Bennett v. Board of Education of Washington County Joint Vocational School District

Filing 109

ORDER granting in part and denying in part 86 Motion in Limine; granting in part and denying in part 93 Motion in Limine; finding as moot 95 Motion in Limine; granting in part and denying in part 96 Motion in Limine; denying 99 Motion to Bifurcate. Signed by Judge Algenon L. Marbley on 10/7/2011. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CONSTANCE BENNETT,
Plaintiff,
v.
BOARD OF EDUCATION OF
WASHINGTON COUNTY JOINT
VOCATIONAL SCHOOL DISTRICT,
Defendant.

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Case No. C2-08-CV-0663
JUDGE ALGENON L. MARBLEY
Magistrate Judge McCann King

ORDER
I. INTRODUCTION
This matter is before the Court on the following motions: (1) the Defendant’s Motion In
Limine To Exclude Certain Evidence of Plaintiff’s Claimed Damages (Doc. 86); (2) the
Plaintiff’s Motion In Limine (Doc. 93); (3) the Plaintiff’s Amended Motion In Limine to Exclude
the Testimony of Certain Fact Witnesses and Exhibits (Doc. 96);1 and (4) the Defendant’s
Motion to Bifurcate Punitive Damages from Liability and Compensatory Damages Issues (Doc.
99). For the reasons that follow, the Parties’ motions are GRANTED in part and DENIED in
part.
II. STANDARD OF REVIEW
Motions in limine allow the Court to rule on the admissibility of evidence in advance of
trial in order to expedite proceedings and give the parties advance notice of the evidence upon
which they may not rely to prove their case. See Jonasson v. Lutheran Child & Family Servs.,
115 F.3d. 436, 440 (7th Cir. 1997). To prevail on a motion in limine, the moving party must

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The Court will not discuss the Plaintiff’s first Motion to Exclude the Testimony of
Certain Fact Witnesses and Exhibits (Doc. 95), as it takes the Plaintiff’s Amended Motion as a
substitution for her first motion. This motion is accordingly DENIED as moot.

