Marshall v. The Rawlings Company LLC et al

Filing 146

MEMORANDUM OPINION & ORDER Signed by Senior Judge Thomas B. Russell on 2/28/2018 : denying 44 Motion in Limine. To aid the Court, on or before March 9, 2018, each party shall file briefs identifying specific complaints and witnesses. Responses shall be filed by March 16, 2018, and no replies shall be filed.; granting 45 Motion in Limine; granting 46 Motion in Limine; denying 47 Motion in Limine; denying 48 Motion in Limine; granting 49 Motion in Limine; denying 50 Motion in Limine; denying 51 Motion in Limine; granting 52 Motion in Limine; denying 53 Motion in Limine; denying 109 Motion in Limine. Marshall is HEREBY ORDERED to produce a more in-depth document concerning her damages calculations no later than two weeks before trial.; granting 112 Motion in Limine; dismissing 113 Motion in Limine; granting 122 Motion in Limine. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:14-CV-359-TBR
GLORIA MARSHALL,

PLAINTIFF

v.
THE RAWLINGS CO., LLC,

DEFENDANT
Memorandum Opinion & Order

This matter comes before the Court upon thirteen Motions in Limine filed by Defendant
The Rawlings Company, LLC (“Rawlings”). Plaintiff Gloria Marshall (“Marshall”) has also filed
a Motion in Limine of her own. These Motions are ripe for adjudication, and their merits are
discussed below.
I. Factual Background
A more detailed factual background section describing the underlying events giving rise
to this case was provided by the Court in its previous Memorandum Opinion docketed at DN 87.
The brief reiteration of facts laid out below is taken from that Opinion. In essence, Marshall was
formerly employed by Rawlings, a company which provides sophisticated data mining and
recovery services to health insurance carriers. There, Marshall was employed as a Workers’
Compensation Analyst, and was later promoted to Team Lead, before being demoted back to
analyst and, ultimately, being terminated from the company. Laura Plumley, (“Plumley”), the
President of the Workers Compensation department, made the initial decision to demote
Marshall from a Team Lead back to an analyst.
Marshall suffers from depression, anxiety, bipolar disorder, and post-traumatic stress
disorder, (“PTSD”), and, while employed by Rawlings, took leaves of absence from her job

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under the Family and Medical Leave Act (“FMLA”). The first time was from February 7, 2012
to around March 13, 2012. Her second stint of FMLA leave began on March 18, 2013, and she
did not return to work until March 29. Thereafter, Marshall took intermittent FMLA leave due to
her anxiety, depression, bipolar disorder, and PTSD from April 2013 to August 2013.
Throughout this time, there is a great deal of conflicting evidence regarding how far behind
Marshall fell with respect to her work, how much or little help was offered to her in response to
her work backlog, and how she was treated in the workplace. Rawlings contends that her
troubles stemmed from her work performance and attitude, while Marshall has alleged that the
isolation she suffered after returning from FMLA leave was because of resentment amongst
other employees for having taken that leave in the first place. Plaintiff alleges that some of her
troubles at Rawlings stemmed from interactions with Vice President Jeff Bradshaw,
(“Bradshaw”), who apparently made several rude comments to her, at least one of which
pertained to her having taken leave for her mental health issues. Marshall also had some
workplace troubles with Michael Elsner, (“Elsner”), a Division Director in the Workers
Compensation department. Eventually, Marshall was fired by George Rawlings, (“Mr.
Rawlings”), the owner of the company, on October 1, 2013 during a meeting between the two
parties and an employee from the Human Resources department.
Thereafter, Marshall filed this lawsuit seeking relief under the FMLA, the Americans
with Disabilities Act, (“ADA”), and Kentucky common law for Intentional Infliction of
Emotional Distress. This Court initially granted summary judgment to Rawlings on all of
Marshall’s claims. However, on appeal the Sixth Circuit, affirming in part and reversing in part,
remanded Marshall’s claims for FMLA retaliation and ADA discrimination to this Court. Now,
in anticipation of a trial in this matter, Rawlings has filed thirteen motions in limine seeking to

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have various pieces of evidence excluded, and Marshall has filed one. The merits of these
motions and the Court’s disposition on each are laid out below.
II. Legal Standard
Utilizing its inherent authority to manage the course and direction of the trial before it,
this Court has the power to exclude irrelevant, inadmissible, or prejudicial evidence through in
limine rulings. See Luce v. United States, 469 U.S. 38, 41 n.4 (1984) (citing Fed. R. Evid.
103(c)); Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013). Unless the evidence at
issue is patently “inadmissible for any purpose,” Jonasson v. Lutheran Child & Family Servs.,
115 F.3d 436, 440 (7th Cir. 1997), though, the “better practice” is to defer evidentiary rulings
until trial. Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). This
stance is favored so that “questions of foundation, relevancy and potential prejudice may be
resolved in proper context.” Gresh v. Waste Servs. of Am., Inc., 738 F. Supp. 2d 702, 706 (E.D.
Ky. 2010). When this Court issues a ruling in limine, it is “no more than a preliminary, or
advisory, opinion.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994) (citing United
States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983), aff’d, 469 U.S. 38). Thus, even where a
motion in limine is denied, the Court may return to its previous ruling at trial “for whatever
reason it deems appropriate.” Id. (citing Luce, 713 F.2d at 1239).
III. Motion in Limine to Exclude Other Alleged Complaints about Jeff Bradshaw
In its first Motion in Limine, Rawlings seeks to preclude any attempts by Marshall to
introduce evidence about complaints other Rawlings employees allegedly made against
Bradshaw. [DN 44.] In support of this Motion, Rawlings argues that such complaints would be
irrelevant to the case at bar and, alternatively, if such complaints are relevant, their introduction
would be unfairly prejudicial to Rawlings.

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Pursuant to Federal Rule of Evidence 401, “[e]vidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” Relatedly, Fed. R. Evid. 402 explains that
“[i]rrelevant evidence is not admissible.” Importantly, the test for relevancy presents a low bar of
entry. See Cambio Health Solutions, LLC v. Reardon, 234 F. App’x 331, 338 (6th Cir. 2007); see
also United States v. Whittington, 455 F.3d 736, 738 (6th Cir. 2006) (“The standard for relevancy
is extremely liberal”) (internal quotation marks omitted). As the Sixth Circuit has explained,
“even if a district court believes the evidence is insufficient to prove the ultimate point for which
it is offered, it may not exclude the evidence if it has the slightest probative worth.” DXS, Inc. v.
Siemens Med. Sys., Inc., 100 F.3d 462, 475 (6th Cir. 1996).
Thus, the first question is whether other employees’ complaints regarding Bradshaw pass
this low bar. The Court is satisfied that they do. Marshall indicates in her Response to the instant
Motion that these complaints, although unidentified by either party, could be similar to the ones
filed by Marshall against Bradshaw. [DN 69, at 2.] To that end, the Court finds it plain that such
complaints regarding Bradshaw, his treatment of other employees, and his general demeanor at
work towards his subordinates certainly has a “tendency to make a fact more or less probable
than it would be without the evidence.” See Fed. R. Evid. 401. Certainly, Bradshaw is not a party
to this action, nor are any other individual employees of Rawlings. However, this alone does not
render complaints against Bradshaw, an important player in Marshall’s employment with
Rawlings, completely irrelevant to the issue of Marshall’s demotion and termination from the
company. Marshall had numerous unpleasant interactions with him, and he made a
recommendation to Plumley in 2012 that she demote Marshall from her position as Team Lead
back to analyst.

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The second question, and the more difficult one, is whether such complaints should still
be excluded as unfairly prejudicial. Fed. R. Evid. 403 provides that “[t]he court may exclude
relevant evidence if its probative value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” In the instant Motion, Rawlings argues that
the probative value of introducing other employees’ complaints about Bradshaw would be
substantially outweighed by the unfair prejudice to Rawlings. [DN 44-1, at 3.] Specifically,
Rawlings argues that introduction of this evidence would (1) waste time by forcing Rawlings to
“conduct[] mini-trials to debunk those employees’ allegations against Bradshaw;” (2) risk the
jury placing an improper amount of weight on those other complaints; and (3) disadvantage
Rawlings “since the jury may improperly attribute any opinion of Bradshaw to the company as a
whole, even though he did not play a role in [Marshall’s] demotion or termination.” [Id. at 3-4.]
Importantly though, Rawlings does not point to any specific complaints against
Bradshaw, identify the employee or employees who made these complaints, or provide the Court
with any of the specific allegations made in the complaint or complaints against Bradshaw. Also,
the Court has no way of knowing whether these complaints were made in formal writings or
were simply some offhanded comments made by other Rawlings employees. The Court is
cognizant of the fact that the introduction of other Rawlings employees’ complaints against
Bradshaw presents two dangers: (1) wasting time and confusing the issues by making the parties
conduct mini-trials, which is a real concern; and (2) the danger of running afoul of Fed. R. Evid.
404(a), which prohibits the introduction of evidence of a person’s character or character traits “to
prove that on a particular occasion the person acted in accordance with the character or trait.”

