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Walker v. Caidan Management Company, LLC

United States District Court, E.D. Michigan, Southern Division

January 16, 2018




         Plaintiff filed this action on April 22, 2015, alleging that Defendant discriminated and retaliated against her on the basis of her race and disability, in violation of Title VII, the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), the Michigan Elliott-Larsen Civil Rights Act (“ELCRA”), and the Michigan Persons with Disabilities Civil Rights Act (“MPWDCRA”). On September 11, 2017, the Court entered an Order granting in part and denying in part Defendant's Motion for Summary Judgment [Dkt. No. 54]. Plaintiff's race discrimination claims under Title VII and ELCRA were dismissed, but Plaintiff's claims pursuant to the ADA, MPWDCRA, and FMLA remain pending.

         The parties have filed nine motions titled Motion in Limine, four by Defendant (to which a response but not a reply has been filed for each motion) and five by Plaintiff (to which a response and a reply have been filed for each motion). The nine motions in limine are addressed below. The Court incorporates by reference its findings and conclusions set forth in the September 11, 2017 Order.

         A. Docket No. 55

         Defendant moves the Court for an order precluding Plaintiff from introducing evidence of damages “beyond lost wages and to preclude evidence related to any attempts to mitigate damages.” Defendant argues that Plaintiff failed to itemize her damages until one day before the joint pretrial order was due, prejudicing Defendant's ability to assess the damages and refute them. Defendant relies on Rule 26(a)(1)(A)(iii), (e)(1) and (2) and (a)(1)(E).

         The Court denies Defendant's motion. First, although Defendant does not appear to challenge damages related to lost wages, the lost wages and bonuses are information known to Defendant because they are based on the amounts Plaintiff was paid while working for Defendant. The parties have stipulated to exhibits that include Plaintiff's salary, bonuses, and wages for the last years of her employment by Defendant. Second, damages for emotional distress and punitive damages are not objectively calculable, so there was no need for Defendant to itemize those amounts for Defendant during discovery. Third, liquidated damages are determined by a formula that is put in motion after a jury's determination of damages, so there was no need to calculate that amount during discovery. Fourth, the Court, not the jury, determines interest, and attorney fees and costs, if necessary.

         Although Defendant suggests that Plaintiff did not provide evidence of her mitigation efforts, the record reflects that Plaintiff testified at her deposition about making job applications and furthering her education. Dkt. No. 75, Ex. A at 14-16, 51-53, 69-70. And, the record reflects that, by the time Defendant filed its motion, Plaintiff had provided Defendant with documentation evidencing her job search testimony. Dkt. No. 55 at 9.

         The Court finds that Defendant has good reason to challenge Plaintiff's delayed production of documents that supported her job search testimony. Those documents were produced: (1) only after numerous requests (including at least six times during the 10 month period after Plaintiff testified about her job search); and (2) on the eve of the filing of the joint pretrial order. It does strain the limits of credulity that Plaintiff could not find the documents for nearly 11 months after expressly being asked at her deposition to provide them, yet she could find them the day before the joint pretrial order was due. Despite Plaintiff's delayed production, the Court finds that Defendant has not been unfairly prejudiced by Plaintiff's production of those documents. The documents merely evidence the job search efforts Plaintiff described at her deposition, and they are not documents that require taking depositions or requesting further information. In addition, the trial in this matter was still over three months away when Defendant received the documents at issue. As Plaintiff states, “[i]f Defendant wants to cross-examine Plaintiff about why she did not find them previously, it can[.]”

         The Court denies Defendant's motion to preclude Plaintiff from introducing evidence of damages “beyond lost wages and to preclude evidence related to any attempts to mitigate damages.”

         B. Docket No. 56

         Defendant requests that the Court preclude Plaintiff from introducing testimony and evidence regarding the August 29, 2013 Performance Improvement Plan (“PIP”). Defendant argues the PIP is irrelevant because Defendant determined the PIP was: (a) not the appropriate course of action at that time; (b) never provided to Plaintiff; and (c) was not the basis for any adverse action against Plaintiff. Defendant suggests that, if the PIP is relevant, evidence regarding the PIP should be excluded as its probative value is substantially outweighed by the danger of unfair prejudice.

         The Court does not agree with Defendant's positions. The Court finds that the PIP is relevant because it may be probative of Defendant's treatment of Plaintiff with respect to taking FMLA leave, including a manner in which Defendant contemplated disciplining her for taking leave. The Court concludes that, although the introduction of such evidence may not be favorable to Defendant, its introduction would not be unfairly prejudicial to Defendant. Most significantly, it is a document produced by Defendant, and Plaintiff may rely upon it at trial.

         Defendant's motion to preclude evidence of the PIP is denied.

         C. Docket No. 57

         Defendant moves to preclude the introduction of - or attempts to introduce - any evidence of purported FMLA violations occurring prior to March 2014. Defendant contends that Plaintiff never alleged any pre-March 2014 FMLA violations in her complaint or during the course of discovery and that Plaintiff's FMLA claim is limited to her termination. Defendant states that the first time pre-March 2014 FMLA violations were introduced was in Plaintiff's response brief to Defendant's summary judgment motion. Defendant focuses on Plaintiff's deposition testimony, specifically when she answered “Yes” to the question: “Okay. Correct me if I'm wrong, but your claim for violation of the Family Medical Leave Act is that you were told by someone at [Defendant] that . . . you had eligibility under FMLA and that during the time you were getting the paperwork filled out, you were improperly terminated; is that correct?”

         The Court denies Defendant's motion for two reasons. First, Defendant's motion is an attempt to have the Court make a determination that is dispositive as to Plaintiff's FMLA claim. The dispositive motion cut-off was February 28, 2017, eight months prior to the filing of this motion. Second, just as Defendant did when briefing its summary judgment motion, Defendant ignores several allegations in Plaintiff's Amended Complaint. See Dkt. No. 15, Paragraph ¶¶ 17, 22-23, 25, 36, 42, 43, 45, 48, 53, 57. See also Dkt. No. 54, PgID 1228-30 (emphasis added), where the Court stated:

Plaintiff alleges that Defendant's Motion does not address her claims that Defendant violated her rights under the FMLA on numerous occasions:
(1) April 13, 2012 - Defendant required a second opinion about Plaintiff's asthma, in violation of 29 CFR § 825.307.
(2) May 2013 - Defendant refused to allow Plaintiff to return to her position, refused to give her training in the Inpatient Review Nurse position, gave her higher goals to obtain than others who had not taken FMLA leave, made the goals impossible to achieve by failing to give her the work and equipment necessary to achieve her goals, subjected her to increased scrutiny and falsely reported her goals to create an appearance of poor performance. Citing 29 C.F.R. § 825.214; Arban, supra; [Dkt. No. 47, Ex. O, R, T, U, X, Y]
(3) August 2013 - Defendant interfered with Plaintiff's FMLA rights by requiring Plaintiff to call in every day of her leave and considered firing her despite having prior notice of the leave. Citing Dkt. No. 47, Ex. W and 29 C.F.R. § 825.311.
(4) August 29, 2013 - While Plaintiff was on FMLA leave, Defendant planned to discipline Plaintiff, in part, for her attendance while on FMLA leave, because while she was on leave, her work did not get done. Citing Dkt. No. 47, Ex. V and Skrjanc, supra; Arban, supra.
(5) September 2013 - Defendant failed to inform Plaintiff of how many FMLA hours she had left/had used before Plaintiff exhausted her FMLA hours. Defendant waited for almost two weeks after it claimed her leave had been exhausted to inform Plaintiff that she had exhausted her leave. Dkt. No. 47, Exhibit AA; 29 C.F.R. § 825.300(d)(6); 29 C.F.R. § 825.300(e). During that time, Defendant cancelled her health ...

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