Blakely et al v. Big Lots Stores Inc
Filing
129
OPINION AND ORDER GRANTING (1) Plaintiffs Motion in Limine No. 1 to Bar Evidence of Public Benefits Received by any Plaintiff DE 96 ; (2) Plaintiffs Motion in Limine No. 2 to Bar Reference to the EEOC Final Determination DE 99 ; (3) Plaintiffs Mot ion in Limine No. 3 to Exclude Non-Party Witnesses from the Courtroom During Trial DE 100 ; (4) Plaintiffs Motion in Limine No. 4 to Bar any Suggestion that Plaintiff Rogers Previously Filed a Charge of Discrimination Against Defendant Big Lots Inc. DE 101 ; (5) Plaintiffs Motion in Limine No. 5 to Bar the use of Undisclosed Witnesses DE 102 ; and(6) Plaintiffs Motion in Limine No. 6 to Bar Evidence, Argument, or Mention of Dismissed Plaintiffs DE 103 . Signed by Magistrate Judge John E M artin on 5/3/16. The Court hereby DENIES: (1) Defendants Motion in Limine to Exclude Testimony Regarding Statements Made by Unidentified Declarants DE 106 ;(2) Defendants Motion in Limine to Exclude Evidence Relating to Defendants EEOC Investigation DE 107 ; Defendants Motion in Limine to Exclude Evidence Relating to Former Plaintiffs Claims for which the Court Entered Summary Judgment in Favor of Defendant DE 108 ; and (4) Defendants Motion in Limine to Exclude Evidence Regarding Punitive Damages DE 109 . Signed by Magistrate Judge John E Martin on 5/3/16 (kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KIA THOMAS, et al.,
Plaintiffs,
v.
BIG LOTS STORES, INC.,
Defendant.
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CAUSE NO.: 2:10-CV-342-JEM
OPINION AND ORDER
This matter is before the Court on a number of motions in limine [DE 96, 99, 100, 101, 102,
103, 106, 107, 108, 109] filed by the parties on April 6, 2016.
A.
Analysis
A motion in limine will be granted “only when evidence is clearly inadmissible on all
potential grounds.” Hawthorne Partners v. AT & T Techs., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill.
1993); see also Dartey v. Ford Motor Co., 104 F. Supp. 2d 1017, 1020 (N.D. Ind. 2000). Most
evidentiary rulings will be resolved at trial in context, and this “ruling is subject to change when the
case unfolds.” Luce v. United States, 469 U.S. 38, 41-42 (1984). The Court considers each request
in turn.
1.
Evidence of Public Benefits Received by any Plaintiff
Plaintiffs request that the Court exclude evidence of any collateral source benefit received
by any of the plaintiffs to avoid prejudicial impact. [DE 96]. Defendant did not respond to the
motion, and the Court agrees that any probative value of that evidence would be outweighed by
damage of unfair prejudice. Fed. R. Evid. 401. Defendant is barred from introducing evidence of
or otherwise referring to collateral source benefits received by any Plaintiff.
2.
Reference to EEOC Investigation and Final Determination
Plaintiffs request that the Court bar any reference to the final determination of the EEOC
investigation into the charges of discrimination filed in this case. [DE 99]. They argue that the final
EEOC determination is barred by the rule against hearsay and Federal Rule 403, and the Court
agrees that the danger of prejudice outweighs any probative value. See Davis v. Lakeside Motor Co.,
No. 3:10-CV-405 JD, 2014 WL 6606044, at *11-12 (N.D. Ind. Nov. 20, 2014) (“[T]he probative
value of evidence of the EEO’'s investigation and findings, such as they are, is limited, as the jury
will have the benefit of considering live testimony given under oath and tested through the adversary
process, which was not available to the EEOC . . . []while[] the dangers of unfair prejudice,
confusing the issues, misleading the jury, and wasting time are substantial.” (citing Silverman v. Bd.
of Educ. of the City of Chicago, 637 F.3d 729, 733 (7th Cir. 2011); Young v. James Green Mgmt.,
Inc., 327 F.3d 616, 624 (7th Cir.2003); Halloway v. Milwaukee Cnty., 180 F.3d 820, 827 (7th
Cir.1999); EEOC v. Custom Cos., Inc., No. 02-cv-3768, 2007 WL 1810495 (N.D. Ill. June 21,
2007)).
