Jackson v. O'Reilly Automotive Stores, Inc.
Filing
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MEMORANDUM AND ORDER: For the reasons discussed above, we grant Plaintiff's motion concerning evidence of collateral source benefits, (Dkt. No. 48 ), but deny his other motions without prejudice, (Dkt. Nos. 46 - 47 ). We grant Defendant 039;s motion concerning evidence of the EEOC Letter of Determination, (Dkt. No. 58). We also grant Defendant's motion to exclude evidence of its May 7, 2012 letter to the EEOC under Rule 408, (Dkt. No. 57 ) but decline to rule on its related 29 C.F.R. § 1601.26(a) argument at this time. Signed by Judge Marvin E. Aspen on 9/17/2015. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ROBERT S. JACKSON,
Plaintiff,
v.
O’REILLY AUTOMOTIVE
STORES, INC.,
Defendant.
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3:12 C 01215
Judge Marvin E. Aspen
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Plaintiff Robert S. Jackson alleges that his former employer, Defendant O’Reilly
Automotive Stores, Inc., discriminated against him by terminating his employment on
January 6, 2011, in violation of the Americans with Disabilities Act (“ADA”). Plaintiff also
alleges that Defendant failed to engage in the interactive process required by the ADA and failed
to reasonably accommodate his disability. A jury trial is scheduled to begin on October 6, 2015.
Presently before us are five motions in limine filed by the parties in preparation for trial.
As set forth below, we grant Plaintiff’s motion concerning evidence of collateral source
benefits and Defendant’s motion concerning evidence of the Letter of Determination issued by
the Equal Employment Opportunity Commission (“EEOC”). (Dkt. Nos. 48, 58.) We deny
Plaintiff’s additional motions without prejudice. (Dkt. Nos. 46–47.) We also grant Defendant’s
motion to exclude evidence of its May 7, 2012 letter to the EEOC under Rule 408.
(Dkt. No. 57.) We decline to rule on Defendant’s related 29 C.F.R. § 1601.26(a) argument at
this juncture.
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To the extent that we herein deny the parties’ motions for lack of specificity, the parties
should submit additional briefs, on or by Monday, September 21, 2015, identifying the particular
evidence in question and asserting the grounds for exclusion.
STANDARD OF REVIEW
“A district court’s inherent authority to manage the course of its trials encompasses the
right to rule on motions in limine.” Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp. 2d
173, 176–77 (S.D.N.Y. 2008) (citing Luce v. United States, 469 U.S. 38, 41 n.4, 105 S. Ct. 460,
463 (1984)). “The Federal Rules of Evidence, the Federal Rules of Criminal and Civil Procedure
and interpretive rulings of the Supreme Court and this court all encourage, and in some cases
require, parties and the court to utilize extensive pretrial procedures—including motions in
limine—in order to narrow the issues remaining for trial and to minimize disruptions at trial.”
United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999); see United States v. Huff,
10 CR 73, 2011 WL 4916195, at *1 (E.D. Tenn. Oct. 27, 2011). Because a ruling on a motion in
limine is “subject to change as the case unfolds,” this ruling constitutes a preliminary
determination in preparation for trial. See Luce, 469 U.S. at 41, 105 S. Ct. at 163; United States
v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). A district court’s rulings on in limine motions will
be reversed only where the court abuses its discretion, that is, “when it relies on clearly
erroneous findings of fact, when it improperly applies the law, or when it employs an erroneous
legal standard.” United States v. Gunter, 551 F.3d 472, 483 (6th Cir. 2009); United States v.
Cline, 362 F.3d 343, 348–49 (6th Cir. 2004).
ANALYSIS
We first shall briefly address two unopposed motions and then will consider the disputed
motions in greater detail.
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Plaintiff filed three motions in limine, seeking to preclude Defendant from: (1) asking
leading questions of defense witnesses called by Plaintiff; (2) offering evidence of any irrelevant
work misconduct; and (3) introducing evidence of collateral source benefits. (See Dkt. Nos. 46–
48.) Defendant has not filed any opposition to motion concerning collateral source benefits,
(Dkt. No. 48), and that motion is hereby granted. Defendant shall not offer any evidence
concerning Plaintiff’s receipt of payments from collateral sources, including, for example,
unemployment compensation or insurance benefits. See, e.g., Jackson v. City of Cookeville,
31 F.3d 1354, 1359 (6th Cir. 1994) (“The collateral source rule is a substantive rule of law that
bars a tortfeasor from reducing damages owed to a plaintiff by the amount of recovery the
plaintiff receives from sources that are collateral to the tortfeasor.”).