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However, without more information from either party, including the specifics of these
complaints and the circumstances surrounding them, it would be premature to exclude such
evidence at this juncture. This is because, unless evidence is patently “inadmissible for any
purpose,” Jonasson, 115 F.3d at 440, the “better practice” is to defer evidentiary rulings until
trial.” Sperberg, 519 F.2d at 712. This is the preferred practice because it allows “questions of
foundation, relevancy and potential prejudice…[to] be resolved in proper context.” Gresh, 738 F.
Supp. 2d at 706. In light of this, the Court will deny the Motion at this time. Having stated the
above, to aid the Court in advance of trial and possibly avoid multiple objections, the Court
requests further briefing on the matter. On or before March 9, 2018, each party shall file
briefs identifying specific complaints and witnesses. Responses shall be filed by March 16,
2018, and no replies shall be filed.
IV. Motion in Limine to Exclude Testimony and Evidence about What Physicians and any
other Individuals Told Marshall about Rawlings Allegedly Causing Her Emotional Distress
The next Motion at issue is Rawlings’ Motion in Limine to exclude all testimony and
evidence regarding what physicians and/or other individuals told Marshall about Rawlings
allegedly causing her emotional distress. [DN 45.] Rawlings argues that any such statements are
hearsay, and that these statements would not fall under any exception to the rules against
hearsay; therefore, they must be excluded from trial. In response to this, Marshall argues that the
exclusion Rawlings seeks is “vague and overbroad,” premature, and that she should be permitted
to introduce “evidence to prove damages for mental and emotional injuries including
humiliation, embarrassment, personal indignity, emotional distress and other intangible injuries.”
[DN 62, at 2-3.]
“Hearsay is an out-of-court statement offered for the truth of the matter asserted.” United
States v. Halter, 259 F. App’x 738, 741 (6th Cir. 2008) (citing Fed. R. Evid. 801(c)). Generally,
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hearsay is inadmissible at trial. Fed. R. Evid. 802. There are, of course, numerous exceptions to
the rule against hearsay. See Fed. R. Evid. 803, 804, 807. The exception pinpointed by Rawlings
is the one found at Fed. R. Evid. 803(4). Entitled “Statement Made for Medical Diagnosis or
Treatment,” this exception to the rule against hearsay provides that a statement, otherwise
properly classified as hearsay, will be admissible where “(A) it is made for—and is reasonably
pertinent to—medical diagnosis or treatment; and (B) describes medical history; past or present
symptoms or sensations; their inception; or their general cause.” Fed. R. Evid. 803(4). Rawlings
makes references to this exception as support for its argument that the evidence and testimony it
seeks to have excluded in the instant Motion falls outside its scope. Thus, Rawlings argues, it is
properly classified as hearsay and should not be admissible at trial. [See DN 45-1, at 2-3.]
The Sixth Circuit has held that “the hearsay exception set forth in Fed. R. Evid. 803(4)
applies only to statements made by the one actually seeking or receiving medical treatment.”
Field v. Trigg Cnty. Hosp., Inc., 386 F.3d 729, 736 (6th Cir. 2004) (explaining that the
“physicians’ statements…are not admissible pursuant to the Fed. R. Evid. 803(4) hearsay
exception.”); see also Bulthuis v. Rexall Corp, 789 F.2d 1315, 1316 (9th Cir. 1985) (“Rule
803(4) applies only to statements made by the patient to the doctor, not the reverse.”). As
Marshall correctly points out, the Sixth Circuit adheres to the maxim that “[o]rders in limine
which exclude broad categories of evidence should rarely be employed.” Sperberg, 519 F.2d at
712. However, Sixth Circuit precedent is clear that the “Statement Made for Medical Diagnosis
or Treatment” exception does not apply to statements made by the medical professional. And
although the instant Motion casts a wide net, it is largely appropriate under the circumstances.
Thus, the Court will grant the Motion insofar as it pertains to statements made by medical
professionals or other individuals to Marshall in the course of her seeking medical treatment, as

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such information falls outside the relevant exception to the rule against hearsay. Of course, if
Marshall at any time should feel as though this exception, or any other rule of evidence, warrants
the inclusion of certain evidence currently excluded by this order, she may approach the bench to
discuss the matter further.
V. Motion in Limine to Exclude Comments by Doug Gurley, Chris Gardner, Elizabeth
Davidson and Leah Sarley
The next Motion at issue is Rawlings’ Motion in Limine to exclude certain comments
Doug Gurley, (“Gurley”), and Elizabeth Davidson, (“Davidson”), née Estrada, made to Marshall
regarding things that were said about her by Chris Gardner, (“Gardner”), and Leah Sarley
(“Sarley”). [DN 46.] Specifically, Rawlings wishes to have excluded two comments about which
Marshall testified during her deposition. First, Gurley informed Marshall that Gardner had
approached him and suggested that he stop having lunch with Marshall and stop spending time
with her on breaks. [DN 46-1, at 1.] Second, Marshall testified that Davidson approached her and
told Marshall that while she was out of the office on FMLA leave, Gardner “commented that he
wished he could take weeks off too, in reference to her FMLA leave. Davidson claimed that in
response, Sarley snickered and said, ‘yeah, me too.’” [Id.] Rawlings argues that the comments at
issue are (1) inadmissible hearsay, (2) irrelevant, and (3) unfairly prejudicial. [DN 46-1, at 2.]
As explained above, “[h]earsay is an out-of-court statement offered for the truth of the
matter asserted.” Halter, 259 F. App’x at 741 (citing Fed. R. Evid. 801(c)). Generally, hearsay is
inadmissible at trial. Fed. R. Evid. 802. And while there are many exceptions to the rule against
hearsay, Fed. R. Evid. 803, 804, 807, the two statements at issue fit the definition of hearsay and,
as such, must be excluded from trial. Obviously, both comments are out-of-court statements, and
therefore fit the first part of the definition of hearsay. See Fed. R. Evid. 801(c). The question then

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becomes whether such evidence would be offered by Marshall “to prove the truth of the matter
asserted in the statement.” Id. The Court finds that they would be.
To be sure, the ultimate issue is not that Marshall would attempt to offer the two original
statements to prove the truth of their contents (i.e., that Gardner actually wanted Gurley to stop
spending time with Marshall, or that Gardner and Sarley actually wished that they could take
time off like Marshall). Rather, the “truth of the matter asserted” here is the question of whether
Gurley and Davidson ever made these statements at all. In other words, this situation represents a
“hearsay-within-hearsay” situation. Gurley and Davidson allegedly told Marshall about these
two statements that were made to or in front of them, and now Marshall wishes to offer Gurley’s
and Davidson’s relay of the conversations for the truth of the matter asserted; namely, that
Gurley and Davidson ever said what Marshall contends they did. Marshall wishes to prove the
truth of the matter asserted that Gurley and Davidson told her what they were told about her by
Gardner and Sarley. This is inadmissible hearsay, and these statements must be excluded from
trial. Notably, in her Response to the instant Motion, Marshall does not address the issue of
hearsay, explain why these comments are not hearsay, offer an exception to the rule against
hearsay, or cite any authority directed thereto. As such, these two statements must be presently
excluded from trial, in the context of how Marshall wishes to introduce this evidence, that is,
through her own testimony. This is not to say that such evidence would or would not be
admissible if introduced through Davidson or Gurley.
VI. Motion in Limine to Exclude Comments by Jeff Bradshaw Unrelated to Marshall’s
FMLA Leave and/or Marshall’s Alleged Disability
The next Motion at issue is Rawlings’ Motion in Limine to exclude certain comments
made by Bradshaw to Marshall, which were allegedly unrelated to Marshall’s FMLA leave
and/or alleged disability. [DN 47.] Although the Motion refers generally to Bradshaw and his
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discussions with Marshall, and appears to ask for an order from this Court excluding all
comments he has made to Marshall which do not relate directly to FMLA or her alleged
disability, the Court will only analyze the three specific instances included in the Motion. The
Court assumes that if there were other instances, Rawlings would have brought them to the
Court’s attention.
The first of these instances relates to an “appreciation lunch” in May 2012. [DN 47-1, at
2.] Marshall testified at her deposition about the conclusion of the lunch:
At the end – when everyone finished their meal, Jeff Bradshaw started
questioning the table, and he asked, ‘so what is the morale on the floor?’ I did not
respond, and neither did anyone else at the table. And then he specifically said,
‘how about you, Gloria, why don’t you tell me about’ – you know, ‘what do you
think,’ or something to that nature….And what I did was, I tried to give a very
generic response in order to satisfy his question, but not get into any kind of
confrontation, because I could tell that he was trying to instigate some kind of
debate. And I stated that I felt like some – you know, the analysts on the floor,
some of them were doing very well and some of them were just getting by, and I
left it at that….
[DN 47-1, at 2 (quoting Marshall Dep., 23:17-26:2).] Although this Court sees marginal value in
the above-quoted conversation, the Court will deny Rawlings’ Motion on this count. Throughout
this case, Bradshaw’s demeanor and actions at Rawlings during Marshall’s period of
employment with the company have come up more than once. And though it does not follow that
every interaction between the pair is relevant to Marshall’s specific legal claims, the Court has
decided that Bradshaw’s comments at the appreciation lunch pass the low threshold for relevance
under the Federal Rules of Evidence. See Fed. R. Evid. 401, 402. Marshall points out that
“discriminatory intent can be proven in a number of way[s] and Plaintiff need not be limited to
proving this discriminatory motive solely through specific comments that say the words ‘FMLA’
or ‘disability’ specifically.” [DN 68, at 3.] The Court agrees with this notion.

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The Court is further directed in its decision to allow the introduction of this conversation
at trial by the decision of the Sixth Circuit Court of Appeals, wherein it reversed in part this
Court’s grant of summary judgment in favor of Rawlings. In that opinion, the Sixth Circuit
dedicated an entire paragraph to the May 2012 appreciation lunch. [DN 90, at 5.] Indeed, the
Sixth Circuit made specific note of the fact that, in Marshall’s opinion, Bradshaw “wanted to
single me [Marshall] out and put me in a corner in front of my coworkers in the middle of a
restaurant,” and “was intentionally trying to escalate…the conversation in order to antagonize
me.” [Id. (citing Marshall Dep. at 24-26).] The Court is reluctant to exclude this testimony when
it was noted as a portion of the factual basis for reversal.
Further, the Court does not see how the introduction of this conversation will unduly
prejudice Rawlings. It relies in its Motion on the notion that, to introduce evidence of the
conversation would be to risk the jury improperly inferring that Bradshaw’s opinion of Marshall
would be properly attributed to the whole company. [DN 47-1, at 7.] However, as Marshall is
proceeding under the Cat’s Paw theory of liability, part of her case rests upon actors such as
Bradshaw influencing the actual decisionmakers in an effort to see her demoted and, ultimately,
terminated. As such, conversations of this nature have seen their probative value increase as the
theory of the case has developed. This, coupled with the Sixth Circuit’s emphasis on this
conversation, guides this Court’s decision to allow its inclusion at trial.
The second instance was another conversation Marshall had with Bradshaw after she
returned to work from her first stint of FMLA leave. Apparently, Bradshaw asked Marshall “in a
rude way” if she was planning on taking any additional time off from work. [Id. (citing Marshall
Dep. 62:3-11).] The Court finds this comment to be relevant under Fed. R. Evid. 401 as well.
Indeed, this comment relates directly to Marshall taking FMLA leave. Thus, it is “of

