Shelton v. Board of Supervisors of Southern University and Agricultural and Mechanical College et al

Filing 93

RULING AND ORDER... Defendants 61 motion in limine is GRANTED in part and DENIED in part. Sheltons 62 motion in limine is GRANTED in part and DENIED in part. Defendants 90 motion to strike is GRANTED. Defendants 91 motion to supplement witness list is GRANTED.. Signed by Judge James J. Brady on 1/23/2012. (LSM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JOSEPH CEDRIC SHELTON
CIVIL ACTION
VERSUS
NO. 09-968-JJB
BOARD OF SUPERVISORS OF SOUTHERN
UNIVERSITY AND A&M COLLEGE, ET AL.
RULING AND ORDER ON MOTIONS IN LIMINE, MOTION TO STRIKE WITNESS,
AND MOTION TO SUPPLEMENT WITNESS LIST
Before the Court are several motions filed in advance on trial in this matter, currently
scheduled for January 23, 2012. Oral argument is unnecessary. The Court has jurisdiction over
this case under 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claims under
28 U.S.C. § 1367.
I.
Currently pending for trial are numerous claims filed by plaintiff Joseph Cedric Shelton
against his former employer, the Board of Supervisors of Southern University and Agricultural
and Mechanical College, two of its members, Tony Clayton and Kassie Freeman, and a former
co-worker, Ernie Hughes.

The allegations arise out of Shelton’s termination from his

employment at the university under auspices of budget cuts. The Court will conduct a trial on
January 23, 2012 on Shelton’s abuse of rights and Title VII claims against the Board, his § 1983
and abuse of rights claims against Freeman and Clayton, and his defamation claim against
Hughes.
The current motions address the following: the defendants filed a motion in limine (Doc.
61) to exclude some of Shelton’s proposed trial exhibits, to which Shelton filed an opposition
(Doc. 66); Shelton filed a motion in limine (Doc. 62) to prevent testimony regarding his
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bankruptcy records, tax records, and business records from another job, to which the defendants
filed an opposition (Doc. 67); defendants’ motion to strike one of plaintiff’s proposed witnesses
(Doc. 90); and defendants’ motion for leave to supplement their witness list (Doc. 91).
A. Defendants’ Motion in Limine
Defendants move to exclude plaintiff’s proposed exhibits 6 and 7 on the basis of the
work product doctrine of the attorney-client privilege. The first is a letter from the Board’s
counsel (then and now) to then-Southern University president, Dr. Ralph Slaughter, providing
him with information regarding employees’ sexual harassment claims. The other is a letter
provided by an outside law firm to Slaughter giving him detailed legal advice on the sexual
harassment claims, though the firm supplying the letter did not ultimately serve as counsel in
those matters or in this case.
Plaintiff argues the attorney-client privilege either does not exist because he is the subject
of the letters or was waived because those letters were introduced in a prior federal court
proceeding. Federal Rule of Evidence 501 dictates that federal common law governs the scope
of privilege claims on claims presenting a federal question, but state privilege law governs for
state law claims. However, Fed. Rule Evid. 502(f) makes clear that the applicability of the
attorney-client privilege in federal court proceedings is governed by Rule 502 alone without
regard to what source of law provides the rule of decision. Plaintiff’s arguments, with no citation
of any applicable law, that he may avoid the privilege because he is the subject of the letters or
that Dr. Slaughter will himself testify provide no basis for not applying the privilege. However,
Rule 502(a) makes clear that a disclosure in a federal court proceeding waives the privilege and
work-product protection as it might apply to the disclosed material. Subject to plaintiff laying a
proper foundation showing that these letters have indeed been previously disclosed in federal
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court litigation, they will not be inadmissible on the basis of the attorney-client privilege or the
work-product protection. 1
Defendants next object to plaintiff’s proposed exhibits 13 and 14, which are leave
applications he submitted to Southern in 2007 and 2009, respectively. The parties’ briefing on
this matter misses the critical issue. Neither party discusses how plaintiff could possibly show
his damages for mental pain and anguish without the testimony of the prescribing and treating
physician. His 2007 and 2009 leave applications and return to work notices, originally proposed
as plaintiff’s exhibits 13 and 14 and now marked in plaintiff’s final trial exhibit list as Exhibits 71 through 8-2, give very minimal support for the injuries he suffered as it relates to the retaliation
claim because they simply do not provide enough information to make them relevant in and of
themselves. The physician who signed his return-to-work notice, Dr. Banks, was not listed in the
original proposed witness list and, as will be explained more fully below, will not be allowed to
testify in this matter. Absent Dr. Banks’ testimony discussing the treatment plaintiff received
and his medical opinion on the injuries he may have suffered, there appears to be little chance
witness testimony—aside from plaintiff’s own—could provide a basis for introducing them. The
Court therefore concludes that plaintiff has failed to demonstrate the relevancy of these exhibits,
and thus proposed exhibit 14 (final exhibits 8-1 and 8-2) are inadmissible to show damages. If
plaintiff at trial seeks to introduce them in another manner or for another purpose, the Court
remains open to their admissibility.
Defendants also object to plaintiff’s proposed exhibit 21, which is a transcript of
plaintiff’s testimony in the 2007 litigation between Dr. Slaughter and Southern. This testimony
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Neither party discusses how the letters were obtained for purposes of this matter. It may be that even if they
cannot be shown to have been used in a prior matter, their disclosure in this matter waives the privilege.
Insufficient briefing on this issue adds support to the Court’s decision to reserve ruling on the admissibility of the
letters until a proper foundation has been laid at trial.

