Johnson v. J.C. Penney Corporation, Inc.
MEMORANDUM OPINION AND ORDER that the plaintiff's 61 MOTION in Limine is GRANTED in part, DENIED in part and DENIED AS MOOT in part as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/31/2015. (AHI )
2015 Mar-31 PM 01:30
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
J.C. PENNEY CORPORATION,
Civil Action No. CV-13-S-1088-NE
MEMORANDUM OPINION AND ORDER
This case is before the court on plaintiff’s motion in limine.1
consideration of the motion, and defendant’s response thereto,2 the court concludes
that the motion should be granted in part, denied in part, and denied as moot in part.
I. EVIDENCE REGARDING PLAINTIFF’S EMPLOYMENT HISTORY
PRIOR TO THE DEFENDANT
Plaintiff first moves to exclude from presentation at trial “any and all evidence
or testimony regarding her employment history and records in relation to employers
prior to the Defendant,” as well as any summary of her employment history that might
be offered by defendant.3 Plaintiff asserts that any such evidence would not be
relevant to plaintiff’s claims for claims for discrimination and retaliation under the
Doc. no. 61.
Doc. no. 65.
Doc. no. 61 ¶ 1.
Americans With Disabilities Act of 1990 (“ADA”), 42 U.S.C. 12101 et seq.,
interference with her rights under the Family Medical Leave Act of 1993 (“FMLA”),
29 U.S.C. § 2601 et seq., and retaliation for exercising her rights under the FMLA,
and that any probative value of such evidence would be outweighed by the danger of
unfair prejudice, confusion of the issues, misleading the jury, undue delay, or waste
of time. See Fed. R. Evid. 401, 402, and 403.
Defendant states that it “does not anticipate introducing evidence relating to
Johnson’s prior employment history at this time.”4 Accordingly, this aspect of
plaintiff’s motion in limine will be denied as moot. Even so, this ruling will not
prevent defendant from presenting evidence of plaintiff’s prior employment history
in order to impeach plaintiff, if necessary.
II. EVIDENCE REGARDING THE DETERMINATIONS/DISMISSALS
AND NOTICES OF RIGHT TO SUE ISSUED BY THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION TO PLAINTIFF
Plaintiff next asks the court to exclude any “evidence relating to the E.E.O.C.’s
determination of the Plaintiff’s Charge against the Defendant, including, but not
limited to, the EEOC determination letter and related correspondence issued to
Plaintiff.”5 The Eleventh Circuit has held that a trial judge has broad discretion to
Doc. no. 65 ¶ 2.
Doc. no. 61 ¶ 8.
deny the admission of EEOC determinations in jury trial settings. See, e.g., Walker
v. NationsBank of Florida, N.A., 53 F.3d 1548, 1554 (11th Cir. 1995). Defendant
does not appear to contest this point, acknowledging that, “[t]o the extent that
Johnson seeks to exclude all submissions to and determinations from the EEOC
relating to its investigation of Johnson’s Charge,” it does not object to plaintiff’s
request.6 Accordingly, this aspect of plaintiff’s motion in limine will be granted. All
evidence regarding submissions to and determinations from the EEOC relating to the
investigation of plaintiff’s charge will be excluded, regardless of whether that
evidence is offered by plaintiff or defendant.
III. EVIDENCE OF OTHER LITIGATION AND/OR ADMINISTRATIVE
CLAIMS TO WHICH PLAINTIFF HAS BEEN A PARTY
Plaintiff anticipates, based upon questions asked during her deposition, that
defendant “may attempt to offer evidence at trial regarding other litigation and/or
administrative claims to which Plaintiff has been a party, specifically including: (1)
Plaintiff filing a worker compensation claim related to carpal tunnel syndrome with
a prior employer, Anderson News.”7 Defendant “does not anticipate introducing
evidence relating to Johnson’s prior litigation and administrative claims at this time.”8
Doc. no. 65 ¶ 6 (alteration and emphasis supplied).
Doc. no. 61 ¶ 10.
