Opinion
Civil Action No. 00-5937 (JBS).
March 31, 2003
Laura D. Ruccolo, Esquire, Joel Korin, Esquire, KENNEY KEARNEY, Cherry Hill, New Jersey, Counsel for Plaintiff.
Keith J. Miller, Esquire, ROBINSON LIVELLI, Newark, New Jersey, John K. Diviney, Esquire, ALAN B. PEARL ASSOCIATES, P.C., Syosset, New York, Counsel for Defendant.
OPINION
Presently before the Court is defendant's motion in limine which raises four evidentiary issues in this New Jersey Law Against Discrimination age discrimination case before the Court on diversity jurisdiction. Discovery is complete and the jury trial commences on April 7, 2003. Plaintiff David Wright alleges that defendant L-3 Communications Corp. terminated his employment on April 17, 2000 because of his age. Defendant seeks to exclude the following four types of evidence at trial: (1) testimony that Christopher Clayton, then-president of L-3, and Mark Pisani, director of L-3's Space Group, made "stray remarks about age;" (2) testimony from plaintiff about his view of the future of the space products market; (3) certain "hearsay documents;" and (4) a waiver and release of age discrimination claims offered to plaintiff as part of his severance package.
Citations will be omitted from this background section to the extent that the facts are taken from the Court's October 21, 2002 summary judgment opinion. See Wright v. L-3 Communications Corp., 227 F. Supp. 2d 293 (D.N.J. 2002). The Opinion was written by the Honorable Stephen M. Orlofsky, United States District Judge, before the case was reassigned to the undersigned on March 12, 2003.
Defendant L-3 designs and manufactures products for space technology, such as gyros, wheels, and sensors which guide, position, navigate, and control satellites, space launch vehicles, Hubble space telescopes, land rockets, and the international space center. Beginning in January 2000, plaintiff was L-3's Director of Business Development for Space Products. On April 17, 2000, plaintiff's employment with L-3 was terminated. Plaintiff was sixty years of age.
Plaintiff was previously employed in the Space and Navigation Division of Allied Signal until its sale to L-3 in 1999. The sale of the Space and Navigation Division included the transfer of certain employees, including Wright, to L-3. Wright's employment with L-3 began in January 2000.
Plaintiff filed a Complaint in the New Jersey Superior Court, Camden County, on October 12, 2000, alleging that he was terminated on the basis of his age in violation of the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. § 10:5-1, et seq. Defendants removed the action to this Court on December 6, 2000.
On October 21, 2002, the Court denied defendant's motion for summary judgment based on the three-stage inquiry set forth inMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Court found that plaintiff had presented a prima facie case of discrimination. First, he was a member of a protected class at age 60. Second, he was qualified for the Director of Business Development for Space Products position because the former president for the Space and Navigation Division testified that his position was eliminated because of a "downturn in the space business" and not because of any problems with his performance. Third, plaintiff suffered an adverse employment decision because his employment was terminated. Fourth, plaintiff showed that the employer sought others to perform plaintiff's work after he was terminated. After plaintiff was terminated, his duties were reallocated to at least twelve other employees, including Mark Pisani who was twenty-two years younger than plaintiff.
The inquiry requires plaintiff to first prove by a preponderance of the evidence a prima facie case of discrimination. Second, defendant must come forward with admissible evidence of a legitimate, non-discriminatory reason for its action. Third, plaintiff must prove by a preponderance of the evidence that the legitimate nondiscriminatory reason articulated by the defendant was not the true reason for the employment decision, but was a pretext for discrimination.
The Court found that the proper standard for establishing the fourth prima facie element under the NJLAD is "whether the employer sought others to perform the plaintiff's work after the plaintiff was removed." This standard differs from the standard employed under the federal Age Discrimination in Employment Act (ADEA) which requires the plaintiff to show that "he was replaced by someone sufficiently younger to create an inference fo unlawful age discrimination." The Court based its finding onPetrusky v. Maxfli Dunlop Sports Corp., 342 N.J. Super. 77 (App.Div. 2001) and its finding that
the focal question is not necessarily how old or young the claimant or his replacement was, but rather whether the claimant's age, in any significant way, made a difference in the treatment he was accorded by his employer.Id. at 82.
