Schmidlin v. Uncle Ed's Oil Shoppes, Inc.
Filing
42
OPINION AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS IN LIMINE MOTIONS TO EXCLUVDE IRRELEVANT EVIDENCE [#31] AND HEARSAY STATEMENTS [#32]. Signed by District Judge Gershwin A. Drain. (Bankston, T)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
VERA SCHMIDLIN,
Plaintiff,
Case No. 13-cv-10552
Honorable Gershwin A. Drain
v.
UNCLE ED’S OIL SHOPPES, INC.,
Defendant.
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OPINION AND ORDER DENYING IN PART AND GRANTING IN PART
DEFENDANTS IN LIMINE MOTIONS TO EXCLUVDE IRRELEVANT
EVIDENCE [#31] AND HEARSAY STATEMENTS [#32]
I. INTRODUCTION
Plaintiff, Vera Schmidlin, filed this action pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000 et. seq., against Defendant Uncle Ed’s Oil Shoppes, Inc. (“Uncle Ed’s”)
alleging (1) a hostile work environment as a result of sexual harassment during her employment,
and (2) unlawful retaliation.
On July 22, 2014, this Court granted Defendant’s summary
judgment motion in part with respect to Plaintiff’s claim for unlawful retaliation on behalf of the
Defendant [#25]. Accordingly, Plaintiff’s hostile work environment is the sole remaining claim
in this action.
Presently before the Court are two motions: (1) Defendant’s In Limine Motion to Exclude
Irrelevant Evidence [#31], and (2) Defendant’s In Limine Motion to Exclude Hearsay Statements
[#32]. This matter is fully briefed and a hearing will be held on November 3, 2014. For the
reasons discussed herein, the Court should DENY in part and GRANT in Part Defendants In
Limine Motions to Exclude Irrelevant Evidence and Exclude Hearsay Statements.
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II. FACTUAL BACKGROUND
The pertinent facts to these motions involve proposed testimony for trial stemming from
depositions in this case. During their depositions, two witnesses—Morrease Germany and Gjon
Micakaj—testified about sexual conduct and comments allegedly made by employees of
Defendant regarding Plaintiff.
Mr. Germany—a former Assistant Manager of Defendant—testified that Steve Smith—a
former Store Manger of Defendant—told Mr. Germany that he wanted to have sexual intercourse
with Plaintiff. Mr. Germany also testified that, when Plaintiff was not looking, Mr. Smith would
make sexual gestures towards Plaintiff without Plaintiff’s knowledge. Further, Mr. Germany
testified that certain lower bay technicians would joke about their desire to have sexual
intercourse with Plaintiff without her knowledge. Gjon Micakaj—the cousin of Plaintiff and a
former Assistant Manager for Defendant—also testified that he heard technicians making sexual
comments about Plaintiff.
During Plaintiff’s deposition, Plaintiff testified that two former employees of
Defendant—Cassandra Bednarski and Jen Smith—told Plaintiff they had been harassed at work,
but never complained because they did not want to lose their jobs. Plaintiff also testified that Jen
Smith told her that Defendant would never terminate Dean Falloni—a co-worker of Plaintiff,
whom Plaintiff alleges engaged in inappropriate sexual conduct toward her—because Mr. Falloni
was too good at his job working on cars. Lastly, Plaintiff testified that Morrease Germany
informed her that Steve Smith was making sexual comments about Plaintiff without Plaintiff’s
knowledge.
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III. LEGAL ANALYSIS
A. Relevancy
Rule 401 of the Federal Rules of Evidence states that evidence is relevant if it “has any
tendency to make a fact more or less probable” and “the fact is of consequence in determining
the action.” Fed. R. Evid. 401. “Irrelevant evidence,” however, “is not admissible.” Fed. R.
Evid. 402. Even if evidence is relevant, it may be excluded “if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
To establish her hostile work environment claim under Title VII, Plaintiff must prove: (1)
she is a members of a protected class; (2) she was subjected to unwelcome harassment; (3) her
harassment was based on her protected status; (4) her harassment was sufficiently severe or
pervasive to affect a term, condition, or privilege of her employment; and (5) her employer knew
or should have known about the harassing conduct but failed to take corrective or preventative
actions. See Arnold v. City of Columbus, 515 F. App'x 524, 535 (6th Cir. 2013); Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. Defendant’s motions in limine dispute the relevancy of
potential testimony that can be used to demonstrate the fourth and fifth prongs of Plaintiff’s
prima facie case.
