Storr v. Alcorn State University
ORDER granting 45 Motion in Limine; granting 46 Motion in Limine in part for the reasons set out in the Order. Signed by District Judge Daniel P. Jordan III on August 11, 2017. (SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
MICHAEL D. STORR
CIVIL ACTION NO. 3:15-CV-618-DPJ-FKB
ALCORN STATE UNIVERSITY
This employment-discrimination case is before the Court on cross motions in limine [45,
46] filed by Plaintiff Michael D. Storr and Defendant Alcorn State University. Having fully
considered the motions, the Court rules as follows:
Storr is the former Chief of Campus Police for Alcorn State University (“ASU”). Eleven
days after Storr returned from medical leave, ASU held its homecoming football game, and a
traffic jam occurred. Three days later, ASU fired Storr purportedly for the jam, and he then filed
charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”)
alleging disability-based discrimination and retaliation. Once granted his right to sue, Storr sued
ASU under the Americans with Disabilities Act (“ADA”) and the Family Medical Leave Act
(“FMLA”). The case is set for trial August 28, 2017.
As summarized by the Fifth Circuit Court of Appeals:
A motion in limine is a motion made prior to trial for the purpose of prohibiting
opposing counsel from mentioning the existence of, alluding to, or offering
evidence on matters so highly prejudicial to the moving party that a timely motion
to strike or an instruction by the court to the jury to disregard the offending matter
cannot overcome its prejudicial influence on the jurors’ minds.
O’Rear v. Fruehauf Corp., 554 F.2d 1304, 1306 n.1 (5th Cir. 1977) (citation and internal
quotation marks omitted).
Storr’s Motion in Limine 
Storr seeks to exclude evidence related to two issues: (1) statements made in EEOC
documents; and (2) whether Storr failed to mitigate his damages. For the reasons that follow, the
first request is granted in part, and the second is granted.
The parties dispute the admissibility of two EEOC documents—the Notice of Right to
Sue and the investigator’s Summary of Interview prepared after a telephonic interview with
Storr. ASU lists both as exhibits in the proposed pretrial order; Storr seeks to exclude them.
The admissibility of EEOC-related documents has been frequently litigated, but perhaps
not in this exact context. Starting with Smith v. Universal Services, Inc., the Fifth Circuit
reversed a trial court’s decision to exclude “the EEOC report, consisting of a summary of the
charges, a brief review of the facts developed in its investigation, and its findings of probable
cause that violations exist.” 454 F.2d 154, 157 (5th Cir. 1972). The court reasoned:
[T]o ignore the manpower and resources expended on the EEOC investigation
and the expertise acquired by its field investigators in the area of discriminatory
employment practices would be wasteful and unnecessary.
The fact that an investigator, trained and experienced in the area of
discriminatory practices and the various methods by which they can be secreted,
has found that it is likely that such an unlawful practice has occurred, is highly
probative of the ultimate issue involved in such cases. Its probative value, we
believe, at least outweighs any possible prejudice to defendant.
There are, however, limits to the Smith holding. First, in McClure v. Mexia Independent
School District, the Fifth Circuit noted that EEOC “determinations and findings of fact . . . are
admissible as evidence in civil proceedings as probative of a claim of employment
discrimination.” 750 F.2d 396, 399 (5th Cir. 1985). But the court went on to hold that Smith
does not mean “the entire EEOC file [is] admissible,” id. at 400, and that admitting the file in
that case was “erroneous,” id. at 402.
Second, not all EEOC determinations fall within the Smith presumption. In Cortes v.
Maxus Exploration Co., the EEOC issued a “determination of no probable cause regarding
Cortes’ charge of sex discrimination.” 977 F.2d 195, 201 (5th Cir. 1992). Despite Smith and
McClure, the trial court concluded that the EEOC’s findings were too conclusory and tentative to
overcome Federal Rule of Evidence 403. Id. at 201–02. The Fifth Circuit agreed, noting that its
prior precedent should not “be read as leaving district courts without discretion under Rule 403
to exclude such reports if their probative value is substantially outweighed by prejudicial effect
or other considerations enumerated in the rule.” Id. at 202; see also E.E.O.C. v. Manville Sales
Corp., 27 F.3d 1089, 1095 (5th Cir. 1994) (quoting Cortes, 977 F.2d at 201−02). Those other
enumerated considerations include “confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
With this general background, the Court turns to Storr’s more specific objections, starting
with the Notice of Right to Sue. In that document, the EEOC stated that it was closing its file
and checked the box associated with the following reason:
Based upon its investigation, the EEOC is unable to conclude that the information
obtained establishes violations of the statutes. This does not certify that the
respondent is in compliance with the statutes. No finding is made as to any other
issues that might be construed as having been raised by this charge.
