Equal Employment Opportunity Commission v. DolGenCorp, LLC

Filing 140

ORDER by Magistrate Judge Gerald L. Jackson GRANTING IN PART AND DENYING IN PART 101 Defendant's Motion in Limine and Memorandum in Support; and GRANTING IN PART AND DENYING IN PART 103 Plaintiff EEOC's Motion in Limine with Brief in Support. (pmb, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

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) Case No. CIV-21-295-GLJ
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Plaintiff,
v.
DOLGENCORP, LLC d/b/a
DOLLAR GENERAL,
Defendant.

ORDER
This matter comes before the Court on motions in limine by both Plaintiff and
Defendant. For the reasons set forth below, the Court finds that Plaintiff EEOC’s Motion
in Limine with Brief in Support [Docket No. 103] is GRANTED IN PART and DENIED
IN PART and that Defendant’s Motion in Limine and Memorandum in Support [Docket
No. 101] is GRANTED IN PART and DENIED IN PART.
PROCEDUREAL HISTORY
Plaintiff EEOC brought this action under the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. §§ 621, et seq., against Dolgencorp, LLC d/b/a Dollar General
on behalf of three former district managers: Bill Sims, Gregory Phillips and Gloria Lorenzo
(collectively, the “Claimants”). See Docket No 2. Plaintiff alleged four claims under the
ADEA. Specifically, Plaintiff’s asserted claims for: (1) age-based harassment by Regional
Manager Nic DeAngelis as to Sims, Phillips, Lorenzo, and other district managers over the
1

age of 50 in Region 73; (2) constructive discharge with regard to Sims and other district
managers over the age of 50 in Region 73; (3) discharge with regard to Phillips, Lorenzo,
and other district managers over the age of 50 in Region 73; and (4) termination in
retaliation for engagement in protected activity, with regard to Phillips, Lorenzo, and other
district managers over the age of 50 in Region 73. See Docket No. 2, pp. 9-11, ¶¶ 51-69.
On February 2, 2024, the Court granted in part and denied in part Defendant’s
Memorandum in Support of Motion for Summary Judgment [Docket No. 100] and granted
in part and denied in part Plaintiff’s Motion for Partial Summary Judgment with Brief in
Support [Docket No. 102]. See Docket No. 139. Specifically, the Court granted Defendant
summary judgment on Count II, the constructive discharge claim as to Sims, and Plaintiff’s
request for emotional distress and punitive damages pursuant to Count IV (retaliation), but
denied summary judgment on the three remaining claims, Counts I (harassment), III
(discharge), and IV (retaliation). The Court also denied summary judgment on Defendant’s
Affirmative Defense No. 8 (Farragher/Ellerth affirmative defense). As to Plaintiff’s
motion, the Court granted summary judgement on Defendant’s affirmative defenses for
failure to mitigate (Affirmative Defense No. 6) and conditions precedent to suit
(Affirmative Defense Nos. 7, 20 and 21).
ANALYSIS
I.

Applicable Law

“Although the Federal Rules of Evidence do not explicitly authorize in limine
rulings, the practice has developed pursuant to the district court’s inherent authority to
manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984) (citing Fed.
2

R. Evid. 103(c); cf. Fed. R. Civ. P. 12(e)). As such, “[t]he purpose of a motion in limine
is to aid the trial process by enabling the Court to rule in advance of trial on the relevance
of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy
argument at, or interruption of, the trial.” Mendelsohn v. Sprint/United Mgmt. Co., 587
F.Supp.2d 1201, 1208 (D. Kan. 2008), aff’d, 402 F. App’x 337 (10th Cir. 2010) (internal
quotations omitted); see also Dry Clean Super Ctr., Inc. v. Kwik Indus., Inc., 2012 WL
503510 *4 (D. Colo. Feb. 15, 2012) (“The purpose of a motion in limine is to allow the
Court to decide evidentiary issues in advance of trial to avoid delay and ensure an
evenhanded and expeditious trial.”). Motions in limine “are designed to narrow the
evidentiary issues for trial and to eliminate unnecessary trial interruptions.” Graves v. Dist.
of Columbia, 850 F.Supp.2d 6, 10 (D.D.C. 2011) (quotation marks omitted).
To exclude evidence on a motion in limine “the evidence must be inadmissible on
all potential grounds.” Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio
2004). “Unless evidence meets this high standard, evidentiary rulings should be deferred
until trial so that questions of foundation, relevancy and potential prejudice may be
resolved in proper context.” Hawthorne Partners v. AT & T Tech., Inc., 831 F.Supp. 1398,
1400 (N.D. Ill. 1993). However, “the district court may change its ruling at any time for
whatever reason it deems appropriate.” Jones v. Stotts, 59 F.3d 143, 146 (10th Cir. 1995)
(citations omitted); see also Luce, 469 U.S. at 41 (“The ruling is subject to change when
the case unfolds . . . [E]ven if nothing unexpected happens at trial, the district judge is free,
in the exercise of sound judicial discretion, to alter a previous in limine ruling.”).
Alternatively, a judge may decline to rule on an issue raised via limine motion, preferring
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to “await developments at trial before [so] ruling” to allow the “decision [to] be better
informed by the context, foundation, and relevance of the contested evidence within the
framework of the trial as a whole.” Graves, 850 F. Supp. 2d at 11 (quotation marks and
citations omitted).
II.