In assessing the fourth prong of Plaintiff’s prima facie case for a hostile work
environment under Title VII, the Sixth Circuit has stated that “comments or conduct of which a
plaintiff had no knowledge cannot be said to have made her work environment hostile[.]” Barrett
v. Whirlpool Corp., 556 F.3d 502, 515 (6th Cir. 2009). Specifically, the Sixth Circuit has held
that the precedent of the court “makes clear that the factfinder may consider similar acts of
harassment of which a plaintiff becomes aware during the course of his or her employment,
even if the harassing acts were directed at others or occurred outside of the plaintiff's presence.”
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Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 336 (6th Cir. 2008) (emphasis added); see also
Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 249 n.4 (6th Cir. 1998) (finding that a
plaintiff’s testimony by three other employees regarding discriminatory behavior by the
President of the Defendant, outside of plaintiff’s presence, was “irrelevant at [summary
judgment] to plaintiff's hostile environment and disparate treatment claims because there is no
evidence that plaintiff was aware of these actions at the time.”).
In Berryman v. SuperValu Holdings, Inc., 669 F.3d 714(6th Cir. 2012), the Sixth Circuit
analyzed its decision from Jackson v. Quanex Corporation., 191 F.3d 647 (6th Cir. 1999), to
clarify that plaintiffs must know about the harassment for which they are basing their hostile
environment claim, and that they become aware of it during the period of their employment:
Implicit in the consideration of the totality of the circumstances is that a plaintiff was
aware of the harassment that was allegedly directed toward other employees. . . . [A]
plaintiff does not need to be the target of, or a witness to harassment in order for us to
consider that harassment in the totality of the circumstances; but he does need to know
about it. . . . [T]he district court properly declined to aggregate all claims made by all
Plaintiffs if they failed to show they were each aware of the harassment claimed by the
others.
Berryman, 669 F.3d at 718 (analyzing Jackson, 191 F.3d at 661); see also id. at 719 (citing
InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), to find that “Plaintiffs needed
to marshal basic evidence to show that they were individually aware of the harassment
experienced by other plaintiffs.”)
The Sixth Circuit requires an employee to become aware of similar discriminatory
conduct during the course of their employment in light of the Supreme Court’s instruction “that
claims based on a hostile work environment must be judged by both an objective and a
subjective standard.” Armstrong v. Whirlpool Corp., 363 F. App'x 317, 328 (6th Cir. 2010)
(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295
(1993). According to the Sixth Circuit, the requirement that a Plaintiff be aware of
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discriminatory behavior “is consistent with the underlying purposes of the hostile work
environment inquiry.” Id.
Consequently, in assessing the fourth prong for demonstrating a prima facie case of a
hostile work environment under Title VII, only comments or conduct of which Plaintiff had
knowledge during her employment will be deemed relevant to determine whether the harassment
created a hostile work environment. See, e.g., Meadows v. Wahler Auto. Sys., Inc., No. 13-CV11926, 2014 WL 4494361, at *12 (E.D. Mich. Sept. 12, 2014) (citing Armstrong, 363 F. App’x
at 328, for the proposition that the plaintiff learning about discriminatory actions in the
workplace during an investigation after she was employed was not enough “without actual
evidence that she, in fact, heard or knew about” the discriminatory actions that were the basis of
her hostile environment claim); Worthington v. Brighton Ford, Inc., No. 13-CV-10249, 2014 WL
555186 (E.D. Mich. Feb. 12, 2014) (citing Hawkins, 517 F.3d at 336, for the proposition “that a
factfinder may only consider similar acts of harassment if the ‘plaintiff becomes aware [of it]
during the course of his or her employment....’ ”); Fall v. MNP Corp., No. 07-10480, 2008 WL
1882669, at *12 n.8 (E.D. Mich. Apr. 24, 2008) (permitting incidents of sexual harassment not
directed at the plaintiff as evidence of a hostile environment, but only after, emphasizing that the
“[p]laintiff testified that she became aware of [the comments] . . . while she was employed by
Defendants.”).
