Herster et al v. Board of Supervisors of Louisiana State University et al

Filing 154

RULING denying 107 Motion in Limine in its entirety, GRANTING in part, DENYING in part, and DEFERRING in part 108 Motion in Limine. Signed by Judge James J. Brady on 9/15/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MARGARET HERSTER AND
SCOTT SULLIVAN
CIVIL ACTION
VERSUS
NO. 13-139-JJB-SCR
BOARD OF SUPERVISORS, ET AL.
RULING ON MOTIONS IN LIMINE
These matters are before the Court on two motions in limine. The first is a motion in
limine (Doc. 107) filed by the Plaintiffs, Margaret Herster and Scott Sullivan (collectively
“Plaintiffs”). The Defendants, Board of Supervisors of the Louisiana State University and
Agricultural and Mechanical College (“Board of Supervisors” or “LSU”), Rod Parker, Ken
Carpenter, A.G. Monaco, Jennifer Normand, Mimi Ruebsamen, and Kimberly Arp (collectively
“Defendants”),1 have filed an opposition (Doc. 110). The second is a motion in limine (Doc.
108) filed by the Defendants. The Plaintiffs have filed an opposition (Doc. 109). Oral argument
is unnecessary. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367.
For the reasons stated herein, this Court DENIES Plaintiffs’ Motion in Limine (Doc.
107) in its entirety, GRANTS in part, DENIES in part, and DEFERS in part the Defendants’
Motion in Limine (Doc. 108).
I.

Plaintiffs’ Motion (Doc. 107)2
a. Issue 1: LSU Audit Papers

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Defendants Parker, Carpenter, and Arp were dismissed by this Court on summary judgment. The dismissed
defendants submitted the motion out of an abundance of caution, in the event that they are brought back into this
litigation.
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The plaintiffs’ motion also sought to preclude the defendants from “referring to, mentioning, or suggesting that tax
payer monies will be used and/or otherwise involved should the plaintiffs prevail.” Doc. 107-3, 1-2. Since the
defendants responded by stating that they “do not intend to argue, mention, or suggest to the jury that a judgment
rendered in favor of Plaintiffs will impact the state budget,” (Doc. 110, 2) the plaintiffs’ request need not be decided
at this time.

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The plaintiffs seek to prohibit the defendants from asserting that the plaintiffs have not
met the threshold burden of demonstrating conduct in violation of law under La. R.S. 23:967.
Specifically, the plaintiffs want to exclude any evidence supporting the defendants’ argument
that LSU did not engage in illegal activity. The plaintiffs claim that such evidence should be
excluded because the defendants failed to produce documents relating to the student fee audit, as
required by a ruling on a motion to compel issued by the Magistrate Judge. Doc. 107-3, 2-3. In
response, the defendants argue that the ruling did not require them to produce anything further,
including the audit papers which the defendants argue are covered by the work-product privilege.
Doc. 110, 2-3. The Court finds that the ruling on Plaintiffs’ Motion to Compel (Doc. 92) did not
require the defendants to supplement their document production to include the audit papers.3
Therefore, the plaintiffs’ request to exclude evidence supporting the defendants’ argument that
LSU did not engage in illegal activity is DENIED.
b. Issue 2: Investigation Notes
The plaintiffs seek to prevent the defendants from asserting the two part affirmative
defense to Herster’s sexual harassment claim. Specifically, the plaintiffs seek to preclude the
defendants from introducing evidence to prove that LSU “acted immediately and conducted a
‘thorough’ investigation of the plaintiff’s complaints,” as required by the first prong of the
defendants’ affirmative defense. Doc. 107-3, 3-4. Similar to the LSU audit papers, the plaintiffs
claim that such evidence should be excluded because the defendants failed to produce notes
taken during LSU’s investigation of Herster’s sexual harassment claim, as required by the
abovementioned ruling. Id. As discussed above, the ruling on the plaintiffs’ Motion to Compel
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The plaintiffs’ Motion to Compel sought, in part, an order “compelling Defendants to fully answer discovery.”
Doc. 40, ¶ 8. The defendants claimed work-product privilege for the audit working papers. Doc. 44, 3 n.3. This
Court did not compel further production from the defendants: “Plaintiffs failed to sufficiently explain how the
defendants’ supplemental production remands deficient. Consequently, an order requiring another supplemental
production is unwarranted.” Doc. 92, 3.

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did not require the defendants to produce further documents, including the investigation notes.
The defendants produced a document summarizing the investigation and such notes were also
withheld on the basis of work-product privilege. Doc. 110, 4-5. Therefore, the plaintiffs’
request to prevent the defendants from asserting the two part affirmative defense is DENIED.
II.

