United States District Court, S.D. Mississippi, Southern Division
RICHARD K. ROGERS PLAINTIFF
MEDLINE INDUSTRIES, INC., AND JOHN DOES 1-5 DEFENDANTS
GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION
 IN LIMINE TO EXCLUDE OPINION TESTIMONY FROM MPLOYEES AND
FORMER EMPLOYEES WHO DID NOT MANAGE PLAINTIFF RICHARD K.
ROGERS AT THE TIME OF HIS TERMINATION; GRANTING
DEFENDANT'S MOTION  IN LIMINE TO EXCLUDE EVIDENCE OF
UNRELATED ALLEGATIONS OF ALLEGED INTERACTION BETWEEN A
MANAGER AND FEMALE MEDLINE EMPLOYEE; GRANTING DEFENDANT'S
MOTION  IN LIMINE TO EXCLUDE REFERENCE SUGGESTING
PLAINTIFF FACES A “DAVID AND GOLIATH” SITUATION;
AND DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION  IN
LIMINE TO EXCLUDE BROAD ALLEGATIONS OF AGE DISCRIMINATION BY
MEDLINE AND EVIDENCE OF OTHER CLAIMS OR LITIGATION AGAINST
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE.
THE COURT are four Motions     in Limine
filed by Defendant Medline Industries, Inc. Upon review of
the record, and being fully advised in the premises, the
Court finds as follows: (1) Defendant Medline Industries,
Inc.'s Motion  in Limine to Exclude Opinion Testimony
from Employees and Former Employees Who Did Not Manage
Plaintiff Richard K. Rogers at the Time of his Termination
should be granted in part denied in part; (2) Medline
Industries, Inc.'s Motion  in Limine to Exclude
Evidence of Unrelated Allegations of Alleged Interaction
between a Manager and Female Medline Employee should be
granted; (3) Medline Industries, Inc.'s Motion  in
Limine to Exclude Reference Suggesting Plaintiff Faces a
“David and Goliath” Situation should be granted;
and (4) Medline Industries, Inc.'s Motion  in Limine
to Exclude Broad Allegations of Age Discrimination by Medline
and Evidence of Other Claims or Litigation against Medline
should be denied without prejudice, with leave to reassert
objections to specific questions at trial.
an employment discrimination case arising out of Plaintiff
Richard K. Rogers' (“Rogers” or
“Plaintiff”) employment with Defendant Medline
Industries, Inc. (“Medline” or
“Defendant”). Medline employed Rogers as a
salesperson from 2002 until he was terminated in 2016. Compl.
 at 2. On or about January 28, 2017, Plaintiff filed a
Charge of Discrimination [1-1] with the Equal Employment
Opportunity Commission (“EEOC”) alleging that
Medline discriminated against him on the basis of his age
when it terminated him. On January 30, 2018, the EEOC
provided Rogers with a Notice of Right to Sue [1-2], and
Rogers timely filed suit against Medline Industries, Inc. and
John Does 1-10. Compl.  at 1. Rogers brought the present
action alleging that Medline unlawfully terminated him
because of his age in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 623.
Id. at 4.
filed five Motions      in Limine in
advance of trial: (1) a Motion  in Limine to Exclude
Opinion Testimony from Employees and Former Employees Who Did
Not Manage Rogers at the Time of his Termination; (2) a
Motion  in Limine to Exclude Evidence of Unrelated
Allegations of Alleged Interaction between a Manager and
Female Medline Employee; (3) a Motion  in Limine to
Exclude Reference Suggesting Plaintiff Faces a “David
and Goliath” Situation; (4) a Motion  in Limine to
Exclude Broad Allegations of Age Discrimination by Medline
and Evidence of Other Claims or Litigation against Medline;
and (5) a Motion  in Limine to Exclude Insurance. Rogers
responded to each Motion. Pl.'s Resps.   
