Houserman v. Comtech Telecommunications Corporation

Opinion

1 HONORABLE RICHARD A. JONES

8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE

10 LYNNE HOUSERMAN, 11 CONSOLIDATED UNDER 12 Plaintiff, NO. 2:19-CV-00644-RAJ v. 13 NO. 2:19-CV-00336-RAJ COMTECH TELECOMMUNICATIONS NO. 2:19-CV-00644-RAJ 14 CORPORATION, FRED KORNBERG, AND

15 MICHAEL D. PORCELAIN

16 Defendants. ORDER ON THE PARTIES’ 17 MOTIONS IN LIMINE

18 TELECOMMUNICATION SYSTEMS, INC., 19 Plaintiff, 20 v. 21 LYNNE HOUSERMAN AND MOTOROLA 22 SOLUTIONS, INC., 23 Defendants.

24 I. INTRODUCTION 25 This matter comes before the Court on the parties’ motions in limine. Dkt. ## 164, 26 166. Having reviewed the motions, the record, and files therein, the Court finds that oral 27 argument is unnecessary. For the following reasons, the Court GRANTS in part and 1 DENIES in part the motions. 2 II. BACKGROUND 3 This matter is scheduled for a jury trial on March 15, 2021. Dkt. # 171. Lynne 4 Houserman and Motorola Solutions Inc. (“Motorola”) filed motions in limine on January 5 4, 2021. Dkt. # 164. The same day, TeleCommunication Systems (“TCS”), Comtech 6 Telecommunications Corp. (“Comtech”), Michael Porcelain, and Fred Kornberg 7 (collectively, “Comtech Parties”) filed their motions in limine. Dkt. # 166. The details of 8 the consolidated cases are set forth in the Court’s order on the parties’ motions for 9 summary judgment and will not be repeated here. See Dkt. ## 163, 176. 10 III. LEGAL STANDARD 11 Parties may file motions in limine before or during trial “to exclude anticipated 12 prejudicial evidence before the evidence is actually offered.” Luce v. United States, 469 13 U.S. 38, 40 n.2 (1984). To decide motions in limine, the Court is generally guided by 14 Federal Rules of Evidence 401 and 403. Specifically, the Court considers whether 15 evidence “has any tendency to make a fact more or less probable than it would be without 16 the evidence” and whether “the fact is of consequence in determining the action.” Fed. R. 17 Evid. 401. However, the Court may exclude relevant evidence if “its probative value is 18 substantially outweighed by a danger of one or more of the following: unfair prejudice, 19 confusing the issues, misleading the jury, undue delay, wasting time, or needlessly 20 presenting cumulative evidence.” Fed. R. Evid. 403. 21 IV. DISCUSSION 22 The findings and conclusions in this order, like all rulings in limine, are 23 preliminary and can be revisited at trial based on the facts and evidence as they are 24 actually presented. See, e.g., Luce, 469 U.S. at 41 (explaining that a ruling in limine “is 25 subject to change when the case unfolds, particularly if the actual testimony differs from 26 what was contained in the proffer. Indeed even if nothing unexpected happens at trial, 27 the district judge is free, in the exercise of sound judicial discretion, to alter a previous in 1 limine ruling.”). Subject to these principles, the Court issues these rulings for the 2 guidance of the parties. 3 4 A. Ms. Houserman and Motorola’s Motions in Limine i. Ms. Houserman and Motorola’s Motion in Limine No. 1 5 Ms. Houserman and Motorola seek to prohibit the Comtech Parties from cross- 6 examining Ms. Houserman’s expert witness, Gary Goolsby, about allegations of fraud 7 involving Arthur Anderson clients (including but not limited to Enron, Sunbeam, and 8 Waste Management), the surrounding publicity, and the reasons for Mr. Goolsby’s 9 removal from Arthur Anderson. Dkt. # 164 at 2-3. Ms. Houserman claims that these 10 matters are irrelevant, unfairly prejudicial, and pose a danger of confusing the issues and 11 wasting time with “mini-trials.” Id. at 4. 