Opinion
Case No. 07-21333-CIV-LENARD/GARBER
05-31-2011
ROBERTO ALVAREZ and OMAR S. GONZALEZ, as co-personal representatives of the ESTATE OF ELIUTH ALVAREZ, Plaintiff, v. ROYAL ATLANTIC DEVELOPERS, INC., Defendant.
OMNIBUS ORDER ON MOTIONS IN LIMINE (D.E. 115 , 116, 117, 118)
THIS CAUSE is before the Court on several motions in limine. On April 4, 2011, Plaintiff filed her Motion in Limine to Exclude All Reference at Trial to Issues Beyond Those Related to Whether Plaintiff Attempted to Sabotage the Business (D.E. 115), and her Motion in Limine to Exclude All Reference at Trial to the Equal Employment Opportunity Commission's Dismissal and Notice of Right to Sue (D.E. 116). Also on April 4, 2011, Defendant filed its Motion in Limine Regarding Evidence of Alleged Discrimination (D.E. 117), and its Motion in Limine to Preclude Reference to Eliuth Alvarez's Illness as "Cancer," Etc. (D.E. 118). Having considered the various motions, related pleadings, and the record, the Court finds as follows.
On October 19, 2010, Plaintiff filed a Suggestion of Death, indicating Eliuth Alvarez had passed away, and an unopposed motion to substitute Roberto Alvarez and Omar S. Gonzalez, co-personal representatives of the Estate of Eliuth Alvarez, as plaintiff. (See D.E. 101, 102.) The Court granted the motion the next day. (See D.E. 103.) Although Plaintiff's estate has been substituted as party-plaintiff, the Court uses the third person possessive "her" to refer to Plaintiff's claims rather than "its."
Defendant filed its response in opposition on April 7, 2011, to which Plaintiff filed her reply on April 15, 2011. (See D.E. 120, 121.)
Defendant filed its response in opposition on April 20, 2011, to which Plaintiff filed her reply on April 29, 2011. (See D.E. 127, 135.)
Plaintiff filed her response in opposition on April 20, 2011, to which Defendant filed its reply on April 22, 2011. (See D.E. 128, 130.) At the April 25, 2011, pre-trial conference, the Court heard argument from the Parties and indicated it was not prepared to rule on whether evidence of discrimination complaints from other co-workers including Rosario Ruiz or evidence of other discrimination would be admissible. (See Tr. of April 25, 2011, Pre-Trial Conference, D.E. 136 at 24-26.) Accordingly, Defendant's Motion in Limine Regarding Evidence of Alleged Discrimination (D.E. 117), is held in abeyance.
Plaintiff filed her response in opposition on April 20, 2011, to which Defendant filed its reply on May 3, 2011. (See D.E. 129, 137.)
A more complete recitation of the background facts and procedural history of the case can be found in either the Court's Order granting summary judgment or the Eleventh Circuit's opinion. (See D.E. 81, 97.)
This is an employment retaliation lawsuit. Plaintiff worked for Defendant as a Controller between March 2006 and October 4, 2006. On October 3, 2006, Plaintiff sent a letter to Edwin Verdezoto, the owner of the company, complaining of harassment and discrimination against Cubans. Plaintiff was terminated the next day. There is evidence in the record that Defendant had already begun to look to replace Plaintiff although it is undisputed that her October 3, 2006, complaint caused her to be terminated sooner. On October 6, 2006, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging she was discriminated against based on her ethnicity and retaliated against based on her complaint. On February 26, 2007, the EEOC issued its Dismissal and Notice of Right to Sue letter. (See "EEOC Notice," D.E. 1 at 13.)
On May 23, 2007, Plaintiff Eliuth Alvarez filed her Complaint. The Complaint alleges she was terminated based on her Cuban ethnicity in violation of Title VII of the Civil Rights Act of 1964, and the Florida Civil Rights Act ("FCRA"), Fla. Stat. § 760.01, et seq. (See D.E. 1.) The Complaint also alleges she was retaliated against because she filed an internal complaint complaining of discrimination against Cubans the day prior to her termination. On August 21, 2008, the Court granted Defendant's motion for summary judgment as to all counts. (See D.E. 81.)