With respect to satisfying the fifth prong for demonstrating a hostile work environment,
the Plaintiff need not know about the harassing activity if the proposed testimony will be
relevant in proving whether the Defendant knew or should have known of the harassment and
failed to implement prompt and appropriate corrective action. See Hawkins v. Anheuser–Busch,
Inc., 517 F.3d 321, 339 (6th Cir.2008) (“[A] company may be held liable for coworker
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harassment if its response manifests indifference or unreasonableness in light of the facts the
employer knew or should have known.”).
The Sixth Circuit has found that in order “[t]o establish that the employer ‘knew or
should have known’ of the co-worker harassment, the plaintiff need not necessarily have
reported it to a supervisor.” Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 276 (6th
Cir. 2009) (quoting Jackson, 191 F.3d at 663). “Where harassment is pervasive, knowledge may
be imputed to the employer.” Id. (citing Jackson, 191 F.3d at 663). The Sixth Circuit states the
proper standard for evaluating the fifth prong as follows:
When an employer implements a remedy, it can be liable for sex discrimination in
violation of Title VII only if that remedy exhibits such indifference as to indicate an
attitude of permissiveness that amounts to discrimination.
West v. Tyson Foods, Inc., 374 F. App'x 624, 632 (6th Cir. 2010) (quoting Blankenship v. Parke
Care Ctrs., Inc., 123 F.3d 868, 873 (6th Cir. 1997)). Accordingly, evidence that an employer
had actual or constructive notice of sexual harassment and exhibited indifference or
unreasonableness to the situation is both probative and relevant in establishing the fifth prong of
a prima facie case of a hostile work environment. See Tyson Foods, Inc., 374 F. App’x at 634
(quoting Sandoval v. American Bldg. Maintenance Industries, Inc., 578 F.3d 787, 802 (8th Cir.
2009), to find that “[i]n the context of sexual harassment claims, actual notice is established by
proof that management knew of the harassment.); see also Sandoval, 578 F.3d at 802 (quoting
Kunin v. Sears Roebuck and Co., 175 F.3d 289, 294 (3d Cir. 1999), to explain that “there can be
constructive notice in two situations: where an employee provides management level personnel
with enough information to raise a probability of sexual harassment in the mind of a reasonable
employer, or where the harassment is so pervasive and open that a reasonable employer would
have had to be aware of it.”) (citations omitted).
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1. The Testimony of Mr. Morrease Germany is Relevant and Not Unduly
Prejudicial
Defendant argues that Morrease Germany should not be able to testify regarding (1) his
observations of Steve Smith’s alleged behavior towards Plaintiff behind her back and “around
others,” and (2) comments that Durrell Washington allegedly made to Mr. Germany about
women in the workplace because Plaintiff was unaware of the statements during her
employment. See Dkt. No. 40 at 2-3. Further, Defendant argues that Mr. Germany’s proposed
testimony has no bearing on whether Defendant knew about the alleged harassment. Id. at 7.
Lastly, Defendant argues that even if the evidence is relevant it should be precluded because it is
unduly prejudicial. Id. at 9. The Court will address these arguments in turn.
a. Plaintiff Was, In Fact, Aware of the Behavior Regarding Steve Smith
Defendant argues that the potential testimony from Mr. Germany regarding the actions of
Mr. Smith would be irrelevant because the purported gestures by Mr. Smith were made “behind
Plaintiff when she was not looking.” Dkt. No. 31 at 10. According to the Defendant, “there is
no indication from Plaintiff in her deposition that she was aware of any of the acts about which
she now seeks to introduce evidence.” Dkt. No. 40 at 7.
After reviewing the record, the Court disagrees.
As an initial matter, Defendant
selectively relies on specific testimony from Mr. Germany, but turns a blind eye to Mr.
Germany’s subsequent testimony in which he undercuts the very assertion that Defendant
advances regarding Plaintiff’s knowledge of Mr. Smith’s actions:
Q. Was Vera ever able – let me ask you this. Did he do these gestures like behind her
back and make sure she didn’t see him doing the gestures, or were there times that
she would be able to see these gestures he was making?
