CUTLASS COLLIERIES, LLC.

v.

JONES

The Court previously reviewed the parties’ exhibit lists and the parties’ objections to exhibits. Because the parties raised over¹,600 objections to the exhibits, the Court entered its first Order on Exhibit objections at docket entry 178, wherein the Court required the parties to file legal summaries of their various objections to the exhibits. The Court then reviewed the Plaintiff’s (the Counter-Defendant’s) summary of its objections to the Defendant’s (the Counter-Plaintiff’s) exhibit list, the Defendant’s summary of his objections to the Plaintiff’s exhibit list, the Plaintiff’s response to the Defendant’s summary of objections, and the Defendant’s response to the Plaintiff’s summary of objections. The Court then ordered the parties to deliver copies of the exhibits subject to the objections to Chambers, and the Court has reviewed the exhibits. Because of the very large number of objections, the Court has endeavored, through this Order, to rule on as many objections as possible prior to trial. The Court has undertaken this effort to streamline trial and to respect the time commitment of the jury’s public service. Should any party disagree with the Court’s rulings herein, that party is not precluded from challenging the Court’s rulings and being heard on the matter; the party may raise any objection at trial to the Court’s rulings herein, including the Court’s interpretation of the parties’ pretrial stipulation, discussed below.

However, should any party raise an objection that is contrary to the Court’s rulings in this Order, the party must inform the Court of the same and point the Court to the page and line number corresponding to the Court’s prior ruling. In the event the Court overrules such an objection, the Court may incorporate its reasoning in this Order. The Pretrial Stipulation The Court begins its analysis of the parties’ exhibit objections by referencing the parties’ pretrial stipulation. This is an age discrimination case and, as a result, the central issue at trial will be: “Why was the Defendant terminated?” The Plaintiff sets forth its non-discriminatory reasons for terminating the Defendant on pages¹⁰ and¹¹ of the pretrial stipulation: As Vice President of Purchasing, Mr. Jones led the effort to purchase … equipment. In 2019, however, the mine shifted from development (i.e., purchasing equipment and building a mine) to operations (i.e., mining and selling coal). At the same time, Cutlass was experiencing substantial financial stress. Indeed, throughout much of 2019, Cutlass was unable to make timely payments to its vendors.

In February 2019, Michael Beyer became Cutlass’s CEO. Mr. Beyer was tasked with, among other things, cutting unnecessary costs and making Cutlass profitable as a business. Throughout 2019, Mr. Beyer had the unfortunate task of identifying employees Cutlass could sever to stay afloat. As part of the critical effort to cut costs, Mr. Beyer terminated dozens of employees between February 2019 and November 2019. As Mr. Beyer became more acquainted with the mine, he identified Mr. Jones as a potential candidate for elimination in the Company’s ongoing reduction in force, primarily because the skillset he was hired for— namely, to oversee large-scale purchasing of expensive mining equipment during the mine’s development phase—was no longer needed. In addition, Cutlass already employed other individuals to handle the more mundane, day-to-day aspects of operational purchasing. And these employees had far lower salaries than Mr. Jones.

Indeed, the need to eliminate Mr. Jones’s position to cut costs was made clear in October 2019. At that point, DL Lobb—a 39-year veteran of the coal industry and president of the labor company Bighorn Mining (a Cutlass subsidiary)—shared his view with Mr. Beyer that Cutlass did not need “an expensive corporate purchasing agent” like Mr. Jones and that the “one off projects” where Mr. Jones sometimes added value would “wind down” as Cutlass shifted to a fully operational mine by year’s end.

