King v. Recreational Equipment, Inc.

Filing 42

ORDER granting in part and denying in part 21 Motion in Limine. See Order for witnesses' deadline of 12/9/2016. Signed by Chief Judge Dana L. Christensen on 12/8/2016. (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 is Plaintiff Kelly King’s (“King”) motion in limine. King
requests exclusion of all after-acquired evidence, and all evidence of reasons for
her termination other than the reasons listed in Defendant Recreational Equipment
Inc.’s (“REI”) discharge communication. The Court heard arguments on this
motion during the Final Pretrial Conference. During this conference it became
clear that Plaintiff seeks to exclude evidence related to two specific areas: (1)
evidence that King made purchases with another person’s credit card, which
would violate REI’s employee discount policy; and (2) evidence that King
impermissibly received a 50% ProDeal discount for items other than the four tshirts purchased as gifts for her father, her father’s dentist, her former veterinarian
Dr. Lisa, and Dr. Lisa’s partner. For the reasons discussed below, the Court will

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grant King’s motion in in part and deny it in part.
I. Credit Card Purchases
During arguments on King’s motion in limine, REI conceded that evidence
concerning King’s use of another person’s credit card in violation of the discount
policy was not known to REI at the time of her discharge and, thus, was
after-acquired evidence. Nonetheless, REI contends that this evidence is still
admissible because it undercuts King’s argument that the four t-shirts bought in
violation of the ProDeal discount policy were isolated instances. Thus, REI
argues, though this would be after-acquired evidence, it tends to prove the truth of
the original reason REI provided for terminating King.
Despite REI’s argument, Montana case law is clear that “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.” Schwartz
v. Metro Aviation, Inc., CV 08-32-M-JCL, 2009 WL 352599, at *5 (D. Mont. Feb.
9, 2009) (citing Flanigan v. Prudential Federal Savings & Loan Assoc., 221 Mont.
419, 431, 720 P.2d 257, 264 (1986)). Here, it is undisputed that King’s alleged
credit card purchases were neither known to REI at the time she was terminated
nor relied upon for her termination. Thus, because this information was not
known to REI at the time at the time of termination; and was not examined at the
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time of discharge, this evidence cannot be used to support termination. Flanigan,
720 P.2d at 264. Accordingly, the Court grants King’s motion to the extent that
REI seeks to introduce this evidence to show that her termination was for good
cause.1
II. Additional Items Purchased Under the ProDeal Discount
Next, King asserts that all evidence concerning purchases made with the
ProDeal discount, other than the four t-shirts described above, should be excluded
from trial. Specifically, King requests exclusion of a spreadsheet created by REI
which lists purchases made by King under the ProDeal discount which REI
flagged as questionable and additional possible violations of the employee
discount policy. (See Doc. 14-2.) King concedes that an REI employee testified
that this spreadsheet was created before King was discharged, but argues that it
must be excluded because the primary basis for her termination was the four tshirts, not these purchases. The Court disagrees.
Generally, under Montana law an employer cannot rely on reasons
justifying a termination unless those reasons were “set forth in the employer’s
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The Court notes, however, that Flanigan does not appear to address the introduction of
after-acquired evidence for reasons other than to show good cause, such as for damages. Because
this issue was not raised in King’s motion in limine, the Court will not address it in this Order.
However, if King seeks damages under the argument that she would have eventually been
promoted to manager, the Court is inclined to allow this evidence in, with a cautionary
instruction limiting this evidence to the damage claim only.
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discharge communication; other collateral reasons are irrelevant and inadmissible
as evidence.” Schwartz, 2009 WL 352599 at *5 (citing Galbreath v. Golden
Sunlight Mines, Inc., 270 Mont. 19, 23, 890 P.2d 382, 385 (1995)). However, as
discussed, if this evidence was relied upon and considered by the employer at the
time of termination, it can be “offered . . . to substantiate the reasons it had already
given” in the discharge communication. Jarvenpaa v. Glacier Elec. Co-op., Inc.,
970 P.2d 84, 91 (Mont. 1998).
Here, King’s “Performance Improvement Process Action Form,” i.e., her
alleged discharge communication, stated that she was terminated because she “had
purchased REI brand product at the 50% employee discount that was not for her
personal use.” (Doc. 22-1 at 1.) This document stated that because King had
“violated REI’s Pro Deal policy, [her] employment with REI will be terminated.”
(Id.) Thus, the reason offered for King’s termination was misuse of the 50%
ProDeal discount. Further, an REI employee stated that the items listed on the
spreadsheet in question were considered when the decision to terminate King was
made. As such, the Court will deny King’s motion as it pertains to the spreadsheet
because it was known and considered at the time of her termination, and it
substantiates that reason offered in her discharge communication.
However, the Court cautions the parties that it expects that the proper
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foundation will made before this evidence is offered at trial. Put another way,
before the spreadsheet is offered or mentioned by the parties, testimony must be
given that: (1) it was prepared prior to King’s discharge; and (2) it was considered
when the decision to terminate her was made.
III. Other Issues
Lastly, the Court will address some issues raised during the Final Pretrial
Conference to assist the parties in their final preparations for trial. Several
witnesses listed on the parties’ Will and May Call Lists were objected to for
untimely disclosure, specifically REI witnesses Carolyn Peterson and Jillian
Lampert, and King witness Christine St. Peter.
Under Federal Rule of Civil Procedure 26(a), the parties have a concrete
obligation to promptly produce, without awaiting a request, “the name and, if
known, the address and telephone number of each individual likely to have
discoverable information—along with the subjects of that information—that the
disclosing party may use to support its claims or defenses, unless the use would be
solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(i). In addition to initial
disclosures, the parties must also disclose pretrial “information about the evidence
that it may present at trial other than solely for impeachment,” and include “the
name and, if not previously provided, the address and telephone number of each
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witness.” Fed. R. Civ. P. 26(a)(3)(A)(i). These pretrial “disclosures must be made
at least 30 days before trial.” Fed. R. Civ. P. 26(a)(3)(B) (emphasis added).
Further, “all disclosures under Rule 26(a) must be in writing, signed, and served.”
Fed. R. Civ. P. 26(a)(4). Accordingly, unless the witnesses described above were
disclosed in accordance with Rule 26(a), or unless they are called solely for
impeachment purposes, their testimony will be excluded.
Based upon the Court’s understanding that these witnesses were not
disclosed until the Will and May Call Lists were produced for purposes of the
Final Pretrial Order—and not during the time described in 26(a)(1)(A)—the Court
assumes that these witnesses will not be called unless they are called solely for
impeachment purposes. The parties shall thus advise the Court by 5:00 p.m.
Friday, December 9, 2016, which witnesses will be called in conformance with
these rules, or whether they will be called for impeachment purposes.
Finally, concerning the matters discussed in this Court’s previous Order on
the Defendant’s Motions In Limine and, in turn, as it relates to the evidence and
witnesses discussed in this Order, that parties shall not discuss or mention this
testimony or evidence in voir dire, opening statements, or during the examination
of witnesses until foundation has been laid.
Accordingly, IT IS ORDERED that Plaintiff’s Motion in Limine (Doc. 21)
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is GRANTED in part and DENIED in part in accordance with the above Order.
IT IS FURTHER ORDERED that the parties shall advise the Court by 5:00
p.m. Friday, December 9, 2016, which witnesses described in section III will be
called, and why their testimony would comply with Federal Rule of Civil
Procedure 26(a).
Dated this 8th day of December, 2016.

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