Nightingale v. Wal-Mart Stores, Inc.
Filing
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION IN LIMINE (Doc. 35 ). Signed by Judge Timothy S. Black on 10/29/2015. (mr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
PAUL NIGHTINGALE,
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Plaintiff,
vs.
WAL-MART STORES, INC.,
Defendant.
Case No. 1:13-cv-571
Judge Timothy S. Black
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION IN LIMINE (Doc. 35)
This civil action is before the Court on Defendant’s motion in limine (Doc. 35),
and the parties’ responsive memoranda (Docs. 37, 39). Defendant moves the Court to
exclude evidence and argument related to damages arising after Plaintiff’s termination.
(Doc. 35). 1
I.
BACKGROUND
Plaintiff Paul Nightingale moved to Ohio to work at Defendant Wal-Mart Stores
Inc.’s South Point store as a pharmacist. The South Point store was allegedly riddled
with problems. Plaintiff claims that his supervisor, Dwayne Childers, promised him that
he would be paid overtime hours to address the problems at the South Point store even
though he was a salaried pharmacy manager. Plaintiff contends that after he complained
about not getting paid additional compensation, Defendant fired him.
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At various points in its motion in limine, Defendant refers to damages “resulting from,”
“arising out of,” and “arising after” Plaintiff’s termination. The Court believes “arising after” is
the clearest articulation of the evidence Defendant seeks to exclude.
Defendant contends that it terminated Plaintiff for making errors, not for his
complaints regarding overtime compensation.
Plaintiff originally brought a four-count complaint, alleging: (1) a violation of
the Fair Labor Standards Act (FLSA) and retaliation; (2) a violation of the state law
analog to the FLSA, Ohio Revised Code (ORC) Chapter 4111; (3) breach of contract;
and (4) promissory estoppel. (Doc. 1 at 3–5).
Defendant moved for summary judgment on all claims. (See Doc. 22). The Court
granted Defendant’s motion for summary judgment as to the FLSA, ORC Chapter 4111,
and breach of contract claims, and denied Defendant’s motion for summary judgment as
to the promissory estoppel claim. (Doc. 32 at 9). Accordingly, only Plaintiff’s
promissory estoppel claim remains pending.
This civil action is set for a bench trial commencing on January 19, 2016. (See
October 6, 2015 Minute Entry and Notation Order).
II.
STANDARD OF REVIEW
“A ruling on a motion in limine is no more than a preliminary, or advisory,
opinion that falls entirely within the discretion of the district court.” United States v.
Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). Generally, “[m]otions in limine are … used
to … eliminat[e] evidence that is clearly inadmissible for any purpose.” Indiana Ins. Co.
v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004) (citing Jonasson v.
Lutheran Child and Family Serv., 115 F.3d 436, 440 (7th Cir.1997)). Because in limine
rulings are advisory in nature, a court may alter its ruling during the course of the trial.
Luce v. United States, 469 U.S. 38, 41–42 (1984).
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III.
ANALYSIS
Defendant argues that Plaintiff’s promissory estoppel claim does not entitle him to
any damages arising after his termination. Defendant also argues that damages arising
after Plaintiff’s termination must be excluded because they are too speculative. The
Court addresses these arguments in turn.
A. Scope of Plaintiff’s Damages
Promissory estoppel is an “equitable doctrine designed to prevent the harm
resulting from the reasonable and detrimental reliance of an employee upon the false
representations of his employer.” Kames v. Doctors Hosp., 51 Ohio St. 3d 139, 143, 555
N.E.2d 280 (1990). “A damage award in a promissory estoppel claim can be based upon
either reliance damages or expectancy damages.” ZBS Indus., Inc. v. Anthony Cocca
Videoland, Inc., 93 Ohio App. 3d 101, 107, 637 N.E.2d 956 (1994) (citation omitted).
“The reliance interest represents the detriment [the promissee] may have incurred by
changing his position.” Id. The expectation interest represents the “prospect of gain”
from the promise. Id. In each case, the appropriate remedy depends upon what justice
requires. See Mers v. Dispatch Printing Co., 19 Ohio St. 3d 100, 105, 483 N.E.2d 150
(1985).
Plaintiff claims that his supervisor, Dwayne Childers, had promised him that he
would be paid overtime hours to address the problems at the South Point store. In prior
filings with the Court, Plaintiff has recognized that Childers’s promise was limited to one
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for overtime pay. 2 Similarly, the Court has found that Plaintiff’s promissory estoppel
claim was supported by his understanding that “Childers promised him he would be
entitled to extra pay for overtime hours needed to address the problems at South Point, in
exchange for Plaintiff’s agreement to move there.” (Doc. 32 at 9). Accordingly,
Plaintiff’s expectancy damages are the unpaid overtime payments he alleges he was
promised and did not receive.
Defendant argues that the doctrine of “justifiable termination” bars any claim to
wage-based damages following Plaintiff’s termination. In support of its argument,
Defendant cites San v. Scherer, No. 97APE03-317, 1998 WL 53934, at *11 (Ohio Ct.
