Equal Employment Opportunity Commission v. Western Distributing Company

Filing 1047

ORDER ON PLAINTIFF'S MOTION IN LIMINE. EEOC's Motion in Limine to Exclude Western's Proposed Testimony and/or Exhibits 976 is GRANTED IN PART, DENIED IN PART, AND DENIED IN PART AS MOOT, to the extent set forth herein. SO ORDERED by Judge William J. Martinez on 1/6/2023.(trvo, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-1727-WJM-STV
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
WESTERN DISTRIBUTING CO.,
Defendant.

ORDER ON PLAINTIFF’S MOTION IN LIMINE

In this case, the Equal Employment Opportunity Commission (“EEOC” or
“Plaintiff”) sues Western Distributing Company (“Western” or “Defendant”) on behalf of
57 aggrieved individuals (“AIs”), alleging a pattern or practice of discrimination against
employees with disabilities, in violation of the Americans with Disabilities Act of 1990, as
amended, 42 U.S.C. §§ 12101, et seq., (“ADA”).
Before the Court is EEOC’s Motion in Limine to Exclude Western’s Proposed
Testimony and/or Exhibits (ECF No. 976) (“Motion). Western filed a response (ECF No.
997). For the following reasons the Motion is granted in part, denied in part, and denied
in part as moot.
I. LEGAL STANDARDS
“The admission or exclusion of evidence lies within the sound discretion of the
trial court . . . .” Robinson v. Mo. Pac. R.R. Co., 16 F.3d 1083, 1086 (10th Cir. 1994);
see also United States v. Golden, 671 F.2d 369, 371 (10th Cir. 1982) (“Trial judges

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have discretion to decide whether an adequate foundation has been laid for the
admission of evidence.”).
Under Federal Rule of Evidence 401, “[e]vidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would without the evidence; and
(b) the fact is of consequence in determining the action.” Relevant evidence is
generally admissible and should only be excluded “if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R.
Evid. 403. “Irrelevant evidence is not admissible.” Fed. R. Evid. 402.
The movant “has the burden of demonstrating that the evidence is inadmissible
on any relevant ground,” and a court “may deny a motion in limine when it lacks the
necessary specificity with respect to the evidence to be excluded.” Pinon Sun Condo.
Ass’n, Inc. v. Atain Specialty Ins. Co., 2020 WL 1452166, at *3 (D. Colo. Mar. 25, 2020)
(quoting First Sav. Bank, F.S.B. v. U.S. Bancorp, 117 F. Supp. 2d, 1078, 1082 (D. Kan.
2000)).
II. ANALYSIS
Plaintiff argues the Court should preclude Defendant from offering evidence and
argument regarding: (1) issues relating to individual AIs reserved for Phase II of this
bifurcated action; (2) AIs deferred to Phase II; (3) AIs’ prescription medications; (4) latedisclosed individuals whose disabilities Defendant allegedly accommodated; (5)
Defendant’s alleged accommodations for employees who were not qualified individuals
with disabilities; (6) Clinton Kallenbach’s reasons for missing his appointment with
ErgoMed; (7) statistics on ErgoMed test results; (8) state traction laws and the safety of

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snow socks; (9) photographs of accidents and towing jobs unrelated to AIs or EEOC’s
claims; (10) Western’s calculations of the cost of idle trucks; (11) AIs’ opinions on their
own disability status; (12) AIs’ criminal convictions more than ten years old; and (13)
AIs’ marriages or marital problems. (ECF No. 976.)
A.

Individual Issues
Under the July 27, 2018, Memorandum and Order issued by United States

District Judge Lewis T. Babcock (ECF No. 166) (“Bifurcation Order”), “all individual
claims and resultant damages” will be decided during the Phase II trial. (ECF No. 166
at 18.) Plaintiff argues that “individual employment decisions” and all evidence related
to those decisions are also reserved for Phase II. (ECF No. 976 at 2 (citing ECF No.
166 at 3).) Despite this, according to Plaintiff, Defendant “continues to seek
adjudication on Phase II issues.” (Id.) Accordingly, Plaintiff seeks exclusion of
evidence of the following facts:
a) More than half of the AIs (32 of 57) could not work in any
capacity at the time of separation.
b) 41 out of 57 AIs were unable to drive commercially at the
time of separation.
c) Some AIs admitted they could not safely perform their job
duties.
d) Some AIs failed to disclose potentially DOT-disqualifying
conditions.
e) EEOC seeks relief on behalf of AIs who were not
restricted or impaired at the time of separation.
f) EEOC seeks relief on behalf of AIs whose impairments
were short in duration, not permanent or long-term, and/or
were not severe.
g) EEOC seeks relief on behalf of AIs who never notified
Western of their purported disabilities or disability-related