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consequence” in this action. See Fed. R. Evid. 401. It goes to the relationship between Marshall
and Bradshaw and, relatedly, other Rawlings employees’ thoughts on her taking leave. While
Rawlings is correct in pointing out that, overtly as least, the statement does “not contain any
criticism of Plaintiff’s FMLA leave or her disability,” [DN 47-1, at 6], the issue of whether the
implications of his comment and general demeanor insinuated something different is part of what
makes the comment relevant, especially because it does pertain to her taking FMLA leave at
least in the general sense.
Having determined that evidence of this conversation is relevant, the question must be
asked whether its probative value is substantially outweighed by the danger of unfair prejudice
under Fed. R. Evid. 403, thus warranting its exclusion from trial. Rawlings makes two
arguments, the first of which is that it would be unfairly “disadvantaged since the jury may
improperly attribute the opinions of Bradshaw to the company as a whole, even though he did
not play a role in Plaintiff’s demotion or termination.” [DN 47-1, at 7.] But this misconstrues
Marshall’s allegations. Marshall has not alleged that the ultimate decisionmakers, Plumley and
Mr. Rawlings, retaliated or discriminated against her in response to her having taken FMLA
leave. Rather, Marshall has chosen to proceed on the Cat’s Paw liability theory, wherein she has
alleged that individuals, including Bradshaw and Elsner, influenced the ultimate decisionmakers
in an inappropriate fashion relating to her FMLA leave. See EEOC v. BCI Coca-Cola Bottling
Co. of Los Angeles, 450 F.3d 476, 484 (10th Cir. 2006) (“[T]he term ‘cat’s-paw’ refers to one
used by another to accomplish his purposes. In the employment discrimination context, ‘cat’s
paw’ refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses
the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory
employment action.”); see also Henderson v. Chrysler Grp., LLC, 610 F. App’x 488, 496 (6th

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Cir. 2015) (“Assuming without deciding that the cat’s paw theory of liability is available in
FMLA retaliation cases….”). Thus, as noted above, Marshall’s theory actually depends upon
Bradshaw not being a “decisionmaker” in terms of authority to demote and/or terminate her
employment at Rawlings. This means that comments Bradshaw allegedly made to her pertaining
to FMLA leave, her disability, and his general attitude toward those two things are highly
probative with respect to her claims in this case. To be sure, this evidence is damaging to
Rawlings, but “[e]vidence that is prejudicial only in the sense that it paints the defendant in a bad
light is not unfairly prejudicial pursuant to Rule 403.” United States v. Chambers, 441 F.3d 438,
456 (6th Cir. 2006).
The second argument advanced by Rawlings is that “[t]he admission of these isolated
comments will obviously prejudice Rawlings since the jury may attribute unnecessary weight to
them,” and Rawlings will be forced to waste the Court’s time in correcting what it perceives to
be that error. [DN 47-1, at 7.] However, as the Court noted above, Marshall’s theory of the case
has made Bradshaw’s comments quite relevant and probative, and how much weight the jury
gives to his comments with respect to the Cat’s Paw theory of liability is a matter to be hashed
out at trial, and not in limine. Moreover, the Court does not believe that time will be wasted by
Rawlings having to elicit additional testimony and adduce additional evidence to counter this
kind of evidence, since Marshall is proceeding under the theory that Bradshaw influenced in
some way the decision to demote and/or terminate her. Such testimony and evidence will likely
be necessary in any event.
The third instance relates to a 2013 meeting, at the conclusion of which Bradshaw
apparently asked the twenty or so employees present if anyone had any questions. No one
responded, and Bradshaw allegedly looked at Marshall and said, “how about you, Gloria? You

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always have something to say.” [DN 37, at 20-21.] Marshall alleges that “[s]he simply responded
that she was just happy to be there.” [Id. at 21.] That Bradshaw chose to single out Marshall in
front of a group of around twenty Rawlings employees with the seemingly condescending or
rude comment of “you always have something to say” certainly passes the low threshold for
relevance presented by Fed. R. Evid. 401. Moreover, the simple fact that the “[t]he admission of
th[is]…comment[] will…prejudice Rawlings” does not mean Fed. R. Evid. 403 requires its
exclusion. [See DN 47-1, at 7.] And as noted above, just because Bradshaw’s comment might
paint Rawlings in a more unfavorable light and prejudice it somewhat, it is only where that
prejudice is undue where Fed. R. Evid. 403 demands exclusion. See Chambers, 441 F.3d at 456.
Marshall has chosen to proceed under the Cat’s Paw theory of liability, and as such will likely try
to present a great deal of circumstantial evidence concerning her superiors’ attitudes towards her,
of whom Bradshaw was one. This makes the instant comment highly relevant and probative, and
the Court finds that any prejudicial effect to Rawlings would not be undue under the
circumstances.
VII. Motion in Limine to Exclude Alleged Discussions about a Performance Improvement
Plan for Marshall
The next Motion at issue is Rawlings’ Motion in Limine to exclude alleged discussions
about a performance improvement plan for Marshall. [DN 48.] Rawlings contends that the
presentation of evidence regarding these discussions would be unfairly prejudicial to Rawlings
under Fed. R. Evid. 403, and further, that it would mislead the jury and prolong the trial. As
such, Rawlings argues that all such evidence should be excluded. In her Response, Marshall
argues that the evidence is highly relevant and is not so prejudicial or misleading so as to render
it inadmissible. [DN 71.] The Court agrees, and will deny Rawlings’ Motion.

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A Performance Improvement Plan, or PIP, appears to be a tool utilized by Rawlings to
help employees who are struggling with productivity to get back on track. During his deposition,
Elsner testified about the 2013 discussions he had with Team Lead Matt Monyhan,
(“Monyhan”), regarding the potential for putting a PIP in place for Marshall, a conversation that
never materialized into a PIP being set for her. [DN 34-1, at 9.] These discussions were held due
to Marshall’s alleged low file inventory and excessive backlog in her 2013 mid-year evaluation.
[Id.] Elsner stated that the reason he and Monyhan ultimately did not recommend putting
Marshall on a PIP was that they were not sure whether or not to do so would have violated
FMLA provisions. [DN 37-2, at 32-33.] In support of the instant Motion to exclude these
conversations, Rawlings argues that the presentation of these discussions to the jury would (1) be
unfairly prejudicial, (2) confuse the jury, and (3) be a waste of time, all contravening Fed. R.
Evid. 403.
With respect to Rawlings’ first argument, the Sixth Circuit has held that “unfair prejudice
within the context of Rule 403 means an undue tendency to suggest a decision on an improper
basis, commonly, though not necessarily, an emotional one.” United States v. Hathaway, 798
F.2d 902, 909 (6th Cir. 1986) (quoting Fed. R. Evid. 403 advisory committee’s note) (internal
citations omitted). In short, Rawlings argues that to allow Marshall to present evidence of these
discussions, and in particular, their comments on the legality of placing Marshall on a PIP so
close to her FMLA leave, would twist the overall spirit of the discussion in the minds of the
jurors “into something sinister….” [DN 48-1, at 4.] Conversely, Marshall argues that evidence of
the discussion is highly probative and “shows that Defendant targeted Plaintiff for discharge.”
[DN 71, at 3.] It is clear to the Court that, depending upon how the jury perceives these
discussions, this evidence could be prejudicial to Rawlings, or it could have little to no effect.

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However, it is axiomatic that “all probative evidence is to some extent prejudicial,” and so the
mere fact that evidence one side seeks to have admitted is harmful to the opposing party cannot,
in and of itself, warrant this Court’s exclusion of that evidence. See United States v. McKibbins,
656 F.3d 707, 712 (7th Cir. 2011). In United States v. Mason, 294 F. App’x 193, 200 (6th Cir.
2008), the Sixth Circuit held that the trial court did not abuse its discretion in excluding medical
records where the defendant was convicted for making false statements to obtain federal
employees’ compensation benefits and bankruptcy fraud. The trial court found that the medical
records corroborating the defendant’s testimony regarding his taking of antidepressants, although
probative of his specific intent, held a great risk of misleading the jury and/or confusing the jury
because the medical records were so attenuated in time (compiled in 1993 and no crimes were
charged until 2001). Id. Additionally, the trial court found that to introduce these documents
without an expert explanation would invite “guesses and speculation.” Id.
Conversely, in this case, there is no such attenuation. The conversation between Elsner
and Monyhan occurred directly within the relevant timeframe of Marshall’s employment with
Rawlings, her FMLA leave, and her demotion and termination. Moreover, a conversation
between laypeople does not carry the same risks of confusion as medical records. The meat of
the conversation between Elsner and Monyhan concerns whether to place Marshall on a PIP
because she had fallen behind at work. This topic is very basic and the Court is confident that the
jury would have the capacity to understand the discussions. Finally, Rawlings’ argument that the
introduction of the evidence could mislead the jury into thinking that Elsner’s and Monyhan’s
comments concerning the legality (or illegality) of placing Marshall on a PIP so close to her
FMLA leave was “sinister” in nature is a matter for the jury. It appears from Marshall’s
Response that she wishes to introduce evidence of this conversation to show that Defendants

16

targeted her for discharge, but were put off because of her FMLA leave, [DN 71, at 2-3], much in
the same way Rawlings would construe the discussions as “Rawlings opt[ing] not to impose the
PIP because it did not want to violate Plaintiff’s FMLA rights.” [DN 78, at 1.] These conflicting
characterizations are issues for the jury to decide.
Rawlings’ final argument is that the introduction of one conversation between Elsner and
Monyhan concerning the possibility of placing Marshall on a PIP would be a waste of time
warranting exclusion under Fed. R. Evid. 403. The Court disagrees. Certainly, bringing the issue
of PIPs before the jury will warrant Rawlings hammering out the issue further and explaining in
more detail the idea of PIPs. However, this information would be, in the Court’s estimation,
highly probative and not a waste of time. The Court will deny this Motion. [DN 48.]
VIII. Motion in Limine to Exclude Comments Allegedly Made by other Employees about
Rawlings’ Attitude towards FMLA Leave
The next Motion at issue is Rawlings’ Motion in Limine to exclude certain comments
allegedly made by other Rawlings employees regarding the company’s attitude toward FMLA
leave. [DN 49.] In the Motion, though, Rawlings only references one Rawlings employee,
Elizabeth Davidson (née Estrada).1 Therefore, insofar as Rawlings has attempted, via this
Motion, to exclude any comments made by any other Rawlings employees concerning the
company’s attitude toward FMLA leave, the Court must deny the Motion, as sufficient
information has not been presented of any of these other alleged comments for the Court to pass
judgment on their admissibility at a trial. Accordingly, this section will deal only with the issue
of the admissibility of Davidson’s testimony. In support of its contention that Davidson’s
testimony is inadmissible, Rawlings presents three arguments: first, that the information
contained in her affidavit and, therefore, the subject matter of any testimony she would give,
1

In her affidavit, she is referred to throughout as Elizabeth Estrada. However, for the sake of uniformity, the Court
will continue to refer to her by her married name, Davidson.

