Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Simmons v. Morgan Stanley Smith Barney, LLC

United States District Court, S.D. California

February 25, 2014

JOHN SIMMONS Plaintiff,
v.
MORGAN STANLEY SMITH BARNEY, LLC; DOES 1 through 50, inclusive, Defendants.

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are certain motions in limine filed by Defendant Morgan Stanley Smith Barney, LLC and Plaintiff John Simmons.

BACKGROUND FACTS

On December 1, 2011, Plaintiff John Simmons ("Simmons") initiated this action in San Diego Superior Court with a Complaint against Defendant Morgan Stanley Smith Barney, LLC ("MSSB") - his former employer. (ECF No. 1-1). Simmons alleges that Defendant unequally compensated him and ultimately fired him on account of his Mormon religion. The Complaint contains statutory claims for discrimination pursuant to California Government Code section 12940(a) ("FEHA") and 42 U.S.C. § 2000e ("Title VII"), and non-statutory claims for fraud, wrongful termination in violation of public policy, and breach of contract. On December 12, 2011, Defendant removed the action to this Court.

In the Complaint, Plaintiff alleged in part:

Defendant's unjustified termination of the Plaintiff and failure to pay him the promised signing bonuses, stock, and payment of his moving expenses, and failure to provide equal pay for equal work constitutes disparate treatment in that it was based on the fact that Plaintiff is a member of the Church of Jesus Christ of Latter Day Saints....
At all times herein employees of the Defendant made remarks to Plaintiff regarding his religious beliefs. These remarks included references to multiple wives, polygamy, and the fact that Plaintiff was a teetotaler as dictated by his religion. On information and belief, supervisorial employees including but not limited to Mr. Kentfield participated in, were aware of, condoned, and ratified the disparaging behavior committed by the aforesaid employees.

(ECF No. 1-1 at 5).

On May 24, 2012, the Court granted in part a motion filed by Defendant to compel arbitration of Simmons' claims. (ECF No. 37). The Court granted Defendant's motion to compel arbitration as to the non-statutory claims, and declined to compel arbitration of the claims for discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq and California Code § 12940(a). (ECF No. 37).

On July 25, 2013, this Court entered an Order denying Defendant's motion for summary judgment on Plaintiff's claims pursuant to Title VII of the Civil Right Act of 1964, 42 U.S.C. § 2000e et seq. and California Code § 12940(a). (ECF No. 100). This Court concluded that Plaintiff had come forward with sufficient evidence to establish a prima facie case; that Defendant had sufficiently articulated facially nondiscriminatory reasons for Plaintiff's compensation and termination; and that Plaintiff had provided direct evidence creating an issue of fact as to whether a discriminatory reason more likely motivated Defendant.

Trial is set to commence before a Jury on March 11, 2014 on Plaintiff's claims that Defendant unlawfully discriminated against him in violation of Title VII of the Civil Right Act of 1964, 42 U.S.C. § 2000e et seq and California Code § 12940(a).

RULINGS OF THE COURT

Defendant's Motion in Limine No. 2 to Exclude Improper Witnesses Under FRE 402, 403, and 803, and FRCP 45 (ECF No. 107)

Defendant moves the Court for an order excluding certain witnesses listed on Plaintiff's witness list on the grounds that (1) the testimony would be irrelevant, hearsay, cumulative and (2) that the witnesses are beyond the subpoena power of the court. Plaintiff asserts that the listed witnesses will provide relevant and material testimony, based upon personal knowledge and that these witnesses could be called for impeachment purposes.

Defendant's Motion in Limine No. 2 to Exclude Improper Witnesses Under FRE 402, 403, and 803, and FRCP 45 (ECF No. 107) is denied without prejudice to renew at the presentation of evidence.

Defendant's Motion in Limine No. 3 to Preclude Testimony Regarding Jim Tracy's Alleged Statements About Douglas Kentfield (ECF No. 108)

Defendant moves the Court for an order "preluding Plaintiff John Simmons from offering any testimony regarding statements that Jim Tracy, an MSSB executive, allegedly made to Simmons about Douglas Kentfield, Simmons' former supervisor at MSSB [and] any testimony by Simmons regarding the alleged reaction of Rick Skae, another MSSB executive, to being told of Tracy's supposed statements." (ECF No. 108 at 2). Defendant asserts that the testimony is inadmissible hearsay, lacks foundation, and expresses an improper lay opinion. Defendant asserts that Plaintiff's testimony regarding alleged statements by Tracy and Skae cannot be offered as character evidence to prove discrimination; that any testimony about Tracy's alleged views on Mormons would be irrelevant; and that Plaintiff's testimony regarding alleged statements made to Plaintiff by Tracy and Skae about Kentfield's attitude towards Mormons should be excluded pursuant to Federal Rule of Evidence 403.

