UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO
Francisco J. Reyes Caparrós
v. Civil No. 3:15-cv-2229-JL Opinion No. 2018 DNH 093P
Jefferson Beauregard Sessions, III Attorney General of the United States
MEMORANDUM ORDER
Plaintiff Francisco J. Reyes Caparrós brings a single claim
under Title VII of the Civil Rights Act of 1964, see 42 U.S.C.
§ 2000e-16, alleging that the United States Attorney’s Office
for the District of Puerto Rico retaliated against him for
engaging in protected activity between 2012 and his resignation
in 2015. Before the court are the parties’ several motions in
limine seeking to exclude a variety of evidence and areas of
inquiry from the upcoming trial. The court addresses each
motion in turn.
The court reminds the parties that these rulings are made
without prejudice to revisiting particular issues in response to
circumstances that might arise during trial. Furthermore, these
rulings are limited to grounds argued in the parties’ filings
and raised at the final pretrial conference. The court reserves
the right to assess other factors at trial, such as hearsay,
authenticity, and best evidence, see Fed. R. Evid. 800 et seq., 900 et seq., and 1000 et seq., and where appropriate, arguments
and grounds not raised by counsel.
Plaintiff’s motions
A. Plaintiff’s motion in limine1
Reyes moves to exclude two categories of evidence on the
basis that it was not timely disclosed. A party must disclose
“the name . . . of each individual likely to have discoverable
information -- along with the subjects of that information --
that the disclosing party may use to support its claims or
defenses” and “all documents . . . that the disclosing party has
in its possession, custody, or control and may use to support
its claims or defenses,” unless the witness or information
“would be solely for impeachment.” Fed. R. Civ.
P. 26(a)(1)(A)(i)-(ii). A party who fails to make such a
disclosure “is not allowed to use that information or witness to
supply evidence . . . at a trial, unless the failure was
substantially justified or is harmless.” Id. Rule 37(c)(1). As
the plaintiff acknowledges, this “preclusion is not a strictly
mechanical exercise; district courts have some discretion in
deciding whether or not to impose that onerous sanction.”2
1 Document no. 122. 2 Plaintiff’s Mot. in Limine (doc. no. 122) at 3-4.
2 Santiago-Díaz v. Laboratorio Clínico, 456 F.3d 272, 276 (1st
Cir. 2006).
Documents. First, Reyes seeks to exclude the documents
identified at entries 203-245 and 249-251 of the defendant’s
exhibit list, which the defendant produced to the plaintiff on
August 25, 2017, after the close of discovery in this case.
Both the character of the evidence and intervening circumstances
weigh against exclusion on this basis, however.
The defendant characterizes the majority of these exhibits
as documents that “pertain solely to damages,” which it offers
“to meet its burden of proving Plaintiff’s failure to mitigate
and to establish Plaintiff’s post-resignation earnings for
purposes of obtaining an offset against any damages award in
this case.”3 Specifically, they include newspaper classifieds,
YouTube videos posted by the plaintiff after his resignation,
his LinkedIn profiles and the Facebook page of a law firm where
he worked after his resignation, and information concerning
lawyers’ salaries in Puerto Rico.4 The only non-public-facing
documents appear to be human resource documents concerning his
resignation and his salary at that time.5 Many of these
3 Defendant’s Obj. (doc. no. 141) at 2. 4 Id. at 2-3. 5 Id. at 2.
3 documents were available to the plaintiff during the discovery
period because they were (1) publicly available and relevant to
his case, or, more particularly, (2) created by him.
Of course, a party’s duty to produce documents under
Rule 26 is not abrogated by the documents’ public availability.
In this case, however, it appears that the plaintiff could not
only have obtained many of these documents independently (in
part, at least, because he created them), but also that he never
issued requests for production that would encompass them.6 Nor
has he identified any witness he would have deposed had the
documents been produced sooner, or any other specific prejudice
he may face at trial as a result of their late production,
beyond any general prejudice introduced by that late production.
That general prejudice plays less of a role here in light
of the circumstances intervening between the defendant’s
production and the impending trial. Trial in this action was
originally scheduled for September 18, 2017. Had it taken place
as scheduled, the plaintiff and his counsel would have been
afforded a relatively (albeit not impossibly) short time to
review and address the documents produced on August 25. As it
stands, however, the impact on Puerto Rico of a series of
hurricanes that season necessitated continuing the trial for
6 Id. at 6.
4 nearly nine months. The court acknowledges, in light of a lack
of electricity and internet connectivity, that plaintiff’s
counsel has not had consistent access to trial-related materials
during that time. The plaintiff has nevertheless had ample
opportunity to adapt his trial preparation strategy and tactics
to account for these documents, or to ask for an opportunity to
conduct additional discovery. He has made no such request. The
plaintiff’s motion to exclude these documents due to their late
production is therefore denied.
While the court is thus disinclined to exclude these
documents on timeliness grounds, to the extent the documents are
(as the defendant represents) relevant only to the plaintiff’s
claims for front and back pay, and his mitigation of those
damages, they may be excluded from trial on relevance grounds.
See Fed. R. Evid. 401. As discussed more fully infra Part II.D,
to the extent such damages may be available to the plaintiff in
equity, and should he prevail at trial, the court will reserve
those issues for a post-trial damages hearing.
