Free Order on Motion in Limine - District Court of Arizona - Arizona

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Case 2:03-cv-02077-EHC Document 119 Filed 08/25/2006 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Robert Gant and Betty Gant, Husband and) ) Wife, ) ) Plaintiffs, ) ) vs. ) Roger Vanderpool, Sheriff of Pinal) County; Pinal County, a political) subdivision; John Does and Jane Does I-X;) ABC Corporations I-X; and XYZ) ) Partnerships I-X, ) ) Defendants. )

No. CIV 03-2077-PHX-EHC ORDER

Pending before the Court are Plaintiffs' and Defendants' respective Motions in Limine. (Dkts. 85, 88-91.) Plaintiffs' Motion in Limine Re: Pre-Employment Records and Testimony of Robert Gant Plaintiffs seek to preclude evidence of "any testimony or production of documents by Defendants regarding the employment history of Plaintiff Robert Gant prior to becoming employed by Defendant Pinal County. Such evidence must be excluded as not relevant and prejudicial to the instant matter. Fed. R. Evid. 401 and 403." Motion, p. 1 (Dkt. 89.) Defendants filed a Response indicating that "Defendants do not intend to offer any evidence regarding Plaintiff's employment with the Eloy Police Department unless Plaintiff opens the door to such testimony thus making it relevant." Response, p. 1 (Dkt.

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103.) The Court will grant Plaintiffs' Motion without prejudice to Defendants' further objections urged at trial or by a subsequent motion.

Plaintiffs' Motion in Limine Re: Evidence of Performance by Robert Gant And Others on the Assessment Center Examination Plaintiff Robert Gant claims he was discriminated against when not promoted to the rank of lieutenant in June of 2001. The test for promotion included what is called the Assessment Center, a multi-part interview process. Portions of the test were video-taped. Plaintiffs seek to exclude any video recordings or testimony "regarding the performance by Robert Gant or any other persons on the assessment center examination taken on or about June 11-13, 2001. Such evidence must be excluded as not relevant and prejudicial to the instant matter. Fed.R.Evid. 401 and 403." Motion, p. 1 (Dkt. 90.) Plaintiffs argue that Defendants intentionally discriminated against Robert Gant based on "how and when the assessment center was administered, not on the results, format or content of such test." Id. at 2 (emphasis in original). Plaintiffs argue that how Robert Gant or other persons performed on the assessment center is "not related in any way to Plaintiffs' claims, and would have no tendency to make the existence of any fact that is of consequence to this matter more or less probable," and is thus irrelevant. Id. Further, Plaintiffs argue, the evidence should be kept out based on Rule 403 because the "sole purpose of such evidence would be to cast Robert Gant in a bad light and would unfairly prejudice the jurors' minds with respect to the issues that are relevant to this matter." Id. at 3. Defendants argue that "[o]nly now does Plaintiff, for the first time, contend that Defendants discriminated against him based on 'how and when' the Assessment Center was administered, not on the 'results, format or content' of such tests." Response, p. 3 (Dkt. 101) (citation omitted). Defendants contend that "[t]his case is not about 'how and when' the Assessment Center was administered[, but it is] about why Plaintiff was not promoted." Id. They argue that Plaintiff Robert Gant's performance on the test has a -2Case 2:03-cv-02077-EHC Document 119 Filed 08/25/2006 Page 2 of 6

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"direct bearing on why Plaintiff was not promoted." Id. at 4. Further, Defendants argue that while this evidence is likely be prejudicial to Plaintiffs' case, it is not unfairly prejudicial such that it substantially outweighs its probative value. Id. Having considered the parties' positions, and the authority cited, the Court will deny Plaintiffs' Motion in Limine without prejudice to re-urging at trial.

Plaintiffs' Motion in Limine Re: Testimony of Disciplinary Actions by Defendants Against Robert Gant Plaintiffs allege in their Complaint that Defendants intentionally discriminated against Robert Gant because, in part, Defendants failed to promote Gant in 2001 and 2004. Plaintiffs argue that "disciplinary actions taken by Defendants against Robert Gant would be beyond the scope of Plaintiffs' Complaint and the factual and legal basis upon which Plaintiffs seek relief, and would either be not relevant to the instant case and/or prejudicial." Motion, p. 2 (Dkt. 91.) Plaintiffs argue that the evidence is irrelevant. Plaintiffs argue, "[m]oreover, such evidence would certainly confuse the issues of this case, such that the trial would focus almost entirely on whether there was a causal connection between the disciplinary actions taken by Defendants against Robert Gant and Defendants failing to promote him, which is not a claim that Plaintiffs have made in this case." Id. at 3. Defendants argue that Robert Gant's termination on February 8, 2002 for misrepresenting his time-sheets is directly relevant to the case.1 Response, p. 1 (Dkt. 102.) Defendants argue that because Plaintiffs have alleged that termination to be a discriminatory act, the Defendants have the obligation to provide legitimate, nondiscriminatory reasons for terminating Plaintiff Robert Gant. Defendants argue that Plaintiffs themselves previously argued that the termination was relevant to Plaintiffs' Defendants note that while Plaintiffs do not specify what disciplinary actions they seek to preclude, Defendants assume it includes Robert Gant's February 8, 2002 termination as a result of Gant's misrepresented time-sheets. -3Case 2:03-cv-02077-EHC Document 119 Filed 08/25/2006 Page 3 of 6
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claims of discrimination; Plaintiff "cannot now claim that it is irrelevant so as to avoid having the jury hear about this discipline." Id. at 3. In a footnote, Defendants concede that the disciplinary action of terminating Robert Gant would be irrelevant only if "(1) [Gant] is not alleging that he was terminated on February 8, 2002 for any improper reason, e.g., age or race; and (2) that his termination forms no part of his hostile work environment claim, and (3) that his termination will not be mentioned by his expert witness." Id. Having considered the parties' positions, and the authority cited, the Court will deny Plaintiffs' Motion in Limine without prejudice to re-urging at trial.

