IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MAXIE MCNABB, )

)

Plaintiff ) CIVIL ACTION NO: 

) 2:06-0664-MHT

v. )

)

SANDERS LEAD COMPANY, INC. )

)

Defendant. )

PLAINTIFF’S FIRST MOTIONS IN LIMINE

COMES NOW the Plaintiff, Maxie McNabb, in the above-styled case,

pursuant to Rules 401, 402, 403, 404, 609, and 803 of the Federal Rules of Evidence,

applicable Eleventh Circuit case law, and the Court’s Scheduling Order, and moves

to exclude from the trial of this case all evidence, questioning, argument, documents

or testimony pertaining to the evidentiary matters as fully set out below. As grounds

for this motion, the Plaintiff states the following:

EVIDENCE REGARDING THE DETERMINATION/ DISMISSAL

AND NOTICE OF RIGHT TO SUE ISSUED BY THE EQUAL

EMPLOYMENT OPPORTUNITY COMMISSION TO PLAINTIFF

1. The Defendant lists the Interview Notes from an EEOC Investigation

done with regard to the Plaintiff’s allegations as an exhibit it expects to use at the trial

of this matter. Such evidence should be excluded under Federal Rules of Evidence

403, 803(c) and applicable Eleventh Circuit law. This Circuit has held that while

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EEOC determinations are generally admissible at bench trials, they may be excluded

from evidence in jury trials. Barfield v. Orange County, 911 F.2d 644, 648 (11th Cir.

1990), reh'g denied, 920 F.2d 13 (11th Cir. 1990). The Eleventh Circuit has clarified

its position with regard to the admissibility of EEOC determinations in jury trials:

In this circuit, it is well established that EEOC determinations are

generally admissible in bench trials. We have not seen fit, however, to

apply the same liberal admissibility rule to determination letters in jury

trials. In particular, the distinction between a bench and a jury trial may

affect the district court's analysis of a determination letter's admissibility

under Federal Rule of Evidence 403.

The admission of an EEOC report, in certain circumstances, may be

much more likely to present the danger of creating unfair prejudice in

the minds of the jury than in the mind of the trial judge, who is aware of

the limits and vagaries of administrative determinations and better able

to assign the report appropriate weight and no more. Walker v. Nations

Bank of Florida, 53 F.3d 1548, 1554 (11th Cir. 1995). 

2. Moreover, an EEOC determination may be excluded if it raises questions

of trustworthiness under Fed.R.Evid. 803(8)(c). Barfield, 911 F.2d at 650. The

EEOC Interview notes raise questions of trustworthiness as no basis for the EEOC's

conclusion is given, no through explanation of the deliberative process is made, and

no specific findings of fact are given with regard to Plaintiff's charge. In order to

determine the trustworthiness of the document, it would require the parties to conduct

a trial within a trial as Plaintiff would be required to call the EEOC investigator to

testify regarding the EEO process, his/her deliberations with regard to each of the

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Plaintiff's allegations and the grounds upon which he/she based the determinations.

Accordingly, in the instant case, the EEOC interview notes should be excluded

because they raise questions of trustworthiness and because the potential probative

value of them are substantially outweighed by the danger of creating unfair prejudice

in the minds of the jurors and confusion of the issues.

EVIDENCE REGARDING WARNING NOTICES 

ISSUED TO MCNABB

3. The defendant has also identified via its Exhibit List for trial its intent

to introduce a stack of Warning Notices issued to the Plaintiff going back as far as ten

years. The last Warning Notice the Plaintiff received was on May 2, 2005,

approximately ten and twelve months, after his reapplying for work with the

Defendant. For the reasons as set forth herein, such evidence is irrelevant,

immaterial, would result in undue and unfair prejudice to the Plaintiff, and would

confuse the jury and is thus due to be excluded from trial pursuant to Federal Rules

of Evidence 401, 402 and 403. 

4. It is undisputed in this case that the Plaintiff was not rehired in March

or May of 2006. The Defendant now wants to introduce wholly irrelevant evidence

regarding the Warning Notices the Plaintiff received approximately one year earlier.

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5. Federal Rule of Evidence 402 states that only evidence which is relevant

to the legal issues in this case may be admitted as competent evidence. "Relevant"

evidence is defined as "evidence having 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 wold be without the evidence." Fed.R.Evid. 401. As set out above,

the evidence sought to be introduced by the defendant has no relevance to the legal

issues at hand of whether the Plaintiff was subjected to age discrimination and

retaliation nor to the Defendant's defenses to said claims. Thus, such evidence is

irrelevant and excludable under Fed.R.Evid. 401 and 402.

