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Kim Wolpert v. Abbott Laboratories

May 7, 2012


The opinion of the court was delivered by: Simandle, Chief Judge:



This matter is before the Court on five motions in limine filed by Defendant [Docket Items 154-158], a motion in limine filed by Plaintiff [Docket Item 153], and a motion to bifurcate the trial filed by Defendant [Docket Item 159].


Plaintiff Kim Wolpert is a former employee of Defendant Abbott Laboratories. The bulk of this litigation focused on her claim that she was improperly discharged from Abbott because she was a pregnant woman. However, this Court held that Defendant was entitled to summary judgment on that claim because the undisputed facts of record indicated that Defendant's decision to include Plaintiff in the 2007 reduction in force was unrelated to her sex, pregnancy or maternity leave. What remains is a related but independent claim that a different division of Abbott failed to hire Plaintiff because of her pregnancy or gender in violation of the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1.

According to the evidence adduced on summary judgment, Plaintiff Kim Wolpert began her employment at Abbott Vascular in October of 2005 as a sales representative in the Endovascular group. Wolpert v. Abbott Laboratories, 817 F. Supp. 2d 424, 427 (D.N.J. Sept. 12, 2011) ("Wolpert I"). In early 2007, Plaintiff informed her supervisor, Bryan Finley, that she was pregnant, and he mentioned this news in internal e-mails. On more than one occasion thereafter, Finley's manager, Area Director Bruce Tamargo, asked Finley whether Finley thought Plaintiff would return to work after her anticipated maternity leave. In the summer of 2007, Plaintiff began reporting to a new manager, Richard Collins. Id.

On August 14, 2007, Plaintiff received an email encouraging her and other salespeople to apply for open sales positions in the Cardiac Therapies group. One such open position, which was located in Philadelphia, would report to Charles Berry. Plaintiff applied for the position by submitting her resume to the HR employee who sent out the notice. Plaintiff was one of three internal candidates to interview for the position; the other two applicants were men. Id.

There is a dispute of fact over whether Plaintiff telephoned Berry to indicate she was applying for the position. Berry testified that Wolpert had a short telephone conversation with him regarding the position, in which she indicated that she had little interest in the position and was only applying for it because her manager suggested she do so. Plaintiff denies having any direct contact with Berry prior to her interview itself. Id.

Berry scheduled interviews with all three candidates who had applied, scheduling Plaintiff for a 30-minute telephone interview first, and then scheduling the other two male candidates for hour-long in-person interviews which were attended by both Berry and his superior, the Area Director of the group. Berry selected one of the male candidates for the position, Mr. DiIulio. Berry testified that he made his selection on the basis of the perceived interest of the candidates in the position, and that he sensed from Plaintiff little interest both in the pre-interview conversation and in the telephone interview itself. Id. at 428.

Berry denies that he was aware in August of 2007 that Plaintiff was pregnant. Plaintiff testified that Berry was aware of her pregnancy because he had seen her in person in the later months of her pregnancy, when she was visibly pregnant. Id.

Defendant now moves to exclude the following evidence: emails and testimony demonstrating Plaintiff's co-workers' knowledge of her pregnancy; evidence of Plaintiff's qualifications for the position; certain deposition testimony of Plaintiff's supervisor; and Plaintiff's testimony that she experienced emotional distress as a consequence of the failure to hire. Defendant also moves to strike Plaintiff's claim for front pay and to bifurcate trial to separate the punitive damages phase. Plaintiff moves to introduce evidence of her performance in her new job even though it is not identified in the Joint Final Pretrial Order, and seeks to further divide the trial between liability and compensatory damages.


