Tavres v. Barnes & Noble, Inc.

Background

This final pretrial conference order addressed the planned jury trial between Barbara Tavres and Barnes & Noble, Inc. The court kept the trial on calendar for August 16, 2021, estimated that it would last about two weeks, and set trial hours. Tavres received 20 hours to present her case, including opening and closing statements and witness examinations; Barnes & Noble received 13 hours. The court required the parties to file final witness and exhibit lists by August 9, 2021.

Motions in Limine

Barnes & Noble filed four motions in limine, which are requests to decide evidentiary issues before trial. Tavres filed none.

Motion No. 1: Soliman declaration and testimony

The court agreed that Yaser Soliman’s declaration was hearsay. Because Soliman would testify at trial, however, Tavres would not need to rely on the declaration. The court said the declaration might be used to refresh Soliman’s recollection but would not be admitted for the jury to review on that basis. The court reserved a ruling on whether the declaration could be admitted under Federal Rule of Evidence 801(d)(1)(B), because admissibility would depend on what happened at trial.

The court did not bar Soliman from testifying about comments allegedly made by Shannon Vidakovich. It ruled that the alleged comments were not hearsay because they could qualify as statements by an opposing party’s employee about a matter within the scope of the employment relationship. Barnes & Noble argued that Vidakovich’s comments were irrelevant because she was not a decisionmaker in Tavres’s employment actions. Tavres relied on a “cat’s paw” theory, under which an employer may be responsible when a person who influenced the decision acted with discriminatory or retaliatory intent even if that person did not make the final decision. The court reserved the issue until it could see Soliman’s trial testimony. If he testified as described in his declaration, the court said Tavres could establish relevance by showing that Vidakovich pressured him to pressure Phil Alexander to fire Tavres. The court also stated that Federal Rule of Evidence 403 would not bar the evidence if relevance were established.

Motion No. 2: Tavres’s experts

Barnes & Noble sought to exclude testimony from Eric Lietzow, an economic-damages expert; Stephen Francis, an expert on emotional and psychological distress; and Jonah Gelbach, an expert primarily addressing Tavres’s disparate-impact theory.

The court rejected the challenges to Lietzow’s qualifications. Barnes & Noble pointed to his lack of specific experience with employment age-discrimination damages, bookstore or retail business development, pandemic effects, and Tavres’s personal health, among other issues. The court stated that a lack of specialized or particularized expertise generally affects the weight of an expert’s testimony rather than making the testimony inadmissible.

The court likewise rejected the challenge to Francis’s qualifications. Francis is a licensed psychologist who independently examined Tavres twice. The court stated that he did not need to be a medical doctor to offer opinions about the cause of a mental, as opposed to physical, condition.

The court found Gelbach qualified to testify. On reliability, it stated that statistical significance at the 10% level is not automatically impermissible, but barred Gelbach from expressing opinions based on a statistical significance level as high as 41%, finding that level highly debatable and, at minimum, barred by Rule 403.

The court also addressed Tavres’s disparate-impact claims. It said her theory concerning termination was highly problematic because, as she described it, the decisionmakers exercised discretion differently when Tavres failed to meet sales goals than they did when a younger employee, Savanna Sauer, failed to meet those goals. The court characterized that theory as disparate treatment based on discriminatory use of discretion, not disparate impact from applying a facially neutral rule. It also said evidence offered to support disparate impact in that context would likely confuse the jury. The court did not dismiss at that time the disparate-impact claim concerning withheld commissions because Tavres identified a facially neutral policy applied to all employees. But it noted serious questions about the available evidence, Barnes & Noble’s expected business-justification defense, and the measure of damages.

Motion No. 3: Elliott Management and Romero evidence

Barnes & Noble asked the court to bar Tavres from identifying Elliott Management Corp. as the acquiring company or calling it a “vulture fund.” Tavres did not object, and this part of the motion in limine was granted.

Barnes & Noble also sought to exclude evidence about a former store manager, Mr. Romero. Tavres asserted that Romero had treated her and other employees abusively, particularly women age 40 and over; that she had participated in an internal investigation of his conduct; and that her actions against him contributed to Alexander’s failure to promote or termination decisions because Romero and Alexander were close friends. The court agreed that the evidence had minimal, if any, value. It concluded that the time between Tavres’s protected conduct and the later employment actions made retaliatory motive difficult to infer, and that litigating the alleged friendship would create a confusing trial within the trial. The evidence was therefore barred under Rule 403.

Motion No. 4: Bifurcation and damages evidence

Barnes & Noble asked the court to divide the case into separate liability and damages phases and to bar damages evidence during the liability phase. The court declined to bifurcate the trial, with one exception: evidence about Barnes & Noble’s financial condition could not be presented unless the jury first found that punitive damages were warranted. If that occurred, the second phase would be brief.

Exhibits, subpoena, and discovery responses

The court directed the parties to meet and confer about their exhibit lists. It overruled relevance and Rule 403 objections to Tavres’s Exhibit 5, finding her earlier performance potentially relevant to her failure-to-promote claim. It sustained the objection to Exhibit 21 because of the ruling on Romero evidence. It found the proposed version of Exhibit 29, a Facebook posting, and Exhibit 30, a customer letter, potentially relevant to Tavres’s constructive-discharge claim, while encouraging further discussion about those documents. The court ordered that a trial subpoena issued by Paul Tavres for Sauer’s personnel file and wage statements would not be enforced because the evidence should have been pursued during discovery.

The court stated that Barnes & Noble performance reviews and similar documents would likely be admissible if Barnes & Noble established the foundation for the business-records exception. It found a police report potentially relevant to corroborating Alexander’s testimony about a stolen computer. It explained that Tavres’s own emails generally were not hearsay when offered as statements of an opposing party, while emails by Barnes & Noble supervisors might or might not be hearsay depending on their use and whether an exception applied. The court also stated that the report and curriculum vitae of Barnes & Noble’s expert, Jonathan Blumenstein, were hearsay, but that this did not prevent Blumenstein from testifying about his opinions.

The court overruled Tavres’s objection to using an excerpt from her deposition. Although she could not testify about what Barnes & Noble had privately intended, she could testify about her own knowledge or understanding of the situation as it related to her state of mind.

Other trial procedures

The court said it would address jury instructions and the verdict form in separate orders. It described procedures for juror questionnaires and attorney questioning of prospective jurors, anticipated social-distancing and masking measures, planned to seat eight jurors, and allowed remote witness testimony when warranted.

Disposition and classification

This was a procedural pretrial order. It made evidentiary and trial-management rulings but did not decide whether Tavres or Barnes & Noble prevailed on the underlying employment claims.