Hutson v. Federal Express Corporation et al

Filing 99

OMNIBUS ORDER on Motions in Limine. Signed by Judge S. Thomas Anderson on 2/1/17. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
CHERI ANN HUTSON,

)
)
Plaintiff,
)
)
vs.
)
)
FEDERAL EXPRESS CORPORATION, )
)
Defendant.
)
)

Case No. 2:15-cv-02411-STA-cgc

OMNIBUS ORDER ON MOTIONS IN LIMINE

On January 26, 2017, the Court conducted a final pretrial conference with counsel for
both parties. A jury trial is set to commence on February 6, 2017. Before the Court are a
number of Motions in Limine filed by the parties. The parties having completed their briefing of
the Motions, the Court’s rulings on the parties’ Motions are set forth below.
I. Exclusion of Defendant’s Undisclosed Witnesses
In her first Motion in Limine (ECF No. 77), Plaintiff Cheri Ann Hutson asks the Court to
preclude the following witnesses from offering testimony at trial: Karen Keaton, Debi Minnick,
Marie W. Harper, Theresa Westcott, and any other witness not specifically identified by
Defendant in its Rule 26 initial disclosures or in response to Plaintiff’s interrogatories. Plaintiff
asserts that Defendant did not identify any of these specific witnesses in its initial disclosures in
December 2015 or in its responses to Plaintiff’s first set of interrogatories in February 2016.
Defendant never supplemented its initial disclosures or its discovery responses within the Court’s
deadline for completing all discovery. Defendant disclosed these witnesses for the first time in

its Witness List (ECF No. 71) and thereafter in the proposed joint pretrial order. Plaintiff argues
that exclusion of these witnesses is mandatory under Federal Rule of Civil Procedure 37(c)(1).
In its response brief, Defendant concedes that it will not call Marie W. Harper or Theresa
Westcott as witnesses at trial. Defendant argues that its failure to disclose Keaton or Minnick
was harmless. Both witnesses were mentioned throughout the discovery process, in written
discovery and in the testimony of other witnesses. Minnick is a female senior manager in
Defendant’s Global Operations Center (“GOC”). Keaton has firsthand knowledge of Plaintiff’s
internal EEO complaint and her guaranteed fair treatment process (“GFTP”) as well as general
knowledge of Defendant’s senior manager selection system (“SMSS”). Defendant intends to call
Keaton because another witness Matthew Coleman who also has knowledge of these subjects is
unable to attend the trial for medical reasons. Defendant argues that exclusion of Minnick and
Keaton is not required.
Federal Rule of Civil Procedure 37(c)(1) mandates the exclusion of any information or
witness at trial if the proponent of the information or witness fails to disclose it during discovery,
unless the party’s failure to make the disclosure was substantially justified or harmless. “Rule 37
is written in mandatory terms and is designed to provide a strong inducement for disclosure of
Rule 26(a) material.”1 Rule 26(e)(1)(A) requires a party to supplement its initial disclosures only
if a witness “has not otherwise been made known to the other parties during the discovery
process.”2 Defendant has shown that Karen Keaton and Debi Minnick were made known to

1

Sexton v. Uniroyal Chem. Co., 62 F. App’x 615, 616 n.1 (6th Cir. 2003) (citation and
internal quotation marks omitted).
2

Baker Hughes Inc. v. S&S Chem., LLC, 836 F.3d 554, 568 (6th Cir. 2016) (quoting Fed.
R. Civ. P. 26(e)(1)(A)).
2

Plaintiff during the discovery process. And Defendant has conceded that it does not intend to
call Marie W. Harper or Theresa Westcott. Therefore, Plaintiff’s Motion in Limine is DENIED.
II. Proof About Plaintiff’s Internal EEO and GFTP
In her second Motion in Limine, Plaintiff seeks the exclusion of proof about the findings
or results of her internal EEO and GFTP investigations that were commenced as a result of
Plaintiff’s complaints of discrimination. Plaintiff argues that this proof is irrelevant and any
relevance it might possess is outweighed by its prejudicial effect. Defendant responds that
Plaintiff has listed two witnesses in the joint pretrial order who will testify about her internal
EEO and GFTP complaints. If Plaintiff elicits testimony about her internal EEO and GFTP,
Defendant argues that the Court should allow it to explore the same subjects. The proof is also
relevant to Plaintiff’s theory of a pattern or practice of gender discrimination in the GOC and to
the issue of whether Defendant denied her the promotion with discriminatory intent.
In light of the fact that Plaintiff has listed witnesses with knowledge of her internal EEO
and GFTP complaints as well as witnesses who intend to testify about the emotional distress
experienced by Plaintiff as a result of her internal grievances, the Court will reserve ruling on the
Motion.
III. Proof of EEOC Charge
In her third and final Motion in Limine (ECF No. 79), Plaintiff asks the Court exclude
any evidence about her EEOC charge and the exhaustion of her administrative remedies.
Defendant stated at the pretrial conference that it did not oppose Plaintiff’s Motion. Therefore,
Plaintiff’s Motion is GRANTED.