show that the evidence is clearly inadmissible. Ind. Ins. Co. v. Gen. Elec. Co ., 326 F. Supp. 2d
844, 846 (N.D. Ohio 2004). Courts are typically “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.” Black v. Columbus Pub. Sch ., No. 2:96-CV-326, 2007 U.S. Dist.
LEXIS 68672, at *2 (S.D. Ohio Sept. 17, 2007); accord Sperberg v. Goodyear Tire & Rubber
Co., 519 F. 2d. 708, 712 (6th Cir. 1975). If the Court does deny a motion in limine, however, the
Court can reconsider the admissibility of the evidence as the proceedings give context to the
pretrial objections. Black, 2007 U.S. Dist. LEXIS 68672, at *2.
III. LAW AND ANALYSIS
A. Defendant’s Motion In Limine
1. Fees and Costs
The Defendant first argues that evidence relating to the Plaintiff’s claim for attorneys
fees and costs is inadmissible at trial for the reasons stated by the Court in its order of August 2,
2011, granting the Defendant’s motion to bifurcate (Doc. 89). The Plaintiff concurs, and the
Court GRANTS the Defendant’s motion to exclude evidence relating to the Plaintiff’s claim for
attorneys fees and costs.
2. Compensatory and Punitive Damages
Second, the Defendant argues that all evidence regarding compensatory and punitive
damages should be excluded at trial.
The Sixth Circuit has yet to rule on the availability of compensatory or punitive damages
for violations of the anti-retaliatory provision of the ADA found in 42 U.S.C. § 12203(a). See
Baker v. Windsor Republic Doors, 414 F. App’x 764, 779 (6th Cir. 2011) (noting circuit split
and declining to address availability of compensatory damages for ADA retaliation claims);
Bennett v. Bd. of Educ., No. 2:08-CV-663, 2009 U.S. Dist. LEXIS 82760, *17–18 (S.D. Ohio
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Sept. 10, 2009) (noting district court split within the Sixth Circuit “as to whether a plaintiff
making a claim of retaliation against an employer under the ADA can recover compensatory or
punitive damages”).
The Fourth, Seventh, and Ninth Circuits have held that compensatory damages and
punitive damages are not available for ADA retaliation claims. See Rhoads v. FDIC, 94 F. App’x
187, 188 (4th Cir. 2004) (per curiam) (holding that compensatory and punitive damages are
unavailable for ADA retaliation claims); Kramer v. Banc of Am. Sec., LLC, 355 F.3d 961, 968
(7th Cir. 2004) (“Compensatory and punitive damages are not available to a plaintiff bringing a
claim of retaliation by an employer under the ADA.”); Alvarado v. Cajun Operating Co., 588
F.3d 1261, 1269 (9th Cir. 2009) (“We . . . hold that punitive and compensatory damages are not
available for ADA retaliation claims.”). Kramer is the seminal case on the proper remedies for
an ADA retaliation claim. Before Kramer, the Second, Eighth and Tenth Circuits had affirmed
punitive or compensatory damages awards in retaliation claims without significant discussion.
Salitros v. Chrysler Corp., 306 F.3d 562, 574–76 (8th Cir. 2002) (affirming jury award of
punitive damages in ADA retaliation case); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1246
(10th Cir. 1999) (affirming jury award of punitive damages in ADA retaliation case). Since
Kramer, no Circuit Court has adopted the position that either compensatory or punitive damages
are available.
The Kramer court began with the proposition that the relevant remedies for a retaliation
claim were those prescribed by § 12117. See Kramer, 355 F.3d at 964. Such is in fact the case
for retaliation claims based on opposition to violation of Title I. See 42 U.S.C. § 12203(c).
Section 12203(c), however, prescribes three alternate remedies depending upon which title
serves as the foundation for the retaliation claim. It states that “[t]he remedies and procedures
available under sections 107, 203, and 308 of this Act [42 U.S.C. §§ 12117, 12133, 12188] shall
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be available to aggrieved persons for violations of subsection (a) and (b), with respect to title I,
title II, and title III [42 U.S.C. § 12111 et seq., 12131 et seq., 12181 et seq.], respectively.” Thus
in a case such as this one based upon opposition to conduct prohibited by Title II,2 the remedy is
contained within § 12133. The Kramer analysis is therefore not persuasive in the case sub judice.
Section 12133 makes the remedies in the case sub judice coextensive with those in
Section 505 of the Rehabilitation Act of 1973. See 42 U.S.C. § 12133 (citing 29 U.S.C. § 794a).
Other circuits have interpreted § 12133 to permit compensatory and punitive damages for Title II
claims where the plaintiff makes a showing of discriminatory intent. See Midgett v. Tri-County
Metro. Transp. Dist., 254 F.3d 846, 851 (9th Cir. 2001); Duvall v. County of Kitsap, 260 F.3d
1124, 1138 (9th Cir. 2001) (holding that plaintiff could recover monetary damages under Title II
if he can demonstrate that the defendant acted with deliberate indifference and collecting cases
from other circuits). In the case sub judice, the Plaintiff has alleged—and indeed must
prove—discriminatory intent. Thus, in accordance with these cases, the Court DENIES the
Defendant’s motion to exclude of compensatory and punitive damages.
3. Back Pay
The Defendant argues that the Plaintiff’s claim for back pay should be limited in the
following manner: (1) her earnings from her work at Selby General Hospital should be deducted
from the award; (2) it should not include pay for the time period after her departure from Selby
General Hospital as that departure was voluntary; (3) her earnings from her other employment
should be deducted from the award; (4) it should not include pay for the period beginning on
January 27, 2010, during which she was not working due to a rotator cuff injury; and (5) it

