EEOC v. Jetstream Ground Services, Inc.
ORDER granting 206 Motion for Leave. Plaintiffs' Rule 702 Motion to Strike Opinions of JetStream's Expert Matthew Lykins (Doc. # 192 ) and the Plaintiffs' Rule 702 Motion to Exclude Expert Testimony of Dr. Nancy Gruble (Doc. # 193 ) are HEREBY WITHDRAWN. The final pretrial order (Doc. # 147 ) is HEREBY VACATED, and the parties are directed to confer and submit a revised final pretrial order incorporating the amendments outlined in the instant Motion, including a new estimated trial time, on or before 3/31/2016. By Judge Christine M. Arguello on 03/23/2016. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-02340-CMA-KMT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
SAFIA ABDULLE ALI,
SAHRA BASHI ABDIRAHMAN,
SADIYO HASSAN JAMA, and
SAIDA WARSAME, a/k/a AMINO WARSAME,
JETSTREAM GROUND SERVICES, INC.,
ORDER GRANTING JOINT MOTION FOR LEAVE TO FILE PROPOSED AMENDED
FINAL PRETRIAL ORDER AND WITHDRAW THE EEOC’S FED. R. EVID. 702
MOTIONS TO EXCLUDE THE OPINIONS OF TWO OF DEFENDANT’S EXPERTS
This matter is before the Court on the parties’ Joint Motion for Leave to File
Proposed Amended Final Pretrial Order and Withdraw the EEOC’s Fed. R. Evid. 702
Motions to Exclude the Opinions of Two of Defendant’s Experts. (Doc. # 206.) For the
reasons explained below, the Court grants the instant Motion.
The Court adopted a Final Pretrial Order on May 12, 2015. (Doc. # 147.) That
Order noted that “Hereafter, this Final Pretrial Order will control the subsequent course
of this action and the trial, and may not be amended except by consent of the
parties and approval by the court or by order of the court to prevent manifest
injustice.” (Id. at 44) (emphasis added). In that Order, Plaintiff Equal Employment
Opportunity Commission (the EEOC) indicated that it would bring claims for: (1)
disparate treatment, including failure to hire some of the aggrieved individuals, and
discharge of one other; (2) failure to accommodate the religious practice of wearing
hijabs; (3) failure to accommodate the religious practice of wearing long skirts; and (4)
retaliation. In addition to these claims, Plaintiff-Intervenors also stated that they would
ask the jury to determine whether Intervenors had been discriminated against because
of sex-plus-religion. (Id. at 2–9.)
On September 29, 2015, this Court ruled on summary judgment, holding,
inter alia, that it was not unduly burdensome for JetStream to allow its workers to wear
hijabs as a religious accommodation if they are tucked in to a shirt and secured to the
head. (Doc. # 184 at 58.) The Court ruled, however, that the question of whether the
skirt accommodation was an undue hardship remained a question for the jury. (Id. at
60.) On January 21 and 22, 2016, the EEOC filed two motions pursuant to Fed. R. Evid.
702, requesting that the expert opinions of Matthew Lykins and Dr. Nancy Grugle be
excluded from trial. (Doc. ## 192, 193.) These two experts were hired by Defendant to
opine on safety hazards; specifically, Mr. Lykins’ testimony would relate to the safety
hazards associated with loose clothing in the airport environment, while Dr. Grugle’s
would relate to the potential dangers of wearing long skirts while using jetway stairs.
The instant Motion indicates that the parties have reached a final agreement in
which Plaintiffs stipulated to withdraw their skirt accommodation claims (although the
hijab accommodation claims will remain for trial), and Intervenors stipulated to withdraw
their sex-plus-religion discrimination claims. Additionally, Defendant stipulated that it
will not call Matthew Lykins or Dr. Nancy Grugle as witnesses at trial, and Plaintiffs
stipulate they will not call Jayme Scrifes or Dr. J.P. Purswell as witnesses at trial. As a
result, both parties seek the Final Pretrial Order to be amended accordingly. The
parties also note that this trial will be accelerated without the skirt accommodation and
sex-plus-religious discrimination claims.