6. However, even if this Court finds that the above evidence has some

probative value, it is still excludable under Fed.R.Evid. 403, as such evidence is

substantially more prejudicial than probative and would serve only to unfairly

prejudice the Plaintiff and to confuse and mislead the jurrors. Fed.R.Evid. 403 only

allows for the admission of relevant evidence which is not unduly prejudicial. As the

comments to Rule 403 state, the Rule is intended to prohibit evidence which,

although may have somewhat probative value, should be excluded based on the fact

that it may induce a decision based on emotion or prejudice. See, Fed.R.Evid.,

Advisory Committee Notes, 1972. 

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7. Rule 403 also allows the exclusion of evidence which may confuse the

jury. In the instant case, the pertinent legal issues are whether the Defendant

discriminated against the Plaintiff on the basis of his age and whether it retaliated

against him for reporting and opposing said discrimination. The subsequent Warning

Notices, some of which are ten-years old, are unrelated to the above stated queries

and have little, if any, probative value. Accordingly, the potential for unfair prejudice

substantially outweighs any probative value such evidence may have and it is due to

be excluded under Fed.R.Evid. 403. Further, allowing evidence which focuses on

such issues will only serve to prejudice the Plaintiff and confuse the jury, as it will

tend to focus the jury on the prior job performance of McNabb which is not at issue

nor relevant to any element of any claim or defense in this matter. Further, certain

members of the jury may find such evidence objectionable and may decide this case

on that basis. Thus, such evidence is further due to be excluded pursuant to

Fed.R.Evid. 403. 

EVIDENCE REGARDING PLAINTIFF’S PAST

CRIMINAL HISTORY AND/OR ARREST RECORD

8. At deposition Plaintiff was questioned and/or testified about his past

involvement with the police, including being arrested several times in the 70's, 80's

and 90's for various offenses such as DUI, DWI, and carrying a pistol without a

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permit. None of these instances, or any documents, testimony or other evidence

regarding each of them, are admissible and should be excluded under Federal Rules

of Evidence 402, 403, 404, and 609. 

9. First, such evidence is wholly irrelevant as it has absolutely no bearing

on the legal issues presently at bar. As already set out herein, Fed.R.Evid. 402 states

that only evidence which is relevant to the legal issues in this case may be admitted

as competent evidence and “relevant” evidence is defined as “evidence having 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.”

Fed.R.Evid. 401. 

10. Plaintiff’s past involvement with law enforcement is simply not

relevant to the legal issues at hand of whether the Plaintiff was discriminated against

and subsequently retaliated against in response to his complaint of such

discrimination. Such evidence would in no way have any tendency to make any fact

of consequence in this suit more probable or less probable than it would be absent

such evidence; thereby rendering such evidence absent of any probative value and

inadmissible under Fed.R.Evid. 402.

11. Even if such evidence was found to be marginally relevant, it is

excludable under Fed.R.Evid. 403 as it would be unduly and unfairly prejudicial to

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Plaintiff and would serve only to confuse and mislead the jurors. In the instant case,

the pertinent legal issues are whether the Defendant discriminated against the Plaintiff

based on his age and whether the Defendant retaliated against the Plaintiff for his

report of said discrimination. 

12. Plaintiff’s past involvement with law enforcement and his arrest and/or

conviction record have little, if any, probative value in this suit. Accordingly, the

potential for unfair prejudice to Plaintiff substantially outweighs any probative value

such evidence may have and it is due to be excluded under Fed.R.Evid. 403. Further,

allowing evidence which focuses on such issues will only serve to prejudice the

Plaintiff and confuse the jury, as it will tend to focus the jury on aspects of the

Plaintiff’s past and lifestyle which are not at issue. 

13. What is more, certain members of the jury may find such evidence

objectionable and may decide this case on that basis. Thus, such evidence is due to

be excluded pursuant to Fed.R.Evid. 403. Likewise, such evidence is inadmissible

character evidence under Fed.R.Evid. 404. Specifically, Fed.R.Evid. 404(b) provides

that “evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith.” Plaintiff

anticipates the Defendant will attempt to introduce evidence of the past crimes,

wrongs, or acts described above in order to show the Plaintiff’s “bad” character and

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to show conformity therewith, as such evidence would have no other possible

relevance in this case other than to show “conformity,” as is expressly precluded by

the Rule. Accordingly, such evidence of Plaintiff’s past arrest and/or conviction

record is inadmissible character evidence under Fed.R.Evid. 404. 

14. Such evidence concerning convictions is also inadmissible pursuant to

Fed.R.Evid 609(a) which states that evidence that a witness has been convicted of a

crime is to be admitted only if the crime was punishable by death or imprisonment in

excess of one year under the law under which the witness was convicted, and the

Court determines that the probative value of admitting this evidence outweighs its

prejudicial effect, or the crime involved dishonesty or false statement, regardless of

punishment. Therefore, any evidence of Plaintiff’s conviction for crimes not

involving dishonesty or false statement should not be allowed.