A. Behind her back. She caught him maybe – she may have caught him a few times,
and if she – I think she might have said something to me. And if she said something
to me, I told her to go to report it to Cassie, because I was the assistant manager and
Cassie was the manager.
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Q. And you’re saying to your recollection it is possible that she said something to you
about what Steve was doing, is that your testimony?
A. Yes. I just reported – to clear up any involvement, I would say if you have any
problems, then you report it to the manager and the district manager.
Dkt. No. 31 at 18. (Germany Dep. Trans. at 24:8-24) (emphases added). Mr. Germany’s
deposition testimony that Plaintiff “may have caught [Mr. Smith]” and could have reported what
Mr. Smith was doing undercuts Defendant’s assertion that Plaintiff had no idea Mr. Smith was
making the gestures.
Defendant’s argument is further undercut by Plaintiff’s sworn affidavit from June 11,
2014, in which Plaintiff states that she recalled similar sexual comments and gestures on the part
of Mr. Smith. See Dkt. No. 38-4. In the affidavit, Plaintiff indicates that she recalled Mr. Smith
saying “it would fun [sic] to have sex with a girl like you.” Id. at ¶ 1; cf. Dkt. No. 31 at 17-19
(Mr. Germany’s testimony noting that Mr. Smith would mention to Mr. Germany that he would
like to have sexual relations with Plaintiff “[a]t least three times a week” and that Mr. Smith
discussed this often with others in the Shelby location).
Further, Plaintiff recalled similar incidents where she would see Mr. Smith making sexual
gestures with his tongue and fingers indicating oral sex, and making sexual gestures towards a
car imitating having sex with the car. Dkt. No. 38-4 at ¶ 3; cf. Dkt. No. 31 at 18 (Mr. Germany
noting that Mr. Smith would make gestures such as: “[a] thrusting of the lower body,” and him
having her perform oral sex on him. Also Mr. Germany noting that “if there was the occurrence
where [Plaintiff and Mr. Smith] both worked together, then [Mr. Smith] would [make gestures]
at least once a day,” and that “[s]he caught him maybe[.]” ).
While Plaintiff’s recollection may not match Mr. Germany’s description perfectly—for
example, Plaintiff doesn’t state she remembers Mr. Smith telling Mr. Germany that Mr. Smith
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wanted to have sex with her, and Plaintiff remembers Mr. Smith making gestures of oral sex on
her, and not him—the Court finds that it has sufficient facts to find that Plaintiff became aware
of similar acts of harassment during the course of her employment. See Hawkins, 517 F.3d at
336.
b. Plaintiff Was, In Fact, Aware of the Comments Made by Durrell
Washington
Defendant also seeks to preclude testimony from Mr. Germany regarding comments
made by Durrell Washington. Again, the Defendants argue that, “there is no indication from
Plaintiff in her deposition that she was aware of any of the acts about which she now seeks to
introduce evidence.” Dkt. No. 40 at 7.
With respect to the comments that Durrell Washington allegedly made to Mr. Germany,
the Court, again disagrees with Defendant. Mr. Germany testified in his deposition that he
remembers Mr. Washington saying something along the line that women were not fit to work on
cars:
Q. What did you hear Durrell say to Vera that was sexual?
A. Well, he didn’t – I would say he didn’t say anything directly to her.
Q. Okay.
A. He said a general statement, which was I would consider a feminist statement
Q. Okay
A. Which I found it to be offensive.
Q. Okay
A. He said women should not be doing this job and should not be – they don’t know
enough to – something to the nature of they weren’t – they was not either skilled or
smart enough or – because they’re too feminine to be working around cars and/or on
cars.
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Dkt. No 38-3 at 3-4 (Germany Dep. Trans. at 12:16-25—13:1-4) (emphasis added). Similarly,
Plaintiff testifies that while she was working she remembers that she had a problem with Durrell
Washington making a statement that women were not fit to work on cars:
And the problem that I had had was Durrell had come over, and I was working over a car
and he had literally pushed me out the way where I almost slipped and fell into the pit.
