1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KELEE WILLIAMS, Case No. 20-cv-03989-KAW
8 Plaintiff, PRETRIAL CONFERENCE 9 v. TENTATIVE RULINGS
10 ROBERT HALF INTERNATIONAL INC., Defendant. 11
12 13 I. MOTIONS IN LIMINE 14 Relevant evidence is any evidence that has any tendency to make a fact that is of 15 consequence to the determination of the action more or less probable than it would be without the 16 evidence. Fed. R. Evid. 401. The Court has discretion to “exclude relevant evidence if its 17 probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the 18 issue, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative 19 evidence.” 20 21 MIL Motion Ruling Reason/Explanation 22 Exclude fax from Ms. Plaintiff may introduce the fax into 23 Williams’ counselor, evidence to demonstrate that Plaintiff’s D1 Kathleen Alberts, to DENY therapist had submitted the form to 24 Broadspire dated show pretext. October 1, 2020 25 Exclude evidence of 26 actions by the Illinois The IDES Determination Letter may not 27 D2 Department of GRANT be used as evidence in this proceeding. Employment Security 820 Ill. Comp. Stat. 405/1900. 1 Defendant’s request is overbroad. Exclude evidence of Although Defendant characterizes these 2 communications communications between Plaintiff and a between Ms. Williams third-party as irrelevant, Plaintiff’s 3 D3 and RHI’s third party DENY allegations of Defendant’s improper 4 administrator, interference with her benefits request Broadspire make the communications relevant to 5 the remaining retaliation claims. 6 Discriminatory conduct occurring prior to the limitations period may be 7 considered as part of the continuing Exclude evidence of violations doctrine in support of a 8 whether RHI paid Ms. hostile work environment claim. Williams less than men 9 Plaintiff nowhere argues that differential D4 for similar work or GRANT pay amounted to harassing conduct, nor RHI’s compensation to 10 does she show that differential pay is a its employees prior to relevant consideration to the hostile 11 August 18, 2019 work environment assessment. 12 Evidence of differential pay prior to the limitations period is thus irrelevant. 13 The harassment of other women by 14 Plaintiff’s former direct supervisor is “relevant and probative” of the 15 supervisor’s hostility toward women. Exclude evidence of Heyne v. Caruso, 69 F.3d 1475, 1480– 16 D5 the reasons why Chris DENY 81 (9th Cir. 1995). Plaintiff’s admission Brinkman left RHI 17 that Brinkman did not harass her does not preclude consideration of his 18 maltreatment of other women in the Court’s hostile environment assessment. 19 The email correspondence does not 20 constitute confidential settlement 21 communications under Rule 408(a). Defendant’s counsel does not exhibit an 22 offer of valuable consideration in Exclude evidence of compromising or attempting to 23 settlement compromise the claim. Fed. R. Evid. communications 24 D6 between counsel Ellen DENY 408 (a)(1). Defense counsel emailed Plaintiff’s counsel “out of courtesy” Bronchetti and Seth 25 Rafkin (Bronchetti Decl., Ex. 5), not “during compromise negotiations about the 26 claim.” Fed. R. Evid. 408(a)(2). The Court does not rule, at this stage, on the 27 authentication of the email 1 This category of evidence is overbroad. Exclude evidence of But more importantly, Plaintiff still has 2 D7 alleged non-gender- DENY claims for retaliation which need not based bullying necessarily rely on gender-based 3 bullying. 4 Regarding the Scope of This is an improper motion in limine 5 D8 the Parties’ Non- DENY that requires the Court to interpret a Compete Provision contractual provision in a vacuum. 