Free Motion in Limine - District Court of Colorado - Colorado

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

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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 Testimony by Greg Curry s Of Alleged Discrimination and Racial Jokes or Comments

Defendant, Denver Health and Hospital Authority (" DHHA" by its attorneys, hereby ), moves the Court for an Order excluding from evidence any testimony by Greg Curry regarding alleged discrimination against him and regarding alleged racial jokes or comments heard by him, 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

In her deposition of Greg Curry, a black male co-worker of Plaintiff, counsel for Plaintiff asked questions regarding whether he had ever seen racism in the workplace and whether he had ever heard racial jokes or comments in the workplace. On the subject of jokes or comments, Mr.
2 Curry testified that he has heard the word " monkey" used once in the workplace, but he does not

recall the context. Exhibit A, Curry deposition excerpts, 14:24-15:13, and that he thinks racist comments are made from time to time in the workplace, but he could not identify any specifics other than one Hispanic employee making a comment about Hispanics. Exhibit A, 37:9-38:15. He also testified that he had never heard any comments about the Plaintiff in the workplace. Exhibit A, 22:13-23:14. Vague and conclusory claims regarding the use of racial slurs, without specifics, do not suffice to create a genuine issue of material fact regarding alleged harassment. Ford v. West, 222 F.3d. 767, 777 (10th Cir. 2000). There is no evidence of specific racial comments heard by Mr. Curry that were also heard by Ms. Dixon, so any comments which he heard are not relevant to her claim that she has been harassed in the workplace. Virtually all of Ms. Dixon'allegations s are related either to the use of the word " monkey," to her allegations that comments are being or made about her or her family, and Mr. Curry clearly has no knowledge of such matters, other
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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 Plaintiff claims that she had overheard comments using the word " monkey" numerous times in the workplace and that she considers it a racist word. 2

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than having heard the word " monkey" used once in the workplace without being able to recall the context. His testimony is therefore irrelevant to Ms. Dixon'claims, under F.R.E. 401 and s 402, and any testimony by him as to his vague claims of racial comments would be unduly prejudicial under F.R.E. 403. As to alleged racial discrimination in the workplace, Mr. Curry offered equally vague testimony in his deposition, testifying that employees of a contractor that provides services to DHHA, Interlink, are mostly white, that there seem to be Interlink " cliques" DHHA and " cliques," " white bread atmosphere of Interlink spills over into the Denver Health," that the and that he'been told not to apply for a position because it was being filled by an Interlink s employee. When asked whether he believed that was because of race, he testified, at 30:12-31:4: 12 Q. But you do think it's based on race? 13 A. Because, yeah, that's the way I have 14 to -- that's how I decipher it, is the fact that 15 I want to -- to function, I say it's because 16 they're from Interlink. I would hate to think 17 that -- in my heart, yes, it's race, yes, but 18 in my mind, I have to say it's because it's 19 Interlink. 20 Q. Could it be because Jeff Pelot and 21 Jeff Veltri have certain preferences -22 A. Yeah. 23 Q. -- including maybe racial 24 preferences? 25 MR. JOHNSON: Objection, 00031 1 speculation. 2 Q. (BY MS. LARSON) If you believe 3 that? 4 A. Yes. Mr. Curry'vague feeling in his heart that race may have had something to do with his being s told not to apply for a position, as well as his other comments about cliques, have no relevance to

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Ms. Dixon'allegations of racial and religious harassment or discrimination. Ms. Dixon has not s alleged that she applied for and was denied any position, nor has she alleged discrimination at the hands of Mr. Veltri or Mr. Pelot. Mr. Curry'vague testimony about possible racial s discrimination should be excluded under F.R.E. 401, 402, and 403. WHEREFORE, Defendant DHHA respectfully moves the Court for an order excluding any testimony by Greg Curry regarding alleged discrimination against him and regarding alleged racial jokes or comments heard by him. 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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