And I did fall, but I didn’t fall into the pit, but I was very close to falling into the pit
where that car was parked. And he had just made a comment, stated that women don’t
belong working on cars, get out the way and pushed me over like I wasn’t even there,
and I had fell. . . . I believe Morease saw it. Morease saw it.
Dkt. No. 38-5 at 4 (Schmidlin Dep. Trans. at 55:8-19) (emphasis added); see also id. at 5
(Plaintiff outlining that she remembers Mr. Washington “telling me that I don’t belong in here,
women don’t belong in here,” and that she “did tell Cassie all of this[.]”). Given the deposition
testimony of both Mr. Germany and Plaintiff, the Court finds that it has sufficient facts to find
that Plaintiff became aware of similar acts of harassment during the course of her employment.
See Hawkins, 517 F.3d at 336
c. Mr. Germany’s Testimony Has Bearing on Whether Defendant Had
Notice of Alleged Harassing Conduct
Even if the Court were to find that Plaintiff did not become aware of these acts during her
employment, the Court would still find that the testimony is relevant to establishing Plaintiff’s
fifth prong of her prima facie case, because it is probative regarding whether Defendant knew or
should have known of harassment, yet failed to implement prompt and appropriate corrective
action.
Defendant emphasizes that Mr. Germany is an Assistant Manager and that he does not
have the power to hire, fire, promote, demote or discipline employees on his own. Dkt. No. 40 at
8. As a result, Defendant argues that what “Mr. Germany saw or heard cannot be imputed to
Uncle Ed’s and cannot be said to have put Uncle Ed’s on notice of anything.” Id.
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While Mr. Germany may not have been a manager at the time, Cassandra Bednarski was
a manager for Defendant. This is important because, in his deposition, Mr. Germany testified that
he did report complaints and problems about the work environment to Ms. Bednarski:
Q. What if anything did you do as an assistant manager with regards to what Steve was
saying about Vera and the gestures he was making towards Vera, what as an assistant
manager did you do about that other than this conversation that you had with Steve
where you told him it was inappropriate?
A. When I talked – I talked to him about it. I talked to – I talked to Gjon about it. And I
talked to – when I talked to Cassie, I didn’t tell her specifically that it was Steve, I
would just tell her to reiterate the sexual harassment, that it is possible that it could
go on around the shop. So I was saying that I see it, and it should be talked about
as a team, not directly as an individual.
Dkt. No. 31at 19. (Germany Dep. Trans. at 26:11-24) (emphases added). Such testimony by Mr.
Germany is probative to whether the Defendant was given actual or constructive knowledge of
Plaintiff’s harassment.
Accordingly, the Court will permit Mr. Germany to testify about
reporting incidents of harassment to management.
d. Mr. Germany’s Testimony is Not Unduly Prejudicial
Defendant’s final argument against Mr. Germany’s testimony is that, even if relevant, the
testimony should be excluded pursuant to Rule 403 of the Federal Rules of Evidence because it
is more prejudicial than it is probative. According to the Defendant, “Plaintiff cannot claim that
she was subjected to a hostile work environment based on comments or conduct that she knew
nothing about.” Dkt. No. 40 at 9 (emphasis in original). Defendant argues that allowing the jury
to hear about Mr. Germany’s testimony “will lead a jury to believe that Plaintiff experienced or
was impacted by these things – whether she knew about them or not,” and argues that “a jury
will have a very difficult time compartmentalizing what she actually knew about and
experienced from what someone later told her about after she quit.” Id.
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The Court is not persuaded by this argument. The Sixth Circuit has emphasized that Rule
403 “states that relevant evidence may be excluded ‘if its probative value is substantially
outweighed by a danger of . . . unfair prejudice.’ ” Kendel v. Local 17-A United Food &
Commercial Workers, 512 F. App'x 472, 483 (6th Cir. 2013) (quoting Fed. R. Evid. 403)
(emphasis in original). According to the Sixth Circuit the Rule 403 determination “requires a
judgment call by the district court, made with the assistance of the arguments provided by
counsel.” Id.
Looking at the arguments of the Defendant, the Court is not convinced that Mr.
