LUCAS v. United Parcel Service, Inc.

Filing 93

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFFS MOTION IN LIMINE TO EXCLUDE ANY EVIDENCE OF HIS CURRENT OR PRIOR CRIMINAL CONVICTIONS OR INCARCERATIONS (DOC. # 64 ); DEFENDANT IS PROHIBITED FROM MAKING ANY STATEMENT OR INTRODU CING ANY EVIDENCE OF PLAINTIFFS CURRENT OR PRIOR CRIMINAL CONVICTIONS OTHER THAN ASKING PLAINTIFF THE FOLLOWING QUESTIONS: (1) IF HE WAS EVER CONVICTED OF A FELONY OFFENSE; (2) HOW MANY TIMES HE WAS CONVICTED OF A FELONY OFFENSE; AND (3) THE NATURE OF HIS 2010 CONVICTION MAY BE INTRODUCED ON CROSS-EXAMINATION; DEFENDANT CANNOT BE ASKED WHETHER HE HAS BEEN OR IS NOW INCARCERATED. Signed by Judge Walter H. Rice on 10/27/2020. (kma)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
HENRY LUCAS, JR.,

:

Plaintiff,
v.

:

UNITED PARCEL SERVICE, INC.,
Defendant.

Case No. 3:17-cv-00275
JUDGE WALTER H. RICE

:

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING
IN PART PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE ANY
EVIDENCE OF HIS CURRENT OR PRIOR CRIMINAL CONVICTIONS
OR INCARCERATIONS (DOC. #64); DEFENDANT IS PROHIBITED
FROM MAKING ANY STATEMENT OR INTRODUCING ANY
EVIDENCE OF PLAINTIFF’S CURRENT OR PRIOR CRIMINAL
CONVICTIONS OTHER THAN ASKING PLAINTIFF THE FOLLOWING
QUESTIONS: (1) IF HE WAS EVER CONVICTED OF A FELONY
OFFENSE; (2) HOW MANY TIMES HE WAS CONVICTED OF A
FELONY OFFENSE; AND (3) THE NATURE OF HIS 2010
CONVICTION MAY BE INTRODUCED ON CROSS-EXAMINATION;
DEFENDANT CANNOT BE ASKED WHETHER HE HAS BEEN OR IS
NOW INCARCERATED

Plaintiff, Henry Lucas, Jr. (“Lucas” or “Plaintiff”), has filed a Motion in

Limine to Exclude any Evidence of Criminal Convictions or Incarcerations. Doc.
#64. Lucas’s motion seeks to exclude “any testimony or evidence concerning
Plaintiff’s current or former criminal cases and/or incarcerations.” Defendant has
filed a memorandum in opposition, Doc. #66.

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In his motion, Lucas seeks to exclude evidence and testimony, pursuant to
Fed. R. Evid. 403, regarding the following: (1) Plaintiff’s guilty plea in the Miami
County Common Pleas Court on October 3, 2019, that resulted in a sentence of
incarceration on November 13, 2019, and (2) a 2010 guilty plea that resulted in
incarceration in 2010. Doc. #64, PAGEID#1961. Plaintiff asserts that both of these
convictions are unrelated to the employment issues before the Court, have “no
significant probative value” and “risk[s] prejudicing the Jury against Plaintiff.” He
provides no further information regarding these two convictions.
United Parcel Service (“UPS”), however, states that the 2019 conviction is
for gross sexual imposition, a felony that resulted in a five-year sentence, and that
the 2010 conviction is for deception to obtain dangerous drugs and resulted in a
one-year period of incarceration. Doc. #66, PAGEID#1986. Defendant argues that
Plaintiff’s two criminal convictions should be admitted into evidence and cites to
Fed. R. Evid. 609(a) which permits criminal convictions less than 10 years old to
attack a witness’s credibility under the following circumstances:
(1) for a crime that, in the convicting jurisdiction, was punishable by
death or by imprisonment for more than one year, the
evidence…must be admitted, subject to Rule 403, in a civil case…
(2) for any crime regardless of the punishment, the evidence must be
admitted if the court can readily determine that establishing the
elements of the crime require proving—or the witness’s admitting—a
dishonest act or false statement.
Fed. R. Evid. 609(a).

