Cramer et al v. Oklahoma County Board of County Commissioners et al

Filing 93

ORDER granting in part and denying in part 86 Motion in Limine as set forth herein. Signed by Honorable Charles Goodwin on 05/13/2019. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DONELLA EPPS and
PHILLIP MALONE,

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Plaintiffs,
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v.
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OKLAHOMA COUNTY BOARD
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OF COUNTY COMMISSIONERS et al., )
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Defendants.
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Case No. CIV-18-179-G

ORDER
Now before the Court is Defendants’ Motion in Limine (Doc. No. 86), to which
Plaintiffs have responded (Doc. No. 91). For the reasons outlined below, Defendants’
Motion is GRANTED IN PART and DENIED IN PART.
A. Evidence or Argument Regarding Front Pay
A “front pay” award is “money awarded for lost compensation during the period
between judgment and reinstatement or in lieu of reinstatement.” Pollard v. E.I. du Pont
de Nemours & Co., 532 U.S. 843, 846 (2001). “An award of front pay for claims under
[42 U.S.C.] § 1983 is an equitable remedy; thus, the district court has discretion to decide
whether such an award is appropriate.” Ballard v. Muskogee Reg’l Med. Ctr., 238 F.3d
1250, 1253 (10th Cir. 2001); see also Starrett v. Wadley, 876 F.2d 808, 824 (10th Cir.
1989).
Defendants argue that Plaintiffs have failed to properly advise that they are seeking
front pay or disclose their computation of the front-pay damages sought, so that allowing

them to present such a request at trial would be unfairly prejudicial. Plaintiffs object that
they did adequately raise the front-pay issue as well as the amounts they will seek.
Given that front pay is a purely equitable issue, the Court declines to finally resolve
this dispute now. Plaintiffs shall not argue for a front-pay award before the jury. If either
Plaintiff prevails at trial, this Court will determine post-verdict whether he or she is entitled
to front pay, or reinstatement, or some other form of relief. See Ballard, 238 F.3d at 1253
(noting that front-pay determinations “are made solely by the court”); Gansert v. Colorado,
348 F. Supp. 2d 1215, 1229 (D. Colo. 2004); see also Blangsted v. Snowmass-Wildcat Fire
Prot. Dist., 642 F. Supp. 2d 1250, 1265 (D. Colo. 2009) (noting in First Amendment case
that reinstatement is generally the preferred remedy). In that event, the parties will be given
the opportunity to present argument and evidence as to the propriety of such a remedy in
this case.
B. Leona Porter’s Lawsuit and Settlement
In 2018, Leona Porter, another Clerk’s Office employee terminated by Defendant
Hooten, filed suit against Oklahoma County, raising claims of age, disability, and race
discrimination. See Porter v. Okla. Cty., No. CIV-18-320-G (W.D. Okla.). That case
settled, but Plaintiffs have identified Ms. Porter as an expected trial witness and have listed
case filings and evidence regarding her lawsuit as trial exhibits. See Pl.’s Trial Exs. 22, 23,
24. Defendants seek to exclude the admission of any evidence or testimony regarding Ms.
Porter’s lawsuit against Oklahoma County and the subsequent settlement as irrelevant,
confusing, highly prejudicial, and inadmissible under Federal Rule of Evidence 408.
Plaintiffs argue that admission of this evidence is proper “to help establish Defendants’
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motives behind terminating Plaintiffs and for the finder of fact to gain a more complete
factual picture of the first several weeks of Hooten taking office.” Pls.’ Mot. at 6.
The Court agrees with Defendants that this evidence is not sufficiently relevant and
GRANTS Defendants’ request. Regardless of whether it would otherwise be admissible
under Rule 408, Ms. Porter did not assert a First Amendment claim in her lawsuit and so
this evidence would not sufficiently assist the trier of fact in determining whether
“Defendants’ motives” included retaliation for the exercise of protected speech. See Fed.
R. Evid. 401. Further, any probative value would be outweighed by the danger that this
evidence would confuse or mislead the jury. See Fed. R. Evid. 403.
Evidence regarding Ms. Porter’s lawsuit and settlement shall not be presented at
trial. Ms. Porter may testify as a fact witness regarding her own tenure with and termination
from the Clerk’s Office, omitting any mention of her later litigation.
C. Records from Oklahoma Employment Security Commission (“OESC”)
Citing title 40, section 2-610.1 of the Oklahoma Statutes,1 Defendants argue that
admission of any evidence of decisions of the OESC violates Oklahoma law and that such

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The statute provides:
Any findings of fact or law, judgment, conclusion or final order made by the
Oklahoma Employment Security Commission, its referees, the Appeal Tribunal or
Board of Review in an unemployment insurance proceeding shall not be conclusive
or binding in any separate or subsequent action or proceeding, and shall not be used
as evidence in any separate or subsequent action or proceeding, between an
individual and his or her present or prior employer in any other forum regardless of
whether or not the prior action was between the same or related parties or involved
the same facts.

Okla. Stat. tit. 40, § 2-610.1.
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evidence is irrelevant and overly prejudicial. Plaintiffs agree that their Trial Exhibit 65
(“Order of Decision of [OESC] Appeal Tribunal 3/30/2017”) is inadmissible pursuant to
that statute, but they argue that evidence and filings that were used in OESC proceedings
are admissible, relevant, and not unfairly prejudicial.
The Court agrees that section 2-610.1 does not, on its face, prohibit admission of
unemployment applications or other non-decision filings from OESC proceedings in this
matter. Neither the Motion nor the Response, however, describes any of these other OESC
filings with enough specificity for the Court to gauge relevance and prejudice concerns at
this pretrial stage of proceedings. Defendants’ request is therefore GRANTED as to
Plaintiff’s Trial Exhibit 65. The Court DENIES Defendants’ request as to other OESCrelated items, though Defendants may raise appropriate evidentiary objections if Plaintiffs
seek to admit such an item of evidence at trial.
IT IS SO ORDERED this 13th day of May, 2019.

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