DAVID C. NYE, Chief District Judge.
Pending before the Court is Plaintiff Cynthia Fuller's Motion in Limine (Dkt. 115) and Defendants Idaho Department of Corrections, Brent Reinke, and Henry Atencio's (collectively "IDOC") Motion in Limine (Dkt. 109).
Having reviewed the record and briefs, the Court finds that the facts and legal arguments are adequately presented. Accordingly, in the interest of avoiding further delay, and because the Court finds that the decisional process would not be significantly aided by oral argument, the Court will decide the Motions without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(2)(ii). For the reasons outlined below, the Court will GRANT in PART and DENY in PART each Motion.
The Court will not set out the lengthy factual and legal history of this case at the present time, but will give a brief overview.
In this case, Fuller alleges that IDOC, through its supervisors, created a hostile work environment under Title VII, because of her gender, based upon their actions following her report that she had been raped by a co-worker—Herbt Cruz, with whom she had a relationship. IDOC denies it created a hostile work environment.
While Fuller originally asserted numerous causes of action, following summary judgment at the District Court and an appeal to the Ninth Circuit Court of Appeals, the sole remaining claim at issue (and the claim that will go to trial), is a hostile work environment claim. In a 2-1 decision, the Ninth Circuit determined that the District Court erred in granting summary judgment to IDOC on Fuller's hostile work environment claim because "a reasonable trier of fact could [] find that the IDOC's actions were sufficiently severe or pervasive to create a hostile work environment." Fuller v. Idaho Dep't of Corr., 865 F.3d 1154, 1164 (9th Cir. 2017), cert. denied sub nom. Idaho Dep't of Correction v. Fuller, 138 S.Ct. 1345 (2018).
In anticipation of the upcoming trial, and pursuant to the Court's trial order (Dkt. 108), both parties filed motions in limine seeking to preclude certain evidence and testimony at trial. The Court will address each in turn.
"Motions in limine are well-established devices that streamline trials and settle evidentiary disputes in advance, so that trials are not interrupted mid-course for the consideration of lengthy and complex evidentiary issues." Miller v. Lemhi Cty., No. 4:15-CV-00156-DCN, 2018 WL 1144970, at *1 (D. Idaho Mar. 2, 2018) (citing United States v. Tokash, 282 F.3d 962, 968 (7th Cir. 2002)). "The term `in limine' means `at the outset.' A motion in limine is a procedural mechanism to limit in advance testimony or evidence in a particular area." United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009) (quoting Black's Law Dictionary 803 (8th ed. 2004)).
Because "[a]n in limine order precluding the admission of evidence or testimony is an evidentiary ruling," United States v. Komisaruk, 885 F.2d 490, 493 (9th Cir. 1989) (citation omitted) "a district court has discretion in ruling on a motion in limine." United States v. Ravel, 930 F.2d 721, 726 (9th Cir. 1991). Further, in limine rulings are preliminary and, therefore, "are not binding on the trial judge [who] may always change his mind during the course of a trial." Ohler v. United States, 529 U.S. 753, 758 n.3 (2000).
Here, Fuller seeks an order from the Court prohibiting IDOC from asserting that they communicated with—or relied upon communications with—the Idaho Attorney General's Office. Even though IDOC has not alleged an "advice of counsel" defense, Fuller contends that because they have not answered pertinent questions or turned over relevant documents related to this topic, they have functionally claimed this privilege which is unduly prejudicial. IDOC counters that they have not asserted this defense and further, that they can shield these communications and documents from disclosure as privileged.
Defendants' strategic choice not to turn over certain documents under an "attorney-client" privilege theory is their right; however, they cannot then use those same materials against Fuller. Because IDOC has all but prohibited discovery on this issue, any inference or suggestion that they contacted the Attorney General's Office will not be allowed at trial. Again, IDOC's choice to take this path is within their discretion, and such is not sanctionable (outside of what is imposed in this decision by way of limiting that evidence) or inappropriate, but IDOC must live with the consequences of their litigation choices.
In this Motion, Fuller asks the Court to prohibit the admission of any evidence that Cruz was ultimately never charged with a crime—either as to J.W. or Fuller. Fuller contends the information is irrelevant and prejudicial. IDOC counters that the information is relevant because Fuller has testified that she was frustrated that Cruz was never charged with a crime and that this frustration might have contributed to her emotional distress.
As will become clearer below, both parties and the Court appear to share a common concern. That concern is that the focus of this case is not on Cruz or Cruz's behavior, but on IDOC's behavior. To be sure, Cruz's behavior is what ultimately lead to this case, but the remaining claim at issue goes solely to IDOC's actions—or lack thereof. This motion is a prime example. Whether Cruz was ultimately charged with a crime is currently irrelevant. If either party believes that the relevancy of this information changes during trial, they can address it outside the presence of the jury and the Court will make a determination at that time.
Pursuant to IDOC's agreement on this matter, evidence of IDHW's denial of Fuller's unemployment benefits claim will not be allowed at trial. If IDOC feels that Fuller has opened the door to this subject, a hearing outside the presence of the jury will be necessary.
Here, Fuller asks the Court to preclude all evidence of the Idaho Human Rights Commission's ("the Commission") report in which it (the Commission) found there was no probable cause to further investigate IDOC and dismissed her case. Fuller claims that this is essentially hearsay, but more importantly, that it would be extremely prejudicial. IDOC agrees that the statements in the report itself are hearsay and inadmissible but argues that the report itself is admissible under various evidentiary rules.
It appears there is a dispute among the Circuits as to whether an EEOC report is per se admissible at trial. Even within the Ninth Circuit, there appears to be a clear distinction between reports that concluded there was probable cause versus reports where no probable cause was found, and a distinction between who is offering the report at trial: Plaintiff or Defendant. Upon review of these cases, it appears that this matter is left to the trial Court's discretion in light of the specific facts of the case.
Here, the Court will not allow evidence of the Commission's report as it may invade—or unduly influence—the purview of the jury. Another fact finder's conclusions—even an agency whose role is part of the process (in that a plaintiff cannot sue until it goes through the Commission's process and receives a right to sue letter)— should not be imposed upon the jury in this case.
Finally, Fuller asks the Court to preclude the outcome of a prior civil lawsuit in Idaho filed by another former IDOC employee, Sandy Martin, who—like Fuller—alleges that Cruz harassed her and that IDOC did nothing about it. Judge Winmill ultimately granted summary judgment against Martin. Fuller would like this fact excluded but would like Martin to nonetheless testify in order to establish IDOC's purported pattern of "failing to respond to reports of harassment by Cruz which is important circumstantial evidence of gender bias in the work environment." Dkt. 115-1, at 11. IDOC agrees that the final disposition of Martin's case is irrelevant, but further asks the Court to exclude Martin's testimony altogether. Under the circumstances, the Court must agree with IDOC
Although Martin's circumstances are somewhat related to Fuller's (in general substance, but most notably because of Cruz's involvement), this evidence is only tangentially related to the current facts and circumstances and would unduly prejudice the jury. The events in question occurred approximately eight years apart, involve different offices, different supervisors, and ultimately different legal causes of action.
Furthermore, the idea that IDOC purportedly "knew" about Cruz's disposition will come in via other means—specifically the testimony of Kim Harvery—that are more squarely within the scope of the facts of this case.
In sum, not only will the Court grant Fuller's motion, but it will extend the prohibition excluding the outcome of Martin's case to include the whole of Martin's testimony as it is irrelevant and unduly prejudicial.
In its first motion in limine, IDOC seeks a broad order of the Court prohibiting anyone, specifically Fuller's damages expert Dr. Fitzgerald, from presenting testimony or evidence that Fuller suffered emotional distress as a result of numerous factors. IDOC asserts that much of this evidence is related to claims that were dismissed by the Ninth Circuit and allowing this evidence in not only runs contrary to the law of the case but might also confuse the jury. For her part, Fuller argues that IDOC misinterprets certain rulings from the Ninth Circuit but also misstates her overall position. Fuller notes that she is fully aware she cannot recover for damages caused by Cruz but claims that any distress she experienced from his actions was compounded by IDOC's failure to protect her or adequately respond to her situation.
Again, properly distinguishing between Cruz's actions and IDOC's actions is difficult and concerning to the Court. This is not a sexual harassment case, but a hostile work environment case based on gender. That being said, it is difficult to divorce Cruz's actions from this case—after all, his actions are the foundation of everything that transpired afterwards. The difficulty will be not letting the background facts of Cruz's behavior spill over into the legal framework and facts necessary for Fuller's claim against IDOC.
The Court will address each of IDOC's specific requests in turn.
Fuller acknowledges that she "is not entitled to recover emotional distress damages . . . from the assaults themselves" Dkt. 130, at 5, but that she is nonetheless entitled to damages if her conditions (that stemmed from the underlying actions of Cruz) were exacerbated by IDOC. To this end, Fuller proposes that the Court give an "eggshell skull" jury instruction to help distinguish between prior trauma (caused by Cruz and not at issue for damages) and the purported exacerbation of that trauma (caused by IDOC and relevant to damages).
At this time, the Court will not determine if this specific instruction should be given; however, it finds the suggestion well taken. A limiting jury instruction of some type would alleviate IDOC's concerns that any emotional distress rising from facts or circumstances not relevant to IDOC would be attributed to them, but also allows Fuller an appropriate avenue to explain her distress and damages.
In short, IDOC's motion is granted—Fuller cannot introduce evidence that Cruz's underlying actions caused her emotional distress
Here, IDOC cites the Ninth Circuit's decision that this evidence fails to support a constructive discharge claim and contends it is therefore barred. Fuller points out that IDOC's position fails to appreciate that evidence can be used for multiple claims. The Court agrees. This evidence may not have been sufficient to support a constructive discharge claim, but might support a hostile work environment claim. That said, the Court shares the Ninth Circuit's concern that the protective order was sealed. See Fuller v. Idaho Dep't of Corr., 694 F. App'x 590, 591 (9th Cir. 2017).
Simply put, it is not clear that IDOC could have informed the staff of Fuller's protective order against Cruz even if they had wanted to.
The Court will not allow this evidence to come in at trial—for purposes of damages
This assertion is based almost entirely on the above circumstances: Fuller was concerned that, because IDOC did not inform her co-workers of her protective order against Cruz, he might return to work and harm her.
If Fuller can successfully argue that IDOC's failure to inform its staff of her protective order contributed to her damages, this might likewise be admissible for purposes of calculating damages. At the present time, however, it must be excluded.
IDOC asserts that the Ninth Circuit's ruling that "Fuller has not demonstrated that the IDOC's continued refusal to approve leave for her `unusual situation'—as opposed to leave granted to other employees under provisions governing investigations or disciplinary actions—was on account of her gender," Fuller 694 F. App'x at 591, supports their position that this claim is foreclosed to Fuller.
Again, it is important to note that this ruling was made in the context of Fuller's gender discrimination claim, not her hostile work environment claim. This aside, the reasoning still stands. The fact of the matter is that IDOC had not approved paid administrative leave for anyone who was not on leave due to disciplinary action or under investigation for years prior to Fuller's situation. In context, no reasonable juror could conclude that this fact would cause direct emotional damages as it was not based on her individually, let alone her gender.
The Court already ruled in Fuller's third motion in limine—based in large part on IDOC's stipulation—that the IDHW decision itself will not be allowed as evidence at trial unless the door is opened. Similar to the IHRC report, this IDHW report is based upon a different standard than used here and might unduly influence the jury.
Additionally, like the other topics discussed above, the Court will not allow this information in for purposes of damages as it is not directly related to the hostile work environment claim. If an expert from either side plans to testify as to the apportionment of damages from the IDHW decision itself and IDOC's behavior—and can articulate a reason the Court should allow this information in—the Court will reconsider this decision. Until that time, however, no evidence or testimony that Fuller suffered damages from IDOC's challenge to her unemployment claim will be allowed. As always, if either party wants to revisit this subject, it must first do so outside the presence of the jury.
In summary, it is difficult to divorce these specific facts IDOC wants excluded for purposes of damages when they will naturally come out as part of the background in this case and are necessary for the jury's decision on the hostile work environment claim. IDOC's motion notes repeatedly that their request only seeks an order precluding Fuller from using this evidence as a basis for damages, and not that it is seeking to preclude it altogether—nor could it, as much of this information is part of exhibits and testimony that has been stipulated to. However, in her response, Fuller's arguments often sweep more broadly, as if IDOC has sought to preclude this evidence all together. To be clear, the Court's decision as to the inadmissibility of certain evidence (or of the possible introduction of other evidence) is made solely with damages in mind.
The Court admonishes the parties to ensure that their witnesses are aware of this ruling, and further, that the questions and answers on these topics—specifically as it relates to damages—makes a clear distinction between Cruz's behavior (and the attached distress) and instead focuses on IDOC's behavior (and any connected stress).
In sum, this particular motion is
Finally, the Court notes that its decision today does not foreclose either party from making a motion to include a limiting jury instruction that explains that evidence can only be considered for certain purposes (such as liability) but not for other purposes (such as damages).
Both sides agree that the issues of front pay and back pay will not be addressed at trial. Nonetheless, Fuller notes that she may take this up after trial. Both sides appear to have relevant case law on the topic—specifically whether front pay and back pay awards are allowed and the appropriate standards. This matter will be addressed after trial, if necessary.
This request is essentially a specific request under IDOC's first motion in limine— subpart "a"—above. Accordingly, the same analysis applies. Fuller acknowledges that she cannot recover for Cruz's actions themselves, but asserts she can recover if those feelings were exacerbated by IDOC. That said, the Court cannot fully rule on this specific issue at this time. The Court does not know the extent of the testimony regarding Fuller's counseling and whether any reason for the counseling can be attributed to IDOC. Accordingly, this motion is granted based on the information currently before the Court, however, the Court will revisit this decision during trial if necessary.
In this motion, IDOC seeks an order of the Court limiting all testimony and evidence to a period that they believe concisely covers the events in question. This timeline, however, seems somewhat arbitrary and would in fact preclude evidence that IDOC otherwise desires.
Importantly, as Fuller notes—and relying on the Ninth Circuit's decision in this case—the test at issue is a totality of the circumstances test and in order to understand the scope of everything that took place in this case, the jury must be presented with information, evidence, and testimony, outside of the limited range IDOC suggests.
In its final motion, IDOC requests that the Court exclude all testimony and evidence of third-party claims against Cruz as it is immaterial and would be unduly prejudicial. The Court disagrees. This evidence is highly probative of whether Fuller was subjected to a hostile work environment based on her gender, specifically if there was a pattern of gender discrimination at IDOC. As the Ninth Circuit noted:
The Court HEREBY ORDERS:
