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Howe v. City of Akron

December 3, 2008

WILLIAM HOWE, ET AL., PLAINTIFFS,
v.
THE CITY OF AKRON, DEFENDANT.



The opinion of the court was delivered by: Judge John R. Adams

[RESOLVING DOCS. 140, 141, 142, 143, and 144]

ORDER

I.

This action is before the Court upon defendant's Motion in Limine to Preclude Summaries of Documents Provided by Plaintiffs Carr and Snyder (Doc. 140). The Court has considered the memorandum in support and memorandum in opposition (Doc. 159). The Court has also considered the oral arguments of counsel offered at the Charging Conference held on December 1, 2008. Defendant moves the Court for an order that precludes the admission of any "summaries"/analyses performed by plaintiffs Bradley Carr*fn1 and Gregory Snyder*fn2 regarding the 2004 Lieutenant and Captain examinations as well as any testimony pertaining to these "summaries"/analyses.

The motion is GRANTED IN PART. Generally, the testimony of plaintiffs Carr and Snyder regarding the summaries under Fed. R. Evid. 1006 will be permitted. However, they will not be permitted to comment or give any analysis on the promotional examinations. Plaintiffs Carr and Snyder will be strictly forbidden from testifying about any analysis performed by them, i.e., anything that the Court would deem at a later date to be in that vein. They are not experts, and their testimony will be extremely limited. Specifically, their testimony will be limited to the data they have relied upon in making their data extrapolations.

The Court will defer ruling on whether any testimony regarding alleged scoring errors in the assessment center, fictitious ratings on the oral feedback forms, economic calculations relating to Lieutenant and Captain promotions, and conclusions pertaining to the Rules and Regulations should be precluded until the issue(s) is presented, if at all, during trial. The Court notes, however, that plaintiffs' memorandum in opposition (Doc. 159) is silent as to these matters.

In addition, plaintiff Carr's lieutenant summaries and the updated captain summaries of the data will be excluded and not considered by the jury because of their untimely production, which occurred after the Final Pretrial held on November 18, 2008.

II.

This action is also before the Court upon defendant's Motion in Limine Regarding Age Related Comments (Doc. 141) pursuant to Rules 401, 402, and 403 of the Federal Rules of Evidence. The Court has considered the memorandum in support and memorandum in opposition (Doc. 161). The Court has also considered the oral arguments of counsel offered at the Charging Conference. Defendant moves the Court for an order that precludes the plaintiffs, their counsel, and any witnesses from referring to, commenting upon, or offering testimony, evidence, or argument concerning allegations of age related comments that are irrelevant, hearsay, isolated, time barred, or made by non-decisionmakers.

Defendant argues that comments allegedly made by then Fire Chief Gladman, then Deputy Chief Bunner (now present Chief), Deputy Chief Ross, co-workers, and unnamed assessors, assuming they were made, are isolated, ambiguous remarks, unrelated to the challenged employment action, and made by persons with no decision-making authority regarding plaintiffs' promotions. Thus, the alleged comments are irrelevant, highly prejudicial, and likely to confuse and mislead the jury. Accordingly, they should be excluded from the evidence.

The motion is GRANTED IN PART.

A plaintiff who brings an age-discrimination claim based on a disparate-treatment theory "must prove that age was a determining factor in the adverse action that the employer took against him or her." Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1023 (6th Cir. 1993). Such a claim may be proved using either direct or circumstantial evidence. Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en banc). "Direct evidence of discrimination is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." Id. (internal quotation marks omitted).

The Court of Appeals for the Sixth Circuit has set forth a test for determining the admissibility of statements allegedly showing employer bias: (1) whether the comments were made by a decisionmaker or by an agent within the scope of his employment; (2) whether they were related to the decisionmaking process; (3) whether they were more than merely vague, ambiguous, or isolated remarks; and (4) whether they were proximate in time to the discriminatory employment action. Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330 (6th Cir. 1994).

The age related statements or comments at issue in the within motion have been put forth by a number of the plaintiffs as direct evidence of age discrimination. Some of them are not proximate in time to the alleged discriminatory employment action. Others ...


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