Wade v. Home Depot U S A Inc

Filing 45

MEMORANDUM RULING re 27 MOTION in Limine filed by Home Depot U S A Inc.. Signed by Judge Robert G James on 1/19/16. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION

CHARMINE WADE

CIVIL ACTION NO. 14-2388

VERSUS

JUDGE ROBERT G. JAMES

THE HOME DEPOT USA, INC. AKA
THE HOME DEPOT

MAG. JUDGE KAREN L. HAYES

RULING
Pending before the Court is a Motion in Limine [Doc. No. 27] filed by Defendant The
Home Depot U.S.A., Inc. (“Home Depot”). Home Depot moves the Court to exclude
“previously unidentified witness[es] and ‘me-too’ witnesses” from testifying at the bench trial in
this matter. In its memorandum, Home Depot clarifies that it also seeks to exclude other
inadmissible testimony, including anticipated hearsay. Plaintiff Charmine Wade (“Wade”) did
not file an opposition memorandum, despite being given an extension of time to do so. For the
following reasons, Home Depot’s Motion in Limine is GRANTED IN PART AND DENIED IN
PART.
I.

RELEVANT FACTS AND PROCEDURAL HISTORY
Wade is currently employed by Home Depot as a cashier. She alleges that she was

wrongfully denied a promotion to head cashier because of her race (African-American). Home
Depot denies her allegations. A bench trial is currently set for February 2, 2016.1
Wade filed a Complaint in this Court on July 28, 2014. In their Joint Case Management

1

Wade and Home Depot have agreed to a settlement conference which is set for January
21, 2016.

Report, the parties reported that initial disclosures would be completed on or before March 12,
2015. According to Home Depot’s undisputed facts, however, Wade never made her initial
disclosures.
The Court’s Scheduling Order issued on March 4, 2015. Under that order, Wade was
required to deliver her witness list to Home Depot no later than July 24, 2015. A discovery
deadline was set for September 24, 2015.
On or about June 9, 2015, Wade provided responses to Home Depot’s interrogatories.
When asked to identify any persons “who possess knowledge pertaining to any fact or issue
involved in this case” [Doc. No. 27, Exh. B], she listed Sylvia Mitchell, Olivia Pescatore, Ronnie
Lebeouf, Tyuola Earl, Yolonda Anders, Clifton Hawthorne, and Terrinesh Burns.2
Wade provided her Witness and Exhibit List to Home Depot on August 20, 2015, almost
one month late.3
On September 9, 2015, Home Depot took Wade’s deposition. Home Depot then moved
for summary judgment on October 9, 2015, requesting dismissal of all Wade’s claims.
On October 27, 2015, Wade emailed Home Depot an “Amended Witness List”
identifying Shirley Savage (“Savage”) and Julie Hearn (“Hearn”) as witnesses for the first time.
On November 23, 2015, Wade attached affidavits from Savage, Terrinesh Burns
(“Burns”), and Yolanda Anders (“Anders”) in support of her memorandum in opposition to
Home Depot’s Motion for Summary Judgment.

2

There are some discrepancies in the spelling of witnesses’ names, but it is clear to whom
both Wade and Home Depot refer. The Court has used Home Depot’s spelling since these are all
employees or former employees of that company.
3

The witness list is dated July 23, 2015, but it is undisputed that this list was emailed to
Home Depot’s counsel on August 20, 2015. [Doc. No. 27, Exh. C].
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II.

MOTION IN LIMINE
A.

Previously Unidentified Witnesses

First, Home Depot moves to exclude two witnesses whom Wade did not timely identify.
Home Depot has presented undisputed evidence that Wade did not identify Hearn and Savage as
potential witnesses in this case until November 23, 2015, well after the applicable deadlines, and
after Home Depot’s Motion for Summary Judgment was filed.
Federal Rule of Civil Procedure 37(c)(1) provides:
(1) Failure to Disclose or Supplement. If a party fails to . . . or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to use that . . . witness to
supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless. In addition to or instead of this sanction,
the court, on motion and after giving an opportunity to be heard:
(A)

may order payment of the reasonable expenses, including attorney's fees, caused
by the failure;

(B)

may inform the jury of the party's failure; and

(C)

may impose other appropriate sanctions, including any of the orders listed in Rule
37(b)(2)(A)(i)—(vi).4

4

Rule 37(b)(2)(A)(i)-(vi) provides that the Court may issue orders

(i)

directing that the matters embraced in the order or other designated facts
be taken as established for purposes of the action, as the prevailing party
claims;

(ii)

prohibiting the disobedient party from supporting or opposing designated
claims or defenses, or from introducing designated matters in evidence;

(iii)

striking pleadings in whole or in part;

