IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CAROLYN J. WHITE, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 14-0484-WS-C

 )

JOHN M. McHUGH, etc., )

 )

Defendant. )

ORDER

 This action is before the Court on the defendant’s motion in limine. (Doc. 

38). The motion contains four parts: (1) evidence of other acts of discrimination 

or retaliation beyond the two denials of promotion made the basis of this action; 

(2) testimony by the plaintiff as to her qualifications and those of the successful 

applicants; (3) testimony by the plaintiff as to Army personnel policies, procedures 

and practices; and (4) testimony by the plaintiff as to the motivations of those 

involved in the personnel decisions made the basis of this action. (Id. at 1-2). The 

plaintiff has filed a response, (Doc. 44), and the motion is ripe for resolution.

I. Other Acts.

The denials of promotion made the basis of the action occurred in 2011 and 

2012. The defendant predicts the plaintiff will offer evidence regarding several 

other employment decisions involving herself: a 2009 denial of her application for 

a lateral transfer to the Mobile District; a 2009 denial of her application for a 

position on a regional quality assurance team; a 2009 denial of her application for 

a supervisory accountant position; and a 2012 promotion to a lead accountant 

position that was accompanied by a delayed start date, low pay rate and denial of a 

private office. The defendant predicts the plaintiff will also offer evidence that a 

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position for which she did not apply remained open despite a black employee 

being recommended to fill it, leading to an internal EEO complaint against a

person who sat on two selection panels that passed over the plaintiff. (Doc. 38 at 

2-4).1 

The defendant believes all this evidence is irrelevant under Rule 401 

because it goes beyond the scope of the two promotions as to which relief is 

sought and because the plaintiff pursued no timely administrative relief as to these 

incidents. (Doc. 38 at 5-8). The defendant adds a general objection based on Rule 

403. (Id. at 8-9). 

The plaintiff’s failure timely to exhaust her administrative remedies as to 

certain allegedly discriminatory adverse employment actions precludes her from 

suing upon them, as she concedes. (Doc. 44 at 5). It does not, however, of its own 

force preclude her from using evidence of such actions in support of the claims she 

has brought. The defendant cites no authority in support of its contrary position.

“The question whether evidence of discrimination by other supervisors is 

relevant in an individual ADEA case is fact based and depends on many factors, 

including how closely related the evidence is to the plaintiff’s circumstances and 

theory of the case. Applying Rule 403 to determine if evidence is prejudicial also 

requires a fact-intensive, context-specific inquiry.” Sprint/United Management 

Co. v. Mendelsohn, 552 U.S. 379, 388 (2008). As with the ADEA, so with Title 

VII. Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1258 (11th Cir. 2014).2

 1 The defendant identifies a non-party witness as a potential source of additional 

testimony regarding “several incidents that occurred well prior to” the two denials of 

promotion. (Doc. 38 at 4). Because the defendant does not identify these incidents, the 

Court does not address them separately. 

2 The defendant cites the Court’s dicta in Bell v. Crowne Management, LLC, 844 

F. Supp. 2d 1222 (S.D. Ala. 2012), for the proposition that, to be relevant, “the other 

incidents must implicate a common decisionmaker.” Id. at 1236. The Court extrapolated 

this rule from Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008), 

but other courts have questioned whether Goldsmith can be read so broadly. Cox v. 

Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107, 122 n.13 (Mo. 2015) (en banc). 

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The defendant quotes Denney v. City of Albany, 247 F.3d 1172 (11th Cir. 

2001), for the proposition that “courts are reluctant to consider ‘prior bad acts’ in 

this [employment discrimination] context where those acts do not relate directly to 

the plaintiffs.” Id. at 1189. Reluctant, however, is not the same as forbidden; the 

Denney Court itself acknowledged that distinctions of time, applicant pool and 

selection process “weigh heavily against attaching a great deal of probative value 

to” the prior situation but “may not totally deprive [the prior conduct] of its 

persuasive force as evidence of [the decisionmaker’s] intent to discriminate 

against whites; a key similarity is that [the prior situation] involved the same actor 

making the same kind of personnel decision.” Id. Ultimately, the Denney Court 

ruled only that the plaintiff had offered “insufficient persuasive evidence” to 

escape summary judgment. Id. at 1190. The instant motion, however, involves 

admissibility, not sufficiency. 

Much of the evidence to which the defendant objects concerns the 

treatment of the plaintiff; much of it concerns the conduct of Jim Farnell, who 

allegedly discriminated and retaliated against her with respect to the promotions 

made the basis of this action; and much of it concerns promotions and other jobplacement decisions. As reflected above, the decision whether to admit such 

evidence requires a “fact-intensive, context-specific inquiry,” one in which the 

defendant has not engaged. Its motion in limine is therefore denied.

II. Relative Qualifications.

The individuals promoted over the plaintiff in 2011 and 2012 were Jason 

Beard and Janet Frye, respectively. The defendant is concerned that the plaintiff 

may testify: that she had staffed a supervisory accountant position on a permanent 

basis, while Frye had not; that she had held a variety of positions, rendered above 

 

In any event, in light of Mendelsohn (which was decided a month after Goldsmith), “the 

admissibility of evidence of discrimination by other supervisors is not governed by a 

categorical rule ....” Adams, 754 F.3d at 1258.

