UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION 3:18-cv-00612-RJC-DSC
SYLIVIA SMITH-PHIFER and LANCE ) PATTERSON, ) ) Plaintiffs, ) ) v. ) Order ) CITY OF CHARLOTTE, ) ) Defendant. ) )
THIS MATTER comes before the Court on the Parties’ motions in limine. (Doc. Nos. 263 & 267). In the interest of providing the parties with the Court’s rulings ahead of trial, the Court below lists the Parties’ relevant filings by docket number, a summary of the request, and the Court’s ruling. Additionally, the Court reserves ruling until they arise at trial on Defendant’s numerous objections made in chart-form to Plaintiff’s exhibits and its general objections to various categories of documents or other evidence, unless otherwise ruled on herein. (Doc. Nos. 281, 281- 1). I. OVERLAPPING REQUESTS
Doc. No. Request Ruling Plaintiffs’ Request: The Court should rule that Plaintiffs’ expert Dr. Kurt Geisinger is qualified to provide expert opinion testimony regarding his statistical analysis of the promotional process utilized by Defendant in the 2015-2018 battalion Plaintiffs’ request is GRANTED chief promotional processes. subject to voir dire qualification at trial. 264; 268 Defendant’s request is DENIED Defendant’s Request: The Court should exclude WITHOUT PREJUDICE. testimony from Plaintiffs’ expert witness Kurt Geisinger to the extent it is not based on sufficient facts or data, his report is not the product of reliable principles and methods, he failed to reliably apply Doc. No. Request Ruling the principles to the facts of this case, or it otherwise does not satisfy Fed. R. Evid. 702. Plaintiff’s request is GRANTED IN PART. Defendant’s request is Plaintiffs’ Request: The Court should take judicial DENIED WITHOUT PREJUDICE. notice of demographic information for the City of The Court will take judicial notice of Charlotte based on census data from the United relevant United States Census Bureau States Census Bureau. information presented by Plaintiffs at 264; 268; trial. Carter v. Ball, 33 F.3d 450 (4th 281 Defendant’s Request: The Court should exclude Cir.1994); Luh v. J.M. Huber Corp., 211 demographic and diversity data including U.S. Fed. App’x 143 (4th Cir. 2006); see also Census Bureau data regarding race in Charlotte from United States v. Cecil, 836 F.2d 1431, 2010 and 2020. 1452 (4th Cir. 1988); Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 571- 72 (5th Cir. 2011). Subject to any Court rulings on specific objections, Plaintiffs’ request is GRANTED. Defendant’s request is DENIED. Fed. R. Civ. P. 32(a)(8) and advisory Plaintiffs’ Request: The Court should allow notes; Fed. R. Evid. 801(d)(2)(D); see Plaintiffs to introduce deposition testimony of Ron also Kinslow v. 5 Star Field Srvcs. Carlee and Sheila Simpson from Eschert v. City of Group, LLC, No. 1:19-cv-1605-MLB, Charlotte. 264; 268; 2021 WL 3493564, at *3 (N.D. Ga.
281 Aug. 9, 2021)’ Pinkney v. Winn-Dixie Defendant’s Request: The Court should exclude Stores, Inc., No. CV214–075, 2014 WL deposition testimony, trial transcripts from Eschert 7272551, at *2 (S.D. Ga. Dec. 17, v. City of Charlotte. 2014); In re 3M Combat Arms Earplug
Prod. Liability Litigation, 338 F.R.D. 167, 170 (N.D. Fla. 2021); Brown v. Vivint Solar, Inc., --- F.Supp.3d ----, 2020 WL 2513518, at *2-3 (M.D. Fla. 2020). Plaintiffs’ Request: The Court should allow Plaintiffs to introduce deposition testimony of Plaintiffs’ request is DENIED. Mayor Lyles and City Manager Jones. 268; 271- Defendant’s request is GRANTED.