Plaintiff’s Motion in Limine

1. Claimants’ work performance, conduct, and reasons for separation of
employment from employers other than Dollar General 1
Plaintiff seeks to exclude all evidence of Claimants’ performance, conduct, and
reasons for separation from employers other than Dollar General as irrelevant to any claim
or defense. See Docket No. 103, pp. 2-3. Defendant asserts that such evidence is relevant
to mitigation of damages by Claimants. See Docket No. 114, pp. 1-2.
As noted above, the Court granted Plaintiff summary judgement on the mitigation
of damages issue asserted in Defendant’s Affirmative Defense No. 8. The Court also
granted summary judgement as to Sim’s constructive discharge and, thus, he has no
mitigation of damages issues. Furthermore, as noted by Plaintiff, it only seeks lost wages
damages for Phillips up to his time of the termination from Dollar Tree, which was his
employer after he was discharged from Defendant.

Therefore, evidence related to

Phillips’s Dollar Tree termination is not relevant. Plaintiff’s Motion is granted.

1

Phillips’ prior termination, theft conviction and “falsified” employment application are addressed
collectively below.

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2. Communications with attorneys regarding this case, including any private
representation
Plaintiff seeks to exclude all evidence based on attorney-client privilege pursuant to
12 O.S. § 2502(B) regarding Claimants’ communications with private attorneys and
whether Claimants retained a private attorney. See Docket No. 103, pp. 3-4. Plaintiff
subsequently identifies the four specific communications it seeks to exclude: 1)
communications Lorenzo and Phillips had with an unidentified attorney from whom they
initially sought representation; 2) communications between Sims and his attorney, Larry
Schumaker; 3) communications between Lorenzo and Schumaker regarding a possible
witness statement; and 4) communications between EEOC attorneys and Claimants prior
to conciliation. See Docket No. 114, p. 8. 2 Defendant argues that any Claimants’
interactions with an attorney with whom they do not have an attorney-client relationship
or with whom no legal advice was sought or obtained does not fall under the attorney-client
privilege. See Docket No. 108, pp. 7-8. Defendant further argues that any communications
between Plaintiff’s attorneys and Claimants before statutorily mandated conciliation is not
protected by the privilege. Id.
As an initial matter, “the attorney-client privilege is designed to shield the client’s
confidential disclosures and the attorney’s advice. To “establish the privilege, it must be
shown that the status occupied by the parties was that of attorney and client and that their
communications were of a confidential nature.” Sims v. Travelers Ins. Co., 2000 OK CIV

2

Because Plaintiff did not articulate these four instances covered by its motion in limine until its
Reply brief, Defendant was left to guess as to the specific evidence Plaintiff sought to exclude and
deprived the Court of more fulsome argument.

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APP 145, ¶ 8, 16 P.3d 468, 470. “To establish attorney-client privilege, the proponent must
show: (1) a communication; (2) made between privileged persons; (3) in confidence; (4)
for the purpose of seeking, obtaining, or providing legal assistance to the client.” Stockton
v. Housecalls Home Health Services, Inc., 2007 WL 9872747, *3 (N.D. Okla. June 15,
2007) (citing Restatement (Third) of Law Governing Lawyers § 68 (2007)). The party
asserting privilege has the burden of establishing a basis for his claim. In re Foster, 188
F.3d 1259, 1264 (10th Cir. 1999).
i.

Lorenzo’s and Phillips’ communications with an attorney regarding
potential legal representation

While Plaintiff concedes that Lorenzo and Phillips did not retain an attorney, it seeks
to shield as privileged all communications they had with an attorney regarding potential
legal representation. As an initial matter, the attorney-client privilege does not shield the
fact that Lorenzo and Phillips retained an attorney or communicated with an attorney in
contemplation of retaining such attorney. Riley v. Union Pacific R.R. Co., 2010 WL
1946286, *1 (E.D. Okla. May 13, 2010); see also Dent v. BNSF Ry. Co., 2021 WL
1977055, *1 (W.D. Okla. May 17, 2021) (“To the extent Plaintiff’s hiring of an attorney
‘do[es] not reflect any confidential communication, the subject would not be barred by the
attorney-client privilege.’”) quoting Smith v. BNSF Ry. Co., 2011 WL 13176827, at *3
(W.D. Okla. Sept. 13, 2011)).

Nonetheless, to the extent Lorenzo’s and Phillips’

communications with the attorney were “for purpose of seeking” legal assistance, then the
content of such communications are protected by the attorney-client privilege.
Stockton, 2007 WL 9872747, *3.
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See

ii.

