White v. McHugh

Filing 48

ORDER denying 38 Motion in Limine. Signed by Chief Judge William H. Steele on 5/11/2016. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CAROLYN J. WHITE,
Plaintiff,
v.
JOHN M. McHUGH, etc.,
Defendant.

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) CIVIL ACTION 14-0484-WS-C
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ORDER

This action is before the Court on the defendant’s motion in limine. (Doc.
38). The motion contains four parts: (1) evidence of other acts of discrimination
or retaliation beyond the two denials of promotion made the basis of this action;
(2) testimony by the plaintiff as to her qualifications and those of the successful
applicants; (3) testimony by the plaintiff as to Army personnel policies, procedures
and practices; and (4) testimony by the plaintiff as to the motivations of those
involved in the personnel decisions made the basis of this action. (Id. at 1-2). The
plaintiff has filed a response, (Doc. 44), and the motion is ripe for resolution.
I. Other Acts.
The denials of promotion made the basis of the action occurred in 2011 and
2012. The defendant predicts the plaintiff will offer evidence regarding several
other employment decisions involving herself: a 2009 denial of her application for
a lateral transfer to the Mobile District; a 2009 denial of her application for a
position on a regional quality assurance team; a 2009 denial of her application for
a supervisory accountant position; and a 2012 promotion to a lead accountant
position that was accompanied by a delayed start date, low pay rate and denial of a
private office. The defendant predicts the plaintiff will also offer evidence that a

position for which she did not apply remained open despite a black employee
being recommended to fill it, leading to an internal EEO complaint against a
person who sat on two selection panels that passed over the plaintiff. (Doc. 38 at
2-4).1
The defendant believes all this evidence is irrelevant under Rule 401
because it goes beyond the scope of the two promotions as to which relief is
sought and because the plaintiff pursued no timely administrative relief as to these
incidents. (Doc. 38 at 5-8). The defendant adds a general objection based on Rule
403. (Id. at 8-9).
The plaintiff’s failure timely to exhaust her administrative remedies as to
certain allegedly discriminatory adverse employment actions precludes her from
suing upon them, as she concedes. (Doc. 44 at 5). It does not, however, of its own
force preclude her from using evidence of such actions in support of the claims she
has brought. The defendant cites no authority in support of its contrary position.
“The question whether evidence of discrimination by other supervisors is
relevant in an individual ADEA case 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. Applying Rule 403 to determine if evidence is prejudicial also
requires a fact-intensive, context-specific inquiry.” Sprint/United Management
Co. v. Mendelsohn, 552 U.S. 379, 388 (2008). As with the ADEA, so with Title
VII. Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1258 (11th Cir. 2014).2
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The defendant identifies a non-party witness as a potential source of additional
testimony regarding “several incidents that occurred well prior to” the two denials of
promotion. (Doc. 38 at 4). Because the defendant does not identify these incidents, the
Court does not address them separately.
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The defendant cites the Court’s dicta in Bell v. Crowne Management, LLC, 844
F. Supp. 2d 1222 (S.D. Ala. 2012), for the proposition that, to be relevant, “the other
incidents must implicate a common decisionmaker.” Id. at 1236. The Court extrapolated
this rule from Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008),
but other courts have questioned whether Goldsmith can be read so broadly. Cox v.
Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107, 122 n.13 (Mo. 2015) (en banc).
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The defendant quotes Denney v. City of Albany, 247 F.3d 1172 (11th Cir.
2001), for the proposition that “courts are reluctant to consider ‘prior bad acts’ in
this [employment discrimination] context where those acts do not relate directly to
the plaintiffs.” Id. at 1189. Reluctant, however, is not the same as forbidden; the
Denney Court itself acknowledged that distinctions of time, applicant pool and
selection process “weigh heavily against attaching a great deal of probative value
to” the prior situation but “may not totally deprive [the prior conduct] of its
persuasive force as evidence of [the decisionmaker’s] intent to discriminate
against whites; a key similarity is that [the prior situation] involved the same actor
making the same kind of personnel decision.” Id. Ultimately, the Denney Court
ruled only that the plaintiff had offered “insufficient persuasive evidence” to
escape summary judgment. Id. at 1190. The instant motion, however, involves
admissibility, not sufficiency.
Much of the evidence to which the defendant objects concerns the
treatment of the plaintiff; much of it concerns the conduct of Jim Farnell, who
allegedly discriminated and retaliated against her with respect to the promotions
made the basis of this action; and much of it concerns promotions and other jobplacement decisions. As reflected above, the decision whether to admit such
evidence requires a “fact-intensive, context-specific inquiry,” one in which the
defendant has not engaged. Its motion in limine is therefore denied.
II. Relative Qualifications.
The individuals promoted over the plaintiff in 2011 and 2012 were Jason
Beard and Janet Frye, respectively. The defendant is concerned that the plaintiff
may testify: that she had staffed a supervisory accountant position on a permanent
basis, while Frye had not; that she had held a variety of positions, rendered above
In any event, in light of Mendelsohn (which was decided a month after Goldsmith), “the
admissibility of evidence of discrimination by other supervisors is not governed by a
categorical rule ….” Adams, 754 F.3d at 1258.

