Corley v. State Of Louisiana Through Division Of Administration, Office Of Risk Management

Filing 261

RULING denying 210 , 211 , 212 , 225 , 226 and granting 223 , 224 Motions in Limine.. Signed by Magistrate Judge Stephen C. Riedlinger on 10/17/2011. (CMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

IDELLA CORLEY
VERSUS

CIVIL ACTION

STATE OF LOUISIANA, THROUGH
DIVISION OF ADMINISTRATION,
OFFICE OF RISK MANAGEMENT, ET
AL

NUMBER 06-882-SCR

RULING ON DEFENDANTS’ MOTIONS IN LIMINE
Before the court are nine Motions in Limine filed by the
defendants.

Plaintiff has filed oppositions to the motions, which

have all been considered.1
1.

Defendants’ Motion in Limine to Exclude Evidence
Regarding Failure to Accommodate2

In this motion the defendants seek to exclude from the trial
any arguments or evidence that they allegedly failed to accommodate
the

plaintiff’s

anticipate

the

health
plaintiff

condition.
will

1

Defendants

testify

that

stated

they

they

failed

to

In her oppositions the plaintiff consistently referred
Plaintiff’s Objections to the Magistrate Judge’s Report. Record
document number 216.
The court issued a Ruling on Motion for
Summary Judgment, record document number 208, since parties
consented to proceed before a magistrate judge pursuant to 28
U.S.C. § 636(c). Plaintiff argued that the findings which resulted
in partially granting the defendants’ Motion for Summary Judgment
were erroneous and contrary to law. Plaintiff’s Objections to the
Magistrate Judge’s Report, to the extent they could be considered
as a Rule 59, Fed.R.Civ.P., motion, were denied. Record document
number 260.
2

Record document number 210.

accommodate her medical condition in their assignment of her work
duties. Defendants argued that such evidence should be excluded on
the following grounds: (1) the plaintiff did not bring a claim
under the Americans With Disabilities Act (ADA) and the evidence is
irrelevant to the plaintiff’s federal retaliation claims; and, (2)
the admission of this evidence may suggest to the jury that the
plaintiff is claiming a violation of the ADA, resulting in sympathy
for

the

plaintiff

and

unfair

prejudice

to

the

defendants.

Plaintiff has filed an opposition which the court has considered.3
After review of motion the court concludes that it cannot make
this determination prior to trial.
plaintiff’s

medical

Some evidence related to the

conditions/failure

to

accommodate

may

be

relevant as background information or provide context for evidence
related to the plaintiff’s protected activity.

The determination

of relevance and prejudice cannot be resolved until such time as
the plaintiff attempts to introduce some specific evidence on this
subject

at

trial.

If

and

when

the

plaintiff

does

so,

the

defendants may object, for the reasons stated in this motion and/or
other reasons, and a decision can be made based on the nature of
the evidence offered and the context and purpose for which it is
offered.
Accordingly, the ruling on the Defendants’ Motion in Limine to
Exclude Evidence Regarding Failure to Accommodate is denied.

3

Record document number 245.
2

2.

Defendants’ Motion in Limine to Exclude Evidence
Regarding Lost Wages4

In this motion the defendants moved to exclude any arguments
or evidence that the plaintiff suffered lost wages as a result of
the

termination

of

her

employment.

Defendants

argued

that

exclusion of this evidence is appropriate because the plaintiff has
been disabled and unable to work since December 6, 2008. Plaintiff
also has not sought or obtained employment since her termination.
Therefore, defendants argued, she failed to mitigate her damages
and cannot recover any lost wages. Plaintiff opposed the motion in
part based on the argument that the issue of any lost wages is an
issue

for

the

court

to

decide.

Therefore,

the

issue

is

an

award

of

inappropriate for decision on a motion in limine.5
Plaintiff’s

argument

has

merit.

Unlike

compensatory damages, awards of equitable relief such as front and
back pay under Title VII are decided by the court.6
would

not

be

appropriate

to

decide

the

Therefore, it

issue

of

lost

wages/mitigation of damages prior to trial and before the jury

4

Record document number 211.

5

Record document number 246.