Court previously granted as unopposed Medline's Motion
 in Limine to Exclude Insurance, and prohibited Rogers
from testifying about, or introducing any facts and/or other
evidence of, or making any reference to, insurance coverage
of Medline. Text Only Order, Jan. 23, 2019. The Court will
address the remaining four Motions     in
Medline's Motion  in Limine to Exclude Opinion
Testimony from Employees and Former Employees Who Did Not
Manage Rogers at the Time of his Termination should be
granted in part and denied in part.
seeks to exclude: (1) opinion testimony regarding Rogers'
past performance; and (2) any testimony that speculates why
Medline terminated Rogers. First, Medline asserts that the
Court should prohibit Rogers from offering his own opinion
testimony, or that of current or former Medline employees who
did not supervise him at the time of his termination,
regarding his job performance. Def.'s Mot. . Medline
argues that this testimony is inadmissible because it is
irrelevant. Rogers responds that his own testimony and the
testimony of his former supervisors from Medline is relevant
because it establishes that he was qualified for the position
and that Medline's reasons for his termination were
pretextual. Pl.'s Resp. ; Pl.'s Resp. Mem.
support of its Motion , Medline cites a Northern District
of Mississippi case in which the opinion testimony of a
plaintiff's co-workers was excluded.Def.'s Mem. in
Support . In Harkness v. Bauhaus U.S.A., Inc.,
the defendant claimed that it terminated plaintiff for
“a series of write-ups related to specific incidents
and for [his] response to those write-ups.” 2015 WL
631512, at *5 (N.D. Miss. Feb. 13, 2015). The court reasoned
that because the co-workers' opinions regarding his
“performance and attitude [had] no bearing on whether
[the plaintiff] committed the specific infractions
underlying” the defendant's legitimate,
nondiscriminatory reason for the plaintiff's termination,
their exclusion was appropriate under the circumstances of
the case. Id.
unlike the employer's legitimate, nondiscriminatory
reason for the plaintiff's termination in
Harkness, Medline claims that it terminated Rogers
because of a failure to meet the benchmarks in a corrective
action plan implemented by Rogers' supervisors after he
consistently did not meet sales goals and Medline received
customer complaints. Def.'s Mem. in Support of Summ. J.
 at 17-18; see id.; Briggs Dep. [55-5];
Gallarelli Dep. [55-4]. Medline has previously cited evidence
of Rogers' negative work performance while he was managed
by his former supervisors, Trey Smith and Mark Taylor.
See Def.'s Mem. in Support of Summ. J. 
(citing Gallarelli's and Briggs' review of
Rogers' performance and sales numbers the year prior to
Gallarelli's and Briggs' management of Rogers). In
short, Medline has placed Rogers' performance over a
period of time at issue in this case.
states that he now wishes to introduce evidence of his past
performance to prove that he was qualified for the position
and that Medline's reasons for termination are false and
therefore pretextual. Pl.'s Resp. Mem.  at 1-3.
Because evidence of positive performance is relevant for
these purposes, and because the Court cannot say that its
probative value is outweighed by any substantial danger of
undue prejudice, the Court will deny this portion of
Medline's Motion . See Fed. R. Evid. 401-03;
Normand v. Research Inst. Of Am., Inc., 927 F.2d
857, 859-60, 864-65 (5th Cir. 1991) (considering evidence of
service prior to employee's constructive discharge for
poor sales performance and reversing the district court's
judgment notwithstanding the verdict and reinstating the
Medline argues that speculation from Smith and Taylor, or any
other former or current Medline employee, as to why Medline
terminated Rogers constitutes inadmissible hearsay.
Def.'s Mem. in Support  at 3; Fed.R.Evid. 401-02,
801-02. Rogers does not address this portion of Medline's
Motion  and does not indicate whether he intends to offer
any such testimony. See Pl.'s Resp. Mem. .
The Court agrees that this kind of testimony from current or
former Medline employees who were not involved in Rogers'
termination would amount to speculation and is therefore not
relevant and would not be helpful to the jury. See
Fed.R.Evid. 401-02, 801-02. To the extent Rogers seeks to
introduce testimony from ...