King v. Recreational Equipment, Inc.

Filing 39

ORDER granting in part and denying in part 19 Motion in Limine. The Court finds that arguments on Plaintiff's Motion in Limine 21 would be beneficial and will address this at the Final Pretrial Conference. Signed by Chief Judge Dana L. Christensen on 12/7/2016. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
KELLY KING,

CV 16–27–M–DLC
Plaintiff,

vs.

ORDER

RECREATIONAL EQUIPMENT,
INC.,
Defendant.
Before the Court are multiple motions in limine filed by the parties. For the
reasons described below, these motions will be granted in part and denied part.
I. Defendant’s Motions in Limine
Defendant Recreational Equipment Inc., (“REI”) moves to exclude all
evidence, testimony, and argument, or reference by the parties, their counsel, the
witnesses, or anyone else during trial concerning six areas.
A. King’s Past Job Performance
REI first moves to bar all questioning, testimony, or introduction of
documents related to Plaintiff Kelly King’s (“King”) past job performance other
than her performance regarding the discount policy violations and the
investigation regarding the violations. This motion is denied. The Court finds

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that this evidence is relevant to King’s claim that REI applied its employment
policies arbitrarily.
B. Testimony of Caryn Youngholm
Next, REI seeks to exclude the proposed testimony of Caryn Youngholm
(“Youngholm”) in three general areas. First, REI argues that Youngholm’s
testimony regarding King’s pre-July 2015 job performance and her termination
should be excluded because it is not relevant to her termination. Further, REI
maintains that Youngholm does not have personal knowledge of these subjects.
This evidence may be relevant and admissible, provided that King can establish
the requisite foundation for Youngholm’s knowledge on this subject. Thus, the
Court reserves ruling on this motion.
Second, REI states that Youngholm’s testimony concerning another alleged
discount policy violation where the employee in question was not terminated
should be excluded. REI contends that this proposed testimony lacks foundation
and relevance. Again, the Court will reserve ruling on this motion until the
evidence is presented at trial.
Third, REI asks that the Court exclude all testimony of Youngholm which
relates to how John Mulheran (“Mulheran”) treated other REI employees and how
they were afraid of him. The Court is skeptical that Youngholm’s testimony
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concerning how Mulheran treated other employees is relevant to King’s claims.
Here, the issue is how Mulheran treated King. It is unlikely this evidence will be
allowed; however, the Court reserves ruling on this motion until trial.
C. Training Manual for Asset Protection Employees
REI next moves to exclude all evidence related to a manual Andy Panfil
(“Panfil”) received during training on interview and interrogation techniques in
the retail setting. REI maintains that this manual is irrelevant and prejudicial. The
Court denies this motion because this manual and the training techniques
described in it, may be relevant to the circumstances surrounding the interview of
King by Panfil, and whether King lied during her interview, or whether she
misspoke out of stress or perceived pressure from Panfil.
D. King’s Job Promotion Argument
REI also moves to exclude all evidence on King’s damage theory based on
her contention that she would have been promoted to a store manager. REI
contends that this testimony would be pure speculation. As discussed in this
Court’s Order denying REI’s Motion for Partial Judgment, the Court will allow
King to present this claim for damages and leave it to the jury to decide this issue.
The Court will give an instruction on speculative damages. This motion is denied.

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E. Discovery Objections
REI moves to exclude all argument, questioning, or statements regarding
discovery objections. King does not oppose this motion, and thus it is granted.
F. King’s Alleged Emergency Room Visit
Lastly, REI seeks to exclude all argument, testimony, and questioning
regarding King’s alleged trip to the emergency room during the course of REI’s
investigation. REI states that King declined to produce records related to her
alleged hospital visit during discovery arguing that the records were privileged
and not likely to lead to admissible evidence. King responds that she was willing
to produce the records and waive privilege if REI would stipulate to the record’s
relevance. The Court will hear argument on this motion at the Final Pretrial
Conference.
II. Plaintiff’s Motion in Limine
King’s sole motion in limine seeks to exclude all after-acquired evidence,
and all evidence of reasons for termination other than the reasons listed in REI’s
discharge communication. Specifically, King moves to exclude evidence that she
violated REI’s policy prohibiting an employee from making purchases with
another person’s credit card. King states that improper credit card use was not the
basis for REI’s decision to terminate her. Accordingly, REI should be precluded
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from introducing this evidence at trial and cites to Schwartz v. Metro Aviation,
Inc., CV 08-32-M-JCL, 2009 WL 352599, at *5 (D. Mont. Feb. 9, 2009) (“[An
employer cannot rely upon after-acquired evidence that was not known to the
employer at the time of the termination to establish good cause for the
termination.”) (citing Flanigan v. Prudential Federal Savings & Loan Assoc., 221
Mont. 419, 431, 720 P.2d 257, 264 (1986)).
However, REI contends that King’s “improper credit card use” was actually
a violation of the company discount policy, the same policy which served as the
basis for her termination. REI, in turn, cites to McConkey v. Flathead Electric
Cooperative, which found that “evidence offered to ‘substantiate the reasons [ ]
already given in [the termination] letter’ are admissible.” 125 P.3d 1121, 1127
(Mont. 2005) (citing Jarvenpaa v. Glacier Elec. Co-op., Inc., 970 P.2d 84, 90
(Mont. 1998)).
The Court finds that arguments on this motion would be beneficial and will
also address this issue at the Final Pretrial Conference.
Accordingly, IT IS ORDERED that Defendant’s Motions in Limine are
GRANTED in part and DENIED in part in accordance with the above Order.

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Dated this 7th day of December, 2016.

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