6

See, Gamboa v. Henderson, 240 F.3d 1074 (5th Cir.
2000)(unpublished), citing, Allison v. Citgo Petroleum Corp., 151
F.3d 402, 423 n. 19 (5th Cir. 1998); see also, Black v. Pan
American Laboratories, L.L.C., 646 F.3d 254, 263 (5th Cir.
2011)(because back pay is equitable remedy, district court did not
have to empanel an advisory jury, but could decide the back pay
issue itself absent the parties’ agreement to the correct amount).
3

makes a determination on the issue of liability.7
Accordingly, the ruling on the defendants’ Motion in Limine to
Exclude Evidence Regarding Lost Wages suffered as a result of the
plaintiff’s termination is denied.

3.

Defendants’ Motion in Limine to Exclude
Plaintiff’s Testimony Regarding the Cause of Her
Medical Condition8
Defendants

moved

to

exclude

the

plaintiff’s

testimony

regarding a causal connection between the alleged retaliatory
conduct and the psychological damages she claims she suffered as a
result of that conduct.

Defendants argued that the plaintiff’s

testimony on this subject is not admissible under Rule 701,
Fed.R.Evid., which prohibits a lay witness from offering opinions
or inferences that must be based on specialized knowledge under
Rule 702, Fed.R.Evid.

According to the defendants, testimony on

causation or a medical opinion must be based on specialized
knowledge introduced only through a qualified expert witness, not
through a lay witness. Since the plaintiff has not been designated
an expert and cannot qualify as an expert, her testimony is not
admissible based on the restrictions on lay opinion testimony under
Rule 701.

In support of their arguments the defendants relied on

7

At an appropriate time and outside the presence of the jury,
the court will set a time for hearing evidence and argument related
to these issues.
8

Record document number 212.
4

case law from other circuits and district courts.

Plaintiff filed

an opposition which the court has considered.9
Compensatory damages for emotional distress and other tangible
injuries are not presumed from the mere violation of constitutional
or statutory rights.

An award compensatory damages requires

specific, individualized evidence, including how the plaintiff was
personally affected by the discriminatory conduct and the nature
and extent of the harm.

While a plaintiff’s testimony alone may

not be sufficient to support anything more than a nominal damage
award, the Fifth Circuit has not held that medical evidence or
corroborating testimony is required for an award of mental anguish
damages under 42 U.S.C. § 1981a(b)(3). Therefore, the testimony of
a plaintiff alone can support an award for emotional damages.
Migis, supra; Oden v. Oktibbeha County, Miss., 246 F.3d 458, 470-71
(5th Cir. 2001); Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927
(5th Cir. 1996); DeCorte v. Jordan, 497 F.3d 433, 442 (5th Cir.
2007); Williams v. Trader Pub. Co., 218 F.3d 481, 486 (Cir. 5th
2000).
These

cases

make

it

clear

that

lay

testimony

from

the

plaintiff can support an award of psychological damages resulting
from

discriminatory

or

retaliatory

conduct.

Based

on

the

controlling jurisprudence in the Fifth Circuit, the defendants’
Motion in Limine to Exclude Plaintiff’s Testimony Regarding the
9

Record document number 247.
5

Cause of Her Medical Conditions is denied.

4.

Defendants’ Motion in Limine to Exclude
Lay Witnesses Testimony Regarding Causation of
Plaintiff’s Psychological Damages10

Defendants

also

filed

a

similar

motion

to

exclude

the

testimony of other lay witnesses regarding the cause of the
plaintiff’s

psychological

injury

and

damages.

Defendants

essentially cited the same arguments and case law they relied on to
support their motion in limine related to the plaintiff’s testimony
on her psychological damages. Plaintiff filed an opposition urging
the same arguments she made to oppose the previous motion.11
Essentially for the reasons explained in connection with the motion
in limine to exclude the plaintiff’s testimony, this motion must
also be denied.12
Defendants also argued that any testimony from other lay
witnesses should be excluded because it is inherently unreliable,
speculative and not based on first hand knowledge.
is

unpersuasive

as

basis

for

ruling

10

a

motion

in

limine.

Record document number 214.

11

on

This argument

Record document number 249.

