Free Motion in Limine - District Court of Colorado - Colorado

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

Document 49

Filed 10/31/2005

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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'Motion in Limine to Exclude Evidence of Alleged s Visits to Strip Clubs and Conversations about Sex

Defendant, Denver Health and Hospital Authority (" DHHA" by its attorneys, hereby ), moves the Court for an Order excluding from evidence any testimony regarding male co-workers of Plaintiff allegedly visiting strip clubs or engaging in conversations about sex, on the grounds stated herein. Certificate of Compliance with Local Rule 7.1(A) On October 28, 2005, undersigned counsel conferred by telephone with counsel for Plaintiff, Ms. Karen Larson, concerning this Motion. Plaintiff opposes this motion. Motion As a result of a Stipulation for Dismissal of Certain Claims with Prejudice, filed on July 15, 2004, and this Court'Order Granting Motion to Dismiss, filed on December 1, 2004, the s only claims remaining in this action are the following:

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First Claim for Relief, Title VII, racial discrimination and harassment; Second Claim for Relief, Title VII, religious discrimination and harassment; and Fourth Claim for Relief, Title VII, retaliation for complaints of racial and religious harassment.1

Plaintiff'Complaint does not allege any claim of sex discrimination or sexual harassment, nor s did she allege sexual harassment in her EEOC Charge, a copy of which is attached hereto as Exhibit A. In her depositions of several male co-workers of Plaintiff, counsel for Plaintiff asked questions regarding whether they had ever visited strip clubs or had ever engaged in conversations or jokes in the workplace regarding sex, and counsel for Plaintiff has indicated her intention to attempt to introduce evidence of such conduct at trial. See, e.g., the following deposition excerpts: (a) B; (b) (c) (d) Deposition of Bryan Leary, 9:18-11:16, 24:1-9, excerpts attached as Exhibit C; Deposition of Darrell Diggs, 8:2-11:2, excerpts attached as Exhibit D; and Deposition of Jeff McNally, 15:2-20, excerpts attached as Exhibit E; Deposition of David Boone, 12:8-13, 13:20-15:21, excerpts attached as Exhibit

Defendant now moves to exclude all such evidence from trial. First, the evidence is irrelevant under F.R.E. 401 and 402. Whether male co-workers visit strip clubs or discuss or joke about sex has no probative value whatsoever with respect to Plaintiff'claims of s discrimination or harassment on the basis of race and religion. Second, the prejudicial effect of
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Defendant'Motion for Summary Judgment on all of these remaining claims, filed on March s 15, 2005 (#28), remains pending before the Court. 2

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any such evidence would outweigh any probative value which it might conceivably have, and therefore it should be excluded under F.R.E. 403. Third, such evidence would constitute an impermissible attack on the character of these co-workers, all of whom have been listed as witnesses, under F.R.E.608, as specific instances of conduct that have no bearing on the witnesses' character for truthfulness or untruthfulness. WHEREFORE, Defendant DHHA respectfully moves the Court for an order excluding any testimony or other evidence regarding male co-workers of Plaintiff visiting strip clubs or engaging in conversations or jokes about sex. Dated this 31st day of October, 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 CERTIFICATE OF SERVICE I hereby certify that on October 31, 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]

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