Dorchy v. Fifth Third Bank

584 F.Supp.3d 424

Natasha DORCHY, Plaintiff,

v.FIFTH THIRD BANK, Defendant.

Case No. 1:21-cv-10078

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

Signed February 8, 2022

Amanda M. Ghannam, Nacht Roumel & Hurwitz PC, Detroit, MI, Samuel L. Estenson, Deloof, Dever, Eby, Milliman, and Issa PLLC, Nicholas Roumel, Ann Arbor, MI, for Plaintiff.

Deborah L. Brouwer, Susan D. Koval, Nemeth Law, P.C., Detroit, MI, for Defendant.

OPINION AND ORDER GRANTING PLAINTIFF'S MOTIONS IN LIMINE

THOMAS L. LUDINGTON, United States District Judge

Plaintiff's employment with Defendant was terminated, she alleges, because she reported to her employer that she was a victim of domestic violence. She has filed two motions in limine in anticipation of trial. ECF Nos. 36; 37. Both will be granted.

I.

Until recently, Defendant Fifth Third Bank employed Plaintiff Natasha Dorchy since 2007. ECF No. 26 at PageID.344. Plaintiff was the putative victim of a domestic altercation with her spouse, which she reported to the police and Child Protective Services (CPS). See ECF No. 23 at PageID.205–09. Plaintiff also reported the incident to Defendant, her employer, as required by company policy. See id. Defendant placed Plaintiff on administrative leave, conducted an internal investigation, paid for an external assessment, and then terminated her employment in October 2020. See id. at PageID.205–12. In January 2021, Plaintiff brought a complaint alleging that Defendant's termination of Plaintiff's employment violated the Michigan Whistleblowers’ Protection Act, MICH. COMP. LAWS § 15.361 et seq. See ECF No. 1; ECF No. 23 at PageID.189.

In October 2021, Defendant filed a motion for summary judgment, to which Plaintiff responded. See ECF Nos. 23; 25; 26. Defendant's motion for summary judgment was denied. See generally Dorchy v. Fifth Third Bank , No. 1:21-CV-10078, 2021 WL 5989040 (E.D. Mich. Dec. 17, 2021) ; ECF No. 28.

On January 3, 2022, Defendant filed a notice of its intent to call six lay witnesses and one expert witness. ECF No. 31. Among the lay witnesses, Defendant identified Mr. Bill Irwin of Threat Assessment Group ("TAG"), an outside consultant to Fifth Third Bank.

Fifteen days later, Plaintiff filed two motions in limine. One motion seeks to exclude evidence of a severance offer Defendant made to Plaintiff. ECF No. 36. The other motion seeks to exclude opinion testimony of Bill Erwin as well as limit his lay testimony to nonhearsay matters of which he has personal knowledge. ECF No. 37. Plaintiff's papers reflect that she sought but did not obtain Defendant's concurrence. Yet Defendant filed no responses.

Plaintiff's motion to bar introduction of the severance offer into evidence will be granted infra Part II, and her motion to exclude Bill Erwin's testimony will be granted infra Part III.

II.

Plaintiff's first motion in limine seeks to exclude a separation agreement under Federal Rule of Evidence 408. ECF No. 36. The nine-page-long "Separation Agreement and General Release of All Claims" (the "Agreement") offers a payment of $16,000 in exchange for the release of all Plaintiff's claims; on October 15, 2020, it was forwarded to Plaintiff by Defendant's employee, Ms. Jenean Ferree. ECF No. 36-1 at PageID.779–88.

Rule 408 reads in full:

(a) Prohibited Uses. Evidence of the following is not admissible—on behalf of any party—either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering--or accepting, promising to accept, or offering to accept--a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim--except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

FED. R. EVID. 408.

No doubt, Defendant's "separation agreement and general release of all claims" is a "furnishing, promising, or offering" under Rule 408(a)(1). A separation agreement that a defendant-employer sent shortly after a plaintiff-employee engaged in the conduct alleged to be the reason for termination is "clearly an offer of compromise within the meaning of Rule 408." See Macsherry v. Sparrows Point, LLC , 973 F.3d 212, 223 (4th Cir. 2020) (quoting Weems v. Tyson Foods, Inc. , 665 F.3d 958, 965 (8th Cir. 2011) ). Indeed, in the Agreement, Defendant offered to pay Plaintiff in exchange for her "promises , covenants, and agreements," as described in the Agreement. ECF No. 36-1 at PageID.780 (emphasis added).

The Agreement is not admissible to prove the validity or amount of the claim or to impeach Plaintiff by prior inconsistent testimony. FED. R. EVID. 408(a). Further, though there are exceptions to Rule 408(a) in Rule 408(b), Defendant has made no effort to establish whether or how any such exception applies to the Agreement.