Sim’s communications with Larry Schumaker about this case

Plaintiff asserts that Schumaker was Sim’s attorney during the EEOC investigation
phase of this case. See Docket No. 114, p. 9. While Schumaker apparently represented
himself to be Sims’ attorney in August 2019, Id., Ex. 2, based on the excerpted deposition
transcript provided, it is unclear to what extent Sims considered Schumaker his attorney
and the time period of such representation. Id., Ex. 3. For example, Sims indicates he did
not believe Schumaker represented him but was giving him some legal advice for a few
months around the time he resigned from Defendant in December 2017. Therefore, any
communications Sims had with Schumaker around December 2017 is likely to be covered
by the attorney-client privilege because such communications were for the purpose of
seeking or obtaining legal assistance. Is it unclear, however, what if any communications
Sims had with Schumaker after early 2018. As a result, Plaintiff fails to meet its burden of
establishing a basis for any privilege claim for any communications between Sims after
early 2018. Therefore, the Court declines to make any further findings regarding any
privileged communications between Sims and Schumaker after early 2018 and instead will
“await developments at trial before [so] ruling” to allow the “decision [to] be better
informed by the context, foundation, and relevance of the contested evidence within the
framework of the trial as a whole.” Graves, 850 F. Supp. 2d at 11.
iii.

Communications between Lorenzo and Schumaker

Plaintiff seeks to exclude communications between Lorenzo and Schumaker
regarding a witness statement in an unrelated lawsuit on the basis that it is irrelevant rather
than attorney-client privilege. See Docket No. 114, p. 9. Because the Court was not
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provided any information or context for the contents of the communications or the subject
matter of the unrelated lawsuit, it declines to rule on this issue at this time.
iv.

Communications between Claimants and EEOC attorneys prior to
conciliation

Plaintiff seeks to exclude communications between Claimants and the EEOC prior
to conciliation as irrelevant. The Court again has no basis upon which to evaluate the
relevance of the statements Plaintiff seeks to exclude because it does not know the
statements’ content or the context in which they were made. Therefore, the Court denies
Plaintiff’s Motion for this category of communication. “[A] court is almost always better
situated during the actual trial to assess the value and utility of evidence.” Romero v.
Helmerich & Payne Int’l Drilling Co., 2017 WL 3268878, at *2 (D. Colo. Aug. 1, 2017)
(internal quotation marks omitted)).
3. Sims’ EEOC charge of discrimination
Plaintiff seeks to exclude evidence of Sims’ charge of discrimination. Plaintiff
argues that because this proceeding is de novo, any allegations made prior to it are
irrelevant and could lead to “minitrials” as to why Plaintiff does not allege a claim that
Defendant engaged in a pattern and practice of age discrimination as alleged in Sim’s
charge. See Docket No. 103, pp. 4-5. Defendant argues that Sims’ sworn statements in
the charge of discrimination is relevant because all allegations that Plaintiff relies on to
prove its case are relevant, that such charge is also valid impeachment evidence and
Plaintiff’s speculative concerns regarding undue prejudice do not outweigh the probative
value of such evidence. See Docket No. 108, pp. 8-10.
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Beyond vague statements that Sims’ charge of discrimination contains allegations
that Defendant “engaged in a pattern and practice of age discrimination,” neither party
provides any details of what specific statements Sim’s made in the charge. Nonetheless,
Sims’ sworn statement regarding his discriminatory treatment based on his age by
Defendant is potentially relevant and likely could be the basis for impeachment. Thus, the
Court is in no position at this time to determine the relevance or the potential unfair
prejudice such evidence may involve. Because “the evidence must be inadmissible on all
potential grounds[,]” Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d at 846, the Court defers
any decision on it “until trial so that questions of foundation, relevancy and potential
prejudice may be resolved in proper context.” Hawthorne Partners, 831 F.Supp. at 1400.
Therefore, Plaintiff’s Motion on this issue is denied.
4. Evidence of Sims’ emotional state following his separation from Defendant
Plaintiff seeks to exclude all evidence of Sim’s emotional distress after the
conclusion of this employment with Defendants because Plaintiff does not seek emotional
distress damages on behalf of Sims. See Docket No. 108, p 5. Defendant argues that Sims’
emotional distress during his employment with Defendant is not relevant but any emotional
distress, including alcohol abuse, after this employment is relevant to his mitigation of
damages. See Docket No. 108, p. 11. In particular, Defendant argues that Sims’ emotional
distress and alcohol abuse post-employment is relevant to his ability to work and mitigate
his backpay damages.

