1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF ARIZONA
4 John Guido, et al., No. CV-13-00216-TUC-JAS
5 Plaintiffs, ORDER
6 v.
7 Mount Lemmon Fire District,
8 Defendant. 9 10 Pending before the Court are several motions in limine filed by Plaintiffs and 11 Defendant; the motions are addressed below.1 12 BACKGROUND 13 Plaintiffs John Guido and Dennis Rankin began working for Defendant Mount 14 Lemmon Fire District (“Fire District”)2 in 2000. The position each held was Firefighter 15 EMT. In 2005, both Guido and Rankin were promoted to the rank of Fire Captain. On 16 June 15, 2009, Guido and Rankin were laid off; Rankin was 54 years old and Guido was 17 46 years old when they were laid off. The person who terminated them, Fire Chief 18 Barnella, was in his thirties at the time of these terminations. At the time of the lay offs, 19 Guido and Rankin were the oldest full-time employees of the Fire District. 20 On July 28, 2009, Guido and Rankin each filed a Charge of Discrimination with the 21 U.S. Equal Employment Opportunity Commission alleging that Defendant discriminated 22 against them on the basis of age. Thereafter, Plaintiffs filed a Complaint in this case 23 alleging that they were terminated in violation of the Age Discrimination in Employment 24 Act (“ADEA”) which prohibits discrimination against employees 40 and older on the basis 25
26 1 Because the briefing is adequate and oral argument will not help in resolving this matter, oral argument is denied. See Mahon v. Credit Bureau of Placer County, Inc., 171 F.3d 27 1197, 1200-1201 (9th Cir. 1999).
28 2 All references to Fire Chief, Fire Captain, Firefighter EMT and firefighter refer to employees of Defendant Mount Lemmon Fire District. 1 of their age.3 See 29 U.S.C. § 631(a).4 2 ADMISSIBILITY STANDARDS 3 As pertinent to the motions in limine, Fed. R. Evid. 402 provides: "Relevant 4 evidence is admissible unless any of the following provides otherwise: • the United States 5 Constitution; • a federal statute; • these rules; or • other rules prescribed by the Supreme 6 Court. Irrelevant evidence is not admissible." Fed. R. Evid. 401 defines relevant evidence 7 as follows: "Evidence is relevant if: (a) it has any tendency to make a fact more or less 8 probable than it would be without the evidence; and (b) the fact is of consequence in 9 determining the action." Fed. R. Evid. 403 provides that: “The court may exclude relevant 10 evidence if its probative value is substantially outweighed by a danger of one or more of 11 the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, 12 wasting time, or needlessly presenting cumulative evidence.” As to experts, Fed. R. Evid. 13 702 states that “[a]witness who is qualified as an expert by knowledge, skill, experience, 14 training, or education may testify in the form of an opinion or otherwise if: (a) the expert's 15 scientific, technical, or other specialized knowledge will help the trier of fact to understand 16 the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts 17 or data; (c) the testimony is the product of reliable principles and methods; and (d) the 18 expert has reliably applied the principles and methods to the facts of the case.” 19 20 3 Plaintiffs have asserted one cause of action for age discrimination in violation of the 21 ADEA. See Doc. 1 (Complaint at p. 4-5). 4 Generally, Plaintiffs argue that: they were very experienced and qualified, received 22 positive performance evaluations, were over 40 when they were laid off and were the oldest full-time employees at the time, they were replaced by substantially younger and less 23 qualified individuals, and Defendant’s reasons for their layoffs are pretext. In contrast, Defendant generally argues: that it had been facing a budget crisis for several years, it was 24 forced to lay off employees due to lack of funding, that Plaintiffs were eventually laid off as they were asked (like all other firefighters) to help increase funding by participating in 25 wild land fire assignments which brought in extra money for Defendant (but Plaintiffs failed to participate in such assignments unlike other firefighters who did participate to 26 bring in extra funding), there is otherwise no evidence of age discrimination as Defendant hired Rankin when he was 46 years old, promoted Guido and Rankin to Captains in 2005 27 (when Guido was 42 years old and Rankin was 50 years old), and they were laid off only four years after they had been promoted, and the same person that hired and promoted them 28 also laid them off. 1 DISCUSSION: MOTIONS IN LIMINE 2 Doc. 113: Mary Jo O’Neill’s Testimony 3 Defendant’s motion in limine to preclude Mary Jo O’Neill from testifying as a fact 4 and expert witness is unopposed by Plaintiffs (see Doc. 128); this unopposed motion (Doc. 5 113) is granted. 