12 The Comtech Parties counter that such matters related to Mr. Goolsby’s 13 professional background are probative of his qualifications, his credibility, and the 14 reliability of his opinions with respect to accounting misconduct in this case. Dkt. # 174 15 at 7. Mr. Goolsby worked at Arthur Anderson as a partner for 28 years. Id. He served as 16 Managing Partner of Global Risk Management at the company during the period of 17 alleged misconduct and was ultimately removed from his leadership position for his 18 alleged role in the destruction of Enron-related documents. Id.; Dkt. # 175-5 at 2. The 19 Court finds cross-examination with respect to Mr. Goolsby’s professional background to 20 be probative of his qualifications and his reliability. The Court finds this cross- 21 examination to be relevant and not unfairly prejudicial. The court will not permit or 22 tolerate this examination to proceed to a mini-trial on Mr. Goolsby’s professional 23 background. And the Court expects limited examination on this topic. If the parties 24 desire a limiting instruction on the scope of this examination, it should be submitted for 25 review in advance of the trial. The motion is DENIED. 26 ii. Ms. Houserman and Motorola’s Motion in Limine No. 2 27 1 Ms. Houserman next seeks an order prohibiting evidence, arguments, or 2 questioning on the issue of Motorola’s attempted acquisitions of TCS/Comtech on 3 several occasions beginning in 2015. Dkt. # 164 at 5. The Comtech Parties claim that 4 such evidence is probative of Motorola’s “intent and motive to tortiously interfere with 5 TCS’s contract with Houserman and with TCS’ customer relationships with South 6 Dakota and GDIT.” Dkt. # 174 at 11. The Court’s order on the parties’ motions for 7 summary judgment significantly limits the scope of relevance for this evidence because 8 the Court granted summary judgment in favor of Ms. Houserman and Motorola for the 9 tortious interference claims with respect to South Dakota and GDIT. Dkt. # 176. The 10 Court also limited the scope of the breach of contract claim to the confidentiality 11 provision. Id. The Court finds, however, that given this limited scope of applicability, 12 the Comtech Parties’ evidence with respect to Motorola’s acquisition attempts of 13 TCS/Comtech is relevant background information as it goes to notice and intent of the 14 claim of tortious interference for the jury to consider. The motion is DENIED. 15 iii. Ms. Houserman and Motorola’s Motion in Limine No. 3 16 Ms. Houserman and Motorola move to exclude TCS Exhibit 36, which is an email 17 thread between Bill Mertka (Motorola Senior Product Planning Consultant) and Tom 18 Guthrie (Motorola’s Vice President of Public Safety Solutions), copying three Motorola 19 sales directors. Dkt. # 164 at 7. In the email, Mertka discusses a recent meeting with 20 another company and says that while he is “not sure about them,” he recommends that 21 Motorola “play along with this a little while longer, if for no other reason for us to ‘get a 22 look under the hood’ and see what their solution is all about.” Dkt. # 165-3 at 3. The 23 Comtech Parties assert that this email is admissible “as a party admission, under the 24 business records exception, and is probative of [Motorola’s] intent to expand in the 911 25 space and motivation to grow its call handling business.” Dkt. # 174 at 12. 26 The email thread between Motorola executives does not relate to or mention 27 Comtech, and neither Mertka nor Guthrie have been deposed or are noted as witnesses by 1 the Comtech Parties. Dkt. # 164 at 7. Ms. Houserman and Motorola argue that the email 2 is (1) irrelevant, (2) inadmissible under Rule 404(b)(1) prohibiting evidence of other acts 3 to prove a person’s character, (3) inadmissible hearsay, and (4) unduly prejudicial. This 4 exhibit presents evidence that is irrelevant, unduly prejudicial, calls for speculation and 5 there is insufficient foundation for its admissibility. The motion is GRANTED. 6 iv. Ms. Houserman and Motorola’s Motion in Limine Nos. 4 & 6 7 In the fourth motion in limine, Ms. Houserman and Motorola seek to bar 8 argument, evidence, or questioning regarding any arrangements relating to Ms. 9 Houserman’s payment of attorneys’ fees, which they claim is irrelevant to any of the 10 claims or defenses at issue. Dkt. # 164 at 9. In the sixth motion, Ms. Houserman seeks to 11 bar evidence regarding Motorola’s indemnification of her in connection with lawsuits 12 arising from restrictive covenants with previous employers. Dkt. # 164 at 10. She argues 13 that (1) the indemnification agreement is irrelevant to the claims and defenses at issue; 14 (2) its probative value is outweighed by a danger of unfair prejudice under Federal Rule 15 of Evidence 403; and (3) it is inadmissible Rule 411. Federal Rule of Evidence 411 16 provides the following:

17 Evidence that a person was or was not insured against liability is not admissible to 18 prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness's bias or 19 prejudice or proving agency, ownership, or control. 20 The Comtech Parties argue that the indemnification, which Ms. Houserman 21 specifically requested, “is relevant to show a party’s knowledge of wrongdoing.” Dkt. 22 # 174 at 13-14. This contravenes Rule 411’s prohibition on introducing such evidence to 23 demonstrate that a party acted wrongfully. Fed. R. Evid. 411. Indeed, the Comtech 24 Parties are not seeking to introduce the evidence to prove bias or prejudice as permitted 25 in the exceptions to the rule; they are seeking to prove what is explicitly prohibited by it. 26 See id.; In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1014 (9th Cir. 2008) 27 (holding that in the absence of exceptions listed in Rule 411, “[t]there was . . . no 1 permissible ground on which Plaintiffs could introduce evidence of indemnification”). 2 Moreover, because Ms. Houserman was terminated for cause and did not depart 3 Comtech on good terms, any concerns regarding potential litigation are not probative of 4 her intent to breach any restrictive covenants. The Court finds that the probative value of 5 such evidence is outweighed by a danger of unfair prejudice under Rule 403. The motion 6 is GRANTED. 7 v. Ms. Houserman and Motorola’s Motion in Limine No. 5 8 Ms. Houserman and Motorola move to preclude reference to Ms. Houserman’s 9 potential awards of attorney’s fees. Dkt. # 164 at 10. The Comtech Parties do not oppose 10 this. Dkt. # 174 at 7 n.1. The motion is GRANTED. 11 vi. Ms. Houserman and Motorola’s Motion in Limine No. 7 12 Here, Ms. Houserman seeks to exclude argument, evidence, or testimony 13 regarding any purported restrictive covenants binding Ms. Houserman that are contained 14 in various equity award agreements that are subject to Comtech’s 2000 Stock Incentive 15 Plan (“the Plan”). Dkt. # 164 at 11-12. According to the Comtech Parties, these 16 agreements are the ground for their counterclaim against Ms. Houserman for breach of 17 her award agreements and are “essential to proving the counterclaim.” Dkt. # 174 at 16. 18 In its counterclaim, the Comtech alleges that Ms. Houserman engaged in “Detrimental 19 Activity,” which Comtech claims entitled it to forfeit some of Ms. Houserman’s stock 20 award. Dkt. # 17 ¶ 13. 21 In this motion, Ms. Houserman contends that the Comtech Parties are now 22 diverging from their counterclaim by seeking to argue and introduce evidence that Ms. 23 Houserman was, in fact, subject to restrictive covenants under the Plan. Dkt. # 164 at 12. 24 “The problem with this argument,” they claim, “is that nowhere in the Plan does Ms. 25 Houserman covenant—or agree—not to engage in Detrimental Activity.” Id. Whether 26 Ms. Houserman is bound by the agreements and to what extent are matters for the jury to 27 consider; the Court finds no grounds on which to exclude evidence or arguments related 1 to the agreements. The Court does not find the evidence to be unduly prejudicial. The 2 motion is DENIED. 3 4 vii. Ms. Houserman and Motorola’s Motion in Limine No. 8 5 Like the last motion, Ms. Houserman moves to exclude argument, evidence, or 6 testimony of any of her alleged post-employment “Detrimental Activity.” Dkt. # 164 at 7 14. Because two of the three restrictive covenants in Ms. Houserman’s 2014 8 employment contract have been found unenforceable by this Court, see Dkt. # 176, the 9 evidence of alleged “Detrimental Activity” under the invalid covenants will no longer be 10 relevant. The Comtech Parties’ arguments and evidence on this matter will be 11 significantly limited as a result and unlikely to cause undue delay or waste time as 12 alleged by Ms. Houserman. The Court does not find this evidence to be unduly 13 prejudicial under Rule 403. This motion is DENIED. 