On July 2, 2010, the Eleventh Circuit affirmed in part, reversed in part, and remanded this Court's grant of summary judgment to Defendant. Specifically, the Eleventh Circuit found summary judgment was appropriate as to Plaintiff's discrimination claim. Nevertheless, the Eleventh Circuit reversed the Court's grant of summary judgment as to her claims of unlawful employment retaliation under Title VII and the FCRA, Counts II and IV of the Complaint. (See D.E. 97.) Thus, this matter is set for trial on Plaintiff's retaliation claims.
II. Motions in Limine
A. Plaintiff's Motion in Limine to Exclude All Reference at Trial to Issues Beyond Those Related to Whether Plaintiff Attempted to
Sabotage the Business
In her motion, Plaintiff seeks to limit the issues for trial solely to "whether Defendant can prove it had a reasonable basis for fearing that unless it fired Plaintiff immediately that she would sabotage its operations or harm others." (D.E. 115 at 5.) According to Plaintiff, the Eleventh Circuit's decision limited the proceedings on remand by identifying as the only issue for trial whether Defendant "had a reasonable basis for fearing that unless it fired her immediately Alvarez would sabotage its operations or harm others, and there was no less drastic means of reliably preventing that other than firing her." (Id. at 4; D.E. 97 at 35.) Plaintiff further offers that any other issues are foreclosed by the law of the case doctrine.
In response, Defendant contends that Plaintiff must still prove all of the elements of her retaliation claim because the Eleventh Circuit's decision was based on the summary judgment record. As a result, Defendant argues that it did not contest a key element of a retaliation claim, whether or not the plaintiff engaged in statutorily protected conduct, which involves an analysis of whether the plaintiff held a good faith, objective reasonable belief that discrimination was occurring. Because the evidence was viewed on appeal in the light most favorable to Plaintiff, Defendant argues that any factual findings are not necessarily binding pursuant to the law of the case doctrine.
In reply, Plaintiff argues that Defendant's motions for rehearing and rehearing en banc indicate it understands the issues are limited at trial. Plaintiff further argues that the Eleventh Circuit's opinion is binding as the law of the case where, as is the case here, the facts established at trial will not be substantially different.
At the April 25, 2011, pre-trial conference, the Court heard argument from the Parties and denied Plaintiff's Motion in Limine to Exclude All Reference at Trial to Issues Beyond Those Related to Whether Plaintiff Attempted to Sabotage the Business. Specifically, the Court found that the Eleventh Circuit's ruling was limited to a determination of whether or not Defendant was entitled to summary judgment. The Eleventh Circuit made this clear several times in its opinion. (See D.E. 97 at 33, 34 ("The only issue we have before us in this case is whether Royal Atlantic was entitled to summary judgment on this ground," "Alvarez never sought summary judgment in her favor on her retaliation claim, and we do not venture any opinion on whether she was entitled to it, because that issue is not before us."). Moreover, as noted in the Eleventh Circuit's opinion, Defendant conceded for purposes of its motion for summary judgment that Plaintiff's October 3, 2006, letter constituted statutorily protected conduct. (Id. at 5.) As such, Plaintiff is still required to prove the elements of her claim before the jury in order to succeed on her retaliation claims.
Title VII prohibits an employer from discriminating against an employee because they have "opposed any practice made an unlawful employment practice by this subchapter, or because [they] [have] made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). The statute's "participation clause" "protects proceedings and activities which occur in conjunction with or after the filing of a formal charge with the EEOC; it does not include participating in an employer's internal, in-house investigation, conducted apart from a formal charge with the EEOC." EEOC v. Total Sys. Serv., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000); Muhammad v. Audio Visual Servs. Grp., 380 Fed. Appx. 864, 872 (11th Cir. May 26, 2010); Clover v. Total Sys. Serv., Inc., 176 F.3d 1346, 1353 (11th Cir. 1999). The statute's "opposition clause" "protects activity that occurs before the filing of a formal charge with the EEOC, such as submitting an internal complaint of discrimination to an employer, or informally complaining of discrimination to a supervisor." Muhammad, 380 Fed. Appx. at 872 (citing EEOC v. Total Sys. Serv., Inc., 221 F.3d at 1174; Rollins v. State of Fla. Dep't of Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989)). Because Alvarez made her "formal complaint" prior to the initiation of any EEOC charge or investigation, her claim is based on Title VII's opposition clause. In order to establish that she engaged in statutorily protected conduct under Title VII's opposition clause, Plaintiff must "show that [she] had a good faith, reasonable belief that the employer was engaged in unlawful employment practices." Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010); Little v. United Tech., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997); Tipton v. Can. Imperial Bank of Commerce, 872 F.2d 1491, 1494 (11th Cir. 1989). This involves showing both that she subjectively believed Defendant engaged in unlawful discrimination and that this belief "was objectively reasonable in light of the facts and record present." Howard, 605 F.3d at 1244; Clover, 176 F.3d at 1351.
