Patterson v. City of Charlotte

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:18-cv-00612-RJC-DSC
SYLIVIA SMITH-PHIFER and LANCE
PATTERSON,
Plaintiffs,
v.
CITY OF CHARLOTTE,
Defendant.
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Order
THIS MATTER comes before the Court on the Parties’ motions in limine. (Doc. Nos. 263
& 267). In the interest of providing the parties with the Court’s rulings ahead of trial, the Court
below lists the Parties’ relevant filings by docket number, a summary of the request, and the
Court’s ruling. Additionally, the Court reserves ruling until they arise at trial on Defendant’s
numerous objections made in chart-form to Plaintiff’s exhibits and its general objections to various
categories of documents or other evidence, unless otherwise ruled on herein. (Doc. Nos. 281, 281-
1).
I. OVERLAPPING REQUESTS
Doc. No. Request Ruling
264; 268
Plaintiffs’ Request: The Court should rule that
Plaintiffs’ expert Dr. Kurt Geisinger is qualified to
provide expert opinion testimony regarding his
statistical analysis of the promotional process
utilized by Defendant in the 2015-2018 battalion
chief promotional processes.
Defendant’s Request: The Court should exclude
testimony from Plaintiffs’ expert witness Kurt
Geisinger to the extent it is not based on sufficient
facts or data, his report is not the product of reliable
principles and methods, he failed to reliably apply
Plaintiffs’ request is GRANTED
subject to voir dire qualification at trial.
Defendant’s request is DENIED
WITHOUT PREJUDICE.
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Doc. No. Request Ruling
the principles to the facts of this case, or it otherwise
does not satisfy Fed. R. Evid. 702.
264; 268;
281
Plaintiffs’ Request: The Court should take judicial
notice of demographic information for the City of
Charlotte based on census data from the United
States Census Bureau.
Defendant’s Request: The Court should exclude
demographic and diversity data including U.S.
Census Bureau data regarding race in Charlotte from
2010 and 2020.
Plaintiff’s request is GRANTED IN
PART. Defendant’s request is
DENIED WITHOUT PREJUDICE.
The Court will take judicial notice of
relevant United States Census Bureau
information presented by Plaintiffs at
trial. Carter v. Ball, 33 F.3d 450 (4th
Cir.1994); Luh v. J.M. Huber Corp., 211
Fed. App’x 143 (4th Cir. 2006); see also
United States v. Cecil, 836 F.2d 1431,
1452 (4th Cir. 1988); Hollinger v. Home
State Mut. Ins. Co., 654 F.3d 564, 571-
72 (5th Cir. 2011).
264; 268;
281
Plaintiffs’ Request: The Court should allow
Plaintiffs to introduce deposition testimony of Ron
Carlee and Sheila Simpson from Eschert v. City of
Charlotte.
Defendant’s Request: The Court should exclude
deposition testimony, trial transcripts from Eschert
v. City of Charlotte.
Subject to any Court rulings on specific
objections, Plaintiffs’ request is
GRANTED. Defendant’s request is
DENIED.
Fed. R. Civ. P. 32(a)(8) and advisory
notes; Fed. R. Evid. 801(d)(2)(D); see
also Kinslow v. 5 Star Field Srvcs.
Group, LLC, No. 1:19-cv-1605-MLB,
2021 WL 3493564, at *3 (N.D. Ga.
Aug. 9, 2021)’ Pinkney v. Winn-Dixie
Stores, Inc., No. CV214–075, 2014 WL
7272551, at *2 (S.D. Ga. Dec. 17,
2014); In re 3M Combat Arms Earplug
Prod. Liability Litigation, 338 F.R.D.
167, 170 (N.D. Fla. 2021); Brown v.
Vivint Solar, Inc., --- F.Supp.3d ----,
2020 WL 2513518, at *2-3 (M.D. Fla.
2020).
268; 271-
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Plaintiffs’ Request: The Court should allow
Plaintiffs to introduce deposition testimony of
Mayor Lyles and City Manager Jones.
Defendant’s Request: The Court should exclude
deposition testimony of Marcus Jones and Vi Lyles.
Plaintiffs’ request is DENIED.
Defendant’s request is GRANTED.
Fed. R. Civ. P. 32(a)(3), (4); Fed. R.
Civ. P. 30(b)(6).
268; 271-
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Plaintiffs’ Request: The Court should allow
Plaintiffs to introduce deposition testimony of Ron
Carlee and Brian Schweitzer.
Subject to any Court rulings on specific
objections Plaintiffs’ request is
GRANTED. Defendant’s request is
DENIED. Fed. R. Civ. P. 32(a)(4)(B).
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Doc. No. Request Ruling
Defendant’s Request: The Court should exclude
deposition testimony of Ron Carlee & Brian
Schweitzer.
268; 271-
12; 281
Plaintiffs’ Request: The Court should allow
Plaintiffs to introduce deposition testimony of David
Morris.
Defendant’s Request: The Court should exclude
deposition testimony of Dr. Morris.
The Court reviewed David Morris’s
deposition testimony and concludes
based on the depositions that
Defendant’s request is GRANTED.