In early November 2019, Mr. Beyer determined that Mr. Jones was not providing sufficient value to justify his high salary and that his position simply was not needed. As such, and to save costs, Mr. Beyer made the decision to eliminate Mr. Jones’s position. Cutlass did not hire a replacement Vice President of Purchasing. It eliminated the position altogether. The Court gleans from the pretrial stipulation that the Plaintiff avers it terminated the Defendant because: (1) the Plaintiff was experiencing financial difficulties, (2) the Defendant’s compensation was high, (3) the Defendant’s primary role and primary duties were no longer valuable to the Plaintiff, when those primary duties were juxtaposed to the Defendant’s compensation, and (4) the Defendant’s secondary/tertiary duties could be performed by other employees who worked for less compensation. Although the Plaintiff has at times in this case referenced other reasons that the Defendant was terminated,¹ those reasons do not appear in the Plaintiff’s pretrial stipulation.

Finally, the Plaintiff recently amended its pretrial stipulation to clearly stipulate: “Mr. Beyer [the Plaintiff’s CEO] did not terminate Mr. Jones for performance-related reasons.” DE 197 at 1. “Parties are bound by their stipulations and a pretrial stipulation frames the issues for trial.” G.I.C. Corp. v. U.S., 121 F. 3d 1447, 1450 (11th Cir. 1997); Hodges v. U.S., 597 F. 2d 1014 (5th Cir. 1979). The Court views the pretrial stipulation as a narrowing and framing of the central issue for trial—the Plaintiff’s alleged non-discriminatory grounds for the termination of the Defendant. The Court therefore does not anticipate permitting the Plaintiff to rely upon such nondiscriminatory grounds as the Defendant’s poor performance or the Defendant’s inability to get

In light of

Additionally, the probative value of such evidence in an age discrimination case is sufficiently low that the possibility of undue prejudice on the Plaintiff is too great—the jury may be tempted to conclude that because the Defendant gave up such lucrative benefits to work for the Plaintiff, and because the Defendant was terminated, the Plaintiff should be made to pay compensation to the Defendant even though the Defendant was an “at-will” employee. The Court SUSTAINS the Plaintiff’s objections to Defendant’s Exhibits², 15, and 179.4

Finally, any testimony about the Defendant’s attempt to obtain a promise from the Plaintiff for a definite term of employment (which the Court has ruled to be an unenforceable promise) is not relevant to the basis for the Defendant’s termination. In the alternative, even if the foregoing evidence could be considered relevant, it is outweighed by the undue prejudice the evidence would have on the Plaintiff—a jury may be tempted to conclude that the Plaintiff should pay compensatory damages,

even if the Plaintiff’s actions were lawful and not based upon age-based discrimination. The Defendant may testify, however, as to how long he would have chosen to remain employed for the Plaintiff (had he not been terminated), as that testimony goes to the Defendant’s calculation of damages.⁵ Prior Comments on the Defendant’s Performance (Defendant’s Exhibits 17, 18, 23, 24, 33, 34, 35, 40, 43, 50, 53, 70, 74, 76, 87, 90, 97, 100, and 101) The Plaintiff objects to the admission of evidence that establishes that the Defendant was a good employee, pointing out that “Cutlass has never claimed that Mr. Jones never did a good job on any individual task, nor even that he never added value in the development process in 2017 and

The Defendant contends that the challenged exhibits establish the Defendant’s “excellent job performance.” The Court has already ruled that it does not anticipate permitting the Plaintiff to challenge the Defendant’s job performance. The Defendant also contends, however, that the exhibits establish the Defendant’s duties and establish that the Defendant’s duties were needed after his termination and were given to other employees.

Finally, the Defendant represents that the exhibits will be used to establish that the mine was a highly profitable enterprise. Based upon the Defendant’s representation as to how these exhibits will be used at trial, the Court OVERRULES the Plaintiff’s objections to the above-referenced exhibits because the Defendant’s proffered use for the exhibits will be relevant at trial, however, the Court expresses no opinion on whether any particular exhibit meets or requires a hearsay exception. Documents Pertaining to the Plaintiff’s 2021 Creditor Proceeding (Defendant’s Exhibits 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 326, 326A-GG) The Plaintiff objects to the introduction of evidence pertaining to a Canadian creditor proceeding initiated by the Plaintiff in 2021, arguing that the Plaintiff’s financial position in 2021 is not relevant to its financial position in 2019 when the Defendant was terminated. In response,

the Defendant argues that the documents show that the Plaintiff has enjoyed great financial success

