United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM OPINION AND ORDER
E. ASPEN UNITED STATES DISTRICT JUDGE .
before us is Defendants Spectracorp of Tennessee, d/b/a Fann
Mechanical Co. (“Spectracorp”), and Randall
Fann's motion in limine. (Mot (Dkt. No. 27).) Defendants
request that we prohibit any reference to Fann's racial
or derogatory speech directed at any individual other than
Perkins. (Id. at 1.) For the reasons stated below,
we deny Defendants' motion.
who is African American, claims that he worked for twelve
years as an employee of Spectracorp, a business that provides
plumbing, electrical, and HVAC services. (Am. Compl. (Dkt.
No. 19) ¶¶ 8-11.) Perkins alleges he regularly
worked more than forty hours a week but that Defendants
failed to pay him legally required minimum wages and overtime
pay. (Id. ¶¶ 15-19.) During his work for
Defendants, Perkins contends Fann used racially derogatory
terms in the workplace, and that Perkins was subjected to a
racially hostile work environment. (Id. ¶¶
12, 24, 28-36.) Perkins states that his employment with
Defendants ended in January 2016 and that Defendants
terminated him on account of his race. (Id.
¶¶ 13-14; Pretrial Order (Dkt. No. 38) at 1.)
February 2016, Perkins initiated the present suit, alleging
Spectracorp failed to pay wages required by the Fair Labor
Standards Act of 1938 (“FLSA”) and Tennessee Wage
Regulation Act, or in the alternative, unjust enrichment.
(Am. Compl. (Dkt. No. 19) ¶¶ 25-36; Pretrial Order
at 1-2.) Perkins also alleges Defendants racially
discriminated against him in violation of the Tennessee Human
Rights Act (“THRA”). (Id.)
broad discretion, based on our “inherent authority to
manage the course of trials, ” when ruling on
evidentiary questions presented in motions in limine.
Luce v. United States, 469 U.S. 38, 41 n.4, 105
S.Ct. 460, 463 n.4 (1984); Jackson v. O'Reilly Auto.
Stores, Inc., 131 F.Supp.3d 756, 757 (M.D. Tenn. 2015).
“The Federal Rules of Evidence, the Federal Rules of
Criminal and Civil Procedure and interpretive rulings of the
Supreme Court and this court all encourage, and in some cases
require, parties and the court to utilize extensive pretrial
procedures-including motions in limine-in order to
narrow the issues remaining for trial and to minimize
disruptions at trial.” United States v.
Brawner, 173 F.3d 966, 970 (6th Cir. 1999). Finally, a
ruling on a motion in limine is “subject to change as
the case unfolds, ” and we accordingly reserve the
option of revisiting our preliminary evidentiary
determinations as appropriate at trial. Luce, 469
U.S. at 41-42, 105 S.Ct. at 463; United States v.
Yannott, 42 F.3d 999, 1007 (6th Cir. 1994).
filed a motion in limine requesting we prohibit any
references to Fann's “use of racial or derogatory
speech or language directed at any other individual other
than Plaintiff, ” and only allow references of such
language in “instances directly involving
Plaintiff” limited to the time period beginning six
months before the “adverse action” against him.
(Def. Mot. at 1.) Defendants cite no case law in support of
their motion, arguing instead that this evidence should be
excluded under Federal Rule of Evidence 403 as “more
prejudicial than probative.” (Id.) Perkins
objects to Defendants' motion, arguing any of Fann's
derogatory language directed at Perkins or others is both
admissible and “highly probative.” (Pl. Resp.
(Dkt. No. 31) at 1.) Perkins argues such comments support his
claim that Spectracorp maintained a hostile work environment
and demonstrate that his employer was on notice of Fann's
brings his racial discrimination claim under the THRA, which
states employers illegally discriminate if they “[f]ail
or refuse to hire or discharge any person or otherwise to
discriminate against an individual with respect to
compensation, terms, conditions or privileges of employment .
. .; or Limit, segregate or classify an employee or
applicants for employment in any way that would deprive or
tend to deprive an individual of employment opportunities or
otherwise adversely affect the status of an employee, because
of race, creed, color, religion, sex, age or national
origin.” T.C.A. §§ 4-21-401(a)(1)-(2); Am.
Compl. at 5-6. To succeed in a hostile work environment claim
based on race under THRA, Perkins must establish (1) he was
the member of a protected class, (2) he was subjected to
harassment based on his protected status, (3) the harassment
unreasonably interfered with plaintiff's work performance
by creating an intimidating, hostile, or offensive work
environment, and (4) the existence of employer liability.
Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir.
1999); Fite v. Comtide Nashville, LLC, 686 F.Supp.2d
735, 752 (M.D. Tenn. 2010). “In determining whether
there is a hostile work environment, the court must consider
the totality of the circumstances, including the frequency of
the conduct, its severity, and the degree to which it
interferes with work performance.” Fite, 686
F.Supp.2d at 752 (citing Harris v. Forklift Sys.,
510 U.S. 17, 21-22, 114 S.Ct. 367, 370-71 (1993)). The work
environment must be both objectively and subjectively
hostile, meaning “the conduct must be severe or
pervasive enough to create an environment that a reasonable
person would find hostile or abusive and the victim must
subjectively regard that environment as abusive.”