For these reasons, Plaintiff's motion in limine to exclude the Agreement, ECF No. 36, will be granted, and the Agreement will therefore not be admissible into evidence at the trial.

III.

Plaintiff's second motion in limine seeks to exclude the testimony of Bill Erwin—who Defendant identified as only a fact witness in its disclosures—under Federal Rule of Evidence 701. ECF No. 37. Because Defendant did not disclose Bill Erwin's testimony as an expert, the admissibility of his testimony will be analyzed only as a lay witness. See FED. R. CIV. P. 26(a)(2).

Rule 701 establishes the admissibility of lay-witness testimony and reads in full:

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness's perception;

(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

FED. R. EVID. 701.

In 2000, Congress amended Rule 701 "to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing." FED. R. EVID. 701 advisory committee's note to 2000 amendment. To that end, Congress intended to "ensure[ ] that a party will not evade the expert witness disclosure requirements set forth in Fed.R.Civ.P. 26 and Fed.R.Crim.P. 16 by simply calling an expert witness in the guise of a layperson." Id.

Bill Irwin's lay testimony must be excluded from trial because it (1) is expert testimony submitted under the guise of lay testimony; (2) is not rooted in personal knowledge; and (3) would not be helpful to the trier of fact.

A.

Lay witnesses may testify to facts and limited opinions but may not invade the realms of experts. Harris v. J.B. Robinson Jewelers , 627 F.3d 235, 240 (6th Cir. 2010) ("[L]ay testimony results from a process of reasoning familiar in everyday life, whereas an expert's testimony results from a process of reasoning which can be mastered only by specialists in the field." (quoting United States v. White , 492 F.3d 380, 401 (6th Cir. 2007) )); see also Jewett v. Am. Nat'l Prop. & Cas. Ins. , No. 19-CV-02015-CMA-STV, 2021 WL 791500, at *2 (D. Colo. Mar. 1, 2021) ("A party cannot offer de facto expert testimony under the guise of presenting lay witness testimony." (citing James River Ins. v. Rapid Funding, LLC , 658 F.3d 1207, 1216 (10th Cir. 2011) )).

According to Defendant, "Bill Irwin of TAG, [is] an expert in workplace threat assessment." ECF No. 23 at PageID.209. Indeed, in deciding to terminate Plaintiff, Defendant "arrange[d] for a consultation with a threat assessment expert who review[ed] the facts and provide[d] advice to a multidisciplinary workplace violence team within Fifth Third." Id. at PageID.199; see also id. at PageID.209 ("The purpose of the call was for Mr. Irwin to provide expert advice about the risk of violence posed to the workplace and assist [Defendant's] attorney in rendering legal advice with respect to the legal risks associated with [Defendant's] response to situations of potential violence.").

Moreover, Bill Irwin completed an expert report on the circumstances of this case. Indeed, he indicated that he conducted a "workplace risk assessment" to produce "a written report containing [his] observations and recommendations," which Defendant calls an "expert analysis." ECF Nos. 23-2 at PageID.224; 23-7 at PageID.276, 278; see also ECF No. 26-10 at PageID.642–45 (Irwin Report). And Defendant admittedly relied on Bill Irwin's "expert assessment" to terminate Plaintiff's employment. ECF No. 23-2 at PageID.228.

Federal courts overwhelmingly recognize expert testimony on workplace violence. See, e.g., BHC Nw. Psychiatric Hosp., LLC v. Sec'y of Lab. , 951 F.3d 558, 561–63 (D.C. Cir. 2020) (reviewing an ALJ's qualification of a workplace-violence expert; Ward v. Bechtel Corp. , 102 F.3d 199, 203 (5th Cir. 1997) (recognizing the "hiring two workplace violence experts to conduct a risk assessment"); Jones v. L.F. Grp. , No. 3:18CV91-GHD-RP, 559 F.Supp.3d 550, 552–54 (N.D. Miss. Sept. 13, 2021) (admitting evaluations of "the hiring and pre-employment screening of employees regarding preventing workplace violence" as "expert testimony in the field of human resources management"); United States v. Wells , No. 3:13-CR-00008-SLG, 2019 WL 3229912, at *2–4 (D. Alaska July 17, 2019) (qualifying "a forensic psychiatrist and criminologist" to give expert testimony "regarding workplace violence"); Garrow v. Norcross Safety Prods., LLC , No. 08-4066, 2010 WL 2044941, at *7 (C.D. Ill. May 24, 2010) (determining the weight of an expert report on "workplace violence policy"); In re...