Defendant did not respond to Plaintiffs’ motion, but filed its own motion to exclude evidence
relating to its EEOC investigation. [DE 107]. Defendant argues that it has the right to conduct a
preliminary review and respond quickly to an EEOC charge without having to fear the repercussions
of possibly taking an inconsistent or incomplete position, and that introduction of testimony,
exhibits, or references to the investigation would mislead and confuse the jury, causing prejudice
to Defendant. Defendant analogizes the evidence to informal endeavors by the EEOC Commission
to end allegedly unlawful employment practices, information that cannot be made public by the
Commission pursuant to 42 U.S.C. § 2000e-5(b). Plaintiffs argue that Defendant’s statements
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regarding the circumstances surrounding their alleged constructive discharge and whether Defendant
discriminated against them are relevant and admissible. They argue that the statements Defendant
is seeking to bar were made in the course of Plaintiffs’ discrimination charges, not as part of an
attempt to informally resolve a dispute.
Defendant does not argue that the information it is seeking to preclude falls within the
express ambit of 42 U.S.C. § 2000e-5(b), and any information disclosed during settlement
negotiations will not be permitted. Nor is Defendant “b[ou]nd . . . to the positions [it] initially
assert[ed] in . . . administrative proceedings.” McCoy v. WGN Cont’l Broad. Co., 957 F.2d 368, 374
(7th Cir. 1992). Rather, those statements may be admissible as an admission of a party opponent
or a prior inconsistent statement, and a jury can determine the weight to be given them. Frazier v.
Indiana Dep’t of Labor, No. IP01-198CTK, 2003 WL 21254567, at *4 (S.D. Ind. Mar. 24, 2003)
(“[A]n employer’s position statement in an EEOC proceeding may be admissible to the extent it
constitutes an admission, or to show the employer has given inconsistent statements for its
challenged decision.”); see also Brooks v. Grandma’s House Day Care Centers, Inc., 227 F. Supp.
2d 1041, 1043 (E.D. Wis. 2002) (allowing admission of “a statement in a letter written by
defendant’s counsel . . . to the EEOC . . . in response to the EEOC’s notice to it of plaintiff’s
discrimination charge” that “was intended to serve as the Company’s statement of position with
respect to the allegations contained in the charge,” upon a finding that the letter “was not written in
the course of informal endeavors by the EEOC to settle the case” but was written when “the EEOC
had not yet completed its investigation and had not determined that there was reasonable cause to
believe that the charge was true”).
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The final results of the EEOC investigation are precluded as prejudicial and with a high
potential to mislead the jury, Fed. R. Evid. 403, and the parties may not refer to them at trial.
Evidentiary determinations about statements made by Defendant during the course of the
investigation will be resolved at trial.
3.
Exclude Non-Party Witnesses from the Courtroom During Trial
Plaintiffs move to exclude witnesses from trial during testimony and prohibit the calling of
witnesses in rebuttal if they have observed some other part of the trial after their initial testimony.
[DE 100]. Defendant did not respond. Pursuant to Federal Rule of Evidence 615, “At a party’s
request, the court must order witnesses excluded so that they cannot hear other witnesses’
testimony.” Accordingly, the Court excludes non-party witnesses from trial during testimony.
4.