6 This evidence, in contrast to the 7 evidence excluded under Motion in Exclude evidence of Limine No. 4, is relevant to a remaining 8 Ms. Williams’ Verbal D9 Complaints as Not DENY claim. The evidence of Plaintiff’s 9 Protected Activities complaints, even verbal complaints, is relevant to her cause of action for 10 retaliation. 11 Plaintiff does not meaningfully argue that the failure to provide a mentor 12 demonstrates an adverse action, and that 13 category of evidence is accordingly Exclude evidence of excluded. Evidence of Plaintiff’s 14 being excluded from GRANT IN exclusion from meetings may be D10 meetings and not being PART, DENY introduced as an adverse action. 15 provided a mentor as IN PART Strother v. S. Cal. Permanente Med. adverse actions Group, 79 F.3d 859, 869 (9th Cir.1996) 16 (exclusion from meetings and seminars 17 that would have made plaintiff eligible for salary increases qualifies as adverse 18 employment action). 19 20 II. EVIDENTIARY ISSUES 21 A. Plaintiff’s Objections 22 23 Witness/Evidence Ruling Reason/Explanation 24 Abbey was not timely disclosed, and Defendant 25 Dawn Abbey SUSTAIN does not directly respond to Plaintiff’s objection to her testimony. 26 Andreesen was not timely disclosed, and 27 Tom Andreesen SUSTAIN Defendant does not establish that his testimony 1 Witness/Evidence Ruling Reason/Explanation 2 Cohoon was not timely disclosed, and 3 Gianne Cohoon SUSTAIN Defendant does not directly respond to Plaintiff’s objection to her testimony. 4 Daley was not timely disclosed, and Defendant 5 Kerry Daley SUSTAIN does not establish that her testimony will not result in prejudice. 6 Lampo was not timely disclosed, and Defendant 7 Kim Lampo SUSTAIN does not directly respond to Plaintiff’s objection 8 to her testimony. 9 Linotakis was not timely disclosed, and Fran Liontakis SUSTAIN Defendant does not directly respond to 10 Plaintiff’s objection to her testimony. 11 Tanaka George was not timely disclosed as a witness, Defendant does not establish that her 12 Colleen Tanaka George SUSTAIN testimony will not result in prejudice. 13 Additionally, her intended testimony appears redundant. 14 Though disclosed late, the identification of 15 Tinajero can hardly be surprising to Plaintiff. It appears Plaintiff was aware of Broadspire’s 16 Martha Tinajero OVERRULE relevance, particularly where Plaintiff 17 subpoenaed materials from Broadspire in April 2021 and Plaintiff’s counsel interacted with 18 Tinajero. See Dkt. 150-2 at 86. 19 Price was not timely disclosed. Although Defendant intends to ask only that he 20 authenticate certain documents, which might Todd Price SUSTAIN 21 not result in prejudice to Plaintiff, those documents were also disclosed well after the 22 close of discovery. 23 Rife was not timely disclosed, and Defendant Leslie Rife SUSTAIN does not establish that her testimony will not 24 result in prejudice. 25 Sweet was not timely disclosed, and Defendant 26 Stephanie Sweet SUSTAIN does not establish that her testimony will not result in prejudice. 27 1 Witness/Evidence Ruling Reason/Explanation 2 will not result in prejudice. 3 Thompson was not timely disclosed, and 4 Jill Thompson SUSTAIN Defendant does not establish that her testimony will not result in prejudice. 5 6 Plaintiff objects for lack of relevance, but the qualifications of other candidates for the 7 position she was denied are relevant to Exhibit A-28–32, 36–42 Defendant’s legitimate business reasons 8 (Applications for MBS – OVERRULE defense. The Court does not yet rule on the VP position) exhibits’ foundations and authenticity. 9 Disclosure of documents late within discovery 10 period (as opposed to after close of discovery) does not render disclosure untimely. 11 Exhibit A-98–100 12 (Personnel files of other Documents were not produced until December SUSTAIN applicants to MBS – VP 13, 2022, well after the close of discovery.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KELEE WILLIAMS, Case No. 20-cv-03989-KAW