3

IV. “Me Too” or “Other Acts” Evidence
In its first Motion in Limine (ECF No. 80), Defendant seeks the exclusion of any proof
offered by Plaintiff “from non-party employees regarding their own allegations or complaints of
discrimination; testimony and other evidence regarding Christi Free’s non-selection for a GOC
manager position; testimony and other evidence regarding Ronda Doyle’s demotion; and
testimony and other evidence regarding employees’ opinions about Defendant’s general
treatment of female employees and/or employees who complain of discrimination.” Defendant
argues that the proof is irrelevant, unfairly prejudicial, and otherwise improper character and
opinion evidence.

Plaintiff responds that she does not intend to call Free to testify “about

whether she was discriminated against in any promotion decision,” whether she suffered
retaliation for complaints about the process, or about her lawsuit against Defendant. Plaintiff
also responds that she will not call Doyle to testify about her claims of discrimination or
retaliation. Plaintiff reserves her right to introduce such proof if Defendant opens the door to
these issues in its questioning of Free or Doyle at trial.

Based on Plaintiff’s response,

Defendant’s Motion is GRANTED, subject to Plaintiff’s reservation of rights.
V. Testimony of Non-Party Witness Without Firsthand Knowledge of Plaintiff’s 2013
Promotion Process
In its second Motion in Limine (ECF No. 81), Defendant argues that the Court should
exclude any witness who will testify about Defendant’s alleged pattern or practice of not hiring
women for management positions. Specifically, Defendant states that Plaintiff may call Norman
Wilcox, Ronda Doyle, and Kristi Free to offer testimony about the alleged pattern or practice.
And Defendant argues that the Court should likewise exclude any witness who lacks firsthand
knowledge of the decision not to hire Plaintiff for the 2013 senior manager position in GOC.
These witnesses include Wilcox, Doyle, Free, John Allison, John Dunavant, Sele Williamson,
4

Beth Rush, and David Kintzele. Defendant contends that this testimony is irrelevant and unfairly
prejudicial.
Plaintiff responds that she is removing Dunavant, Allison, Wilcox, and Williamson from
her “may call” list of witnesses.

Plaintiff requests that the Court reserve ruling on the

admissibility of the testimony of the other witnesses until trial. Plaintiff indicates that she will
make a proffer of the testimony to allow the Court to decide whether the testimony is relevant
and admissible. According to Plaintiff, Doyle will testify about the subjectivity of the hiring
process in the GOC. Rush and Kinzele will testify about Plaintiff’s damages, in particular the
emotional distress she experienced as a result of the GFTP process and her lawsuit.
Based on Plaintiff’s decision not to call all of the witnesses named in the Motion in
Limine, Defendant’s Motion is GRANTED. This leaves the question of whether Doyle, Rush,
and Kinzele have firsthand knowledge of facts relevant to Plaintiff’s claim. The Court will
reserve ruling on the admissibility of the specific testimony to be offered by Doyle, Rush, and
Kinzele. The Court will take up Plaintiff’s request to make a proffer and the admissibility of the
testimony at trial.
VI. Plaintiff’s Failed Attempt to Obtain a Position in 2007
In its third Motion in Limine (ECF No. 82), Defendant asks the Court exclude proof of
Plaintiff’s previous bid for a senior manager position in GOC in 2007. Defendant argues that the
fact that Plaintiff was not successful in her previous application for a senior manager position is
not relevant. Plaintiff responds that she does not intend to litigate the merits of her previous
attempt for the position. Based on Plaintiff’s concession, Defendant’s Motion is GRANTED.
Plaintiff does argue that the proof about the 2007 promotion process is relevant in two
ways. Her previous application for a senior manager position provides relevant background

