Govea v. C B & I L L C

                 UNITED STATES DISTRICT COURT                            
                 WESTERN DISTRICT OF LOUISIANA                           
                     LAKE CHARLES DIVISION                               


JESUS GOVEA                        CASE NO.  2:22-CV-01328                

VERSUS                             JUDGE JAMES D. CAIN, JR.               

C B & I L L C ET AL                MAGISTRATE JUDGE LEBLANC               

                     MEMORANDUM ORDER                                    

    Before the Court is “Defendant’s Motion in Limine” (Doc. 36) wherein CB&I, LLC 
(“CB&I”) moves to exclude certain evidence at the trial of this matter.   
                         BACKGROUND                                      
    This lawsuit involves Plaintiff, Jesus Govea’s allegations of discrimination by his 
employer,  CB&I.    Plaintiff’s  claims  involve  complaints  of  racial  discrimination  and 
retaliation under Title VII of the Civil Rights Act. Plaintiff’s allegations include a co-
worker’s use of racial slurs and other discriminatory language, as well as allegations of 
retaliation by a supervisor, demeaning behavior, threats and crew reassignments after 
reporting the co-worker’s behavior.                                       
    On Defendant’s motion for summary judgment, the Court dismissed Plaintiff’s 
retaliation claim, but denied dismissal of his hostile work environment claim.1 
    CB&I moves the Court for an order in limine to prohibit the following at the trial of 
this matter: (1) Defendant’s finances and ability to pay a large verdict; (2) “Golden Rule 
arguments;” (3) any argument asking the jury to “send a message,” or to “act as the 

1 Docs. 41 and 42.                                                        
conscience  of  the  community;”  (4)  references,  arguments,  testimony,  or  comments 
referring to Plaintiff as the ”victim;” (5) references to motions or rulings; (6) commentary, 

testimony,  and/or  documentary  evidence  related  to  Plaintiff’s  dismissed  claims;  (7) 
commentary  and/or  testimony  mischaracterizing  exhibits;  (8)  commentary,  testimony, 
and/or documentary evidence regarding claims not plead in the lawsuit; (9) commentary, 
testimony,  and/or  documentary  evidence  relating  to  anecdotal  employment-related 
problems of non-similarly situated employees or former employees of Defendant; (10) 
commentary, testimony, and/or documentary evidence regarding other claims, judgments, 

actions, or charges against Defendant; (11) generalized, conclusory, and/or speculative 
statements regarding the filing of EEOC charges or alleged discrimination; (12) The 
EEOC’s January 21, 2022, determination letter; (13) EEOC Notice of Conciliation failure; 
(14) evidence regarding Plaintiff’s subjective beliefs of discrimination, harassment, or 
retaliation; (15) stray remarks; (16) proof of causation of mental and/or emotional distress; 

(17) absence or unavailability of any witness; (18) evidence of front pay and/or back pay 
damages;  and, (19) reference to the type or character of the legal practice of the law firm 
representing Defendant.                                                   
                      LAW AND EVIDENCE                                   
    Evidence is generally admissible so long as it is relevant and not barred by the 

Constitution, a federal statute, the Federal Rules of Evidence, or other rules prescribed by 
the Supreme Court. Fed. R. Evid. 402.  Among other grounds, the court may exclude 
relevant evidence where its probative value is substantially outweighed by a danger of 
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or 
needlessly presenting cumulative evidence. Id. at 403.                    

    Evidence should only be excluded in limine where it is “clearly inadmissible on all 
potential grounds.” Hull v. Ford, 2008 WL 178890, at *1 (S.D. Tex. Jan. 17, 2008) (citing 
Hawthorne Partners v. AT&T Tech., Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993)). 
“Motions  in  limine  are  frequently  made  in  the  abstract  and  in  anticipation  of  some 
hypothetical circumstance that may not develop at trial.” Looney Ricks Kiss Architects, Inc. 
v. Bryan, 2010 WL 5174440, at *1 (W.D. La. Dec. 15, 2010) (quoting Collins v. Wayne 

Corp., 621 F.2d 777, 784 (5th Cir. 1980)).  Evidentiary rulings, however, “should often be 
deferred until trial so that questions of foundation, relevancy and potential prejudice can 
be resolved in proper context.” Id.; accord Baxter v. Anderson, 277 F.Supp.3d 860, 863 
(M.D. La. 2017).  Additionally, motion in limine rulings “are not binding on the trial judge 
. . . and the judge may always change his mind during the course of a trial.” Ohler v. United 

States, 529 U.S. 753, 764 n. 3 (2000).                                    
(1) Defendant’s finances and ability to pay a large verdict               
    Defendant moves to exclude any evidence about its size as a corporation, finances, 
revenues, or profits, including evidence that Defendant is capable of paying a large verdict 
and/or allegations of Plaintiff’s financial adversity or Defendant’s financial prosperity. 

