Elliott v. Rollins, et al
ORDER denying in remaining part 50 Motion in Limine and granting in part and denying in part (as to remaining portions of) 55 Motion in Limine- Signed by District Judge Louise Wood Flanagan on 05/06/2014. (Baker, C.)
THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
CLAUDIA D. ELLIOTT,
LARRY ROLLINS, Sheriff of Harnett
County, and CINCINNATI INSURANCE
This matter, where plaintiff’s claim for interference with rights under the Family and
Medical Leave Act, 29 U.S.C. §§ 2601, et seq. (“FMLA”), comes now for trial commencing May
19, 2014,1 is before the court on remaining motions in limine,2 after final pretrial conference and
hearing held April 23, 2014. (DE 50, 55). Numerous evidentiary issues were decided by the court
in rulings from the bench. These remaining ones were taken under advisement, where plaintiff
moves to exclude evidence related to her failure to return rental property and her underlying dispute
with the rental company, and defendant3 moves to exclude evidence relating to the oaths of office
and criminal convictions of certain sheriff’s office employees. For the reasons that follow, the court
denies plaintiff’s motion, and grants in part and denies in part defendant’s motion.
The Clerk of Court will consult with the court and then contact the parties at a date closer to trial to alert them to
progress of the then ongoing civil trial specially set to commence May 7, 2014, and whether status of that trial may have
bearing on the start date of trial in the instant case.
The court has also taken plaintiff’s motion in limine with respect to the testimony of Julia Lohman (DE 48) under
advisement, for consideration at trial, if necessary.
Plaintiff originally brought a claim against Cincinnati Insurance Company also. The claim against this defendant was
dismissed on summary judgment. Therefore, references in this order to “defendant” are to defendant Larry Rollins.
Plaintiff’s Motion in Limine
Plaintiff’s motion concerns the admissibility of a criminal summons issued against plaintiff
on March 23, 2009, for failing to return rental property. At the time, plaintiff was still employed by
the sheriff’s office. Plaintiff asserts that evidence regarding her criminal summons, along with
evidence concerning the underlying dispute with a rental company, should be excluded because it
is irrelevant to the case under Rule 401 of the Federal Rules of Evidence, and because it would
confuse and prejudice the jury under Rule 403.
Evidence is relevant if “it has any tendency to make a fact more or less probable than it
would be without the evidence” and “the fact is of consequence in determining the action.” Fed. R.
Evid. 401. The “basic standard of relevance . . . is a liberal one.” Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 587 (1993). Irrelevant evidence is not admissible. Fed. R. Evid. 402. Under
Rule 403, the court must ensure that the probative value of any proffered evidence is not
“substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” “Because the evidence sought to be excluded under Rule 403 is concededly probative,
the balance under Rule 403 should be struck in favor of admissibility, and evidence should be
excluded only sparingly.” United States v. Aramony, 88 F.3d 1369, 1378 (4th Cir. 1996).
Here, defendant asserts that the evidence is relevant to an “after-acquired evidence” defense.
Such a defense arises in the context of an employment discrimination suit when an employer “has
acquired evidence since the time of that action that, had it known it at the time, would have led it
to do exactly what it did, except for a legitimate reason rather than an illegal one.” Russell v.
Microdyne Corp., 65 F.3d 1229, 1237 (4th Cir. 1995); see McKennon v. Nashville Banner Publ’g.
Co., 513 U.S. 352 (1995). In such cases, an employer “must first establish that the wrongdoing was
of such severity that the employee in fact would have been terminated on those grounds alone if the
employer had known of it at the time of the discharge.” McKennon , 513 U.S. at 362-63. The afteracquired evidence defense functions to “limit the relief available” to plaintiffs in employment
actions. Russell, 65 F.3d at 1238. “As a general rule in cases of this type, neither reinstatement nor
front pay is an appropriate remedy.” McKennon, 513 U.S. at 361-62. The doctrine applies to cases
under the FMLA. See Miller v. AT & T Corp., 250 F.3d 820, 837 (4th Cir. 2001).
In light of defendant’s assertion of the defense here, the evidence is relevant under Rule 401
as it makes it more probable that defendant would have terminated plaintiff had he known of the
criminal summons and underlying dispute, and therefore may operate to limit available relief.
