IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

KIMBERLY BLACK, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 14-0442-WS-N

 )

GARY REYNOLDS, et al., )

 )

Defendants. )

ORDER

This matter is before the Court on five motions in limine filed by the 

defendants. (Docs. 90, 92-94, 96). The plaintiff has filed a global response, (Doc. 

105), and the motions are ripe for resolution.

I. Evidence of Other Lawsuits.

The defendants seek exclusion of evidence “regarding other lawsuits and 

judgments,” specifically a class action lawsuit. (Doc. 90 at 1). The defendants 

raise: (1) the prior bad acts exclusion (Rule 404(b)); (2) irrelevance (Rule 402); 

(3) hearsay (Rule 802); and (4) prejudice (Rule 403). (Id. at 2).

Evidence of prior bad acts is not admissible for the purpose of showing the 

defendants acted in this case in conformity with the character reflected by the prior 

bad acts. Fed. R. Evid. 404(b)(1). However, such evidence “may be admissible 

for another purpose.” Id. Rule 404(b)(2). The plaintiff relies on this exception. 

(Doc. 105 at 1-2).

“Any employer who violates the provisions of ... section 207 of this title 

shall be liable to the employee or employees affected in the amount of their ... 

unpaid overtime compensation ... and in an additional equal amount as liquidated 

damages.” 29 U.S.C. § 216(b). Thus, “[w]hen the jury finds an employer has 

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violated the overtime provision of the FLSA and assesses compensatory damages, 

the district court generally must add an award of liquidated damages in the same 

amount ....” Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 

1163 (11th Cir. 2008). 

[I]f the employer shows to the satisfaction of the court that 

the act or omission giving rise to such action was in good faith and 

that he had reasonable grounds for believing that his act or omission 

was not a violation of the [FLSA], the court may, in its sound discretion, 

award no liquidated damages or award any amount thereof not to exceed 

the amount specified in section 216 of this title. 

29 U.S.C. § 260. “The employer bears the burden of establishing both the 

subjective and objective components of that good faith defense against liquidated 

damages.” Alvarez Perez, 515 F.3d at 1163. 

Should the jury find for the plaintiff on her FLSA claim, and should the 

defendants resist an award of liquidated damages,1 evidence of other FLSA actions

could be offered as evidence that the defendants lacked objective or subjective 

good faith. This would be a purpose other than to show the defendants violated 

the FLSA vis-à-vis the plaintiff and thus would not be barred by Rule 404(b).

The defendants say that evidence of the class action is irrelevant because 

the plaintiff “has introduced no evidence that the other lawsuit ... involves the 

same decision-makers, the same locations, or the same circumstances.” (Doc. 90 

at 3). Of course, the plaintiff need not “introduce [her] evidence” prior to trial, so 

her failure to do so is not fatal. The defendants by their ipse dixit have not shown 

that the circumstances of the class action are so alien to this case as to be 

completely nonprobative of whether they (and especially the corporate defendant) 

did or did not act in good faith in this case. Thus, the relevance vel non of the 

evidence cannot be determined presently, and that question remains open.

 1 The defendants indicate they will do so. (Doc. 85 at 7).

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The defendants say that evidence of the class action is excludible hearsay. 

But evidence is hearsay only if it is offered “to prove the truth of the matter 

asserted in the statement.” Fed. R. Evid. 801(c)(2). It would appear open to the 

plaintiff to argue that she is not offering the evidence to prove that the defendants 

in fact violated the FLSA on other occasions but to prove, for example, that the 

lawsuits should have prompted the defendants to more adequately investigate their 

duties under the FLSA and/or to form different conclusions as to those duties in 

the circumstances of her case, as may be relevant to the good faith analysis. 

The defendants find prejudice in the potential of such evidence to “inflame 

the jury” and to “mislea[d] the jury.” (Doc. 90 at 4). Liability for liquidated 

damages, however, is decided by the Court, not the jury, so the jury will not hear 

such evidence before determining whether the plaintiff has proved the existence of 

an FLSA violation.