App. Feb. 5, 1998). There, the jury and the trial court had found that the employees
subject to a written employment agreement were justifiably terminated, so the appellate
court affirmed the trial court’s restriction of damages to those incurred up until the date
of the terminations (or the date on which the employer discovered the wrongful conduct
underlying the termination). Id. at *11. Here, the Court has not made a determination as
to whether Plaintiff’s termination was justifiable — it simply found that Defendant was
entitled to summary judgment on the FMLA, ORC Chapter 4111, and breach of contract
2
For example, in his response in opposition to Defendant’s motion for summary judgment,
Plaintiff argued:
A jury, considering Nightingale’s testimony, along with Childers’ promise to get
Nightingale “caught up” after he asked for overtime pay could find the existence
of a clear and unambiguous promise to pay Nightingale for the hours he worked.
. . . There is also a clear jury question as to whether Nightingale relied on the
promise of this overtime pay and whether his reliance was foreseeable.
(See Doc. 25 at 19) (emphasis added).
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claims. (See Doc. 32).
The question of whether Plaintiff’s termination was justified is not before this
Court, as Plaintiff does not have a surviving wrongful termination claim. 3
Defendant believes Plaintiff’s damages should be limited to the unpaid overtime
hours that Plaintiff actually worked. Assuming that the Court finds that Plaintiff is
entitled to damages, Plaintiff may be entitled to overtime payments beyond his
termination date, if he can prove that his “prospect of gain” from Childers’ promise
extended beyond the date of his eventual termination and that “justice requires” such a
remedy. Mers, 19 Ohio St. 3d at 105; ZBS Indus., Inc., 93 Ohio App. 3d at 107.
Accordingly, Plaintiff may present evidence of his anticipated overtime pay to
establish his expectancy damages. The Court will not preclude Plaintiff from arguing
that his expectancy damages extended beyond the date of his eventual termination. 4
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In fact, it is unlikely that the Court could make a determination as to whether Plaintiff was
“justifiably terminated.” While a court can determine whether a termination was discriminatory
or retaliatory, it cannot determine whether the termination of an at-will employee was otherwise
fair. See Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 462 (6th Cir. 2004) (emphasizing that
the role of federal courts is “to prevent unlawful hiring practices, not to act as a super personnel
department that second guesses employers’ business judgments.”).
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Plaintiff was employed by Defendant from February 2, 2011 through August 23, 2011, when he
was terminated. (See Doc. 17-1 at 24; Doc. 18-1 at 16). In his deposition, Plaintiff explained
that he anticipated that additional hours would be needed for “six months give or take.” (Doc. 17
at 143). Thus, Plaintiff’s anticipated overtime payments are essentially coterminous with his
employment, as he worked for approximately six months. For this reason, the Court does not
anticipate that Plaintiff will argue successfully that his expectancy damages extended
significantly beyond the date of his eventual termination.
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However, Plaintiff may not present evidence related to any non-overtime back pay he
believes he is owed. 5
B. Speculative Damages
“[D]amages must be shown to a reasonable degree of certainty.” Villagran v.
Cent. Ohio Bus. Servs., Inc., No. 94APE08-1267, 1995 WL 347419, at *9 (Ohio Ct. App.
June 8, 1995) (citation omitted). “[S]peculative damages are not recoverable due to their
uncertainty.” Id.
Defendant argues that if the Court considered an award of damages arising after
Plaintiff’s termination date, it would have to disregard Plaintiff’s termination and imagine
that Plaintiff had remained employed and would have been entitled to some indeterminate
amount of overtime pay from the date of Plaintiff’s termination until trial. 6 The
Villagran case is instructive. There, the court found that damages were not speculative
because they were supported by evidence that could be used to calculate damages,
including payroll records. Villagran, 1995 WL 347419, at *9. Provided that Plaintiff can
support his requested damages for overtime hours worked with payroll records or other
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Plaintiff argues that the Court has already ruled that damages Plaintiff suffered following his
termination are at issue because the Court found that “Plaintiff was ultimately injured when he
lost both the additional pay and his job.” (Doc. 32 at 9). However, this language indicates that
Plaintiff established the “injury” element of his prima facie case. The Court has not ruled that
Plaintiff is entitled to any damages arising from his termination, other than anticipated overtime
pay.
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In its motion, Defendant seeks to exclude damages incurred from February 2, 2011 (the date on
which Plaintiff began his work at the South Point store) until trial. (Doc. 35 at 5). The Court
believes this was a typographical error, and that Defendant truly seeks to exclude damages
incurred from August 23, 2011 (the date of Plaintiff’s termination) until trial. In any event, the
overtime hours Plaintiff worked while he was employed (i.e. from February 2, 2011 to August
23, 2011) should be readily determined based on a review of relevant payroll records.
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credible evidence or testimony, and the Court could reasonably estimate overtime
payments for any weeks not worked using these sources, Plaintiff’s damages will not be
barred as speculative. See also ZBS Indus., Inc. v. Anthony Cocca Videoland, Inc., ZBS
Indus., Inc., 93 Ohio App. 3d at 107 (noting that a plaintiff may recover lost profits as
expectancy damages in a promissory estoppel action).
IV.
CONCLUSION
Accordingly, based on the foregoing, Defendant’s motion in limine (Doc. 35) is
GRANTED IN PART and DENIED IN PART, as set forth in this Order.
IT IS SO ORDERED.
Date: 10/29/15
s/ Timothy S. Black
Timothy S. Black
United States District Judge
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