Hamzah, Sharif v. Woodmans Food Market Inc.

Filing 128

OPINIONS AND ORDER Re: 90 Plaintiff's Motions in Limine and 96 Defendant's Motions in Limine. Signed by District Judge William M. Conley on 10/12/2016. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

SHARIF HAMZAH,

Plaintiff,

OPINION AND ORDER

v.
13-cv-491-wmc
WOODMAN’S FOOD MARKET, INC.,
Defendant.

This matter is set for trial commencing with voir dire on Monday, October 17,
2016 at 9:00 AM and opening statements on Thursday, October 20, 2016 at 8:30 AM.
In advance of today’s final pretrial conference scheduled for August 2, 2016 at 4:00 PM,
the court issues the following opinion and order on the parties’ motions in limine.

OPINION
I.

PLAINTIFF’S MOTIONS IN LIMINE

MIL No. 1: Preclude defendant from presenting evidence of any discipline that
plaintiff received while employed by defendant, aside from the
discipline he received on November 2, 2010; May 12, 2011; and July
28, 2011.
Plaintiff argues that because Dale Martinson, defendant’s store manager,
terminated plaintiff based only on the “Group 1” violations he had received on
November 2, May 12, and July 28, defendant should be precluded from introducing
evidence of other disciplinary violations issued against plaintiff. According to plaintiff,
because Martinson testified at his deposition that he did not consider or rely on any

other violations, plaintiff’s general disciplinary history would be improper character
evidence, irrelevant and unfairly prejudicial.
Defendant agrees that it would be improper to introduce plaintiff’s disciplinary
history for the purpose of suggesting that plaintiff’s termination was justified or that he
likely engaged in the conduct that led to the November, May and July discipline.
Defendant argues, however, that plaintiff’s disciplinary history is relevant to the “cat’s
paw” theory plaintiff is pursuing in this case -- that his immediate supervisors Jacob
Bemis and Gabe Oruruo intended to discriminate against him on the basis of his race and
that their discriminatory actions were a causal factor in Martinson’s decision to terminate
him. (See Summary Judgment Opinion (dkt. #8) pp. 13-15); see also Staub v. Proctor
Hosp., 562 U.S. 411, 421 (2011) (explaining elements of “cat’s paw” discrimination
theory). Defendant argues that plaintiff’s prior discipline is relevant to rebut plaintiff’s
claim that Bemis and Oruruo were biased against him because of his race or ethnicity, as
his prior discipline shows that Bemis and Oruruo had legitimate reasons to dislike
working with him.
The court agrees with defendant, but only to the extent there is evidence that
Bemis and Oruruo were involved in, or aware of and affected by, the prior disciplinary
incidents. In particular, defendant may introduce evidence that Bemis and Oruruo were
involved in prior incidents with plaintiff that resulted in his being disciplined, and how
those incidents affected their perception of plaintiff’s work performance. Such evidence
would be relevant to rebut plaintiff’s claim that Bemis and Oruruo’s reports to Martinson
were motivated by discriminatory animus, as such evidence would support defendant’s
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defense that Bemis and Oruruo were motivated by legitimate, non-discriminatory
reasons. That being said, defendant may not introduce evidence of disciplinary violations
if there is no evidence that Bemis and/or Oruruo were aware of the disciplinary violation,
nor of the specifics of any particular violation unless they were aware of the underlying
events, at the time they reported concerns about plaintiff to Martinson.
Plaintiff’s proposed jury instructions and verdict form suggest that he may only be
pursuing a theory that Bemis acted with discriminatory intent, not Oruruo. If that is the
case, then the only disciplinary incidents that would be relevant would be incidents in
which Bemis was involved, or about which he was aware at the time he complained about
plaintiff to Martinson. Plaintiff should be prepared to clarify at the final pretrial
conference whether he still intends to argue that Oruruo held discriminatory
animus.
Defendant may also refer to plaintiff’s disciplinary history for impeachment
purposes. For example, plaintiff suggested at his deposition at one point that he was a
“model employee.” (Dkt. #60 at 62). If plaintiff offers evidence at trial, or otherwise
suggests that Hamzah had few or no disciplinary problems at Woodman’s, defendant
may question plaintiff about his full disciplinary history to impeach his testimony.
Accordingly, this motion is GRANTED IN PART and DENIED IN PART.
Defendant may introduce evidence of plaintiff’s various disciplinary violations: (1) to
rebut the claim that Bemis or Oruruo were motivated by discriminatory animus; and (2)
for impeachment purposes should plaintiff open the door as to the quality of his job
performance generally.