Defendant filed two motions in limine, seeking to exclude: (1) the EEOC’s May 15, 2012
Letter of Determination and any pertinent materials or testimony; and (2) Defendant’s statements
in a May 7, 2012 letter it sent the EEOC during the conciliation process. (See Dkt. Nos. 57–58.)
Plaintiff represents that he does not intend to offer the Letter of Determination into evidence and
does not contest Defendant’s related motion. (Pl.’s Resp. (Dkt. No. 74) at 1.) Accordingly, we
grant Defendant’s motion concerning the Letter of Determination, (Dkt. No. 58). Plaintiff shall
not introduce the Letter of Determination, the additional letter enclosed with it, or any related
testimony.
A.
Plaintiff’s Motion Concerning the Use of Leading Questions for Adverse Witnesses
In his first motion in limine, Plaintiff states that he intends to call “certain of Defendant’s
agents and representatives as witnesses.” (MIL re: Leading (Dkt. No. 46) at 2.) Although he has
not identified any particular witness, he seeks permission to ask leading questions of those agents
and employees during direct examination, as they are adverse to his position. (Id. at 1–2.)
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Plaintiff further asks that we preclude Defendant from likewise using leading questions on crossexamination of such witnesses. (Id.) Defendant opposes the motion. (Dkt. No. 69.)
As for the first part of Plaintiff’s request, it is uncontroversial that a party may use
leading questions during direct examination of a hostile or adverse witness. Fed. R.
Evid. 611(c)(2) (“Ordinarily, the court should allow leading questions . . . (2) when a party calls
a hostile witness, an adverse party, or a witness identified with an adverse party.”). This issue,
however, is not appropriately addressed in a motion in limine. When Plaintiff actually calls
particular witnesses at trial, he may explain why they are adverse and ask our permission at that
time to use leading questions. Absent any unusual circumstances, we will permit him to do so.
See, e.g., Robinson v. R.J. Reynolds Tobacco Co., 86 F. App’x 73, 76 (6th Cir. 2004) (noting that
Rule 611(c)(2) does not create an absolute right but requires consideration under the specific
facts).
As for the second part of Plaintiff’s request, the Advisory Committee note to Federal
Rule of Evidence 611(c) addresses this specific situation. Fed. R. Evid. 611(c) advisory
committee’s note. It explains that the rule provides “a basis for denying the use of leading
questions when the cross-examination is cross-examination in form only and not in fact, as for
example the ‘cross-examination’ of a party by his own counsel after being called by the
opponent (savoring more of a redirect) . . .” Id.; see also Morvant v. Constr. Aggregates Corp.,
570 F.2d 626, 635 (6th Cir. 1978) (“If the witness is friendly to the examiner, there is the same
danger of suggestiveness as on direct; and consequently the court may, in its discretion, forbid
the use of leading questions.”). The language of Rule 611 is not mandatory—whether to allow
leading questions under these circumstances is entirely within our discretion. Woods v.
Lecureux, 110 F.3d 1215, 1221 (6th Cir. 1997) (“[A] district court’s decision to allow leading
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questions when a party is cross-examining his own witness is a matter within the court’s
traditional discretion to control the mode of interrogation.”) (internal quotations omitted);
Morvant, 570 F.2d at 635.
Because we will be in a better position to determine how to exercise our discretion during
the course of trial, we deny Plaintiff’s motion at this time. Our presumption at trial, however,
will be to allow leading questions during Defendant’s cross-examination of these witnesses only
if the questioning amounts to cross-examination in fact (and not simply in form) or as necessary
to effectuate the purposes of Rule 611. Fed. R. Evid. 611(a) (suggesting that the court “exercise
reasonable control over the mode and order of examining witness” so as to encourage efficient
ascertainment of the truth, “avoid wasting time,” and “protect witnesses from harassment”); see
also Robinson, 86 F. App’x at 76 (affirming district court’s denial of request to ask leading
questions during cross-examination of defendant’s former employee, because the witness was
not an adverse party under the specific facts); Woods, 110 F.3d at 1121. Defendant should
expect to conduct the substantial part of such witnesses’ testimony without leading questions.
For these reasons, Plaintiff’s motion concerning the leading of defense-aligned witnesses
called by Plaintiff is denied without prejudice.
