Equal Emp't Opportunity Comm'n v. Werner Enters.

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EQUAL OPPORTUNITY EMPLOYMENT COMMISSION, Plaintiff, and ANDREW DEUSCHLE, Intervenor Plaintiff, v. WERNER ENTERPRISES, INC., Defendant.

No. 8:18-CV-329

United States District Court, D. Nebraska

June 3, 2023

MEMORANDUM AND ORDER

JOHN M. GERRARD SENIOR UNITED STATES DISTRICT JUDGE

This matter comes before the Court on both parties' motions in limine (filing 299, filing 303, filing 314). For the convenience of the parties, the Court has organized this Order into three categories of motions - the first of which are uncontested and will all be granted, the second of which will all be overruled without prejudice and may be reasserted as or if needed during trial, and the final on which the Court heard argument in open court on June 2, 2023.

I. UNCONTESTED MOTIONS

The plaintiffs' #4, 7, 8, 14, and 23 are uncontested and granted. The defendant's #11, 12, 13, 14, 15, 16, and 17 are uncontested and granted.

II. OVERRULED WITHOUT PREJUDICE

Several of the plaintiffs' motions will be better adjudicated during the trial. These motions do not raise an issue of unfair prejudice and the Court does not consider it prudent to rule on these matters prior to hearing the evidence. The plaintiffs' #1, 5, 9, 10, 12, 13, 16, 20, and 22 are overruled without prejudice and may be reasserted if needed during the trial.

The Court will advise the parties that a lay witness is able to opine as to safety or financial liability only if proper foundation is laid. This is relevant to the plaintiffs' #9 and 12. Evidence which was not properly disclosed naturally cannot be admitted.

III. OTHER MOTIONS

PLAINTIFFS' MOTIONS IN LIMINE

Plaintiffs' #2: Failure to Mitigate After 2018

The disagreement for this issue is related to the defendant's motion #7 regarding backpay. For the reasons explained in more detail below, the jury will hear evidence on backpay. The plaintiffs' motion to exclude evidence regarding Deuschle's failure to mitigate or regarding offsetting damages from 2019 to the present is not contested and will be granted.

Plaintiffs' #3: Subsequent Employment

Related to the above motion regarding evidence of failure to mitigate, the plaintiffs seek to exclude evidence regarding alleged performance issues Deuschle had in jobs obtained after Werner rejected him in 2015, and plaintiffs want to exclude reasons why Deuschle left various subsequent employment from 2019 to the present, after the backpay period. Werner argues that if the plaintiffs "are permitted to offer evidence of Deuschle's post-application performance, training, accolades or awards Werner should similarly be entitled to offer evidence of Deuschle's post-application performance issues."

Filing 307 at 5. The Court agrees with Werner, and will not allow either type of evidence. The relevance as to both is minimal with respect to the issues that ought to be tried in this case.

To the extent the plaintiffs seek to introduce evidence that Deuschle was hired by a trucking company which trained him, such evidence is relevant to whether Werner could have reasonably accommodated Deuschle. Werner can refute this by showing that Deuschle had additional qualifications he obtained after being rejected by Werner. As noted, the Court agrees that performance issues or reasons he left certain jobs after 2019 are not relevant. The plaintiffs' motion on this issue is granted in part.

Plaintiffs' #6: Videos of Driving by Deaf Individuals

Based on the briefing provided by the party, the particular video at issue is a video of Victor Robinson, a deaf truck driver, driving with Don Olds, the plaintiffs' expert, created by the expert in preparation for this case. The video, allegedly, depicts the driver honking at a car in front of him because he did not hear emergency sirens. The plaintiffs argue this video is not relevant because it is not actually a video of Werner's training, and it is not Deuschle in the video. However, this video, and other videos relied on by the expert, are proper subjects for cross-examining the plaintiffs' expert. A jury will be able to sort out any dispute the parties have about what the video actually depicts. The plaintiffs' motion on this issue will be denied.

Plaintiffs' #11: "Direct Threat" or "Undue Hardship"

The plaintiffs seek to exclude references to Werner's dismissed affirmative defenses, and ask that Werner be prohibited "from offering any evidence, statement, or argument that [Deuschle] would pose a direct threat of harm if employed or that his employment would create an undue hardship."

