RICHARD A. JONES, District Judge.
This matter comes before the court on the parties' motions in limine. Dkt. ## 107, 110. The court GRANTS both motions in part and DENIES them in part. The parties have divided their motions into several parts (34 parts, to be precise, not counting many subparts). The court will issue a separate order as to the part of Defendants' motion regarding evidence from the Equal Employment Opportunity Commission ("EEOC").
The court acknowledges that Plaintiff Michael Conti and Defendant Derek Anderson have stipulated to the dismissal with prejudice of all claims Mr. Conti made against Mr. Anderson. Dkt. # 102. The clerk shall TERMINATE Mr. Anderson as a party. Corporate Services Group, Inc. ("CSG"), Stacey Gardner, and Jay Leon are the sole remaining Defendants.
The court also GRANTS the parties' stipulated motion in limine. Dkt. # 106. The parties have agreed to exclude four categories of evidence: evidence of the parties' settlement discussions, evidence that Mr. Conti moved to the United States to escape guerilla warfare in Colombia, evidence regarding Mr. Conti's wife's employment, and evidence of Mr. Conti's wife's English language skills. The court accepts their agreement and will require them to abide by it. The motion also reveals the parties' agreement to exclude all witnesses from the courtroom except during their testimony. The court's standard practice is to permit a witness to attend trial once the court has excused him or her (i.e., once the witness has completed his or her testimony and the parties have agreed that the witness is not subject to recall). If the parties have a reason for departing from this practice, they shall explain it to the court at the pretrial conference.
Before addressing each part of the parties' disputed motions, the court makes two preliminary comments. First, the parties will have six days to select a jury, complete opening statements and closing arguments, and present evidence. The court will be presiding over another trial beginning on December 10. The jury may continue to deliberate on December 10 and thereafter, but the parties will complete their presentation of this case to the jury no later than 4:30 p.m. on December 9. Throughout discovery, dispositive motions, and now these pretrial motions, the parties have demonstrated an extraordinary willingness to raise disputes about virtually everything, from the substantial to the trivial, that might possibly be at issue in this case. If the parties were actually to raise at trial every factual dispute they raised in their dispositive motions and other pretrial motions as well as these motions in limine, trial would take months. But the parties will have six trial days, split evenly between them. They should plan their presentation of evidence accordingly.
Second, Mr. Conti often misinterprets the court's orders on the parties' dispositive motions, especially the court's May 24 order denying virtually every portion of the parties' motions for summary judgment ("SJ Ord.," Dkt. # 81). A party's burden in opposing a summary judgment motion is simply to present evidence that creates a genuine issue of material fact preventing the court from issuing judgment as a matter of law. A party seeking summary judgment need only offer enough evidence or argument to show the absence of a genuine issue, thus obligating the opposing party to present evidence. No party is obligated to come forward with every piece of evidence relevant to a particular issue. There are numerous instances in which the court noted that one party or the other had presented "no evidence" of a particular fact. For example, in ruling that a jury could find Defendants' explanation for demoting Mr. Conti to be pretextual, the court observed that "there [was] not a shred of evidence that anyone at CSG had concerns about [Mr. Conti's] English skills prior to June 29." SJ Ord. at 8. The court did not rule that Defendants had no evidence of earlier concerns about Mr. Conti's English, it merely ruled that they had not presented any such evidence in support of their summary judgment motion. No one asked for partial summary judgment that there was no evidence of Defendants' dissatisfaction with Mr. Conti's English skills prior to June 29, 2010, and thus Defendants were not obligated to come forward with evidence to avoid summary judgment on that ground. Unless a party's failure to present evidence results in summary judgment on an issue, a party is free (barring a separate reason for exclusion) to rely on evidence at trial that was not in the summary judgment record.
II. PLAINTIFF'S MOTION IN LIMINE
A. Mr. Conti's Termination
Mr. Conti asks the court to exclude evidence or argument that Mr. Conti resigned, as opposed to evidence that Defendants fired him. The court noted in its summary judgment order that Defendants' insistence that Mr. Conti resigned is curious in light of the email they sent explicitly terminating him. At the time, the court noted that it was "aware of no evidence that would permit the jury to conclude that Mr. Conti resigned...." SJ Order at 15 n.6. Now, Defendants have offered evidence that Mr. Conti claimed that he claimed he "quit" when he applied for unemployment benefits. In addition, the EEOC determination that is the subject of a separate order summarizes Mr. Conti's complaint by stating that he was "compelled to resign his position...." That evidence was not before the court previously, and Defendants were not obligated to provide it. As the court noted in the prior order, Mr. Conti did not make it clear whether he sought summary judgment that he was fired rather than that he resigned or was constructively discharged. SJ Ord. at 15 n.6. The court will not preclude Defendants from offering evidence or argument that Mr. Conti resigned, nor will it rule out the possibility that it will be necessary to instruct the jury on the theory of constructive discharge.
