Free v. Federal Express Corporation et al

Filing 108

ORDER granting in part and denying in part 85 Motion in Limine; granting 86 Motion in Limine; granting 87 Motion in Limine; denying 88 Motion in Limine; granting 89 Motion in Limine; granting in part and denying in part 90 Motion in Limine; denying 91 Motion in Limine. Signed by Judge Samuel H. Mays, Jr. on 1/25/2019.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

CHRISTI C. FREE,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
FEDERAL EXPRESS CORPORATION,
Defendant.

No. 2:15-cv-02404-SHM-tmp

ORDER

Before

the

Court

are

the

parties’

motions

in

limine.

Plaintiff Christi C. Free filed her first, second, and third
motions in limine on January 14, 2019.

(ECF Nos. 87, 88, 89.)

Free asks the Court to: (1) exclude testimony and other evidence
about findings from internal investigations prompted by Free’s
complaints and any Executive Committee, Appeals Board, or legal
department

analysis

of

Free’s

claims;

(2)

preclude

Defendant

Federal Express Corporation (FedEx) from putting on Kathy Howell
and Marie Harper’s testimony; and (3) exclude testimony about
Free’s prior lawsuit against FedEx.
January 18, 2019.

(Id.)

FedEx responded on

(ECF Nos. 95, 96, 97.)

FedEx filed its first, second, third, and fourth motions in
limine on January 14, 2019.

(ECF Nos. 85, 86, 90, 91.)

FedEx

asks the Court to: (1) exclude “other acts” evidence; (2) exclude

evidence

about

Free’s

retaliation

claim

and

about

her

non-

selection for the July 2013 Global Operations Control (GOC) Manager
position; (3) exclude evidence from non-party witnesses about
FedEx’s alleged pattern or practice of excluding females from
management

in

GOC;

and

(4)

exclude

statements made by Paul Tronsor.
18, 2019.

(Id.)

evidence

about

certain

Free responded on January

(ECF No. 93.)

For the following reasons, the parties’ motions are GRANTED
IN PART and DENIED IN PART.
I.

Free’s Motions in Limine
A.

First: Internal Investigation Findings and Executive
Committee or Legal Department Analysis

Free filed internal EEO (IEEO) and Guaranteed Fair Treatment
Procedure (GFTP) grievances after she did not get the GOC manager
position. (ECF No. 87 at 1501.) 1 After the IEEO and GFTP processes
concluded, FedEx’s Executive Committee, Appeals Board, and legal
department assessed Free’s claims.

(Id.)

Free argues that the

Court should exclude any references to the the IEEO and GFTP
findings -- as well as the Executive Committee, Appeals Board, and
legal

department’s

assessments

--

because

that

evidence

is

irrelevant and, even if it were relevant, its potential for unfair
prejudice

and

confusion

substantially

outweighs

its

probative

1 Unless otherwise noted, all pin cites for record citations are to the “PageID”
page number.

2

value.

(ECF No. 87 at 1502.)

Other than legal department

assessments of Free’s claims, which FedEx says it does not intend
to introduce, FedEx contends that the evidence is relevant and not
unfairly prejudicial. 2 (ECF No. 95 at 1695.)
The

IEEO

and

GFTP

determinations,

along

with

Executive

Committee and Appeals Board assessments, should be excluded under
Rule 403.

Their probative value is substantially outweighed by

the likelihood that their admission would confuse or mislead the
jury. Introducing that evidence would usurp the jury’s factfinding
function by providing independent, uniform conclusions that Free
did not suffer discrimination when FedEx denied her the GOC Manager
position.

Doing so could “confuse[] the jury into thinking that

the issue was already decided.”

Lewis v. City of Chicago, 590

F.3d 427, 442 (7th Cir. 2009) (affirming district court’s exclusion
of

an

EEOC

investigation

decision
in a

and

Title

the

City

VII

case).

of

Chicago’s

internal

Although

internal

investigations may not carry the same imprimatur as governmental
investigations, their conclusions risk biasing a jury’s perception
of the evidence.

