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denying defendant's motion in limine to exclude at trial testimony regarding whether defendant considered leave from work to be FMLA qualifying
Summary of this case from Johnson v. Morehouse College, Inc.Opinion
IP 99-1285-C T/G.
December 4, 2000.
ENTRY ON MOTIONS IN LIMINE
This cause comes before the court on several motions in limine filed by Defendant SMC Pneumatics, Inc. ("SMC"), and on the motion in limine filed by Plaintiff Michelle Schober. The court makes the following ruling.
Applicable Standard
The district court's authority to rule on motions in limine is derived from its inherent authority to control the course of trials. See Luce v. United States, 469 U.S. 38, 41 n. 6 (1984). "[A] motion in limine should be granted only if the evidence sought to be excluded is clearly inadmissible for any purpose." Noble v. Sheahan, 116 F. Supp.2d 966, 969 (N.D. Ill. 2000).
In Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999), the Seventh Circuit held that "a definitive ruling in limine preserves an issue for appellate review — without the need for later objection." Id. at 564; see also United States v. Galati, 230 F.3d 254, 259 (7th Cir. 2000). But "this is just a presumption, subject to variation by the trial judge, who may indicate that further consideration is in order." Wilson, 182 F.3d at 564. A conditional, contingent or tentative ruling in limine invites reconsideration at trial. See id. at 566. Thus, an objection at trial is necessary to preserve the issue for appellate review. See id. The Seventh Circuit expressed a preference that district judges "explain in the decision proper (or in the final pretrial conference) whether the evidentiary ruling is definitive, and whether consideration at trial is required, appropriate, or forbidden. . . ." Id. at 567. Following Wilson, this entry will indicate whether a ruling on a motion in limine is definitive and whether consideration at trial is required, appropriate or forbidden.
Defendant's First Motion In Limine
SMC, in its First Motion In Limine, seeks to exclude any evidence regarding an alleged examination and diagnosis of Jason Schober made by Thaddeus Poe, M.D., on or after August 17, 1998, pursuant to Federal Rule of Evidence 403. SMC argues that because Drs. Susan Slakes and Ronald Stegemoller will testify to Jason's medical condition during the relevant time period, any evidence to that effect from Dr. Poe will be cumulative and unduly prejudicial to SMC. Ms. Schober responds that the evidence from Dr. Poe she seeks to introduce goes to an element of proof upon which she bears the burden. SMC does contest whether Jason suffered from a serious medical condition during the relevant time period, which would include August 17, 1998.
There is no question that the testimony and evidence surrounding Jason's visit to Dr. Poe is relevant in determining whether Jason suffered from a serious health condition during that time period. The only question for this court to consider is whether such evidence is unduly prejudicial or cumulative.
"Relevant evidence is inherently prejudicial; only where the unfair prejudice created by its admission substantially outweighs its probative value should the trial court, in the exercise of its discretion, exclude the evidence." United States v. Bradley, 145 F.3d 889, 893 (7th Cir. 1998) (citing, e.g., FED. R. EVID. 403). SMC has failed to explain how it would be unduly prejudiced by the admission of this evidence. As such, SMC's unsupported claims of prejudice "are insufficient to exclude evidence under Rule 403." Id. at 894.
The evidence is not cumulative. SMC's argument that, "If Dr. Poe had any new or additional information and/or evidence of Jason Schober's alleged health condition, then Ms. Schober would have produced a Certification Form completed by him[,]" is not persuasive. (Def.'s Mem. Supp. First Mot. Limine at 3). There could be any number of reasons that Ms. Schober decided not to have Dr. Poe fill out a Family and Medical Leave Act ("FMLA") Certification Form. The absence of a Certification Form from Dr. Poe goes to the weight of the evidence Ms. Schober will seek to introduce, not to its admissibility. Moreover, it appears that Dr. Poe's diagnosis may be different from that of Dr. Slakes' and/or Dr. Stegemoller's, in which case it clearly would not be cumulative.
As this evidence is not "clearly inadmissible" under Rule 403, SMC's motion in limine under Rule 403 will be denied. However, if the evidence Ms. Schober seeks to introduce at trial, through her testimony or otherwise, is in fact unduly prejudicial or cumulative, this court will sustain an objection brought under Rule 403. That cannot be evaluated at this time, based only on the matters presented in the motion and response. It should also be noted that Ms. Schober can only testify about what she did and observed at Dr. Poe's office. She cannot testify about what Dr. Poe may have told her — that would be hearsay.
SMC further asserts that "any documents which reflect the alleged examination and/or diagnosis, for the purpose of establishing the alleged examination and/or diagnosis, through any other means constitutes inadmissible hearsay and should be excluded." (Def.'s Mem. Supp. First Mot. Limine at 1). SMC argues that any evidence of a medical diagnosis administered by Dr. Poe is inadmissible hearsay absent the testimony of Dr. Poe. SMC cites no case law in support of its position. Ms. Schober responds that such evidence is admissible under the hearsay exception provided in Federal Rule of Evidence 803(6).
