Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00558-MSK-OES

Document 51

Filed 11/10/2005

Page 1 of 6

IN THE DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. 04-CV-0558-MSK-PAC DEBORAH DIXON, Plaintiff, v. DENVER HEALTH AND HOSPITAL AUTHORITY, Defendant.

Defendant'Response to Plaintiff'Amended Motion in Limine s s

Defendant, Denver Health and Hospital Authority (" DHHA" by its attorneys, hereby ), responds to Plaintiff'Amended Motion in Limine, (#47), filed on October 24, 2005. s Plaintiff'Motion should be denied, as it is an attempt to allow Plaintiff to present her s allegations of harassment to the jury, while " sanitizing" those allegations to prohibit evidence of aspects of those allegations which call into question whether the allegations are true. Plaintiff has opened the door by suing DHHA based on these allegations, and the Court should not impose a straightjacket on DHHA'right to show the jury that Plaintiff'allegations of s s harassment are not credible. Plaintiff'Motion attempts to sanitize and limit evidence as to three s specific allegations of harassment by Plaintiff: 1. Plaintiff has alleged that her co-workers made " hitting sounds" when they were

around her, and she claims that these sounds constituted part of a campaign of harassment of her. In her Complaint, she complains that " other workers meet and confer and tell jokes and laugh

Case 1:04-cv-00558-MSK-OES

Document 51

Filed 11/10/2005

Page 2 of 6

about Plaintiff'family and about members of her family who have had drug problems and s problems with the law." Complaint, (#1), par. 20. In her deposition, Plaintiff testified at some length about these supposed hitting sounds, as well as about other employees supposedly talking about Plaintiff and her children or niece, and how she knew the conversation was about her because details that were discussed matched what had previously been reported in social services records. (See excerpts from Plaintiff'deposition attached at Tab A to DHHA'Motion for s s Summary Judgment filed on March 15, 2005 (#28-29), at 130:4-134:22). In her signed, written statement submitted as part the DHHA investigation of her harassment complaint, Plaintiff claimed that " someone performed a central registry check" on her. (Deposition exhibit 6, submitted under seal with DHHA'Motion for Summary Judgment s filed on March 15, 2005 (#30), at p. D00022, 7th bullet point). Plaintiff testified that " central registry" part of social services, and that co-workers must have accessed those records because is they were talking about her spanking the butts of her son and stepdaughter, which Plaintiff had never discussed at work. (Plaintiff'deposition attached at Tab A to DHHA'Motion for s s Summary Judgment, at 51:24, 53:10-54:10). She testified that she considered these comments and handslapping to be racial slurs. (Id., at 68:25-69:6, 75:9-77:22) Now, apparently recognizing the implausibility of her claims since Plaintiff has zero evidence that any co-workers accessed her social services records, Plaintiff seeks to prevent DHHA from informing the jury that the sole explanation offered by Plaintiff for the conclusions she drew from comments and sounds she claims to have heard is that social services records were nefariously obtained by co-workers. Having based her claims upon these allegations, Plaintiff cannot be allowed to cover up the facts and her reasoning that show her claims to be

2

Case 1:04-cv-00558-MSK-OES

Document 51

Filed 11/10/2005

Page 3 of 6

incredible. The probative value of this evidence vastly exceeds any prejudicial effect on Plaintiff. 2. Plaintiff next asks the Court to bar any references to her education records at

