Ellison et al v. The Fund for Theological Education, Inc. et al
Filing
100
MEMORANDUM OPINION AND ORDER CONFIRMING THE PRONOUNCED ORDER OF THE COURT REGARDING THE DEFENDANTS' 64 MOTION IN LIMINE AND DENYING THE MOTION IN LIMINE REGARDING CHRISTINE REPOLEY AS MOOT. For the reasons set forth above, the Defendants 39; Motion in Limine (ECF No. 64) is GRANTED. This evidence is determined not to be relevant as required by Rule 401 of the Federal Rules of Evidence, and even if it is relevant, it is inadmissible under Rule 403 as any probative value would be sub stantially outweighed by unfair prejudice, confusing the issues, and undue delay. Further, concerning the Defendants' Motion in limine that pertains to Christine Repoley, that Motion is DENIED AS MOOT. Signed by Senior Judge Frederick P. Stamp, Jr on 3/17/2015. (copy to counsel via CM/ECF)(lmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JAMES ELLISON and
MARTHA WRIGHT,
Plaintiffs,
v.
Civil Action No. 5:13CV136
(STAMP)
THE FUND FOR THEOLOGICAL
EDUCATION, INC. and
STEPHEN LEWIS,
Defendants.
MEMORANDUM OPINION AND ORDER
CONFIRMING THE PRONOUNCED ORDER OF THE COURT
REGARDING THE DEFENDANTS’ MOTION IN LIMINE
AND DENYING THE MOTION IN LIMINE
REGARDING CHRISTINE REPOLEY AS MOOT
I.
Background
The defendants removed the above-styled civil action to this
Court under diversity jurisdiction.
The plaintiffs were employees
of defendant The Fund for Theological Education, Inc. (“FTE”).
Defendant Stephen Lewis (“Lewis”) is the president of FTE.
The
plaintiffs assert a common law claim for (1) retaliatory discharge
based on the plaintiffs having raised concerns of a hostile work
environment or other discriminatory conduct on the basis of race
and age; and (2) a claim for discriminatory discharge on the basis
of race and age, because a discharge based on both or either claims
violates the public policy of the State of West Virginia as
articulated in the West Virginia Human Rights Act (“WVHRA”).
issue now is the defendants’ motion in limine.
At
In their motion in limine, the defendants first seek to
exclude any evidence relating to the termination of employment of
previous employees who are white and over the age of 50.
64.
ECF No.
They claim that testimony or evidence relating to previous
employees of similar race and age should be excluded because those
previous employees were not similarly situated in relation to the
plaintiffs.
Next, the defendants seek to exclude any evidence
relating to Christine Repoley.
In particular, the defendants
allege that the plaintiffs intend to use testimony of defendant
Lewis telling other employees in 2011 that Ms. Repoley would be a
good
replacement
for
plaintiff
James
Ellison.
Because
that
incident allegedly occurred three years ago, the defendants believe
that it is both irrelevant and immaterial to this civil action.
The plaintiffs filed a response in opposition.
ECF No. 66.
The plaintiffs believe that the testimony of previous employees
that are white and over the age of 50 is relevant to their claim of
discrimination by the defendants.
Thus, the plaintiffs seek to
include that evidence because such evidence is relevant to the type
of discrimination that the plaintiffs argue occurred.
Next,
regarding the testimony and evidence of Ms. Repoley, the plaintiffs
seek
to
include
statements
where
defendant
Lewis
allegedly
suggested Ms. Repoley as a replacement for plaintiff Ellison.
This, according to the plaintiffs, helps demonstrate a motivation
2
by defendant Lewis when he allegedly pressured plaintiff Ellison to
retire.
Following the parties’ filings regarding the motion in limine,
this Court, at the pretrial conference, directed the parties to
further brief the issues related to the evidence about previous
white employees over the age of 50.
In analyzing the filings, it
appears that the defendants later specified certain items of
proffered evidence that they argue must be excluded under the
motion in limine.
ECF No. 85.
After reviewing the parties’
filings, this Court, in a letter to counsel for the parties dated
March 9, 2015, granted in part and deferred ruling in part on the
defendants’ motion in limine.
ECF No. 87.
