Free v. Federal Express Corporation, et al., No. 2:2015cv02404 - Document 108 (W.D. Tenn. 2019)
Court Description: ORDER granting in part and denying in part 85 Motion in Limine; granting 86 Motion in Limine; granting 87 Motion in Limine; denying 88 Motion in Limine; granting 89 Motion in Limine; granting in part and denying in part 90 Motion in Limine; denying 91 Motion in Limine. Signed by Judge Samuel H. Mays, Jr. on 1/25/2019.
Download PDF
<![CDATA[
o introduce any lawsuit.” (ECF No. 96 at 700.) testimony regarding Free’s prior discrimination Free’s Third Motion in Limine is therefore GRANTED. 6 II. FedEx’s Motions in Limine A. First: “Other Acts” 3 FedEx asks the Court to exclude “other acts” evidence, which, “[i]n the employment discrimination context, . . . consists of testimony or other evidence of discrimination by the employer against non-party employees.” Griffin, 689 F.3d at 598. Specifically, FedEx seeks to exclude testimony and other evidence about: (1) Cheri Ann Huston’s non-selection for a GOC manager position; (2) Amy Lindsey’s non-selection for a GOC manager position; (3) Angie Pate’s discussions about applying for a manager position; (4) Ronda Doyle’s demotion; and (5) Nancy Janneck’s application for an AOC position. (ECF No. 85-1 at 1466.) FedEx also seeks to exclude, more broadly, testimony and other evidence regarding employees’ opinions about FedEx’s general treatment of female employees and/or employees who complain of discrimination. (Id. at 1465.) In her response, Free says she does not intend to offer testimony from Hutson, Lindsey, or Pate, or about any employee’s claims of retaliation or discrimination. (ECF No. 93 at 1673.) She says she will introduce testimony from Doyle and Janneck to 3 The parties refer to “me too” and “other acts” evidence interchangeably. Case law uses both terms to mean the same thing. See Griffin v. Finkbeiner, 689 F.3d 584, 597 (6th Cir. 2012) (“This challenge requires us to enter the unsettled evidentiary terrain of “other acts” or “me too” evidence.”). The Court will use “other acts.” 7 show “a culture of workplace discrimination, Mr. Tronsor’s influence and control over the GOC hiring process, and [Doyle and Janneck’s] personal experiences in the Memphis GOC department.” (Id.) More particularly, Free says that she does not intend to introduce evidence that Doyle’s demotion was a result of sex discrimination or that Janneck experienced sex discrimination when she sought an AOC position. (Id. at 1673, 1675.) Free, in effect, largely concedes that she will not offer the “other acts” evidence FedEx’s First Motion in Limine seeks to exclude. There are, however, two pieces of evidence Free plans to introduce that FedEx’s First Motion in Limine may reach: (1) Doyle’s testimony about “a lack of females in the GOC department, failure to follow policies[,] and a discriminatory culture resulting from Tronsor’s influence and control,” which includes testimony Janneck’s about Tronsor’s deposition discriminatory testimony about harbors a discriminatory environment. her remarks; impression and (2) that GOC (ECF No. 93 at 1673-75). The Court cannot determine at this time whether Doyle’s testimony will constitute impermissible “other acts” evidence. “The Supreme Court has instructed lower courts not to apply a per se rule excluding ‘other acts’ testimony from non-parties alleging discrimination by supervisors who did not play a role in the challenged decision.” Griffin, 8 689 F.3d at 598 (citing Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 380-81, 387 (2008)). “Whether such evidence is relevant is a case-by-case determination that ‘depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.’” Id. (quoting Sprint, 552 U.S. at 388). The Court does not know exactly what Doyle will say and therefore cannot rule on her testimony’s admissibility. represents Doyle’s testimony will The three subjects Free address do not appear to implicate “other acts” evidence as they are not necessarily about sex discrimination Doyle suffered at FedEx. believes Doyle’s testimony at trial To the extent FedEx amounts “other acts” evidence, FedEx may object then. to impermissible A blanket exclusion of “other acts” evidence, however, is not appropriate. See id. at 599 (“[T]he court should consider the admissibility of evidence regarding each employee individually rather than issue a blanket ruling as to all proposed ‘other acts’ evidence.”). As for testimony Janneck, recounting Free her discriminatory atmosphere. plans to impression introduce that her Memphis deposition GOC had a In her testimony, Janneck said of her time at Memphis GOC: There’s just an air that, you know, why haven’t you already quit? Isn’t somebody taking care of you? Just that viewpoint that women shouldn’t necessarily be in the area. That’s just like a – like I said, it’s an air that you feel when you walk into a room. . . . 