Blakeslee v. Shaw Infrastructures, Inc.
ORDER granting in part and denying in part 64 Motion in Limine. See PDF document for details. Signed by Judge John W. Sedwick on 9/30/11. (GMM, CHAMBERS STAFF)
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
SHAW INFRASTRUCTURE, INC.,
ORDER AND OPINION
Motion at Docket 64]
I. MOTION PRESENTED
At docket 64, defendant Shaw Infrastructure, Inc. (“Shaw”) moves in limine to
exclude certain testimony from Michelle Cook (“Cook”), former Human Resources
Compliance Manager at Shaw. Plaintiff Paul Blakeslee (“Blakeslee”) opposes the
motion at docket 91. Shaw’s reply is at docket 108. Oral argument was not requested
and would not assist the court.
Detailed background information is provided in the order at docket 129.
A. Refusal to Permit Cooke to Investigate
Shaw argues that Cooke’s testimony that she was not permitted to investigate
Blakeslee’s termination is irrelevant to whether Blakeslee’s termination was retaliatory.
Blakeslee counters that it is relevant to whether Shaw’s explanation for terminating
Blakeslee’s employment was pretextual. Evidence is relevant if it has “any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.”1 Cooke’s
testimony that she was not permitted to investigate Blakeslee’s termination makes it
more probable that Shaw’s proferred reason was pretextual. Shaw suggests that there
are other reasons that Cooke was not permitted to perform an investigation. Those
alternative explanations can be offered at trial and do not detract from the relevance of
Shaw’s reply changes course; it states that Cooke was allowed to investigate and
that the investigation is irrelevant because it occurred after Blakeslee was terminated.
An argument cannot be raised for the first time in a reply brief.2 Even if the court were
to consider Shaw’s untimely argument, it is not persuasive. Even assuming “the only
relevant evidence is that which was before the decision-maker at the time of the
employment action at issue,”3 the results of an internal investigation would offer insight
into what precisely was considered in making the decision to terminate Blakeslee’s
B. Testimony that Cooke Would Have Investigated the RIF Differently
Shaw argues that Cooke’s testimony that she would have investigated Shaw’s
reduction-in-force (“RIF”) practice differently had she known about Blakeslee’s letter is
irrelevant because it is speculative. Blakeslee maintains that it tends to show that
Blakeslee’s decision not to involve the human resources department was unreasonable
and that Shaw’s explanation was pretextual. This portion of Cooke’s testimony is
irrelevant. Whether Cooke would have investigated differently in light of the letter has
no bearing on whether Blakeslee’s termination was retaliatory or whether its proferred
reason was pretextual.
C. Cook’s Past Experience With the RIF Process
Shaw argues first that Cooke’s testimony that she witnessed managers use the
RIF process to get rid of problem employees is “irrelevant, unfairly prejudicial, and
Fed R. Evid. 401.
In re Rains, 428 F.3d 893, 902 (9th Cir. 2005).
Doc. 108 at 3.
completely lacking of probative value.”4 Shaw does not attempt to explain why. In any
event, Shaw’s first argument is inconsistent with its second–that this portion of Cooke’s
testimony should be excluded pursuant to Rule 404.5
Shaw does not specify whether it is seeking to exclude Cooke’s testimony
pursuant to Rule 404(a) or (b). The court assumes that Shaw is arguing that Cooke’s
testimony pertains to specific acts offered to prove character. Rule 404(b) provides that
“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.”6 Cooke’s testimony that Shaw
managers used the RIF process to get rid of problem employees is not offered to prove
character or action in conformity with any character trait. Assuming that a business
entity can even possess such traits, it is not clear what aspect of Shaw’s “character” that
evidence would tend to prove. Even if it were character evidence, Rule 404(b) permits
evidence of specific acts “for other purposes, such as . . . knowledge.”7 Cooke’s
testimony suggests that Shaw had knowledge of a process to get rid of problem
D. Cooke’s Distrust of Lantz
Shaw argues that Cooke’s opinion of Lantz’s trustworthiness–based on an issue
involving the falsification of time cards–is irrelevant. Under Rule 608, ‘[t]he credibility of
a witness may be attacked or supported by evidence in the form of opinion or reputation
[provided it] refer[s] only to character for truthfulness or untruthfulness.”8 Cooke’s
opinion of Lantz’s truthfulness or untruthfulness may be elicited to attack Lantz’s
credibility. However, “[s]pecific instances of the conduct of a witness . . . may not be
Doc. 65 at 3.
See Michelson v. United States, 335 U.S. 469, 476 (1948) (“The overriding policy of
excluding such evidence, despite its admitted probative value, is the practical experience that its
disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.”).
Fed. R. Evid. 404(b).
Fed. R. Evid. 608(a)(1).
proved by extrinsic evidence,” but may be inquired into on cross-examination.9
Although Rule 608(b) precludes Blakeslee from eliciting the basis for Cooke’s opinion
on direct, it does not preclude introduction of her opinion.
Blakeslee argues that the testimony is also relevant to whether Shaw’s
explanation for Blakeslee’s termination was pretextual. Even if it were, that separate
ground would not permit introduction of anything on direct beyond Cooke’s opinion.
With that opinion in evidence, counsel may later argue to the jury the proposition that
Cooke’s belief as human resources manager reflects on Shaw’s belief in Lantz’s
explanation for termination of Blakeslee’s employment.
E. Cooke’s Own RIF
Cooke testified that she believed her office would be closing when her
employment was terminated in 2010, but that the office simply moved. Shaw concedes
that the status of Cooke’s employment with Shaw is “relevant for context,” but argues
that the details are not. The court agrees that the circumstances of Cooke’s termination
are irrelevant to Blakeslee’s claims. However, the status of Cooke’s employment and
the circumstances of her termination may arise in the context of, and are relevant to, her
For the reasons above, Shaw’s motion in limine at docket 64 is GRANTED in part
and DENIED in part as follows:
1) Cooke may testify regarding the denial of her request to investigate
2) Cooke may not testify that she would have investigated differently if she were
aware of Blakeslee’s letter.
3) Cooke may testify as to her experience with Shaw managers using the RIF
process to get rid of “problem” employees.
4) Cooke may offer her opinion of Lantz’s reputation for trustworthiness or
Fed. R. Evid. 608(b)(1); see also Fed. R. Evid. 405.
5) The circumstances of Cooke’s termination may be presented to the jury only if
they arise in the context of Cooke’s credibility.
DATED at Anchorage, Alaska, this 30th day of September 2011.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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