Abousharkh v. Jenkins Nissan, Inc.

Filing 67

ORDER: Defendant Jenkins Nissan, Inc.'s Motion in Limine (Doc. # 51) is GRANTED in part and DENIED in part. No evidence regarding changing mileage on vehicles may be introduced at trial. Evidence of other litigation may not be introduced i n Plaintiff's case in chief, but the Court will address its use for impeachment purposes, if necessary, at trial. The Court will not exclude the other categories of evidence at this time. Signed by Judge Virginia M. Hernandez Covington on 9/17/2021. (DMD)

Case 8:20-cv-01036-VMC-AEP Document 67 Filed 09/17/21 Page 1 of 12 PageID 1077

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
YASMEEN ABOUSHARKH,
Plaintiff,
v.

Case No. 8:20-cv-1036-VMC-AEP

JENKINS NISSAN, INC.,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Defendant
Jenkins Nissan, Inc.’s Motion in Limine (Doc. # 51), filed on
July 1, 2021. Plaintiff Yasmeen Abousharkh responded on July
15, 2021. (Doc. # 54). For the reasons that follow, the Motion
is granted in part and denied in part.
I.

Background
Abousharkh initiated this case on May 4, 2020. (Doc. #

1).

She

asserting

filed

her

claims

amended

against

complaint
her

former

on

June

employer

17,
for

2020,
sex

discrimination (including sexual orientation discrimination)
under Title VII and the Florida Civil Rights Act (FCRA)
(Counts I, II, VII, and VIII), disability discrimination in
violation of the Americans with Disabilities Act (ADA) and
FCRA (Counts III and IV), retaliation in violation of the

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FCRA (Count V), and Florida Whistle Blower Act retaliation
(Count VI). (Doc. # 12). Summary judgment has since been
granted

on

the

disability

discrimination

and

sexual

orientation discrimination claims (Counts III, IV, VII and
VIII), but the claims for sex discrimination and retaliation
(Counts I, II, V and VI) survive. (Doc. # 63).
Jenkins filed the instant Motion, seeking to exclude
various categories of evidence. (Doc. # 51). Abousharkh has
responded (Doc. # 54), and 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 [a]ffect the fairness of the trial.”
Id. (internal quotation omitted). “A court has the power to
exclude evidence in limine only when evidence is clearly

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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
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
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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.”).
Federal Rule of Civil Procedure 401 defines “relevant
evidence”

as

existence

of

“evidence
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
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).
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III. Analysis
Jenkins seeks to exclude four categories of evidence:
(1)

references

to

allegations

of

changing

mileage

on

vehicles; (2) evidence of other litigation that Jenkins has
been or is a party to; (3) the criminal history of Mario
Dorado; and (4) stray comments of employees. (Doc. # 51 at 12). As Jenkins’ Motion is unopposed as to the changing of
mileage of vehicles (Id. at 2; Doc. # 54 at 1 n.2), the Motion
is granted as to that category of evidence. The Court will
address the other three categories below.
A.

Other Litigation

Jenkins moves under Rule 403 to preclude Abousharkh from
introducing evidence of three prior lawsuits and one ongoing
lawsuit against Jenkins. (Doc. # 51 at 5-10). One lawsuit
involves claims for disability discrimination, the second
involves claims for sexual harassment and retaliation, the
third

involves

claims

for

involves

claims

for

battery.

(Id.).

According

retaliation,

sexual

harassment
to

Jenkins,

and

the

fourth

and

assault

any

evidence

and
or

testimony “relating to prior litigation [it] has been a party
to, presently a party to or may be a party to is irrelevant
and its probative value is substantially outweighed by the

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danger of unfair prejudice that [Jenkins] may face if the
evidence is presented to a jury.” (Id. at 10).
Abousharkh
lawsuits

should

argues
be

that

the

introduced

existence

because

of

they

the

are

other

“highly

relevant to the issue of punitive damages,” which she does
seek in her amended complaint. (Doc. # 54 at 2). She insists
that all the cases she intends to introduce “involve the same
decision-maker, Brian Fivecoat [], and the same departments
(the two locations of [Jenkins] that Fivecoat had authority
over).” (Id.). Thus, she reasons, “the evidence will show
that