Germany’s testimony is more prejudicial than it is probative. Defendant’s argument is built on
the presumption that Plaintiff did not have knowledge about the content of Mr. Germany’s
testimony. As discussed above; she did. Accordingly, the Court finds that this testimony would
not be more prejudicial than probative.
2. The Testimony of Mr. Gjon Micakaj is Relevant and Not Unduly Prejudicial
Defendant also argues that Gjon Micakaj should be precluded from testifying regarding
comments that Dean Falloni and Steve Smith allegedly made to Mr. Micakaj about Plaintiff in
March or April 2009 at Defendant’s Warren store. See Dkt. No. 40 at 2-3. Like Mr. Germany’s
testimony, Defendant argues that Mr. Micakaj’s proposed testimony has no bearing on whether
Defendant knew about the alleged harassment. Id. at 6. Similarly, Defendant also argues that
even if the evidence is relevant it should be precluded because it is unduly prejudicial. Id. at 8.
The Court will also address these arguments in turn.
a. Plaintiff Was, In Fact, Aware of the Comments Made By Dean Falloni and
Steve Smith
To preclude the comments made to Gjon Micakaj, Defendant argues that, “there is no
indication from Plaintiff in her deposition that she was aware of any of the acts about which she
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now seeks to introduce evidence.” Dkt. No.40 at 7. The Court disagrees. Mr. Micakaj states that
Plaintiff came to him “I think in June and said, you know, these guys are riding me pretty hard.”
Dkt. No. 31 at 30 (Micakaj Depo. Trans. 24:7-8) (emphasis added). Plaintiff’s last day working
for the Defendant was in July of 2009.
Accordingly, Mr. Gjon Micakaj’s testimony indicates that Plaintiff was aware, during the
course of her employment, of relevant statements made during the course of her employment for
which he will testify:
Q. Okay. But she told you afterwards they’re riding her pretty hard, is that right?
A. Yeah.
Q. What did she tell you other than that?
A. They were making comments about, you know, her hair, how long her hair was,
what they can do with it, how they can see her thong, basically what positions they
could put her in . . . .
Q. Okay. So they made comments about how long her hair was, what they could do with
it. What did she tell you? I want you to tell me everything you remember her telling
you.
A. How they said that, you know, she could suck a mean dick, how they could see her
thong, how they can wrap her long hair up in their fist and hit it doggy style.
Q. Anything else?
A. Not that I can recall.
Q. Okay. You did not hear those comments yourself, correct?
A. Yeah, I heard it from them when they told me –
Q. Okay.
A. – at the store.
Q. In March or April you heard something about her thong and you heard that she could
suck a mean dick, is that right?
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A. Yeah.
Dkt. No. 31 at 31 (Micakaj Depo. Trans. at 25-26:1-9) (emphases added). Given this testimony,
the Court finds that it has sufficient facts to find that Plaintiff became aware of similar acts of
harassment during the course of her employment. See Hawkins, 517 F.3d at 336.
b. Mr. Micakaj’s Testimony Has Bearing on Whether Defendant Had Notice
of Alleged Harassing Conduct
With respect to using the testimony to establish that defendant had notice, Mr. Micakaj
testified in his deposition that he did report complaints and problems about the work
environment. Defendant seems to concede this point, as it states that “Plaintiff may call Mr.
Micakaj as a witness to testify about what he allegedly said to Mr. Wisener, Mr. Kleber and Mr.
Coggins.” Dkt. No. 40 at 8. Accordingly, the Court will permit Mr. Micakaj to testify about
reporting incidents of harassment to management.
c. Mr. Micakaj’s Testimony is Not Unduly Prejudicial
Defendant lastly argues that, even if relevant, Mr. Micakaj’s testimony should be
excluded pursuant to Rule 403 of the Federal Rules of Evidence because it is more prejudicial
than it is probative. As with Mr. Germany’s testimony, the Court is not persuaded by this
argument. Again, Defendant’s argument is built on the presumption that Plaintiff did not have
knowledge about the content of Mr. Germany’s testimony. As discussed above; Plaintiff was
aware. Accordingly, the Court finds that this testimony would not be more prejudicial than
probative.