12 Fed. R. Civ. P. 32(a)(3), (4); Fed. R.
Civ. P. 30(b)(6). Defendant’s Request: The Court should exclude deposition testimony of Marcus Jones and Vi Lyles. Subject to any Court rulings on specific Plaintiffs’ Request: The Court should allow objections Plaintiffs’ request is 268; 271- Plaintiffs to introduce deposition testimony of Ron GRANTED. Defendant’s request is 12 Carlee and Brian Schweitzer. DENIED. Fed. R. Civ. P. 32(a)(4)(B). Doc. No. Request Ruling Defendant’s Request: The Court should exclude deposition testimony of Ron Carlee & Brian Schweitzer. Plaintiffs’ Request: The Court should allow The Court reviewed David Morris’s Plaintiffs to introduce deposition testimony of David deposition testimony and concludes 268; 271- Morris. based on the depositions that 12; 281 Defendant’s request is GRANTED. Defendant’s Request: The Court should exclude Plaintiffs’ request is DENIED. deposition testimony of Dr. Morris. Plaintiffs’ Request: The Court should allow Plaintiff Defendant’s request is GRANTED to introduce evidence dated before 2015, including subject to reconsideration at trial if the specifically from Plaintiffs’ exhibit list exhibits 14, Plaintiffs persuade the Court that the 24, 43, 44, 10, 23, and 49, as background information probative value is substantially supporting Plaintiffs’ claims or as evidence showing outweighed by a danger of unfair 264; 268; a pattern and practice of discrimination. prejudice, confusing the issues, 281 misleading the jury, undue delay, Defendant’s Request: The Court should exclude wasting time, or needlessly presenting evidence of events prior to 2015, specifically cumulative evidence. Plaintiff’s request documents related to the 2006-2014 promotional is DENIED WITHOUT processes and seven comparator witnesses related to PREJUDICE. Fed. R. Evid. 403. the promotional processes between 2009 and 2014. II. DEFENDANT’S REQUESTS
Doc. No. Request Ruling Neither granted nor denied. Defendant fails to identify any specific witness or exhibit that is duplicative, repetitive, The Court should not allow Plaintiff to introduce, and/or cumulative. However, the Court admit into evidence, or otherwise refer to 264 will not waste the jury’s time with duplicative, repetitive, and/or cumulative evidence duplicative, repetitive, and/or cumulative at trial. evidence. The Court will consider at trial any objections or requests to exclude specific testimony and exhibits. GRANTED. Plaintiffs did not file deposition transcript excerpts from Clumpner v. City of Charlotte as such the Court does not anticipate Plaintiffs The Court should exclude Plaintiffs’ use of 264; 271- introducing depositions from Clumpner deposition transcripts from Clumpner v. City of 12; 281 v. City of Charlotte. The Court will Charlotte. consider at trial any objections or requests related to such deposition transcripts if Plaintiffs attempt to introduce such transcripts. The Court should exclude the Motion for Summary Judgment filed in the Clumpner v. City of Charlotte 264 GRANTED. case and the Complaint and the City’s Answer from Summers v. City of Charlotte. Neither granted nor denied. Of course, The Court should not permit Plaintiff’s counsel to personal opinions of lawyers are not make comments in front of the jury regarding her permitted.
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION 3:18-cv-00612-RJC-DSC
SYLIVIA SMITH-PHIFER and LANCE ) PATTERSON, ) ) Plaintiffs, ) ) v. ) Order ) CITY OF CHARLOTTE, ) ) Defendant. ) )
THIS MATTER comes before the Court on the Parties’ motions in limine. (Doc. Nos. 263 & 267). In the interest of providing the parties with the Court’s rulings ahead of trial, the Court below lists the Parties’ relevant filings by docket number, a summary of the request, and the Court’s ruling. Additionally, the Court reserves ruling until they arise at trial on Defendant’s numerous objections made in chart-form to Plaintiff’s exhibits and its general objections to various categories of documents or other evidence, unless otherwise ruled on herein. (Doc. Nos. 281, 281- 1). I. OVERLAPPING REQUESTS
