Gargett v. Florida Department of Juvenile Justice
Filing
133
ORDER: Defendant Florida Department of Juvenile Justice's Renewed Motion in Limine (Doc. # 116) is GRANTED in part and DENIED in part as set forth herein. Signed by Judge Virginia M. Hernandez Covington on 5/10/2024. Signed by Judge Virginia M. Hernandez Covington on 5/10/2024. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
FRANK L. GARGETT, JR.,
Plaintiff,
v.
Case No. 8:19-cv-2051-VMC-TGW
FLORIDA DEPARTMENT
OF JUVENILE JUSTICE,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Defendant
Florida Department of Juvenile Justice’s Renewed Motion in
Limine (Doc. # 116), filed on April 9, 2024. Plaintiff Frank
L. Gargett, Jr. responded on April 23, 2024. (Doc. # 122).
The Department replied on May 1, 2024. (Doc. # 128). For the
reasons that follow, the Motion is granted in part and denied
in part.
I.
Background
Gargett
asserting
initiated
claims
this
against
case
his
on
former
August
employer
16,
for
2019,
age
discrimination under the Age Discrimination in Employment Act
(“ADEA”) and the Florida Civil Rights Act (“FCRA”), for
retaliation under the ADEA and FCRA, and for violations of
the Family Medical Leave Act (“FMLA”). (Doc. # 1). Upon remand
1
from the Eleventh Circuit (Doc. # 104), the only claims that
remain are the ADEA and FCRA age discrimination claims.
Now, the Department moves to exclude the introduction of
various arguments and evidence at trial. (Doc. # 116). Gargett
has responded (Doc. # 122), and the Department has replied.
(Doc. # 128). The Motion is ripe for review.
II.
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–ACC-DAB, 6:07–cv–15733–ACC-DAB, 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
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
2
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
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
3
and is physically proximate to testifying witnesses and the
jury.”).
III. Analysis
As an initial matter, the Court must address Gargett’s
apparent understanding of the Eleventh Circuit’s opinion. It
is unclear whether Gargett wishes to admit the Eleventh
Circuit’s opinion at trial as evidence in support of his age
discrimination claims. (Doc. # 122 at 3). The opinion is not
evidence
and
will
not
be
admitted
at
trial.
Gargett
is
incorrect that “[t]he Eleventh Circuit found that Fosler’s
reasons
unworthy
for
of
[Gargett’s]
credence”
termination
and
that
are
such
pretextual
alleged
and
factual
conclusion is “law of the case.” (Id.).
Rather, the Eleventh Circuit, taking all evidence in the
light most favorable to Gargett, held that there was a genuine
dispute of fact as to whether the reasons given for Gargett’s
termination were pretextual. See (Doc. # 104 at 29) (holding
that “Plaintiff has demonstrated a question of fact as to
whether
Defendant’s
reasons
for
discharging
him
were
pretextual”). In short, the Eleventh Circuit merely held that
summary judgment should be denied for the age discrimination
claims and a trial must be held on those claims only. No
factual findings were made by the Eleventh Circuit and no
4
part of the Eleventh Circuit’s opinion will be admitted at
trial.
Now, the Court will address each category of evidence
the Department moves to exclude separately.
A.
Fosler Character Evidence
First, the Department seeks to exclude “inadmissible
character evidence pertaining to other alleged wrongs or acts
of,
and
irrelevant
statements
allegedly
made
by,
[the
Department’s] Assistant Secretary Dixie Fosler.” (Doc. # 116
at 3). These statements include testimony by Gargett and other
Department employees that Fosler was a bully who created a
hostile work environment, had a negative management style,
lacked professionalism, and had poor office etiquette. (Id.
at 4-5). These statements also include testimony by Gargett
and others that Fosler made derogatory comments about other
Department employees that did not relate to age — Gargett’s
claims here. (Id.).
Federal Rule of Evidence 404(a)(1) states: “Evidence of
a person’s character or character trait is not admissible to
prove that on a particular occasion the person acted in
accordance
with
the
character
or
trait.”
Fed.
R.
Evid.
404(a)(1). “An analysis of the admissibility of character
evidence necessarily begins, then, with an examination of the
5
purposes for which the evidence is proffered. If the evidence
is introduced for the purpose of showing that a person acted
in accordance with his character on a given occasion, then
the evidence is inadmissible unless it falls within one of
the exceptions noted in Rule 404.” Murphy v. Precise, No.
1:16-CV-0143-SLB-DAB, 2017 WL 6002581, at *12 (M.D. Ala. Dec.
1, 2017) (citation omitted). “Character evidence is of slight
probative value and may be very prejudicial. It tends to
distract the trier of fact from the main question of what
actually
happened
on
the
particular
occasion.