EVIDENCE REGARDING THE PLAINTIFF’S PAST 

HISTORY OF ALCOHOL AND/OR NON-PRESCRIPTION DRUG USE

15. At deposition the Plaintiff was questioned and/or testified about his past

history of alcohol and/or non-prescription drug use. (Ex. 1, McNabb Dep. pp. 23-24).

None of these instances, or any documents, testimony or other evidence regarding

them, are admissible and should be excluded under Federal Rules of Evidence 402,

403 and 404. 

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16. Plaintiff anticipates the Defendant will try to present evidence at trial

regarding the Plaintiff’s use of alcohol and other drugs as set out above. Such

evidence is due to be excluded as it is wholly irrelevant to this action. Federal Rule

of Evidence 402 states that only evidence which is relevant to the legal issues in this

case may be admitted as competent evidence. “Relevant” evidence is defined as

“evidence having 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.” Fed.R.Evid. 401. 

17. Plaintiff’s use of alcohol and/or non-prescription drugs is not relevant

to the legal issues at hand of whether the Plaintiff was discriminated against because

of his age and whether he was subsequently retaliated against in response to his

complaint of such discrimination. 

18. The Defendant has at no time plead or otherwise asserted any form of

Defense to Plaintiff’s claims which would conceivably establish any basis of

relevance for such evidence. The Defendant has never made any assertion that any

actions were taken against the Plaintiff because of his alleged use of alcohol and/or

non-prescription drugs.

19. However, even if this Court were to find that the above evidence has

some probative value, it is still excludable under Fed.R.Evid. 403, as such evidence

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is substantially more prejudicial than probative and would serve only to unfairly

prejudice the Plaintiff and to confuse and mislead the jurors. Fed.R.Evid. 403 only

allows for the admission of relevant evidence which is not unduly prejudicial. As the

comments to Rule 403 state, the Rule is intended to prohibit evidence which,

although may have somewhat probative value, should be excluded based on the fact

that it may induce a decision based on emotion or prejudice. See, Fed.R.Evid.,

Advisory Committee Notes, 1972. Rule 403 also allows the exclusion of evidence

which may confuse the jury. 

20. In the instant case, the pertinent legal issues are whether the Defendant

subjected Plaintiff to discrimination on the basis of age and whether the Defendant

retaliated against the Plaintiff for his report of said discrimination. Plaintiff’s

struggles with alcohol and non-prescription drug use have little, if any, probative

value. Accordingly, the potential for unfair prejudice substantially outweighs any

probative value such evidence may have and it is due to be excluded under

Fed.R.Evid. 403. 

21. Further, allowing evidence which focuses on such issues will only serve

to prejudice the Plaintiff and confuse the jury, as it will tend to focus the jury on the

Plaintiff’s private activities and lifestyle which are not at issue. Further, certain

members of the jury may find such evidence objectionable and may decide this case

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on that basis. Thus, such evidence is due to be excluded pursuant to Fed.R.Evid. 403.

22. Likewise, such evidence is inadmissible character evidence under

Fed.R.Evid. 404. Specifically, Fed.R.Evid. 404(b) provides that “evidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order

to show action in conformity therewith.” Similarly, under Fed.R.Evid. 404(a), other

forms of circumstantial “evidence of a person’s character or a trait of character” is not

admissible for the same purpose. 

23. Despite the absolute irrelevancy of said evidence, Plaintiff anticipates

the Defendant may attempt to introduce such evidence, either circumstantially or via

evidence of past acts, in order to show the Plaintiff’s alleged “bad” character and to

show conformity therewith, as such evidence would have no other possible relevance

in this case other than to show “conformity,” as is expressly precluded by the Rule.

Accordingly, such evidence of Plaintiff’s use of alcohol and/or non-prescription drugs

is inadmissible character evidence under Fed.R.Evid. 404. 

WHEREFORE, PREMISES CONSIDERED, pursuant to Rules 401, 402, 403,

404, 609, and 803 of the Federal Rules of Evidence and applicable Eleventh Circuit

case law, the Plaintiff respectfully requests this Honorable Court to enter an Order

excluding from the trial of this case all evidence and questioning relating to any of

the evidentiary matters as addressed above. 

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Respectfully submitted,

/s/Roderick T. Cooks

Attorney for the Plaintiff

OF COUNSEL:

WINSTON COOKS, LLC

The Penick Building

319-17th Street North

Birmingham, AL 35203

Tel: (205)502-0970

Fax: (205)251-0231

email: rcooks@winstoncooks.com

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing document on all

persons listed below by CMF/Electronic Mail and/or U. S. Mail, postage prepaid and

addressed to them as follows:

Matthew M. Baker, Esq.

Cervera, Ralph & Reeves, LLC

P.O. Box 325

914 South Brundidge Street

Troy, Alabama 36081

(334) 566-0116

Done this the 13th day of November, 2007.

/s/Roderick T. Cooks

Of Counsel 

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