James v. Kaiser Aluminum Fabricated Products, LLC et al
Filing
61
OPINION AND ORDER denying 52 Motion in Limine; granting 54 Motion in Limine. Signed by Judge James L Graham on 4/25/13. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Andrea R. James,
:
Plaintiff,
:
:
v.
Kaiser Aluminum Fabricated Products,
LLC, et al.,
Case No. 2:11-cv-00847
Judge Graham
:
Magistrate Judge Abel
:
Defendants.
OPINION AND ORDER
Plaintiff Andrea James brings this action under the Family Medical Leave Act of 1993
(“FMLA”), 29 U.S.C. § 2615, against her former employer Kaiser Aluminum Fabricated
Products, LLC. James asserts that Kaiser interfered with her rights under the FMLA by refusing
to properly credit as FMLA leave two days she was absent from work in February 2011. James
alleges that she was absent for migraines, a condition that Kaiser had previously approved as an
FMLA-qualifying serious health condition for James. Kaiser disputes that James had migraines
on those days and argues that she was absent because of a sinus infection. James further asserts
that Kaiser retaliated against her exercise of FMLA rights by terminating her. Kaiser disputes
this contention as well. It argues that it had an honest belief that her absences were not for an
FMLA-covered condition and that those absences – when combined with James’s prior
unexcused absences – triggered her dismissal under the company’s attendance policy.
Kaiser moved for summary judgment, which the court denied, and the case is set for trial
on April 29, 2013. Now before the court are two motions in limine filed by plaintiff to exclude
certain evidence from trial.
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I.
Honest Belief Rule
In the first motion in limine, plaintiff seeks to preclude defendant from presenting any
evidence or argument regarding the honest belief rule. See generally Seeger v. Cincinnati Bell
Tel. Co., 681 F.3d 274, 285-86 (6th Cir. 2012) (under the rule an employer may counter
plaintiff’s assertion that the proffered reason for the adverse employment action is pretext by
showing that it held an honest belief in the proffered reason). Though the motion cites in passing
Fed. R. Evid. 403 (relevant evidence that may be excluded as prejudicial, confusing, misleading,
or cumulative), plaintiff’s argument for excluding the honest belief evidence is not based on any
Rule 403 ground. Rather, plaintiff argues that there is not sufficient evidence in the record to
support an inference that Kaiser honestly believed that James did not have migraines on the days
of her absences in February 2011. Plaintiff contends that Kaiser cannot prove that it had a
legitimate basis for doubting plaintiff’s stated reason for her absences and further contends that
the record shows that Kaiser’s investigation of plaintiff’s absences was inadequate and amounted
to a sham.
The court denies plaintiff’s motion in limine for two reasons. First, plaintiff has not
demonstrated that any of the honest belief evidence is prejudicial, confusing, misleading, or
cumulative under Rule 403. Plaintiff’s argument amounts to an untimely motion for summary
judgment. Second, plaintiff’s argument mischaracterizes the record. As was discussed in the
court’s ruling on Kaiser’s motion for summary judgment, there is sufficient evidence from which
a reasonable factfinder could conclude that Kaiser had legitimate grounds for scrutinizing
plaintiff’s absences. Upon her return to work, James provided her supervisor with a doctor’s
note that vaguely referenced an unspecified “medical condition,” and James communicated to
her supervisor that she had come down with a cough. This information did not seem to support
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James’s initial call-in that she would be absent because of migraines. Kaiser offered further
evidence that it conducted an investigation in which the treating medical care providers were
consulted and James was given an opportunity to present further evidence. Kaiser ultimately
determined that, based on medical records stating that James “was seen for [a] sinus infection,”
her absence was not because of migraines. In sum, there is sufficient evidence on the record to
create a genuine dispute about whether Kaiser had an honest belief that James’s absences were
unexcused and thus had a legitimate, nondiscriminatory reason her discharge.
II.
Post-Termination Jail Time
In her second motion in limine, plaintiff seeks to exclude the introduction of evidence
concerning her three misdemeanor convictions for operating a vehicle under the influence of
alcohol or drugs.