Filing 304 at 7. The plaintiffs further seek the Court to prohibit the use of the phrases "direct threat" and "undue hardship" on the basis of Fed.R.Evid. 403. The Court agrees, and such language or evidence will not be allowed. To the extent these phrases appear on exhibits, such as answers to interrogatories, these phrases should be redacted. However, Werner will still be able to put on evidence of safety or other concerns with deaf drivers. Some evidence which pertains to these issues may be ruled on subject to an appropriate objection at trial. The plaintiffs' motion in this respect will be granted.

Plaintiffs' #15: Werner's Non-Driver Hearing-Impaired Employees

The plaintiffs argue that Werner's hiring of hearing-impaired employees for non-driver positions is not relevant and should be excluded. This issue is related to Werner's #2. If the plaintiffs introduce evidence of deaf people not hired by Werner, Werner is entitled to introduce evidence of deaf people it did hire.

The plaintiffs are seeking punitive damages against Werner, arguing that Werner has animus towards hearing-impaired and/or deaf people. The fact that Werner has hired deaf or hearing-impaired people for jobs other than truck driving is relevant to this issue, and is probative of whether Werner was motivated by safety concerns or by animus in denying Deuschle's application for employment. On this matter, the plaintiffs' motion is denied.

Plaintiffs' #17: Obligation to Propose Accommodations

The plaintiffs seek to prevent Werner from arguing that Deuschle never told Werner ways that it could have accommodated him. Werner argues that the plaintiffs' "position is directly contrary to Eighth Circuit case law, which holds that an applicant has an obligation to request and identify accommodations that could enable the applicant to safely perform the essential functions of the position." Filing 307 at 15 (citing Powley v. Rail Crew Xpress, LLC, 25 F.4th 610, 612 (8th Cir. 2022)). But this argument conflates a failure to accommodate ADA claim with a disparate impact ADA claim. See id. Failure to accommodate is not currently an issue in this trial, and the plaintiff had no obligation to propose accommodations, particularly when he was told his application was denied on the basis of missing paperwork. On this issue, the plaintiffs' motion is granted.

Plaintiffs' #18: Expert Studies and Reports

Based on argument heard in open court, the parties appear to agree that the reports and studies relied upon by the plaintiffs' experts may only be used for cross-examination and impeachment. . . unless, of course, the "door is opened" on other evidentiary grounds. So, the motion is granted as to the admissibility of those reports and studies as substantive evidence.

Plaintiffs' #19 and 20: FMCSA Hearing Exemption

The plaintiffs' #19 and 20 both concern the FMCSA hearing exemption -both as a process on its own and as Deuschle actually engaged in it. While the "regulations as they stand provide Werner with no safe harbor for disability discrimination," filing 304 at 11 (citing filing 292 at 8), Werner is able to have a higher standard of safety than the federal regulations. Werner may present evidence to the jury about any alleged deficiencies in the regulatory process of providing hearing waivers, both generally and as engaged in by Deuschle.^[1] Werner may contest the belief that a driver in possession of an FMCSA waiver is just as safe as any other driver by contesting the regulatory process. Further, if proper foundation is laid, Werner may question whether Deuschle actually obtained his exemption. On these issues, the plaintiffs' motion is denied.

Plaintiffs' #21: EEOC "Admission"

The plaintiffs seek to exclude an August 2016 letter from the EEOC to Deuschle regarding Deuschle's alleged failure to provide certain documentation to Werner. The letter, according to Werner, is an "admission" that Werner did not hire Deuschle because he did not provide the proper paperwork. While the letter might have some relevance, the Court agrees with the plaintiffs that this evidence is likely to lead down an unnecessary rabbit hole regarding the EEOC's investigation into Deuschle and Werner. Werner has more than sufficient evidence, presumably the same evidence the EEOC reviewed before sending this letter, regarding Deuschle's missing paperwork. The Court finds the limited probative value of the letter is outweighed by a danger of wasting time, confusing the issues, and needlessly presenting cumulative evidence. So, the letter will be excluded, and the plaintiffs' motion will be granted, under Fed.R.Evid. 403.

Plaintiffs' Supplemental: Victor Robinson

The plaintiffs intend to call Victor Robinson, a deaf truck driver. The plaintiffs will ask Robinson to testify about how he was trained. To challenge Robinson's credibility Werner wants to inquire as to Robinson's safety record and employment issues. Werner asserts it wants to question Robinson about these issues not to raise questions about deaf drivers' overall safety, but to call into question Robinson's credibility and reliability regarding how safe his training was if he had gotten into a number of accidents.

Based on Fed.R.Evid....