Doc. No. Request Ruling Plaintiffs’ Request: The Court should rule that Plaintiffs’ expert Dr. Kurt Geisinger is qualified to provide expert opinion testimony regarding his statistical analysis of the promotional process utilized by Defendant in the 2015-2018 battalion Plaintiffs’ request is GRANTED chief promotional processes. subject to voir dire qualification at trial. 264; 268 Defendant’s request is DENIED Defendant’s Request: The Court should exclude WITHOUT PREJUDICE. testimony from Plaintiffs’ expert witness Kurt Geisinger to the extent it is not based on sufficient facts or data, his report is not the product of reliable principles and methods, he failed to reliably apply Doc. No. Request Ruling the principles to the facts of this case, or it otherwise does not satisfy Fed. R. Evid. 702. Plaintiff’s request is GRANTED IN PART. Defendant’s request is Plaintiffs’ Request: The Court should take judicial DENIED WITHOUT PREJUDICE. notice of demographic information for the City of The Court will take judicial notice of Charlotte based on census data from the United relevant United States Census Bureau States Census Bureau. information presented by Plaintiffs at 264; 268; trial. Carter v. Ball, 33 F.3d 450 (4th 281 Defendant’s Request: The Court should exclude Cir.1994); Luh v. J.M. Huber Corp., 211 demographic and diversity data including U.S. Fed. App’x 143 (4th Cir. 2006); see also Census Bureau data regarding race in Charlotte from United States v. Cecil, 836 F.2d 1431, 2010 and 2020. 1452 (4th Cir. 1988); Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 571- 72 (5th Cir. 2011). Subject to any Court rulings on specific objections, Plaintiffs’ request is GRANTED. Defendant’s request is DENIED. Fed. R. Civ. P. 32(a)(8) and advisory Plaintiffs’ Request: The Court should allow notes; Fed. R. Evid. 801(d)(2)(D); see Plaintiffs to introduce deposition testimony of Ron also Kinslow v. 5 Star Field Srvcs. Carlee and Sheila Simpson from Eschert v. City of Group, LLC, No. 1:19-cv-1605-MLB, Charlotte. 264; 268; 2021 WL 3493564, at *3 (N.D. Ga.
281 Aug. 9, 2021)’ Pinkney v. Winn-Dixie Defendant’s Request: The Court should exclude Stores, Inc., No. CV214–075, 2014 WL deposition testimony, trial transcripts from Eschert 7272551, at *2 (S.D. Ga. Dec. 17, v. City of Charlotte. 2014); In re 3M Combat Arms Earplug
Prod. Liability Litigation, 338 F.R.D. 167, 170 (N.D. Fla. 2021); Brown v. Vivint Solar, Inc., --- F.Supp.3d ----, 2020 WL 2513518, at *2-3 (M.D. Fla. 2020). Plaintiffs’ Request: The Court should allow Plaintiffs to introduce deposition testimony of Plaintiffs’ request is DENIED. Mayor Lyles and City Manager Jones. 268; 271- Defendant’s request is GRANTED.
12 Fed. R. Civ. P. 32(a)(3), (4); Fed. R.
Civ. P. 30(b)(6). Defendant’s Request: The Court should exclude deposition testimony of Marcus Jones and Vi Lyles. Subject to any Court rulings on specific Plaintiffs’ Request: The Court should allow objections Plaintiffs’ request is 268; 271- Plaintiffs to introduce deposition testimony of Ron GRANTED. Defendant’s request is 12 Carlee and Brian Schweitzer. DENIED. Fed. R. Civ. P. 32(a)(4)(B). Doc. No. Request Ruling Defendant’s Request: The Court should exclude deposition testimony of Ron Carlee & Brian Schweitzer. Plaintiffs’ Request: The Court should allow The Court reviewed David Morris’s Plaintiffs to introduce deposition testimony of David deposition testimony and concludes 268; 271- Morris. based on the depositions that 12; 281 Defendant’s request is GRANTED. Defendant’s Request: The Court should exclude Plaintiffs’ request is DENIED. deposition testimony of Dr. Morris. Plaintiffs’ Request: The Court should allow Plaintiff Defendant’s request is GRANTED to introduce evidence dated before 2015, including subject to reconsideration at trial if the specifically from Plaintiffs’ exhibit list exhibits 14, Plaintiffs persuade the Court that the 24, 43, 44, 10, 23, and 49, as background information probative value is substantially supporting Plaintiffs’ claims or as evidence showing outweighed by a danger of unfair 264; 268; a pattern and practice of discrimination. prejudice, confusing the issues, 281 misleading the jury, undue delay, Defendant’s Request: The Court should exclude wasting time, or needlessly presenting evidence of events prior to 2015, specifically cumulative evidence. Plaintiff’s request documents related to the 2006-2014 promotional is DENIED WITHOUT processes and seven comparator witnesses related to PREJUDICE. Fed. R. Evid. 403. the promotional processes between 2009 and 2014. II. DEFENDANT’S REQUESTS
