Fill and Sign the Motion Evidence and Form

IN THE UNITED STATES DISTRICT COURT FOR THE ____________ DISTRICT OF ___________ ___________________ DIVISION NAME OF PLAINTIFF )       ) ) V. ) NO.       ) ) NAME OF DEFENDANT )       ) PLAINTIFF'S MOTION IN LIMINE TO PROHIBIT EVIDENCE ON THE ISSUE OF PERFORMANCE, PRODUCTIVITY AND/OR EFFICIENCY COMES NOW, Plaintiff, __________ by and through counsel, and files this his Motion, in limine, to Prohibit Evidence on the Issue of Performance, Productivity and/or Efficiency and in support thereof states the following: 1. __________ was employed by __________ as Production Manager at __________. __________ was terminated by __________ effective ___________ __, ______. __________ maintains that __________ was terminated as a result of a job combination of __________ position of Production Manager and the plant engineer position. __________ was allegedly not considered for the new position because of a lack of qualifications. Specifically, that __________ did not have an engineering degree which was a requirement for the new position. 2. On or about __________ __, ________, __________ filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), as a result of his termination by __________. In his complaint, __________ alleged that his age was a "motivating" or "determinative" factor in __________'s decision to terminate his employment. __________ also alleged that his termination was in retaliation for his refusal to engage in employment practices prohibited by the __________. 3. __________, in its response to __________'s EEOC complaint, (a copy of __________'s response to the EEOC Complaint is attached hereto as Exhibit "A"), steadfastly maintained that __________ was not considered for the new position, "solely because he was not qualified since he lacked an engineering degree. __________'s response that the sole reason __________ was not considered for the new position clearly rules out any other explanations for __________'s failure to retain __________ (i.e. place __________ in the new position) and indirectly established that __________'s termination was in no way associated with his job performance. __________ respectfully submits that __________ should be bound by its admission in its EEOC response. 4. Following the filing of his Complaint with the EEOC, __________, on __________ __, _______, filed the instant action against __________ on numerous claims, including age discrimination and retaliation. During the course of discovery, __________'s immediate supervisor, __________, in his deposition of (the relevant portions of which are attached hereto as Exhibit "B") testified that __________'s job performance was "adequate" at all times. Here again, __________ took the position that __________'s termination was in no way connected with his job performance. As such, __________'s performance is irrelevant to the issues in contest and should be excluded pursuant to Rules 402 and 403 of the Federal Rules of Civil Procedure. 5. As such, __________ respectfully requests that this Honorable Court issue an Order prohibiting __________ from proffering or introducing any evidence or testimony whatsoever which in any way could show or tend to show that __________'s termination was in any way based upon his performance or nonperformance of his job duties. Specifically, evidence of the following should be excluded: (1) evidence of any alleged personality conflicts between __________ and other employees of __________; (2) evidence of any alleged inabilities of __________ regarding his computer training and skills or lack thereof; (3) evidence of any alleged unwillingness to adhere to or support "team based" operations or differences in __________'s management philosophy; (4) any alleged violation(s) by __________ of company policy regarding the possession of company documents at his home or away from the work facility; and (5) evidence of any job evaluation reports. 6. A central element of __________'s retaliation claim involves __________'s opposition to certain personnel policies and attempted actions on the part of Defendant, __________. __________ maintains that he was directed to take certain actions with respect to at least five former or current __________ employees which he considered to be unlawful and in contravention of the ADEA. Throughout discovery, __________ has zealously contended that none of its management directed __________ to take any such actions. At trial in an attempt to discredit witnesses for __________ who will testify in an confirm that the directives were in fact given as claimed by __________, __________ may attempt to offer evidence that it directed __________ to take action against certain employees on the basis of performance and not based on discriminatory reasons. Since __________ has taken the position that it did not direct __________ to take the employment action with regard to the five employees it should not now be allowed to recant that position and introduce evidence that __________ was directed to take action on the employees based on performance. 7. __________ respectfully requests this court to issue an Order prohibiting __________ from proffering or introducing any evidence or testimony whatsoever which in any way could show or tend to show that the employment action which __________ claims he was directed to take with regard to the five employees was in any way based upon performance or nonperformance of their job duties. WHEREFORE, PREMISES CONSIDERED, Plaintiff, __________, moves this Court pursuant to Rules 402 and 403 of the Federal Rules of Evidence for an order prohibiting __________ from introducing any evidence whatsoever at trial on the issues of his productivity, performance and efficiency. Plaintiff further moves this Court to issue an Order prohibiting __________ from introducing any evidence whatsoever at trial regarding directives given to __________ take personnel action on the five __________ employees. Respectfully submitted, this the day of __________, ____. __________ by: _______________________ __________ ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE I, __________, do hereby certify that I have this day served a true and correct copy of the above and foregoing document, via facsimile and by U.S. Mail, postage fully prepaid, to __________, counsel for Defendant. This the day of __________, ________. _______________________ __________