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April L. Lott v. Tradesmen International

January 22, 2013

APRIL L. LOTT PLAINTIFF
v.
TRADESMEN INTERNATIONAL, INC. DEFENDANT



OPINION AND ORDER

This matter is before the Court on a motion in limine filed by Defendant Tradesmen International, Inc.: Motion to Exclude Portions of Ryan Boyer's Deposition Testimony (DE 146). After the close of discovery, Plaintiff April Lott received permission to depose Boyer for use at trial pursuant to Federal Rule of Civil Procedure 32(a)(4)(B). (DE 112). Then, Tradesmen objected to the deposition as untimely and irrelevant (DE 86); now, Tradesmen has more specific objections to the testimony. The Court has previously addressed several motions in limine on similar issues (DE 133, 135), so the basic facts, and many of the arguments, are well known.

During a telephonic conference on January 10, 2013, the parties indicated their agreement to the Court determining damages and to conducting a bench trial in this matter. (DE 150). The parties subsequently filed a stipulation confirming their agreement to proceed with a bench trial rather than a jury trial. (DE 151). Despite this change, Tradesmen insisted that the Court consider this and its other motion in limine (DE 145), and so the Court has reviewed Boyer's deposition and considered the parties' arguments. The Court notes it is capable of attaching the proper weight to any testimony in light of all the evidence. Nevertheless, the Court will address each of Tradesmen's objections. For the following reasons, the Court will GRANT, in part, and DENY, in part, the Motion to Exclude Portions of Ryan Boyer's Deposition Testimony (DE 146).

I.Analysis

Tradesmen seeks to exclude several sections of Boyer's testimony on various grounds. The Court will discuss each objection below.

A. Boyer's Testimony Concerning Placing Employees on Inactive Status

Tradesmen objects to Boyer's testimony concerning placing employees on inactive status. Tradesmen argues that this testimony, comprising pages 35 to 45 of his deposition transcript (DE 146-1), is irrelevant and inadmissible. Previously, the Court addressed a similar issue in a prior motion in limine from Tradesmen. (DE 93). Tradesmen sought the exclusion of evidence that it retaliated against non-party employees. The Court granted the motion, in part, ruling that evidence about retaliation for filing workers compensation claims would be excluded from trial. (DE 133). The Court denied the motion in all other respects.

With Boyer's testimony, Lott attempts to show that Tradesmen's proffered legitimate reason for her termination -- that there was "no work" -- is pretextual and that the use of inactive status was common company practice. Boyer worked for Tradesmen as a district manager in its Indiana district. He only spoke about the practices within that district while admitting that he never met Lott, had no role in her termination, and had no knowledge of the practices in Tradesmen's Louisville district where Lott worked. In this testimony, Boyer cannot identify a single specific employee or instance in which a Tradesmen employee was placed on inactive status. (For example, "If you are asking for an exact detail, no," he said. (DE 146-1 at 47)). Given Boyer's lack of knowledge and lack of specifics, the testimony has almost no probative value. Tradesmen has not disputed that Lott was terminated; it has never argued that she was simply placed on "inactive status." The only detail from Boyer comes from his affidavit (DE 152-1), but that concerns employees with workers' compensation issues, and the Court has excluded such evidence. (DE 133). Similarly, the Court will exclude Boyer's testimony about placing employees on inactive status.

B.Boyer's Testimony About Missing E-Mails

The issue of Tradesmen's e-mails, and potentially missing e-mails, has been before the Court several times. Magistrate Judge Wier ordered (DE 61) Tradesmen to produce "all responsive and discoverable e-mails from or to [Mark] Bernard concerning April Lott and the subject matter of her case," and Tradesmen filed a Notice (DE 63) of its compliance. Later, the Court denied Lott's motion for an adverse inference instruction based on these e-mails. (DE 133). At the same, however, the Court denied Tradesmen's motion to exclude evidence and argument that Tradesmen failed to produce evidence (i.e. any e-mails). (Id.)

Boyer's testimony on this issue of e-mails, while not highly probative, is also not significantly prejudicial. Applying the balancing test of Federal Rule of Evidence 403, the testimony's probative value is not substantially outweighed by its prejudicial effect. Moreover, Tradesmen has highlighted the weaknesses of Boyer's testimony through cross-examination, and the Court will give the entire testimony the proper weight in light of all the evidence.

C.Boyer's Testimony Concerning Drug Testing

Tradesmen objects that Boyer's opinion testimony about the drug testing procedures at Titan Contracting & Leasing is inadmissible because it is irrelevant. The Court agrees. Drug testing procedures -- and Titan's actions, generally -- are not the subject of Lott's claim. This testimony is not relevant to Lott's retaliation claim against Tradesmen and it will be excluded.

D.Objections Based on Hearsay, Leading Questions, ...


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