Permitting the IEEO and GFTP findings and the

2

FedEx contends that, apart from the outcomes of the IEEO and GFTP
investigations, it should be permitted to present evidence that Free initiated
the IEEO and GFTP processes to show that FedEx has “safeguards to review hiring
decisions,” which, FedEx argues, “directly address[es] the intent of FedEx.”
(ECF No. 95 at 1697.) Free’s motion does not stand in FedEx’s way. It only
seeks to exclude what the IEEO and GFTP findings were and how the Executive
Committee, Appeals Board, and legal department assessed those findings.
It
does not seek to exclude evidence that those investigations existed.

3

Executive Committee and Appeals Board assessments to come in at
trial

could

lead

jurors

to

second

guess

their

independent

assessment of the proof.
FedEx contends that Free has opened the door to this evidence
because she identified documents associated with the IEEO and GFTP
as trial exhibits.

(ECF No. 95 at 1696.)

Free, however, said in

the proposed joint pretrial order that she would exclude those
exhibits if the Court granted her First Motion in Limine. (See
Pretrial Order at 7, 8, 9, 11, 12, 13, 14.)
With that understanding, Free’s First Motion in Limine is
GRANTED.

Should Free seek to introduce documents associated with

IEEO and GFTP at trial, FedEx can raise the issue then.
B.

Second: FedEx’s Undisclosed Witnesses

Free asks the Court to preclude Marie Harper and Kathy Howell
from testifying at trial because they were not identified by FedEx
in its Rule 26 initial disclosures or in discovery.

(ECF No. 88

at 1521.)
Rule 26 provides that a party must give the name “of each
individual likely to have discoverable information – along with
the subjects of that information – that the disclosing party may
use to support its claims or defenses, unless the use would be
solely for impeachment.”

Fed. R. Civ. P. 26(a)(1)(A)(i).

“[I]f

the party learns that in some material respect the disclosure or
4

response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the
other parties during the discovery process or in writing,” the
disclosing party “must supplement or correct its disclosure or
response.” Id. at 26(e)(1)(A).
Rule 37 provides the penalty for failing to comply with Rule
26:“If a party fails to . . . identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that . . .
witness to supply evidence . . . at trial, unless the failure was
substantially justified or harmless.”

Id. at 37(c)(1).

Rule 37 does not preclude Harper or Howell’s testimony.
to

Harper,

a

party

violates

Rule

26(e)(1)(A)

by

failing

As
to

supplementarily disclose a witness only if that witness had not
otherwise

been

made

discovery process.”

known

to

the

opposing

party

“during

the

Free became aware of Harper during discovery.

As FedEx points out, Free identified multiple timely produced
documents as trial exhibits where Harper’s name comes up, including
two letters from Harper to Free and two letters on which Harper
was copied.

(See ECF No. 97-1.)

As to Howell, FedEx complied with Rule 26(e) by supplementing
its initial disclosures to identify Howell as a potential witness
before the close of discovery. Free’s citation to Johnson v. Peake,
No. 08-2472 (W.D. Tenn. June 7, 2010), is inapposite.
5

In that

case, “Defendant’s disclosure came more than five months after the
close of discovery.”

(ECF No. 88-4 at 1563.)

Because Howell intends to testify about Free’s current pay
grade and what her pay grade would have been as a GOC Manager,
Free contends that Howell’s testimony should be precluded as
irrelevant because Free is no longer claiming any loss related to
pay grade or salary.
will be relevant.

(ECF No. 88 at 1527.)

Howell’s testimony

“[A]n increased salary” is among the factors

the jury will consider when it determines whether the GOC Manager
position would have been a promotion for Free.

Mitchell v.

Vanderbilt Univ., 389 F.3d 177, 183 (6th Cir. 2004).
Free’s Second Motion in Limine is DENIED.
C.

Third: Free’s Prior Lawsuit Against FedEx

Free asks the Court to preclude FedEx from offering any
testimony about Free’s prior lawsuit against FedEx.

(ECF No. 89

at 1565.)

In its response, FedEx says that it “does not intend to

introduce

any

lawsuit.”

(ECF No. 96 at 700.)

testimony

regarding

Free’s

prior

discrimination

Free’s Third Motion in Limine is therefore GRANTED.

6

II.

FedEx’s Motions in Limine
A.

