United States District Court, D. Arizona
ORDER
HONORABLE ROSLYN O. SILVER SENIOR UNITED STATES DISTRICT
JUDGE.
Trial
is set to begin on October 1st but it remains unclear what
claims Plaintiff will pursue at trial. Plaintiff will be
required to file a statement identifying the precise legal
and factual basis for his claims. As for Defendant JCB Corp.,
it will be required to file a statement outlining the
specific evidence it wishes to exclude through its
motions in limine. And finally, the parties will be required
to submit another set of jury instructions in complete
compliance with the Court's requirements.
BACKGROUND
Plaintiff
Keith Turner worked as a truck driver for Defendant JCB
Corporation. Plaintiff was either an independent contractor
or an employee. According to Plaintiff, on May 26, 2016, he
received a phone call from Cody Eaton, the owner of JCB.
During that phone call, Eaton allegedly referred to Plaintiff
as a “nigger” and talked about the Ku Klux Klan.
Shortly after that call, Plaintiff complained about
Eaton's conduct. Plaintiff then continued to work for JCB
but soon thereafter JCB informed Plaintiff he had breached a
leasing agreement regarding a truck Plaintiff had been
leasing from JCB. Plaintiff disagreed that he had breached
the leasing agreement. Plaintiff then stopped working for JCB
and JCB repossessed the truck.
In
February 2017, Plaintiff filed the present suit alleging
claims for “hostile work environment” and
“retaliation” pursuant to 42 U.S.C. § 1981
and Title VII.[1] (Doc. 3). As alleged in the amended
complaint, the hostile work environment claims appeared to be
based solely on the phone call. As a result of the phone
call, Plaintiff alleged he had been “constructively
discharged.”[2] (Doc. 3 at 7). As for the retaliation
claims, Plaintiff alleged JCB took “away
[Plaintiff's] truck in violation of the lease agreement
and terminated his employment” shortly after he
complained about the phone call. (Doc. 3 at 9). Plaintiff has
never explained how he was “constructively
discharged” in connection with the alleged hostile work
environment but he was also “terminated” in
connection with his retaliation claim.
JCB
answered and asserted counterclaims for breach of contract
and breach of the covenant of good faith and fair dealing
based on Plaintiff allegedly not making all the payments due
under the lease agreement. The parties proceeded with
discovery but it appears neither side conducted much
discovery. The parties eventually filed cross-motions for
summary judgment but those motions did not address the nature
of Plaintiff's non-retaliation claims in any detail. That
is, there was no discussion whether Plaintiff was pursuing
“hostile work environment” claims,
“disparate treatment” claims, or some
combination. The summary judgment motions were denied and the
case was set for trial.
The
parties' Joint Proposed Pretrial Order does not clearly
set forth what claims Plaintiff will pursue at trial. In the
section of that document regarding the “nature of this
action, ” the parties merely state this is “an
employment discrimination case, where Plaintiff claims his
former employer called Plaintiff multiple derogatory
names.” (Doc. 89 at 2). And in the section requiring
Plaintiff list the elements of his claims, Plaintiff merely
states he must prove he “was discriminated against
and/or harassed based on his race” and that he was
retaliated against when he complained. While the Joint
Proposed Pretrial Order does not state whether Plaintiff is
pursuing “hostile work environment” claims or
“disparate treatment” claims, the joint proposed
jury instructions contain instructions regarding both types
of claims. The jury instructions indicate the parties have
objections to some of the proposed instructions but, contrary
to the Court's procedures, the parties did not provide
explanations of their objections nor responses to the
objections.
ANALYSIS
I.
Plaintiff's Claims
In an
attempt to streamline the trial, Plaintiff will be required
to file a statement outlining the precise claims he plans to
pursue at trial. For each claim, Plaintiff must state the
elements he must prove at trial and provide a brief statement
of the evidence he will offer establishing that element. For
example, if Plaintiff plans on pursuing a “hostile work
environment” claim, he must identify the elements of
that claim and set forth the facts he will prove to establish
each element. If Plaintiff's “hostile work
environment” claim is based on a single phone call, he
must provide legal authority establishing a single phone call
can be a sufficient basis for establishing “hostile
work environment” liability.
Beyond
the uncertainty surrounding Plaintiff's claims, there is
another dispute about the applicability of Title VII. The
parties disagree whether JCB had enough employees for Title
VII to apply. As the party who will bear the burden of
proving Title VII applies, Plaintiff's statement must
also identify the evidence he will offer to prove JCB had at
least fifteen employees during the relevant time period.
II.
Motions in Limine
JCB
filed four motions in limine. Those motions argue Plaintiff
did not properly disclose evidence and, even if the
disclosure issues are overlooked, there are substantive
reasons why the evidence will not be admissible. JCB's
disclosure arguments are not convincing and, to the extent
JCB has substantive objections, it has not outlined the
specific evidence in sufficient detail to allow the Court to
resolve most of the disputes.
A.
Preclude Mike Moore from Testifying
In his
First Supplemental Disclosure Statement, Plaintiff listed
Mike Moore under the section regarding individuals who were
“likely to have discoverable information that
[Plaintiff] may use to support [his] claims.” (Doc.
75-1 at 3). In addition to listing Moore and providing his
telephone number, Plaintiff stated “Mr. Moore was an
Owner-Operator working under Mr. Turner. Mr. Moore was also
subject to discrimination by Defendants, and will testify
regarding the same.” (Doc. 75-1 at 4). Despite this
disclosure, JCB allegedly did not seek any written discovery
regarding Moore. Moreover, JCB allegedly did not ask
Plaintiff about Moore during Plaintiff's deposition nor
did JCB take Moore's deposition.
JCB now
seeks to prevent Moore from testifying at trial. According to
JCB, Plaintiff's disclosure of Moore was inadequate
because it did not explain “how and when Mr. Moore was
subject to discrimination, or by whom.” (Doc. 75 at 3).
JCB also argues any testimony by Moore would be
“hearsay” and any testimony would be inadmissible
pursuant to Federal Rule of Evidence 404(b). Plaintiff
responds that his disclosure of Moore was appropriate but,
even if not, JCB had ample opportunity to clarify the basis
of Moore's planned testimony during discovery. ...