Staley v. U.S. Bank National Association et al

Filing 92

MEMORANDUM DECISION AND ORDER- A Plaintiff's Motion in Limine Regarding the Scope of Similarly-situated Employees (Dkt. 50 ) is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ANGELA STALEY,

Case No. 1:10-cv-00591-BLW

Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
U.S. BANK NATIONAL ASSOCIATION,
U.S. BANCORP,
Defendant.

INTRODUCTION
The Court has before it Plaintiff’s Motion in Limine Regarding the Scope of
Similarly-situated Employees (Dkt. 50).
ANALYSIS
Staley initially asked the Court to hold that the group of similarly-situated
individuals with whom Staley’s treatment is compared should be restricted to individuals
who mistakenly misused their food travel allowance. Staley’s counsel has since indicated
she is withdrawing her argument that similarly-situated employees should be limited to
misuse of travel allowances; she now is content with the comparator group including
those who misused corporate credit cards generally. The Bank argues that the Court
should only allow testimony about disciplinary measures given to other Bank employees
who were the subject of internal, formal complaints that the employee violated its
corporate credit card policy.
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As an initial matter, the Court notes that it is not altogether clear exactly what
Staley is asking for in her motion. It is not clear whether she is asking that certain
evidence be admitted or excluded, that the Court give a certain instruction to the jury, or
that the Court just give a general statement about similarly-situated employees in this
case. Regardless, whether employees are similarly situated “is a fact-intensive inquiry,
and what facts are material will vary depending on the case.” Hawn v. Executive Jet
Mgmt., Inc., 615 F.3d 1151, 1157 (9th Cir. 2010). To be similarly situated, employees
must be “similar in all material respects.” Id. (internal quotation marks omitted).
Ordinarily, the question of whether employees are similarly situated is a question for the
jury. Broich v. Incorporated Village of Southhampton, 462 Fed.Appx. 39, 2 (2nd Cir.
2012) (citing Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n. 2 (2d
Cir.2001). Accordingly, the Court will deny the motion to the extend Staley is asking for
the Court to make a decision which should be left to the jury.
However, the Court will give the parties some general guidance on the similarlysituated issue. This may assist the parties regarding the presentation of evidence more
than anything. Exactly how the Court instructs the jury will of course depend to some
degree upon the evidence presented at trial, but the Court will try to at least give the
parties the benefit of its initial take on the matter.
In their briefs, each party takes a cramped view of who is similarly situated to
Staley. First, the Court does not agree with Staley’s assertion that the group of similarlysituated individuals should be limited to only those employees who “mistakenly” misused

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their corporate credit cards. Staley may, of course, argue to the jury why she believes
those who purposely misused their credit cards should not be considered similarly
situated to Staley, but the Court will not exclude evidence about those individuals. If the
Bank intends to argue, as it has thus far in this case, that it has a zero tolerance policy
toward misuse of corporate credit cards, then similarly-situated employees could include
other employees who misused their corporate credit cards – whether on purpose or by
mistake.
However, the Court likewise will not limit the similarly-situated evidence only to
other employees who were the subject of internal, formal complaints that they violated
the corporate credit card policy as requested by the Bank. The Bank’s emphasis on its
zero tolerance policy belies that contention as well. In this regard, this case is not like
Hawn when it comes to the importance of a formal complaint.
The Bank is correct that in Hawn, the Ninth Circuit indicated that it had
distinguished misconduct by one employee from misconduct by another employee on the
basis of whether it prompted complaints or consternation by other employees. Hawn, 615
F.3d at 1160. That made sense in Hawn because the allegations related to sexual
harassment, which by definition impacts others. The court in Hawn explained its
reasoning by citing to Meyer v. California and Hawaiian Sugar Co., 662 F.2d 637 (9th
Cir. 1981). In that case, the Ninth Circuit upheld summary judgment for an employer
where a female plaintiff had been terminated after making racially disparaging remarks,
even though male employees had also made racist remarks but received no discipline.

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The court distinguished the two “because the female plaintiff’s comments had such an
adverse impact on minority employees that they impaired her usefulness in her sensitive
duties in the Personnel Department and, coming from her, reflected unfavorably on the
employer’s policies toward its minority employees.” Hawn, 615 F.3d at 1160. (Internal
quotation omitted.)
Ultimately, in Hawn, the Ninth Circuit reasoned that where there was no evidence
that the male employees’ remarks provoked a vigorous reaction resulting from the
plaintiff’s comments, the other incidents were not such parallels to her case as to raise a
genuine issue of pretext. Id. Finally, the court in Hawn acknowledged that “[t]he
existence of a complaint may not always be material or determinative in light of the facts
in a given case.” Id.
The existence of a complaint is not a factor in this case. There is no suggestion
that misuse of corporate credit cards has an adverse impact on other employees. Thus,
whether other employees are similarly situated with Staley does not turn on whether the
employees were the subject of internal, formal complaints that the employee violated the
Bank’s corporate credit card policy. Therefore, the parties will not be limited to
introducing evidence of only those employees who were subjected to formal complaints
and discipline.
Accordingly, the parties will generally be allowed to present evidence of other
Bank employees who misused their corporate credit cards, whether on purpose or by

MEMORANDUM DECISION AND ORDER - 4

mistake, and whether or not a formal complaint was brought against them. Such evidence
will, of course, need to be otherwise admissible under the Federal Rules of Evidence.
As for instructing the jury, the Court envisions an instruction which explains to the
jury that whether employees are similarly situated is a fact-intensive inquiry, but that the
employees must be similar in all material respects. Hawn v. Executive Jet Mgmt., Inc.,
615 F.3d 1151, 1157 (9th Cir. 2010). Material in this case means that they were Bank
employees who were issued a corporate credit card, that they were subject to the Bank’s
policies regarding the use of their card, and that they misused that card by making
unauthorized purchases in violation of the policy.
The Court recognizes that this issue may need further clarification as the case
proceeds. Accordingly, the parties are encouraged to bring the matter to the Court’s
attention if and when necessary. It may even be beneficial to address the issue in open
Court just before the plaintiff begins putting on her case so that the parties and the Court
can make sure they are on the same page.
ORDER
IT IS ORDERED THAT:
1. Plaintiff’s Motion in Limine Regarding the Scope of Similarly-situated
Employees (Dkt. 50) is DENIED.

MEMORANDUM DECISION AND ORDER - 5

DATED: February 1, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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