United States District Court, N.D. Ohio, Eastern Division
DONALD T. TSCHAPPATT, Plaintiff,
CRESCENT M PRODUCTS, INC., Defendant.
OPINION AND ORDER
CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's Motion in
Limine (ECF DKT # 16). For the following reasons, the Court
denies Defendant's Motion.
case arises out of the termination of Plaintiff Donald T.
Tschappatt's (“Plaintiff”) employment at
Defendant Crescent M Products, Inc. (“Defendant”
or the “Company”). Defendants seek an order
in limine precluding Plaintiff from seeking
reinstatement and backpay.
January 14, 2015, Defendant terminated Plaintiff's
employment with the Company. Compl. ¶ 11. Plaintiff
alleges that Defendant was motivated by Plaintiff's age
in terminating Plaintiff. Compl. ¶ 11. After
Plaintiff's termination, Plaintiff placed several
voicemail messages with and sent text messages to the
company's owners and senior management which used profane
language and insulted Plaintiff's former supervisor, the
owner, the plant manager and the human resources manager.
alleges Age Discrimination in violation of the Age
Discrimination in Employment Act (the “ADEA”),
Title VII of the Civil Rights Act of 1964 and Ohio Revised
Code Chapter 4112. Plaintiff seeks damages including
reinstatement and backpay. Defendant seeks an order in
limine precluding Plaintiff from seeking those forms of
argues that the acquired evidence rule applies to this case.
Since Plaintiff engaged in conduct that would have resulted
in Plaintiff's termination if the employer had discovered
that conduct prior to termination, Defendant argues that
Plaintiff's damages are limited and Plaintiff should be
precluded from seeking reinstatement and backpay.
contends that the acquired evidence rule applies to
post-termination conduct as well as pre-termination conduct.
Defendant argues that the Supreme Court used broad language
in the holding of McKennon v. Nashville Banner Publ.
Co., which indicates the Court's intention to
broadly apply the acquired evidence rule. Defendant also
points to several cases outside of this Circuit which hold
that the acquired evidence rule applies to post-termination
argues that the acquired evidence rule does not apply to
post-termination conduct and that the limiting language used
in the McKennon holding supports this view.
Furthermore, the cases cited by Defendant are inapplicable to
this case because they are factually distinguishable.
Plaintiff urges the Court to consider the Sixth Circuit case
Jones v. Nissan North America, Inc., which Plaintiff
contends supports Plaintiff's argument that the acquired
evidence rule does not apply to conduct which occurred
in Limine are generally used to ensure evenhanded and
expeditious management of trials by eliminating evidence that
is clearly inadmissible for any purpose.” Indiana
Insurance Co. v. General Electric Co., 326 F.Supp.2d
844, 846 (N.D.Ohio 2004) (citing Jonasson v. Lutheran
Child and Family Serv., 115 F.3d 436, 440 (7th Cir.
1997)). A “motion in limine, if granted, is a
tentative, interlocutory, precautionary ruling by the trial
court reflecting its anticipatory treatment of the
evidentiary issue... the trial court is certainly at liberty
‘* * * to consider the admissibility of the disputed
evidence in its actual context.'” State v.
Grubb, 28 Ohio St.3d 199, 201-02 (1986) (citing
State v. White, 6 Ohio App.3d 1, 4 (1982)).
“Indeed, even if nothing unexpected happens at trial,
the district judge is free, in the exercise of sound judicial
discretion, to alter a previous in limine ...