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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

SHERYL HUBBELL, 

 Plaintiff, 

 CASE NO. 14-13897 

 v. HON. GEORGE CARAM STEEH 

 

FEDEX SMARTPOST, INC., 

 Defendant. 

_____________________________/ 

ORDER DENYING MOTIONS IN LIMINE (DOC. 42, 43, 44, 45). 

 Plaintiff Sheryl Hubbell sued her former employer, FedEx Smartpost, 

Inc., alleging violations of Title VII of the Civil Rights Act of 1964 and 

Michigan’s Elliott-Larsen Civil Rights Act (ELCRA). The parties filed 

multiple motions in limine. (Doc. 42, 43, 44, 55). For the reasons stated 

below, the motions are DENIED. 

I. Analysis 

A. Defendant’s Motion in Limine to Exclude Evidence or Argument 

Regarding Dismissed Claims and Other Irrelevant and Unduly 

Prejudicial Evidence (Doc. 42) 

Defendant seeks to prohibit plaintiff from introducing evidence or 

referring to the allegations underlying her dismissed hostile work 

environment claim. Defendant argues that referring to wrongdoing that 
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does not rise to the level of an adverse employment action would severely 

prejudice defendant, waste time, and confuse the jury. 

Plaintiff responds that she does not intend to introduce evidence that 

supports only the dismissed hostile work environment claim. But, plaintiff 

notes that she may introduce evidence that, while relevant to the dismissed 

claim, also supports the discrimination and retaliation claims. Plaintiff 

asserts that this evidence is admissible as background evidence under 

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) and under Fed. 

R. Evid. 404(b) and 406. 

 While Plaintiff may not assert that she experienced a hostile work 

environment, she may introduce evidence of alleged conduct that is 

relevant to the question of whether she suffered an adverse employment 

action. Johnson v. Watkins, No. 3:07CV621 DPJ-JCS, 2010 WL 2671993, 

at *5 (S.D. Miss. June 30, 2010). “In other words, she may offer evidence 

of acts taken against her that she contends ‘might have dissuaded a 

reasonable worker from making ... a charge of discrimination.’” Id. (quoting 

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). 

Defendant’s motion, therefore, is DENIED. But, the Court cautions plaintiff 

that the alleged wrongful conduct may not be relevant. As in Johnson, for 
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example, conduct occurring before the date that plaintiff engaged in 

protected activity is not relevant to retaliation claims. Id. 

 The Court will not rule on the admissibility of this evidence under Fed. 

R. Evid. 403 because it is not clear exactly what evidence plaintiff will offer 

and whether it is reasonably related to the surviving claims. Defendant 

may raise its Rule 403 objection at trial. 

B. Defendant’s Motion in Limine to Exclude Evidence or Argument 

Regarding a 2010 Failure to Promote Claim and a January 2013 

Human Resources Complaint About a Medical Privacy Violation (Doc. 

43) 

 Defendant argues that plaintiff’s 2010 failure to promote allegations 

are improper because (1) she never reported to the EEOC and, as such, 

failed to exhaust her administrative remedies, and (2) it is untimely under 

the ELCRA’s three year statute of limitations. Based on plaintiff’s 

response, it appears she merely intends to use the incident as background 

evidence only. As such, defendant’s arguments fail. The EEOC filing 

requirement does not prohibit plaintiff from using this prior act as 

background evidence in support of a timely claim. Morgan, 536 U.S. at

113. Further, even if this event is untimely under the ELCRA, allegations of 

events occurring before the relevant statutory period can be used as 
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background evidence. See Campbell v. Human Servs. Dep't, 780 N.W.2d 

586, 590-92 (2009). 

 Defendant also argues that plaintiff’s January 2013 complaint that 

Todd Treman violated her medical privacy should be excluded because (1) 

it is not a protected activity, and (2) it fails the Best Evidence Rule. 

Pursuant to 42 U.S.C. § 2000e-3(a), a protected activity must relate to an 

employer’s alleged activity that is unlawful under Title VII. While a 

complaint of general mistreatment, like sharing private health information, 

may not constitute a protected activity, here plaintiff is not complaining of 

general mistreatment alone. Instead, plaintiff argues that this incident 

relates to defendant’s alleged Title VII violations because her medical 

information was shared due to her gender and the fact that she filed 

discrimination complaints. Furthermore, plaintiff states that the Best 

Evidence Rule does not prohibit her testimony about this complaint 

because it arises out of oral discussion and is not evidenced by any emails 

or written documents. The Court, therefore, finds that defendant has not 

met their burden to bar this evidence on the grounds that the acts at issue 

are not protected activity and are prohibited by the Best Evidence Rule. As 

such, defendant’s motion in limine is DENIED. 
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C. Defendant’s Motion in Limine to Exclude Improper Evidence 

Regarding Front Pay Damages (Doc. 44) 

 Defendant asserts that aspects of plaintiff’s testimony to prove front 

pay damages should be precluded because it is speculative. 

The Court must consider the following facts in awarding front pay 

damages: 

(1) the employee's future in the position from which 

she was terminated; (2) her work and life 

expectancy; (3) her obligation to mitigate her 

damages; (4) the availability of comparable 

employment opportunities and the time reasonably 

required to find substitute employment; (5) the 

discount tables to determine the present value of 

future damages; and (6) ‘other factors that are 

pertinent in prospective damage awards.

Madden v. Chattanooga City Wide Serv. Dep't, 549 F.3d 666, 679 (6th Cir. 