Because the Eleventh Circuit's opinion was decided on the record at the time of Defendant's motion for summary judgment, Defendant conceded that Alvarez engaged in statutorily protected conduct for purposes of its summary judgment motion, and the evaluation of whether one engaged in statutorily protected conduct requires such factually intensive inquiries, the Court finds the Eleventh Circuit's statements regarding this facet of the case are not conclusive as law of the case. As a result, the issues for trial are not as limited as Plaintiff suggests. Plaintiff must prove the elements of her Title VII retaliation case. That entails establishing a prima facie case of retaliation by showing: (1) she engaged in statutorily protected conduct; (2) she suffered an adverse employment action; and (3) that there is some causal relation between the two events. See McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008). In order to meet this first prong, Plaintiff must demonstrate that she had a good faith, objectively reasonable belief that Defendant was violating Title VII. Upon Plaintiff's establishing a prima facie case, it is then upon Defendant to "proffer a legitimate, non-discriminatory reason for the adverse employment action. If the employer offers such legitimate reasons for the employment action, the plaintiff must then demonstrate that the employer's proffered explanation is a pretext for retaliation." Crawford v. Carroll, 529 F.3d 961, 976 (11th Cir. 2008) (citing Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997)). Thus, Plaintiff's motion must be denied.
B. Plaintiff's Motion in Limine to Exclude All Reference at Trial to the Equal Employment Opportunity Commission's Dismissal and Notice of Right to Sue
Plaintiff seeks to exclude any reference or evidence related to the EEOC Notice. Plaintiff argues the evidence should be excluded because: (1) it constitutes inadmissible hearsay; (2) the EEOC's investigation is inherently unreliable; and (3) any such evidence would be unfairly prejudicial, confusing, misleading, and should be excluded on Rule 403 grounds. In response, Defendant argues the EEOC's determination is relevant and admissible under the Eleventh Circuit's precedent in Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1288 (11th Cir. 2008).
The admissibility of an EEOC determination in a jury trial is committed to the sound discretion of the district court. See Goldsmith, 513 F.3d at 1288; Barfield v. Orange Cnty., 911 F.2d 644, 650-51 (11th Cir. 1990). EEOC determinations are "generally admissible" as an exception to the hearsay rule pursuant to Rule 803(8)(C) of the Federal Rules of Evidence unless the source of information indicates a lack of trustworthiness. See Fed. R. Evid. 803(8)(C); Blanton v. Univ. of Fla., 273 Fed. Appx. 797, 804 (11th Cir. 2008). Nevertheless, "there may be some circumstances in which the probative value of an EEOC determination is trumped by the 'danger of creating unfair prejudice in the minds of a jury.'" Goldsmith, 513 F.3d at 1288 (citing Barfield, 911 F.2d at 650)). Indeed, there may be more reason to be cautious in admitting EEOC determinations in jury trials. See e.g., Lathem v. Dep't of Children & Youth Servs., 172 F.3d 786, 791 (11th Cir. 1999); Soliday v. 7-Eleven, Inc., 2011 U.S. Dist. LEXIS 42879 at *2 (M.D. Fla. Apr. 20, 2011); Lee v. Exec. Airlines, Inc., 31 F. Supp. 2d 1355, 1356-57 (S.D. Fla. 1998). Pursuant to Rule 403, "[a]lthough 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, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Moreover, as recognized above, only relevant evidence is admissible under Rules 401 and 402.
Rule 401 defines "relevant evidence" as "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." FED. R. EVID. 401.
