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Degner v. Juneau County

United States District Court, W.D. Wisconsin

April 6, 2018

ROBIN DEGNER, Plaintiff,



         In advance of the final pretrial conference scheduled for April 9, 2018, the court issues the following opinion and order on the parties' motions in limine.


         I. Plaintiff's Motions in Limine (dkt. ##47, 49, 51, 53, 56)

         A. Evidence or Testimony of Plaintiff's Criminal Convictions (dkt. #47)

         Plaintiff contends that evidence and testimony related to her two criminal convictions for misdemeanor theft in a business setting of less than $2, 500 should be excluded under Rules 401, 402 and 609. As for Rules 401 and 402, plaintiff argues that the criminal convictions have no relevance, since they played no role in her termination. (Pl.'s Br. (dkt. #48) 2.) As for Rule 609, plaintiff argues her convictions may not be used to impeach, since neither involved a crime “punishable by death or imprisonment for more than one year” or a situation where “establishing the elements of the crime required proving - or the witness's admitting - a dishonest act or false statement.” (Id. at 2-3.) Indeed, Degner pleaded “no contest” to two counts of violating Wis.Stat. § 943.20(1)(b) -- a class A misdemeanor punishable by “a fine not to exceed $10, 000 or imprisonment not to exceed 9 months, or both.” (Id. at 3.)

         In response, defendant essentially concedes the lack of relevance, except as it concerns impeachment for dishonesty. For this purpose, defendant argues that evidence of the convictions is admissible under Rule 609(b) even if the elements of the Wisconsin criminal statute did not require a dishonest act or false statement, because plaintiff's specific business theft crimes involved efforts at concealment. (Def.'s Opp'n (dkt. #80) 2-3.) Assuming this court were willing to get into the weeds of the underlying facts of criminal convictions that were never fully adjudicated -- and it is not -- the use of these generic misdemeanor “theft” offenses solely for impeachment would be far more prejudicial than probative. Accordingly, plaintiff's motion in limine is GRANTED.

         B. Testimony of Dr. James Black regarding Plaintiff's Leadership Skills or Performance (dkt. #49)

         Plaintiff also seeks to exclude all evidence or testimony from Dr. James Black regarding plaintiff's leadership skills or work performance on grounds of relevance. According to the declaration of Scott Ethun, Dr. Black reported in early 2014 that he had concerns about plaintiff's leadership, but Ethun dismissed this feedback at that time. Indeed, Ethun actually discontinued Dr. Black's contract, feeling he was biased against plaintiff and would not help her develop as a manager. (Pl.'s Br. (dkt. #50) 1-2.) Plaintiff argues Ethun's immediate reaction to Dr. Black's opinion undermines any claim that it later affected Ethun's decision to terminate plaintiff, rendering Dr. Black's testimony irrelevant, but that is a question for the jury. Plaintiff also contends that because Dr. Black's contract was discontinued at an unspecified point in 2014, he would obviously be unaware of the specific events leading to plaintiff's January 2016 termination.

         The court largely agrees that Dr. Black's testimony would be of limited relevance, if any. Perhaps Black's 2014 opinions could have some relevance to the extent that Ethun or some other decision maker relied on them around the time of plaintiff's termination (Def.'s Opp'n (dkt. #82) 2), but that is not the subject of this motion in limine. Instead, plaintiff seeks to exclude Dr. Black testifying himself, apparently either about his conversation with Ethun or more general views as to the plaintiff's leadership skills or performance.

         As to the first category, Black's testimony would only be necessary if plaintiff disputed Ethun's description of what Black told him. As to the second, Black's testimony would appear to be excluded by Fed.R.Evid. 404(a), which prohibits admission of evidence “of a person's character or trait of character . . . for the purpose of proving action and conformity therewith on a particular occasion.” Defendant provides the court with no authority suggesting that this prohibition would not apply here, and the only obvious exception to this prohibition would be for habit under Rule 406 or impeachment under Rule 404(b). Since “leadership skills” or “performance” do not come close to meeting the requirements of a habit, that basis is easily rejected. See Simplex, Inc. v. Diversified Energy Sys., Inc. 847 F.2d 1290, 1293 (7th Cir. 1988) (“before a court may admit evidence of habit, the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere ‘tendency' to act in a given manner, but rather, conduct that is 'semi-automatic' in nature”). As for impeachment, the only obvious exception would be character for honesty, but there is no suggestion that Dr. Black with be getting on the stand on that subject. Consequently, plaintiff's motion in limine is GRANTED and Dr. Black will not be permitted to testify about his impressions of plaintiff's leadership skills or performance, unless plaintiff opens the door by disputing the accuracy of any recitation of Black's 2014 opinions admitted into evidence.

         C. Testimony of David Rung regarding Plaintiff's Leadership Skills or Performance (dkt. #51)

         Plaintiff similarly argues that testimony by David Rung regarding her leadership skills or performance should be excluded under Rules 401, 402 and 403. As with Dr. Black, plaintiff asserts that Rung's testimony is irrelevant, having retired from Juneau County over two years before plaintiff was terminated. (Pl.'s Br. (dkt. #52) 2.) Plaintiff also notes that Ethun testified he felt Rung's criticism of plaintiff receiving early tenure was “a little harsh on her because she was new.” (Id. at 3.) Plaintiff separately argues Rung's testimony would be needlessly cumulative to the extent he were allowed to testify as to interactions between plaintiffs and other employees who will be testifying about their own interactions with plaintiff.

         As with Dr. Black, defendant responds that Rung's testimony is relevant to establish ongoing and escalating performance problems that led to plaintiff's termination, even if the culminating events occurred well after Rung's interactions with her. (Def.'s Opp'n (dkt. #81) 2-3.) Defendant also observes that Rung had a direct and regular working relationship with plaintiff before his retirement. (Id. at 3.) Finally, defendant argues that Rung, as the former holder of plaintiff's job ...

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