Plaintiff contends that his testimony regarding statements made to him by Defendant's employees is not inadmissible hearsay, or improper lay opinion. Plaintiff contends that the statements made to him by Tracy and Skae are admissible under FRE 801(d)(2)(D) as party employee admissions. Plaintiff asserts that Tracy and Skae are high level corporate officers of the Defendant who worked closely with Kentfield in making employment decisions regarding other high level employees. Plaintiff contends that statements made by Tracy and Skae, high level executives, regarding Kentfield's attitude and behavior toward Plaintiff are well within the relevant scope of agency of these executive employees under Fed.R.Evid. 801(d)(2)(D). Plaintiff further contends that these comments made directly to Plaintiff by high level corporate officers are evidence that corporate executives were aware of the discriminatory environment and took no steps to remedy the discrimination.

Defendant contends, in reply, that Plaintiff cannot establish that the alleged statements concerned matters within the scope of the employment of Tracy or Skae. Defendant asserts that Tracy and Skae had nothing to do with supervising Plaintiff's work performance.

Plaintiff's testimony regarding conversation with Tracy

Plaintiff seeks to offer his testimony that Plaintiff and Tracy were seated together at a work dinner at a restaurant in Santa Monica in 2010. Tracy was chief operating officer to Kentfield's supervisor and very good friends with Kentfield. Simmons seeks to testify Tracy said "Oh my God are you a mormon? I said yes. And he said what a disaster. My father-in law is a Mormon. It is a disaster. Does Doug know you're a Mormon? I said yes. He said, well, I'll bet he didn't when he hired you." (ECF No. 108-3 at 14). Simmons further seeks to testify that Tracy went on about how much he despised his father-in law and how the Mormon religion complicated his marriage.

Federal Rule of Evidence 801(d) provides in relevant part:

Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
(2) An Opposing Party's Statement. The statement is offered against an opposing party and:
...
(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; The statement must be considered but does not by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Fed. R. Evid. Rule 801(d)(2)(D). The Court concludes that the record in this case is not sufficient prior to trial to determine that the statements did not relate to a matter within the scope of the employee's agency. In addition, the record is not sufficient to establish that this testimony is not evidence relevant under Fed.R.Evid. 401 to show pretext or disprove Defendant's advanced legitimate reason for Plaintiff's termination. Based upon the record, Defendant's motion to prelude Plaintiff Simmons from offering any testimony regarding statements that Jim Tracy allegedly made to Simmons about Douglas Kentfield is denied at this stage in the proceedings. The Court will determine at the time of trial what portion, if any, of Plaintiff's testimony regarding statements allegedly made to Simmons by Jim Tracy are admissible based upon the foundation offered to support the statements and the relevance at the time of the testimony. Plaintiff shall seek leave of Court, outside the presence of the jury, prior to offering this testimony at trial.

Plaintiff's testimony regarding conversation with Richard Skae

Plaintiff seeks to testify that he told Skae, another MSSB executive, about his conversation with Tracy and Skae stated, "Now it all makes sense... he had felt that Doug had had disdain for me that he didn't understand and he went, oh. Now it all makes sense." (ECF No. 108-3 at 16-17). The Court concludes that the record in this case is not sufficient prior to trial to determine that the statements are not admissible under Rule 801(d)(2)(D). The record is further not sufficient to establish that this testimony is not evidence relevant under Fed.R.Evid. 401 to show pretext or disprove Defendant's advanced legitimate reason for Plaintiff's termination.

Based upon the record, Defendant's motion to prelude Plaintiff's testimony regarding conversations with Skae is denied at this stage in the proceedings. The Court will determine at the time of trial what, if any, of Plaintiff's testimony regarding statements allegedly made to Simmons by Skae are admissible based upon the foundation offered to support the statements and the relevance at the time of the testimony. Plaintiff shall seek leave of Court, outside the presence of the jury, prior to offering this testimony at trial. In the event that the Court does not allow Plaintiff's testimony regarding statements made to him by Skae, Plaintiff is not precluded from calling Skae as a witness. Defendant shall make Skae available for deposition prior to his testimony at a time and place convenient to counsel for Plaintiff.