Defendant then provided a legitimate non-discriminatory reason for plaintiff's termination by explaining that plaintiff's position was eliminated due to a downturn in the space business. In an April 6, 2000 memorandum to its employees, Christopher Clayton, then-president of L-3, informed all L-3 employees that "[t]he growth potential in Space Business is very flat at the moment and we are going to consolidate the organization to optimize our ability to gain follow-on business; for example, in classified programs." The Court found that the "downturn in the space business and L-3's decision to focus on its other areas of business presents a legitimate non-discriminatory reason for L-3's termination of Wright" who was director of the development of the space business.
Plaintiff then presented indirect evidence that "raise[d] enough suspicions that the employer's proffered reasons for termination were pretextual" that the Court denied summary judgment for the defendant. Plaintiff showed that L-3, who fired him because it was "not going to pursue new business in space, and, therefore did not need a business development function," continued to pursue the space technology business after he was fired. Mark Pisani approached approximately seven new space products customers since plaintiff's termination in April 2000; his first solicitation was in May 2000. Also, plaintiff showed that while L-3 claimed that there was "downturn in the space-technology business" that justified the elimination of plaintiff's position, there were actually a "number of new space opportunities" that plaintiff presented to L-3's president in January 2000, and there were four new space projects actively solicited and negotiated by L-3 from April to July 2000.
Defendants filed the present motion in limine on March 6, 2003 seeking to exclude certain evidence that plaintiff proposed in the joint final pretrial order. This Court heard oral argument on Friday, March 28, 2003.
II. DISCUSSION
Presently before the Court is defendant's motion in limine in which it seeks to bar admission of the following evidence: (1) testimony that Christopher Clayton, then-president of L-3, and Mark Pisani, director of L-3's Space Group, made "stray remarks about age;" (2) testimony from plaintiff about his view of the space products market in 2000 and 2001; (3) certain "hearsay documents;" and (4) testimony and documents about a waiver and release that plaintiff was asked to sign at the time of his termination in exchange for a severance package.
A. Standard for Motion in Limine
This Court may hear the present motions in limine because it has the inherent authority to manage cases brought before it.Luce v. United States, 469 U.S. 38, 40 n. 2 (1984). An "in limine ruling on evidence issues is a procedure which should, in the trial court's discretion, be used in appropriate cases." In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983), rev'd on other grounds sub nom., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). One such appropriate case is where the court can shield the jury from unfairly prejudicial or irrelevant evidence. See United States v. Romano, 849 F.2d 812, 815 (3d Cir. 1988). The in limine motion then fosters efficiency for the court and for counsel by preventing needless argument at trial. New Jersey Civil Procedure § 16-2:2 (citing Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1988)). However, the ruling should not be made prematurely if the context of trial would provide clarity. Japanese Elec., 723 F.2d at 260.
B. Analysis 1. "Stray Comments" Evidence
Defendant argues that the proposed testimony of Linda Petrie, Bernie Domaratzky, Joseph Bertini, Stuart Weinstein, and Dominick Carpinelli about stray remarks made by Christopher Clayton and Mark Pisani is not admissible because it is not relevant, is unduly prejudicial, and is hearsay. In the final pretrial order, plaintiff stated its intention to call these witnesses to testify that Clayton made a joke about ambulances pulling up to the building and that Pisani said that "people with 25 years or more, it was time for them to leave, and they should step aside and make room for the younger people." (Def.'s Br. at 3.)
(a) Relevance
Defendant first argues that "[t]hese offhand comments" are not relevant because they were not delivered through an evaluation or decision making process, were temporally remote from plaintiff's termination, were not made in a supervisory capacity, and do not show a nexus between plaintiff's age and his layoff. (Def.'s Br. at 7-8.) Instead, according to defendant, they are "a textbook example of evidence which is unduly prejudicial and utterly lacking in any probative value." (Id. at 8.) Plaintiff argues that the statements are relevant because they show that there was a discriminatory attitude among the management at L-3 which is probative evidence that his termination was based on discrimination. (Pl.'s Br. at 4-5.)
The Third Circuit has held that "discriminatory comments by nondecisionmakers, or statements temporally remote from the decision at issue, may properly be used to build a circumstantial case of discrimination." Abrams v. Lightolier, Inc., 50 F.3d 1204, 1214 (3d Cir. 1995). Such comments may be relevant to showing an employer's reason was pretextual since they "tend to add color to the employer's decisionmaking processes and to the influences behind the actions taken with respect to the individual plaintiff." Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 546 (quoting Conway v. Electro Switch Corp., 825 F.2d 593, 597 (1st Cir. 1987)). However, the Third Circuit has also found that "stray remarks by non-decisionmakers, or by decisionmakers unrelated to the decision process, are rarely given great weight, particularly if they were made temporally remote from the date of decision."Ezold, 983 F.2d at 545.