8 Plaintiff, PRETRIAL CONFERENCE 9 v. TENTATIVE RULINGS
10 ROBERT HALF INTERNATIONAL INC., Defendant. 11
12 13 I. MOTIONS IN LIMINE 14 Relevant evidence is any evidence that has any tendency to make a fact that is of 15 consequence to the determination of the action more or less probable than it would be without the 16 evidence. Fed. R. Evid. 401. The Court has discretion to “exclude relevant evidence if its 17 probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the 18 issue, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative 19 evidence.” 20 21 MIL Motion Ruling Reason/Explanation 22 Exclude fax from Ms. Plaintiff may introduce the fax into 23 Williams’ counselor, evidence to demonstrate that Plaintiff’s D1 Kathleen Alberts, to DENY therapist had submitted the form to 24 Broadspire dated show pretext. October 1, 2020 25 Exclude evidence of 26 actions by the Illinois The IDES Determination Letter may not 27 D2 Department of GRANT be used as evidence in this proceeding. Employment Security 820 Ill. Comp. Stat. 405/1900. 1 Defendant’s request is overbroad. Exclude evidence of Although Defendant characterizes these 2 communications communications between Plaintiff and a between Ms. Williams third-party as irrelevant, Plaintiff’s 3 D3 and RHI’s third party DENY allegations of Defendant’s improper 4 administrator, interference with her benefits request Broadspire make the communications relevant to 5 the remaining retaliation claims. 6 Discriminatory conduct occurring prior to the limitations period may be 7 considered as part of the continuing Exclude evidence of violations doctrine in support of a 8 whether RHI paid Ms. hostile work environment claim. Williams less than men 9 Plaintiff nowhere argues that differential D4 for similar work or GRANT pay amounted to harassing conduct, nor RHI’s compensation to 10 does she show that differential pay is a its employees prior to relevant consideration to the hostile 11 August 18, 2019 work environment assessment. 12 Evidence of differential pay prior to the limitations period is thus irrelevant. 13 The harassment of other women by 14 Plaintiff’s former direct supervisor is “relevant and probative” of the 15 supervisor’s hostility toward women. Exclude evidence of Heyne v. Caruso, 69 F.3d 1475, 1480– 16 D5 the reasons why Chris DENY 81 (9th Cir. 1995). Plaintiff’s admission Brinkman left RHI 17 that Brinkman did not harass her does not preclude consideration of his 18 maltreatment of other women in the Court’s hostile environment assessment. 19 The email correspondence does not 20 constitute confidential settlement 21 communications under Rule 408(a). Defendant’s counsel does not exhibit an 22 offer of valuable consideration in Exclude evidence of compromising or attempting to 23 settlement compromise the claim. Fed. R. Evid. communications 24 D6 between counsel Ellen DENY 408 (a)(1). Defense counsel emailed Plaintiff’s counsel “out of courtesy” Bronchetti and Seth 25 Rafkin (Bronchetti Decl., Ex. 5), not “during compromise negotiations about the 26 claim.” Fed. R. Evid. 408(a)(2). The Court does not rule, at this stage, on the 27 authentication of the email 1 This category of evidence is overbroad. Exclude evidence of But more importantly, Plaintiff still has 2 D7 alleged non-gender- DENY claims for retaliation which need not based bullying necessarily rely on gender-based 3 bullying. 4 Regarding the Scope of This is an improper motion in limine 5 D8 the Parties’ Non- DENY that requires the Court to interpret a Compete Provision contractual provision in a vacuum. 