Suchanek v. University of Kentucky et al
Filing
68
MEMORANDUM OPINION & ORDER: Plaintiff Jeanne Suchanek's motions in limine (Record Nos. 56 and 57 ) are DENIED. Signed by Judge Danny C. Reeves on 5/2/2011.(CBD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Frankfort)
JEANNE SUCHANEK,
Plaintiff,
V.
UNIVERSITY OF KENTUCKY, et al.,
Defendants.
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Civil Action No. 3: 10-19-DCR
MEMORANDUM OPINION
AND ORDER
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This matter is pending for consideration of several motions, including Plaintiff Jeanne
Suchanek’s motion in limine1 in which she seeks to exclude testimony from Mary Plank and Ben
Withers regarding her work performance. [Record No. 56] Suchanek also has filed a separate
motion in which she seeks to prevent certain handwritten notes from being admitted during trial.
[Record No. 57] Both motions are now ripe for review. Having reviewed the plaintiff’s in
limine motions and the defendants’ response, the Court will deny the relief requested by
Suchanek.
1
Generally, a ruling on an in limine motion constitutes a preliminary opinion which allows the parties
to better formulate their trial strategy. United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). However,
the Court is not bound by an in limine ruling, and can change its determination during trial if sufficient facts
develop to warrant the change. Id; see also Luce, 469 U.S. at 41–42 (noting that “even if nothing unexpected
happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in
limine ruling”(emphasis added)). The motion has more significance here, inasmuch as the plaintiff seeks to
prevent the subject evidence from being considered in connection with the defendants’ motion for summary
judgment. [See Record No. 55.]
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I.
The Deposition Testimony of Mary Plank
Mary Plank was deposed in this action on January 12, 2011. At times relevant herein,
Mary Plank was employed by the University of Kentucky, College of Fine Arts, as an
administrative staff officer in charge of fiscal affairs. [See Record No. 55; Defendants’ Motion
for Summary Judgment, Exhibit 27 (Plank Deposition Transcript, p. 4).] In explaining her
relationship with Suchanek, Plank provided the following testimony which the plaintiff seeks
to limit through her present motion:
Q.
Did you and Ms. Suchanek get along?
A.
Well, there were – actually, at that point, our relationship got a lot better. I
wouldn’t say we didn’t get along. There were frustrations. It was difficult – followthrough was not her strong suit. There were issues with checks getting left in the safe
that she was to deposit for long periods of time, not getting responses from her with
things that I needed. Our roles interfaced somewhat. After she left, there were four or
five endowments that I had been trying to get information about that had been hanging
for two or three years that she didn’t follow through on. I couldn’t set up the endowment
until she got the endowment agreement to me. So there were some frustrations, I’ll say
that.
Q.
Can you think of any other frustrations?
A.
Well, I recall one rather stunning incident the first year of my employment.
Q.
Which was in 1998?
A.
1998. The Dean could not find her. Her office was down the hall. She always
kept her door locked when she was in her office. But he had gone down the hall a half
dozen times looking for her and he came in very frustrated, “Where is she?” “I have no
idea.” And he said, “Well, call her at home. Tell her I want this taken care of today.”
They were working on some development issue and I don’t recall the details of it. So I
called her at home and she angrily asked me how I knew she was at home and I said,
well, you weren’t here. That was my first assumption. The Dean asked me to find you.
And she said that she had just taken a long soak in the tub. She was sitting home with
her feet up drinking tea. I said the Dean asked me to ask you to ask you to take care of
this, whatever it was with the donor, today. And she said you take care of it. I said well,
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the Dean asked me to ask you to take care of it and then she very angrily said for me to
tell him that she was taking care of it today by delegating it to me and that she realized
I didn’t have the luxury of doing what she was doing and relaxing at home but that is just
too bad. I was stunned because we were both professional level employees. Granted, she
was a number of grade levels above me but I wasn’t sure what she thought she was
entitled to that. I wasn’t but the Dean had had no clue where she was. She had not
reported in. That was not the only incident when he couldn’t find her and nobody knew
where she was.
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Q.
One question I meant to follow up on, you talked about in 1998, you talked about
several times about how Ms. Suchanek lost checks and even after she left, you were still
looking for checks and I’m assuming that kind of went on since 1998.