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As previously ordered by the Court, Plaintiff’s claim for Sims’ constructive
discharge was dismissed and Sims is not entitled to any backpay damages. See Docket No.
139, p. 23. Therefore, to the extent Sims’ emotional distress and alcohol abuse is only
relevant to the issues of his failure to mitigate his backpay damages, such evidence is
irrelevant. Plaintiff’s Motion on this issue is denied.
5. Phillips prior criminal conviction and misrepresentation on his Dollar General
application
Plaintiff seeks to exclude evidence related to Phillips’ termination from an employer
prior to working for Defendant, his prior criminal conviction and his failure to include such
termination/conviction on his Dollar General employment application. See Docket No.
108, pp. 2-4. Phillips was terminated from Lowe’s in 2005 for keeping a gift card with a
value of $38. Phillips was subsequently charged with theft and pled guilty. See Docket
No. 114, p. 3. Phillips’ was sentenced to 15 hours of community service and his conviction
was later expunged. Id. On his Dollar General employment application, Phillips answered
“no” to the question of whether he had ever been convicted of a crime other than a minor
traffic violation. Id. Defendant asserts this information is relevant to its “after-acquired
evidence defense” and is proper impeachment evidence. See Docket No. 108, pp. 3-4.
First, Phillips prior termination is not relevant to Defendants’ after-acquired
evidence defense. The after-acquired evidence defense provides that a plaintiff’s claim for
backpay is cut off as of the date the defendant-employer learns of the employee’s
wrongdoing that would have been a basis for termination had the employer known the
information at the time of the discharge that is the subject of the claim. See, e.g., Medlock
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v. Ortho Biotech, Inc., 164 F.3d 545, 554 (10th Cir. 1999). Defendant learned of Phillips’
termination from Lowes during his August 2023 deposition. See Docket No. 114, Ex. 1.
Plaintiff stipulates that Phillips’ backpay claim is cut off in July 2019, well before
Defendant learned of his termination. Thus, the after-acquired evidence was obtained by
Defendant after Phillips’ backpay claim cut off and is not relevant to the backpay issue.
Second, Defendant asserts Phillips’ prior conviction and “falsified” employment
application are relevant for impeachment of his credibility under Fed. R. Evid. 404(b). See
Docket No. 108, p. 4.

Specifically, Defendant argues evidence of dishonesty and

propensity for untruthfulness may be admitted to impeach a witness’ credibility and is not
inadmissible character evidence. Id. Plaintiff responds that the proposed evidence is
inadmissible character evidence under Fed. R. Evid. 404, is irrelevant because Plaintiff
stipulated to the backpay cut off and that the employment application was not false because
the criminal conviction was expunged. See Docket No. 114, pp. 5-6.
While character evidence is generally inadmissible to prove that a person acted in
accordance with the particular character trait, Fed. R. Evid. 404(a)(3) provides it may be
admitted under Fed. R. Evid. 607, 608 and 609. Fed. R. Evid. 404. Under Fed. R. Evid.
607, any party may attack a witness’ credibility. However, the ability to attack a witness’
credibility at trial is subject to certain limitations. Except for a criminal conviction under
Rule 609, “extrinsic evidence is not admissible to prove specific instances of a witness’s
conduct in order to attack or support the witness’s character for truthfulness.” Fed. R. Evid.
608(b). Specific instances of a witness’ prior misconduct may be used, however, to
impeach the witness “only to the extent the misconduct reflects on the witness’[ ] character
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for truthfulness.” United States v. Beltran–Garcia, 338 Fed. Appx. 765, 770 (10th Cir.
2009) (unpublished); Fed. R. Evid. 608(b). Further, under Fed. R. Evid. 609(a)(1),
evidence of a witness’ prior criminal conviction may be introduced to impeach the witness
only if the elements of the crime required proving a dishonest act or false statement.
Convictions more than ten years old are also generally not admissible unless the probative
value of the evidence substantially outweighs its prejudicial effect and the proponent of the
evidence gives the adverse party reasonable written notice of its intent to use this evidence.
Fed. R. Evid. 609(b). Lastly, evidence of a conviction is inadmissible if it “has been the
subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure
based on a finding that the person has been rehabilitated. . . .” Fed. R. Evid. 609(c)(1).
Defendant seeks to impeach Phillips with both his past conviction of theft of a $38
gift card and the specific instance of his prior termination and “false” statement on his
Dollar General employment application. Any impeachment of Phillips regarding his past
theft conviction is inadmissible. First, Phillips’ theft conviction does not appear to involve
an element proving a dishonest act or false statement.
[C]rimes such as perjury or subor[ ]nation of perjury, false statement,
criminal fraud, [or] embezzlement” and “those crimes characterized by an
element of deceit or deliberate interference with the truth” are per se crimes
of dishonesty or false statement. United States v. Mejia-Alarcon, 995 F.2d
982, 989 (10th Cir. 1993) (quotations omitted). “[C]rimes like burglary,
robbery, and theft” fall outside the per se category. Id.; see also United States
v. Dunson, 142 F.3d 1213, 1215 (10th Cir. 1998).
Burke v. Regalado, 935 F.3d 960, 1017 (10th Cir. 2019) (emphasis added). See also Taylor
v. Owners Ins. Co., 2020 WL 12499910, at *2 (D. Colo. May 20, 2020) (citing United
States v. Glenn, 667 F.2d 1269, 1273 (9th Cir. 1982) (“Generally, crimes of violence, theft
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crimes, and crimes of stealth do not involve ‘dishonesty or false statement’ within the
meaning of rule 609(a)(2). Although such crimes may indicate a lack of respect for the
persons or property of others, they do not bear directly on the likelihood that the defendant
will testify truthfully.”)). Second, Phillips’ theft conviction is more than ten years old and
its probative value does not substantially outweigh is prejudicial effect. The probative
value of an old conviction for the theft of a $38 gift card is minimal at best, whereas the
risk of prejudice is substantial.
Any attempt to impeach Phillips regarding his prior termination or any “falsified”
statement on his Dollar General employment application is also inadmissible. First, the
termination and alleged false statement is from 2005 and his 2007 employment application,
respectively, so they are not particularly temporally relevant to his current character for
truthfulness. Second, impeachment on any alleged false employment application statement
risks devolving into a minitrial over whether Phillips’ answer was false. Phillips testified
that because his conviction had been expunged, he believed he correctly answered “no” to
the application question of whether he had ever been convicted of a crime. See Docket No.
114, Ex. 1. While an exclusion of a conviction under Fed. R. 609(c)(1) requires a finding
that the expungement was based on a finding of rehabilitation and neither party provides
the Court with the applicable state law to make such a finding, see, e.g., U.S. v. Moore, 556
F.2d 479, 484 (10th Cir. 1977) (“Rule 609(c), then, precludes the use of a prior felony
conviction for impeachment purposes where the conviction has been the subject of a
pardon, annulment, certificate of rehabilitation, or other equivalent procedure. However,
whether there has been such an expungement, and the extent of such expungement, must
13

