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Marshall v. Rawlings Co. LLC

United States District Court, W.D. Kentucky

February 28, 2018

GLORIA MARSHALL, PLAINTIFF
v.
THE RAWLINGS CO., LLC, DEFENDANT

          MEMORANDUM OPINION & ORDER

          Thomas B. Russell, Senior Judge

         This matter comes before the Court upon thirteen Motions in Limine filed by Defendant The Rawlings Company, LLC (“Rawlings”). Plaintiff Gloria Marshall (“Marshall”) has also filed a Motion in Limine of her own. These Motions are ripe for adjudication, and their merits are discussed below.

         I. Factual Background

         A more detailed factual background section describing the underlying events giving rise to this case was provided by the Court in its previous Memorandum Opinion docketed at ¶ 87. The brief reiteration of facts laid out below is taken from that Opinion. In essence, Marshall was formerly employed by Rawlings, a company which provides sophisticated data mining and recovery services to health insurance carriers. There, Marshall was employed as a Workers' Compensation Analyst, and was later promoted to Team Lead, before being demoted back to analyst and, ultimately, being terminated from the company. Laura Plumley, (“Plumley”), the President of the Workers Compensation department, made the initial decision to demote Marshall from a Team Lead back to an analyst.

         Marshall suffers from depression, anxiety, bipolar disorder, and post-traumatic stress disorder, (“PTSD”), and, while employed by Rawlings, took leaves of absence from her job under the Family and Medical Leave Act (“FMLA”). The first time was from February 7, 2012 to around March 13, 2012. Her second stint of FMLA leave began on March 18, 2013, and she did not return to work until March 29. Thereafter, Marshall took intermittent FMLA leave due to her anxiety, depression, bipolar disorder, and PTSD from April 2013 to August 2013. Throughout this time, there is a great deal of conflicting evidence regarding how far behind Marshall fell with respect to her work, how much or little help was offered to her in response to her work backlog, and how she was treated in the workplace. Rawlings contends that her troubles stemmed from her work performance and attitude, while Marshall has alleged that the isolation she suffered after returning from FMLA leave was because of resentment amongst other employees for having taken that leave in the first place. Plaintiff alleges that some of her troubles at Rawlings stemmed from interactions with Vice President Jeff Bradshaw, (“Bradshaw”), who apparently made several rude comments to her, at least one of which pertained to her having taken leave for her mental health issues. Marshall also had some workplace troubles with Michael Elsner, (“Elsner”), a Division Director in the Workers Compensation department. Eventually, Marshall was fired by George Rawlings, (“Mr. Rawlings”), the owner of the company, on October 1, 2013 during a meeting between the two parties and an employee from the Human Resources department.

         Thereafter, Marshall filed this lawsuit seeking relief under the FMLA, the Americans with Disabilities Act, (“ADA”), and Kentucky common law for Intentional Infliction of Emotional Distress. This Court initially granted summary judgment to Rawlings on all of Marshall's claims. However, on appeal the Sixth Circuit, affirming in part and reversing in part, remanded Marshall's claims for FMLA retaliation and ADA discrimination to this Court. Now, in anticipation of a trial in this matter, Rawlings has filed thirteen motions in limine seeking to have various pieces of evidence excluded, and Marshall has filed one. The merits of these motions and the Court's disposition on each are laid out below.

         II. Legal Standard

         Utilizing its inherent authority to manage the course and direction of the trial before it, this Court has the power to exclude irrelevant, inadmissible, or prejudicial evidence through in limine rulings. See Luce v. United States, 469 U.S. 38, 41 n.4 (1984) (citing Fed.R.Evid. 103(c)); Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013). Unless the evidence at issue is patently “inadmissible for any purpose, ” Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997), though, the “better practice” is to defer evidentiary rulings until trial. Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). This stance is favored so that “questions of foundation, relevancy and potential prejudice may be resolved in proper context.” Gresh v. Waste Servs. of Am., Inc., 738 F.Supp.2d 702, 706 (E.D. Ky. 2010). When this Court issues a ruling in limine, it is “no more than a preliminary, or advisory, opinion.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994) (citing United States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983), aff'd, 469 U.S. 38). Thus, even where a motion in limine is denied, the Court may return to its previous ruling at trial “for whatever reason it deems appropriate.” Id. (citing Luce, 713 F.2d at 1239).

