his race, African-American. That at or near the time
Mr. Jones was targeted by Mr. Ortner, a rumor surfaced that he was also
after Derek [sic] Jamar.21
There is no indication that either party ever deposed Mr. Jones. If his deposition was
taken, no copy of the transcript was provided to this court.

21

Doc. no. 46, at Exhibit 2 (Plaintiff’s Amended Initial Disclosures).

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As an initial matter, and as discussed in the previous section, no evidence based
solely on rumor will be permitted.
Defendant also asserts that testimony about Jones also being targeted by Ortner
should be excluded because it is impermissible “me too” evidence. As plaintiff points
out, however, not all “me too” evidence is inadmissible. Indeed, the Eleventh Circuit
has held that evidence of discriminatory acts suffered by other employees can be
used, under certain circumstances, to prove an employer’s intent to discriminate.
Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1286 (11th Cir. 2008).22
Typically, such “me too” evidence will be allowed if it involves employment
decisions made by the same person who made the decisions affecting the plaintiff’s
employment, and if the person offering the evidence held a position similar to the
plaintiff’s, and experienced an employment situation similar to the plaintiff’s. Id.
More specifically, another judge in this district has stated that the following factors
should be considered in determining whether to admit “me too” evidence:
whether the allegations of discrimination occurred close in time to [the
plaintiff’s] allegations, whether the other employees alleging
discrimination had similar job positions as [the plaintiff], whether they
were demoted or terminated for reasons similar to Defendants’ proffered
22

This holding is consistent with Federal Rule of Evidence 404(b), which states that while
evidence of other crimes, wrongs, or other acts is not admissible “to prove a person’s character in
order to show that on a particular occasion the person acted in accordance with the character,” it is
admissible for other purposes, “such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b).

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reason for demoting [the plaintiff], and whether there was a common
decisionmaker.
Davis v. Dunn Construction Co., No. 2:10–CV–2075–RDP, – F. Supp. 2d –, 2012
WL 1952125, *20 (N.D. Ala. May 24, 2012) (Proctor, J.) (alterations supplied). It
must also be remembered that the admission of “me too” evidence is “subject to a
Rule 403 inquiry which is ‘fact based and depends on many factors, including how
closely related the evidence is to the plaintiff's circumstances and theory of the case.’”
Johnson v. Alabama Community College System, No. 2:09cv636–WHA, 2011 WL
5078776, *5 (M.D. Ala. Oct. 26, 2011).
Here, there is not sufficient information to make the determination whether
Jones’s testimony should be allowed. Plaintiff’s identification of Jones in his initial
disclosures only states that Jones was targeted by Jesse Ortner for termination
because of his African-American race. While that establishes that plaintiff and Jones
are of the same race and that the same decisionmaker was involved in both of their
terminations, it does not explain what position Jones held, what his job duties were,
or any of the other circumstances surrounding his loss of employment. Absent such
information, the court cannot determine whether plaintiff should be allowed to
present Jones’s testimony.
At the same time, however, it would not be fair to plaintiff to completely

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exclude Jones’s testimony. Instead, the court will allow plaintiff to make a proffer
of his testimony before the commencement of the trial. If it appears that Jones will
offer testimony about a situation that is sufficiently similar to plaintiff’s, then his
testimony might be allowed. If Jones does not proffer testimony about a situation that
is sufficiently similar to plaintiff’s, then his testimony will not be allowed.
II. PLAINTIFF’S MOTION IN LIMINE
Plaintiff seeks to exclude any evidence of his alleged failure to mitigate his
damages after August 31, 2010, the date defendant’s contract with the National
Aeronautic and Space Administration (“NASA”) expired, and the final date for
plaintiff’s ability to recover backpay. Specifically, plaintiff anticipates that defendant
may attempt to introduce evidence of plaintiff’s failure to fully utilize the services
provided by his union, or to otherwise look for another job after his employment with
defendant ended.23
Plaintiff asserts that such evidence of his failure to mitigate his damages was
rendered irrelevant by this court’s June 14, 2012 decision to dismiss any claims for
backpay after August 31, 2010. Indeed, it seems logical that if plaintiff is not entitled
to receive any backpay after August 31, 2010, then evidence of his failure to mitigate
damages after that date is of little probative value, and could result in prejudice,
23

See doc. no. 48 (plaintiff’s brief in support of motion in limine), at 2.

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confusion of the issues, undue delay, or waste of time. See Fed. R. Evid. 403.
As defendant points out, however, plaintiff has asserted other claims for
damages that make the evidence of his failure to mitigate damages relevant. In his
final itemization of damages, plaintiff stated that he is seeking $75,000 in “emotional
damages.”24 During his deposition, plaintiff testified that one of the things that had
caused him emotional distress was “not being able to find a job.”25 Plaintiff’s efforts
(or lack thereof) to find new employment clearly would be relevant to counter any
argument that he suffered emotional distress from being unemployed. Although
evidence of plaintiff’s lack of job search efforts might be adverse to his case, there
is no indication that admitting the evidence would cause him undue prejudice.
Accordingly, defendant will be allowed to present evidence regarding
plaintiff’s efforts to find another job after his employment with Jacobs ended, but
only in the context of refuting plaintiff’s claims for emotional distress damages.
III. CONCLUSION AND ORDERS
In accordance with the foregoing, defendant’s motion in limine is GRANTED
in part. It is ORDERED that plaintiff will not be permitted to present evidence of
race-based comments made by co-workers who were not involved in making any

24

Doc. no. 49, at 1.

25

Jamar Deposition, at 134.

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employment decisions that affected him, or evidence about rumors of Ortner’s plans
for plaintiff’s employment. With regard to the testimony of Bo Jones, defendant’s
motion in limine is held in abeyance. Plaintiff will be required to make a proffer of
Jones’s testimony, outside the presence of the jury, before the commencement of trial.
Upon hearing the proffer, the court will determine whether Jones’s testimony should
be allowed.
Plaintiff’s motion in limine is DENIED. Defendant will be allowed to present
evidence regarding plaintiff’s efforts to find another job after his employment with
Jacobs ended, in the context of refuting plaintiff’s claims for emotional distress
damages.
DONE this 4th day of October, 2012.

______________________________
United States District Judge

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