Wigginton v. The University of Mississippi et al
ORDER denying 115 Motion in Limine; denying 116 Motion in Limine; denying 117 Motion in Limine; denying 118 Motion in Limine; denying 119 Motion in Limine; granting 122 Sealed Motion. Signed by Senior Judge Neal B. Biggers on 10/20/2017. (llw)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
MICHAEL WIGGINTON, JR.
CIVIL ACTION NO. 3:15CV093-NBB-RP
THE UNIVERSITY OF MISSISSIPPI,
CHANCELLOR DAN JONES,
PROVOST MORRIS STOCKS,
DEAN JOHN KISS, DEAN VELMER BURTON,
AND CHAIR ERIC LAMBERT
This cause comes before the court upon the defendants’ motions in limine. Upon due
consideration of the motions, responses, exhibits, and applicable authority, the court is ready to
The Fifth Circuit has noted that “[m]otions in limine are frequently made in the abstract
and in anticipation of some hypothetical circumstance that may not develop at trial.” Collins v.
Wayne Corp., 621 F.2d 777, 784 (5th Cir. 1980). It is axiomatic that the court should exclude
evidence in limine only when it is clearly inadmissible on all potential grounds. Hawthorne
Partners v. AT&T Technologies, Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993) (citing Luce v.
United States, 469 U.S. 38, 41 n.4 (1984)). “Evidentiary rulings, especially those addressing
broad classes of evidence, should often be deferred until trial so that questions of foundation,
relevancy, and potential prejudice can be resolved in the proper context.” Gonzalez v. City of
Three Rivers, No. C-12-045, 2013 WL 1150003, at *1 (S.D. Tex. Feb. 8, 2013) (citing Sperberg
v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975)). “Denial of a motion in
limine does not necessarily mean that all evidence contemplated by the motion will be admitted
at trial. Denial merely means that without the context of trial, the court is unable to determine
whether the evidence in question should be excluded.” Hawthorne Partners, 813 F. Supp. at
1401. With this standard in mind, the court turns to the defendants’ motions in limine.
First, the defendants seek to exclude testimony and evidence showing that a younger
African-American male and a younger Caucasian female were hired as new tenure-track
professors after the plaintiff’s tenure application was denied. The defendants argue exclusion on
grounds of relevancy, asserting that these employment decisions are too dissimilar in nature to
the plaintiff’s tenure denial to be probative, and because admission of the evidence would be
more prejudicial than probative under Fed. R. Evid. 403. The plaintiff asserts that such evidence
is relevant in that it tends to suggest that unlawful discrimination toward older white males
served as the motivation for Wigginton’s denial of tenure and promotion and eventual
termination. The plaintiff further argues that to exclude evidence under Rule 403 requires that
the evidence be substantially more prejudicial than probative. The court finds that this motion
should be denied at this time as overly broad and premature. Defense counsel may raise
objections as appropriate at trial.
Second, the defendants seek to preclude the plaintiff from introducing opinion testimony
regarding his qualification for tenure at the time he applied in 2014. The defendants assert that
such an opinion would require specialized knowledge under Fed. R. Evid. 702, and the plaintiff
did not designate any expert witnesses. The plaintiff argues that no scientific, technical, or other
specialized knowledge is required to form an opinion as to the plaintiff’s qualifications for
tenure. The plaintiff asserts that all that “is required is reading comprehension, which is familiar
in the average person’s everyday life.” Doc. 127. The plaintiff further asserts that the motion is
overly broad in that it “seeks a blanket ban on any testimony which would suggest that Dr.
Wigginton was wrongly denied tenure for which he was qualified” and that “[t]o the extent any
testimony is deemed to be subject matter beyond the ken of a layperson, an application will be
made to the court to qualify any witness who testifies.” Id. The court finds that the motion is
overly broad and premature and should be denied at this time.