14 viii. Ms. Houserman and Motorola’s Motion in Limine No. 9 15 Ms. Houserman seeks to preclude deposition or live testimony by Nicole 16 Eichberger in which she opines that Ms. Houserman is not credible. Dkt. # 164 at 15. 17 Ms. Eichberger is a partner at the law firm Proskauer Rose LLP, who investigated some 18 of Ms. Houserman’s claims against Comtech. Dkt. # 174 at 19. Ms. Eichberger claimed 19 that Ms. Houserman was not credible because she did not tell her the truth in her 20 interviews with respect to (1) Ms. Houserman’s failure to timely raise her questions with 21 respect to goal sheet and (2) her unawareness of the appropriate method to submit her 22 goal sheet for financial accounting. Dkt. # 165-6 at 4-5. 23 Ms. Houserman claims that Ms. Eichberger’s attacks on Ms. Houserman’s 24 credibility as a witness are not permitted under Federal Rule of Evidence 608(a) because 25 they do not address Ms. Houserman’s reputation for having a character of untruthfulness. 26 Dkt. # 164 at 15. The Court agrees. Ms. Houserman’s responses to two questions do not 27 alone provide evidence of a reputation or character for untruthfulness under Rule 608(a). 1 The Court also finds that the probative value of this testimony is substantially outweighed 2 by the danger of unfair prejudice. The motion is GRANTED. 3 4 ix. Ms. Houserman and Motorola’s Motion in Limine No. 10 5 In this motion, Ms. Houserman and Motorola seek to exclude the opinions and 6 testimony of Todd Milbourn, PhD, that are discussed in Section VI of his expert report 7 because they were disclosed on October 2, 2020, seven weeks after the deadline for 8 disclosing experts. Dkt. # 164 at 16. Ms. Houserman and Motorola had separately 9 moved to exclude the same portion of Dr. Milbourn’s opinion, which focused on 10 damages related to the violation of a non-compete agreement. Id. Having concluded in 11 its order on the parties’ motions for summary judgment that the non-compete provision at 12 issue here is unenforceable, Dkt. # 176, the Court denied Ms. Houserman and Motorola’s 13 separate motion to exclude the opinions of Dr. Milbourn as moot. Dkt. # 177. For the 14 same reason, this motion is DENIED as moot. 15 x. Ms. Houserman and Motorola’s Motion in Limine No. 11 16 Finally, Motorola moves to exclude the designated deposition testimony of its 17 Chief Executive Officer, Greg Brown. Dkt. # 164 at 18. Motorola claims that the 18 Comtech Parties seek to introduce opinions from Mr. Brown that are not within the scope 19 of admissible testimony for a lay witness. Id. Motorola asserts that during his 20 deposition, Mr. Brown was asked “(i) improper questions based on hypotheticals; (ii) to 21 offer opinions about documents he had never seen . . . ; and (iii) to react to cherry picked 22 portions of Ms. Houserman’s testimony.” Id. Questions on whether certain actions 23 would violate Motorola’s standards of business conduct or how Mr. Brown might 24 respond to finding of an auditor based on his experience as a CEO were similarly 25 improper, according to Motorola. Testimony responding to such inquiries, Motorola 26 argues, should be excluded pursuant to Rule 701(a), which limits a lay witness’s 27 testimony to opinion that is “rationally based on the witness’s perception.” Id.; Fed. R. 1 Evid. 701(a). Such testimony is irrelevant, unhelpful to a jury, unfairly prejudicial, and 2 lacking sufficient foundation. Id. at 18-19. The Court disagrees. 3 As the CEO of Motorola, Mr. Brown has personal knowledge to testify about the 4 company’s code of business conduct, how it applies to its business and hiring practices, 5 and what types of actions might violate the code. See In re Homestore.com, Inc. Sec. 6 Litig., 347 F. Supp. 2d 769, 780 (C.D. Cal. 2004) (holding that a chief financial officer of 7 a company “had the personal knowledge to testify about how [the company] operated, his 8 impressions of [the defendant’s] role in [the company], and other related matters.”). His 9 perceptions as the CEO of Motorola are admissible. So long as this witness does not 10 cross the evidentiary Rule 702 boundary by offering testimony that would be traditionally 11 limited to expert witnesses, his testimony is permitted. The Court does not find the 12 probative value of his testimony to be substantially outweighed by the risk of prejudice 13 under Rule 403. This motion is DENIED. 