It
subtly
permits the trier of fact to reward the good man and to punish
the bad man because of their respective characters despite
what the evidence in the case shows actually happened.” Id.
(citation omitted).
Likewise, for this same reason, Rule 404(b)(1) provides
that “[e]vidence of any other crime, wrong, or act is not
admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance
with the character.” Fed. R. Evid. 404(b)(1).
The
Court
agrees
with
the
Department
that
this
anticipated testimony runs afoul of Rules 404(a) and 404(b).
It appears that Gargett intends to introduce this evidence,
6
which
does
not
relate
to
Gargett’s
claims
of
age
discrimination, in order to attack Fosler’s character.
Additionally, the Court is not persuaded by Gargett’s
assertion
that
such
evidence
about
Fosler’s
alleged
mistreatment of employees and poor management shows that
Fosler is “not worthy of belief,” rather than going to her
character. (Doc. # 122 at 6). Even if this evidence were
relevant to the credibility of Fosler’s testimony and reasons
for
terminating
inadmissible.
Gargett,
Rule
608(a)
it
would
provides
likely
that
“[a]
still
be
witness’s
credibility may be attacked or supported by testimony about
the
witness’s
reputation
for
having
a
character
for
truthfulness or untruthfulness, or by testimony in the form
of an opinion about that character.” Fed. R. Evid. 608(a).
Rule 608(b), however, makes clear that “extrinsic evidence is
not admissible to prove specific instances of a witness’s
conduct in order to attack or support the witness’s character
for truthfulness.” Fed. R. Evid. 608(b). Thus, to the extent
Gargett
believes
extrinsic
evidence
of
Fosler’s
alleged
misconduct may be introduced to suggest that she is untruthful
or not credible, Rule 608 precludes such evidence under most
circumstances.
7
Even if the evidence described in this section of the
Department’s Motion was not introduced to attack Fosler’s
character or went to her credibility, the risk of undue
prejudice outweighs the evidence’s probative value such that
it should be excluded under Rule 403. Allegations that Fosler
was a “bully” or made crass comments about employees’ “size”
or other attributes besides age are likely to mislead or
confuse the jury.
Nevertheless, to the extent Gargett or other witnesses
may testify as to any statements they have heard Fosler make
regarding employees’ ages, the Court is not excluding such
testimony at this juncture. Such age-related statements are
relevant to Gargett’s claims of age discrimination and must
be addressed in the context of trial.
B.
Hearsay Statements
Next,
the
Department
seeks
to
exclude
“hearsay
statements allegedly made by Fosler within hearsay statements
allegedly made by witnesses who are not testifying [at]
trial.”
(Doc.
#
116
at
7-8).
These
statements
include
Gargett’s testimony that Officer Norman told him that Officer
Norman “heard [Gargett’s] not going to be here much longer.”
(Id. at 8). Similarly, Gargett testified that he heard from
8
other people how Fosler operated her Department and actions
she was intending to take. (Id.).
“Hearsay is a ‘statement other than one made by the
declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.’”
Williams v. Alpharetta Transfer Station, LLC, No. 1:07-CV1949-GET-GGB, 2009 WL 10670626, at *6 (N.D. Ga. July 7, 2009)
(quoting Fed. R. Evid. 801(c)), report and recommendation
adopted as modified, No. 1:07-CV-1949-GET, 2010 WL 11526841
(N.D. Ga. June 15, 2010), aff’d sub nom. Williams v. Waste
Mgmt., Inc., 411 F. App’x 226 (11th Cir. 2011). “‘Double
hearsay’
is
hearsay
included
within
another
hearsay
statement.” Id. (citation omitted). “Double hearsay ‘is not
excluded under the hearsay rule if each part of the combined
statements conforms with an exception to the hearsay rule
provided in these rules.’” Id. (quoting Fed. R. Evid. 805).
While statements Fosler has made may be admissible as
statements of an opposing party under Federal Rule of Evidence
801(d)(2), statements others made to Gargett are hearsay if
offered to prove the truth of the matter asserted. Unless
Gargett can establish that the statements by others fall
within a hearsay exception, then these statements may not be
9
admitted if they are offered to prove the truth of the
statements.
In his response, Gargett argues the statements by others
to Gargett are not being introduced to prove the truth of the
matter asserted. Rather, these statements would be admitted
to prove the effect of the statements on Gargett, including
motivating
him
to
send
a
subsequent
email
titled
“Rumors/Concerns” to Fosler. (Doc. # 122 at 6-7). Because the
Court only finds this explanation plausible as to statements
related to whether Fosler intended to fire Gargett, the Court
will address the Department’s objection as to such statements
at trial. In short, the Court denies without prejudice the
Motion
as
intended
to
to
statements
fire
relayed
Gargett.