A. Motion to Exclude Evidence of Non-Decisionmakers' Knowledge of Pregnancy (Def.'s Motion in Limine #1)

To prove discrimination, Plaintiff must show that the decisionmaker, Charles Berry, knew about her pregnancy. See Kenney v. Ultradent Prods., Inc., No. 05-1851, 2007 WL 2264851, at *4 (D.N.J. Aug. 6, 2007). In addition to contending that Berry learned of the pregnancy by seeing Plaintiff when she was visibly pregnant, Plaintiff contends that her co-workers including her direct supervisors knew of her pregnancy and likely would have told Berry based on the general context of a business in which Berry was considering Plaintiff's candidacy for another position. Defendant argues that the inference that Berry learned of the pregnancy from one of Plaintiff's co-workers is overly speculative, and that therefore the co-workers' knowledge of the pregnancy is irrelevant and should be excluded under Federal Rules of Evidence 401 and 402.

Defendant's argument conflates relevance with sufficiency. Evidence can be relevant to a proposition without being sufficient to establish it. Cf. United States v. Clifford, 704 F.2d 86, 90 (3d Cir. 1983) (noting the distinction between relevancy and sufficiency); Fed. R. Evid. 401, advisory committee notes. To prove that the widespread knowledge of Plaintiff's pregnancy within the organization is irrelevant, Defendant must show that this evidence does not have any tendency to make the fact that Berry knew of Plaintiff's pregnancy "more probable." See Fed. R. Evid. 401(a).

That Plaintiff's co-workers, including her direct supervisors, knew of her pregnancy indisputably makes it more probable that they told Berry. The co-workers' knowledge suggests that Plaintiff was not hiding her pregnancy; to the extent the others learned from seeing Plaintiff, it suggests she was showing which is relevant to the parties' dispute over Berry having learned from seeing Plaintiff; and it greatly increases the chances that Berry learned of the pregnancy by seeing one of the emails about it, by overhearing a conversation, or by having been told by someone.

In examining relevance, the Court is not called upon to quantify the evidence's probative force. The weight of evidence is a question for the jury. See, e.g., United States v. Starnes, 583 F.3d 196, 214 (3d Cir. 2009). And questions about whether evidence is sufficient to reasonably meet a burden of persuasion are questions of evidentiary sufficiency, not relevance. The change in probability of the ultimate fact necessary to make evidence relevant may be quite minuscule; so long as it makes the fact more or less probable as compared to the scenario in the absence of such evidence, it is relevant. See Fed. R. Evid. 401(a), advisory committee's note ("Any more stringent requirement is unworkable and unrealistic. . . . Dealing with probability in the language of the rule has the added virtue of avoiding confusion between questions of admissibility and questions of the sufficiency of the evidence."); cf. United States v. Casares-Cardenas, 14 F.3d 1283, 1287 (8th Cir. 1994)

("Relevance is established by any showing, however slight, that makes it more or less likely that the defendant committed the crime in question.").*fn1

Defendant does not contend that the evidence's minimal probative force means it is outweighed by some prejudice or cost in terms of time or resources -- factors that might otherwise set a minimal threshold for probative force before evidence is to be admitted. See 1 McCormick On Evid. § 185 n.16 (6th ed.) (noting although Rule 401 sets no minimum threshold of probative force, Rules 403 or 404 might effectively do so). And there is no sua sponte obligation to consider Rules 403 or 404. See United States v. Long, 574 F.2d 761, 766 (3d Cir. 1978) (explaining that objections under Rules 403 and 404 must be specifically made in order to be considered).*fn2

In sum, Plaintiff's co-workers' knowledge of her pregnancy makes more probable the fact that Berry learned of her pregnancy. It is therefore relevant. Relevant evidence is admissible in the absence of any countervailing factors of undue prejudice or consumption of time compared with the probative value of the evidence, neither of which are identified by Defendant. Therefore, the evidence is admissible, regardless of whether it is sufficient for judgment on a preponderance of the evidence.

If there is too large a gap between the sum total of the relevant evidence and a judgment about some ultimate fact so as to make the connection overly speculative, then a party can challenge the sufficiency of the evidence to meet a given burden of persuasion at the close of a plaintiff's case by making a motion pursuant to Rule 50, not as a motion in limine. This motion in limine will be denied.

