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Hamzah v. Woodman's Food Market Inc.

United States District Court, W.D. Wisconsin

October 12, 2016




         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.



         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 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 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 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.


         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 ...

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