in the instant case be determined by reference to [state] law); U.S. Xpress Enterprises, Inc.
v. J.B. Hunt Transp., Inc., 320 F.3d 809, 816 (8th Cir. 2003) (requiring a finding that the
witness had been rehabilitated in order to exclude evidence of the witness’s prior
conviction), Phillips’ understanding and intent are relevant as to whether his statement was
false for impeachment purposes. A minitrial on Phillips’ understanding and intent in
answering the application question is irrelevant to the issues in this case and risks confusing
the jury. Lastly, delving into whether the employment application statement was false will
necessarily bring in Phillips’ criminal conviction that the Court already ruled is
inadmissible, and, therefore, any probative value is substantially outweighed by the unfair
prejudicial effect under Fed. R. Evid. 403. For these reasons, Plaintiff’s Motion to exclude
Phillips’ previous termination, previous conviction and any alleged false statement on his
Dollar General employment application is granted.
6. Evidence of other legal proceedings
In support of its request to exclude evidence of other legal proceedings, Plaintiff
references Phillips prior conviction and Lorenzo’s prior bankruptcy. The Court addresses
Phillips’ prior conviction above. Defendant represents that it does not oppose excluding
evidence of Lorenzo’s bankruptcy. See Docket No. 108, p. 12. Therefore, Plaintiff’s
Motion on these issues is granted.
III.

Defendant’s Motion in Limine

1 & 2. No mention of or request for an award of punitive damages and emotional
distress damages for Sims
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Defendant seeks the exclusion of any mention of or request for punitive damages
for any Claimant and emotional distress damages for Sims. See Docket No. 101, pp. 2-3.
As previously ordered by the Court, neither punitive damages nor emotional distress
damages are available under the ADEA. See Docket No 139, pp. 20-21. Therefore, the
Defendant’s Motion on punitive and emotional distress damages is granted.
3.