17

would be irrelevant under Fed. R. Evid. 401 and 402; second, that such testimony would be
unfairly prejudicial under Fed. R. Evid. 403; and third, that Davidson lacks personal knowledge
under Fed. R. Evid. 602. [See DN 49-1, at 1-6.] Because the Court finds no relevance in the
information provided by Davidson, evidence of the comments allegedly made by Sarley and
Gardner and which form the basis of Davidson’s affidavit will be excluded.
As noted above, Fed. R. Evid. 401 explains that “[e]vidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” And although the bar is a low one, and the
standard is liberal, not every proposed piece of evidence will bear upon the issues in the trial.
This is one such piece of evidence. The Court agrees with Rawlings’ characterization of the
issue: “proof about how another employee…felt does not make any fact at issue relevant to
[Marshall] more or less probable.” [DN 49-1, at 4.] Specifically, Davidson’s affidavit and,
presumably, the extent of her knowledge on the issue, only explains that Sarley held a
condescending manner when explaining to another Team Lead that Marshall was on FMLA
leave. [DN 37-12, at 2.] A condescending tone used by an individual in February 2012 in
reference to Marshall’s whereabouts, where the person making the comment, who even under the
Cat’s Paw theory of liability, had no involvement in demoting or terminating Marshall or
recommending such actions, does not, in the Court’s view, make any fact in evidence more or
less probable and is not of consequence in determining the action, as required by Fed. R. Evid.
401. To be clear, the sole fact that Sarley was not the ultimate decisionmaker does not, in and of
itself, render evidence pertaining to her irrelevant under Fed. R. Evid. 401. Rather, the
circumstances surrounding the comments Davidson heard, taken together, render the comments
irrelevant. However, the Court is not aware of any assertions or evidence that Sarley influenced

18

any adverse decision as to Marshall. If Marshall is aware of such assertions or evidence, she
needs to bring that to the Court’s attention.
Moreover, even if evidence of the comments made by Sarley and Gardner were relevant,
the danger of unfair prejudice to Rawlings should this Court include it justifies its exclusion. As
explained above, Fed. R. Evid. 403 reasons that relevant evidence may be excluded “if its
probative value is substantially outweighed by a danger of…unfair prejudice…. If the Court
were to introduce the comments from Sarley and Gardner, the prejudice to Rawlings would
great. This is because the interpretation of a condescending tone from a person not involved in
any way in the demotion or termination process, coupled with an offhandedly insensitive
comment by another individual who had no authority over Marshall, could go in one of a
thousand different ways and, when balanced against the probative value of such offhanded
comments and tones of voice, the prejudicial nature substantially outweighs any value they
would bring to a trial. There is nothing to suggest that Sarley’s tone or Gardner’s comment are
representative of Rawlings’ thoughts and practices on the issue, and Sarley and Gardner are not a
part of this lawsuit, nor is it contended by Marshall that they were involved in her demotion
and/or termination in any way. When examining the circumstances, it is apparent to the Court
that this evidence is irrelevant and, furthermore, would constitute unfair prejudice to Rawlings if
it were to be included.
IX. Motion in Limine to Exclude Email from Matt Monyhan Concerning the Team Leader
Bonus
The next Motion at issue is Rawlings’ Motion in Limine to exclude from evidence an
email sent by Monyhan to Bradshaw and Elsner. [DN 50.] The email is docketed in Marshall’s
Response to Rawlings’ Motion for Summary Judgment. [DN 37-27.] The email, sent on July 2,
2013, makes references to Marshall being absent on FMLA leave, and notes that Human
19

Resources instructed Monyhan as follows: “an analyst who is absent for FMLA-related reasons
must be given pro-rated performance goals based upon the time that they were actually in
attendance.” [Id.] As a consequence of prorating Marshall’s performance goals, instead of falling
short of her $202,625 goal, she exceeded the prorated goal of $183,629. [Id.] Apparently,
Monyhan, as a Team Lead, receives bonuses when the analysts on his team, of whom Marshall
was one, exceed their goals. [Id.] Essentially, the email is a request from Monyhan to receive his
bonus because, although Marshall did not reach her original goal, she exceeded her prorated
goal. [Id.] The email also goes on to provide as follows:
[s]ince a large portion of my income is dependent upon my analysts hitting their
quarterly goal, the extended absence of a team member for FMLA has a negative
effect on my paycheck. In [Marshall’s] case, there were many instances when I
would spend hours in a given day working on files and phone calls that could not
wait for her return. So, there is extra work with less reward. However, if
consideration is given to the goals of the analyst, then it only stands to reason that
the goals of the Team Lead should be adjusted as well.
[Id.] Now, Rawlings seeks to have this email excluded from the trial in this matter as (1)
irrelevant, (2) prolonging the trial, and (3) confusing or misleading the jury. [DN 50-1, at 1.]
As explained by the Court above, the threshold for relevancy under Fed. R. Evid. 401 is
quite low. See DXS, Inc., 100 F.3d at 475 (“[E]ven if a district court believes the evidence is
insufficient to prove the ultimate point for which it is offered, it may not exclude the evidence if
it has the slightest probative worth.”). Rawlings argues that the email in question is irrelevant to
Marshall’s discrimination claim “since Monyhan played no role in her demotion or her
termination.” [DN 50-1, at 2.] The Court finds this argument unpersuasive. The Court is sensitive
to the fact that, at base, Monyhan apparently had no authority to terminate Marshall from
Rawlings. However, that fact, standing alone, cannot render this email irrelevant to the case at
bar, especially as Marshall is proceeding on the Cat’s Paw theory of liability. Moreover, it is

20

hard to see how Marshall’s direct supervisor commenting on how her leave of absence (1)
increased his workload, and (2) could potentially cost him money, would not be relevant to a
case in which the plaintiff was terminated from her employment with the company. To use the
language of the rule, the comments made by Monyhan in the email make it more probable than it
would be without the comments that Rawlings, or individuals within the management structure
there, harbored a discriminatory attitude towards Marshall. See Fed. R. Evid. 401.
Next, Rawlings argues that introduction of this evidence would unnecessarily prolong the
trial. Specifically, Rawlings laments the fact that, if this singular email were to be introduced, it
would “be forced to explain the Team Lead bonus process in substantial detail to alleviate any
misunderstanding about Monyhan’s email.” [DN 50-1, at 5.] Rawlings goes on to posit that
“[s]uch an explanation may involve calling additional witnesses, and thereby unnecessarily
prolong[] the trial to present proof about an email that includes little, if any, relevant
information.” [Id.] The Court disagrees with this characterization of the email. To be sure,
Marshall’s presentation of this email could require Rawlings to present such additional evidence
to counter its effect, but that alone does not make the inclusion of the email a “waste of time”
under Fed. R. Evid. 403. And given the probative nature of the email’s contents, the Court is not
inclined to declare that the necessity of introducing some additional evidence would constitute a
waste of time.
Finally, Rawlings argues that the presentation of this email to the jury could confuse
and/or mislead the jury, thus warranting its exclusion as unfairly prejudicial. [DN 50-1, at 4-5.]
Specifically, Rawlings argues that “[i]f this proof comes into evidence, the jury may improperly
attribute the opinions or concerns of Monyhan to the company as a whole, even though he
unquestionably did not play a role in Plaintiff’s demotion or termination.” [Id. at 4.] In support of

21

this argument, Rawlings cites to numerous cases, including the Sixth Circuit’s decisions in
Johnson v. Kroger Co., 319 F.3d 858, 868 (6th Cir. 2003) and Suits v. Heil Co., 192 F. App’x
399, 407 (6th Cir. 2006). Notably though, in both of these cases, the Sixth Circuit dealt with
district court grants of summary judgment in favor of the defendant companies, and not with
motions in limine.
To be sure, the law to which Rawlings cites is correct, e.g., “that stray remarks,
particularly those made by a person other than a decision-maker, are not enough to show
discrimination.” Suits, 192 F. App’x at 407. However, that isolated piece of law does not, in and
of itself, dictate the outcome of a motion in limine to exclude an email, even if the drafter was
not a “decision-maker.” The non-decision-maker to which the Sixth Circuit referred in Suits
appears to have been a Ready Truck Manager named Steve Dupuis, who stated that “women
should stay home with their children.” Id. However, “Dupuis did not supervise [the plaintiff] and
was not involved in the decision to eliminate her position.” Id. Here, Rawlings argues that
Monyhan was not involved in the decision to demote and, later, terminate Marshall, [DN 50-1, at
4], but Monyhan was Marshall’s supervisor, unlike the individual in Suits, and thus, was likely
more closely involved in her day-to-day activities. Additionally, as Marshall is proceeding under
the Cat’s Paw theory of liability, Monyhan’s comments have become even more probative.
Rawlings also cites to Greenfield v. Sears, Roebuck & Co., No. 04-71086, 2006 WL
2927546, at *8 (E.D. Mich. Oct. 12, 2006). In that unpublished opinion, the Eastern District of
Michigan, quoting the Michigan state court of appeals, stated that “[t]he risk of admitting
evidence of a biased opinion made by an employee who is unrelated to the decisionmaking
process is that, even if the remark is isolated, ambiguous, or remote in time, it unfairly suggests
to the jury that the remark and its underlying motivation have the imprimatur of the employer.”

22

Id. (quoting Krohn v. Sedgewick James of Michigan, Inc., 624 N.W.2d 212 (Mich. App. 2001)).
While this language certainly favors Rawlings’ position concerning the email in question, this
Court finds it to be ultimately unpersuasive under the specific circumstances of this case.
As the Sixth Circuit has made clear, “unfair prejudice does not mean the damage to a
defendant’s case that results from the legitimate probative force of the evidence; rather it refers
to the evidence which tends to suggest a decision on an improper basis.” United States v. Caver,
470 F.3d 220, 240 (6th Cir. 2006) (internal citations omitted). The only “improper basis”
suggested by Rawlings here is that the jury may be confused and assume Monyhan’s opinion
was the company’s opinion, or that he played a role in her demotion or termination. [See DN 501.] While the Greenfield case backs up Rawlings’ assertion, this Court is not bound by that
decision. Moreover, another of this Court’s sister courts, the Southern District of Ohio, reached
the exact opposite conclusion under very similar circumstances. See Nair v. Columbus State
Community College, No. 2:02-cv-595, 2008 WL 11351301, at *1-*3 (S.D. Ohio Jul. 2, 2008).
There, the plaintiff filed a lawsuit against her former employer alleging national origin
discrimination. Id. at *1. Some of the evidence the defendant sought to have excluded, via a
motion in limine, from trial were so-called “stray remarks” made by various individuals within
her department at the school. As Rawlings has done here, the defendant in Nair argued that
because one remark was made by an employee who was not a “decisionmaker,” it was irrelevant
and would be unfairly prejudicial. Id. at 2. In denying the defendant’s motion in limine, the Court
cited to Caver, 470 F.3d at 240, and noted that such remarks would not prompt a jury to reach
conclusions based upon “an improper basis.” Id. at *3. The Court agrees with the decision in
Nair and will deny Rawlings’ instant Motion. [DN 50.]
X. Motion in Limine to Exclude any Evidence about Notes that Marshall Allegedly Gave to
Laura Plumley
23