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need for accommodation.
h) EEOC seeks relief on behalf of AIs Russell Brethour,
Johnson, Oney, and Otten, who have no documentation
showing that they had a purported disability during the
relevant time at Western.
i) EEOC seeks relief on behalf of AIs who voluntarily
resigned or were separated for performance or conduct
issues.
j) Most AIs who lived outside of Colorado were not interested
in relocating to Denver for reassignments[.]
(Id. (citations omitted).)
Plaintiff argues that permitting evidence of these facts would “stand[] in direct
opposition” to the Bifurcation Order “by suggesting that individual employment
decisions,” “what restrictions an individual had when discharged,” “whether an individual
had a disability,” and “whether a specific accommodation would have been reasonable
for a specific individual” are part of the Phase I trial. (Id. at 2–3.)
Defendant argues that the “EEOC misrepresents the Bifurcation Order, which . . .
does not state that individual employment decisions are reserved for Phase II only.”
(ECF No. 997 at 2 (emphasis in original).) Defendant argues bifurcation of pattern or
practice actions under International Brotherhood of Teamsters v. United States does not
limit the kinds of evidence an employer can use to defend itself and “specifically permits
evidence that [the] EEOC’s case is ‘inaccurate or insignificant.’” (Id. (quoting Int’l B’hd
Teamsters v. U.S., 431 U.S. 324, 360 (1977)).) To do this, Defendant argues it should
be able to present evidence that AIs were not qualified individuals, did not have a
disability or did not notify Western of their disability, did not desire reassignment, or
were discharged for reasons other than their disabilities. (Id.)
The Court agrees with Defendant. The Teamsters Court was clear that Phase I

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and Phase II bifurcation does not “suggest that there are any particular limits on the
type of evidence an employer may use.” 431 U.S. at 360 n.46. The Court went on to
state that “at the liability stage of a pattern-or-practice trial the focus often will not be on
individual hiring decisions.” Id. (emphasis added). When these two statements in
Teamsters are read together, it is clear to this Court that individual employment
decisions are not rendered irrelevant during Phase I trials solely as a result of the fact
that such decisions may have involved only a single AI in the first instance.
Even the more direct language from the Tenth Circuit, quoted in the Bifurcation
Order, does not require the conclusion that individual employment decisions are beyond
the scope of a Phase I trial. (See ECF No. 166 at 3 (“[T]he initial focus in a pattern-orpractice case is not on individual employment decisions, but on a pattern of
discriminatory decisionmaking.”) (Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095,
1105 (10th Cir. 2001)) (internal quotations omitted, emphasis added).) While individual
employment decisions may not be the central inquiry during a Phase I trial, the
Teamsters and Thiessen decisions are binding on this Court, and they do not support
the categorical exclusion of individual-decision evidence the EEOC seeks.
Therefore, with respect to the individual issues identified by Plaintiff, this portion
of the Motion is denied.
B.

“Deferred” Aggrieved Individuals
Plaintiff argues that “the parties and Court agreed to bifurcate discovery for

treating physicians” at a July 11, 2019, hearing before United States Magistrate Judge
Scott T. Varholak. (ECF No. 976 at 3.) At this hearing, Judge Varholak permitted
depositions of 20 treating physicians, limited to three hours each during Phase I
discovery. (Id.) There are 22 AIs whose treating physicians were not deposed, and the
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“EEOC understood this to mean the individuals for whom discovery had been deferred[]
would not be Phase I witnesses.” (Id.) “Western, however, identified seven as
witnesses.” (Id.)
Plaintiff further argues that “deferred treating-physician discovery relates
primarily to establishing the aggrieved individual’s disability, a Phase II individualized
issued under the [B]ifurcation [O]rder.” (Id.) On these grounds, Plaintiff seeks exclusion
of any evidence or argument that “any aggrieved individual did not have a disability.”
(Id. at 3.) Alternatively, if the Court permits such evidence and argument, Plaintiff
argues Defendant “should not be allowed to challenge the disabilities of the 22
individuals whose treating-physician discovery was deferred to Phase II . . . because the
EEOC has not had the opportunity to gather the evidence necessary to establish their
disability.” (Id.)
Defendant argues it is “incredulous[]” to suggest it “cannot defend itself in an
ADA lawsuit with evidence that the AIs” did not have disabilities, and it contests that
discovery for treating physicians was bifurcated, either by agreement or Court order.
(ECF No. 997 at 3.) Defendant also points out that the “EEOC cites not case law in
support” of its position. (Id.)
After considering the parties’ arguments, and closely reviewing transcript
excerpts from the July 11, 2019 hearing before Judge Varholak, the Court finds
Defendant has the better argument here. The Court has already rejected Plaintiff’s
“individual issues” argument, supra Section II.A, and nothing in the hearing transcript
explains how the EEOC came to the understanding that any AIs whose treating
physicians it did not depose could not be Phase I witnesses. Judge Varholak limited the