         III. Motion in Limine to Exclude Other Alleged Complaints about Jeff Bradshaw

         In its first Motion in Limine, Rawlings seeks to preclude any attempts by Marshall to introduce evidence about complaints other Rawlings employees allegedly made against Bradshaw. [DN 44.] In support of this Motion, Rawlings argues that such complaints would be irrelevant to the case at bar and, alternatively, if such complaints are relevant, their introduction would be unfairly prejudicial to Rawlings.

         Pursuant to Federal Rule of Evidence 401, “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Relatedly, Fed.R.Evid. 402 explains that “[i]rrelevant evidence is not admissible.” Importantly, the test for relevancy presents a low bar of entry. See Cambio Health Solutions, LLC v. Reardon, 234 F. App'x 331, 338 (6th Cir. 2007); see also United States v. Whittington, 455 F.3d 736, 738 (6th Cir. 2006) (“The standard for relevancy is extremely liberal”) (internal quotation marks omitted). As the Sixth Circuit has explained, “even if a district court believes the evidence is insufficient to prove the ultimate point for which it is offered, it may not exclude the evidence if it has the slightest probative worth.” DXS, Inc. v. Siemens Med. Sys., Inc., 100 F.3d 462, 475 (6th Cir. 1996).

         Thus, the first question is whether other employees' complaints regarding Bradshaw pass this low bar. The Court is satisfied that they do. Marshall indicates in her Response to the instant Motion that these complaints, although unidentified by either party, could be similar to the ones filed by Marshall against Bradshaw. [DN 69, at 2.] To that end, the Court finds it plain that such complaints regarding Bradshaw, his treatment of other employees, and his general demeanor at work towards his subordinates certainly has a “tendency to make a fact more or less probable than it would be without the evidence.” See Fed. R. Evid. 401. Certainly, Bradshaw is not a party to this action, nor are any other individual employees of Rawlings. However, this alone does not render complaints against Bradshaw, an important player in Marshall's employment with Rawlings, completely irrelevant to the issue of Marshall's demotion and termination from the company. Marshall had numerous unpleasant interactions with him, and he made a recommendation to Plumley in 2012 that she demote Marshall from her position as Team Lead back to analyst.

         The second question, and the more difficult one, is whether such complaints should still be excluded as unfairly prejudicial. Fed.R.Evid. 403 provides that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” In the instant Motion, Rawlings argues that the probative value of introducing other employees' complaints about Bradshaw would be substantially outweighed by the unfair prejudice to Rawlings. [DN 44-1, at 3.] Specifically, Rawlings argues that introduction of this evidence would (1) waste time by forcing Rawlings to “conduct[] mini-trials to debunk those employees' allegations against Bradshaw;” (2) risk the jury placing an improper amount of weight on those other complaints; and (3) disadvantage Rawlings “since the jury may improperly attribute any opinion of Bradshaw to the company as a whole, even though he did not play a role in [Marshall's] demotion or termination.” [Id. at 3-4.]

         Importantly though, Rawlings does not point to any specific complaints against Bradshaw, identify the employee or employees who made these complaints, or provide the Court with any of the specific allegations made in the complaint or complaints against Bradshaw. Also, the Court has no way of knowing whether these complaints were made in formal writings or were simply some offhanded comments made by other Rawlings employees. The Court is cognizant of the fact that the introduction of other Rawlings employees' complaints against Bradshaw presents two dangers: (1) wasting time and confusing the issues by making the parties conduct mini-trials, which is a real concern; and (2) the danger of running afoul of Fed.R.Evid. 404(a), which prohibits the introduction of evidence of a person's character or character traits “to prove that on a particular occasion the person acted in accordance with the character or trait.”

         However, without more information from either party, including the specifics of these complaints and the circumstances surrounding them, it would be premature to exclude such evidence at this juncture. This is because, unless evidence is patently “inadmissible for any purpose, ” Jonasson, 115 F.3d at 440, the “better practice” is to defer evidentiary rulings until trial.” Sperberg, 519 F.2d at 712. This is the preferred practice because it allows “questions of foundation, relevancy and potential prejudice…[to] be resolved in proper context.” Gresh, 738 F.Supp.2d at 706. In light of this, the Court will deny the Motion at this time. Having stated the above, to aid the Court in advance of trial and possibly avoid multiple objections, the Court requests further briefing on the matter. On or before March 9, 2018, each party shall file briefs identifying specific complaints and witnesses. Responses shall be filed by March 16, 2018, and no replies shall be filed.

         IV. Motion in Limine to Exclude Testimony and Evidence about What Physicians and any other Individuals Told Marshall about Rawlings Allegedly Causing Her Emotional Distress

         The next Motion at issue is Rawlings' Motion in Limine to exclude all testimony and evidence regarding what physicians and/or other individuals told Marshall about Rawlings allegedly causing her emotional distress. [DN 45.] Rawlings argues that any such statements are hearsay, and that these statements would not fall under any exception to the rules against hearsay; therefore, they must be excluded from trial. In response to this, Marshall argues that the exclusion Rawlings seeks is “vague and overbroad, ” premature, and that she should be permitted to introduce “evidence to prove damages for mental and emotional injuries including humiliation, embarrassment, personal indignity, emotional distress and other intangible injuries.” [DN 62, at 2-3.]

         “Hearsay is an out-of-court statement offered for the truth of the matter asserted.” United States v. Halter, 259 F. App'x 738, 741 (6th Cir. 2008) (citing Fed.R.Evid. 801(c)). Generally, hearsay is inadmissible at trial. Fed.R.Evid. 802. There are, of course, numerous exceptions to the rule against hearsay. See Fed. R. Evid. 803, 804, 807. The exception pinpointed by Rawlings is the one found at Fed.R.Evid. 803(4). Entitled “Statement Made for Medical Diagnosis or Treatment, ” this exception to the rule against hearsay provides that a statement, otherwise properly classified as hearsay, will be admissible where “(A) it is made for-and is reasonably pertinent to-medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.” Fed.R.Evid. 803(4). Rawlings makes references to this exception as support for its argument that the evidence and testimony it seeks to have excluded in the instant Motion falls outside its scope. Thus, Rawlings argues, it is properly classified as hearsay and should not be admissible at trial. [See DN 45-1, at 2-3.]

         The Sixth Circuit has held that “the hearsay exception set forth in Fed.R.Evid. 803(4) applies only to statements made by the one actually seeking or receiving medical treatment.” Field v. Trigg Cnty. Hosp., Inc., 386 F.3d 729, 736 (6th Cir. 2004) (explaining that the “physicians' statements…are not admissible pursuant to the Fed.R.Evid. 803(4) hearsay exception.”); see also Bulthuis v. Rexall Corp, 789 F.2d 1315, 1316 (9th Cir. 1985) (“Rule 803(4) applies only to statements made by the patient to the doctor, not the reverse.”). As Marshall correctly points out, the Sixth Circuit adheres to the maxim that “[o]rders in limine which exclude broad categories of evidence should rarely be employed.” Sperberg, 519 F.2d at 712. However, Sixth Circuit precedent is clear that the “Statement Made for Medical Diagnosis or Treatment” exception does not apply to statements made by the medical professional. And although the instant Motion casts a wide net, it is largely appropriate under the circumstances. Thus, the Court will grant the Motion insofar as it pertains to statements made by medical professionals or other individuals to Marshall in the course of her seeking medical treatment, as such information falls outside the relevant exception to the rule against hearsay. Of course, if Marshall at any time should feel as though this exception, or any other rule of evidence, warrants the inclusion of certain evidence currently excluded by this order, she may approach the bench to discuss the matter further.

         V. Motion in Limine to Exclude Comments by Doug Gurley, Chris Gardner, Elizabeth Davidson and Leah Sarley

         The next Motion at issue is Rawlings' Motion in Limine to exclude certain comments Doug Gurley, (“Gurley”), and Elizabeth Davidson, (“Davidson”), née Estrada, made to Marshall regarding things that were said about her by Chris Gardner, (“Gardner”), and Leah Sarley (“Sarley”). [DN 46.] Specifically, Rawlings wishes to have excluded two comments about which Marshall testified during her deposition. First, Gurley informed Marshall that Gardner had approached him and suggested that he stop having lunch with Marshall and stop spending time with her on breaks. [DN 46-1, at 1.] Second, Marshall testified that Davidson approached her and told Marshall that while she was out of the office on FMLA leave, Gardner “commented that he wished he could take weeks off too, in reference to her FMLA leave. Davidson claimed that in response, Sarley snickered and said, ‘yeah, me too.'” [Id.] Rawlings argues that the comments at issue are (1) inadmissible hearsay, (2) irrelevant, and (3) unfairly prejudicial. [DN 46-1, at 2.]

         As explained above, “[h]earsay is an out-of-court statement offered for the truth of the matter asserted.” Halter, 259 F. App'x at 741 (citing Fed.R.Evid. 801(c)). Generally, hearsay is inadmissible at trial. Fed.R.Evid. 802. And while there are many exceptions to the rule against hearsay, Fed.R.Evid. 803, 804, 807, the two statements at issue fit the definition of hearsay and, as such, must be excluded from trial. Obviously, both comments are out-of-court statements, and therefore fit the first part of the definition of hearsay. See Fed. R. Evid. 801(c). The question then becomes whether such evidence would be offered by Marshall “to prove the truth of the matter asserted in the statement.” Id. The Court finds that they would be.

         To be sure, the ultimate issue is not that Marshall would attempt to offer the two original statements to prove the truth of their contents (i.e., that Gardner actually wanted Gurley to stop spending time with Marshall, or that Gardner and Sarley actually wished that they could take time off like Marshall). Rather, the “truth of the matter asserted” here is the question of whether Gurley and Davidson ever made these statements at all. In other words, this situation represents a “hearsay-within-hearsay” situation. Gurley and Davidson allegedly told Marshall about these two statements that were made to or in front of them, and now Marshall wishes to offer Gurley's and Davidson's relay of the conversations for the truth of the matter asserted; namely, that Gurley and Davidson ever said what Marshall contends they did. Marshall wishes to prove the truth of the matter asserted that Gurley and Davidson told her what they were told about her by Gardner and Sarley. This is inadmissible hearsay, and these statements must be excluded from trial. Notably, in her Response to the instant Motion, Marshall does not address the issue of hearsay, explain why these comments are not hearsay, offer an exception to the rule against hearsay, or cite any authority directed thereto. As such, these two statements must be presently excluded from trial, in the context of how Marshall wishes to introduce this evidence, that is, through her own testimony. This is not to say that such evidence would or would not be admissible if introduced through Davidson or Gurley.

         VI. Motion in Limine to Exclude Comments by Jeff Bradshaw Unrelated to Marshall's FMLA Leave and/or Marshall's Alleged Disability

         The next Motion at issue is Rawlings' Motion in Limine to exclude certain comments made by Bradshaw to Marshall, which were allegedly unrelated to Marshall's FMLA leave and/or alleged disability. [DN 47.] Although the Motion refers generally to Bradshaw and his discussions with Marshall, and appears to ask for an order from this Court excluding all comments he has made to Marshall which do not relate directly to FMLA or her alleged disability, the Court will only analyze the three specific instances included in the Motion. The Court assumes that if there were other instances, Rawlings would have brought them to the Court's attention.

         The first of these instances relates to an “appreciation lunch” in May 2012. [DN 47-1, at 2.] Marshall testified at her deposition about the conclusion of the lunch:

At the end - when everyone finished their meal, Jeff Bradshaw started questioning the table, and he asked, ‘so what is the morale on the floor?' I did not respond, and neither did anyone else at the table. And then he specifically said, ‘how about you, Gloria, why don't you tell me about' - you know, ‘what do you think, ' or something to that nature….And what I did was, I tried to give a very generic response in order to satisfy his question, but not get into any kind of confrontation, because I could tell that he was trying to instigate some kind of debate. And I stated that I felt like some - you know, the analysts on the floor, some of them were doing very well and some of them were just getting by, and I left it at that….

[DN 47-1, at 2 (quoting Marshall Dep., 23:17-26:2).] Although this Court sees marginal value in the above-quoted conversation, the Court will deny Rawlings' Motion on this count. Throughout this case, Bradshaw's demeanor and actions at Rawlings during Marshall's period of employment with the company have come up more than once. And though it does not follow that every interaction between the pair is relevant to Marshall's specific legal claims, the Court has decided that Bradshaw's comments at the appreciation lunch pass the low threshold for relevance under the Federal Rules of Evidence. See Fed. R. Evid. 401, 402. Marshall points out that “discriminatory intent can be proven in a number of way[s] and Plaintiff need not be limited to proving this discriminatory motive solely through specific comments that say the words ‘FMLA' or ‘disability' specifically.” [DN 68, at 3.] The Court agrees with this notion.

         The Court is further directed in its decision to allow the introduction of this conversation at trial by the decision of the Sixth Circuit Court of Appeals, wherein it reversed in part this Court's grant of summary judgment in favor of Rawlings. In that opinion, the Sixth Circuit dedicated an entire paragraph to the May 2012 appreciation lunch. [DN 90, at 5.] Indeed, the Sixth Circuit made specific note of the fact that, in Marshall's opinion, Bradshaw “wanted to single me [Marshall] out and put me in a corner in front of my coworkers in the middle of a restaurant, ” and “was intentionally trying to escalate…the conversation in order to antagonize me.” [Id. (citing Marshall Dep. at 24-26).] The Court is reluctant to exclude this testimony when it was noted as a portion of the factual basis for reversal.

         Further, the Court does not see how the introduction of this conversation will unduly prejudice Rawlings. It relies in its Motion on the notion that, to introduce evidence of the conversation would be to risk the jury improperly inferring that Bradshaw's opinion of Marshall would be properly attributed to the whole company. [DN 47-1, at 7.] However, as Marshall is proceeding under the Cat's Paw theory of liability, part of her case rests upon actors such as Bradshaw influencing the actual decisionmakers in an effort to see her demoted and, ultimately, terminated. As such, conversations of this nature have seen their probative value increase as the theory of the case has developed. This, coupled with the Sixth Circuit's emphasis on this conversation, guides this Court's decision to allow its inclusion at trial.

         The second instance was another conversation Marshall had with Bradshaw after she returned to work from her first stint of FMLA leave. Apparently, Bradshaw asked Marshall “in a rude way” if she was planning on taking any additional time off from work. [Id. (citing Marshall Dep. 62:3-11).] The Court finds this comment to be relevant under Fed.R.Evid. 401 as well. Indeed, this comment relates directly to Marshall taking FMLA leave. Thus, it is “of consequence” in this action. See Fed. R. Evid. 401. It goes to the relationship between Marshall and Bradshaw and, relatedly, other Rawlings employees' thoughts on her taking leave. While Rawlings is correct in pointing out that, overtly as least, the statement does “not contain any criticism of Plaintiff's FMLA leave or her disability, ” [DN 47-1, at 6], the issue of whether the implications of his comment and general demeanor insinuated something different is part of what makes the comment relevant, especially because it does pertain to her taking FMLA leave at least in the general sense.

         Having determined that evidence of this conversation is relevant, the question must be asked whether its probative value is substantially outweighed by the danger of unfair prejudice under Fed.R.Evid. 403, thus warranting its exclusion from trial. Rawlings makes two arguments, the first of which is that it would be unfairly “disadvantaged since the jury may improperly attribute the opinions of Bradshaw to the company as a whole, even though he did not play a role in Plaintiff's demotion or termination.” [DN 47-1, at 7.] But this misconstrues Marshall's allegations. Marshall has not alleged that the ultimate decisionmakers, Plumley and Mr. Rawlings, retaliated or discriminated against her in response to her having taken FMLA leave. Rather, Marshall has chosen to proceed on the Cat's Paw liability theory, wherein she has alleged that individuals, including Bradshaw and Elsner, influenced the ultimate decisionmakers in an inappropriate fashion relating to her FMLA leave. See EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 484 (10th Cir. 2006) (“[T]he term ‘cat's-paw' refers to one used by another to accomplish his purposes. In the employment discrimination context, ‘cat's paw' refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.”); see also Henderson v. Chrysler Grp., LLC, 610 F. App'x 488, 496 (6th Cir. 2015) (“Assuming without deciding that the cat's paw theory of liability is available in FMLA retaliation cases….”). Thus, as noted above, Marshall's theory actually depends upon Bradshaw not being a “decisionmaker” in terms of authority to demote and/or terminate her employment at Rawlings. This means that comments Bradshaw allegedly made to her pertaining to FMLA leave, her disability, and his general attitude toward those two things are highly probative with respect to her claims in this case. To be sure, this evidence is damaging to Rawlings, but “[e]vidence that is prejudicial only in the sense that it paints the defendant in a bad light is not unfairly prejudicial pursuant to Rule 403.” United States v. Chambers, 441 F.3d 438, 456 (6th Cir. 2006).