Denver Public Schools. Once again, supposed comments by her co-workers about her education are explicitly alleged in her Complaint (#1), at par. 19), in the first written complaint she submitted to DHHA (Deposition exhibit 6, submitted under seal with DHHA'Motion for s Summary Judgment, at p. D00020), in her written statements made during DHHA'investigation s (Id. at p. D00024), and at length in her deposition. She testified that she heard co-workers talking about details of her education that they must have gotten from her Denver Public Schools records. (Plaintiff'deposition attached at Tab A to DHHA'Motion for Summary Judgment, at s s 23:2-28:25; additional deposition testimony attached hereto as Exhibit A, at 116:13-118:7) Plaintiff'Corrected Response to Motion for Summary Adjudication, submitted to the Court on s April 21, 2005 (with #39) places great emphasis on supposed comments about Plaintiff' s education and asserts at p.2, " gossip about education is a stereotyping of AfricanThe Americans." Once again, Plaintiff cannot pursue her claims of a grand conspiracy of some 28 employees gossiping about her education and harassing her without DHHA being allowed to cross examine Plaintiff as to the basis for her allegations. The fact that such basis is highly implausible and therefore may affect the credibility of Plaintiff'claims merely demonstrates s how highly probative the evidence is. Plaintiff cannot retroactively edit her story, to present only the portions favorable to Plaintiff'case, while avoiding the evidence that casts substantial doubt s on Plaintiff'assertions. s

3

Case 1:04-cv-00558-MSK-OES

Document 51

Filed 11/10/2005

Page 4 of 6

3.

Finally, Plaintiff asks the Court to bar any references to criminal records of her

family. Plaintiff'Complaint specifically alleges that co-workers have gossiped about her family s members who have had drug problems and problems with the law. (Par. 20) Plaintiff testified that alleged racial harassment against her included co-workers talking " day" all about her son, Andre, selling drugs when he was 19, based on information the co-workers had dug up from seven or eight years earlier. (Plaintiff'deposition attached at Tab A to DHHA'Motion for s s Summary Judgment, at 63:20-64:24; 128:10-129:21). These incidents are also described in notes of Plaintiff'that Plaintiff has listed as a trial exhibit. (Deposition Exhibit 7, attached to s DHHA'Motion for Summary Judgment, at p. P27-0023)(" that when I hear Mora Sheehan s And say out loud " what " oh my God oh my God the way they were investigating me I knew 19" 19" it was some more info on my son." ). Plaintiff has again injected this issue into the case, and DHHA cannot be prohibited from presenting evidence to fully inform the jury of the nature of Plaintiff'allegations. The fact that s Plaintiff has admitted that she has no personal knowledge to establish that any particular coworkers in fact obtained records from social services, from Denver Public Schools, or any criminal records about her son does not prohibit DHHA from demonstrating how Plaintiff has speculatively jumped to irrational conclusions in making her allegations. Even aside from the specific allegations by Plaintiff to which her motion in limine relates, this evidence is highly probative with respect to Plaintiff'claims of harassment in toto. s Virtually all of Plaintiff'allegations are of comments that she claims to have overheard and that s she says she interprets as being about her, or about African-Americans. The evidence that Plaintiff now seeks to exclude casts substantial doubt on her ability to accurately hear and

4

Case 1:04-cv-00558-MSK-OES

Document 51

Filed 11/10/2005

Page 5 of 6

interpret comments in the workplace. This evidence is highly probative to allow the jury to consider whether Plaintiff has invented, imagined, misheard, or misinterpreted virtually all of the supposed comments upon which her lawsuit is based. Plaintiff'Motion in Limine should be denied. s

Dated this 10th day of November, 2005.

FAIRFIELD AND WOODS, P.C.

s/Brent T. Johnson Brent T. Johnson, 12337 Fairfield and Woods, PC 1700 Lincoln Street, Suite 2400 Denver, Colorado 80203 (303) 830-2400 [email protected] ATTORNEYS FOR PLAINTIFF

5

Case 1:04-cv-00558-MSK-OES

Document 51

Filed 11/10/2005

Page 6 of 6

CERTIFICATE OF SERVICE I hereby certify that on November 10, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] (Karen Hendrick Larson) s/Brent T. Johnson Brent T. Johnson, 12337 Fairfield and Woods, PC 1700 Lincoln Street, Suite 2400 Denver, Colorado 80203 (303) 830-2400 [email protected]

6