United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE
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.
PLAINTIFF'S MOTIONS IN LIMINE
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.
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
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.
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
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.
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.
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
2: Preclude defendant from presenting “after
acquired” evidence of plaintiff's misconduct in the
presence of the jury.
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.
“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.
3: Bar defendant from presenting any witnesses at trial,
aside from Dale Martinson, Kristin Popp, Gabe Oruruo, Jacob
Bemis and Sharif Hamzah.
motion will be GRANTED as unopposed.
DEFENDANT'S MOTIONS IN LIMINE
1: Preclude plaintiff from introducing evidence concerning
his homelessness, financial circumstances, personal
circumstances following his discharge or the comparative
wealth of defendant's ...