Doc. No. Request Ruling Neither granted nor denied. Defendant fails to identify any specific witness or exhibit that is duplicative, repetitive, The Court should not allow Plaintiff to introduce, and/or cumulative. However, the Court admit into evidence, or otherwise refer to 264 will not waste the jury’s time with duplicative, repetitive, and/or cumulative evidence duplicative, repetitive, and/or cumulative at trial. evidence. The Court will consider at trial any objections or requests to exclude specific testimony and exhibits. GRANTED. Plaintiffs did not file deposition transcript excerpts from Clumpner v. City of Charlotte as such the Court does not anticipate Plaintiffs The Court should exclude Plaintiffs’ use of 264; 271- introducing depositions from Clumpner deposition transcripts from Clumpner v. City of 12; 281 v. City of Charlotte. The Court will Charlotte. consider at trial any objections or requests related to such deposition transcripts if Plaintiffs attempt to introduce such transcripts. The Court should exclude the Motion for Summary Judgment filed in the Clumpner v. City of Charlotte 264 GRANTED. case and the Complaint and the City’s Answer from Summers v. City of Charlotte. Neither granted nor denied. Of course, The Court should not permit Plaintiff’s counsel to personal opinions of lawyers are not make comments in front of the jury regarding her permitted. The Court will not tolerate 264 opinion that the City did not provide certain counsel for either party making documents that were not questions to witnesses, but inappropriate and/or potentially rather personal opinions and impressions. prejudicial comments, opinions, and/or impressions in front of the jury. DENIED. The Court rejects Defendant’s failure to exhaust argument related to the following Title VII claims: (1) Smith-Phifer’s claims based on the 2015, 2018, and 2019 promotional The Court should exclude evidence regarding Title processes; and (2) Patterson’s claims 264; 281 VII claims for which Plaintiffs failed to exhaust based on the 2018 promotional process. administrative remedies. Fort Bend County v. Davis, 139 S. Ct. 1843, 1849 (2019); Walton v. Harker, 33 F.4th 165, 175 (4th Cir. 2022); Fed. R. Civ. P. 8(c)(1); Jones v. Bock, 549 U.S. 199, 212 (2007). Doc. No. Request Ruling Neither granted nor denied. Of course, The Court should exclude any hearsay testimony, hearsay is not admissible unless an 264 documents or other records. exception applies. The Court will apply the Federal Rules of Evidence. The Court should exclude any testimony from 264 Plaintiff’s expert witness Kurt Geisinger as it relates GRANTED. to Plaintiffs’ claims before 2015 and after 2018. DENIED WITHOUT PREJUDICE. Defendant fails to provide with any specificity the reasons that the Court The Court should exclude testimony from Plaintiff’s 264 should exclude Dr. Moira Artigues expert witness Dr. Moira Artigues. testimony. The Court will apply Federal Rule of Evidence 702 to any expert testimony. The Court should exclude testimony from Plaintiffs’ expert witnesses until a sufficient foundation for Neither granted nor denied. The Court 264 their expertise has been established and a sufficient will apply Federal Rule of Evidence 702 factual foundation for the expert witnesses’ opinions to any expert testimony. has been established. Defendant’s request is GRANTED subject to reconsideration at trial if the Plaintiffs persuade the Court that the probative value is substantially The Court should exclude evidence of other cases of outweighed by a danger of unfair discrimination and retaliation levied against the prejudice, confusing the issues, Charlotte Fire Department, including but not limited misleading the jury, undue delay, to, any evidence related to claims made by Larkin wasting time, or needlessly presenting 264; 281 Anderson, Lee Belton, Michael Clumpner, Kent cumulative evidence. Plaintiff’s request Davis, Crystal Eschert, Larry Mackey, Shane Nantz, is DENIED WITHOUT PREJUDICE. Marty Puckett, Tim Rogers, Greg Sharpe, or Willie Fed. R. Evid. 403. Summers. Subject to the Court’s ruling on any other objections made, this decision does not limit Plaintiffs from calling these witnesses for other reasons. DENIED as to Nick Delacanal for the The Court should exclude 14 potential witnesses that limited purpose of authenticating an were not previously disclosed by Plaintiffs in either exhibit. Fed. R. Civ. P. 37(c)(1); their Rule 26 Initial Disclosures or supplements Southern States Rack & Fixture, Inc. v. Rule 26 disclosures. Those witnesses are: Pam Sherwin-Williams Co., 3118 F.3d 592, 264; 281 Barkley, Kevin Coppage, Vicki Foster, Austin 597 (4th Cir. 2003). Nantz, Lee Belton, Nick Delacanal, Victoria
Johnson, Glenn Jones, Tommy McClain, Gary DENIED as to Kevin Coppage, Vicki McCormick, Jerry Newfarmer, Harry Peyton, Foster, Austin Nantz, Greg Sharpe, Mechelle Price, and Greg Sharpe. Victoria Johnson. Fed. R. Civ. P. Doc. No. Request Ruling 37(c)(1); Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 3118 F.3d 592, 597 (4th Cir. 2003).
