Bell, Michael v. Stoughton Trailers, LLC

Filing 65

OPINION AND ORDER granting as unopposed ( 51 , 52 ) Motions in Limine; granting in part, denying in part, and reserving in part 58 Motion in Limine. Signed by District Judge William M. Conley on 1/15/2019. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MICHAEL W. BELL,

v.

Plaintiff,

OPINION AND ORDER
17-cv-580-wmc

STOUGHTON TRAILERS, LLC,
Defendant.

In an earlier opinion and order, this court denied defendant Stoughton Trailers,
LLC’s motion for summary judgment, allowing the case to proceed to a jury trial to begin
January 28, 2019. In advance of the final pretrial conference scheduled for Thursday,
January 17, 2019, the court issues the following opinion and order on the parties’ motions
in limine.

OPINION
I. Plaintiff’s Motions in Limine
Plaintiff filed two motions in limine, which cover overlapping concerns. In the first
motion, plaintiff seeks to exclude defendant from introducing any evidence, testimony or
argument as to plaintiff’s prior convictions for the purpose of impeachment under Federal
Rule of Evidence 609. (Dkt. #51.) In the second motion, plaintiff seeks to exclude any
evidence, testimony or argument concerning plaintiff’s criminal history, convictions,
arrests and/or alleged prior drug use under Rules 401 and 403. (Dkt. #52.) Defendant
did not file an opposition to either motion. As such, the court will GRANT both motions
as unopposed.

II. Defendant’s Motions in Limine
In its first motion in limine, defendant seeks to exclude any testimony relating to
other African-American employees who are no longer employed at Stoughton Trailers.
Specifically, defendant seeks to exclude plaintiff’s testimony that “at the time of plaintiff’s
discharge there were four other African American employees, who upon information and
belief subsequently left their employment because of the discriminatory work
environment,” as well as Melvin James’ testimony that when their supervisor Jeff Lind
began working, “there were at least six men classified as black working there. When I left
the company, there were zero maybe one.”

(Def.’s Mot. (dkt. #58) 1.)

Defendant

contends that this testimony should be excluded under Rules 602, 401 and 403 because
neither Bell nor James had personal knowledge of the reasons these African-American
employees left their employment with defendant or whether these employees were
supervised by Lind.
In response, plaintiff contends that the challenged testimony is specific to
individuals supervised by Lind, and, for support, points to a spreadsheet, which plaintiff
intends to offer into evidence, that shows a list of machine operators supervised by Jeff
Lind during the period November 1, 2013, through December 1, 2014, which include the
race of each operator, the date of hire, and if applicable, date and reason for termination.
(Pl.’s Opp’n (dkt. #63) 2 (discussing Pl.’s Ex. 30).) As such, plaintiff argues that the
testimony is not vague, and its value is more probative than prejudicial because “it shows
a pattern of race discrimination.” (Id.)

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The court will GRANT IN PART AND DENY IN PART defendant’s motion.
Plaintiff and other witnesses may testify to the fact that the number of African-American
employees supervised by Lind declined under his supervision, consistent with plaintiff’s
exhibit, assuming the requirements of Rule 1006 are met. However, plaintiff may not
solicit testimony by him or other witnesses that these individuals were discriminated
against based on their race, because such testimony would be speculative and not based on
personal knowledge, at least absent a proffer outside the jury’s presence that the witness
has personal knowledge of discrimination.

Moreover, plaintiff’s counsel should be

prepared to make such a proffer orally at the final pretrial conference, and if allowed to
proceed further, through witness testimony at a regular break or recess during trial so as
not to delay the orderly presentation of evidence to the jury.
Second, defendant seeks an order excluding former supervisor Dennis Peuvion’s
testimony about “unspecified veiled comments made by Jeff Lind.” (Def.’s Mot. (dkt.
#58) 2.) Defendant cites extensively to Peuvion’s testimony in which he acknowledged
that Lind “never used words that most people would consider derogatory in polite
conversation,” but that “it seemed apparent” to Peuvion that Lind judged his employees’
worth based on their race, though also acknowledging that he could not “recall the exact
words.” (Id. at 2-3 (citing Peuvion Dep. (dkt. #21) 37-39).) Defendant maintains that
this testimony’s probative value is substantially outweighed by a danger of unfair prejudice,
wasting time, and misleading the jury, and should be excluded under Rule 403.