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average performance, and secured a number of noteworthy accomplishments; that
she was the first in the region to obtain a CDFM, which is the gold standard for
Department of Defense financial managers; that she performed exceptionally well
in all positions she held; that she had performed well in a number of supervisory
positions, while Beard had never held a supervisory position; and that she had
trained Frye when she was a co-op student. The defendant also believes the
plaintiff may testify that the person promoted to a supervisory accountant position
in 2009 had no degree, had only 24 hours of accounting classes, had no
certification, and had returned to the Mobile District only a few years before her
promotion. Finally, the defendant believes the plaintiff may testify that she was
better qualified than Beard and Frye. (Doc. 38 at 9-10).
The defendant describes all the foregoing as irrelevant under Rule 401, on
the grounds that a plaintiff cannot offer opinions regarding her own qualifications,
absolute or relative to others. (Doc. 38 at 10-12). The defendant adds another
general objection based on Rule 403. (Id. at 12).
As a threshold matter, much of the testimony to which the defendant
objects cannot be classified as opinion. Education, experience, honors,
certifications and so forth – one’s own or someone else’s – are not matters of
opinion but of fact.
It is true that an employer is generally free to determine its own
qualifications for a position and is also free to evaluate the relative qualifications
of various applicants, so long as it is not masking a discriminatory or retaliatory
motive. But the defendant has failed to show that this means a plaintiff is
forbidden to present evidence of what she considers her qualifications or to engage
in a comparison of those qualifications with those of other applicants. Such a
showing would be difficult, given that, “[u]nder this Court’s decisions,
qualifications evidence may suffice, at least in some circumstances, to show
pretext.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006). While the
defendant’s cases support the proposition that a plaintiff’s conclusory, subjective
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opinion that she is better qualified is not of itself sufficient evidence of
discrimination to withstand summary judgment, the question before the Court is
again admissibility, not sufficiency. For lack of offered support, the defendant’s
motion in limine is denied.
III. Personnel Policies, Procedures and Practices.
The defendant believes the plaintiff will testify: that the interview process
did not comport with governing guidelines; that the Corps did not maintain
documents as required by regulation and perhaps by consent decree; that Farnell
should not have served as panel chair while the plaintiff had an EEO complaint
pending against him; that he should have retained all notes for the same reason;
and that the selection panel did not follow the defendant’s corporate recruitment
strategy. (Doc. 38 at 13). The defendant may also anticipate testimony of
additional, unidentified unwritten practices and their violation. (Id. at 13-14).
The defendant describes this testimony as hearsay and as impermissible
opinion evidence. Once again, the defendant also nods at Rule 403 without
providing any analysis of that rule or its application here. (Doc. 38 at 13-14).
The plaintiff does not respond to the defendant’s motion. Because the
plaintiff identified no expert witnesses in the joint pretrial document, (Doc. 33-3),
she may not testify as an expert as to the defendant’s personnel policies,
procedures or practices. Nor does it appear likely that she could offer a legitimate
lay opinion under Rule 701 as to personnel matters. But the defendant has failed
to demonstrate that the plaintiff lacks personal knowledge as to the content and
application of the policies, procedures and practices, which knowledge
presumably would permit her to testify regarding such things as a fact witness.
Likewise, the defendant has failed to show that the plaintiff lacks personal
knowledge as to whether specific requirements were or were not followed.
Accordingly, the defendant’s motion in limine is denied.

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IV. Motivation.
Finally, the defendant asserts that the plaintiff should not be permitted to
testify that she believes she was passed over for promotion due to the
discriminatory and/or retaliatory animus of multiple panel members. Such
evidence, the defendant argues, constitutes impermissible lay opinion testimony
and should be excluded under Rules 401 and 403. (Doc. 38 at 14-16).
The defendant relies on Second Circuit precedent for the proposition that a
plaintiff may not tell the jury she believes she has been the victim of
discrimination or retaliation. See Village of Freeport v. Barrella, 814 F.3d 594,
611 (2nd Cir. 2016); Hester v. BIC Corp., 225 F.3d 178, 185 (2nd Cir. 2000). In
fact, neither Barrella nor Hester addressed testimony by the plaintiff but rather
testimony by third-party witnesses.
At any rate, the rule for which the defendant contends appears not to have
been adopted by the Eleventh Circuit, and the Court declines to anticipate that it
will do so. While Rule 701 surely serves as a bulwark against opinions that
merely tell a jury what verdict to reach, the plaintiff’s opinion that she lost
promotions due to race/sex/age discrimination and/or retaliation does not tell the
jury to rule in her favor but simply explains why she is bringing suit; indeed,
precluding a plaintiff from making this basic statement might suggest to some
jurors that she does not believe in the validity of her own cause. While there may
be limits on how far a plaintiff can go in offering such testimony, the defendant’s
cursory motion does not plumb them. Accordingly, its motion in limine is denied.
DONE and ORDERED this 11th day of May, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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