It is well established that medical records are admissible evidence under Rule 803(6). See, e.g., Massachusetts Mut. Life Ins. Co. v. Leberis, 595 F. Supp. 157, 158 n. 3 (N.D. Ill. 1984) ("Medical records prepared in the regular course of business are admissible evidence under Federal Rule of Evidence 803(6)[.]"). Of course, to be admissible such records must satisfy the requirements of the Rule. One such requirement is that the records sought to be admitted must be authenticated by a "custodian or other qualified witness." FED. R. EVID. 803(6). Ms. Schober submits that the records in question will be authenticated by the deposition testimony of Dr. Poe. So long as the medical records meet the requirements of Rule 803(6) and Ms. Schober establishes a proper foundation for those medical records, Rule 801 will not bar their admissibility. As described, the documents appear to contain opinions or diagnoses.
The court notes that at the time SMC filed its motions in limine, it was not clear whether Dr. Poe would testify at trial. Since SMC's filing, a pretrial conference was held on December 4, 2000, during which Ms. Schober indicated that Dr. Poe would be deposed in an effort to establish a proper foundation for the admissibility of the medical records at issue.
For the foregoing reasons, SMC's First Motion In Limine is DENIED. However, as explained above, this motion is not definitive. If the evidence otherwise shows Dr. Poe's testimony or the documents to be inadmissible, a proper objection will be sustained.
Defendant's Second Motion In Limine
In its Second Motion in Limine, SMC seeks to prohibit Jason Schober from testifying at trial. Ms. Schober does not object to SMC's motion and has indicated that she will not call Jason Schober as a witness. Therefore, SMC's Second Motion in Limine is GRANTED and Ms. Schober is prohibited from offering testimony at trial from Jason Schober. This ruling is a definitive one. Therefore, counsel is relieved of any obligation to object contemporaneously with the introduction of evidence sought to be excluded with this motion in limine.
Defendant's Third Motion In Limine
SMC, in its Third Motion in Limine, moves to prohibit any evidence or testimony regarding Jason Schober's medical history prior to July 6, 1998. SMC maintains that such evidence or testimony is irrelevant and unduly prejudicial to SMC.
Ms. Schober has failed to adequately explain how evidence concerning Jason Schober's medical history prior to July 6, 1998, is relevant. The court recognizes that whether Jason suffered from a serious medical condition in July and August 1998 is in dispute. However, Ms. Schober has failed to explain, and more importantly demonstrate, how such evidence is relevant or why it is necessary to consider Jason's medical history prior to July 6, 1998, to determine whether Jason suffered from a serious medical condition during July/August 1998. As a result, Jason's medical history prior to July 6, 1998, is not relevant and will be excluded on that ground.
Because the evidence and testimony that SMC seeks to prohibit in its Third Motion in Limine is irrelevant, SMC's Third Motion in Limine is GRANTED. However, this ruling is not definitive. If Ms. Schober can show that Jason's medical history prior to July 6, 1998, is relevant, by, for example, submitting evidence that demonstrates that Drs. Stegemoller and/or Slakes relied on Jason's medical history prior to July 6, 1998, in forming a medical conclusion or diagnosis regarding Jason's medical condition during the July/August 1998 period, then this court will overrule an objection based on relevancy. Another situation in which his medical history might be relevant would be if SMC explores Ms. Schober's pre-July 1998 absences. If that is done, portions of Jason's prior medical history might be relevant to explain those absences. Such a showing must be made outside the presence of the jury before any witness or counsel is permitted to refer to Jason's medical history prior to July 1998.
SMC also objects to this evidence on the ground that it would be unduly prejudicial to SMC if admitted. Based on the above discussion, the court need not address this argument now. However, should the court find at trial that the evidence is relevant, SMC may at that time renew its argument that such evidence is unduly prejudicial.
In any event, evidence regarding Jason's medical history prior to July 6, 1998, would only be relevant to prove that Jason suffered from a serious medical condition during the time in question, not to show Ms. Schober's thought process. Therefore, Ms. Schober is INSTRUCTED that evidence and testimony regarding her thought process is not admissible and should neither be offered nor solicited.
In its Response to SMC's Third Motion in Limine, Ms. Schober argues that Jason's medical history prior to July 1998 is relevant in part to "give the jury a simple background against which they may judge the thought processes of Ms. Schober in dealing with SMC in August, 1998." (Resp. at 3). Jason's medical history, however, is not at all relevant for this purpose.
Defendant's Fourth Motion In Limine
With its Fourth Motion In Limine, SMC seeks to exclude all evidence or testimony regarding the alleged statements of Roger Nieman regarding who was authorized to complete the FMLA Certification Form for Jason Schober's alleged serious health condition during the relevant time period. It contends that such testimony is immaterial, irrelevant and unduly prejudicial to SMC.
Ms. Schober is expected to testify at trial that Roger Nieman, SMC's Human Resources Manager, told her that only Dr. Stegemoller, Jason's primary care physician, could complete the FMLA Certification Form. The materials presented on summary judgment indicate that Mr. Nieman's instruction was given to Ms. Schober on Monday, August 10, 1998, which is after Jason was seen and treated by Dr. Slakes. Ms. Schober contends that his instruction constituted an act of interference with her rights under the FMLA.