6 This evidence, in contrast to the 7 evidence excluded under Motion in Exclude evidence of Limine No. 4, is relevant to a remaining 8 Ms. Williams’ Verbal D9 Complaints as Not DENY claim. The evidence of Plaintiff’s 9 Protected Activities complaints, even verbal complaints, is relevant to her cause of action for 10 retaliation. 11 Plaintiff does not meaningfully argue that the failure to provide a mentor 12 demonstrates an adverse action, and that 13 category of evidence is accordingly Exclude evidence of excluded. Evidence of Plaintiff’s 14 being excluded from GRANT IN exclusion from meetings may be D10 meetings and not being PART, DENY introduced as an adverse action. 15 provided a mentor as IN PART Strother v. S. Cal. Permanente Med. adverse actions Group, 79 F.3d 859, 869 (9th Cir.1996) 16 (exclusion from meetings and seminars 17 that would have made plaintiff eligible for salary increases qualifies as adverse 18 employment action). 19 20 II. EVIDENTIARY ISSUES 21 A. Plaintiff’s Objections 22 23 Witness/Evidence Ruling Reason/Explanation 24 Abbey was not timely disclosed, and Defendant 25 Dawn Abbey SUSTAIN does not directly respond to Plaintiff’s objection to her testimony. 26 Andreesen was not timely disclosed, and 27 Tom Andreesen SUSTAIN Defendant does not establish that his testimony 1 Witness/Evidence Ruling Reason/Explanation 2 Cohoon was not timely disclosed, and 3 Gianne Cohoon SUSTAIN Defendant does not directly respond to Plaintiff’s objection to her testimony. 4 Daley was not timely disclosed, and Defendant 5 Kerry Daley SUSTAIN does not establish that her testimony will not result in prejudice. 6 Lampo was not timely disclosed, and Defendant 7 Kim Lampo SUSTAIN does not directly respond to Plaintiff’s objection 8 to her testimony. 9 Linotakis was not timely disclosed, and Fran Liontakis SUSTAIN Defendant does not directly respond to 10 Plaintiff’s objection to her testimony. 11 Tanaka George was not timely disclosed as a witness, Defendant does not establish that her 12 Colleen Tanaka George SUSTAIN testimony will not result in prejudice. 13 Additionally, her intended testimony appears redundant. 14 Though disclosed late, the identification of 15 Tinajero can hardly be surprising to Plaintiff. It appears Plaintiff was aware of Broadspire’s 16 Martha Tinajero OVERRULE relevance, particularly where Plaintiff 17 subpoenaed materials from Broadspire in April 2021 and Plaintiff’s counsel interacted with 18 Tinajero. See Dkt. 150-2 at 86. 19 Price was not timely disclosed. Although Defendant intends to ask only that he 20 authenticate certain documents, which might Todd Price SUSTAIN 21 not result in prejudice to Plaintiff, those documents were also disclosed well after the 22 close of discovery. 23 Rife was not timely disclosed, and Defendant Leslie Rife SUSTAIN does not establish that her testimony will not 24 result in prejudice. 25 Sweet was not timely disclosed, and Defendant 26 Stephanie Sweet SUSTAIN does not establish that her testimony will not result in prejudice. 27 1 Witness/Evidence Ruling Reason/Explanation 2 will not result in prejudice. 3 Thompson was not timely disclosed, and 4 Jill Thompson SUSTAIN Defendant does not establish that her testimony will not result in prejudice. 5 6 Plaintiff objects for lack of relevance, but the qualifications of other candidates for the 7 position she was denied are relevant to Exhibit A-28–32, 36–42 Defendant’s legitimate business reasons 8 (Applications for MBS – OVERRULE defense. The Court does not yet rule on the VP position) exhibits’ foundations and authenticity. 9 Disclosure of documents late within discovery 10 period (as opposed to after close of discovery) does not render disclosure untimely. 11 Exhibit A-98–100 12 (Personnel files of other Documents were not produced until December SUSTAIN applicants to MBS – VP 13, 2022, well after the close of discovery. 