Plaintiffs’ request is DENIED.
264; 268;
281
Plaintiffs’ Request: The Court should allow Plaintiff
to introduce evidence dated before 2015, including
specifically from Plaintiffs’ exhibit list exhibits 14,
24, 43, 44, 10, 23, and 49, as background information
supporting Plaintiffs’ claims or as evidence showing
a pattern and practice of discrimination.
Defendant’s Request: The Court should exclude
evidence of events prior to 2015, specifically
documents related to the 2006-2014 promotional
processes and seven comparator witnesses related to
the promotional processes between 2009 and 2014.
Defendant’s request is GRANTED
subject to reconsideration at trial if the
Plaintiffs persuade the Court that the
probative value is substantially
outweighed by a danger of unfair
prejudice, confusing the issues,
misleading the jury, undue delay,
wasting time, or needlessly presenting
cumulative evidence. Plaintiff’s request
is DENIED WITHOUT
PREJUDICE. Fed. R. Evid. 403.
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II. DEFENDANT’S REQUESTS
Doc. No. Request Ruling
264
The Court should not allow Plaintiff to introduce,
admit into evidence, or otherwise refer to
duplicative, repetitive, and/or cumulative evidence
at trial.
Neither granted nor denied. Defendant
fails to identify any specific witness or
exhibit that is duplicative, repetitive,
and/or cumulative. However, the Court
will not waste the jury’s time with
duplicative, repetitive, and/or cumulative
evidence. The Court will consider at trial
any objections or requests to exclude
specific testimony and exhibits.
264; 271-
12; 281
The Court should exclude Plaintiffs’ use of
deposition transcripts from Clumpner v. City of
Charlotte.
GRANTED. Plaintiffs did not file
deposition transcript excerpts from
Clumpner v. City of Charlotte as such the
Court does not anticipate Plaintiffs
introducing depositions from Clumpner
v. City of Charlotte. The Court will
consider at trial any objections or
requests related to such deposition
transcripts if Plaintiffs attempt to
introduce such transcripts.
264
The Court should exclude the Motion for Summary
Judgment filed in the Clumpner v. City of Charlotte
case and the Complaint and the City’s Answer from
Summers v. City of Charlotte.
GRANTED.
264
The Court should not permit Plaintiff’s counsel to
make comments in front of the jury regarding her
opinion that the City did not provide certain
documents that were not questions to witnesses, but
rather personal opinions and impressions.
Neither granted nor denied. Of course,
personal opinions of lawyers are not
permitted. The Court will not tolerate
counsel for either party making
inappropriate and/or potentially
prejudicial comments, opinions, and/or
impressions in front of the jury.
264; 281
The Court should exclude evidence regarding Title
VII claims for which Plaintiffs failed to exhaust
administrative remedies.
DENIED. The Court rejects
Defendant’s failure to exhaust argument
related to the following Title VII claims:
(1) Smith-Phifer’s claims based on the
2015, 2018, and 2019 promotional
processes; and (2) Patterson’s claims
based on the 2018 promotional process.
Fort Bend County v. Davis, 139 S. Ct.
1843, 1849 (2019); Walton v. Harker, 33
F.4th 165, 175 (4th Cir. 2022); Fed. R.
Civ. P. 8(c)(1); Jones v. Bock, 549 U.S.
199, 212 (2007).
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Doc. No. Request Ruling
264 The Court should exclude any hearsay testimony,
documents or other records.
Neither granted nor denied. Of course,
hearsay is not admissible unless an
exception applies. The Court will apply
the Federal Rules of Evidence.
264
The Court should exclude any testimony from
Plaintiff’s expert witness Kurt Geisinger as it relates
to Plaintiffs’ claims before 2015 and after 2018.
GRANTED.
264 The Court should exclude testimony from Plaintiff’s
expert witness Dr. Moira Artigues.
DENIED WITHOUT PREJUDICE.
Defendant fails to provide with any
specificity the reasons that the Court
should exclude Dr. Moira Artigues
testimony. The Court will apply Federal
Rule of Evidence 702 to any expert
testimony.
264
The Court should exclude testimony from Plaintiffs’
expert witnesses until a sufficient foundation for
their expertise has been established and a sufficient
factual foundation for the expert witnesses’ opinions
has been established.
Neither granted nor denied. The Court
will apply Federal Rule of Evidence 702
to any expert testimony.
264; 281
The Court should exclude evidence of other cases of
discrimination and retaliation levied against the
Charlotte Fire Department, including but not limited
to, any evidence related to claims made by Larkin
Anderson, Lee Belton, Michael Clumpner, Kent
Davis, Crystal Eschert, Larry Mackey, Shane Nantz,
Marty Puckett, Tim Rogers, Greg Sharpe, or Willie
Summers.
Defendant’s request is GRANTED
subject to reconsideration at trial if the
Plaintiffs persuade the Court that the
probative value is substantially
outweighed by a danger of unfair
prejudice, confusing the issues,
misleading the jury, undue delay,
wasting time, or needlessly presenting
cumulative evidence. Plaintiff’s request
is DENIED WITHOUT PREJUDICE.
Fed. R. Evid. 403.