SMC first argues that such testimony conflicts with Mr. Nieman's anticipated testimony that he instructed her that her doctor had to complete the form, whoever she chose her doctor to be. It also argues that even if true, Mr. Nieman's instruction to Ms. Schober does not in and of itself constitute interference under the FMLA.
The FMLA regulations allow an employer to request medical certification of a serious health condition:
An employer may require that an employee's leave to care for the employee's seriously-ill . . . son . . . that makes the employee unable to perform one or more of the essential functions of the employee's position, be supported by a certification issued by the health care provider of the employee or the employee's ill family member. An employer must give notice of a requirement for medical certification each time a certification is required; such notice must be written notice whenever required by § 825.301. An employer's oral request to an employee to furnish any subsequent medical certification is sufficient.29 C.F.R. § 825.305(a) (emphasis added). The regulation provides that if medical certification is required by an employer, such certification may be issued by "the health care provider" of "the employee's ill family member." The regulation does not require that the certification be completed by the employee's ill family member's primary care physician only.
Assuming that Mr. Nieman told Ms. Schober that the certification form could be completed only by Dr. Stegemoller, Jason's primary care physician, his instruction to her was erroneous. Under the applicable regulation, the certification form could have been completed by Dr. Slakes, another of Jason's health care providers at the time. Dr. Slakes not only was Jason's health care provider, she also had direct knowledge about his allegedly serious health condition as she had treated him for strep throat and lymphadenopathy and admitted him to the hospital for three days. Thus, Marchisheck v. San Mateo Co., 199 F.3d 1068, 1072, 1075 (9th Cir. 1999), in which the court in a different context remarked disapprovingly that a psychiatrist who wrote a letter asking that the employee be excused from work because of her son's illness had not been involved in the son's treatment, and Rogers v. Bell Helicopter Textron, Inc., 2000 WL 1175647, at *2 (N.D. Tex. Aug. 17, 2000), in which a doctor testified that the employee suffered from a serious health condition, but the doctor had not examined the employee during the relevant time period, and upon which SMC relies, are distinguishable.
The question becomes whether Mr. Nieman's erroneous instruction to Ms. Schober about who could complete the certification form constitutes an act of interference under the FMLA. SMC argues it is not; Ms. Schober claims it is. The FMLA regulations state that "any violations of the Act [FMLA] or of these regulations constitute interfering with, restraining, or denying the exercise of rights provided by the Act." 29 C.F.R. § 825.220(b). Though the court's research could find no case law directly on point, persuasive authority indicates that Mr. Nieman's instruction to Ms. Schober that only Dr. Stegemoller could complete the certification form constitutes an act of interference given that Jason was treated by both Dr. Stegemoller and Dr. Slakes.
The regulation continues by giving examples of acts that constitute interference:
"Interfering with" the exercise of an employee's rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave. It would also include manipulation by a covered employer to avoid responsibilities under FMLA, for example:
(1) transferring employees from one worksite to another for the purpose of reducing worksites, or to keep worksites, below the 50-employee threshold for employee eligibility under the Act;
(2) changing the essential functions of the job in order to preclude the taking of leave;
(3) reducing hours available to work in order to avoid employee eligibility.
Id.
Covey v. Methodist Hospital of Dyersburg, Inc., 56 F. Supp.2d 965 (W.D. Tenn. 1999), is of assistance in deciding this matter. The Covey plaintiff claimed the defendants violated the FMLA in three ways, including by failing to properly inform her of her rights under the Act. Id. at 968. The plaintiff had been put on a restricted work schedule by her physician due to her multiple sclerosis. The defendants offered her a position as a payroll clerk that could accommodate her schedule because her current position could not. They told her that this position would last until her FMLA leave expired in January 1997, at which time they would help her find another job accommodating her reduced schedule. The plaintiff alleged that the defendants incorrectly advised her that her FMLA leave would expire in January 1997 because she had sufficient leave to last the entire year. Id. at 967-68. In ruling on the parties' cross-motions for summary judgment, the court said that to prevail on her "failure to inform" claim, the plaintiff had to demonstrate: "(1) that defendants failed to correctly inform her of her FMLA rights, and (2) that failure caused her to forfeit protections provided by the Act." Id. at 968-69. The court indicated that its "first task" was "to determine whether the defendants were incorrect in stating that Covey's FMLA leave time would expire in January 1997." Id. at 969. The court concluded that the defendants were correct-the plaintiff's FMLA leave did expire in January 1997. The court therefore held that the plaintiff could not show she forfeited any FMLA rights because of the defendants' failure to properly inform her of her FMLA rights. Id. at 971. Thus, Covey implies that the giving of incorrect information regarding an employee's FMLA rights by an employer to an employee constitutes interferes with those rights, provided, the incorrect information caused the employee to forfeit FMLA protections.