    Plaintiff informs the Court that he is seeking punitive damages under 42 U.S.C 1981 
and Title VII. “[E]vidence of a tortfeasor’s wealth is traditionally admissible as a measure 
of the amount of punitive damages that should be awarded. City of Newport v. Fact 
Concerts, Inc., 453 U.S. 247, 270 101 S.Ct. 2748 (1981).   Accordingly, the Court deinies 
Defendant’s motion in this regard and will permit evidence of Defendant’s net worth given 
its relevance to the valuation of Plaintiff’s claim.                      

(2) “Golden Rule arguments”                                              
    Defendant moves to exclude references or comments in opening statement, closing 
argument, or at any other point of the trial that jury members should “stand in Plaintiff’s 
shoes.” Defendant cites Whitehead v. Food Max of Mississippi, Inc., 163 F.3d 265, 278 
(5th Cir. 1998) (quoting Stokes v. Delcambre, 710 F.2d 1120, 1128 (5th Cir. 1983)).  Such 
arguments are improper because they invite a decision based on personal bias rather than 

on the evidence. Id.                                                      
    Plaintiff  points  out,  however,  that  Golden  Rule  arguments  are  prohibited  on 
damages but may be permitted on liability. Brown v. Parker Drilling Offshore Corp., 410 
F.3d 166, 180 (5th Cir. 2005); Stokes, 710 F.2d at 1128. Accordingly, the motion is granted 
in part and denied in part on this basis—Plaintiff may make Golden Rule arguments on the 

issue of liability only.                                                  
(3) Any argument asking the jury to “send a message,” or to “act as the conscience of the 
community”                                                                

    Here, Defendant argues that there is no place at trial for this type of unfairly 
prejudicial argument because the jury must base its award of compensatory damages on 
the evidence presented at trial.                                          
    A conscience of the community argument “references to a community standard or 
expectation that would be disappointed unless the jury returned a large verdict in [the 
plaintiff’s] favor.” Westbrook v. Gen. Tire & Rubber Co., 754 F.2d 1233, 1239 (5th Cir. 
1985).  Such  appeals  “serve no  proper  purpose  and carry  the potential  of  substantial 
injustice when invoked against outsiders.” Plaintiff’s counsel may, however, ask the jury 

to send a message with respect to his request for punitive damages. See, e.g., Aikens v. 
Central Or. Truck Co., Inc., 2021 WL 4312720, at *2 (E.D. Tex. Sep. 22, 2021) (collecting 
cases). Accordingly, the motion is granted in part and denied in part in this regard—
Plaintiff may make limited arguments asking jury to send a message to Defendant with 
respect to a punitive damage verdict, but is forbidden from making any such argument 
relating to compensatory damages or from emphasizing Defendant’s status as an outsider 

in the community.                                                         
(4) References, arguments, testimony, or comments referring to Plaintiff as the “victim”  
    Defendant argues that referring to the Plaintiff as a victim incorrectly implies the 
existence of a “criminal” legal proceeding and serves only to mislead, inflame or prejudice 
the jury against Defendant.  Defendant contends that language to this effect improperly 

encourages the jury to violate its oath not to let bias, sympathy, or prejudice play any part 
in their deliberations.                                                   
    Case law in this circuit and from the United States Supreme Court is replete with 
instances of employment discrimination plaintiffs being referred to as “victims.” See, e.g., 
Faragher v. City of Boca Raton, 524 U.S. 775 (1998); BNSF Ry. Co. v. White, 548 U.S. 53 

(2006); EEOC v. WC&M Enterps., Inc., 496 F.3d 393 (5th Cir. 2007); EEOC v. BassPro 
Outdoor World LLC, 35 F.Supp.3d 836 (S.D. Tex. 2014). The undersigned agrees that the 
risk of confusion or undue prejudice is minimal, and that Plaintiff may appropriately use 
the word “victim” to describe himself under the claims at issue. The motion is therefore 
denied on this basis.                                                     

(5) References to motions or rulings                                      
    Defendant argues that any reference or mention of any action of this Court or ruling 
made prior to trial is irrelevant and the risk of undue prejudice it presents far outweighs 
any probative value. The Court lacks context for how any such references would be made 
during trial and, in the absence of a more specific basis for their exclusion, declines to issue 
what would amount to an advisory ruling on their admissibility.           

