1 WO 2 3 4 5
9 Nicholas Alozie, No. CV-16-03944-PHX-ROS
10 Plaintiff, ORDER
11 v.
12 Arizona Board of Regents, et al.,
13 Defendants. 14 15 Plaintiff Nicholas Alozie (“Alozie”) is a professor at Defendant Arizona State 16 University, a public university which is governed by Defendant Arizona Board of Regents 17 (collectively, “ASU”). Alozie alleges that ASU refused to grant him a second interview for 18 the position of Dean of the College of Letters and Sciences in retaliation for comments he 19 made in a written statement to the search committee about the difficult environment for 20 promoting minority scholars at ASU. Trial is set to begin on March 24, 2020. Alozie has 21 filed three motions in limine (Docs. 166, 167, 168) and ASU has filed two (Docs. 173, 22 178). 24 In 2014, ASU conducted an internal search to select a Dean for its College of Letters 25 and Sciences. Four professors at ASU, including Alozie, applied for the position. A search 26 committee interviewed each of the candidates. At his interview, Alozie handed the search 27 committee, a written statement. This statement included comments about the difficult 28 environment for promoting minority scholars at ASU and an assertion that the position of 1 Dean had already been promised. After the initial interviews, two candidates were invited 2 to a second round of interviews, and two candidates, including Alozie, were eliminated 3 from consideration. Dr. Duane Roen was ultimately selected as the Dean of the College of 4 Letters and Sciences. 5 In March 2015, Alozie met with Erin Ellison (“Ellison”), a senior Equal Opportunity 6 consultant with ASU’s Office of Equity and Inclusion (“OEI”). Ellison investigated, 7 interviewing several members of the search committee, and issued a report on October 8, 8 2015 concluding that the evidence was insufficient to support a violation of ASU’s non- 9 retaliation policy. Alozie also filed a charge of discrimination with the Equal Employment 10 Opportunity Commission (“EEOC”) in August 2015. The EEOC conducted an 11 investigation and issued a determination on June 10, 2016 stating “Based upon its 12 investigation, the EEOC is unable to conclude that the information obtained establishes 13 violations of the statutes. This does not certify that [ASU] is in compliance with the 14 statutes.” 15 Alozie initially brought five claims, three against ASU (Title VII discrimination, 16 Title VII retaliation, and disparate impact) and two against certain members of the search 17 committee in their individual capacities (First Amendment and Equal Protection). The 18 disparate impact claim was dismissed on a Rule 12(c) motion. The Title VII retaliation 19 claim was limited by stipulation to ASU’s decision not to grant Alozie a second interview, 20 the Equal Protection claim was voluntarily dismissed, and the First Amendment claim was 21 voluntarily dismissed against all parties except Dr. Marlene Tromp. The Title VII race 22 discrimination claim and the First Amendment claim against Dr. Tromp were later 23 dismissed on summary judgment. Thus, the only claim remaining for trial is Title VII 24 retaliation with regard to ASU’s decision not to grant Alozie a second interview. 25 Trial is set to begin on March 24, 2020. The parties have a number of disputes, some 26 of which are resolved in this Order. 28 A motion in limine is a procedural mechanism to limit particular testimony or 1 evidence in advance. United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). Judges 2 have broad discretion when ruling on motions in limine. United States v. Bensimon, 172 3 F.3d 1121, 1127 (9th Cir. 1999). 