A. Legal Standard
The Tenth Circuit reviews a district court’s decision regarding the amendment of
a final pretrial order for an abuse of discretion. Koch v. Koch Indus., Inc., 203 F.3d
1202, 1222 (10th Cir. 2000). Federal Rule of Civil Procedure 16(e) provides that final
pretrial orders may be amended “only to prevent manifest injustice,” but, as the Tenth
Circuit recently explained,
Even that standard isn't meant to preclude any flexibility – trials are high
human dramas; surprises always emerge; and no judge worth his [or her]
salt can forget or fail to sympathize with the challenges the trial lawyer
confronts. For all our extensive pretrial procedures, even the most
meticulous trial plan today probably remains no more reliable a guide than
the script in a high school play – provisional at best and with surprising
Monfore v. Phillips, 778 F.3d 849, 851 (10th Cir. 2015) (citing Sill Corp. v. United States,
343 F.2d 411, 420 (10th Cir. 1965) (pretrial orders should not be treated as “hoops of
steel”)); see also Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1208 (10th Cir. 2002)
(quoting Hull v. Chevron U.S.A., Inc., 812 F.2d 584, 588 (10th Cir. 1987)) (“Because the
issues and defenses of the lawsuit are defined by the terms of the [final pretrial] order,
‘total inflexibility is undesirable’”); Fed. R. Civ. P. 1 (noting that the Federal Rules of Civil
Procedure “should be construed, administered, and employed by the court and the
parties to secure the just, speedy, and inexpensive determination of every action and
The Tenth Circuit considers 1 the following factors in deciding whether the district
court abused its discretion: “(1) prejudice or surprise to the party opposing trial of the
issue; (2) the ability of that party to cure any prejudice; (3) disruption by inclusion of the
new issue; and (4) bad faith by the party seeking to modify the order.” Davey v.
Lockheed Martin Corp., 301 F.3d 1204, 1210 (10th Cir. 2002) (quoting Koch, 203 F.3d
at 1222)). It also considers the timeliness of the movant’s motion to amend the order.
See Koch, 203 F.3d at 1223.
In Koch, the Tenth Circuit recognized that a district court is not required to consider these
factors in adjudicating a motion to amend the pretrial order, and that “the district court’s failure to
make explicit findings under these four factors does not render its decision an abuse of
discretion.” 203 F.3d at 1222 n.10.
Having considered both the facts of the instant case and that the instant Motion
is unopposed, the Court believes that amendment of the final pretrial order is warranted.
The first, second, and fourth of the Koch factors are simply irrelevant here; specifically,
there is no prejudice or surprise to either party, nor is there an indication of bad faith, as
the requested modification is the result of the parties’ own agreement. Additionally, far
from disrupting the orderly and efficient trial in this case, the parties’ proposed
amendments would streamline and shorten the trial considerably. Finally, the parties
filed this Motion well before trial began. For all of these reasons, the Court believes that
it would be in the interest of the justice to amend the Final Pretrial Order.
For the foregoing reasons, the Court GRANTS the parties’ Joint Motion for Leave
to File Proposed Amended Final Pretrial Order and Withdraw the EEOC’s Fed. R. Evid.
702 Motions to Exclude the Opinions of Two of Defendant’s Experts. (Doc. # 206.) It is
FURTHER ORDERED that the Plaintiffs’ Rule 702 Motion to Strike Opinions of
JetStream’s Expert Matthew Lykins (Doc. # 192) and the Plaintiffs’ Rule 702 Motion to
Exclude Expert Testimony of Dr. Nancy Gruble (Doc. # 193) are HEREBY
WITHDRAWN. It is
FURTHER ORDERED that the final pretrial order (Doc. # 147) is HEREBY
VACATED, and the parties are directed to confer and submit a revised final pretrial
order incorporating the amendments outlined in the instant Motion, including a new
estimated trial time, on or before March 30, 2016. It is
FURTHER ORDERED that, in accordance with CMA Civ. Practice Standard
43.1B, the parties should submit a joint exhibit list eliminating any exhibits they agree
are no longer relevant. Per CMA Civ. Practice Standard 43.1B(c)(2), the exhibit lists are
currently due on March 24, 2016 (seven days before the Final Trial Preparation
Conference, set for March 31, 2016). However, in light of today’s Order, the parties
may submit the joint exhibit list on or before March 30, 2016.
DATED: March 23, 2016
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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