Pete v. Walgreen Co. et al

Filing 58

ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS IN LIMINE, AND (2) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTIONS IN LIMINE. 43 and 45 . Signed on 3/27/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

RACHEL PETE,
Plaintiff,
vs.
WALGREEN CO., SCOTT GROVES
and CAROL MIER,
Defendants.

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Case No. 15-0476-CV-W-ODS

ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
IN LIMINE, AND (2) GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTIONS IN LIMINE
Pending are Defendants’ Motions in Limine (Doc. #45), and Plaintiff’s Motions in
Limine (Doc. #43). Parties are reminded these rulings are interlocutory. Thus, the
denial of a request to bar evidence at this juncture preserves nothing for review, and the
parties may re-assert their objections at trial if they deem it appropriate to do so.
Evidence barred by this Order shall not be discussed in the jury’s presence (including
during opening statements) without leave of the Court. The parties are free to suggest
(out of the jury’s presence) that something has occurred during the trial that justifies a
change in the Court’s interlocutory ruling.
Defendants’ Motions in Limine
A. “David and Goliath” References
Defendants seek to exclude comments or reference to “the individual
Defendants’ wealth, Plaintiff’s own wealth, or comparing the wealth or size of Walgreens
to that of Plaintiff, including any comments or references that characterize this case as
one involving an individual against a large corporation.” Plaintiff does not intend to offer
such “David and Goliath” evidence or argument, but argues Defendants’ motion is
vague and overly broad in that it may prevent discussion of the nature of trial exhibits,
demonstrative exhibits, and other evidence. The Court grants the motion. The parties

shall not engage in “David and Goliath” commentary, but the Court notes nothing
prevents the parties from discussing the nature of exhibits and other evidence in the
record.

B. Probable Testimony of Absent Witnesses
Defendants seek to exclude speculation by Plaintiff as to the probable testimony
of witnesses who do not testify. Plaintiff does not oppose this motion. Accordingly, the
Court grants the motion.

C. Discovery Objections or the Court’s Ruling on Motions in Limine
Defendants seek to exclude argument or reference to objections to written
discovery or deposition questions. Plaintiff generally agrees these objections are not
appropriate. However, Plaintiff wishes to reference documents Defendants maintain
existed at one time, but did not produce in discovery. Plaintiff specifically identifies an
email Defendant Mier may have sent, but was not produced during discovery in this
matter. The Court grants the motion. The parties may not reference objections to
written discovery or deposition questions. However, testimony regarding the processing
of Plaintiff’s complaints is relevant and will be permitted.

D. Plaintiff’s or Plaintiff’s Co-Workers’ Opinions of Defendants’ Decisions
Defendants seek to exclude testimony by Plaintiff or her co-workers regarding
whether they agreed with Defendants’ handling of Plaintiff’s complaints, the actions
taken as a result of Plaintiff’s complaints, Plaintiff’s Performance Improvement Plan
(“PIP”), or Plaintiff’s discharge. Defendants argue such testimony is improper under the
business judgment rule, which allows employers to exercise their business judgment in
making employment decisions. In response, Plaintiff indicates she does not intend to
solicit opinions regarding applicable law. However, Plaintiff opposes the motion on the
basis that testimony regarding whether Defendants followed company policies, and
whether Defendants fairly applied the company’s disciplinary policies is relevant and
admissible.

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The Court grants in part and denies in part the motion. Plaintiff and her coworkers may not give subjective opinions as to whether Plaintiff was mistreated or
treated differently. Plaintiff and her co-workers may testify as to their understanding of
company policies and observations about how the policies were implemented by
supervisors.

E. “Harasser,” “Retaliator,” or Other Such Labels
Defendants seek to exclude testimony that labels another person as a
“harasser,” “retaliator,” or other related label. Plaintiff does not oppose the motion.
Accordingly, the Court grants the motion.

F. Evidence Beyond “Garden-variety” Emotional Distress
Defendants seek to exclude evidence of “garden-variety” emotional distress
beyond that alleged by Plaintiff’s Petition. Plaintiff does not oppose the motion.
Accordingly, the Court grants the motion.

G. Plaintiff’s September 2014 PIP was Retaliatory
Defendant argues Plaintiff will try to present evidence showing the September
2014 PIP was retaliatory. Doing so, Defendants argue, would improperly circumvent
Plaintiff’s charges of discrimination and her Petition. Plaintiff argues retaliation was
within the scope of her initial charge of discrimination, and therefore, should be
admissible as evidence of retaliation.
Plaintiff’s September 2014 charge of discrimination states Plaintiff felt she was
“targeted” and “received unwarranted disciplinary action, which other managers have
not received” by Defendant Groves, and was “more susceptible to disciplinary action”
after “submitting [Plaintiff’s] complaints regarding [Defendant Groves] to my district
manager.” Doc. #49-1. Plaintiff’s Petition alleges Plaintiff suffered retaliation for her
complaints. Doc. #1-1. Plaintiff’s initial charge of discrimination and Petition
encompass a claim of retaliation based upon Plaintiff’s September 2014 PIP.
Accordingly, the motion is denied.