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The Court previously ruled at summary judgment that the Plaintiff’s Title V retaliation
claim was based on her opposition to activities made unlawful in Title II of the ADA. See
Bennett v. Bd. of Educ. Joint Voc. Sch. Dist., No. 2:08-CV-663, 2010 U.S. Dist. LEXIS 106033,
*15–16 (S.D. Ohio Oct. 4, 2010).
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should not include the value of lost benefits from January 27, 2010, forward because she was not
working during that time due to an unrelated injury.
The Parties are in agreement that a plaintiff has a duty to mitigate her damages by
seeking comparable employment with reasonable diligence. See Thurman v. Yellow Freight Sys.,
Inc., 90 F.3d 1160, 1169 (6th Cir. 1996) (citing 42 U.S.C. §2000e-5(g)). On that basis, the
Plaintiff concedes that her award of back pay should be reduced by the amount earned at Selby
General Hospital and her other employment. This portion of the Defendant’s motion is therefore
GRANTED.
The Plaintiff argues, however, that her termination from Selby General Hospital does not
truncate her right to back pay as her departure was not in fact voluntary. This argument is borne
out by the evidence: Although the Plaintiff did say that her termination was “mutual,” she
continued to explain that she was fired for being absent with the flu. This portion of the
Defendant’s motion is DENIED.
Finally, she argues that she is entitled to pay after January 27, 2010, because her injury
was related to the Defendant’s retaliation. This Court previously excluded evidence of back pay
in an ADA retaliation case. Geiger v. Pfizer, Inc., No. 2:06-CV-636, 2009 U.S. Dist. LEXIS
34982, *25–27 (S.D. Ohio Apr. 15, 2009) (Marbley, J.). As the Court stated in that case, “[a]
plaintiff cannot recover damages for lost wages and benefits for any period of time she is
unavailable to work, such as for periods of unrelated injury or disability.” Id. at 26 (citing Falls
Stamping & Welding v. Int'l Union, 485 F. Supp. 1097, 1101 (N.D. Ohio 1979); Hatton v. Ford
Motor Co., 508 F.Supp. 620 (E.D. Mich. 1981); Bender v. Salvation Army, 830 F. Supp. 1454,
1456 (M.D. Fla. 1993); Sennello v. Reserve Life Ins. Co., 667 F.Supp. 1498, 1520 (S.D. Fla.
1987); Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 401 (3d Cir. 1976)).
In Geiger, the plaintiff’s injury was wholly unrelated to her retaliation. The Plaintiff
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claims that her rotator cuff injury was causally related to her retaliation claim. Where that is the
case, back pay is not tolled. See, e.g., Whatley v. Skaggs Cos., 508 F. Supp. 302, 304 n.1(D.
Colo. 1981) (holding that where discriminatory termination forced plaintiff into job that caused
his injury, plaintiff could recover back pay for the period he was disabled). For the same reason,
the Plaintiff argues that her claim for lost benefits after January 27, 2010, should not be tolled.
At this time, the Defendant has not sufficiently rebutted the Plaintiff’s evidence of causation for
the Court to issue a wholesale exclusion of the evidence on the Plaintiff’s claim for back pay
after January 27, 2010, and this portion of the Defendant’s motion is DENIED.
4. Front Pay
The Defendant argues that the Plaintiff is not entitled to front pay because she did not
make a reasonable effort to find other suitable employment. See Ferrero v. Henderson, 341 F.
Supp. 2d 873, 907 (S.D. Ohio 2004) (holding in ruling after bench trial that plaintiff not entitled
to front pay for failure to use “reasonable diligence to find suitable employment”). The Plaintiff
argues that there is evidence to support her claim that she exercised reasonable diligence in
seeking new employment. The Court concludes that this is a matter for the jury and DENIES the
Defendant’s motion.
B. Plaintiffs Motions In Limine
1. Johnson v. Washington Cty. Community Center, No. 2:08-CV-515
The Plaintiff requests that any evidence relating to Carrie Johnson’s ADA case, which
she lost on summary judgment, be excluded from trial. According to the Plaintiff, the decision in
that case is not relevant to the questions to be decided in the case sub judice because a retaliation
plaintiff does not have to prove that “the conduct she opposed actually constituted an ADA
violation.” Freilich v. Upper Chesapeake Health, 313 F.3d 205, 216 (4th Cir. 2002). Moreover,
the evidence is unduly prejudicial and should be excluded under Federal Rule of Evidence 403,
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and the evidence is inadmissible hearsay if offered as evidence that the Plaintiff’s claims should
also be dismissed.
The Defendant agrees that the evidence is largely irrelevant and states that it has no
intention to introduce the prior decision as an exhibit. It argues that it is the Plaintiff’s witness
and exhibit lists that reveal an intent to introduce evidence relating to Johnson’s prior lawsuit
and that, if the Plaintiff does so, the Defendant should be entitled to cross-examination on the
events in the prior case.
The Court shares the Plaintiff’s concern that allowing the introduction of the ruling on
summary judgment in the Johnson case would usurp the province of the jury. Nevertheless, the
