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Patton v. Wilkie

United States District Court, W.D. Virginia, Roanoke Division

March 30, 2018

AMBER PATTON, Plaintiff,
v.
ROBERT WILKIE, Acting Secretary of Veterans Affairs, [1] Defendant.

          MEMORANDUM OPINION AND ORDER

          Elizabeth K. Dillon, United States District Judge.

         Plaintiff Amber Patton filed this action against the Secretary of Veterans Affairs (VA), alleging that the VA terminated her employment “solely by reason of her . . . disability, ” in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a). Both parties have moved in limine to exclude or limit certain evidence and testimony from the upcoming jury trial. The motions were argued before the court at a pretrial conference held on March 26, 2018.[2] For the reasons set forth below, the court denies in part and denies as moot in part the VA's motions, and denies in part, denies as moot in part, and takes under advisement in part Patton's motions. The court may, however, revisit any one of these rulings at trial, depending on the evidence elicited and the context in which the evidence is offered.

         I. THE SECRETARY'S MOTIONS IN LIMINE

         A. David Prewitt and Amanda Jones

         The Secretary moves to exclude testimony from David Prewitt and Amanda Jones. Prewitt and Jones are former probationary employees of the VA who have some form of disability. They were terminated by the director of the VA's Roanoke regional office around the same time as Patton and for similar reasons related to their use of leave. The Secretary argues that the testimony of Prewitt and Jones is irrelevant to the issue of whether the VA terminated Patton on the basis of her disabilities, and that the probative value of their testimony is substantially outweighed by its prejudicial impact or potential for misleading the jury. In particular, the Secretary contends that the other employees' testimony regarding their own terminations will essentially result in “two collateral trials within this trial.” Def.'s Br. 4, Dkt. No. 76.

         In response, Patton argues that the proposed testimony of Prewitt and Jones is relevant based on the similarities of the circumstances surrounding their terminations, the timing of their terminations, and the fact that the same individual made the decision to terminate all three employees. Patton also indicates that Prewitt and Jones will corroborate her own testimony regarding the lack of notice or communication regarding the need to maintain a certain balance of accrued leave or the possibility that using accrued leave could serve as a basis for termination. Patton agrees that she will not question the other employees regarding any injury, emotional distress, or turmoil they may have experienced as a result of their own terminations.

         In a recent unpublished opinion, the United States Court of Appeals for the Fourth Circuit reversed a district court's decision to exclude “other employee” evidence, finding that the district court “placed too much emphasis on its concern with ‘mini-trials.'” Calobrisi v. Booz Allen Hamilton, Inc., 660 F. App'x 207, 210 (4th Cir. 2016). The Fourth Circuit went on to explain that “the testimony of other employees about their treatment by the defendant is [generally] relevant to the issue of the employer's discriminatory intent.'” Id. (quoting Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990)). When determining the admissibility of such evidence, courts should consider “whether the other discriminatory behavior described ‘is close in time to the events at issue in the case, whether the same decisionmakers were involved, whether the witness and the plaintiff were treated in a similar manner, and whether the witness and the plaintiff were otherwise similarly situated.'” Id. (quoting Griffin v. Finkbeiner, 689 F.3d 584, 599 (6th Cir. 2012)).

         Applying these factors, the court concludes that the proposed testimony from Prewitt and Jones is relevant to Patton's claim of disability discrimination. Patton, Prewitt, and Jones were terminated during the same time period by the same individual under seemingly similar circumstances. While the VA's concerns regarding mini-trials within the trial are legitimate, the court is unable to conclude that the probative value of the other employees' testimony is substantially outweighed by a danger of confusing the issues, misleading the jury, or otherwise unfairly prejudicing the VA. Accordingly, at this stage of the proceedings, the court denies the VA's motion to exclude testimony from Prewitt and Jones. If it later becomes apparent that the other employees' testimony is irrelevant, confusing, or misleading, the issue can be revisited at that time.

         B. Subsequent Remedial Measures

         The VA moves to exclude any evidence of subsequent remedial measures to prove culpable conduct. In response, Patton indicates that she has no intention of introducing any evidence of subsequent remedial measures to prove culpable conduct and that such evidence will be offered, if at all, for the limited purposes permitted by Federal Rule of Evidence 407. See, e.g., Richardson v. Boddie-Noell Enters., Inc., 78 F. App'x 883, 888 (4th Cir. 2003) (“Rule 407 explicitly endorses the admission of evidence of subsequent remedial measures for impeachment purposes.”). Accordingly, the court denies as moot the VA's motion to exclude evidence of subsequent remedial measures to prove culpable conduct.

         C. Patton's Pregnancy

         The VA moves to exclude evidence or argument that the VA discriminated against Patton on the basis of her pregnancy. In response, Patton agrees that she will not argue or introduce evidence suggesting that her pregnancy constituted a disabling impairment or that the VA engaged in pregnancy discrimination. However, because the VA's own records refer to pregnancy-related appointments for which she requested leave, and since her pregnancy was a point of discussion by VA managers during the time period leading up to her termination, Patton contends that it would be impossible to avoid mentioning her pregnancy at trial.

         In light of counsel's agreement that Patton will not argue or introduce evidence suggesting that she was disabled as a result of her pregnancy or the victim of pregnancy discrimination, the court denies as moot the VA's motion to exclude such evidence or argument. On the other hand, the court tends to agree with Patton that her pregnancy will necessarily and inevitably come up at trial. To the extent the VA's motion seeks to preclude any and all mention of her pregnancy, the motion is denied with the understanding that the court will issue an appropriate limiting instruction.

         D. ...


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