FAIRWEATHER v. FRIENDLY'S ICE CREAM LLC

Filing 114

ORDER denying 77 Defendant's Motion in Limine to Exclude Testimony of Joann Roberge; overruling in part and sustaining in part 109 Defendant's Statement of Objections to Deposition Testimony of Katherine Brandewie; and, overruling in part and sustaining in part 110 Plaintiff's Objections to Certain Portions of Katherine Brandewie's Deposition Proposed by Defendant. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
SUSAN FAIRWEATHER,
Plaintiff,
v.
FRIENDLY’S ICE CREAM, LLC,
Defendant.

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2:13-cv-00111-JAW

ORDER ON MOTION IN LIMINE AND OBJECTIONS REGARDING
ROBERGE AND BRANDEWIE TESTIMONY
With trial looming in this age discrimination case, the parties have presented
a number of objections to potential witnesses and specific testimony. The Court
denies the Defendant’s request to exclude the proposed testimony of a similarly
situated employee. The Court also addresses a slew of objections to the deposition
testimony of a witness, sustaining a few and overruling most.
I.

THE ROBERGE MOTION IN LIMINE
A.

Background

JoAnn Roberge was employed as a waitress at Friendly’s from March 19, 1999
to January 2, 2012 when she was terminated because she exceeded the permissible
number of customer walk-outs. Def. Friendly’s Ice Cream, LLC’s Mot. in Limine to
Exclude Test. of Joann Roberge (ECF No. 77) (Def.’s Roberge Mot.) Attach. 1 Charge
of Discrimination, Me. Human Rights Comm’n (Roberge Charge). On February 24,
2012, she filed a complaint with the Maine Human Rights Commission, alleging that

Friendly’s terminated her due to a pretext and the real reason for her termination
was that she was 63 years old. Roberge Charge. Friendly’s seeks to exclude Ms.
Roberge’s testimony on the grounds that the evidence would be contrary to Plaintiff’s
theory of the case and would require “a trial within a trial.” Def.’s Roberge Mot. at 12. Friendly’s says that Ms. Roberge’s Maine Human Rights Act claim was barred by
bankruptcy. Id. at 2. Plaintiff seeks to admit evidence of Ms. Roberge’s termination
as evidence of Friendly’s treatment of a similarly-situated employee, which is
relevant, she claims, to “Friendly’s age related animus and the implementation of
Friendly’s plan to change its image by, in part, terminating older employees.” Pl.’s
Opp’n to Def. Friendly Ice Cream’s Mot. in Limine to Exclude Test. of Joanne Roberge
at 2-3 (ECF No. 96) (Pl.’s Roberge Opp’n).
B.

Discussion

In this case, one of Ms. Fairweather’s theories is that, as an older worker, she
had been subject to disparate treatment and that she was terminated for conduct that
Friendly’s excused in younger workers. The First Circuit has addressed the disparate
treatment theory and has observed that “in order to be probative of discriminatory
animus, a claim of disparate treatment ‘must rest on proof that the proposed analogue
is similarly situated in material respects.’” Velez v. Thermo King de P.R., Inc., 585
F.3d 441, 451 (1st Cir. 2009) (quoting Perkins v. Brigham & Women’s Hosp., 78 F.3d
747, 752 (1st Cir. 1996)). The standard, according to the First Circuit, is “whether a
prudent person, looking objectively at the incidents, would think them roughly
equivalent and the protagonists similarly situated. While an exact correlation is not