GRANTED as to Lee Belton, Glenn Jones, Tommy McClain, Gary McCormick, Harry Peyton, Mechelle Price, Pam Barkley, and Jerry Newfarmer to the extent Plaintiffs seek to call these witnesses during their case-in- chief. Fed. R. Civ. P. 37(c)(1); Southern States Rack & Fixture, Inc. v. Sherwin- Williams Co., 3118 F.3d 592, 597 (4th Cir. 2003). RESERVE RULING. The Plaintiffs shall not call these witnesses until further argument before the Court and the The Court should exclude testimony from two Court’s ruling. The Court notes that the 264; 281 former City of Charlotte attorneys. proponent of the attorney-client privilege bears the burden to demonstrate its applicability. See Hawkins v. Stables, 148 F.3d 379, 382-83 (4th Cir. 1998). RESERVE RULING. Plaintiffs assert that they intend to admit a single exhibit that is a recording or interview the Fire Chief. The Court is willing to complete an in camera review of the interview if The Court should exclude all newspaper articles and Plaintiffs submit it for the Court’s 264; 281 news stories. review. Plaintiffs are not permitted to introduce the interview without further review and ruling from the Court due to potential prejudice, confusing the issues, and misleading the jury pursuant to Fed. R. Evid. 403. GRANTED. The Court will issue an adverse inference instruction on the relevant lost or destroyed responsive The Court should not permit Plaintiff to broadly and documents. The Court will consider any generally state in front of the jury that documents are objections to exclude comments made by missing, lost, or have been destroyed, but should 264 Plaintiffs and their counsel as they arise. only be allowed to discuss documents or information However, the Court will not tolerate actually missing that are relevant to Plaintiff’s counsel for either party making claims. inappropriate and/or potentially prejudicial comments, opinions, and/or impressions in front of the jury. Doc. No. Request Ruling The Court should exclude evidence of front pay and 264; 281 GRANTED. back pay before the jury. The Court should exclude the Court’s discovery orders, Memorandum & Recommendation, and the GRANTED IN PART AND DENIED Order Adopting the Memorandum & IN PART, as to the Court’s Orders Recommendation. Additionally, the Court should pursuant to Fed. R. Evid. 401 & 403. The 264; 281 not allow Plaintiff to reference, allude to, address Court will consider any objections made during voir dire, or introduce or elicit testimony or during trial as to the City’s discovery evidence of any objections stated in any of the City’s responses if they arise. written responses to discovery. Il. PLAINTIFFS’ REQUESTS Ruling The Court should exclude Aaron Phifer’s Complaint, his claims, and his deposition testimony. GRANTED. DENIED WITHOUT PREJUDICE. The Court should allow Plaintiff to introduce | The Court will allow the use of Chief 268 deposition testimony of Former Fire Chief Jon | Hannan’s deposition testimony if Chief Hannan. Hannan does not appear and comply with the trial subpoena. The Court should exclude evidence of the reasons DENIED WITHOUT PREJDUICE. . ae The Court will consider at trial any 268 Defendant did not promote Plaintiffs or the reasons □□□ . . . objections or requests to exclude specific why it selected other candidates for promotions. . ws testimony and exhibits. The Court exclude Defendant from arguing that it investigated Plaintiff Smith-Phifer’s July 1, 2016 | DENIED WITHOUT PREJDUICE. 268 discrimination complaint, March 2, 2017 grievance, | The Court will consider at trial any and June 30, 2018 complaint; and Plaintiff | objections or requests to exclude specific Patterson’s May 12, 2016 grievance and June 1, | testimony and exhibits. 2018 grievance.
SO ORDERED.
November 3, 2022
Robert J. Conrad, Jr. 9, United States District Judge “ee