Hubbard v. Jefferson County Board of County Commissioners
Filing
78
MEMORANDUM AND ORDER granting in part, denying in part, and retaining under advisement in part 72 Plaintiff's Motion in Limine; granting in part, denying in part and retaining under advisement in part 73 Defendant's Motion in Limine. Signed by District Judge John W. Lungstrum on 04/04/2018. (ses)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Francis Hubbard,
Plaintiff,
v.
Case No. 16-cv-2444-JWL
Jefferson County Board of
County Commissioners,
Defendant.
MEMORANDUM & ORDER
Plaintiff Francis Hubbard filed this lawsuit against the Board of County Commissioners
of Jefferson County, Kansas alleging that the County terminated his employment on the basis of
his age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621
et seq., and the Kansas Age Discrimination in Employment Act, K.S.A. § 44-1111 et seq.
In
February 2018, this court denied the County’s motion for summary judgment. The trial of this
case is set to begin on April 9, 2018. This matter is now before the court on the parties’ motions
in limine (docs. 72, 73). As set forth below, those motions are granted in part, denied in part,
and retained under advisement in part.
As a threshold matter, several of the issues raised by plaintiff are unopposed by defendant
and, accordingly, each of those issues may be granted on that basis. Specifically, plaintiff’s
motion in limine Nos. 4, 5, 7, 10, 13 and 14 are all granted and are applied to both parties.
The court turns, then, to those issues that are disputed by the parties.
Anecdotal Evidence of Discrimination and Nondiscrimination (Plaintiff’s No. 1 & 9 and
Defendant’s Motion in Limine)
The parties dispute whether and to what extent circumstantial evidence of discrimination
or nondiscrimination experienced by other employees is relevant and admissible at trial. In his
motion, plaintiff seeks to exclude evidence that this court granted summary judgment on the age
discrimination claim of Debra Miller, another employee who was terminated by Mr. Noll.
Plaintiff also seeks to exclude evidence that Mr. Noll hired older employees and evidence that
older employees believed that Mr. Noll did not and does not discriminate against older
employees. Defendant, on the other hand, seeks to exclude “pattern and practice” evidence; the
testimony of witnesses, including Debra Miller, who purport to have knowledge about age
discrimination experienced by other employees or personal knowledge about alleged
discrimination that they have experienced; and specific exhibits identified by plaintiff
concerning Debra Miller’s employment and a charge of age discrimination filed by Kevin
Wynkoop.
The court begins with the broadest category of evidence discussed by the parties—
“pattern and practice” evidence. This type of evidence refers to company-wide discrimination
and is generally relevant and admissible only when a plaintiff has asserted a pattern and practice
claim in the context of a class action. See EEOC v. TriCore Reference Laboratories, 849 F.3d
929, 937-38 (10th Cir. 2017); Daniels v. UPS, 701 F.3d 620, 632-33 (10th Cir. 2012) (pattern
and practice proof not available in private non-class suit alleging individualized discrimination).
Plaintiff does not assert a pattern and practice claim in this case and, thus, may not seek to prove
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the existence of a County-wide pattern of age discrimination. To that extent, defendant’s motion
is granted.
Nonetheless, it does not appear that plaintiff seeks to present County-wide evidence of
discrimination (or that such evidence even exists). In his response to defendant’s motion,
plaintiff asserts that the evidence he seeks to present is “limited to the Public Works Department
and all employees [who were] similarly situated [to plaintiff] because they are in the same
protected class and they had the same supervisor.” In the next sentence, however, plaintiff
asserts that “county-wide evidence is also relevant in this case to the extent the County
Commissioners were involved in the treatment of other employees.” At summary judgment,
however, plaintiff had no evidence that any of the Commissioners acted with discriminatory
intent in connection with plaintiff’s termination, but only that the Commissioners essentially
“rubber stamped” the decision that Mr. Noll had made. In the absence of any evidence that any
County Commissioner acted with discriminatory intent, evidence concerning other employment
decisions made or approved by the County Commission would not be helpful to the jury in
assessing the discriminatory intent of the only person alleged to have acted with such intent—
Mr. Noll. See Coletti v. Cudd Pressure Control, 165 F.3d 767, 776 (10th Cir. 1999) (in the
context of employee discharge cases requiring proof of discriminatory intent, testimony of other
employees about their treatment by employer is relevant to the issue of discriminatory intent and
provides exception to Federal Rule of Evidence 404(b) which excludes evidence of other acts
for the purpose of proving a person acted similarly on other occasions).
