Leahy v. Computer Sciences Corp.

Filing 72

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 2/25/15. (gwalk, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

ROBERT LEAHY,

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Plaintiff,
v.
COMPUTER SCIENCES CORP.,

Defendant.

M E M O R A N D U M

1:14cv665(JCC/TRJ)

O P I N I O N

This matter is before the Court on Robert Leahy’s
(“Plaintiff”) Motion in Limine.

[Dkt. 40.]

For the following

reasons, the Court will grant in part and deny in part the
motion and will defer ruling on certain testimony until trial.
I. Background
Familiarity with the facts is presumed.
Mem. Op. [Dkt. 54].)

(See 2/12/15

Briefly, Plaintiff is a former employee of

Computer Science Corp. (“CSC” or “Defendant”).

He alleges that

Defendant impermissibly terminated him because of his age, in
violation of the Age Discrimination in Employment Act (“ADEA”).
(Compl. [Dkt. 1].)

Defendant claims Plaintiff was fired for

violating CSC’s values, referred to by the acronym “CLEAR.”
three-day jury trial is set to begin on March 3, 2015.
26.]
1

[Dkt.

A

In this motion, Plaintiff seeks to exclude the
following evidence at trial: evidence that Plaintiff claims was
unknown to Mike Lawrie (“Lawrie”), CSC’s CEO, Jo Mason
(“Mason”), Lawrie’s chief of staff, and Sunita Holzer
(“Holzer”), CSC’s former vice president of human resources, on
January 28, 2014, the date the decision was made to terminate
Plaintiff; impermissible character evidence about Plaintiff;
evidence Plaintiff contends concerns only Jim Finn (“Finn”),
Plaintiff’s direct supervisor at CSC; and testimony from Marion
McGill (“McGill”).

(See Pl.’s Mot. in Limine [Dkt. 40].)

Having been fully briefed and argued, this motion is ripe for
disposition.
II. Analysis
A. Evidence Alleged to be Unknown to Decision-Makers
at time of Firing
Plaintiff argues the Court should exclude certain of
Defendant’s trial exhibits and witnesses because they pertain to
information that he alleges was not known to decision-makers on
January 28, 2014, the date they decided to terminate him.
Defendant challenges Plaintiff’s legal and factual support for
this statement.

At the outset, the Court notes that both

practically and legally speaking, Defendant could not have
terminated Plaintiff on the basis of information unknown to it.
Defendant seeks to apply McKennon v. Nashville Banner Publishing

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Co., 513 U.S. 352 (1995) here, arguing that McKennon held that
evidence of an employee’s wrongdoing, regardless of when
decision-makers learned of it, was relevant to limiting damages.
(Def.’s Opp. at 2 (citing McKennon, 513 U.S. at 361-62).)
However, McKennon did not just concern calculating damages.

The

district court and the Sixth Circuit held that the plaintiff was
not entitled to relief under the ADEA because after-acquired
evidence of wrongdoing would have resulted in discharge anyway,
even though those courts accepted that an unlawful motive was
the sole basis for termination.

McKennon, 513 U.S. at 355.

The

Supreme Court “question[ed] the legal conclusion” reached by the
lower courts and found it “incorrect.”

Id.

“The employer could

not have been motivated by knowledge it did not have and it
cannot now claim that the employee was fired for the
nondiscriminatory reason.”

Id. at 360.

As Defendant here

noted, though the Court found the employer violated the ADEA, it
found that the issue of employee wrongdoing was relevant to
calculating damages.

Id. at 360.

Ultimately, McKennon held

that an employer may consider after-acquired evidence in
limiting damages in ADEA cases.

Id. at 362-63.

Here, the Court is not concerned with calculating
damages.

Rather, the issue before the Court is what evidence is

admissible at trial to determine if Defendant impermissibly
terminated Plaintiff because of his age.
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Evidence acquired

after the decision to terminate Plaintiff has no bearing on this
issue.

With this in mind, the Court turns to the specific

pieces of evidence.
1. Mark Delisi’s Evidence and Testimony
Plaintiff seeks to exclude Defendant’s trial exhibits
6 and 26 and related testimony about Mark Delisi (“Delisi”),
Plaintiff’s subordinate at CSC.

(Pl.’s Mot. at 3.)

Exhibit 6

is an email from Delisi to Holzer with an attachment detailing
issues he had with Plaintiff.

(Pl.’s Mot., Ex. A, at 19-21.) 1

Exhibit 26 is an email exchange between Delisi and Plaintiff
about holiday leave.

(Pl.’s Mot., Ex. A, at 62-63.)

Plaintiff

argues that Delisi testified at his deposition that he did not
complain about Plaintiff to Mason or Lawrie at all, and that he
did not complain to Holzer about Plaintiff until after the
decision to fire Plaintiff had been made.