In

response, plaintiff argues that Peuvion’s testimony is relevant to showing Lind had a racial
bias against African-American employees and that there is nothing vague about it; rather,

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Peuvion testified that it was “‘very clear’ from Lind’s comments that he viewed the worth
and abilities of African-American employees as less than other employees.” (Pl.’s Opp’n
(dkt. #63) 4.)
Because Peuvion resides outside of this court’s subpoena power, plaintiff intends to
offer his testimony through a narrative summary. (Dkt. #45.) Relevant to the present
motion, plaintiff seeks to provide the following statement:
During his employment at Stoughton Trailers[,] Peuvion had
conversations with Jeff Lind, who at that time was the
supervisor at the fabrication plant in Brodhead. During these
conversations[,] Lind made comments about the worth and
abilities of employees who were being sent to work at Brodhead
based on their race and/or level of education. Lind’s comments
made clear to Peuvion that he believed certain employees were
less able to do the work and that time should not be wasted on
them and those employees would be African American.
Peuvion understood Lind to be referring to racial
considerations when he made the comments about employees’
abilities.
(Peuvion Narrative Statement (dkt. #45) 4 (internal citations omitted).) This testimony
is arguably probative of Lind’s racial bias, and any prejudicial effect does not substantially
outweigh its probative value, particularly since proving racial bias seldom is possible
through overt statements of racism. See Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir.
2012) (“‘[S]moking gun’ evidence of discriminatory intent is hard to come by.” (citing
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) (“There will seldom
be ‘eyewitness' testimony as to the employer's mental processes.”))).

Still, while the

statement above accurately reflects portions of Peuvion’s deposition testimony, it is
incomplete. Any statement must also include Peuvion’s testimony that: (1) Lind did not
use any derogatory language or race-specific terms in his conversations with Peuvion; and

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(2) Peuvion cannot remember the specific words Lind used. With this addition, the
statement both accurately reflects Peuvion’s deposition testimony and also provides
sufficient information for the jury to determine its weight.

Furthermore, the court

recognizes the difficulty that the jury will have in weighing Peuvion’s credibility off a cold
reading and would consider subpoenaing his appearance to a location within 100 miles of
his home in Iowa for live video testimony at trial under Rule 45(c) provided defense counsel
makes all the arrangements, including timely service, appropriate location and
coordination with this court’s clerk’s office. As such, the court will GRANT IN PART
AND DENY IN PART this motion.
Defendant’s third motion in limine also concerns Peuvion’s testimony, seeking to
exclude any testimony that “‘several people’ made comments to him related to Bell that
‘would suggest that due to . . . his race and education they felt he wasn’t able to perform a
job anymore difficult than a sheer operator where you just do something really simple all
day.’” (Def.’s Mot. (dkt. #58) 5 (quoting Peuvion Dep. (dkt. #21) 37).) Plaintiff does
not oppose this motion. As such, the court will GRANT it.
In its fourth motion in limine, defendant further seeks to exclude Peuvion’s
testimony about another unnamed employee saying that “F[-ing] Ns are worthless.”
(Def.’s Mot. (dkt. #58) 5 (citing Peuvion Dep. (dkt. #21) 85-86 and 88).) In Peuvion’s
narrative statement, plaintiff seeks to include the following excerpt:
In the context of a discussion about the skills and abilities of
employees who worked in different areas of the plant in
Stoughton[,] an employee stated, “F-cking N’s are worthless”
in reference to Michael Bell.
(Peuvion Narrative Statement (dkt. #45) 4.)