The court, then, turns back to plaintiff’s assertion that he intends to prove his claim of
individualized discrimination in part through anecdotal evidence of age discrimination
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experienced by other employees who were supervised by Mr. Noll in the Public Works
Department. The Tenth Circuit has held that anecdotal evidence of discrimination should only
be admitted at trial “if the prior incidences of alleged discrimination can somehow be tied to the
employment actions disputed in the case at hand.” Heno v. Sprint/United Mgmt. Co., 208 F.3d
847, 856 (10th Cir. 2000). To the extent plaintiff seeks to admit evidence that other individuals
who were supervised by Mr. Noll experienced alleged age discrimination by Mr. Noll during the
same time frame as plaintiff, such evidence would be relevant because it is closely tied to
plaintiff’s claim. Id. at 856; see Bloomer v. United Parcel Service, Inc., 94 Fed. Appx. 820,
825-26 (10th Cir. 2004) (district court properly limited plaintiff to presenting evidence of
personal racial animus by individuals who were directly involved in the termination decision).
Such evidence includes, but is not limited to,1 evidence that Mr. Noll asked several employees in
the Public Works department, including plaintiff, about their retirement plans and evidence that
he terminated the employment of Debra Miller, an older employee in the department. See
Spulak v. K Mart Corp., 894 F.2d 1150 (10th Cir. 1990) (no abuse of discretion where district
court permitted two other employees to testify about the circumstances under which they left
their employment, including one who testified that he was terminated shortly after manager
Defendant asserts that there is no evidence that Mr. Noll ever asked Allen Lowrance, Robert
Poje or Kevin Wynkoop—names that appear on plaintiff’s final witness list—about their
retirement plans and, that, accordingly, the testimony of these witnesses cannot be tied to
plaintiff’s circumstances. Defendant reads the Circuit’s opinion in Heno too narrowly. The
testimony of these witnesses will be deemed relevant if it tends to support the inference that Mr.
Noll acted with discriminatory intent based on plaintiff’s age and the testimony of those
witnesses need not be perfectly aligned with plaintiff’s circumstances. The requisite link here is
satisfied so long as the witness was supervised by Mr. Noll during the same time frame as
plaintiff and can testify to facts suggesting that Mr. Noll treated older employees less favorably
than younger employees.
1
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asked him about retirement plans and that the grounds for his termination were invalid), citing
with approval Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 97 (7th Cir. 1985) (evidence that
two other older employees had retired earlier than they had planned as a result of their treatment
by supervisor was probative of discriminatory intent)). The court rejects defendant’s argument
that Ms. Miller should be prohibited from testifying about Mr. Noll’s treatment of her because
this court granted summary judgment on her age discrimination claim.
A ruling that no
reasonable jury could find in Ms. Miller’s favor on her claim of age discrimination does not
mean that Ms. Miller has no relevant testimony to support plaintiff’s claim, including testimony
about her first-hand observations of Mr. Noll’s treatment of older workers. Moreover, Ms.
Miller may certainly testify about her own experiences with Mr. Noll despite this court’s
summary judgment ruling, for Ms. Miller, for whatever reason, may be able to marshal more or
different evidence than she did at the summary judgment stage. This aspect of defendant’s
motion, then, is denied.
None of these witnesses, however, will be permitted to testify as to their belief that Mr.
Noll took any action or made any remark because of the age of the witness. Under Rule 701,
opinion testimony by lay witnesses is permissible if it is (a) rationally based on the witness’s
perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact
in issue; and (c) not based on scientific, technical or other specialized knowledge within the
scope of Rule 702. Fed. R. Evid. 701. As explained by another district court, “[i]n applying
Rule 701(b) to testimony regarding an employer’s motivations, courts have held that a witness’s
opinion as to the defendant’s ultimate motivations will often not be helpful within the meaning
of Rule 701 because the jury will be in as good a position as the witness to draw the inference as
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to whether or not the defendant was motivated by an impermissible animus.” See Connearney v.
Main Line Hosps., 2016 WL 6569326, at *4 (E.D. Penn. Nov. 4, 2016) (citations and quotations
omitted). Just as the court recognized in Connearney, the jury in this case will hear testimony
about statements made by Mr. Noll concerning retirement plans or behavior by Mr. Noll from
which the witnesses apparently drew the conclusion that Mr. Noll targeted them because of their
age. See id. It is therefore not helpful for witnesses to state their ultimate conclusions regarding
Mr. Noll’s motivation because the jury can draw its own conclusions from observed events or
communications that the witnesses describe to it. See id.2
Of course, to the extent plaintiff presents anecdotal evidence concerning Mr. Noll’s
treatment of other older employees to prove discriminatory intent, defendant is entitled to
present evidence that Mr. Noll treated older employees favorably, including evidence that he
hired older candidates for open positions in the department. This portion of plaintiff’s motion is
denied. But as noted in connection with plaintiff’s witnesses, defendant’s witnesses on this
issue would not be entitled to opine that Mr. Noll did not discriminate on the basis of age. They
would be permitted to describe to the jury only the facts that formed the basis for that witness’s
belief.