Defendants’ Motion (Doc. 108)
a. Issue 1: Relevance
The defendants seek to exclude the following evidence on the grounds that it is not

relevant. Each piece of evidence will be discussed separately.
(1) “Evidence, testimony, or comment that Defendants violated the FMLA in
connection with Plaintiff Herster’s Fall 2011 leave request, including, but not
limited to, evidence or comment that Plaintiff Herster’s FMLA request was met
with ‘hostility and bitter complaints,’ or any similar comment, that Defendants
‘refused to pay’ Plaintiff Herster for most of the semester following her return to
work, and that Plaintiff Herster was removed ‘from teaching and nearly all of her
duties.’”
The defendants argue that the above evidence is not relevant because the plaintiffs have
not alleged violations of the FMLA; the plaintiffs’ allegations concern retaliation for exercising
rights under the FMLA. Doc. 108-1, 2. The plaintiffs respond by asserting that the FMLA
request itself is necessary to the retaliation claim and “defendants’ reactions thereto, including
evidence of manifest hostility toward Plaintiff’s invocation of FMLA leave and their failing to
pay Ms. Herster, are most definitely relevant to her claims.” Doc. 109, 3. The Court finds that
the evidence listed above is relevant and therefore DENIES the defendants’ request to exclude it.
(2) “Evidence, testimony, or comment regarding sexual harassment or gender
discrimination experienced at LSU by anyone other than Plaintiff Herster,
including but not limited to, the alleged history of sexual harassment and gender
discrimination in the School of Art.”
The defendants argue that the above evidence is not relevant because evidence that others
experienced sexual harassment or gender discrimination “does not have a tendency to make it
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more probable that Plaintiff Herster was subjected to sexual harassment and gender
discrimination while employed at LSU,” and because the alleged sexual harassment or gender
discrimination experienced by others is not a required element of either claim. Doc. 108-1, 3.
Additionally, the defendants state that the plaintiffs have not alleged a chronic or systematic
problem of sexual harassment or gender discrimination at LSU. Id. at 3-4. The plaintiffs
respond by stating that such evidence goes towards proving a hostile work environment. Doc.
109, 4-6. The plaintiffs also state that the evidence is relevant to proving that the defendants
cannot establish their affirmative defense—i.e. the evidence of others being harassed will
demonstrate that the defendants failed to prevent harassment in the plaintiff’s working
environment. Id.
The plaintiffs have failed to show that the evidence in question is more than tangentially
related to Herster’s sexual harassment and gender discrimination claims. The plaintiffs did not
set forth the particular facts supporting the alleged harassment of others. Specifically, the
number of other people subjected to harassment, the temporal and physical proximity of their
alleged harassment to Herster, and the nature and scope of their alleged harassment are facts
necessary to determine the evidence’s relevance. As such, the Court GRANTS the defendants’
request to exclude evidence regarding sexual harassment and gender discrimination experienced
by anyone other than Herster.
(3) “Evidence, testimony, or comment that Plaintiff Herster was subjected to
sexual harassment and gender discrimination by persons other than Rod Parker,
including, but not limited to Ken Carpenter, Kimberly Arp, A.G. Monaco,
Jennifer Normand, Mimi Ruebsamen, Thomas Neff, Michael Book, Steven Beck,
and Jeremiah Ariaz.”
The defendants seek to exclude the above evidence on the grounds that the plaintiffs have
not alleged harassment or discrimination by anyone other than Rod Parker—evidence of

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harassment or discrimination by others “does not make it more probable that Defendant Parker
sexually harassed or discriminated against Plaintiff Herster.” Doc. 108-1, 4-5. The plaintiffs
argue that such evidence is relevant to showing a hostile working environment. Doc. 109, 6-7.
As discussed above, the plaintiffs also claim that this evidence is relevant to disproving the
defendants’ affirmative defense. Id.
As with the evidence concerning harassment of people other than Herster, the plaintiffs
have also failed to set forth the particular facts necessary to demonstrate the relevance of
evidence of harassment by individuals other than Rod Parker. Therefore, the Court GRANTS
the defendants’ request to exclude such evidence.
(4) “Evidence, testimony, or comment about the video produced by Plaintiff
Herster and others regarding LSU and ‘the impact of educational shortfalls and
financial improprieties on students,’ including, but not limited to, the video itself
and all audio recordings, images, and documents related to the video.”
In seeking to exclude this evidence, the defendants claim that it is only relevant to the
plaintiffs’ now-dismissed claim of retaliation for exercising First Amendment rights. Doc. 1081, 6. The defendants also assert that the evidence is not relevant to the plaintiffs’ claim under La.
R.S. 23:967 because the defendants have stipulated to the elements of that claim in which the
evidence may be relevant.4 Id. at 6-7. The plaintiffs respond by asserting that the evidence is
relevant to the claim under La. R.S. 23:967. Doc. 109, 9-10. The Court agrees with the
defendants and therefore GRANTS the defendants’ request to exclude evidence concerning the
video produced by Herster.
(5) “Evidence, testimony, or comment that defendants conspired or were engaged
in a conspiracy to deprive Plaintiffs of their rights under state and federal law.”
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According to the defendants, the plaintiffs must establish that “(1) the School of Art practices violated state law,
(2) [Herster] reported the violation of state law to her employer, (3) [Herster] disclosed or threatened to disclose the
violation of state law, and (4) the alleged retaliatory actions were taken as a result of her disclosure.” Doc. 108-1, 67 (citing La. R.S. 23:967). The defendants stipulate that the plaintiff reported what she believed to be a violation of
state law to her employer and that she disclosed or threatened to disclose that violation further. Id.