No mention of any EEOC Determination or Investigation

Defendant seeks to exclude any reference to or evidence of any determination by
Plaintiff in this matter, the sufficiency or implications of Plaintiff’s investigation of any
claim by Sims or others, and communications between Plaintiff and Defendants related to
the investigation because such evidence is irrelevant and unfairly prejudicial. See Docket
No. 101, p. 3. Plaintiff argues that Defendant fails to meet its burden of demonstrating the
refenced evidence is irrelevant or unfairly prejudicial. See Docket No. 107, p. 3. Plaintiff
further represents it will not introduce the Letter of Determination as evidence unless
Defendant challenges the jurisdiction of this Court over the case. Id., p. 4.
The EEOC investigated Defendant for violations of the ADEA and issued a Letter
of Determination “finding reasonable cause to believe that the ADEA was violated.” See
Docket No. 2, ¶¶ 6 & 7. Subsequently, the EEOC issued Defendant a Notice of Failure of
Conciliation. Id., ¶ 10. No further details are provided in the parties’ briefs regarding the
EEOC’s findings or the substance of any communications between the EEOC and
Defendant that are the subject of Defendant’s motion for the Court’s consideration and
evaluation for relevance or potential unfair prejudice.
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As to Defendant's Rule 403 objection, the rule in the Tenth Circuit is that district
“courts have discretion in deciding whether to admit EEOC determinations into evidence.”
Nulf v. Int'l Paper Co., 656 F.2d 553, 563 (10th Cir. 1981); see also Tuffa v. Flight Servs.
& Sys., Inc., 644 F. App'x 853, 855 n.3 (10th Cir. 2016) (unpublished); Cervantes v. WalMart Stores, Inc., 1 F. App'x 762, 765 (10th Cir. 2001 (unpublished) (“a district court has
discretion whether to admit an EEOC probable cause determination at trial”). Where the
determination merely summarizes the parties' evidence and reaches a conclusion, it is
reasonable to question the probative value of the exhibit and find its value is substantially
outweighed by a likelihood that the jury would misunderstand a reasonable cause finding
or give undue deference to the EEOC's expertise in discrimination matters. See, e.g., Denny
v. Hutchinson Sales Corp., 649 F.2d 816, 822 (10th Cir. 1981) (affirming exclusion of
agency probable-cause finding under Rule 403); see also Hall v. Western Prod. Co., 988
F.2d 1050, 1058 (10th Cir. 1993) (affirming exclusion of agency no-cause finding because
“all the evidentiary matter before the [agency] could be presented to the jury” and “the only
purpose to be served by admitting into evidence the [agency] report would be to suggest to
the jury that it should reach the same conclusion”) (internal quotation omitted). Plaintiff
represents it does not intend to introduce the Letter of Determination, unless jurisdiction is
challenged, and, therefore, Defendant’s Motion is granted as to the Letter of Determination.
To the extent Defendant challenges the Court’s jurisdiction, the admissibility will be
reconsidered.

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Because Defendant also makes a broad and non-specific request to exclude evidence
of communications and “implications” of the EEOC’s investigation, Defendant’s Motion
as to those matters in is denied. While the Court finds that communications between the
EEOC and Defendant and investigation implications could be admissible, upon proper
foundation, as relevant, the Court notes that the parties have not explained what
communications or the contents of such communications are at issue. Accordingly, the
communications between the EEOC and Defendant and investigative materials are not
deemed inadmissible at this time. See Tulsa Zoo Management, Inc. v. Peckham Guyton
Albers & Viets, Inc., 2019 WL 1562039, at *2 (N.D. Okla. March 6, 2019), citing Walsh v.
United States, 2009 WL 3755553, at *2 (N.D. Okla. Mar. 31, 2009) (“A court is within its
discretion to deny a motion in limine that fails to identify the evidence with particularity
or to present arguments with specificity. Motions in limine which exclude broad categories
of evidence should rarely be granted. The better practice is to address the issues of
admissibility as they arise.”). Therefore, Defendant’s Motion is denied as to remainder of
this category.
4.

No mention of alleged inappropriate comments/acts unrelated to age

Defendant seeks to exclude evidence of allegations of wrongful conduct by
DeAngelis that have no bearing on Plaintiff’s allegations of age discrimination. See Docket
No. 101, p. 3. Defendant describes the evidence it seeks to exclude in its Motion as
allegations that: DeAngelis spoke in a negative manner related to Nichelle Shillingford,
unrelated to her age; DeAngelis made comments about certain employees being overly
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sensitive; reference to any person’s race; and derogatory comments to or about any person
based on any protected category other than age. Id., pp. 3-4. Like Plaintiff, Defendant
waited until its Reply to more fully describe the specifics of the evidence it seeks to
exclude. In its Reply, Defendant identifies the evidence it seeks to exclude as: racial and/or
sexual statements about Shillingford or comments about lesbians; and derogatory
comments about gays and lesbians. See Docket No. 113, pp. 2-4. Plaintiff argues the
inappropriate comments and acts of DeAngelis unrelated to age are relevant to his
termination and Defendant’s anticipated “equal opportunity’ harasser defense. See Docket
No. 107, pp. 4-5.

Unfortunately, neither party identifies most of the testimony or

documents at issue for the Court to analyze.
As an initial matter, the “equal opportunity” harasser defense appears to be primarily
applied in sex discrimination cases in which the argument is that the conduct is not
actionable because the harasser harassed individuals of both sexes and, thus, did not
discriminate against the claimant based on or because of the claimant’s sex. See, e.g., Gray
v. Koch Foods, Inc., 580 F.Supp.3d 1087, 1108 (M.D. Ala. 2022) (describing “‘the equal
opportunity harasser defense,’ whereby harassers evade Title VII liability if they harass
both sexes equally and therefore are technically not discriminating ‘based on sex.’”);
Armintrout v. Bloomingdale’s Pizza, Inc., 2007 WL 837279, at *5 (N.D. Ill. March 13,
2007) (“the so-called ‘equal-opportunity’ sexual harasser with respect to men and women,
even such a harasser who uses sexually charged or vulgar words or behavior, is outside the
ambit of Title VII because there is no discrimination occurring on the basis of sex.”).
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Neither party cites any authority on the application or the contours of the equal opportunity
harasser defense in the context of age discrimination. While such a corollary defense in
the age discrimination context might be that DeAngelis treated employees equally bad
regardless of age, the evidence at issue is not so easily limited or categorized as it is in sex
discrimination cases. For example, Defendant appears to argue that only facts related to
DeAngelis yelling and swearing at employees of all ages is admissible. Such a narrow
application, however, ignores that yelling or swearing is inherently neutral conduct
whereas sexual touching or comments is explicitly sexual in nature. This argument also
ignores DeAngelis’ alleged use of crude language that could be considered both swearing
or unprofessional and pejorative language directed at a protected class.