Furthermore, the risk of any confusion or undue prejudice may be mitigated through a limiting
instruction. Deans v. CSX Transp., Inc., 216 F.3d 398, 401 (4th Cir. 2000) (“The district court
alleviated any prejudice or confusion that might have occurred from the introduction of this
testimony with a limiting instruction.”); Aramony, 88 F.3d at 1378 (“[T]he unfair prejudicial value
of evidence can be generally obviated by a cautionary or limiting instruction.”) (internal quotation
omitted). Plaintiff may tender a proposed limiting instruction on this matter, at or before start of
At hearing, plaintiff amplified upon her argument that defendant did not have evidence that
he would have fired plaintiff because of the summons, and therefore could not establish that the
plaintiff “would have been terminated on those grounds alone,” as stated in McKennon, 513 U.S.
Plaintiff entered three exhibits into evidence purporting to establish mitigating
circumstances regarding the criminal summons.4 Plaintiff’s evidence essentially attacks the
credibility of defendant’s assertion that he would have terminated defendant, and the weight that
should be granted to the evidence regarding the summons and the underlying dispute. Such issues
of weight and credibility are for the jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.”). Plaintiff’s motion in limine on
Defendant’s Motion In Limine
Defendant has moved to exclude evidence regarding the oaths of office of four sheriff’s
officers, along with evidence of civil and criminal judgments entered against these officers.5 At
hearing, the court granted the motion in part, as to some of these officers’ convictions for speeding
and operating a vehicle with no insurance. It took under advisement the remaining part of the
motion, as to three of the officers’ oaths of office and the following civil and criminal judgments:
Defendant objected to one of these exhibits, plaintiff’s exhibit 71, on the grounds that plaintiff had not previously
provided the exhibit in discovery. However, the court overruled the objection when plaintiff explained that the substance
of the letter had been covered during depositions.
Although the motion refers to “convictions” that the officers received prior to joining the sheriff’s office, defendant
also seeks to exclude evidence regarding a judgment entered against one of the officers in a civil collection matter.
Plaintiff seeks to introduce this evidence to overcome defendant’s asserted defense that
plaintiff would not have been retained whether or not she had taken FMLA leave. Claims for FMLA
“interference” arise under 29 U.S.C. § 2615(a)(1), which states that “[i]t shall be unlawful for any
employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right
provided under this subchapter.” See Yashenko v. Harrah’s N.C. Casino Co., LLC, 446 F.3d 541,
546 (4th Cir. 2006).
The FMLA entitles an eligible employee to up to twelve (12) weeks of leave
in a twelve (12) month period when the employee suffers from “a serious health condition that
makes the employee unable to perform the functions of [her] position.” 29 U.S.C. § 2612(a)(1)(D);
Miller, 250 F.3d at 825. Section 2614 provides that
any person who takes FMLA leave shall be entitled, on return from such leave—(A)
to be restored by the employer to the position of employment held by the employee
when the leave commenced; or (B) to be restored to an equivalent position with
equivalent employment benefits, pay, and other terms and conditions of employment.
Yashenko, 446 F.3d at 547 (quoting 29 U.S.C. § 2614(a)(1)) (internal quotation marks omitted).
However, as pertinent to the defense asserted here, “an employer can avoid liability under the FMLA
if it can prove that it would not have retained an employee had the employee not been on FMLA
leave.” Id. (citation and internal quotation marks omitted).
Defendant asserts that he would not have retained plaintiff even if she had not been on
FMLA leave, in part because he knew that a warrant for her misdemeanor worthless check “either
would be or had been issued against her.” (Def.’s Mem. Supp. Mot. in Limine, at 3 [DE 56]). He
has also provided deposition testimony that the worthless check created “character things” that
brought him to decide that he no longer wanted plaintiff to work at the sheriff’s office. (Rollins
Dep., at 21 [DE 69-2]). When used as impeachment or to overcome this asserted defense, plaintiff’s
evidence that several other detention officers in the sheriff’s office were convicted of simple
worthless check has a tendency to make it less probable that defendant actually considered plaintiff’s
worthless check to be misconduct worthy of termination. The evidence therefore passes the
standard set by Rules 401 and 402. See Daubert, 509 U.S. at 587.