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necessary, the proponent must demonstrate that the cases are fair congeners.” Id.
(internal citations and quotation marks omitted); see also Taboas v. Fiddler, Gonzalez
& Rodriguez, PSC, No. 13-1205 (FAB), 2014 U.S. Dist. LEXIS 121307, at *7-8 (D.P.R.
Aug. 28, 2014) (concluding that evidence of the dismissal of a similarly aged employee
by the same employer is admissible as tending to make the claim of age-based animus
more probable).
Here, Ms. Fairweather says that Ms. Roberge was employed as a waitress at
Friendly’s South Portland location from March 19, 1999 until she was fired on
January 2, 2012. Pl.’s Roberge Opp’n at 1. She is now approximately 66 years old,
and was around 63 when she was fired.1 Id. Ms. Fairweather states that Ms. Roberge
was the oldest employee in the workplace and that she was fired because two
customers walked out on her. Id. Ms. Fairweather asserts that Ms. Roberge believed
that she was treated more harshly than younger employees who had experienced the
same or higher number of customer walkouts. Id. at 1-2.
There are a number of similarities between Ms. Roberge’s and Ms.
Fairweather’s situations. Ms. Fairweather was slightly younger, 55, when she was
fired, but had worked longer at Friendly’s, joining in 1988. See Order Denying Def.’s
Mot. for Summ. J. at 4, 63 (ECF No. 49). They were fired the same year, Ms. Roberge
on January 2, 2012 and Ms. Fairweather four months later on May 14, 2012. See id.
at 67. They both worked as waitresses and they both claim that Friendly’s fired them

Ms. Fairweather asserts in her opposition that Ms. Roberge “is currently 64 years old.” Pl.’s
Roberge Opp’n at 1. It is more likely that Ms. Roberge is approximately 66 years old because at the
time she filed her Charge of Discrimination with the Maine Human Rights Commission on February
24, 2012, she asserted that she was fired on January 2, 2012, and was 63 years old. Roberge Charge.
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for conduct that it would have excused in younger workers. These facts make Ms.
Roberge’s experience at Friendly’s admissible to “show a defendant’s state of mind
through circumstantial evidence, including through evidence of the employer’s prior
incidents of discrimination or the employer’s discriminatory atmosphere.” Taboas,
2014 U.S. Dist. LEXIS 121307, at *5-6.
The Court rejects Friendly’s contention that because it terminated Ms. Roberge
on January 2, 2012 and Friendly’s did not emerge from bankruptcy until six days
later on January 8, 2012 that her termination cannot support Ms. Fairweather’s
claim that (1) as Friendly’s emerged from bankruptcy, it had resolved to change its
image to appeal to a younger clientele by hiring younger workers and firing older ones
and (2) Friendly’s made that policy choice before the actual date of bankruptcy
discharge. Also, Friendly’s protest that the Roberge claim had never been tested by
an administrative agency seems ironic; Ms. Roberge was not allowed to proceed
against Friendly’s precisely because Friendly’s declared bankruptcy.

See Def.’s

Roberge Mot. at 2.
As with all evidence of this ilk, Friendly’s has raised a justifiable concern that
the Roberge claim not become a trial within a trial. This concern extends both to Ms.
Fairweather and to Friendly’s and the Court will monitor this evidence as it is being
presented to balance its probative value against the danger of “unfair prejudice,
confusing the issues, misleading the jury, undue delay, [and] wasting time.” FED. R.
EVID. 403.

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The Court declines Friendly’s request for wholesale exclusion of the Roberge
claim.
II.

THE BRANDEWIE DEPOSITION OBJECTIONS
A.

Background

On January 9, 2015, pursuant to an order dated December 29, 2014, the parties
took the trial deposition of Katherine Brandewie, formerly known as Katherine
Burke.

Order (ECF No. 88).

According to her deposition, Ms. Brandewie was

Training General Manager, meaning that she was in a three-month program training
to be a general manager, at the South Portland Friendly’s at the time that Ms.
Fairweather was fired. Def. Friendly’s Ice Cream, LLC’s Statement of Objections to
Dep. Test. of Katherine Brandewie (ECF No. 109) (Def.’s Objections) Attach. 1 Dep.
Tr. of Katherine Brandewie 7:4-17 (Brandewie Dep.).

Among other things, Ms.

Brandewie testified that General Manager Bonnie Coutts asked her to participate in
Ms. Fairweather’s termination and Ms. Brandewie refused to do so because she
“thought that it was wrong.”

