United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motion In Limine
 filed by Defendant City of Hattiesburg. After
considering the submissions of the parties, the record, and
the applicable law, the Court finds that this motion should
be granted in part and denied in part.
Dana Coleman (“Plaintiff”) was employed by
Defendant City of Hattiesburg (the “City”) from
2012 until 2016, as the office manager for Municipal Court
Judge Jerry Evans (“Judge Evans”). Her position
required her to work directly with Faye Hicks
(“Hicks”), the municipal clerk. The deputy clerks
of the municipal court answered to both Hicks and Plaintiff.
Plaintiff and Judge Evans are white. Hicks and
of the deputy clerks are African American.
September 9, 2016, Plaintiff filed suit in this Court against
Defendants the City and former Mayor Johnny Dupree
“Defendants”), alleging that she had been the
victim of racial harassment and bringing claims under Title
VII, 42 U.S.C. §§ 1981 and 1983, and state law
claims of intentional and negligent infliction of emotional
distress. She later filed an Amended Complaint , alleging
that, because of this ongoing harassment, she was forced to
quit her job, and adding a claim of constructive discharge.
filed their Motion for Summary Judgment  on December 14,
2017. The Court ruled on this motion on January 24, 2018,
leaving only the following claims pending against the
City: the hostile work environment claim under
Title VII, the constructive discharge claim under Title VII,
the intentional infliction of emotional distress, and the
negligent infliction of emotional distress.
Statements made by Judge Evans
City argues that certain statements attributed to Judge Evans
should be excluded from evidence at trial as they are hearsay
and inadmissible under F.R.E. 802. It also argues that these
statements are irrelevant under F.R.E. 401 and unfairly
prejudicial under F.R.E. 403.
the City never specifies which statements they wish to have
excluded, the Court assumes it is the statements that
Plaintiff testified Judge Evans made to her when she
complained about the harassment she was facing. Plaintiff
testified that Judge Evans told her that the deputy clerks
would not respect her because she was white, that she could
not complain about extra duties because she was white, and
the harassment she was facing was because she was white.
(See Plaintiff Depo. [50-1] at 38:16-39:11,
55:15-20.) Plaintiff's claim under Title VII is that she
was harassed because of her race, which would make these
statements obviously relevant. The City's argument under
F.R.E. 401 is therefore meritless.
City also argues that these statements could mislead the jury
and are therefore unfairly prejudicial under F.R.E. 403. This
rule, however, requires that the statements probative value
be “substantially outweighed by a danger of . . .
unfair prejudice [or] . . . misleading the jury.”
Fed.R.Evid. 403. Though the City contends that the jury will
give unfair weight to these statements and that they are
“nothing more than a thinly veiled invasion of the
province of the jury, ” (Motion In Limine 
at p. 3.), there is absolutely nothing to support these
arguments, let alone show that these potential dangers
substantially outweigh the probative value of the statements.
The City's arguments under F.R.E. 403, then, are
the City's arguments against the admission of these
statements are centered on its contention that these
statements are hearsay. The Court has already noted that
these statements do present a potential hearsay issue in its
Order  on the City's summary judgment motion. In that
Order , the Court stated that these statements were
potentially admissible as statements made by an opposing
party and not hearsay under F.R.E. 801(d)(2) because Judge
Evans was an agent of the City, but ultimately refused to
definitively hold that these statements were admissible
because neither side presented a full argument as to the
hearsay issue. (See Order  at p. 4, n.3.) The
City makes no mention of this rule in its original motion or
its rebuttal. Instead, the City cites Terry v. Quitman
County School District, in which the Northern District
of Mississippi excluded hearsay statements after no argument
was made for their admissibility. No. 3:16-CV-13-DMB-RP, 2017
WL 2426873, at *2 (N.D. Miss. June 5, 2017). This is not the
case here as Plaintiff has made an argument for the
admissibility of these statements under F.R.E. 801(d)(2).
801(d)(2) excludes from the definition of hearsay those
statements which are “offered against an opposing
party” and were “made by the party's agent or
employee on a matter within the scope of that relationship
and while it existed.” Fed.R.Evid. 801(d)(2)(D). Judge
Evans, at the relevant time, was an employee of the City and
was the department head over the Hattiesburg Municipal Court.
As such, he was the supervisor of Plaintiff, Hicks, and all
the deputy clerks. The statements attributed to him were made
while he was performing his supervisory role. Even if the
City had attempted to argue that Judge Evans was not acting
within his scope of employment with the City, the Court does
not believe that any such argument would succeed. Therefore,
because F.R.E 801(d)(2) specifically excludes these types of
statements from the definition of hearsay, they are not
hearsay and will not be excluded from evidence at trial. The
Motion In Limine  will be
denied as to these statements.