Storrs v. University of Cincinnati

Filing 94

ORDER denying 78 Motion in Limine; denying 79 Motion in Limine. Signed by Judge Timothy S. Black on 2/2/18. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
COLLEEN McTAGUE STORRS,

:
:
:
:
:
:
:
:

Plaintiff,
vs.
UNIVERSITY OF CINCINNATI,
Defendant.

Case No. 1:15-cv-136
Judge Timothy S. Black

ORDER RULING ON PLAINTIFF’S
MOTIONS IN LIMINE (Docs. 78, 79)
This civil action is before the Court on the two motions in limine filed by Plaintiff
Colleen McTague Storrs (“Dr. McTague”) (Docs. 78, 79) as well as the parties’
responsive memoranda (Docs. 82, 83, 88).
I.

BACKGROUND

In 2007, Plaintiff Colleen McTague Storrs (“Dr. McTague”) was hired as a tenuretrack Assistant Professor in UC’s Geography Department. Dr. McTague successfully
applied for reappointment in 2009 and 2011. In 2013, UC denied Dr. McTague’s third
application for reappointment, citing her lack of publications.
On February 24, 2015, Dr. McTague filed the Complaint. The Complaint alleged
that UC violated Title VII of the Civil Rights Act of 1964 by denying Dr. McTague’s
2013 application for reappointment because of her gender and in retaliation for Dr.
McTague complaining of gender discrimination. The Complaint also alleged that UC
violated the Equal Pay Act (“EPA”) by paying Dr. McTague less than male Assistant
Professors. Finally, the Complaint alleged that UC violated the Family & Medical Leave

Act (“FMLA”) by interfering with Dr. McTague’s FMLA leave during the 2011-2012
academic year and by allegedly retaliating against Dr. McTague for taking FMLA leave.
On September 26, 2017, the Court entered an Order granting in part, and denying
in part, UC’s motion for summary judgment. (Doc. 73). Specifically, the Court granted
UC’s motion on the Title VII claims because Dr. McTague did not present a prima facie
case of discrimination or retaliation, UC proffered a legitimate reason for denying Dr.
McTague’s application for reappointment (her lack of publications), and Dr. McTague
did not show that reason was pretext for sex discrimination or retaliation; granted UC’s
motion on the FMLA interference claim because there was no evidence UC interfered
with Dr. McTague’s FMLA leave; and granted UC’s motion on the FMLA retaliation
claim because Dr. McTague did not show that UC’s stated reason for denying her
application for reappointment was pretext for FMLA discrimination.
However, the Court denied UC’s motion for summary judgment on the EPA claim
because of the heightened burden of proof imposed on EPA defendants. The Court
explained that, while UC proffered reasons “other than sex” that may legitimately explain
the pay discrepancy between Dr. McTague and her male colleagues, UC did not submit
sufficient Rule 56 evidence at the summary judgment stage to prove its affirmative
defense “so clearly that no rational jury could have found to the contrary,” as is required
of a defendant seeking judgment on an EPA claim. (Doc. 73 at 41-46).
Accordingly, the sole issue remaining for trial is Dr. McTague’s claim that UC
violated the EPA by paying her less than male Assistant Professors in the Geography
Department.
2

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 & Family Servs., 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). “Courts are generally reluctant to grant
broad exclusions of evidence in limine because a court is almost always better situated
during the actual trial to assess the value and utility of evidence.” Ohio Willow Wood Co.
v. ALPS South, LLC, No. 2:04cv1223, 2014 U.S. Dist. LEXIS 103107, at *5 (S.D. Ohio
July 29, 2014).
Similar to other evidentiary rulings, the decision to grant or deny a motion in
limine is within the sound discretion of the trial court. Otto v. Variable Annuity Life Ins.
Co., 134 F.3d 841, 852 (7th Cir. 1998). However, “[o]rders in limine which exclude
broad categories of evidence should rarely be employed.” Sperberg v. Goodyear Tire &
Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). Rather, motions in limine are “generally
confined to very specific evidentiary issues of an extremely prejudicial nature.” Brown v.
Oakland Cnty., No. 14-CV-13159, 2015 WL 5317194, at *2 (E.D. Mich. Sept. 10, 2015).
If the evidence is not plainly inadmissible on all potential grounds, the Court’s
“evidentiary rulings should be deferred until trial so that questions of foundation,
3

relevancy and potential prejudice may be resolved in proper context.” Indiana Ins. Co.,
326 Supp. 2d at 846.
III.
A.

