Brown v. West Corporation

Filing 266

MEMORANDUM AND ORDER that Defendant's motion to exclude evidence regarding West Employee Robert Henderson 242 is granted. Defendant's motion to exclude the voice mail of Troy Eaden to plaintiff is granted. Defendant's motion to exclu de evidence that Steve Stangl referred to African Americans as "Canadians" is granted. Defendant's motion to exclude evidence regarding criticism of President Obama that did not include racially discriminatory remarks is granted. Defe ndant's motion to preclude plaintiff from referring to West's attorneys as being from somewhere other than Omaha is denied. The balance of defendant's motion is denied without prejudice to the defendant making further objections at trial. Ordered by Senior Judge Lyle E. Strom. (JSF)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
)
)
Plaintiff,
)
8:11CV284
)
v.
)
)
WEST CORPORATION, a Delaware )
MEMORANDUM AND ORDER
corporation,
)
)
Defendant.
)
______________________________)
REX BROWN,

This matter is before the Court on the motion of the
defendant West Corporation (“West”) to exclude certain evidence
from trial offered by Rex Brown (“Brown”) (Filing No. 242).
I. References to or Documents about West Security Guard Robert
Henderson
Robert Henderson’s relevance to this case is slim, and
ultimately unsupported.

Henderson, who is alleged to have a

connection to the KKK, was hired as a security guard at the time
that Skip Hanson was Chief Administrative Officer at West.
Hanson was also involved in the decision to make pursuit of one
of Brown’s sales opportunities contingent on an allegedly
unprecedented minimum commitment for purchases by the prospective
client.

Plaintiff argues that Hanson’s involvement in the hiring

of Henderson tends to prove that his motivations in discontinuing
pursuit of certain sales opportunities produced by Brown were
based on race.

Despite West’s production of a list of people

involved in hiring Henderson -- which did not include Hanson -and Hanson’s testimony that he had no knowledge of the decision
to hire Henderson, plaintiff maintains that Hanson was involved
or had knowledge of Henderson’s hiring.

Plaintiff also fails to

make any showing that anyone at West was aware of Henderson’s
alleged connection to the KKK at the time of his hiring.

The

connection is thin and unsupported by any evidence beyond
circumstance an plaintiff’s assertions.
On the other hand, introduction of evidence regarding
Henderson threatens significant prejudice.

Given that any

mention of the highly inflammatory organization KKK in connection
to the defendant will almost certainly create an unfair
impression in the minds of the jurors, the threat of prejudice
substantially outweighs the marginal and tenuous probative value
to the central issues of this case.
II. Voice mail to Plaintiff from Former West Employee, Troy
Eaden, Made After the Lawsuit Was Filed and Without the Knowledge
or Direction From Any West Employee
Troy Eaden is a former employee of West who, eighteen
months after Brown’s separation from West, left a voice mail for
Brown voicing his disappointment regarding Brown’s lawsuit and
threatening that Brown would not work in Omaha again.

Because

Eaden was informed of the lawsuit by Mike Sturgeon, plaintiff
intends to use the phone call to shed light on Sturgeon’s motives
-2-

-- specifically, Sturgeon’s alleged intent to retaliate against
Brown for making complaints of discrimination while Brown was
working at West.

This evidence is far afield from any direct

evidence of Sturgeon’s motivations:

the only connection to

Sturgeon is that Sturgeon called Eaden about the litigation some
time before Eaden called Brown and that Eaden referenced some of
the same performance concerns that Sturgeon mentioned in his
deposition testimony.

Further, the voice mail from Eaden was

left long after the events at issue in this case.

On the other

hand, a threatening voice mail by a former West employee is
highly prejudicial.

The probative value is substantially

outweighed by the danger of unfair prejudice.
III. Evidence that Steve Stangl referred to African Americans as
“Canadians”
The “evidence” of this statement amounts to little more
than attorney argument.

It is only marginally probative and

substantially prejudicial.
IV. Reference To Negative Comments About President Obama
The case cited by plaintiff on this issue does not
support admitting general evidence that West decision makers
criticized President Obama.

Rather that case stands for the

proposition that “racially discriminatory” remarks about the
President might be relevant to animus toward African Americans in

-3-

general.

Smith v. Interim HealthCare of Cincinnati, Inc.,

1:10-CV-582, 2011 WL 6012971 (S.D. Ohio Dec. 2, 2011).

General

criticism of an African American President does not provide the
same potential for insight into motivations.
V. Reference to the West’s Attorneys Being from Out-of-State
The fact that West’s attorneys are not from Omaha has
no probative value.

Accordingly,

IT IS ORDERED:
1) Defendant’s motion to exclude evidence regarding
West Employee Robert Henderson is granted.
2) Defendant’s motion to exclude the voice mail of Troy
Eaden to plaintiff is granted.
3) Defendant’s motion to exclude evidence that Steve
Stangl referred to African Americans as “Canadians” is granted.
4) Defendant’s motion to exclude evidence regarding
criticism of President Obama that did not include racially
discriminatory remarks is granted.
5) Defendant’s motion to preclude plaintiff from
referring to West’s attorneys as being from somewhere other than
Omaha is denied.

-4-

6) The balance of defendant’s motion is denied without
prejudice to the defendant making further objections at trial.
DATED this 6th day of May, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

-5-