EEOC Notice [36-13] at 1. ASU cited this document in its summary-judgment memorandum as
proof that the “EEOC was unable to find any violation of the ADA.” Def.’s Mem.  at 3–4.
Fearing similar arguments at trial, Storr moves in limine to exclude it.1
Under Rule 403, the Court begins by noting that the probative value of the EEOC’s
Notice of Right to Sue is slight. In contrast to Smith, the EEOC did not make a concrete
determination as to Storr’s claim. Instead, the EEOC merely checked a box indicating that it was
closing its file because it “was unable to conclude that the information obtained establishes
violations.” See EEOC Notice [36-13] at 1. The very next sentence states, “This does not certify
that the respondent is in compliance.” Id. These bare conclusions offer little probative value,
and any probative value that might exist would be substantially outweighed by the risk of unfair
prejudice, confusion, and—not insignificantly—delay. See Houston v. Miss. Dep’t of Human
Servs., No. 3:13-CV-773-DPJ-FKB, 2015 WL 7777275, at *2 (S.D. Miss. Dec. 2, 2015)
(granting motion in limine to exclude similar EEOC notice) (citing Smith v. Tower Auto.
Operations, USA, 1, LLC, No. 3:13-CV-00967-CWR, 2014 WL 1404734, at *2 (S.D. Miss. Apr.
10, 2014) (same)). This portion of the motion in limine is therefore granted.
Similar issues exist with respect to the Summary of Investigation, though the question is
more complicated. See Notes [36-12]. On June 5, 2015, investigator Antonio Jones interviewed
Storr and prepared a summary. Though the document is described as a “SUMMARY OF
INTERVIEW,” it contains only one passage where Jones recorded something Storr said.
According to the summary, Storr “acknowledged and stated he believes he was terminated
The parties dispute whether ASU agreed during the pretrial conference to withdraw this exhibit,
and the Court’s notes back Storr’s recollection that it did. Regardless, the document should be
because of a homecoming traffic jam.” Id. at 1. The rest of the document claims to record
conclusions investigator Jones had reached and conveyed to Storr, including:
“[P]er the investigation, he was not truthful about signing a year to year contract
. . . .”
“CP was informed evidence revealed he did not participate in a protected protest.”
“CP was informed a traffic jam does not meet the criteria for retaliation.”
“CP was informed evidence revealed he was not terminated while out on FMLA.”
“Evidence failed to show CP had any known disability on file and evidence failed
to show CP ever complained of any type of discrimination based on disability or
The document also includes other irrelevant factual and legal conclusions that Jones
supposedly conveyed to Storr, like telling him that he was an at-will employee and therefore
“due process is not considered and he does not have the right to appeal to [ASU’s]
Commissioner of the Board of Trustees.” Id. The document concludes with a section titled
“RESULT OF INTERVIEW”:
Based on CP’s allegations, CP failed to show a known disability played a role in
the decision to separate his employment. Evidence failed to show CP was
terminated while out on FMLA. [REDACTED] Evidence failed to reveal CP
participated in any protected protest. Evidence revealed CP was terminated as an
“AT WILL employee” which he signed on August 14, 2013. Evidence revealed
CP was not a contract employee. Explained in the event it is determined the
evidence does not support a finding of discrimination, the Director will issue a
Dismissal and Notice of Rights outlining how the charge can be pursued in
federal court within 90 days of the dismissal.
Id. at 2. Storr apparently requested the right-to-sue notice at the conclusion of the call.
Obviously, investigator Jones’s conclusions in the Summary of Interview go beyond the
more equivocal statement the EEOC issued in its Notice of Right to Sue. Storr now seeks to
exclude the summary based on three arguments: (1) it addresses the FMLA claim that the EEOC
was not tasked with investigating, so the investigator lacked jurisdiction to make the notes; (2) it
is not the best evidence of the conversation under Federal Rule of Evidence 1007; and (3)
admitting the summary would violate Rule 403. For the reasons that follow, the Court concludes
that these issues have not been adequately addressed and that further development is necessary.
To begin, Storr cites no authority for excluding the notes simply because they mention
the FMLA, a statute Storr cited in his charge of discrimination. But ASU ignores the argument
in its response. On a superficial level, it would seem that the Smith rationale for admitting
specific statements regarding a statute fades if the agency is not actually tasked with
investigating that statutory claim. But the Court would need more facts about this investigation
and legal analysis before ruling on this argument.