The courts reached somewhat similar conclusions in Kruse v. LaGuardia Hospital, No. 95-CV-4467 (JG), 1996 WL 1057147 (Nov. 6, 1996), and Mora v. Chem-Tronics, Inc., 16 F. Supp.2d 1192 (S.D. Cal. 1998). The employer in Kruse had a leaves of absence maternity policy in effect at the time the plaintiff was hired. That policy allowed for leaves of absences up to nine months. It did not guarantee that an employee taking such leave would get her former position back upon return to work. After the FMLA became law, the employer issued its FMLA policy, which allowed twelve weeks of unpaid leave during any twelve month period and reinstatement in accordance with the FMLA. Both policies were in effect at the time the plaintiff took her maternity leave. She elected to take nine months of leave. Her employment was terminated after twelve weeks of leave but before the expiration of nine months. The plaintiff sued, alleging the defendant never informed her that if she took more than twelve weeks leave she would forfeit her rights under the FMLA and that she believed she would be guaranteed her position when she returned. See Kruse, 1996 WL 1057147, at *1. The court concluded that the defendant had a duty to notify its employees of the differences between the two policies and, specifically to notify the plaintiff that she gave up her reinstatement rights by taking the nine month leave. See id. at 4. Finding a genuine issue of material fact as to whether the plaintiff was misled by the defendant's two policies and whether that caused her to forfeit FMLA rights, the court denied the defendant's motion for summary judgment. See id. at 5.
In Mora, the plaintiff alleged his employer failed to give him sufficient notice of his rights and obligations under the FMLA in many ways. He argued that his supervisors and managers were not knowledgeable about the FMLA and failed to fully and adequately advise him of his rights. One way in which the notice was deficient was that the employer had not told the employee of his right to take intermittent leave to care for his son. See Mora, 16 F. Supp. at 1225-26. In denying the employer's motion for summary judgment, the court held that the notice given was insufficient. The court remarked that not only did the defendant fail to give written notice of the employee's FMLA rights and obligations, but also that the employee's superiors "were not trained in and did not provide adequate information about his rights and responsibilities under the Act." Id. at 1227. The court commented that an employee can be discouraged from exercising his FMLA rights if the employer gives him misinformation about his FMLA rights and obligations or fails to give such information at all. See Mora, 16 F. Supp. at 1229.
Following Covey, Kruse, and Mora, misleading or giving incorrect information to an employee by an employer about the employee's FMLA rights or obligations constitutes interference if the incorrect information causes the employee to forfeit FMLA protections. If Mr. Nieman instructed Ms. Schober that only Dr. Stegemoller could complete the form, Mr. Nieman gave her erroneous information and may have misled her into believing only Dr. Stegemoller could complete the form. Further, Mr. Nieman in effect limited Ms. Schober's right under the regulation to obtain certification from any health care provider of Jason. It should be noted that Mr. Nieman testified during his deposition that Ms. Schober's employment was terminated because she was not making proper efforts to obtain the certification form and because she had not submitted the form. From such evidence, a trier of fact could find that the misinformation given to Ms. Schober about who could complete the form contributed to her termination. The court concludes that if Mr. Nieman told Ms. Schober that only Dr. Stegemoller could complete the form when Dr. Slakes also was Jason's health care provider, Mr. Nieman's giving of erroneous and misleading information constitutes interference under the FMLA. Evidence of such an instruction, therefore, is highly relevant.
SMC further argues that evidence of Mr. Nieman's alleged instruction may mislead the jury and will unduly prejudice SMC. SMC has not offered any other explanation as to how it would be unduly prejudiced by this testimony. As discussed above, testimony on this subject is relevant to whether SMC interfered with Ms. Schober's rights under the FMLA. Because such testimony is relevant, this court is able to exclude it under Rule 403 only if its probative value is substantially outweighed by the unfair prejudice that might result if such testimony was admitted. See Bradley, 145 F.3d at 893. From the above discussion, it is evident that testimony on this subject is probative of Ms. Schober's claim. SMC has failed to demonstrate how the probative value of this evidence is substantially outweighed by unfair prejudice. Unsupported claims of prejudice "are insufficient to exclude evidence under Rule 403." Id. at 894. As such, this evidence is not be prohibited by Rule 403.
Accordingly, SMC's Fourth Motion In Limine to exclude evidence of Mr. Nieman's instruction to Ms. Schober regarding who could complete the FMLA certification form is DENIED.
This ruling, however, is not definitive. If the evidence at trial supports a finding that only Dr. Stegemoller was Jason's health care provider at the time Mr. Nieman instructed Ms. Schober about who could complete the certification form, then the court may reconsider this ruling upon motion made outside the presence and hearing of the jury.
Defendant's Fifth Motion In Limine
With its Fifth Motion In Limine, SMC seeks to exclude evidence or testimony regarding SMC's failure to consider Ms. Schober's absences from work on July 6-10, 13-17 and August 4-7, 10-14 and 17-19, 1998, as FMLA qualifying leave. SMC contends such evidence is irrelevant, immaterial and unduly prejudicial to SMC. In the alternative, SMC contends that the jury should be instructed that SMC's failure to designate Ms. Schober's absences as FMLA qualifying is not, in and of itself, interference with her FMLA rights so long as she was given all the substantive rights provided under the Act.
