Covington v. German Wise Dental LLC

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 AUSTIN COVINGTON, an individual, and CASE NO. C20-CV-06173-LK 11 WENDY BUCK, and individual, ORDER GRANTING PLAINTIFFS’ 12 Plaintiffs, MOTION IN LIMINE v. 13 GERMAN WISE DENTAL LLC dba 14 LOWER COLUMBIA ORAL HEALTH, a Washington limited liability company, and 15 SAM WISE, an individual, 16 Defendants. 17

18 This matter comes before the Court on Plaintiffs’ Motion in Limine. Dkt. No. 30. For the 19 reasons discussed below, the Court GRANTS the motion. 20 INTRODUCTION 21 Plaintiffs Austin Covington and Wendy Buck are ex-employees of Defendants German 22 Wise Dental LLC and Dr. Sam Wise. Dkt. No. 1 at 3, 9. Plaintiffs allege that Dr. Wise engaged in 23 harassing and discriminatory behavior in violation of Title VII of the Civil Rights Act and its state 24 analogue, the Washington Law Against Discrimination. Id. at 14–21, 24–31; see 42 U.S.C. § 1 2000e-2; Wash Rev. Code § 49.60.180. They also bring claims for wrongful termination in 2 violation of public policy, and Covington claims that Defendants unlawfully withheld his wages 3 under Washington’s Wage Rebate Act. Dkt. No. 1 at 21–23, 31–32; see Wash. Rev. Code § 4 49.52.050. As relevant here, Plaintiffs seek to exclude from the jury’s consideration several nude

5 photographs depicting Covington’s transition from female to male. Dkt. No. 30 at 2. Although the 6 context of the exchange remains unclear, at some point Covington sent these photographs to Dr. 7 Wise in a text message conversation and included the following statement: “Delete don’t show 8 please.” Dkt. No. 31 at 2. Plaintiffs argue that the photographs should be excluded because their 9 probative value is outweighed by the risk of unfair prejudice.1 Dkt. No. 30 at 2. 10 DISCUSSION 11 As an initial matter, Defendants did not file a response to Plaintiffs’ motion. When 12 Plaintiffs filed the motion, Defense counsel apparently “neither approved nor disapproved” of it, 13 and “indicated [that] Defendants’ position would be forthcoming.” Dkt. No. 31 at 2. The Court 14 considers Defendants’ failure to oppose the motion “as an admission that the motion has merit.”

15 LCR 7(b)(2). 16 The Court agrees that the nude photographs should be excluded. “To decide motions in 17 limine, the Court is generally guided by Federal Rules of Evidence 401 and 403.” Houserman v. 18 Comtech Telecomms. Corp., 519 F. Supp. 3d 863, 867 (W.D. Wash. 2021). Plaintiffs appear to 19 concede relevancy. Without more context, however, the Court is unsure whether the nude 20 photographs even meet this first hurdle, i.e., whether they have “any tendency to make a fact more 21 or less probable than it would be without the evidence,” or that any such a fact “is of consequence 22

23 1 Plaintiffs also contend that introduction of the nude photographs “would unnecessarily intrude on [Covington’s] right to privacy.” Dkt. No. 30 at 2–3. The Court need not address this secondary argument because it concludes that 24 the photographs must be excluded under Federal Rule of Evidence 403. 1 in determining the action.” Fed. R. Evid. 401. See Sprint/United Mgmt. Co. v. Mendelsohn, 552 2 U.S. 379, 387 (2008) (“Relevance and prejudice under Rules 401 and 403 are determined in the 3 context of the facts and arguments in a particular case[.]”). Even assuming, however, that the 4 photographs are relevant, their probative value is substantially outweighed by a danger of unfair

5 prejudice, confusing the issues, and misleading the jury. Fed. R. Evid. 403. 6 As Plaintiffs assert, the photographs “may evoke decision-making rooted in an emotional, 7 rather than rational, judgment of [Covington] that is wholly unrelated to the claims and defenses 8 in this matter[.]” Dkt. No. 30 at 2. Moreover, because the accompanying text messages and witness 9 testimony would suffice to establish the fact that Covington sent nude photographs to Dr. Wise, 10 the photographs themselves are unnecessary to prove any anticipated reason for their introduction. 11 See Dkt. No. 30 at 3; Old Chief v. United States, 519 U.S. 172, 184–85 (1997) (the probative value 12 of evidence may be calculated by comparing evidentiary alternatives). In short, photographs 13 depicting Covington’s transition are “minimally probative at best” and pose a “clear risk of unfair 14 prejudice.” United States Sec. & Exch. Comm’n v. Jensen, 835 F.3d 1100, 1116 (9th Cir. 2016).

15 CONCLUSION 16 The Court accordingly GRANTS Plaintiffs’ Motion in Limine. Defendants may not 17 introduce into evidence or display to the jury the nude photographs that Covington sent to Dr. Wise 18 depicting Covington’s transition from female to male. 19 Dated this 29th day of March, 2022. 20 A 21 Lauren King United States District Judge 22 23 24