B.
Plaintiff’s Motion Concerning Evidence of Alleged Work Misconduct
In his second motion, Plaintiff asks that we preclude Defendant “from introducing or
referring to at trial any evidence of any alleged misconduct by Plaintiff that was not a factor in
Defendant’s decision to terminate Plaintiff’s employment.” (MIL re: Misconduct (Dkt. No. 47)
at 1.) Plaintiff contends that such evidence is irrelevant and would be unfairly prejudicial. Thus,
according to Plaintiff, such evidence is inadmissible under Rules 402 and 403. (Id.) In its
response, Defendant argues that Plaintiff’s motion lacks particularity and, moreover, that
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evidence of Plaintiff’s employment and disciplinary history beginning in October 2010 is highly
relevant to the issues pending for trial. (Dkt. No. 70.)
Rule 402 provides that only relevant evidence may be admitted, while Rule 401 explains
that relevant evidence is evidence that “has any tendency to make a fact more or less probable”
where that “fact is of consequence in determining the action.” Fed. R. Evid. 401–02. Rule 403
nonetheless authorizes us to “exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
Here, we are unable to resolve Plaintiff’s motion because he has not identified any
particular piece of evidence that should be excluded. As a result, we cannot assess the likely
relevancy or prejudice of the challenged evidence. Plaintiff’s personnel records, for example,
may include extraneous, irrelevant, or unduly prejudicial information, but we are not in a
position to rule on the admissibility of any such evidence, or related testimony, without
reviewing the materials in context. Rather than issue a blanket ruling on evidence not yet
identified and arguments not yet fully developed, we deny Plaintiff’s motion without prejudice.
Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir.1975) (“Orders in limine
which exclude broad categories of evidence should rarely be employed.”); U.S. v. Afyare, 10 CR
0260, 2013 WL 1386610, at *2 (M.D. Tenn. Apr. 4, 2013) (noting that motions in limine should
be granted only where the disputed evidence is clearly “inadmissible on all potential grounds”);
see also Hensley v. Methodist Healthcare Hosps., 13 C 2436, 2015 WL 5076982, at*1 (W.D.
Tenn. Aug. 27, 2015); Guthrie v. Ball, 11 C 333, 2014 WL 5089849, at *2 (E.D. Tenn. Oct. 9,
2014). We will address any relevance or prejudice objections during the course of trial.
Relatedly, the parties are advised that we will not allow at trial any testimony that fails to
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comport fully with the Federal Rules of Evidence, including those rules governing hearsay and
personal knowledge.
C.
Defendant’s Motion to Exclude Evidence of Its May 7, 2012 Letter to the EEOC
In its remaining motion, Defendant asks us to prohibit the introduction of a May 7, 2012
letter it sent the EEOC and any related testimony. The letter, sent by a human resources
representative named Alexis Brown, responds to the EEOC’s “request for a rebuttal or additional
information regarding” Plaintiff’s charge of discrimination and denies any wrongdoing.
(MIL re: 2012 Ltr. (Dkt. No. 57), Ex. A (5/7/12 Ltr. from Brown to EEOC investigator).) In the
one-page letter, 1 Brown states:
In reviewing the situation with pertinent witnesses, it appears during the
discussion regarding whether the Company could provide a reasonable
accommodation for Charging Party’s restrictions there may have been a
miscommunication, misunderstanding, or mistake on the part of one or more
persons regarding the nature and extent of those restrictions. Had this confusion
not arisen, the Company may have reached a different conclusion regarding
whether the restrictions could be reasonably accommodated. These facts do not
give rise to a conclusion that the Company discriminated or retaliated against
Charging Party.
Nevertheless, the Company would like to make an effort to resolve this matter.
Should Charging Party desire to return to work with the Company and if he is
willing to have his health care provider complete an updated Fitness for Duty
form . . . the Company is willing to consider bringing him back to work as a
delivery specialist.
(Id.) Defendant contends that these statements—and, indeed, all documents and statements made
during the conciliation stage—are inadmissible under 29 C.F.R. § 1601.26(a) and Rule 408.
(Mem. re: 2012 Ltr. at 7–10.) Plaintiff counters that the statements in the letter are highly
probative and are not covered by either Rule 408 or 29 C.F.R. § 1601.26(a). (Pl.’s Resp. at 2–4.)
We address each of Defendant’s theories below.
