Figgins v. Advance America Cash Advance Centers

• Decision Date: 27 March 2007
• Docket Number: No. 05-10235.,05-10235.
• Citation: 482 F.Supp.2d 861
• Parties: Susan T. FIGGINS, Plaintiff, v. ADVANCE AMERICA CASH ADVANCE CENTERS OF MICHIGAN, INC. and Advance America Cash Advance Centers, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

482 F.Supp.2d 861

Susan T. FIGGINS, Plaintiff, v. ADVANCE AMERICA CASH ADVANCE CENTERS OF MICHIGAN, INC. and Advance America Cash Advance Centers, Inc., Defendants.

No. 05-10235.

United States District Court, E.D. Michigan, Southern Division.

March 27, 2007.

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Glen N. Lenhoff, Robert D. Kent-Bryant, Law Office of Glen N. Lenhoff, Flint, MI, for Plaintiff.

James R. Mulroy, II, Lewis Fisher, Memphis, TN, for Defendants.

ORDER DENYING DEFENDANTS' MOTIONS IN LIMINE

LAWSON, District Judge.

The plaintiff, Susan T. Figgins, filed a five-count complaint alleging that the defendants fired her from her job as store manager because she took FMLA leave, was pregnant, is overweight, and due to her age. The Court previously denied in part the defendants' motion for summary judgment, and the facts of the case are summarized in that opinion. Now before the Court are two motions in limine the defendants have filed in anticipation of trial. In their first motion, they seek to exclude evidence regarding the defendants' treatment of other employees, particularly Erica Starkey; opinion testimony from the plaintiffs coworkers on whether the plaintiff was a good worker or experienced discrimination or retaliation; opinion testimony from witnesses on the plaintiffs witness list who, were not disclosed during discovery; Dr. Audrey Stryker's expert testimony; and evidence of front pay, back pay, and punitive damages. In their second motion, filed after the deadline established by the case management order, the defendants ask for an order preventing the plaintiff from arguing that the plaintiff was demoted or replaced by Shannon Wolschlager offering evidence of branch manager positions that became available while the plaintiff was disabled and unable to fill them; and excluding expert testimony by Dr. Rao.

The purpose of motions in limine has been described by one commentator as follows:

A formal mechanism for obtaining advance rulings on the admissibility of evidence would seem to serve at least the following ends: (i) facilitate trial preparation by providing information pertinent to strategic decisions; (ii) reduce distractions during trial and provide for a smoother presentation of evidence to the jury; (iii) enhance the possibility of settlement of disputes without trial; (iv) provide some additional insulation of the jury from prejudicial inadmissible evidence; and (v) improve the conditions under which the trial judge must address evidence issues by reducing the need for hasty decisions during the heat of trial.

Report of Kentucky Study Committee, 1989, p. 5, quoted in Lawson, The Kentucky Evidence Law Handbook, pp. 33-34 (3d ed.1993). The practice is sanctioned, at least in part, by the Federal Rules of Evidence as found in the injunction "to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury." Fed.R.Evid. 103(c).

However, one practical difficulty in ruling on such motions is the absence of context that comes when the challenged evidence is presented with the other proofs at trial. It may be desirable in many cases to defer ruling on objections until trial, as with many of the defendants' evidentiary challenges here. As a consequence, the Court will address each of the defendants' contentions, but will not make "definitive rulings." See Fed.R.Evid. 103(a). Each motion and the several matters raised in them are discussed in turn.

I. Docket No. 30

A. Evidence of discrimination from witnesses other than the plaintiff

The defendants seek to exclude evidence from other employees, especially Erica Starkey, regarding how they were treated by the defendants. The only specific evidence cited in this part of the defendants' motion is evidence that Ms. Starkey was terminated or otherwise discriminated against because of her weight. The defendants state that Ms. Starkey was terminated for serious misconduct. After the termination, Ms. Starkey threatened Ms. LaBeff, who sought a restraining order. The defendants state that all evidence from other employees that they encountered discrimination on account of their weight should also be excluded. The defendants cite Federal Rules of Evidence 401 and 402.

The plaintiff states Erica Starkey witnessed a number of the comments Ms. LaBeff made about the plaintiff's weight, and that testimony is clearly relevant. In addition, the defendants argued in their motion for summary judgment that Ms. LaBeff promoted a number of overweight employees and that Miranda Rogers, another employee, never heard Ms. LaBeff make derogatory statements about the plaintiff. The plaintiff states that she should be permitted to introduce evidence to the contrary. Even the comments about Ms. Starkey's weight are relevant to show Ms. LaBeff's discriminatory animus, she contends. Furthermore, evidence from other employees should not be barred since the defendants have not identified the evidence with sufficient specificity for the plaintiff to respond.