B. Motion to Exclude Evidence of Plaintiff's Qualifications (Def.'s Motion in Limine #2)

Plaintiff seeks to introduce evidence of her qualifications for the position that she was denied. She contends that the evidence is relevant to proving at trial that she was discriminated against on the basis of her pregnancy. Defendant contends that evidence of Plaintiff's qualifications is irrelevant to establishing discriminatory motivation. But this second motion in limine suffers from a similar category error as the first, advancing arguments relevant to summary judgment but not relevant to admissibility of evidence at trial. Because the evidence is relevant for multiple reasons and Defendant identifies no undue prejudice, it is admissible.

Defendant relies on precedent addressing the burdens of production on a motion for summary judgment, discussing when a plaintiff has produced sufficient evidence that a jury could find the defendant's valid reason for the employment decision to be pretextual. The cases hold that an employer's valid reason for the employment decision is not rebutted by evidence of qualifications not relied upon by the employer. See Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 647 (3d Cir. 1998) (noting that to prove pretext, "the plaintiff must point to evidence from which a factfinder could reasonably infer that the plaintiff satisfied the criterion identified by the employer or that the employer did not actually rely upon the stated criterion"); Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 529 (3d Cir. 1992) (holding that rebuttal of pretext must occur through comparison of the plaintiff's ability in the category deemed dispositive by the decisionmaker, or evidence showing that the decision was more likely motivated by a discriminatory reason than the stated pretext). In such a scenario, a defendant can prevail on a motion for summary judgment because the precedent holds that a reasonable jury cannot find discrimination without having some reason to doubt the defendant's proffered valid reason for the employment decision.

But this precedent has little to do with the admissibility of evidence at trial. Whether or not qualification evidence is sufficient to entitle Plaintiff to summary judgment, it is relevant at trial because it is the epitome of evidence that makes a finding of discrimination more probable. It forms part of a plaintiff's prima facie case on summary judgment precisely because it is exactly the kind of evidence that makes discrimination a more probable conclusion. See Fuentes v. Perskie, 3 F.3d 759, 763 (3d Cir. 1994) (noting requirement of qualification for the position); Ezold, 983 F.2d at 523 (noting that qualification evidence in question was relevant and sufficient to prove qualifications, even though it did not rebut the defendant's pretext). At trial, the issue is no longer the burdens of production -- such burdens have either been met or were never tested; instead, the focus is Plaintiff's burden of persuasion to show by a preponderance of the evidence that the determinative factor for the failure to hire was her pregnancy. Qualification for the position makes it more probable that the failure to hire is discriminatory as compared to the scenario in which the person is not qualified, regardless of whether the employer offers some non-qualification basis for the employment decision. This is true, among other reasons, because even if the jury disbelieves Defendant's proffered reason for the decision, the jury must still determine that the real basis for the decision was discriminatory motive. See Smith v. Borough of Wilkinsburg, 147 F.3d 272, 280 (3d Cir. 1998) (explaining what a jury is to consider at trial).

In any case, the qualification evidence at issue in this case is also relevant to pretext. The most contemporaneous evidence of the basis for the failure to hire is the human resources form that provided that the "reason for no interest" in Plaintiff for the position was her "knowledge/skills/abilities." Pl.'s Ex. 70. The fact that the initial justification does not apply to Plaintiff is relevant to the determination of whether this document was an innocent mistake or Defendant discarded that initial basis upon the realization that this putative basis for the decision would not stand up to scrutiny, as Plaintiff contends.

Defendant does not dispute that Plaintiff was qualified for the position, but that does not make the evidence irrelevant. First, Defendant cannot make some fact inadmissible merely by offering to stipulate to it. See United States v. Sampson, 980 F.2d 883, 888 (3d Cir. 1992) ("Issues are not irrelevant just because the defense's theory presupposes them to be so."). And second, Defendant does not concede either of the ultimate propositions for which the evidence is relevant: that the decision was made for discriminatory reasons, and that the initially proffered basis for the reason was false, suggesting pretext. Perhaps there are scenarios in which the Court would mandate that a plaintiff's qualification for the position come in as a stipulated jury instruction, as when the presentation of the evidence would be more prejudicial than ...

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