Id. 13:1-8, 13:18-14:7.

She testified that Ms.

Fairweather was a “hard worker,” that Ms. Fairweather “always showed up for work
on time” and that she “always did her work.” Id. 13:9-17. Friendly’s engaged in an
extensive cross-examination of Ms. Brandewie. Id. 16:23-50:16. Plaintiff responded
with a brief redirect examination. Id. 50:20-52:18. Friendly’s and Ms. Fairweather
interpose specific objections to the contents of Ms. Brandewie’s deposition. Def.’s
Objections at 1-14; Pl.’s Objections to Certain Portions of Katherine Brandewie’s Dep.
Proposed by Def. at 1-2 (ECF No. 110) (Pl.’s Objections).

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B.

Ms. Fairweather’s Objections

Ms. Fairweather objects to two lines of cross-examination: (1) a series of
hypothetical questions about whether she would employ a food server who engaged
in rude, bullying behavior or similar conduct, Pl.’s Objections at 1 (citing Brandewie
Dep. 31:20-41:3), and (2) a series of questions asking Ms. Brandewie about documents
she had never seen. Id. at 2 (citing Brandewie Dep. 41:5-46:2). The Court overrules
Ms. Fairweather’s first objection.

Friendly’s had the right to explore on cross-

examination the basis for Ms. Brandewie’s testimony that she thought it was wrong
to fire Ms. Fairweather.

Most of these cross-examination questions were not

hypothetical. Defense counsel prefaced a number of questions by referring to a
document and then posing a more general question. For example, he read a customer
complaint that Ms. Fairweather “very rudely pointed to, I guess, Cathy’s area, was - and said out loud something about having a skip on her all morning.” Brandewie
Dep. 31:11-16. Defense counsel then asked Ms. Brandewie a series of questions about
the difficulty a restaurant would experience if its wait staff were rude. For example:
Q. [A]s a manager, you would not want your customers complaining
about servers in this way. Correct?
A. Correct.
Q. A server treating a customer in a manner they perceive to be very
rude is unacceptable conduct, isn’t it?
A. Yes.
Id. 32:16-23. In the Court’s view, this testimony is permissible because it explores
the standards Ms. Brandewie was using to conclude that Friendly’s termination of
Ms. Fairweather was wrong. Furthermore, a number of questions state the obvious;
for example: “Do you think customers will return to a restaurant with a reputation of
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having servers who are very rude?” Id. 37:5-7. These questions fall within the
permissible scope of cross-examination.
The Court draws the same conclusion about Friendly’s cross-examination of
Ms. Brandewie’s knowledge of Ms. Fairweather’s personnel file. It is true that Ms.
Brandewie testified that she had “never read through her [personnel] file when [she]
worked there.” Id. 42:11-12. But defense counsel was free to point out to the jury
that Ms. Brandewie was unaware of other customer complaints about Ms.
Fairweather when Ms. Brandewie concluded that it was wrong to terminate her.
The parties presented a consolidated set of their specific objections. Def.’s
Objections at 3-14. There is one uncontested objection and the Court sustains that
objection:
1)

29:17-30:7: lack of foundation.

The Plaintiff interposes the following objections:
1)

31:18-32-5: hearsay and misstates evidence –

Overruled. The Court assumes that during trial, Ms. Fairweather’s
personnel file will be admitted into evidence as a Friendly’s business
record and, if so, the jury may judge whether the question based on that
file misstates the contents of the file.
2)

32:8-15, 33:2-20, 34:18-35:1, 35:9-18, 36:5-37:2, 37:5-15, 37:18-24,

38:1-6, 38:11-18, 40:17-42:1, 42:4-43:12, 43:18-24, 44:3-23, 45:3-11,
45:22-46:12: speculation, lack of foundation, relevance –

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Overruled. These questions state the obvious and are relevant to Ms.
Brandewie’s standards for dismissal.
The Court sustains the objection to 39:22-40:9 because the question was
answered and counsel repeated it at 40:4-6.2
C.

