ORDER RE MOTION FOR RECONSIDERATION, INTER ALIA

LONNY R. SUKO, District Judge.

BEFORE THE COURT is Plaintiffs' Joint Motion For Reconsideration Of Order Re Summary Judgment Motions (ECF No. 279). This motion is heard without oral argument. Plaintiffs ask the court to reconsider its April 19, 2013 order (ECF No. 256) which awarded summary judgment to Defendants (Defendant and Defendants-Intervenors) on the Title VII and WLAD retaliation claims asserted against them by Plaintiffs (EEOC and Plaintiffs-Intervenors).

I. RECONSIDERATION STANDARD

A motion for reconsideration can only be granted when a district court: (1) is presented with newly discovered evidence; or (2) committed clear error or the initial decision was manifestly unjust; or (3) there has been an intervening change in controlling law. Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir. 2003).

II. SIGNIFICANCE OF PRELIMINARY INJUNCTION

Plaintiffs contend the court's summary judgment ruling is inconsistent with the preliminary injunction it entered in October 2010 in CV-10-3033-LRS (the sexual harassment case). The court disagrees.

The retaliation case did not exist when this court issued the preliminary injunction. No retaliation claims were pending at that time and therefore, the court did not engage in the analysis for determining whether any claimant stated a prima facie case for retaliation (engaged in protected activity; thereafter subjected to action which a reasonable person would have considered adverse; and causal link between the protected activity and the adverse action). The court did not use this prima facie test to determine whether there was a likelihood of claimants succeeding on their retaliation claims because the injunction was issued in a case where the pertinent question was the likelihood of success on the sexual harassment claims asserted. The court instead found there were "serious questions" as to the validity of the sexual harassment claims and there was a fair chance the sexual harassment claimants would succeed on the merits of their claims, reasoning as follows:

(ECF No. 180 at p. 15).

During the preliminary injunction proceedings in CV-10-3033-LRS, the court did not consider the specific question of whether a reasonable person in the position of any meeting attendee would have considered materially adverse the presence of Cuenca and Rojas in the library. In turn, the court did not consider the important evidentiary issues which accompany that question and pertain to establishing the necessary causal link between protected activity and adverse action. These evidentiary issues were the focus of the court's summary judgment ruling on the retaliation claims and are again the focus during these reconsideration proceedings. Six of the ten future retaliation claimants testified at the preliminary injunction hearing in the sexual harassment case: Gregorio Aguila, Elodia Sanchez, Ambrocio Marin, Gerardo Silva, Cirilo Marin and Angela Mendoza. Hearsay testimony from these individuals at that time was admissible for the purpose of determining whether to issue a preliminary injunction, The Republic of the Phillipines v. Marcos, 862 F.2d 1355, 1363 (9th Cir. 1988), but it was not their testimony which the court deemed critical in deciding to issue a preliminary injunction in the sexual harassment case.

At the preliminary injunction proceedings in the sexual harassment case, the question before the court was the likelihood that Juan Marin was monitoring those who alleged he had engaged in sexual harassment/discrimination of female employees and therefore, whether there was potential for intimidation of sexual harassment claimants and witnesses. (ECF No. 180 at pp. 13-14).1 The court concluded the evidence established this likelihood, in particular because of the testimony of Cuenca and Rojas (the two men Marin allegedly sent to the library to monitor the Feb. 10, 2010 meeting), as well as of other individuals who did not attend the library meeting (Simon Ramirez, Miguel Aguila Camacho and Eliseo Aguila).2 Not before the court, because there were no retaliation claims pending at the time, was the question of whether any of the meeting attendees (the future retaliation claimants in CV-11-3093-LRS) suffered an adverse action because of engagement in protected activity. If that question had been before the court, the court would have considered hearsay testimony from the meeting attendees regarding their knowledge of post-meeting threats because the court is entitled to consider such testimony in deciding a motion for a preliminary injunction.

The inference this court drew at the conclusion of the preliminary injunction proceedings, that Marin directed Cuenca and Rojas to go to the library, does not necessarily mean that a reasonable person would have found the presence of Cuenca and Rojas in the library to be materially adverse in the absence of admissible evidence linking the alleged post-meeting threat to Marin. This court did not "change its mind" regarding the merits of the retaliation claims because no retaliation claims had been pled and were before it at the time it issued its preliminary injunction in the sexual harassment case. And in any event, a preliminary injunction does not constitute a decision on the merits of any type of claim.

III. CLAIMANTS OTHER THAN GREGORIO AGUILA

Hearsay is any out-of-court statement, whether oral or written, offered in evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(a), (c). In the absence of a procedural rule or statute, hearsay is inadmissible unless it is defined as non-hearsay under Fed. R. Evid. 801 or falls within a hearsay exception under Fed. R. Evid. 803, 804, or 807. When a statement is hearsay within hearsay, or double hearsay, each statement must qualify under some exemption or exception to the hearsay rule. Fed. R. Evid. 805; United States v. Arteaga, 117 F.3d 388, 396 n. 12 (9th Cir. 1997).

The alleged threat at issue, and upon which all of the claimants rely, originated with Gregorio Aguila. This threat was conveyed to Aguila by Alberto Sanchez. Aguila relayed it to others, including his counsel (Ms. Rodriguez), and to some of the other library meeting attendees.3 Even assuming the statement that Sanchez made to Aguila qualifies under some exemption to the hearsay rule (i.e., it is a "verbal act" or it is a statement of a co-conspirator), or an exception to the hearsay rule (declarant's state of mind under FRE 803(3)), there also needs to be an exemption or exception covering Aguila's out-of-court statements relaying Sanchez's statement to others. It cannot merely be assumed that the exemption or exception which may apply to the statement that Sanchez made to Aguila carries over to subsequent statements made by Aguila to others and then to what those others pass on to others. Just because the statement may constitute a "verbal act" as between Sanchez and Aguila does not also mean it constitutes a "verbal act" as between Aguila and whomever else he told about it (i.e. his counsel), and does not continue to constitute a "verbal act" whenever whomever else (i.e., his counsel) told about it to another (i.e., another claimant). Thus, Sanchez's out-of-court statement may be admissible as a "verbal act" as between Sanchez and Aguila, and as such, Aguila, in support of his own retaliation claim, can testify to Sanchez making it. The rest of the claimants, however, in support of their own retaliation claims, cannot testify about Aguila's or someone else's out-of-court statement to them about Sanchez's out-of-court statement (alleged threat).

In a Washington defamation case, plaintiff testified that "A" stated that "B" made an allegedly defamatory statement. The Washington Supreme Court held that "B's" statement was admissible as a "declaration in issue," but that the plaintiff's testimony was nevertheless objectionable as hearsay because it repeated the out of court statements of "A." 5B Wash. Prac. Evidence Law and Practice §801.10 (5th ed.), citing Dunlap v. Wayne, 105 Wn.2d 529, 716 P.2d 842 (1986). Here, what the other claimants propose to do is testify that Aguila or their counsel or someone else told them that Sanchez made the allegedly threatening statement. Sanchez's statement may be admissible as a "declaration in issue" or as a verbal act, but testimony from the claimants about what Aguila or counsel or someone else told them is objectionable as hearsay because it repeats the out-of-court statement of Aguila or counsel or someone else as to what Sanchez purportedly told Aguila.

In accord is the holding in U.S. Information Systems, Inc. v. International Brotherhood Of Electrical Workers Local Union Number 3, 2006 WL 2136249 (S.D.N.Y. 2006) at *12 (threats were hearsay because they were verbal acts and "if Mr. Pinney had received the threats himself he could have recounted them, but he was not the recipient"). Here, if Sanchez's alleged threats constitute verbal acts as to Aguila (discussed infra), Aguila can recount them without a hearsay issue in support of his retaliation claim, but that does not mean all of the other claimants can recount what Aguila or counsel or someone else told them without there being a hearsay issue. This is because they were not "recipients" of the alleged threat. The only "recipient" was Aguila.

Aguila's or counsel's or whoever else's out-of-court statements to the other claimants (repeating Sanchez's out-of-court statement/"threat") are offered for the truth of the matter asserted: that all of the meeting participants were threatened by Sanchez and/or Marin. Admission into evidence of these out-of-court statements cannot be justified on the asserted basis that the statements are offered to show the effect on the listener, rather than the truth of the matter asserted. This is because, as the court discussed in its summary judgment order (ECF No. 256 at pp. 8-9), the subjective feelings of a retaliation claimant are irrelevant:

Notwithstanding the Supreme Court's clear statement that subjective feelings are irrelevant, Plaintiffs nevertheless assert that "the subjective understanding and impact of the retaliatory acts by the subjects of those acts is a relevant inquiry."

There is an additional problem with counsel having relayed the alleged threat to claimants in that it is unclear exactly what counsel was told by Aguila and, in turn, what counsel told the other claimants. As Defendants-Intervenors point out (and which is not disputed by Plaintiffs), "counsel asserted the attorney-client privilege to all questions about what Mr. Aguila conveyed to his attorneys. . . and/or about what the attorneys conveyed to the other plaintiffs . . .," and, "[a]s a result, there will be no evidence whatsoever to prove that the other plaintiffs [other than Aguila] ever `experienced' and/or "knew about" the threats supposedly made against them." (ECF No. 288 at pp. 11-12). This begs the question of how defense counsel could be expected to effectively cross-examine any of these claimants when it is unclear how they heard of the alleged threat from Sanchez and exactly what they heard about the alleged threat. This is not merely a matter of "weight" to be given to a claimant's testimony, but rather the admissibility of that testimony.

Plaintiffs lump Ambrocio Marin into the same category as all of the other claimants in asserting he heard about the alleged threat from Aguila. As discussed in the court's summary judgment order, however, Ambrocio Marin's situation is somewhat unique:

(ECF No. 256 at p. 15).

In their motion for reconsideration, Plaintiffs do not single out Ambrocio Marin for any unique analysis, notwithstanding his listening in on a telephone conversation Aguila purportedly had with Alberto Sanchez.4 Presumably, this is because the significance of the aforementioned telephone conversation wholly depends on what Ambrocio Marin was told by Aguila about alleged threats being made against library meeting participants and against himself (Ambrocio Marin) specifically. (ECF No. 212-2, A. Marin Dep. at p. 135, lines 5-22). As discussed herein, when Ambrocio Marin repeats what Aguila told him, that is hearsay and is inadmissible unless there is some exemption or exception apart from an exemption or exception which might allow Aguila to testify about what was said to him by Sanchez.

Besides hearsay, there is another issue with regard to claimant Francisco Ramos and that is whether his attendance at the library meeting constituted participation in "protected activity." This court found it did not because he did not attend as a "potential witness or claimant:"

(ECF No. 256 at pp. 7-8).

Plaintiffs assert the court erred in finding Ramos did not fall within the "zone of interests" protected by Title VII or the WLAD. Ramos clearly, however, is not in the same situation as the plaintiff's fiancee in the Thompson case. That plaintiff was employed by the same company as his future wife when he was fired because she filed a sex discrimination charge. Ramos had not been employed at Evans Fruit in 20 years and he did not witness any sexual harassment while employed there. During his deposition, he testified the "only" reason he went to the library meeting was to "accompany" his wife, Angela Mendoza, (ECF No. 212-6, Ramos Dep. at p. 15, lines 20-22), that he was not going to provide any information about sexual harassment, and that he was merely there to be supportive of his wife. (Id. at p. 16, lines 2-7). Furthermore, contrary to Plaintiffs' assertion, Ramos' deposition testimony is equivocal as to his presence at the meeting being specifically requested by the EEOC. (Id. at p. 15, lines 12-19). In their motion for reconsideration, Plaintiffs assert that "Ramos actually provided assistance to his wife by facilitating communications between his wife and the EEOC investigator," but Plaintiffs do not cite any of the record in support thereof, and there is no support for the same in the deposition of Ramos. The court did not "clearly err" in finding that Ramos' attendance at the meeting did not constitute "protected activity." Even if it did, however, as noted above, his contention that he was subjected to a materially adverse action depends on inadmissible hearsay testimony because Ramos repeats the alleged threat he was informed of by Aguila and/or his (Ramos') counsel.

Because the out-of-court statements made by Aguila to his counsel and to others, repeating Sanchez's statement, constitute inadmissible hearsay, the court will not reconsider awarding judgment for Defendants on the retaliation claims of Francisco Ramos, Angela Mendoza, Ambrocio Marin, Gerardo Silva, Aurelia Garcia, Cirilo Marin, Elodia Sanchez, Norma Valdez and Wendy Granados. As to these claimants, the presence of Cuenca and Rojas could only be "adverse" if there is admissible evidence to establish the meeting participants' awareness of the alleged threat made by Sanchez. There is no such evidence. Those claimants cannot repeat what they were told by Aguila, their counsel, or by someone else regarding the alleged threat. Accordingly, as to them, what remains is the mere presence of Cuenca and Rojas in a public library. Furthermore, four of the claimants were unaware of the presence of Cuenca and Rojas (Ramos, Garcia, Cirilo Marin and Angela Mendoza); the majority of them did not know who Cuenca and Rojas were (the exceptions being Aguila, Ambrocio Marin and Gerardo Silva); and only one of them (Aguila) alleges he saw Cuenca and Rojas taking pictures with a cell phone.5

IV. GREGORIO AGUILA

There are three issues with regard to Aguila: 1) did he engage in protected activity by attending the library meeting? 2) did Alberto Sanchez make a threat against him as opposed to threatening the other library meeting attendees? and 3) if Aguila was engaged in protected activity and there was a threat against him, is there admissible evidence to link that threat to Juan Marin and/or to Evans Fruit?

A. Protected Activity

In its summary judgment order, the court noted as follows:

(ECF No. 256 at pp. 16-17).

Although the court did not specifically find that Aguila's attendance at the library meeting did not constitute "protected activity" (that he did not attend the meeting to talk about Juan Marin's alleged sexual harassment), Plaintiffs address it in their motion for reconsideration.

In his declaration filed in advance of the September 2010 preliminary injunction hearing in CV-10-3033-LRS (ECF No. 9-4 in CV-10-3033-LRS filed June 17, 2010), Aguila recounted his problems with Marin, including that when he first started working for Evans Fruit in 2008, Marin gave him paychecks not bearing his name (Aguila's name); that Marin had him cash other Evans Fruit checks made out to other names and return the money to Marin; that in early 2009, Marin offered him $20,000 to kill four people; that in March 2009, May 2009 and November 2009, Marin offered to buy his (Aguila's) son; and how in June 2009, Marin approached him and offered him $500 to have sex with his (Aguila's) partner, Elodia Sanchez. In his declaration, Aguila says he learned about the February 2010 library meeting from Ambrocio Marin who told him he should go to the meeting to discuss the problems he and Elodia Sanchez had with Juan Marin. During his testimony at the preliminary injunction hearing, Aguila reiterated these problems he had with Juan Marin (including the offer to buy his child and the offer to pay for sex with Ms. Sanchez). (ECF No. 170 in CV-10-3033-LRS at pp. 24-25). Plaintiffs note that during his July 2010 deposition, Aguila testified to knowing that Marin harassed women, specifically that he would offer them money in exchange for sexual favors. Aguila mentioned the names of a couple of women, other than Elodia Sanchez, that he heard Marin offer money to in exchange for sex. (ECF No. 280-2).

Although the record indicates that Aguila was not at the February 2010 library meeting to complain about sexual harassment of Elodia Sanchez (because he was not yet aware of her being harassed), the record does not allow the court to conclude as a matter of law that Aguila's attendance at the meeting did not constitute participation in any "protected activity." Arguably, a reasonable inference can be drawn from the record that Aguila was present at the meeting, if not to talk about sexual harassment of Elodia Sanchez, to talk about other things which he reasonably perceived to be sexual harassment of her (Marin offering him money to have sex with Ms. Sanchez), even if it was not.6 To establish that he engaged in a protected activity, a plaintiff need only show that "[he] had a `reasonable belief that the employment practice he protested was prohibited under Title VII." Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978).

B. Threat

The court's summary judgment ruling on Aguila's retaliation claim was not based on there not being a threat leveled against him by Alberto Sanchez. Instead, this court's ruling more or less assumed Aguila had engaged in protected activity (attending the library meeting) and that he was threatened by Sanchez, but that there was no admissible evidence to link that threat to Juan Marin and the library meeting. Yet, in its reconsideration response, Defendant Evans Fruit suggest that while the comments relayed by Sanchez may have constituted a threat against the nine other meeting attendees, they did not constitute a threat against Aguila himself.

In his declaration filed in advance of the September 2010 preliminary injunction hearing in CV-10-3033-LRS (ECF No. 9-4 in CV-10-3033-LRS, Paragraph 19), Aguila said Sanchez advised him over the phone on Feb. 11, 2010 (one day after the library meeting) as follows:

Evans Fruit asserts the statement from Sanchez is an "offer of work," and is "not a threat or retaliatory." According to Evans Fruit, "[t]he statement is . . . not a threat directed at Mr. Aguila" because "[a]t the time of the alleged statement, Aguila's participation and cooperation were unknown to Sanchez and Marin." According to Evans Fruit, "Sanchez did not threaten Aguila because he attended the meetings." Rather, says Evans Fruit, "[e]ncouragement, suggestion, and even persuasion is not a threat and is not retaliation."

Here again, the court cannot conclude as a matter of law that Sanchez's statement was not a threat against Aguila. Arguably, Aguila could have reasonably perceived himself to be included in the threat because at the time of the library meeting, he intended to cooperate with the EEOC, even if that was unbeknownst to Sanchez and Marin at that time. Arguably, a reasonable inference arises that Aguila was among those who would be "taken care" of because he intended to cooperate. That he intended to cooperate is confirmed by the fact he regularly was in touch with the EEOC and his own counsel (Ms. Rodriguez) thereafter to report on his various post-library contacts with Sanchez and Marin. (ECF No. 9-4 in CV-10-3033-LRS, Paragraphs 20, 23 and 30).

C. Hearsay

Defendant Evans Fruit did not confine the hearsay issue to a single footnote in its reply brief on summary judgment. In its opening brief on summary judgment, Evans Fruit asserted that "the claimants attempt to bolster their claims with inadmissible hearsay statements and mere suspicion" (ECF No. 192 at p. 1), and that "[a]fter the library meeting, through multiple layers of hearsay, often from counsel for claimants, the word was spread that threats were being made against those at the library and that they were all in danger" (ECF No. 192 at p. 7). Evans Fruit contended that this hearsay evidence was inadmissible and that it was "singularly inappropriate of claimants' counsel to represent to claimants that they had been threatened in order to encourage them to file retaliation charges." (ECF No. 192 at p. 7).

Moreover, the hearsay issue was a prominent component of the motion of Defendants-Intervenors for summary judgment (ECF No. 217) on the claims of Plaintiffs-Intervenors. EEOC was not entitled to disregard the hearsay issue even though its suit was against Evans Fruit only. Hearsay was an issue regardless of whether the Plaintiffs-Intervenors were suing Juan Marin in their individual capacities, or suing Evans Fruit as EEOC class members based on alleged threats made by Marin. The importance of resolving these evidentiary issues prior to the commencement of any trial was obvious at the time the court considered the summary judgment motions and remains so now.

On summary judgment, Plaintiffs-Intervenors (not the EEOC) attempted to justify admission of Sanchez's statements on the basis that they were not hearsay under Fed. R. Evid. 801(d)(2)(D) because it was the admission of a party-opponent in that Sanchez was an agent of Juan Marin. For the first time in the joint motion for reconsideration, Plaintiffs contend Sanchez's statement to Aguila was not hearsay because it was a "verbal act" or because it was the statement of a co-conspirator pursuant to Fed. R. Evid. 801(d)(2)(E). For the first time, Plaintiffs contend Sanchez's statement is admissible pursuant to Fed. R. Evid. 803(3), statement of declarant's then existing state of mind.

Normally, a motion for reconsideration is not intended to provide a party with another chance to make arguments it could have and should have advanced the first go around. That said, the court will consider the evidentiary arguments which Plaintiffs advance for the first time on reconsideration.

1. Verbal Acts (Non-hearsay) — Fed. R. Evid. 801(c)

"Hearsay" means a statement that the declarant does not make while testifying at the current trial or hearing; and a party offers to prove the truth of the matter asserted in the statement. Fed. R. Evid. 801(c). Statements that are "in issue" or that have independent legal significance, are not hearsay. 5B Wash. Prac., Evidence Law and Practice §801.10 (5th ed.). The "general notion is that evidence of a statement that must be proved to establish a claim or defense is not hearsay because its relevance does not depend upon its truth." Id. "The statement is relevant simply because it was made." Id. "Evidence of the alleged statement is evidence of a verbal act, an utterance that is itself an operative fact giving rise to legal consequences. The statement is admitted to show that it actually occurred, not for the truth of the statement's contents." Adair v. Safeco Insurance Company, 2010 WL 2079542 (D. Mont. 2010) at *4, citing U.S. v. Pang, 362 F.3d 1187, 1192 (9th Cir. 2004), and Stuart v. UNUM Life Ins. Co. of Am., 217 F.3d 1145, 1154 (9th Cir. 2000).

Plaintiffs contend Sanchez's alleged statement to Aguila is offered to prove that Aguila was retaliated against by Juan Marin because of his engagement in protected activity (his participation in the library meeting), and that Sanchez's statement shows the causal link between engagement in that protected activity and the presence of Cuenca and Rojas in the Sunnyside Library (the adverse action). Plaintiffs contend the statement is offered for the mere fact it was made, not for its truth.

With regard to Juan Marin, the statement is clearly offered for the truth of the matter asserted: that "they" includes Juan Marin and the alleged threat was made at his direction. The statement is not offered simply to show it actually occurred. Plaintiffs are not just trying to establish a threat was made, but that it was made at the direction of Juan Marin. Plaintiffs acknowledge what they seek to prove through Sanchez's statement is Marin's involvement, not simply that Sanchez made a threat. In other words, the alleged threat does not have "independent legal significance." It does not have significance apart from the truth of its content. Vis-a-vis Marin, it is not true the sole significance of the alleged statement is that it was made. This is because the Plaintiffs must also somehow link Sanchez's statement to Marin. Plaintiffs essentially acknowledged this in their response to Evans Fruit's motion for summary judgment, asserting there was "direct evidence that the adverse employment action was due to the protected activity as the threats were directed at getting even with anyone who went to the meeting or talked with the attorneys" and therefore, "the content of the threats themselves state a causal link between the protected activity (attending the meeting; talking to the attorneys) and the adverse employment action (getting even if you went to the meeting or talk to the attorneys)." (ECF No. 214 at p. 15) (Emphasis added).

On the other hand, it appears that what Sanchez said to Aguila is a non-hearsay verbal act to the extent it is considered solely for the purpose of evaluating Evans Fruit's liability to Aguila for what Sanchez said to Aguila. In other words, Sanchez's statement cannot be offered against Marin because in that context, it is offered for the truth of the matter asserted (that Marin was part of the "they" threatening the meeting participants). Vis-a-vis Sanchez, it can be offered against Evans Fruit on the basis that the mere fact it was uttered by him is of legal significance without regard to its truth. It has "independent legal significance" with regard to Sanchez, but not with regard to Marin.8

2. Admissions of Party Opponent (Non-hearsay) — Fed. R. Evid. 801(d)(2)

In its summary judgment order, the court restricted its analysis to whether Sanchez's statement (alleged threat) could be attributed to Juan Marin so as to constitute an admission of a party opponent which is admissible non-hearsay. The court concluded Sanchez's statement was not admissible, reasoning as follows:

(ECF No. 256 at pp. 15-16).

In their motion for reconsideration, Plaintiffs do not attempt to persuade the court that Sanchez's statement is a non-hearsay admission by a party opponent pursuant to 801(d)(2)(C)(made by a person whom the party authorized to make a statement on the subject) or (D) (made by the party's agent or employee on a matter within the scope of that relationship and while it existed).10 Instead, they now contend it is a non-hearsay admission of a party opponent pursuant to 801(d)(2)(E) (made by the party's coconspirator during and in furtherance of the conspiracy). In other words, Plaintiffs assert Sanchez was Marin's coconspirator and therefore, Sanchez's statement is admissible against Marin.

Coconspirator admissions may arise in civil cases. Smith v. Bray, 681 F.3d 888, 904-06 (7th Cir. 2012); Filco v. Amana Refrigeration, Inc., 709 F.2d 1257, 1267 (9th Cir. 1983). It appears it is not necessary that a civil conspiracy be pled. In the criminal context, there is case law holding it is not necessary that a conspiracy be charged in the indictment or pleadings. United States v. Maldonado-Rivera, 922 F.2d 934, 962 (2nd Cir. 1990). As noted, Fed. R. Evid. 801(d)(2) provides that the statement must be considered "but does not by itself establish . . . the existence of the conspiracy or participation in it." Independent evidence is necessary to establish the existence of a conspiracy, its pendency, whether the party against whom it was offered was a member (here, Juan Marin), and whether the statement was made in furtherance of it. "This requirement can be satisfied by the testimony of non-conspirators or by corroboration of facts contained in the statements of the conspirators." United States v. Petty, 132 F.3d 373, 380 (7th Cir. 1997). The issues of the existence of a conspiracy, its pendency, whether the party against whom it was offered was a member, and whether the statement was made in furtherance of it, are for the court under Fed. R. Evid. 104(a). Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775 (1987). Preponderance of the evidence is the standard of proof applied to these preliminary fact issues. Id. at 175.

In its summary judgment order, the court noted that Aguila indicated Juan Marin had made certain statements to him following the alleged threat he received from Alberto Sanchez on February 11, 2010. The court concluded these statements by Marin were of no significance (even though admissible as admissions of a party opponent pursuant to Fed. R. Evid. 801(d)(2)(A)-made by an opposing party "in an individual or representative capacity"). The court reasoned as follows:

(ECF No. 256 at p. 18).

In its summary judgment order, the court did not discuss another post-meeting statement allegedly made by Juan Marin to Aguila on or about February 12, 2010, two days after the February 10 library meeting, and one day after the alleged threat conveyed to Aguila by Alberto Sanchez. According to Aguila in his declaration filed in advance of the preliminary injunction hearing in CV-10-3033-LRS (ECF No. 9-4 in CV-10-3033-LRS, Paragraph 20):

Plaintiffs do not contend this statement by Marin constitutes a threat in itself, but contend that coming a day after Sanchez's call to Aguila, constitutes confirmation that Marin was part of the "they" Sanchez referred to as knowing that pictures had been taken and threatening to get even with those who attended the meeting and cooperated with the EEOC. In other words, Plaintiffs contend it constitutes independent evidence which establishes the existence of a conspiracy, that Marin was part of it, and that Sanchez's statement was made in furtherance of it.

Marin's February 12, 2010 statement is insufficient to establish by a preponderance of evidence that he was engaged in a conspiracy to retaliate against those who attended the library meeting and cooperated with EEOC. While Marin's statement seemingly corroborates Sanchez's earlier statement about providing Aguila money and work for reporting on what was happening at the meetings, it does not corroborate that Marin agreed Sanchez should threaten meeting participants and that he was part of a conspiracy with Sanchez to retaliate against those participants. Plaintiffs acknowledge that Marin's statement by itself does not constitute a threat against anyone, but an offer of work in exchange for information.

With regard to Marin's later alleged statements to Aguila ("told me . . .I should never betray him . . . you know what I'm capable of; I can kill you" and "I know that you're in San Diego, California, take care of yourself. Hopefully God will help you"), while these constitute explicit or implicit threats, there is nothing to causally link them to Aguila's participation in the library meeting unless Mr. Sanchez's earlier statements (February 11 and March 8, 2010) are admitted into evidence as co-conspirator admissions. This is so, even assuming that Aguila's participation in that meeting amounted to engagement in Title VII "protected activity." As the court stated in its summary judgment order, "[b]ecause the statements made by Mr. Sanchez are inadmissible, [these] alleged statement[s] by Marin, which [are] admissible as . . . statement[s] by an opposing party, stand[] in isolation and [are] not causally linked to Mr. Aguila's participation in the library meeting."

In Smith v. Bray, 681 F.3d 888 (7th Cir. 2012), a discharged African-American employee brought an action against his former supervisor (Bianchetta) and the manager of his employer's human resources department (Bray), alleging under 42 U.S.C. Section 1981 that he was subjected to racial discrimination and retaliation. The plaintiff argued that Bray and Bianchetta conspired to retaliate against him after he complained about discrimination. When Bianchetta learned the plaintiff had retained a lawyer, he told the plaintiff that getting a lawyer was "the worst f***ing thing you can do," that he would "let Denise [Bray] know that you have a lawyer," and that "we're going to deal with you from here on, from this point on. You're going to be sorry. You're going to regret this." Later, on another occasion, the plaintiff called Bianchetta to explain his absence from work and that he was going to pursue a medical leave. Bianchetta responded that "ain't nothing wrong with you and you're faking it, and Denise [Bray] and I already know, you won't be coming back." During his absence from work, the plaintiff also called Bray, who told him that "if Jim [Bianchetta] is not going to talk to you[,] I'm not going to talk to you."

The question facing the Seventh Circuit was whether the plaintiff identified any admissible evidence substantiating the existence of a conspiracy outside of Bianchetta's "we're-gonna-get-you" hearsay statement itself. The circuit observed that plaintiff's best evidence on this point was what Bray had told him after he repeatedly called and paged her during his leave to talk about his health insurance: "Well, I'm not going to discuss this, and I told you before that if Jim [Bianchetta] is not going to talk to you[,] I'm not going to talk to you." While this testimony was admissible against Bray as a statement by a party opponent, Fed. R. Evid. 801(d)(2)(A), the Seventh Circuit concluded it was insufficient to show that Bray conspired with Bianchetta to retaliate against plaintiff for his complaints of discrimination. In other words, it was insufficient to deem Bianchetta's statement as non-hearsay, admissible as a co-conspirator admission pursuant to Fed. R. Evid. 801(d)(2)(E). According to the Seventh Circuit:

681 F.3d at 905.

Juan Marin's February 12, 2010 statement to Aguila "falls short" of proving that he (Marin) was aware of "any unlawful motive" of Sanchez's related to the library meeting as may have been conveyed in Sanchez's February 11 statement to Aguila. Marin's statement "may show some concert of action" between he and Sanchez — offering Aguila work and money for information about such meetings— but it does not indicate they "shared a common unlawful motive" — threatening to get even with meeting participants who cooperated with the EEOC.

3. State of Mind (Hearsay Exception) — Fed. R. Evid. 803(3))

While Sanchez's statement may show his state of mind, it does not indicate that Marin shared that state of mind (that he too intended to get even with meeting participants). Plaintiffs simply presume Sanchez's statement reveals Marin's state of mind: "Sanchez's . . . threats are also admissible to show his intent to assist Juan Marin and at least Sanchez's, if not their collective motive, to monitor and chill protected activity. Sanchez's statement that he and Juan Marin were aware of the meeting and had photographs of those in attendance does go to show Sanchez's knowledge that the claimants were engaging in protected activity. . . ." Rule 803(3) applies only to a statement describing a state of mind of the declarant and "does not authorize receipt of a statement by one person as proof of another's state of mind." Hong v. Children's Memorial Hospital, 993 F.2d 1257, 1265 (7th Cir. 1993).

While Fed. R. Evid. 803(3) is of no assistance to Plaintiffs in establishing a retaliation claim against Marin due to the fact Sanchez's statement is not reflective of Marin's state of mind, the statement is reflective of Sanchez's state of mind and can be offered against Evans Fruit for the truth of the matter asserted — that pictures had been taken of the participants at the library meeting and that Sanchez threatened to get even with those participants. The court agrees with Plaintiffs that "Sanchez's . . . threats are . . . admissible to show . . . at least Sanchez's . . . motive to monitor and chill protected activity." (Emphasis added). Evans Fruit contends Sanchez's statements do not reflect his state of mind, but are offered to prove the truth of the matter asserted. This does not make any difference. The 803(3) exception recognizes the statements are being offered for the truth of the matter asserted (in other words, they are hearsay), but makes them admissible anyway because of what are considered circumstantial guarantees of trustworthiness.

V. CONCLUSION

The court will not reconsider awarding summary judgment to Evans Fruit and the Marins on the retaliation claims of the claimants other than Gregorio Aguila. To establish the causal link between their participation in the library meeting (the protected activity) and the adverse action (presence of Cuenca and Rojas in the library), they rely on what Aguila or counsel or someone else told them about Alberto Sanchez making a threat against them. In other words, Aguila or counsel or someone else repeated Sanchez's alleged threat to these claimants. This is inadmissible second level hearsay for which no exemption or exception applies.

The court will not reconsider awarding summary judgment to the Marins on the retaliation claim of Gregorio Aguila. Alberto Sanchez's alleged threats conveyed to Aguila are: 1) not verbal acts vis-a-vis Marin because they are offered for the truth of the matter asserted (that Marin was part of the "they", "the people," making the threat); 2) not admissions by a party opponent (not admissions by an agent of Marin or admissions by a co-conspirator); and 3) not reflective of Marin's state of mind. Summary judgment for the Marins on the WLAD claims of all claimants is reaffirmed and Plaintiffs-Intervenors have already conceded that Title VII claims cannot be maintained against the Marins.

Summary judgment for Evans Fruit on the Title VII and WLAD retaliation claims of all claimants is reaffirmed, with the exception of Gregorio Aguila's Title VII and WLAD claims against Evans Fruit. The court reconsiders awarding summary judgment to Evans Fruit on the claims of Gregorio Aguila to the extent they are based on what Alberto Sanchez allegedly said to Aguila following the library meeting. Evans Fruit's liability, if any, depends on whether Sanchez's conduct-not Juan Marin's conduct-can properly be imputed to Evans Fruit. Sanchez was a crew leader for Evans Fruit at the time he allegedly made the statements to Aguila. In the sexual harassment case, CV-10-3033-LRS, a jury found that Evans Fruit crew leaders were not supervisors for whose conduct Evans Fruit could be found vicariously liable under Title VII. (ECF No. 982).11 If this finding has preclusive effect in this retaliation case and Sanchez was a mere co-worker, it may be necessary for Aguila to prove that Evans Fruit supervisors or members of management had actual or constructive knowledge of his alleged retaliatory behavior and condoned, tolerated, or encouraged the same. Hawkins v. Anheuser-Busch, 517 F.3d 321, 347 (6th Cir. 2008).

Evans Fruit's summary judgment motion sought a determination as a matter of law that it cannot be held liable for punitive damages.12 The court withholds such a determination pending Aguila's presentation of evidence at trial and whether Evans Fruit is found liable for any retaliation by Sanchez. The court anticipates an initial liability phase of the jury trial to be followed, if necessary, by a damages phase before the same jury.

Plaintiffs' Joint Motion For Reconsideration Of Order Re Summary Judgment Motions (ECF No. 279) is GRANTED in part and DENIED in part as set forth herein. The Judgment filed April 19, 2013 (ECF No. 257) is VACATED. Evans Fruit's "Petition For An Award Of Its Reasonable Attorney's Fees And Costs Pursuant To 42 U.S.C. §2000e-5(k) and Rule 54(d)" (ECF No. 262) is DISMISSED as moot.

VI. RULE 54(b) CERTIFICATION

Pursuant to Fed. R. Civ. P. 54(b), the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties if the court expressly determines there is no just reason for delay. The court hereby DIRECTS the District Executive to enter a final judgment in favor of Defendant Evans Fruit and Defendants-Intervenors Marins on the claims of Aurelia Garcia, Wendy Granados, Ambrocio Marin, Cirilo Marin, Angela Mendoza, Francisco Ramos, Elodia Sanchez, Gerardo Silva and Norma Valdez, and in favor of Defendants-Intervenors Marins on the claims of Gregorio Aguila.

There is no just reason for delay in entering this judgment as it will allow for an immediate appeal of the summary judgment rulings in favor of Defendant and Defendants-Intervenors on the aforementioned claims which comprise the overwhelming majority of the claims (and claimants) in this case. These claims are severable from Aguila's claims against Evans Fruit based on alleged imputable conduct by Sanchez, and sufficiently factually and legally distinct from Aguila's claims against Evans Fruit. It appears that immediate review of these claims will not result in subsequent duplicative proceedings on appeal. Immediate review of these claims is likely to result in resolution of issues affecting how any eventual trial is conducted (i.e., admissibility of certain evidence and whether a claimant is allowed to recover compensatory damages should liability remain a possibility13). Immediate review to determine if this court has correctly narrowed the number of triable claims is clearly more efficient than proceeding with a jury trial solely on Aguila's claims against Evans Fruit when the possibility remains that an additional trial will have to be conducted should the Ninth Circuit Court of Appeals eventually find this court improperly awarded summary judgment on other claims.

Pending the Ninth Circuit's concurrence that Rule 54(b) certification is appropriate and if so, the outcome of an appeal, trial of Aguila's claims against Defendant Evans Fruit is hereby STAYED.

IT IS SO ORDERED. The District Executive is directed to enter Judgment as set forth above, and forward copies of the same and this order to counsel of record.