The Plaintiff objects to the introduction of the Defendant’s EEOC charge, arguing that there is no dispute that the documents were timely filed, and that the Defendant satisfied all conditions precedent to bring his age discrimination claim. In response, the parties filed a stipulation resolving this dispute at docket entry 197. The Court therefore expresses no opinion on the Plaintiff’s objections. Receipts for Past Business Expenses (Defendant’s Exhibits 41, 72, and 160) The Plaintiff objects to the introduction of over one thousand pages of receipts, arguing that although it may have questioned a few of the business expenses that the Defendant incurred, the Defendant’s business expenses were not the basis for his termination. In response, the

Defendant argues that he is entitled to show that his job performance was not a basis for his termination. As detailed above, the Court does not anticipate permitting the Plaintiff to advance the position at trial that the Defendant was not a good employee or to otherwise question the Defendant’s job performance. The Court therefore SUSTAINS the Plaintiff’s objections to Defendant’s Exhibits 41, 72, and 160, however, the Court’s ruling may be revisited, should the Plaintiff open the door at trial to this evidence. Evidence of an Offer of Employment at Conuma Resources (Plaintiff’s Exhibits PX036, PX354-438, PX442-443, and PX510-516) The Defendant objects on relevance grounds to the admission of documents describing an offer of employment that the Defendant received after he was terminated by the Plaintiff and after he accepted re-employment with his original, pre-Plaintiff employer. The Defendant previously argued that evidence of this type could not presented to the jury as a matter of law, and the Court rejected that argument: PAPERLESS ORDER. In the parties’ Notice of Remaining Issues that Require Adjudication , the Defendant contends that his duty to mitigate his own damages ended when he accepted his current job. The Plaintiff contends that the Defendant’s duty did not end when he accepted employment because, during his employment, he received another, better job offer (in Canada) and that the Defendant should have left his current employment and accepted the job offer in Canada. The affirmative defense of failure to mitigate damages “denies recovery for so much of the losses are as shown to have resulted from failure [on a defendants part] to use reasonable efforts to avoid or prevent the losses.” E.g., Ford Motor Co. v. Dallas Power & Light, 499 F. 2d 400, 414-15 (5th Cir. 1974).

As best as the Court can discern from the record, the parties’ dispute is a question for the jury. A jury will decide whether it would have been a “reasonable effort to avoid or prevent” losses for the Defendant to quit his job, move to Canada, and accept a different job. The Court, at this juncture, can see no basis for the exclusion of evidence pertaining to job offers that the Plaintiff contends the Defendant should have accepted to mitigate his own damages. The Court’s decision is without prejudice for the Defendant to provide the Court with a case (in a future, amended notice of issues that require adjudication) that stands for the proposition that a jury cannot decide whether a decision to reject a job offer was reasonable. The Court will set a date for the amended notice of issues that require adjudication in a future order. DE 182. Because the Court invited the Defendant to provide case law contrary to the Court’s conclusion, the Defendant has now provided three cases which the Court has reviewed. DE 187 at 2 (citing Sennello v. Reserve Life Ins. Co., 667 F. Supp. 1498 (S.D. Fla. 1987), Smith v. Great American Rests., 969 F. 2d 430, 438 (7th Cir. 1992), and J.

H. Rutter v. N.L.R.B., 473 F. 2d 223 (5th Cir. 1973)).

The cases provided by the Defendant reinforce and support the Court’s prior conclusion. A jury must decide when it is reasonable to stop searching for employment, as the Defendant’s cited cases explain. E.g., Sennello, 667 F. Supp. at 1513; Great American, 969 F. 2d at 438. The Defendant’s objections are again OVERRULED as to the above-referenced exhibits, however, the Court expresses no opinion on whether any particular exhibit meets or requires a hearsay exception. The Court also acknowledges, as correct, the Defendant’s observation that he “does not understand [the Court’s prior ruling] to state that all Conuma evidence is admissible.” DE 187 at 3 (emphasis added).

