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Fairweather v. Friendly's Ice Cream LLC

United States District Court, District of Maine

January 23, 2015




With trial looming in this age discrimination case, the parties have presented a number of objections to potential witnesses and specific testimony. The Court denies the Defendant’s request to exclude the proposed testimony of a similarly situated employee. The Court also addresses a slew of objections to the deposition testimony of a witness, sustaining a few and overruling most.


A. Background

JoAnn Roberge was employed as a waitress at Friendly’s from March 19, 1999 to January 2, 2012 when she was terminated because she exceeded the permissible number of customer walk-outs. Def. Friendly’s Ice Cream, LLC’s Mot. in Limine to Exclude Test. of Joann Roberge (ECF No. 77) (Def.’s Roberge Mot.) Attach. 1 Charge of Discrimination, Me. Human Rights Comm’n (Roberge Charge). On February 24, 2012, she filed a complaint with the Maine Human Rights Commission, alleging that Friendly’s terminated her due to a pretext and the real reason for her termination was that she was 63 years old. Roberge Charge. Friendly’s seeks to exclude Ms. Roberge’s testimony on the grounds that the evidence would be contrary to Plaintiff’s theory of the case and would require “a trial within a trial.” Def.’s Roberge Mot. at 1-2. Friendly’s says that Ms. Roberge’s Maine Human Rights Act claim was barred by bankruptcy. Id. at 2. Plaintiff seeks to admit evidence of Ms. Roberge’s termination as evidence of Friendly’s treatment of a similarly-situated employee, which is relevant, she claims, to “Friendly’s age related animus and the implementation of Friendly’s plan to change its image by, in part, terminating older employees.” Pl.’s Opp’n to Def. Friendly Ice Cream’s Mot. in Limine to Exclude Test. of Joanne Roberge at 2-3 (ECF No. 96) (Pl.’s Roberge Opp’n).

B. Discussion

In this case, one of Ms. Fairweather’s theories is that, as an older worker, she had been subject to disparate treatment and that she was terminated for conduct that Friendly’s excused in younger workers. The First Circuit has addressed the disparate treatment theory and has observed that “in order to be probative of discriminatory animus, a claim of disparate treatment ‘must rest on proof that the proposed analogue is similarly situated in material respects.’” Velez v. Thermo King de P.R., Inc., 585 F.3d 441, 451 (1st Cir. 2009) (quoting Perkins v. Brigham & Women’s Hosp., 78 F.3d 747, 752 (1st Cir. 1996)). The standard, according to the First Circuit, is “whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated. While an exact correlation is not necessary, the proponent must demonstrate that the cases are fair congeners.” Id. (internal citations and quotation marks omitted); see also Taboas v. Fiddler, Gonzalez & Rodriguez, PSC, No. 13-1205 (FAB), 2014 U.S. Dist. LEXIS 121307, at *7-8 (D.P.R. Aug. 28, 2014) (concluding that evidence of the dismissal of a similarly aged employee by the same employer is admissible as tending to make the claim of age-based animus more probable).

Here, Ms. Fairweather says that Ms. Roberge was employed as a waitress at Friendly’s South Portland location from March 19, 1999 until she was fired on January 2, 2012. Pl.’s Roberge Opp’n at 1. She is now approximately 66 years old, and was around 63 when she was fired.[1] Id. Ms. Fairweather states that Ms. Roberge was the oldest employee in the workplace and that she was fired because two customers walked out on her. Id. Ms. Fairweather asserts that Ms. Roberge believed that she was treated more harshly than younger employees who had experienced the same or higher number of customer walkouts. Id. at 1-2.

There are a number of similarities between Ms. Roberge’s and Ms. Fairweather’s situations. Ms. Fairweather was slightly younger, 55, when she was fired, but had worked longer at Friendly’s, joining in 1988. See Order Denying Def.’s Mot. for Summ. J. at 4, 63 (ECF No. 49). They were fired the same year, Ms. Roberge on January 2, 2012 and Ms. Fairweather four months later on May 14, 2012. See Id. at 67. They both worked as waitresses and they both claim that Friendly’s fired them for conduct that it would have excused in younger workers. These facts make Ms. Roberge’s experience at Friendly’s admissible to “show a defendant’s state of mind through circumstantial evidence, including through evidence of the employer’s prior incidents of discrimination or the employer’s discriminatory atmosphere.” Taboas, 2014 U.S. Dist. LEXIS 121307, at *5-6.

The Court rejects Friendly’s contention that because it terminated Ms. Roberge on January 2, 2012 and Friendly’s did not emerge from bankruptcy until six days later on January 8, 2012 that her termination cannot support Ms. Fairweather’s claim that (1) as Friendly’s emerged from bankruptcy, it had resolved to change its image to appeal to a younger clientele by hiring younger workers and firing older ones and (2) Friendly’s made that policy choice before the actual date of bankruptcy discharge. Also, Friendly’s protest that the Roberge claim had never been tested by an administrative agency seems ironic; Ms. Roberge was not allowed to proceed against Friendly’s precisely because Friendly’s declared bankruptcy. See Def.’s Roberge Mot. at 2.

As with all evidence of this ilk, Friendly’s has raised a justifiable concern that the Roberge claim not become a trial within a trial. This concern extends both to Ms. Fairweather and to Friendly’s and the Court will monitor this evidence as it is being presented to balance its probative value against the danger of “unfair prejudice, confusing the issues, misleading the jury, undue delay, [and] wasting time.” Fed.R.Evid. 403.

The Court declines Friendly’s request for wholesale exclusion of the Roberge claim.


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