United States District Court, D. Colorado
JEFFREY D. SHERMAN, Plaintiff,
MOTOROLA SOLUTIONS, INC., Defendant.
ORDER ON MOTIONS IN LIMINE
Michael E. Hegarty, United States Magistrate Judge.
case, Plaintiff Jeffrey Sherman alleges he was employed by
Defendant Motorola Solutions from October 1, 1977 to April
24, 2015. At the time he left Motorola, Sherman was
classified as a Senior Systems Engineer, he was sixty years
old, and he was the oldest member of his engineering team.
Sherman alleges that Adam Quintana, who became the
engineering team's supervisor in June 2014, treated
Sherman differently from the outset in that he appeared cold
and unfriendly toward Sherman. In February 2015, Quintana met
with Sherman to discuss Sherman's job performance and,
according to Sherman, Quintana asked him when he planned to
retire; when Sherman responded that he planned to work
another ten years, Quintana's demeanor visibly changed.
After this meeting, Quintana determined to place Sherman on a
performance improvement plan (“PIP”). Sherman
claims that after the meeting, Quintana excluded Sherman from
meetings with engineers and customers, which he had typically
attended. Quintana notified Sherman on April 17, 2015 that he
was placing Sherman on a PIP, and on April 23, 2015, Quintana
and human resources representatives met with Sherman by
conference call to discuss the specifics of the PIP. Sherman
stated during the meeting that he intended to resign, and the
next day, Sherman signed a resignation form stating he had
“irreconcilable differences with management.”
Sherman alleges that Motorola constructively discharged him
from employment because of his age and retaliated against him
by increasing PIP task requirements after he made complaints
of age bias to management.
counters that placing Sherman on the PIP was completely
appropriate considering Sherman's performance issues.
Motorola also contends that Sherman voluntarily chose to
resign from Motorola rather than work with management to
improve his performance. Motorola also denies Sherman's
allegations concerning any references to Sherman's age.
Essentially, Motorola asserts that it acted appropriately and
lawfully at all relevant times with respect to Sherman.
parties have timely filed motions seeking the exclusion of
evidence at trial in this case. Motorola's motion asks
the Court to exclude Sherman's testimony regarding a
conversation with his son concerning alleged discrimination,
as well as evidence regarding events that happened in 2005
and earlier. Sherman requests that the Court exclude certain
exhibits and related testimony concerning Sherman's job
performance in 2013 and 2014, which allegedly were not
considered by the decision maker, Adam Quintana.
Court finds Motorola has demonstrated that Sherman's
son's “opinion” regarding whether Sherman
suffered discrimination is inadmissible and that
Sherman's evidence of events prior to 2005, offered to
support Sherman's dismissed failure-to-promote claim, is
irrelevant. In addition, the Court concludes Sherman has
failed to establish the inadmissibility of Motorola's
exhibits and finds, instead, that the parties must present to
the jury the question of whether Quintana considered the
exhibits (or the content therein) in deciding to place
Sherman on a performance improvement plan.
contends that the challenged evidence Sherman seeks to
introduce is irrelevant, unfairly prejudicial to Motorola,
and “likely to confuse and mislead the jury.” The
Federal Rules of Evidence govern the admissibility of
“relevant” evidence. Rule 401 instructs that:
is relevant if:
(a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Fed. R. Evid. 401. Rule 402 requires that “[i]rrelevant
evidence is not admissible.” Fed.R.Evid. 402. Finally,
Rule 403 provides that the “court may exclude relevant
evidence if its probative value is substantially outweighed
by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative
evidence.” Fed.R.Evid. 403. “The district court
has considerable discretion in performing the Rule 403
balancing test.” United States v. Tan, 254
F.3d 1204, 1211 (10th Cir. 2001).
Testimony Regarding Conversation Between Sherman and His
Motorola challenges testimony Sherman intends to introduce
regarding Sherman's conversation with his son
approximately one-to-three weeks after Sherman left
employment with Motorola. Sherman wishes to introduce this
evidence to demonstrate that he did not understand at the
time he left Motorola that he might have a legal claim.
testimony reveals that during the conversation between
Sherman and his son, who was a lieutenant colonel in the
Marine Corps. serving as a Veterans' Administration
benefits counselor, Sherman explained to his son the
circumstances surrounding his departure from Motorola, and
his son expressed his belief that Sherman suffered
“disparate treatment, ” of which Sherman had
never heard. Sherman seeks to introduce this evidence to