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H. “Me Too” Evidence
Defendants argue Plaintiff will try to introduce testimony about complaints made
by employees other than Plaintiff. Defendants argue this testimony would be unduly
prejudicial and create confusion regarding whether Plaintiff suffered unlawful retaliation.
Plaintiff argues this testimony is proper because whether other employees were
“similarly situated” is a factual question for the jury, and is probative of how Defendant
Groves dealt with subordinate employees.
The Court denies the motion. Plaintiff identifies one witness who may present
testimony regarding complaints the witness made against Defendant Groves. The
Court will hear limited testimony from this witness, and others Plaintiff may wish to offer,
to determine whether the witness is similarly situated to Plaintiff before allowing the
admission of “me too” evidence.

I. Defendant Mier’s November 2015 Record of Discussion
Defendants seek to exclude evidence of Defendant Mier’s November 2015
Record of Discussion. Plaintiff does not intend to offer evidence of this sort unless such
evidence becomes relevant. Accordingly, the Court grants the motion.

J. Joey Jaramillo’s Complaints and Litigation Involving Other Employers
Defendants seek to exclude evidence of past complaints involving Joey
Jaramillo’s conduct as an employee with the Shawnee County Department of
Corrections and Roeland Park Police Department. Plaintiff does not oppose the motion.
Accordingly, the Court grants the motion.

K. Alleged Comment Regarding a Customer
Defendants seek to exclude evidence of a comment made by an unknown
manager calling a customer a derogatory term. Plaintiff does not oppose the motion.
Accordingly, the Court grants the motion.

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Plaintiff’s Motions in Limine
A. Defendant Mier’s Investigation Conclusion
Defendant Mier conducted an investigation into Plaintiff’s August 2014 complaint,
and concluded no further action was warranted. Plaintiff argues Mier’s conclusion
constitutes a conclusion of law that invades the province of the jury, and therefore,
should be excluded from evidence. Defendants argue Mier’s conclusion was not a legal
conclusion, but rather a conclusion of fact regarding whether Defendants policies were
followed and/or violated. Moreover, Defendants argue Plaintiff should be not permitted
to present evidence regarding the complaint she made, yet preclude Defendants from
showing their investigation and conclusion.
The Court agrees with Defendants, and denies the motion. Defendants will be
permitted to present evidence and testimony regarding their response and conclusion
following Plaintiff’s complaint.

B. Deb Miller’s Investigation Conclusion
In his deposition, Loss Prevention Manager Joey Jaramillo refers to former
District Manager Deb Miller’s investigation of Plaintiff’s March 2014 complaint and her
conclusion that it had no factual basis. Similar to the motion to exclude Defendant
Mier’s conclusion regarding Plaintiff’s complaint, Plaintiff argues Miller’s conclusion is a
legal one that invades the province of the jury, and should be excluded on that basis. In
opposing this motion, Defendants make the same argument they did against Plaintiff’s
motion to exclude Mier’s conclusion.
The Court denies the motion. Defendants will be permitted to present evidence
and testimony regarding their response and conclusion following Plaintiff’s complaint.

C. Defendant Mier’s Investigation Memorandum
Plaintiff seeks to exclude an investigation memorandum prepared by Defendant
Mier following Plaintiff’s complaints. Plaintiff argues the memorandum is hearsay not
subject to an exception, and lacks trustworthiness because it was prepared by Mier in
anticipation of litigation. Defendants argue the memorandum is admissible as a

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business record, and is relevant to show Defendants’ responses to Plaintiff’s
complaints.
The Court denies the motion. The memorandum is admissible and is relevant to
show Defendants’ responses to Plaintiff’s complaints. See Wolff v. Brown, 128 F.3d
682, 685 (8th Cir. 1997) (stating internal documents relied upon by the employer in
making employment decisions are not hearsay and “are relevant and admissible
because they help explain (or may help explain) the employer’s conduct.”).

D. Plaintiff’s Retention of Counsel
Plaintiff seeks to exclude evidence related to her retention of counsel.
Defendants object because Plaintiff retained counsel prior to her discharge, which
Defendants argue is evidence of her state of mind and motives. The Court grants the
motion. Defendants may not present evidence of Plaintiff’s retention of counsel.