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provided the primary basis for plaintiff’s action, as federal court testimony is undoubtedly
protected by the First Amendment and thus retaliation for such testimony is illegal under federal
law. In the current exhibit list, the only entry regarding Slaughter litigation testimony is Exhibit
P-11. That exhibit does not show testimony from Shelton; it only shows testimony from Linda
Carr and Cynthia Robinson. Their testimony is patently irrelevant. The Court is therefore in no
position to determine the admissibility of Shelton’s testimony because plaintiff’s counsel
attached the wrong portion of the Slaughter transcript to the final exhibit list.
Next, defendants assert that plaintiffs’ medical records in proposed exhibit 24 should be
excluded for several reasons. First, they claim plaintiff never made them available during
discovery; second, they claim plaintiff never listed his treating physician or any other proper
witness to testify about the records; and third, the Court has already dismissed Shelton’s
intentional infliction of emotional distress claim. Plaintiff’s final exhibit list lists his medical
records as Ex. P-25, but fails to actually include the records in the court filing. (See Doc. 84).
This, of course, means plaintiff cannot introduce the medical records at trial. Moreover, because
plaintiff cannot call Dr. Banks as a witness, they are doubly excludable for lack of a suitable
witness to discuss them. Plaintiff’s plea that the medical records are essential to his case for
damages is irrelevant because plaintiff has failed in numerous ways to present them as
admissible evidence to this Court.
Finally, defendants object out of hand to plaintiff’s demonstrative exhibits to be used at
trial, but this objection is premature and will not be considered at this time. Defendants’ motion
in limine (Doc. 61) is therefore GRANTED in part and DENIED in part.
B. Plaintiff’s Motion in Limine

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Shelton seeks a ruling that his bankruptcy, tax, financial, and business records are
inadmissible as irrelevant. Because his claim for lost wages relates to his income from jobs, the
only records relevant here are: (1) sources of wages and the amounts thereof; and (2) the dates
relating to the work done to earn those wages as they may pertain to plaintiff’s duty to mitigate
losses. Because neither party bothered to cite any evidence or attach any documentation, the
Court can only guess at what these alleged records entail. Charged with that task, the Court finds
the bankruptcy records irrelevant, as Shelton’s overall financial status is irrelevant to this case.
His tax, financial, and business records are relevant only as described above. Whether and to
what extent Shelton consistently maintained dual employment while working at Southern or
picked up a new job after his termination are unknown at this time, so the extent to which any
records bear on these issues likewise remains unknown and must await a future determination.
Thus, these records are only relevant as they relate to Shelton’s duty to mitigate damages
resulting from his termination. Shelton’s motion in limine is therefore GRANTED in part and
DENIED in part.
C. Defendants’ Motion to Strike Witness
Defendants’ motion to strike is GRANTED. Shelton did not mention Dr. Raynado Banks
as a witness in the uniform pretrial order (Doc. 55), yet now attempts to insert him as a witness—
allegedly as an expert—on the eve of trial (Doc. 83, p. 2). Such a late addition to the witness list
without good cause shown is not permitted under Fed. Rule Civ. P. 26(a)(3)(B). (See also
Uniform Pretrial Notice, Doc. 35, § II.5, p. 4). Dr. Banks must therefore be struck from
plaintiff’s available witness list and will not be permitted to testify at trial.
D. Defendants’ Motion to Supplement Witness List

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Defendants’ motion for leave to supplement their witness list is GRANTED. In the
pretrial order, plaintiff listed as a may-call witness “Jocelyn Lewis” (Doc. 55, p. 19), and a
former co-defendant, the Southern University System Foundation, listed as a may-call witness
“Jocelyn Akins” (Doc. 55, p. 20). Averring that the two Jocelyns are indeed the same person,
defendants seek leave to amend their witness list to allow her testimony on their behalf. Because
the Court recently dismissed the Foundation from this litigation, the Court finds defendants have
shown good cause. The Foundation and Hughes both had defamation claims asserted against
them, but the Foundation recently had that claim dismissed whereas the claim against Hughes
remains pending. No surprise or unfair prejudice will result from her testimony, unlike the
proposed testimony of Dr. Banks, since the witness was already listed and her testimony has long
been anticipated by both sides. The Court will therefore permit defendants to amend their
witness list to add Jocelyn Akins as a witness.
ORDER
Accordingly, defendants’ motion in limine (Doc. 61) is GRANTED in part and DENIED
in part. Shelton’s motion in limine (Doc. 62) is GRANTED in part and DENIED in part.
Defendants’ motion to strike (Doc. 90) is GRANTED. Defendants’ motion to supplement
witness list (Doc. 91) is GRANTED.
Signed in Baton Rouge, Louisiana, on January 23, 2012.

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

JAMES J. BRADY, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

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