Vargas v. Michaels Stores, Inc.

Filing 64

ORDER: Plaintiff Jesus Vargas's Motions in Limine (Doc. # 55 ) are DENIED WITHOUT PREJUDICE. Signed by Judge Virginia M. Hernandez Covington on 8/30/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JESUS VARGAS,
Plaintiff,
v.

Case No.: 8:16-cv-1949-T-33JSS

MICHAELS STORES, INC.,
Defendant.
______________________________/
ORDER
This matter comes before the Court upon consideration of
Plaintiff Jesus Vargas’s Motions in Limine (Doc. # 55), filed
on August 2, 2017. Defendant Michaels Stores, Inc., filed its
response on August 16, 2017. (Doc. # 61). For the reasons
that follow, the Motions are denied without prejudice.
I.

Legal Standard
“A

motion

in

limine

presents

a

pretrial

issue

of

admissibility of evidence that is likely to arise at trial,
and as such, the order, like any other interlocutory order,
remains subject to reconsideration by the court throughout
the trial.” In re Seroquel Prods. Liab. Litig., Nos. 6:06–
md–1769–Orl–22DAB, 6:07–cv–15733–Orl–22DAB, 2009 WL 260989,
at *1 (M.D. Fla. Feb. 4, 2009). “The real purpose of a motion
in limine is to give the trial judge notice of the movant’s

1

position so as to avoid the introduction of damaging evidence
which may irretrievably effect the fairness of the trial.”
Id. (internal quotation omitted). “A court has the power to
exclude evidence in limine only when evidence is clearly
inadmissible

on

all

potential

grounds.”

Id.

(internal

quotation omitted).
“A motion in limine is not the proper vehicle to resolve
substantive issues, to test issues of law, or to address or
narrow the issues to be tried.” LSQ Funding Grp. v. EDS Field
Servs., 879 F. Supp. 2d 1320, 1337 (M.D. Fla. 2012)(citing
Royal Indem. Co. v. Liberty Mut. Fire Ins. Co., No. 07–80172–
CIV, 2008 WL 2323900, at *1 (S.D. Fla. June 5, 2008)). “Denial
of a motion in limine does not necessarily mean that all
evidence contemplated by the motion will be admitted at
trial.” In re Seroquel, 2009 WL 260989, at *1 (internal
quotation marks omitted). “Instead, denial of the motion
means the court cannot determine whether the evidence in
question should be excluded outside the trial context.” Id.
“The court will entertain objections on individual proffers
as they arise at trial, even though the proffer falls within
the scope of a denied motion in limine.” Id.
The district court has broad discretion to determine the
admissibility of evidence, and the appellate court will not
2

disturb

this

Court’s

judgment

absent

a

clear

abuse

of

discretion. United States v. McLean, 138 F.3d 1398, 1403 (11th
Cir. 1998); see also United States v. Jernigan, 341 F.3d 1273,
1285 (11th Cir. 2003)(“Inherent in this standard is the firm
recognition that there are difficult evidentiary rulings that
turn on matters uniquely within the purview of the district
court, which has first-hand access to documentary evidence
and is physically proximate to testifying witnesses and the
jury.”).
II.

Analysis
Rule 401, Federal Rules of Evidence, defines “relevant

evidence”

as

“evidence

existence

of

any

fact

having
that

any
is

tendency

of

to

make

the

to

the

consequence

determination of the action more probable or less probable
than it would be without the evidence.” Fed. R. Evid. 401.
Irrelevant evidence is inadmissible. Fed. R. Evid. 402. All
relevant evidence is admissible unless “its probative value
is

substantially

outweighed

by

the

danger

of

unfair

prejudice, confusion of the issues, or misleading the jury,
or by considerations of

undue delay, waste of time, or

needless presentation of cumulative evidence.” Fed. R. Evid.
402, 403; United States v. Ross, 33 F.3d 1507, 1524 (11th
Cir. 1994). Use of Rule 403 to exclude relevant evidence is
3

an “extraordinary remedy” whose “major function . . . is
limited to excluding matter of scant or cumulative probative
force, dragged in by the heels for the sake of its prejudicial
effect.” United States v. Grant, 256 F.3d 1146, 1155 (11th
Cir. 2001).
Vargas now seeks an order in limine barring Michaels
from presenting three types of evidence. (Doc. # 55). The
Court will address each type in turn.
1.

Vargas’s 2010 Performance Evaluation

Vargas seeks to exclude a 2010 performance evaluation
from when he was a Michaels store manager in New York. (Doc.
# 55 at 2). In the evaluation, Vargas’s then-supervisor,
District Manager Lynnette Jones, commented “Jesus sometimes
gets short tempered with staff when they are not on the same
page as he is or if they push back on his direction. Jesus
must work on his negotiation skills with his entire staff to
maximize their performance.” (Doc. # 49-1 at 6). Vargas
asserts the evaluation “has no probative value and will
unfairly prejudice a jury against [him]” because Jones never
disciplined or counseled Vargas for any conduct related to
the evaluation and the evaluation occurred in New York before
Vargas’s transfer to Tampa. (Doc. # 55 at 2).