Plaintiff Rogers’s Previous EEOC Charge of Discrimination against Defendant
Plaintiff Rogers filed a previous charge of discrimination against Big Lots in 2009 alleging
discrimination when a promotion was given to Angela Sales-Stephens, a white woman who is
another plaintiff in this suit, rather than Plaintiff Julia Rogers, a black woman. Plaintiffs argue that
the previous charge is not relevant to the issues the jury is asked to decide, and mention of it would
be confusing and possibly mislead the jury. [DE 101]. Defendant argues that this former charge
illustrates an inconsistency: that in the first charge, Rogers did not consider Sales-Stephens to be a
member of a protected class, but in this case Plaintiffs are presenting both as members of a protected
class. Defendant argues that reference to the former EEOC charge is evidence in support of its
position regarding Sales-Stephens’ membership in a protected class. In their reply, Plaintiffs argue
that Rogers’s opinion on Sales-Stephens’s status is inadmissible. Rogers is not an agent or
authorized to speak on Sales-Stephens’s behalf, and is not a co-conspirator. Plaintiffs’ also argue
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that Rogers’s opinion does not qualify as a statement by a party-opponent because it has no
probative value to Rogers’s claim in this case. As Plaintiffs argue, the opinion of a lay witness, in
the form of Rogers, as to whether a plaintiff is a member of a protected class in not admissible under
Federal Rule of Evidence 701, since Rogers is not an expert with specialized legal knowledge
pursuant to Rule 702. Because the previous EEOC charge has no relationship to this case and any
probative value is outweighed by confusion and the likelihood of misleading the jury with reference
to a prior, unrelated charge of discrimination involving several of the same parties to this case,
Defendant is barred from referring to the charge of discrimination previously filed by Rogers.
5.
Undisclosed Witnesses
Plaintiffs move to bar the use of witnesses who were not disclosed pursuant to Federal Rule
of Civil Procedure 26(a)(1). [DE 102]. In particular, Plaintiffs argue that Defendant never disclosed
its intent to call Vincent Cattano as a witness and, pursuant to Federal Rule of Civil Procedure
37(c)(1), since he was not disclosed as a witness in time for Plaintiffs to depose him or conduct
additional discovery that his inclusion in the case would require, his testimony should be barred.
Fed. R. Civ. P. 37(c)(1) (“If a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on
a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”).
Defendant argues that the failure to disclose Mr. Cattano was harmless because Plaintiff did
take some discovery from Mr. Cattano, who was a custodian of one of the email boxes from which
data was collected, and Mr. Cattano submitted two affidavits in the case: one in support of a
memorandum opposing a motion to compel, and the other in support of Defendant’s motion for
summary judgment. In reply, Plaintiffs argue that the provision of an affidavit in support of a
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motion for summary judgment, along with dozens of other exhibits all filed after the close of
discovery, does not suffice as disclosure of a witness pursuant to Federal Rule of Civil Procedure
26(a)(1).
The Rule 37 “sanction of exclusion is automatic and mandatory unless the sanctioned party
can show that its violation of Rule 26(a) was either justified or harmless.” David v. Caterpillar, Inc.,
324 F.3d 851, 857 (7th Cir. 2003) (quoting Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th
Cir.1998)). The Seventh Circuit Court of Appeals has laid out four factors for the Court to consider
in determining whether the Rule 26(a) violation was justified or harmless: “(1) the prejudice or
surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the
prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved
in not disclosing the evidence at an earlier date.” David, 324 F.3d at 857 (citing Bronk v. Ineichen,
54 F.3d 425, 428 (7th Cir.1995); Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170
F.3d 985, 993 (10th Cir.1999)).
In this case, Plaintiffs argue that they will suffer incurable prejudice if Mr. Cattano testifies
because they did not have time to depose him. Defendant has explained its failure to disclose Mr.
Cattano as a witness earlier as an oversight rather than an intentional omission, and blames Plaintiffs
for not guessing that Mr. Cattano was intended to be a witness and challenging his omission from
the initial disclosures earlier. However, as Plaintiffs argue, there was nothing about the affidavit
from Mr. Cattano in support of the motion to compel to suggest that his testimony would be relied
on at trial, nor were all of the other record custodians disclosed as witnesses in the case so as to
indicate that Defendant intended to call Mr. Cattano. At this late date, Plaintiffs do not have the
ability to cure the prejudice, and there is a possibility that the trial will be disrupted. Accordingly,
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the Court cannot conclude that Defendant’s failure to disclose Mr. Cattano in a timely manner was
substantially justified or harmless, and therefore the automatic sanction of exclusion pursuant to
Rule 37 is appropriate. Mr. Cattano is excluded from testifying at trial because Defendant did not
disclose him as required by the Federal Rules of Civil Procedure.