Determining whether a "stray comment" is relevant and admissible requires the Court to consider two evidentiary rules. For admission, the evidence must first be relevant under Fed.R.Evid. 401 which states:
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Second, if relevant, the probative value of the evidence must not be substantially outweighed by factors listed in Fed.R.Evid. 403 which states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . .
Comments made by decisionmakers are generally admissible because a comment that shows age-related animus, especially when corroborated by other evidence, is "highly relevant" and "probative of whether [the decisionmaker] harbored a discriminatory attitude against older workers, [which] if credited [makes] the existence of an improper motive for the discharge decision more probable." Abrams, 50 F.3d at 1214-15. A "discriminatory comment by an executive connected with the decisionmaking process will often be the plaintiff's strongest circumstantial evidence of discrimination." Id. at 1215. The comment may be excluded, though, if it is so removed from the decisionmaking process or was so temporally distant to the actions at issue that it would be unfairly prejudicial or misleading.
Discriminatory comments made by nondecisionmakers may not be admissible on relevance or prejudice grounds. If the comment is not corroborated by other evidence, and is "too remote and isolated to show independently that unlawful discrimination" motivated the decision, it is not sufficient to connect the discriminatory attitude to the company and its decisionmaker.Ezold, 983 F.2d at 545, 547. It may "reflect unfavorably on [the nondecisionmaker's] personality or his views," but it does not make the existence of discrimination more probable. Id. Moreover, even if the comment was found relevant, it may be excluded under Fed.R.Evid. 403 because it would allow "a jury [to] be misled into believing that the so-called `opinion' of one individual, who had no involvement with the adverse employment decisions at issue, reflects an unwritten policy employed by the decisionmakers involved." Armbruster v. Unisys Corp., 914 F. Supp. 1153, 1157 (E.D. Pa. 1996).
Not all comments made by nondecisionmakers are inadmissible. Such comments may be relevant and probative of the decisionmaker's motive or state of mind. For example, a comment was relevant when made by the president of a university who, though not involved in actually making the decision, had "significant influence on the attitudes and procedures of the decisionmakers." Roebuck v. Drexel Univ., 852 F.2d 715, 733 (3d Cir. 1988); compare Hodgkins v. Kontes Chemistry Life Sciences Product, Civ. No. 98-2783, 2000 WL 246422 at *14 (D.N.J. Mar. 16, 2000) (finding comments irrelevant to decisionmaker's motive when no evidence connected the comments to the decisionmaker).
Here, this Court finds that the statement made by Christopher Clayton, the president of L-3 who made the "decision to eliminate the Business Development position for the Space group and terminate David Wright," (Final Pretrial Order at 3, 10), is relevant and admissible. The statement made by Mark Pisani, the director of the Space group at the time of plaintiff's termination, (Id. at 4), however, is not admissible.
Mark Pisani was promoted to his position as director of space programs on April 6, 2000. Plaintiff was notified of his termination on April 14, 2000.
The Clayton statement is relevant and probative. Defendants admit that Clayton made the decision to fire plaintiff and that his remark was made about two months before he decided to fire plaintiff. The statement was heard by several in connection with Clayton's thoughts regarding placement of employees in the new L-3 Space and Navigation Division. As such, the statement is sufficiently proximate and pertinent to the issue of Clayton's mental state regarding age biases that it is relevant and probative of whether Clayton was in some way motivated by an age bias when he decided to terminate plaintiff. Therefore, the Court will allow admission of testimony about the Clayton statement.
The Pisani statement, on the other hand, is not admissible. It was allegedly made at least one year prior to plaintiff's termination to one witness. Pisani was employed by Allied Signal at the time, not L-3. It is not relevant to proving that a decisionmaker in this case had an age bias because Pisani did not make the decision to terminate plaintiff's employment, did not make the comment while he was employed by L-3, and did not supervise plaintiff when he made the comment. The witness, Ms. Petrie, is also unsure whether Pisani uttered the remark in the summer of 1999, or even earlier (and thus more remote) in the summer of 1998. Also, while plaintiff argues that Pisani's comment about employees with twenty-five years of service shows age bias because one must be older to have twenty-five years of service, it is clear that plaintiff did not have anywhere near twenty-five years of service with Allied Signal or L-3. He was hired by Allied Signal when he was fifty-eight years of age and fired at age sixty. As a result, Pisani's comment shows no malice or bias toward plaintiff personally.
Moreover, even if the statement had slight probative value, it is substantially outweighed by unfair prejudice to defendant. Admission of this statement could cause a jury to believe that L-3 had a policy or bias against older employees even though the comment was made by a non-decisionmaker at his former place of employment. Therefore, this Court will exclude testimony about the Pisani statement.
2. Plaintiff's Testimony
Defendant argues that this Court should bar plaintiff from testifying about his own personal opinion of the future of the space market because the evidence is not relevant to determining whether L-3's reasons for his termination were pretextual. (Def.'s Br. at 10.) In support, defendant cites Dungee v. Northeast Foods, Inc., 940 F. Supp. 682, 689 (D.N.J. 1996), which states that to determine whether an employer's reason is pretextual, "it is the perception of the decisionmaker that is relevant, not the plaintiff's perception of [him]self."
This Court agrees and finds that plaintiff's thoughts about the future of the space market are not relevant to determining L-3's motivation for terminating his employment. Provided L-3 believed that the space market was suffering a downturn, it is not relevant what plaintiff believed. He has not been identified as a lay expert witness under Fed.R.Evid. 701 so may not present such lay opinion testimony.
Plaintiff, however, may testify to relevant facts that he knew about the space market and defendant's efforts to generate new space business around the dates of his termination, even if the facts were the basis of his opinion about the future of the space market. Fed.R.Evid. 602 allows a witness to testify to matters for which he has personal knowledge. Therefore, this Court will preclude plaintiff from testifying about his opinion of the future of the space market, but will allow plaintiff to testify about any facts relevant to the space market for which he has personal knowledge.
3. Honeywell, Raytheon, and L-3 Documents
Defendant seeks to exclude a March 7, 2000 letter from Frank Daly-Honeywell to plaintiff and its attachment, (Pl.'s Ex. 40), a Raytheon fax cover sheet, (Pl.'s Ex. 35), an April 20, 2000 letter from Raytheon, (Pl.'s Ex. 36), and any two documents about a May 2000 reduction in force of other L-3 employees, (Pl.'s Exs. 37, 38). Defendant argues that the two Raytheon documents are from third parties and should be suppressed as hearsay, and that the documents about the L-3 reduction in force in May are not relevant, would constitute an "unnecessary invasion of the privacy of unrelated former employees of defendant," and would confuse and mislead the jury. (Def.'s Br. at 11-12).
At oral argument, defendant consented to the admission of the March 7, 2000 Honeywell letter.
This Court finds that the Raytheon documents, prepared by those at a company unrelated to this lawsuit, are hearsay documents at this stage because plaintiff has not provided the Court with a foundation or a hearsay exception under which they are admissible, instead stating only that the documents may fit within the business records exception if someone from Raytheon testified. Such a witness has not been identified, so the Court will grant defendant's motion to exclude the Raytheon documents, but without prejudice to plaintiff's right to lay a proper foundation for the documents that qualifies them under the business records exception or some other hearsay exception.
The Court has decided to defer ruling on the admissibility of the two documents relating to the L-3 May 2000 reduction in force. The Court does not have sufficient information at this time to determine the relevance and admissibility of the documents.
4. Severance Waiver and Release
Defendant seeks exclusion of plaintiff's exhibit 41, which is a proposed waiver and release of age discrimination claims that defendant asked plaintiff to sign at the time of his termination in exchange for a severance package. Plaintiff did not sign the agreement, (Pretrial Order at 4), and he seeks to introduce it to show that defendant was conscious that plaintiff's termination was discriminatory and defendant therefore provided the waiver and release to shield itself from liability.
The release given to plaintiff was part of a six-page severance agreement. It states, in pertinent part:
CONSULT WITH A LAWYER BEFORE SIGNING THIS AGREEMENT. BY SIGNING THIS AGREEMENT YOU GIVE UP AND WAIVE IMPORTANT LEGAL RIGHTS. . . .
3. I understand that this AGREEMENT does not constitute an admission by the COMPANY of any: (a) violation of any statute, law or regulation; (b) breach of contract, actual or implied; or (c) commission of any tort. In exchange for the Severance Benefits, you, David Wright, do hereby waive and do hereby release, knowingly and willingly, the COMPANY, from any and all claims of any nature whatsoever you have arising out of your employment and/or the termination of your employment with L-3 Space and Navigation Division, known or unknown, including by not limited to any claims you may have under federal, state or local employment, labor, or anti-discrimination laws, statutes, and case law and specifically claims arising under the federal Age Discrimination in Employment Act, the Civil Rights Acts of 1866 and 1964, as amended, the Americans with Disabilities Act, Executive Order 11246, the Employee Retirement Income Security Act, the Family and Medical Leave Act, the Rehabilitation Act of 1973, the Fair Labor Standards Act, the Labor-Management Relations Act, the Equal Pay Act and the Worker Adjustment Retraining and Notification Act, the New Jersey Law against Discrimination, as amended, the New Jersey Equal Pay Act, the New Jersey Smokers' Rights Law, the New Jersey Family Leave Act, the New Jersey Constitution, the New Jersey Conscientious Employee Protection Act, New Jersey common law and any and all other applicable state, county or local statutes, ordinances or regulations . . . including claims for attorneys' fees . . .
4. (a) I realize there are many laws and regulations prohibiting employment discrimination or otherwise regulating employment or claims related to employment pursuant to which I may have rights or claims. I intend to waive and release any rights I may have under these and other laws, but I do not intend to nor am I waiving any rights or claims that may arise after the date that I sign this agreement.
5. (a) In exchange for my receipt of the separation benefit, on behalf of myself, my heirs and personal representatives, I release and discharge the COMPANY from any and all charges, claims and actions arising out of my employment or the termination of my employment with the COMPANY, including any claim for attorney's fees, costs or expenses that I may have or may be made on my behalf . . .
(Wright Cert., Motion for Summary Judgment, Ex. A at 1) (underlined emphasis added).
This Court will grant the motion in limine to exclude this waiver and release. The Third Circuit, in Keller v. ORIX Credit Alliance, 130 F.3d 1101 (3d Cir. 1997), explained that such stock form waivers and releases have little, if any, probative value. There, the plaintiff was given a draft letter of resignation to consider which would have given plaintiff a severance package if, in return, plaintiff released the defendant from all legal claims. Id. at 1112. There, as here, plaintiff argued that "the inclusion of this provision in the letter evidences [defendant's] awareness that [plaintiff] had grounds for an age-discrimination claim against it." Id. The Third Circuit stated:
This implication is far-fetched. Without evidence that a request for a blanket release is not a common practice when an executive is asked to resign under terms such as those set out in the letter, the inclusion of this clause in the proposed letter of resignation has little evidentiary worth.Id.
Plaintiff argues that the release in this case is admissible because Keller did not hold that all releases are inadmissible, but only held that the release in its case had "little evidentiary worth." (Pl.'s Br. at 8.) Plaintiff also argues that the release here is probative of discriminatory intent because:
at the time Mr. Wright was terminated, he was handed a Release . . . asking him to release all age discrimination claims before Mr. Wright had even had time to contemplate what was happening to him and consider whether he actually had a claim under any age protective statute. These facts are more probative of discrimination than not.
(Id. at 9.)
This Court finds that the release given to plaintiff here is not probative of discriminatory intent. First, plaintiff was not given a form tailored to his situation, asking him to waive only age discrimination claims. Instead, the agreement includes the Age Discrimination in Employment Act (ADEA), the New Jersey Law Against Discrimination and "any claims you may have under federal, state or local employment, labor, or anti-discrimination laws, statutes and case law," along with at least sixteen other specifically listed employment statutes. This is a boilerplate release.
Moreover, the specific reference to the ADEA and the NJLAD was prompted by federal and New Jersey law. The boilerplate form was designed by the employer to ensure that any waiver entered by its employees would be knowing and voluntary, and thus enforceable in court. The Older Workers Benefit Protection Act, added a waiver provision to the ADEA "to ensure that older workers are not coerced or manipulated into waiving their rights to seek legal relief under the ADEA." Long v. Sears Roebuck Co., 105 F.3d 1529, 1535 (3d Cir. 1997). It sets statutory minima that must be met before a waiver will be found knowing and voluntary. The waiver must be part of an agreement "written in a manner calculated to be understood" by the employee, must "specifically refer to rights or claims arising under [the ADEA]," must explain that the employee "does not waive rights or claims that arise after the date the waiver is executed," must advise the employee "in writing to consult with an attorney prior to executing the agreement," and must provide the employee seven days to revoke his acceptance after signing the agreement. 29 U.S.C. § 626(f).