(iv)

staying further proceedings until the order is obeyed;
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(emphasis added). Thus, under Rule 37(c) the Court has the discretion to either exclude the
unidentified witnesses or to take other actions.5
In this case, Wade has offered no explanation to show that her failure to disclose these
two witnesses was “substantially justified.” She clearly failed to comply with the Federal Rules
of Civil Procedure and the Court’s Scheduling Order requiring that she disclose potential
witnesses. For unknown reasons, Wade did not identify these persons until after Home Depot
filed its Motion for Summary Judgment. She failed to timely oppose the instant Motion in
Limine to provide any explanation. Then, even after being given another opportunity to oppose
the motion by Magistrate Judge Hayes,6 she still failed to file an opposition memorandum or
offer any explanation for her actions. Therefore, Wade has failed to establish that she was
substantially justified in her actions.
When determining whether a party’s failure to disclose a potential witness was harmless,
the Court must consider four factors: “(1) the importance of the evidence; (2) the prejudice to the
opposing party of including the evidence; (3) the possibility of curing such prejudice by granting
a continuance; and (4) the explanation for the party’s failure to disclose.” Texas A&M Research

(v)

dismissing the action or proceeding in whole or in part;

(vi)

rendering a default judgment against the disobedient party.

FED. R. CIV. P. 37(b)(2)(A)(i)-(vi).
5

In this case, there is no jury, so Rule 37(c)(1)(B) does not provide a viable option.

6

Prior to the pre-trial conference, Wade’s deadline for opposing the Motion in Limine had
passed. At the pre-trial conference, Magistrate Judge Hayes re-opened the deadline and gave
counsel until January 8, 2016, to file an opposition memorandum. No opposition memorandum
has ever been filed.
4

Foundation v. Magna Transp., Inc., 338 F.3d 394 (5th Cir. 2003).7
The Court has first considered the importance of the testimony of these two witnesses.
Hearn is expected to testify about the “general operations of Home Depot” and to “Craig
Lowe[’s] deceptions and attempts to cover up discrimination.” [Doc. No. 27, Exh. A]. To the
extent that she offers testimony about the general operations of Home Depot, the testimony is of
little value when other witnesses can provide that information. To the extent that she offers
testimony about a former assistant manager, Craig Lowe (“Lowe”), her testimony is irrelevant.
Lowe is not alleged to have participated in the failure to promote Wade to head cashier, the only
claim remaining before the Court.
With regard to Savage, she is expected to testify about her knowledge of “disciplinary
procedures” that “are used in a discriminatory fashion where black employees are more severely
[disciplined] for behavior similar to or identical to white employees.” [Doc. No. 27, Exh. A].
This testimony appears to have little relevance, if any, to the remaining claim before the Court.
Wade does not have a claim for discriminatory discipline, but only for failure to promote.
Further, to the extent that Savage will testify in generalities or in a speculative fashion, her
testimony is likely inadmissible. Any testimony Savage would provide would have to be limited
to specific evidence of racial discrimination. Therefore, the Court finds that the testimony of
Hearn and Savage would appear to be of little importance to the claim before the Court.
Next, the Court has considered the potential prejudice to Home Depot of allowing these
two witnesses to testify. Home Depot contends that the prejudice is great. The discovery
deadline is long passed, and Home Depot did not have the opportunity to depose them. Although

7

Although the Federal Rules of Civil Procedure have been amended since this opinion
issued, the consideration of whether a violation is harmless remain the same.
5

the Court could reopen discovery, it would require an outlay of resources to depose two
witnesses of possibly cumulative or inadmissible evidence. The Court agrees.
The Court has also considered the possibility of a continuance. While a continuance is
possible, it does not appear to be in the interest of justice, given the stage of litigation and the
limited testimony the witnesses could offer.
Finally, Wade has offered the Court no explanation whatsoever for her failure to identify
these witnesses until after Home Depot’s Motion for Summary Judgment was filed.
Given the failure of Wade to provide the Court with any explanation or justification for
her failure to disclose these two witnesses, the limited testimony they could provide (if any), and
the prejudice to Home Depot, the Court finds that Home Depot’s Motion in Limine should be
GRANTED as to these two witnesses. Hearn and Savage are stricken from Wade’ s witness list
and will not be permitted to testify at trial.
B.

Other Allegedly Inadmissible Witness Testimony

Home Depot also moves the Court to exclude so-called “me-too” testimony of witnesses
and/or other inadmissible testimony, including hearsay or double hearsay.
1.