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Plaintiff contends that this statement is relevant because it shows that defendant
(1) “tolerates race discrimination at its fabrication plant in Stoughton” and (2) “has not
undertaken effective measures to implement and enforce its alleged anti-discrimination
policy.” (Pl.’s Opp’n (dkt. #63) 5.) While this testimony may be relevant to plaintiff’s
request for punitive damages, Peuvion fails to identify the speaker, the context for the
statement, whether there were officers, managers or supervisors present, or whether, if
present, anyone called out the speaker, or otherwise addresses the alleged statement.
In short, there are too many unknowns for this statement to have any probative
value to the jury. As such, the court will GRANT this motion, excluding the testimony
under Rule 403. Plaintiff is directed to edit the narrative statement to remove it, and if
Peuvion were available to testify live, whether via video or in person, may only elicit such
testimony after laying a foundation establishing the presence of one of defendant’s agents
within earshot of this statement.
Finally, in its fifth motion in limine, defendant seeks to exclude testimony by Melvin
James, Jamie Nash, Chris Hoskins and Dennis Peuvion about Bell’s termination, since none
of these individuals have personal knowledge of the circumstances surrounding plaintiff’s
termination. In response, plaintiff describes the basis for each individual’s testimony. The
court agrees consideration of this challenge is inappropriate at a group level. Instead, the
court must consider proffered testimony for each witness individually to determine
whether it establishes that witness’s personal knowledge and is otherwise admissible.
First, with respect to Melvin James, plaintiff points to his deposition testimony that
Erbe -- Bell’s co-worker on the job that produced the defective parts for which Bell was

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purportedly fired -- told James that it was “his mistake,” but they terminated Bell for it.
(Pl.’s Opp’n (dkt. #63) 6 (quoting James Dep. (dkt. #19) 20).) Recognizing that this
testimony constitutes hearsay, plaintiff argues that it is nonetheless admissible as a
statement of a party opponent under Rule 801(d)(2)(D). Rule 801(d)(2)(D) permits
admission of a statement that was “offered against an opposing party and . . . was made by
the party’s agent or employee on a matter within the scope of that relationship and while it
existed.” Fed. R. Evid. 801(d)(2)(D) (emphasis added). Part of Erbe’s statement to James
immediately following Bell’s termination would appear to fall within that exception to
hearsay. However, the court will reserve its ruling pending argument at the final pretrial
conference to provide plaintiff with an opportunity to proffer specific bases for contending
that both clauses of Erbe’s statement falls within “a matter within the scope of [his]
employment relationship” with defendant, and to provide defendant with an opportunity
to challenge the application of this exclusion. 1 Plaintiff also seeks to introduce James’
testimony that plant manager Spangler told him Bell was fired because “they wanted to
make an example of someone and they used Mr. Bell.” (Pl.’s Opp’n (dkt. #63) 8 (citing
James Dep. 50, 62-64).) This testimony appears to fall squarely within the statement of a
party opponent exclusion to hearsay. Nonetheless, the court will reserve on this ruling for
the same reason, as well as to address its relevance.
Second, as for Jamie Nash, plaintiff seeks to introduce testimony that Erbe told him
after Bell was fired, “I suppose everybody’s going to hate me now because I got Mike [Bell]

Plaintiff also points to Federal Rules of Evidence 613 -- allowing introduction of witness’s prior
statement for impeachment purposes -- and the exceptions to hearsay under Rules 803(1) and (3)
for support, but the application of these rules seems more dubious.

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fired.” (Pl.’s Opp’n (dkt. #63) 6 (quoting Nash Dep. (dkt. #18) 51).) The court will
reserve on ruling on this portion of the motion as well, pending argument at the final
pretrial conference as to the applicability of Rule 801(d)(2)(D).
Third, plaintiff seeks to introduce testimony from Chris Hoskins, a fellow employee,
that he observed Erbe and Bell working that day and later examined the parts himself and
confirmed that the errors were on Erbe’s side.

Hoskins will also testify that in his

experience, he has never been held responsible for any mistakes made by his partner in
manufacturing parts. All of this testimony falls within his personal knowledge and is
material to whether defendant had a legitimate, non-discriminatory reason for terminating
Bell’s employment.
Finally, plaintiff seeks to introduce testimony from Peuvion about Stoughton
Trailers’ practice with respect to defective parts, and specifically, that no operator had ever
been held responsible for another employee’s mistake. This, too, falls within his personal
knowledge and is relevant to whether defendant had a legitimate, non-discriminatory basis
for terminating Bell.
As such, the court will DENY IN PART AND RESERVE IN PART as to defendant’s
fifth motion in limine.

ORDER
IT IS ORDERED that:
1) Plaintiff’s motions in limine (dkt. ##51, 52) are GRANTED as unopposed.

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2) Defendant’s motions in limine (dkt. #58) are GRANTED IN PART, DENIED
IN PART AND RESERVED IN PART as set forth above.
Entered this 15th day of January, 2019.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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