Davis v. Metro. Gov't of Nashville & Davidson Cnty., Tenn.

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SARA SHEA “SALLY” DAVIS, Plaintiff, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, Defendant.

No. 3:17-CV-00773

United States District Court, M.D. Tennessee, Nashville Division

September 10, 2024

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge:

Plaintiff Sara Shea “Sally” Davis, alleges in her remaining claim that she experienced a hostile environment at her former employer, Defendant Metropolitan Government of Nashville and Davidson County, Tennessee, in retaliation for having made a sex-discrimination complaint to Defendant's human-resources department, in violation of Title VII of the Civil Rights Act and the Tennessee Human Rights Act. Before us are the parties' motions in limine and other disputed pretrial materials. This opinion sets forth decisions on these matters in preparation for trial.

LEGAL STANDARDS

We have broad discretion, pursuant to our “inherent authority to manage the course of trials,” in ruling on questions presented in motions in limine. Luce v. United States, 469 U.S. 38, 41 n.4 (1984); see also Corbin v. Steak 'n Shake, Inc., 861 Fed.Appx. 639, 644 (6th Cir. 2021). “The Federal Rules of Evidence, the Federal Rules of . . . Civil Procedure and interpretive rulings of the Supreme Court and this court all encourage, and in some cases require, parties and the court to utilize extensive pretrial procedures-including motions in limine-in order to narrow the issues remaining for trial and to minimize disruptions at trial.” United States v Brawner 173 F.3d 966, 970 (6th Cir. 1999). “Evidence should be excluded on a motion in limine only if it is clearly inadmissible,” and if the court is unable to determine whether certain evidence meets this standard, it should defer ruling until trial “so that questions of foundation relevancy, and potential prejudice can be evaluated in proper context.” Williams v. Tech. for Energy Corp., No. 3:12-CV-423-TAV-HBG, 2013 WL 6181816, at *1 (E.D. Tenn. Nov. 25, 2013) (internal punctuation and citation omitted). Our pretrial rulings are “subject to change when the case unfolds,” so we may revisit our preliminary evidentiary determinations as appropriate at trial. See Luce, 469 U.S. at 41-42; see also United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994).

ANALYSIS

A. Plaintiff's Motion in Limine

The parties' Joint Statement of the Case, set out in their Proposed Joint Pretrial Order, includes a brief summary of the claim and defenses. Included in the summary of the defenses is the statement that Defendant “asserts that [Plaintiff's] claims are barred by the applicable statute of limitations.” (Dkt. No. 116 at 2.) Plaintiff filed a single motion in limine, seeking to exclude evidence or argument regarding the statute of limitations. Plaintiff contends that this issue “has already been decided by the Court,” (Dkt. No. 135 at 1), citing our post-remand order denying Defendant's motion for summary judgment, in which we stated as follows in pertinent part:

As a final matter, we have not considered certain arguments the parties made in their summary judgment briefing because these arguments are not properly before us on remand. A party that does not make an argument on appeal cannot later raise that argument on remand. See JGR, Inc. v. Thomasville Furniture Indus., Inc., 550 F.3d 529, 532-33 (6th Cir. 2008) (the plaintiff's failure to challenge the district court's lost profits award on appeal “waived any right to relitigate the issue in the retrial for damages”); United States v. Adesida, 129 F.3d 846, 849-50 (6th Cir. 1997) (the defendant's failure to raise certain issues in his prior appeal “waived his right to raise these issues before the district court on remand”); see also United States v. Husband, 312 F.3d 247, 250 (7th Cir. 2002) (identifying, as a major limitation on the scope of a remand, the fact that “any issue that could have been but was not raised on appeal is waived and thus not remanded”). Defendant argues on remand that the entirety of Plaintiff's retaliatory harassment claim is time-barred. But Defendant did not make this argument in briefing Plaintiff's appeal from [our summary judgment ruling].... By failing to raise th[is] argument[] on appeal, [Defendant] waived [its] right to pursue [it] on remand.