Witnesses. Second, Reyes seeks to preclude ten of the
defendant’s 29 proposed witnesses from testifying because they
were not identified as potential witnesses in the defendant’s
disclosures under Rule 26. As discussed supra, a party has a
duty to disclose “each individual likely to have discoverable
information” during the discovery period, Fed. R. Civ.
5 P. 26(a)(1)(A)(i), and to supplement those disclosures “in a
timely manner if the party learns that in some material respect
the disclosure or response is incomplete or incorrect, and if
the additional or corrective information has not otherwise been
made known to the other parties . . . .” Id. Rule 26(e)(1)(A).
At the same time, “Federal Rule of Civil Procedure 26(e) exempts
a party from the supplementation requirement where ‘the
additional or corrective information has . . . otherwise been
made known to the other parties during the discovery process or
in writing.’” Pina v. Children’s Place, 740 F.3d 785, 793 (1st
Cir. 2014) (quoting Fed. R. Civ. P. 26(e)(1)).
As the defendant points out, though the defendant’s initial
disclosures were not supplemented to reflect their possession of
relevant knowledge, Reyes concedes that nine of these witnesses
were disclosed during the course of discovery.7 Three of these
witnesses -- two FBI Special Agents, Joe Rodríguez and Carlos
Cases, and one agent of the Office of the Inspector General,
James Kirdar -- interviewed Reyes and/or were otherwise involved
in the investigation surrounding his proposed trip to Russia.
Reyes discussed the roles of all three during his deposition,
7 See Plaintiff’s Mot. in Limine (doc. no. 122) at 2; Defendant’s Obj. (doc. no. 141) at 7.
6 and further indicates his intent to depose Rodríguez.8 Reyes
knew six others (Victor Acevedo, Luke Cass, Evelyn Canals, Pedro
Espinal, Normary Figueora, and Jose Ruiz) because they
(1) worked in the same United States Attorney’s Office as him,
and (2) provided information to him with respect to the firearms
initiative that he worked on in late 2013 and early 2014.
Though the defendant perhaps ought to have identified these
witnesses during the discovery process, the court denies the
plaintiff’s motion to exclude them on that basis because the
identities of these witnesses were either known to Reyes or made
known to him during the discovery process.
The sole witnesses unknown to the plaintiff before the
defendant produced its witness list is Xiomara Colón-Rodríguez.
The defendant indicates that she will testify as “a foundational
witness, analogous to a custodian of records,” to authenticate
certain of the documents discussed supra.9 Other courts have
allowed such witnesses to testify to authenticate documents
without disclosure under Rule 26. See, e.g., Guerrero, 2008 WL
926566, at *1; Smith v. Loudoun Cty. Pub. Sch., No. 1:15CV956,
2016 WL 9943214, at *2 (E.D. Va. Jan. 21, 2016). Under the
8 Defendant’s Obj. (doc. no. 141) at 8. 9 Defendant’s Obj. (doc. no. 141) at 9 (quoting Guerrero v. Gen. Motors Corp., No. CVF061539, 2008 WL 926566, at *1 (E.D. Cal. Apr. 4, 2008)).
7 circumstances present here, and to the extent that any of these
documents may be introduced in light of the court’s other
rulings in this order, see supra Part I.A (documents), infra
Part II.D, this court does likewise.
Cumulative testimony. In addition to timeliness, the
plaintiff moves to exclude the testimony of the six witnesses,
all Assistant United States Attorneys, as unnecessarily
cumulative of the testimony of three other witnesses who were
disclosed, as well as documentary evidence.10 While the court is
skeptical that 29 witnesses are necessary to present the
defendant’s case during a trial on a single Title VII claim, as
with the plaintiff’s proposed witnesses, discussed infra
Part II.A.2, it declines to exclude the testimony of these
witnesses as cumulative at this pre-trial stage. Should these
witnesses’ testimony appear cumulative as presented, see Fed. R.
Evid. 403, Reyes may renew his motion, and the court may exclude
one or more of the witnesses sua sponte in order to increase
judicial efficiency and avoid wasting time. See id.; Fed. R.
Evid. 611(a).
10 Plaintiff’s Mot. in Limine (doc. no. 122) at 2-3.
8 B. Motion to quash subpoenas11
The plaintiff moved to quash nine subpoenas that the
defendant issued to a variety of airlines seeking “a flight
manifest, for any flight Francisco. J. Reyes Caparrós . . . may
have taken . . . between San Juan, Puerto Rico and any airport
in Florida on October 9th, 10th and/or 11th, 2014.”12 The
defendant served these subpoenas on September 15, 2017, three
days before trial in this action was originally scheduled to
commence, and well after the discovery deadline. Reyes objects
and seeks to quash these subpoenas on the ground that they “are
an improper attempt to use trial subpoenas as a discovery device
at the eve of trial.”13
This court has, in the past, “expressed its skepticism
regarding the technical propriety” of using trial subpoenas to
obtain pretrial production of documents at counsel’s office (as
opposed to the courthouse at trial) after the close of
discovery. Rockwood Select Asset Fund XI v. Devine, Millimet &
Branch, PA, No. 14-CV-303-JL, 2016 WL 2637818, at *9-10 &
nn. 16-17 (D.N.H. May 6, 2016); see also Fed. R. Civ. P. 45(c).
