UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JAMES W. DAVIS,

Plaintiff, CASE NO. 4:11-cv-00107-RH-WCS

vs.

DEPARTMENT OF JUVENILE JUSTICE

STATE OF FLORIDA, 

Defendant.

______________________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S 

MOTION IN LIMINE 

Plaintiff, JAMES W. DAVIS, through counsel, files this Response in Opposition to

Defendant’s Motion in Limine as follows:

I. SUMMARY OF ARGUMENT

The Department is improperly attempting to exclude highly probative evidence

regarding Mr. Davis’ work performance. The arguments made by the Department herein

go to the weight, not the admissibility, of the evidence. Mr. Davis worked for the

Department for more than a quarter of a century. After being supervised by Mary Mills

for only approximately 18 months, he was fired by Ms. Mills for alleged poor

performance. Mr. Davis’ performance is at the heart of this case and the individuals who

worked with and for Mr. Davis have knowledge directly relevant to pretext. The

argument that this evidence is prejudicial to Mr. Davis is without merit. Mr. Davis, not

the Department, who would be severely prejudiced if this testimony is excluded. 

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II. FACTUAL BACKGROUND

Mr. Davis worked for the Department from 1982 through his termination in July

2009. During that time he rose to the position of Operations Management Consultant

Manger. He worked for the Department for over twenty-five years with a spotless

record, glowing evaluations, and not a single disciplinary action. It was not until Ms.

Mills became his supervisor in 2007 that Mr. Davis received substandard performance

evaluations, a written reprimand, and was ultimately fired within approximately eighteen

months. One of the components of Plaintiff’s pretext argument is the falsity of the

Department’s stated reason of poor performance. In support of this argument, Mr. Davis

intends to offer testimony from his two most recent supervisors prior to Ms. Mills,

several subordinates, and the personnel liaison that worked closely with Mr. Davis, in the

same office with him in Pensacola. 

III. ARGUMENT

A. RELEVANCE

It is axiomatic that, in order to be admissible, testimony must be relevant. Rule

402, Fed.R.Evi. Further, relevant evidence is not admissible “if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury . . . “ Rule 403, Fed.R.Evid. 

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Contrary to the Department’s assertions, all of the anticipated testimony is highly

relevant and there is not a shred of evidence which is unfairly prejudicial, confusing, or

misleading. Further, each witness has the requisite personal knowledge and there is no

improper opinion testimony that Mr. Davis intends to introduce. Further, Mr. Davis does

not intend on introducing any inadmissible hearsay testimony. 

B. SPECIFIC WITNESSES AT ISSUE

1. John Tallon

Mr. Tallon supervised Mr. Davis from 2001 through 2005. His supervision of Mr.

Davis preceded Ms. Mills by only two years. Mr. Tallon is expected to unequivocally

testify that Mr. Davis was “one of the best employees” he has ever supervised. His

testimony regarding Mr. Davis’ exceptional work performance during the time that he

supervised Mr. Davis most certainly casts doubt on Ms. Mills’ assertion that Mr. Davis’

performance was substandard. Mr. Tallon gave Mr. Davis outstanding performance

appraisals, never disciplined Mr. Davis, highly respected Mr. Davis, and never had any

problems with Mr. Davis. Mr. Davis does not intend to inquire of Mr. Tallon about Mr.

Davis’ work performance subsequent to the time period that he supervised Mr. Davis. 

However, from his experience and observations of Plaintiff from 2001 through 2005, the

jury may determine that Ms. Mills’ contention that Plaintiff was a bad supervisor is

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unworthy of credence, thus establishing pretext. Thus, Mr. Tallon’s testimony is directly

relevant to a central issue in this case. 

2. Debra Sasser

Ms. Sasser was directly supervised by Mr. Davis. The Department’s assertion that

Ms. Sasser lacks personal knowledge of “any material facts” is specious, at best. It is Mr.

Davis’ supervision of Ms. Sasser that Ms. Mills primarily criticizes. Ms. Sasser’s

knowledge of Mr. Davis’ responsiveness to issues is directly relevant to Ms. Mills’

assertion that Mr. Davis lacked such responsiveness. Additionally, Ms. Sasser can offer

direct evidence to counteract several specific allegations made by Ms. Mills regarding

Mr. Davis’ poor performance. Therefore, Ms. Sasser has highly relevant information to

offer at trial regarding pretext. 

