CANDY W. DALE, District Judge.
Pending before the Court are Plaintiff's Motion to Strike Criminal Records and Related Information (Dkt. 18) and Motion to Strike Inadmissible Documents and Statements (Dkt. 22), both filed in response to materials submitted by Defendants in support of their Motion for Summary Judgment (Dkt. 15). In the interest of avoiding delay, and because the Court finds the decisional process would not be significantly aided by oral argument, the motion will be decided on the record and without oral argument. Dist. Idaho L. Rule 7.1(d). Preliminarily, however, the undersigned notes that the Motion for Summary Judgment is pending for resolution by the presiding District Judge, who retains the discretion to modify the rulings contained in this decision should he conclude the undersigned committed error. 28 U.S.C. § 636(b)(1)(A).
On May 7, 2015, Plaintiff Nova Miller filed her Complaint against Defendants Lemhi County and the Lemhi County Commissioners John Jakovac, Richard Snyder, and Robert Cope,
In October of 2013, a landfill employee reported to the Lemhi County Treasurer that he suspected Jack Miller, the landfill manager and Miller's husband since 2011, was involved in the theft of county property. (Dkt. 15-2 at 2.) Specifically, the employee reported that Jack Miller allegedly placed tires purchased by the county onto Miller's vehicle. Id. The Lemhi County Sheriff's Office started investigating the alleged theft. Id. On October 31, 2013, Jack Miller admitted in writing that he purchased tires with county funds and retained cash received from recycling materials for personal use. Id.
On November 1, 2013, multiple undisputed events occurred: (1) the County issued Jack Miller a Notice of Proposed Termination and Suspension without Pay (Dkt. 15-7 at 144 - 49); (2) Commissioner Jakovac notified Miller that the County was suspending her from her employment, with pay, pending an investigation into her involvement with her husband's theft (Dkt. 15-2 at 3); (3) during this meeting with Jakovac, Miller reported her complaints of employment discrimination to him;
On November 6, 2013, the County issued Jack Miller a Notice of Decision Regarding Personnel Action: Termination of Employment, based on his admission "to having committed theft of money and property belonging to Lemhi County," and the corroboration of the confession provided by the County Sheriff's Office.
The next day, Miller relinquished her keys to the County Clerk on November 7, 2013, and discussed her discrimination complaints while there; the Clerk followed up by sending Miller a copy of the County's complaint procedure. Id. at 79 - 81.
During the November of 2013 investigation into Miller's suspected involvement with Jack Miller's theft of county property, the County also initiated an investigation into Miller for alleged falsification of time cards and abusive conduct toward her fellow employees. (Dkt. 15-1.) In her Complaint, Miller alleges the supplemental investigation occurred as a result of statements and complaints made by the same coworkers Miller alleges discriminated against her.
On December 4, 2013, the County issued Miller a Notice of Proposed Personnel Action — Termination and Notice of Suspension without Pay Pending Decision, based on the County's determination that Miller: (1) engaged in abusive conduct toward fellow employees; (2) falsified time cards by claiming to work on days she was absent; and (3) engaged in criminal conduct because it is "apparent that you knew that tires for your vehicle were obtained using County funds." Decl. Morton (Dkt. 15-8 at 12 - 16).
On December 9, 2013, Miller's counsel sent the County a letter detailing, among other concerns, that: (1) Miller's employment position was already posted as a vacancy; (2) interviews were being held, (3) it appeared the County had already made a determination about Miller's employment status; (4) Miller was the victim of discrimination; and (5) reinstatement of Miller to her position and back pay were appropriate. Id. at 1 - 5. On December 17, 2013, following Miller's pre-termination hearing, the County voted to terminate her employment, effective 3:45 p.m. Decl. Counsel (Dkt. 15-4 at 35). On December 19, 2013, the County issued Miller a Notice of Decision Regarding Personnel Action: Termination of Employment for the following reasons: (1) "engaging in abusive conduct to fellow employees;" and (2) "participating in a scheme or deception designed to create incorrect personnel records by falsifying time sheets by claiming to have worked on days when you were absent from work." Decl. Morton (Dkt. 15-8 at 17 - 22). The County did not terminate Miller's employment for any alleged criminal conduct in connection with Jack Miller. Id.
On April 17, 2014, Jack Miller was arraigned in state district court in Lemhi County on criminal theft charges. On August 21, 2014, the State of Idaho and Jack Miller entered into a Plea Agreement, and on November 20, 2014, the state court entered an Order Withholding Judgment and Order of Probation. Id. at 25 - 35.