This concern arises particularly in circumstances such as these,
11 Document no. 133. 12 E.g., Mot. to Quash Ex. A (doc. no. 133-1) at 1. 13 Mot. to Quash (doc. no. 133) at 3.
9 where the party seeking belated discovery was on notice of the
documents’ relevance and had ample opportunity to obtain them
during the discovery period.
Any prejudice to the plaintiff arising from the defendant’s
efforts to seek such discovery outside of the discovery period
is mitigated here, however, by the limited number and scope of
documents returned and the extended delay of trial. The
defendant represents that only one airline (JetBlue Airways)
responded with a document, and that this document constituted a
single line of a manifest.14 Because of the circumstances
occasioning this trial’s delay, the plaintiff and his counsel
have had over four months to determine how, if at all, to
address this small amount of information at the upcoming trial.
Accordingly, the court denies the plaintiff’s motion to quash
the subpoenas.
Defendant’s motions in limine
Three of the defendant’s motions in limine address evidence
connected to the FBI’s search of Reyes’ office, the subsequent
FBI and OIG investigations, and the implications of those
investigations on Reyes’s security clearance. The court
14 Obj. to Mot. to Quash (doc. no. 138) at 1-3.
10 addresses those motions together. It then addresses the
defendant’s remaining four15 motions in limine in turn.
A. Investigation-related motions in limine
In September 2013, Kaleb Rodríguez Cruz, Reyes’s childhood
friend, emailed him an invitation to attend an all-expenses-paid
trip to Russia to attend a “cultural exchange” program sponsored
by the Russian Cultural Centre in the United States. Reyes
forwarded the invitation to Lisa Western, the District Office
Security Manager, seeking clarification on whether and from whom
he needed permission to attend.
According to the defendant, the FBI believed that this
“cultural exchange” program was sponsored by an organization led
by a known Russian spy and the program was aimed at recruiting
the invitees for espionage purposes. As a result, they
interviewed Reyes and searched both his physical office at the
USAO and his work computer. After the search, both the FBI and
the Department of Justice’s Office of the Inspector General
(OIG) opened investigations on Reyes.
15On May 2, 2018, the defendant filed a ninth motion in limine, this time seeking to exclude certain testimony from Idalia Mestey Borges, the employee whom Reyes argues he was retaliated against for supporting in early 2012. See Defendant’s Mot. to Preclude Mestey Testimony (doc. no. 164). The court will address that motion in a separate order.
11 As an intelligence specialist, Reyes had access to certain
FBI resources. In light of the investigation, the FBI limited
Reyes’s access to those resources. Citing Reyes’s inability to
perform the duties of an intelligence specialist without such
access, USA Rodríguez placed him on a sequestration-related
furlough.16
Reyes’s duties as an intelligence specialist remained
suspended when he returned from furlough. His access to FBI
resources remained restricted, even after the FBI investigation
concluded. For a time, he acted as a paralegal. During that
time, the USAO engaged in intermittent discussions with the
Executive Office of the United States Attorney (EOUSA)
concerning the potential revocation of Reyes’s security
clearance in light of those investigations.17 The EOUSA likewise
held discussions with the Security and Emergency Management
Staff (SEMS), which handles security issues for United States
Attorney’s Offices, on the subject.
Though the Department of Justice never revoked Reyes’s
security clearance, the FBI continued to restrict his access to
16The federal government shut down in the fall of 2013. Many federal employees nationwide were furloughed between October 1 and October 16. The plaintiff had not initially been included among that number. 17See Defendant’s Mot. to Preclude Security Clearance Investigation (doc. no. 125) at 2.
12 its materials. On January 22, 2015, Reyes’s request to have his
duties as an intelligence specialist reinstated was denied, at
least in part because he still lacked access to FBI resources.
Reyes resigned shortly thereafter.
Reyes contends that the FBI’s search of his office and
computer, the FBI’s and OIG’s investigations, the removal of his
duties as an intelligence specialist, the refusal to reinstate
those duties, his superiors’ efforts to arrange for the
revocation of his security clearance, and what he characterizes
as his constructive discharge, among other actions, amounted to
retaliation for Reyes’s perceived support of another employee’s
EEO complaint in early 2012 and his own EEO complaints. He
further argues that the defendant’s explanations for these
alleged acts of retaliation are merely pretextual.
The defendant moves to exclude three categories of evidence
relating to these events. First, the defendant moves to exclude
all evidence relating to the decision of whether to revoke
Reyes’s security clearance. Second, the defendant seeks to
preclude Rodríguez Cruz from testifying. Finally, the defendant
moves to preclude the plaintiff from claiming, presenting
evidence, or otherwise arguing that the search of his office and
computer violated the Fourth Amendment. As discussed here, the
court grants the first motion, denies the second motion, and
grants the third motion in part and denies it in part.
13 1. Plaintiff’s security clearance investigation18
Reyes contends that USA Rodríguez insisted that his
security clearance be revoked in retaliation for his apparent
support of another employee’s EEO complaint in 2012.19 The
defendant moves “to preclude all testimony and argument
regarding any inquiry or investigation into whether Plaintiff’s
security clearance should have been suspended or revoked” on
grounds that “judicial review of any inquiry or investigation
regarding Plaintiff’s security clearance is barred by Department
of the Navy v. Egan, 484 U.S. 518 (1988) and its progeny.”20
This extends, the defendant argues, to evidence and testimony
“that USAO management and their lawyers sought to suspend or
revoke Plaintiff’s security clearance.”21
In Egan, the Supreme Court
made clear that the general presumption favoring judicial review “runs aground when it encounters concerns of national security,” as in cases “where the grant of security clearance to a particular employee, a sensitive and inherently discretionary judgment call, is committed by law to the appropriate agency of the Executive Branch.”