E. Dismissed Claims and Parties
Plaintiff seeks to exclude evidence of Plaintiff’s gender discrimination and
harassment claims, on which the Court granted summary judgment in Defendants’
favor. Defendants argue it is important for the jury to understand Plaintiff’s gender
discrimination and harassment claims are fully resolved to prevent it from awarding
damages for any alleged gender discrimination and harassment the jury may perceive.
The Court denies the motion. Plaintiff’s gender discrimination and harassment
claims are too closely related to the retaliation claim at issue to exclude all reference to
them. The Court will permit reference and testimony about the underlying bases for
Plaintiff’s complaints. The Court will give a jury instruction making the jury aware of
Plaintiff’s gender discrimination and harassment claims, but directing the jury not to
speculate about the outcome of those claims when rendering the verdict in this matter.
Plaintiff will not be permitted to try the dismissed gender discrimination and harassment
claims to the jury. Defendants may not represent to the jury that Plaintiff’s gender
discrimination and harassment claims were resolved in their favor.

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F. EEOC and MCHR Findings
Plaintiff seeks to exclude any evidence related to whether the Equal Employment
Opportunity Commission (“EEOC”) or Missouri Commission on Human Rights (“MCHR”)
found Defendants retaliated against Plaintiff. Defendants agree with the motion, subject
to Plaintiff’s agreement to exclude all evidence related to the charges of discrimination.
The Court grants the motion. The MCHR “right to sue” letter issued to Plaintiff is
inadmissible. However, relevant documents submitted to the EEOC and MCHR may be
admissible if there is no evidentiary basis for exclusion.

G. Performance and Discipline at Prior and Subsequent Employers
Plaintiff seeks to exclude evidence of Plaintiff’s past and subsequent
employment. Defendant agrees this is not relevant, except to demonstrate mitigation
efforts. The motion is granted in part and denied in part. Plaintiff’s employment history
prior to Walgreens is inadmissible. Plaintiff’s subsequent employment history may be
relevant as it relates to Plaintiff’s mitigation efforts.

H. Good Deeds by Defendants
Plaintiff seeks to exclude evidence and testimony regarding accomplishments by
Defendants after Plaintiff was discharged, including, but not limited to, store
improvement post-termination. Defendants want to present evidence regarding other
employees’ perceptions about working for Walgreens, how they felt they were treated,
and managements’ receptiveness and responsiveness to complaints. Defendants also
want to present evidence showing the “terrible state” of the store immediately after
Plaintiff’s discharge, and “substantial efforts” of others to restore the store to acceptable
standards.
The Court grants the motion. Evidence showing the condition of Plaintiff’s store
prior to her discharge will be permitted as relevant to Defendants’ stated reason(s) for
discharging Plaintiff. However, evidence of the store’s condition following Plaintiff’s
discharge, and any efforts by Defendants’ employees to restore the store to an
acceptable standard is not relevant to Plaintiff’s retaliation claim.

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I. Juror Self-Interest as Taxpayers
Plaintiff seeks to exclude evidence or testimony about a burden a verdict may
impose on taxpayers. Defendants do not oppose the motion. Accordingly, the Court
grants the motion.

J. Personality Conflicts and Job Performance
Plaintiff seeks to exclude evidence regarding any “personality conflicts” Plaintiff
may have had with co-workers, or job performance issues that did not have a role in
Defendants’ decision to discharge her. Defendants argue both are relevant, and are
essential to explaining Defendants’ reasons for discharging Plaintiff.
The Court denies the motion. Plaintiff’s PIP was initiated, in part, due to poor
“management/accountability of her staff.” Doc. #36-19. According to Defendants,
Plaintiff had a “lack of proper planning and communication with her staff.” Id. A goal of
the PIP was to “improve [Plaintiff’s] people leadership and operations/business
leadership skills.” Id. Defendants may present evidence and testimony regarding
Plaintiff’s leadership skills, and the extent to which her relationships with co-workers
factored into the decision to discharge her.

K. Witness Comments on Merits of Suit
Plaintiff seeks to exclude witnesses’ opinions about the merits of Plaintiff’s suit.
Defendants object, arguing this might prevent witnesses from commenting on their
perception of events that occurred.
The Court grants the motion. A lay witness may not give an opinion on the
merits of Plaintiff’s suit. However, a lay witness may testify as to his or her perception
of events.

L. Comments about Case Value
Plaintiff seeks to exclude testimony or commentary comparing Plaintiff’s suit to a
lottery, “rolling the dice,” or other description characterizing the case as about money
and nothing else. Defendants agree to avoid “windfall comments.”

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The Court grants the motion. In doing so, the Court notes Defendants are not
precluded from discussing money as it relates to the remedy sought by Plaintiff in this
matter.

IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: March 27, 2017

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