12

The cases in the Fifth Circuit show that corroborating
testimony to support the plaintiff’s testimony of her mental
anguish damages can come from lay witnesses such as a co-worker,
parent or spouse. See, Giles v. General Elec. Co., 245 F.3d 474,
488 (5th Cir. 2001); Salinas v. O’Neill, 286 F.3d 827, 832 (5th
Cir. 2002); Denner v. Texas Dept. of Criminal Justice, 2006 WL
2987719 (W.D. Tex. Oct. 16, 2006).
6

Defendants can raise these objections at trial if they believe any
witness’s testimony is speculative, unreliable or not based on
first-hand knowledge.
Accordingly, the defendants’ Motion in Limine to Exclude Lay
Witnesses

Testimony

Regarding

Causation

of

Plaintiff’s

Psychological Damages is denied.

5.

Defendants’ Motion in Limine to Exclude
Evidence Regarding Plaintiff’s Workers’
Compensation Claims13

Defendants anticipate the plaintiff will present evidence or
argument regarding her workers’ compensation claims and argued that
such

evidence

would

be

irrelevant

and

unduly

prejudicial.

Defendants noted that the plaintiff has no longer has a retaliation
or other claim associated with her workers’ compensation claim.
Therefore, any evidence related to this subject is not relevant and
would

prejudice

plaintiff.

the

defendants

by

creating

sympathy

for

the

Plaintiff filed an opposition which the court has

considered.14
Although the plaintiff’s workers’ compensation retaliation
claim was dismissed on summary judgment, it is possible that
evidence related to the plaintiff’s workers’ compensation claims
could be relevant to the plaintiff’s remaining retaliation claim
13

Record document number 213.

14

Record document number 248.
7

and/or the issue of damages.

The better course is to deny the

motion, leaving to the defendant to object when the plaintiff
attempts to introduce some specific evidence on this subject at the
trial.
Accordingly, the ruling on the defendants’ Motion in Limine to
Exclude Evidence Regarding Plaintiff’s Workers’ Compensation Claims
is denied.

6.

Defendants’ Motion in Limine to Exclude
Testimony of Angele Davis, Jerry Luke LeBlanc,
Jean Vandal, and Whitman J. Kling15

Defendants moved to exclude the testimony of Angele Davis,
Jerry Luke LeBlanc, Jean Vandal, and Whitman J. Kling on the ground
that they have no personal knowledge of the plaintiff’s remaining
retaliation claim.
employed

with

the

Defendants noted that Kling and Davis were not
DOA

when

the

employment

actions

at

issue

occurred, and neither LeBlanc or Vandal were personally involved in
the employment decisions underlying the retaliation claim.
Although LeBlanc, Vandal and Davis, were the Commissioner and
Deputy Commissioners during the period of time the plaintiff was
employed with the ORM, the plaintiff has not shown either in the
description of their expected testimony or in her response to this

15

Record document number 223.
8

motion,16 that these DOA officials were decisionmakers or had any
other personal involvement in the employment actions that are the
basis of the plaintiff’s retaliation claim.

Kling was no longer

the appointing authority for the DOA as of March 2005. However, as
to Kling, the plaintiff has shown that he has information about the
grievance process that may be relevant to the retaliation claim.
Accordingly, Defendants’ Motion in Limine to Exclude Testimony
of Angele Davis, Jerry Luke LeBlanc, Jean Vandal, and Whitman J.
Kling is granted as to Davis, LeBlanc and Vandal and the motion is
denied as Kling.

7.

Defendants’ Motion in Limine to Exclude
Evidence of Alleged Discrimination17

Defendants’ moved to exclude the testimony of six witnesses to
the extent the plaintiff intends to call them to testify about
their

own

claims

of

discrimination

and

observations

of

discrimination in the DOA, and their discussions with the plaintiff

16

Record document number 250. Plaintiff gave an identical
description of the testimony of the four witnesses: “To testify to
claims asserted by the parties in this instant suit, policies,
procedures, and practices of the Division of Administration and
discriminatory practices.” Record document number 221. Plaintiff
also gave this same description regarding the testimony of eight
other witnesses, four of which are defendants: Goodson, Graham,
Thompson, Reed, Cardona, McCallum, Batiste, and Toney.
17

Record document number 224.
9

regarding discrimination against blacks in the ORM.18

Defendants

essentially argued that this proposed testimony is irrelevant
because

the

harassment

plaintiff’s

have

been

claims

dismissed,

for

race

and

any

discrimination
testimony

of

and
these

witnesses on those subjects is not relevant to the plaintiff’s
retaliation claim.