9 I think that’s felt being in there based on women wouldn’t 93 at 1675.) a cultural difference that I Memphis whenever I was down – based on a stereotype that typically be there. (ECF No. Free argues that this testimony is “directly relevant to the culture of Memphis GOC and how women were perceived in Memphis.” (ECF No. 93 at 1675.) FedEx contends that “opinions of how . . . FedEx generally treats female employees” should be excluded under Rules 402, 403, 602 and 701. Janneck’s deposition (ECF No. 85-1 at 1473.) testimony is vague, conclusory, and apparently not based on observed discriminatory acts, such as innappropriate statements. weak circumstantial It is not, however, irrelevant. evidence discriminatory atmosphere, evidence individualized of suggesting which “may the serve existence It is of a as circumstantial discrimination.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 356 (6th Cir. 1998). Janneck’s impression makes it slightly more likely than not that GOC did have a discriminatory atmosphere, which makes it slightly more likely than not that Free was discriminated against when she was denied the GOC manager position. The Court does not find that this testimony’s probative value is substantially outweighed by the risk of unfair prejudice. Although the sources of Janneck’s impressions are not specified, her testimony is based on firsthand perceptions she had while physically present at Memphis GOC and is 10 therefore based on personal knowledge. And Janneck’s testimony is not improper opinion testimony because: (1) it is based on her own experience at GOC; (2) it can help the jury determine whether there is sufficient circumstantial evidence to prove that Free suffered sex discrimination; and (3) it is not based on scientific, technical, or other specialized knowledge. FedEx’s First Motion in Limine is GRANTED insofar as it seeks to exclude evidence about: (1) Cheri Ann Huston’s non-selection for a GOC manager position; (2) Amy Lindsey’s non-selection for a GOC manager position; and (3) Angie Pate’s discussions about applying for a manager position. It is also GRANTED insofar as it seeks to preclude testimony by Doyle that her demotion was a result of sex discrimination and testimony by Janneck that she experienced sex discrimination when she applied for an AOC position. It is DENIED insofar as it seeks a blanket exclusion of “other acts” evidence. It is also DENIED insofar as it seeks to exclude Janneck’s deposition testimony about an air of discrimination against women at GOC. B. FedEx Second: Free’s Retaliation Claim and Non-Selection for the July 2013 GOC Manager Position asks the Court to exclude any evidence of Free’s retaliation claim and any evidence about her application and nonselection for the July 2013 GOC Manager position. at 1497.) (ECF No. 86-1 In her response, Free says she does not intend to offer 11 any such evidence. (ECF No. 93 at 1676-77.) FedEx’s Second Motion in Limine is therefore GRANTED. C. Third: History of Excluding Women from Management in GOC FedEx asks the Court to exclude evidence of an alleged history of excluding women from management in GOC. (ECF No.90-1 at 1578.) In particular, FedEx seeks to exclude evidence of hiring outcomes for nine GOC Manager job postings, only one of which was filled by a woman. 4 (Id. at 1576-78) FedEx also asks the Court to exclude evidence from current or former FedEx employees about hiring decision practices as they relate to women. (Id.) FedEx contends this evidence is irrelevant or unfairly prejudicial. Free contends that “[t]he miniscule number of females in management positions, [FedEx’s] knowledge of this issue, [FedEx’s] policies designed to rectify these issues, and the perpetuation of underutilization of women in the department are circumstantial evidence that [FedEx] intended to discriminate against Ms. Free.” (ECF No. 93 at 1679.) Free “intends to introduce evidence that [FedEx’s] failure to follow its internal policies and manipulation of the hiring process in favor of Rudy Cruz, along with the history of past hiring decisions, have the cumulative effect of the perpetuation of an all-male environment, which existed at the time of the March 2013 GOC Manager hiring decision.” 