Kurth v. Inkster et al
Filing
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OPINION AND ORDER denying 29 Motion in Limine to Exclude any and all Post Termination Incidents. Signed by District Judge Sean F. Cox. (JHer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Colleen M. Kurth,
Plaintiff,
v.
Case No.: 10-11973
City of Inkster, et al.
Honorable Sean F. Cox
Defendants.
_________________________________________/
OPINION & ORDER DENYING DEFENDANTS’ MOTION IN LIMINE
TO EXCLUDE ANY AND ALL POST-TERMINATION INCIDENTS WITHOUT
PREJUDICE
Plaintiff Colleen M. Kurth, a police officer with the Inkster Police Department, filed this
action against the City of Inkster and her police department supervisors, Paul Martin and Dennis
Watkins, alleging that Defendants discriminated against her under the Michigan Elliott-Larsen
Civil Rights Act (“ELCRA”) and Title VII of the Federal Civil Rights Act (“Title VII”) because
of her gender; retaliated against her in violation of Title VII for exercising her civil rights;
caused her intentional infliction of emotional distress; and engaged in a concert of action and
civil conspiracy to terminate her. This case was originally assigned to the Honorable Nancy G.
Edmunds, and on July 11, 2011, Judge Edmunds granted in part and denied in part Defendants’
motion for summary judgment, dismissing all of Plaintiff’s claims except for her mixed-motive,
gender discrimination claims. The matter is currently before the Court on Defendants’ Motion in
Limine to Exclude Any and All Post-termination Incidents Pursuant to FRE 401, 402, and 403.
The parties have briefed the issues and the Court heard oral argument on November 29, 2011.
For the reasons below, the Court shall DENY Defendants’ motion without prejudice.
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BACKGROUND
I.
Factual Background:
The facts leading up to this action have been previously summarized by Judge Edmunds
in her July 11, 2011 Opinion & Order on Defendants’ motion for summary judgment. (7/11/11
Opinion, Doc. No. 15). They are as follows:
On May 28, 2001, the City of Inkster Police Department (“Department”) hired Plaintiff
as a probationary police officer. In September, 2004, the Department promoted her to detective
– the first woman to hold that position. Sergeant S. Adams was Plaintiff’s immediate supervisor
and Defendant Paul Martin was Plaintiff’s supervisor in the Detective Bureau. The overall
supervisor was Lieutenant Jeffrey Smith.
On January 22, 2009, an incident took place that led to Plaintiff’s termination and the
instant case. The employees of the Detective Bureau, including Plaintiff and Martin, were
preparing to conduct a raid to recover computers from an individual suspected of committing
identity theft. Martin became aware that Plaintiff was wearing a red jacket. According to
Plaintiff, Martin approached Plaintiff and said that she was “not invited” on the raid. According
to Defendants, Martin told her to put on a lightweight, black, police-issued jacket, rather than the
red jacket Plaintiff had been wearing. Other members of the raid team were wearing different
colored jackets, but none were bright-colored jackets. Martin insists that he told Plaintiff to wear
the standard-issue black jacket out of concern for her safety because the red jacket could have
made Plaintiff an easily-visible target. Disagreeing with Martin, Lieutenant Kevin Smith stated
that bright clothing is not an issue during the daytime.
In response to the jacket incident, Plaintiff sent a letter to the Department reporting
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Martin’s treatment of her. Human Resources Department conducted an investigation into the
Plaintiff’s allegations and found that they did not support a hostile environment claim.
Also in response to the incident, Martin set in motion, but did not personally conduct, an
investigation into Plaintiff’s conduct. Lieutenant Jeffrey Smith investigated and concluded that
the Department should give Plaintiff “progressive discipline.” Lieutenant Smith found that
Plaintiff violated Department rules by failing to cooperate during the raid and had committed
insubordination by refusing Martin’s order. The results of the investigation into Plaintiff’s
conduct were reviewed by Deputy Chief Dennis Watkins, who recommended that the
Department terminate Plaintiff’s employment. Chief Gregory Gaskin agreed with Watkins’s
recommendation and, in March, 2009, the Department terminated Plaintiff’s employment.