Third, the defendants seek to exclude evidence or testimony related to allegations that a
fellow faculty member, Linda Keena, told certain graduate students that the departmental faculty
was made up of “too many old, white men.” The defendants argue that in addition to being
double hearsay, the statement should also be excluded because Keena was not an administrator
and had no authority over the tenure decision underlying the plaintiff’s claims. The defendants
also seek to exclude evidence that defendant Velmer Burton, Dean of the School of Applied
Sciences at the time, told a former assistant dean that he wanted to “rid the school of older
professors.” The plaintiff also complained of the University’s use of diversity metrics, diversity
goals, and a diversity initiative as factors contributing to the denial of his tenure application, but
according to the defendants, he has produced no evidence that any such goal, initiative, or metric
played any role in his tenure application process. The plaintiff argues that a motion to exclude
probative evidence based on the defendants’ speculation that some testimony may constitute
hearsay is not ripe for decision at this time and must be denied. Any objection under Fed. R.
Evid. 802 is more appropriately entered at trial as it would allow the court to consider the merits
of the objection in the proper context as opposed to guessing what testimony or evidence will be
presented. Further, the plaintiff argues that the evidence may be admitted under Rule 803 to
show Burton’s state of mind and motive for recommending against granting tenure and Keena’s
state of mind and motive for voting against the plaintiff’s tenure application to his detriment.
The court agrees with the plaintiff that the motion is overly broad and premature, and it will be
Fourth, the defendants seek to exclude evidence or testimony related to certain types of
damages at trial – specifically, back pay and front pay for lost wages. The defendants base their
argument on their assertion that the plaintiff did not adequately mitigate his damages. Back pay
is not awarded during periods of time in which a plaintiff is employed in a comparable position.
Palasota v. Haggar Clothing Co., 499 F.3d 474, 486 (5th Cir. 2007). Whether the relevant
position is comparable and whether the plaintiff’s back pay earnings should be tolled is a
question for the jury. Id. The defendants complain that the plaintiff failed adequately to mitigate
his damages when he found comparable employment at Troy University but later voluntarily
resigned from the position. The plaintiff contends that he has gone to considerable effort to
mitigate his damages by seeking and gaining employment at Troy University and later Tulane
University and the University of Southern Mississippi. Whether a plaintiff has mitigated his
damages is a question of fact for the jury. Hill v. City of Pontotoc, Miss., 993 F.2d 422, 427 (5th
Cir. 1993). The court finds this motion overly broad and premature, and it will be denied at this
Fifth, the defendants seek to exclude evidence or testimony related to a 2016 illness and
hospitalization of the plaintiff. The plaintiff claims that a bacterial infection he suffered in 2016
was brought on by the stress of a 700-mile commute to Troy, Alabama, for his job which he
would not have made if he had been allowed to continue work at the University of Mississippi.
Defendants assert there is no admissible proof that the infection he suffered in June 2016 was
caused by or related to the denial of his tenure and promotion application in May 2014. The
plaintiff argues that the motion is overly broad and that the evidence of his 2016 illness and
hospitalization is probative of the fact that he suffered emotional distress and mental anguish as a
result of the defendants’ misconduct. He asserts that he should be allowed to call Dr. Charles
Hill and Dr. S. Todd Threadgill, his treating physicians, and that this motion is not ripe for
decision until the plaintiff solicits testimony from these doctors with regard to their opinions as
to the cause of his illness. The plaintiff asks that the motion be denied and any objections
reserved for trial. The court agrees, and the motion will be denied at this time.
Finally, the defendants seek to exclude evidence and testimony regarding unrelated issues
including evidence of an alleged disagreement between defendants Lambert and Burton after they
made their respective recommendations on the plaintiff’s tenure application. The defendants
anticipate that the plaintiff may seek to introduce evidence of a 2015 disagreement regarding the
potential hire of a visiting professor who had apparently been accused of harassment at a
previous place of employment. The court finds no relevancy of the evidence set forth, and it will
be excluded. Further, the plaintiff appears to have confessed the motion because he filed no
response or objection to it. The court finds that the motion should be granted.
Accordingly, it is ORDERED AND ADJUDGED
that the defendants’ motion in limine regarding dissimilar employment decisions
that the defendants’ motion in limine regarding qualification for tenure is
that the defendants’ motion in limine regarding miscellaneous allegations is
that the defendants’ motion in limine regarding lost wages is DENIED;
that the defendants’ motion in limine regarding medical damages is DENIED;
that the defendants’ motion in limine regarding private and unrelated information
This, the 20th day of October, 2017.
/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE
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