6 Doc. 114: Charges of Discrimination, EEOC’s Investigation/Findings 7 Defendant seeks to preclude Plaintiff from presenting any evidence regarding their 8 Charges of Discrimination submitted to the EEOC, the EEOC’s investigation into their 9 Charges, the EEOC’s determination letters regarding its investigation, and its Notice of 10 Right to Sue letters as it argues that the evidence is irrelevant and any probative value is 11 substantially outweighed by the dangers of unfair prejudice and confusion. Defendant 12 argues that such evidence is irrelevant inasmuch as the EEOC process used different 13 standards, it was not a true confrontational process with witnesses subject to cross- 14 examination under oath, and the jury would give undue weight to the EEOC’s 15 determinations. 16 As a threshold matter, Plaintiff does not intend to use at trial, and does not oppose 17 preclusion of: the EEOC’s 1/29/13 letters to Plaintiff and the EEOC’s right to sue letters. 18 As such, these letters are precluded at trial. 19 However, Plaintiffs argue that Ninth Circuit case law reflects that the other EEOC 20 evidence at issue is relevant, the relevance outweighs Rule 403 considerations, and it could 21 be error to preclude such evidence. See Plummer v. Western Intern. Hotels Co., Inc., 656 22 F.2d 502, 504-505 (9th Cir. 1981) ( “[I]t is reversible error for a trial court to strike an 23 EEOC determination from a Title VII complaint . . . [T]he Commission's Determination of 24 Probable Cause was admissible evidence in a trial de novo on [plaintiff’s] claim . . . [W]hile 25 prior administrative determinations are not binding, they are admissible evidence . . . An 26 EEOC determination, prepared by professional investigators on behalf of an impartial 27 agency, has been held to be a highly probative evaluation of an individual's discrimination 28 complaint.”). While the Court has the discretion to preclude the EEOC evidence at issue 1 based on Rule 403 considerations,5 the Court finds that its relevance outweighs Rule 403 2 concerns; the Court can give limiting instructions at trial reflecting that such evidence does 3 not need to be given greater weight than other evidence at trial, and that the the jury (not 4 the EEOC) is the sole judge of whether there was a violation of the ADEA in this case. 5 Defendant’s motion (Doc. 114) is denied. 6 Doc.
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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF ARIZONA
4 John Guido, et al., No. CV-13-00216-TUC-JAS
5 Plaintiffs, ORDER
6 v.
7 Mount Lemmon Fire District,
8 Defendant. 9 10 Pending before the Court are several motions in limine filed by Plaintiffs and 11 Defendant; the motions are addressed below.1 12 BACKGROUND 13 Plaintiffs John Guido and Dennis Rankin began working for Defendant Mount 14 Lemmon Fire District (“Fire District”)2 in 2000. The position each held was Firefighter 15 EMT. In 2005, both Guido and Rankin were promoted to the rank of Fire Captain. On 16 June 15, 2009, Guido and Rankin were laid off; Rankin was 54 years old and Guido was 17 46 years old when they were laid off. The person who terminated them, Fire Chief 18 Barnella, was in his thirties at the time of these terminations. At the time of the lay offs, 19 Guido and Rankin were the oldest full-time employees of the Fire District. 20 On July 28, 2009, Guido and Rankin each filed a Charge of Discrimination with the 21 U.S. Equal Employment Opportunity Commission alleging that Defendant discriminated 22 against them on the basis of age. Thereafter, Plaintiffs filed a Complaint in this case 23 alleging that they were terminated in violation of the Age Discrimination in Employment 24 Act (“ADEA”) which prohibits discrimination against employees 40 and older on the basis 25
26 1 Because the briefing is adequate and oral argument will not help in resolving this matter, oral argument is denied. See Mahon v. Credit Bureau of Placer County, Inc., 171 F.3d 27 1197, 1200-1201 (9th Cir. 1999).
