Baskin v. Pepsi MidAmerica Co.

Filing 70

MEMORANDUM OPINION & ORDER granting in part and denying in part 45 Motion in Limine. Signed by Senior Judge Thomas B. Russell on 1/30/2015. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:13-CV-00030-TBR

ARTHUR BASKIN

Plaintiff,

v.
PEPSI MIDAMERICA CO.

Defendant.

MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon the motion in limine of Defendant Pepsi
MidAmerica Co. (“Pepsi”). (Docket No. 45.) Pepsi seeks to preclude Plaintiff Arthur Baskin
from referencing, either directly or indirectly, certain evidence and materials at the jury trial
scheduled for February 9, 2015. This trial concerns the termination of Baskin’s employment with
Pepsi after a June 5, 2012, meeting, wherein Baskin rose from his seat and told Jared Hines, his
supervisor, “Man, you can kiss my ass,” and left the room. Baskin alleges that Pepsi terminated
his employment due in part to his African-American race. He challenges his termination under a
mixed-motive discrimination theory pursuant to 42 U.S.C. § 2000e-2(m). This section allows a
plaintiff to show that the defendant has engaged in an unlawful employment practice by
“demonstrat[ing] that race, color, religion, sex or national origin was a motivating factor for [the]
employment practice, even though other factors also motivated the practice.” 42 U.S.C. §
2000e-2(m).
Baskin has responded to Pepsi’s motion. (Docket No. 49.) Fully briefed, this matter is ripe
for adjudication. The Court will address each of Pepsi’s concerns in turn.

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I.

The alleged statement of Hines to Baskin
Baskin alleges that the allegedly offending statement was not unprompted. Instead, he

points to Pepsi employee Ashley Williams’ testimony that Hines, Baskin’s supervisor, “cursed at
Arthur” during the morning meeting, telling him “he was tired of his shit.” (Ashley Williams
Deposition, Docket No. 31-1, at 6:14-25.) Pepsi first contends that this statement contradicts
Williams’ prior written declaration, in which she stated, “I cannot recall exactly what Jared was
saying but I recall that he was really attacking Arthur and being extremely critical in a way that
should have been conducted individually and behind closed doors if the discussion was going to
happen.” (Declaration of Ashley Williams, Docket No. 26-1, at ¶ 11.) Pepsi also emphasizes
that Baskin did not mention Hines’ alleged comment in his own deposition testimony.
The Court notes that Williams’ statements are not inherently inconsistent. There is no
indication that her deposition testimony, while arguably more complete, was fabricated to create
a sham issue. See Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908 (6th Cir. 2006). Any
perceived inconsistencies may supply material appropriate for cross-examination, but they
provide no basis to exclude Williams’ testimony.
Pepsi further argues that Hines’ alleged cursing “does not rise to the level of
insubordination, and does not excuse Plaintiff from saying ‘kiss my ass’ and walking out of the
meeting before it has concluded.” (Docket No. 45-1 at 2.) Although Pepsi correctly states that
Hines’ alleged comment did not constitute insubordination, the company’s work rules
nonetheless prohibit “[a]busive language to fellow employees or supervisors.” (See Deposition
of Andrea Douglas, Docket No. 49-1, at 60:15-61:9; Exhibit 8.) Furthermore, it is not clear that
Baskin would offer this testimony to compare his own misconduct with that allegedly committed
by Hines. Instead, this evidence provides the context of Baskin’s statement, made during what
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was arguably a highly-charged meeting with his supervisor. Therefore, the Court need not
exclude this relevant evidence.
II.

