Hubbell v. FEDEX Smartpost Inc.,

Filing 62

ORDER denying Motions in Limine 42 , 43 , 44 and 45 . Signed by District Judge George Caram Steeh. (BRad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SHERYL HUBBELL,
Plaintiff,
CASE NO. 14-13897
HON. GEORGE CARAM STEEH

v.
FEDEX SMARTPOST, INC.,
Defendant.
_____________________________/

ORDER DENYING MOTIONS IN LIMINE (DOC. 42, 43, 44, 45).
Plaintiff Sheryl Hubbell sued her former employer, FedEx Smartpost,
Inc., alleging violations of Title VII of the Civil Rights Act of 1964 and
Michigan’s Elliott-Larsen Civil Rights Act (ELCRA). The parties filed
multiple motions in limine. (Doc. 42, 43, 44, 55). For the reasons stated
below, the motions are DENIED.
I. Analysis
A. Defendant’s Motion in Limine to Exclude Evidence or Argument
Regarding Dismissed Claims and Other Irrelevant and Unduly
Prejudicial Evidence (Doc. 42)
Defendant seeks to prohibit plaintiff from introducing evidence or
referring to the allegations underlying her dismissed hostile work
environment claim. Defendant argues that referring to wrongdoing that
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does not rise to the level of an adverse employment action would severely
prejudice defendant, waste time, and confuse the jury.
Plaintiff responds that she does not intend to introduce evidence that
supports only the dismissed hostile work environment claim. But, plaintiff
notes that she may introduce evidence that, while relevant to the dismissed
claim, also supports the discrimination and retaliation claims. Plaintiff
asserts that this evidence is admissible as background evidence under
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) and under Fed.
R. Evid. 404(b) and 406.
While Plaintiff may not assert that she experienced a hostile work
environment, she may introduce evidence of alleged conduct that is
relevant to the question of whether she suffered an adverse employment
action. Johnson v. Watkins, No. 3:07CV621 DPJ-JCS, 2010 WL 2671993,
at *5 (S.D. Miss. June 30, 2010). “In other words, she may offer evidence
of acts taken against her that she contends ‘might have dissuaded a
reasonable worker from making ... a charge of discrimination.’” Id. (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
Defendant’s motion, therefore, is DENIED. But, the Court cautions plaintiff
that the alleged wrongful conduct may not be relevant. As in Johnson, for

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example, conduct occurring before the date that plaintiff engaged in
protected activity is not relevant to retaliation claims. Id.
The Court will not rule on the admissibility of this evidence under Fed.
R. Evid. 403 because it is not clear exactly what evidence plaintiff will offer
and whether it is reasonably related to the surviving claims. Defendant
may raise its Rule 403 objection at trial.
B. Defendant’s Motion in Limine to Exclude Evidence or Argument
Regarding a 2010 Failure to Promote Claim and a January 2013
Human Resources Complaint About a Medical Privacy Violation (Doc.
43)
Defendant argues that plaintiff’s 2010 failure to promote allegations
are improper because (1) she never reported to the EEOC and, as such,
failed to exhaust her administrative remedies, and (2) it is untimely under
the ELCRA’s three year statute of limitations. Based on plaintiff’s
response, it appears she merely intends to use the incident as background
evidence only. As such, defendant’s arguments fail. The EEOC filing
requirement does not prohibit plaintiff from using this prior act as
background evidence in support of a timely claim. Morgan, 536 U.S. at
113. Further, even if this event is untimely under the ELCRA, allegations of
events occurring before the relevant statutory period can be used as

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background evidence. See Campbell v. Human Servs. Dep't, 780 N.W.2d
586, 590-92 (2009).
Defendant also argues that plaintiff’s January 2013 complaint that
Todd Treman violated her medical privacy should be excluded because (1)
it is not a protected activity, and (2) it fails the Best Evidence Rule.
Pursuant to 42 U.S.C. § 2000e-3(a), a protected activity must relate to an
employer’s alleged activity that is unlawful under Title VII. While a
complaint of general mistreatment, like sharing private health information,
may not constitute a protected activity, here plaintiff is not complaining of
general mistreatment alone. Instead, plaintiff argues that this incident
relates to defendant’s alleged Title VII violations because her medical
information was shared due to her gender and the fact that she filed
discrimination complaints. Furthermore, plaintiff states that the Best
Evidence Rule does not prohibit her testimony about this complaint
because it arises out of oral discussion and is not evidenced by any emails
or written documents. The Court, therefore, finds that defendant has not
met their burden to bar this evidence on the grounds that the acts at issue
are not protected activity and are prohibited by the Best Evidence Rule. As
such, defendant’s motion in limine is DENIED.