The Court finds the EEOC Notice should be excluded as irrelevant and potentially misleading pursuant to Rule 403. The EEOC Notice states "[t]he EEOC issues the following determination: Based upon its investigation, the EEOC is unable to conclude that information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge." Defendant argues the EEOC Notice is relevant to determine whether Plaintiff's October 3, 2006, complaint was statutorily protected conduct. Specifically, Defendant claims evidence pertaining to the EEOC Notice is probative as to whether Plaintiff held a good faith, objectively reasonable belief that discriminatory conduct had occurred. Nevertheless, the EEOC's "non-finding" is minimally relevant, if at all, to the issue of whether Plaintiff engaged in statutorily protected conduct. It is not relevant to her subjective belief that Defendant engaged in unlawful discrimination and is only minimally relevant to whether such belief was objectively reasonable. Significantly, it is difficult to determine how the EEOC reached its "non-finding" decision and upon what documents or evidence it relied. Moreover, the Court is concerned that even with an instruction a jury may be confused or misled as to how it should interpret the EEOC's determination. There is also a danger of unfair prejudice to Plaintiff. Given that the EEOC possesses relatively little probative value and carries with it a real danger of misleading the jury, the Court finds the EEOC Notice should be excluded and Plaintiff's motion should be granted.
C. Defendant's Motion in Limine to Preclude Reference to Eliuth Alvarez's Illness as "Cancer," Etc.
Defendant seeks to limit evidence of, or references to, Plaintiff's death from cancer. Specifically, Defendant desires a Court order: (1) limiting references to Plaintiff's death from cancer to a single statement by the Court to the jury that Plaintiff died from cancer; (2) precluding evidence regarding the details of Plaintiff's cancer treatment and any side effects; and (3) precluding speculation regarding any connection between Plaintiff's illness and work-related stress. Defendant is concerned Plaintiff may try to evoke sympathy from the jury resulting from Plaintiff's diagnosis and death from a rare, aggressive form of cancer.
In response, Plaintiff argues that Eliuth Alvarez's medical condition is relevant to several issues in this case including (1) her emotional pain and suffering and (2) her ability to work. Nevertheless, Plaintiff indicates she has no intention of eliciting testimony regarding her painful death, the particular treatment or effects of treatment, or any speculative testimony regarding a possible connection between her illness and work-related stress. Plaintiff does however intend to introduce the testimony of a treating psychiatrist who will testify regarding the pain and suffering Plaintiff experienced as a result of her termination.
In reply, Defendant contends that testimony regarding Plaintiff's pain and suffering would only be relevant if concerned with her pain and suffering as a result of her accelerated termination. Moreover, Defendant contends Plaintiff's psychiatrist, Dr. Anne Rzadkowolsky-Raoli, testified that she only saw Plaintiff on one occasion for approximately thirty minutes and there is nothing indicating she could opine as to whether Plaintiff suffered pain and suffering resulting from her accelerated termination date.
The Court finds testimony or evidence pertaining to Plaintiff's cancer should be excluded as irrelevant and because it presents a danger of unfair prejudice to Defendant. Evidence of Eliuth Alvarez's cancer, including her treatment and any side effects, lacks probative value as to any issue at trial. There is also no credible evidence that her accelerated termination or any work-related stress caused her illness. There is also nothing in Dr. Rzadkowolsky-Raoli's testimony indicating the accelerated termination caused Plaintiff additional emotional pain and suffering. It is worth noting that the Eleventh Circuit affirmed the Court's grant of summary judgment to Defendant on the original discrimination claim based upon her termination. Additionally, the Court notes that the nature of Plaintiff's illness may evoke very strong feelings among potential jurors. Plaintiff's cancer is only potentially relevant to the issue of damages, namely whether her illness eventually prevented her from working (thus providing a measuring point for calculating damages). Accordingly, consistent with this Order and the Court's rulings at the April 25, 2011, pre-trial conference, it is ORDERED AND ADJUDGED that:
The Court makes no finding at this time as to whether Plaintiff would be entitled to damages for the period between her termination and her original replacement's start date, the period between her termination and when she became too ill to work, or some other period.
1. Plaintiff's Motion in Limine to Exclude All Reference at Trial to Issues Beyond Those Related to Whether Plaintiff Attempted to Sabotage the Business (D.E. 115), is DENIED;
2. Plaintiff's Motion in Limine to Exclude All Reference at Trial to the Equal Employment Opportunity Commission's Dismissal and Notice of Right to Sue (D.E. 116), is GRANTED;
3. Defendant's Motion in Limine Regarding Evidence of Alleged Discrimination (D.E. 117), is HELD IN ABEYANCE;
4. Defendant's Motion in Limine to Preclude Reference to Eliuth Alvarez's Illness as "Cancer," Etc. (D.E. 118), is GRANTED.
DONE AND ORDERED in Chambers at Miami, Florida, this 31st day of May, 2011.
/s/ _________
JOAN A. LENARD
UNITED STATES DISTRICT JUDGE