14 B. The Comtech Parties’ Motions in Limine 15 i. The Comtech Parties’ Motion in Limine No. 1 16 In their first motion in limine, the Comtech Parties seek to exclude evidence of 17 gender-related complaints at Comtech that are unrelated to Ms. Houserman’s claim. Dkt. 18 # 166 at 8. The Comtech Parties claim that “allegations made by non-parties, which were 19 not litigated, are irrelevant” and are not sufficiently related to Ms. Houserman’s 20 allegations and circumstances. Id. at 9-10. They allege that the claims are highly 21 prejudicial and should be excluded pursuant to Rule 403. Id. at 12. 22 The Ninth Circuit has held that such evidence is admissible to prove intent of an 23 employer to discriminate under Rule 404(b) of the Federal Rules of Evidence. See, e.g., 24 Heyne v. Caruso, 69 F.3d 1475, 1479 (9th Cir. 1995) (holding that “an employer’s 25 conduct tending to demonstrate hostility towards a certain group is both relevant and 26 admissible where the employer’s general hostility towards that group is the true reason 27 behind firing an employee who is a member of that group”); E.E.O.C. v. Farmer Bros. 1 Co., 31 F.3d 891, 898 (9th Cir. 1994) (holding that “[b]ecause hostility against women 2 underlies decisions to discharge or to refuse to hire women because of their gender, 3 evidence of sexual harassment often will be relevant to claims of gender-based 4 employment discrimination”). 5 Nonetheless, a court considering whether evidence is prejudicial under Rule 403 6 must conduct a fact-based inquiry. See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 7 379, 388 (2008); Constance Hanson-poulsen v. Dep’t of Def. of the USA, No. 8 216CV05786DMGAFMX, 2020 WL 2043999, at *3 (C.D. Cal. Mar. 3, 2020) 9 (concluding that “discovery of relevant me-too evidence may go beyond a plaintiff’s 10 work location and supervisor if the plaintiff can show a link between the 11 discrimination/harassment alleged in the complaint and other locations, complainants or 12 decision makers”); Patterson v. Boeing Co., No. CV 16-7613-GW (SKX), 2018 WL 13 5937911, at *20 (C.D. Cal. Apr. 4, 2018) (holding that “[u]nder proper circumstances, 14 evidence of an employer’s discriminatory treatment of other employees who were 15 members of a protected class may create an inference of discriminatory intent toward 16 plaintiff as a member of that class”) (internal citation and quotation omitted); Easton v. 17 Asplundh Tree Experts, Co., No. C16-1694RSM, 2018 WL 1306455, at *2 (W.D. Wash. 18 Mar. 13, 2018) (noting that “ whether ‘me too’ evidence can be admitted at trial is a case- 19 by-case determination.”) 20 This factual inquiry is best conducted during trial. Because the Court cannot 21 determine admissibility without first hearing the foundation for this evidence, this motion 22 is TAKEN UNDER ADVISEMENT. There shall be no reference by the parties in 23 opening statements or intimating in voir dire on this topic until this court has ruled on this 24 motion. 25 ii. The Comtech Parties’ Motion in Limine No. 2 26 The Comtech Parties next seek to exclude evidence of age discrimination 27 allegations as related to two former employees. Dkt. # 166 at 13. The Comtech Parties 1 argue that (1) such allegations are not sufficiently related to Ms. Houserman’s claims; 2 (2) the evidence does not meet any exceptions under FRE 404(b); (3) one of the former 3 employee’s allegations are set forth in documents that constitute inadmissible hearsay; 4 and (4) the allegations are unduly prejudicial under FRE 403. 5 Ms. Houserman and Motorola contend that the evidence is relevant and admissible 6 for two reasons: (1) the evidence demonstrates that two male executives who raised age 7 discrimination claims against Comtech were similarly situated to her but received more 8 favorable treatment than she did and (2) the evidence is relevant to show “Mr. Porcelain’s 9 modus operandi of accusing employees of engaging in financial misconduct for raising 10 complaints.” Dkt. # 172 at 7. Ms. Houserman claims such evidence is admissible under 11 Rule 404(b) as other acts to prove motive or intent. Id. at 5. The Court does not find 12 these allegations of age discrimination to be sufficiently related to Ms. Houserman’s 13 claims. These age-based discrimination claims provide no basis to prove gender-based 14 motive or intent, as needed for her claims. Moreover, the Court finds the probative value 15 of such evidence to be substantially outweighed by a danger of unfair prejudice. This 16 motion is GRANTED. 17 iii. The Comtech Parties’ Motion in Limine No. 3 18 The Comtech Parties move to preclude opinion testimony that Mr. Porcelain was 19 “abusive,” a “workplace bully,” had a “vindictive” character, and that he engaged in or 20 oversaw accounting improprieties under FRE 801, 602, 404(b), and 403. Dkt. # 166 at 21 14-15. The Comtech Parties argue that designated testimony by Mr. Bristol in which he 22 recounts comments about Mr. Porcelain made by other Comtech employees is improperly 23 based on hearsay under Rule 801. Id. at 15. The Comtech Parties also argue that Janet 24 Perinelli’s testimony about Mr. Porcelain’s dishonest and “vindictive” reputation 25 constitutes improper character evidence under FRE 404(a) and 405(a), as well as hearsay. 26 Id. They also move to exclude evidence related to Mr. Porcelain’s alleged financial 27 improprieties and other Comtech executives because they are based on hearsay and 1 speculation. Id. at 16. The Comtech Parties seek to exclude Mr. Bristol’s July 22, 2016 2 letter to Comtech investigators regarding his alleged mistreatment by Mr. Porcelain as 3 inadmissible under FRE 802 and 805, as other acts evidence, irrelevant, and unduly 4 prejudicial. Dkt. # 166 at 16. 5 Ms. Houserman argues that the testimony of Mr. Bristol and Ms. Perinelli is not 6 hearsay because it is not being introduced for its truth, but rather to serve as evidence of 7 Mr. Porcelain’s “intent, motive, lack of mistake, and overall plan of retaliating against 8 Ms. Houserman.” Dkt. # 172 at 8. The testimony is also offered to rebut Mr. Porcelain’s 9 testimony with respect to the number of complaints involving him and alleged absence of 10 any “meaningful workplace conflict,” which is permissible under Rule 607 to impeach a 11 witness. Id. 12 Rule 404(a) of the Federal Rules of Evidence prohibits evidence of a person’s 13 character or character trait to prove that on a particular occasion the person acted in 14 accordance with the character or trait. Testimony of Mr. Porcelain’s reputation as a 15 “bully” or “vindictive” person falls within that prohibited category. The Court finds that 16 evidence, such as testimony that Mr. Porcelain “yelled at employees in condescending 17 tones and pursued his interest above all others,” does not provide evidence of intent or 18 motive with respect to gender-based discrimination and retaliation claims, as asserted by 19 Ms. Houserman and is unduly prejudicial. Dkt. # 172 at 8. It is inadmissible character 20 evidence under Rule 404(a). It may, however, be admitted to attack Mr. Porcelain’s 21 credibility under Rule 404(a)(3) and Rule 607. If Mr. Porcelain puts his credibility at 22 issue, then the door may be open to allow attacks on his credibility. The Court also finds 23 that statements in Mr. Bristol’s letter regarding alleged financial improprieties by Mr. 24 Porcelain and other executives at Comtech are inadmissible speculation and irrelevant to 25 the claims at issue here. The Court finds Mr. Bristol and Ms. Perinelli’s testimony 26 regarding comments about Mr. Porcelain’s reputation or bad character to be inadmissible 27 under Rule 404(a) and 403. The Court finds Mr. Bristol’s July 22, 2016 memo 1 inadmissible for the same reasons. The motion is GRANTED. 2 iv. The Comtech Parties’ Motion in Limine No. 4 3 The Comtech Parties move to preclude evidence of “stray remarks” allegedly 4 made by Mr. Porcelain and another Comtech executive. Dkt. # 166 at 17. Specifically, 5 the Comtech Parties seek to exclude the following comments: 6 1. An alleged comment by Mr. Porcelain related to whom Ms. Houserman voted 7 for in the 2016 presidential election, asking “Special snowflake? Did you vote 8 for Hillary?” 