SMC argues that "[e]vidence regarding whether SMC considered Ms. Schober's leave from work FMLA-qualifying has no bearing on any alleged interference, as Schober received all of the requested leave from work." (Def.'s Mem. Supp. Fifth Mot. Limine at 2; see also id. at 3). SMC cites to a few decisions in which the courts held that holding an employer liable for its failure to designate an employee's leave of absence from work as FMLA qualifying is an elevation of form over substance. See Ragsdale v. Wolverine Worldwide, Inc., 218 F.3d 933, 937-39 (8th Cir. 2000) (holding FMLA regulation providing that twelve week FMLA leave entitlement does not begin to run unless employer prospectively designates leave as FMLA leave is invalid); McGregor v. Autozone, Inc., 180 F.3d 1305, 1307 (11th Cir. 1999); Neal v. Children's Habilitation Ctr., No. 97 C 7711, 1999 WL 706117, at *2 (N.D. Ill. Sep. 10, 1999). It argues that, as in those cases, Ms. Schober received the requested leave from work.
In making this argument, SMC completely ignores that the record supports a finding that Ms. Schober was penalized for taking that leave, i.e., her employment was terminated for excessive absenteeism, (see Def.'s Answer to Interrog. No. 9, Pl.'s Ex. 26 at 5), and SMC makes no distinction between Ms. Schober's potentially FMLA qualifying absences and other absences, if any. In addition, the parties' submissions on summary judgment support the finding that Ms. Schober received two written disciplinary warnings, the first for excessive absenteeism and the second for abusing SMC's attendance policy. Given this record and assuming that some of Ms. Schober's absences from work in July and August 1998 were FMLA qualifying, a reasonable jury could find that Ms. Schober received written disciplinary warnings and ultimately was discharged because she had taken FMLA qualifying leave. Thus, though Ms. Schober was granted leave from work when she requested it, that leave came with serious consequences: the termination of her employment.
The cases relied upon by SMC are nothing like the instant case. In Ragsdale, the plaintiff's employment was terminated on September 20, 1996, because she exhausted her seven months of leave allowed under the employer's leave policy and was unable to return to work. In December 1996, she was released to return to work. See Ragsdale, 218 F.3d at 935. The plaintiff alleged that because the employer never formally designated any of her leave as FMLA leave, she was denied twelve weeks of leave to which she was entitled under the FMLA, and was entitled to be restored to her position in December 1996 when she was able to return to work. The FMLA entitles an eligible employee to twelve weeks of leave during any twelve month period because of a serious health condition. See 29 U.S.C. § 2612(a)(1). Some of the regulations issued by the Department of Labor under the FMLA require the employer to designate leave as FMLA leave before the employer can count the leave against the employee's twelve week entitlement. See, e.g., 29 C.F.R. § 825.700(a); 29 C.F.R. § 825.208(c). The Ragsdale court held that such a regulation was an impermissible expansion of an employee's rights under the FMLA and that the employer did not violate the FMLA when it refused to restore the plaintiff to her position. Id. at 937-40. The court reasoned that the FMLA was intended to provide only a minimum of twelve weeks of unpaid leave for employees, and that twelve weeks was the maximum required under the Act. Id. at 940. Because the plaintiff's medical condition made her unable to work for a period substantially longer than twelve weeks and she was given leave for thirty weeks, the court concluded:
To find that Wolverine's technical violation of the designation regulations functions as a denial of Ragsdale's FMLA rights would be an egregious elevation of form over substance; a result clearly not contemplated by the FMLA. In this case, the regulations directly contradict the statute by increasing the amount of leave that an employer must provide.
Ragsdale, 199 F.3d at 940. The court therefore held the regulation invalid to the extent it required an employer to provide more than twelve weeks of leave. Id.
The McGregor court also examined a designation regulation. The plaintiff alleged entitlement to thirteen weeks of employer paid disability leave and twelve weeks of FMLA unpaid leave because her employer did not notify her that the two leaves would run concurrently. She alleged she was entitled to be restored to her prior position or an equivalent position when she returned to work after a fifteen week absence. See McGregor, 180 F.3d at 1307. The court held that because the employer had a right to require the plaintiff to substitute her accrued paid leave for her FMLA leave and she remained absent for more than twelve weeks, she had no right to be restored to her prior position or a similar position. See id. at 1308. Like the Ragsdale court, the McGregor court reasoned that the designation regulations impermissibly added rights beyond those provided under the FMLA and were inconsistent with the Act's stated purpose to "balance the demands of the workplace with the needs of families . . . in a manner that accommodates the legitimate interests of employers." 29 U.S.C. § 2601(b)(3). The court explained that when the employer provides more leave than the FMLA requires and provides paid leave, it "should not find itself sued for violating FMLA." Id. at 1308.
The plaintiff in Neal claimed that even if he took ten weeks of FMLA leave, the leave could not be counted against the twelve weeks allowed under the Act because his employer did not notify him that it was designating the leave as FMLA leave. See Neal, 1999 WL 706117, at *1. Relying in part on the McGregor decision, the court held that the employer was entitled to consider the leave as FMLA leave even though it had not informed the plaintiff that he was using FMLA leave. See id. at *2.