(6) Commentary, testimony, and/or documentary evidence related to Plaintiff’s dismissed 
claims                                                                    

    Defendant argues that allowing this type of evidence would create a risk of prejudice 
that far outweighs any probative value, as well as it would waste the Court’s time and 
confuse the issues. Federal Rule of Evidence 403. Plaintiffs remark that Defendant has 
failed to provide authority as to this type of evidence and notes that statements made by an 
attorney are not evidence.  However, the Court is not inclined to rule without knowing the 
context in which Plaintiff may introduce evidence of any dismissed claims.  As such, 
Defendant’s motion is denied at this time, and the Court will defer ruling until the trial of 
that matter if the issue presents itself.                                 
(7) Commentary and/or testimony mischaracterizing exhibits                
    Defendant argues  that  any commentary  and/or testimony  that  mischaracterizes 
exhibits would be irrelevant and only mislead the jury and cause prejudice. The Court will 
not give an advisory opinion here and will deny Defendant’s motion and defer this issue 
until the trial.                                                          

(8) Commentary, testimony, and/or documentary evidence regarding claims not plead in 
the lawsuit                                                               

    Defendant argues that any allegation of harassment or retaliation not pleaded in the 
Complaint is irrelevant and prejudicial and thus, should be excluded. Plaintiff notes that 
Defendant has failed to identify any specific evidence that should be excluded and argues 
that Plaintiff should be permitted to tender any evidence to establish factual allegations to 
support his claim.  Here, the Court will not make a blanket exclusion, as Plaintiff should 
be able to submit any evidence to support his hostile work environment claim.  As such, 
the Court will deny Defendant’s motion in this regard, and defer the issue to the trial 
reserving Defendant’s right to object at the trial.                       
(9)  Commentary,  testimony,  and/or  documentary  evidence  relating  to  anecdotal 
employment-related problems of non-similarly situated employees or former employees of 
Defendant                                                                 

    Defendant argues that any evidence of anecdotal employment-related problems of 
non-similarly situated employees or former employees is not relevant.  Here, the only claim 
left to try it the hostile work environment claim. Defendant provides no specifics as to what 
it maintains should be excluded. As such, the Court cannot determine at this juncture 
whether the purported evidence is relevant and again hesitates to make such a blanket 
exclusion.                                                                
    The Fifth Circuit has warned that “blanket evidentiary exclusions can be especially 
damaging in employment discrimination cases, in which plaintiffs must face the difficult 
task of persuading the fact-finder to disbelieve an employer’s account of its own motives.” 
Kelly v. Boeing Petroleum Servs., 61 F.3d 350, 359 (5th Cir. 1995) (citing Hawkins v. 

Hennepin Technical Center, 900 F2d 153, 155 (8th Cir.) cert. denied, 111 S.Ct. 150 (1990).  
    Here, Plaintiff’s claims against co-worker Vincent appeared to have stopped as of 
July 23, 2016.  Defendant argues that any evidence related to events that occurred after that 
time  provide  no  probative  value  to  Plaintiff’s  racial  harassment  claim.    However, 
Defendant requests that the Court prohibit Plaintiff from introducing any evidence of 
events that allegedly occurred as a result of Plaintiff’s complaint about Vincent. Without 

more information as to the evidence Defendant moves to exclude, the Court cannot at this 
time make such a blanket exclusion.  Accordingly, the motion is denied in this regard 
without prejudice to Defendants’ right to object at trial.                
(10)  Commentary,  testimony,  and/or  documentary  evidence  regarding  other  claims, 
judgments, actions, or charges against Defendant                          

    Next, Defendant moves to exclude such evidence as irrelevant. Plaintiff complains 
that Defendant does not specify any specific lawsuit, cases, claim, judgment, action or 
charges by any employee or former employee.                               
    Another court in this circuit has recently noted that, “me too” evidence by a fellow 
employee may prove relevant as to whether an employer discriminated or retaliated against 
the plaintiff—particularly when it is close in time to the events of the case and involves the 
same decision makers. Harkness v. Bauhaus USA, Inc., 2015 WL 631512, at *2–*3 (N.D. 
Miss. Feb. 13, 2015) (citing Nuskey v. Hochberg, 723 F.Supp.2d 229, 233 (D.D.C. 2010)). 