(Pl.’s Mot. at 3.)

Accordingly, Delisi’s complaints were not known to Holzer,
Lawrie, or Mason on January 28, 2014.

(Id.)

Defendant argues that Mason spoke at length with
Delisi on January 21, 2014, the day Delisi submitted his
resignation, and talked at length about his reasons for leaving.
(Def.’s Opp. at 3.)

Additionally, Delisi testified that during

the meeting of communications employees on January 23, he
believed he spoke about Plaintiff’s behavior.
1

(Def.’s Opp. at

Pagination of exhibits is according to CM/ECF.
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3.)

The Court noted in its ruling on summary judgment that

there is a genuine issue of material fact as to whether and to
what extent Delisi’s comments played a role in the decision to
terminate him.

(See 2/12/15 Mem. Op. at 16.)

Any issues about

timing go to weight, rather than admissibility, and counsel are
free to examine and cross-examine witness to determine what
decision-makers knew and when they knew it, as well as highlight
those points in closing argument.

Therefore, Plaintiff’s motion

as to Exhibits 6, 26, and Delisi’s related testimony will be
denied.
2. Heather William’s Testimony
Plaintiff argues that the testimony of Heather
Williams (“Williams”), a colleague of Plaintiff’s, should be
excluded because the decision-makers were not aware of her
complaints when they made the decision to terminate Plaintiff.
(Pl.’s Mot. at 4.)

Defendant counters that her testimony is

directly relevant to Plaintiff’s claim that he was excelling at
his job and is directly relevant to address Finn’s bias and the
veracity of his testimony.

(Def.’s Opp. at 4.)

Under the Federal Rules of Evidence, evidence is
considered relevant if “(a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.”
R. Evid. 401(a)-(b).

To establish a prima facie case of age

Fed.

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discrimination, Plaintiff must prove by a preponderance of the
evidence that (1) he is a member of a protected class; (2) he
suffered adverse employment action; (3) he was performing his
job duties at a level that met his employer’s legitimate
expectations at the time of the adverse employment action; and
(4) following his discharge, the position remained open or he
was replaced by a substantially younger individual with
comparable qualifications.

Hartman v. Univ. of Md. at

Baltimore, No. 14-1229, 2014 WL 6981356, at *3 (4th Cir. Dec.
11, 2014) (citing Hill v. Lockheed Martin Logistics Mgmt., Inc.,
354 F.3d 277, 285 (4th Cir. 2004) (en banc)).
The Court has reviewed the excerpt of Williams’s
deposition testimony provided by Plaintiff.
Ex. M, at 176-183.)

(See Pl.’s Mot.,

In her deposition, she recounted what she

perceived as an unprofessional interaction with Plaintiff and
stated that she reported this issue to Finn.

(Id. at 180.)

Additionally, she testified that she voiced general concerns
about the leadership team, including Plaintiff, at the January
23 communications meeting.

(Id. at 183.)

Williams’s testimony

is relevant to whether Plaintiff can prove his prima facie case,
as it bears directly on whether Finn, Plaintiff’s immediate
supervisor, was on notice of complaints about Plaintiff as well
as what role, if any, those complaints played in Finn’s
formulation of whether Plaintiff was meeting legitimate job
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expectations.

Therefore, Plaintiff’s motion as to Williams’s

testimony is denied.
3. Marcel Goldstein’s Testimony
Plaintiff seeks to exclude Marcel Goldstein’s
(“Goldstein”) testimony.

(Pl.’s Mot. at 4.)

At Goldstein’s

deposition, he claimed that Plaintiff used inappropriate
language with him on two occasions.
I.)

(Id.; see Pl.’s Mot., Ex.

Defendant responds that it has not listed Goldstein as a

witness in its case-in-chief and does not intend to mention this
testimony in its opening statement.

(Def.’s Opp. at 6.)

Whether it intends to call Goldstein depends on Plaintiff’s
testimony at trial.

(Id.)

As the relevancy of Goldstein’s

testimony depends on what evidence is adduced at trial, the
Court defers ruling on this motion until the need arises to
address it.
4. Other CSC Trial Exhibits
Plaintiff seeks to exclude several of Defendant’s
trial exhibits because Defendant was unaware of their existence
on January 28, 2014.

(Pl.’s Mot. at 4.)

Specifically,

Plaintiff seeks to exclude Defendant’s trial exhibits 15, 17-25,
27, 28, 30-34, and 37.

(See generally Pl.’s Mot, Ex. A.)

Exhibits 15, 19-21, 23, 25, and 37 are discussed infra;
therefore, the Court focuses its attention on the remaining
exhibits.
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Exhibits 17, 18, 22, 24, 28, 30, and 31 are emails
between Plaintiff and Finn commenting on their colleagues’
quality of work or their perceptions of their colleagues.
(Pl.’s Mot., Ex. A, at 40-44, 52-53, 55-59, 68-80.)

