HUSSEY v. CITY OF MARIANNA, FLORIDA

Filing 45

ORDER granting in part and denying in part 42 Motion in Limine. Signed by JUDGE RICHARD SMOAK on 9/1/2011. (jem)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

CARL EVERETT HUSSEY,
Plaintiff,
vs.

CASE NO. 5:10-cv-322/RS-CJK

CITY OF MARIANNA, FLORIDA,
Defendant.
__________________________________/

ORDER

Before me are Defendant’s Motion in Limine (Doc. 42), Defendant’s Memorandum of
Law in Support (Doc. 41), and Plaintiff’s Response in Opposition (Doc. 44).
Defendant first seeks to exclude evidence of whether Plaintiff actually violated work rules.
Defendant contends that the issue in this case in not whether the rules were violated, but whether
the City’s decision-makers believed in good faith that they were violated. (Doc. 41, p.3). The
reasonableness of the decision-makers’ beliefs is based, in part, on whether Plaintiff actually
violated the rules. Evidence of Plaintiff’s behavior is relevant to this issue. It will not be
excluded.
Defendant and Plaintiff agree on the second issue. Plaintiff’s OSHA complaint is
excluded. (Doc. 44, p.4).
Defendant next seeks to exclude evidence of the City’s treatment of Mssrs. Pyles, Pollock,

and Sapp as comparators. Plaintiff contends that these comparators engaged in similar work rule
violations under the same supervisors, but did not suffer the same consequences as Plaintiff.
They are proper comparators, particularly to the issue of pretext. It will not be excluded.
Next, Defendant seeks to excluded “me too” evidence—testimony of co-workers that they
were also allegedly discriminated against. To allow such testimony would result in mini-trials
which could lead to confusion. It will be excluded.
Finally, Defendant seeks to exclude co-worker testimony of Plaintiff’s work performance.
Defendant contends that testimony by lateral workers as to whether Plaintiff’s performance was
satisfactory or dissatisfactory is hearsay because it is beyond the scope of their employment.
(Doc. 41, p. 14). Testimony of this nature is not hearsay to the extent that co-workers have
first-hand knowledge of Plaintiff’s performance. In addition, should Defendant suggest that
Plaintiff was fired for poor work performance, their testimony could be relevant to pretext. It will
not be excluded.
The Motion in Limine (Doc. 42) is GRANTED, in part, and DENIED, in part
consistent with the reasoning above.

ORDERED on September 1, 2011.
/S/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE