Opinion
Civil Action No. 01-2320-CM
January 16, 2003.
MEMORANDUM AND ORDER
Pending before the court is defendant Rent-A-Center, Inc.,'s Supplemental Motion in Limine (Doc. 72) and plaintiff Jennifer Jones's Motion to File Surreply in Opposition to Defendant's Motion in Limine (Doc. 88). The court has reviewed defendant's Supplemental Motion in Limine, plaintiff's Trial Brief (Doc. 86), defendant's Reply Memorandum in Support of Defendant's Supplemental Motion in Limine (Doc. 87), and plaintiff's Surreply Memorandum in Opposition to Defendant's Motion in Limine, which was attached to plaintiff's Motion to File Surreply. As set forth below, plaintiff's motion is granted, and defendant's motion is granted in part and denied in part.
I. Plaintiff's Motion to File Surreply (Doc. 88)
In her motion, plaintiff requests leave of court so that she may file a surreply in response to defendant's reply supporting defendant's supplemental motion in limine. Based upon the representation of defendant's counsel to the court that defendant does not plan to respond to the plaintiff's request, the court grants plaintiff's motion to file surreply. The court has reviewed plaintiff's surreply, and is prepared to rule on the merits of defendant's supplemental motion in limine.
• Defendant's Supplemental Motion in Limine (Doc. 72)
First, the court considers defendant's argument that the court should exclude all evidence pertaining to plaintiff's claims of retaliation, including plaintiff's termination and transfer. Second, the court examines plaintiff's argument, advanced in plaintiff's Trial Brief and discussed in defendant's Reply Memorandum in Support of Defendant's Supplemental Motion in Limine, that plaintiff's transfer is relevant to show a continuation of the hostile work environment plaintiff allegedly experienced. Third, the court analyzes plaintiff's argument that evidence regarding her transfer should be admitted to show whether defendant took remedial measures to correct or prevent any sexual harassment of the plaintiff.
A. Evidence Relating to Plaintiff's Retaliation Claim
Defendant requests the court to issue an order restricting plaintiff's attorneys and all witnesses called on plaintiff's behalf from offering evidence or making any statement pertaining to plaintiff's claims of retaliation, including her termination from employment and transfer. Defendant contends that plaintiff should not be permitted to offer evidence relating to her retaliation claim, because the court granted summary judgment in favor of defendant on plaintiff's retaliation claim in the court's December 3, 2002 Memorandum and Order (Doc. 71). As such, defendant claims that any evidence concerning plaintiff's retaliation claim would be irrelevant to the remaining issues in the case. In addition, defendant claims such evidence should be excluded under Federal Rule of Evidence 403 because the potential for undue prejudice, confusion of the issues, and undue delay outweigh its probative value.
• Evidence of Plaintiff's Transfer as Retaliation
In moving to exclude evidence relating to plaintiff's retaliation claim, the defendant claims that the court should exclude evidence relating to plaintiff's transfer to another store, because plaintiff failed to preserve that argument as a basis for her retaliation claim in the Pretrial Order. Defendant points out that, although plaintiff included the transfer as a basis for retaliation in the Amended Complaint, plaintiff failed to preserve the issue in the Pretrial Order by failing to list it as a basis for retaliation.
"The pretrial order is treated as superceding the pleadings and establishing the issues to be considered at trial." Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002) (quoting Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1522). Although the Tenth Circuit has recognized that a pretrial order "should be liberally construed to cover any of the legal or factual theories that might be embraced by its language," it has also found, upon a "careful reading of [that] court's cases reviewing trial courts' construction of pretrial orders," that "a district court may more strictly construe a pretrial order when that order has been refined over time, properly drawn, and drafted with substantial specificity." Koch v. Koch Indus., Inc., 203 F.3d 1202 (10th Cir. 2000) (internal citation omitted).
Here, plaintiff did not include her transfer as among the seven issues of fact set forth in the Pretrial Order that remained open regarding plaintiff's retaliation claim. Further, in plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment (Doc. 56), plaintiff stated that "Ms. Jones is not claiming that the decision to transfer her to the new store was, by itself, an adverse employment action." (Pl.'s Mem. in Opp. at 12). Rather, plaintiff contended that evidence of plaintiff's transfer "shows defendant's indifference about the retaliation by Grimsley for her complaint of sexual harassment." ( Id.). In its order partially granting and partially denying defendant's motion for summary judgment, the court made no finding regarding whether plaintiff's transfer was retaliatory, because that argument was not before the court.
