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Hutson v. Federal Express Corp.

United States District Court, W.D. Tennessee, Western Division

February 1, 2017

CHERI ANN HUTSON, Plaintiff,
v.
FEDERAL EXPRESS CORPORATION, Defendant.

          OMNIBUS ORDER ON MOTIONS IN LIMINE

          S. THOMAS ANDERSON UNITED STATES DISTRICT JUDGE

         On January 26, 2017, the Court conducted a final pretrial conference with counsel for both parties. A jury trial is set to commence on February 6, 2017. Before the Court are a number of Motions in Limine filed by the parties. The parties having completed their briefing of the Motions, the Court's rulings on the parties' Motions are set forth below.

         I. Exclusion of Defendant's Undisclosed Witnesses

          In her first Motion in Limine (ECF No. 77), Plaintiff Cheri Ann Hutson asks the Court to preclude the following witnesses from offering testimony at trial: Karen Keaton, Debi Minnick, Marie W. Harper, Theresa Westcott, and any other witness not specifically identified by Defendant in its Rule 26 initial disclosures or in response to Plaintiff's interrogatories. Plaintiff asserts that Defendant did not identify any of these specific witnesses in its initial disclosures in December 2015 or in its responses to Plaintiff's first set of interrogatories in February 2016. Defendant never supplemented its initial disclosures or its discovery responses within the Court's deadline for completing all discovery. Defendant disclosed these witnesses for the first time in its Witness List (ECF No. 71) and thereafter in the proposed joint pretrial order. Plaintiff argues that exclusion of these witnesses is mandatory under Federal Rule of Civil Procedure 37(c)(1).

         In its response brief, Defendant concedes that it will not call Marie W. Harper or Theresa Westcott as witnesses at trial. Defendant argues that its failure to disclose Keaton or Minnick was harmless. Both witnesses were mentioned throughout the discovery process, in written discovery and in the testimony of other witnesses. Minnick is a female senior manager in Defendant's Global Operations Center (“GOC”). Keaton has firsthand knowledge of Plaintiff's internal EEO complaint and her guaranteed fair treatment process (“GFTP”) as well as general knowledge of Defendant's senior manager selection system (“SMSS”). Defendant intends to call Keaton because another witness Matthew Coleman who also has knowledge of these subjects is unable to attend the trial for medical reasons. Defendant argues that exclusion of Minnick and Keaton is not required.

         Federal Rule of Civil Procedure 37(c)(1) mandates the exclusion of any information or witness at trial if the proponent of the information or witness fails to disclose it during discovery, unless the party's failure to make the disclosure was substantially justified or harmless. “Rule 37 is written in mandatory terms and is designed to provide a strong inducement for disclosure of Rule 26(a) material.”[1] Rule 26(e)(1)(A) requires a party to supplement its initial disclosures only if a witness “has not otherwise been made known to the other parties during the discovery process.”[2] Defendant has shown that Karen Keaton and Debi Minnick were made known to Plaintiff during the discovery process. And Defendant has conceded that it does not intend to call Marie W. Harper or Theresa Westcott. Therefore, Plaintiff's Motion in Limine is DENIED.

         II. Proof About Plaintiff's Internal EEO and GFTP

         In her second Motion in Limine, Plaintiff seeks the exclusion of proof about the findings or results of her internal EEO and GFTP investigations that were commenced as a result of Plaintiff's complaints of discrimination. Plaintiff argues that this proof is irrelevant and any relevance it might possess is outweighed by its prejudicial effect. Defendant responds that Plaintiff has listed two witnesses in the joint pretrial order who will testify about her internal EEO and GFTP complaints. If Plaintiff elicits testimony about her internal EEO and GFTP, Defendant argues that the Court should allow it to explore the same subjects. The proof is also relevant to Plaintiff's theory of a pattern or practice of gender discrimination in the GOC and to the issue of whether Defendant denied her the promotion with discriminatory intent.

         In light of the fact that Plaintiff has listed witnesses with knowledge of her internal EEO and GFTP complaints as well as witnesses who intend to testify about the emotional distress experienced by Plaintiff as a result of her internal grievances, the Court will reserve ruling on the Motion.

         III. Proof of EEOC Charge

          In her third and final Motion in Limine (ECF No. 79), Plaintiff asks the Court exclude any evidence about her EEOC charge and the exhaustion of her administrative remedies. Defendant stated at the pretrial conference that it did not oppose Plaintiff's Motion. Therefore, Plaintiff's Motion is GRANTED.

         IV. “Me Too” or “Other Acts” Evidence

          In its first Motion in Limine (ECF No. 80), Defendant seeks the exclusion of any proof offered by Plaintiff “from non-party employees regarding their own allegations or complaints of discrimination; testimony and other evidence regarding Christi Free's non-selection for a GOC manager position; testimony and other evidence regarding Ronda Doyle's demotion; and testimony and other evidence regarding employees' opinions about Defendant's general treatment of female employees and/or employees who complain of discrimination.” Defendant argues that the proof is irrelevant, unfairly prejudicial, and otherwise improper character and opinion evidence. Plaintiff responds that she does not intend to call Free to testify “about whether she was discriminated against in any promotion decision, ” whether she suffered retaliation for complaints about the process, or about her lawsuit against Defendant. Plaintiff also responds that she will not call Doyle to testify about her claims of discrimination or retaliation. Plaintiff reserves her right to introduce such proof if Defendant opens the door to these issues in its questioning of Free or Doyle at trial. Based on Plaintiff's response, Defendant's Motion is GRANTED, subject to Plaintiff's reservation of rights.

         V. Testimony of Non-Party Witness Without Firsthand Knowledge of ...


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