18 Document no. 125. 19 Plaintiff’s Omnibus Obj. (doc. no. 148) at 6, 11. 20Defendant’s Mot. to Preclude Security Clearance Investigation (doc. no. 125) at 1. 21 Id. at 6.
14 Rattigan v. Holder, 689 F.3d 764, 767 (D.C. Cir. 2012) (en banc)
(quoting Egan, 484 U.S. at 527). Accordingly, as the plaintiff
concedes, the Egan line of cases precludes judicial review,
including jury trials, of “Title VII claims that require the
trial court to evaluate the merits of the security clearance
determination.”22 See also Makky v. Chertoff, 541 F.3d 205, 218
(3d Cir. 2008) (concluding it would be “impermissible” to
“review the merits of [the plaintiff’s] security clearance
access”).
Reyes then argues the converse of that proposition: that
because he does not directly or indirectly challenge the merits
of the decision concerning his security clearance, “Egan is
inapplicable.”23 But he does not provide, and the court has not
found, any authority to support so broad a proposition.
To the contrary, courts have generally extended Egan’s bar
to the circumstances surrounding a security clearance decision,
even where the merits of that decision were not directly at
issue. For example, the Fourth and Eleventh Circuit Courts of
Appeals have found that courts lacked jurisdiction to review
even the instigation or initial stages of a security clearance
determination, reasoning that
22 Plaintiff’s Omnibus Obj. (doc. no. 148) at 11. 23 Plaintiff’s Omnibus Obj. (doc. no. 148) at 11.
15 [t]he reasons why a security investigation is initiated may very well be the same reasons why the final security clearance decision is made. Thus, if permitted to review the initial stage of a security clearance determination to ascertain whether it was a retaliatory act, the court would be required to review the very issues that the Supreme Court has held are non-reviewable.
Becerra v. Dalton, 94 F.3d 145, 149 (4th Cir. 1996); see also
Hill v. White, 321 F.3d 1334, 1336 (11th Cir. 2003) (“To review
the initial stages of a security clearance determination is to
review the basis of the determination itself regardless of how
the issue is characterized.”).
The Court of Appeals for the District of Columbia has
recognized a narrow exception to that rule, permitting judicial
review of “Title VII claims based on . . . knowingly false
security reports or referrals” that prompted a security
clearance review. Rattigan, 689 F.3d at 770. It based this
exception on the conclusion that “Egan’s absolute bar on
judicial review covers only security clearance-related decisions
made by trained Security Division personnel and does not
preclude all review of decisions by other FBI employees who
merely report security concerns.” Id. at 768.
Reyes invokes Rattigan to argue that communications from
his superiors at the USAO with the EOUSA, and the EOUSA’s
communications with SEMS, concerning the investigation into his
security clearance are relevant to establish pretext, regardless
16 of the merits of the security clearance decision.24 He
characterizes those communications as constituting (1) a request
from the USAO that Reyes’s security clearance be revoked, and
(2) queries from the USAO into the status of that decision.25 He
has not, however, argued that USA Rodríguez -- or any member of
her office -- made a “knowingly false security report[ ] or
referral,” in a manner that would bring this claim within
Rattigan’s narrow exception.
Accordingly, the court grants the defendant’s motion to
exclude evidence and testimony concerning any inquiry or
investigation into Reyes’s security clearance.26 As the court
understands the evidence, that includes discussions between
Reyes’s superiors at the USAO and the Department of Justice’s
Executive Office concerning whether Reyes’s security clearance
would be revoked. It is unclear from the defendant’s motion,
however, whether the defendant also argues that the Egan line of
cases precludes the plaintiff from introducing evidence
concerning the FBI’s investigation into Reyes or its decision to
prevent Reyes from accessing FBI materials and resources.
24 Plaintiff’s Omnibus Obj. (doc. no. 148) at 12. 25 Id. at 9 n. 5. 26Given the jurisdictional nature of this inquiry, these arguments were material to, and ought to have been raised by the defendant during, the summary judgment proceedings. They were not. See Defendant’s Summary Judgment Mem. (doc. no. 56-1).
17 Specifically, it is unclear from the record before the court on
this motion that the FBI’s investigation beginning in October
2013 was connected in any way to a security clearance
determination by SEMS. As a result, on this record, the court
does not preclude Reyes from introducing evidence concerning the
FBI’s investigation, subject to reconsideration in light of the
evidence at trial.
2. Rodríguez Cruz testimony27
The defendant also moves to exclude Rodríguez Cruz’s
testimony, arguing that any testimony he may offer lacks
relevance and, further, that the danger of unfair prejudice
outweighs its probative value. See Fed. R. Evid. 402, 403.
“Relevant evidence is admissible” unless the law or rules
provide otherwise. Fed. R. Evid. 402. Conversely, irrelevant
evidence is not admissible. Cf. id. “Evidence is relevant if
it has any tendency to make a fact more or less probable than it
would be without the evidence; and the fact is of consequence in
determining the action.” Fed. R. Evid. 401. “The court may
exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice,
confusing the issues, [or] misleading the jury . . . .” Fed. R.