Chronological considerations make the evidence of the convictions especially relevant and
probative. Plaintiff was terminated November 1, 2010. Her warrant for arrest for the worthless
check issued December 15, 2010. Yet Dawson took her oath of office despite having a conviction
for simple worthless check already in her record, a little over one month after plaintiff’s termination,
and before the warrant for plaintiff actually issued. Massengill was hired a little over a year and
three months later, with the same conviction in her record. Hare’s conviction, meanwhile, though
occurring before defendant was elected sheriff in 2002, is nevertheless relevant by increasing the
number of employees who had records of worthless check convictions, and therefore making it less
probable that such convictions were considered worthy of termination or as indications of
The default judgment, like the criminal convictions, suggests on the face of it similar issues,
where a money judgment entered in a civil action February 9, 2010, remained unsatisfied at least
as of the assignment date, May 21, 2013. (DE 70-1). Thus, at the time she took an oath of office
on February 15, 2012, Massengill had apparently failed to satisfy a money judgment for over two
years. However, in assessing the probative value of this evidence relative to dangers described in
Rule 403, the court is inclined to sustain objection as to admissibility of evidence concerning the
Defendant asserts that entering any of this evidence will create a “trial within a trial,”
confuse the issues and mislead the jury. However, at this juncture it does not appear that presenting
evidence of the criminal convictions will create such problems. Defendant has not contested that
these criminal judgments were entered against the officers. It was discussed at pretrial conference
that the officers themselves are not listed as witnesses. Defendant urged that if the court is inclined
to admit this evidence, it may be necessary for defendant to add the subject officers as witnesses.
The court will manage the presentation of evidence, through limiting instructions and
otherwise, to minimize the risk of confusing the issues, wasting time, and other Rule 403 factors.
United States v. Woods, 710 F.3d 195, 200 (4th Cir. 2013) (“District courts generally enjoy broad
discretion . . . [in] maintaining reasonable control over the mode and order of examining witnesses
and presenting evidence in order to promote the truth-seeking function of the trial, to avoid wasting
time, and to protect witnesses from harassment.”) (internal quotations and citation omitted).
Defendant may tender a proposed limiting instruction on this issue of entry into evidence matters
pertaining to these three criminal convictions at or before start of trial.
The court in closing addresses defendant’s citation of caselaw for the proposition that the
officers must be “similarly situated in all ‘relevant respects,’” including that they have “dealt with
the same supervisor, [been] subject to the same standards and . . . engaged in the same conduct
without such differentiating or mitigating circumstances that would distinguish their conduct or the
employer’s treatment of them for it.” (Def.’s Mem. Supp. Mot. in Limine, at 5) (quoting Haywood
v. Locke, 387 Fed. App’x 355, 359 (4th Cir. 2010); also citing Holtz v. Jefferson Smurfit Corp., 408
F. Supp. 2d 193, 207 (M.D.N.C. 2006)).
Both cases cited, however, involved the use of
“comparators” to support discrimination claims under the Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. §§ 1001 et
“Interference” claims under the FMLA are separate from FMLA “discrimination” claims,
which arise under 29 U.S.C. § 2615(a)(2) and differ in the elements required and defenses available.6
Comparator evidence is “especially useful in discrimination cases,” in part, because “[t]he very term
‘discrimination’ invokes the notion of treating two persons differently on the basis of a certain
characteristic that only one possesses.” Laing v. Fed. Express Corp., 703 F.3d 713, 719 (4th Cir.
2013). However, the evidence here is not sought to be offered as the court understands to show
discrimination, that plaintiff was treated differently than these other officers on the basis of taking
FMLA leave, but to impeach or overcome defendant’s assertion that the worthless check charge
See, e.g., Ainsworth v. Loudon Cnty. Sch. Bd., 851 F. Supp. 2d 963, 977 (E.D. Va. 2012) (“The interference claim
merely requires proof that the employer denied the employee his entitlements under the FMLA, while the retaliation
claim requires proof of retaliatory intent.”); see also Yashenko, 446 F.3d at 546 (distinguishing “interference or
entitlement claims” from “retaliation or discrimination claims”).