The next Motion at issue is Rawlings’ Motion in Limine to exclude any evidence
regarding a note that Marshall allegedly gave to Plumley during their September 2013 meeting.
[DN 51.] Specifically, Rawlings explains that Marshall testified at her deposition that she gave a
note containing a list of complaints concerning her treatment after taking FMLA leave to
Plumley at a meeting that month. [DN 51-1, at 1.] Rawlings argues that evidence of this note
should be excluded from trial for three reasons: first, the note was never produced during
discovery and, accordingly, it should be excluded; second, introduction of the note would violate
Fed. R. Evid. 403 as being unfairly prejudicial to Rawlings [id.]; and third, introduction of the
evidence would violate the “Best Evidence Rule,” Fed. R. Evid. 1002. [DN 81, at 2.] The Court
finds that Marshall may make references to it at trial in her testimony, and will therefore deny
Rawlings’ Motion.
First, with respect to Rawlings’ claim that, because the note was not produced during
discovery it must be excluded, the Court is not persuaded. As an initial matter, in every trial,
testimony is elicited which conveys information not directly uncovered during discovery, or
which expands upon matters learned during the discovery process. Second, Rawlings deposed
Marshall about the note, and learned also that the note was lost. [See DN 51-1.] Certainly,
Marshall could not now present the purported note in hard copy after having failed to disclose it
during discovery. However, it does not automatically follow that she cannot testify about a note
she herself drafted.
Second, as discussed above, Fed. R. Evid. 403 allows for a trial court to “exclude relevant
evidence if its probative value is substantially outweighed by a danger of…unfair prejudice….”
To be sure, Marshall’s testimony concerning the note would have a prejudicial effect on
Rawlings, in that it apparently lays out Marshall’s concerns regarding FMLA, Rawlings’ policy
24

and practice concerning FMLA, and alleged disability discrimination and retaliation there. [See
DN 65, at 1.] It also tends to show that, while Marshall was still employed by Rawlings, she held
these concerns. However, if Marshall is called as a witness, as the drafter of this note, she may
testify to having written it, and regarding what things the note contains. The probative value of
the note is substantial, considering that part of Marshall’s theory is that she held grave concerns
about her treatment in the workplace while she was still employed there, and that she voiced
these concerns to individuals such as Plumley. The Court is cognizant of the prejudicial effect
Marshall’s testimony about the note could have against Rawlings but, when balanced against the
highly probative nature of Marshall’s alleged preparation of the note, the scales tip more heavily
in favor of her, and leads to the Court’s ultimate conclusion that Marshall may testify concerning
the note at trial. Rawlings argues that, since it has not reviewed the note, Marshall “can make up
whatever she wants to since Rawlings never received a copy….” [DN 81, at 1-2.] Rawlings is
reminded that witnesses are sworn in before giving testimony and perjury laws are protection
enough against a witness concocting fantasies while being examined and cross-examined on the
stand.
Finally, the Court finds that the Best Evidence Rule does not preclude Marshall’s
testimony about the note she allegedly wrote. The Best Evidence Rule, Fed. R. Evid. 1002,
provides that “[a]n original writing…is required in order to prove its content unless these rules or
a federal statute provides otherwise.” In support of its contention that testimony about the note
must be excluded, Rawlings cites to an unpublished decision from the Northern District of Ohio.
See Pearson v. FirstEnergy Corp. Pension Plan, No. 5:14-cv-634, 2016 WL 471859, at *14 n.15
(N.D. Ohio Feb. 8, 2016). There, the plaintiff testified at his deposition that he received a letter
from defendant “in which he was informed that he was eligible for an unreduced pension at age

25

60 because he had 10 or more years of service at the time of separation.” Id. However, the court
there found that the plaintiff’s deposition testimony, standing alone and without the original
letter or a copy thereof, was insufficient to create a genuine dispute of material fact. Id. The court
then granted summary judgment in favor of the defendant.
This case is different from Pearson in two important ways. First, Pearson was in the
summary judgment phase, and the court was asking the question of whether the plaintiff’s selfserving testimony at his deposition regarding the existence of a letter he could not produce could
create a genuine dispute of material fact. Conversely, in this case, the Court deals with the
admissibility of testimony at trial in response to a motion in limine. The Court passes no
judgment on the small or large impact Marshall’s testimony about the note could have, or how
credible it is, or whether it would create a genuine dispute of material fact in the mind of a jury.
Rather, the Court will merely allow Marshall to testify about it at trial. Second, the document at
issue in Pearson was not drafted by the plaintiff, but rather, the plaintiff contended that the
defendant had drafted it and sent it to him. Here, Marshall allegedly drafted the note herself.
Consequently, to the extent that it exists, Marshall possesses personal knowledge of the note,
how and when it was drafted, its contents, and whether she brought it to the meeting in question.
See Fed. R. Evid. 602. Whether or not the jury believes Marshall wrote the note, brought it to the
meeting, gave it to Plumley, or lost it is a matter of credibility for the jury to determine, and not
for the Court to do so in limine.
XI. Motion in Limine to Exclude Marshall’s Deposition Exhibit 23
The next Motion is Rawlings’ Motion in Limine to exclude from trial Exhibit 23
introduced during Marshall’s deposition. [DN 52.] Exhibit 23 is, according to Rawlings’ instant
Motion, a two-page email Marshall sent to herself on September 30, 2013. [DN 52-1, at 1.] The

26

email, apparently prepared by Marshall in anticipation of her meeting with Plumley, contains
three parts: the first is a list of notes she compiled and wished to talk about with Plumley at the
meeting; the second part is a bullet-pointed list compiled from research Marshall conducted on
workplace bullying; the third part of the email is a copied-and-pasted email to her from her
brother, Tony, in which he gave her encouragement regarding her meeting with Plumley. [Id. at
1-2. See also DN 63, at 1.] Rawlings argues that the document should be excluded on three
bases: first, the email is irrelevant; second, it would cause unfair prejudice to Rawlings; and
third, the email constitutes hearsay.
Regarding the first section of the Exhibit, Marshall’s notes concerning alleged incidents
in the Rawlings workplace, this information must be excluded as unfairly prejudicial. Although
Rawlings makes the primary argument that the information is irrelevant, the Court finds that it
passes the low threshold presented by Fed. R. Evid. 401. However, with this in mind, exclusion
is still warranted under Fed. R. Evid. 403 due to the information’s prejudicial nature. Here, the
potential for prejudice to Rawlings stemming from the presentation of a numbered list of events
which allegedly took place during the course of her employment with Rawlings is twofold: first,
the risk of prejudicing Rawlings is great under the circumstances, especially when weighed
against the probative value of the list of which Marshall presumably has personal knowledge
anyway; second, the contextless nature of the list runs the risk of both confusing and misleading
the jury.
For example, number “3” on the list provides, in its entirety, as follows: “Using the
‘silent treatment’ to ‘ice out’ and separate from others.” [DN 111-1, at 2.] This statement does
not provide who used the silent treatment, to whom it was used, when such treatment was
inflicted, where it was inflicted, or any other information concerning the context of the situation.

27

As another example, number “7” provides as follows: “Yelling, screaming, and throwing
tantrums in front of others to humiliate a person.” [Id.] Similarly, there is no information
provided indicating who yelled, who screamed, who threw a tantrum, whether this was all done
by one person or many people, how often this occurred, when it occurred, at whom the tantrum
or tantrums were directed, or any other information concerning the context of the situation. There
are ten statements like this contained in the numbered list, and while each point concerns
different behaviors and situations, in none of them does Marshall identify the perpetrators of the
behavior, nor does she clarify if she was the victim of this behavior. In short, this type of
confusing information could muddle the issues of the case. Moreover, the presentation of this
information could mislead the jury into thinking, without having been provided context, that
these situations contributed to her termination, or that somehow Marshall’s presentation of this
information to her bosses caused her termination (which there is no proof of). In the Court’s
view, this part of the email must be excluded, as its probative value is substantially outweighed
by the danger of unfair prejudice to Rawlings.
Next, with respect to the second portion of the Exhibit, the Court will exclude the bulletpointed list of research allegedly conducted by Marshall in anticipation of the September 30,
2013 meeting on the grounds of irrelevance. [See DN 111-1, at 2-3.] This includes the four
“Goals” listed after the bullet-pointed material. [See id. at 3.] While the bar presented by Fed. R.
Evid. 401 is a low one, the Court cannot see how generalized research on workplace bullying
compiled by Marshall and which does not pertain directly to the actual facts and allegations of
this case would be relevant here. The Court has reviewed the information, and has determined
that it is not “of consequence in determining the action,” as required by Fed. R. Evid. 401. In her
Response, Marshall does not point out where this information came from, whether she cut and

28

pasted it from a website or book, or typed it out in her own words, or how it relates to the case.
[See DN 63.] Indeed, in her Response, Marshall simply reiterates the position that she “made
some

notes

to

prepare

herself

for

her

meeting

with

Laura

Plumley,”

which

“concerned…workplace bullying….” [Id. at 1.] Marshall then states in conclusory fashion that
“[i]t’s probative: its documentary evidence showing Marshall’s state of mind and points she
wants to make going into a meeting about her job…it’s related to her claims of harassment and
retaliation.” [Id. at 1-2.] Marshall makes no specific points addressing this information pertaining
to workplace bullying. It must be excluded. Even if the information pertaining generally to
workplace bullying was relevant under Fed. R. Evid. 401, it should still be excluded under Fed.
R. Evid. 403, due to the danger of presenting it to a jury, which could be misled by the
information. Specifically, there is no certifying information concerning from whence this
information came, nor has Marshall proclaimed herself to be an expert on the issue. Moreover,
such generalized statements do not provide much probative value to the case, whereas the danger
of their presentation to the jury is quite great. In short, this information may not be introduced as
an exhibit.
Finally, there is the issue of Marshall’s brother Tony’s email to her. This, too, must be
excluded. In the Court’s view, the email is irrelevant. The email, in its entirety, is as follows [sic
throughout]:
Hola. I heard you have a meeting today at work re a work environment concern.
Stay positive and constructive during the meeting but also express your concerns.
They key is to show/convey you are there to improve yourself and the
organization the best you can. Discussing concerns is a positive thing but try to be
constructive :). Love. Tony
[DN 111-1, at 3.] The Court finds that the only piece of the email which pertains to the case at all
is Tony’s statement that “I heard you have a meeting today at work re a work environment