B. Mr. Conti's Failure to Accept a Job on Defendants' "Outbound" Team is Not Evidence of His Failure to Mitigate Damages.
For the reasons stated in the summary judgment order, Defendants may not argue that Mr. Conti's failure to accept the lower-paying job on CSG's "Outbound" team is a failure to mitigate damages. Defendants agree that they will not do so, and opposed this portion of Mr. Conti's motion solely to preserve whatever right they have to appeal the court's summary judgment ruling.
If necessary, the court will instruct the jury that Mr. Conti's refusal to accept the "Outbound" job is not a failure to mitigate damages.
C. "Undisclosed" Evidence and Arguments
Mr. Conti asks the court to exclude any evidence or witnesses that Defendants did not disclose during discovery. He pinpoints no evidence and identifies no witnesses. The court denies this part of his motion for that reason. Mr. Conti is free to object at trial if Defendants attempt to introduce evidence or witnesses that they were obliged to disclose in discovery but did not, but Mr. Conti offers no support for the broad ruling he requests. Moreover, it appears that the parties have yet to agree on what Plaintiffs did or did not produce during discovery. The court urges them to resolve these issues before trial begins. Neither party will be served by wasting trial time with arguments over the past production of evidence.
Similarly, Mr. Conti is free to object if Defendants attempt to rely on arguments supporting affirmative defenses that they did not disclose in response to proper contention interrogatories. There is again, however, no basis for the broad ruling Mr. Conti requests.
The court also denies Mr. Conti's request that the court strike Defendants' affirmative defenses. The deadline for dispositive motions expired long ago. The only ruling the court has made regarding Defendants' affirmative defenses is that they may not argue that Mr. Conti failed to mitigate damages by failing to accept the "Outbound" job.
D. Decisionmakers as to Mr. Conti's Transfer and Pay Cut
The court denies this part of the motion. A jury will decide who made the decision to move Mr. Conti to a different position with lower pay.
Several parts of Mr. Conti's motion ask the court to limit who Defendants may claim were decisionmakers with respect to adverse actions against him. The court will deny those requests for the most part, but the court questions whether the parties have an actual dispute on this issue. Defendants seem largely to agree with Mr. Conti about who was responsible for making decisions about him; they merely wish to present evidence that the people ultimately responsible took into account input from other people. The court will not prevent them from doing so.
E. Reasons for Mr. Conti's Termination
As the court has already noted, if Defendants failed to disclose either a specific piece of evidence or a specific legal argument in response to a discovery request calling for that evidence or argument, Mr. Conti may object at trial. In this portion of his motion, Mr. Conti points to no specific evidence or argument. There is no basis for an advance ruling limiting what evidence or argument Defendants may offer regarding their reasons for firing Mr. Conti. They were not obligated to present all evidence regarding their reasons for firing Mr. Conti during summary judgment. If Mr. Conti can point to a specific discovery response in which Defendants limited their reasons for terminating Mr. Conti, he can point that out at trial.
F. Decisionmakers as to Mr. Conti's Termination
The court denies this part of the motion. A jury will decide who made the decision to fire Mr. Conti.
G. Ms. Gardner as a Decisionmaker
The court granted summary judgment in Ms. Gardner's favor on Mr. Conti's retaliation claim because there was no evidence that Ms. Gardner knew of the alleged protected activity (Mr. Conti's threat to file an EEOC complaint) that was the basis of that claim. Dkt. # 82 at 5. An additional independent basis for that ruling was that there was no evidence that Ms. Gardner had any role in terminating Mr. Conti. Defendants may not offer evidence or argument to the contrary at trial. Defendants may, however, argue that Ms. Gardner's earlier evaluations of Mr. Conti played a role in other people's decision to terminate him.
H. Microsoft's Role
The court denies this part of the motion. A jury may decide to what extent the input of Microsoft employees played a role in Defendants' adverse actions against Mr. Conti. The court also declines to exclude an email that Microsoft employee John Schoenstein sent two months after Defendants fired Mr. Conti. If, as Mr. Conti contends, that email is merely an after-the-fact summary of Mr. Schoenstein's ...