The court acknowledges that the admission of evidence concerning other employees
carries the potential risk of individual mini-trials, as defendant will surely seek to disprove the
suggestion that Mr. Noll discriminated against any other witness on the basis of age.
Because Ms. Miller will not be permitted to testify as to her belief that Mr. Noll terminated her
employment based on her age, this court’s ruling on summary judgment need not be admitted, as
defendant concedes in its response to plaintiff’s motion. To that extent, plaintiff’s motion is
granted.
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Nonetheless, the court cannot balance the Rule 403 factors on the limited record before it and
will reassess those factors during the course of the trial as the specific testimony of each witness
is presented. Similarly, the court will reserve ruling on defendant’s objections to specific
exhibits relating to these witnesses until defendant raises a contemporaneous objection at trial.
Evidence Concerning Metadata (Plaintiff’s No. 2)
At trial, plaintiff intends to introduce evidence of the underlying metadata for two Word
documents produced by the County during discovery, including the memorandum authored by
Mr. Noll in support of his decision to terminate plaintiff’s employment. Plaintiff seeks to
preclude the County from “contradicting or questioning the authenticity or information”
contained in the metadata produced by it. In response, the County contends that it is plaintiff’s
burden under Federal Rule of Evidence 901(a) to produce evidence sufficient to support a
finding that the item is what the proponent claims it is such that the County can challenge
plaintiff’s evidence on that issue. While this issue is retained under advisement subject to being
raised contemporaneously at trial, the County is cautioned that, unless the County has a good
faith basis to question the authenticity of the information that its counsel provided to plaintiff’s
counsel during discovery, plaintiff will be entitled to rely on the information produced by the
County and the County will not be permitted to suggest to the jury that the metadata is other
than what it purports to be.
Language of Employee Handbook Relating to “At Will” Employment (Plaintiff’s No. 3)
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Plaintiff seeks to preclude the County from referring to language in the County’s
employee handbook and other documents relating to the County’s ability to terminate an
employee “at will.” According to plaintiff, this language is not relevant in the absence of a
contract claim and has no bearing on plaintiff’s age discrimination claim because the County is
not permitted to discriminate on the basis of age regardless of whether plaintiff was an “at will”
employee.
Although plaintiff appropriately disclaims any intention to pursue a breach of
contract theory, which was not preserved in the Final Pretrial Order, and although plaintiff’s atwill status is no defense to age discrimination, that does not end the inquiry. At the summary
judgment stage, plaintiff suggested that the County’s progressive discipline policy entitled him
to several warnings prior to termination and that the County’s failure to provide him with a
warning consistent with that purported policy was evidence of pretext. To the extent that
plaintiff intends to pursue that theory at trial and to suggest that the County’s failure to follow its
policies constitutes evidence of pretext, then the County will be entitled to present evidence,
including the at-will employment language, that plaintiff was not entitled to any warning prior to
termination. Accordingly, the motion is denied without prejudice to raising the issue again at
trial should the County attempt to use the “at will” language for some other purpose.
Testimony from Undisclosed Experts (Plaintiff’s No. 6)
Plaintiff moves to exclude the testimony of any non-disclosed expert witness.
In
response, the County asserts that it does not intend to call any expert witnesses or to offer any
expert opinions. To that extent, the motion is granted as unopposed. However, to the extent the
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County seeks to offer lay opinion testimony under Federal Rule of Evidence 701, the motion is
denied without prejudice to making a contemporaneous objection at trial.
Criticisms of Plaintiff Not Considered by Mr. Noll (Plaintiff’s No. 8)
Plaintiff moves to exclude evidence of any criticisms of plaintiff’s work performance that
were not relied upon by Mr. Noll in deciding to terminate plaintiff’s employment. Of course,
Mr. Noll may not rely at trial on criticisms he did not rely on in making his decision. But, the
court agrees with the County that this aspect of plaintiff’s motion should be resolved at trial in
the context of a specific line of questioning presented to a witness. This issue, then, is retained
under advisement and counsel for the County must give opposing counsel and the court notice
of the County’s intent to offer such evidence so that the court can rule. That having been said, if
plaintiff seeks to present evidence to the jury that no one criticized plaintiff’s performance until
Mr. Noll became his supervisor, then the door will be opened and the County will be permitted
to present evidence of criticisms of plaintiff’s performance prior to the time that Mr. Noll
became his supervisor regardless of whether Mr. Noll relied on those criticisms in making the
decision to terminate plaintiff’s employment.