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number of depositions for treating physicians because, in his view, “the medical records
are sufficient for the vast majority of the information that the EEOC needs.” (ECF No.
995-3 at 7.) This ruling cannot be harmonized with the EEOC’s argument that it has
“not had the opportunity to gather the evidence necessary to establish [Western’s
witnesses’] disability.” (ECF No. 976 at 4.)
Therefore, with respect to “deferred” AIs, this portion of the Motion is denied.
C.

Prescription Medications
Plaintiff argues evidence of certain AIs’ prescription medications should be

precluded on the basis that most of it is after-acquired evidence of wrongdoing and
unduly prejudicial. (ECF No. 976 at 4.) It argues that after-acquired evidence is only
relevant to damages, a Phase II issue. (Id. (citing McKennon v. Nashville Banner Publ’g
Co., 513 U.S. 352, 360–62 (1995).) It also argues that, in light of “the national attention
around the opioid epidemic,” the probative value of evidence that some AIs were
prescribed opioids is substantially outweighed by the unfair prejudice of such evidence.
(Id. at 3–4 (citing Fed. R. Evid. 403).)
Defendant argues evidence of AIs’ prescriptions is not after-acquired evidence of
wrongdoing, but rather evidence that undercuts the EEOC’s claim that reasonable
accommodation was possible. (ECF No. 997 at 3.) According to Defendant, these
prescriptions prevented certain AIs from driving commercial motor vehicles, regardless
of any accommodations for disability. (Id.) As for Plaintiff’s argument regarding unfair
prejudice, Defendant argues Federal Rule of Evidence 403 “should be used sparingly,”
and this is not an appropriate situation for the rule. (Id. at 4.)
The Court agrees with Defendant that evidence of AIs’ prescription medications
is not after-acquired evidence of wrongdoing. And while it may be true that “[m]ost, if
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not all, of the evidence of medications prescribed for the aggrieved individuals was
obtained by Western in the litigation,” there is nothing illegal or wrong about using
prescription medications. (ECF No. 976 at 4.) Moreover, as Plaintiff points out,
“evidence that medication was prescribed does not establish the aggrieved individual
was not eligible to DOT drive because it does not establish the person took the
medicine, how often they took it, or the time of day they took it.” (Id.) The logical gaps
Plaintiff identifies in what it perceives to be Western’s theory or argument on this issue
are ripe fodder for cross examination and closing argument, but are not grounds for
their exclusion.
As for Plaintiff’s Rule 403 argument, the Court is unconvinced. The suggestion
that jurors will be scandalized and prejudiced against AIs simply by learning they were
lawfully prescribed opioid medications by their medical providers has little to no merit.
Therefore, with respect to the AIs’ prescribed medications, this portion of the
Motion is denied.
D.

Late-Disclosed, Allegedly Accommodated Individuals
Plaintiff argues Defendant should be precluded from offering evidence of 14

individuals it allegedly provided ADA accommodations to, who were disclosed after the
close of discovery. (ECF No. 976 at 5.) Plaintiff argues that, despite Defendant’s claim
that “it rediscovered the accommodations it provided after a court[-]ordered review of
backup tapes in 2021,” its “[e]vidence of these purported accommodations . . . were
easily accessible to Western all along.” (Id.) EEOC proposed “limited discovery related
to these individuals,” but Western refused. (Id.) Plaintiff now seeks to preclude
testimony from “unspecified managers about alleged accommodations” provided to
these employees under Rule 37.
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Defendant asserts that it could not have known about the evidence relating to
these individuals without performing the court-ordered restoration and search of backup tapes. (ECF No. 997.) Defendant represents that it does not intend to call these
individuals to testify “unless [the] EEOC opens the door,” but argues it should not be
precluded from referencing its past accommodations to refute Plaintiff’s allegations and
claims. (Id.)
The Court previously resolved a similar dispute in its January 4, 2023, Order on
Defendant’s Motion in Limine (ECF No. 1039 at 9–11.) There, the Court explained that
the proper vehicle for seeking relief for discovery violations is a motion for sanctions.
(Id. at 9.) As there, and again solely in the interest of justice, the Court will construe this
portion—and this portion only—of the Motion as a motion for sanctions, and order the
same remedy. (Id.)
The Court therefore orders the parties to proceed as follows: (1) Defendant will
be permitted to call the above-referenced 14 allegedly accommodated individuals to
testify in its case in chief, or to introduce evidence about their alleged accommodations
through another appropriate witness; (2) no later than 48 hours prior to the anticipated
time of any such testimony, Defendant will provide to Plaintiff a detailed factual
summary of the materially relevant testimony (related to these individuals) it anticipates
eliciting on direct examination, along with a complete list of all exhibits it anticipates will
be in any manner referenced or used in relation to these individuals in the course of its
direct examination; and (3) the Plaintiff’s cross examination of these individuals will not
be limited to the scope of Western’s direct with respect to alleged accommodations
provided to these individuals.