That is true; the Court’s ruling is necessarily general as it is grounded upon the (brief) legal argument that the parties have raised on these matters. The Defendant is free to raise specific objections to specific exhibits, provided the Defendant complies with the Court’s instructions on page one of this Order. Evidence of the Plaintiff’s Financial Difficulties (Plaintiff’s Exhibits PX72-73, PX90, PX97, PX100-101, PX105, PX114-115, PX117, PX119- 125, PX129-133, PX146, PX148-150, PX160-172, PX184-189, PX215, PX221-225, PX27, PX 329, and PX 346-348) The Defendant objects to the introduction of evidence that demonstrates the financial difficulties that the Plaintiff encountered. Just as evidence of the Plaintiff’s financial success would be relevant and therefore admissible for the Defendant, evidence of financial distress is relevant and therefore admissible for the Plaintiff. The Defendant’s argument as to why the abovereferenced documents are irrelevant is difficult to understand: Here, after telling Mr. Jones that his termination had nothing to do with performance and assigning his duties to younger people, suddenly in this lawsuit, Cutlass has offered a series of shifting pretextual reasons to explain its age discrimination. It claims that his performance was lacking, that he was hard to get along with, that they were financially struggling. The shifting and new explanations render them pretext and make them irrelevant.

DE 187 at 4.

First of all, even if the Plaintiff engaged in “shifting pretextual reasons” as to why the Defendant was terminated, the Plaintiff would still be entitled to introduce evidence in support of one of its proffered reasons—the evidence would not become irrelevant as the Defendant suggests.

Second, the Plaintiff’s reliance upon the concept of “shifting pretextual reasons” is misplaced for additional reasons as set forth below. “Pretext may also be established by proof of inconsistent statements or shifting explanations for the adverse employment decision, suggesting that the articulated reasons are recently fabricated or false.” Walker v. St. Joseph’s/Candler Health Sys, Inc., 506 F. App’x 886, 889 (11th Cir. 2013) (citing Bechtel Constr. Co. v. Sec’y of Labor, 50 F. 3d 926, 935 (11th Cir. 1995) and Tidwell v. Carter Prods., 135 F. 3d 1422, 1428 (11th Cir. 1998)).

Throughout the legal argument supporting the Defendant’s objections, the Defendant relies upon the premise that the Plaintiff’s proffered non-discriminatory basis for the Defendant’s termination is “new,”⁸ and “shifting.”9 The Defendant also contends that the Plaintiff did not raise its defense at summary judgment. DE 194 at 2. The Defendant is incorrect.

Defendant’s] position was no longer needed.” DE 65 at 20. The facts supporting the Plaintiff’s Motion for Summary Judgment included facts about the Plaintiff’s financial distress prior to the Defendant’s termination: 27. Prior to Defendant’s termination, Cutlass was failing to make timely payments to vendors and was eventually put on Cash on Delivery requirements by several vendors.

28. Cutlass was struggling financially, in part, because it did not have enough funds from the Cline estate to complete the mine and make it operational.

29. As such, Cutlass was in “cost-cutting, cash-preservation mode” prior to Defendant’s termination.

30. In October 2019, it was well known that Cutlass was struggling operationally.

DE 64 at 6-7 (citations omitted). The primary fact relied upon by the Plaintiff at summary judgment was:

Id. at 10 (citations omitted).

The Defendant’s own deposition testimony confirms that he was told, at the time of his termination, that the Plaintiff no longer needed someone of his “caliber.” Id. If the Plaintiff were to rely upon a basis for termination that was not given to the Defendant at the time of his termination, the Court would understand why caselaw on “shifting explanations” might apply. But the Plaintiff’s non-discriminatory basis for termination discussed in its pretrial stipulation is neither “new” nor “shifting.” The basis the Defendant was given for termination at the time of termination (someone of his caliber was no longer needed), is compatible with the Plaintiff’s pretrial stipulation. True, the Plaintiff has at times asserted other grounds for termination besides the grounds listed in its stipulation, including that the Defendant was, in essence, a bad worker. But those positions will not be pursued at trial, consistent with the Court’s analysis above.