Defendant may rely upon this evidence for impeachment. Thus, the Court DENIES the
Plaintiff’s motion, and the Defendant may rely on this evidence for impeachment purposes only.
2. Normal Job Duties
The Plaintiff argues that the Defendant should not be allowed to introduce evidence of or
to argue that the Plaintiff did not engaged in protected opposition activity because advocating for
students with disabilities was part of her job duties. The Plaintiff takes this position because the
Court ruled on summary judgment that whether or not such advocacy is part of the Plaintiff’s job
duties is irrelevant to her retaliation claim (Doc. 80, p.14). The Defendant has no opposition to
this request, and the Plaintiff’s motion is GRANTED.
3. Rule 37
The Plaintiff invokes Federal Rule of Civil Procedure37(c)(1) to argue that the Defendant
should be prohibited from introducing the following pieces of evidence: (1) the testimonies of (a)
Christine Smith, (b) Patricia Love, (c) Emma Otstot, and (d) Karen Metz; and (2) Exhibits
11–20. The Defendant did not identify any of these individuals in its Rule 26(a)(1) initial
disclosures or in its response to Plaintiff’s interrogatories. These witnesses would testify in
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regards to the Plaintiff’s claim that the Defendant’s reason for terminating the Plaintiff—that it
was eliminating her position for financial reasons—was pretextual as it merely reassigned her
duties to other employees. The first time the Defendants identified these individuals as people
with knowledge of the facts in this case was in its list of witnesses for trial. The Plaintiff argues
that they should have been identified under Rule 26(a)(1). Likewise, the Defendant did not
identify Exhibits 11–20 until it produced its list of possible trial exhibits.
Under Federal Civil Rule 37(c)(1), “[i]f a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was
substantially justified or is harmless.” The party facing discovery sanctions bears the burden of
proving the harmlessness of its violation. See R.C. Olmstead, Inc. v. CU Interface, L.L.C., 606
F.3d 262, 271 (6th Cir. 2010).
The Defendant argues that it is the Plaintiff’s burden to prove her prima facie case of
retaliation and to prove that the Defendant’s legitimate, non-discriminatory reason is pretextual.
It argues that the evidence Plaintiff seeks to exclude relates to an argument that the Plaintiff did
not raise for the first time until summary judgment, long after discovery concluded. In other
words, the Defendant is arguing that its failure to produce the evidence at issue is substantially
justified. Moreover, it argues that the witness and exhibit disclosures revealing the Defendant’s
intent to use this evidence were filed more than two months prior to trial, allowing the Plaintiff
sufficient time to prepare.
As for the witnesses, the Court deems the Defendant’s explanation to be sufficient to
warrant denying the Plaintiff’s motion. Rule 26 obligated the Defendant to produce the name “of
each individual likely to have discoverable information . . . that the disclosing party may use to
support its claims or defenses, unless the use would be solely for impeachment.” The
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Defendant’s defense is that it eliminated the Plaintiff’s position for financial reasons. The
witnesses at issue do not relate to that defense but only to the rebuttal of that defense and are not
within the scope of Rule 26(a)(1). Moreover, information indicating that these witnesses existed
arose during discovery, and it was the Plaintiff’s obligation to pursue it. Nor did the Plaintiff’s
interrogatories call for their production. Therefore, the Plaintiff may move for alternative
sanctions under Rule 37(c)(1), but the Court DENIES her motion to exclude these witnesses
from trial.
As for Exhibits 11–17, the Plaintiff asserts that the Defendant has not yet produced these
documents to the Plaintiff for review. The Defendant claims generally that the Plaintiff already
had these documents in her possession before the close of discovery but does not specifically
rebut the Plaintiff’s contention that she does not have Exhibits 11–17. To avoid unfair surprise,
and because the Defendant cannot show that the use of exhibits not produced until the eve of
trial is harmless, the Court GRANTS the Plaintiff’s motion in this respect.
Finally, the Plaintiff asserts that Exhibits 18–20, staff attendance reports for Roger
Bartunek and Constance Bennett and a job screen report for Constance Bennett, should be
excluded because the Defendant failed to produce them. The Plaintiff does not assert that she
still does not have these documents, convincing the Court that any delay in their production is
harmless. The Plaintiff’s motion in this regard is DENIED.
C. Defendant’s Motion to Bifurcate
The Defendant argues that, if the Court deems compensatory and punitive damages
available, the evidence of compensatory damages should be bifurcated from the evidence of
punitive damages. It argues that bifurcation is necessary because evidence of punitive damages
would be prejudicial and irrelevant to the question of the amount of compensatory damages. For

