Free Motion in Limine - District Court of Colorado - Colorado

Case 1:04-cv-01227-MSK-PAC

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Filed 09/02/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1227-MSK-PAC DAVID CORTNEY BISHOP, Plaintiff, v. UNITED PARCEL SERVICE, CO., a Delaware Corporation, Defendant. DEFENDANT UNITED PARCEL SERVICE CO.'S MOTION IN LIMINE REGARDING NON-SIMILARLY SITUATED EMPLOYEES Defendant United Parcel Service, Co. ("UPS"), by its attorneys, respectfully moves the Court for an Order precluding Plaintiff David Cortney Bishop ("Plaintiff") from introducing evidence concerning non-similarly situated UPS employees. Plaintiff seeks to introduce the personnel files and performance history of his supervisors. Such evidence is not relevant to any matter at issue in this case because such employees are not appropriate comparitors as they are not similarly situated. A. Plaintiff's Supervisors are Not Appropriate Comparitors

"To establish a prima facie case of retaliation under the FMLA, a plaintiff must show that after engaging in protected conduct only he, and not any similarly situated employee who did not engage in protected conduct, was subjected to an adverse employment action even though he was performing his job in a satisfactory manner." Buie v. Quad/Graphics, 366 F.3d 496, 503 (7th Cir. 2004) (claim of FMLA retaliation). However, individuals used as comparators must be similarly situated to the Plaintiff.

Case 1:04-cv-01227-MSK-PAC

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Filed 09/02/2005

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Kendrick v. Penske Compensation Svs., Inc., 220 F.3d 1220, 1232 (10 th Cir. 2000) (§1981 retaliation). Similarly situated employees are those "who work with the same supervisor [as plaintiff] and are subject to the same standards governing discipline and performance." Id.; see also EEOC v. Flasher, 986 F.2d 1312, 1316 (10 th Cir. 1992) (mere disparate treatment does not compel inference of discrimination and may be explained by fact that discipline was imposed by different supervisors); Magruder v. Runyon, No. 94-3069, 1995 WL 311740, at *1-*2 (10 th Cir. 1995) (plaintiff's male coworkers were not similarly situated where the comparators' conduct was reviewed by a different supervisor). In Snipes v. Illinois Department of Corrections, a retaliation case under Title VII, the Seventh Circuit affirmed the district court's decision to exclude evidence of disparate treatment by different supervisors. 291 F.3d 460 (7 th Cir. 2002). Even though the comparators held the same job position as plaintiff, were subjected to the same work policies, worked for the employer during the same time frame, and were exposed to the same multi-layer, centralized disciplinary process, the Seventh Circuit concluded that the plaintiff "failed to meet th[e] minimum evidentiary threshold" because the comparators worked for different supervisors. Id. at 462-63. The court reasoned: "[d]ifferent employment decisions concerning different employees, made by different supervisors . . . sufficiently account for any disparity in treatment, thereby preventing an inference of discrimination." Id. at 463 (citations omitted). Because of this "lack of commonality in supervisors," evidence pertaining to the disciplinary history of those other employees was properly excluded. Id.

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Case 1:04-cv-01227-MSK-PAC

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Plaintiff seeks to introduce the employment files of Troy Roten, Plaintiff's immediate supervisor, as well as the employment file of Jack Donnell, Mr. Roten's immediate supervisor. Troy Roten and Jack Donnell had a higher ranking at UPS than Plaintiff, longer tenure and did not share a common supervisor with Plaintiff. Moreover, Mr. Roten and Mr. Donnell did not have same or similar performance expectations. Thus, Mr. Roten and Mr. Donnell are not similarly situated to Plaintiff for purposes of demonstrating FMLA retaliation. Therefore, introduction of Mr. Roten and Mr. Donnell's employment files should be barred. B. Mr. Roten's Sales Performance is Inadmissable

Further, in an effort to demonstrate disparate treatment, Plaintiff seeks to introduce evidence that Mr. Roten was not disciplined or scrutinized for allegedly low sales numbers. As discussed herein, Mr. Roten is not classified in the same job category as Plaintiff and, therefore, is not an appropriate comparator. In addition, Mr. Roten's job duties as a sales manager are distinct from those assigned to Plaintiff as an account executive. Mr. Roten is not similarly situated as Plaintiff because different standards governed discipline and performance of Mr. Roten's work, specifically Mr. Roten's sales performance. Therefore, evidence of Mr. Roten's sales performance is not relevant to Plaintiff's claims in this matter. CONCLUSION The Tenth Circuit has held unequivocally that a Plaintiff may not rely on disparate treatment of other employees to create an inference of retaliation unless those employees are similarly situated, meaning that they work with the same supervisor, are

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Case 1:04-cv-01227-MSK-PAC

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subject to the same standards governing discipline and performance and their work histories and employment circumstances are substantially similar. As discussed in this motion, Plaintiff has failed to demonstrate such a correlation with regard to the other employees he seeks to compare himself. Therefore, UPS' Motion in Limine should be granted. Dated: September 2, 2005. Respectfully submitted,

s/Christie L. Ryan Christie L. Ryan, Esq. HOLLAND & HART LLP 90 S. Cascade Ave., Suite 1000 Colorado Springs, CO 80903-1645 (719) 475-6463 (719) 632-2461 fax [email protected] Jim Goh, Esq. HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Denver, CO 80202 (303) 295-8000 (303) 295-8261 fax [email protected] ATTORNEYS FOR DEFENDANT UNITED PARCEL S ERVICE, C O.

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Case 1:04-cv-01227-MSK-PAC

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CERTIFICATE OF S ERVICE I hereby certify that on September 2, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following via e-mail: Hollie L. Wieland Sears & Swanson, PC 2 North Cascade Ave., #1250 Colorado Springs, CO 80903

s/Christie L. Ryan Christie L. Ryan, Esq. ATTORNEY FOR DEFENDANT HOLLAND & HART LLP 90 S. Cascade Ave., Suite 1000 Colorado Springs, CO 80903-1645 (719) 475-6463 (719) 632-2461 fax [email protected]

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