6.
Previously Dismissed Plaintiffs
Plaintiffs argue that evidence, argument, or mention of the plaintiffs who were previously
dismissed from the case should be barred. [DE 103]. These individuals will testify as witnesses to
the conditions surrounding Plaintiffs’ allegations of constructive discharge, and Plaintiffs argue that
reference to their dismissed claims will be prejudicial to the remaining Plaintiffs, potentially confuse
the jury, and lead to the Court wasting its time attempting to keep the jury from improperly
speculating as to why the previous claims were dismissed.
Defendant objects to the scope of Plaintiffs’ request, and also filed a separate motion
requesting that the Plaintiffs be barred as “me too” witnesses. [DE 108]. Defendant argues that it
should be permitted to use evidence of the dismissed claims to demonstrate the potential bias of the
witnesses who were previously party plaintiffs. In their reply, Plaintiffs indicate that they have no
objection to Defendant establishing that the dismissed plaintiffs had filed a claim of discrimination
against Defendant, which would demonstrate these witnesses’ potential bias, but object to a mention
of the fact that their claims were dismissed. Plaintiffs argue that the dismissal has no probative
value, but could cause confusion and potential prejudice.
Defendant argues that the former Plaintiffs should be prohibited from testifying at all about
the subject of their claims that did not survive summary judgment, but that Defendant should be able
to describe the dismissal of the previous claims to show their bias. Plaintiffs argue that the
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testimony of the dismissed former plaintiffs is relevant because they will testify to the circumstances
surrounding the store closing meeting, the information relayed to them, and the conduct that they
experienced throughout the store closing process, as circumstantial evidence of behavior toward
other employees in the same protected group.
Seventh Circuit Court of Appeals “precedents establish . . . that ‘behavior toward or
comments directed at other employees in the protected group’ is one type of circumstantial evidence
that can support an inference of discrimination.” Hasan v. Foley & Lardner LLP, 552 F.3d 520, 529
(7th Cir. 2008) (quoting Hemsworth v.Quotesmith.Com, Inc., 476 F.3d 487, 491 (7th Cir.2007);
citing Phelan v. Cook County, 463 F.3d 773, 781 (7th Cir.2006)); see also Sprint/United Mgmt. Co.
v. Mendelsohn, 552 U.S. 379, 388 (2008) (explaining that evidence of discrimination experienced
by other witnesses may be relevant based on the facts and circumstances of a particular case). In
this case, the dismissed plaintiffs are members of the protected group who will testify as to behavior
and comments directed at them during the store closing process. They had the same managers and
attended the same closing meetings, making their experience relevant to whether or not Defendant
discriminated against Plaintiffs on the basis of race.
The Court concludes that discussion of the claims that were dismissed would tend to confuse
the jury and potentially prejudice Plaintiffs, and that information does not appear to have any
probative value in this case. Although Defendant should be able to elicit testimony from the former
plaintiffs about their potential bias, the former plaintiffs’ prior participation in this suit or the reasons
their claims were dismissed are unnecessary to establish bias. Instead, Defendant can establish bias
through testimony that the dismissed Plaintiffs also filed claims of discrimination against Defendant
with the EEOC. See Graham v. Bennett, No. 04-2136, 2007 WL 781763, at *3 (C.D. Ill. Mar. 12,
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2007) (barring “evidence as to claims filed against parties who are no longer defendants in this
action” under Federal Rule of Evidence 403 as too prejudicial and barring “evidence that [former
plaintiff] was once a party to this action because these dropped or dismissed counts are irrelevant
to the remaining claim . . . and the prejudice resulting from admission of this evidence outweighs
its probative value” when “Defendant has other ways to address the issue of bias with regard to [the
former party]”).
7.