Ragsdale, McGregor and Neal are inapposite. In each of those cases the plaintiff received all the FMLA leave to which he or she was entitled and, importantly, the plaintiff was not penalized for taking FMLA leave. Thus, the employer's violations of the FMLA regulations at issue in those cases could be said to have been technical. In other words, the employer's violation did not deprive the employee of any substantive right. In contrast, Ms. Schober was granted leave, but the leave resulted in her termination. Holding SMC liable for failing to designate Ms. Schober's leave as FMLA leave (if it was FMLA qualifying) would not elevate form over substance because of the consequences visited upon her for taking that leave.
Though not cited in SMC's memorandum in support of its motion in limine, Dormyer v. Comerica Bank-Ill., 223 F.3d 579, 582 (7th Cir. 2000), Brungart v. Bell South Telecomm., Inc., No. 99-14472, 2000 WL 1584555, at *3-4 (11th Cir. Oct. 24, 2000), and Twyman v. Dilks, No. CIV. A. 99-4378, 2000 WL 1277917 (E.D. Pa. Sept. 8, 2000), are cited in SMC's trial brief. At issue in Brungart and Dormyer was the validity of that part of an FMLA regulation, 29 C.F.R. § 825.110(d), purporting to create FMLA eligibility in an employee based on an employer's failure to notify the employee of ineligibility within a certain time. See Brungart, 2000 WL 1584555, at *1; Dormyer, 223 F.3d at 581-83. In each of these cases, the plaintiff was statutorily ineligible for FMLA because she had not been employed with the employer for 1,250 hours within the previous twelve months. See Brungart, 2000 WL 1584555, at *1; Dormyer, 223 F.3d at 581. Ms. Schober does not claim eligibility under the FMLA because of SMC's failure to notify her that she was ineligible and 29 C.F.R. § 825.110(d) is not at issue. Thus, Brungart and Dormyer are inapposite.
Twyman like Neal involved a regulation that purported to create entitlement to FMLA leave where the employer failed to notify the employee that his leave was being counted as FMLA leave. See Twyman, 2000 WL 1277917, at *12. Like the plaintiffs in Ragsdale and McGregor, the plaintiff in Twyman was granted more leave (four months) than required by the FMLA. See id. at *3. The violation of the FMLA regulation in Twyman is unlike the alleged violations in the instant case. Thus, Twyman does not assist SMC's efforts to keep out evidence of SMC's failure to designate her leave as FMLA qualifying.
SMC's only support for its claim that this evidence is unduly prejudicial, and should be prohibited on that ground, is that the evidence is not relevant. However, as discussed above, this evidence is in fact relevant. Therefore, the evidence can be excluded "only where the unfair prejudice created by its admission substantially outweighs its probative value[.]" Bradley, 145 F.3d at 893. SMC has not come forward with any explanation as to how it would be unduly prejudiced by the admission of this relevant evidence. Because SMC has failed to support its claim of unfair prejudice, this evidence will not be prohibited under Rule 403. See id. at 894 (holding that unsupported claims of prejudice "are insufficient to exclude evidence under Rule 403").
Accordingly, SMC's Fifth Motion in Limine is DENIED. This is a definitive ruling. Therefore, counsel is relieved of any obligation to object contemporaneously with the introduction of evidence sought to be excluded with this motion in limine.
Defendant's Sixth Motion In Limine
SMC seeks to prohibit Ms. Schober from introducing evidence or testimony concerning lost compensation, including employee benefits. SMC argues that pursuant to Federal Rules of Evidence 401, 402 and 403 such evidence is irrelevant and unduly prejudicial because Ms. Schober is not entitled to such damages because she failed to mitigate, as she was required to do. Ms. Schober responds that whether she failed to mitigate is a question of fact for the jury; as a result, evidence regarding her lost wages or other compensation is relevant.
SMC seems to recognize as much in its Memorandum in Support of its motion. In its Memorandum, SMC is not arguing the evidence's relevancy, rather SMC is arguing the evidence in an attempt to prove that Ms. Schober is not entitled to the damages she seeks due to her failure to mitigate. In other words, it seems that SMC is seeking a ruling as a matter of law that Ms. Schober is not entitled to such damages while that question is one of fact for the jury. It appears that the evidence will show that Ms. Schober has not obtained equivalent full time employment since her termination, and in fact, may not even have sought equivalent employment.
As Ms. Schober's entitlement to damages is a question of fact, evidence regarding damages in the first instance is relevant even if the jury ultimately finds that Ms. Schober is not entitled to damages because she failed to mitigate. Moreover, although the evidence is prejudicial, it is not unduly so. As recognized above, "Relevant evidence is inherently prejudicial; only where the unfair prejudice created by its admission substantially outweighs its probative value should the trial court, in the exercise of its discretion, exclude the evidence." Bradley, 145 F.3d at 893. The probative value of the evidence that Ms. Schober seeks to introduce clearly outweighs any prejudice that it may cause. It may be that the jury will find that she has not fully or even partially mitigated her damages. But if she has been employed at all, the jurors could reasonably conclude that she has partially mitigated her damages.