This civil action then
proceeded to trial by jury, which commenced on Tuesday, March 11,
2015.
This memorandum opinion and order confirms this Court’s
ruling provided in its letter to counsel, which granted the motion
in limine except that the motion with respect to Mrs. Repoley is
denied as moot.
II.
A.
Discussion
Evidence of Alleged Discrimination Against Other Employees
As mentioned above, the defendants seek to exclude evidence
related to previous white employees over the age of 50 who had
their employment terminated by the defendants.
In addition, at
this Court’s request, the parties further proffered more specific
evidence that they intended to present.
3
In particular, the
defendants
indicated
seven
pieces
specifically sought to exclude.
of
evidence
ECF No. 85.
that
they
The arguments and
issues related to that evidence are discussed below.
1.
Termination of Certain Employees
The defendants argue that the plaintiffs should not be allowed
to present evidence that the defendants terminated the employment
of nine employees over the age of 50 from January 1, 2011 to
December 31, 2013. The defendants argue that such semi-statistical
evidence is speculative, and more importantly, fails to demonstrate
a
prima
facie
defendants
necessary
case
argue
of
that
information
discrimination.
the
about
plaintiffs
those
In
have
previous
particular,
not
provided
terminations
the
any
of
employment, such as context, a connection with the plaintiffs’
claims, and other similar factors.
This Court agrees with the defendants as to such evidence. As
the United States Court of Appeals for the Fourth Circuit provided
in Carter v. Ball, “the usefulness of statistics depends on the
surrounding facts and circumstances.”
33 F.3d 450, 456 (4th Cir.
1994) (citing Int’l Brotherhood of Teamsters v. United States, 431
U.S. 324, 340 (1977)).
Further, the fact that certain employees
who were white and over the age of 50 were discharged “does not
suffice to prove a prima facie case of discrimination without a
comparison to the relevant labor pool.”
Carter, 33 F.3d at 456.
In addition, “if a plaintiff offers a statistical comparison
4
without
expert
testimony
as
to
methodology
or
relevance
to
plaintiff’s claim, a judge may be justified in excluding the
evidence.”
Id. at 457 (citing Williams v. Cerberonics, Inc., 871
F.2d 452, 455 n.1 (4th Cir. 1989)); see Foster v. Tandy Corp., 848
F.2d 184, *5 (4th Cir. 1987) (table decision) (“[R]aw statistics
devoid of any context which relates those statistics to the alleged
discriminatory practice are of minimal probative value.”).
Based
on the above case law, the plaintiffs’ proffered evidence should be
excluded.
Namely, they fail to provide sufficient context and
analysis, or demonstrate how those terminations of employment are
relevant
or
plaintiffs’
statistically
situation.
significant
Further,
those
in
relation
previous
to
the
instances
of
termination that the plaintiffs seek to admit fail to show a
connection between race or age and employment decisions.1
semi-statistical
evidence
that
plaintiffs
wish
to
use
The
is
speculative at best. Therefore, evidence regarding the termination
of the previous employee’s employment, as discussed above, must be
excluded.
2.
Sensitivity Training in 2011
The defendants argue that this Court should exclude evidence
relating
racist.
to
alleged
criticisms
that
certain
individuals
were
In particular, the plaintiffs point to an instance where
1
It should be noted that defendants point out that of their
current employees, 12 of the 14 are over the age of 40. See ECF
No. 85 *4.
5
the plaintiffs’ co-workers allegedly criticized other employees,
including FTE’s former president Trace Haythorn for being racists.
The alleged comments were made at a sensitivity training session in
2011.
Regarding those comments, this Court finds that the comments
or allegations related to that sensitivity training are too remote
to be admitted.
of 2011.
In particular, that event occurred in the summer
Further, none of the relevant decision-makers concerning
the plaintiffs’ terminations of their employment were present.
As
stated in United States v. Maryland & Virginia Milk Producers Ass’n
[t]he question whether evidence is too remote is in all
cases to be determined by the court.
The decision
depends in large part on the issues. It is the function
and the duty of the court of its own motion to exclude
evidence that it deems too remote, even though possibly
it may have some nebulous logical distant relevancy to
the issues.
