The Sixth Circuit demolishes a popular defense tactic by employers in discrimination cases, holding that district courts should not readily entertain motions in limine to exclude evidence that are often filed after summary judgment motions fail. The panel holds that such motions often intrude on the jury's role as fact-finder, while denying employees the procedural protections of summary judgment. The court reverses the exclusion of evidence of comparative employees and remands an age and national-origin discrimination case for trial.
Louzon v. Ford Motor Co., No. 11-2356 (6th Cir. June 4, 2013): Louzon, a Palestinian who worked as a product engineer, was on leave from Ford Motor visiting his family in Gaza in 2007 when the worsening security situation there prevented his immediate return. Louzon attempted to remain in contact with human resources, made every effort to leave the region, and was able to secure a brief extension of his leave . . . yet eventually was terminated by the company for (alleged) job abandonment.
Louzon alleged (under federal and Michigan state law) that his termination was unduly harsh in comparison to younger and non-Palestinian employees who overstayed their leaves. The original district court judge assigned to the case denied summary judgment. When the case was reassigned to a new judge, Ford Motor filed a motion in limine on all of his comparators. The new judge granted Ford Motor's motion to exclude the evidence of seven other employees who were not terminated, on the ground that none of them allegedly shared a supervisor with the plaintiff and were thus not "similarly situated." The judge then, sua sponte, granted summary judgment after Louzon conceded that he could not prove his claim without that evidence.
The Sixth Circuit reverses. It holds that motions in limine that essentially operate as back-up summary judgment motions - to kill the case before trial - short-circuit the protections provided by summary judgment, allowing the judge alone to weigh the evidence before trial. Here, the judge committed the legal error of deciding that the comparable employees had to be managed by the same executive to be considered "substantially similar."
The panel notes that while the use of motions in limine to resolve non-evidentiary matters is tolerated in criminal cases (where summary judgment is not available), it is unwarranted in civil cases: "a mechanism already exists in civil actions to resolve non-evidentiary matters prior to trial-the summary-judgment motion. Allowing a party to litigate matters that have been or should have been resolved at an earlier stage not only allows those dissatisfied with the court's initial ruling a chance to relitigate, but also deprives their opponents of the procedural protections that attach at summary judgment."
Here, the panel states that
"the true nature of Ford's motion is evident from the first page, where Ford argues that as a matter of law, none of Louzon's proffered comparators 'are properly comparable to [Louzon] because the various leave and termination decisions were made independently by separate decision makers that had absolutely no involvement in the decisions concerning [Louzon's] leave or termination.' [Citation omitted.] Resolution of this issue-whether Louzon's evidence is insufficient as a matter of law-requires a summary-judgment analysis. [Citation omitted.] More important for the purposes of our analysis, though, is that Ford's motion does not require any rulings relating to the admissibility of evidence at trial."
The panel observes that Ford Motor couched the motion in terms of the comparator evidence being "irrelevant" and inadmissible under Federal Rules of Evidence 401 and 402, but that the veneer of evidentiary argument does not disguise the substance of the argument. Indeed, "if these tactics were sufficient, a litigant could raise any matter in limine, as long as he included the duplicative argument that the evidence relating to the matter at issue is irrelevant."
On the merits, the panel holds that the district court erred in holding that employees managed by different supervisors as a matter of law could not be comparators. The panel in particular cites the record evidence that Ford Motor had 300 managers in the plaintiff's department alone.
"In other words, the employee-to-manager ratio among engineers in Product Development is approximately 16:1, and the employee-to-supervisor ratio much lower. If we were to accept Ford's suggestion that the same supervisor is required in this case, the pool of potential comparators for Louzon would amount to no more than a few individuals. Such a requirement would render any plaintiff's burden virtually impossible, even at the prima facie stage."
The panel also finds a genuine disputes of material fact over whether the employer in fact maintained an "automatic termination" policy and who the decision-maker in the case actually was.
This decision will prove useful for employees both to pushing against such second-bite motions in limine and in arguing the "similarly situated" element of proof in employment discrimination cases that so mant courts have difficulty properly applying.