McLain v. Shulkin

Filing 211

ORDER granting in part and denying in part 143 Motion in Limine. Signed by Judge William F. Jung on 3/1/2022. (CCB)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DENNIS MCLAIN,
Plaintiff,
v.

CASE NO. 8:17-cv-1283-WFJ-CPT

DENIS MCDONOUGH, Secretary,
Department of Veterans Affairs,
Defendant.
_______________________________/
ORDER ON “ME TOO” WITNESSES
Before the Court is Defendant’s motion in limine to limit the testimony of
Plaintiff’s “Me Too” Witnesses (Doc. 143) and the various supplements that
followed. “Me too” evidence may be used as a basis for claims of hostile work
environment pursuant to Federal Rule of Evidence 402. See Goldsmith v. Bagby
Elevator Co., Inc., 513 F.3d 1261, 1286 (11th Cir. 2008). Such evidence may also
be used to support allegations that an employer harbors an improper retaliatory
intent or motive pursuant to Rule 404(b). Id. Unless “me too” evidence is relevant
to show a defendant’s retaliatory motive, intent, or knowledge, however, it may not
be considered as evidence of discrimination or retaliation pursuant to Rule 404(b).
See Jackson v. United Parcel Serv., Inc., 593 F. App’x 871, 877 (11th Cir. 2014);
Denney v. City of Albany, 247 F.3d 1172, 1189 (11th Cir. 2001) (“[C]ourts are

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reluctant to consider ‘prior bad acts’ in [the employment discrimination] context
where those acts do not relate directly to the plaintiffs.”); Dagnesses v. Target
Media Partner Operating Co., No. 1:15-cv-23989-UU, 2016 WL 10647255, at *1–
2 (S.D. Fla. Nov. 14, 2016) (noting that Eleventh Circuit “has permitted such
evidence as ‘relevant and not overly prejudicial’ to prove discriminatory intent in
certain circumstances”) (citing Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240,
1257–58 (11th Cir. 2014)).
A federal district court has wide discretion with respect to determining the
admissibility of “me too” evidence. See Danesses, 2016 WL 10647255, at *2
(citations omitted). For admission, such evidence must be probative of the intent
of a defendant to discriminate or retaliate. See Goldsmith, 513 F.3d at 1286; Fed.
R. Evid. 404(b). It should not be admitted at trial if it is unduly prejudicial,
confusing, misleading, or cumulative. See Adams, 754 F.3d at 1258; Sprint/United
Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (granting broad discretion to
district court’s evidentiary rulings, particularly with respect to Rule 403
balancing). Citing to Sprint/United and other district court cases, the district court
in Kalamas v. Ross, No. 8:16-cv-563-T-26JSS, (M.D. Fla. Jan. 26, 2018), found
“me too” evidence inadmissible under Rule 404(b) because the discriminatory
experiences with the alleged discriminator were “markedly different” as one was
motivated by race and the other by ethnicity. Kalamas (Doc. 143-1 at 2–3). In
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determining admissibility, the district court must guard against the regression of
the main case into a series of mini-trials concerning the reliability of “me too”
witnesses.
The Court therefore instructed Plaintiff to file a description of his most
important “me too” witnesses, limiting the number to six. See Doc. 190. The
Defendant objects to them all as extrinsic and dehors the Plaintiff’s case. See Doc.
196.
The Court believes that Plaintiff’s wife is within the “zone of protection”
and may testify as to matters related to her husband/co-employee’s claims.
Likewise, because Plaintiff represented witnesses Salem and Patricio, they may
testify about matters directly related to the claims here and as “me too” witnesses.
As to the other witnesses listed in Plaintiff’s list of six:
Dr. Sherry Smith: Smith is a potential witness whose claim was racial
discrimination. The Court has reviewed Smith’s case file and a recent summary
judgment order by Judge Covington. Smith is extrinsic and will not be heard.
Witnesses Harris and VanMeter are related to her testimony. Their testimony is
too extrinsic and distant from the underlying case and will also not be heard in
Plaintiff’s case.
Dr. William Messina: Messina’s testimony is somewhat duplicative of
Salem, whom the Court has permitted. Messina apparently does not allege
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retaliation because of prior EEO activity, nor did he ever file an EEO claim or
engage in EEO activity at all. Messina’s testimony appears to bolster, in part,
Salem’s testimony but does not show any motive, intent, or plan to retaliate against
the Plaintiff McLain. He is more in the nature of a “bad character” or propensity
witness. He will not be heard.
Erin Tonkyro: Plaintiff asserts Tonkyro was told by hospital manager (not
Doloresco) that EEO claimants would not be promoted. Tonkyro has no direct
proof about Plaintiff McLain’s claims and has no personal knowledge about what
Doloresco said. She is too attenuated to be admitted for this extrinsic proof, and
she herself possesses no direct proof. She will not be heard.
Dr. Carol Rueter: Like Messina, Rueter did not allege retaliation for prior
EEO activity. Rueter’s underlying complaint—disability discrimination—is far
afield. She did not pursue her claim once she moved to Georgia. She offers no
direct or reasonably inferential proof supporting Plaintiff’s claim. She will not be
heard. The in limine preclusion of Rueter is granted.
Having reviewed Plaintiff’s top six “me too” witnesses offered, the Court
makes the above ruling. Any other “me too” or Rule 404(b) witnesses are simply
far attenuated and neither pertinent nor relevant to Plaintiff’s case nor relevant, nor
a fair use of the jury’s time.

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Accordingly, Defendant’s motion in limine (Dkt. 143) is granted in part and
denied in part consistent with this order.
DONE AND ORDERED at Tampa, Florida, on March 1, 2022.

COPIES FURNISHED TO:
Counsel of record

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