Smith v. Walle Corporation
MEMORANDUM OPINION AND ORDER: it is ORDERED that: 1. Dft Walle Corporation's 17 MOTION in Limine is GRANTED, in part, and DENIED, in part; 2. Unless Pla Deming Smith obtains prior approval from the Court, Smith, inc. his attys & witnesses, shall be prohibited from offering evidence at trial re damages for humiliation or embarrassment or evidence re the final determinations by the Equal Employment Opportunity Commission & Kentucky Unemployment Insurance Commission. Signed by Judge Danny C. Reeves on November 5, 2014. (MWZ) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
Civil Action No. 5: 13-219-DCR
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This matter is pending for consideration of Defendant Walle Corporation’s (“Walle”)
motion in limine requesting this Court to limit certain evidence at trial and to determine
whether Plaintiff Deming Smith is entitled to certain categories of damages. [Record No. 17]
For the reasons set forth below, Walle’s motion in limine will be granted, in part, and denied,
Smith claims age-related discrimination by Walle in violation of the Kentucky Civil
Rights Act (“KCRA”), KRS Chapter 344, et seq.
Following the Court’s resolution of
Walle’s motion for summary judgment, several claims remain for trial, including: whether
Walle discriminated against Smith by awarding raises to Smith’s younger counterparts while
denying those raises to Smith because of his age; and whether Smith was transferred and
eventually terminated because he filed an EEOC Complaint regarding discrepancies in wage
Through its motion, Walle seeks to exclude at trial: (i) certain testimony by Smith
based on speculation; (ii) alleged hearsay statements of witness Shane Lurty; and (iii) the
conclusions and findings of the Equal Employment Opportunity Commission (“EEOC”) and
Kentucky Unemployment Insurance Commission (“KUIC”). Walle also argues that Smith
should be precluded from introducing damages of emotional distress at trial and that Smith is
not entitled to front pay.
While the Federal Rules of Evidence do not explicitly authorize in limine rulings, the
practice has developed pursuant to a district court’s inherent authority to manage the course
of trials. Luce v. United States, 469 U.S. 38, 41 n.4 (1984). Although a party can ask the
Court to make an in limine ruling on evidentiary matters, it is within the Court’s discretion to
do so. In short, there is no right to an in limine ruling. Huddleston v. United States, 485 U.S.
681, 688–89 (1988).
In fact, a ruling on a motion in limine is nothing more than 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); Gresh v. Waste Servs. of America, 738
F. Supp. 2d 702, 706 (E.D. Ky. 2010) (“The district judge . . . has the sound discretion to
alter or amend a previous in limine ruling at trial.”). In fact, a court may “exclude evidence
in limine only when evidence is clearly inadmissible on all potential grounds.” Indiana Ins.
Co. v. Gen. Elec., Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004). Unless this high
standard is met, rulings will be deferred until trial. Id.
A. Testimony based on speculation will be excluded.
Smith’s deposition testimony regarding Walle’s motivation for age-based
discrimination is largely based on what he “surmised,” or “conjecture,” or his “feelings”
about what was happening and why. Walle argues that testimony based on this speculation
should be excluded during trial. Walle correctly argues that Smith must come forward with
more than speculation or conjecture in support of his claims. See Hein v. All America
Plywood Co., Inc., 232 F.3d 482, 488 (6th Cir. 2000). However, Smith has come forward
with sufficient evidence, above and beyond his own testimony, to submit his claims to the
jury. Whether Smith’s testimony is admissible remains an issue separate from whether
Smith has produced sufficient evidence to carry his burden to overcome summary judgment.
While, alone, Smith’s testimony referenced by Walle may be inadmissible, the Court
can anticipate a number of circumstances in which a proper foundation could be established
to allow Smith to provide some form of opinion testimony at trial. To the extent that Smith
intends to testify at trial without the proper factual evidentiary basis and outside of the
parameters of relevant admissible opinion testimony as described in Federal Rules of
Evidence 401, 403 and 701, his testimony will be excluded.
Nonetheless, the Court
recognizes the “practical difficulty in ruling on such motions [in] the absence of context that
comes when the challenged evidence is presented with the other proofs at trial.” Figgins v.
Advance America Cash Advance Ctrs., 482 F. Supp. 2d 861, 865 (E.D. Mich. 2007).
In short, Walle has failed to show that there is no set of circumstances under which
Smith may present opinion testimony during trial. The Court will defer ruling “until trial so
that questions of foundation, relevancy and potential prejudice may be resolved in proper
context.” Indiana Ins. Co., 326 F. Supp. 2d at 846. Accordingly, the Court declines Walle’s
invitation to exclude Smith’s testimony in limine.