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support, it relies on Geiger, 2009 U.S. Dist. LEXIS 34982, at *1–3, in which this Court ruled
that trial on a claim under Ohio Rev. Code § 4112 should bifurcate punitive from other damages.
In Geiger, however, the Court merely applied Ohio statutory law. See id. at 1–2 (citing Ohio
Rev. Code § 2315.21(B)(1)). The Court is under no such obligation to bifurcate this case, and
declines to do so on the basis of judicial economy. As the Plaintiff points out, “‘federal courts
have long adhered to the rule that bifurcation should be ordered only in exceptional cases
because the piecemeal trial of separate issues in a single lawsuit or the repetitive trial of the same
issue in severed claims is not to be the usual course.’” GE Credit Union v. Nat'l Fire Ins., No.
1:09-cv-143, 2009 U.S. Dist. LEXIS 96085, *5 (S.D. Ohio Sept. 30, 2009) (quoting Wright &
Miller, Federal Practice and Procedure § 2388, at 474 (2nd ed. 2006)). Thus the Court DENIES
the Defendant’s motion to bifurcate.
IV. CONCLUSION
For the foregoing reasons, the Defendant’s Motion In Limine To Exclude Certain
Evidence of Plaintiff’s Claimed Damages is GRANTED in part and DENIED in part (Doc. 86).
The Plaintiff shall not introduce evidence relating to her claim for fees and costs, the Plaintiff
may introduce evidence of compensatory and punitive damages, the Plaintiff may introduce
evidence of the amount of back pay owed minus the amount she earned through other
employment, the Plaintiff’s back pay claims are not tolled for any period of time, and the
Plaintiff may submit evidence regarding her claim for front pay.
The Plaintiff’s Motion In Limine is GRANTED in part and DENIED in part (Doc. 93).
The Court will not exclude evidence relating to Johnson v. Washington Cty. Community Center,
No. 2:08 if introduced for impeachment, but the Defendant shall not introduce evidence relating
to its previous argument that the Plaintiff’s oppositional activities were within the scope of her

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job duties.
The Plaintiff’s Amended Motion In Limine to Exclude the Testimony of Certain Fact
Witnesses and Exhibits is GRANTED in part and DENIED in part (Doc. 96). The Defendant
may call Christine Smith, Patricia Love, Emma Otstot, or Karen Metz; the Defendant may
introduce Exhibits 18–20; but the Defendant shall not introduce or otherwise rely on Exhibits
11–17. The Plaintiff’s first Motion In Limine to Exclude the Testimony of Certain Fact
Witnesses and Exhibits is DENIED as moot (Doc. 95).
The Defendant’s Motion to Bifurcate Punitive Damages from Liability and
Compensatory Damages Issues is DENIED (Doc. 99).
IT IS SO ORDERED.

s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Court Judge
DATED: October 7, 2011

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