Plaintiff cites Rule 609 for the proposition that evidence of a criminal
conviction generally cannot be used to attack a witness’s character for truthfulness.
This
argument misapprehends the reason for which Kaiser seeks introduction of the evidence. Kaiser
argues that any award of damages must be limited if James prevails at trial because James
violated her probation less than four months after her employment was terminated and served 20
days in jail. This jail time would have resulted in her termination, argues Kaiser, because she
would have exceeded the allowable number of unexcused absences under Kaiser’s attendance
policy. Kaiser thus argues that any award of backpay should be limited in time to less than 4
months.
Kaiser’s argument for limiting backpay concerns what is known as the after-acquired
evidence defense, which allows an employer to show that the employee would have been
terminated anyway for reasons that became known to the defendant after the termination
decision. See McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352 (1995); Sellers v.
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Mineta, 358 F.3d 1058 (8th Cir. 2004).
In certain circumstances courts have allowed an
employer to use evidence relating to the employee’s conduct or condition, where such evidence
is acquired after the termination decision, to limit the employee’s recovery.
Namely, the
employer may attempt to prove that the employee’s conduct or condition was sufficiently serious
to independently warrant termination, even absent the alleged improper motive. See Edgar v.
JAC Products, Inc., 443 F.3d 501, 514 (6th Cir. 2006). The court finds here that evidence of the
fact of James’s post-termination jail time is plainly relevant to the issue of damages. See Jones
v. Nissan N. Am., 438 Fed. App’x 388, 405-407 (6th Circ. 2011) (discussing the after-acquired
evidence defense and its availability to bar front pay and reinstatement and to curtail backpay). 1
Plaintiff further argues that evidence of only the fact of the jail time should be admitted
and that evidence of the OVI convictions and the circumstances of her probation violation should
be excluded as prejudicial. The nature of the probation violation was described in a recent
discovery order by the magistrate judge as a traffic stop in which James was found to have been
drinking and violating curfew. Doc. 57 at p. 2.
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Plaintiff’s motion in limine is directed at excluding evidence of the three OVI convictions.
Plaintiff has not made a legal challenge to the availability of the after-acquired evidence defense,
and, as such, that issue is not before the court. See Jones, 438 Fed. App’x at 406 (noting the
unanswered issue in the Sixth Circuit concerning the availability of the defense where the afteracquired evidence concerns an employee’s misconduct that takes place post-termination);
Sellers, 358 F.3d at 1063 (discussing the case law and concluding that McKennon applies to
post-termination conduct); McKenna v. City of Philadelphia, 636 F.Supp.2d 446, 459-61 (E.D.
Pa. 2009) (following Sellers); Nemeth v. Citizens Fin. Grp., No. 08-cv-15326, 2012 WL
3262876, at *5 (E.D. Mich. Aug. 9, 2012) (“[A] fair reading of Jones . . . would permit the afteracquired evidence defense to be asserted based on post-termination conduct under appropriate
circumstances.”). See also Christine Neylon O’Brien, The Law of After-Acquired Evidence in
Employment Discrimination Cases: Clarification of the Employee’s Burden, Remedial Guidance,
and the Enigma of Post-Termination Misconduct, 65 UMKC L.Rev. 159, 174 (1996) (concluding
that serious post-termination misconduct should generally bar reinstatement and limit backpay).
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The court finds that, in the posture of this case as currently presented by the parties, only
the fact of the jail time (and evidence of Kaiser’s attendance policy and its enforcement) is
necessarily relevant for Kaiser to prove that James would have been terminated for unexcused
absences. Any relevance that the convictions and probation violation might have is outweighed
by their potential prejudicial effect. The court thus grants plaintiff’s motion in limine to exclude
evidence of the OVI convictions and probation violation. The court will reserve the ability to
reconsider the admissibility of this evidence should the facts and arguments developed at trial
provide a basis for reconsideration.
III.
Conclusion
Accordingly, plaintiff’s motion in limine as to the honest belief rule (doc. 52) is
DENIED, and plaintiff’s motion in limine as to the OVI convictions and probation violation
(doc. 54) is GRANTED
s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
DATE: April 25, 2013
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