         The second argument advanced by Rawlings is that “[t]he admission of these isolated comments will obviously prejudice Rawlings since the jury may attribute unnecessary weight to them, ” and Rawlings will be forced to waste the Court's time in correcting what it perceives to be that error. [DN 47-1, at 7.] However, as the Court noted above, Marshall's theory of the case has made Bradshaw's comments quite relevant and probative, and how much weight the jury gives to his comments with respect to the Cat's Paw theory of liability is a matter to be hashed out at trial, and not in limine. Moreover, the Court does not believe that time will be wasted by Rawlings having to elicit additional testimony and adduce additional evidence to counter this kind of evidence, since Marshall is proceeding under the theory that Bradshaw influenced in some way the decision to demote and/or terminate her. Such testimony and evidence will likely be necessary in any event.

         The third instance relates to a 2013 meeting, at the conclusion of which Bradshaw apparently asked the twenty or so employees present if anyone had any questions. No one responded, and Bradshaw allegedly looked at Marshall and said, “how about you, Gloria? You always have something to say.” [DN 37, at 20-21.] Marshall alleges that “[s]he simply responded that she was just happy to be there.” [Id. at 21.] That Bradshaw chose to single out Marshall in front of a group of around twenty Rawlings employees with the seemingly condescending or rude comment of “you always have something to say” certainly passes the low threshold for relevance presented by Fed.R.Evid. 401. Moreover, the simple fact that the “[t]he admission of th[is]…comment[] will…prejudice Rawlings” does not mean Fed.R.Evid. 403 requires its exclusion. [See DN 47-1, at 7.] And as noted above, just because Bradshaw's comment might paint Rawlings in a more unfavorable light and prejudice it somewhat, it is only where that prejudice is undue where Fed.R.Evid. 403 demands exclusion. See Chambers, 441 F.3d at 456. Marshall has chosen to proceed under the Cat's Paw theory of liability, and as such will likely try to present a great deal of circumstantial evidence concerning her superiors' attitudes towards her, of whom Bradshaw was one. This makes the instant comment highly relevant and probative, and the Court finds that any prejudicial effect to Rawlings would not be undue under the circumstances.

         VII. Motion in Limine to Exclude Alleged Discussions about a Performance Improvement Plan for Marshall

         The next Motion at issue is Rawlings' Motion in Limine to exclude alleged discussions about a performance improvement plan for Marshall. [DN 48.] Rawlings contends that the presentation of evidence regarding these discussions would be unfairly prejudicial to Rawlings under Fed.R.Evid. 403, and further, that it would mislead the jury and prolong the trial. As such, Rawlings argues that all such evidence should be excluded. In her Response, Marshall argues that the evidence is highly relevant and is not so prejudicial or misleading so as to render it inadmissible. [DN 71.] The Court agrees, and will deny Rawlings' Motion.

         A Performance Improvement Plan, or PIP, appears to be a tool utilized by Rawlings to help employees who are struggling with productivity to get back on track. During his deposition, Elsner testified about the 2013 discussions he had with Team Lead Matt Monyhan, (“Monyhan”), regarding the potential for putting a PIP in place for Marshall, a conversation that never materialized into a PIP being set for her. [DN 34-1, at 9.] These discussions were held due to Marshall's alleged low file inventory and excessive backlog in her 2013 mid-year evaluation. [Id.] Elsner stated that the reason he and Monyhan ultimately did not recommend putting Marshall on a PIP was that they were not sure whether or not to do so would have violated FMLA provisions. [DN 37-2, at 32-33.] In support of the instant Motion to exclude these conversations, Rawlings argues that the presentation of these discussions to the jury would (1) be unfairly prejudicial, (2) confuse the jury, and (3) be a waste of time, all contravening Fed.R.Evid. 403.