On summary judgment, to support a claim or defense, the party asserting that a fact cannot be established or is genuinely disputed must cite to particular materials in the record, including depositions, documents, affidavits or declarations, admissions, interrogatory answers, or other materials. Fed. R. Civ. P. 56(c)(1)(A). Alternatively, the adverse party can demonstrate that the other party cannot produce admissible evidence to support a fact. Fed. R. Civ. P. 56(c)(1)(B). An opposing party may object also that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
With regard to motions to strike as a means of objecting to evidence submitted in support of or against a motion for summary judgment, the Advisory Committee Notes to the 2010 amendments to Rule 56 of the Federal Rules of Civil Procedure provide that a Rule 56(c)(2) objection "functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike." Fed. R. Civ. P. 56 advisory committee's note (2010 Amendments). Motions to strike are limited to pleadings, which are defined by Federal Rule 7(a) as "exhibits filed in support of, or in opposition to, a motion for summary judgment are not pleadings." Shelton v. Reinke, No., 2013 WL 1319630, at *11 (D. Idaho Mar. 28, 2013), aff'd, 585 F. App'x 359 (9th Cir. 2014). Accordingly, the motions to strike filed by Miller will be construed as objections to the Court's consideration of certain materials submitted by Defendants in support of their motion for summary judgment.
Miller filed two motions to strike. The first motion seeks to strike the records of criminal proceedings against Jack Miller and the Notices of Decision Regarding Personnel Action issued to Jack Miller. Further, Miller seeks to strike the related references to these documents in the memorandum the County filed in support of their motion for summary judgment (Dkt. 15-1) and in their Statement of Undisputed Material Facts (Dkt. 15-2).
"Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 401.
Miller moves to strike Jack Miller's Plea Agreement (Dkt. 15-8 at 32 - 35) and Order Withholding Judgment and Order of Probation (Dkt. 15-8 at 25 - 31) on the following grounds: (1) relevancy; (2) impermissible character evidence; (3) impermissible and premature impeachment evidence; and (4) danger of unfair prejudice to Miller. The Court discusses each in turn.
Miller argues that Jack Miller's criminal records are not relevant to her claims in this case and have been incorporated into the record by the County in an effort to establish guilt by association with her husband. Further, she argues that the County has made no argument connecting Jack Miller's criminal records to her employment discrimination claims in this lawsuit. The County argues that proof Jack Miller pleaded guilty to criminal charges stemming from the alleged theft of county property demonstrates that the County's investigation into Miller was justified, and thus, is relevant to its defense. Further, the County contends the criminal records provide context and background regarding the reasons for the initial suspension and investigation into Miller, and proves her termination was not the product of unlawful retaliation.
The relevancy of the relationship between the evidence and the claims and defenses of the parties is determined on a case-by-case basis:
Fed. R. Evid. 401 advisory committee's note.
The County's argument fails to establish a logical relationship between Jack Miller's criminal records and the County's justification for its initial investigation of Miller in November of 2013, and the termination of her employment. First, the criminal proceedings documented in these records did not begin until some four months after Miller's employment was terminated. Second, the state court accepted Jack Miller's guilty plea per the written plea agreement nine months after the investigation of Miller was initiated. Finally, the state court did not enter its Order Withholding Judgment and Order of Probation until eleven months following the termination of Miller's employment.
Prior to initiating its investigation into Miller, the County was aware of only the written admission of theft made to the Sheriff's office by Jack Miller. The County's attempt to rely upon what it learned long after Miller's employment was terminated, as justification for its actions during its investigation and termination of her employment, does not make the documents relevant to what the County knew at the time of the investigation of Miller. These records, although appearing authentic, do not tend to prove a fact of consequence—what the County actually knew at the time it began its initial investigation of Miller—which purportedly justified the actions the County took with regard to her employment. Accordingly, under Fed. R. Evid. 401, the criminal records are not relevant to Miller's claim of discrimination and retaliation, or the County's defenses. The objection to the Court considering the same in connection with motion for summary judgment will be sustained.