Evid. 403.
27 Document no. 140.
18 Reyes argues that the FBI’s search and its ensuing
investigation amounted to part of the retaliation he suffered
for his perceived support for another employee’s EEO complaint.
Though the defendant cites Cruz’s emailed invitation to attend
an event sponsored by an organization led by a known Russian spy
as the actual reason for the investigation, Reyes contends that
this explanation is pretextual.
To succeed at trial, Reyes bears the burden of proving that
“his employer’s stated reasons are pretextual and proffered to
disguise retaliatory animus.” Alvarado v. Donahoe, 687 F.3d
453, 458 (1st Cir. 2012). This analysis focuses, of course, “on
the motivations and perceptions of the decisionmaker” -- here,
USAO management. Dávila v. Corp. de P.R. Para la Difusión
Pública, 498 F.3d 9, 16-17 (1st Cir. 2007).
The defendant is not wrong that Rodríguez Cruz’s testimony
bears little on the motivations of Reyes’s superiors. But it
may yet be relevant to demonstrating pretext. The defendant
contends that the investigation stemmed from the FBI discovering
“that the Plaintiff had been communicating with a known Russian
spy.”28 The court is hard-pressed to conclude, at this pre-trial
stage, that evidence concerning the source of the invitation
28Defendant’s Mot. to Exclude Fourth Amendment Theory (doc. no. 124) at 3.
19 from the plaintiff’s childhood friend (an ostensibly innocuous
individual) is entirely irrelevant to countering that position.
And any knowledge, or lack thereof, about the USAO management’s
awareness of the source and circumstances of this information
can presumably be developed by the defense on cross examination.
The defendant also argues that Reyes himself can present
that evidence, rendering Rodríguez Cruz’s testimony cumulative,
immaterial, and unnecessary.29 The court is, however,
disinclined to preclude testimony as cumulative, or to determine
that a witness’s testimony is “unnecessary,” before trial --
that is, before the presentation of the evidence that would
render it so.30
Finally, the defendant seeks to preclude Rodríguez Cruz’s
testimony as barred under Egan, 484 U.S. at 527, and as
prejudicial, confusing, or misleading in a manner that would
“require[e] Defendant to defend against any Egan-related
testimony . . . by calling its own lawyers to the stand.”31 As
29Defendant's Mot. to Preclude Rodriguez Cruz Testimony (doc. no. 140) at 2-3. 30The defendant’s argument that allowing the testimony of a single witness -- Rodríguez Cruz -- would prejudice the defendant by “allowing an unnecessary witness to testify in a trial that is already expected to be long,” id. at 3, runs somewhat incongruously alongside the defendant’s own stated intention to call no fewer than 27 witnesses at trial. See Defendant’s Witness List (doc. no. 111). 31 Id. at 3.
20 discussed supra Part II.A.1, Reyes’s evidence concerning the
initiation and course of the investigation into his security
clearance is curtailed under Egan. That ruling does not, at
this juncture, extend to the FBI’s search of his office nor to
the opening of the FBI investigation. Nor does it prevent
Rodríguez Cruz -- who was in no way involved with that
investigation -- from testifying concerning the invitation.
3. Fourth Amendment32
The defendant moves pursuant to Federal Rules of Evidence
103, 402, and 403 to exclude any evidence or argument that the
plaintiff’s rights to be free from unreasonable searches and
seizures, as guaranteed by the Fourth Amendment, were violated
by the FBI’s and Office of Inspector General’s warrantless
searches of his office at the USAO and his work computer.
The defendant correctly observes that the plaintiff has
brought no claim seeking to recover for violations of his Fourth
Amendment rights. His sole claim before this court is one for
retaliation under Title VII of the Civil Rights Act. See infra
Part. II.D. Reyes has not sought to amend his complaint to
assert such a claim at this late stage in the proceedings, and
none of the arguments that he has made demonstrate the good
32 Document no. 124.
21 cause necessary to amend the scheduling order so as to amend his
complaint. See Fed. R. Civ. P. 16(b)(4).
Even if the plaintiff demonstrated the necessary good cause
for such an amendment, the court is skeptical, on the facts
presented here, that Reyes could establish a Fourth Amendment
violation. “To prevail on a claim that a search or seizure
violated the Fourth Amendment, a defendant must show as a
threshold matter that he had a legitimate expectation of privacy
in the place or item searched.” United States v. Battle, 637
F.3d 44, 48 (1st Cir. 2011). Reyes accepts that he lacked the
necessary privacy interest in his DOJ-provided computer. Every
time he logged on, the computer system informed him that he
lacked such an interest in it and any communications transmitted
through it or stored on it.33 Reyes further agrees that any
review of his personnel file was authorized.34
He maintains, however, that he possessed a reasonable
expectation of privacy in the physical space of his office, and
that the FBI’s search of his office violated that expectation.
A public-sector employee may have the necessary reasonable
expectation of privacy in portions of his office where he stores
33See Defendant’s Mot. to Exclude Fourth Amendment Theory (doc. no. 124) at 7; Plaintiff’s Omnibus Obj. (doc. no. 148) at 7. 34 Plaintiff’s Omnibus Obj. (doc. no. 148) at 7-8.