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Therefore, with respect to these 14 late-disclosed witnesses, this portion of the
Motion is denied.
E.

Alleged Accommodations for Employees Who Were Not Qualified
Individuals with Disabilities
Plaintiff seeks exclusion of evidence that Defendant provided accommodations,

such as headsets and modified schedules, to employees because it “does not know and
cannot establish” that any of the accommodated employees had disabilities. (ECF No.
976 at 7.) Without such a showing, Plaintiff argues this evidence has no logical or
reasonable connection to this case because an “accommodation” within this context is a
modification or adjustment to enable an employee with a disability to perform the
essential functions of a position. (Id.)
Defendant responds that the EEOC seeks to impose upon it, without any legal
basis or authority, a burden “to tender an offer or proof that accommodations it made
meet all the exacting elements required for a plaintiff to establish a prima facie case of
disability discrimination.” (ECF No. 997 at 4.) Defendant points out that the one case
Plaintiff does cite is an unpublished, individual-plaintiff case, in which the Tenth Circuit
expressly limited the scope of its holding. (Id. at 5 (citing Mendelsohn v. Sprint/United
Mgmt. Co., 402 F. App’x 337, 342 n.2 (10th Cir. 2010)).)
As Western argues, there is no legal basis in this circuit for the Court to impose
upon Defendant the significant burden of establishing that all employees for which it
allegedly provided an accommodation were qualified individuals with a disability within
the meaning of the ADA. As a consequence, this evidence will not be excluded. In the
Court’s view Plaintiff’s argument more appropriately goes to the weight the jury should

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give such evidence, and not to its admissibility. Moreover, the EEOC is free to develop
this argument during cross examinations and in its closing argument. Therefore, with
respect to alleged past accommodations, this portion of the Motion is denied.
F.

Extrinsic Evidence Related to Clinton Kallenbach’s ErgoMed Appointment
AI Kallenbach was terminated by Western after exhausting 12 weeks of leave

following surgery. (ECF No. 976 at 8, 8 n.9.) He reapplied and was extended a job
offer, but he had to complete ErgoMed’s physical capacity tests before Western would
rehire him. (Id.) Plaintiff asserts the ErgoMed tests were scheduled without consulting
Kallenbach about his schedule, and he attempted to reschedule the tests because he
needed to visit his uncle in the hospital. (Id.) Kallenbach testified that he missed the
tests because he was in fact visiting his uncle, Leo Pauls. (See id.; ECF No. 997 at 5.)
Leo Pauls was deposed during discovery in this litigation, testifying that “he was not ill
during the relevant period, [he] had no contact with Kallenbach for 25–30 years outside
of a 2018 funeral, and he was ‘certain’ he had no contact with Kallenbach in 2009.”
(ECF No. 997 at 5.) Plaintiff seeks preclusion of Pauls’s testimony. (ECF No. 976 at 8.)
The EEOC argues Defendant should not be permitted to introduce Pauls’s
testimony because it is irrelevant to the issues in the Phase I trial and is after-acquired
evidence of wrongdoing under McKennon. (Id. at 8. (quoting Perkins v. Silver Mountain
Sports Club & Spa, 557 F.3d 1141, 1145 (10th Cir. 2009)) (“[I]nformation that an
employer learns after it has discharged an employee is not relevant to the determination
of whether an employer violated [federal law] because it necessarily played no role in
the actual decision.”) (alterations in ECF No. 976).) Plaintiff also argues Pauls’s
testimony is extrinsic evidence of specific conduct that is only admissible if “Kallenbach
provides contrary testimony at trial.” (Id. (citing Fed. R. Evid. 608(b).) In a cursory two
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sentences, Plaintiff argues this testimony should also be excluded under Rule 403
because it would confuse the jury and waste time. (Id. at 9.)
Defendant argues Pauls’s testimony is a “specific contradiction of Kallenbach’s
own excuse for failing to complete required screenings, which he admits is [the] only
reason why he was not reinstated.” (ECF No. 997 at 5.) Defendant intends to offer this
evidence to “show that a statement made on direct examination is false,” rather than for
the “sole purpose” of attacking Kallenbach’s character for truthfulness. (Id.) Therefore,
according to Defendant, Rule 608(b) does not apply. (Id. (citing Montoya v. Sheldon,
2012 WL 5378288, at *4–5 (D.N.M. Oct. 29, 2012).) Relying on unspecified “prior
sections above,” Defendant argues Pauls’s testimony is relevant and admissible under
Rule 403. (Id.)
The Court agrees with Plaintiff that Pauls’s testimony is after-acquired evidence
of wrongdoing that is irrelevant to whether Western’s decision to terminate Kallenbach
rather than provide him with a reasonable accommodation is part of a pattern or
practice of violating the ADA. Even assuming the jury would credit Pauls’s testimony
over Kallenbach’s and that Kallenbach’s lie alone would justify Western in firing him, the
only reason Kallenbach was even scheduled for the ErgoMed tests at all is because he
was subjected to an adverse employment action the EEOC alleges was discriminatory.
(ECF No. 976 at 7–8.)
Despite this, however, it would mislead the jury to permit Kallenbach to testify
that he only missed the ErgoMed tests because he was visiting Pauls in the hospital
and prevent Defendant from impeaching that testimony with Pauls’s testimony. Even
Plaintiff agrees that Pauls’s testimony is admissible under Rule 608(b) if “Kallenbach