What is more, under the mandate rule, a district court addressing a case on remand is bound “to the scope of the remand issued by the court of appeals” and cannot “expand its inquiry beyond the matters forming the basis of the appellate court's remand.” Monroe v. FTS USA, LLC, 17 F.4th 664, 669 (6th Cir. 2021) (quotation marks omitted). The basis for the Sixth Circuit's remand was our failure . . . to look beyond the terms and conditions of Plaintiff's employment and our failure to assess whether the cumulative effect of the actions at issue would dissuade a reasonable worker from making a charge of discrimination. It had nothing to do with the timeliness of Plaintiff's retaliatory harassment claim ....The Sixth Circuit also remanded the case for a particular purpose: so we could “determine whether the conduct of Plaintiff's employer, in a cumulative assessment, would have dissuaded a reasonable employee from making a charge of discrimination.” We do not interpret this specific instruction as authorizing us to consider whether Plaintiff's retaliatory harassment claim is time-barred See, e.g., Monroe, 17 F.4th at 669-71 (prior opinion that remanded the case “for recalculation of damages consistent with this opinion” did not authorize the district court on remand to address judicial estoppel and sufficiency of the evidence arguments); McMurtry v. Paul Revere Life Ins. Co., 67 Fed.Appx. 290, 295-96 (6th Cir. 2003) (prior opinion that remanded the case “for a redetermination of the attorney-fees question in a manner consistent with this opinion” did not authorize the district court to consider on remand the plaintiff's unrelated estoppel argument). Defendant's timeliness argument . . . [is] beyond the scope of [the Sixth Circuit's] remand as well.

Davis v. Metro. Gov't of Nashville & Davidson Cnty., No. 3:17-CV-00773, 2022 WL 860436, at *10-11 (M.D. Tenn. Mar. 22, 2022) (some citations omitted).

In response to Plaintiff's motion, Defendant asserts that our ruling did not “operate to exclude Metro from asserting a statute of limitations defense at trial” and that Plaintiff interprets it too broadly. (Dkt. No. 141 at 2.) But that assertion ignores our express holding that Defendant waived its right to pursue a limitations defense on remand by failing to raise it on appeal. Plaintiff's motion in limine is therefore granted.

B. Defendant's Motions in Limine

Defendant brings eight motions in limine, all of which are opposed.

1. Defendant's Motion in Limine 1

Defendant seeks to exclude evidence of and references to “certain pornographic and racially inappropriate materials” that were found in spring 2017 in the briefcase of one of Plaintiff's coworkers, John Holmes. (Dkt. No. 122 at 1-2.) Defendant's primary argument is that this evidence is irrelevant because the items were found a month or two after the retirement of Tommy Lynch, the sole supervisor who Plaintiff alleges subjected her to retaliatory harassment amounting to a hostile workplace, so Holmes was disciplined by a different supervisor, Monique Odom. (Id. at 2-3.)

Plaintiff does not dispute the timing of these events or the fact that Odom, and not Lynch, disciplined Holmes, but she nonetheless asserts that evidence of the briefcase's contents and the fact that Holmes was “merely given a reprimand,” which was “not even close to the level of retaliatory harassing conduct Plaintiff endured,” will “help[] to prove Plaintiff's case.” (Dkt. No. 146 at 3-4.) We are unpersuaded. To prove her claim, Plaintiff will have to show that a supervisor subjected her to severe or pervasive retaliatory harassment that was causally related to her June 2013 sex-discrimination complaint. See Ogbonna-McGruder v. Austin Peay State Univ., 91 F.4th 833, 841 (6th Cir.), cert. denied, No. 23-1238, 2024 WL 3089575 (U.S. June 24, 2024); Davis, 2022 WL 860436, at *4. The allegedly harassing actions at issue here were those of Lynch, who retired prior to the time of the briefcase events. Plaintiff does not explain which element of her claim would be supported by the briefcase evidence, and its relevance is not apparent to the Court. Accordingly, we grant Defendant's motion in limine 1.

2. Defendant's Motions in Limine 2 and 4

In its motion in limine 2, Defendant seeks to bar from trial references to “any claim of constructive discharge.” (Dkt. No. 123 at 1.) Defendant argues that since Plaintiff has made no claim of constructive discharge and “admits that she voluntarily retired from her position,” any assertion to the contrary should be excluded as “irrelevant, misleading, and improper.” (Id.) Defendant adds: “And because Plaintiff has not alleged that she was constructively discharged, any alleged economic or emotional distress damages resulting from her voluntary retirement should be barred from trial as well.” (Id. at 3.)

Plaintiff contends in response that she should be “allowed to present evidence supporting her claim[] of retaliatory harassment which, here, includes her early retirement,” and she refers to her “forced early resignation.” (Dkt. No. 147 at 1-2.) Plaintiff also “disputes that she is ineligible for lost wages in connection with her early retirement” and contends that even if she “had to show a higher bar for back pay, that the retaliatory harassment created an intolerable work environment justifying early retirement, which standard Plaintiff asserts is not required for the jury to consider evidence of what monies would or could ‘restore' Plaintiff to a...