5 1. Alozie’s Motion in Limine No. 1 (Doc. 166) 6 Alozie moves to preclude ASU from “referring to, questioning about, commenting 7 on, arguing or relying upon or in any other manner attempting to introduce into evidence 8 in any way, any allegations, documents, or written or oral testimony or any reference or 9 inference to the decision by the EEOC not to issue a letter of determination or to bring a 10 suit directly.” 11 ASU does not oppose this motion, but wishes to reserve the right to present evidence 12 or refer to the EEOC if Alozie opens the door by referring to it first. The parties have 13 stipulated that Alozie satisfied the administrative preconditions for filing suit. 14 Accordingly, Alozie’s Motion (Doc. 166) is granted, as well as ASU’s reservation 15 of the right to present evidence. 16 2. Alozie’s Motion in Limine No. 2 (Doc. 167) 17 Alozie moves to preclude ASU from “referring to, questioning about, commenting 18 on, arguing or relying upon or in any other manner attempting to introduce into evidence 19 in any way, any allegations, documents, or written or oral testimony or any reference or 20 inference to the conclusion by Erin Ellison (ASU’s Director of the Office of Equity and 21 Inclusion [OEI]) that upon her investigation Dr. Alozie was not the victim of discrimination 22 or retaliation.” Alozie argues the fact of the investigation is prejudicial under Fed. R. Evid. 23 402 and 403; the conclusion regarding policy violations is irrelevant under Fed. R. Evid. 24 401; and the conclusion is inadmissible as an opinion on an ultimate issue under Fed. R. 25 Evid. 704. 26 ASU argues that Alozie is estopped from arguing irrelevance under Fed. R. Evid. 27 401 because Alozie has announced an intention to offer evidence concerning Ellison’s 28 investigation and the evidence she obtained. ASU argues that the conclusions would not 1 create unfair prejudice or jury confusion under Fed. R. Evid. 403, and that Ellison expresses 2 no opinion or conclusion on the ultimate legal issue of Title VII retaliation. 3 Plummer v. Western Int’l Hotels Co., Inc., 656 F.2d 502, 505 (9th Cir. 1981) permits 4 EEOC probable cause determinations to be admitted at trial, and Arizona ex rel. Goddard 5 v. Frito-Lay, Inc., 273 F.R.D. 545, 551–552 (D. Ariz. 2011) extends the holding to 6 “reasonable cause determinations made by state administrative agencies,” to which ASU’s 7 Office of Equity and Inclusion is analogous. But Beachy v. Boise Cascade Corp., 191 F.3d 8 1010, 1015 (9th Cir. 1999), making a perhaps-inappropriate distinction between a probable 9 cause determination (which the Beachy court considered non-final) and a determination of 10 insufficient facts (which the Beachy court considered to be “a final agency ruling”), held 11 that “an agency’s determination that insufficient facts exist to continue an investigation is 12 not per se admissible in the same manner as an agency’s determination of probable cause.” 13 Therefore, “a district court . . . asked to admit an agency's determination that insufficient 14 facts exist to continue an investigation” must “weigh the [determination’s] prejudicial 15 effect against its probative value pursuant to Rule 403.” Id.; see also Harrell v. City & Cty. 16 of Honolulu, No. 01-00223-MEA-KSC, 2006 WL 8436343, at *1 (D. Haw. Jan.
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1 WO 2 3 4 5
9 Nicholas Alozie, No. CV-16-03944-PHX-ROS
10 Plaintiff, ORDER
11 v.
12 Arizona Board of Regents, et al.,
13 Defendants. 14 15 Plaintiff Nicholas Alozie (“Alozie”) is a professor at Defendant Arizona State 16 University, a public university which is governed by Defendant Arizona Board of Regents 17 (collectively, “ASU”). Alozie alleges that ASU refused to grant him a second interview for 18 the position of Dean of the College of Letters and Sciences in retaliation for comments he 19 made in a written statement to the search committee about the difficult environment for 20 promoting minority scholars at ASU. Trial is set to begin on March 24, 2020. Alozie has 21 filed three motions in limine (Docs. 166, 167, 168) and ASU has filed two (Docs. 173, 22 178). 24 In 2014, ASU conducted an internal search to select a Dean for its College of Letters 25 and Sciences. Four professors at ASU, including Alozie, applied for the position. A search 26 committee interviewed each of the candidates. At his interview, Alozie handed the search 27 committee, a written statement. This statement included comments about the difficult 28 environment for promoting minority scholars at ASU and an assertion that the position of 1 Dean had already been promised. After the initial interviews, two candidates were invited 2 to a second round of interviews, and two candidates, including Alozie, were eliminated 3 from consideration. Dr. Duane Roen was ultimately selected as the Dean of the College of 4 Letters and Sciences. 5 In March 2015, Alozie met with Erin Ellison (“Ellison”), a senior Equal Opportunity 6 consultant with ASU’s Office of Equity and Inclusion (“OEI”). Ellison investigated, 7 interviewing several members of the search committee, and issued a report on October 8, 8 2015 concluding that the evidence was insufficient to support a violation of ASU’s non- 9 retaliation policy. Alozie also filed a charge of discrimination with the Equal Employment 10 Opportunity Commission (“EEOC”) in August 2015. The EEOC conducted an 11 investigation and issued a determination on June 10, 2016 stating “Based upon its 12 investigation, the EEOC is unable to conclude that the information obtained establishes 13 violations of the statutes. This does not certify that [ASU] is in compliance with the 14 statutes.” 15 Alozie initially brought five claims, three against ASU (Title VII discrimination, 16 Title VII retaliation, and disparate impact) and two against certain members of the search 17 committee in their individual capacities (First Amendment and Equal Protection). The 18 disparate impact claim was dismissed on a Rule 12(c) motion. The Title VII retaliation 19 claim was limited by stipulation to ASU’s decision not to grant Alozie a second interview, 20 the Equal Protection claim was voluntarily dismissed, and the First Amendment claim was 21 voluntarily dismissed against all parties except Dr. Marlene Tromp. The Title VII race 22 discrimination claim and the First Amendment claim against Dr. Tromp were later 23 dismissed on summary judgment. Thus, the only claim remaining for trial is Title VII 24 retaliation with regard to ASU’s decision not to grant Alozie a second interview. 25 Trial is set to begin on March 24, 2020. The parties have a number of disputes, some 26 of which are resolved in this Order. 28 A motion in limine is a procedural mechanism to limit particular testimony or 1 evidence in advance. United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). Judges 2 have broad discretion when ruling on motions in limine. United States v. Bensimon, 172 3 F.3d 1121, 1127 (9th Cir. 1999). 5 1. Alozie’s Motion in Limine No. 1 (Doc. 166) 6 Alozie moves to preclude ASU from “referring to, questioning about, commenting 7 on, arguing or relying upon or in any other manner attempting to introduce into evidence 8 in any way, any allegations, documents, or written or oral testimony or any reference or 9 inference to the decision by the EEOC not to issue a letter of determination or to bring a 10 suit directly.” 11 ASU does not oppose this motion, but wishes to reserve the right to present evidence 12 or refer to the EEOC if Alozie opens the door by referring to it first. The parties have 13 stipulated that Alozie satisfied the administrative preconditions for filing suit. 14 Accordingly, Alozie’s Motion (Doc. 166) is granted, as well as ASU’s reservation 15 of the right to present evidence. 16 2. Alozie’s Motion in Limine No. 2 (Doc. 167) 17 Alozie moves to preclude ASU from “referring to, questioning about, commenting 18 on, arguing or relying upon or in any other manner attempting to introduce into evidence 19 in any way, any allegations, documents, or written or oral testimony or any reference or 20 inference to the conclusion by Erin Ellison (ASU’s Director of the Office of Equity and 21 Inclusion [OEI]) that upon her investigation Dr. Alozie was not the victim of discrimination 22 or retaliation.” Alozie argues the fact of the investigation is prejudicial under Fed. R. Evid. 23 402 and 403; the conclusion regarding policy violations is irrelevant under Fed. R. Evid. 24 401; and the conclusion is inadmissible as an opinion on an ultimate issue under Fed. R. 25 Evid. 704. 26 ASU argues that Alozie is estopped from arguing irrelevance under Fed. R. Evid. 27 401 because Alozie has announced an intention to offer evidence concerning Ellison’s 28 investigation and the evidence she obtained. ASU argues that the conclusions would not 1 create unfair prejudice or jury confusion under Fed. R. Evid. 403, and that Ellison expresses 2 no opinion or conclusion on the ultimate legal issue of Title VII retaliation. 3 Plummer v. Western Int’l Hotels Co., Inc., 656 F.2d 502, 505 (9th Cir. 1981) permits 4 EEOC probable cause determinations to be admitted at trial, and Arizona ex rel. Goddard 5 v. Frito-Lay, Inc., 273 F.R.D. 545, 551–552 (D. Ariz. 2011) extends the holding to 6 “reasonable cause determinations made by state administrative agencies,” to which ASU’s 7 Office of Equity and Inclusion is analogous. But Beachy v. Boise Cascade Corp., 191 F.3d 8 1010, 1015 (9th Cir. 1999), making a perhaps-inappropriate distinction between a probable 9 cause determination (which the Beachy court considered non-final) and a determination of 10 insufficient facts (which the Beachy court considered to be “a final agency ruling”), held 11 that “an agency’s determination that insufficient facts exist to continue an investigation is 12 not per se admissible in the same manner as an agency’s determination of probable cause.” 13 Therefore, “a district court . . . asked to admit an agency's determination that insufficient 14 facts exist to continue an investigation” must “weigh the [determination’s] prejudicial 15 effect against its probative value pursuant to Rule 403.” Id.; see also Harrell v. City & Cty. 16 of Honolulu, No. 01-00223-MEA-KSC, 2006 WL 8436343, at *1 (D. Haw. Jan. 4, 2006) 17 (a detailed letter which “speaks directly on several key points the jurors alone must decide” 18 is highly prejudicial because “the ‘jury might find it difficult to evaluate independently 19 evidence of discrimination’ after being informed of the [agency’s] final results”) (quoting 20 Beachy, 191 F.3d at 1015); accord Gillum v. Safeway, Inc., No. 2:13-CV-02047, 2015 WL 21 9997201, at *3 (W.D. Wash. Oct. 16, 2015) (finding the agency’s no cause determination 22 inadmissible under Fed. R. Evid. 403 because of “a substantial risk that the jury will give 23 undue weight to the [agency’s] final determination”). 24 Though relevant under Fed. R. Evid. 401, the prejudicial effect of Ellison’s 25 investigative memorandum outweighs the probative value under Fed. R. Evid. 403, and it 26 is otherwise inadmissible pursuant to the Federal Rules of Evidence. Accordingly, Alozie’s 27 Motion (Doc. 167) is granted in part and denied in part. Ellison’s investigative 28 memorandum, listed as Trial Exhibit 72, is excluded. But the fact of the investigation is 1 admissible. 2 3. Alozie’s Motion in Limine No. 3 (Doc. 168) and ASU’s Motion in Limine No. 2 (Doc. 3 173) 4 Both parties have filed motions relating to the previously dismissed claims. 5 Specifically, Alozie wishes to preclude references to previously dismissed disparate impact 6 and disparate treatment claims, but does not object to the admissibility of the topic of 7 discrimination at ASU (or in general). ASU moves to preclude evidence and argument 8 relating to Alozie’s previously dismissed claims of disparate impact, discrimination, post- 9 search retaliation, and nonselection for the Dean position. 10 In particular, Alozie intends to offer evidence pertaining to the number of African 11 American deans and the number of interim deans that have subsequently been hired as 12 deans, while excluding any reference to the fact that he based his discrimination and 13 disparate impact claims on that evidence and lost. Alozie argues that this evidence is 14 essential context for Alozie’s written statement, and that such evidence (which Alozie 15 characterizes as “evidence of Dr. Alozie’s belief and the underlying reasons for that belief 16 -- that race discrimination has occurred at ASU”) is necessary for Alozie to prove “that he 17 believed Title VII violations have happened, and that his belief is reasonable.” (Doc. 186 18 at 2.) In other words, Alozie insists that evidence of disparate hiring practices is necessary 19 to prove the protected activity portion of his case, but ASU would benefit unfairly if they 20 could bring up that he was unsuccessful on his disparate impact and discrimination claims. 21 ASU argues that allowing evidence regarding the dismissed claims would create a 22 risk of confusing the issues and misleading the jury, and that the presentation of such 23 evidence would waste time, and therefore the evidence is inadmissible under Fed. R. Evid. 24 403. ASU also argues that if the evidence was presented, without the fact that the claims 25 based on that evidence had been dismissed, the jury would be “free to speculate about the 26 dismissed claims,” and there would be “a risk that the jury will decide the one remaining 27 claim on an improper basis.” (Doc. 184 at 2.) Alozie responds that the danger of confusion 28 would be forestalled by retaliation-only jury instructions, and that he intends to stick to the 1 time limits. 2 Both parties cite to Kimes v. Univ. of Scranton, No. 3:14-CV-00091, 2016 WL 3 1274134 (M.D. Pa. Apr. 1, 2016), a case with similar facts where the district court decided 4 to grant both parties’ motions to preclude evidence regarding previously dismissed claims 5 (including all evidence relating to the dismissed claims) in part because discussion of the 6 dismissed claims was “apt to confuse the jury” under Fed. R. Evid. 403. Id. at *2. 7 The Kimes court’s reasoning is persuasive. Accordingly, Alozie’s motion (Doc. 8 168) and ASU’s motion (Doc. 173) are each granted in part and denied in part. Alozie is 9 permitted to give context for his written statement, but may introduce only information that 10 was within his own personal knowledge and that he relied on to prepare his statement as 11 of December 1, 2014. ASU is free to cross-examine Alozie on his personal knowledge 12 sources, and the Court will consider giving a limiting instruction if necessary. All other 13 evidence relating to previously dismissed claims is excluded. 14 4. ASU’s Motion in Limine No. 1 (Doc. 178) 15 ASU moves (1) to exclude evidence and arguments regarding backpay, and (2) to 16 limit evidence of emotional distress to past emotional distress (excluding physical injury 17 and future emotional distress). First, ASU argues that there is a distinction between failure- 18 to-interview claims and failure-to-hire or failure-to-promote claims, and that by stipulating 19 to a limitation to the failure-to-interview claim only, Alozie “does not claim that he was 20 unlawfully denied the Dean position.” (Doc. 178 at 4.) ASU cites Gardner-Lozada v. 21 SEPTA, No. CIV.A. 13-2755, 2015 WL 4505949, at *7 n.11 (E.D. Pa. July 24, 2015), 22 where the Eastern District of Pennsylvania noted that the plaintiff had chosen to go to trial 23 on a failure-to-promote claim rather than a failure-to-interview claim because a failure-to- 24 interview claim limits recovery to damages attributable to the decision not to interview, 25 “e.g., the embarrassment or damage to [the plaintiff’s] reputation arising from not being 26 selected to interview.” The Third Circuit affirmed this analysis, “agree[ing] with the 27 District Court’s rationale” and noting that the plaintiff “went to trial solely on a ‘failure- 28 to-promote theory of liability, not a failure-to-interview theory of liability, presumably 1 because [the plaintiff] would not have been entitled to back-pay under a failure-to- 2 interview theory.” Gardner-Lozada v. SEPTA, 643 F. App’x 196, 200 n.8 (3d Cir. 2016). 3 ASU then argues that even if Alozie was pursuing a failure-to-promote theory, Alozie 4 failed to adequately disclose economic damages. 5 Alozie argues that the purpose of Title VII, to make people whole, requires backpay 6 damages in the failure-to-interview context, asserting that without such a remedy a 7 discriminatory or retaliatory employer could use a two-tier interview process as a “‘get out 8 of back pay free’ card.” (Doc. 185 at 3.) Alozie cites Ruggles v. California Polytechnic 9 State Univ., 797 F.2d 782, 786 (9th Cir. 1986) to argue that, in the retaliation context, the 10 adverse employment action is “the closing of the job opening to [the plaintiff] and the loss 11 of opportunity even to compete for the position.” Alozie also argues that his economic 12 damages were properly disclosed. 13 As the Court previously discussed, the caselaw regarding failure-to-interview 14 claims that are not accompanied by failure-to-promote claims is unsettled. (Doc. 152 at 15 16.) This is also true for backpay in failure-to-interview claims. Compare Gardner-Lozada, 16 643 F. App’x at 200 n.8 (noting plaintiff “would not have been entitled to back-pay under 17 a failure-to-interview theory”) with Aboubaker v. Cty. of Washtenaw, No. 11-13001, 2015 18 WL 1245755, at *10 (E.D. Mich. Mar. 18, 2015) (awarding backpay on a failure-to- 19 interview claim because “Washtenaw County’s argument that because the case was a 20 failure to interview claim, not a termination claim, [plaintiff] was not entitled to back pay 21 or front pay beyond the date of his termination is not supported by the law”) and Drews v. 22 Soc. Dev. Comm’n, 95 F. Supp. 2d 985, 989 (E.D. Wis. 1998) (awarding plaintiff, who 23 won a single failure-to-interview claim, 12.5% of the requested backpay under the lost 24 chance doctrine because eight candidates, excluding plaintiff, interviewed for the job). This 25 case is distinguishable from Gardner-Lozada, Aboubaker, and Drews because Alozie was 26 granted a first interview, but not a second interview, and Alozie explicitly stipulated that 27 the retaliation claim was “limited to [ASU’s] decision not to grant [Alozie] a second 28 interview,” excluding ASU’s “non-selection of [Alozie] for the position of Dean of the 1 College of Letters and Sciences.” (Doc. 116 at 2.) The Court declines to follow Drews and 2 holds that a plaintiff seeking backpay must prove that, in the absence of a Title VII 3 violation, the plaintiff would have received the position. Because Alozie’s claim does not 4 include the failure to receive the position of Dean, he has explicitly foreclosed that 5 possibility and cannot establish the requisite causal connection, and he is not entitled to 6 backpay. 7 Second, ASU argues that Alozie’s testimony of emotional distress should be limited 8 to personal knowledge about his past condition. ASU moves to exclude any testimony 9 about physical injury, because Alozie has never disclosed such an injury. ASU also argues 10 that Alozie is not qualified to testify about future emotional distress, and that only a 11 qualified medical expert may establish grounds for future emotional distress. ASU cites no 12 caselaw to support this assertion, and the Court will not credit it. Alozie did not respond to 13 ASU’s arguments directly. 14 ASU’s motion (Doc. 178) is granted in part and denied in part. Alozie may not 15 introduce evidence and argument regarding backpay. Alozie may not introduce evidence 16 of physical injury not disclosed to ASU during discovery. Alozie may introduce evidence 17 of past, present, and future emotional distress that is within his personal knowledge, or is 18 admissible pursuant to Fed. R. Evid. 701 as a lay witness opinion, but not evidence that 19 requires expert testimony pursuant to Fed. R. Evid. 702. 20 Accordingly, 21 IT IS ORDERED Alozie’s Motion (Doc. 166) is GRANTED. 22 IT IS FURTHER ORDERED Alozie’s Motion (Doc. 167) is GRANTED IN 23 PART and DENIED IN PART. 24 IT IS FURTHER ORDERED Alozie’s Motion (Doc. 168) and ASU’s Motion 25 (Doc. 173) are GRANTED IN PART and DENIED IN PART. 26 … 27 … 28 … 1 IT IS FURTHER ORDERED ASU’s Motion (Doc. 178) 1s GRANTED IN PART 2|| and DENIED IN PART. 3 Dated this 10th day of March, 2020. 4 fo _ 5 — .
7 Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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