A.
It wasn’t checks when she left. There were endowment agreements. What
happens with that is when a check comes in, it gets put in a holding account in Central
Development until the endowment agreement, which was Ms. Suchanek’s responsibility
to see that the endowment agreement got drawn up. So the check had been deposited for
these things when she left but the endowment agreements, the donor had made the
request and they had just dropped in the deep blue sea.
Q.
What about the lost checks though? You mentioned that too.
A.
I know there were a couple of times that there were checks lost and there were
occasions she would put checks in the safe and not come get them for – one time, it was
several months that there was a stack of checks she left in the safe.
[Id., at pp. 18-20, 40-41]
II.
The Deposition Testimony of Ben Withers
Ben Withers has been employed as Professor of Art History and Chair of the Department
of Art by the University of Kentucky since 2004. Withers was deposed in this action on
February 2, 2011. During this deposition, Withers was asked about his professional interactions
with Suchanek. He provided the following testimony which is the subject of the current motion:
Q.
So how often would you say that you had meetings with Ms. Suchanek regarding
financing?
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A.
It varied. Sometimes we would have meetings maybe once or twice a week.
Usually we would go months between having any officials [sic] kind of meetings. There
were times when Jeanne would say that we should meet regularly say, every two weeks
and then she just didn’t follow through. So we didn’t follow – we didn’t have those
meetings every two weeks. I’d put them on my calendar and, you know, something else
would come up or there’d be some other interruption and she couldn’t – usually it was
her that couldn’t make the meetings.
Q.
So when you say she didn’t follow through, would she contact you and let you
know there was a scheduling conflict? Or what do you mean when you say she wouldn’t
follow through?
A.
Most of the time she would call me and say that there was some other obligation
that had kept her from doing this. Sometimes that wouldn’t happen. But what I’m
referring to is, it was her suggestion that we have regular meetings every two weeks. But
then when the next two weeks – when the first time would come up with that next two
weeks, there would be something that would interrupt us and we never set up the next
meetings. That happened two or three times.
[See Record No. 56; Exhibit 1 (Withers Deposition Transcript, pp. 9-10).]
Additionally, Withers described other complaints and/or problems in dealing with
Suchanek regarding relations and communications with donors.
Q.
Did you have any problems or complaints working with Ms. Suchanek?
A.
Well I could think of a couple of occasions where we had some issues. There was
one donor who was actually the husband of one of our faculty members, Joel Feldman
is his name, who arranged to have his mother give a small donation to the art department.
I think it was in the neighborhood of about a thousand dollars. And his mother was
elderly, needed a tax write-off near the end of the year. So he arranged for her to send
this check to us. We never received the check. We didn’t, but he insisted that the check
had been sent and had been sent in care of the development part of the Dean’s office and
we in the department never saw that come up. So I don’t know what happened to that
particular check. I don’t know where, if it got lost in the post office or wherever. Jeanne
tried to help us find that check, but we never saw where it went too [sic]. And ultimately
we had to have Joel’s mother go through the process, the bank process of canceling the
first check and sending us another. And subsequently she decided not to give any
donations after that. The second time –
Q.
You said it was addressed to the development office?
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A.
To the college.
Q.
Did Dr. Shay ask you or inquire about that situation, like what happened or what
was your knowledge about the situation?
A.
I don’t think he was apprised of that particular problem. I didn’t talk to him about
that problem.
Q.
So when I asked you if you had any problems or complaints about Ms. Suchanek,
you brought up this Joel Feldman situation. Did you address Ms. Suchanek with regards
to this being a problem you felt that she was responsible for?
Q.
I’m not really sure who was responsible for this particular problem because the
check was sent to the college office and normally if a check came to the college office
it would go to her, just as if it came to the department office we’d take it over to her. So
part of the process of trying to figure out where the check went awry would have
involved talking to the Dean’s secretary and talking to Jeanne about if the check had
arrived or if had made it to Jeanne and then had been processed and been some delay or
something like that. But that’s – I bring that up because that was one of the complaints
that would brought to me. It was Joel Feldman who was very irate about the check thing.
And again, it went to that college office and that’s all I know.