On July 23, 2009, following her termination, Plaintiff and the Department engaged in
arbitration proceedings. The arbitrators recommended that the Department rehire Plaintiff, after
finding that Watkins’s recommendation was based on an inaccurate disciplinary history. The
arbitrators also found that there were mitigating factors, including the fact that Plaintiff had
previously worn the same jacket on other raids and that there were other, more serious instances
of insubordination that did not lead to termination. The arbitrators considered that Plaintiff
was a long-term employee with a good professional record. In October, 2009, Plaintiff returned
to work.
II.
Procedural Background:
Plaintiff filed this action on April 27, 2010, alleging a number of state and federal
discrimination claims against Defendants. Defendants removed the action to this Court on May
14, 2010. (Doc. No. 1).
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On July 11, 2011, Judge Edmunds granted in part, and denied in part, Defendants’
motion for summary judgment. Judge Edmunds dismissed all of Plaintiff’s claims except for her
mixed-motive, gender discrimination claim. Based upon evidence of previous discriminatory
comments by Martin, and Watkins’ alleged shared bias against Plaintiff, Judge Edmunds held
that there is a question of fact whether the decision to terminate Plaintiff’s employment was, in
part, motivated by her gender. (7/11/11 Opinion at 26-27).
The case was reassigned to this Court on October 7, 2011. (Doc. No. 19).
ANALYSIS
In their motion, Defendants assert that any post-termination incidents which Plaintiff
claims are discriminatory are irrelevant to the March 19, 2009 decision to terminate Plaintiff and
are not probative of the elements that Plaintiff must prove to establish a mixed-motive, gender
discrimination claim. Defendants contend that evidence of these post-termination incidents are
therefore inadmissable at trial pursuant to FED. R. EVID. 401 and 402. Defendants further
contend that the danger of unfair prejudice associated with evidence of post-termination
incidents substantially outweighs its probative value, and therefore should be precluded under
FED. R. EVID. 403.
Specifically, Defendants refer to two incidents identified in Plaintiff’s response to
Defendants’ motion for summary judgment. Judge Edmunds summarized these incidents in her
July 11, 2011 Opinion & Order, stating:
After Plaintiff returned to work following arbitration, there were two other incidents
involving the common whiteboard that she attributed to Defendant Martin. Plaintiff
argues that the incidents further show that Defendant Martin discriminated against
her because of her gender. In the first incident, Defendant Martin wrote “call” next
to Plaintiff’s name in large letters where Plaintiff’s day off was written. Plaintiff
says that Defendant Martin did not do that to any other employee. Defendant Martin
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says he wrote “call” on the board in order to determine who was supposed to be
on-call as part of his supervisory role. In the second incident, Plaintiff wrote her
name and “polygraph” on the whiteboard to indicate that she was administering a
polygraph examination. Underneath these writings, someone wrote “Yours?,”
suggesting that Plaintiff was taking, or should take, a polygraph examination.
Plaintiff alleges that the handwriting was Defendant Martin’s. Defendant Martin
denies that he wrote the statement.
(7/11/11 Opinion at 7) (internal citations omitted).
To prove a mixed-motive claim under Title VII, a plaintiff must show: (1) The defendant
took an adverse employment action against the plaintiff; and (2) “race, color, religion, sex, or
national origin was a motivating factor” for the defendant’s adverse employment action. White
v. Baxter Healthcare Corp., 533 F.3d 381, 400 (6th Cir. 2008).
Depending on the type of evidence, and the manner in which it is introduced, some posttermination incidents, although not necessarily the two whiteboard incidents described above,
may be relevant to Plaintiff’s discrimination claim. The Court is not inclined to preclude any and
all post-termination incidents and shall rule on any objections to the relevancy of evidence of
post-termination incidents during the course of the trial and within the context in which it is
introduced.
With regard to FED. R. EVID. 403, Defendants fail to explain how the probative value of
evidence of post-termination incidents is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or the potential to mislead the jury. Defendants’ make only
conclusory remarks relating to any prejudice that the admission of post-termination incidents
may have. The Court shall weigh the probative value of evidence of post-termination incidents
within the context in which they are introduced.
CONCLUSION
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For the reasons stated above, IT IS ORDERED that Defendants’ Motion in Limine to
Exclude Any and All Post-termination Incidents Pursuant to FRE 401, 402, and 403 is DENIED
WITHOUT PREJUDICE.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Court
Dated: November 30, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of record on
November 30, 2011, by electronic and/or ordinary mail.
S/Jennifer Hernandez
Case Manager
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