2008)(internal quotations omitted). The parties purportedly agree that a 

plaintiff may testify regarding information relating to some of these factors, 

including her current pay, job history, and desire to work until retirement 

age. Defendant, however, argues that plaintiff’s testimony will not be able 

to provide information relating to all of these factors. Defendant specifically 

objects to permitting plaintiff to testify about her formula for calculating 

damages and comparisons to the Social Security Work Index. 

 Plaintiff does not made an explicit argument regarding the Madden 

factors. She instead asserts that a court should consider age, employment 
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record, training, education, ability to work, and opportunities for 

advancement. Andler v. Clear Channel Broad., Inc., 670 F.3d 717, 727 

(6th Cir. 2012). Plaintiff believes that her testimony can address each of 

these factors, and therefore, her alleged front pay damages will not be 

speculative. Plaintiff’s reliance on Andler is inappropriate; it addresses 

damages regarding loss of earning capacity caused by injury rather than 

damages resulting from a Title VII violation. Id. at 726. Thus, even if the 

information considered in Andler is also evaluated under some of the 

Madden factors, plaintiff needs to address the remaining Madden factors. 

Plaintiff has not presented information regarding each Madden factor 

in her brief. But, it remains possible that she may be able to produce 

evidence on each factor at trial. Defendant’s motion, therefore, is DENIED. 

The Court, however, cautions plaintiff that she may need to rely on other 

evidence to establish “the essential data necessary to calculate a 

reasonably certain front pay award.” Arban v. W. Pub. Corp., 345 F.3d 

390, 407 (6th Cir. 2003) (internal citations omitted). Failure to provide such 

data may render plaintiff’s claim for front pay damages purely speculative. 

D. Plaintiff’s Motion in Limine to Exclude Defendant’s Proposed 

Exhibit 175 

Plaintiff seeks to exclude defendant’s proposed exhibit 175, arguing 

that it is irrelevant, not a record kept in the normal course of business, and 
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that the probative value is substantially outweighed by a danger of unfair 

prejudice. The proposed exhibit appears to be a large spreadsheet 

containing information of employees hired between the date that Treman 

began working at the Detroit station and the date that plaintiff was 

terminated. (Doc. 45-2 at PageID 1136 – 1170). It includes the 

employees’ names, start dates, sex, most recent title, and “promotion 

information.” (Id.). 

 Plaintiff asserts that the information is not relevant and unfairly 

prejudicial because it misrepresents promotion data. Plaintiff defines a 

promotion as an employee moving into a new position in management. 

(Doc. 45 at PageID 1128). She asserts that some of the data, namely that 

reflecting moves from part-time to full-time employment, does not meet this 

definition. Plaintiff also objects to the document listing employees who 

were hired but not promoted. Plaintiff asserts that the exhibit should be 

prohibited, or at least redacted to include only those employees with 

promotions matching her definition of the term. 

 Defendant asserts that the document is relevant and its probative 

value is not outweighed by a danger of unfair prejudice. The Court agrees. 

Plaintiff’s case centers on allegations that Treman discriminated against 

women by denying them advancement and promotional opportunities. This 
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document illustrates the gender and promotion history of all individuals 

hired from the time that Treman arrived at the Detroit station until plaintiff’s 

termination. For purposes of this ruling, the Court assumes that Treman 

was the decision maker and, if offered as a summary exhibit pursuant to 

Rule 1006, that the underlying data has also been disclosed and will be 

admitted. The Court finds that this information is likely relevant under Fed. 

R. Evid. 402. Further, the Court agrees that the proposed exhibit’s 

probative value is not outweighed by a danger of unfair prejudice. 

Plaintiff’s argument on defining promotions goes to the proposed exhibit’s 

weight, not its admissibility. 

 Defendant also asserts that the proposed exhibit is a record kept in 

the normal course of business. At a pre-trial conference on May 22, 2017, 

defendant stated that it uses PeopleSoft, an electronic software program, to 

maintain employment records in its ordinary course of business. This 

document was generated in response to a query entered into PeopleSoft. 

While the query may have been conducted for the purpose of trial, the 

information that it uncovered was purportedly kept in the ordinary course of 

business. The Court finds this information sufficient to rule that the 

proposed exhibit is a record kept in the ordinary course of business. Any 
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argument plaintiff makes regarding the documents creation post-trial likely 

goes to the weight, not the admissibility, of the exhibit. 

II. Conclusion 

For the reasons stated above, Defendant’s Motion in Limine to Exclude 

Evidence or Argument Regarding Dismissed Claims and Other Irrelevant 

and Unduly Prejudicial Evidence (Doc. 42), Defendant’s Motion in Limine to 

Exclude Evidence or Argument Regarding a 2010 Failure to Promote Claim 

and a January 2013 Human Resources Complaint About a Medical Privacy 

Violation (Doc. 43), Defendant’s Motion in Limine to Exclude Improper 

Evidence Regarding Front Pay Damages (Doc. 44), and Plaintiff’s Motion in 

Limine to Exclude Defendant’s Proposed Exhibit 175 are DENIED. 

 IT IS SO ORDERED. 

Dated: May 25, 2017 

 s/George Caram Steeh 

 GEORGE CARAM STEEH 

 UNITED STATES DISTRICT JUDGE 

CERTIFICATE OF SERVICE 

Copies of this Order were served upon attorneys of record on 

May 25, 2017, by electronic and/or ordinary mail. 

s/Marcia Beauchemin 

Deputy Clerk