20 F.R.D. 441, 442 (D.D.C. 1957).
As one court stated, “To
constitute probative evidence of discrimination, remarks must be
proximate in time to the adverse employment decision at issue and
be made by an individual with authority over the employment
decision.”
Coleman v. Exxon Chemical Corp., 162 F. Supp. 2d 593,
625 (S.D. Tex. 2001). Further, “isolated statements can constitute
direct
evidence
of
discrimination,
but
statements
contemporaneous to the adverse employment action.”
must
be
McCray v. Pee
Dee Regional Transp. Authority, 263 F. App’x 301, 306 (4th Cir.
2008); Birbeck v. Marvel Lighting Corp., 30 F.3d 507, 511-12 (4th
6
Cir. 1994) (finding that evidence of allegedly discriminatory
statements made over two years before the discharge of employees
was too remote); see Auguster v. Vermilion Parish School Bd., 249
F.3d 400, 405 (5th Cir. 2001); Walker v. Wal-Mart Stores, Inc.,
2013 WL 3940662, at *4 (N.D. Miss. July 31, 2013) (“Generally,
comments made one year prior to an adverse employment action are
too remote to constitute direct evidence of discrimination.”).
Analyzing the available case law on the matter, the alleged
criticisms made at the sensitivity training in 2011 are too remote
to be admitted.
In addition, this event is not substantially
similar to the events which constitute the subject of this civil
action.
Therefore, those comments related to the sensitivity
training are excluded.
3.
Criticism Concerning Reading Poetry
The defendants next assert that the plaintiffs seek to use
statements of Matthew Williams, the former Director of Doctorate
Fellowships at FTE.
Allegedly, Mr. Williams criticized Lori Adams
for reciting a poem by Maya Angelou2 because she did not obtain
permission from the African-American members of the staff before
reciting it.
Such a criticism, however, does not appear to be
relevant to the matters in this civil action.
As Federal Rule of
Evidence 401 provides, evidence is relevant if “it has a tendency
2
Maya Angelou is a famous author and poet who often was
associated with African-American causes and efforts.
7
to make a fact more or less probable than it would be without the
evidence . . . and the fact is of consequence in determining the
action.”
Here, this evidence does not satisfy the requirements of
that rule, and its relevancy is very questionable at best. Namely,
it is of no consequence that Lori Adams read poetry by Maya
Angelou, as related to the plaintiffs’ claims. Further, even if it
were
relevant,
evidence
concerning
the
poetry
incident
is
inadmissible under Rule 403 as any probative value would be
substantially outweighed by unfair prejudice, confusing the issues,
and undue delay.
(1997).
See Old Chief v. United States, 519 U.S. 172
Therefore, evidence relating to the incident where Lori
Adams recited certain poetry by Maya Angelou must be excluded.
4.
Termination of Trace Haythorn’s Contract and Remarks
The plaintiffs seek to use evidence about the termination of
Trace Haythorn’s consulting contract and that Matthew Williams
claimed that Mr. Haythorn made racist comments to him and Lewis,
which allegedly occurred during the relevant time period.
Similar to other evidence discussed above, the plaintiffs here
fail to provide sufficient information so as to show that Mr.
Haythorn’s contract was terminated due to discriminatory reasons.
Further, the comments between those parties do not relate to the
termination
of
the
plaintiffs’
employment,
plaintiffs fail to indicate how it does.
evidence is also excluded.
8
or
at
least
the
Accordingly, such
5.
Sensitivity Training - “Elephant in the Room”
The
defendants
argue
that
the
plaintiffs
seek
to
use
additional statements from the 2011 sensitivity training session.
The plaintiffs claim that defendant Lewis said an “elephant in the
room” existed, supposedly referring to three white employees and
their attitudes toward African-Americans.
As discussed earlier,
those statements, made over two years before the plaintiffs’
discharge, are too remote. Further, the plaintiffs do not show how
that statement, by itself, relates to any discrimination based on
race or age. Accordingly, evidence relating to the above statement
of defendant Lewis at that training session must be excluded.
6.
Concerns of Discharging “Older” Women by Laura Cheifitz
The defendants argue that the plaintiffs seek to use testimony
of Laura Cheifitz, a former employee of FTE.
