The opinion of the court was delivered by: Kathryn H. Vratil United States District Judge
Ellen J. Mendelsohn brings suit against Sprint/United Management Company ("Sprint") under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. This case is before the Court on remand from the Tenth Circuit, and on Plaintiff's Combined (1) Motion To Hold Pretrial Evidentiary Hearing; And (2) Motion To Enforce Conditional Settlement Agreement (Doc. #174) filed May 28, 2008. For reasons set forth below, the Court finds that plaintiff's motion should be overruled, clarifies the basis for prior evidentiary rulings and reiterates its view that consistent with the jury verdict in this case, Sprint is entitled to judgment.
Plaintiff's arguments in support of her motion for a pretrial evidentiary hearing and to enforce settlement bear scant relation to the Court's recollection and the official record of the relevant events. See Memorandum In Support Of Plaintiff's Motion For Pretrial Evidentiary Hearing; And To Enforce Settlement (Doc. #171) filed May 7, 2008 ("Plaintiff's Hearing Memorandum"). Indeed, as the case has progressed from this Court to the Tenth Circuit Court of Appeals to the Supreme Court, then back, each step appears to have put plaintiff's rhetoric at further remove from what actually occurred in this proceeding. Accordingly, the Court must digress to recite in some detail the procedural and factual history of the proceedings in this Court.
Factual And Procedural Background
Plaintiff was born August 8, 1951. She began working for Sprint in September of 1983, at age 32. In September of 1986, at age 35, she accepted a voluntary severance package. In 1989, Sprint re-hired plaintiff at age 38, as a senior manager in its intermediaries marketing group. Over the next 13 years plaintiff moved to several different positions due to reorganizations at Sprint.
Beginning April 30, 2001, plaintiff was a manager in Mobile Financial Services ("MFS"), an incubator group in the Business Development group in the Business Development and Strategy organization ("BDS") in the PCS (wireless) division. In October of 2001, Jim Fee became Director of MFS. Fee reported to Paul Reddick, Vice President of BDS. Reddick reported to Bill Blessing, Senior Vice President of BDS. From June to December of 2002, Sprint assigned Reddick to oversee a special project. During that time, Fee reported directly to Blessing but Reddick continued to exercise certain authority over BDS.
In October of 2002, Sprint employed 65,000 to 70,000 individuals in four major divisions: PCS (wireless), long distance, local telephone and corporate. See Trial Transcript Vol. 1 (Doc. #144) at 207-09, 229. In late October of 2002, Sprint decided to reduce costs by approximately 25 per cent. Accordingly, it implemented a reduction in force ("RIF") to eliminate 1,600 positions, including nearly 500 in PCS where plaintiff worked. See id. at 224; Trial Transcript Vol. 3 (Doc. #146) at 42. BDS had about 80 employees and Blessing decided to reduce that number by 25 to 30 per cent, i.e. by 20 to 24 employees.*fn1 Blessing personally decided to eliminate two vice president positions in BDS, and he terminated the employment of vice presidents Marc Elster (vice president of the BDS New Business Development group) and Doug Reinhardt (vice president of the BDS Strategic Alliances group). See Trial Transcript Vol. 4 (Doc. #148) at 45-46. Although Reddick was still on special assignment, Blessing asked him to oversee the RIF for the Business Development group within BDS.*fn2 Within the reorganized Business Development group, Reddick decided which positions to eliminate and which employees to RIF, and he decided to terminate the employment of seven individuals: plaintiff and six others.*fn3 Plaintiff was unsuccessful in seeking positions in other Sprint departments, and Sprint therefore terminated her employment. While BDS eliminated approximately 25 positions overall, Sprint reallocated projects and responsibilities among different units. As a result, MFS (where plaintiff had worked) actually added one position.
Plaintiff brought suit, asserting that in terminating her employment because of a RIF "precipitated by cost-cutting" in PCS, Sprint had discriminated on the basis of age. The pretrial order did not suggest that the RIF embodied a company-wide pattern or practice of age discrimination, or complain that the RIF itself was anything but a legitimate cost-cutting measure. Plaintiff's theory was that her termination was inconsistent with RIF criteria and/or that Sprint had falsified or manipulated her evaluations under the RIF criteria.*fn4 See Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1168 (10th Cir. 1998); see also Pretrial Order (Doc. #64) filed July 29, 2004 at 4-5. The pretrial order focused exclusively on the RIF in MFS and BDS.*fn5
A. Defendant's Motion In Limine
Before trial, Sprint filed a motion in limine to exclude various categories of evidence, including testimony that Sprint had engaged in age discrimination against employees who were not similarly situated to plaintiff, and testimony concerning age-derogatory comments by Sprint employees. See Defendant's Motion In Limine (Doc. #78) filed December 15, 2004 at 1-3.
