United States District Court, W.D. Kentucky, Paducah Division
MEMORANDUM OPINION AND ORDER
THOMAS B. RUSSELL, Senior District Judge.
This matter comes before the Court upon the motion in limine of Defendant Pepsi MidAmerica Co. ("Pepsi"). (Docket No. 45.) Pepsi seeks to preclude Plaintiff Arthur Baskin from referencing, either directly or indirectly, certain evidence and materials at the jury trial scheduled for February 9, 2015. This trial concerns the termination of Baskin's employment with Pepsi after a June 5, 2012, meeting, wherein Baskin rose from his seat and told Jared Hines, his supervisor, "Man, you can kiss my ass, " and left the room. Baskin alleges that Pepsi terminated his employment due in part to his African-American race. He challenges his termination under a mixed-motive discrimination theory pursuant to 42 U.S.C. § 2000e-2(m). This section allows a plaintiff to show that the defendant has engaged in an unlawful employment practice by "demonstrat[ing] that race, color, religion, sex or national origin was a motivating factor for [the] employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m).
Baskin has responded to Pepsi's motion. (Docket No. 49.) Fully briefed, this matter is ripe for adjudication. The Court will address each of Pepsi's concerns in turn.
I. The alleged statement of Hines to Baskin
Baskin alleges that the allegedly offending statement was not unprompted. Instead, he points to Pepsi employee Ashley Williams' testimony that Hines, Baskin's supervisor, "cursed at Arthur" during the morning meeting, telling him "he was tired of his shit." (Ashley Williams Deposition, Docket No. 31-1, at 6:14-25.) Pepsi first contends that this statement contradicts Williams' prior written declaration, in which she stated, "I cannot recall exactly what Jared was saying but I recall that he was really attacking Arthur and being extremely critical in a way that should have been conducted individually and behind closed doors if the discussion was going to happen." (Declaration of Ashley Williams, Docket No. 26-1, at ¶ 11.) Pepsi also emphasizes that Baskin did not mention Hines' alleged comment in his own deposition testimony.
The Court notes that Williams' statements are not inherently inconsistent. There is no indication that her deposition testimony, while arguably more complete, was fabricated to create a sham issue. See Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908 (6th Cir. 2006). Any perceived inconsistencies may supply material appropriate for cross-examination, but they provide no basis to exclude Williams' testimony.
Pepsi further argues that Hines' alleged cursing "does not rise to the level of insubordination, and does not excuse Plaintiff from saying kiss my ass' and walking out of the meeting before it has concluded." (Docket No. 45-1 at 2.) Although Pepsi correctly states that Hines' alleged comment did not constitute insubordination, the company's work rules nonetheless prohibit "[a]busive language to fellow employees or supervisors." ( See Deposition of Andrea Douglas, Docket No. 49-1, at 60:15-61:9; Exhibit 8.) Furthermore, it is not clear that Baskin would offer this testimony to compare his own misconduct with that allegedly committed by Hines. Instead, this evidence provides the context of Baskin's statement, made during what was arguably a highly-charged meeting with his supervisor. Therefore, the Court need not exclude this relevant evidence.
II. Evidence that employees or management regularly used profanities
Baskin relies upon circumstantial evidence to support his race discrimination claim. He contends that Pepsi treated him more harshly than similarly-situated white employees and that this disparate treatment reveals Pepsi's discriminatory motive. Namely, he contends that white employees routinely used profanities and sexual talk, arising from both jest and anger, but were not terminated. Pepsi responds that none of these employees serve as proper comparators, given that none of them cursed at their immediate supervisors before walking out of a meeting, as Baskin admits that he did.
Whether these other Pepsi employees are appropriate comparators is the crux of many of the disputes set forth below. "The plaintiff need not demonstrate an exact correlation with the employee receiving more favorable treatment in order for the two to be considered similarlysituated.'" Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (considering a claim raised under the Age Discrimination in Employment Act). Instead, "the plaintiff [must] demonstrate that he or she is similarly situated to the [claimed comparator] in all relevant respects." Id. at 353. The Sixth Circuit has held that when a plaintiff alleges incongruent discipline of employees, the plaintiff and his proposed comparator must have engaged in acts of "comparable seriousness." Wright v. Murray Guard, Inc., 355 F.3d 702, 710 (6th Cir. 2006) (quoting McDonald v. Santa Fe Transp. Co., 427 U.S. 273, 283 n.11 (1976)). Factors in this analysis may include whether the individuals "have dealt with the same supervisor, have been subject to the same standards, and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Id. (quoting Ercegovich, 154 F.3d at 352). However, the Court need not substitute exacting consideration of these factors for its common-sense judgment. "Rather, to determine whether two individuals are similarly situated with regard to discipline, we make an independent determination as to the relevancy of a particular aspect of the plaintiff's employment status and that of the [proposed comparable] employee." Id. (quoting Ercegovich, 154 F.3d at 352).
This precedent counsels against sweepingly excluding any evidence of allegedly commonplace workplace profanity. Instead, the Court will consider the evidence to which Pepsi objects on a case-by-case basis, considering both the specificities of the alleged statements and the employees who purportedly voiced them.
III. Buddy Powell's alleged cursing at manager Nickey Winsett
Baskin presents testimony that Buddy Powell, a white employee, cursed at a member of management in a discussion about his job performance: Powell allegedly said, "F___ you, " to manager Nickey Winsett. The company emphasizes that while Baskin made his comment in the presence of several route sales team members, Powell's alleged outburst occurred in a private conversation between only Winsett and himself. Despite this distinction, the Court nonetheless finds that Powell and Baskin engaged in acts of "comparable seriousness." The two were subject to the same prohibition against abusive language, as published in Pepsi's employee handbook. ( See Deposition of Andrea Douglas, Docket No. 49-1, at 60:15-61:9; Exhibit 8.) Moreover, although other employees witnessed Baskin's comment, Powell's language was arguably more aggressive and offensive. Accordingly, the differences in the Powell statement do not negate its relevance.
Pepsi also insists that this alleged incident does not constitute evidence that Baskin and Powell were similarly situated, as Winsett was not Powell's direct supervisor. Rather than contesting this point, Baskin attributes it to a formality; regardless of the official hierarchy, Pepsi managers often assumed responsibilities assigned to other managers. For example, Bo Shell recommended commission adjustments despite this being outside his job description. ( See Deposition of Andrea Douglas, Docket No. 49-1, at 85:10-86:2.) More germane to this action, Winsett-who was not Baskin's official ...