In particular, they
seek to use her perceptions, which were formed following her exit
interview, of an alleged pattern of terminating the employment of
“older” women.
That perception alone, however, does not reveal a
discriminatory policy or practice at FTE.
Further, insufficient
evidence was proffered to show that Mrs. Cheifitz’s perception or
complaints bear a sufficient connection to the defendants’ alleged
discrimination against the plaintiffs.
See McPheeters v. Black &
Veatch Corp., 427 F.3d 1095, 1103 (8th Cir. 2005) (affirming a
district court’s exclusion of evidence of other complaints of
discrimination because the evidence did not indicate “what decision
9
makers or departments were involved in those complaints, and thus,
the other complaints were not shown to bear a connection to the
employees
allegedly
plaintiff]”).
involved
in
discriminating
against
[the
As stated in Bennet v. Nucor Corp., “‘The question
whether evidence of discrimination by other supervisors is relevant
in an individual . . . case is fact based and depends on many
factors, including how closely related the evidence is to the
plaintiff’s circumstances and theory of the case.’”
656 F.3d 802,
811 (8th Cir. 2011) (internal citations omitted).
The evidence
pertaining to Mrs. Cheifitz’s perceptions and the alleged patterns
of termination do not sufficiently connect or relate to the
plaintiffs and their experience.
Therefore, that evidence must be
excluded.
7.
Testimony
Concerning
a
Pattern
of
Terminating Older
Employees and Its Discussion at Staff Meetings
The plaintiffs wish to have Lori Adams testify that the
“subject of a pattern of terminating older employees was actually
raised at an executive staff meeting” in October 2012 concerning
the termination of employment of three employees.
Further, the
plaintiffs claim that Mrs. Adams will show that those three
employees were considered a “problem” because they were over the
age of 50.
Similar
to
the
issues
discussed
above,
the
plaintiffs’
evidence concerning the termination of those three employees in
10
October
2012
does
not
bear
a
sufficient
plaintiffs’ termination of employment.
sufficient
context
terminations
situation.
of
and
analysis,
employment
are
or
connection
to
the
They fail to provide
demonstrate
relevant
to
how
the
those
plaintiffs’
Further, those previous instances of termination that
the plaintiffs seek to admit fail to show a connection between race
or age and employment decisions, or that those three employees
faced similar circumstances to those of the plaintiffs. Because of
that, such evidence is not sufficiently relevant so as to be
admitted.
This Court does, pursuant to Federal Rule of Evidence
801, permit the evidence of the statement by Lewis to plaintiff
Martha Wright,3 to the extent it is identified in the plaintiffs’
filing.
B.
ECF No. 81 *5.
Evidence Regarding Christine Repoley
In their motion in limine, the defendants argue that evidence
pertaining
to
the
testimony
of
Christine
Repoley
should
be
excluded.
In particular, the defendants allege that plaintiffs
wish to admit evidence that Lewis told Lori Adams and others in
2011 that Ms. Repoley would make a “good director” of the program
that plaintiff Ellison coordinated after he retired.
Because that
occurred over two years ago, and because such statements allegedly
are immaterial, the defendants seek to exclude that evidence.
3
The Court believes, from comments
statement was made to plaintiff Ellison.
11
at
trial,
that
the
The parties, however, did not further discuss the matter in
their memoranda filed in response to the pretrial order (ECF Nos.
81, 85, and 86).
Therefore, a ruling on the defendants’ motion in
limine concerning Christine Repoley was by letter deferred pending
further discussion with the parties.
Christine Repoley did not
testify at trial, and therefore the motion in limine relating to
her testimony is denied as moot.
III.
Conclusion
For the reasons set forth above, the defendants’ motion in
limine (ECF No. 64) is GRANTED. This evidence is determined not to
be relevant as required by Rule 401 of the Federal Rules of
Evidence, and even if it is relevant, it is inadmissible under Rule
403 as any probative value would be substantially outweighed by
unfair prejudice, confusing the issues, and undue delay.
Further,
concerning the defendants’ motion in limine that pertains to
Christine Repoley, that motion is DENIED AS MOOT.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
March 17, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
12
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