The plaintiff identifies no legitimate reason to present evidence regarding 

the class action to the jury, and the Court detects none. As the parties 

acknowledge, (Doc. 85 at 2), the employer’s intent is irrelevant to an FLSA 

violation. While the jury decides questions of willfulness, e.g., Morgan v. Family 

Dollar Stores, Inc., 551 F.3d 1233, 1282 (11th Cir. 2008), there is no willfulness 

issue presented in this case. The defendants listed willfulness in the joint pretrial 

document as an affirmative defense,

2 but willfulness is relevant only for the 

purpose of extending the limitations period from two years to three years. 

Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1274 (11th Cir. 2008). 

The plaintiff was hired in December 2012, (Doc. 70 at 38), and she filed suit in 

September 2014, less than two years later, so the entire period of her employment 

– and the defendants’ entire period of potential liability – falls within the two-year 

period.

 2 In fact, lack of willfulness is not an affirmative defense; instead, willfulness 

must be proved by the plaintiff. Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 

1274 (11th Cir. 2008). 

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For the reasons set forth above, the defendants’ motion in limine is granted 

in part. The plaintiff and her witnesses are precluded from suggesting to the jury, 

by evidence, comment or otherwise, the existence of other lawsuits against the 

defendants, including the class action. The plaintiff’s ability to offer such 

evidence to the Court, following any jury verdict in favor of the plaintiff, remains 

open, and to that extent the motion in limine is denied. 

II. Evidence of Fines Payable to the Department of Labor.

The Secretary of Labor or his designee is authorized by statute to pursue 

and recover civil penalties of up to $1,100 per repeated or willful violation of the 

overtime requirements of the FLSA. 29 U.S.C. §§ 216(e)(2), -(3)(B), -(3)(C), -(4) 

and -(5). In the joint pretrial document, the plaintiff disclosed an intent to address 

this provision at trial. (Doc. 85 at 4). The defendants correctly object that such 

evidence is irrelevant to any issue in this lawsuit and likely is unfairly prejudicial. 

(Doc. 92). The plaintiff does not oppose the defendants’ motion. (Doc. 105 at 3).

For the reasons set forth above, the defendants’ motion in limine is 

granted. The plaintiff and her witnesses are precluded from suggesting to the 

jury, by evidence, comment or otherwise, the existence or applicability of the 

penalty provision. 

III. Evidence Relating to Dismissed Claims.

The Court has dismissed the plaintiff’s Title VII claims as well as her 

contract claim. The defendants seek the exclusion of “any evidence relevant to 

any of [the plaintiff’s] dismissed claims.” (Doc. 93 at 3). The plaintiff does not 

oppose the defendants’ motion. (Doc. 105 at 4). For the reasons set forth above, 

the defendants’ motion in limine is granted. The plaintiff is precluded from 

offering evidence that is not relevant to her remaining FLSA claim.

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IV. Evidence Regarding Failure to Pay Other Employees Overtime.

The plaintiff apparently intends to offer evidence from several past and 

present local employees regarding “their off-the-clock work.” (Doc. 105 at 3). 

The defendants assert vaguely that such evidence is irrelevant to the plaintiff’s 

case, (Doc. 94 at 1-2), but neither of the two cases they cite supports the 

proposition.3 The parties agree that an element of the plaintiff’s case is that the 

employer “knew or had reason to believe that Black worked additional hours for 

which she was not paid.” (Doc. 85 at 2). The defendants have not explained why 

evidence that other local employees also worked off the clock – the plaintiff 

describes it as a “common practice,” (id. at 3) – would not be relevant to whether 

the defendants had reason to believe the plaintiff was doing so. 

The Court does not rule that such evidence is admissible, but the defendants 

have failed to show that it is not admissible. Accordingly, their motion in limine 

is denied.

V. Testimony of Martha Lester.

The defendants object that this witness was not identified until she was 

listed by the plaintiff in the final pretrial document. (Doc. 96). The defendants 

correctly point out that this is a grossly tardy disclosure. The plaintiff does not 

oppose the motion.

For the reasons set forth above, the motion in limine is granted. The 

plaintiff is precluded from calling Martha Lester as a trial witness.

DONE and ORDERED this 2nd day of February, 2016.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE 

 3 One addresses “me, too” evidence in an employment discrimination case, while 

the other, although an FLSA case, addresses discovery regarding persons who did receive 

overtime compensation, not persons who earned it but were not paid for it.

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