The best-evidence argument is no better. The parties argue back and forth—with no real
authority—about Federal Rule of Evidence 1007 and authentication requirements. But the Court
does not yet understand how Rule 1007 applies or how authentication relates to the best-evidence
rule. Storr does, however, try to clear things up in his reply. He first concedes the authenticity
of the notes themselves, but explains that it is not clear from the way those notes are written what
was actually said during the conversation. In other words, in the colloquial sense, the notes may
not be the best evidence of the spoken words. But Rule 1002 states that when a party wishes to
prove the content of an “original writing, recording, or photograph,” the original must be offered.
Fed. R. Evid. 1002. Storr has not explained how the best-evidence rule would prevent admission
of a document that memorializes a verbal conversation.
The more difficult question comes under Rule 403. As Storr says, the Summary of
Interview is not an agency determination or fact finding—it is just one document from the EEOC
file reflecting one investigator’s conclusions. Those conclusions are more emphatic than the
Notice of Right to Sue the EEOC later issued. Neither party has offered any substantive legal
analysis or legal authority indicating whether such documents contained within a file are
admissible, or what the applicable test should be—i.e., to what extent, if any, Smith should apply.
To complicate things further, the Summary of Interview includes a number of statements
that should be individually considered. Some may be admissible; some may not. For example, a
good portion of the opinions do not relate to any of Storr’s claims in this case and should not be
admitted. Also, there are legal conclusions that ASU seems to acknowledge might need to be
redacted. Conversely, notes about what Storr may have said during the call are arguably
admissible, assuming the document is otherwise admissible.
Until the parties identify the precise portions of the document that are in dispute and then
offer tailored arguments supported by legal authority, it is impossible for the Court to rule on this
issue. The parties are therefore instructed to confer and determine the extent to which they can
agree. If dispute remains as to any specific statements in the document, then the parties are
instructed to identify those statements and submit simultaneous memoranda of law explaining
their positions no later than August 21, 2017. No replies will follow.
Failure to Mitigate
Storr says ASU should not be allowed to explore its mitigation defense because ASU
failed during discovery to identify any substantially equivalent work Storr failed to seek. See
Pl.’s Mot.  at 3. To establish this affirmative defense, a defendant must show that
substantially equivalent work was available and that the plaintiff did not exercise reasonable
diligence to obtain it. See Sellers v. Delgado Coll., 902 F.2d 1189, 1193 (5th Cir. 1990). Here,
the parties dispute whether ASU has the burden of proving that equivalent work was actually
Unfortunately, the Fifth Circuit has been inconsistent in addressing this issue. In cases
like Sellers v. Delgado College, the court held that employers need not show the existence of
substantially equivalent work if they show that the plaintiff failed to make a reasonable effort to
find work. Id. But before Sellers, another panel from the Fifth Circuit seemed to reach the
opposite conclusion in Sparks v. Griffin, 460 F.2d 433, 443 (5th Cir. 1972).
Not surprisingly, Storr encourages the Court to apply Sparks, whereas ASU urges the
Court to follow the “newer” law and deny the motion because Storr cannot demonstrate
reasonable efforts to find a job. Def.’s Resp.  at 4. Until the Fifth Circuit resolves this issue,
the rule of orderliness applies, and the earlier-decided Sparks should be followed. See MilesHickman v. David Powers Homes, Inc., 613 F. Supp. 2d 872, 887 (S.D. Tex. 2009) (Atlas, J.)
(applying Sparks under rule of orderliness). A solid majority of districts within the circuit have
reached the same conclusion. See Newcomb v. Corinth Sch. Dist., No. 1:12-CV-00204-SA-DAS,
2015 WL 1505839, at *7 (N.D. Miss. Mar. 31, 2015), appeal dismissed (June 5, 2015);
Buckingham v. Booz Allen Hamilton, Inc., 64 F. Supp. 3d 981, 985 (S.D. Tex. 2014); Little v.
Tech. Specialty Prod. LLC, No. 4:11-CV-717, 2014 WL 1116895, at *3 (E.D. Tex. Mar. 18,
2014); Paulissen v. MEI Techs., Inc., 942 F. Supp. 2d 658, 677 (S.D. Tex. 2013); Starr v.
Oceaneering Int’l, Inc., No. 4:09-CV-0204, 2010 WL 644445, at *12 (S.D. Tex. Feb. 18, 2010).