Conversations with Unidentified Individuals
Defendant requests that the Court exclude testimony at trial related to Plaintiffs’
conversations with unidentified individuals at its corporate office. [DE 106]. Several Plaintiffs
called the corporate office of Big Lots, and, although each of them cannot identify the people they
spoke with individually, several of them were able to identify the corporate representatives that the
group of Plaintiffs spoke with. Plaintiffs argue that they spoke to Defendant’s agents about topics
within the scope of those agents’ employment. Defendant argues that the people identified by
Plaintiffs are not Big Lots officials with authority to act or speak on behalf of Defendant and
testimony by Plaintiffs about their conversations is inadmissible hearsay. Plaintiffs argue that their
statements to the representatives are not offered for the truth of the matter asserted, and that the
statements by the representatives are offered for their effect on Plaintiffs, not their truth.
Furthermore, the representatives are not unidentified, and Plaintiffs assert that Defendant cannot
contest that the conversations were about topics within the scope of the agents’ employment. In
reply, Defendant continues to assert that Plaintiffs are unable to identify the people they spoke with,
and continue to assert that the people in the corporate office could not bind Defendant.
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Given the dispute over whether the corporate representatives have been identified and what
their roles were, Defendant has not shown that the evidence of conversations between Plaintiffs and
the individuals at the corporate office is clearly inadmissible. The Court cannot resolve this dispute
on the information provided so far.
8.
Evidence of Punitive Damages
Defendant moves to exclude evidence regarding punitive damages, arguing that any
reference to punitive damages should be excluded until Plaintiffs have proved a prima facie case that
Defendant acted with malice or reckless indifference to Plaintiffs’ rights and have shown that
Defendant had not made a good faith effort to comply with Title VII. [DE 109]. Plaintiffs argue that
Defendant did not move for summary judgment on Plaintiffs’ claim for punitive damages so it is
inappropriate for theme to argue at this stage that their claim is legally insufficient.
Defendant is correct that at this stage, Plaintiffs have not evinced evidence that Defendant
acted with malice or reckless indifference, but Plaintiffs also have not put on their evidence. The
Court will not exclude evidence that Defendant acted with malice or reckless indifference. Likewise,
“although the implementation of a written or formal antidiscrimination policy is relevant to
evaluating an employer’s good faith efforts at Title VII compliance, it is not sufficient in and of
itself to insulate an employer from a punitive damages award.” Bruso v. United Airlines, Inc., 239
F.3d 848, 858 (7th Cir. 2001); see also E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 835 (7th Cir. 2013)
(same).
Plaintiffs may fail to meet their burden of demonstrating that they are entitled to punitive
damages, but the question has not yet been addressed in the course of this litigation, and the
argument over what instructions the jury will receive is one for another day.
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B.
Conclusion
For the foregoing reasons, the Court hereby GRANTS:
(1)
Plaintiffs’ Motion in Limine No. 1 to Bar Evidence of Public Benefits Received by
any Plaintiff [DE 96];
(2)
Plaintiffs’ Motion in Limine No. 2 to Bar Reference to the EEOC Final
Determination [DE 99];
(3)
Plaintiffs’ Motion in Limine No. 3 to Exclude Non-Party Witnesses from the
Courtroom During Trial [DE 100];
(4)
Plaintiffs’ Motion in Limine No. 4 to Bar any Suggestion that Plaintiff Rogers
Previously Filed a Charge of Discrimination Against Defendant Big Lots Inc. [DE
101];
(5)
Plaintiffs’ Motion in Limine No. 5 to Bar the use of Undisclosed Witnesses [DE
102]; and
(6)
Plaintiffs’ Motion in Limine No. 6 to Bar Evidence, Argument, or Mention of
Dismissed Plaintiffs [DE 103].
The Court hereby DENIES:
(1)
Defendant’s Motion in Limine to Exclude Testimony Regarding Statements Made
by Unidentified Declarants [DE 106];
(2)
Defendant’s Motion in Limine to Exclude Evidence Relating to Defendant’s EEOC
Investigation [DE 107];
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(3)
Defendant’s Motion in Limine to Exclude Evidence Relating to Former Plaintiffs’
Claims for which the Court Entered Summary Judgment in Favor of Defendant [DE
108]; and
(4)
Defendant’s Motion in Limine to Exclude Evidence Regarding Punitive Damages
[DE 109].
So ORDERED this 3rd day of May, 2016.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:
All counsel of record
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