Miller alternatively argues that Jack Miller's criminal records are inadmissible under Fed. R. Evid. 404(b), "because the County seeks to establish that, because Jack Miller [admitted] to theft while working at the landfill, he similarly assisted Plaintiff with her alleged time card fraud." (Dkt. 18 at 5.) Miller contends that the County's introduction of Jack Miller's criminal records is an attempt to demonstrate conformity to a specific action, which is prohibited under Fed. R. Evid. Rule 404(b). (Dkt. 18-1 at 2.) Further, Miller argues that "the inclusion of the criminal information is an impermissible circumvention of Rule 404, with the County seeking to impute Jack Miller's criminal actions to Plaintiff," and therefore, the criminal records and information should be excluded or stricken from the record. Id.
The County asserts the evidence was not submitted to prove Jack Miller acted in accordance with a particular character trait on a particular occasion, nor was it submitted to show he assisted with time card fraud or to impugn Miller's honesty and truthfulness through Jack Miller's unrelated actions. (Dkt. 19 at 4 - 5.) Instead, the County argues the evidence was submitted for another purpose—to prove that the County's initial investigation into Miller was justified and there was no unlawful retaliation. Id. at 5. But, the County misses the point—Jack Miller's criminal proceedings occurred long after the County's actions and decisions regarding Miller's employment. This objection will also be sustained and the records will not be considered in connection with the motion for summary judgment.
In addition to her other arguments, Miller raises the argument that, "because Jack Miller has yet to testify in this matter other than in his deposition, evidence of his prior felony under Rule 609 for impeachment is premature." (Dkt. 18-1 at 2.) She further argues that, because Idaho Rule of Evidence 609(c)
The County argues that Rule 609 is
The Court finds that, under Federal Rules of Evidence 1101 and 609, it is premature to take up this issue until and unless Jack Miller is called to testify at trial.
Miller further argues "evidence of Jack Miller's criminal action is inadmissible under Rule 403 because the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to Plaintiff, and is confusing and misleading." (Dkt. 18-1 at 8.) Because the Court has found already the records of the criminal proceedings have no probative value to resolving the motion for summary judgment, this objection is moot and needs not to be addressed unless raised at the time of trial if the records are offered by the County at that time.
Miller moves to strike two County personnel action documents issued to Jack Miller: (1) Notice of Proposed Termination and Suspension without Pay, dated November 1, 2013; and (2) Notice of Decision Regarding Personnel Action: Termination of Employment, dated November 6, 2013. (Dkt. 15-7 at 144 - 51.) However, Miller does not make any specific arguments about these documents or why they are not admissible. (Dkt. 18-1.) Instead, Miller makes her arguments in the second motion to strike. Therefore, the Court will address these objections below, in its discussion of Miller's second motion to strike.
In the first motion, Miller also requests the Court to strike five paragraphs from Defendants' Statement of Undisputed Material Facts ("Statement") on relevancy grounds. (Dkt. 15-2.)
Defendants included in paragraph 6 of their Statement that "[t]he Sheriff developed evidence that Jack Miller had in fact pocketed over twenty thousand dollars in proceeds from the sale of County recyclables and that he had also used County funds to purchase tires for plaintiff's truck." Id. There is no citation to the record in support of this alleged fact. However, this $20,000 figure appears to come from the Affidavit of Probable Cause which the Court finds is not admissible for reasons explained below in connection with Miller's second motion to strike. (Dkt. 15-7 at 68.)
In paragraph 8 of the Statement, the County asserts that: "Plaintiff exercised her right to remain silent and denied any knowledge of the crimes. She was never criminally charged." (Dkt. 15-2.) Again, there is no citation to the record to support this alleged fact.
Miller disputes Defendants' version of these two purported facts, and filed a Statement of Disputed Facts. (Dkt. 20-1.) Upon review of Miller's objections and the record, the Court finds these two paragraphs do not accurately reflect information the County had been provided by the Sheriff's Office at the time the County initiated its investigation of Miller. Furthermore, paragraph 8 is not supported by the record.
Miller next moves to strike paragraphs 7 and 10 in the Defendants' Statement that, "[o]n October 31, 2013, [Jack] Miller admitted to the Sheriff that he kept the County's recycling proceeds and that he also charged the County for tires purchased for plaintiff's vehicle." (Dkt. 15-2.) Further, that "[t]he criminal investigation prompted the County to investigate whether Nova Miller was involved with her husband/supervisor's theft." Id.
These paragraphs appear to recite what the County learned from the Sheriff's office prior to initiating the investigation of Miller. The County's knowledge regarding Jack Miller's alleged theft and the possibility of Miller's involvement in it is a fact of consequence when determining whether Miller's termination was the product of unlawful retaliation. Therefore, these paragraphs may be considered in connection with the motion for summary judgment and Miller's objections to paragraphs 7 and 10 will be overruled.