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provides contrary testimony at trial.” (Id. at 8.) And while evidence strongly suggesting
that Kallenbach lied about visiting Pauls is prejudicial, it is hardly “unfair.” See Fed. R.
Evid. 403. As such, the Court rejects Plaintiff’s Rule 403 argument. Accordingly, while
Defendant will not be permitted to independently introduce Pauls’s testimony, should
Kallenbach open the door by repeating this lie while testifying at trial, Defendant may
use Pauls’s testimony for impeachment purposes on cross examination.
Therefore, with respect to Pauls’s testimony regarding whether Kallenbach
visited him in the hospital, this portion of the Motion is granted in part and denied in part.
G.

ErgoMed Statistics
Plaintiff argues Defendant should be precluded from offering the testimony of

ErgoMed CEO, Max Haynes, that “he reviewed 1,063 files and found only five Western
employees or applicants who failed its test.” (ECF No. 976 at 9.) Plaintiff argues this
testimony is unhelpful and unfairly prejudicial and should, therefore, be precluded under
Rules 701 and 403. (Id.) Haynes admitted that he could not review all relevant files
because some were destroyed. (Id.) Plaintiff argues the incomplete records and
Haynes’s failure to compare the impact of the test on people with disabilities with the
impact on a control group makes his testimony misleading. (Id.)
Defendant argues that Haynes’s testimony is not scientific, technical, or
otherwise specialized—he “simply explained what his own business records reflected in
terms of who passed the test and who did not.” (ECF No. 997 at 5–6.) According to
Defendant, Haynes did not perform any calculations—he simply reported outcomes.
(Id.) As for Plaintiff’s arguments that missing records or lack of a control group renders
the testimony misleading or confusing, Defendant suggests this is appropriate for cross
examination. (Id. at 6.)
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The Court agrees with Defendant, provided that Haynes does in fact strictly limit
his testimony on this point to simply “report[ing] outcomes” based on the state of his
business records. It also agrees that cross examination is the appropriate way to
address any gaps or incompleteness in ErgoMed’s recordkeeping.
Plaintiff also argues Defendant should be precluded from presenting this
evidence because “it never disclosed the 1,063 files,” relying on Rules 26 and 37. (ECF
No. 976 at 9–10.) As an initial matter, and as the Court noted in Section II.D, supra, this
argument should more appropriately have been made in a motion for sanctions.
While Defendant does not address Plaintiff's argument under Rules 26 and 37,
the Court finds the EEOC has not been prejudiced. As discussed above, the Court will
hold Defendant to its representation that Haynes will merely report on the state of his
business records and offer no analysis—comparative or otherwise—of those records.
The EEOC’s entire argument is predicated on the assertion that Haynes will testify as a
lay expert, offering analysis or opinion with regard to these allegedly incomplete
records. (See ECF No. 976 at 10.) Because Haynes cannot provide such testimony
under this Order, sanctions are inappropriate.
Therefore, with respect to testimony of Max Haynes on the 1,063 ErgoMed
records, this portion of the Motion is denied in part and denied in part as moot.
H.

Safety of Snow Socks and State Traction Laws
Plaintiff argues Defendant should not be able to offer “[a]ny lay opinion testimony

on the safety of snow socks or Auto Socks, either independently or as compared to tire
chains.” (ECF No. 976 at 10–11.) As Defendant points out, Plaintiff “fails to specifically
identify or attach the testimony it challenges.” (ECF No. 997 at 6.) Therefore, with
respect to lay opinion testimony on snow socks or AutoSocks, this portion of the Motion
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is denied. See WJM Revised Practice Standards III.G.1.
EEOC also argues Western managers should be precluded from offering
testimony on “what traction laws in various states require.” (ECF No. 976 at 11.) EEOC
explains that instructing the jury on the law “is the domain of the Court,” and argues only
expert witnesses “may refer to specific provisions of the law” because “knowledge of
laws and regulations requires specialized knowledge.” (Id.)
Defendant responds that its managers will not testify in an expert capacity on
what state chaining laws require. (ECF No. 997 at 6.) Instead, they will purportedly
testify only as to their understanding or belief as to what those laws are. (Id.) This is
testimony that concerns their mental state, rather than the actual requirements of the
law, and does not require scientific, technical, or other specialized knowledge. (Id.)
Given Defendant’s representations about what testimony it will elicit, this portion
of the Motion is denied as moot. The Court, however, will strictly hold Defendant to its
representations, and permit its managers to testify on this matter only if defense counsel
first elicits from each such manager testimony that makes clear he or she is only stating
their understanding of what the law requires, and not about what the law in fact is.
I.

Photographs of Accidents
Plaintiff argues photographs of accident scenes and wreckage operations that

are unrelated to any particular AI should be precluded. (ECF No. 976 at 11.) In
Plaintiff’s view, these photographs are irrelevant because they “do not show workers
performing tasks” and are unfairly prejudicial because “they will provoke an emotional
response in the jury.” (Id. at 11–12.) Plaintiff describes the photos as showing
“Western trucks apparently towing vehicles and debris from grisly, snowy accidents, and
clearing away charred remains of semitrailers.” (Id. at 12.)
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Defendant argues the photographs are relevant because they refute the EEOC’s
claims about the “essential functions of [its] tow driver positions” and “makes incorrect
assumptions as to the feasibility of certain assistive devices tow drivers could use to
perform those functions.” (ECF No. 997 at 7.) According to Defendant, the “towing
photos reflect inclement weather, challenging grades, locations on busy highways
where drivers must work quickly to clear roadways, and circumstances in which heavy
debris is widely dispersed,” demonstrating how physically demanding the positions are.
(Id.) Defendant disputes that the photographs are likely to provoke an emotional
response from the jury because none of them depict injuries to people—only property—
and many do not depict accidents at all. (Id.)
The Court is persuaded by Defendant’s argument that such photographs are
relevant to visually demonstrate the essential functions of its tow driver positions, and
that their probative value is not substantially outweighed by any unfair prejudice, as
Rule 403 requires. Therefore, with respect to the photographs of accident scenes, this
portion of the Motion is denied.
J.

Cost of Idle Trucks
The EEOC argues Western CEO Gaines’s anticipated testimony on the costs

associated with allowing its trucks to sit idle is improper expert testimony that should be
precluded. (ECF No. 976 at 12.) Plaintiff argues that lay witnesses may opine about
basic mathematical calculations, but not the more complicated calculations involving
two depreciating assets, costs of insurance and equipment, and an estimation of lost
profits, that Gaines will offer. (Id. (citing James River Ins. Co. v. Rapid Funding, LLC,
658 F.3d 1207, 1214 (10th Cir. 2011.)).)
Western argues a “manager’s testimony of Western’s business costs to sideline
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a truck due to a driver’s extended medical leave is a simple analysis based on business
experience.” (ECF No. 997 at 7.) According to Western, the calculation requires simple
addition and subtraction and are so easy that Gaines was “doing it in [his] head.” (Id. at
8 (alteration in original).) In Western’s view, this calculation is “distinguishable” from the
one in James River, which was based on an expert report prepared by someone else
and was based on “more” than calculating depreciation. (Id.)
On this issue, the Court agrees with Plaintiff. As the Tenth Circuit explained,
while a lay witness may testify to “elementary mathematical operations,” a lay witness
may not offer “opinions or inferences . . . [that] require any specialized knowledge [or]
could [not] be reached by any ordinary person.” James River, 658 F.3d at 1214. In
James River, the Tenth Circuit found a lay witness’s testimony was improper expert
testimony because “calculating depreciation requires more than applying basic
mathematics.” Id. Moreover, “[t]echnical judgment is required in choosing among
different types of depreciation.” Id. While Defendant argues these calculations are
permissible because they are enabled by Gaines’s business experience, this fact
actually cuts against Defendant’s position. “[K]nowledge derived from previous
professional experience falls squarely within the scope of Rule 702 and thus by
definition outside of Rule 701.” Id. at 1215 (quoting United States v. Smith, 640 F.3d
358, 365 (D.C. Cir. 2011)).
Therefore, with respect to Gaines’s anticipated testimony regarding costs
associated with idle trucks, this portion of the Motion is granted.
K.

Aggrieved Individuals’ Opinions on Their Own Disability Status
Plaintiff argues Defendant “should not be allowed to ask about whether a person

is “disabled,” as it asked most of the aggrieved individuals in their depositions.” (ECF
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No. 976 at 13.) Plaintiff argues that any admissions AIs made with respect to their
disability status are not binding on it because it is the party plaintiff and “the master of its
own case.” (Id. (citing General Tele. Co. Nw., Inc. v. EEOC, 466 U.S. 318, 331
(1980)).) Plaintiff also argues that because “disability” is a specialized legal term, “it is
decidedly improper for Western to ask any witness to opine about being ‘disabled,’
using this complex legal term that has a much more precise definition than the word in
common vernacular.” (Id. at 13–14. (citing Fed. R. Evid. 704).)
Defendant argues AIs’ own impressions about their disability status is “relevant
for various purposes.” (ECF No. 997 at 8.) In Defendant’s view, “AIs’ admissions that
they are not disabled are highly relevant to the issues in this case—including that [the]
EEOC has failed to identify AIs to support its ADA theories—and the jury should be
permitted to consider them.” (Id.) Defendant also argues that Rule 704 only applies to
expert testimony. (Id.) Alternatively, if it is precluded from asking AIs about their
disability status, Defendant argues Plaintiff should not be permitted to ask AIs about the
scope of their impairments. (Id. at 9.)
The Court is convinced by Plaintiff’s argument. Defendant cites no legal
authority for its assertion that Rule 704 applies only to expert witnesses. (Id. at 8.)
While it claims in a footnote that the cases cited by Plaintiff “do not apply” because they
all concern expert witnesses, this bald assertion is easily refuted. (Id. at 8 n.10.) A twominute Westlaw search by the Court yielded United States v. Goodman, a published
Tenth Circuit case discussing the application of Rules 704(a) and 704(b) to lay opinion
testimony. 633 F.3d 963, 967–69 (10th Cir. 2011). In addition, the first sentence of the
advisory committee notes to Rule 704 also makes Defendant’s legal error readily

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apparent. Fed. R. Evid. 704 advisory committee’s note on proposed rules (“The basic
approach to opinions, lay and expert, in these rules is to admit them when helpful to the
trier fact.”)
As the Court has previously explained, opinions that are overly reliant on legal
terms of art are not helpful to the jury because they usurp its factfinding role. (ECF No.
977 at 19–20.) What a disability is under the ADA, and whether a person has a
disability as defined by that Act, are clearly specialized legal questions, and the
testimony Western seeks to introduce is comprised entirely of non-expert AIs’
evaluation or use of that term. Relevant here is also the fact that individuals covered by
the ADA, for cultural or “work ethic,” or other reasons, may subjectively consider
themselves to not be disabled, when in fact as legal matter under the ADA they most
certainly are. Finally, and contrary to Western’s argument, an AI’s individual subjective
opinion about their own disability status is not the substantial equivalent to testimony
about the scope of their physical or mental limitations. While disability status is a
specialized legal question, the scope and duration, for example, of an AI’s impairments
are facts that in turn form the basis for the legal determination of his or her disability
status.
Therefore, with respect to AIs’ testimony with regarding their individual disability
status, this portion of the Motion is granted.
L.

Criminal Convictions More than Ten Years Old
Plaintiff argues Defendant should be precluded from entering evidence relating to

the criminal convictions of five AIs,1 all of which are over ten years old. (ECF No. 976 at

1

The EEOC notes that it is unclear whether AI McCafferty was actually convicted of a
crime. In his deposition, he only recalled that he had been arrested and spent six days in jail.

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14.) Because these convictions are so old, Plaintiff argues there is a presumption of
inadmissibility under Rule 609(b)(1). (Id. at 14–15.) This presumption can only be
overcome if the evidence’s probative value, supported by specific facts and
circumstances, substantially outweighs the prejudicial effect.2 Fed. R. Evid. 609(b)(1).
For AIs Bahmer, Ingland, Jarvis, and McCafferty, “Western identifies only one
‘specific fact and circumstance’—that the convictions . . . were omitted from the
witnesses’ employment applications with Western.” (ECF No. 976 at 15.) Plaintiff
argues that this is not enough to overcome Rule 609(b)’s presumption of exclusion,
particularly because each conviction was of a misdemeanor and none were for crimes
of dishonesty. (Id. at 14–15.) Only AI Morin’s prior conviction was for a felony—a June
2001 charge of unlawful possession of marijuana with intent to distribute. (Id.) With
respect to Morin’s conviction, Plaintiff argues Defendant “provides no ‘specific facts or
circumstances’ that indicate Morin’s conviction is probative of any fact at issue in the
Phase I trial.” (Id. at 15.)
Additionally, Plaintiff argues that because Defendant only learned of the
convictions during discovery, evidence of them is after-acquired evidence of wrongdoing
under McKennon. (Id.)
Defendant responds that each AI’s failure to disclose requested criminal history
information on their applications, and the evidence of their criminal histories, is
admissible because it “goes to untruthfulness in the application process.” (ECF No.
(ECF No. 976 at 14.) For the purposes of this Order, the Court treats this incident as if it had
resulted in a conviction.
2