First: “Other Acts” 3

FedEx asks the Court to exclude “other acts” evidence, which,
“[i]n the employment discrimination context, . . . consists of
testimony or other evidence of discrimination by the employer
against

non-party

employees.”

Griffin,

689

F.3d

at

598.

Specifically, FedEx seeks to exclude testimony and other evidence
about: (1) Cheri Ann Huston’s non-selection for a GOC manager
position;

(2)

Amy

Lindsey’s

non-selection

for

a

GOC

manager

position; (3) Angie Pate’s discussions about applying for a manager
position; (4) Ronda Doyle’s demotion; and (5) Nancy Janneck’s
application for an AOC position.

(ECF No. 85-1 at 1466.)

FedEx

also seeks to exclude, more broadly, testimony and other evidence
regarding employees’ opinions about FedEx’s general treatment of
female employees and/or employees who complain of discrimination.
(Id. at 1465.)
In her response, Free says she does not intend to offer
testimony from Hutson, Lindsey, or Pate, or about any employee’s
claims of retaliation or discrimination.

(ECF No. 93 at 1673.)

She says she will introduce testimony from Doyle and Janneck to

3

The parties refer to “me too” and “other acts” evidence interchangeably. Case
law uses both terms to mean the same thing. See Griffin v. Finkbeiner, 689
F.3d 584, 597 (6th Cir. 2012) (“This challenge requires us to enter the unsettled
evidentiary terrain of “other acts” or “me too” evidence.”). The Court will
use “other acts.”

7

show

“a

culture

of

workplace

discrimination,

Mr.

Tronsor’s

influence and control over the GOC hiring process, and [Doyle and
Janneck’s] personal experiences in the Memphis GOC department.”
(Id.)

More particularly, Free says that she does not intend to

introduce evidence that Doyle’s demotion was a result of sex
discrimination or that Janneck experienced sex discrimination when
she sought an AOC position.

(Id. at 1673, 1675.)

Free, in effect, largely concedes that she will not offer the
“other acts” evidence FedEx’s First Motion in Limine seeks to
exclude.

There are, however, two pieces of evidence Free plans to

introduce that FedEx’s First Motion in Limine may reach: (1)
Doyle’s testimony about “a lack of females in the GOC department,
failure

to

follow

policies[,]

and

a

discriminatory

culture

resulting from Tronsor’s influence and control,” which includes
testimony
Janneck’s

about

Tronsor’s

deposition

discriminatory

testimony

about

harbors a discriminatory environment.

her

remarks;
impression

and

(2)

that

GOC

(ECF No. 93 at 1673-75).

The Court cannot determine at this time whether Doyle’s
testimony will constitute impermissible “other acts” evidence.
“The Supreme Court has instructed lower courts not to apply a per
se rule excluding ‘other acts’ testimony from non-parties alleging
discrimination by supervisors who did not play a role in the
challenged

decision.”

Griffin,
8

689

F.3d

at

598

(citing

Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 380-81, 387
(2008)).

“Whether such evidence is relevant is a case-by-case

determination that ‘depends on many factors, including how closely
related the evidence is to the plaintiff’s circumstances and theory
of the case.’”

Id. (quoting Sprint, 552 U.S. at 388).

The Court

does not know exactly what Doyle will say and therefore cannot
rule on her testimony’s admissibility.
represents

Doyle’s

testimony

will

The three subjects Free

address

do

not

appear

to

implicate “other acts” evidence as they are not necessarily about
sex discrimination Doyle suffered at FedEx.
believes

Doyle’s

testimony

at

trial

To the extent FedEx

amounts

“other acts” evidence, FedEx may object then.

to

impermissible

A blanket exclusion

of “other acts” evidence, however, is not appropriate.

See id. at

599 (“[T]he court should consider the admissibility of evidence
regarding each employee individually rather than issue a blanket
ruling as to all proposed ‘other acts’ evidence.”).
As

for

testimony

Janneck,

recounting

Free
her

discriminatory atmosphere.

plans

to

impression

introduce
that

her

Memphis

deposition
GOC

had

a

In her testimony, Janneck said of her

time at Memphis GOC:
There’s just an air that, you know, why
haven’t you already quit?
Isn’t somebody
taking care of you? Just that viewpoint that
women shouldn’t necessarily be in the area.
That’s just like a – like I said, it’s an air
that you feel when you walk into a room. . . .
9

I think that’s
felt being in
there based on
women wouldn’t
93 at 1675.)

a cultural difference that I
Memphis whenever I was down
– based on a stereotype that
typically be there. (ECF No.