5

information, showing her desire to return to the GOC. And during her previous bid for a
position, Paul Tronsor, the managing director of GOC, remarked to Ronda Doyle that he was
impressed with Plaintiff’s qualifications. The Court need not reach Plaintiff’s argument here
because it is beyond the scope of Defendant’s Motion in Limine, which simply presented the
question of whether Plaintiff should be allowed to introduce evidence about what happened in
2007 to support her claim of discrimination about what happened in 2013. Plaintiff’s additional
argument can be addressed at trial, if need be.
VII. Weather TAF Decode and Weather Code Definitions
Defendant’s fourth Motion in Limine (ECF No. 83) seeks to exclude any evidence about
weather code definitions from aviationweather.gov and a weather TAF decoder from the
National Oceanic and Atmospheric Administration (“NOAA”). Defendant argues that these
outside sources were not consulted or relied upon in making the decision not to hire Plaintiff for
the 2013 senior manager position. Plaintiff has responded that she does not intend to introduce
this evidence at trial. Therefore, Defendant’s Motion is GRANTED.
VIII. “History and Pattern” Evidence of Excluding Women from Management in GOC
Defendant’s fifth Motion in Limine (ECF No. 84) asks the Court to exclude any proof of
an alleged “history and pattern” of excluding women from management in GOC and any
testimony from Hutson suggesting a basis for or motivation behind hiring decisions of which she
was not a part. Based on Plaintiff’s summary judgment brief, Defendant anticipates that Plaintiff
will seek to introduce evidence of Defendant’s hiring practices in GOC and the
underrepresentation of women in GOC management. Defendant argues that pattern or practice
evidence is not relevant in an individual disparate treatment case such as Plaintiff’s. Defendant
further argues that even if the proof is relevant, each hiring situation cited by Plaintiff involved

6

different decisionmakers, different positions, and other factors, all of which make the proof of
the other hiring decisions irrelevant. The proof would also risk jury confusion and require a
series of trials within the trial to assess the merits of each hiring decision. Finally, the proof is
inadmissible because it calls for improper lay opinion.
Plaintiff answers that the evidence is relevant and admissible to show intent and motive.
According to Plaintiff, only one woman has successfully competed for a management position in
GOC during Tronsor’s tenure as managing director.

Plaintiff argues that according to

Defendant’s Manager Affirmative Action Program (“MGRAAP”), women are under-utilized in
the GOC, and managers like Tronsor are regularly prompted to take action to correct the underutilization of protected groups of employees. Ronda Doyle will also testify that she brought this
issue to Tronsor’s attention. However, the proof will show that Tronsor continued to hire males
to fill open managerial positions. Plaintiff argues that this proof constitutes circumstantial
evidence of discriminatory intent.
Both parties’ positions are true, as far as they go. Defendant correctly argues that “the
pattern-or-practice method of proving discrimination is not available to individual plaintiffs.”3
But even then, “pattern-or-practice evidence may be relevant to proving an otherwise-viable
individual claim for disparate treatment under the McDonnell Douglas framework,” just not as
the sole means of establishing a prima facie claim.4 In “McDonnell Douglas itself, [the Supreme
Court] noted that an employer’s general policy and practice with respect to minority
employment—including statistics as to that policy and practice—could be evidence of pretext.”5

3

Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 575 (6th Cir. 2004) (citing Cooper v.
Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 (1984)).
4

Id.
7

For her part Plaintiff cites for support cases where statistical proof showing a pattern of conduct
was admitted as circumstantial evidence of discrimination against an individual.6 “Appropriate
statistical data showing an employer’s pattern of conduct toward a protected class as a group can,
if unrebutted, create an inference that a defendant discriminated against individual members of
the class.”7 However, statistics are “valid and helpful in a discrimination case” only to the extent
that “the methodology and the explanatory power of the statistical analysis” sufficiently “permit
an inference of discrimination.”8 Specifically, “the statistics must show a significant disparity
and eliminate the most common nondiscriminatory explanations for the disparity.”9
The Court holds that Plaintiff’s proposed evidence of a pattern or pattern fails this
standard. Plaintiff has not actually cited statistical evidence but rather a history of hiring
decisions in the GOC since 1986. The Court finds that the relevant evidence is limited to the
hiring decisions in the GOC since Paul Tronsor assumed his role as managing director in
October 2006.10 According to Plaintiff, women have applied for management positions in the
GOC sixteen times during Tronsor’s tenure. Only one time did a woman get the job. Despite the

5

Young v. United Parcel Serv., Inc., 135 S.Ct. 1338, 1355 (2015) (quoting McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 804-805 (1973) (internal quotation marks omitted)).
6

Pl.’s Resp. in Opp’n 5 (ECF No. 91) (citing Barnes v. GenCorp Inc., 896 F.2d 1457,
1466 (6th Cir. 1990) and Diaz v. Am. Tel. & Tel., 752 F.2d 1356, 1363 (9th Cir. 1985)).
7

Conner v. State Farm Mut. Auto. Ins. Co., 273 F. App’x 438, 442–43 (6th Cir. 2008)
(citing Barnes, 896 F.2d at 1466).
8