As an aside, SMC relies upon Thorson v. Gemini, Co., 205 F.3d 370, 385 (8th Cir. 2000), for the proposition that because Ms. Schober has failed to mitigate, she has no right to back pay and evidence regarding her lost compensation is therefore irrelevant and unduly prejudicial to SMC. SMC's reliance on Thorson is misplaced. In Thorson, the Magistrate Judge, after a court trial on damages, reduced the plaintiff's damages for failure to mitigate. However, it is clear from the Eight Circuit's opinion that considerable evidence regarding damages, including the plaintiff's failure to mitigate, was presented to the fact finder. It is also clear that the fact finder, the Magistrate Judge in that case, made a finding of fact on the questions concerning damages. If the evidence that SMC seeks to prohibit is excluded, the fact finder in this case would have nothing from which to base its decision, and the court would be put in the position of having to rule as a matter of law. But, as Thorton makes clear, such a finding should not be one of law, but one of fact. It cannot be said here, as a matter of law, that an absolute failure of proof of mitigation is inevitable.
For the foregoing reasons, SMC's Sixth Motion In Limine is DENIED. This ruling, however, is not definitive. If a reasonable jury could find only that Ms. Schober has not mitigated her damages, then evidence or testimony regarding her lost compensation would not be admissible and could be stricken.
Defendant's Seventh Motion In Limine
SMC moves for an order prohibiting evidence or testimony regarding SMC's reasons for terminating Ms. Schober's employment, contending that such evidence and testimony is irrelevant and prejudicial. This court decided in its Entry on Defendant's Motion for Summary Judgment that Ms. Schober alleges an FMLA interference claim only and does not allege an FMLA discrimination or retaliation claim. (See Entry On Def.'s Mot. Summ. J. at 14.) The court's Entry continued by noting "that actions which Ms. Schober raises as retaliation may also constitute interference." (Id.) SMC argues that to the extent Ms. Schober alleges her FMLA rights were interfered with by SMC's termination of her employment, SMC's intent in terminating her is irrelevant.
The case law is clear: where a plaintiff alleges an FMLA interference claim, the employer's intent is immaterial. See King v. Preferred Tech. Group, 166 F.3d 887 (7th Cir. 1999) (citing Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997); Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998) (the employer's subjective intent is not relevant)). However, SMC seems to equate or confuse the reasons for Ms. Schober's discharge with SMC's intent. The reasons for the termination are not the same as SMC's intent and they are not necessarily related. SMC's intent is immaterial and irrelevant, but the reasons for Ms. Schober's termination are relevant and material. Furthermore, even assuming that the reasons for Ms. Schober's discharge are related to SMC's intent and even reflect that intent, SMC has cited no authority to establish that the immateriality of the intent renders otherwise admissible evidence inadmissible.
Ms. Schober alleges that SMC interfered with her rights under the FMLA in a number of different ways, e.g., SMC failed to give her a minimum of fifteen days within which to return the certification form. Ms. Schober intends to present evidence that Mr. Nieman decided to terminate her employment because, inter alia, she did not make proper efforts to return the certification form and she had not returned the certification form. Based on the anticipated evidence, one could reasonably find that SMC's termination of Ms. Schober's employment interfered with her FMLA rights and violated FMLA regulations by depriving her of the minimum fifteen days within which to return the certification form. See Rager v. Dade Behring, Inc., 210 F.3d 776, 777 (7th Cir. 2000) (recognizing that if an employer requires certification, it must give the employee fifteen days in which to submit it).
The court in Rager affirmed the grant of summary judgment for the employer because it concluded the fifteen day period began to run on December 23, 1997, when the plaintiff was informed of the need to obtain certification and she was given until January 12, 1998, within which to submit the certification. Thus, the plaintiff was given more than the fifteen day minimum within which to submit the certification. See id. at 778.
The court briefly comments on SMC's position that its termination of Ms. Schober's employment does not in itself constitute an act of interference under the FMLA. (See Def.'s Proposed Jury Instructions, No. 19 (citing Niede v. Grand Court Lifestyles, Inc., 38 F. Supp.2d 938, 950 (D. Kan. 1999) (citing Gunnell v. Utah Valley State College, 152 F.3d 1253, 1262 (10th Cir. 1998))). The cases relied upon by SMC, however, are inapposite. In Gunnell, the plaintiff alleged that her employer interfered with her exercise of her FMLA rights by terminating her employment, thus effectively denying her request for FMLA leave. See Gunnell, 152 F.3d at 1262. The plaintiff was terminated because of insubordination and disruptive behavior. See id. at 1258. She did not argue that her termination was related to her request for medical leave. See id. at 1262. Thus, the court concluded that any reason for her termination would not involve the FMLA and, therefore, her termination did not deprive her of her FMLA rights. See id.
It should be noted that the plaintiff did not argue that she was denied FMLA rights between the time she requested FMLA leave and her termination. See id. at 1262 n. 4.
Though the Niede court cited Gunnell as standing for the proposition that termination of employment does not constitute an act of interference or denial of an FMLA right, see Niede, 38 F. Supp.2d at 950, the court held that the termination of the plaintiff's employment did not interfere with, restrain or deny the plaintiff his FMLA rights because the plaintiff was not entitled to FMLA leave. See id. at 949-50 ("[P]laintiff was not entitled to FMLA leave. . . . Consequently, the Court must conclude as a matter of law that [the defendant employer] did not interfere with, restrain or deny plaintiff the opportunity to exercise his rights by discharging him. . . .").