         With respect to Rawlings' first argument, the Sixth Circuit has held that “unfair prejudice within the context of Rule 403 means an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.” United States v. Hathaway, 798 F.2d 902, 909 (6th Cir. 1986) (quoting Fed.R.Evid. 403 advisory committee's note) (internal citations omitted). In short, Rawlings argues that to allow Marshall to present evidence of these discussions, and in particular, their comments on the legality of placing Marshall on a PIP so close to her FMLA leave, would twist the overall spirit of the discussion in the minds of the jurors “into something sinister….” [DN 48-1, at 4.] Conversely, Marshall argues that evidence of the discussion is highly probative and “shows that Defendant targeted Plaintiff for discharge.” [DN 71, at 3.] It is clear to the Court that, depending upon how the jury perceives these discussions, this evidence could be prejudicial to Rawlings, or it could have little to no effect. However, it is axiomatic that “all probative evidence is to some extent prejudicial, ” and so the mere fact that evidence one side seeks to have admitted is harmful to the opposing party cannot, in and of itself, warrant this Court's exclusion of that evidence. See United States v. McKibbins, 656 F.3d 707, 712 (7th Cir. 2011). In United States v. Mason, 294 F. App'x 193, 200 (6th Cir. 2008), the Sixth Circuit held that the trial court did not abuse its discretion in excluding medical records where the defendant was convicted for making false statements to obtain federal employees' compensation benefits and bankruptcy fraud. The trial court found that the medical records corroborating the defendant's testimony regarding his taking of antidepressants, although probative of his specific intent, held a great risk of misleading the jury and/or confusing the jury because the medical records were so attenuated in time (compiled in 1993 and no crimes were charged until 2001). Id. Additionally, the trial court found that to introduce these documents without an expert explanation would invite “guesses and speculation.” Id.

         Conversely, in this case, there is no such attenuation. The conversation between Elsner and Monyhan occurred directly within the relevant timeframe of Marshall's employment with Rawlings, her FMLA leave, and her demotion and termination. Moreover, a conversation between laypeople does not carry the same risks of confusion as medical records. The meat of the conversation between Elsner and Monyhan concerns whether to place Marshall on a PIP because she had fallen behind at work. This topic is very basic and the Court is confident that the jury would have the capacity to understand the discussions. Finally, Rawlings' argument that the introduction of the evidence could mislead the jury into thinking that Elsner's and Monyhan's comments concerning the legality (or illegality) of placing Marshall on a PIP so close to her FMLA leave was “sinister” in nature is a matter for the jury. It appears from Marshall's Response that she wishes to introduce evidence of this conversation to show that Defendants targeted her for discharge, but were put off because of her FMLA leave, [DN 71, at 2-3], much in the same way Rawlings would construe the discussions as “Rawlings opt[ing] not to impose the PIP because it did not want to violate Plaintiff's FMLA rights.” [DN 78, at 1.] These conflicting characterizations are issues for the jury to decide.

         Rawlings' final argument is that the introduction of one conversation between Elsner and Monyhan concerning the possibility of placing Marshall on a PIP would be a waste of time warranting exclusion under Fed.R.Evid. 403. The Court disagrees. Certainly, bringing the issue of PIPs before the jury will warrant Rawlings hammering out the issue further and explaining in more detail the idea of PIPs. However, this information would be, in the Court's estimation, highly probative and not a waste of time. The Court will deny this Motion. [DN 48.]

         VIII. Motion in Limine to Exclude Comments Allegedly Made by other Employees about Rawlings' Attitude towards FMLA Leave

         The next Motion at issue is Rawlings' Motion in Limine to exclude certain comments allegedly made by other Rawlings employees regarding the company's attitude toward FMLA leave. [DN 49.] In the Motion, though, Rawlings only references one Rawlings employee, Elizabeth Davidson (née Estrada).[1] Therefore, insofar as Rawlings has attempted, via this Motion, to exclude any comments made by any other Rawlings employees concerning the company's attitude toward FMLA leave, the Court must deny the Motion, as sufficient information has not been presented of any of these other alleged comments for the Court to pass judgment on their admissibility at a trial. Accordingly, this section will deal only with the issue of the admissibility of Davidson's testimony. In support of its contention that Davidson's testimony is inadmissible, Rawlings presents three arguments: first, that the information contained in her affidavit and, therefore, the subject matter of any testimony she would give, would be irrelevant under Fed.R.Evid. 401 and 402; second, that such testimony would be unfairly prejudicial under Fed.R.Evid. 403; and ...


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