Regardless, defendant may not argue that plaintiff’s prior
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disciplinary violations made it more likely that he committed the infractions that
Martinson relied on when terminating him.
MIL No. 2: Preclude defendant from presenting “after acquired” evidence of
plaintiff’s misconduct in the presence of the jury.
Plaintiff argues that defendant should be prohibited from introducing evidence
that after he was fired, he said to his supervisor: “I should stab you, but I’m too smart
for that.” Plaintiff argues that such evidence is irrelevant to the liability phase, and that
during the damages phase, it would be relevant only to issues that must be decided by
the court. In response, defendant agrees that this statement should not be introduced
during the liability phase of trial, and makes no argument as to the possible relevance of
the statement during the damages stage.

Nor is the court aware of any arguable

relevance.
While “after-acquired evidence” may be used to limit a plaintiff’s available
remedies in an employment case, provided the defendant can show that “the wrongdoing
was of such severity that the employee in fact would have been terminated on those
grounds alone if the employer had known of it at the time of discharge,” McKennon v.
Nashville Banner Publication Co., 513 U.S. 352, 362-63 (1995), that is not a jury question.
Sellers v. Mineta, 358 F.3d 1058, 1065, 1068 (8th Cir. 2004) (explaining that court
should conduct fact finding on this issue). Because this is a Title VII case, the only
remedy issue to be decided by the jury is compensatory damages, and defendant has not
argued that any after-acquired evidence would be relevant to compensatory damages. See

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Franzen v. Ellis Corp., 543 F.3d 420, 425 (7th Cir. 2008) (back pay and front pay are
equitable remedies in Title VII cases). Accordingly, this motion will be GRANTED.
MIL No. 3: Bar defendant from presenting any witnesses at trial, aside from Dale
Martinson, Kristin Popp, Gabe Oruruo, Jacob Bemis and Sharif
Hamzah.
This motion will be GRANTED as unopposed.

II.

DEFENDANT’S MOTIONS IN LIMINE

MIL No. 1: Preclude plaintiff from introducing evidence concerning his
homelessness, financial circumstances, personal circumstances
following his discharge or the comparative wealth of defendant’s and
plaintiff at any time during the liability phase of trial.
Defendant moves to preclude plaintiff from introducing evidence during the
liability phase of trial that he was unemployed or homeless following his termination, on
the grounds that these facts are irrelevant to plaintiff’s discrimination claim and would be
unduly prejudicial. Additionally, defendant moves to preclude plaintiff from introducing
evidence or making arguments regarding the relative wealth of the parties.
Plaintiff makes no argument as to the relevance of the defendants’ wealth to any
issue in this case, nor could he since punitive damages are unavailable.

As a result,

plaintiff will be precluded from introducing evidence of the defendant’s or plaintiff’s
wealth or for that matter the parties’ relative wealth.
With respect to plaintiff’s homelessness and/or unemployment, plaintiff argues
that this evidence may be relevant to explain why his testimony during his deposition
contradicts statements he will make at trial. Specifically, plaintiff claims that because of
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his homelessness, he was staying with a friend and only got 1-2 hours of sleep the night
before the deposition. This is not sufficient reason to permit plaintiff to testify regarding
his homelessness.
To the extent plaintiff gave a materially false testimony at his deposition,
plaintiff’s counsel should consider his ethical duty of candor to opposing counsel and the
court, rather than spring them at trial. Of course, even if this ethical obligation has been
discharged, a party may testify in a manner that is arguably confusing or contradicts his
deposition testimony. Fed. R. Civ. P. 26(e), Advisory Committee Note. If impeached for
doing so, he may briefly explain that sleep deprivation may have contributed to this, since
he was operating on only 1-2 hours of sleep at the time as a result of his living at a
friend’s house that he generally could not access until 2:00 a.m. However, he may not
elaborate further as to his homelessness generally; nor may he discuss his unemployed
status during the liability phase of trial.