2. Hearsay statements by Shane Lurty
In support of his summary judgment motion, Smith submitted two written statements
by Shane Lurty which contained statements attributed to Allen Dummit and Natalie Bailey
regarding Smith and the basis for the wage increase discrepancy. [Record Nos. 14-2, 14-3,
33-1] Walle argues that these statements are inadmissible hearsay and, further, that they are
isolated remarks by nondecisionmakers, meaning that they are not relevant to the issues
before the jury. Smith counters that the necessary parties will be available at trial and argues
that the speakers of the statements were involved in the decision-making process, making
their testimony relevant to the issues before the Court.
The first statement at issue occurred during a conversation between Natalie Bailey
and Lurty in which Bailey stated that the General Manager of Walle (Jim Combs), “already
thinks that [Smith] is a ‘crazy old man.’”1 [Record Nos. 14-2, 14-3] The statement was
made with reference to Smith’s initial complaints that he received a $0.40 raise when his coworkers received $0.50 raises. Smith had discussed the raise discrepancy with several
supervisors and eventually Combs, the General Manager. Smith was subsequently given the
additional $0.10 per hour raise.
The second statement was made by the production manager, Allen Dummit, to Lurty2
during their conversation about the second, larger pay increase discrepancy. [Record Nos.
14-2, 14-3] Lurty had asked Dummit whether other employees had received $1.00 to $1.50
raises. In response, Dummit admitted that “we” gave some employees raises to keep them
There are slight variations between Lurty’s two written statements. [Record Nos. 14-2, 14-3] For
purposes of this motion, however, the variations are not material.
At the time of this statement, it appears that Lurty had been promoted to the position of a
from being hired by a nearby factory that was paying a higher rate. Dummit explained
further that Smith was not given a raise because he was “too old and would probably be here
for another year or two at most.” [Record No. 14-3]
Walle argues that Smith has not demonstrated that Bailey and Dummit were
decisionmakers and their statements are, therefore, inadmissible. Smith v. Leggett Wire Co.,
220 F.3d 752, 759–60 (6th Cir. 2000) (finding racial statements by coworkers outside of
relevant time period were inadmissible); Schrand v. Fed. Pacific Elec. Co., 851 F.2d 152,
156–57 (6th Cir. 1998) (finding that testimony regarding reason for termination for other
employees, who did not share supervisors and were not in the same location, was not
relevant to the plaintiff, needlessly injected “smoking gun” type evidence and was
inadmissible). Statements by nondecisionmakers, or statements by decisionmakers unrelated
to the decisional process itself [cannot] suffice to satisfy the plaintiff’s burden . . . of
demonstrating animus.” Geiger v. Tower Auto., 579 F.3d 614, 620–21 (6th Cir. 2009)
(quoting Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998)) (discussing whether
certain statements were sufficient to demonstrate animus for purposes of summary
The parties disagree regarding whether, and to what extent, Natalie Bailey and Allen
Dummit were involved in any decisions regarding Smith’s pay rate. There is insufficient
information in the record for the Court to determine Bailey and Dummit’s involvement in the
decision process as a matter of law. Bailey was Smith’s direct supervisor.
statement that Smith was a crazy old man allegedly originated with the General Manager for
Walle. Additionally, Dummit’s involvement in the initial or subsequent decisions regarding
the pay increases is also unclear.
To the extent that these statements were made by decisionmakers they are relevant to
an issue before the Court. These statements bear upon the rationale for not giving Walle the
same alleged raises as his coworkers. Thus, to the extent that the two sentiments expressed
by Bailey and Dummit were made by supervisors who were involved in the decision process,
they are pertinent to Smith’s cause of action and will not be excluded on relevancy grounds.
Geiger, 579 F.3d at 620–21.
Second, Walle argues that the statements are inadmissible hearsay because “Lurty is
merely relating what he supposedly heard other say” and Smith has not “claimed, much less
established, that the third parties who supposedly made the statement were authorized to
make the statements on behalf of Walle” or within the scope of their relationship with Walle.
[See Record No. 17-1.] Walle argues that even if the statement were nonhearsay statements
under 801, they are isolated statements and would be unduly prejudicial. See Wilson v.
Budco, 762 F.Supp.2d 1047, 1060–61 (E.D. Mich. 2011); Carter v. Univ. of Toledo, 349
F.3d 269, 275 (6th Cir. 2003) (discussing application of Rule 801(d)(2)(D)).
generally, argues that the necessary parties will be made available at trial. Again, the alleged
statements, if made by decisionmakers or sufficient to demonstrate their state of mind, bear
directly on whether Walle discriminated against Smith when giving raises to other
employees. Id. Thus, without the benefit of the context of trial, this Court cannot determine
whether these statements are nonhearsay or, if they are hearsay, whether a hearsay exception
The Court notes that Smith has not provided substantial factual support in the record
for admission of these statements. Further, Smith has made only a superficial effort to argue
for their admissibility in his response. Nonetheless, Walle has failed to show that there is
absolutely no set of circumstances under which Smith may introduce the evidence contained
in Lurty’s statements. In such circumstances, “evidentiary rulings should be deferred until
trial so that questions of foundation, relevancy and potential prejudice may be resolved in
proper context.” Indiana Ins., 326 F. Supp. 2d at 846. Thus, Walle’s motion in limine to
exclude Lurty’s statements will be denied.
