Drummond v. Murray-Calloway County Public Hospital Corporation
MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 11/17/2021. Plaintiff's Objections to Defendant's Proposed Witnesses and Exhibits, 54 , are OVERRULED. cc:counsel (KJA)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 5:19-CV-42-TBR
PUBLIC HOSPITAL CORPORATION,
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff Laura Drummond’s Objections to Defendant’s
Proposed Witnesses and Exhibits, [DN 54]. Defendant Murray-Calloway County Public Hospital
Corporation (“Hospital”) has responded, [DN 60]. For the reasons set forth herein, the Court will
overrule Drummond’s objections.
This action stems from Drummond’s employment with and termination from the
Hospital. [DN 1-1]. She alleges that the Hospital violated the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601, et seq., by interfering with her right to FMLA-protected leave and
retaliating against her for exercising her rights under the FMLA. [DN 1-1, pp. 4–5]. She further
alleges that the Hospital violated the Kentucky Civil Rights Act (“KCRA”), KRS § 344, et seq.,
by failing to provide her with reasonable and necessary accommodations—namely, the ability to
work no more than eight hours a day, as directed by her physician. [DN 1-1, pp. 5–6]. These
claims have survived summary judgment. [DN 57].
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Drummond now objects to the introduction of any evidence related to her subsequent
employment at Fast Pace Health Urgent Care (“Face Pace”). [DN 54, pp. 1–5]. Specifically, she
seeks to exclude evidence that she was terminated from Fast Pace after eleven months due to her
unsatisfactory job performance. Id. Drummond also objects to the introduction of portions of her
Hospital personnel file, including notes about her work performance and certain disciplinary
actions. Id. at 5–8. The Court addresses each objection in turn.
A. Evidence Related to Drummond’s Subsequent Employment
As noted above, Drummond seeks to exclude evidence that she was terminated from Fast
Pace after eleven months due to her unsatisfactory job performance. Id. at 1–5. She argues that
such evidence is (1) irrelevant; (2) impermissible character evidence; (3) impermissible for
impeachment purposes; and (4) unfairly prejudicial, likely to confuse the jury, and likely to
unnecessarily lengthen the trial. Id. at 2. In response, the Hospital argues that Drummond’s
voluntary termination from her replacement employment is relevant to the Hospital’s argument
that Drummond failed to mitigate her damages. [DN 60, p. 3–5]. The Hospital also argues that
the evidence is relevant for impeachment purposes because Drummond stated in her written
discovery responses that she was terminated from Fast Pace for “not meeting company goals,”
and she made similar comments in her deposition. Id. at 3–4.
The Court agrees that the evidence related to Drummond’s termination from Fast Pace
may be relevant to the question of whether Drummond properly mitigated her damages. The
Hospital argues that any lost wages were completely mitigated once Drummond began
employment with Fast Pace on November 6, 2018, at a higher rate of pay than she received at the
Hospital. Id. at 3. However, Drummond was terminated from Fast Pace on October 31, 2019.
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Records from Fast Pace indicate that her termination resulted from “unprofessional behavior,”
“several write-ups,” “negative behavior,” and her creation of “an unpleasant work environment.”
[DN 60-2]. The Hospital argues that this amounts to a voluntary termination, and as a result,
Drummond failed to mitigate her damages.
The Fourth Circuit tackled a similar issue in Brady v. Thurston Motor Lines, Inc., 753
F.2d 1269 (4th Cir. 1985) in the context of a Title VII discriminatory termination claim. In that
case, two employees had been wrongfully terminated but found comparable employment soon
after. Id. at 1272. However, both employees were terminated from their new positions for
willfully violating the new employers’ company rules and policies. Id. The Fourth Circuit
ultimately held that the two employees were not entitled to back pay for the period following
these for-cause terminations. Id. at 1280. The court explained that the employees were not only
required to use reasonable diligence to find suitable replacement employment, they were required
to use reasonable diligence to maintain that employment. Id. at 1277. When a wrongfully
discharged employee “voluntarily terminates suitable, interim employment, he has freely chosen
to incur a loss of earnings, thereby failing to use reasonable diligence in the mitigation of
damages.” Id. at 1278 (citations omitted). A “voluntary termination” includes voluntarily quitting
a new position, but also being terminated for violating the employer’s rules and policies. Id. at
1278. The Sixth Circuit has cited Brady with approval. See Thurman v. Yellow Freight Systems,
Inc., 90 F.3d 1160, 1169 (6th Cir. 1996) (“[A]n employee’s discharge for cause due to his wilful
[sic] violation of company rules will toll backpay.”). Accordingly, the Court finds that, to the
extent Drummond seeks lost wages for the period following her termination from Fast Pace, the
reason for that termination is relevant. See generally Fed. R. Evid. 401.