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The language cited here includes both substantive paragraphs, (paragraphs 2 and 3), which is
nearly the entire letter.
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1.
Admissibility under 29 C.F.R. § 1601.26(a)
We begin with Defendant’s argument based on 29 C.F.R. § 1601.26(a), which we reject
for two reasons. First, it is unclear whether the May 7, 2012 letter was sent during the
conciliation phase, such that the confidentiality provision of 29 C.F.R. § 1601.26(a) would apply.
This provision, which is very similar to the provision included at 42 U.S.C. § 2000e-5(b), applies
to the EEOC’s conciliation efforts. According to the statute and regulations, those efforts do not
formally begin until “the [EEOC] determines that there is reasonable cause to believe that an
unlawful employment practice has occurred or is occurring.” 29 C.F.R. § 1601.24(a) (explaining
that, upon a finding of reasonable cause, the EEOC “shall endeavor to eliminate such practice by
informal methods of conference, conciliation and persuasion”); see also 42 U.S.C. § 2000e-5(b)
(“If the [EEOC] determines after such investigation that there is reasonable cause . . . , the
[EEOC] shall endeavor to eliminate any such alleged unlawful employment practices by
informal methods of conference, conciliation, and persuasion.”). Here, the May 7, 2012 letter
predates the EEOC’s May 15, 2012 Letter of Determination, which presumably triggered the
conciliation phase consistent with 29 C.F.R. § 1601.24(a). Neither party addresses this timing
issue or its potential significance. At this point, we cannot determine whether the May 7, 2012
letter should be deemed as falling within the EEOC’s conciliation process, rather than the
investigatory process. By extension, we cannot conclude that the confidentiality provision of
29 C.F.R. § 1601.26(a) might protect Defendant’s May 7, 2012 letter or portions thereof.
Second, we decline to grant Defendant’s request for a categorical ruling excluding “all
other documents and statements from the conciliation stage” pursuant to 29 C.F.R. § 1601.26(a).
(Mem. re: 2012 Ltr. at 7; see also id. at 8, 10.) As discussed earlier, we are unable to resolve a
motion in limine where the movant has not identified any particular piece of evidence that should
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be excluded. Sperberg, 519 F.2d at 712; Afyare, 2013 WL 1386610, at *2. The “better practice
is to deal with questions of admissibility of evidence as they arise” in the context of trial.
Sperberg, 519 F.2d at 712. This context may be particularly critical in light of the open question
concerning timing and the applicability of the 29 C.F.R. § 1601.26(a) confidentiality provision.
2.
Admissibility under Rule 408
In addition to the 29 C.F.R. § 1601.26(a) argument, Defendant also contends that
Rule 408 precludes the parties from offering the May 7, 2012 letter or related testimony.
(Mem. re: 2012 Ltr. at 8–10.) For certain purposes, Rule 408 prohibits any party from admitting
evidence of offers to settle, as well as conduct or statements made in settlement discussions.
Fed. R. Evid. 408(a); see Eid v. Saint–Gobain Abrasives, Inc., 377 F. App’x 438, 444
(6th Cir. 2010). Such evidence specifically cannot be admitted “either to prove or disprove the
validity or amount of a disputed claim” or “to impeach by a prior inconsistent statement or a
contradiction.” Fed. R. Evid. 408(a). “Rule 408 serves three purposes:” encouraging frank
communications in furtherance of settlement talks, excluding irrelevant evidence, and
eliminating unreliable evidence. Eid, 377 F. App’x at 444; see also Goodyear Tire & Rubber
Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 980–82 (6th Cir. 2003); Black v. Open Solutions,
Inc., 05 C 469, 2006 WL 861385, at *2 (M.D. Tenn. Mar. 28, 2006). As the Sixth Circuit has
explained, evidence of settlement negotiations is not considered relevant or reliable because
“disputes are often settled for reasons having nothing to do with the merits” and because
“negotiations are typically punctuated with numerous instances of puffing and posturing.” Eid,
377 F. App’x at 444 (internal quotation omitted); Goodyear Tire & Rubber Co., 332 F.3d at 981.
Defendant argues that the statements contained in the May 7, 2012 letter, including an
offer to settle, are inadmissible under Rule 408. Plaintiff, on the other hand, contends that he
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should be permitted to introduce the document because it contradicts Defendant’s position in the
litigation. (Pl.’s Resp. at 1.) Plaintiff argues that the letter demonstrates both that Defendant
failed to properly engage in the interactive process and that it could have reasonably
accommodated him. (Id. at 2–4.) Plaintiff admittedly seeks to use the letter to contradict and
impeach Defendant. As that usage is prohibited by Rule 408, the only question for us is whether
the letter falls under the rule.