In contrast with Niede, it is anticipated that some of the evidence may support a finding that Ms. Schober was entitled to FMLA leave. And, unlike the Gunnell plaintiff, Ms. Schober argues that there is a direct relationship between her termination and her request for leave as well as her absences from work. She also claims that SMC interfered with her FMLA rights in different ways between the time she first gave notice of the need for FMLA leave and her termination.
The decision In Mora v. Chem-Tronics, Inc., 16 F. Supp.2d 1192 (S.D. Cal. 1998), which is factually more like the instant case than either Gunnell or Niede is instructive. The Mora plaintiff brought an FMLA interference claim, contending the defendant failed to fully inform him of his rights and obligations under the FMLA. The plaintiff also contended the defendant interfered with his right to take intermittent leave to care for his son because it did not excuse these FMLA qualifying absences and used them as a factor in employment decisions resulting in his termination. See id. at 1218. The court denied the employer's motion for summary judgment on the interference claim, finding genuine issues of material fact regarding whether the plaintiff was entitled to FMLA leave such that his termination for excessive absences was wrongful. See id. at 1219. The court reasoned that if the plaintiff was entitled to FMLA leave, then the employer's termination of his employment for excessive absences "will constitute an interference with the Plaintiff's exercise of his rights in violation of [the FMLA]." Id. See also LeGrand v. Village of McCook, No. 96 C 5951, 1998 WL 182462 (N.D. Ill. Apr. 15, 1998) (granting the plaintiff partial summary judgment on FMLA interference claim where employer required her to submit medical certification in less than 15 days in violation of FMLA regulation and when she did not do so in the time allowed, she was terminated for excessive absences).
Mora is persuasive. This court agrees that if an employer terminates an employee because of excessive absences and the employee was entitled to FMLA leave for some or all of those absences, then the employer has interfered with the employee's exercise of his or her rights under the FMLA. Accordingly, SMC's Seventh Motion in Limine is DENIED for these stated reasons. This denial of the motion is definitive, and no further objection is needed at trial to preserve the issue for appellate review.
Plaintiff's Motion In Limine
Plaintiff moves for an order in limine excluding all reference, evidence or testimony regarding: (1) Ms. Schober's personal history and employment history prior to her employment relationship with SMC on July 16, 1990; (2) Patrick Manker, including and not limited to his conversations with Roger Nieman, Corliss Grow and Ms. Schober concerning Jason Schober and/or SMC's FMLA certification form; (3) Ms. Schober's appearance or attendance at any Indiana State Fair; (4) Ms. Schober's appearance or attendance at any SMC sponsored event, including and not limited to any athletic competition or softball game or practice; (5) Ms. Schober's employment attendance history with SMC prior to August 1998; and (6) Ms. Schober's attendance record from August 12, 1998, through and including August 18, 1998.
SMC states that it has no objection to an order in limine regarding item (1) above, that is, Ms. Schober's personal history and employment history prior to her relationship with SMC on July 16, 1990. Therefore, the motion in limine is GRANTED with respect to item (1). This ruling is definitive.
Plaintiff's motion in limine is DENIED with respect to items (2), (3), (4) and (6) for the reasons stated orally by the court during the telephonic status conference on November 28,2000. This is a definitive ruling. The relevant time period for this case is July and August 1998. Jason's illness during that time period appears to have been continuous and related, as are Ms. Schober's absences from work at that time. Thus, what information was known to SMC through conversations with Patrick Manker concerning Jason Schober or SMC's FMLA certification form, Ms. Schober's appearance or attendance at the Indiana State Fair or any SMC sponsored event as well as her attendance record from August 12 through August 18, 1998, are relevant to the determination of whether Ms. Schober was entitled to FMLA leave and whether she was in compliance with her obligations under the FMLA.
As for item (5), Ms. Schober's employment attendance history with SMC prior to August 1998, the evidence is expected to support a finding that Mr. Nieman considered Ms. Schober's personnel file in his termination decision and that her pre-August 1998 attendance history was reflected in that file. Thus, evidence of Ms. Schober's employment attendance history with SMC prior to August 1998 is relevant. Plaintiff's motion in limine is therefore DENIED with respect to item (5). This ruling is definitive.
Conclusion
The parties, counsel, and their witnesses may not refer in the presence of the jurors or prospective jurors to the matters covered by these motions in limine which have been granted; such evidence is inadmissible. Counsel are DIRECTED to so inform the parties and their witnesses.
Regardless of whether a ruling on a motion in limine is definitive or not, counsel may seek reconsideration as appropriate throughout the course of trial. The indication that a ruling is definitive simply relieves counsel of the obligation to object contemporaneously with the introduction of the evidence which was the subject of a motion in limine. Counsel are ADVISED that all requests for reconsideration of a ruling on a motion in limine must be made outside the presence and hearing of the jury.
ALL OF WHICH IS ORDERED.