Allegations or Claims Contained in Pleadings (Plaintiff’s No. 11)
Plaintiff moves to exclude evidence of any allegations or claims set forth in the
pleadings. This aspect of plaintiff’s motion is denied without prejudice to the making of a
contemporaneous objection at trial. The court agrees with the County that factual matters
contained in pleadings are generally relevant and admissible as party-admissions or for
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impeachment purposes. However, it is generally inappropriate and unhelpful to ask a party to
explain “legalese” utilized in a pleading or legal conclusions drawn in a pleading and so, under
the provision of Federal Rule of Evidence 403, such is not permitted.
Impugning the Integrity or Motivations of Plaintiff or Plaintiff’s Counsel (Plaintiff’s No. 12)
Plaintiff moves to exclude evidence or remarks that disparage the integrity of plaintiff or
plaintiff’s counsel. The County has no objection with respect to disparagement of plaintiff’s
counsel (so long as plaintiff’s counsel is similarly precluded from impugning the integrity of
defense counsel) and, accordingly, the motion is granted as to disparagement of counsel for both
parties. The County, however, contends that evidence concerning the integrity and motivations
of plaintiff is relevant and admissible. The court agrees that evidence concerning the integrity
and motivations of plaintiff may be relevant and admissible so long as that evidence is tied to an
issue in this case and is not a mere attack on character. This aspect of the motion, then, is
denied without prejudice and plaintiff must raise a contemporaneous objection at trial.
Witnesses Not Listed in the County’s Rule 26 Disclosures (Plaintiff’s No. 15)
Plaintiff seeks to preclude the County from calling to testify at trial 16 witnesses who are
named in the County’s final witness list but were never identified in the County’s Rule 26
disclosures. The motion is denied to the extent that any of these witnesses are listed on
plaintiff’s final witness list. See Amended Trial Order, Doc. 66 (“Witnesses . . . disclosed by
one party may be called or offered by any other party.”). The County represents that the
remainder of plaintiff’s motion involves 6 witnesses who, according to the County, were
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identified in April 2017 through interrogatory responses or in June 2017 through deposition
testimony such that any failure to identify these witnesses in its Rule 26 disclosures is harmless
and results in no prejudice to plaintiff.
There are two Federal Rules of Civil Procedure that are relevant here. First, Rule 26(a)
requires parties to identify potential witnesses in their initial disclosures. See Fed. R. Civ. P.
26(a)(1)(A)(i). Second, Rule 37(c) states that, if a party fails to identify a witness as required by
Rule 26(a), then “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.” Fed. R. Civ. P. 37(c)(1). The “seminal Tenth Circuit case that addresses Rule 26(a)
violations is Woodworker’s Supply, Inc. v. Principal Mutual Life, 170 F.3d 985 (10th Cir.
1999).” See Gale v. Uintah County, ___ Fed. Appx. ___, 2017 WL 6397733, at *4 (10th Cir.
Dec. 15, 2017). In that case, the Circuit established four factors that should guide the district
court’s discretion in assessing whether a Rule 26(a) violation is justified or harmless: “(1) the
prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the
party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the
trial; and (4) the moving party’s bad faith or willfulness.” Woodworker’s Supply, 170 F.3d at
993.
On this record, the court cannot evaluate the factors identified by the Circuit in
Woodworker’s Supply. The record does not reflect who the witnesses are; whether the County
actually intends to call those witnesses; what the substance of each witness’s testimony is; and
what the circumstances are surrounding the identification of the witness during discovery. This
issue, then, is retained under advisement and counsel for the County must give opposing counsel
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and the court notice of the County’s intent to call any witness who was not disclosed under Rule
26(a) and who does not appear on plaintiff’s final witness list so that the court can rule on the
objection in a timely fashion applying the standards set forth above.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s motion in
limine (doc. 72) is granted in part; denied in part; and retain under advisement in part; and
defendant’s motion in limine (doc. 73) is granted in part; denied in part; and retain under
advisement in part.
IT IS SO ORDERED.
Dated this 4th day of April, 2018, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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