United States District Court, W.D. Louisiana, Alexandria Division
MICHELE PAYNE, ET AL.
HON. JOHN M. McHUGH,  SECRETARY of the ARMY MONTES
DRELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
the court is Defendant's Motion in Liminefiled on October
23, 2017, in which Defendant seeks to preclude Plaintiff
Michele Payne from introducing or referencing certain
testimony and/or proposed exhibits. For the reasons set forth
below, the motion is GRANTED IN PART and DENIED IN PART.
Allegations or evidence regarding alleged discriminatory
acts unrelated to plaintiffs claims and speculative claims of
alleged race discrimination and retaliation.
wishes to exclude "[statements by others regarding"
alleged discrimination, exposure to a hostile work
environment and/or retaliation. Though Defendant notes the
"statements by others" includes Dena Perkins, Lynn
Holaway, Karla Gralapp and employees of the United States
Army, there is no certainty as to what any of the named
witness or potential other witnesses will say. Defendant
asserts that the testimony of Perkins, Holaway, and Gralapp
is irrelevant given statements each made during her
deposition; however, the court is without the full context of
the depositions and its relation to the issues to make such a
determination at this time.
Defendant's own statement that "the testimony
described above and any similar testimony elicited by the
Plaintiff is irrelevant to Plaintiffs claims here" shows
the true breadth and vagueness of Defendant's objection.
It is simply impossible for the court to anticipate the
witnesses' testimony and whether it is relevant to
Payne's claims. Accordingly, the defense may assert
objections to testimony and evidence at the pertinent times
throughout the trial.
Any reference to the probable testimony of a witness who
is absent, unavailable or not called to testify, or not
allowed to testify
argues Plaintiffs exhibits 7 and 11 should be excluded as
they are hearsay testimony and irrelevant. Specifically,
Defendant notes that the only person who was a party to the
conversation transcribed and found at exhibit 7 is Michele
Payne. Thus, the testimony is considered hearsay.
Additionally, Defendant argues the transcription found at
exhibit 11 is irrelevant, hearsay, and the proper means to
introduce evidence of the phone call is through Dr. Patrick
Hayes' testimony at trial.
exhibit 7 is a transcript of the "Impaired Provider
Program Meeting of Complaintant, Michelle Payne." There
is a signed certification attached which states in part:
I, Marvin E. Haynes, hereby certify that the foregoing
hearing was taken before me at the time and place therein
above stated; that said witnesses were first duly sworn by
the Judge to testify the truth, the whole truth and nothing
but the truth in answer to questions propounded; the hearing
being reported by me and thereafter transcribed under my
supervision; that he foregoing pages contain a true and
correct transcription of the hearing of said witness and thus
given to the best of my ability and understanding.
this "certification", the transcription appears to
be that of a one-party consent recording of a meeting between
Ms. Payne and Colonel Starkey. There is no date and time as
to when the conversation occurred; there is no indication
that Mr. Haynes was present at the meeting and/or was the
party recording the conversation; and, there is no point
within the transcript where the parties to the conversations
were sworn to tell the truth and/or questioned under direct
and cross examination. As such, the "certification"
lacks merit and the transcription constitutes hearsay.
further asserts that because none of the witnesses, other
than Michele Payne, are listed as witnesses for trial, the
use of the transcript for impeachment purposes is not at
issue. In light of this stipulation, and for the
aforementioned reasons, the court excludes Plaintiffs exhibit
7 as evidence in this trial.
court, at this time, is not excluding exhibit 11. Though
Defendant asserts the transcribed telephone call "is not
evidence of anything", we find that determination too
early to make. Further, because Dr. Hayes will testify at
trial, the document may serve as impeachment evidence.
Accordingly, Defendant's request to exclude Plaintiffs
exhibit 11 is denied at this time.
Plaintiff must not be allowed to call witnesses described
as witness to the alleged discrimination, harassment, and/or