Evidence that employees or management regularly used profanities
Baskin relies upon circumstantial evidence to support his race discrimination claim. He

contends that Pepsi treated him more harshly than similarly-situated white employees and that
this disparate treatment reveals Pepsi’s discriminatory motive. Namely, he contends that white
employees routinely used profanities and sexual talk, arising from both jest and anger, but were
not terminated. Pepsi responds that none of these employees serve as proper comparators, given
that none of them cursed at their immediate supervisors before walking out of a meeting, as
Baskin admits that he did.
Whether these other Pepsi employees are appropriate comparators is the crux of many of
the disputes set forth below. “The plaintiff need not demonstrate an exact correlation with the
employee receiving more favorable treatment in order for the two to be considered ‘similarlysituated.’” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998)
(considering a claim raised under the Age Discrimination in Employment Act). Instead, “the
plaintiff [must] demonstrate that he or she is similarly situated to the [claimed comparator] in all
relevant respects.”

Id. at 353.

The Sixth Circuit has held that when a plaintiff alleges

incongruent discipline of employees, the plaintiff and his proposed comparator must have
engaged in acts of “comparable seriousness.” Wright v. Murray Guard, Inc., 355 F.3d 702, 710
(6th Cir. 2006) (quoting McDonald v. Santa Fe Transp. Co., 427 U.S. 273, 283 n.11 (1976)).
Factors in this analysis may include whether the individuals “have dealt with the same
supervisor, have been subject to the same standards, and have engaged in the same conduct
without such differentiating or mitigating circumstances that would distinguish their conduct or
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the employer’s treatment of them for it.” Id. (quoting Ercegovich, 154 F.3d at 352). However,
the Court need not substitute exacting consideration of these factors for its common-sense
judgment. “Rather, to determine whether two individuals are similarly situated with regard to
discipline, we ‘make an independent determination as to the relevancy of a particular aspect of
the plaintiff’s employment status and that of the [proposed comparable] employee.” Id. (quoting
Ercegovich, 154 F.3d at 352).
This precedent counsels against sweepingly excluding any evidence of allegedly
commonplace workplace profanity. Instead, the Court will consider the evidence to which Pepsi
objects on a case-by-case basis, considering both the specificities of the alleged statements and
the employees who purportedly voiced them.
Buddy Powell’s alleged cursing at manager Nickey Winsett

III.

Baskin presents testimony that Buddy Powell, a white employee, cursed at a member of
management in a discussion about his job performance: Powell allegedly said, “F--- you,” to
manager Nickey Winsett. The company emphasizes that while Baskin made his comment in the
presence of several route sales team members, Powell’s alleged outburst occurred in a private
conversation between only Winsett and himself. Despite this distinction, the Court nonetheless
finds that Powell and Baskin engaged in acts of “comparable seriousness.” The two were subject
to the same prohibition against abusive language, as published in Pepsi’s employee handbook.
(See Deposition of Andrea Douglas, Docket No. 49-1, at 60:15-61:9; Exhibit 8.) Moreover,
although other employees witnessed Baskin’s comment, Powell’s language was arguably more
aggressive and offensive. Accordingly, the differences in the Powell statement do not negate its
relevance.

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Pepsi also insists that this alleged incident does not constitute evidence that Baskin and
Powell were similarly situated, as Winsett was not Powell’s direct supervisor. Rather than
contesting this point, Baskin attributes it to a formality; regardless of the official hierarchy, Pepsi
managers often assumed responsibilities assigned to other managers. For example, Bo Shell
recommended commission adjustments despite this being outside his job description. (See
Deposition of Andrea Douglas, Docket No. 49-1, at 85:10-86:2.) More germane to this action,
Winsett—who was not Baskin’s official supervisor—once signed a disciplinary action form
rebuking Baskin for failing to check certain dates on his product. (See Docket No. 4902,
Disciplinary Action Form 170.)
These incidents indicate that Pepsi managers did not rigidly adhere to an organizational
chart, but instead occasionally oversaw employees beyond the official scope of their supervision.
This flexibility informs the Court’s conclusion that whatever their official relationships to Baskin
and Powell, both Winsett and Hines were members of management who served general
supervisory roles.

Accordingly, Powell’s alleged cursing at Winsett shares comparable

seriousness with the Baskin-Hines incident and may be admitted.
IV.

