Mulkey v. Transit Authority of the City of Omaha

Filing 44

AMENDED MEMORANDUM AND ORDER - Defendant's Motion in Limine and Memorandum in Support to Exclude Testimony of Robert Lindsay and Shane Smoot (Filing No. 37 ) is denied, without prejudice to Defendant asserting its objections at trial. Defend ant's Motion in Limine and Memorandum in Support to Exclude Testimony of James Miller at Trial (Filing No. 38) is granted in part, as follows: Plaintiff is precluded, in limine, from eliciting testimony or offering other evidence of James Mil lers lawsuit against the Transit Authority of the City of Omaha d/b/a Metro Area, pursuant to the Age Discrimination in Employment Act, or the settlement of that lawsuit; And the Motion is otherwise denied, without prejudice to Defendant asserting its objections at trial. Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARK D. MULKEY,
Plaintiff,

8:14CV210

vs.
TRANSIT AUTHORITY OF THE CITY OF
OMAHA d/b/a METRO AREA TRANSIT,

AMENDED
MEMORANDUM AND ORDER

Defendant.

This matter is before the Court on the Defendant’s Motions in Limine (Filing Nos.
37 and 38). Defendant Transit Authority of the City of Omaha d/b/a Metro Area Transit
(“Metro”) seeks to preclude Plaintiff Mark Mulkey (“Mulkey”) from offering the testimony
of Robert Lindsay (“Lindsay”), Shane Smoot (“Smoot”), and James Miller (“Miller”).
The upcoming jury trial concerns Mulkey’s allegation that Metro discriminated
against him on the basis of his age in violation of the Age Discrimination in Employment
Act of 1967, 29 U.S.C. §§ 621-634, (“ADEA”) and the Nebraska Age Discrimination in
Employment Act, Nebraska Revised Statute § 48-1004, (“NADEA”) when Metro failed to
promote Mulkey to a supervisory position and promoted a younger employee, Sander
Scheer (“Scheer”).

Metro asserts that Lindsay, Smoot, and Miller were not Metro

decision-makers involved in the process of promoting Scheer, and they should not be
permitted to offer opinions about Scheer’s experience, performance, or abilities, nor
opinions about Metro’s motivation for promoting him. Metro also seeks to preclude
Mulkey from offering Miller’s testimony as it relates to Miller’s own claim of age
discrimination against Metro and the settlement of that claim.

As the Court noted in its Memorandum and Order (Filing No. 28) denying Metro’s
Motion

for

Summary

Judgment,

Metro

has

yet

to

articulate

a

legitimate,

nondiscriminatory reason for promoting Scheer and not Mulkey. Id. at 7. Until Metro
articulates the reason for its decision, it is premature to conclude that Lindsay, Smoot,
or Miller cannot offer any testimony that might assist a trier of fact to determine whether
the articulated reason was a pretext for age discrimination.
While Lindsay, Smoot, and Miller may be precluded from offering testimony that
is irrelevant, or based on speculation or hearsay, or lacking proper foundation, such
objections may be raised at the time of trial if improper testimony is elicited.
With respect to Miller’s own claim of age discrimination against Metro and the
settlement of that claim, the Court concludes at this juncture that the prejudicial impact
of such testimony likely would exceed its probative value, and the Court will preclude
Mulkey, in limine, from offering such evidence, pursuant to Federal Rule of Evidence
403.
IT IS ORDERED:
1.

Defendant’s Motion in Limine and Memorandum in Support to Exclude

Testimony of Robert Lindsay and Shane Smoot (Filing No. 37) is denied, without
prejudice to Defendant asserting its objections at trial; and
2.

Defendant’s Motion in Limine and Memorandum in Support to Exclude

Testimony of James Miller at Trial (Filing No. 38) is granted in part, as follows:
Plaintiff is precluded, in limine, from eliciting testimony or offering other
evidence of James Miller’s lawsuit against the Transit Authority of the City
of Omaha d/b/a Metro Area, pursuant to the Age Discrimination in
Employment Act, or the settlement of that lawsuit;

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And the Motion is otherwise denied, without prejudice to Defendant asserting its
objections at trial.
Dated this 19th day of October, 2015
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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