ANALYSIS

Evidence regarding AAUP grievance procedures.

Dr. McTague asks the Court to exclude evidence at trial that she did not grieve her
concerns of unequal pay through the American Association of University Professors’
(“AAUP”) grievance process. (Doc. 78 at 1).
The Collective Bargaining Agreement (“Agreement”) between UC and the AAUP
provides a “grievance process” that allows faculty members to request an increase in
compensation in order to, inter alia, correct inequities in salary, including but not limited
to those on the basis of gender or race, or to reward outstanding professional
contributions. The Agreement provides:
15.1. In the event that the Administration wishes to make salary or benefit
adjustments which are more favorable than those called for in this
Agreement to any individual member of the Bargaining Unit for purposes
of matching a bona fide offer from a rival institution, of correcting
inequities not otherwise dealt with in this Agreement, of correcting
inequities proscribed by Article 4.1, including but not limited to those on
the basis of gender or race, or of rewarding outstanding professional
contributions, it is free to do so. Care will be taken to ensure that such
professional contributions are clearly above and beyond those typically
recognized through a merit increase program. When such individual
adjustments are made, the Administration shall inform the AAUP of the
adjustments thirty (30) days before they are implemented, and shall state
the reasons with the specific documentation leading to the adjustment. In
any one fiscal year the total dollar value of such awards shall not exceed
one-half percent (.5%) of the Bargaining Unit member salary base, except
that documented bona fide offers shall be an exception should the one-half
percent (.5% cap be reached. Adjustments made under this Article shall
come from the reallocation of funds and shall not decrease the amounts
4

available to other members of the Bargaining Unit as provided for by the
provisions of this Agreement.
(Doc. 82 at 2).
Dr. McTague argues that an EPA plaintiff is not required to exhaust administrative
remedies or file a formal grievance prior to bringing a claim in district court, and
evidence that Dr. McTague did not avail herself to the Agreement’s grievance process
has the potential to mislead the jury into thinking that she had an obligation to pursue a
union-backed remedy. (Doc. 78 at 1-2).
UC acknowledges that Dr. McTague did not have an obligation to utilize the
Agreement’s grievance process prior to filing this case, and represents that it will not
make a “failure to exhaust administrative remedies” argument at trial. (Doc. 82 at 1-2).
UC argues, however, that it should be able to offer evidence that Dr. McTague did not
use an available process to seek an increase in her compensation. (Id. at 3).
The Court agrees with UC. At this juncture, Dr. McTague has not shown that
evidence pertaining to the Agreement’s grievance process is “clearly inadmissible for any
purpose.” As one example, the Complaint asserts that UC’s violation of the EPA was
“willful,” and Dr. McTague’s pretrial briefs indicate that she will attempt to establish
willfulness at trial in order to put her claim within the EPA’s three-year statute of
limitations. (See Doc. 85 at 5). Whether a defendant “willfully” violated the EPA can
be established either by proof that a defendant actually knew his conduct violated federal
law or by reckless disregard of that fact. See Virgona v. Tufenkian Import-Export