Defendant's Motion in Limine No. 4 to Preclude Testimony of David Fields

(ECF No. 109)

Defendant moves the Court for an order to preclude testimony from David Fields regarding testimony that on one occasion in 2001 or 2002 he had an after work conversation with Kentfield in which Kentfield said "I don't trust people who don't drink... Well, it either means you had a drinking problem and couldn't control it, or it meant that you were overly religious. And those holier than thou's, ' I don't trust them. They're the first ones to fuck ya." (ECF No. 109-3 at 15). Defendant further moves to preclude Fields from testifying about an incident in which Fields felt that Kentfield did not hire a job candidate because the candidate refused to drink. Defendant contends that the proffered testimony is not relevant to the religious discrimination claims, should be excluded pursuant to Rule 403 as a stray remark, and constitutes inadmissible character evidence, inadmissible hearsay, and improper lay opinion. Defendant contends that remarks allegedly made over a decade ago to a former employee of Defendant are stray remarks that should be precluded.

Plaintiff contends that the direct statements by Kentfield to Fields are relevant to show discriminatory motive and to impeach Defendant's allegedly nondiscriminatory reason for Plaintiff's termination. Plaintiff contends that the direct statements by Kentfield to Fields are indirect evidence of pretext because Kentfield's state of mind is of central importance in this case. Plaintiff contends that the remarks made by Kentfield, Plaintiff's former supervisor, to one of Kentfield's sales representatives is overall evidence of Kentfield's discriminatory intent and corroborates more recent evidence of pretext.

The Court concludes that the record in this case is not sufficient to preclude this testimony on the grounds that it is not relevant under Fed.R.Evid. 401 to show pretext or disprove Defendant's advanced legitimate reason. Based upon the record, Defendant's motion to prelude the testimony of Fields is denied. The Court will determine at the time of trial what portion, if any, of the testimony of Fields is admissible based upon the foundation offered to support the statements and the relevance at the time of the testimony. Plaintiff shall seek leave of Court, outside the presence of the jury, prior to offering this testimony at trial.

Defendant's Motion in Limine No. 5 to Preclude Ad Hominem Attacks

(ECF No. 111)

Defendant's Motion in Limine No. 5 to Preclude Ad Hominem Attacks (ECF No.111) is overbroad and denied without prejudice and with leave to object to any comment or question at the presentation of evidence.

Defendant's Motion in Limine No. 6 to Preclude Litigation or Re-Litigation of Issues Submitted to Arbitration (ECF No. 112)

Defendant moves the Court for an order precluding Plaintiff

from trying before the jury any and all compensation and benefits claims predicated upon his offer and acceptance of employment with [Defendant], upon the promissory notes and bonus agreements entered into by him on February 29, 2008 and May 9, 2009, or upon any developments during the employment relationship with respect to compensation or benefits.

(ECF No. 112 at 2). Defendant contends that these issues were litigated or could have been litigated in the arbitration between the parties and that re-litigation is barred by res judicata and collateral estoppel. Defendant asserts that Plaintiff is free to argue that his termination was wrongful and in violation of state and federal discrimination statutes but that Plaintiff is precluded from seeking economic damages as a result of these violations. Defendant asserts that "any economic damages flowing from his alleged wrongful termination (regardless of the type of wrongfulness) were previously litigated and determined in arbitration." (ECF No. 173 at 4). At the hearing on oral argument, Defendant further asserted that Plaintiff is precluded from litigating any claim in this action on the grounds that Plaintiff's Complaint included a common law wrongful discharge claim under state law and that Plaintiff failed to litigate this claim at the arbitration. Because Plaintiff could have litigated the common law wrongful discharge claim under state law in the arbitration but did not present this claim to the arbitration panel, Defendant contends that the statutory discrimination claims in this case are barred by collateral estoppel.

Plaintiff contends that the FINRA Arbitration has no preclusive effect on his statutory discrimination claims. Plaintiff contends that he is not attempting to recover the moneys owed to him under contracts with the Defendant in this case. Plaintiff asserts that res judicata and collateral estoppel cannot preclude any recovery in this case because the claim of religious discrimination was not and could not have been litigated in the arbitration. Plaintiff further asserts that he "is not attempting to recover the same damages twice." (ECF No. 157 at 14). Plaintiff contends that the issues of termination in the arbitration were limited to moneys owed under the contracts as distinct from statutory damages owed as a result of unlawful discrimination.

On May 24, 2012, this Court concluded "that the arbitration provisions in the February 29, 2008 and May 8, 2009 Promissory Notes and Bonus Agreements are enforceable." ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.