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average performance, and secured a number of noteworthy accomplishments; that 

she was the first in the region to obtain a CDFM, which is the gold standard for 

Department of Defense financial managers; that she performed exceptionally well 

in all positions she held; that she had performed well in a number of supervisory 

positions, while Beard had never held a supervisory position; and that she had 

trained Frye when she was a co-op student. The defendant also believes the 

plaintiff may testify that the person promoted to a supervisory accountant position 

in 2009 had no degree, had only 24 hours of accounting classes, had no 

certification, and had returned to the Mobile District only a few years before her 

promotion. Finally, the defendant believes the plaintiff may testify that she was 

better qualified than Beard and Frye. (Doc. 38 at 9-10).

The defendant describes all the foregoing as irrelevant under Rule 401, on 

the grounds that a plaintiff cannot offer opinions regarding her own qualifications, 

absolute or relative to others. (Doc. 38 at 10-12). The defendant adds another 

general objection based on Rule 403. (Id. at 12).

As a threshold matter, much of the testimony to which the defendant 

objects cannot be classified as opinion. Education, experience, honors, 

certifications and so forth – one’s own or someone else’s – are not matters of 

opinion but of fact.

It is true that an employer is generally free to determine its own 

qualifications for a position and is also free to evaluate the relative qualifications 

of various applicants, so long as it is not masking a discriminatory or retaliatory 

motive. But the defendant has failed to show that this means a plaintiff is 

forbidden to present evidence of what she considers her qualifications or to engage 

in a comparison of those qualifications with those of other applicants. Such a 

showing would be difficult, given that, “[u]nder this Court’s decisions, 

qualifications evidence may suffice, at least in some circumstances, to show 

pretext.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006). While the 

defendant’s cases support the proposition that a plaintiff’s conclusory, subjective 

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opinion that she is better qualified is not of itself sufficient evidence of 

discrimination to withstand summary judgment, the question before the Court is 

again admissibility, not sufficiency. For lack of offered support, the defendant’s 

motion in limine is denied. 

III. Personnel Policies, Procedures and Practices.

The defendant believes the plaintiff will testify: that the interview process 

did not comport with governing guidelines; that the Corps did not maintain 

documents as required by regulation and perhaps by consent decree; that Farnell 

should not have served as panel chair while the plaintiff had an EEO complaint 

pending against him; that he should have retained all notes for the same reason; 

and that the selection panel did not follow the defendant’s corporate recruitment 

strategy. (Doc. 38 at 13). The defendant may also anticipate testimony of 

additional, unidentified unwritten practices and their violation. (Id. at 13-14). 

The defendant describes this testimony as hearsay and as impermissible 

opinion evidence. Once again, the defendant also nods at Rule 403 without 

providing any analysis of that rule or its application here. (Doc. 38 at 13-14). 

The plaintiff does not respond to the defendant’s motion. Because the 

plaintiff identified no expert witnesses in the joint pretrial document, (Doc. 33-3), 

she may not testify as an expert as to the defendant’s personnel policies, 

procedures or practices. Nor does it appear likely that she could offer a legitimate 

lay opinion under Rule 701 as to personnel matters. But the defendant has failed 

to demonstrate that the plaintiff lacks personal knowledge as to the content and 

application of the policies, procedures and practices, which knowledge 

presumably would permit her to testify regarding such things as a fact witness. 

Likewise, the defendant has failed to show that the plaintiff lacks personal 

knowledge as to whether specific requirements were or were not followed. 

Accordingly, the defendant’s motion in limine is denied.

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IV. Motivation.

Finally, the defendant asserts that the plaintiff should not be permitted to 

testify that she believes she was passed over for promotion due to the 

discriminatory and/or retaliatory animus of multiple panel members. Such 

evidence, the defendant argues, constitutes impermissible lay opinion testimony 

and should be excluded under Rules 401 and 403. (Doc. 38 at 14-16).

The defendant relies on Second Circuit precedent for the proposition that a 

plaintiff may not tell the jury she believes she has been the victim of 

discrimination or retaliation. See Village of Freeport v. Barrella, 814 F.3d 594, 

611 (2nd Cir. 2016); Hester v. BIC Corp., 225 F.3d 178, 185 (2nd Cir. 2000). In 

fact, neither Barrella nor Hester addressed testimony by the plaintiff but rather 

testimony by third-party witnesses. 

At any rate, the rule for which the defendant contends appears not to have 

been adopted by the Eleventh Circuit, and the Court declines to anticipate that it 

will do so. While Rule 701 surely serves as a bulwark against opinions that 

merely tell a jury what verdict to reach, the plaintiff’s opinion that she lost 

promotions due to race/sex/age discrimination and/or retaliation does not tell the 

jury to rule in her favor but simply explains why she is bringing suit; indeed, 

precluding a plaintiff from making this basic statement might suggest to some 

jurors that she does not believe in the validity of her own cause. While there may 

be limits on how far a plaintiff can go in offering such testimony, the defendant’s 

cursory motion does not plumb them. Accordingly, its motion in limine is denied. 

DONE and ORDERED this 11th day of May, 2016.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

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