29

concern.” [Id. (emphasis added).] However, the fact that Marshall met with Plumley on
September 30, 2013 will be brought up by Marshall herself, as well as, presumably, numerous
other witnesses, as it is common knowledge, and it immediately preceded her termination. But
secondhand knowledge from Marshall’s brother who, insofar as the Court is aware, is not and
never has been affiliated with Rawlings, that she had a meeting is not “of consequence in
determining the action.” See Fed. R. Evid. 401. Moreover, even if the email passed the low
threshold presented by Fed. R. Evid. 401, the danger presented by the email of confusing the
issues and misleading the jury warrants its exclusion, especially when weighed against the
considerably low probative value of the email. Of course, if the fact of the meeting, or its topic,
is brought into question throughout the course of the trial, counsel may request to approach the
bench to discuss the admissibility of the email at that time. However, in the interim period, the
Court will order its exclusion.
XII. Motion in Limine to Exclude Michael Elsner’s Deposition Exhibits 13 and 28
The next Motion at issue is Rawlings’ Motion in Limine to exclude Michael Elsner’s
deposition Exhibits 13 and 28. [DN 53.] Exhibit 13 is entitled “Privacy Policy Violation Notice –
Formal Written Warning with Monetary Penalty,” and is dated July 5, 2012. [DN 111-2, at 2.]
The body of the one-page document provides as follows:
Analyst sent claims itemization to one of the member’s providers, a hospital. That
itemization included the claims for that provider as well as another provider, a
medical group. The two providers are located in the same building, share
information internally, if needed, and request medical records from the same
facility…Analyst has had management counseling specific to this incident
including the need to verify information before disclosing PHI. He [sic] will
attend formal HIPAA retraining and be disciplined in accordance with Rawlings
policies…Lack of immediate and sustained improvement will result in further
disciplinary action, up to and including termination.

30

[Id.] The Exhibit is, in essence, a notation documenting a disciplinary violation by Marshall on
July 5, 2012, which she was required to sign. [Id.] Similarly, Exhibit 28 from Elsner’s deposition
is also a Privacy Policy Violation Notice, this one from April 10, 2013. [Id. at 3.] In the second
disciplinary violation, Marshall apparently “mailed to an attorney correspondence containing
personal health information without first confirming the attorney’s representation of the
member.” [Id.] Rawlings now seeks to have both of these disciplinary violation documents
excluded from trial. In support of this, Rawlings argues that the violations are (1) irrelevant, (2)
if relevant, unfairly prejudicial, and (3) hearsay. [See DN 53.] Marshall’s first stint of FMLA
leave was from February 7, 2012 to March 13, 2012. Her second stint of FMLA leave was from
March 18, 2013 to March 29, 2013. In addition, she took intermittent FMLA leave due to mental
health issues from April 2013 to August 2013. After having reviewed the submissions, the Court
will deny Rawlings’ Motion at this time.
The exhibits are relevant. They document Marshall’s employment history at Rawlings
and, more specifically, disciplinary incidents involving her work. As this case centers around
Marshall’s demotion and eventual termination, and the propriety of those decisions, her
workplace infractions while still employed by Rawlings certainly have a “tendency to make a
fact more or less probable than it would be without the evidence.” See Fed. R. Evid. 401. The
exhibits are also not unfairly prejudicial to Rawlings. The basis for Rawlings’ argument that the
introduction of these two disciplinary infractions would be unfairly prejudicial centers around its
contention that the infractions were not taken into account when the decision was made to
terminate Marshall’s employment at the company. [See DN 53-1, at 4.] In its view, “[t]he jury
should not be permitted to assign weight to the [infractions], when Rawlings attributed none to
them during the decision-making process.” [Id.] The Court is not of the opinion that, because

31

Rawlings has contended that the infractions did not play a role in Marshall’s termination should,
in and of itself, preclude Marshall being permitted to present these exhibits. Disciplinary
infractions levied against an employee prior to termination constitute highly probative evidence
in these types of cases and, as Marshall explained in her Response, she may wish to use these
exhibits as evidence of continued harassment after she took FMLA leave. [See DN 67, at 2.] In
short, while the infractions may not have played a role in the ultimate decision-making process
undertaken by Rawlings, this case is about more than that decision, and the Court expects a great
deal of evidence to be introduced at trial relating not only to her demotion and termination, but
also the course of her employment at Rawlings leading up to those two moments, of which the
infractions are certainly two such instances.
Finally, the Court finds that the exhibits are not hearsay. The definition of hearsay is laid
out in more detail above. One of the more well-known exceptions to the rule against hearsay is
the business records exception. See Fed. R. Evid. 803(6). “Business records are properly
admitted under the business records exception to the hearsay rule if they satisfy four
requirements,” regardless of whether the declarant is available for trial:
(1) They must have been made in the course of regularly conducted business
activities; (2) they must have been kept in the regular course of business; (3) the
regular practice of that business must have been to have made the [documents];
and (4) the [documents] must have been made by a person with knowledge of the
transaction or from information transmitted by a person with knowledge.
Cobbins v. Tennessee Dept. of Transp., 566 F.3d 582, 588 (6th Cir. 2009) (citing Redken Labs.,
Inc. v. Levin, 843 F.2d 226, 229 (6th Cir. 1988)). The only foundation requirement for the
introduction of a business record “is that the ‘witness be familiar with the record keeping
system.’” United States v. Laster, 258 F.3d 525, 529 (6th Cir. 2001) (quoting United States v.
Hathaway, 798 F.2d 902 (6th Cir. 1986)).

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In the Court’s view, these two disciplinary infractions fit squarely within what is
contemplated as the “business records exception.” First, the infraction forms appear to “have
been made in the course of regularly conducted business activities,” that is, a seemingly
organized manner and practice of disciplining employees for conduct contrary to company rules.
This is evidenced by the pre-made form entitled “Privacy Policy Violation Notice – Formal
Written Warning with Monetary Penalty.” [See DN 111-2.] The document is obviously a prearranged form with spaces to fill in the employee’s name, job title, department, the date of the
occurrence and the date of the completion of the form, as well as places for a description of the
incident, a plan for improvement and consequences for further infractions, among other
information. [See id.] Indeed, the document is quite formal, and provides places for the
signatures of the offending employee, a Human Resources representative and, if necessary, a
witness. [See id.]
Second, the nature of the disciplinary infraction form is such that the Court views it as
one “kept in the regular course of business.” See Cobbins, 566 F.3d at 588. Indeed, that appears
to be the whole purpose of the form: to make official note of an infraction, create a plan for
improvement, and make note of what consequences will result if the employee does not correct
their behavior. [See DN 111-2.] Documenting all of this information would serve to inform
Human Resources down the road should another issue present itself. Third, the fact that the form
is pre-arranged and only requires filling in the requested-for information indicates to this Court
that the regular practice of Rawlings was to fill out this document, so as to better document these
issues. Finally, that a Human Resources employee signed the infraction, which is complete with
a detailed description of all underlying events, shows that the document was created “by a person
with knowledge of the [issue]” or, at the very least, was created “from information transmitted

33

by a person with knowledge” of the underlying infraction. See Cobbins, 566 F.3d at 588. Thus,
the two exhibits satisfy the business records exception to the rule against hearsay and may be
admitted at trial. If Rawlings believes a proper foundation was not made at trial, or if Rawlings
finds reason to dispute any of the four above-referenced elements encompassing the business
records exception as delineated in Cobbins, 566 F.3d at 588, to contest admissibility, it may
present such arguments to the Court at trial by requesting to approach the bench.
XIII. Motion in Limine to Exclude All Proof of Marshall’s Damages
A.
The next Motion is Rawlings’ Motion in Limine to exclude all proof of Marshall’s
damages because, according to Rawlings, Marshall “failed to even attempt compliance with the
disclosure requirements of Fed. R. Civ. P. 26 and Fed. R. Civ. P. 33.” [DN 109.]
Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(iii), parties to litigation are
required to disclose, without request, the following information:
a computation of each category of damages claimed by the disclosing party—who
must also make available for inspection and copying as under Rule 34 the
documents or other evidentiary material, unless privileged or protected from
disclosure, on which each computation is based, including materials bearing on
the nature and extent of injuries suffered….
Relatedly, Rule 37(c)(1) “requires absolute compliance with Rule 26(a), that is, it ‘mandates that
a trial court punish a party for discovery violations in connection with Rule 26 unless the
violation was harmless or is substantially justified.’” Roberts ex rel. Johnson v. Galen of
Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003) (quoting Vance v. United States, No. 98-5488,
1999 WL 455435, at *3 (6th Cir. Jun. 25, 1999)). The burden of proving harmlessness is “on the
potentially sanctioned party.” Id. (citations omitted).

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In her initial disclosures, filed with the Court on September 24, 2014, Marshall provided
the following information with respect to damages:
Although the exact measure of damages will need to be recalculated once
discovery is completed and documents requested therein produced, claimed by the
Plaintiff include:
[1] Approximate Back Pay for time lost beginning on October 2, the day
following Plaintiff’s last day of employment with Defendant.
[2] Approximate Front Pay for the period of time that Plaintiff would have
remained employed, absent being discriminatorily terminated.
[3] A yet unspecified sum for loss of additional benefits that may have been due
as the result of No. 1 above.
[4] A yet unspecified sum for emotional pain, physical pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary
losses. Also, an award of Plaintiff’s attorneys’ fees and costs.
[DN 16, at 4.] Of course, noticeably absent from the above-quoted language are any numerical
figures or mathematical calculations relating to the sum of the damages sought.
Later, in April 2015, in response to an interrogatory from Rawlings, Marshall again failed
to provide numerical values as to any of her claimed damages, providing instead similar answers
to that of her initial disclosures, outlined above. There is a small amount of new information
though, and which bears laying out at this time. Her response to the interrogatory was as follows:
Damages, although the exact measure of damages will need to be recalculated
once discovery is completed and documents requested therein produced, claimed
by the Plaintiff include:
[1] Approximate Back Pay for the amount of pay she lost for the period from
October 1, 2013 to when she obtained new employment on April 28, 2014
following her discriminatory and retaliatory discharge.
[2] Approximate Back Pay for the difference in gross income between Plaintiff’s
employment at Defendant Rawlings and her new job from the period of April 28,
2014 to the present.