Me-Too Testimony

Home Depot argues that Burns, Anders, and Savage will testify that they, too, were
subjected to racial discrimination by Home Depot. To the extent that Home Depot moves to
exclude any such testimony by Savage, the Court has already stricken her from Wade’s witness
list, and and no further consideration of her potential testimony is necessary.
Based on Burns’ affidavit that Wade submitted in opposition to Home Depot’s Motion
for Summary Judgment, Burns is expected to testify that Jeff Woods (“Woods”), the store
manager, “discriminates against blacks,” that she is given less favorable hours than a white
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employee, and that a white female employee is given more favorable treatment under the
employee dress code than black employees. [Doc. No. 23, Burns Aff.].8
Also based on her affidavit, Anders is expected to testify that Woods’ nephew, who is
white, had more “‘points’ against him than I had . . . but I was fired and the nephew . . . was not.”
[Doc. No. 23, Anders Aff.]. Anders will testify further that there is a “general atmosphere of
discrimination” at Home Depot. Id.
Under Federal Rule of Evidence 701, a witness not testifying as an expert may offer
opinion testimony that is “rationally based” on his or her own “perception,” that is “ helpful to
clearly understanding the witness’s testimony or determining a fact in issue,” and that is “not
based on scientific, technical, or other specialized knowledge.” To be admissible, any evidence,
offered through testimony or otherwise, must be relevant to the claims before the Court. Under
Federal Rule of Evidence 401, evidence is relevant if “it has any tendency to make a fact more or
less probable than it would be without the evidence; and the fact is of consequence in
determining the action.” However, even if relevant, evidence may be excluded if its “probative
value is substantially outweighed by a danger of . . unfair prejudice, confusing the issues, . . .
undue delay, wasting time, or needlessly presenting cumulative evidence.” FED. R. CIV. 403.
Burns’ and Anders’ subjective beliefs and unproven allegations that they suffered racial
discrimination in the form of scheduling, dress code, or even disciplinary decisions do not
constitute evidence that they were discriminated against or that Wade suffered racial
discrimination when she was not promoted to head cashier. A plaintiff cannot “effectively force
the employer to defend ‘mini-trials’ on other employees’ claims of discrimination that are ‘not

8

Burns also offered other testimony in her affidavit, the admissibility of which is not
contested.
7

probative on the issue of whether [the plaintiff] faced discrimination.’” Lawson v. Graphic
Packaging Intern. Inc., 549 Fed. App’x 253, 256 (5th Cir. 2013) (citing Wyvill v. United Cos.
Life Ins. Co., 212 F.l3d 296, 303 (5th Cir. 2000); Harpring v. Cont’l Oil Co., 628 F.2d 406, 410 (
1980) (other citations omitted)). To the extent that this type of testimony has some marginal
relevance as evidence of discrimination, that relevance is substantially outweighed by unfair
prejudice and confusion of the issues. This is particularly the case, where, as here, it is unclear if
any of the same decisionmakers were involved, and the employment actions complained of are
entirely different from the one in this lawsuit. See generally Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 388 (2008) (“The question whether evidence of discrimination by
other supervisors is relevant in an individual ADEA case is fact based and depends on many
factors, including how closely related the evidence is to the plaintiff’s circumstances and theory
of the case[;] Applying Rule 403 to determine if evidence is prejudicial also requires a
fact-intensive, context-specific inquiry.”).
Likewise, Burns’ testimony that Woods “discriminates against blacks,” and Anders’
testimony on the “general atmosphere of discrimination” at Home Depot are also inadmissible.
The only basis for their testimony is the proffered excluded anecdotes and their own subjective
belief and speculation.
Thus, to the extent that Home Depot moves to exclude the identified testimony of Burns
and Anders, its motion is GRANTED, and this testimony will be excluded from trial.
2.

Anticipated Hearsay Testimony from Sylvia Mitchell

Home Depot also moves the Court to exclude any hearsay testimony offered by witness
Sylvia Mitchell (“Mitchell”). In the affidavit submitted with Wade’s opposition to Home
Depot’s Motion for Summary Judgment, Mitchell made averments about Wade’s inquiry to
8

Lebeouf about the head cashier position and his alleged response to her. Home Depot contends
that Mitchell’s testimony in this regard will be based on inadmissible hearsay.
Hearsay is “a statement that: (1) the declarant does not make while testifying at the
current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted
in the statement.” FED. R. EVID. 801(c). Unless there is an exception, hearsay is not generally
admissible. FED. R. EVID. 805.
As Home Depot notes in its memorandum, the Court does not know “[w]ho informed . . .
Mitchell of these alleged conversations” or whether she witnessed them herself. [Doc. No. 27, p.
16]. Without that information, the Court cannot determine whether all or part of Mitchell’s
testimony is admissible. If, for example, Mitchell was present and heard Lebeouf’s statements to
Wade, she could testify at trial to the extent that Lebeouf’s statements are not hearsay and may be
admissible as the statement of a party opponent pursuant to Federal Rule of Evidence 801(d)(2).
If, on the other hand, Mitchell’s testimony is based solely on what Wade told her, it is clearly
inadmissible. Home Depot’s Motion in Limine with regard to Mitchell’s testimony is DENIED
at this time, subject to re-urging at trial.
III.

CONCLUSION
For the foregoing reasons, Home Depot’s Motion in Limine [Doc. No. 27] is GRANTED

IN PART AND DENIED IN PART. To the extent that Home Depot moves to exclude Hearn
and Savage from testifying altogether and to exclude Burns and Anders from providing certain
testimony at trial, its motion is GRANTED. To the extent that Home Depot moves to exclude
Mitchell from testifying, its motion is DENIED, subject to re-urging at trial.

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MONROE, LOUISIANA, this 19th day of January, 2016.

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