Accordingly, defendants’ motion will be

GRANTED IN PART and DENIED IN PART.

MIL No. 2: Preclude plaintiff from referring to the progressive discipline policy in
Woodman’s General Policies Manual as “mandatory.”
Defendant moves to preclude plaintiff from arguing that defendant was required to
follow the progressive discipline policy in the employee manual before terminating him.
This motion will be GRANTED.
Plaintiff may argue that a failure by Bemis or Oruruo to follow guidelines of the
employee manual is evidence of their discriminatory intent, as well as that Martinson’s
failure to follow the progressive discipline policy is evidence his termination decision was
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based solely on information provided by Bemis and Oruruo. Plaintiff may not, however,
argue that Martinson was required by the Title VII, other law or the manual itself to
conduct any investigation or follow certain progressive disciplinary steps.
Plaintiff cites no legal authority, nor any language from the manual itself, that
would support such an argument. Moreover, that argument would be certain to confuse
the jury, by causing it to conclude incorrectly that defendant is liable under Title VII
simply for failing to comply with certain provisions of the employee manual.
As the court has explained multiple times, plaintiff may not proceed on a breach
of contract claim in this case.

Plaintiff plead and may only proceed on a Title VII

discrimination claim that his termination was motivated by discriminatory animus, not
for failure to follow its employee manual.
MIL No. 3: Preclude plaintiff from testifying that an unidentified declarant
informed him that he did not need to list criminal convictions that
occurred more than 10 years ago on his employment application.
Plaintiff testified at his deposition that the reason he marked “no” in response to
the question on his employment application concerning whether he had ever been
convicted of anything other than a minor traffic violation was because someone at
Woodman’s told him that it would only look at convictions in the past 10 years.
Defendant has moved to preclude plaintiff’s explanation on the grounds that the
statement by the unidentified person (apparently a Woodman’s employee) is hearsay.
The motion will be DENIED, however, because the statement is not being offered to
prove the truth of the matter asserted. Plaintiff does not intend to rely on the statement
for the purpose of establishing that defendant, in fact, is not concerned with criminal
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convictions more than 10 years old. Instead, plaintiff would rely on the statement to
explain his own state of mind and an explanation for his actions.

Accordingly, the

statement is not hearsay, nor will it not be excluded on that basis.
MIL No. 4: Permit defendant to cross-examine plaintiff concerning his failure to
disclose criminal convictions on his employment application.
Defendant moves under Fed. R. Evid. 608(b) for an order permitting it to crossexamine plaintiff regarding his failure to disclose his criminal convictions on his
employment application. Defendant argues that this evidence is probative of plaintiff’s
character for truthfulness or untruthfulness. In response, plaintiff does not object to
limited cross-examination regarding his employment application. Plaintiff objects under
Rule 609(a) and (b), however, to any discussion of the criminal convictions that he
omitted on the application that were not felonies and/or are more than 10 years old and
are not probative of plaintiff’s truthfulness.
Defendant’s motion will be GRANTED, with limitations. Defendant may briefly
cross-examine plaintiff regarding his failure to disclose criminal convictions on his
employment application. Specifically, defendant may ask plaintiff whether he omitted
any convictions and the number of convictions he omitted.

Defendant may not,

however, seek to elicit any details regarding any of the criminal convictions, including
their formal names or descriptions, unless plaintiff denies omitting some or all of htem,
and then only to impeach.

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MIL No. 5: Preclude plaintiff from introducing Jacob Bemis’s
convictions and employment application into evidence.

criminal

Defendant moves to preclude plaintiff from introducing evidence regarding
Bemis’s criminal convictions for disorderly conduct, on the grounds that the convictions
are irrelevant to Bemis’s character for truthfulness or untruthfulness.