The
to
Gargett
Court
will
that
address
Fosler
these
statements in their context at trial.
Next, statements by Gargett or others that they “heard”
that other employees had complained or sued over alleged
racial or
gender
discrimination
or
other
non-age-related
claims are likewise inadmissible hearsay if offered for the
truth of the matter asserted. (Doc. # 116 at 9). Furthermore,
even if these statements were not offered for the truth of
the matter asserted, the Court agrees with the Department
that complaints about other types of discrimination not at
10
issue in this case are inadmissible under Rule 403. The
probative
value
of
such
statements
is
substantially
outweighed by the dangers of unfair prejudice, confusing the
issues, and misleading the jury. Thus, this category of
statement is excluded.
The Department’s Motion is granted in part and denied in
part to the extent described above for this evidence.
C.
Other Alleged Wrongs
The Department also argues for exclusion of “evidence of
other alleged wrongs or acts of [the Department] including,
but
not
limited
to,
other,
unrelated
complaints
by
[Department] employees.” (Id. at 10). This evidence includes
the
allegations
by
other
employees
of
racial
or
gender
discrimination or other complaints about treatment unrelated
to the age discrimination claims at issue in this case.
Essentially, this is the same evidence the Court excluded in
the previous sections.
“In
cases
alleging
employment
discrimination
and
retaliation, ‘me too’ evidence involving claims made by other
employees may be properly admitted pursuant to Federal Rule
of Evidence 404(b) ‘to prove the defendant’s motive, . . .
intent,
.
.
.
[or]
plan’
to
discriminate
against
the
plaintiff.” Hausburg v. McDonough, No. 8:20-cv-2300-JSS, 2024
11
WL 111994, at *2 (M.D. Fla. Jan. 10, 2024) (quoting Goldsmith
v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008)).
However, “courts are reluctant to consider ‘prior bad acts’
in this context where those acts do not relate directly to
the plaintiffs.” Denney v. City of Albany, 247 F.3d 1172,
1189
(11th
Cir.
2001).
“Even
when
‘me
too’
evidence
is
relevant under Rule 401, the district court retains the
discretion to exclude that evidence, under Rule 403, if it is
unduly prejudicial, confusing, misleading, or cumulative.”
Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1258 (11th
Cir. 2014). “Determining whether Rule 404(b) or corroborative
evidence is admissible is a ‘fact-intensive, context-specific
inquiry’ that ‘rests within the sound discretion of the
district court[.]’” Hausburg, 2024 WL 111994, at *2 (quoting
Adams, 754 F.3d at 1258). “Courts generally admit only that
corroborative
evidence
that
‘closely
compares’
with
the
circumstances alleged by the plaintiff.” Id.
The Court again excludes this evidence as inadmissible
under Rules 404(a)(1), 404(b)(1), and 403. The claims of race
and gender discrimination by Ms. Tynes or claims of other
non-age-related discrimination by other employees are not
relevant “me too” evidence for Gargett’s age discrimination
claims. Compare Goldsmith, 513 F.3d at 1286 (finding “me too”
12
evidence admissible under Rule 404(b) because it involved
other
employees’
claims
of
race
discrimination
and
retaliation in a race discrimination and retaliation case);
see also White v. U.S. Cath. Conf., No. CIV.A.97-1253TAF/JMF,
1998
WL
429842,
at
*5
(D.D.C.
May
22,
1998)
(“[O]nly
discrimination or retaliation of the same character and type
as that [which] is alleged is probative. To establish that a
prior discriminatory act is probative of the intention or
motive of the defendant, there must be some reason to believe
that his motivation or intention in the acts in question was
similar
to
his
motivation
or
intention
on
the
prior
occasion.”).
Even if evidence of racial or gender discrimination
against other employees were relevant to Gargett’s claims of
age discrimination, such evidence would still be excluded as
unduly prejudicial and confusing to the jury under Rule 403.
The Court also agrees with the Department that this
evidence is not admissible under Rule 406 either. Rule 406
provides in pertinent part: “Evidence of a person’s habit or
an organization’s routine practice may be admitted to prove
that on a particular occasion the person or organization acted
in accordance with the habit or routine practice.” Fed. R.
Evid. 406. The Eleventh Circuit has “not announced a precise
13
formula for determining when a practice of an organization is
so consistent that it becomes routine or habitual, but [the
court
has]
determined
that
adequacy
of
sampling
and
uniformity of response are controlling considerations [in
making such a determination].” Goldsmith, 513 F.3d at 1285
(citation and internal quotation marks omitted). “[C]onduct
admitted as evidence of habit must reflect a systematic
response to specific situations to avoid the danger of unfair
prejudice
that
ordinarily
accompanies
the
admission
of
propensity evidence.” Id.