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C. Defendant’s Motion in Limine to Exclude Improper Evidence
Regarding Front Pay Damages (Doc. 44)
Defendant asserts that aspects of plaintiff’s testimony to prove front
pay damages should be precluded because it is speculative.
The Court must consider the following facts in awarding front pay
damages:
(1) the employee's future in the position from which
she was terminated; (2) her work and life
expectancy; (3) her obligation to mitigate her
damages; (4) the availability of comparable
employment opportunities and the time reasonably
required to find substitute employment; (5) the
discount tables to determine the present value of
future damages; and (6) ‘other factors that are
pertinent in prospective damage awards.
Madden v. Chattanooga City Wide Serv. Dep't, 549 F.3d 666, 679 (6th Cir.
2008)(internal quotations omitted). The parties purportedly agree that a
plaintiff may testify regarding information relating to some of these factors,
including her current pay, job history, and desire to work until retirement
age. Defendant, however, argues that plaintiff’s testimony will not be able
to provide information relating to all of these factors. Defendant specifically
objects to permitting plaintiff to testify about her formula for calculating
damages and comparisons to the Social Security Work Index.
Plaintiff does not made an explicit argument regarding the Madden
factors. She instead asserts that a court should consider age, employment
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record, training, education, ability to work, and opportunities for
advancement. Andler v. Clear Channel Broad., Inc., 670 F.3d 717, 727
(6th Cir. 2012). Plaintiff believes that her testimony can address each of
these factors, and therefore, her alleged front pay damages will not be
speculative. Plaintiff’s reliance on Andler is inappropriate; it addresses
damages regarding loss of earning capacity caused by injury rather than
damages resulting from a Title VII violation. Id. at 726. Thus, even if the
information considered in Andler is also evaluated under some of the
Madden factors, plaintiff needs to address the remaining Madden factors.
Plaintiff has not presented information regarding each Madden factor
in her brief. But, it remains possible that she may be able to produce
evidence on each factor at trial. Defendant’s motion, therefore, is DENIED.
The Court, however, cautions plaintiff that she may need to rely on other
evidence to establish “the essential data necessary to calculate a
reasonably certain front pay award.” Arban v. W. Pub. Corp., 345 F.3d
390, 407 (6th Cir. 2003) (internal citations omitted). Failure to provide such
data may render plaintiff’s claim for front pay damages purely speculative.
D. Plaintiff’s Motion in Limine to Exclude Defendant’s Proposed
Exhibit 175
Plaintiff seeks to exclude defendant’s proposed exhibit 175, arguing
that it is irrelevant, not a record kept in the normal course of business, and
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that the probative value is substantially outweighed by a danger of unfair
prejudice. The proposed exhibit appears to be a large spreadsheet
containing information of employees hired between the date that Treman
began working at the Detroit station and the date that plaintiff was
terminated. (Doc. 45-2 at PageID 1136 – 1170). It includes the
employees’ names, start dates, sex, most recent title, and “promotion
information.” (Id.).
Plaintiff asserts that the information is not relevant and unfairly
prejudicial because it misrepresents promotion data. Plaintiff defines a
promotion as an employee moving into a new position in management.
(Doc. 45 at PageID 1128). She asserts that some of the data, namely that
reflecting moves from part-time to full-time employment, does not meet this
definition. Plaintiff also objects to the document listing employees who
were hired but not promoted. Plaintiff asserts that the exhibit should be
prohibited, or at least redacted to include only those employees with
promotions matching her definition of the term.
Defendant asserts that the document is relevant and its probative
value is not outweighed by a danger of unfair prejudice. The Court agrees.
Plaintiff’s case centers on allegations that Treman discriminated against
women by denying them advancement and promotional opportunities. This
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document illustrates the gender and promotion history of all individuals
hired from the time that Treman arrived at the Detroit station until plaintiff’s
termination. For purposes of this ruling, the Court assumes that Treman
was the decision maker and, if offered as a summary exhibit pursuant to
Rule 1006, that the underlying data has also been disclosed and will be
admitted. The Court finds that this information is likely relevant under Fed.
R. Evid. 402. Further, the Court agrees that the proposed exhibit’s
probative value is not outweighed by a danger of unfair prejudice.
Plaintiff’s argument on defining promotions goes to the proposed exhibit’s
weight, not its admissibility.
Defendant also asserts that the proposed exhibit is a record kept in
the normal course of business. At a pre-trial conference on May 22, 2017,
defendant stated that it uses PeopleSoft, an electronic software program, to
maintain employment records in its ordinary course of business.

This

document was generated in response to a query entered into PeopleSoft.
While the query may have been conducted for the purpose of trial, the
information that it uncovered was purportedly kept in the ordinary course of
business. The Court finds this information sufficient to rule that the
proposed exhibit is a record kept in the ordinary course of business. Any

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argument plaintiff makes regarding the documents creation post-trial likely
goes to the weight, not the admissibility, of the exhibit.
II. Conclusion
For the reasons stated above, Defendant’s Motion in Limine to Exclude
Evidence or Argument Regarding Dismissed Claims and Other Irrelevant
and Unduly Prejudicial Evidence (Doc. 42), Defendant’s Motion in Limine to
Exclude Evidence or Argument Regarding a 2010 Failure to Promote Claim
and a January 2013 Human Resources Complaint About a Medical Privacy
Violation (Doc. 43), Defendant’s Motion in Limine to Exclude Improper
Evidence Regarding Front Pay Damages (Doc. 44), and Plaintiff’s Motion in
Limine to Exclude Defendant’s Proposed Exhibit 175 are DENIED.
IT IS SO ORDERED.
Dated: May 25, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 25, 2017, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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