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In seeking to exclude this evidence, the defendants claim that it is only relevant to the
plaintiffs’ now-dismissed claim for conspiracy under § 1983. Doc. 108-1, 7. The plaintiffs
respond by asserting that they intend to introduce evidence of the actions of various employees
to prove the Title VII claims against LSU, but that they are unsure what “conspiracy” evidence
to which the defendants are referring. Doc. 109, 11. The Court finds that the abovementioned
conspiracy evidence is not relevant and therefore GRANTS the defendants’ request to exclude it.
(6) “Evidence, testimony, or comment that Plaintiff Herster was denied due
process in connection with the non-renewal of her appointment and that the
process by which her appointment was not renewed was in violation of LSU
policy and procedure.”
In seeking to exclude this evidence, the defendants claim that it is only relevant to the
plaintiffs’ now-dismissed claim for denial of due process under § 1983. Doc. 108-1, 8. The
plaintiffs are unsure what evidence the defendants are referring to and again assert their plan to
introduce evidence of acts of individual employees to prove the Title VII claim. Doc. 109, 11.
The Court is also unsure what evidence the defendants are referring to and therefore DEFERS
this issue until trial.
b. Issue 2: Expert Testimony
The Court makes no ruling on this issue at this time.
c. Issue 3: Exhibits Not Produced in Discovery
The defendants seek to exclude a variety of exhibits on the plaintiffs’ exhibit list because
the exhibits were not produced during discovery. See Doc. 108-1, 12. In response, the plaintiffs
claim that these exhibits were already turned over, are available on the internet (i.e. on
YouTube), or are LSU’s own materials and are therefore already in their possession. Doc. 109,
12-13. The Court DEFERS this issue until trial.

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d. Issue 4: Third Amended Complaint
The defendants seek to exclude any evidence related to claims in the plaintiffs’ Third
Amended Complaint (Doc. 26) on the grounds that the plaintiffs never supplemented their initial
disclosures as required by Federal Rule of Civil Procedure 26(e).

Doc. 108-1, 12-13.

Specifically, the defendants seek to exclude any evidence, testimony, or comment that:
(1) Rod Parker possesses firing power over School of Art employees or the
discretion to call and preside over all meetings of the department faculty;
(2) LSU Human Resources Management and/or Defendants Monaco, Normand,
and Ruebsamen were involved in Plaintiff Herster’s hiring and determining the
terms of her employment; and
(3) Defendant Carpenter had to seek approval from LSU Human Resources
Management and/or Defendants Monaco, Normand, and Ruebsamen before
offering Plaintiff Herster a new employment agreement.
Id. The plaintiffs claim that they supplemented the initial disclosure with “thousands more
pages” of materials. Doc. 109, 13-14. The Court DENIES the defendants’ request to exclude
any evidence related to claims in the plaintiffs’ Third Amended Complaint.
e. Issue 5: Hearsay
The defendants seek to exclude the following exhibits on the grounds that they are
hearsay. Each exhibit will be discussed separately.
(1) “Exhibit 136 – Video footage of interview with Digital Art student’s wife
about program and its impact on their family.”
The defendants are unsure as to the plaintiffs’ purpose in introducing this video footage
or the video’s content.

Doc. 108-1, 14.

If used for the truth of the matter asserted, the

defendants need more information, such as the declarant’s identity and availability, to determine
if a valid exception applies. Id. The defendants also object to the videos relevance—stating that
it is not relevant to any of plaintiffs’ claims or damages. Id. The plaintiffs state that the video is
part of the video produced by Herster and is therefore relevant to the claim under La. R.S.