28 2 All references to Fire Chief, Fire Captain, Firefighter EMT and firefighter refer to employees of Defendant Mount Lemmon Fire District. 1 of their age.3 See 29 U.S.C. § 631(a).4 2 ADMISSIBILITY STANDARDS 3 As pertinent to the motions in limine, Fed. R. Evid. 402 provides: "Relevant 4 evidence is admissible unless any of the following provides otherwise: • the United States 5 Constitution; • a federal statute; • these rules; or • other rules prescribed by the Supreme 6 Court. Irrelevant evidence is not admissible." Fed. R. Evid. 401 defines relevant evidence 7 as follows: "Evidence is relevant if: (a) it has any tendency to make a fact more or less 8 probable than it would be without the evidence; and (b) the fact is of consequence in 9 determining the action." Fed. R. Evid. 403 provides that: “The court may exclude relevant 10 evidence if its probative value is substantially outweighed by a danger of one or more of 11 the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, 12 wasting time, or needlessly presenting cumulative evidence.” As to experts, Fed. R. Evid. 13 702 states that “[a]witness who is qualified as an expert by knowledge, skill, experience, 14 training, or education may testify in the form of an opinion or otherwise if: (a) the expert's 15 scientific, technical, or other specialized knowledge will help the trier of fact to understand 16 the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts 17 or data; (c) the testimony is the product of reliable principles and methods; and (d) the 18 expert has reliably applied the principles and methods to the facts of the case.” 19 20 3 Plaintiffs have asserted one cause of action for age discrimination in violation of the 21 ADEA. See Doc. 1 (Complaint at p. 4-5). 4 Generally, Plaintiffs argue that: they were very experienced and qualified, received 22 positive performance evaluations, were over 40 when they were laid off and were the oldest full-time employees at the time, they were replaced by substantially younger and less 23 qualified individuals, and Defendant’s reasons for their layoffs are pretext. In contrast, Defendant generally argues: that it had been facing a budget crisis for several years, it was 24 forced to lay off employees due to lack of funding, that Plaintiffs were eventually laid off as they were asked (like all other firefighters) to help increase funding by participating in 25 wild land fire assignments which brought in extra money for Defendant (but Plaintiffs failed to participate in such assignments unlike other firefighters who did participate to 26 bring in extra funding), there is otherwise no evidence of age discrimination as Defendant hired Rankin when he was 46 years old, promoted Guido and Rankin to Captains in 2005 27 (when Guido was 42 years old and Rankin was 50 years old), and they were laid off only four years after they had been promoted, and the same person that hired and promoted them 28 also laid them off. 1 DISCUSSION: MOTIONS IN LIMINE 2 Doc. 113: Mary Jo O’Neill’s Testimony 3 Defendant’s motion in limine to preclude Mary Jo O’Neill from testifying as a fact 4 and expert witness is unopposed by Plaintiffs (see Doc. 128); this unopposed motion (Doc. 5 113) is granted. 6 Doc. 114: Charges of Discrimination, EEOC’s Investigation/Findings 7 Defendant seeks to preclude Plaintiff from presenting any evidence regarding their 8 Charges of Discrimination submitted to the EEOC, the EEOC’s investigation into their 9 Charges, the EEOC’s determination letters regarding its investigation, and its Notice of 10 Right to Sue letters as it argues that the evidence is irrelevant and any probative value is 11 substantially outweighed by the dangers of unfair prejudice and confusion. Defendant 12 argues that such evidence is irrelevant inasmuch as the EEOC process used different 13 standards, it was not a true confrontational process with witnesses subject to cross- 14 examination under oath, and the jury would give undue weight to the EEOC’s 15 determinations. 16 As a threshold matter, Plaintiff does not intend to use at trial, and does not oppose 17 preclusion of: the EEOC’s 1/29/13 letters to Plaintiff and the EEOC’s right to sue letters. 18 As such, these letters are precluded at trial. 19 However, Plaintiffs argue that Ninth Circuit case law reflects that the other EEOC 20 evidence at issue is relevant, the relevance outweighs Rule 403 considerations, and it could 21 be error to preclude such evidence. See Plummer v. Western Intern. Hotels Co., Inc., 656 22 F.2d 502, 504-505 (9th Cir. 1981) ( “[I]t is reversible error for a trial court to strike an 23 EEOC determination from a Title VII complaint . . . [T]he Commission's Determination of 24 Probable Cause was admissible evidence in a trial de novo on [plaintiff’s] claim . . . [W]hile 25 prior administrative determinations are not binding, they are admissible evidence . . . An 26 EEOC determination, prepared by professional investigators on behalf of an impartial 27 agency, has been held to be a highly probative evaluation of an individual's discrimination 28 complaint.”). While the Court has the discretion to preclude the EEOC evidence at issue 1 based on Rule 403 considerations,5 the Court finds that its relevance outweighs Rule 403 2 concerns; the Court can give limiting instructions at trial reflecting that such evidence does 3 not need to be given greater weight than other evidence at trial, and that the the jury (not 4 the EEOC) is the sole judge of whether there was a violation of the ADEA in this case. 5 Defendant’s motion (Doc. 114) is denied. 6 Doc. 116: Dean Barnella and/or DeAnna Barnella 7 Plaintiffs seeks to exclude the testimony of Dean Barnella and/or DeAnna Barnella 8 primarily because Defendant failed to disclose their addresses in 2013 in violation of Rule 9 26(a)(1)(A)(i). In the 2013 disclosure, Defendant disclosed the Barnellas, what relevant 10 information they possessed in the case, phone numbers where they could be reached, and 11 stated that it did not know their current addresses; Rule 26 requires disclosure of addresses 12 “if known.” Defendant further confirmed in a 2014 disclosure that they may be called as 13 trial witnesses. Plaintiff was aware of their relevant testimony, could have chosen to 14 depose these witnesses, but chose not to. In addition, Defendant agreed to the belated 15 deposition of Dean Barnella, and no trial date has been set by the Court. In light of the 16 foregoing, Plaintiff’s motion (Doc. 116) is denied. 17 Doc. 117: New Position Offered to Plaintiff John Guido 18 After Guido was laid off from his Fire Captain position in May of 2009, Defendant 19 offered him an open position (of firefighter/paramedic) in April of 2010. Plaintiff argues 20 that evidence of being offered this position should be excluded as it is irrelevant and could 21 cause undue confusion and prejudice under Rule 403 as Plaintiff was not required to accept 22 a lower position/demotion (i.e., firefighter/paramedic, instead of Fire Captain) to mitigate 23 his damages. See NLRB v. Kolpin Bros. Co., 379 F.2d 488, 491 (7th Cir. 1967); Ford 24 Motor Company v. Equal Employment Opportunity Commission, 458 U.S. 219, 231-232, 25 (1982). 26 Defendant does not dispute that Plaintiff was not obligated to accept the position in 27 question to mitigate damages. Rather, Defendant argues that the evidence is highly 28 5 See Gilcrest v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1500 (9th Cir. 1986). 1 relevant, and such relevance outweighs any Rule 403 issues, because Defendant is only 2 offering this evidence to support its defenses regarding its intent to rehire Guido once the 3 budget crisis (of 2009) stabilized (in 2010), and it shows that Guido’s age was not the 4 motivating factor for Defendant’s layoff of Guido. Defendant argues that this evidence 5 helps paint the complete picture of Defendant’s position in this case as: Defendant was 6 forced to lay off employees due to its budget crisis, Defendant intended for Guido’s layoff 7 to be temporary, and Defendant fulfilled that intent when it offered Guido the first and only 8 available position when the budget stabilized (i.e., the firefighter/paramedic position). The 9 Court finds this evidence to be highly relevant to the Defendant’s defenses at trial, and such 10 relevance outweighs any Rule 403 concerns.6 Plaintiff’s motion (Doc. 117) is denied. 