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Welch v. All American Check Cashing, Inc.

United States District Court, S.D. Mississippi, Northern Division

July 2, 2015



TOM S. LEE, District Judge.

Plaintiff Jessica Lyn Welch brought the present action alleging she was terminated from her employment with All American Check Cashing Company, Inc. (All American) on account of her pregnancy, in violation of Title VII of the Civil Rights Act, 42 U.S.C. ยง 2000e, et seq., as amended by the Pregnancy Discrimination Act. The case was tried by a jury beginning May 11, 2015 and ending May 13, 2015, and resulted in a verdict for All American. A judgment in accordance with the jury's verdict was entered on May 13, 2015. This cause is now before the court on the motion of Welch for new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. All American has responded to the motion and the court, having considered the memoranda of authorities, together with the record in this cause, concludes the motion is not well taken and should be denied.

Federal Rule of Civil Procedure Rule 59(a) allows a court to grant a new trial following a trial by jury for "any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.P. 59(a). Although the rule does not specify what grounds are necessary to support such a decision, a new trial may be appropriate if the court finds "the verdict is against the weight of the evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was committed in its course." Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985). "Courts do not grant new trials unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done, and the burden of showing harmful error rests on the party seeking the new trial." Jones v. Ruiz, 478 Fed.App'x 834, 835-36 (5th Cir. 2012) (internal quotation marks and citation omitted). See also Morris v. Lee, No. 98-1656, 2001 WL 30199 at * 1 (E.D. La. Jan. 10, 2001) (stating that "Rule 59(a) should not be the avenue to which losing parties run after trial."). The decision on a motion for new trial "is generally within the sound discretion of the trial court." Foradori v. Harris, 523 F.3d 477, 503-04 (5th Cir. 2008) (quoting Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982)).

As grounds for her motion for new trial, Welch urges the court committed prejudicial error with respect to a number of matters. Most of her complaints concern the admission of evidence relating to one of her witnesses, Briana Johnson. Welch complains that over her objection and to her unfair prejudice, the court allowed into evidence the outcome of the recent trial of Johnson's own claim of pregnancy discrimination against All American, including the jury verdict form from that trial; she further objects that the court and defense counsel misstated the finding of the jury in the Johnson case; and she contends that the court's instruction to the jury regarding Briana Johnson's case was unfairly prejudicial. In a related vein, she also asserts that the court erred in allowing defendant to call previously undisclosed witnesses from Briana Johnson's trial, Amanda Hearn and Laura Faulkner, without providing her sufficient notice and time to prepare for their testimony. Lastly, she contends the court erred in allowing All American to argue in closing, over her objection, that the absence of Eric McCrossen, her former supervisor, from the trial was because his testimony would be adverse to her. She asserts that this argument by defendant was unfairly prejudicial to her and warrants granting a new trial. Applying the above standards to the grounds asserted for her motion, the court finds plaintiff's request for a new trial to be unfounded.

Evidence/Instruction Relating to Briana Johnson

Briana Johnson is a former employee of All American who was terminated while pregnant and who filed a lawsuit against All American charging pregnancy discrimination. See Briana Johnson v. All American Check Cashing, Inc., No. 3:13CV270WHB-RHW (S.D.Miss.). Johnson's case was recently tried by Judge William Barbour and on April 9, 2015, concluded with a jury verdict for All American. At the time of Welch's trial, final judgment had been entered on the jury verdict in Johnson and no post-trial motion had yet been filed. Prior to the commencement of testimony in this case, All American moved the court to exclude Johnson as a witness in this case, insisting that she had no relevant information to offer; at most, she could give anecdotal "me too" evidence that would not be probative of whether Welch was terminated due to pregnancy discrimination. See Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 305 (5th Cir. 2000) (finding that the district court abused its discretion by not excluding a "parade of anecdotal witnesses, each recounting his own, entirely unrelated contention of age discrimination at the hands of the defendant"). In response, Welch argued that the fact that a jury had found against Johnson on her own claim for pregnancy discrimination did not preclude Johnson from testifying in Welch's case both because Johnson's own case was "not over with yet" and because Johnson's proposed testimony was relevant to plaintiff's claim for discrimination, notwithstanding the outcome of Johnson's trial. In this regard, Welch represented that Johnson would be testifying to certain discriminatory statements allegedly made to her by Nathan Williams, who was both Johnson's and Welch's manager. Welch stated that Johnson was not going to testify that she was terminated because she was pregnant.

