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Baskin v. Pepsi Midamerica Co.

United States District Court, W.D. Kentucky, Paducah Division

February 6, 2015

ARTHUR BASKIN, Plaintiff,
v.
PEPSI MIDAMERICA CO., Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS B. RUSSELL, District Judge.

This matter comes before the Court upon several pretrial motions filed in anticipation of the jury trial to begin on Monday, February 9, 2015. The Court has considered the objections raised in the teleconference of Tuesday, February 4, 2015, and discussed in the parties' written briefs. For the reasons set forth below, the Court will overrule Plaintiff Arthur Baskin's objections to the exhibit list of Defendant Pepsi MidAmerica Co. ("Pepsi"). (Docket No. 51.) The Court will sustain Baskin's objection to Pepsi's designation of deposition testimony for use at trial. (Docket No. 50.)

I. The Court will overrule each of Baskin's objections to Pepsi's exhibit list.

Baskin objects to several exhibits that Pepsi seeks to introduce at trial. The Court will address each in turn.

a. Memorandum and disciplinary form regarding missing cash from Baskin's truck

Baskin first points to Pepsi's Exhibits 11 and a18, a memorandum and disciplinary form dated October 29, 2010, memorializing the loss of $1, 454.70 from the Pepsi vehicle that Baskin drove. Baskin argues that these materials are irrelevant, as this incident did not contribute to Pepsi's decision to terminate his employment.

The Court cannot agree. John Rains, Pepsi's general manager and executive vice president of operations, opted to terminate Baskin's employment only after reviewing his personnel file. Baskin's file presumably reflected not only the June 5, 2012, incident, but also Baskin's previous disciplinary issues and reprimands. Therefore, the Court cannot say that these documents had no bearing on Rains' decision. ( See Docket No. 25-3, Affidavit of John Rains, at ΒΆ 8: "Based upon this information, and because of his totally unacceptable insubordination and his extraordinary misconduct being harmful to the company, I determined that Mr. Baskin should be terminated.") Because the incident described in Exhibits 11 and 18 contributed to Rains' impression of Baskin's performance, the Court finds that their relevance outweighs any resultant prejudice and will admit them. However, Pepsi must first establish a proper foundation that Rains considered this information.

b. Disciplinary form regarding Baskin's alleged "rude behavior"

Baskin next objects to the admission of Exhibit 14, a memorandum suggesting inappropriate "verbal conduct" during a conversation with the management of West Kentucky Community and Technical College. Baskin argues that the document lacks a proper foundation, as it fails to identify any details of the conduct referenced, the author of the report, or any subsequent investigation. The deficiencies that Baskin perceives may prove ample ground for cross-examination; however, they do not serve as a basis for exclusion. As discussed above, Rains reviewed Baskin's personnel file before determining that he should be terminated. This report likely appeared in the file. Should Pepsi establish by proper foundation that Rains considered this information in evaluating Baskin's performance, the Court will not exclude its admission.

c. Disciplinary forms and statements regarding Ashley Williams' conduct

Pepsi's Exhibits 29 through 37 consist of various disciplinary forms and written statements regarding the performance of Ashley Williams, a former Pepsi employee who will testify on Baskin's behalf. Among these documents is a form dated January 17, 2014, regarding Williams' termination from employment with Pepsi. Baskin contends that because these events allegedly occurred over a year after Baskin himself was terminated, they should be excluded as irrelevant.

Disallowing such evidence, though, would prohibit Pepsi from exposing Williams' potential bias against her former employer. The Court must afford Pepsi reasonable latitude to cross-examine Williams about the alleged partiality of her testimony. Because the documents at issue arguably reflect a deteriorating relationship between Williams and her former employer, they are relevant to witness bias and will be admissible.

d. Shortages reports and bank deposit slips

Baskin next objects to Pepsi's Exhibits 40 and 42, both of which are "Full Line Sales Shortages Reports" that purport to identify a shortage between the number of products sold and the amount of cash collected. Baskin anticipates that Pepsi will use these reports to suggest that he did not fulfill his responsibilities, either innocently or by stealing company money. Baskin also objects to Pepsi's Exhibit 43-images of deposit slips showing Baskin's deposits of funds collected on his route. Baskin again predicts that Pepsi will use the deposit slips to show that he did not adequately perform his ...


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