Defendant

concedes that plaintiff should be permitted to cross-examine Bemis regarding his failure
to disclose one of his disorderly conduct convictions on his employment application, but
argues that plaintiff should be precluded from introducing Bemis’s employment
application, or evidence of the conviction itself, into evidence.
This motion will be GRANTED, again with clarification. Plaintiff may not refer
to Bemis’s 2010 conviction at all, as it is irrelevant to his character for truthfulness or
untruthfulness because it occurred after he completed his employment application.
Plaintiff may briefly cross-examine Bemis regarding his failure to disclose a 2003 criminal
conviction on his employment application, but may not seek to elicit details regarding
the conviction itself. Additionally, although plaintiff may refer to Bemis’s employment
application, or evidence of his 2003 criminal conviction, to refresh Bemis’s recollection or
impeach him with prior inconsistent statements, as appropriate, such evidence will not be
admitted as exhibits to be provided to the jury.
MIL No. 6: Preclude plaintiff from cross-examining Jacob Bemis concerning his
disciplinary file, or otherwise referring to or seeking to introduce
evidence from Bemis’s disciplinary file.
Defendant moves to preclude plaintiff from introducing any evidence regarding
Bemis’s disciplinary file on the grounds that it would be irrelevant, unfairly prejudicial
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and would confuse or mislead the jury. In particular, defendant identifies three specific
instances in Bemis’s file for exclusion: (1) Bemis’s discipline for an inappropriate remark
to a pregnant customer; (2) Bemis’s attendance record; and (3) Bemis’s termination for
soliciting and accepting tips from customers for his own personal use.
Plaintiff makes no argument as to how the evidence in categories 1 and 2 would
be relevant to his cats paw discrimination claim, so they will be excluded. With respect
to the evidence relating to Bemis’s termination, however, plaintiff argues that the
evidence should be admissible to show: (1) Bemis’s motive to lie to Martinson about
plaintiff’s job performance; and (2) Bemis’s character for truthfulness or untruthfulness.
This motion will be GRANTED IN PART and DENIED IN PART. The court will
exclude evidence relating to (1) Bemis’s inappropriate remark to a pregnant customer;
and (2) his attendance.

In each instance, this evidence is irrelevant to plaintiff’s

discrimination claim. The court will, however, permit plaintiff to cross-examine Bemis
regarding his termination for acceptance and solicitation of tips from customers in
accordance with Rule 608(b). The court agrees with plaintiff that Bemis’s solicitation
and acceptance of tips from customers for his own personal use -- contrary to defendant’s
policies that characterize any customer tip as belonging to the company -- is at least
arguably probative of his character for truthfulness and untruthfulness.
Thus, plaintiff may ask Bemis questions about the grounds for his termination, as
well as whether Bemis admitted or denied accepting a customer tip when accused. In
accordance with Rule 608(b)(2), however, plaintiff may only cross-examine Martinson
regarding the circumstances of Bemis’s termination if Martinson or other witness opens the
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door by testifying about Bemis’s character. Plaintiff will not be permitted to introduce to
the jury any documentary evidence from Bemis’s disciplinary file or refer to specific
documents, except to refresh a witness’s recollection, for proper impeachment or for a
prior inconsistent statement.
MIL No. 7: Preclude plaintiff from referring to “video footage” of July 28, 2011.
Plaintiff intends to argue that Martinson could have, but did not, review video
tape evidence regarding the incident that formed the basis of the July 28, 2011, Group 1
violation, which proceeded plaintiff’s termination. Defendant argues that any reference
to video footage should be precluded because plaintiff has no proof (1) that this video
tape evidence ever existed; or (2) what the video would have shown even if it did exist.
In response, plaintiff argues that he should be permitted to question Martinson about the
potential video, because Martinson conceded at his deposition that there is a video
camera that covers the parcel area and would have likely shown the incident.
The motion will be DENIED, but plaintiff’s questions regarding video footage will
be limited. If plaintiff is able to lay a foundation as to his knowledge of both the video’s
existence, and field of view, then plaintiff may engage in limited questions of Martinson
regarding: (1) whether a camera covered the area of the incident; and (2) whether he
reviewed the video footage before issuing the Group 1 violation and terminating
plaintiff’s employment.