But see Rybar v. Corp. Mgmt., Inc., No. 1:14-CV-242-KS-MTP, 2015 WL 12912342, at *2 (S.D.
Miss. July 16, 2015) (acknowledging rule of orderliness but concluding that court should follow
more recent Fifth Circuit opinions after Sellers). Accordingly, the Court rejects ASU’s argument
that it had no duty to identify substantially equivalent work.
ASU’s only other argument is that “mitigation of damages is a fact-intensive issue which
is best suited for jury deliberation.” Def.’s Resp.  at 4. But this cryptic response fails to
show how ASU can overcome Storr’s argument that the school’s discovery responses preclude
proof on this point. The motion is therefore granted.
ASU’s Motion in Limine 
ASU seeks exclusion of five categories of evidence: (1) any reference to punitive
damages; (2) certain damages; (3) testimony that Douglas Stewart attempted to “undermine”
Storr; (4) witnesses not previously disclosed; and (5) references to the need to punish ASU or
“send a message.” Storr does not seek punitive damages from ASU and therefore concedes the
first and last categories. The Court will address the others.
Exclusion of Certain Damages
ASU says that Storr should not be allowed to pursue back pay, front pay, liquidated
damages, or compensatory damages and then offers four general reasons why. The Court will
address them in the order they were presented.
ASU begins by generally saying that Storr failed to adequately disclose the basis for these
damages in his discovery responses and pre-discovery disclosures. Def.’s Mot.  at 2. As
ASU notes, under Federal Rule of Civil Procedure 26(a)(1)(A)(iii),
[A] party must, without awaiting a discovery request, provide to the other parties .
. . a computation of each category of damages claimed . . . [and] make available
for inspection and copying . . . the documents or other evidentiary material, unless
privileged or protected from disclosure, on which each computation is based,
including materials bearing on the nature and extent of injuries suffered . . . .
Fed. R. Civ. P. 26(a)(1)(A)(iii).
Here, Storr disclosed that he would seek a specified amount in damages in four
categories: (1) back wages; (2) future wages; (3) liquidated damages; and (4) compensatory
damages. Pl.’s Disclosures [46-1] at 2. He did not break those numbers down or provide his
method of calculation, electing instead to provide a lump sum for each category. Id. But he did
explain things a little better in his interrogatory responses:
Back wages are based on Plaintiff’s income on date Plaintiff was terminated to
present plus one year to trial. Future wages are based on what Plaintiff was
earning at the time of termination multiplied time three years. Plaintiff is entitled
to Liquidated Damages because of his FMLA claim. Plaintiff is entitled to
Compensatory Damages for pain and suffering. $300,000 is the limit set by
Pl.’s Resp. to Interrogs. [46-2] at 8.
It obviously would have been helpful for Storr to be more specific. But if ASU believed
his disclosures and responses were insufficient, then it was required under the local rules to file a
prompt motion to compel. Under Local Rule 26(a)(3), if a party fails to make required
disclosures, the other party
must move to compel disclosure and for appropriate sanctions . . . . The failure to
take immediate action and seek court intervention when a known fact disclosure
violation . . . occurs will be considered by the by the court in determining the
appropriate sanctions to be imposed regarding a subsequent motion filed under
FED. R. CIV. P. 37(c).
L.U. Civ. R. 26(a)(3) (emphasis added). Moreover, Local Rule 7(b)(2)(C) states that “[a] party
must file a discovery motion sufficiently in advance of the discovery deadline to allow response
to the motion, ruling by the court and time to effectuate the court’s order before the discovery
Here, ASU could see the rather slim nature of the disclosures when Storr first made them
on November 10, 2015. Yet it waited until June 6, 2017, to file this motion. By then, the
November 3, 2016 discovery deadline had passed. Had ASU made a timely motion, then the
Court and the parties could have fashioned a remedy that would have allowed Storr to
supplement and ASU to conduct any necessary follow-up discovery. Striking Storr’s damages
now would be unduly prejudicial. The Court will not, therefore, grant this motion solely on
ASU’s disclosure argument but will instead consider its three remaining arguments.