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23:967, as discussed above. Doc. 109, 14. The plaintiffs request that the Court defer this issue
until trial. Id. at 14-15. The Court already decided that the video produced by Herster is not
relevant, and because Exhibit 136 is merely a portion of the larger video, the Court GRANTS
the defendants’ request to exclude Exhibit 136.
(2) “Exhibit 144 – Facebook comments/tweets of support for MH [Margot
Herster], outrage at LSU re: course fee issue after lawsuit is filed.”
The defendants seek to exclude this evidence because it constitutes hearsay not within an
exception. Doc. 108-1, 15. Specifically, the defendants argue that the facebook comments and
tweets do not fall under the present sense impression exception to hearsay because it is
impossible to know whether the comments were made while or immediately after the declarants
learned of the present lawsuit. Id. The defendants also object to the exhibit’s relevance because
the comments were made after the present lawsuit was filed. Id. The plaintiffs argue that this
evidence may be used for impeachment purposes or as prior inconsistent statements, depending
on the testimony at trial. Doc. 109, 14. Again, the plaintiffs request the Court to defer this issue
until trial. Id. at 14-15. The Court agrees with the defendants and therefore GRANTS the
defendants’ request to exclude Exhibit 144.
(3) “Exhibits 148 and 149 – Facebook message from student [Emily] and former
student [Leah] to Margot Herster.”
The defendants are not sure plaintiffs’ purpose in introducing these exhibits. Doc. 108-1,
15. In seeking to exclude these exhibits, the defendants assert the same arguments as discussed
for Exhibit 144 and note that they do not know the identity and availability of the declarants. Id.
The plaintiffs state that these exhibits may be used for impeachment or prior inconsistent
statements and request the Court to defer a ruling until trial. Doc. 109, 15. The Court agrees

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with the defendants and therefore GRANTS the defendants’ request to exclude Exhibits 148 and
149.
(4) “Any and all recorded conversations, including, but not limited to, Exhibit 224
– Tape recorded calls between the plaintiff and defendants’ witnesses,
specifically including Derick Ostrenko.”
The defendants argue that this evidence constitutes hearsay and cannot be used to
impeach the declarants because the recorded conversations were not given under penalty of
perjury at a trial, hearing, or other proceeding or in a deposition. Doc. 108-1, 16. The plaintiffs
argue that this evidence will be used to refresh, as a prior inconsistent statement, and/or for
impeachment purposes. Doc. 109, 15. The Court DEFERS ruling on this issue until trial.
f. Issue 6: Probative Value
The defendants seek to exclude the following evidence on Federal Rules of Evidence 403 and
404(b) grounds. Each piece of evidence will be discussed separately.
(1) “‘Editorialization’ of the internal audit report, including, but not limited to,
comments that School of Art course fees were illegally assessed and
misappropriated and that the internal auditors recommended removal of
Defendant Parker from the position of director.”
The defendants seek to exclude certain statements involving the internal audit report,
claiming that editorializing the report in this manner will mislead the jury and unfairly prejudice
the defendants.

Doc. 108-1, 17.

The plaintiffs respond by asserting that the defendants’

argument is not proper for a motion in limine and, additionally, that referring to the actions
documented in the report as “illegal” is essential to the plaintiffs’ claim. Doc. 109, 16. The
Court DEFERS ruling on this issue until trial.
(2) “Evidence, testimony, or comment regarding Rod Parker’s alleged misuse of
his LaCarte procurement card in 2004.”

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In seeking to exclude this evidence, the defendants argue that it is only relevant to Rod
Parker’s character and is not relevant to showing “motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Doc. 108-1, 18. Even if such
evidence is relevant to an issue other than character, the defendants assert that its probative value
is substantially outweighed by unfair prejudice. Id. In response, the plaintiffs argue that this
evidence is relevant to proving Rod Parker’s retaliatory motive and absence of mistake. Doc.
109, 17. The Court agrees with the defendants and therefore GRANTS the defendants’ request
to exclude this evidence.
(3) “Evidence, testimony, or comment regarding Kimberly Arp’s inadvertent
misuse of LSU resources.”
In support of their positions, the defendants and plaintiffs rely on arguments similar to
those made concerning Rod Parker’s alleged misuse of his LaCarte procurement card. See Doc.
108-1, 20-21; Doc. 109, 17. The Court agrees with the defendants and therefore GRANTS the
defendants’ request to exclude this evidence.
(4) “Evidence, testimony, or comment regarding Baton Rouge City Court
proceedings involving Rod Parker.”
The defendants argue that this evidence is not relevant other than to prove Rod Parker’s
character, is not probative of Parker’s character for truthfulness or dishonesty, and even if
relevant it has very little probative value. Doc. 108-1, 21-22. The plaintiffs argue that such
evidence is highly probative because it occurred within the last ten years, exacerbated Herster’s
distress, and has been part of Herster’s harassment complaints from the beginning. Doc. 109,
18-19. The Court DEFERS ruling on this issue until trial.
III.

Conclusion

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For the reasons stated above, this Court DENIES Plaintiffs’ Motion in Limine (Doc. 107)
in its entirety, GRANTS in part, DENIES in part, and DEFERS in part the Defendants’
Motion in Limine (Doc. 108).
Signed in Baton Rouge, Louisiana, on September 15, 2015.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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