11 Doc. 118: Plaintiff Dennis Rankin’s Unemployment Insurance 12 Plaintiffs seek to preclude Defendant from introducing any evidence regarding 13 Rankin’s unemployment insurance. Plaintiffs argue that such evidence should be 14 precluded as the Ninth Circuit has held that damages in employment discrimination cases 15 shall not be offset by unemployment compensation benefits, and that it should be precluded 16 under Rule 403 as it will lead to jury confusion about reducing damages to account for 17 unemployment benefits. See Kauffman v. Sidereal Corp., 695 F.2d 343, 347 (9th Cir. 18 1982) (“[We] hold that unemployment benefits received by a successful plaintiff in an 19 employment discrimination action are not offsets against a backpay award.”). 20 Kaufman, however, does not apply to the circumstances of this case as the only 21 evidence at issue are two notices; one notice (dated 6/19/09) reflects that Rankin filed an 22 application for unemployment insurance, and the other notice (dated 7/9/09) reflects that 23 Rankin discontinued his application before any unemployment insurance benefits were 24 due. The evidence at issue reflects that Rankin did not receive unemployment benefits. 25 Defendant only seeks to introduce these notices to show that Rankin applied for, but did 26 not continue his application to receive unemployment benefits. Given the length of time it 27 took Rankin to find new employment, Defendant argues that this evidence is relevant to
28 6 The Court notes that it can give the jury a limiting instruction reflecting that Plaintiff was not required to accept a lower position/demotion to mitigate his damages. 1 || the contested issue of whether Rankin took reasonable steps to mitigate his damages. As 2|| Kauffman is inapplicable, the Court determines backpay (not the jury)’, and the Court can || give limiting instructions to avoid any confusion to the jury, the Court finds that Rule 403 does not bar the evidence at bar. Plaintiff's motion (Doc. 118) is denied without 5|| prejudice.® 6|| CONCLUSION 7 Accordingly, IT IS HEREBY ORDERED that the parties’ motions in limine (Docs. 113, 114, 116, 117, 118) are granted or denied as discussed in the text of this Order. 9 The parties’ proposed joint pretrial order estimates that the trial will last 6 to 8 days. || The Court has reviewed its calendar and is available to preside over this trial beginning on 11 || either April 14, 21, or 28 of 2020. The parties shall consult with each other, and their 12 || witnesses, to see if any of these dates are mutually agreeable. If these dates do not work, 13 || the parties shall propose three more dates (subsequent to the dates listed by the Court) that are mutually agreeable to the parties. By no later than 12/18/19 the parties shall file a 15 || notice indicating which of these dates works for them, or proposing three mutually 16 || agreeable additional dates (subsequent to the dates listed by the Court) for trial. After the 17 || Court has received the parties’ notice, the Court will issue an Order setting the trial date, 18 || the date for the pretrial conference (which is typically the week before the trial), and 19 || deadlines for jury instructions and related trial issues. 20 Dated this 11th day of December, 2019. 21 ark, Honorable James A. Soto 24 United States District Judge 25 1 See Lutz v. Glendale Union High School, 403 F.3d 1061, 1069 (9th Cir. 2005); Naton v. Bank of California, 649 F.2d 691, 700 (9th Cir. 1981). 27 8 This motion is denied without prejudice as having a fuller factual picture in the context 28] of trial may make a difference as to this issue; the parties have leave to raise this issue as it arises in the midst of trial.
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