raised a concern for “character” and would have led him to terminate plaintiff even if she had not
been on FMLA leave. See Yashenko, 446 F.3d at 547. It is thus unnecessary to show that defendant
is “similarly situated in all ‘relevant respects’” to the other officers to offer the evidence for this
purpose. The considerations that defendant has raised to distinguish these other officers from the
plaintiff (e.g., plaintiff’s previous record of misconduct, the fact that plaintiff committed her offense
while employed, the status of default judgment as a civil matter rather than a criminal one, etc.), go
to the weight of the evidence and are for a jury to consider. See Anderson, 477 U.S. at 255.7
Defendant also argues that plaintiff should be barred from presenting this evidence under
Rules 404, 608 and 609. Rule 404 relates to evidence of a person’s character or character trait in
order to show that a person “acted in accordance with the character or trait.” Fed. R. Evid. 404.
Rule 608 relates to a “witness’s character for truthfulness or untruthfulness.” Fed. R. Evid. 608.
Rule 609 relates to “attacking a witness’s character for truthfulness by evidence of a criminal
conviction.” Fed. R. Evid. 609(a). However, the use for which plaintiff purports to offer this
evidence does not concern any of these rules. The convictions are not being used to show character.
Nor are they being used to attack the officers as witnesses, given that the officers are not being
offered as witnesses.
The court notes that the memorandum and recommendation (“M&R”) regarding the motion for summary judgment
relied on the standard for “comparator evidence” in the context of plaintiff’s interference claim, to recommend that “the
other employees cited by Plaintiff in support of her argument of inconsistent discipline are not sufficiently analogous.”
(DE 32 at 20 n. 1). However, it was not necessary to adopt that point of analysis in order to adopt the M&R’s
recommendation denying summary judgment on plaintiff’s interference claim. See id. at 21; Elliot v. Rollins, No. 5:11CV-693-FL, 2013 WL 5460193, at *1 (E.D.N.C. Sep. 30, 2013). Furthermore, the case the M&R relied on, Reed v. Md.
Dep’t of Human Res., No. ELH-12-472, 2013 WL 489985 (D. Md. Feb. 7, 2013), like Haywood and Holtz, used the
comparator standard to consider a discrimination claim under a non-FMLA law, rather than one for FMLA interference.
Reed, 2013 WL 489985, at *17. To the extent the court’s prior order suggested adoption of that footnote, the court
amends its ruling to clarify that it is not adopting that part of the M&R’s analysis.
Finally, the court considers defendant’s motion with respect to the oaths of office. The
content of the oaths and the purpose for which plaintiff seeks to offer them into evidence is not
entirely clear from the record, although the court notes that plaintiff took an oath to “support and
maintain. . .the Constitution and laws of North Carolina . . . and . . . faithfully discharge the duties
of [her] office as a jailer according to the best of [her] abilities, skills, and judgment.” (Def.’s Mem.
Supp. Mot. in Limine, at 2). It is reasonable to assume the officers’ oaths consisted of similar
language. Given that each offense occurred prior to the date the officers took office, evidence
concerning the oaths these officers took regarding future conduct would not appear, without more,
to be relevant to impeach or overcome the reasons defendant has given for terminating plaintiff. To
the extent that plaintiff seeks to use the oaths for this purpose, as opposed to establishing the timing
of the officers’ employment, absent more at trial, defendant’s motion is granted.
In accordance with the foregoing, plaintiff’s motion in limine (DE 50) taken under
advisement at final pretrial conference is DENIED, and those portions of defendant’s motion in
limine (DE 55) taken under advisement are DENIED in part, and GRANTED in part, as set forth
herein. Assuming the rules are appropriately applied to gain admissibility at trial of evidence of the
criminal convictions, said evidence will be allowed, in accordance with this order. Absent more,
evidence concerning the oaths of office taken as well as the civil money judgment will not be
allowed at trial.
The parties are reminded that their proposed jury instructions are due May 12, 2014. Any
party may choose to offer limiting instructions on any of the matters heard. The parties’ amended
proposed pretrial order, due May 16, 2014, should reflect the matters discussed and decided herein
as well as at the final pretrial conference.
SO ORDERED, this the 6th day of May, 2014.
LOUISE W. FLANAGAN
United States District Judge
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