[Id., at pp. 13-14]
According to Suchanek, the above-quoted testimony should be excluded because it is
being offered in violation of Rule 404(b) of the Federal Rules of Evidence which excludes
evidence of “other bad acts” to prove the character of a person. The plaintiff argues that,
because this evidence was not utilized in plaintiff’s negative performance evaluations, it should
not be admitted during trial. And she further contends that, even it the evidence is admissible
under Rule 402 of the Federal Rules of Evidence, it should be excluded under Rule 403 as being
unfairly prejudicial. [Record No. 56] Having considered the subject testimony, the Court rejects
both arguments.
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The fact that the plaintiff was not disciplined or terminated for poor work performance
does not mean that such evidence should be excluded by the Court or jury in evaluating the
claims of discrimination asserted in this action. Suchanek claims that she was a victim of
disability discrimination because she was subjected to untrue or inaccurate negative performance
evaluations. The evidence Suchanek seeks to exclude is relevant to the issue of whether her
performance evaluations were untrue or inaccurate. Thus, the expected testimony is directly
relevant to and probative of the plaintiff’s claims and the university’s defense that it acted in a
fair and uniform manner in dealing with Suchanek. Likewise, the subject testimony is not
unfairly prejudicial under Rule 403 of the Federal Rules of Evidence. Further, the Court
concludes that the testimony in issue is neither misleading, confusing or cumulative.
III.
The Handwritten Notes of Patty Bender
During discovery, Defendant University of Kentucky produced certain handwritten notes
of Patty Bender, Assistant Vice President for Equal Opportunity. These notes were prepared
during Bender’s investigation of the plaintiff’s complaint. According to Plaintiff Suchanek, the
defendant plans to offer these notes: (i) as evidence to substantiate its finding of no
discrimination and (ii) to bolster any arguments of poor performance by Suchanek during her
employment with the university.
Plaintiff Suchanek describes the notes in her second motion in limine as containing
allegations of other acts that were not the subject of any reprimand or discipline. Instead,
Suchanek asserts that these notes pertain to conversations between Bender and Defendant Shay
regarding plaintiff’s attendance issues, as well as issues involving Suchanek hiding in her office
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and issues involving the cleanliness of the plaintiff’s office. Other notes reflect an alleged
conversation with Mike Richey in which Richey indicates that the plaintiff “was not a good
development officer for the College of Fine Arts.” According to Suchanek’s counsel, Richey
could not recall the recorded comment during his deposition. [Record No. 57, pp. 2-3] Suchnek
seeks to exclude the subject notes under Rule 404(a) and (b), and Rule 403 of the Federal Rules
of Evidence.
In response, the Defendants contend that Bender’s notes are relevant and admissible.
They argue that the subject notes are part of an internal investigation regarding the plaintiff’s
internal charge of discrimination filed with the university’s internal office of Institutional
Equity/Equal Employment Opportunity. Bender’s investigation of this complaint included
interviewing several witnesses including Suchanek, Defendant Shay, and Mike Richie who
oversees Central Development for the University of Kentucky. Bender’s notes reflect her
conversations with these witnesses and are part of her investigation file. Thus, the defendants
assert that the notes are admissible under Rule 402 of the Federal Rules of Evidence.
Having considered the parties’ arguments regarding this issue, the Court concludes that
the subject notes should not be excluded at this time. Based on the issues joined by the
pleadings, the notes which are the subject of the plaintiff’s second in limine motion appear to be
relevant to the issue of Suchanek’s job performance, her working relationship with others,
whether the plaintiff was evaluated fairly when compared with the evaluations of other
employees, and whether her negative job evaluations were reflective of her actual work. The
notes in question are also relevant to whether the university defendant properly investigated the
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plaintiff’s complaints of discrimination. Likewise, the notes do not appear to be unduly
prejudicial, confusing, misleading, or cumulative.
IV.
Conclusion
The evidence and testimony sought to be excluded by Plaintiff Jeanne Suchanek is
relevant to the claims and defenses asserted in this action. Further, it is not inadmissible under
Rules 403 or 404(b) of the Federal Rules of Evidence. Accordingly, it is hereby
ORDERED that Plaintiff Jeanne Suchanek’s motions in limine [Record Nos. 56 and 57]
are DENIED.
This 2nd day of May, 2011.
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