United States District Court, E.D. Wisconsin
ORDER ON MOTIONS IN LIMINE
Joseph United States Magistrate Judge
trial in this case is scheduled for January 16, 2018. Before
me are five outstanding motions in limine which were
not resolved at the final pretrial hearing. Baines has also
moved for reconsideration of my ruling denying her motion
in limine No. 5. I will address each of these
motions in turn.
of Baines' Work Performance and Disciplinary Actions
(Baines' Motion No. 2)
filed a motion in limine seeking an order excluding
evidence of her work performance and disciplinary action
taken against her during her employment with Walgreens from
2005 to 2008, including Exhibit 102 and testimony regarding
Pramod Allani's sending Baines home from work or
otherwise disciplining her. (Docket # 96.)
agrees, as a general matter, that Baines' past work
performance and discipline are not relevant and evidence
regarding those subjects should not be admitted at trial.
(Docket # 112.) However, Walgreens argues that evidence
relating to the basis for Allani's statement to Hannah
Ruehs that he would not hire Baines is relevant.
Specifically, Walgreens argues that a conversation occurred
between Allani and Ruehs in which Ruehs asked Allani whether
he would rehire Baines and Allani stated that he would not.
Baines contends that this conversation did not occur;
however, assuming the conversation did occur, both parties
agree that Allani's motivation for not recommending
Baines for rehire was not tainted by retaliation. (Docket #
96 at 2, Docket # 112 at 1.) Walgreens argues that because
Baines contends this conversation never occurred, this places
Allani's and Ruehs' credibility at issue and
Walgreens has the right to introduce evidence supporting the
basis for Allani's opinion to bolster their believability
that the conversation occurred.
parties agree that Allani's motive is not at issue.
Rather, they dispute whether the conversation occurred at
all. Walgreens concedes that Baines' past work
performance and discipline are not relevant in this case.
Additionally, Walgreens does not contend that Allani
explained to Ruehs his rationale for not recommending Baines
for rehire. To allow Allani to testify that he had a negative
impression of working with Baines as it related to her being
a team player and servicing customers (Docket # 112 at 1-2),
or that he sent her home, allows Walgreens to back door in
evidence of Baines' past work performance and discipline.
Walgreens does not explain how this evidence would tend to
show that the contested conversation occurred. For these
reasons, Baines' motion in limine No. 2 is
Series of Emails from June 2008 Between Baines and Smith
Regarding Baines' Transfer Request (Baines' Motion
moves to exclude Exhibit 103 from being introduced at trial.
(Docket # 97.)Exhibit 103 is a series of emails from June
2008 between Baines and Pharmacy Supervisor Smith regarding
Baines' request to transfer to a Walgreens closer to her
home. Baines argues that these emails are irrelevant.
Walgreens argues that the motion is premature because Baines
is calling Smith to testify adversely at trial and depending
on Baines' questions to Smith, the emails may become
relevant to show that Smith tried to facilitate her transfer
request, cutting against any suggestion that Smith harbored
retaliatory motive. (Docket #113.)
reserve ruling on Baines' motion in limine No. 3
until trial. As I understand the posture of this case, the
dispute is whether Birch and/or Ruehs retaliated against
if Baines suggests that Smith retaliated against her, then
Walgreens will be permitted to counter with evidence showing
that he did not harbor a retaliatory motive towards her. If,
however, Baines does not introduce evidence suggesting that
Smith was retaliating against her, then Exhibit 103 is not
relevant and will not be admitted.
Series of Emails from June to October 2008 Regarding
Baines' Transfer Request and Walgreens' Transfer
Policy (Baines' Motion No. 4)
moves to exclude Exhibit 104 and related testimony and
Exhibit 120 from being introduced at trial. (Docket # 98.)
Exhibit 104 consists of two parts. One part is an email
exchange from June to October 2008 between Supervisor McLarty
and Baines regarding Baines' request to transfer to a
Walgreens in Georgia. The other part is an October 2, 2008
email exchange between Baines and Smith in which Baines says,
among other things, that she saw an email that said all
transfers go through Birch, and asks if this applies to her
transfer; Smith does not address her question but says that
“[w]e know about the transfer and everything is
ok.” Exhibit 120 is Walgreens' transfer policy.
Baines argues this evidence is irrelevant.
argues that Baines has accused former District Manager
Michelle Birch of retaliating against her for her 2007 and
2009 EEOC charges by commanding that Pharmacy Manager Hannah
Ruehs not hire Baines for a pharmacy technician position in
Ruehs's pharmacy in July 2014. (Docket # 121.) Baines
sought a transfer to a Walgreens store in Georgia after
filing her 2007 charge. Walgreens argues that Exhibit 104
cuts against Baines' claim that Birch harbored any
retaliatory motive against her because if she had wanted to
retaliate, she could have held up approval of Baines'
transfer to Georgia.
argues that Walgreens cannot establish Birch's intentions
through these emails because Birch denied having anything to
do with the transfer. In Exhibit 104, Baines emailed Smith
stating that she saw an email stating that all transfer had
to go through Birch and asking if that applied to her
transfer. (Docket # 121-2 at 15.) Smith responded that
“[w]e know about the transfer and everything is
okay.” (Id.) At his deposition, Smith
testified that Birch “may have had the final
‘final' say on [transfers]” and that Birch,
as the district manager, would have been involved in an out
of state transfer. (Docket # 121-3 at 3.) When asked what he
meant by “[w]e know about the transfer and everything
is okay, ” Smith testified that “there wasn't
anything holding it up. So if the ...