Free argues that this testimony is “directly relevant to the
culture of Memphis GOC and how women were perceived in Memphis.”
(ECF No.

93 at 1675.)

FedEx contends that “opinions of how . . .

FedEx generally treats female employees” should be excluded under
Rules 402, 403, 602 and 701.
Janneck’s

deposition

(ECF No. 85-1 at 1473.)

testimony

is

vague,

conclusory,

and

apparently not based on observed discriminatory acts, such as
innappropriate statements.
weak

circumstantial

It is not, however, irrelevant.

evidence

discriminatory

atmosphere,

evidence

individualized

of

suggesting

which

“may

the

serve

existence

It is
of

a

as

circumstantial

discrimination.”

Ercegovich

v. Goodyear Tire & Rubber Co., 154 F.3d 344, 356 (6th Cir. 1998).
Janneck’s impression makes it slightly more likely than not that
GOC did have a discriminatory atmosphere, which makes it slightly
more likely than not that Free was discriminated against when she
was denied the GOC manager position.

The Court does not find that

this testimony’s probative value is substantially outweighed by
the risk of unfair prejudice.

Although the sources of Janneck’s

impressions are not specified, her testimony is based on firsthand
perceptions she had while physically present at Memphis GOC and is
10

therefore based on personal knowledge. And Janneck’s testimony is
not improper opinion testimony because: (1) it is based on her own
experience at GOC; (2) it can help the jury determine whether there
is sufficient circumstantial evidence to prove that Free suffered
sex

discrimination;

and

(3)

it

is

not

based

on

scientific,

technical, or other specialized knowledge.
FedEx’s First Motion in Limine is GRANTED insofar as it seeks
to exclude evidence about: (1) Cheri Ann Huston’s non-selection
for a GOC manager position; (2) Amy Lindsey’s non-selection for a
GOC manager position; and (3) Angie Pate’s discussions about
applying for a manager position.

It is also GRANTED insofar as it

seeks to preclude testimony by Doyle that her demotion was a result
of sex discrimination and testimony by Janneck that she experienced
sex discrimination when she applied for an AOC position.

It is

DENIED insofar as it seeks a blanket exclusion of “other acts”
evidence.

It is also DENIED insofar as it seeks to exclude

Janneck’s deposition testimony about an air of discrimination
against women at GOC.
B.

FedEx

Second: Free’s Retaliation Claim and Non-Selection for
the July 2013 GOC Manager Position
asks

the

Court

to

exclude

any

evidence

of

Free’s

retaliation claim and any evidence about her application and nonselection for the July 2013 GOC Manager position.
at 1497.)

(ECF No. 86-1

In her response, Free says she does not intend to offer
11

any such evidence.

(ECF No. 93 at 1676-77.)

FedEx’s Second Motion

in Limine is therefore GRANTED.
C.

Third: History of Excluding Women from Management in GOC

FedEx asks the Court to exclude evidence of an alleged history
of excluding women from management in GOC.

(ECF No.90-1 at 1578.)

In particular, FedEx seeks to exclude evidence of hiring outcomes
for nine GOC Manager job postings, only one of which was filled by
a woman. 4

(Id. at 1576-78)

FedEx also asks the Court to exclude

evidence from current or former FedEx employees about hiring
decision practices as they relate to women.

(Id.)

FedEx contends

this evidence is irrelevant or unfairly prejudicial.
Free contends that “[t]he miniscule number of females in
management positions, [FedEx’s] knowledge of this issue, [FedEx’s]
policies designed to rectify these issues, and the perpetuation of
underutilization of women in the department are circumstantial
evidence that [FedEx] intended to discriminate against Ms. Free.”
(ECF No. 93 at 1679.)