The Court cannot judge the potential admissibility of the unspecified evidence Defendants 
seek to exclude at this point and declines to enter a blanket order. Accordingly, the motion 
is denied in this regard without prejudice to Defendants’ right to object to specific argument 

or evidence at trial.                                                     
(11) Generalized, conclusory, and/or speculative statements regarding the filing of EEOC 
charges or alleged discrimination                                         

    Defendant  argues  that this  type  of  evidence  should  be  excluded  as  irrelevant, 
without  proper  foundation,  and  the  risk  of  undue  prejudice  to  Defendants  is  greatly 
outweighed by its scant probative value, as well as being confusing and misleading to the 
jury.                                                                     
    Again, the Court cannot judge the admissibility of all statements potentially falling 
under this broad umbrella and thus declines to enter any such order. The Court denies the 
motion but will allow Defendant to object to any inappropriate argument or evidence as it 
arises at trial.                                                          
(12) The EEOC’s January 21, 2022, determination letter                    
    Plaintiff informs the Court that he does not intend to introduce this letter. Thus, no 
ruling is necessary and thus the motion is moot in this regard.           

(13) EEOC Notice of Conciliation failure                                  
    Defendant  argues that  the  EEOC’s  Notice  is irrelevant  under  Federal  Rule  of 
Evidence 401 and would be prejudicial and confusing. Plaintiff argues that this Notice is 
the only document that would reflect the timeliness of Plaintiff’s suit.  As such, the Court 
will deny Defendant’s motion and will allow the Notice for that limited purpose. 
(14) Evidence regarding Plaintiff’s subjective beliefs of discrimination, harassment, or 
retaliation                                                               

    Defendant argues that Plaintiff’s subjective beliefs of discrimination are speculatory 
and conclusory, and not competent evidence of discrimination. Thus, Defendant contends 
that this type of testimony or evidence runs the risk of prejudice that outweighs its probative 
value.                                                                    
    Plaintiff argues that the Fifth Circuit has permitted lay witnesses to offer opinion 
testimony about discriminatory motive or intent as long as this testimony satisfies Federal 
Rule of Evidence 701 with a rational basis in what the witness was personally able to 
observe. Haun v. Ideal Indus., Inc., 81 F.3d 541, 548 (5th Cir. 1996); see also Hansard v. 

Pepsi-Cola Metro. Bottling Co., Inc., 865 F.2d 1461, 1466–67 (5th Cir. 1989) (concluding, 
with admitted hesitancy, that trial court had not abused its discretion in admitting lay 
opinion testimony of one employee as to company’s discriminatory motive).  
    Accordingly,  the  Court  must  evaluate  any  allegedly  subjective  opinions  on 
discrimination to determine whether a proper foundation has been laid so that they may be 

admitted under Federal Rule of Evidence 701. Given that no specific testimony has yet 
been challenged, the Court cannot make this determination in limine and therefore denies 
the motion on this basis.                                                 
(15) Stray remarks                                                        
    Defendant argues that any stray remarks representing alleged acts of discrimination, 

that were not directed to Plaintiff or in conversations to which Plaintiff was not a party 
should be excluded as irrelevant, prejudicial and hearsay.                
    Plaintiff notes that Defendant has failed to cite or reference any particular statement 
that it contends would fall under this category. The determination of whether an offensive 
comment represents a “stray remark” under anti-discrimination law is fact-intensive and 
involves questions of temporality, relation to the employment decision at issue, relation to 

the alleged targeted class, and the decision-making authority of the speaker. Jackson v. 
Cal-Western Pkg. Corp., 602 F.3d 374, 380 (5th Cir. 2010). Stray remarks do not constitute 
direct evidence of discrimination but may be used as circumstantial evidence alongside 
other discriminatory conduct. Paulissen v. MEI Technologies, Inc., 942 F.Supp.2d 658, 
669–70 (S.D. Tex. 2013). The Court cannot properly gauge the admissibility of any 

unspecified remarks, including the application of any hearsay exception, at this juncture. 
Accordingly, the motion is denied in this regard and Defendants may object at trial if the 
issue presents itself.                                                    
(16) Proof of causation of mental and/or emotional distress               
    Defendant  argues  that  lay  witness  testimony  and  Plaintiff’s  testimony  as  to 

causation should be excluded because it would require a medical expert. See Logan v. 
Westfield Ins. Co., 2020 WL 412257, at *10 (W.D. La. Jan. 24, 2020); Rea v. Wisconsin 
Coach Lines, Inc., 2014 WL 4981803, at *2 (E.D. La. Oct. 3, 2014).        
    While lay witnesses may not provide opinions which “require[] specialized medical 
knowledge,” see id. at 361, assuming Rule 701’s requirements are met, “a lay witness can 

provide opinion testimony as to mental state.” Jordan v. Wayne Cty., 2017 U.S. Dist. 
LEXIS 108405, * 2 (S.D. Miss. Jul. 13, 2017) (citing United States v. Heard, 709 F. 3d 
413, 422 (5th Cir. 2013)). Moreover, courts within the Fifth Circuit have permitted lay 
witnesses to provide opinion testimony as to causation of emotional stress and resulting 
headaches and upset stomachs. Jordan, 2017 U.S. Dist. LEXIS 108405, at * 2 (citing Ishee 
v.  Fannie  Mae,  2014  U.S.  Dist.  LEXIS  165910,  *1-4  (S.D.  Miss.  Nov.  26,  2014)). 

Similarly, “courts allow lay witnesses to testify as to their firsthand observations of the 
mental anguish or emotional distress suffered by parties. Eubanks v. St. Tammany Parish 
Hosp., 2004 U.S. Dist. LEXIS 11524, * 7 (E.D. La. Jun. 22, 2004); Robert v. Maurice, 
2020 U.S. Dist. LEXIS 125859, * 25-26 (E.D. La. Jul. 16, 2020) (citing Barocco v. Ennis 
Inc., 100 F. App’x 965, 968 (5th Cir. 2004)). Assuming a proper foundation is laid under 

Rule 701, Plaintiff and other lay witnesses may provide opinion testimony as to Plaintiff’s 
mental state. As such, the motion is denied in this regard.               
(17) Absence or unavailability of any witness                             
    Defendant moves to exclude any testimony, statements, or reports of any witness 
who is absent, unavailable, or not called to testify, including any reference to hearsay 

statements, not within an exception. Plaintiff argues that the motion should be denied due 
to lack of specificity.  Plaintiff also informs the Court, that a key witness in the case and 
Plaintiff’s foreman, Paul Williams, had passed away since Plaintiff’s employment ended. 
While Plaintiff intends to ensure the presence of all necessary witnesses but anticipates 
testimony  as  to  certain  actions  and  statements  made  by  Williams  during  Plaintiff’s 
employment. Plaintiff requests that the Court defer ruling on any statements until such time 

that the unavailability occurs so that any necessary ruling can be made within the proper 
context. The Court agrees and will deny the motion at this time and defer ruling until and/or 
if it presents itself at trial.                                           
(18) Evidence of front pay and/or back pay damages                        
    Defendant argues that evidence of front or back pay damages must be excluded 
because the jury must decide the availability of equitable relief, and that backpay is not an 

automatic remedy. Miles-Hickman v. David Powers Homes, Inc., 613 F.Supp. 2d (S.D. 
Tex. 2009). Defendant contends that this type of evidence would mislead, confuse, and 
prejudice the jury and/or improperly influence the jury.                  
    Acknowledging that Plaintiff’s claim for retaliation/constructive discharge has been 
dismissed, Plaintiff informs the Court that he does not intend to submit evidence pertaining 

to Plaintiff’s wages for purposes of requesting back and/or front pay.  As such, the Motion 
is denied as moot.                                                        
(19) Reference to the type or character of the legal practice of the law firm representing 
Defendant                                                                 

    Defendant argues that this type of evidence is prejudicial, irrelevant, and would 
make it impossible for Defendants to receive a fair trial. Plaintiff informs the Court that it 
does not intend to introduce any information regarding defense counsel at trial but does 
request the ability to provide jurors with cursory background information for the counsel 
and engage in limited questioning during voir dire to ensure that none of the jurors have a 
conflict.  The  Court agrees that any references by Plaintiff or Plaintiff's  counsel to the 
above-mentioned topics as it relates to defense counsel and their firm are inappropriate, 
irrelevant, and unduly prejudicial, and therefore grants the motion in this regard, but will 
allow Plaintiff's counsel to make cursory questions to the jurors to determine if there 1s a 
potential conflict with counsel for Defendant. 
                              CONCLUSION 
     For the reasons explained herein, 
     IT  IS  ORDERED  that  the  Motion  in  Limine  is  GRANTED  IN  PART  and 
DENIED IN PART as described hereinabove. 
     THUS DONE AND SIGNED in Chambers on this 21st day of October, 2024. 

                   UNITED STATES DISTRICT JUDGE 

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