Subject to the Court’s ruling on any other
objections made, this decision does not
limit Plaintiffs from calling these
witnesses for other reasons.
264; 281
The Court should exclude 14 potential witnesses that
were not previously disclosed by Plaintiffs in either
their Rule 26 Initial Disclosures or supplements
Rule 26 disclosures. Those witnesses are: Pam
Barkley, Kevin Coppage, Vicki Foster, Austin
Nantz, Lee Belton, Nick Delacanal, Victoria
Johnson, Glenn Jones, Tommy McClain, Gary
McCormick, Jerry Newfarmer, Harry Peyton,
Mechelle Price, and Greg Sharpe.
DENIED as to Nick Delacanal for the
limited purpose of authenticating an
exhibit. Fed. R. Civ. P. 37(c)(1);
Southern States Rack & Fixture, Inc. v.
Sherwin-Williams Co., 3118 F.3d 592,
597 (4th Cir. 2003).
DENIED as to Kevin Coppage, Vicki
Foster, Austin Nantz, Greg Sharpe,
Victoria Johnson. Fed. R. Civ. P.
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Doc. No. Request Ruling
37(c)(1); Southern States Rack &
Fixture, Inc. v. Sherwin-Williams Co.,
3118 F.3d 592, 597 (4th Cir. 2003).
GRANTED as to Lee Belton, Glenn
Jones, Tommy McClain, Gary
McCormick, Harry Peyton, Mechelle
Price, Pam Barkley, and Jerry
Newfarmer to the extent Plaintiffs seek to
call these witnesses during their case-in-
chief. Fed. R. Civ. P. 37(c)(1); Southern
States Rack & Fixture, Inc. v. Sherwin-
Williams Co., 3118 F.3d 592, 597 (4th
Cir. 2003).
264; 281 The Court should exclude testimony from two
former City of Charlotte attorneys.
RESERVE RULING. The Plaintiffs
shall not call these witnesses until further
argument before the Court and the
Court’s ruling. The Court notes that the
proponent of the attorney-client privilege
bears the burden to demonstrate its
applicability. See Hawkins v. Stables,
148 F.3d 379, 382-83 (4th Cir. 1998).
264; 281 The Court should exclude all newspaper articles and
news stories.
RESERVE RULING. Plaintiffs assert
that they intend to admit a single exhibit
that is a recording or interview the Fire
Chief. The Court is willing to complete
an in camera review of the interview if
Plaintiffs submit it for the Court’s
review. Plaintiffs are not permitted to
introduce the interview without further
review and ruling from the Court due to
potential prejudice, confusing the issues,
and misleading the jury pursuant to Fed.
R. Evid. 403.
264
The Court should not permit Plaintiff to broadly and
generally state in front of the jury that documents are
missing, lost, or have been destroyed, but should
only be allowed to discuss documents or information
actually missing that are relevant to Plaintiff’s
claims.
GRANTED. The Court will issue an
adverse inference instruction on the
relevant lost or destroyed responsive
documents. The Court will consider any
objections to exclude comments made by
Plaintiffs and their counsel as they arise.
However, the Court will not tolerate
counsel for either party making
inappropriate and/or potentially
prejudicial comments, opinions, and/or
impressions in front of the jury.
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Doc. No. Request Ruling
264; 281 The Court should exclude evidence of front pay and
back pay before the jury. GRANTED.
264; 281
The Court should exclude the Court’s discovery
orders, Memorandum & Recommendation, and the
Order Adopting the Memorandum &
Recommendation. Additionally, the Court should
not allow Plaintiff to reference, allude to, address
during voir dire, or introduce or elicit testimony or
evidence of any objections stated in any of the City’s
written responses to discovery.
GRANTED IN PART AND DENIED
IN PART, as to the Court’s Orders
pursuant to Fed. R. Evid. 401 & 403. The
Court will consider any objections made
during trial as to the City’s discovery
responses if they arise.
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III. PLAINTIFFS’ REQUESTS
Doc. No. Request Ruling
268 The Court should exclude Aaron Phifer’s
Complaint, his claims, and his deposition testimony. GRANTED.
268
The Court should allow Plaintiff to introduce
deposition testimony of Former Fire Chief Jon
Hannan.
DENIED WITHOUT PREJUDICE.
The Court will allow the use of Chief
Hannan’s deposition testimony if Chief
Hannan does not appear and comply with
the trial subpoena.
268
The Court should exclude evidence of the reasons
Defendant did not promote Plaintiffs or the reasons
why it selected other candidates for promotions.
DENIED WITHOUT PREJDUICE.
The Court will consider at trial any
objections or requests to exclude specific
testimony and exhibits.
268
The Court exclude Defendant from arguing that it
investigated Plaintiff Smith-Phifer’s July 1, 2016
discrimination complaint, March 2, 2017 grievance,
and June 30, 2018 complaint; and Plaintiff
Patterson’s May 12, 2016 grievance and June 1,
2018 grievance.
DENIED WITHOUT PREJDUICE.
The Court will consider at trial any
objections or requests to exclude specific
testimony and exhibits.
SO ORDERED.
Signed: November 3, 2022
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