Free “intends to introduce evidence that

[FedEx’s] failure to follow its internal policies and manipulation
of the hiring process in favor of Rudy Cruz, along with the history
of

past

hiring

decisions,

have

the

cumulative

effect

of

the

perpetuation of an all-male environment, which existed at the time
of the March 2013 GOC Manager hiring decision.”

4

(Id.)

FedEx references ten job postings, but one is the one at issue in this case.

12

First, past hiring decisions related to other GOC Manager
position job postings should be excluded.

Although “pattern-or-

practice evidence may be relevant to proving an otherwise-viable
individual claim for disparate treatment,” Bacon v. Honda of
America Mfg., Inc., 370 F.3d 565, 575 (6th Cir. 2004), inclusion
of such evidence is not always appropriate. FedEx contends: “[A]ll
hiring decisions [that FedEx expects Free to try to introduce]
were made by a variety of decisionmakers, including many who did
not participate in the hiring decision at issue in this lawsuit.
Further,

without

information

about

the

qualifications

of

the

applicants, these facts shed no light on whether FedEx intended to
discriminate against Free because she is female.”

(ECF No. 90-1

at 1581.)
FedEx’s argument is, for the most part, well-taken. A history
of a lack of female GOC managers has some relevance to Free’s
claim; Free’s claim would be weaker if GOC’s management included
more women. But the issues identified by FedEx make this history’s
probative value quite weak.

It is substantially outweighed by the

potential for unfair prejudice, for undue delay, and to confuse
the

issues.

If

the

history

of

past

GOC

manager

employment

decisions were permitted at trial, the Court would afford FedEx
the opportunity to put on proof about how those hiring processes
differed

from

the

one

at

issue
13

in

this

case

and

about

the

qualifications of the applicants.
diverted

into

multiple

alleged discrimination.

The jury’s attention would be

mini-trials

about

other

instances

of

Free does not cite, and the Court has not

found, any case where similar historical failure-to-hire evidence
was permitted to support a discriminatory treatment claim.
Second, evidence of FedEx’s failure to follow its internal
policies in evaluating Free’s candidacy for the 2013 GOC Manager
position, including any manipulation of the hiring process in favor
of Rudy Cruz, should not be excluded.

The Sixth Circuit has held

that a jury is entitled to consider the failure of employers to
follow their internal policies as evidence of pretext.

See Coburn

v. Rockwell Automation, Inc., 238 F. App’x 112, 126 (6th Cir.
2007); Deboer v. Musashi Auto Parts, Inc., 124 F. App’x 387, 394
(6th Cir. 2005).
FedEx’s Third Motion in Limine is GRANTED insofar as it seeks
to exclude evidence of GOC manager hiring outcomes other than
Free’s in March 2013.

It is DENIED to the extent it seeks to

exclude FedEx’s failure to follow internal policies related to
Free’s candidacy for the March 2013 GOC Manager position.
D.
FedEx
evidence

Fourth: Certain Statements Made by Paul Tronsor
asks
about

the

Court

certain

to

exclude

statements

irrelevant or unfairly prejudicial.
14

any

made

testimony
by

Paul

(ECF No. 91-1.)

or

other

Tronsor

as

The Court

has ruled that many of the remarks cited by FedEx, although not
“conclusive

proof”

of

discrimination,

“‘add

color’

to

the

employer’s decision-making process and to the influences behind
the actions taken with respect to the individual plaintiff.”

(ECF

No. 74 at 1425 (quoting Steeg v. Vilsack, No. 5:13-cv-00086, 2016
WL 6465915, at *2 (W.D. Ky. Oct. 28, 2016)).)

Those statements

were among the pieces of evidence the Court concluded were, when
taken together, enough for a jury to find that FedEx’s proffered
reason for failing to hire Free as a GOC manager was pretextual.
(Id.)

That conclusion applies equally to the additional comments

FedEx cites.

All the comments cited by FedEx are relevant.

FedEx

makes no argument as to why their inclusion at trial would be
unfairly prejudicial.
FedEx’s Fourth Motion in Limine is DENIED.
III. Conclusion
For the foregoing reasons, the parties’ motions are GRANTED
IN PART and DENIED IN PART.

So ordered this 25th day of January, 2019.

/s/ Samuel H. Mays, Jr._____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

15