While the

emails are not models of professionalism, there is nothing in
the emails to suggest that the comments and sentiments were
known to anyone besides Finn and Plaintiff, let alone known to
the decision-makers.

Therefore, these emails have no relevance

to the claim at issue and are inadmissible.
Exhibits 32 through 34 are emails sent by members of
the communications staff after Defendant announced that Finn and
Plaintiff had been terminated.

(Pl.’s Mot, Ex. A, at 81-85.)

The emails are vague and do not specifically reference
Plaintiff.

Therefore, Exhibits 32, 33, and 34 are inadmissible

as irrelevant.
B. Character Evidence About Plaintiff
Plaintiff alleges that Defendant has proposed several
trial exhibits for the apparent purpose of “smearing”
Plaintiff’s character.

(Pl.’s Mot. at 6.)

The admissibility of

each category of evidence is addressed in turn.
1. “Too Young” Emails
Exhibits 20, 21, 23, and 25 are a series of emails in
which Plaintiff criticizes employees supplied by an outside
consulting firm as “too young.”

(Pl.’s Mot. at 6; Pl.’s Mot.,
8

Ex. A, at 50-54, 60.)

Defendant argues that if Plaintiff or

Finn testify that “old fart” must refer to Plaintiff’s age, then
Defendant must be permitted to introduce evidence that
discredits such an interpretation.

(Def.’s Opp. at 9.)

This

evidence does that, Defendant contends, because in deposition
testimony Plaintiff stated that “young” is just a synonym for
“inexperienced,” and Plaintiff’s use of the term “young” in
describing others is “clearly relevant” to the claim at issue
here.

(Id.)

The Court fails to see how Plaintiff’s use of the

term “young” is relevant to deciphering the meaning of “old
fart” or how it has any bearing on Plaintiff’s termination.
Therefore, Exhibits 20, 21, 23, and 25 are inadmissible because
they are irrelevant.

Because the Court finds that these

exhibits are irrelevant, it declines to consider whether they
are also excludable under Federal Rule of Evidence 404.
2. Emails From Finn
Plaintiff argues Exhibits 18, 19, and 22 are
inadmissible on character grounds because Plaintiff did little
more than express agreement with Finn’s comments.
at 7.)

(Pl.’s Mot.

Exhibit 18 is an email exchange between Finn and

Plaintiff with blunt comments regarding another CSC employee.
(Pl.’s Mot., Ex. A, at 43.)

Exhibit 19 is another email between

Finn and Plaintiff expressing agreement on a hiring plan.
at 45.)

(Id.

Exhibit 22 is a third email between Plaintiff and Finn
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in which Plaintiff echoes Finn’s frustration with another CSC
colleague.

(Id. at 52.)

Again, the Court fails to see the

relevance of Exhibits 18 and 22 and therefore those exhibits are
inadmissible.

In light of this holding, the Court declines to

consider whether the evidence is also excludable under Rule 404.
As to Exhibit 19, the email exchange includes a
forwarded message from Finn to Plaintiff including
correspondence Finn had with Lawrie.

In the email, Lawrie

states that he wants to investigate why so many people have left
the communications group.

The Court does not find it to be

excludable as impermissible character evidence.

See Fed. R.

Evid. 404 (stating that evidence of a crime, wrong, or other act
is not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance
with the character).

Rather, this email is relevant to whether

there was an ongoing investigation of the corporate
communications group and whether Finn and Plaintiff were aware
of such an investigation.

Therefore, it is admissible.

3. Emails from Plaintiff to Colleagues
Plaintiff challenges Exhibits 15 and 26, emails that
Plaintiff wrote to colleagues, because the emails paint
Plaintiff in a negative light.

(Pl.’s Mot. at 7.)

supra, Exhibit 26 is admissible.

As noted

The Court does not find need

to reconsider this ruling as Exhibit 26 is not impermissible
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character evidence under Rule 404.
Exhibit 15 is an email Plaintiff sent to several
members of the communications group in which he tells a member
of the staff “I am not sure anyone will understand what that
means.

Simple English may be more helpful.”

A, at 33.)

(Pl.’s Mot., Ex.

Defendant seeks to offer this as evidence that

Plaintiff violated CSC’s “CLEAR” values and to validate others’
general complaints of Plaintiff’s behavior.
11.)

(Def.’s Opp. at

This evidence is marginally relevant, but the Court deems

it admissible and will deny the motion as to this exhibit.
C. Evidence Relating Only to Jim Finn
Plaintiff seeks to exclude Defendant’s trial exhibits
9, 2 10, 12, 14, 16, 24, 35, and 37 as they relate only to Finn.
(Pl.’s Mot. at 8.)
sent by Finn.