Defendants' Motion in Limine Re: Discrimination Alleged by Other Employees Plaintiffs want to introduce evidence of racially inappropriate remarks by, Mr. Campbell, an employee of the Sheriff's office at the time. The remarks were made one month after Gant was passed up for promotion in 2001, and six months before Gant was terminated in 2002. Gant was not present during the remarks. The remarks were made to another employee who, like Gant, was also seeking promotion. The remarks were memorialized by that employee in an internal grievance which he filed with the Sheriff's Office. Defendants filed a Motion in Limine seeking to preclude such evidence because it is irrelevant and attenuated. Motion, p. 2-3 (Dkt. 85.) Defendants argue that the statements are irrelevant because Mr. Campbell is not a Defendant in this case; nor have Plaintiffs introduced any evidence that Mr. Campbell's racially inappropriate comments affected Sheriff Vanderpool's decisions on promoting Gant. Plaintiffs contend, on the other hand, that "Hal Campbell was responsible for managing the day-to-day affairs of the Pinal County Sheriff's Office, and implicitly had the ability and authority to affect Plaintiff, including the administration of promotion examinations." Response, p. 3 (Dkt. 106.)

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Rule 401 provides that relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. While the statements are somewhat attenuated with respect to the adverse employment actions taken against Gant, they tend to make the existence of racial discrimination against Gant more probable than it would be without the evidence. The fact that the statements were made by Mr. Campbell, and not Sheriff Vanderpool, does not make the evidence irrelevant. Work environments and promoting decisions do not exist in a vacuum. Any attenuation between the statements and the adverse action is a matter of evidentiary weight, not admissibility, and is otherwise the subject of argument. Defendants' Motion in Limine will be denied.

Defendants' Motion in Limine Re: Information Relied Upon by Expert Testimony by Jay Finkelman After He Wrote His Report Defendant seeks to exclude evidence of "any testimony by Plaintiffs' expert Jay Finkelman regarding any information reviewed after his report." Motion, p. 1 (Dkt. 88.) The basis for Defendants objection is that Dr. Finkelman, during his deposition, did not know "who had conducted a relevant internal affairs investigation," and could not "identify who was interviewed as part of the investigation." Motion, p. 1-2 (Dkts. 88.) Plaintiffs claim they "have not provided Dr. Finkelman with any new information since he prepared his report and since he testified at his deposition, and Plaintiffs have not asked Dr. Finkelman to update his report or modify his deposition testimony; therefore, there was no need for supplemental disclosures as Defendants argue." Response, p. 1 (Dkt. 107.) Defendants contend that "[i]f Dr. Finkelman attempts to provide trial testimony that either expands his opinions as authored in his report, or relies on any newly reviewed documents, such testimony should be excluded." Reply, p. 2 (Dkt. 113.) The Court will deny Defendants' Motion without prejudice to re-urging at trial.

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Accordingly, IT IS ORDERED GRANTING Plaintiffs' Motion in Limine Re: PreEmployment Records and Testimony of Robert Gant, without prejudice to Defendants' further objections urged at trial or by a subsequent motion. (Dkt. 89.) IT IS FURTHER ORDERED DENYING Plaintiffs' Motion in Limine Re: Evidence of Performance by Robert Gant And Others on the Assessment Center Examination, without prejudice to re-urging at trial. (Dkt. 90.) IT IS FURTHER ORDERED DENYING Plaintiffs' Motion in Limine Re: Testimony of Disciplinary Actions by Defendants Against Robert Gant, without prejudice to re-urging at trial. (Dkt. 91.) IT IS FURTHER ORDERED DENYING Defendants' Motion in Limine Re: Discrimination Alleged by Other Employees. (Dkt. 85.) IT IS FURTHER ORDERED DENYING Defendants' Motion in Limine Re: Information Relied Upon by Expert Testimony by Jay Finkelman After He Wrote His Report without prejudice to re-urging at trial. (Dkt. 88.) DATED this 21st day of August, 2006.

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