3. The Court Does Not Have Enough Information to Rule on the Potential
Testimony of Mr. Josh Summers
Plaintiff argues that testimony by Josh Summers “may be relevant to corroborate
Plaintiff’s testimony regarding the generally degrading attitude in which women were held at the
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Uncle Ed’s locations.” Dkt. No. 38 at 17. Defendant argues that any testimony from Josh
Summers would be irrelevant. Dkt. No. 40 at 6-7. Aside from a brief snippet of Mr. Summers’
testimony, the Court has not been provided with any detail of what Mr. Summers would testify
to, or a detailed explanation of what the Defendant seeks to preclude as irrelevant. Accordingly,
the Court withholds its ruling on the testimony of Mr. Summers.
4. Evidence that Cassandra Bednarski Experienced Sexual Harassment is
Irrelevant
Defendant also argues that Plaintiff may seek to offer evidence that Cassandra (“Cassie”)
Bednarski experienced sexual assault while employed with Defendant. Defendant specifically
contends that Plaintiff should be precluded from testifying that Cassandra Bednarski—a former
Store Manager for Uncle Ed’s—told Plaintiff in September 2009 that Ms. Bednarski had been
harassed by male co-workers, but did not complain about it because she did not want to lose her
job.
The Court agrees. As an initial matter, if Plaintiff testifies to this matter it would be
hearsay. However, the Court need not examine whether the proposed testimony is hearsay that
falls within an exception because even if Ms. Bednarski were the one testifying to the statements
the Court would deem the testimony irrelevant. The issue is irrelevant because Plaintiff did not
become aware of this alleged similar occurrence of harassment while the Defendant employed
her.
Plaintiff learned of the alleged harassment experienced by Ms. Bednarski in September of
2009; after Plaintiff was no longer working for Defendant. Looking at Plaintiff’s testimony,
Plaintiff testifies that she did not “know anything about [Ms. Bednarski] or [Ms. Bednarski]
being harassed[.]” Dkt. No. 32 at 15 (Schmidlin Dep. Trans. at 32:10-11). Accordingly, the
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Court finds that Plaintiff did not become aware of this alleged similar act of harassment during
the course of her employment. See Hawkins, 517 F.3d at 336.
Additionally, Plaintiff cannot testify that Ms. Bednarski’s statement is probative for
establishing whether the Defendant was on actual or constructive notice of harassment. Plaintiff
testified in her deposition that Ms. Bednarski stated she never told anyone about any harassment
she endured, and that Ms. Bednarski stated that she never planned on telling anyone who worked
for Defendant about it. Id. (Schmidlin Dep. Tans. at 32:11-14). Accordingly, this Court finds
that Cassandra Bednarski’s experiences are irrelevant, and will not help Plaintiff establish either
the fourth or fifth elements of her prima facie case
5. If Ms. Jen Smith Were to Testify, Her Testimony that She Experienced
Sexual Harassment Would Be Relevant
Defendant also briefly mentions that Plaintiff may seek to offer evidence that Jen Smith
experienced sexual assault while employed with Defendant. Specifically, Defendant seeks to
preclude Plaintiff from testifying that Jen Smith, another former co-worker at Uncle Ed’s,
allegedly told Plaintiff that she was subjected to sexual harassment while working for Defendant.
If Plaintiff testifies to this matter it would be hearsay. The Court will determine whether
the testimony falls within an applicable hearsay exception below. Nevertheless, if Ms. Jen Smith
were to testify to this fact, the Court finds that this Ms. Smith’s testimony would be relevant.
Unlike the situation with Ms. Bednarski, Plaintiff appears to have had knowledge of the sexual
harassment experienced by Ms. Smith:
I had asked her if she would come forward about things that had happened at the job[.] . .
. So I did have a conversation with her and just told her now that you don’t work there
anymore maybe you should come forward and say things that have been going on[.]
Dkt. No. 32 at 17 (Schmidlin Dep. Trans. at 38:14-25). Given this testimony, if Ms. Smith
decides to testify that she was subjected to sexual harassment, the Court would find that it has
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sufficient facts to find that Plaintiff became aware these similar acts of harassment during the
course of her employment. See Hawkins, 517 F.3d at 336.