Exhibits 9, 14, 16, 24, and 37 are emails

(See Pl.’s Mot., Ex. A.)

Exhibit 10 is an email

from Ann Eisele (“Eisele”) to Mason relating to a “sticky”
issue.

(Id. at 24.)

Exhibit 12 is an email from Delisi to

Mason expressing gratitude for support, apparently related to
conversations he had with Mason about moving his corporate
social responsibility function out of corporation
communications.

(Id. at 25; see Pl.’s Mot. at 9.)

Likewise,

Exhibit 35 is an email exchange between Delisi and Mason.

2

(Id.

Finn authored an email, which a colleague then forwarded to
Mason complaining about said email.
11

at 86-88.)

Exhibit 37 is an email from Finn to Goldstein,

Plaintiff, and a third CSC employee.

(Id. at 89.)

All of these exhibits, save for Exhibit 12, are not
relevant to determining whether Plaintiff was fired because of
his age or because of his poor performance.

Therefore, these

exhibits are inadmissible in the Defendant’s case to demonstrate
why Plaintiff was fired.

However, the emails may be admissible

to impeach Finn, depending on his trial testimony.

The Court

will rule on whether the exhibits are admissible as impeachment
evidence if and when the need arises at trial.
Defendant claims that Exhibit 12 is “closely related”
to the issue of Plaintiff’s performance because in the email
Mason encourages Delisi to “have a straight talk conversation”
with his boss, Plaintiff, about moving the corporate social
responsibility function out from the auspices of corporate
communications.

(Def.’s Opp. at 13.)

Though this email

references a future conversation with Plaintiff and it is
unclear whether such a conversation ever occurred, the Court
finds that it is marginally relevant.

Therefore, the Court will

deny the motion with respect to Exhibit 12.
D. Marion McGill’s Testimony
Plaintiff seeks to exclude Marion McGill’s testimony.
McGill was Mason’s executive assistant for eighteen years.
(Pl.’s Mot. at 9.)

McGill is stationed in London and has never
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visited CSC’s headquarters in Falls Church.

Defendant proffers

that McGill will testify about what the term “old fart” means in
the United Kingdom and how Mason, a native of the United
Kingdom, would have intended the term to mean if she used it.
(Def.’s Opp. at 13-14.)

Plaintiff moves to exclude this

testimony on grounds that McGill has no first-hand knowledge or
observation of Mason using the term and therefore her testimony
does not satisfy the admissibility requirements for lay
opinions. 3

(Pl.’s Mot. at 12-13.)
Under Federal Rule of Evidence 701, opinion testimony

by lay witnesses is admissible if it is “(a) rationally based on
the witness’s perception; (b) helpful to clearly understanding
the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.”

“Rejecting the

impractical notion that lay persons be required to testify only
to pure facts when relating their knowledge of an incident, the
rule allows testimony based on the person’s reasoning and
opinions about witnessed events, such as are familiar in every
day life.”

United States v. Offil, 666 F. 3d 168, 177 (4th Cir.

2011).

3

Defendant does not proffer McGill as an expert witness and
therefore the Court will not consider whether she qualifies as
such under Federal Rule of Evidence 702. (See Def.’s Opp. at 13
n.7.)
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Here, Defendant argues McGill’s testimony is
admissible, even though McGill was not present in the CSC
headquarters in Falls Church during the time Plaintiff worked
there.

Its theory of admissibility is that because of her

personal experience with Mason, with whom she is close
personally, and her personal observation from living the
majority of her life in the United Kingdom, McGill can testify
that old fart “doesn’t actually mean old.

An old fart could be

somebody who’s like old fashioned in their way, almost sort of
like condescending because they think they know better than you
because they’re an old fart, you know.”
(citing Def.’s Opp., Ex. J at 18).)

(Def.’s Opp. at 14-15

The Court finds McGill’s

proffered testimony is inadmissible because she was not present
when Mason allegedly used the term “old farts” in Falls Church
and therefore would only be speculating as to the context in
which the term was used.

See Certain Underwriters at Lloyd’s,

London v. Sinkovich, 232 F. 3d 200, 204 (4th Cir. 2000) (holding
lay opinion inadmissible where witness did not have any firsthand knowledge of accident in question and where his sole basis
of knowledge was analysis of data collected); Offill, 666 F.3d
at 177-78 (“Courts are, however, mindful to guard against lay
witness testimony when it involves meaningless assertions which
amount to little more than choosing up sides.”) (citation and
internal quotation marks omitted).
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III. Conclusion
For the foregoing reasons, Plaintiff’s motion in
limine is granted in part and denied in part.
defer ruling on certain testimony until trial.

The Court will
An appropriate

order will issue.

February 25, 2015
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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