Defendants also argued that even if the

testimony is relevant, admission of this evidence would be unduly
prejudicial because the evidence would confuse the jury by creating
mini-trials, and mislead the jury into believing that the plaintiff
has a discrimination claim, which in fact has been dismissed.
Plaintiff filed an opposition which the court has considered.19
Plaintiff relied on her objections to the Ruling on Motion for
Summary Judgment, essentially arguing that the evidence from these
witnesses should not be excluded because it was error for the court
to dismiss her claims for racial discrimination and harassment.
Plaintiff did not explain how any testimony from these witnesses
about their own discrimination claims, their observations of what
they

perceived

to

be

discrimination

18

in

the

DOA,

and

their

The witnesses are Janet Chriss, Naomi Sandres, Albert
Jenkins, Bynie Wells, Janet London and Elfreda Russell. Of these
six witnesses, London and Russell are the two who will testify as
to discussions with the plaintiff about discriminatory treatment of
blacks in the ORM.
Plaintiff also indicated that some of the
witnesses (Chriss, Sandres, Jenkins and Wells) would testify about
the effects of the defendants’ conduct on the plaintiff.
This
motion does not seek to exclude that aspect of their testimony.
19

Record document number 251.
10

discussions with the plaintiff regarding what they believed to be
discrimination against blacks in the ORM, could be relevant to her
retaliation claim.
Accordingly, the Defendants’ Motion in Limine to Exclude
Evidence of Alleged Discrimination from witnesses Janet Chriss,
Naomi Sandres, Albert Jenkins, Bynie Wells, Janet London and
Elfreda Russell is granted.

8.

Defendants’ Motion in Limine to Exclude
Testimony Regarding Plaintiff’s Employment
With Employers Other Than ORM20

Defendants moved to exclude the testimony of eight witnesses
listed to testify about the plaintiff’s job performance and conduct
at other state agencies where she worked prior to her being hired
by the ORM.21

Defendants argued that this type of testimony is not

relevant to the plaintiff’s retaliation claim, and these witnesses
have no personal knowledge of the plaintiff’s claim for retaliation
while she was employed by the ORM.
Plaintiff opposed the motion.22

Plaintiff argued that: (1) it

would be unfair to allow the defendants to present evidence to
support their argument that the plaintiff was insubordinate and

20

Record document number 225.

21

The witnesses are Ward S. Filgo, Angela S. Howard, Linda B.
Lambert, Everette C. Roberts Jr., Cheryl A. Jones, Jennifer
Guillory, Tammy M. Bridges, and Pearlie J. Johnson.
22

Record document number 252.
11

unable to get along with supervisors and co-workers, but not allow
her to present evidence from her former supervisors and co-workers
to rebut this evidence; and, (2) the testimony of these witnesses
is relevant because other evidence shows that her entire employment
history was considered in connection with filling of the Executive
Staff

Officer

determining

position,

what

and

disciplinary

should
action

have
to

been
take.

considered

in

Plaintiff’s

explanation of the relevance of this evidence is persuasive.
Accordingly, the Defendants’ Motion in Limine to Exclude
Testimony Regarding Plaintiff’s Employment with Employers other
Than ORM is denied.

9.

Defendants’ Motion in Limine to Exclude
Plaintiff’s Trial Exhibits23

In this motion the defendants seek to exclude from being
introduced at trial approximately 260 exhibits listed by the
plaintiff.

Plaintiff opposed the motion.24

Although the plaintiff listed hundreds of exhibits, it is not
clear that she will actually offer all of them in evidence.

The

better course is to determine whether the exhibit is admissible if
and when the plaintiff attempts to offer it into evidence during
the trial.

23

Record document number 226.

24

Record document number 253.
12

Accordingly, the Defendants’ Motion in Limine to Exclude
Plaintiff’s Trial Exhibits is denied.

Summary
In summary, the Defendants’ Motion in Limine filed at record
document numbers 210, 211, 212, 213, 214, 225 and 226 are denied;
Defendants’ Motion in Limine filed at record document number 224 is
granted; Defendants’ Motion in Limine filed at record document
number 223 is granted as to LeBlanc, Davis and Vandal and is denied
as to Kling.
Baton Rouge, Louisiana, October 17, 2011.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

13