Amini v. Oberlin College, 440 F.3d 350, 359 (6th Cir. 2006) (quoting Rocha v. Great
Am. Ins. Co., 850 F.2d 1095, 1101 (6th Cir. 1988)).
9

Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 622 (6th Cir. 2006) (quoting Barnes, 896
F.2d at 1466).
10

Conner, 273 F. App’x at 442–43 (“Conner’s statistical analysis does little to support
her position because . . . the analysis is not limited to decisions made by Dan Brooks-the primary
decision-maker here.”).
8

obvious disparity in hiring women for these positions, the Court has serious doubts that such a
small sample size has probative value.11 Even assuming this small sample is sufficient to
“permit an inference of discrimination,” Plaintiff has not shown that she can “eliminate the most
common nondiscriminatory explanations for the disparity.”12 Of the sixteen hiring decisions
involving women, fourteen of the hires were for a position as manager. In this case Plaintiff was
already in management (albeit in another department) and applied to be a senior manager in
GOC. Her pattern and practice evidence then consists of only two hiring decisions where a
woman applied to be a senior manager in GOC: her bid for senior manager in 2007 and her bid
for senior manager in 2013.

At this stage of the case, Plaintiff has not shown that (1)

Defendant’s hiring process for managers is comparable to the hiring process for senior managers;
(2) the qualifications for managers and senior managers are similar in relevant respects; or (3)
the candidates, male and female, in each instance were otherwise similarly situated. In short,
Plaintiff’s evidence of a pattern or practice arguably includes only two relevant hiring decisions,
both of which involved Plaintiff applying for a position as a senior manager in the GOC. The
Court concludes that this evidence does not suffice to demonstrate a pattern or practice.
Therefore, Defendant’s Motion in Limine is GRANTED.
IX. Failure to Disclose Damages
In its sixth Motion in Limine (ECF No. 85), Defendant argues that Plaintiff failed to
make proper disclosures of her damages calculations during the discovery period.

11

Plaintiff’s

Tinker v. Sears, Roebuck & Co., 127 F.3d 519, 524 (6th Cir. 1997) (“A sample which
is too small can undermine the probative value of the statistical evidence.”) (holding that a
sample of 13 cases was too small to be indicative of discrimination and citing Simpson v.
Midland–Ross Corp., 823 F.2d 937, 943 (6th Cir. 1987)).
12

Bender, 455 F.3d at 622.
9

initial disclosures stated that the amount of her lost wages and benefits was unknown and that
she would supplement the information at the close of discovery. Defendant asserts that Plaintiff
never supplemented her initial disclosures or her written discovery responses during the regular
discovery phase. Defendant only received a computation of Plaintiff’s damages claim in the
proposed pretrial order.

Defendant argues then that exclusion of the proof is mandatory.

Plaintiff responds that her failure to supplement her initial disclosures or written discovery
responses was harmless.

Plaintiff testified about her calculation of damages during her

deposition. Other information about Plaintiff’s current salary and what her salary would have
been as a senior manager was already known to Defendant. As such, exclusion of the evidence
is not required.
The Court finds that Plaintiff’s failure to disclose the precise amount of her claim for
damages was harmless. The Sixth Circuit has held that the exclusion of damages evidence is an
abuse of discretion when the defendant “had all the information relevant to the computation of
damages in its possession” and “had a full opportunity during [the plaintiff’s] deposition to
question [her] about damages.”13 Defendant was obviously in possession of other relevant facts
about the amount of Plaintiff’s wages and benefits and the amount of wages and benefits to
which Plaintiff would have been entitled had she received the position.

Defendant also

questioned Plaintiff during her deposition about the elements of her claim for damages and the
method by which Plaintiff would calculate the amount of the damages. Therefore, Defendant’s
Motion is DENIED.
13

Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015) (quoting Jordan v. City of
Cleveland, 464 F.3d 584, 601 & n.22 (6th Cir. 2006)); see also Vance ex rel. Hammons v. United
States, 182 F.3d 920, at *5 (6th Cir. 1999) “[The] Advisory Committee Notes to [the] 1993
Amendments [to Rule 37(c)(1)] . . . strongly suggest[ ] that ‘harmless’ involves an honest
mistake on the part of a party coupled with sufficient knowledge on the part of the other party.”).

10

X. Award of Front Pay
Defendant’s final Motion in Limine (ECF No. 86) argues that the Court should not permit
Plaintiff to introduce any proof or claim for an award of front-pay to the jury. The Court and the
Court alone can make an award of front-pay. Plaintiff has agreed in her response that the issue
of front-pay is reserved to the Court. Plaintiff points out that the parties’ proposed joint pretrial
order states as much. Based on the parties’ apparent agreement on this issue, Defendant’s
Motion is GRANTED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: February 1, 2017.

11