As further evidence of pretext, Ms. Sasser has knowledge of actions taken by Ms.

Mills to interfere in Mr. Davis’ ability to supervise his subordinates. Ms. Sasser has direct

knowledge of Ms. Mills’ changing of the rules, as these changes applied to her job and

further has direct knowledge of Ms. Mills’ interference in Mr. Davis’ management of his

staff as she witnesses it first hand as one of Mr. Davis’ subordinates. This interference

adversely affected Mr. Davis’ ability to do his job and is directly relevant to Plaintiff’s

“bootstrap” argument relative to pretext. See Edwards v. Hodel 738 F. Supp. 426 (D.

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Colo 1990)(excuse that blacks were not promoted because they lacked certain training

was found pretextual when it was revealed that blacks had been excluded from that very

training.); Stemmons v. Missouri Department of Corrections, 82 F.3d 817 (8 Cir. th

1996)(jury verdict of race discrimination upheld where, as part of evidence of pretext,

the plaintiff was criticized for the way she was dressed for the interview but was

prohibited by her supervisor from leaving her class early to change clothes for the

interview and just before the interview, the superintendent of the institution spoke

demoralizing words to her, which caused her to be upset during the interview).

Plaintiff has no intention of offering any hearsay testimony regarding Ms. Sasser’s

conversation with a Wakulla county public defender. 

3. Greg Brown

Mr. Davis does not intend to offer any testimony by Mr. Brown regarding his

opinion of Plaintiff as a supervisor.

4. Wanda Horgan

Contrary to the Department’s assertion, Ms. Horgan has directly relevant

knowledge of several issues in this case. Ms. Horgan was the personnel liaison for the

North Region and worked in the Pensacola office, the same office as Mr. Davis. She has

direct personal knowledge of Mr. Davis’ handling of certain personnel matters and his

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demeanor with his staff, as she had the opportunity to directly observe his interaction

with his staff on a daily basis. Furthermore, Ms. Horgan can offer highly probative

testimony regarding pretext with respect to the Department’s failure to follow its own

procedures in firing Mr. Davis. Prior to Mr. Davis’ termination Ms. Horgan was not

consulted or advised with respect to the termination. This was the first time in her

career as personnel liaison that she was not consulted on a disciplinary action regarding

an employee in the North Region. There is nothing speculative about this testimony. It

is a plain and simple fact. This testimony by Ms. Horgan is relevant to pretext and is

thus admissible. 

5. Suzanne Chambers

Similar to Ms. Sasser, Ms. Chambers was a direct subordinate of Mr. Davis and has

direct first hand knowledge of the actions and/or inactions Mr. Davis took with regard to

supervising her. Ms. Chambers can offer direct evidence to counteract several specific

allegations made by Ms. Mills regarding Mr. Davis’ poor performance. This testimony is

again directly relevant to pretext.

C. RULE 403

The evidence Defendant seeks to exclude is highly probative to Plaintiff’s proof of

pretext. If this evidence is excluded the jury will not be able to accurately assess all of

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the relevant evidence relative to Mr. Davis’ exemplary performance in his more than

twenty-five (25) years with the Department, evidence relative to the Department’s failure

to adhere to its own policies, and Ms. Mills’ actions which interfered with Plaintiff’s

ability to perform his job. Therefore, Plaintiff will be prejudiced if this evidence is

excluded at trial.

For all the reasons stated above as well Defendant’s Motion should be denied. 

Respectfully submitted,

 /s/ Erika E. Goodman 

Erika E. Goodman [FBN 0060951]

ERIKA E. GOODMAN, P.A.

2931 Kerry Forest Parkway, Suite 202

Tallahassee, Florida 32309

(850) 210-1100 (telephone)

(850) 210-1190 (facsimile)

COUNSEL FOR PLAINTIFF

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing notice has been

furnished by CM/ECF to all counsel of record this 27 day of March, 2012. th

/s/ Erika E. Goodman

Erika E. Goodman 

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