Although Plaintiff asserts that the letter is “not related to the issue of settlement,” we
disagree. 2 (Id. at 4.) In the third paragraph of the letter, Defendant explicitly states that it
“would like to make an effort to resolve this matter” and then offers Plaintiff the chance to return
to his former position of delivery specialist. (MIL re: 2012 Ltr., Ex. A.) Defendant asks the
EEOC to convey the offer to Plaintiff and inform it of his response. (Id.) This third paragraph
plainly includes an offer of settlement and is not admissible. Rule 408 prohibits Plaintiff from
introducing these statements at trial to contradict Defendant’s current litigation position, i.e., that
it could not accommodate him. Fed. R. Evid. 408(a).
While the preceding paragraph in the letter presents a closer question, we conclude that it,
too, is protected by Rule 408. In the second paragraph of the letter, Defendant recounts that,
based on its internal investigation, “it appears that . . . there may have been a miscommunication,
misunderstanding, or mistake” made by one or more of its employees concerning Plaintiff’s
restrictions and potential accommodations. (MIL re: 2012 Ltr., Ex. A.) Defendant further
acknowledges that, in the absence of that misunderstanding, it “may have reached a different
conclusion” about accommodating Plaintiff. (Id.) Defendant provides no details about the
purported miscommunication, the employees in question, the conclusion it might have reached,
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Plaintiff’s assertion that the letter is admissible as the admission of a party-opponent similarly
lacks merit. (Pl.’s Resp. at 4.) The question here is not whether the statements at issue are
hearsay but whether they are shielded by Rule 408.
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any accommodation that might have been possible, or the likelihood of any such alternate
outcome. Taken in context, we construe these statements as the preface for Defendant’s offer to
return Plaintiff to his job. As such, we find that they are statements “made during compromise
negotiations,” rather than reliable concessions or relevant statements of fact. Fed. R.
Evid. 408(a)(2).
In reaching this conclusion, we rely on the Sixth Circuit’s opinion in Eid. There,
following plaintiff’s termination, his attorney contacted defendant and requested to discuss
settlement before resorting to litigation. 377 F. App’x at 439–40. In response, defendant sent a
letter discussing its internal investigation, which included witness interviews, and expressing its
conclusion that plaintiff’s termination was appropriate. Id. Defendant further informed counsel
in the letter that it would not consider engaging in settlement negotiations. Id. Citing Rule 408,
the district court denied plaintiff’s request to introduce the letter from defendant. Id. at 443–45.
On appeal, the Sixth Circuit affirmed that ruling, reasoning that “the letter’s discussion of
[defendant’s] internal investigation, provided to explain [its] settlement position, is exactly the
type of admission that falls within the scope of Rule 408.” Id. at 445. We find that this rationale
applies equally to Defendant’s May 7, 2012 letter. Any factual admissions within the letter are
statements made in the effort to compromise, as evidenced by Defendant’s offer to consider
rehiring Plaintiff. In short, Defendant’s motion is granted because Rule 408 precludes
introduction of the May 7, 2012 letter or related testimony for the purposes intended by Plaintiff.
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CONCLUSION
For the reasons discussed above, we grant Plaintiff’s motion concerning evidence of
collateral source benefits, (Dkt. No. 48), but deny his other motions without prejudice,
(Dkt. Nos. 46–47). We grant Defendant’s motion concerning evidence of the EEOC Letter of
Determination, (Dkt. No. 58). We also grant Defendant’s motion to exclude evidence of its
May 7, 2012 letter to the EEOC under Rule 408, (Dkt. No. 57) but decline to rule on its related
29 C.F.R. § 1601.26(a) argument at this time.
As set forth above, we have denied certain requests because the movant has not provided
sufficient specific information for us to issue a meaningful ruling. The parties should submit
additional briefs, on or by Monday, September 21, 2015, identifying the particular evidence in
question and articulating the grounds for exclusion. With that information, we may be able to
address the parties’ requests prior to trial. It is so ordered.
____________________________________
Marvin E. Aspen
United States District Judge
Dated: September 17, 2015
Chicago, Illinois
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