[Jenkins]

engaged

in

multiple

similar

instances

of

discrimination and retaliation, which go directly to the
issue

of

[Jenkins’]

reckless

disregard

for

Abousharkh’s

federally protected rights.” (Id.).
“[E]vidence of other lawsuits is not normally relevant
and not permitted.” Rushing v. Wells Fargo Bank, N.A., No.
8:10-cv-1572-SCB-AEP, 2012 WL 3155790, at *1 (M.D. Fla. Aug.
3, 2012); see also Palmer v. Bd. of Regents of Univ. Sys. of
Ga., 208 F.3d 969, 973 (11th Cir. 2000)(“[W]e do not find any
merit to Palmer’s argument that the district court abused its
discretion in excluding evidence of the existence of the other
lawsuits against the University System. The complaints that

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she sought to introduce involved different decision-makers,
different departments, and different hiring processes.”).
The Court considers the other litigation here of little
probative

value.

First,

even

if

Fivecoat

were

the

same

decisionmaker in all the cases, three of the four cases
involve different claims than those that still survive in
this case. Specifically, the Regusa case involved disability
discrimination (Doc. # 54-1), but summary judgment has been
granted on Abousharkh’s disability discrimination claims.
(Doc. # 63 at 1, 6). The Pagan case involved claims for both
sexual harassment and retaliation, while the Rodriguez case
involves claims of sexual harassment and assault in battery.
(Doc. # 54-2; Doc. # 54-3). In contrast, this case only
involves

claims

of

mixed-motive

sex

discrimination

and

retaliation. Second, no adjudication of liability against
Jenkins has been made in any of the four cases — one case is
still pending, one was dismissed for failure to timely serve
Jenkins, and two were settled — leaving these cases to be
composed merely of unsubstantiated allegations.
Thus, even if Abousharkh is only interested in this
evidence to support punitive damages, the prejudicial value
of

this

evidence

still

outweighs

its

probative

value

generally. There is a serious risk of a jury interpreting the
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existence

of

other

litigation

as

proof

that

Jenkins

discriminated or retaliated against Abousharkh in this case.
Thus, Abousharkh may not introduce this evidence in her case
in chief. “However, depending on the evidence offered at
trial,

evidence

of

other

lawsuits

might

be

used

for

impeachment.” Id. The Court may address the admissibility of
this evidence for impeachment purposes — if necessary — during
trial. The Motion is granted in part and denied in part as to
this evidence.
B.

Criminal History

Jenkins

seeks

to

exclude

any

evidence

or

argument

regarding the criminal history of Jenkins employee, Mario
Dorado, who was Abousharkh’s supervisor for the relevant part
of her employment. (Doc. # 51 at 10). Twenty-five years ago,
Dorado was charged with attempting to impersonate a law
enforcement officer, unlawful installation of radio equipment
to monitor, and unlawful use of a police badge. (Id.). These
charges were brought when Dorado was twenty-one years old.
(Id.). From the court records, it is unclear to which charges
Dorado pled guilty or no contest, and which charges were
reduced to a lesser offense. (Doc. # 54-5).
Jenkins
under

argues

Federal

Rule

these
of

convictions
Evidence
8

should

609(b)(1)

be

excluded

because

the

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convictions are over ten years old, and their probative value
is outweighed by the prejudicial effect. (Doc. # 51 at 11).
Indeed Rule 609(b) provides that, “if more than 10 years have
passed

since

the

witness’s

conviction

or

release

from

confinement for it,” then “[e]vidence of the conviction is
admissible only if: (1) its probative value, supported by
specific facts and circumstances, substantially outweighs its
prejudicial effect; and (2) the proponent gives an adverse
party reasonable written notice of the intent to use it so
that the party has a fair opportunity to contest its use.”
Fed. R. Evid. 609(b). “Under that rule, there is a presumption
against

using

stale

convictions

to

attack

a

witness’s

character for truthfulness.” United States v. Hairston, 627
F. App’x 857, 859 (11th Cir. 2015). “The proponent must show
‘exceptional circumstances justifying the use of an over-age
prior conviction.’” Id. at 860 (citation omitted).
Abousharkh argues that the probative value of these
convictions outweighs the prejudicial effect because “one of
the key disputed issues of material fact is whether Dorado
terminated Abousharkh’s employment on [] May 25, 2019.” (Doc.
# 54 at 4). While Dorado maintains he did not terminate
Abousharkh, Abousharkh alleges that he did terminate her
employment

that

day.

(Id.).

Notably,
9

Abousharkh

insists

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Dorado’s convictions go to his credibility not because of the
convictions themselves, but because Dorado allegedly lied
about these convictions during his deposition.
True, during his deposition, Dorado said he had never
“been convicted of a crime of dishonesty or fraud.” (Doc. #
29-3 at 9:22-24). Yet, as mentioned, it is unclear for which
charges Dorado was convicted and which charges were reduced.
Thus, the Court is not certain at this time if Dorado was
actually convicted for the crime of dishonesty of attempting
to impersonate a police officer. And it is unclear whether
the other charges — unlawful installation of radio equipment
to monitor and unlawful use of a police badge — qualify as
crimes of dishonesty. Without knowing whether Dorado was
convicted of a crime of dishonesty, the Court cannot determine
whether Dorado lied under oath such that his convictions would
be highly probative for use as impeachment.
Given
conviction

this
and

uncertainty
the

fact

that

regarding
witness

the

offenses

credibility

is

of
a

substantial issue in this case, the Court will not exclude
Dorado’s criminal history at this stage. If Dorado was in
fact convicted of crimes of dishonesty (rather than pleading
guilty to lesser offenses), the probative value of Dorado’s
twenty-five-year-old

convictions
10

would

substantially

Case 8:20-cv-01036-VMC-AEP Document 67 Filed 09/17/21 Page 11 of 12 PageID 1087

outweigh

their

prejudicial

effect

because

of

Dorado’s

deposition testimony that he had no such convictions. The
Motion is denied as to this request. Jenkins may raise this
argument again at trial.
C.

Sexist Comments

Jenkins seeks to exclude testimony that Abousharkh and
one of her former supervisors, Glen McGuire, heard other
Jenkins employees, including Fivecoat, make certain sexist
statements about women. (Doc. # 51 at 13). According to
Jenkins, these various statements should be excluded because
Abousharkh has not alleged a hostile work environment claim
and Abousharkh did not report some of the alleged statements
to human resources during her employment. (Id. at 14).
The Court disagrees. Although she is not proceeding
under

a

hostile

work

environment

theory,

Abousharkh

has

asserted sex discrimination claims against Jenkins, arguing
that

her

employment

sex

was

actions

a

motivating

taken

against

factor
her.

for
Sexist

the

adverse

statements,

especially those made by the alleged decisionmaker Brian
Fivecoat or in his presence, are certainly probative of
whether Abousharkh’s sex was a motivating factor for the
adverse employment actions she suffered. And the Court cannot

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say that the prejudicial effect of these statements outweighs
their probative value.
Thus, the Court will not exclude these statements under
Rule 403 at this time. Jenkins may raise objections to the
introduction

of

specific

statements

during

trial,

if

appropriate.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Defendant Jenkins Nissan, Inc.’s Motion in Limine (Doc.
# 51) is GRANTED in part and DENIED in part. No evidence
regarding changing mileage on vehicles may be introduced at
trial. Evidence of other litigation may not be introduced in
Plaintiff’s case in chief, but the Court will address its use
for impeachment purposes, if necessary, at trial. The Court
will not exclude the other categories of evidence at this
time.
DONE and ORDERED in Chambers in Tampa, Florida, this
17th day of September, 2021.

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