3. Damages for Emotional Distress
Walle also argues that claims of emotional distress must be supported by medical or
scientific proof. In support, Walle relies on several cases requiring expert evidence to show
damages for emotional distress relating to state common law claims. See Osborne v. Keeney,
399 S.W.3d 1 (Ky. 2012); Sergent v. ICG Knott Cnty., LLC, 2013 WL 64512120 (E.D. Ky.
2013); Farmer v. Dixon Elec. Sys. & Contracting, Inc., 2013 WL 2405547 (E.D. Ky. 2013).
The common law negligence claims discussed, specifically intentional and negligent
infliction of emotional distress, necessarily require a plaintiff to demonstrate “severe or
serious emotional injury.” Osborne, 399 S.W.3d at 17. However, Walle does not point to
any cases expanding Osborne to apply to statutory causes of action such as the KCRA.
Additionally, the KCRA does not require that the plaintiff make the higher showing of
“severe or serious emotional injury.” See Kentucky Comm’n of Human Rights v. Fraser, 625
S.W.2d 852, 856 (Ky. 1981) (allowing damages for embarrassment and humiliation in
KCRA claim); Core Medical, LLC v. Schroeder, No. 2009-CA-670, 2010 WL 2867820, at
*6-7 (Ky. Ct. App. July 23, 2010) (unpublished) (upholding award of damages for emotional
distress and finding that expert testimony not required in KCRA case); Kentucky Lottery
Corp. v. Riles, Nos. 2004-CA-1053, 2005-CA-335, 2007 WL 1785451, *5 (Ky. Ct. App.
June 8, 2007) (noting that the plaintiff did not call any experts in support of her claim for
emotional distress); Minter v. Liberty Mut. Fire Ins. Co., No. 3:11-cv-249, 2014 WL
4914739, at *5 n.1 (W.D. Ky. Sept. 30, 2014) (rejecting argument that statutory bad faith
claim required heightened standard of proof necessary for common law negligence claims.).
Walle has not pointed to any authority requiring expert proof in support of damages for
emotional distress under the KCRA. The Court is not persuaded by Walle’s argument that
expert evidence is necessary to substantiate a claim for discrimination or retaliation under the
Walle further argues that Smith must be precluded from presenting any evidence of
damages for emotional distress because he has not presented sufficient evidence to support
his claim. Walle relies on a Sixth Circuit case interpreting Michigan law in support of its
position that a plaintiff’s testimony that he was “upset” and “disappointed” are insufficient as
a matter of a law to support an award for emotional distress. Betts v. Costco Wholesale Club,
558 F.3d 461, 472 (6th Cir. 2009) (finding that “generalized comments are not sufficient to
support an award for emotional distress” under Michigan law). In an unpublished opinion,
the Court of Appeals of Kentucky relied upon Betts in finding that an amount awarded by the
jury to the plaintiff was excessive in light of the evidence presented. Vinland Energy
Operations, LLC v. Engle, No. 2009-CA-2227-MR, 2011 WL 1706622, at *9–10 (Ky. App.
Ct. May 6, 2011). The Court of Appeals of Kentucky noted that evidence of the violation of
the KCRA is not sufficient to show damages for emotional distress. To show damages under
the KCRA, “there must be evidence of actual humiliation and embarrassment.” Id. at 9
(citing Fraser, 625 S.W.2d 852, 856 (Ky. 1981)).
Smith states that, as a result of Walle’s discriminatory actions, he suffered from
“financial woes” and was forced to “battle” for unemployment benefits. Further, he claims
that he had never been terminated from a job before his termination from Walle. Thus,
“common sense,” Smith argues, “dictates that the loss of personal dignity is commonly
associated as the result of loss of employment.” Smith argues he should be entitled to
introduce evidence on this element of damages. The Court disagrees.
While Smith does not have to come forward with expert testimony in support of this
claim for damages, he must demonstrate through some competent evidence actual emotional
distress. While “humiliation and embarrassment lie at the core of the evil” that the KCRA
was intended to address, these damages cannot be presumed and sufficient competent
evidence is necessary for the factfinder’s consideration. See Fraser, 625 S.W.2d at 855–56.
