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Turner v. JCB Corporation

United States District Court, D. Arizona

September 4, 2019

Keith Turner, Plaintiff,
JCB Corporation, et al., Defendants.



         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.


         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.


         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. ...

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