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[3] A yet unspecified sum for loss of additional benefits that may have been due
as the result of No. 1 and 2 above.
[4] An award of Plaintiff’s attorneys’ fees and costs which continue to accumulate
and are thus, undetermined at this time.
[DN 109-2, at 4.] Rawlings further argues that, in a second set of interrogatories submitted to
Marshall in November 14, 2017, no additional information was provided by Marshall with
respect to her claims for damages. [See DN 109-1, at 3; DN 109-3.]
Moreover, Rawlings contends that these answers have not been supplemented with any
numerical values or calculations for any such figures. [See DN 109-1, at 3.] However, Rawlings
does concede that, in a pre-settlement conference email in September 2017, Marshall included
the following language: “Wages – Back pay (4 years) - $180k, Front pay (3 years) - $150k[;]
Emotional distress[;] Punitive damages[;] We estimate attorneys’ fees through trial at
approximately $100k.” [Id. at n.1.] In other words, Marshall apparently provided a total sum for
lost wages, both for back pay and front pay, but did not provide a break-down of how those
figures were reached, or supporting documentation; nor did she provide any numerical value for
emotional distress or punitive damages; she did provide a total figure for attorney fees but, again,
did not provide a break-down or supporting documentation for the $100,000 figure.
In her Response, Marshall argues that “[s]he provided evidence of her salary and
incentive pay as Team Lead with Rawlings before her demotion. She did the same after
demotion until she was fired a year later. Frankly, Rawlings has her payroll records and W-2
forms….” [DN 128, at 1.] Marshall also notes that “Rawlings unsuccessfully opposed her
unemployment claim, so it knows what she drew in weekly benefits.” [Id. at 2.] Moreover,
“Rawlings’ counsel took Marshall’s deposition at length over a two (2) day period…[and] [s]he
asked her a number of questions about efforts to seek further employment, success in gaining

36

employment, and interim earnings.” [Id.] Lastly, “[w]hen Marshall moved on to a second job,
she supplemented her answers as an update, in writing.” [Id.]
B.
It appears clear to the Court that Marshall has provided some indication of the damages
she seeks; it is also very plain that Rawlings would have preferred much more detailed responses
and information pertaining to the damages sought and that Marshall could have been more
thorough in providing it. However, the ultimate question is whether, in light of the above
correspondence and disclosures, Marshall should be foreclosed from presenting any evidence of
her damages at trial. For the following reasons, the Court declines Rawlings’ invitation to issue
such an order.
First, it is undisputed that Rawlings was apprised early on of the kind of damages
Marshall is seeking in this case: lost wages (back pay and front pay), emotional distress
damages, punitive damages, and attorney fees. [See DN 1, at 6; DN 16, at 4.] “Moreover, the
defendant[], as [Marshall’s] employer, has access to [her] personnel file and could therefore have
made a reasonable calculation of these categories of damages,” at least with respect to lost
wages. See Conn v. Deskins, No. 16-87-ART, 2017 WL 1738084, at *2 (E.D. Ky. Mar. 7, 2017)
(citing Lucterhand v. Granite Microsystems, Inc., No. 05-cv-1047, 2007 WL 703400, at *17-18
(E.D. Wisc. Mar. 2, 2007); cf. FDIC v. Thornton, 595 F. App’x 513, 523 (6th Cir. 2014); and
Vitek v. AIG Life Ins. Brokerage, No. 06-cv-615, 2008 WL 437 2670, at *6 (S.D. Ohio Sept. 22,
2008)). In Conn, the District Court for the Eastern District of Kentucky allowed the plaintiff to
introduce evidence of lost wages in a situation bearing a striking resemblance to this case. There,
defendants had notice that the plaintiff and former employee intended to pursue claims of lost
wages by virtue of his initial disclosures and, as his former employer, could make a reasonable

37

determination of how much. Id. Similarly, in this case, Rawlings is Marshall’s former employer,
was apprised of her intent to seek lost wages in her Complaint, her initial disclosures, her
responses to interrogatories, and the September 2017 email. In short, while Marshall’s responses
were themselves less than stellar, she provided sufficient information with respect to her intent to
seek lost wages that this Court will not foreclose her opportunity to present evidence on such
damages at trial.
Additionally, in Conn, the district court held that the plaintiff could not put on evidence
of front pay damages due to the fact that he “did not mention front pay in his initial disclosures
or in his response to Interrogatory No. 22; as a result, the defendants were not on notice of this
category of damages until a couple days before trial.” Id. The court contrasted this with his other
lost wages claims, of which the defendants were apprised, and of which the plaintiff was
permitted to put on evidence. Conversely, in this case, Marshall made known her intent to seek
front pay in her initial disclosures. [See DN 16, at 4 (stating that she was seeking “[a]pproximate
Front Pay for the period of time that Plaintiff would have remained employed, absent being
discriminatorily terminated”).] Moreover, in the September 2017 email, Marshall again stated
her intention to seek damages in the form of front pay, noting the number of years (three) and the
total amount sought ($150,000). [See DN 109-1, at 3 n.1.] Again, while Marshall could have
provided more information, including a computation relating to how she reached the $150,000
figure, the Court finds that she provided sufficient information to her former employer from
which Rawlings could have made reasonable calculations.
This Court’s sister court in Conn also addressed the issue of emotional distress and
punitive damages. It noted that the plaintiff “fail[ed] to disclose a computation of his emotional
distress and punitive damages” before trial, but that it “was substantially justified or harmless

38

given the difficulty that comes with trying to calculate these amorphous categories of damages
before trial.” Conn, 2017 WL 1738084, at *3 (citing Scheel v. Harris, No. 3:11-cv-17-DCR,
2012 WL 3879279, at *7 (E.D. Ky. Sept. 6, 2012); Evenson v. Palisades Collection, LLC, No.
2:13-cv-1226, 2014 WL 5089429, at *4 (S.D. Ohio Oct. 9, 2014); Biesty v. Knuckles, No. 5:15cv-23-KKC, 2016 WL 4120632, at *3-4 (E.D. Ky. Aug. 1, 2016); and Carver v. Petry, No. 12cv-131-JMH, 2013 WL 160277, at *2 (E.D. Ky. Jan. 15, 2013)). Here, too, the Court finds that
Marshall’s failure to provide computations with respect to her emotional distress and punitive
damages claims is substantially justified or harmless and, accordingly, will deny Rawlings’
Motion on this front as well.
However, even having denied Rawlings’ Motion here, the Court acknowledges the fact
that Marshall could have been much more comprehensive in breaking down the individual
figures from which she drew the totals in the September 2017 email. Given this, the Court will
order Marshall to provide to Rawlings a more in-depth document showing calculations, to
the extent that they exist, for the damages she seeks no later than two weeks before trial.
XIV. Motion in Limine to Exclude Marshall’s Proposed Witnesses Adrienne Popeck, Blair
Hand, and Kristen Miracle
The next Motion at issue is Rawlings’ Motion in Limine to exclude from trial three of
Marshall’s potential witnesses: Adrienne Popeck (“Popeck”), Blair Hand (“Hand”), and Kristen
Miracle (“Miracle”). [DN 112.] In support of this Motion, Rawlings argues that Marshall never
disclosed the identities of Popeck, Hand, or Miracle, either through initial disclosures, written
discovery responses, or during her own deposition and, consequently, Rule 37(c)(1) requires the
exclusion of their testimony from trial. [See id. at 1.] Moreover, Rawlings argues that, even if
Rule 37(c)(1) does not mandate the exclusion of this testimony, to permit them to testify would
contravene Fed. R. Evid. 402 and 403 and they must be excluded.
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This case’s history with respect to the disclosure of the aforementioned three individuals
appears, from the record, to be as follows: initial disclosures were made by Marshall pursuant to
Rule 26(a) on September 24, 2014. [DN 16.] Therein, Marshall did not name Popeck, Hand, or
Miracle specifically, but rather, stated “[a]ll present and former employees of the Defendant, not
named above, whose names appear in any documents produced by any party.” [Id. at 2.] Later, in
April 2015, Rawlings served Marshall with interrogatories, two of which dealt with the identities
of persons “with whom you [Marshall] or your attorney have had contact, discussions,
correspondence, or other communications regarding claim[s] in this action” and persons “who
you believe or alleged perpetrated, witnessed or may have witnessed the conduct forming the
basis of any of the allegations in the Complaint.” [See DN 112-1, at 3.] In response, Marshall did
not specifically name Popeck, Hand, or Miracle. [Id.] However, Marshall did include Miracle in
her proposed witness list in anticipation of the first trial date, filed with the Court on March 17,
2016, [DN 57], and named Popeck in her supplemental witness list filed on March 24, 2016. [DN
72.] Eventually, Marshall disclosed Hand in a filing styled as another supplemental witness list,
dated October 18, 2017, [DN 98], roughly two years after the close of discovery.
In the instant Motion, Rawlings correctly points out that disclosure under Rule 26(a) is
mandatory and, relatedly, exclusion for failure to comply is also mandatory under Rule 37(c)(1),
absent harmlessness or substantial justification for nondisclosure. By the docket, the discovery
deadline was amended multiple times, but the most recent amendment put that date at September
30, 2015. [DN 27.] Thereafter, Rawlings filed a Motion for Summary Judgment on November
16, 2015. [DN 34.] While this Motion was pending, the original trial date crept closer, and the
parties began to prepare for trial. As part of these preparations, the parties filed exhibit and
witness lists with the Court, proposed jury instructions and voire dire questions, as well as their

40

trial briefs. [See DNs 42, 43, 54-61.] Additionally, Rawlings lodged a timely objection with the
Court concerning Marshall’s witness list, [DN 57], and her supplemental witness list. [DN 72.]
In the former, Marshall listed Miracle, and in the latter, she listed Popeck. According to
Rawlings’ objection thereto, [DN 84], neither Miracle nor Popeck were listed in Marshall’s Rule
26(a)(1) disclosures, nor were they mentioned by name in written discovery responses or during
Marshall’s own deposition. [See id. at 1.] Because of this, Rawlings argued, Rule 37(c) mandated
the exclusion of these two witnesses’ testimony from trial. [Id.] In response, Marshall presented
two arguments: first, as both Miracle and Popeck previously worked for Rawlings, the company
was familiar with them and their history; second, she argued that she complied with Rule
26(a)(3)(A)’s 30-day window and, therefore, the disclosure of these two individuals was timely.
Rule 26(a)(3)(A) “requires each party, as a part of its pretrial disclosures, to provide the
name of each witness, including those the party expects to present and those it may call if the
need arises, unless the witness is offered solely for impeachment.” Clements v. Prudential
Protective Servs., LLC, 659 F. App’x 820, 822-23 (6th Cir. 2016) (internal citations omitted).
And under Rule 26(a)(3)(B), the relevant timeframe, “[u]nless the court orders otherwise,” is “at
least 30 days before trial.” Based upon the language of Rule 26(a)(3), Marshall fulfilled her
obligation under the rule. However, as Rawlings correctly pointed out in its Reply to the instant
Motion, Rule 26(a)(3) does not supplant, or otherwise supersede Rule 26(a)(1) and a party’s
obligation to comply therewith. [See DN 140, at 3-4 (citing Thomas v. McDowell, No. 2:10-cv152, 2014 WL 5305501, at *4-5 (S.D. Ohio Oct. 15, 2014) for the proposition that “Rule
26(a)(3)’s disclosure obligation is separate and distinct from Rule 26(e)(1)(A)’s obligation to
supplement discovery responses in a timely manner.”).] See also Poitra v. Sch. Dist. No. 1 in the
Cnty. Of Denver, 311 F.R.D. 659, 668 n.10 (D. Colo. 2015) (“Rule 26(a)(3) makes clear by its