4 (Id.) FedEx references ten job postings, but one is the one at issue in this case. 12 First, past hiring decisions related to other GOC Manager position job postings should be excluded. Although “pattern-or- practice evidence may be relevant to proving an otherwise-viable individual claim for disparate treatment,” Bacon v. Honda of America Mfg., Inc., 370 F.3d 565, 575 (6th Cir. 2004), inclusion of such evidence is not always appropriate. FedEx contends: “[A]ll hiring decisions [that FedEx expects Free to try to introduce] were made by a variety of decisionmakers, including many who did not participate in the hiring decision at issue in this lawsuit. Further, without information about the qualifications of the applicants, these facts shed no light on whether FedEx intended to discriminate against Free because she is female.” (ECF No. 90-1 at 1581.) FedEx’s argument is, for the most part, well-taken. A history of a lack of female GOC managers has some relevance to Free’s claim; Free’s claim would be weaker if GOC’s management included more women. But the issues identified by FedEx make this history’s probative value quite weak. It is substantially outweighed by the potential for unfair prejudice, for undue delay, and to confuse the issues. If the history of past GOC manager employment decisions were permitted at trial, the Court would afford FedEx the opportunity to put on proof about how those hiring processes differed from the one at issue 13 in this case and about the qualifications of the applicants. diverted into multiple alleged discrimination. The jury’s attention would be mini-trials about other instances of Free does not cite, and the Court has not found, any case where similar historical failure-to-hire evidence was permitted to support a discriminatory treatment claim. Second, evidence of FedEx’s failure to follow its internal policies in evaluating Free’s candidacy for the 2013 GOC Manager position, including any manipulation of the hiring process in favor of Rudy Cruz, should not be excluded. The Sixth Circuit has held that a jury is entitled to consider the failure of employers to follow their internal policies as evidence of pretext. See Coburn v. Rockwell Automation, Inc., 238 F. App’x 112, 126 (6th Cir. 2007); Deboer v. Musashi Auto Parts, Inc., 124 F. App’x 387, 394 (6th Cir. 2005). FedEx’s Third Motion in Limine is GRANTED insofar as it seeks to exclude evidence of GOC manager hiring outcomes other than Free’s in March 2013. It is DENIED to the extent it seeks to exclude FedEx’s failure to follow internal policies related to Free’s candidacy for the March 2013 GOC Manager position. D. FedEx Fourth: Certain Statements Made by Paul Tronsor evidence asks about the Court certain to exclude statements irrelevant or unfairly prejudicial. 14 any made testimony by Paul (ECF No. 91-1.) or other Tronsor as The Court has ruled that many of the remarks cited by FedEx, although not “conclusive proof” of discrimination, “‘add color’ to the employer’s decision-making process and to the influences behind the actions taken with respect to the individual plaintiff.” (ECF No. 74 at 1425 (quoting Steeg v. Vilsack, No. 5:13-cv-00086, 2016 WL 6465915, at *2 (W.D. Ky. Oct. 28, 2016)).) Those statements were among the pieces of evidence the Court concluded were, when taken together, enough for a jury to find that FedEx’s proffered reason for failing to hire Free as a GOC manager was pretextual. (Id.) That conclusion applies equally to the additional comments FedEx cites. All the comments cited by FedEx are relevant. FedEx makes no argument as to why their inclusion at trial would be unfairly prejudicial. FedEx’s Fourth Motion in Limine is DENIED. III. Conclusion For the foregoing reasons, the parties’ motions are GRANTED IN PART and DENIED IN PART. So ordered this 25th day of January, 2019. /s/ Samuel H. Mays, Jr._____ SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE 15
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
