Sievers v. Gojet Airlines, LLC

Filing 57

MEMORANDUM AND ORDER. (See Full Order for Rulings on Motions in Limine)IT IS FURTHER ORDERED that the parties joint motion for hearing 56 is granted and the Court will hold a final pretrial hearing in this case on Monday, November 27, 2017 at 9:30 a.m. in Courtroom 14-South. Counsel must meet and confer in advance of the hearing and be prepared at the hearing to argue any remaining disputes about evidentiary issues, including the admissibility of deposition testimony and other discov ery responses, as set forth above. They must bring a list of all exhibits that can be received into evidence without objection or further foundation, and they must be prepared to discuss the expected length of the trial and any other anticipated trial issues. Signed by District Judge Catherine D. Perry on 11/13/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DUSTIN SIEVERS,
Plaintiff,
vs.
GOJET AIRLINES, LLC,
Defendant.

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Case No. 4:16 CV 1330 CDP

MEMORANDUM AND ORDER
This case is set for jury trial on December 6, 2017. The parties have filed motions
in limine and have requested a pretrial hearing. By this order I will set a final pretrial
hearing for Monday, November 27, 2017, at 9:30 a.m. This order also rules on the
motions in limine and provides some guidance on some of the disputes raised in the
parties’ pretrial briefs. Given my rulings here, I expect the parties to again engage in
good faith attempts to resolve this case before the final pretrial hearing. In the event they
cannot resolve the case, counsel must attempt to resolve any objections to the pretrial
submissions. At the final pretrial they must present a list of all exhibits that can be
received into evidence without objection. They must also be prepared to argue all
objections to deposition testimony, interrogatories and requests for admission that they
have not resolved. They must bring with them the transcripts of the depositions and any
necessary discovery responses so I can rule on any disputes at the hearing. Counsel will
also be expected to advise me of the expected length of trial, and be prepared generally to

discuss all aspects of the trial. My rulings on the motions in limine, however, will not be
reconsidered at the conference.
Scope of Plaintiff’s Complaint
Plaintiff’s trial brief indicates that he will proceed to trial on three claims, all
brought under the Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA): (1) a claim that defendant discriminated against him on account of his
military obligations; (2) a claim that defendant retaliated against him as a result of his
exercise of his rights under USERRA; and (3) a claim that defendant failed to reinstate or
continue his employment following a period of military service. Plaintiff indicates that
he will seek lost wages and benefits including back and front pay, liquidated damages for
willful violation of USERRA, and attorneys’ fees and costs.
Defendant’s trial brief argues that plaintiff must elect between the various types of
USERRA violations alleged and that he cannot obtain front pay or back pay after the
offer of reinstatement.1 My review of the pleadings shows that plaintiff’s complaint
encompasses all of these claims, and that plaintiff is not required to elect among the
claims. Plaintiff may attempt to make a submissible case to the jury in support of the
USERRA claims brought under § 4311 and § 4312. Clegg v. Arkansas Department of
Correction, 496 F.3d 922 (8th Cir. 2007), does not preclude this. See Mace v. Willis,
2017 WL 1437060, at * 9 (D.S.D. April 21, 2017) (holding that “Sections 4312 and 4311
are not mutually exclusive in all factual situations . . . where an employee is not
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Neither party filed motions for summary judgment, but parts of the motions in limine seek
relief that would essentially be granting partial summary judgment. This is not a proper purpose
of a motion in limine.

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reemployed, there is nothing textually within USERRA that would limit a plaintiff to
asserting a claim under only § 4312. In other words, in the case of an employer who is
alleged to have violated USERRA by not reemploying the service member, sections 4312
and 4311 are not mutually exclusive.”).
Plaintiff may submit evidence supporting his request for an award of front pay at
trial as part of his case in chief, but the jury will not be asked to award front pay, as that
is an equitable remedy to be determined by the Court on post-trial motions, if appropriate.
The issues of the reasonableness of plaintiff’s refusal of the offer of reinstatement and his
entitlement to back pay are for the jury to decide.
Whether plaintiff will actually make a submissible case, of course, is not now
before me, and nothing in this ruling precludes defendant from raising any issues it
believes are appropriate in a motion for judgment as a matter of law at the close of
plaintiff’s case or at the close of all the evidence.
Motions In Limine
Defendant’s motion in limine is granted with regard to John Truelson’s
complaints, as this former employee’s claims are not relevant to plaintiff’s claims in this
case. To the extent there is any relevance, the probative value of this evidence is
substantially outweighed by the danger of unfair prejudice and confusion. Defendant’s
motion in limine is denied as to the argument about front pay and back pay after the
reinstatement offer, for the reasons described above. The remaining portions of
defendant’s motion in limine are granted as plaintiff concedes that damages are not

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allowable for emotional distress and that evidence regarding the size of defendant or its
law firm is not proper.
Plaintiff’s motion in limine is granted as to the experiences of other employees
regarding military leave. To the extent this evidence might have any relevance, its
probative value is substantially outweighed by the danger of unfair prejudice and
confusion. Because defendant’s intent and state of mind are relevant both to the issues of
discrimination and retaliation and to willfulness, defendant’s witnesses may testify that
they believed they had a right to request documentation from plaintiff consistent with a
collective bargaining agreement, but the collective bargaining agreement itself will not be
admitted into evidence. Plaintiff’s counsel remains free to argue to the jury that a
collective bargaining agreement cannot displace the provisions of USERRA and may
request a jury instruction to that effect. Evidence of USERRA training is relevant to the
willfulness issue and will not be excluded. No party will be allowed to testify about the
meaning of the Code of Federal Regulations, although this ruling does not prevent
witnesses from testifying about statements made by plaintiff to others or made by
defendant’s employees to plaintiff. Of course, settlement statements and negotiations are
not admissible, although that does not preclude evidence about the offer of reinstatement,
as it is directly relevant to plaintiff’s § 4312 claim and is not being offered for a purpose
prohibited by Fed. R. Evid. 408.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion in limine [45] is granted in
part and denied in part as follows:

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I. is denied;
II. is granted in part and denied in part as set out above: defendant’s witnesses may
testify about the collective bargaining agreement, but the collective bargaining agreement
itself will not be admitted into evidence;
III. is granted;
IV. is denied;
V. is granted;
VI. is denied, but neither party will be allowed to introduce evidence that was not
produced in response to discovery obligations;
VII is granted;
VIII is granted and the rule excluding witnesses will be enforced; defendant may
have one corporate representative present throughout the trial;
IX is granted, except as it relates to the offer of reinstatement; and
X is granted.
IT IS FURTHER ORDERED that defendant’s motion is limine [51] is granted in
part and denied in part as follows:
II A. is granted;
II B. is granted;
II C. is denied;
II D. is granted; and
II E. is granted.

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IT IS FURTHER ORDERED that the parties’ joint motion for hearing [56] is
granted and the Court will hold a final pretrial hearing in this case on Monday,
November 27, 2017 at 9:30 a.m. in Courtroom 14-South. Counsel must meet and confer
in advance of the hearing and be prepared at the hearing to argue any remaining disputes
about evidentiary issues, including the admissibility of deposition testimony and other
discovery responses, as set forth above. They must bring a list of all exhibits that can be
received into evidence without objection or further foundation, and they must be prepared
to discuss the expected length of the trial and any other anticipated trial issues.

______________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 13th day of November, 2017.

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