This evidence is relevant to plaintiff’s cat’s paw theory, as

plaintiff must not only prove that Bemis or Oruruo had discriminatory animus, but that
their discriminatory animus -- and not some legitimate reason -- motivated Martinson’s
termination of plaintiff.
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Defendant can obviously rebut plaintiff’s cat’s paw theory in part by showing that
Martinson investigated plaintiff’s alleged misconduct and decided -- independent of
Bemis’s or Oruruo’s report and recommendation -- that plaintiff’s termination was
entirely justified.

See Staub v. Proctor Hosp., 562 U.S. 411, 421 (2011) (“[I]f the

employer’s investigation results in an adverse action for reasons unrelated to the
supervisor’s original biased action . . . then the employer will not be liable.”). Thus,
plaintiff should be permitted to question Martinson about the extent to which he
investigated the allegations against plaintiff before he was terminated. Plaintiff may not,
however, suggest that Martinson was required to review the video footage, nor suggest or
argue to the jury that because Martinson failed to review the video footage, the footage
likely supported plaintiff’s version of events.
MIL No. 8: Preclude plaintiff from introducing into evidence or referring to any
document, witness, or information that was not disclosed prior to the
close of discovery.
Defendant has moved to preclude plaintiff from relying on any witnesses or
documents not disclosed before the close of discovery. Plaintiff responds that he does
not intend to call any undisclosed witnesses, but that he may supplement his discovery
responses with documents for which he is still searching. In particular, plaintiff says that
at the time discovery closed, he was still searching for documents relating to damages,
including rejection letters from employment applications, tax returns and a letter showing
the payout he received from defendant’s employee stock ownership plan. He states that
as soon as he gathers these documents, he will provide them to defendant.

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The motion will be GRANTED IN PART and DENIED IN PART. The motion
will certainly be granted with respect to the issue of undisclosed witnesses. With respect
to documents, the court will deny defendant’s broad motion to preclude any documents
undisclosed at this point.

If plaintiff has since provided defendant with additional

documents to which defendant objects, defendant may raise an objection either by
motion or during the final pretrial conference regarding the specific document, explaining
how it has been prejudiced by the untimely disclosure. The court will then consider
whether that document should be excluded in accordance with Fed. R. Civ. P. 37(c). Of
course, plaintiff is highly unlikely to be allowed to introduce any material that he has not
yet produced or otherwise made known to defendants consistent with his obligations
under Fed. R. Civ. P. 26(a), 34 and 26(e)(1)(A).
ORDER
IT IS ORDERED that:
1.

Plaintiff’s motions in limine (dkt. #90) are resolved as follows:




Motion in limine no. 2 is GRANTED.


2.

Motion in limine no. 1 is GRANTED IN PART and DENIED IN
PART, as explained above, and plaintiff should be prepared to
clarify at the final pretrial conference whether he still intends to
argue that Oruruo held discriminatory animus.

Motion in limine no. 3 is GRANTED.

Defendant’s motions in limine (dkt. #96) are resolved as follows:


Motion in limine no. 1 is GRANTED IN PART and DENIED IN
PART, as explained above.



Motion in limine no. 2 is GRANTED.
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

Motion in limine no. 3 is DENIED.



Motion in limine no. 4 is GRANTED, with limitations explained
above.



Motion in limine no. 5 is GRANTED, with clarification provided
above.



Motion in limine no. 6 is GRANTED IN PART and DENIED IN
PART, as explained above.



Motion in limine no. 7 is DENIED, with limitations provided above.



Motion in limine no. 8 is GRANTED IN PART and DENIED IN
PART, as explained above.

Entered this 12th day of October, 2016.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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