United States District Court, S.D. Mississippi, Northern Division
DR. TAREK EL-BAWAB PLAINTIFF
JACKSON STATE UNIVERSITY DEFENDANT TAREK EL-BAWAB PLAINTIFF V. CAROLYN W. MEYERS, ET AL. DEFENDANTS
P. JORDAN CHIEF UNITED STATES DISTRICT JUDGE
Tarek El-Bawab filed this employment-discrimination suit
against Jackson State University (“JSU”) and
others alleging that he was harassed, retaliated against, and
wrongfully denied promotion based on his national origin. The
case is before the Court on the parties' motions in
limine [125, 127, 128, and 130].
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 quotation omitted).
is an Egyptian with a white complexion who works as an
associate professor in JSU's Department of Electrical and
Computer Engineering. Although he has applied for promotion
to full professor several times, he has never prevailed and
believes that his national origin is to blame. As more fully
explained in the Court's January 24, 2018 Order ,
the case will proceed to trial on El-Bawab's Title VII
retaliation, hostile-work-environment, and national-origin
February 2018, the parties filed four motions in
limine [125, 127, 128, and 130]. Those motions were then
discussed during the March 1, 2018 pre-trial conference, but
the entire case was put on hold when the parties requested
more time to pursue a possible resolution. Since then,
protracted negotiations failed and the parties are now
disputing whether El-Bawab can again amend his complaints in
these consolidated cases to bring new claims that surfaced
after the pre-trial conference. Although this Order addresses
all evidentiary motions, some are dismissed without prejudice
Defendants' Motion in Limine to Exclude Certain
motion addresses several matters, but only one—dealing
with a prior suit— seems ready for consideration.
During the pre-trial conference, the Court noted that several
matters related to this motion were not ready for decision.
For instance, some issues addressed facts that were still
evolving, like the status of other EEOC Charges of
Discrimination. Others required more specificity from one
side or the other, like identifying the alleged comparators.
Finally, the Court instructed the parties that additional
legal briefing was required. Given the amount of time that
passed during settlement negotiations, it is not clear
whether the factual bases for these issues has changed, and
no date was ever set for supplemental briefing. Rather than
invite that supplemental briefing now, it seems easier to
simply address the one issue that is ripe and deny the others
without prejudice to refiling once the case is back on track
and set for trial.
the ripe issue, El-Bawab first sued JSU on August 29, 2011,
alleging discrimination when he was passed over for
promotion. See Compl., El-Bawab v. Jackson State
Univ., 3:11-CV-553 (S.D.Miss. Aug. 29, 2011)
(El-Bawab I). The parties settled on January 13,
2014, and JSU now asks the Court to exclude all evidence of
the first suit and its settlement. See Jan. 13, 2014
Minute Entry, El-Bawab I.
Rule of Evidence 408 states that evidence of a settlement or
settlement negotiations is inadmissible “to prove or
disprove the validity or amount of a disputed claim or to
impeach by a prior inconsistent statement or a
contradiction.” El-Bawab has not shown that the
settlement is otherwise admissible, so it will be excluded.
As for the suit, the actual filing might be probative because
El-Bawab asserts a Title VII retaliation claim. But to date,
El-Bawab has not argued that the suit constitutes protected
activity. Absent that argument, it would seem that any
evidence regarding the first suit would be substantially more
prejudicial, confusing, and time consuming than probative.
See Fed. R. Civ. P. 403; Hilderbrand v. Levi
Strauss & Co., No. 3:09-CV-243-DPJ-FKB, 2011 WL
2946717, at *1 (S.D.Miss. July 21, 2011) (granting motion to
exclude evidence related to prior lawsuit because it
“would unfairly prejudice [defendant], confuse the
jury, and potentially require a mini-trial on matters
contested in the first dispute”). Finally, any attempt
by El-Bawab to re-litigate that prior suit would breach the
terms of his settlement agreement.
this portion of the motion is granted. If El-Bawab elects to
use the prior suit as proof of protected activity, he must
first raise the issue outside the jury's presence. The
Court will then consider whether the mere fact that ...