First, ASU says Storr “provides no evidence nor attempts to assert any expert testimony
regarding emotional pain, suffering, inconvenience, mental anguish, or loss of enjoyment of life due
to the alleged discrimination.” Def.’s Mot.  at 2. ASU offers no legal authority for this
argument, and as Storr correctly observes, he can establish these damages through his own
testimony. See Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1046−47 (5th Cir. 1998). In its
reply, ASU acknowledges that additional evidence is not always required, but seems to pivot and
suggest that Storr’s testimony in this case “may not be sufficient.” Def.’s Reply  at 1. The
jury will decide whether that is true; ASU has not provided a basis for excluding this evidence in
Second, ASU says that other than a U-Haul receipt, Storr failed to produce evidence in
his written-discovery responses supporting damages for expenses such as “movers, storage,
postage, or job hunting.” Def.’s Mot.  at 2. Again, Storr says his own testimony is sufficient and
adds that if ASU thought the responses were lacking, it should have filed a motion to compel. Pl.’s
Resp.  at 2.
On this record, the Court concludes that the better course would be to grant the motion and
require Storr to raise the issue outside the jury’s presence before offering the evidence. As an initial
point, both parties observe that the other offered no legal support for their position. They simply take
opposite sides on whether Storr can testify as to his bills. Though not argued directly, ASU’s
position seems to suggest a best-evidence concern that may be valid. Regardless, the parties need to
provide legal support if this issue arises again at trial. In addition, the Court is concerned with
Storr’s disclosures in this specific context. As noted above, ASU should have moved to compel. But
there is a difference between failing to move as to categories that were generically disclosed and
failing to move as to damages that are not referenced at all. Storr’s interrogatory responses suggest
that compensatory damages relate to emotional distress; there is nothing in his response that would
give ASU notice that he also sought damages for movers, storage, postage, or job hunting.
Accordingly, the Court grants this portion of the motion.2
Finally, ASU asserts that Storr
is unable to demonstrate damages for loss of salary, back wages, future wages, or
liquidated damages, as Plaintiff was hired as an at-will employee; therefore,
Plaintiff was not entitled to any alleged loss of salary for breach of contract, as no
contract existed between the Plaintiff and Alcorn State University.
Def.’s Mot.  at 3. This argument is hard to follow. It seems unlikely ASU would suggest that atwill status inoculates it from federal employment laws and the available remedies. Obviously it does
not. And Storr has not made any breach-of-contract or common-law wrongful-discharge claims. See
Am. Compl. . Finally, in its reply, ASU seems to drop its original argument as to these specific
wage-related damages, saying instead that Storr’s flimsy disclosures preclude him from proving these
damages at trial. As noted above, that argument should have been made long ago. Regardless, the
interrogatory responses adequately explain the method for determining the wage-related damages and
liquidated damages. ASU should know Storr’s salary, and Storr provided the time-period on which
those calculations would be based. This portion of the motion is denied.
Attempts to “Undermine” Storr
Storr’s subordinate at ASU was Douglas Stewart, and Storr believes Stewart attempted to
undermine his job security. According to Storr, Stewart lied about the reasons for the
homecoming traffic jam, causing Storr to pass those untruths on to his superiors. Storr claims
this evidence is relevant because ASU knew Stewart had lied and yet premised the dismissal on
the traffic jam. ASU believes any evidence regarding this theory would be speculative,
It may be that the Court has not seen all of the responses, and Storr can certainly raise that issue
argumentative, prejudicial, and beyond the scope of proper lay-witness opinion testimony. See
Def.’s Mot.  at 3–4 (citing Fed. R. Evid. 401–403, 701). But other than stating the basic
rules of evidence, ASU never really explains why this testimony should be inadmissible, much
less why it is so potentially prejudicial that it would require an in limine ruling. The motion is
ASU says that Storr listed several witnesses in the draft pretrial order that he failed to
identify during discovery. On this sole basis, the school sought to exclude these witnesses in its
initial motion. See id. at 4. ASU changed its argument, however, after Storr demonstrated that
he properly disclosed the witnesses in his pre-discovery disclosures and supplements. Now it
contends that the evidence is irrelevant and cumulative. Def.’s Reply  at 4. Normally, the
Court would not entertain an argument raised initially in reply, but Storr seemed to anticipate the
issue and briefly addressed it in his response. Regardless, this is not the type of issue that is so
potentially prejudicial that it would require an in limine ruling. As the case proceeds, ASU is
free to object, but the motion is denied.
The Court has considered all arguments. Those not specifically addressed would not
have changed the outcome. For the foregoing reasons, Plaintiff’s motion in limine  and
ASU’s motion in limine  are both granted in part. The parties are directed to simultaneously
file supplemental memoranda regarding the summary of interview on or before August 21, 2017.
SO ORDERED AND ADJUDGED this the 11th day of August, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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