Evidence that Jared Hines has cursed in front of other Pepsi employees
Pepsi argues that evidence that Hines cursed in front of other employees should not be

admitted, as it is both irrelevant and unduly prejudicial. According to Pepsi, such evidence has
little to do with Baskin’s alleged insubordination. To the extent that Pepsi refers to Hines’
interaction with Baskin during the meeting of June 5, 2012, the Court disagrees for the reasons
described in Subsection I, infra. The Court will consider any additional circumstances wherein
Hines allegedly used profanity on a case-by-case basis.

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V.

Manager Bo Shell’s allegedly cursing at an employee
Baskin points to the testimony of Ashley Williams, a female driver. Williams avers that

although she filed a complaint after Shell called her a “bitch,” Pepsi took no action. (See Docket
No. 26-1, Ashley Williams Declaration, at ¶ 14.) Notwithstanding the language’s debasing
nature to female employees, the company contends that this conduct was not “motivated by an
illegal or improper factor, such as race.” (See Docket No. 45-1 at 4.) As an initial matter, the
Court rejects Pepsi’s characterization of Shell’s purported language, given its debasing nature to
female employees.
Pepsi further maintains that this incident does not involve insubordination in the manner
of Baskin’s cursing at Hines and that its prejudicial effect therefore outweighs any probative
value. The Court disagrees, finding that this incident is of comparable seriousness to the BaskinHines episode. In mixed-motive discrimination cases, “proof of discriminatory motive is critical,
although it can in some situations be inferred from the mere fact of differences in treatment.”
Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996) (quoting Int’l Bhd. of Teamsters v. United
States, 431 U.S. 324, 355 n.15 (1977)).

Although Shell held a management position, his

statement directly degrading a coworker in violation of Pepsi’s workplace policy remains of
comparable seriousness to the instant situation. Evidence that the company failed to respond to
Williams’ complaint could indicate a disparity wherein white employees receive more lenient
discipline than their black coworkers. Accordingly, the Court will admit such evidence.
VI.

Evidence of an office manager regularly cursing
At deposition, Baskin testified that Tonya Turner, a white office manager, cursed “almost

daily.” (Arthur Baskin Deposition, Docket No. 25-5 at 182:1-183:25.) Although the parties’

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briefings indicate that Turner cursed during conversation with Pepsi’s corporate office, the Court
understands Baskin’s testimony to refer to conversation within the Paducah office after such
phone calls. (See Arthur Baskin Deposition, Docket No. 25-5 at 183:1-7 (“She didn’t say that
she was – you know, I don’t know if she was saying it to – she wasn’t talking to them on the
phone saying she’s sick and tired of them. She said it to us when she got off the phone, she’s
sick and tired of them – bleep – down there in Marion.”).) Regardless, Baskin contends that such
evidence demonstrates a general tolerance of profanity in Pepsi’s workplace culture, indicating
that the Baskin-Hines episode was not outside the norm.
Although this evidence perhaps denotes a workplace culture where coarse language was
commonplace, the Court cannot say that Tucker’s general use of curse words is relevant.
Moreover, the conversation that Baskin recounts is not of comparable seriousness to the BaskinHines incident. Assuming that Tucker made the comment at issue, there is no indication the
corporate representatives in Marion overheard the remarks, making them less confrontational
than those discussed above. Rather than attempting to provoke a reaction, Turner’s comments
were more likely an attempt to merely vent frustration.

Because this exchange was not

necessarily a hostile one, evidence of it will not be admitted.

VII.

Buddy Powell’s alleged inappropriate statements to Pepsi customers

Baskin has submitted portions of the deposition of Wilma Parker, the manager of two
Drury hotel properties that Pepsi employees serviced. Parker states that she complained to Pepsi
after Buddy Powell disparaged hotel staff while on a maintenance call. According to Parker,
Powell called them “all menopaused [sic] women and, you know, that don’t go well with a bunch
of housekeepers.” (Wilma Parker Deposition, Docket No. 26-11, at 8:3-19.)

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The Court will not admit evidence of this incident. Powell’s alleged remarks were, at
best, untoward; however, they included no profanity, nor were they directed at his coworkers or
other Pepsi personnel. This purported incident is simply too distinct to offer insight into or
contrast with the Baskin-Hines incident. Therefore, the Court agrees with Pepsi that Rule 403
counsels against its admission
VIII. Evidence that Pepsi did not respond to Ashley Williams’ compliant against Bo
Shell
As stated above, Pepsi employee Ashley Williams professes that although she filed a
complaint charging that manager Bo Shell called her a “bitch,” Pepsi failed to respond. (See
Docket No. 26-1, Ashley Williams Declaration, at ¶ 14.) The Court rejects Pepsi’s attempt to
distinguish this episode from the Baskin-Hines incident. Because the two occurrences are of
similar seriousness, the Court will admit evidence of Pepsi’s alleged inaction.

IX.

Evidence that supervisors reacted poorly only when Natasha Lowery and Ashley
Williams helped Baskin rather than white employees
Pepsi next points to the testimony of Pepsi employee Natasha Lowery, who stated that

supervisors chastised Williams and herself—both African-American females—when they
attempted to help Baskin on the job, but did not react when they aided white employees in a
similar fashion. (See Declaration of Natasha Lowery, Docket No. 26-2, at ¶ 4.)
Lowery’s statement is properly characterized as “other acts” evidence that “consists of
testimony . . . of discrimination by the employer against non-party employees.” Griffin v.
Finkbeiner, 689 F.3d 584, 598 (6th Cir. 2012). Baskin does not allege that Michael Jett and
Mikle Stanly, the supervisors who allegedly reprimanded Williams and Lowery, participated in
the decision to terminate his employment. However, “[t]he Supreme Court has instructed lower
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courts not to apply a per se rule excluding ‘other acts’ testimony from non-parties alleging
discrimination by supervisors who did not play a role in the challenged decision.” Id. (citing
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 380-91 (2008)). Instead, the analysis
hinges upon how closely the “other acts” evidence relates to the plaintiff’s own situation and
theory of the case. Id. (citing Sprint, 552 U.S. at 388).
Here, the Court is satisfied that the managers’ reactions to similarly situated AfricanAmerican employees are sufficiently close in geographic and temporal proximity to the
discrimination of which Baskin complains. See id. (favorably citing Bennett v. Nucor Corp., 656
F.3d 802, 809-10 (8th Cir. 2011) (approving of the district court’s approach of evaluating
whether each incident involved “the same place, the same time, the same decision makers, or
whether it’s such that the people who are making the decisions reasonably should have known
about the hostile environment” (internal quotation marks omitted), cert. denied, 132 S. Ct. 1807
(2012); Elon v. Jackson, 544 F. Supp. 2d 1, 8 (D.D.C. 2008) (listing as factors “whether such
past discriminatory behavior by the employer is close in time to the events at issue in the case,
whether the same decisionmakers were involved, whether the witness and the plaintiff were
treated in a similar manner, and whether the witness and the plaintiff were otherwise similarly
situated.”).
To the extent that the factfinder determines Lowery’s account to be credible, it depicts
Baskin’s workplace as one in which black employees were treated differently—and more
harshly—than white employees. The Court will thus admit Lowery’s perception of the divergent
reactions of Pepsi managers to white and black employees.

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X.

Evidence that Pepsi permitted Jeremy Hankins to hold a second job despite
company policy to the contrary
Baskin contends that Pepsi permitted Jeremy Hankins, a white employee, to maintain a

second job, and even accommodated his schedule accordingly, despite company policy
prohibiting “moonlighting.” Baskin contends that this evidence indicates Pepsi’s failure to apply
workplace rules to white employees. The Court, however, must disagree. Importantly, Baskin
offers no evidence that an African-American employee attempted to secure or sustain additional
employment. Baskin has thus identified no similarly situated African-American employee who
was treated differently from Hankins in this regard.