See, e.g.,

DeAngelis’ deposition at p. 204, lns. 13-16. Plaintiff argues that Defendant terminated
DeAngelis for “inappropriate conduct,” thereby making these other instances of alleged
inappropriate conduct unrelated to age relevant in this case. Plaintiff offers no support for
this assertion. While it is possible that issues surrounding Defendant’s investigation of
complaints about DeAngelis’ conduct, including his non-age based inappropriate conduct,
the timing of the complaints and the investigation, and the timing of DeAngelis’
termination, could potentially be relevant, based on the information before the Court it is
not entirely clear that it is. In this context, however, the Court cannot say based on the
limited information before it that evidence of DeAngelis’ alleged inappropriate conduct
unrelated to age is irrelevant for any purpose, particularly as to Defendant’s investigation
or the timing of DeAngelis’ termination.

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Although Defendant also seeks the exclusion of statements regarding alleged
inappropriate conduct on the basis that they are hearsay, with one exception, it offers no
details or any argument as to any precise statements or documents and why such statements
or documents are inadmissible hearsay. See Docket No. 101, p. 3. In response, Plaintiff
argues the statements are non-hearsay because they are not offered for the truth of the
matter asserted, were made by DeAngelis while he was an agent of Defendant and, to the
extent the statements are hearsay, they fall under the business records exception. See
Docket No. 107, pp. 5-6. Although Plaintiff offers various statements in quotations, it does
not direct the Court to any specific testimony or documents to which it is referring to allow
an evaluation of such statements in context. Id., p. 4.
Under the Federal Rules of Evidence, hearsay is a statement that the declarant does
not make while testifying at the current trial or hearing; and which a party offers in evidence
to prove the truth of the matter asserted in the statement. Fed. R. Evid. 801(c). Hearsay is
inadmissible unless federal statute or the Federal Rules of Evidence provide otherwise.
Fed. R. Evid. 802. Finally, “hearsay within hearsay” is not excluded by the rule against
hearsay if each part of the combined statements conforms with an exception to the rule.
Fed. R. Evid. 805.
Plaintiff first argues that the statements at issue are not being offered for the truth
of the matter asserted. While such a use of the statements would take them outside the
hearsay definition, Plaintiff offers no other purpose it intends for the statements other than,
presumably, as a basis for DeAngelis’ termination. See Docket No. 107, p. 5. At best,
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however, such a use intermingles the statements truthfulness with their usage – presumably
Defendant would not terminate an employee based on untruthful or unreliable accusations.
Plaintiff also argues that the statements are not hearsay under Fed. R. Evid.
801(d)(2)(D) because they were made by DeAngelis while he was an agent and employee
of Defendant and the business records exception under Fed. R. Evid. 803(6). Id., pp. 5-6.
Plaintiff ignores, however, that, to the extent the Court has been able to identify the source
of any of the alleged statements, they are often out of court statements by others repeating
alleged statements by DeAngelis. Indeed, the one specific statement by Sims identified by
Defendant is clearly hearsay without any exception. See Docket No. 113, n.1. Moreover,
some of the statements the Court is aware of on its own are Defendant’s employees
summarizing statements of other Defendant employees about statements allegedly made
by DeAngelis. Thus, those statements raise multiple hearsay within hearsay issues under
Fed. R. Evid. 805 and this issue is not addressed by Plaintiff. As a result, while the Court
has concerns regarding the potential hearsay of this evidence, except for the one example
cited above, it has not been provided sufficient identification of the testimony or documents
at issue, the context or the proposed use for such testimony or documents to properly
evaluate questions of admissibility.
Lastly, Defendant seeks the exclusion of this evidence under Fed. R. Evid. 403.
Federal Rule of Evidence 403 permits the court to “exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
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needlessly presenting cumulative evidence.” Fed. R. Evid. 403; United States v. Cox, 684
F. Appx. 706, 708 (10th Cir. 2017). “Rule 403 sets a high bar for reversing a district court's
decision to admit relevant evidence. We have previously stated, ‘our law favors admission
of all relevant evidence not otherwise proscribed.’” United States v. Watson, 766 F.3d
1219, 1241 (10th Cir. 2014) (quoting United States v. Irving, 665 F.3d 1184, 1213 (10th
Cir. 2011)). Excluding evidence under Rule 403 is therefore “an extraordinary remedy
[that] should be used sparingly.” Watson, 766 F.3d at 1241 (quoting United States v.
Rodriguez, 192 F.3d 946, 949 (10th Cir. 1999)); Boardwalk Apartments, L.C. v. State Auto
Property and Cas. Ins. Co., 816 F.3d 1284, 1289 (10th Cir. 2016). In deciding whether to
exercise this extraordinary power, the Court must give the evidence its maximum
reasonable probative force and the minimum reasonable risk of unfair prejudice or
confusion. Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1274 (10th Cir.2000);
SEC v. Peters, 978 F.2d 1162, 1171 (10th Cir.1992).
As with the questions of relevance and hearsay, the Court simply does not have
adequate information of the precise testimony and documents at issue and the context of
such evidence to properly evaluate the probative value or any resulting prejudice for a Rule
403 analysis. Therefore, Defendant’s Motion on this issue is denied.
5.