1. Evidence of Discrimination Against Other Employees By Other Supervisors
Paragraph 1 of Sprint's motion in limine specifically sought to exclude: Any reference to: Sprint having a "pattern and practice" of age discrimination, a culture of age discrimination, a history of age discrimination, or any similar broad allegation of age discrimination, including through its Alpha rating or staff associate program; any reference to age discrimination litigation against Sprint; and/or any reference to specific allegations of discrimination against Sprint employees not similarly situated to Plaintiff.
Id. at 1. Sprint noted that plaintiff had not alleged disparate impact or a pattern and practice of discrimination, and argued that claims of discrimination by employees who were not similarly situated to plaintiff were not relevant under Rule 401, Fed. R. Evid.*fn6 See Memorandum In Support Of Defendant's Motion In Limine (Doc. #79) filed December 15, 2004 at 1-3. Sprint also argued that the danger of unfair prejudice, confusion of the issues, misleading of the jury and undue delay substantially outweighed any probative value of such evidence. Id. at 3; see Rule 403, Fed. Rule Evid.*fn7 In the memorandum in support of its motion, Sprint specifically asked the Court to prevent plaintiff from presenting evidence concerning Sprint's treatment of 11 named individuals who were not similarly situated to plaintiff because they did not have the same decision-maker as she did. Specifically, Sprint sought to exclude anecdotal testimony that Sprint discriminated on the basis of age against Elster, Reinhardt, Bonnie Hoopes, John Hoopes, Patty Porter, Yvonne Wood, Sharon Miller, John Borel, Carol Kippes, Shirley Williams and Dawne Adams.*fn8 See Memorandum In Support Of Defendant's Motion In Limine (Doc. #79) filed December 15, 2004 at 2-3.
In response to Sprint's motion, plaintiff complained that it was "wrong" for defendant to raise "overly general, conclusory accusations about how defendant speculates age discrimination evidence might come in," but she did not give any reason why discrimination against the 11 individuals named in Sprint's motion would be relevant to her own theory of liability. See Plaintiff's Memorandum In Opposition To Defendant's Motion In Limine ("Plaintiff's Opposition") (Doc. #87) filed December 20, 2004, at 4. She did argue that she had admissible evidence of a culture or history of age discrimination at Sprint. Through purely boilerplate analysis, plaintiff argued that she was entitled to introduce evidence that Sprint terminated older, experienced employees from other departments.*fn9 She did not identify any employees or departments to which she was referring, however, or explain how evidence regarding those employees could be logically or reasonably tied to the decision to terminate plaintiff's employment. See Plaintiff's Opposition (Doc. #87) at 2-4. In other words, while plaintiff generally argued that her evidence would be admissible even if the other employees did not work in plaintiff's department or have the same supervisors as plaintiff, she did not explain how testimony by or about them would be relevant to her theory of the case, i.e. that Sprint discriminated by eliminating her position in MFS and BDS. Plaintiff had every opportunity to argue and proffer such evidence. Indeed, the entire point of Sprint's motion in limine was to address such evidence and determine its admissibility prior to trial.*fn10
In a minute order dated January 3, 2005, the Court sustained Sprint's motion in limine in part. See Doc. #111 entered January 3, 2005. It determined that plaintiff could only offer evidence of discrimination against Sprint employees who were similarly situated to plaintiff and defined "similarly situated employees" as ones (1) for which Reddick was the decision-maker in any adverse employment action (not just plaintiff's RIF); and (2) whose employment was close in time to plaintiff's.*fn11 In doing so, it was not applying a per se rule that evidence from employees of other supervisors is irrelevant in age discrimination cases. Among other things, it was addressing the facts that in opposing Sprint's motion in limine, plaintiff did not address any specific witnesses or case-specific evidence which Sprint identified in its motion in limine; and that plaintiff did not pretend to link any evidence from or about the 11 employees to any decision-maker in her case or to any company-wide policy or practice of discrimination. Also, the Court was giving due consideration to both Rule 401 and Rule 403. Thus, the Court did not adopt a categorical prohibition of what the parties later came to call "me too" evidence; it held that "me too" evidence within plaintiff's supervisory chain of command would be admissible, while "me too" evidence outside that chain of command would be excluded. Plaintiff's Memorandum In Opposition To Defendant's Motion In Limine (Doc. #87) filed December 20, 2004, recognized that for evidence regarding other employees to be admissible, it had to be within a relevant time frame and be "logically or reasonably" tied to the adverse employment action against plaintiff. Id. at 1, 3. As the proponent of such evidence, plaintiff had the burden of establishing the necessary nexus to her theory of the case. See Fed. R. Evid. 104 (when relevancy of evidence depends on fulfillment of condition of fact, court must admit such evidence on, or subject to, introduction of evidence sufficient to support finding of fulfillment of the condition). She made no effort to do so. Furthermore, she did not ask the Court to defer ruling until the time of trial, and the Court never suggested to plaintiff that it intended to do so.