9 2. An alleged comment by Mr. Porcelain to a female employee saying “You must 10 be sad today” on the day after the 2016 election; 11 3. An alleged statement by a Comtech executive that “women should like Trump 12 because he got them off their fat asses to march”; 13 4. An alleged statement by Mr. Porcelain that the reason Ms. Houserman held her 14 job was because was a “pretty blond.” 15 Id. 16 The Comtech Parties claim that such comments are irrelevant, unduly prejudicial 17 and will lead to mini-trials. Id. 18-19. They also claim that the third alleged comment is 18 “unreliable hearsay in the extreme” because Ms. Houserman is the only person who 19 testified to hearing this remark and that she could not identify the speaker beyond “a male 20 attendee at the meeting.” Id. at 18. 21 As this Court already held, such comments are evidence of potential 22 discriminatory animus, and their weight should be considered by a jury. See, e.g., 23 Mondero v. Salt River Project, 400 F.3d 1207, 1213 (9th Cir. 2005) (holding that “[a]n 24 agent’s biased remarks against an employee because of his or her gender are admissible 25 to show an employer’s discriminatory animus if the agent was involved in the 26 employment decision”); Lindahl v. Air France, 930 F.2d 1434, 1439 (9th Cir. 1991) 27 (holding that stereotypes based on sex “can be evidence of sex discrimination, especially 1 when linked to the employment decision”). These comments are indeed relevant and not 2 unduly prejudicial. With respect to the third alleged comment, the Court concludes that it 3 is not inadmissible hearsay because Ms. Houserman is not offering the statement for the 4 truth of the matter asserted. If proposed, the Court will consider giving limiting 5 instruction on how the evidence should be considered by the jury. This motion is 6 DENIED. 7 v. The Comtech Parties’ Motion in Limine No. 5 8 The Comtech parties seek to prohibit Ms. Houserman from presenting evidence 9 related to settlements and severances of several former Comtech employees. Dkt. # 166 10 at 19. Ms. Houserman failed to allege in her complaint that she suffered an adverse 11 employment action as a result of not being offered a severance payment after her 12 termination for cause. Id. They argue that she raised this argument for the first time in 13 her response to Comtech’s motion for summary judgment and should therefore be 14 precluded from introducing this evidence or arguing that a lack of severance constitutes 15 gender discrimination. Id. at 20. They also claim that the risk that this evidence could 16 mislead the jury or confuse the issues “vastly outweighs the evidence’s probative value.” 17 Id. 18 Ms. Houserman alleges in her amended complaint that she was wrongfully 19 terminated for cause, causing her economic damages, and that Comtech refused to pay 20 her retention benefits and prior incentive awards after she was terminated. Dkt. # 76 21 ¶¶ 4.33, 7.24. Evidence to support her argument that she was treated less favorably than 22 other “similarly situated” employees is “probative of the employer’s discriminatory 23 motivation.” Josephs v. Pac. Bell, 443 F.3d 1050, 1065 (9th Cir. 2006); see also Vasquez 24 v. Cty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003), as amended (Jan. 2, 2004) 25 (noting that “[a] showing that the County treated similarly situated employees outside 26 [the plaintiff’s] protected class more favorably would be probative of pretext”). 27 Individuals are similarly situated “when they have similar jobs and display similar 1 conduct.” 349 F.3d at 641. In Vazquez v. County of Los Angeles, the court held that two 2 individuals were not “similarly situated” to the plaintiff because one “was not involved in 3 the same type of offense as [plaintiff],” and the second “did not engage in problematic 4 conduct of comparable seriousness to that of [plaintiff].” Id. Here, Ms. Houserman fails 5 to show how the former employees of Comtech displayed “similar conduct” that resulted 6 in termination and were thus similarly situated. In the absence of such a showing, the 7 Court finds that evidence related to their settlements and severances is inadmissible. The 8 motion is GRANTED. 