Here, Smith has not cited to any evidence of his humiliation or embarrassment. This element
of damages cannot go to the jury with no more than a “common sense” argument that Smith
should have felt a loss of dignity based upon his termination. Evidence of actual humiliation
and embarrassment must be introduced to maintain this claim for damages at trial. The Court
will preclude any evidence of Smith’s damages for emotional distress at trial.
4. Front Pay
Walle argues that only actual damages are available under the KCRA and that front
pay is not “actual damages.” Walle argues that Kentucky Supreme Court “assumed” without
deciding that front pay was an available remedy in Brooks. Brooks v. Lexington-Fayette
Urban County Housing Authority, 132 S.W.3d 790 (Ky. 2004). Therefore, the Court is not
precluded from finding that front pay is not available under the KCRA. However, Brooks
has been consistently cited by Kentucky courts as authority for the award of front pay under
the KCRA. Brooks, 132 S.W.3d at 806 (“[T]he power to award reinstatement appears to fall
within the trial court’s power to ‘enjoin further violations’ under KRS 344.450.”). “Front
pay . . . is a substitute for reinstatement, an equitable remedy which is specifically provided
for by statute, such as the [KCRA].” Sparks v. Henson, 2011-CA-423, 2011-CA-518, 2012
WL 5463877, at *8 (Ky. Ct. App. November 9, 2012) (citing Brooks, 132 S.W.3d at 806);
see also Burton v. Zwicker & Assocs., 577 F. App’x 555, 567 (6th Cir. 2014). Thus, the
award of front pay is not precluded, as Walle argues.
However, Walle correctly states that whether to award front pay is an issue for the
Court rather than the jury. Brooks, 132 S.W. 3d at 806; Griffin v. Michigan Dep’t of Corr., 5
F.3d 186, 189 (6th Cir.1993). “Front pay is money awarded for lost compensation during the
period between judgment and reinstatement or in lieu of reinstatement.” Brooks, 132 S.W.3d
at 806 (citation and quotations omitted). It “either supplements the equitable remedy of
reinstatement or acts as a substitute for it, though reinstatement remains the preferable
Evidence regarding front pay may be introduced during trial. See Roush v. KFC Nat’l
Mgmt. Co., 10 F.3d 392 (6th Cir. 1993). Smith must provide evidence of “the essential data
necessary to calculate a reasonably certain front pay award.” Burton v. Zwicker & Assocs.,
577 F. App’x 555, 567 (6th Cir. 2014) (quoting Arban v. W. Publ’g Corp., 345 F.3d 390, 407
(6th Cir. 2003)). The Court will determine whether to allow front pay after the evidence is
closed and before submitting the matter to the jury. See Roush, 10 F.3d at 399; Figgins, 482
F. Supp. 2d at 871.
5. EEOC & KUIC Findings and Conclusions
Whether to admit the findings of the EEOC with respect to Smith’s discrimination
claim is within the discretion of the Court. “An EEOC letter of violation is presumptively
inadmissible ‘because it suggests that preliminarily there is reason to believe that a violation
has taken place and therefore results in unfair prejudice to defendant.’” Sherman v. Chrysler
Corp., 47 F. App’x 716, 722–23 (6th Cir. 2002) (quoting Williams v. The Nashville Network,
132 F.3d 1123, 1129 (6th Cir. 1997)). Smith seeks to introduce the conclusions of the EEOC
and KUIC. [Record Nos. 14-9, 14-11] However, Smith has not cited to any relevant,
probative purpose for the admission of these documents. Instead, he simply notes that their
admission is within the Court’s discretion.
The Court finds that the introduction of the EEOC determination would be more
prejudicial than probative for the jury and that there is a high risk of confusion for the jury.
Smith has not made a sufficient argument to overcome the presumption of inadmissibility.
Applying similar reasoning, the Court will exclude admission of the findings of the KUIC.
The “sole function” of the KUIC is to determine if the “affected employee meets the
statutory criteria to qualify for benefits, not to inquire or make judgment regarding the
reasons behind an employee’s termination.” Bd. of Educ. of Covington v. Gray, 806 S.W.2d
400, 402 (Ky. Ct. App. 1991). Accordingly, Walle’s motion in limine to exclude the EEOC
and KUIC determinations at trial will be granted.
Based on the foregoing discussion and analysis, it is
Defendant Walle Corporation’s Motion in limine [Record No. 17] is
GRANTED, in part, and DENIED, in part.
Unless Plaintiff Deming Smith obtains prior approval from the Court, Smith,
including his attorneys and witnesses, shall be prohibited from offering evidence at trial
regarding damages for humiliation or embarrassment or evidence regarding the final
determinations by the Equal Employment Opportunity Commission and Kentucky
Unemployment Insurance Commission.
This 5th day of November, 2014.
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