The purpose of a motion in limine is to aid the trial process by enabling the Court "to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial." United States v. Cline, 188 F. Supp.2d 1287, 1291 (D. Kan. 2002) (quoting Palmieri v. Defaria, 88 F.3d 136, 141 (2nd Cir. 1996) (further citations omitted). Pretrial rulings often may save time at trial, as well as save the parties time, effort and cost in preparing their cases. See Cline, 188 F. Supp. at 1291. The Court recognizes that in many cases, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in the proper context. See Sperberg v. Goodyear Tire &Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975) (though in limine rulings can save time, cost, effort and preparation, court is usually better situated during trial to assess evidence); Rettiger v. IBP, Inc., 1999 WL 318153, at *2 (D. Kan. 1999) (a court is almost always better situated during actual trial to assess value and utility of evidence). In this case, largely because of plaintiff's failure to establish the necessary nexus between her case and testimony by or about the eleven employees in question, the issue appeared to be straight-forward -- one which could easily be resolved in advance of trial without prejudice to the rights of any party and with substantial benefits from a trial management perspective.*fn12
In summary, the Court did not exclude evidence regarding the 11 employees because such evidence was per se irrelevant under Rule 401.*fn13 It excluded such evidence because plaintiff did not identify any "me too" evidence which was relevant to her theory of the case, as articulated in the pretrial order, or suggest that she could establish a basis for admission under Rules 401 or 403, or any other rule of evidence.*fn14
2. Evidence Of Age-Derogatory Remarks
Paragraph 5 of Sprint's motion in limine sought to exclude "[a]ny reference to age- derogatory remarks by any Sprint employee." See Defendant's Motion In Limine (Doc. #78) at 3.
As to such remarks, defendant argued that Reddick was the decision-maker and that evidence of age-derogatory remarks by any other Sprint employee was irrelevant under Rule 401 and inadmissible under Rule 403. See Defendant's Memorandum In Support (Doc. #79) at 5-6. In response, without citation to authority, plaintiff made the dismissive argument that evidence of any remarks "by upper-level management with decision making authority" was "of course" admissible and that defendant's argument to the contrary "deserve[d] little attention." See Plaintiff's Opposition (Doc. #87) at 7-8. Plaintiff did not identify a single age-derogatory remark which she wished to introduce into evidence. In addressing the issue -- again taking into account Rules 401 and 403 -- the Court therefore ruled that age-derogatory remarks by Reddick, as decision-maker, would be admissible but others would not. Id.*fn15
1. Evidence of Discrimination Against Other Employees By Other Supervisors
On many occasions over the course of the trial, the Court further addressed admissibility of "me too" evidence inside and outside plaintiff's chain of command. In retrospect, upon reading the transcript, it is clear that the Court did a poor job explaining its reasoning, which was specifically mindful of the fact that plaintiff was part of a huge RIF which terminated approximately 25 employees in BDS, 500 in PCS, and 1,600 company-wide. Given (1) the size of the RIF, (2) the fact that plaintiff had never characterized the RIF as anything but a legitimate cost-cutting measure, and (3) the fact that prior to trial, plaintiff had not established a sufficient nexus between the decisions of other managers and the decision-makers in her case, the Court's intent was the to exclude anecdotal testimony that Sprint managers outside of plaintiff's chain of command discriminated against other employees.*fn16 The Court did not intend to exclude other evidence that the RIF (Sprint's stated nondiscriminatory reason for plaintiff's termination) was a pretext for age discrimination.
The Court allowed testimony by Bob Browne, plaintiff's former supervisor at Sprint, that the age composition of BDS was heavily skewed toward young people. Plaintiff also presented documents from Sprint's succession planning file. See Trial Exs. 3, 4. Exhibit 4 included a spreadsheet which showed the age of each BDS employee who was employed at the time of the RIF, the age of each BDS employee who remained in BDS after the RIF, the age of each employee who transferred to another department at Sprint, and the age of each BDS employee whose employment was terminated. See Trial Exh. 4 at 466-471. In admitting Exhibit 4, the Court stated as follows:
I think the question is whether the RIF was a pretext for age discrimination. And the reason I overruled [defendant's] motion for summary judgment was because there was, I thought, sufficient evidence in the record that Sprint didn't follow its own procedures. I think that makes the whole process, you know, fair game, what was the procedure and was it followed? And if this spreadsheet was used as part ...