Doc. no. 65 ¶ 7.
Accordingly, this aspect of plaintiff’s motion in limine will be denied as moot. Even
so, this ruling will not prevent defendant from presenting evidence of plaintiff’s prior
claims in order to impeach plaintiff, if necessary.
IV. EVIDENCE THAT PLAINTIFF PERFORMED SALON SERVICES IN
HER HOME WHILE EMPLOYED WITH DEFENDANT
Plaintiff next asks the court to exclude any evidence that she performed salon
services at her home during the time period when she was employed by defendant as
a salon stylist. Specifically, that evidence includes testimony and a handwritten note
by Lydia Gipson, J. C. Penney’s Loss Prevention Officer who investigated the
incident that led to plaintiff’s termination, that plaintiff admitted to sometimes
performing salon services at her home.9
Plaintiff asserts that any such evidence would be “immaterial, irrelevant, would
result in undue and unfair prejudice to the plaintiff, would confuse the jury, and
would be inadmissible hearsay and character evidence.”10 The court agrees that
defendant should not be permitted to offer evidence of plaintiff’s performance of
salon services from her home as a reason for plaintiff’s termination. As plaintiff
points out, defendant has never claimed that her performance of salon services from
her home was a reason for her termination, and it should not be permitted to assert
See doc. no. 65, Exhibit B (Excerpts from Deposition of Lydia Gipson), at 62.
Doc. no. 61 ¶ 19.
that reason for the first time at trial.
Even so, as defendant points out, evidence regarding plaintiff’s performance
of salon services from her home could be relevant to other issues in this litigation.
For example, that evidence could be probative of the nature of the relationship
between plaintiff and Olivia Baker, the client for whom J.C. Penney alleges that
plaintiff improperly discounted services. If plaintiff sometimes cut Ms. Baker’s hair
at home, outside the J.C. Penney salon setting, that might indicate that plaintiff and
Ms. Baker had a special relationship that would motivate plaintiff to offer Ms. Baker
special, even inappropriate, discounts inside the salon.
The evidence also is relevant to the accuracy of defendant’s salon records,
which plaintiff has challenged during discovery.
The court is persuaded by
defendant’s cogent description of the probative value of this evidence:
JCPeneny’s salon records indicated that Baker had not received salon
services for a considerable period of time before the June 9th “redo.”
Johnson contends that she performed a “quick weave” and haircut for
Baker in late May, even though no such appointment appears in
JCPenney’s records. Johnson’s explanation for the absence of such
services in JCPenney’s records is that the records are inaccurate.
However, Johnson’s admission to Loss Prevention that she performed
services from her home provides an alternative explanation for the
absence of the services from JCPenney’s records. The jury should be
given the opportunity to weigh the credibility of Johnson and
JCPenney’s witnesses on this issue and makes [sic] its own
determination as to the accuracy of JCPenney’s records.11
Doc. no. 65 ¶ 13 (alteration supplied).
Finally, defendant asserts that the evidence is “probative as to the level of
credence that J.C. Penney Loss prevention afforded Johnson’s explanations for her
conduct during the course of their investigation.”12 During the course of the Loss
Prevention investigation that eventually led to her termination, plaintiff provided
varying explanations for her conduct, including that she sometimes performed salon
services from her home. Thus, even though the evidence is not admissible as a direct
reason for plaintiff’s termination, it can be admitted to explain why J.C. Penney did
not fully credit all of plaintiff’s statements during the investigation. There also is no
indication that this evidence will be impermissibly offered as character evidence, or
that it constitutes inadmissible hearsay.
In summary, this aspect of plaintiff’s motion in limine will be granted in part
and denied in part.
V. EVIDENCE REGARDING THE TIP/TIP AMOUNT GIVEN TO
PLAINTIFF BY CUSTOMER OLIVIA BAKER
Plaintiff next asks the court to exclude evidence “regarding the amount of a tip
left for the Plaintiff by her client, Olivia Baker, in connection with a salon service.”13
The tip was “in excess of the cost of the services purchased.”14 Plaintiff asserts that
Id. ¶ 14.
