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Paul Blakeslee v. Shaw Infrastructure

September 30, 2011

PAUL BLAKESLEE, PLAINTIFF,
v.
SHAW INFRASTRUCTURE, INC.,
DEFENDANT.



The opinion of the court was delivered by: John W. Sedwick United States District Judge

ORDER AND OPINION

[Re: Motion at Docket 64]

I. MOTION PRESENTED

At docket 64, defendant Shaw Infrastructure, Inc. ("Shaw") moves in limine to exclude certain testimony from Michelle Cook ("Cook"), former Human Resources Compliance Manager at Shaw. Plaintiff Paul Blakeslee ("Blakeslee") opposes the motion at docket 91. Shaw's reply is at docket 108. Oral argument was not requested and would not assist the court.

Detailed background information is provided in the order at docket 129.

II. DISCUSSION

A. Refusal to Permit Cooke to Investigate

Shaw argues that Cooke's testimony that she was not permitted to investigate Blakeslee's termination is irrelevant to whether Blakeslee's termination was retaliatory. Blakeslee counters that it is relevant to whether Shaw's explanation for terminating Blakeslee's employment was pretextual. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."*fn1 Cooke's testimony that she was not permitted to investigate Blakeslee's termination makes it more probable that Shaw's proferred reason was pretextual. Shaw suggests that there are other reasons that Cooke was not permitted to perform an investigation. Those alternative explanations can be offered at trial and do not detract from the relevance of Cooke's testimony.

Shaw's reply changes course; it states that Cooke was allowed to investigate and that the investigation is irrelevant because it occurred after Blakeslee was terminated. An argument cannot be raised for the first time in a reply brief.*fn2 Even if the court were to consider Shaw's untimely argument, it is not persuasive. Even assuming "the only relevant evidence is that which was before the decision-maker at the time of the employment action at issue,"*fn3 the results of an internal investigation would offer insight into what precisely was considered in making the decision to terminate Blakeslee's employment.

B. Testimony that Cooke Would Have Investigated the RIF Differently

Shaw argues that Cooke's testimony that she would have investigated Shaw's reduction-in-force ("RIF") practice differently had she known about Blakeslee's letter is irrelevant because it is speculative. Blakeslee maintains that it tends to show that Blakeslee's decision not to involve the human resources department was unreasonable and that Shaw's explanation was pretextual. This portion of Cooke's testimony is irrelevant. Whether Cooke would have investigated differently in light of the letter has no bearing on whether Blakeslee's termination was retaliatory or whether its proferred reason was pretextual.

C. Cook's Past Experience With the RIF Process

Shaw argues first that Cooke's testimony that she witnessed managers use the RIF process to get rid of problem employees is "irrelevant, unfairly prejudicial, and completely lacking of probative value."*fn4 Shaw does not attempt to explain why. In any event, Shaw's first argument is inconsistent with its second--that this portion of Cooke's testimony should be excluded pursuant to Rule 404.*fn5

Shaw does not specify whether it is seeking to exclude Cooke's testimony pursuant to Rule 404(a) or (b). The court assumes that Shaw is arguing that Cooke's testimony pertains to specific acts offered to prove character. Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith."*fn6 Cooke's testimony that Shaw managers used the RIF process to get rid of problem employees is not offered to prove character or action in conformity with any character trait. Assuming that a business entity can even possess such traits, it is not clear what aspect of Shaw's "character" that evidence would tend to prove. Even if it were character evidence, Rule ...

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