Bowman v. Shawnee State Univ., 220 F.3d 456, 463
(6th Cir. 2000).
preliminary matter, both state and federal law guide our
interpretation of admissible evidence with respect to
Perkins' hostile work environment claim under the THRA.
The THRA explicitly states that it aims to “Provide for
execution within Tennessee of the policies embodied in the
federal Civil Rights Acts of 1964, 1968 and 1972 . . .
.” T.C.A. § 4-21-101(a)(1). Considering this
directive, courts have repeatedly held that federal law
applies to THRA claims. Fite, 686 F.Supp.2d at 52
(clarifying that hostile work environment claims under the
THRA follow the standards for similar claims under Title VII
and 42 U.S.C. § 1981); Carr v. United Parcel
Serv., 955 S.W.2d 832, 835 (Tenn. 1997) (“We,
therefore, may look to federal interpretation of Title VII
for guidance in enforcing our own anti-discrimination
statute.”); Dennis v. White Way Cleaners,
L.P., 119 S.W.3d 688, 693 (Tenn. Ct. App. 2003)
(“Because of the commonality of purpose between the
Tennessee Human Rights Act and the federal statutes, we may
look to federal law for guidance in enforcing our own
anti-discrimination laws.”) (internal quotation marks
and citation omitted).
consider whether Fann's racially derogative statements
not “directly involving” Perkins are admissible
because they are relevant to prove Perkins' hostile work
environment claim. Courts in the Sixth Circuit have
repeatedly explained that derogatory statements of co-workers
directed at other people, even those made outside of
plaintiff's presence, should be considered in hostile
work environment suits. Hawkins v. Anheuser-Busch,
Inc., 517 F.3d 321, 335-36 (6th Cir. 2008) (“[W]e
may consider evidence of other acts of harassment of which a
plaintiff becomes aware during the period his or her
employment, even if the other acts were directed at others
and occurred outside of the plaintiff's
presence.”); Johnson v. United Parcel Serv.,
Inc., 117 Fed.Appx. 444, 453-55 (6th Cir. 2004)
(considering incident where plaintiff overheard a manager use
a racial slur as relevant to a hostile work environment
claim); Jackson v. Quanex Corp., 191 F.3d 647,
660-61 (6th Cir. 1999) (“[A]n employer may create a
hostile environment for an employee even where it directs its
discriminatory acts or practices at the protected group of
which the plaintiff is a member, and not just at the
plaintiff herself. . . . [R]acial epithets need not be hurled
at the plaintiff in order to contribute to a work environment
that was hostile to her.”); Atkins v. LQ Mgmt.,
LLC, 138 F.Supp.3d 961, 977-78 (M.D. Tenn. 2015)
(considering racially derogatory statements made by a
supervisor not directed at plaintiffs including comments
plaintiffs learned about from their co-workers). Indeed,
because a fact finder must consider the totality of
circumstances in determining whether a plaintiff established
workplace hostility, “considering only offensive acts
directed at the plaintiff would ‘defeat the entire
purpose of allowing claims based upon a “hostile work
environment” theory, as the very meaning of
“environment” is “[t]he surrounding
conditions, influences, or forces which influence or
modify.”'” Hawkins, 517 F.3d at 336
(citing Jackson, 191 F.3d at 661) (internal citation
we agree with Perkins that offensive statements made by Fann
to others establish whether or not Perkins' employer knew
about alleged harassment, a key element in establishing
employer liability. Hafford v. Seidner, 183 F.3d
506, 513 (6th Cir. 1999) (“An employer is liable if it
‘knew or should have known of the charged sexual
harassment and failed to implement prompt and appropriate
corrective action.'”) (quoting Pierce v.
Commonwealth Life Ins. Co., 40 F.3d 796, 804 n.11 (6th
Cir. 1994)); Peake v. Brownlee, 339 F.Supp.2d 1008,
1020 (M.D. Tenn. 2003) (finding actions taken by employer in
response to “incidents involving workers other than
plaintiff” are relevant to the analysis of the
sufficiency of the employers' corrective action). We
accordingly find any racially derogatory statements Fann made
in the workplace, even incidents not “directly
involving” Perkins, to be both admissible and probative
of Perkins' THRA claim.
further request that we limit any testimony regarding
Fann's allegedly offensive language to incidents within
the six months “preceding the adverse action allegedly
taken by Defendants against Plaintiff.” (Def Mot. at
1.) In evaluating hostile workplace claims, evidence of prior
discriminatory acts may be admissible as “relevant
background evidence for demonstrating a racially hostile work
environment, ” including acts occurring before the
hostile environment period or before a plaintiffs employment.
Austion v. City of Clarksville, 244 F. App'x
639, 650 (6th Cir. 2007) (considering evidence of racist
events occurring during the decade before plaintiffs
employment by defendant); see also Hawkins, 517 F.3d
at 337-38 (considering occurrences before plaintiffs