Doc. no. 61 ¶ 30.
evidence about the tip would be “immaterial, irrelevant, would result in undue and
unfair prejudice to the Plaintiff, would confuse the jury, and would be inadmissible
hearsay and character evidence.”15
Plaintiff relies primarily upon the deposition testimony of Brian May, the Store
Manager who made the decision to terminate plaintiff’s employment after the Loss
Prevention investigation. May stated that the reason for plaintiff’s termination was
“violation of sales procedures,” specifically, that plaintiff “performed a service and
reduced it tremendously, and the actual service that was performed was not the
service that was booked.”16 He then clarified that the termination decision was made
because plaintiff did not charge enough for the service that actually was performed,
not for the mere fact that she ended up performing a service other than the one that
was “on the books.”17 The following dialogue then occurred:
Okay. Did you make the decision to terminate Ms.
Johnson, was it because she didn’t charge Ms. Baker for the haircut or
was it that she didn’t charge Ms. Baker for the haircut and also got what
your records indicate as a twenty-six-dollar tip? Was it both factors or
Just that she charged incorrectly.
Okay. So, what she got for a tip didn’t matter one way or
Doc. no. 26-3 (Deposition of Brian May), at 262.
Id. at 265-66.
the other in your decision to terminate her?
If she had gotten a five-dollar tip it wouldn’t have
Okay. So that’s irrelevant as far as the termination, the tip
Plaintiff relies upon that testimony to assert that the tip amount is irrelevant because
it had nothing to do with May’s decision to terminate plaintiff’s employment.
The court does not agree that this excerpt from May’s testimony can be so
strictly construed. A more reasonable reading of May’s testimony is that plaintiff was
not fired for the isolated reason that she received a twenty-six-dollar tip. If she had
received that tip after appropriately charging for the services performed for a client,
that presumably would not have been a problem. Instead, defendant believes that
plaintiff undercharged her client for the services she performed, resulting in her
receipt of a large personal tip instead of J.C. Penney’s receipt of proper payment. In
short, plaintiff’s receipt of a twenty-six-dollar tip simply cannot be divorced from the
other circumstances that led to her termination.
Id. at 291-92 (alteration supplied).
Additionally, there is no indication that this evidence will be impermissibly
offered as character evidence, or that it constitutes inadmissible hearsay.
Accordingly, this aspect of plaintiff’s motion in limine will be denied. Even
so, there is nothing stopping plaintiff from using May’s deposition as impeachment
if May offers inconsistent testimony during trial.
VI. EVIDENCE REGARDING PLEADINGS, RULINGS, ORDERS,
JUDGMENTS OR OTHER ITEMS FILED WITH OR ISSUED BY THIS
Finally, plaintiff seeks to exclude
any and all evidence or testimony regarding the pleadings or other
documents filed by the parties in this matter, and any rulings, decisions,
orders and/or judgments entered in this matter by the Court prior to trial
as such evidence is irrelevant, would result in undue and unfair
prejudice to the Plaintiff, would confuse the jury, would cause undue
delay and waste of time, and would be inadmissible character
She also claims that any such evidence would constitute inadmissible hearsay.20
Defendant concedes that “some pre-trial matters are inappropriate to introduce
as evidence at trial,” but it nonetheless asserts that plaintiff’s “request is so broad as
to include verified discovery responses and other matters that constitute admissible
Doc. no. 61 ¶ 42.
Id. ¶ 43.
Doc. no. 65 ¶ 24.
The court agrees that plaintiff’s request is framed too broadly for a ruling in
limine. Accordingly, this aspect of plaintiff’s motion will be denied. If there are
particular portions of the pretrial record that plaintiff wishes to challenge, she may
do so in context during the course of trial.
VII. CONCLUSION AND ORDERS
In accordance with the foregoing, plaintiff’s motion in limine is GRANTED
in part, DENIED in part, and DENIED AS MOOT in part.
DONE this 31st day of March, 2015.
United States District Judge
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