22 personal effects. See O’Connor v. Ortega, 480 U.S. 709, 718-19
(1987). But Reyes has not asserted that the FBI searched any
location within his office where he maintained personal effects;
he argues only that the search of his office, as a whole,
violated that right.35
As Reyes points out, evidence concerning the search of his
workplace and computer may be relevant to his retaliation
claim.36 Specifically, Reyes argues that the search occurred in
retaliation for actions that he took and that the reasons given
for the search are pretextual. He does not need to invoke the
Fourth Amendment to make that argument. Doing so where he has
not pleaded a claim under the Fourth Amendment would inject more
prejudice and potential confusion and delay into the proceedings
than its probative value warrants. See Fed. R. Evid. 402, 403.
Reyes may, however, present otherwise admissible evidence about
the nature and extent of the search and the allegedly pretextual
nature of the stated reason for it, without raising or referring
to the Fourth Amendment or his constitutional rights.37
Accordingly, the defendant’s motion to exclude evidence and
argument that Reyes’s Fourth Amendment rights were violated
35 See id. at 8. 36 Plaintiff’s Omnibus Obj. (doc. no. 148) at 6. 37 Id. at 6-7.
23 through the search of his office and office computer is granted
to the extent that the plaintiff may not invoke the Fourth
Amendment in reference to the office search, but denied insofar
as the defendant sought to exclude evidence of the search in its
entirety.38
B. Other employees’ allegations39
The defendant moves to exclude evidence and argument
concerning allegations of retaliation or discrimination
experienced by other employees of the USAO in Puerto Rico. This
includes evidence of allegations raised in four lawsuits brought
by current and former USAO employees Juan Milanés, Carmen
Márquez, and Nelson Pérez, all of whom alleged Title VII
violations. The defendant argues that evidence of
discrimination and retaliation against other employees bears no
relevance to Reyes’s retaliation claim, see Fed. R. Evid. 402,
and that its prejudice would outweigh its probative value, see
Fed. R. Evid. 403. The court agrees as a general matter and
grants the defendant’s motion in part, but also denies it in
part.
38As discussed supra Part II.A.1, the defendant has not argued that evidence concerning the FBI’s search of Reyes’s office and computer, or evidence of the FBI’s own investigation into Reyes, would run afoul of Egan, 484 U.S. at 527. 39 Document no. 123.
24 Reyes concedes that lawsuits filed by Márquez in 200540
action and Milanés in 200941 lack relevance to his own action,
and represents that he “will not attempt to introduce evidence
[of] the Márquez 2005 nor the Milanés 2009 lawsuits.”42 The
court does not view the plaintiff’s written submissions under
28 C.F.R. § 16.23(c) (“Touhy statements”), as necessarily
inconsistent with that representation, as the defendant
suggests.43 The court therefore denies the defendant’s motion to
exclude these two lawsuits as moot.
Two other lawsuits remain at issue -- one by Márquez and
one by Nelson Pérez-Sosa. Márquez prevailed at trial in her
2005 action and was reinstated to her position in 2008. In
2016, after the events leading to Reyes’s departure, Márquez
filed a second lawsuit.44 In this still-pending action, she
alleges retaliation under Title VII and discrimination under the
Rehabilitation Act resulting from, among other things, her
40Márquez-Marin v. Gonzalez, No. 05-cv-1619-SJM (D.P.R. filed June 9, 2005). 41Milanés v. Holder, C.A. No. 09-02132-JAF (D.P.R. filed May 5, 2009). 42 Plaintiff’s Omnibus Obj. (doc. no. 148) at 4 n.1. 43See Supp. to Defendant’s First Mot. in Limine (doc. no. 158) at 2-3 & nn. 1-2. 44Márquez-Marin v. Lynch, No. 16-cv-01706-JAW (D.P.R. filed Apr. 13, 2016).
25 participation in the EEO process after another USAO employee
filed an EEO complaint in late 2013 naming Márquez as a witness.
Though she does not name Reyes as the employee in question, the
complaint could reasonably be read to refer to Reyes’s first EEO
complaint, filed on November 29, 2013.45
Pérez-Sosa filed a Title VII retaliation action in 2017,
alleging that a hostile work environment beginning in 2015
culminated in his demotion in 2016.46 Pérez-Sosa’s still-pending
lawsuit alleges that the USAO retaliated against him for
supporting Reyes’s second administrative EEO complaint in 2014
and AUSA Márquez’s 2015 allegations of retaliation and
disability discrimination.
As Reyes points out, both Márquez and Pérez allege
retaliation at least in part as a result of their participation
in Reyes’s EEO complaints. Evidence of retaliation against
Márquez and Perez may be relevant in this action to the extent
it tends to demonstrate a “discriminatory atmosphere,” in the
sense that it may support Reyes’s contention that management had
a tendency to retaliate against those who filed, or participated
in, EEO complaints. See Cummings v. Std. Register Co., 265 F.3d
45See Márquez-Marin v. Lynch, No. 16-cv-01706-JAW, doc. no. 1 ¶¶ 7.1-7.8. 46Pérez-Sosa v. Sessions, No. 17-cv-01399-WES (D.P.R. filed Mar. 26, 2017).
26 56, 63 (1st Cir. 2001) (“evidence of a ‘discriminatory
atmosphere’ may sometimes be relevant to showing the corporate
state-of-mind,” but can be “too attenuated” to justify admission
and “should be let in sparingly.”). Such events are most
relevant when contemporaneous with the alleged retaliation
against the plaintiff -- that is, as evidence of the same
atmosphere, during the same timeframe, created by the same
individuals. See id. The further it is removed from the
circumstances of Reyes’s case, the less relevant such evidence
becomes.
Thus, any testimony on this subject from Márquez or Pérez-
Sosa will be limited to evidence concerning the witnesses’
support of Reyes and any negative consequences experienced as a
result, but would not include testimony concerning their own
complaints with the EEO or retaliation-based lawsuits. The
plaintiff sets out a general outline of Márquez’s and Pérez-
Sosa’s proposed testimony in her Touhy statements.47 Consistent
with this order, these witnesses may not testify concerning:
(1) a conclusory and general “pattern of retaliation and hostile
work environment”48; (2) the fact that they, or other employees,
47See Supp. to Defendant’s First Mot. in Limine Exs. A & B (doc. nos. 158-1 and 158-2). 48Márquez Touhy Statement (doc. no. 158-1) at IV; Pérez-Sosa Touhy Statement (doc. no. 158-2) at VII.
27 have filed lawsuits or administrative complaints alleging
retaliation or a hostile work environment49; or (3) the fact that
Márquez was ordered reinstated in her position following a
successful employment action in 2008.50
As a general matter, the remainder of these witnesses’
proposed testimony appears in line with the permissible evidence
outlined above. To be clear, however, the court at this
pretrial juncture has not necessarily ruled this testimony
admissible; it merely declines to declare it inadmissible prior
to trial for the reasons proposed in the defendant’s motion.
The court reserves ruling on other issues of admissibility
(e.g., hearsay, Fed. R. Evid. 801 et seq.) until the evidence is
presented at trial. The defendant may, of course, also request
an appropriate limiting instruction with respect to this
evidence. See Fed. R. Evid. 105.
C. Pre-EEO complaint evidence51
“In order to establish a prima facie claim of retaliation
under Title VII, a plaintiff must make a showing (1) that [he]
engaged in protected conduct, (2) that [he] suffered an adverse
49Márquez Touhy Statement (doc. no. 158-1) at IV.A; Pérez-Sosa Touhy Statement (doc. no. 158-2) at VII.A-B. 50 Márquez Touhy Statement (doc. no. 158-1) at I.B. 51 Document no. 127.
28 employment action, and (3) that there was a causal connection
between the protected conduct and the adverse employment
action.” Vera v. McHugh, 622 F.3d 17, 32 (1st Cir. 2010). The
defendant moved for summary judgment on the grounds that the
plaintiff engaged in no protected conduct, and therefore could
not have been retaliated against, before he filed his first EEO
complaint in November 2013.52 Specifically, Reyes has alleged
that his superiors at the USAO perceived him to be supporting
the EEO complaint of AUSA Mestey and opposing the USAO’s
treatment of her when he provided her with a bullet proof vest
in early 2012. The defendant argued, among other things, that
there was no such perception. Though expressing skepticism that
Reyes’s “perceived opposition” conduct predating his EEO
complaint amounted to “protected conduct,” the court denied the
defendant’s summary judgment motion, without prejudice to the
defendant seeking relief under Rule 50 at trial.53
The defendant now moves to exclude evidence of events
occurring prior to Reyes’s November 2013 EEO complaint not, he
claims, in an effort “to reargue the Defendant’s summary
judgment motion,” but on the grounds that “undue prejudice would
52See Defendant’s Summary Judgment Mem. (doc. no. 56-1) at 27- 30. 53 See Hearing Tr., Aug. 18, 2017 (doc. no. 119) at 2-13.
29 result from the jury hearing legally defective evidence, even if
the Court ultimately grants the Defendant’s Rule 50(a) motion at
trial.”54
This request presents something of a conundrum. The
court’s resolution of the defendant’s anticipated Rule 50 motion
depends on the evidence presented by the plaintiff in his case-
in-chief. Should the court ultimately resolve that motion in
the defendant’s favor, then some evidence presented by the
parties before that ruling will necessarily have been in vain
and will inevitably trigger a motion to strike that evidence.
But, despite the defendant’s disclaimer, to exclude evidence at
trial solely on that basis would, in effect, be to revisit the
court’s decision on summary judgment or to decide that
anticipated motion in the defendant’s favor before the
plaintiff’s presentation of evidence. The court is not inclined
to do so, especially where any such prejudice to the defendant
may be mitigated by a curative instruction. See CSX Transp.,
Inc. v. Hensley, 556 U.S. 838, 841 (2009) (“juries are presumed
to follow the court’s instructions”).
Accordingly, the defendant’s motion in limine to exclude
evidence of alleged retaliation preceding Reyes’s 2013 EEO
54Defendant’s Mot. to Preclude Pre-November 2013 Conduct (doc. no. 127) at 1.
30 complaint is denied. Should the court ultimately conclude that
Reyes undertook no protected activity (perceived or otherwise),
the court will strike the evidence relevant solely to that
theory of retaliation and properly instruct the jury.
D. Back pay and front pay55
The defendant moves to exclude the plaintiff’s argument
that he is entitled to recover back pay and front pay, and any
evidence supporting such claims. The court grants this motion.
Reyes has brought a single claim for retaliation under
Title VII of the Civil Rights Act. In responding to the
defendant’s motion to dismiss the complaint, he disavowed any
separate claims, and represented that his “sole cause of action
is for discrimination and retaliation under Title VII . . . .”56
Though he alleges that he was constructively discharged in
retaliation for his protected activity,57 and thus that the
circumstances of his departure from the USAO relate to his claim
under Title VII, he included no separate count for wrongful
termination.