The Rule also requires the proponent of the evidence to give written notice of its intent
to introduce evidence of the convictions. Fed. R. Evid. 609(b)(2). There is no dispute that
Defendant gave Plaintiff appropriate notice. (See ECF No. 976 at 14.)

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997.) With respect to Morin, it emphasizes that his criminal conviction “involved use of
a commercial motor vehicle to distribute marijuana.” (Id.) For these reasons, it argues
the probative value to determinations of these witnesses’ credibility and qualifications
for the positions substantially outweigh any prejudicial effect. (Id.)
The Court disagrees and easily adopts Plaintiff’s position on this question.
Assuming that this evidence is indeed only for the purpose of showing these AIs lied on
their applications, proving that fact is irrelevant to the Phase I trial. Further assuming
that lying on an application is alone cause for termination, proving these AIs lied would
merely impact damages, which the EEOC correctly points out is not at issue in Phase I
of this action. See McKennon, 513 U.S. 352, 362–63.
It would be both inequitable and pointless to order the
reinstatement of someone the employer would have
terminated, and will terminate, in any event and upon lawful
grounds. . . . An absolute rule barring any recovery of
backpay, however, would undermine the [ADA’s] objective of
forcing employers to consider and examine their motivations,
and of penalizing them for employment decisions that spring
from [disability] discrimination.
Id. Defendant’s other apparent purpose for introducing this evidence—“casting doubt
on the veracity of [these AIs’] other representations to Western”—makes it perfectly
clear that Rule 609 does in fact apply. (ECF No. 997 at 9.) No sleight of hand can
obscure the reality that Western intends to use this evidence to convince the jury that
because these AIs lied to Western before, they lied or may have lied to Western again,
or may now be lying to the jury, in conformity with their character for untruthfulness.
See Fed. R. Evid. 609(a).
Therefore, with respect to evidence of AIs’ convictions that are more than ten
years old, this portion of the Motion is granted.

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M.

Evidence of Aggrieved Individuals’ Marital Problems
Plaintiff argues “evidence about any of the aggrieved individuals’ marriages or

marital problems should be excluded as irrelevant, unfairly prejudicial, misleading, and a
waste of time.” (ECF No. 976 at 16 (citing Fed. R. Evid. 401, 402, 403).) The basis for
this argument is that Western “extensively questioned” AI Edwards about his marriage
during his deposition, and “any evidence related to marital problems is irrelevant[,] and
evidence related to past marriages and marital difficulties is generally inadmissible.”
(Id.)
Defendant argues that Edwards’s testimony “does not pertain to marriage or
marital problems.” (ECF No. 997 at 9.) Rather, “Edwards misrepresented to Western
that his girlfriend was his wife to obtain insurance benefits.” (Id.) Defendant argues that
Plaintiff’s request to preclude all evidence of AIs’ marriages and marital problems is too
vague and broad to be appropriate for a motion in limine (especially given that some
AIs’ spouses are on Plaintiff’s witness list). (Id.)
The Court agrees with Defendant that the EEOC’s request is too vague and
broad to be considered at this stage. See WJM Revised Practice Standards III.G.1.
Accordingly, the Court will determine the admissibility of such evidence, if offered,
during trial when it has the benefit of making such a ruling in the context of all the other
evidence that has been admitted. Nonetheless, the parties are advised that the Court
will require a strong showing of relevance and lack of prejudice with regard to such
marital evidence before it allows this category of testimony into evidence.
Therefore, with respect to evidence of AIs’ marriages or marital problems, this
portion of the Motion is denied.

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III. CONCLUSION
For the reasons set forth above, the Court ORDERS EEOC’s Motion in Limine to
Exclude Western’s Proposed Testimony and/or Exhibits (ECF No. 976) is GRANTED IN
PART, DENIED IN PART, AND DENIED IN PART AS MOOT, to the extent set forth
above.
Dated this 6th day of January, 2023.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

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