However, Ms. Smith’s testimony would not be probative to the establishing whether the
Defendant was given actual or constructive notice of harassment. Plaintiff specifically testified
in her deposition that Ms. Smith did not come forward to report any sexual harassment in the
past, and that Ms. Smith wanted to stay out of it and not get dragged through anything. See Dkt.
No. 32 at 17 (Schmidlin Dep. Trans. at 38:17-25). Because Ms. Smith never told anyone who
worked for Defendant about her perceived harassment, the Court will not find that she put
Defendant on actual or constructive notice of sexual harassment.
B. Hearsay
Admissibility of hearsay evidence is set forth in Rule 801(c) which generally labels out of
court statements made by a declarant that are offered to prove the truth of the matters asserted as
hearsay. Fed. R. Evid. 801(c). Non-hearsay statements are set forth in Rule 801(d)(1) and
801(d)(2). Rule 801(d)(2) states that statements offered against an opposing party are not
hearsay if the statements were made by the party in an individual or representative capacity,
made by a person whom the party authorized to make a statement on the subject, or made by the
party's agent or employee on a matter within the scope of that relationship while it existed. Fed.
R. Evid. 801(d)(2). Many exceptions to the hearsay rule are set forth in Rules 803 and 804.
1. Plaintiff’s Testimony About Jen Smith’s Comments Constitutes Inadmissible
Hearsay
Defendant seeks to preclude Plaintiff from testifying that Jen Smith, another former coworker at Uncle Ed’s, allegedly told Plaintiff that she was subjected to sexual harassment while
working for Defendant. Defendant seeks to preclude this testimony pursuant to Rule 801(d)(2) to
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the extent that Plaintiff seeks to introduce this testimony to prove that Ms. Bednarski believes
she was subject to a hostile work environment.
Notably, the Plaintiff does not respond to Defendant’s arguments. Plaintiff testified that
the statements made by Ms. Smith were made after Ms. Smith was no longer an employee for the
Defendant. There is no indication that Ms. Smith was speaking within the scope of her duties as
a manager. Furthermore, in failing to address Defendant’s argument, Plaintiff advances no other
hearsay exceptions. Accordingly, this statement will be deemed inadmissible hearsay.
Defendant also seeks to preclude Plaintiff from testifying that Jen Smith allegedly told
Plaintiff that Uncle Ed’s would never terminate Dean Falloni because he was too good at
working on cars. Again, Defendant seeks to preclude this testimony pursuant to Rule 801(d)(2)
to the extent that Plaintiff seeks to introduce this testimony to prove that Ms. Smith’s assertion
was the actual stance Defendant held with respect to Mr. Falloni. Again, there is no indication
that Ms. Smith was speaking within the scope of her duties as a manager. Plaintiff advances no
other hearsay exceptions. Accordingly, this statement will also be deemed inadmissible.
2. Plaintiff’s Testimony About Whether Morrease Germany, in Fact, Informed
Cassandra Bednarski About Harassment Constitutes Inadmissible Hearsay
Lastly, Defendant argues that Plaintiff should be precluded from testifying that Morrease
Germany told Plaintiff that Steve Smith was making sexual comments about Plaintiff behind her
back, and that Mr. Germany said to Plaintiff that he reported those comments to Ms. Bednarski.
The Court finds that Plaintiff will be able to testify about the comments Mr. Germany made to
her, but she will not be able to testify that Mr. Germany did, in fact, tell Ms. Bednarski about the
alleged harassment because Plaintiff specifically testified that she did not have personal
knowledge of that fact. See Dkt. No. 32 at 18 (Schmidlin Dep. Trans. At 136:6-7 (“Q. Do you
know if [Mr. Germany] did talk to Cassie about it? A. I don’t know. I didn’t ask.”)).
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IV. CONCLUSION
For the reasons discussed herein, the Court will DENY in part and GRANT in Part
Defendants In Limine Motions to Exclude Irrelevant Evidence [#31] and Hearsay Statements
[#32].
SO ORDERED.
Dated: November 10, 2014
/s/Gershwin A Drain
Hon. Gershwin A. Drain
United States District Court Judge
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