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For this reason, the evidence at issue is not impermissible character evidence, as
Drummond argues. Under Federal Rule of Evidence 405, “[e]vidence of a person’s character or
character trait is not admissible to prove that on a particular occasion the person acted in
accordance with the character or trait.” The Hospital intends to introduce evidence of
Drummond’s termination from Fast Pace to show that she failed to mitigate her damages, not
that she “acted in accordance with” any particular character trait.
Further, to the extent Drummond argues that evidence of her termination from Fast Pace
is impermissible for impeachment purposes, the Court finds said objection to be premature.
Depending on Drummond’s testimony at trial, the Hospital may inquire into her prior sworn
statements, if they are inconsistent with her testimony in court. See Fed. R. Evid. 608; Fed. R.
Evid. 801(d)(1)(A). If the Hospital attempts to use extrinsic evidence to further attack
Drummond’s character for untruthfulness, the Court will address any objections at that time.
Lastly, the Court finds that any prejudicial impact of this evidence does not substantially
outweigh its probative value. Under Federal Rule of Evidence 403, relevant evidence may be
excluded if “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.” Drummond argues that evidence of her
termination from Fast Pace is unfairly prejudicial and will confuse the jury and waste the Court’s
resources. For support, she cites to Stokes v. Xerox Corp., No. 05-71683, 2008 WL 275672 (E.D.
Mich. Jan. 28, 2008). However, in that case, the district court found that the probative value, if
any, of an employee’s unrelated termination nine years earlier would be “greatly outweighed by
the danger of unfair prejudice and confusion of the issues and would likely mislead the jury.” Id.
at *9 (citing Fed. R. Evid. 403). Here, however, the Hospital seeks to introduce evidence of a
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subsequent for-cause termination, which the Court has already held to be relevant to the issue of
damages. This issue may extend the length of the trial and require the parties to present
additional evidence related to Drummond’s employment with Fast Pace; however, the Court is
not convinced that the necessary litigation of damages will “waste” judicial resources as
Drummond contends. Further, the Court believes any threat of juror confusion can be mitigated
with a proper limiting instruction, if necessary.
In sum, the Court finds that evidence relating to Drummond’s termination from Fast Pace
is relevant to the Hospital’s defense that Drummond failed to appropriately mitigate her damages
and such evidence may be admitted at trial. Drummond’s objection to the introduction of this
evidence will be overruled.
B. Drummond’s Disciplinary Records
Drummond also objects to the introduction of portions of her Hospital personnel file,
including notes about her work performance and certain disciplinary actions. [DN 54, pp. 5–8].
The documents at issue are listed in Drummond’s brief, and include documents ranging from
“Notes regarding Drummond’s performance” to “verbal warning, patient complaint,” to “Written
Warning.” Id. at 5–6. The documents hint at issues with attendance and time records, the “failure
to send specimens to the lab,” and “prescription refill requests,” among other things. Id.
Drummond argues that these documents are (1) irrelevant; (2) impermissible character evidence;
and (3) unfairly prejudicial and confusing to the jury. Id. at 6. In response, the Hospital argues
that this evidence is relevant to Drummond’s claim that she was unsuccessful in securing other
employment with the Hospital after her termination due to her alleged disability and FMLA
leave request. [DN 60, pp. 6–7].
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The Court finds that the documents at issue may be relevant to Drummond’s argument as
to why she was not rehired by the Hospital into another LPN vacancy. She argues that she was
not chosen for any vacancies because the Hospital’s hiring managers were aware that she
intended to take several weeks of FMLA leave in the immediate future. Drummond has raised
this issue in her filings with this Court. See, e.g., [DN 40, pp. 10–11]. If she makes the same
argument at trial, the disciplinary records—which were apparently also available to the hiring
managers—would be relevant to rebut her argument. In other words, the records would provide
other non-discriminatory, performance-based reasons for not rehiring Drummond.
If the documents at issue are introduced for this reason, rather than to show that
Drummond “acted in accordance with” a character trait, they do not constitute impermissible
character evidence. See Fed. R. Evid. 405. At this time, there is no indication that the Hospital
intends to introduce the disciplinary records to show that Drummond “acted in accordance with”
any particular character trait.
Lastly, the Court finds that, at this time, any prejudicial impact of this evidence does not
substantially outweigh its probative value. On this point, Drummond argues that the disciplinary
records will confuse the jury and will “substantially and unnecessarily extend the length of trial.”
[DN 54, p. 7]. However, at this time, the Court finds that the limited risk of jury confusion can be
addressed with an appropriate instruction, and the presentation of such evidence is not a waste of
The Court therefore finds that evidence relating to Drummond’s disciplinary records may
be relevant and admissible, depending on the other evidence and argument presented at trial.
Drummond’s objection to the introduction of this evidence will be overruled.
Case 5:19-cv-00042-TBR-LLK Document 61 Filed 11/18/21 Page 7 of 7 PageID #: 627
For the reasons set forth above, Plaintiff’s Objections to Defendant’s Proposed Witnesses
and Exhibits, [DN 54], are OVERRULED.
November 17, 2021
cc: Counsel of Record
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