4

But Michaels argues the evaluation is directly relevant
and not unfairly prejudicial because Vargas “relies heavily
on the argument that [he] was never disciplined by his prior
managers, which, allegedly, indicates Zenn’s discriminatory
animus.” (Doc. # 61 at 2). “[Vargas’s] 2010 performance
evaluation evidences that [] the behavior Zenn witnessed and
ultimately

disciplined

[Vargas]

for

in

2013

began

years

earlier and was observed by previous management.” (Id.).
Therefore, Michaels reasons, the evaluation “is relevant for
the jury to consider in its determination of whether causation
exists, as it is directly related to Michaels’[s] theory of
the case and is necessary to rebut [Vargas’s] argument.”
(Id.).
The Court agrees with Michaels that the performance
evaluation

is

relevant

because

it

bears

on

Vargas’s

interaction style with his staff. Indeed, the performance
evaluation tends to rebut Vargas’s assertions that he never
had

any

disciplinary

issues

before

Zenn

became

his

supervisor. Although the performance evaluation was not a
disciplinary action and was issued before the transfer to
Tampa,

it

shows

that

the

behavior

Vargas’s

employees

complained of in the Dale Mabry store was not unprecedented.
Therefore, the performance evaluation supports Michaels’s
5

contention that its decision to discipline and ultimately
terminate Vargas was not motivated by discrimination. And the
Court cannot determine at this juncture whether the probative
value of the evaluation is outweighed by the risk of undue
prejudice

or

misleading

the

jury.

Accordingly,

Vargas’s

Motion is denied without prejudice as to the 2010 performance
evaluation. But Vargas may raise more specific objections at
trial.
2.

Anonymous Hotline Calls

Next, Vargas seeks to exclude any evidence concerning
four

anonymous

calls

made

to

Michaels’s

human

resources

hotline about Vargas’s treatment of his employees. (Doc. # 55
at 3). He notes that the identities of the callers are unknown
and so the callers cannot be cross-examined. Additionally, he
stresses that the stated reason for his termination was a
different complaint of alleged retaliation — not the specific
complaints made in the hotline calls. (Id.). Vargas argues
“the hotline calls have no probative value and will result in
[] unfair prejudice to [Vargas].” (Id.).
The Court disagrees. As Michaels points out, “these
complaints were part of Michaels[’s] good faith basis for the
decisions it made, and thus are necessary to support its
defense regardless of whether the complaints are true.” (Doc.
6

# 61 at 3). Michaels terminated Vargas because it believed
Vargas was attempting to find out who complained about him
for the sake of retaliation — not because of the content of
the hotline complaints. Still, the hotline complaints about
Vargas are relevant to the case’s narrative and support
Michaels’s stated reason for terminating him. The fact that
numerous complaints were made about Vargas’s treatment of
employees
believed

is

probative

Vargas

would

of

whether

retaliate

Michaels

reasonably

his

employees.

against

Indeed, one of the anonymous callers stated he or she feared
retaliation because Vargas “has retaliated before.” (Doc. #
55-1 at 1).
Furthermore, the prejudice to Vargas does not outweigh
the probative value of the hotline calls such as to warrant
their categorical exclusion at this juncture. It is true the
identities of the callers have not been determined and so the
callers cannot be cross-examined. But Michaels’s employees
who received or knew of the calls, such as Vargas’s supervisor
Zenn,

can

be

questioned

about

whether

the

calls

were

investigated or how the calls influenced their treatment of
Vargas. And, while the hotline complaints would be hearsay if
used to prove that Vargas did the things described in the
complaints, it would not be hearsay for Michaels to use them
7

to show that complaints were made to it about Vargas. Cf.
Peshlakai

v.

Ruiz,

39

F.

Supp.

3d

1264,

1338

(D.N.M.

2014)(“Although the evidence about the complaints would be
hearsay, if the Court allowed the jury to consider the
evidence for its truth, see Fed. R. Evid. 801, the Court
concludes that it may allow the jury to consider the evidence
for the purpose of notice.”).
Accordingly, Vargas’s Motion to exclude the anonymous
hotline calls is denied without prejudice. Vargas may make
more specific objections regarding the anonymous calls at
trial.
3.

Store Tours

Vargas
purporting

argues
to

the

informally

four

“store

audit

the

tour”

Dale

documents,

Mabry

store’s

performance during Vargas’s tenure as store manager, should
be

excluded

because

they

have

“no

probative

value,

prejudice[] [Vargas] and will confuse and mislead the jury.”
(Doc. # 55 at 4). Vargas notes that more than four store tours
likely took place, but Michaels only produced four — three of
which are undated, and all of which indicate unfavorable
scores. (Id.). And because Vargas was terminated for alleged
retaliation rather than the store tour grades, Vargas argues

8

the store tour documents are irrelevant and will mislead the
jury. (Id.).
But
relevant

Michaels

argues

and

unfairly

not

the

store

tour

prejudicial.

documents
First,

are

Michaels

emphasizes that the reason only four store tour documents
were produced was because those were the only store tour
records in its possession. (Doc. # 61 at 6). And, according
to Michaels, the store tours are “probative evidence showing
that Zenn tried to prepare [Vargas] and the Dale Mabry store
for

an

impending

audit

—

which

directly

contradicts

[Vargas’s] allegations that Zenn did not support his store
because he was Hispanic.” (Id. at 6-7).
The Court agrees with Michaels. The store tour documents
are relevant to whether Zenn failed to support Vargas because
of his race and national origin
performing

as

store

manager

and whether Vargas was

satisfactorily,

as

Vargas

maintains. And the high probative value of these documents is
not outweighed by the risk of unfair prejudice or jury
confusion

so

as

to

warrant

their

categorical

exclusion.

Therefore, the Motion is denied without prejudice but Vargas
may raise specific objections as needed at trial.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
9

Plaintiff Jesus Vargas’s Motions in Limine (Doc. # 55)
are DENIED WITHOUT PREJUDICE.
DONE and ORDERED in Chambers in Tampa, Florida, this
30th day of August, 2017.

10