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Hubbard v. Jefferson County Board of County Commissioners

United States District Court, D. Kansas

April 4, 2018

Francis Hubbard, Plaintiff,
v.
Jefferson County Board of County Commissioners, Defendant.

          MEMORANDUM & ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE

         Plaintiff Francis Hubbard filed this lawsuit against the Board of County Commissioners of Jefferson County, Kansas alleging that the County terminated his employment on the basis of his age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Kansas Age Discrimination in Employment Act, K.S.A. § 44-1111 et seq. In February 2018, this court denied the County's motion for summary judgment. The trial of this case is set to begin on April 9, 2018. This matter is now before the court on the parties' motions in limine (docs. 72, 73). As set forth below, those motions are granted in part, denied in part, and retained under advisement in part.

         As a threshold matter, several of the issues raised by plaintiff are unopposed by defendant and, accordingly, each of those issues may be granted on that basis. Specifically, plaintiff's motion in limine Nos. 4, 5, 7, 10, 13 and 14 are all granted and are applied to both parties. The court turns, then, to those issues that are disputed by the parties.

         Anecdotal Evidence of Discrimination and Nondiscrimination (Plaintiff's No. 1 & 9 and Defendant's Motion in Limine)

         The parties dispute whether and to what extent circumstantial evidence of discrimination or nondiscrimination experienced by other employees is relevant and admissible at trial. In his motion, plaintiff seeks to exclude evidence that this court granted summary judgment on the age discrimination claim of Debra Miller, another employee who was terminated by Mr. Noll. Plaintiff also seeks to exclude evidence that Mr. Noll hired older employees and evidence that older employees believed that Mr. Noll did not and does not discriminate against older employees. Defendant, on the other hand, seeks to exclude “pattern and practice” evidence; the testimony of witnesses, including Debra Miller, who purport to have knowledge about age discrimination experienced by other employees or personal knowledge about alleged discrimination that they have experienced; and specific exhibits identified by plaintiff concerning Debra Miller's employment and a charge of age discrimination filed by Kevin Wynkoop.

         The court begins with the broadest category of evidence discussed by the parties- “pattern and practice” evidence. This type of evidence refers to company-wide discrimination and is generally relevant and admissible only when a plaintiff has asserted a pattern and practice claim in the context of a class action. See EEOC v. TriCore Reference Laboratories, 849 F.3d 929, 937-38 (10th Cir. 2017); Daniels v. UPS, 701 F.3d 620, 632-33 (10th Cir. 2012) (pattern and practice proof not available in private non-class suit alleging individualized discrimination). Plaintiff does not assert a pattern and practice claim in this case and, thus, may not seek to prove the existence of a County-wide pattern of age discrimination. To that extent, defendant's motion is granted.

         Nonetheless, it does not appear that plaintiff seeks to present County-wide evidence of discrimination (or that such evidence even exists). In his response to defendant's motion, plaintiff asserts that the evidence he seeks to present is “limited to the Public Works Department and all employees [who were] similarly situated [to plaintiff] because they are in the same protected class and they had the same supervisor.” In the next sentence, however, plaintiff asserts that “county-wide evidence is also relevant in this case to the extent the County Commissioners were involved in the treatment of other employees.” At summary judgment, however, plaintiff had no evidence that any of the Commissioners acted with discriminatory intent in connection with plaintiff's termination, but only that the Commissioners essentially “rubber stamped” the decision that Mr. Noll had made. In the absence of any evidence that any County Commissioner acted with discriminatory intent, evidence concerning other employment decisions made or approved by the County Commission would not be helpful to the jury in assessing the discriminatory intent of the only person alleged to have acted with such intent- Mr. Noll. See Coletti v. Cudd Pressure Control, 165 F.3d 767, 776 (10th Cir. 1999) (in the context of employee discharge cases requiring proof of discriminatory intent, testimony of other employees about their treatment by employer is relevant to the issue of discriminatory intent and provides exception to Federal Rule of Evidence 404(b) which excludes evidence of other acts for the purpose of proving a person acted similarly on other occasions).