Baskin may not produce speculative

evidence that an African-American employee would be denied this opportunity. Because this
evidence has little relevance to the workplace discrimination claim at issue and serves only to
confuse the issues, it will not be admitted at trial.
Baskin’s wage claim filed with the Kentucky Labor Cabinet, which subsequently
ordered Pepsi to remit backpay

XI.

Baskin seeks to introduce evidence that in February 2012, the Kentucky Labor Cabinet
determined that Pepsi owed him backpay, having failed to increase his wages in accordance with
the raises to which he was entitled. No evidence suggests that white employees failed to
encounter similar issues during their employment with Pepsi. Although Baskin speculates this
proves that Pepsi targeted him for mistreatment, the Court cannot agree with this conclusion.
This evidence will be excluded.

XII.

Evidence of problems with Baskin’s paycheck that were ultimately resolved
through Pepsi’s Human Resources department

According to Baskin, Pepsi’s records indicate the company’s failure to pay his minimum
weekly pay guarantee beginning in 2010. He again argues that this evidence demonstrates that
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Pepsi failed to apply fundamental personnel rules to Baskin and instead targeted him for
mistreatment. For similar reasons to those mentioned above, the Court will not admit this
evidence, there being no indication that any such complications arose due to Baskin’s race.
XIII. Evidence that after Pepsi terminated Baskin, the company generated a false
rumor that Baskin had stolen money
Baskin alleges that after he was fired, Hines attempted to besmirch his reputation by
falsely announcing that video surveillance had captured Baskin stealing money from a vending
machine. (Lowery Decl. at 2 ¶ 9; Williams Dep. at 35:1-20.) Baskin’s attempt to introduce such
evidence suggests a “cat’s paw” theory of liability. “In a cat’s paw case, the plaintiff seeks ‘to
hold [his] employer liable for the animus of a supervisor who was not charged with making the
ultimate employment decision.” Shazor v. Prof’l Transit Mgmt., Ltd., 744 F.3d 948, 955 (6th
Cir. 2014) (citing Staub v. Proctor Hosp., 562 U.S. 411 (2011)). However, such a theory cannot
apply here. A plaintiff who propounds such a case must satisfy two elements: first, that the
supervisors intended to cause an adverse employment action for discriminatory motives, and
second, that those discriminatory actions proximately caused the ultimate employment action.
Id. The Court first notes that Hines’ alleged falsehood exposes no explicit discriminatory
animus. No evidence indicates that Hines mentioned or considered Baskin’s race at this point.
Furthermore, even assuming that discriminatory animus motivated Hines to disparage Baskin, he
could not have done so intending to cause Pepsi to fire Baskin, who had already been terminated.
There is no proof that Hines participated in the adverse employment decision. Accordingly,
evidence of the rumor that Baskin alleges will not be admitted.

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XIV. Evidence that Nickey Winsett referred to Baskin as “that black SOB”
Finally, Pepsi argues that Baskin should not be permitted to introduce evidence that
former manager Nickey Winsett referred to him as “that black SOB.” Some evidence suggests
that Pepsi’s management structure permitted shared supervision of employees; however, Baskin
does not submit that Winsett consulted on or contributed to the decision to terminate him. The
record does not indicate that those who decided to terminate Baskin were of Winsett’s remarks.
Moreover, Baskin does not allege that an adverse employment action followed Winsett’s
statement. This evidence could perhaps point to occasional racist comments made at Baskin’s
former workplace. However, the Court perceives no connection between Winsett’s alleged
comments and Baskin’s termination. Consequently, such evidence will be excluded.
CONCLUSION AND ORDER
The Court having considered the parties’ arguments and being otherwise sufficiently
advised, Pepsi’s motion in limine, (Docket No. 45), will be GRANTED IN PART AND
DENIED IN PART in accordance with the above discussion.

January 30, 2015

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