Friendly’s Objections

Friendly’s interposed the following objections:
1)

8:18-9:9: lack of foundation, personal knowledge, relevance –

Overruled. The witness identified Exhibit 7 as the disciplinary notice
form that she was required to fill out at Friendly’s.
2)

8:22-9:11: motion to strike as non-responsive –

Overruled. The witness was asked to identify the form and her answer
identifies the form as she used it at Friendly’s.
3)

9:16-20: lack of foundation, assumes facts not in evidence –

Overruled. The witness was asked her personal knowledge and is
responding from her personal knowledge.
4)

9:21-10:6: motion to strike as non-responsive –

Overruled. The witness responded to the question.

The defense makes the odd statement that an objection based on a question having been
“asked and answered” is “not a viable objection under any Rule of Evidence and it therefore must be
overruled.” Def.’s Objections at 10. Defense counsel is wrong. Rule 403 of the Rules of Evidence
allows a trial court to exclude relevant evidence if its “probative value is substantially outweighed by
a danger of . . . wasting time[] or needlessly presenting cumulative evidence.” FED. R. EVID. 403.
The traditional objection that a question has been asked and answered is a shorthand way of making
a Rule 403 time wasting and cumulative evidence objection. If a question has already been asked
and answered, to ask it again and demand an answer would be to “wast[e] time [and] needlessly
present[] cumulative evidence.” Id.
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5)

10:7-15: lack of foundation, assumes facts not in evidence,

relevance –
Overruled. The witness is responding from her personal knowledge
from the time she worked at Friendly’s.
6)

13:9-17: lack of foundation, lack of competence, lack of personal

knowledge, lack of relevance, calls for an opinion –
Overruled. The witness is explaining why, after being requested to do
so, she refused to participate in Plaintiff’s firing. This is within her
personal knowledge. It is clearly relevant to the issues in this case.
7)

15:15-23: lack of foundation, assumes facts not in evidence, no

personal knowledge, leading, lack of relevance –
Overruled. The witness was a management trainee and is competent
to express her opinion about Friendly’s hiring practices during her
employment at Friendly’s. The leading objection is frivolous.
8)

31:7-10: move to strike, no question pending –

Overruled. The witness was completing her answer to the earlier
question.
9)

31:23-32:7: move to strike as nonresponsive –

Overruled. Defense counsel asked the witness to interpret a document
and the witness attempted to respond to the question.
10)

33:17-20: move to strike after “absolutely” –

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Overruled. The witness’s explanation is responsive to the question. If
the questioner does not like the response, it does not mean the answer
is nonresponsive.
11)

34:10-17: move to strike as nonresponsive beyond the first

sentence –
Sustained. The question only asked the witness to confirm the words
on a document and she gave her opinion about the significance of the
document.
12)

46:5-11: move to strike after “correct” –

Overruled. The witness was asked about her lack of knowledge for her
opinion and, although she agreed with her absence of knowledge, she
explained the basis for her opinion to avoid a misimpression.
13)

51:3-52:16: leading, irrelevant, lack of foundation, misstates

prior testimony –
Overruled. The redirect fairly and briefly responded to issues raised
during cross-examination.
III.

CONCLUSION
The Court DENIES Defendant Friendly’s Ice Cream, LLC’s Motion in Limine

to Exclude Testimony of Joann Roberge (ECF No. 77); the Court OVERRULES IN
PART and SUSTAINS IN PART Defendant Friendly’s Ice Cream, LLC’s Statement
of Objections to Deposition Testimony of Katherine Brandewie (ECF No. 109); and

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OVERRULES IN PART and SUSTAINS IN PART Plaintiff’s Objections to Certain
Portions of Katherine Brandewie’s Deposition Proposed by Defendant (ECF No. 110).
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 23rd day of January, 2015

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