9 vi. The Comtech Parties’ Motion in Limine No. 6 10 Here, the Comtech Parties move to exclude the testimony of Angie Millette, a 11 former Comtech employee, as late disclosed; in the alternative, they move for an order 12 permitting them to take Ms. Millette’s deposition prior to trial. Dkt. # 166 at 20-21. The 13 Comtech Parties allege that Ms. Houserman failed to disclose Ms. Millette as a witness 14 until December 18, 2020, well after the close of discovery on October 22, 2020. Id. at 15 21. While the parties dispute whether there was adequate notice of Ms. Millette’s 16 relevance to this case prior to the close of discovery, both parties acknowledge that there 17 was a delay in the formal disclosure of Ms. Millette. Dkt. # 172 at 14. The Court must 18 then consider whether such a delay is harmless or substantially justified. 19 Here, it appears that that Comtech did not disclose a key document related to Ms. 20 Millette that it had obtained in August 2020. Id. at 15. The document was a 2017 letter 21 from Ms. Millette’s counsel asking that Comtech inform the Board of Mr. Porcelain’s 22 “aggressive, demeaning and manipulative conduct [that] has created a toxic 23 environment.” Id. Ms. Comtech received the document directly from Ms. Millette four 24 months later in December, after the close of discovery. Id. This disclosure and late 25 notification is substantially justified. The Court does not find that the evidence is unduly 26 prejudicial to the Comtech Parties. Given the risk of prejudice of Ms. Millette testifying 27 without allowing the Comtech Parties to take her deposition, however, the Court will 1 permit them to take her deposition. This motion is DENIED in part and GRANTED in 2 part. 3 4 vii. The Comtech Parties’ Motion in Limine No. 7 5 The Comtech Parties also move to bar Ms. Houserman and Motorola from 6 introducing an ex parte declaration of Stanton Sloane dated July 25, 2020 (the “Sloane 7 Declaration”) about events that took place during his tenure as Comtech’s CEO from 8 February 2015 through September 2016. Dkt. # 166 at 23. Ms. Houserman’s counsel 9 notes that they informed Comtech counsel that Ms. Houserman is not planning to 10 introduce the Sloane Declaration into evidence but that it may be offered under Rule 11 801(d)(1)(B) as a prior consistent statement for rebuttal purposes. Dkt. # 172 at 16. This 12 motion is premature. The Court cannot determine whether the Sloane Declaration would 13 constitute an exception to hearsay as a prior consistent statement until it has an 14 opportunity to hear the foundation for it. The Court RESERVES RULING ON THIS 15 MOTION. Counsel is directed to seek a ruling from the Court before offering the Sloane 16 Declaration under Rule 801(b)(1)(B). 17 viii. The Comtech Parties’ Motion in Limine No. 8 18 Finally, the Comtech Parties seek to prohibit Ms. Houserman and Motorola from 19 cross-examining Mr. Porcelain with allegations made against him in complaints filed in 20 2002 and 2009. Dkt. # 166 at 24. Ms. Houserman seeks to use these complaints to attack 21 his credibility in cross-examination but not to admit them into evidence. Dkt. # 172 at 22 16-17. Under Rule 608(b)(1), the Court may permit cross-examination of a witness with 23 respect to specific instances of conduct if they are probative of the witness’s character for 24 truthfulness or untruthfulness. Instances of conduct that undermine Mr. Porcelain’s 25 deposition testimony and attack his credibility are admissible. If necessary, counsel may 26 offer for consideration a limiting instruction of how the jury is to receive this evidence. 27 This motion is DENIED. 1 V. CONCLUSION 2 For the reasons stated above, the parties’ motions are GRANTED in part and 3 DENIED in part. Dkt. ## 164, 166. Counsel for both parties are instructed to admonish 4 their witnesses to abide by this Court’s order on the motions in limine. Failure to do so 5 may result in sanctions. 6 7 DATED this 9th day of February, 2021.

8 A 9

10 11 The Honorable Richard A. Jones United States District Judge 12

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