Miller also moves to strike the County's purported undisputed fact in paragraph 9 of Defendants' Statement that "Plaintiff's husband was suspended without pay on October 31, 2013. He did not dispute the allegations against him and was discharged from his employment on November 6, 2013. He later pleaded guilty to grand theft." Id. at ¶ 9.
The first and second sentences in this paragraph are relevant, as they are supported by the record of what the County knew in early November and are related to the notices of personnel action and the reason for initiating the investigation of Miller. Therefore, the objection to sentences one and two will be overruled. However, the third sentence refers to Jack Miller's Plea Agreement; it is not relevant, and should not be considered in connection with the motion for summary judgment. Accordingly, the objection to sentence three will be sustained.
Miller's second motion seeks to strike all documents and statements lacking relevance; relying on speculation or hearsay; and/or provided without foundation.
Miller argues that "[f]acts presented in support of a motion for summary judgment must be presented in a form that would be admissible in evidence." (Dkt. 22-1 at 2) (internal quotations omitted). Miller misconstrues Federal Rule of Civil Procedure 56. The Rule states: "A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). At the motion for summary judgment stage, the focus is on the content of the evidence; if the evidence "may be presented in an admissible form at trial, a court may still consider that evidence." Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); Burch v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1120 (E.D. Cal. 2006).
Miller moves to strike materials relating to Jack Miller's criminal case and employment with the County based on hearsay objections and the relevance arguments made in the first motion to strike.
In its discussion above, the Court found that the Order Withholding Judgment and the Plea Agreement are not relevant and should not be considered in connection with resolving the pending motion for summary judgment. Therefore, Plaintiff's objection to these two documents will be sustained.
The Court will next address Miller's relevance objections and discuss the hearsay objections regarding the personnel documents in turn below.
Miller moves to strike two County personnel action documents issued to Jack Miller: (1) Notice of Proposed Termination and Suspension without Pay, dated November 1, 2013; and (2) Notice of Decision Regarding Personnel Action: Termination of Employment, dated November 6, 2013. (Dkt. 15-7 at 144 - 51.)
Miller argues these notices are not relevant to her "hostile work environment, gender discrimination, or procedural due process claims." (Dkt. 18-1 at 3.) The County, on the other hand, argues that these documents are relevant because they prove the legitimacy of its initial investigation into Miller. (Dkt. 19 at 3.) As part of its defense, the County claims its termination of Miller's employment was not unlawful retaliation, and therefore these notices are relevant to proving the County had a legitimate reason to initiate the investigation that eventually led it to terminate Miller's employment.
Here, during the decision-making process to investigate Miller regarding her knowledge and potential involvement with her husband's alleged theft of county property, the County knew Jack Miller made a written admission to the Sheriff on October 31, 2013. The County knew about the notice suspending Jack Miller effective November 1, 2013, because it issued the notice. Additionally, Miller was suspended from her employment on this same date, pending an investigation. Jack Miller's employment was terminated three days later, on November 4, 2013, just after the initial investigation of Miller began.
Under Rule 401 of the Federal Rules of Evidence, the Court finds both notices of personnel action regarding Jack Miller have relevancy to this action and the pending motion for summary judgment. This objection will, therefore, be overruled.
Miller reiterates her relevance arguments with regard to Jack Miller's Annual Performance Evaluation. Miller contends the evaluation, dated September 27, 2010, has the characteristics of a reflection as opposed to an evaluation. (Dkt. 22-1 at 7.) She argues that the only time the County cites this document in connection with its motion for summary judgment is in support of a statement that is unrelated to it: "Jack Miller did not dispute the allegations against him and was discharged on November 6, 2013." Id. The County fails to address this specific document in its response to Miller's second motion to strike, relying solely on its generalized arguments summarized by the Court above. (Dkt. 24.)
Because the County fails to demonstrate how Jack Miller's Annual Performance Evaluation in 2010 is relevant to the investigation of Miller, or to her claims or the County's defenses in this lawsuit, this evidence should not be considered in connection with the motion for summary judgment. This objection will, therefore, be sustained.
Miller argues the Affidavit of Probable Cause filed in Jack Miller's criminal case lacks relevancy to her claims or the County's defense, because it is only probative of Jack Miller's activities, not the County's employment-related investigation of Miller. (Dkt. 22-1 at 5.) In response, the County again argues that it was submitted with its motion for summary judgment as justification for the initial investigation into Miller. (Dkt. 24 at 3.)
The Affidavit of Probable Cause was not signed by Sheriff Bowerman until November 18, 2013—weeks after the initial investigation into Miller began—and was not filed with the state court until February 3, 2014. Thus, it lacks timeliness relative to the initiation of the investigation into Miller. Moreover, the County has not offered any evidence as to when the County obtained the Affidavit of Probable Cause, or that it had it or the information in it, during its investigation of Miller and in connection with the termination of her employment. Accordingly, the objection to the Affidavit of Probable Cause will be sustained.
Miller next seeks to strike the County's payroll fraud investigation records into the allegations against Miller and the Notices of Personnel Action regarding Jack Miller, arguing the documents contain inadmissible hearsay.
Here, the County argues that the records are not hearsay, because the contents are not offered to prove the truth of the matter, but rather to "show the effect the statements had on the [County]." (Dkt. 24 at 6.) The County contends further that, even if the documents are hearsay, it will be able to present the evidence in an admissible form at trial. "Namely, County employees could testify regarding their first-hand knowledge of the information contained in the documents." Id. at 5.
Although the Court finds Miller's hearsay objections are well-founded, it is unclear what portions, if any, of these records of the investigation of Jack Miller and Miller were provided to the County either before the investigation of Miller began, during the investigation, or before the pre-termination hearing for Miller. As explained above, the evidence relevant to deciding the motion for summary judgment is integrally tied to what information the County had at the time it made the decisions pertinent to Miller's employment. For example, the information in records of the investigation by the Sheriff's office may not have been made known to the County until long after the employment decisions were made.
The County has made it clear that they relied, at least to a certain extent, on information from the Sheriff's office as the theft investigation unfolded. However, the investigation records submitted with Morton's declaration are too non-specific to conclude what was known, and when, by the County. Therefore, the objection to these records will be sustained.
In her Complaint, Miller alleges the County failed to provide gender-appropriate restroom facilities or coverage for bathroom breaks so Miller could use the existing restroom located approximately 300 yards away from the scale house where she worked. (Dkt. 1.) As part of the County's defense, they claim once the port-a-potty was present near the scale house, this aspect of Miller's gender discrimination claim evaporated.
In her motion to strike, Miller seeks to strike Terri Morton's statement regarding the alleged placement date of a port-a-potty near the scale house at the landfill. (Dkt. 15-6 at ¶ 22.) Miller argues that the statement is too vague to be relevant—it is too much of a leap to extrapolate that, because the port-a-potty was present on one day, it was also present other days. (Dkt. 22-1 at 10.) Further, she argues that, because Morton based her testimony on a review of County records rather than on her own personal knowledge, the statement constitutes impermissible lay witness opinion testimony under Federal Rule of Evidence 602. Id. at 10 - 11. Finally, Miller argues that Morton's statement lacks foundation, and should be stricken pursuant to Federal Rule of Evidence 1005. (Id. at 11; Dkt. 26 at 6.)
In response, the County argues that Morton's statement is relevant, relating directly to Miller's gender discrimination claims, and points to Miller's own evidence regarding the port-a-potty as support. (Dkt. 24 at 8.) Further, with respect to admissibility, the County claims it will be able to lay additional foundation to present the evidence in an admissible form at the time of trial.
Personal knowledge may be based upon review of business records rather than personal participation in activities. Washington Cent. R. Co. v. Nat'l Mediation Bd., 830 F.Supp. 1343, 1353 (E.D. Wash. 1993); Banga v. First USA, N.A., 29 F.Supp.3d 1270, 1274 (N.D. Cal 2014). Here, Morton is the County Clerk and has stated in her Declaration that she bases her testimony about the port-a-potty placement date upon her review of County records. Accordingly, because Morton's statement regarding the port-a-potty placement may have relevancy to Miller's employment discrimination claims and the County likely can provide the evidence in an admissible form at trial, Morton's declaration may be considered in connection with the summary judgment motion to the extent the Court determines it has any weight. This objection by Miller will be overruled.
There is no argument in the briefing in support of or opposition to Miller's objections to the Payroll Master (Dkt. 15-7 at 76 - 77) or Email Correspondence (Dkt. 15-8 at 6 - 7). Accordingly, the Court needs not address these objections.
For the reasons explained above, the Court grants in part, and denies in part, Miller's motions to strike. The following chart summarizes the Court's rulings in a succinct fashion:
