Abousharkh v. Jenkins Nissan, Inc.

Filing 68

ORDER: Plaintiff Yasmeen Abousharkh's Motion in Limine (Doc. # 52) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 9/17/2021. (DMD)

Case 8:20-cv-01036-VMC-AEP Document 68 Filed 09/17/21 Page 1 of 9 PageID 1089

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 Plaintiff
Yasmeen Abousharkh’s Motion in Limine (Doc. # 52), filed on
July 1, 2021. Defendant Jenkins Nissan, Inc. responded on
July 15, 2021. (Doc. # 53). For the reasons that follow, the
Motion is denied.
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).
Abousharkh filed the instant Motion, seeking to exclude
any

evidence

regarding

the

romantic

relationship

between

herself and her former supervisor, Glen McGuire. (Doc. # 52).
Jenkins has responded (Doc. # 53), 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
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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
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,
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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.”).
III. Analysis
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
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effect.” United States v. Grant, 256 F.3d 1146, 1155 (11th
Cir. 2001).
Abousharkh

seeks

to

exclude

evidence

“of

a

rumored

relationship between Abousharkh and McGuire either during or
after their employment” as irrelevant and more prejudicial
than probative under Rule 403. (Doc. # 52 at 7). The Court
disagrees.
First, the existence of a romantic relationship between
Abousharkh and McGuire is important impeachment evidence.
Abousharkh intends to introduce the testimony of McGuire in
support of her claims of sex discrimination. The fact that
she and McGuire either are or were romantically involved goes
directly to the issue of McGuire’s bias. See Buckley Towers
Condo., Inc. v. QBE Ins. Corp., No. 07-22988-CIV, 2008 WL
5505415,

at

*2

(S.D.

Fla.

Oct.

21,

2008)(noting

that

“impeachment by demonstration of bias, prejudice, interest in
the litigation, or motive to testify in a particular fashion”
is one method of impeachment at common law); United States v.
Taylor, 426 F. App’x 702, 705 (11th Cir. 2011)(“Rule 608(b)
provides that a party may not introduce extrinsic evidence to
attack a witness’s character for truthfulness. The rule does
not, however, prohibit a party from using extrinsic evidence

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for other impeachment purposes, such as to show bias . . . .”
(citations omitted)).
Even aside from use as impeachment evidence, the fact of
a relationship is more probative than prejudicial under the
particular facts of this case. While a plaintiff’s romantic
relationships may not be probative in other cases, here
Jenkins’ theory of the case renders the alleged relationship
highly

probative.

McGuire

was

Abousharkh’s

supervisor

primarily before Abousharkh alleged any discrimination or
retaliation had occurred. Thus, she alleges the majority of
the discrimination and retaliation occurred after McGuire’s
termination. But Jenkins argues that Abousharkh did not face
discriminatory or retaliatory treatment after McGuire left.
Rather, Jenkins maintains that McGuire had been giving
Abousharkh preferential treatment by “allow[ing] her to come
and go to and from work as she pleased . . . and [] gift[ing]
her his Mitsubishi bonus money totaling around $60,000 in one
year

alone.”

(Doc.

#

53

at

2).

Thus,

Jenkins

reasons,

Abousharkh’s receiving less bonus money and having a more
fixed work schedule after McGuire left was not a result of
discrimination or retaliation — it was merely the result of
Abousharkh’s

new

supervisor

treating

her

the

way

other

employees were treated. McGuire’s alleged favoritism towards
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Abousharkh

is

an

essential

part

of

this

theory

and

the

romantic relationship between them — whether it existed at
that time or developed after Abousharkh ended her employment
with Jenkins — is highly probative of preferential treatment.
Given these circumstances, it appears to the Court at this
time that the probativeness of the evidence outweighs its
prejudicial effect.
Nor is the Court persuaded at this juncture that evidence
of this romantic relationship would violate Rule 412. Rule
412 provides that “[t]he following evidence is not admissible
in a civil or criminal proceeding involving alleged sexual
misconduct: (1) evidence offered to prove that a victim
engaged in other sexual behavior; or (2) evidence offered to
prove

a

412(a).

victim’s
Rule

sexual

412(b)(2)

predisposition.”
creates

an

Fed.

exception

R.
to

Evid.
the

inadmissibility of this evidence: “In a civil case, the court
may admit evidence offered to prove a victim’s sexual behavior
or sexual predisposition if its probative value substantially
outweighs the danger of harm to any victim and of unfair
prejudice to any party. The court may admit evidence of a
victim’s reputation only if the victim has placed it in
controversy.” Fed. R. Evid. 412(b)(2). Importantly, Rule 412
applies “in a Title VII action in which the plaintiff has
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alleged

sexual

harassment.”

Fed.

R.

Evid.

412,

Advisory

Committee Notes (1994)(emphasis added).
Here, the amended complaint — although it states at a
few

points

that

Abousharkh

suffered

“harassment”

—

only

alleges a mixed-motive theory of sex discrimination. Indeed,
Count I states that Jenkins “took adverse employment actions
against Abousharkh, including disciplining her, reducing her
pay, suspending her, and terminating her” and that her sex
“was a motivating factor in the adverse actions.” (Doc. # 12
at 4). And the Court has ruled that this case may proceed to
trial

only

on

the

retaliation

and

mixed-motive

sex

discrimination claims to the extent they are based on the
alleged

reduction

of

Abousharkh’s

spin

bonuses

and

her

termination. (Doc. # 63 at 6-7).
Thus, because Abousharkh is not proceeding to trial on
a theory of sexual harassment, Rule 412 does not apply. Even
if Rule 412 did apply, the Court would not exclude the
evidence of a relationship at this time because the probative
value of this evidence “substantially outweighs the danger of
harm to any victim and of unfair prejudice to any party,”
given Jenkins’ theory of the case. Fed. R. Evid. 412(b)(2).
While

the

Court

will

not

exclude

evidence

of

the

relationship between Abousharkh and McGuire at this juncture,
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Abousharkh is free to raise objections to particular evidence
regarding the relationship during trial.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Plaintiff Yasmeen Abousharkh’s Motion in Limine (Doc. #
52) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
17th day of September, 2021.

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