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Storr v. Alcorn State University

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

August 11, 2017




         This employment-discrimination case is before the Court on cross motions in limine [45, 46] filed by Plaintiff Michael D. Storr and Defendant Alcorn State University. Having fully considered the motions, the Court rules as follows:

         I. Background

         Storr is the former Chief of Campus Police for Alcorn State University (“ASU”). Eleven days after Storr returned from medical leave, ASU held its homecoming football game, and a traffic jam occurred. Three days later, ASU fired Storr purportedly for the jam, and he then filed charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging disability-based discrimination and retaliation. Once granted his right to sue, Storr sued ASU under the Americans with Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”). The case is set for trial August 28, 2017.

         II. Standard

         As summarized by the Fifth Circuit Court of Appeals:

A motion in limine is a motion made prior to trial for the purpose of prohibiting opposing counsel from mentioning the existence of, alluding to, or offering evidence on matters so highly prejudicial to the moving party that a timely motion to strike or an instruction by the court to the jury to disregard the offending matter cannot overcome its prejudicial influence on the jurors' minds.

O'Rear v. Fruehauf Corp., 554 F.2d 1304, 1306 n.1 (5th Cir. 1977) (citation and internal quotation marks omitted).

         III. Motions

         A. Storr's Motion in Limine [45]

         Storr seeks to exclude evidence related to two issues: (1) statements made in EEOC documents; and (2) whether Storr failed to mitigate his damages. For the reasons that follow, the first request is granted in part, and the second is granted.

         1. EEOC Documents

         The parties dispute the admissibility of two EEOC documents-the Notice of Right to Sue and the investigator's Summary of Interview prepared after a telephonic interview with Storr. ASU lists both as exhibits in the proposed pretrial order; Storr seeks to exclude them.

         The admissibility of EEOC-related documents has been frequently litigated, but perhaps not in this exact context. Starting with Smith v. Universal Services, Inc., the Fifth Circuit reversed a trial court's decision to exclude “the EEOC report, consisting of a summary of the charges, a brief review of the facts developed in its investigation, and its findings of probable cause that violations exist.” 454 F.2d 154, 157 (5th Cir. 1972). The court reasoned:

[T]o ignore the manpower and resources expended on the EEOC investigation and the expertise acquired by its field investigators in the area of discriminatory employment practices would be wasteful and unnecessary.
The fact that an investigator, trained and experienced in the area of discriminatory practices and the various methods by which they can be secreted, has found that it is likely that such an unlawful practice has occurred, is highly probative of the ultimate issue involved in such cases. Its probative value, we believe, at least outweighs any possible prejudice to defendant.


         There are, however, limits to the Smith holding. First, in McClure v. Mexia Independent School District, the Fifth Circuit noted that EEOC “determinations and findings of fact . . . are admissible as evidence in civil proceedings as probative of a claim of employment discrimination.” 750 F.2d 396, 399 (5th Cir. 1985). But the court went on to hold that Smith does not mean “the entire EEOC file [is] admissible, ” id. at 400, and that admitting the file in that case was “erroneous, ” id. at 402.

         Second, not all EEOC determinations fall within the Smith presumption. In Cortes v. Maxus Exploration Co., the EEOC issued a “determination of no probable cause regarding Cortes' charge of sex discrimination.” 977 F.2d 195, 201 (5th Cir. 1992). Despite Smith and McClure, the trial court concluded that the EEOC's findings were too conclusory and tentative to overcome Federal Rule of Evidence 403. Id. at 201-02. The Fifth Circuit agreed, noting that its prior precedent should not “be read as leaving district courts without discretion under Rule 403 to exclude such reports if their probative value is substantially outweighed by prejudicial effect or other considerations enumerated in the rule.” Id. at 202; see also E.E.O.C. v. Manville Sales Corp., 27 F.3d 1089, 1095 (5th Cir. 1994) (quoting Cortes, 977 F.2d at 201-02). Those other enumerated considerations include “confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403.

         With this general background, the Court turns to Storr's more specific objections, starting with the Notice of Right to Sue. In that document, the EEOC stated that it was closing its file and checked the box associated with the following reason:

Based upon its investigation, the EEOC is unable to conclude that the 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.

         EEOC Notice [36-13] at 1. ASU cited this document in its summary-judgment memorandum as proof that the “EEOC was unable to find any violation of the ADA.” Def.'s Mem. [36] at 3-4. Fearing ...

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