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With respect to Lucas’s alleged 2010 conviction, UPS argues that this
is admissible under Rule 609(a)(2) since it concerns “a dishonest act or false
statement” and is less than 10 years old. As such, according to UPS, Rule
403 and any “unfair prejudice” are not an issue. 1
UPS also argues that Lucas’s 2019 conviction is for gross sexual
imposition and is relevant since it is a felony and goes to his ”truthfulness
as a witness.” Doc. #66, PAGEID#1988, citing Thomas v. McDowell, No.
2:10-cv-152, 2014 WL 5305501, at *7 (Graham, J.) (S.D. Ohio Oct. 15, 2014)
(permitting convictions of plaintiff for rape and kidnapping as probative of
plaintiff’s character for truthfulness).
Finally, UPS contends that both convictions are relevant to its affirmative
defenses of mitigation of damages and the after-acquired evidence doctrine.
Specifically, Defendant asserts that Plaintiff testified in his deposition that he did
not find subsequent equivalent employment after his termination from UPS
because of his criminal history. Because of this, UPS argues that it must be able
to introduce evidence that Lucas failed to look for and accept substantially
equivalent employment after leaving UPS because of his prior criminal
convictions. With respect to Defendant’s after-acquired evidence doctrine, UPS
contends that if Plaintiff had not been terminated as alleged in the lawsuit, his

The Court notes that by the time of trial on January 25, 2021, the 2010 conviction will be
more than 10 years old. However, evidence of the conviction and its nature may still be
admitted if his release from confinement on that conviction occurred less than ten years
prior to the trial.
1

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employment with UPS would have ended once it learned of his criminal history,
thus limiting Plaintiff’s potential damages, as of that date. James v. Kaiser

Aluminum Fabricated Products, LLC, No. 2:11-cv-00847, 2013 WL 1787382 (S.D.
Ohio Apr. 25, 2013), (Graham, J.) (evidence of the plaintiff’s post-termination jail
time is relevant to the issue of damages in FMLA case).
In this case, however, Plaintiff was terminated on January 17, 2016, and the
offense date for Plaintiff’s gross sexual imposition charge is March 11, 2017. As
such, it is unclear if this post termination misconduct would be permissible as an
after- acquired evidence defense. See Jones v. Nissan N. Am., Inc., 438 Fed.Appx.
388, 406-407 (6th Cir. 2011)(plaintiff’s misconduct admissible as after-acquired
evidence since it occurred while employee was on FMLA leave); See also, Oster v

Huntington Bankshares Inc., No. 2:15-cv-2746, 2017 WL 2215462* (S.D. Ohio
2017)((Marbley, J.) (district court permitted only evidence of pre-termination
misconduct noting “the perverse incentives created if employers were rewarded
for rummaging around an ex-employee’s life following his or her termination, all
in the name of creating some post-hoc rationale for that very termination. It
stands to reason that losing one’s job may create unexpected and unordinary
hardships in a person’s life—hardships that, in any event, easily could be spun to
justify the underlying termination.”)
Although UPS is correct that its affirmative defenses and Fed. R. 609(a)
permit a jury to hear some evidence of Plaintiff’s 2010 and 2019 convictions, the
Court finds, pursuant to Fed. R. Evid. 403, that “the probative value” of the nature
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of Plaintiff’s conviction for “gross sexual imposition” is “substantially outweighed
by a danger of” both unfair prejudice and confusion of the issues. 2 Rule 609(a)
and Defendant’s affirmative defenses of mitigation of damages and the afteracquired evidence doctrine, however, do require that the jury be provided some
evidence of these two convictions.
Accordingly, for the reasons stated in this Decision and Entry, Plaintiff’s
Motion in Limine to Exclude any Evidence of Prior Criminal Convictions or
Incarcerations, Doc. #64, is SUSTAINED in part and OVERRULED in part. Any
testimony and evidence containing details of Plaintiff’s current or prior criminal
convictions or incarcerations will be excluded, other than the nature of his 2010
conviction for deception to obtain dangerous drugs. UPS, however, will be
permitted to impeach Plaintiff, by asking him on cross-examination the following
questions: (1) if he was ever convicted of a felony offense; (2) how many times he
was convicted of felony offenses; and, (3) whether he was convicted of deception
to obtain dangerous drugs in 2010. Plaintiff cannot be asked whether he has been
or is now incarcerated.
In order to avoid the danger of unfair prejudice and confusion of the issues
that, in the Court’s opinion, would result from the introduction of evidence of
Defendant’s convictions and/or incarcerations, other than the above, and, further,

The naming of the nature of the 2010 conviction for deception to obtain dangerous
drugs is permitted by Fed. R. Evid. 609(a)(2), without being subject to a Fed. R.. Evid. 403
analysis.
2

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in order to allow Defendant to offer testimony and evidence concerning Plaintiff’s
alleged failure to mitigate damages and/or the after required evidence doctrine,
should the evidence at trial and the applicable law allow same to be raised, the
Court will work with counsel to develop a stipulation, both to be read to the jury
and included in the jury instructions, to the effect that “damages, if any, can
neither be considered nor awarded for any period of time after March 11, 2017.”
That date, March 11, 2017, is the date of the offense leading up to his 2019
conviction for Gross Sexual Imposition. This, or a similar stipulation, will avoid
the possibility that the probative evidence allowed above will be substantially
outweighed by the danger of both unfair prejudice and confusion of the issues,
yet will allow Defendant to offer any available competent evidence and/or
testimony reference Plaintiff’s failure to mitigate damages and/or after-acquired
evidence.

Date: October 27, 2020
WALTER H. RICE
UNITED STATES DISTRICT JUDGE

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