No mention of alleged consensual relationship between DeAngelis and Amy
Parker

Defendant seeks to exclude all evidence of any alleged consensual relationship
between DeAngelis and District Manager Amy Parker as irrelevant and hearsay. See
Docket No. 101, p. 4. While Plaintiff agrees evidence of a romantic relationship between
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DeAngelis and Parker should be excluded, it argues that evidence of any favoritism
DeAngelis showed Parker is admissible because Parker was younger than 40. See Docket
No. 107, p. 6.
This evidence is not relevant and is likely hearsay without an exception. First,
Plaintiff does not identify what, if any, evidence of favoritism Parker received versus the
Claimants that would be relevant to its claims in this case. In this context, a trial court is
best served when the motion in limine it considers addresses specific evidentiary questions,
not general hypotheticals. Second, based on the evidence on this topic of which the Court
is aware, it appears likely that it is hearsay within hearsay – testimony of rumors or what
the declarant heard from others. Plaintiff offers no explanation as to how such evidence is
admissible under any hearsay exception. Therefore, Defendant’s motion on DeAngelis’
alleged relationship with Parker is granted.
6. DeAngelis’ Separation from K-Mart
Defendant seeks to exclude facts regarding DeAngelis’ termination from K-Mart
for subduing a shoplifter when he was a minor as irrelevant and inadmissible because the
probative value is substantially outweighed by unfair prejudice under Fed. R. Evid 403.
See Docket No. 101, p. 6. Plaintiff argues that Defendant fails to meet its burden to exclude
the evidence because it did not explain how such evidence is irrelevant or unfairly
prejudicial. See Docket No. 107, p. 6.
There is no apparent relevance to DeAngelis’ termination from K-Mart as a minor
to the issues in this case. Moreover, whatever limited probative value such evidence might
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have, it is outweighed by the unfair prejudicial effect of such evidence. Therefore,
Defendant’s Motion on this issue is granted.
7-26. Various boilerplate categories
In categories 7 – 26, Defendant seeks the exclusion of various boilerplate categories
of evidence, including excluding evidence or testimony regarding items such as request for
the production of non-exhibit documents in front of the jury, requests to stipulate to any
fact in front of the jury; reference to requests for admissions in discovery requests; contents
of a document not in evidence; visual aids or displays that have not been shown to opposing
counsel or admitted into evidence; summaries of evidence that do not comply with the
Federal Rules of Evidence; no introduction of hearsay; no mention of any availability
insurance to cover any judgment; etc. See Docket No. 107, pp. 7-12. Defendant does not
identify any specific evidence at issue or to which it seeks to exclude under any of these
categories.
“Courts look with disfavor on motions in limine ‘the gist of which is that the
opposing party should be required to comply with the rules of evidence . . . without
identifying specific evidence which there is reason to believe may be introduced.’” Kimzey
v. Diversified Servs., Inc., 2017 WL 131614, at *1 (D. Kan. Jan. 13, 2017) (quoting
Graham v. Union Pacific R.R. Co., 2008 WL 4643292, at *1 (E.D. Ark. Oct. 17, 2008))
(denying a “purely generic” motion in limine); Walsh, 2009 WL 3755553, at *2 ((“A court
is within its discretion to deny a motion in limine that fails to identify the evidence with
particularity or to present arguments with specificity. Motions in limine which exclude
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broad categories of evidence should rarely be granted. The better practice is to address the
issues of admissibility as they arise.”). Therefore, Defendant’s Motion categories 7 – 26
are denied. The Court fully expects parties to be familiar with and to abide by the Federal
Rules of Evidence, the local rules of the Eastern District of Oklahoma and the pretrial order
that is entered in this case as it relate any all evidentiary and trial issues.
CONCLUSION
Accordingly, as set forth herein, Plaintiff EEOC’s Motion in Limine with Brief in
Support [Docket No. 103] is GRANTED IN PART and DENIED IN PART and
Defendant’s Motion in Limine and Memorandum in Support [Docket No. 101] is
GRANTED IN PART and DENIED IN PART. Moreover, the Court anticipates and
expects the parties to be prepared to articulate and argue all specific remaining unresolved
evidentiary issues at the pretrial conference in this matter.
DATED this 5th day of June, 2024.

GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE

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