The other employee complaints of which the Court is aware
do not involve age discrimination. (Doc. # 116 at 11-12; Doc.
# 122 at 7-10). As these complaints involve conduct by the
Department different from Gargett’s complaints, the Court
finds that evidence of these complaints does not constitute
habit or routine evidence under Rule 406. Thus, this evidence
is not admissible under that rule.
The Department’s Motion is granted as to this evidence.
D.
Settlement Agreement
Finally, the Department seeks to exclude “evidence of a
Settlement Agreement which was proposed to Gargett by” the
Department while Gargett was still employed. (Doc. # 116 at
12). The Department believes Gargett intends to rely on the
14
Settlement Agreement because he “has testified that said
Settlement Agreement was a condition precedent to his job
offer for a government operations consultant 3 position.”
(Id.).
Under Rule 408,
Evidence of the following is not admissible — on
behalf of any party — either to prove or disprove
the validity or amount of a disputed claim or to
impeach by a prior inconsistent statement or a
contradiction:
(1) furnishing, promising, or offering — or
accepting, promising to accept, or offering to
accept — a valuable consideration in compromising
or attempting to compromise the claim; and
(2) conduct or a statement made during compromise
negotiations about the claim — except when offered
in a criminal case and when the negotiations
related to a claim by a public office in the
exercise of its regulatory, investigative, or
enforcement authority.
Fed. R. Evid. 408(a).
“By its terms, Rule 408 precludes the admission of
evidence concerning an offer to compromise ‘a claim’ for the
purpose of proving (or disproving) the fact or amount of ‘the
claim.’” Armstrong v. HRB Royalty, Inc., 392 F. Supp. 2d 1302,
1304 (S.D. Ala. 2005). “Gauged either by standard usage of
the
English
language
or
by
accepted
rules
of
statutory
construction, the definite article ‘the’ limits ‘the claim’
as
to
which
evidence
may
not
15
be
admitted
to
the
claim
previously referenced, i.e., the claim which was the subject
of a settlement offer.” Id.
Gargett argues that he should be able to introduce the
Settlement
Agreement
application
of
because
Rule
408
by
(1)
the
Department
addressing
the
waived
Settlement
Agreement in its motion for summary judgment and not objecting
to discussion of the Settlement Agreement during depositions
and (2) the Settlement Agreement should be introduced to show
that the Department “would not have offered the new position
to
[Gargett]
if
it
believed
that
[he]
was
a
bully,
insubordinate, would not follow policy or a poor performer
and not worth of being a [Department] employee.” (Doc. # 122
at 10).
As an initial matter, the Department did not waive the
applicability of Rule 408. During summary judgment briefing,
the Settlement Agreement was discussed because it was —
arguably — relevant to Gargett’s FMLA claim. Specifically,
Gargett
maintained
that
his
FMLA
rights
were
violated
because, “in order to get his FMLA benefits, [he] was required
by [the Department] to execute” the Settlement Agreement.
(Doc. # 58 at 19-20). Thus, the Department needed to respond
to the Settlement Agreement at that time to defeat Gargett’s
FMLA claims. Now, the grant of summary judgment on the FMLA
16
claims — the only claims to which Gargett previously argued
the Settlement Agreement was relevant (Doc. # 19-20; Doc. #
63 at 3-4) — has been affirmed. The only claims before the
Court are the age discrimination claims and the Department is
reasonably
Agreement’s
invoking
Rule
admission
at
408
to
prevent
trial
as
to
the
Settlement
these
different,
unrelated claims.
The Court disagrees with Gargett that the Settlement
Agreement
in
particular
has
relevance
to
the
age
discrimination claims and the issue of pretext. While the
fact that the Department offered another job to Gargett upon
his termination may be relevant to the pretext inquiry for
the age discrimination claims, there is additional evidence
directly on this point that is not an inadmissible settlement
agreement. Indeed, the Department “has no objection to the
admission of evidence regarding offering [Gargett] a demotion
upon termination as Director of Detention including, but not
limited to, the letter of offer of Employment as Government
Operations Consultant III to [Gargett] on August 11, 2017.”
(Doc. # 128 at 7). In short, there is no justification to
ignore
the
applicability
of
Rule
408
to
the
Settlement
Agreement.
The Motion is granted as to the Settlement Agreement.
17
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Defendant
Florida
Department
of
Juvenile
Justice’s
Renewed Motion in Limine (Doc. # 116) is GRANTED in part and
DENIED in part as set forth herein.
DONE and ORDERED in Chambers in Tampa, Florida, this
10th day of May, 2024.
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?