41

very terms, that the disclosure of a final witness on the eve of trial, is not a substitute for initial
disclosures, but rather is in addition to the disclosures required by Rule 26(a)(1) and (2)”)
(internal citations omitted); see also De La Torre v. Merck Enters., Inc., 540 F. Supp. 2d 1066,
1076 n.8 (D. Ariz. 2008) (“Plaintiff’s counsel should know and is required to know that initial
disclosures are not the same as pretrial disclosures.”). Consequently, that Marshall named
Miracle and Popeck in her pretrial disclosures under Rule 26(a)(3) did not excuse her failure to
name them in her Rule 26(a)(1) disclosures, or any supplements thereto.
Before the final pretrial conference concerning the original trial date in April 2016, this
Court granted summary judgment in favor of Rawlings. Marshall filed a timely appeal, and this
Court’s decision was reversed in part and remanded for further proceedings. [DNs 90, 91.] Upon
remand, this Court gave no order to reopen discovery in this matter, although it appears that
some minimal work was done in this area. Particularly, notices for the depositions of Mary Zriny
and Dr. Mohamed Khodeir were filed with the Court. [See DNs 100, 105-06.] However, formal
discovery was not reopened by the Court in this matter in the period before the trial, scheduled
for March 26, 2018, and Rawlings only learned the identities of Miracle and Popeck a couple of
weeks before summary judgment was originally granted by this Court in 2016. Thus, the Court
cannot say that the inclusion of these individuals would be “harmless” to Rawlings, or that
Marshall’s failure to disclose them was “substantially justified” under the circumstances. See
Dickerson v. Cardiac and Thoracic Surgery of Eastern Tennessee, 388 F.3d 976, 983 (6th Cir.
2004).
Notably, as discussed above, the burden of proving harmlessness or substantial
justification for the original nondisclosure rests with the party seeking to admit the witness or
witnesses in question. See Roberts ex rel. Johnson, 325 F.3d at 782. This Marshall has not done.

42

The Sixth Circuit has noted “that commentary to Rule 37(c)(1) ‘strongly suggests that a harmless
violation involves an honest mistake on the part of a party coupled with sufficient knowledge on
the part of the other party.’” Id. at 783 (quoting Vaughn v. City of Lebanon, 18 F. App’x 252,
264 (6th Cir. 2003)) (internal citations omitted). Marshall does not argue that the omission of
Miracle’s name or Popeck’s name from her initial disclosures, or the supplementations thereto,
were honest mistakes and she does not show sufficient knowledge on the part of Rawlings.
Rather, Marshall makes practical arguments. She indicates that, taking into account the March
2018 trial date, her disclosure of these names in March 2016 has not blindsided Rawlings nor left
it unable to adequately defend itself. But even if this were the case, the fact remains that, at the
time she made these disclosures, trial loomed less than one month away in April 2016, and
formal discovery was never reopened by this Court upon remand. Moreover, theoretical
arguments concerning exactly how surprised Rawlings should or should not have been
concerning Marshall’s decision to try to call Miracle and Popeck, both former employees of the
company, do not dispense with the requirements under Rule 26(a)(1).
With respect to the third potential witness, the first mention Marshall made of Blair Hand
was in her “Supplemental Witness List,” filed with the Court on October 18, 2017. [DN 98.] This
date was more than two years after the close of formal discovery (September 30, 2015), and no
other mention of her name had been made up until that point. It cannot follow that Marshall is
permitted to include Hand as a witness at trial. Finally, regarding all three potential witnesses,
Marshall’s other argument that she complied with Rule 26(a)(1) by stating “ [a]ll present and
former employees of the Defendant, not named above, whose names appear in any documents
produced by any party,” lacks merit. That list is obviously quite vague and all-encompassing,
and likely includes dozens, if not hundreds, of current and former employees of the company.

43

XV. Motion in Limine to Exclude Proof Regarding Popeck’s and Hand’s Lawsuits and
Internal Harassment Complaints by Other Employees against Rawlings
The next Motion at issue is Rawlings’ Motion in Limine to exclude proof regarding
Popeck’s and Hand’s lawsuits against Rawlings, as well as internal harassment complaints by
other employees against the company. [DN 113.] Specifically, Rawlings argues that Marshall
never worked with Popeck or Hand and, as a result, any information they could offer pertaining
to their own lawsuits against Rawlings would be irrelevant. [DN 113-1, at 1.] As this Court has
ruled that Miracle, Popeck, and Hand must be excluded as witnesses from Marshall’s case-inchief, this Motion has largely been rendered moot on this point. In the event that Marshall
attempts to call one of these individuals as a rebuttal witness, or something of that nature,
Rawlings may approach the bench at that time with any concerns it has regarding that witness’s
potential testimony to these issues.
However, there is the additional relief sought by Rawlings with respect to internal
harassment complaints. Rawlings argues that, on September 18, 2017, Marshall sought
information concerning internal harassment complaints filed against Rawlings by other
employees of the company, but that Marshall “has no proof regarding the facts of these
complaints or the validity of the complaints.” [Id. at 2, 6.] In Rawlings’ estimation, introduction
of such evidence would contravene Fed. R. Evid. 401, 402, and 403. [Id.] However, the Court
concurs with Marshall’s framing of the situation. [See DN 130, at 4.] Rawlings does not point to
any specific complaints, does not identify the individuals making the complaints, who the
complaints were made against, or any other information concerning these complaints, nor has
Rawlings given these complaints to Marshall at all. [See id.] As such, a ruling on the
admissibility of any such complaints would be entirely speculative and premature. Should issues
concerning any such harassment complaints arise at trial, Rawlings and Marshall may approach
44

the bench to discuss it further with the Court. Until such time, the Court will deny this portion of
the Motion. The Court has some concerns as to the relevance of harassment claims filed against
Rawlings and their similarities to the merits of this case. Marshall’s claims are for FMLA
retaliation and ADA discrimination. There is nothing in the record to show these other vague
claims of harassment concern FLMA retaliation or ADA discrimination.
XVI. Motion in Limine to Exclude Evidence Related to Marshall’s Sexual Orientation and
Past Sexual Abuse
The next Motion at issue is Marshall’s Motion in Limine to exclude all evidence
pertaining to her sexual orientation and any past sexual abuse. [DN 122.] Specifically, Marshall
experienced relationship troubles with her partner during her time of employment at Rawlings,
and also apparently suffered abuse as a child. [Id.] Marshall contends that Rawlings will likely
attempt to introduce this evidence in an effort to show that her emotional distress was caused by
these traumatic events and not by Rawlings’ treatment of her in the workplace. [DN 122-1, at 2.]
Marshall contends any such evidence is irrelevant under Fed. R. Evid. 401 and 402 and,
alternatively, would be unfairly prejudicial under Fed. R. Evid. 403.
The Court will grant Marshall’s Motion at this time. Depending upon the evidence
admitted at trial, the witnesses called, and the testimony elicited from those witnesses, evidence
concerning her relationship could become relevant or inevitably disclosed due to other evidence,
as could the possible root causes of her PTSD, depression and anxiety. If Rawlings believes the
trial has been taken in a direction which would lead to such evidence being relevant or inevitably
disclosed, it may request to approach the bench and move to have such evidence admitted at that
time. The Court notes that Marshall’s initial FMLA leave was related to pre-existing depression,
anxiety, bipolar disorder, and PTSD. Certain such evidence is intrinsic to the case. It appears that
evidence of these pre-existing conditions can come in without relating them to sexual orientation.
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XVII. Conclusion
For the reasons stated herein, IT IS HEREBY ORDERED as follows:
1. Rawlings’ Motion in Limine to exclude other employees’ alleged complaints
about Jeff Bradshaw [DN 44] is DENIED. To aid the Court, on or before March 9, 2018, each
party shall file briefs identifying specific complaints and witnesses. Responses shall be filed
by March 16, 2018, and no replies shall be filed.
2. Rawlings’ Motion in Limine to exclude all testimony or evidence about what
Marshall’s physicians told her, or any other individual, about Rawlings allegedly causing her
emotional distress [DN 45] is GRANTED.
3. Rawlings’ Motion in Limine to exclude comments by Doug Gurley, Chris Gardner,
Elizabeth Davidson, and Leah Sarley [DN 46] is GRANTED.
4. Rawlings’ Motion in Limine to exclude comments by Jeff Bradshaw [DN 47] is
DENIED.
5. Rawlings’ Motion in Limine to exclude alleged discussions about a performance
improvement plan for Marshall [DN 48] is DENIED.
6. Rawlings’ Motion in Limine to exclude comments allegedly made by other employees
about Rawlings’ attitude towards FMLA leave [DN 49] is GRANTED as to Elizabeth Davidson.
7. Rawlings’ Motion in Limine to exclude Exhibit 27 to Marshall’s Response, an email
sent by Matt Monyhan concerning the Team Leader bonus [DN 50] is DENIED.
8. Rawlings’ Motion in Limine to exclude any evidence about notes that Marshall
allegedly gave Laura Plumley [DN 51] is DENIED.
9. Rawlings’ Motion in Limine to exclude Marshall’s deposition Exhibit 23 [DN 52] is
GRANTED.

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10. Rawlings’ Motion in Limine to exclude Michael Elsner’s deposition Exhibits 13 and
28 [DN 53] is DENIED.
11. Rawlings’ Motion in Limine to exclude all proof of Marshall’s damages [DN 109] is
DENIED. Marshall is HEREBY ORDERED to produce a more in-depth document
concerning her damages calculations no later than two weeks before trial.
12. Rawlings’ Motion in Limine to exclude Marshall’s proposed witnesses Adrienne
Popeck, Blair Hand, and Kristen Miracle [DN 112] is GRANTED.
13. Rawlings’ Motion in Limine to exclude proof about Popeck’s and Hand’s lawsuits
and internal harassment complaints by other employees against Rawlings [DN 113] is
DISMISSED AS MOOT with respect to Popeck and Hand, and DENIED as to the internal
harassment complaints.
14. Marshall’s Motion in Limine [DN 122] is GRANTED.
IT IS SO ORDERED.

February 28, 2018

cc:

Counsel of Record

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