         The court, then, turns back to plaintiff's assertion that he intends to prove his claim of individualized discrimination in part through anecdotal evidence of age discrimination experienced by other employees who were supervised by Mr. Noll in the Public Works Department. The Tenth Circuit has held that anecdotal evidence of discrimination should only be admitted at trial “if the prior incidences of alleged discrimination can somehow be tied to the employment actions disputed in the case at hand.” Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 856 (10th Cir. 2000). To the extent plaintiff seeks to admit evidence that other individuals who were supervised by Mr. Noll experienced alleged age discrimination by Mr. Noll during the same time frame as plaintiff, such evidence would be relevant because it is closely tied to plaintiff's claim. Id. at 856; see Bloomer v. United Parcel Service, Inc., 94 Fed.Appx. 820, 825-26 (10th Cir. 2004) (district court properly limited plaintiff to presenting evidence of personal racial animus by individuals who were directly involved in the termination decision). Such evidence includes, but is not limited to, [1] evidence that Mr. Noll asked several employees in the Public Works department, including plaintiff, about their retirement plans and evidence that he terminated the employment of Debra Miller, an older employee in the department. See Spulak v. K Mart Corp., 894 F.2d 1150 (10th Cir. 1990) (no abuse of discretion where district court permitted two other employees to testify about the circumstances under which they left their employment, including one who testified that he was terminated shortly after manager asked him about retirement plans and that the grounds for his termination were invalid), citing with approval Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 97 (7th Cir. 1985) (evidence that two other older employees had retired earlier than they had planned as a result of their treatment by supervisor was probative of discriminatory intent)). The court rejects defendant's argument that Ms. Miller should be prohibited from testifying about Mr. Noll's treatment of her because this court granted summary judgment on her age discrimination claim. A ruling that no reasonable jury could find in Ms. Miller's favor on her claim of age discrimination does not mean that Ms. Miller has no relevant testimony to support plaintiff's claim, including testimony about her first-hand observations of Mr. Noll's treatment of older workers. Moreover, Ms. Miller may certainly testify about her own experiences with Mr. Noll despite this court's summary judgment ruling, for Ms. Miller, for whatever reason, may be able to marshal more or different evidence than she did at the summary judgment stage. This aspect of defendant's motion, then, is denied.

         None of these witnesses, however, will be permitted to testify as to their belief that Mr. Noll took any action or made any remark because of the age of the witness. Under Rule 701, opinion testimony by lay witnesses is permissible if it is (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702. Fed.R.Evid. 701. As explained by another district court, “[i]n applying Rule 701(b) to testimony regarding an employer's motivations, courts have held that a witness's opinion as to the defendant's ultimate motivations will often not be helpful within the meaning of Rule 701 because the jury will be in as good a position as the witness to draw the inference as to whether or not the defendant was motivated by an impermissible animus.” See Connearney v. Main Line Hosps., 2016 WL 6569326, at *4 (E.D. Penn. Nov. 4, 2016) (citations and quotations omitted). Just as the court recognized in Connearney, the jury in this case will hear testimony about statements made by Mr. Noll concerning retirement plans or behavior by Mr. Noll from which the witnesses apparently drew the conclusion that Mr. Noll targeted them because of their age. See id. It is therefore not helpful for witnesses to state their ultimate conclusions regarding Mr. Noll's motivation because the jury can draw its own conclusions from observed events or communications that the witnesses describe to it. See id. [2]

         Of course, to the extent plaintiff presents anecdotal evidence concerning Mr. Noll's treatment of other older employees to prove discriminatory intent, defendant is entitled to present evidence that Mr. Noll treated older employees favorably, including evidence that he hired older candidates for open positions in the department. This portion of plaintiff's motion is denied. But as noted in connection with plaintiff's witnesses, defendant's witnesses on this issue would not be entitled to opine that Mr. Noll did not discriminate on the basis of age. They would be permitted to describe to the jury only the facts that formed the basis for that witness's belief.

         The court acknowledges that the admission of evidence concerning other employees carries the potential risk of individual mini-trials, as defendant will surely seek to disprove the suggestion that Mr. Noll discriminated against any other witness on the basis of age. Nonetheless, the court cannot balance the Rule 403 factors on the limited record before it and will reassess those factors during the course of the trial as the specific testimony of each witness is presented. Similarly, the court will reserve ruling on defendant's objections to specific exhibits relating to these witnesses until defendant raises a contemporaneous objection at trial.

         Evidence Concerning Metadata (Plaintiff's No. 2)

         At trial, plaintiff intends to introduce evidence of the underlying metadata for two Word documents produced by the County during discovery, including the memorandum authored by Mr. Noll in support of his decision to terminate plaintiff's employment. Plaintiff seeks to preclude the County from “contradicting or questioning the authenticity or information” contained in the metadata produced by it. In response, the County contends that it is plaintiff's burden under Federal Rule of Evidence 901(a) to produce evidence sufficient to support a finding that the item is what the proponent claims it is such that the County can challenge plaintiff's evidence on that issue. While this issue is retained under advisement subject to being raised contemporaneously at trial, the County is cautioned that, unless the County has a good faith basis to question the authenticity of the information that its counsel provided to plaintiff's counsel during discovery, plaintiff will be entitled to rely on the information produced by the County and the County will not be permitted to suggest to the jury that the metadata is other than what it purports to be.

         Language of Employee Handbook Relating to “At Will” ...


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