5

Ventures, Inc., Case No. 05 Civ. 10856 (GEL), 2008 U.S. Dist. LEXIS 72139, at * 24
(S.D. N.Y. Sept. 23, 2008).
Accordingly, evidence pertaining to UC’s knowledge of the alleged pay
discrepancy may be relevant to the parties’ arguments at trial. At this point, the Court
cannot conclude that evidence Dr. McTague did not utilize one available means of
bringing the alleged pay discrepancy to UC’s attention would be “clearly inadmissible for
any purpose.” The Court is comfortable with the fact that UC has agreed to not make an
“exhaustion” argument and finds that a limiting instruction would be effective to prevent
any alleged prejudice.
Accordingly, Dr. McTague’s motion in limine to exclude evidence of her election
not to use the AAUP’s grievance process (Doc. 78) is DENIED.
B. Untimely affirmative defenses.
Dr. McTague asks the Court to prevent UC from presenting “untimely affirmative
defenses.” (Doc. 79 at 1).
Under the EPA, employers shall not discriminate by paying wages to employees
“at a rate less than the rate at which he pays wages to employees of the opposite sex” for
equal work except where such payment is made pursuant to (i) a seniority system; (ii) a
merit system; (iii) a system which measures earnings by quantity or quality of
production; or (iv) a differential which is based on any other factor other than sex. 29
U.S.C. § 206(d)(1).

6

In its Answer, UC stated: “[a]ny differences in compensation identified by [Dr.
McTague] were based on a factor or factors other than sex, and the differences in
qualifications and experience of the alleged comparators.” (Doc. 5 at 9).
Dr. McTague argues that UC did not plead “any of the other three affirmative
defenses provided by the EPA” (i.e., seniority system, merit system, or quantity or quality
of production) and raising those now would therefore cause unfair surprise to Dr.
McTague and would unreasonably broaden the issues after the close of discovery. (Doc.
79 at 2).
UC responds that it does not intend to present any evidence of the first three
affirmative defenses at trial, and will rely on arguments similar to those it made at the
summary judgment stage: that any pay discrepancies between Dr. McTague and her male
comparators were due to factors “other than sex” including market factors, publication
records, research activity and grants, and salary at other employers in the national market.
(Doc. 83 at 2).
The Court finds Dr. McTague’s motion in limine not well-taken for three reasons.
First, the EPA’s “factor other than sex” defense is a “broad catch-all” created “due to the
impossibility of predicting and listing each and every exception.” Taylor v. White, 321
F.3d 710, 717-18 (8th Cir. 2003). This affirmative defense encapsulates an “almost
limitless number of factors, so long as they do not involve sex.” Fallon v. Illinois, 882
F.2d 1206, 1211 (7th Cir. 1989). Dr. McTague has not identified any evidence upon
which UC has relied, or upon which UC is expected to rely at trial, that does not fall
within the “factor other than sex” defense that UC pled in its Answer.
7

Second, the Court is hesitant to exclude broad categories of information without
explanation by Dr. McTague as to which specific evidence she seeks to exclude. UC
concedes that it does not intend to present any evidence of a seniority system, a merit
system, or a system which measures earnings by quality or quantity of production, and
Dr. McTague does not identify any evidence that may be introduced at trial that falls
within those descriptions.
Third, and similarly, Dr. McTague’s failure to identify the precise evidence she
seeks to exclude is troubling because words such as “merit system” are inherently vague.
UC argued in its motion for summary judgment (and without an objection from Dr.
McTague) that Dr. McTague’s male comparators received higher salaries because of their
“merit.” (See Doc. 50 at 54, “the hiring of Richard Beck, and his level of compensation,
was based on merit and the fact that he had a long list of publications, and had received
several large research grants from outside of UC”). Does this evidence fall within the
purview of a “merit system” that would be excluded if the Court were to grant Dr.
McTague’s motion? The Court wishes to avoid arguments of this nature at trial. It is
more efficient for Dr. McTague to simply object to the introduction of any specific
evidence or argument that she contends UC has waived.
Accordingly, Dr. McTague’s motion in limine to estop the untimely raising of
affirmative defenses (Doc. 79) is DENIED.

8

IV.

CONCLUSION

For the foregoing reasons:
1.

Dr. McTague’s motion in limine to exclude evidence regarding her election
not to use the AAUP’s grievance process (Doc. 78) is DENIED; and

2.

Dr. McTague’s motion in limine to estop the untimely raising of affirmative
defenses (Doc. 79) is DENIED.

IT IS SO ORDERED.

Date: February 2, 2018

____________________
Timothy S. Black
United States District Judge

9