Consistent with this approach, his complaint does not
contain a request for damages in the form of back pay or front
55 Document no. 128. 56 Obj. to Mot. to Dismiss (doc. no. 25) at 6. 57 See Compl. (doc. no. 1) ¶¶ 1.8, 17.30, 17.34
31 pay as a legal remedy. He asks only for compensatory damages,
up to the statutory maximum of $300,000, see 42 U.S.C.
§ 1981a(b)(3), as relief should he prevail on his Title VII
claim.58 On this basis, the court at the summary judgment
hearing concluded that, while the plaintiff lacks an affirmative
constructive discharge claim, he was not barred from developing
facts relating to his alleged constructive discharge as a
retaliatory act.59
Having conceded that he is not entitled to back pay or
front pay as legal remedies for his Title VII claim,60 Reyes now
clarifies that he seeks those remedies not as damages at law,
but as equitable relief.61 This request, characterized as such,
appears in his complaint.62
Although such equitable remedies may be available to a
Title VII plaintiff, and not subject to the statutory cap, see
Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 847–48
58 Id. ¶ 19.4. 59 Summary Judgment Hrg. Tr. (doc. no. 119) at 14-16. 60 Plaintiff’s Omnibus Obj. (doc. no. 148) at 18. 61 Id. 62Compl. (doc. no. 1) ¶¶ 19.7 (“Mr. Reyes is also entitled to back pay, as well as payments for the reduction in his anticipated compensation pursuant to the federal step system, as part of his equitable relief.”); 19.9 (“Plaintiff is entitled to equitable relief in the form of reinstatement or front pay in lieu of reinstatement.”).
32 (2001), the court need not resolve the issue of their
availability now. Even if these remedies are available to the
plaintiff, such remedies are not the province of the jury.
Ramos v. Roche Prod., Inc., 936 F.2d 43, 50 (1st Cir. 1991)
(plaintiffs “not entitled to a jury trial under their Title VII
equitable claims”). Thus, in the event of a verdict in the
plaintiff’s favor, the court will permit further briefing and
argument on the availability of these remedies in equity63 and,
if they are available, it will hold a post-trial evidentiary
hearing on damages.
The defendant’s motion to exclude from the jury trial
evidence supporting the plaintiff’s requests for back pay and
front pay is therefore granted. Consistent with this order, any
of the documents relevant only to these issues produced by the
defendant after close of discovery, see supra Part 1.A, are also
excluded on this basis.
63The defendant’s motion in limine, like the court at the summary judgment proceedings, focused on whether plaintiff could recover back pay and front pay from a separate, unpleaded wrongful termination claim. To be clear, as discussed supra, he cannot. The court is disinclined to resolve the availability of such remedies in equity absent any briefing on that subject from the defendant.
33 E. Plaintiff’s EEO investigation report exhibits64
Reyes included the EEO’s reports of investigation into his
EEO complaints, in their entirety, on his proposed exhibit list
as two exhibits.65 The defendant moves to preclude him from
introducing these reports, which together span a total of 2,757
pages, in their entirety. Reyes agrees that blanket admission
of the two reports of investigation is inappropriate, and has
further agreed to review those reports “to identify which
individual documents from these [reports of investigation] will
be sought to be introduced at trial.”66
The court therefore denies the defendant’s motion as moot
and grants the plaintiff’s request to file an amended exhibit
list identifying the individual documents from the two EEO
reports of investigation (proposed exhibits 19-20), as well as
from the report of investigation of the Office of the Inspector
General (proposed exhibit 21).
64 Document no. 139. 65 See Plaintiff’s Exhibit List (doc. no. 113) Exs. 19 and 20. 66Plaintiff’s Response to Defendant’s Mot. to Preclude ROIs (doc. no. 149) at 1-2.
34 Conclusion
For the foregoing reasons, the court:
DENIES the plaintiff’s motion in limine67;
DENIES the plaintiff’s motion to quash subpoenas68;
GRANTS the defendant’s motion to exclude evidence and argument regarding the investigation into the plaintiff’s security clearance69;
DENIES the defendant’s motion to exclude the testimony of Kaleb Rodríguez Cruz.70
GRANTS-IN-PART and DENIES-IN-PART the defendant’s motion to exclude evidence and arguments concerning alleged violations of the plaintiff’s Fourth Amendment rights71;
GRANTS-IN-PART and DENIES-IN-PART the defendant’s motion in limine to exclude evidence of other employees’ allegations of discrimination and retaliation72;
DENIES the defendant’s motion to preclude evidence and argument on pre-November 2013 conduct73;
GRANTS the defendant’s motion to preclude evidence and argument on back pay and front pay at trial74; and
67 Document no. 122. 68 Document no. 133. 69 Document no. 125. 70 Document no. 140. 71 Document no. 124. 72 Document no. 123. 73 Document no. 127. 74 Document no. 128.
35 DENIES as moot the defendant’s motion to exclude plaintiff’s proposed exhibits 19 and 20.75
SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: May 4, 2018
cc: Bamily Lopez-Ortiz, Esq. Jason C. Weida, AUSA Susan M. Poswistilo, AUSA
75 Document no. 139.