The court concluded that the fact that a jury had found against Johnson on her claim for pregnancy discrimination did not preclude her from giving relevant testimony on behalf of Welch - which the court understood would relate to alleged discriminatory comments by Williams - and thus denied All American's motion to exclude Johnson's testimony. In response to an inquiry by All American, the court stated that All American would be entitled on cross examination to develop facts pertinent to any prejudice Johnson might harbor against All American, which could include the fact that she had filed her own lawsuit against the company for pregnancy discrimination and the outcome of that lawsuit. Welch objected to All American's being allowed to present evidence of the jury's verdict in Johnson's case, contending that such evidence was inadmissible because the jury verdict in Johnson was not yet final. However, particularly since a final judgment had been rendered on the jury verdict, the court found that Welch's objection to admission of the verdict was not well founded. Specifically, the court ruled that evidence of the verdict would be admissible, to the extent of its relevance, regardless of whether Johnson anticipated filing a post-judgment motion and notwithstanding that the appeal time on the judgment in Johnson's case had not yet run.

As it developed, Johnson's testimony in the trial of this cause was not, in fact, limited to alleged discriminatory comments by Nathan Williams. Johnson testified in addition that she was fired while she was pregnant, just two weeks after Williams became her supervisor and less than a week after his alleged discriminatory comments; that Williams was the one who fired her; and that he gave her no reason for doing so. Following an objection by All American that Johnson's testimony was going beyond what had been represented and was getting into the whole Johnson lawsuit and putting All American in the position of having to put on evidence - including two impeachment witnesses - Welch acknowledged that Johnson's testimony had gone further than intended and stated she would proceed no further down that path. Upon resuming examination of Johnson, counsel for Welch asked Johnson who had replaced her following her termination. In response to an objection by All American, counsel for Welch stated he was "laying the foundation to who replaced the women that Mr. Williams fired in order to show a prima facie case...."

As direct examination was concluding, counsel for Welch asked Johnson whether she had filed a lawsuit against All American (since the court had already indicated that the fact and outcome of Johnson's lawsuit would be a proper subject of inquiry on cross-examination and he did not want this information to come as a surprise during questioning by All American). Johnson responded that she had filed a lawsuit. When asked about the current status of the case, Johnson stated, "It's still pending, " meaning "[i]t's not over."

As cross examination commenced, All American's counsel immediately questioned Johnson about the outcome of her case:

Q. Isn't it true that a jury found less than a month ago that you were not terminated because you were pregnant?

Welch's counsel objected that this was a misstatement of the jury's finding.

A. No, they did not find that I was discriminated. No, they didn't have the evidence. They didn't find the evidence in ours - in our side in favor. They ruled -
Q. But the jury did find that you failed to prove that you had been discriminated on the basis of your pregnancy?
A. They did not have clear evidence on our side. They found that y'all were liars and y'all lied on y'all's behalf and they ruled in y'all's favor.

Following an objection by All American to this statement, which the court sustained, All American offered in evidence a copy of the jury verdict form from Johnson's case as an impeachment exhibit and again asked Johnson about the verdict:

Q. It says: In returning your verdict, please answer the following question: Has Briana Johnson proved by a preponderance of the evidence that she was terminated because of her pregnancy. Answer: No. Do you see that?
A. I do.
Q. That is the determination that the jury made. Is that not correct?
A. Yes. We didn't have enough evidence that I could ...

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