The definition of relevant evidence is quite liberal and creates a low threshold for admissibility under Rule 401. The Sixth Circuit has explained:

The standard for relevancy is "extremely liberal." Douglass v. Eaton Corp., 956 F.2d 1339, 1344 (6th Cir.1992). "`[E]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence' is relevant." Robinson v. Runyon, 149 F.3d 507, 512 (6th Cir.1998) (quoting Fed.R.Evid. 401). "`[E]ven if a district court believes the evidence is insufficient to prove the ultimate point for which it is offered, it may not exclude the evidence if it has the slightest probative worth." DXS, Inc. v. Siemens Med. Sys., Inc., 100 F.3d 462, 475 (6th Cir. 1996) (quoting Douglass, 956 F.2d at 1344).

United States v. Whittington, 455 F.3d 736, 738-39 (6th Cir.2006). Testimony from other workers in the defendants' organization that the supervisors who interacted with the plaintiff also treated them in a discriminatory fashion is plainly relevant under Rule 401. If Ms. LaBeff made derogatory statements to Ms. Starkey or anyone else about overweight people, it is "more likely" that Ms. LaBeff harbors animus towards that group of people. Ms. LaBeffs animus towards overweight people is a consequential fact in this case. In Lamoria v. Health Care & Retirement Corp., 230 Mich.App. 801, 584 N.W.2d 589 (1998), vacated then reinstated by 233 Mich.App. 560, 593 N.W.2d 699 (1999), the court found a witness' affidavit detailing a manager's disparaging statements concerning overweight people to be admissible: "This evidence of hostile remarks by a supervisory or managerial level employee based on weight ... may be evidence of animus based on a characteristic upon which discrimination is forbidden by the state Civil Rights Act." Id. at 810, 584 N.W.2d 589, 584 N.W.2d at 595. If Ms. Starkey should be called to the stand during trial, the defendant may object to the relevancy of the questions asked of her at that time. However, the record presently does not support exclusion of the evidence.

B. Opinion testimony of plaintiff s workload, competence, qualifications, and performance

The defendants seek to exclude opinion testimony from the plaintiff's coworkers on whether the plaintiff was a good worker, again, especially from Ms. Starkey. The defendants state that Ms. Starkey left the company in early 2004, and the plaintiff worked until August and was not terminated until November, making the evidence irrelevant. Ms. Figgins did not report directly to Ms. Starkey. The defendants state such evidence is not admissible under Rule 701 because the jury can form its own opinion from the evidence; under Rule 403 because its probative value is outweighed by the danger of unfair prejudice; or under 602 because neither Ms. Starkey nor any other coworker was in a position to evaluate the plaintiff s performance.

The plaintiff responds that Ms. Starkey was the plaintiff's area manager from August 2003 through April 22, 2004 and can testify about the plaintiffs performance. Starkey apparently performed monthly audits of branch managers on behalf of the defendant. The plaintiff maintains that during these audits, Starkey had the opportunity to observe the plaintiffs work performance. Starkey purportedly can testify that the plaintiffs buy-back, debt collection, revenue, and held-check numbers were good, and that the plaintiff won several employment-related awards. This is relevant, the plaintiff claims, because the defendants claim that the plaintiff was terminated in part due to job performance. The plaintiff states that she plans to lay the proper foundation prior to eliciting this testimony. The plaintiff also argues that the defendants have not identified testimony from other employees that they believe should be excluded.

The Court finds that the plaintiff has the better argument. Ms. Starkey was terminated in April 2004, and the plaintiff last worked in August 2004. Assuming that the plaintiff will be able to elicit the foundational testimony as she represents, the four-month period Starkey was away from the workplace is relatively insignificant. The defendants' argument that the evidence is barred by Rule 403 lacks merit because the defendants have failed to identify any unfair prejudice that burdens the evidence. See Dresser v. Cradle of Hope Adoption Center, Inc., 421 F.Supp.2d 1024, 1030 (E.D.Mich.2006). The defendant, of course, is free to argue to the jury that the plaintiff's performance declined after Ms. Starkey was fired and therefore Ms. Starkey's testimony should be disregarded. However, Ms. Starkey will be permitted to testify to what she observed if the plaintiff lays the proper foundation.

C. Opinion testimony of whether discrimination occurred

The...