The court thus finds that, because she failed to include in the Pretrial Order her transfer as a basis for her retaliation, plaintiff has not preserved the issue. The court therefore grants defendant's motion to the extent it seeks to exclude evidence offered to show that plaintiff's transfer was in retaliation for her complaints of sexual harassment.
2. Other Evidence of Retaliation, Including Plaintiff's Termination
The court grants defendant's motion to exclude evidence regarding plaintiff's retaliation claim, including evidence of plaintiff's termination. Because the court granted summary judgment in favor of defendant regarding plaintiff's retaliation claim, including plaintiff's claim that her termination was retaliatory, the court finds that evidence related to that claim is irrelevant to the issues remaining in the case. Moreover, the probative value of such evidence would be outweighed by the risk of confusion of the issues and undue delay. The court therefore grants defendant's motion to the extent it seeks to exclude from evidence any testimony related to plaintiff's retaliation claim, including plaintiff's claim that her termination was retaliatory. The court next examines plaintiff's argument that evidence of plaintiff's transfer is admissible, because the transfer was a continuation of the hostile work environment plaintiff allegedly endured.
• Evidence of Plaintiff's Transfer as a Continuation of a Hostile Work Environment
Plaintiff argues in her Trial Brief that evidence regarding plaintiff's transfer is relevant to show that an ongoing hostile work environment existed, which influenced plaintiff's transfer to a different store operated by defendant. Defendant counters that plaintiff should not be permitted to characterize Mr. Grimsley's comments concerning plaintiff's retaliation as part of a continuing course of hostile work environment sexual harassment. Defendant states that plaintiff waived this issue, because she failed to include it among the facts she listed in the Pretrial Order as the bases upon which she brings her hostile work environment claim.
The court finds that evidence regarding plaintiff's transfer may not be introduced for the purpose of showing that Mr. Grimsley's comments concerning plaintiff's transfer were part of a continuing course of sexual harassment. In the pretrial order, plaintiff delineated forty-two issues of fact as relevant to plaintiff's hostile work environment claim. Plaintiff did not allege that her transfer was among those issues of fact relating to her hostile work environment claim. Moreover, plaintiff alleged that "defendant transferred Ms. Jones to another RAC store, instead of taking remedial action against her supervisor." (Pretrial Order at 5). The court finds that plaintiff failed to properly preserve such comments in the pretrial order as a basis for plaintiff's hostile work environment claim in the pretrial order. Accordingly, she is precluded from introducing evidence related to Mr. Grimsley's comments concerning plaintiff's transfer to support her claim of hostile work environment sexual harassment.
C. Evidence Regarding Plaintiff's Transfer as An Attempt to Correct or Prevent Mr. Grimsley's Alleged Harassment of Plaintiff
In her Trial Brief, plaintiff claims that, if she is not allowed to introduce evidence regarding the circumstances of her transfer, the jury will infer that defendant transferred the plaintiff as an attempt to prevent or correct the alleged hostile work environment. Plaintiff claims that such an inference would be false, because defendant's counsel stated during the hearing on the parties' motions in limine that defendant did not transfer the plaintiff in order to protect her from harassment.
In its summary judgment order, the court identified a genuine issue of material fact regarding whether defendant took appropriate remedial action to correct or prevent the harassment plaintiff allegedly endured. The court finds that evidence relating to plaintiff's transfer is relevant to show whether defendant took remedial action to correct or prevent Mr. Grimsley's alleged harassment of plaintiff.
IT IS THEREFORE ORDERED that plaintiff Jennifer Jones's Motion to File Surreply in Opposition to Defendant's Motion in Limine (Doc. 88) is granted.
IT IS FURTHER ORDERED that defendant Rent-A-Center, Inc.,'s Supplemental Motion in Limine (Doc. 72) is granted in part and denied in part.
Evidence of plaintiff's transfer is not admissible for the purposes of claiming that the transfer was retaliatory. Any other evidence pertaining to plaintiff's retaliation claim, including evidence regarding the termination of plaintiff's employment, is not admissible.
Evidence of plaintiff's transfer is also inadmissible for the purpose of claiming that plaintiff's transfer was a continuation of the hostile work environment plaintiff claims she experienced.
Evidence of plaintiff's transfer is admissible, however, for the purpose of showing whether defendant took remedial action to correct or prevent Mr. Grimsley's alleged harassment of plaintiff.