The provision, by its terms, only applies to waivers of rights under the ADEA. Keelan v. Bell Comm. Research, 289 N.J. Super. 531, 544 (App.Div. 1996); see also Stonkus v. City of Brockton Sch. Dept., ___ F.3d ___, 2003 WL 1209674 (1st Cir. Mar. 14, 2003). However, the NJLAD requires similar notice provisions prior to waiver. It is clear that the "statutory protections against age discrimination under the NJLAD do not bar knowing, wilful waiver of those protections," but the court must carefully consider the following factors to determine whether an employee has waived his right to assert NJLAD age discrimination claims:
1) the plaintiff's education and business experience, 2) the amount of time the plaintiff had possession of or access to the agreement before signing it, 3) the role of plaintiff in deciding the terms of the agreement, 4) the clarity of the agreement, 5) whether the plaintiff was represented by or consulted with an attorney, and 6) whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law. Additional factors to be considered are (1) whether an employer encourages or discourages an employee to consult an attorney and (2) whether the employee had a fair opportunity to do so.Swarts v. Sherwin-Williams Co., 244 N.J. Super. 170, 176-77 (App.Div. 1990); Keelan, 289 N.J. Super. at 544-45. While the agreement does not need to "mention a specific statute in order to validly bar claims under that statute, the failure to make such specific mention is detrimental to the employer's case that the release is valid." Id.
Here, the form precisely follows the requirements of the ADEA and New Jersey law. It instructs the employee to consult an attorney and provides the employee twenty-one days to do so. It specifically refers to the rights that the employee will waive if the agreement is signed to ensure that he knows that he has such rights. It explains that the employee is not waiving any rights that arise after the date of the agreement. It provides the employee seven days to revoke the agreement after he signs it.
This Court cannot find that this agreement, created in compliance with federal and New Jersey law, is probative of unlawful age discrimination simply because it specifically mentions two age discrimination statutes. If such a form could be considered probative of discrimination, the employer would be caught in a classic Catch-22 situation: if it did not specifically name the age discrimination statutes, it would be subject to claims for discrimination based on an invalid waiver; if it did specifically name the statutes, it would be subject to claims for discrimination supported by the waiver's naming of the specific statutes.
Here, the waiver notified plaintiff of his rights to be free of age discrimination in compliance with federal and New Jersey law. It did not signify any intent to discriminate. The Court thus finds that it is not probative of discrimination and is not admissible.
III. CONCLUSION
The Court has considered defendant's motion in limine and will admit testimony that Christopher Clayton made a derogatory comment about age, but will exclude testimony that Mark Pisani made a derogatory comment; will bar plaintiff from testifying about his personal opinion of the future of the space market, but will allow him to testify to relevant facts of which he has personal knowledge; will dismiss as moot the objection to the Honeywell document (Pl.'s Ex. 40) due to the consent of the parties, will dismiss the objection to the Raytheon documents (Pl.'s Exs. 35, 36) without prejudice to plaintiff's laying a proper foundation for their admission, and will defer until trial a ruling on the admissibility of documents about a reduction in force that occurred at L-3 in May 2000 (Pl.'s Exs. 37, 38); and will bar admission of the waiver and release presented to plaintiff with his severance package.
The accompanying Order is entered.
ORDER
This matter having come before the Court upon the motion in limine of defendant [Docket Item 52-1]; and the Court having considered the parties' written submissions as well as oral arguments made on March 28, 2003; and for the reasons expressed in Opinion of today's date;
IT IS this ____ day of March, 2003, hereby
ORDERED that defendant's motion in limine be, and hereby is,
DISMISSED AS MOOT as to the Honeywell document, plaintiff's exhibit 40, due to the consent of the parties;
DISMISSED WITHOUT PREJUDICE as to the Raytheon documents, plaintiff's exhibits 35 and 36;
DENIED IN PART as to testimony that Christopher Clayton made a derogatory comment about age; and
GRANTED IN PART as to testimony that Mark Pisani made a derogatory comment about age in the summer of 1998 or 1999 and also as to testimony from plaintiff about his personal opinion of the future of the space market, and as to the waiver and release presented to plaintiff with his severance package.
The Court will defer ruling on plaintiff's exhibits 37 and 38 about a May 2000 reduction in force until their presentation at trial.