Therefore, if the Defendant relies upon a “shifting explanation” basis for the admission or exclusion of evidence at trial, the Defendant must be prepared to carefully address the Court’s concerns and conclusions outlined in this Order. Turning back to the exhibits at issue in this category, the Defendant’s objections to the above-referenced exhibits are OVERRULED, however, the Court expresses no opinion on whether any particular exhibit meets or requires a hearsay exception. Stillwater Contract Communications (Plaintiff’s Exhibits PX232-233, PX235-245, PX249-260, PX279-280, and PX345) The Defendant objects to the admission of documents concerning the Plaintiff’s negotiation of a contract with another company, Stillwater. The Defendant represents that the Plaintiff’s intended use for these documents is to establish that the Defendant did a poor job in negotiating the terms of the contract, and that this poor performance was a non-discriminatory basis for the Defendant’s termination. The Defendant’s representation about the Plaintiff’s intended use for these documents bears support in the record, because the CEO for the Plaintiff testified in his deposition that the Defendant’s negotiations with Stillwater were “the straw that broke the camel’s back” and led to his termination. DE 64-9 at 13. In response, the Plaintiff does not disavow its intent to use these documents to argue that the Defendant did a poor job in negotiating an agreement with Stillwater and is instead silent on the documents’ intended use. As the Court has ruled, the Plaintiff may not argue at trial that the Defendant was a bad employee or otherwise question his job performance.

Accordingly, to the extent the Plaintiff intended to use these documents as the Defendant represents, the Defendant’s objections to the above-referenced exhibits are SUSTAINED.¹¹ Mineware Servicing Documents (Plaintiff’s Exhibits PX136-137, PX153-159, PX173-175, PX179, PX191-201, PX204-214, PX216-220, PX225-231, PX234, PX246, and PX333) The Defendants object to the admission of documents that concern duties that the Defendant was assigned (pertaining to a software program called Mineware) that were allegedly taken from him and given to a younger employee. The Defendant concedes that these documents are, as a general matter, relevant, but argues that certain documents are sufficiently attenuated to

Plaintiff represents that the documents will be used to establish that the Defendant wanted a lowerpaying job, provided the job required him to travel less than his position at the Plaintiff.

Thus, when the Defendant accepted a lower-paying position after his termination, the Plaintiff will argue that the Defendant was not interested in fully mitigating his damages—that he chose to mitigate his damages only partially because he no longer desired a position that was substantially comparable to the position that he enjoyed at the Plaintiff.

Additionally, the Plaintiff represents that these documents will show that the Defendant knew of the financial problems at the Plaintiff, and that he wanted to find other employment as a result of that knowledge. Based upon the Plaintiff’s proffer of how these documents will be used at trial, the Defendant’s objections to the above-referenced exhibits are OVERRULED, however, the Court expresses no opinion on whether any particular exhibit meets or requires a hearsay exception.

All Remaining Objections The Court expresses no opinion on the remaining objections referenced in the parties’ briefing because the briefing supporting those objections does not lend itself to pretrial adjudication. Finally, because the Court has ruled on most of the issues referenced in the parties’ Notice of Remaining Issues that Require Adjudication at docket entry 173, the parties are ORDERED to file an updated, amended Notice of Remaining Issues that Require Adjudication. The amended Notice is due by⁵:00 p.m. on February 22, 2022. DONE and ORDERED in Chambers, West Palm Beach, Florida, this 18th day of February, 2022. —— fo a ‘ ff ( Fob AM Heer rlorp.

RO L. ROSENBERG

Copies furnished to Counsel of Record UNITED STATES DISTRICT JUDGE