13 position) 14 Exhibits A-106–109 Documents were not produced until December 15 (LinkedIn profiles and SUSTAIN 19, 2022, well after the close of discovery. Todd Price affidavit) 16 Though disclosed late, Plaintiff cannot be 17 Exhibits A-110 (Total surprised by this Exhibit, something within her award base salary OVERRULE knowledge and underlying certain of her claims 18 schedule) in this lawsuit. 19 Exhibit A-111–122 Documents were not produced until December SUSTAIN 20 (Broadspire Files) 19, 2022, well after the close of discovery. 21 22 B. Defendant’s Objections 23 24 Witness/Evidence Ruling Reason/Explanation 25 Jennifer Burgstiner, None of these witnesses were timely disclosed, 26 Ellen Bronchetti, Vicki SUSTAIN and Plaintiff does not establish that their Gunn testimony will not result in prejudice. 27 1 Witness/Evidence Ruling Reason/Explanation 2 trial. Defendant suffers no prejudice by authenticating its documents. 3 Plaintiff may call Broadspire’s custodian of 4 records to authenticate materials produced for OVERRULE 5 Broadspire Records IN PART, trial. However, Plaintiff may not pursue questioning regarding Broadspire’s allegedly Custodian SUSTAIN IN 6 insufficient response to Plaintiff’s earlier PART subpoena. The time has passed for Plaintiff to 7 compel such responses. 8 Fraga’s testimony regarding compensation at RHI is not irrelevant given the remaining scope 9 Carlos Fraga OVERRULE of Plaintiff’s Title VII claim and its inclusion of 10 differential pay. 11 Plaintiff acknowledges that the email chains are incomplete and states her willingness to 12 Exhibits 3, 5 supplement the Exhibits with the missing pages. (incomplete email SUSTAIN Plaintiff is ORDERED to provide the full email 13 strings) chain if she intends to present the Exhibits into 14 evidence. 15 Exhibit 10 (Convention Agenda relating to Exhibit was not disclosed late. Rather, it was 16 Resilience in Action OVERRULE previously disclosed in evidence as an exhibit in dated September 23, Tim Hurd’s deposition. 17 2021) 18 Exhibit 13 (envelope 19 addressed to Ms. Exhibit was not disclosed late. It was an exhibit Williams from Gregory OVERRULE to Plaintiff’s opposition to Defendant’s Motion 20 Mathurin postmarked for Summary Judgment. (ECF 97, Ex. B.) June 10, 2020) 21 Exhibit 17 (email 22 correspondence between 23 counsel for Ms. Exhibit was not disclosed late. It was an exhibit Williams, Seth Rafkin, 24 and Vicki Gunn of OVERRULE to Plaintiff’s opposition to Defendant’s Motion for Summary Judgment. Broadspire’s in-house 25 legal team from April 7, 26 2021, to May 4, 2021) 27 Exhibit 19 (email Exhibit was not disclosed late, nor was it a correspondence between OVERRULE surprise—it is correspondence with Defendant’s 1 Witness/Evidence Ruling Reason/Explanation 2 for RHI, Ellen not constitute a confidential settlement Bronchetti, from to communication. See Defendant’s MIL 6. 3 December 2 to 3, 2020 4 Exhibit 20 Determination letter was not disclosed late 5 (Determination Letter given that Defendant received a copy of the from Illinois same correspondence directly from IDES. 6 Department of SUSTAIN However, the Determination Letter may not be Employment Security to used as evidence in this proceeding, and it 7 Ms. Williams dated amounts to hearsay. See also Defendant’s MIL February 10, 2021) 2. 8 Exhibit 62 (email 9 correspondence between The exhibit was disclosed late, and Plaintiff 10 counsel for Plaintiff, SUSTAIN does not establish that late disclosure was Seth Rafkin, and Vicki harmless. 11 Gunn of Broadspire)
12 These documents were issued by Defendant, Exhibit 89 (W-2 Wage were in Defendant’s possession, and notably 13 and Tax Statements for should have been produced by Defendant OVERRULE 14 Ms. Williams from 2017 pursuant to General Order 71. Though through 2020) disclosed late, Defendant is not surprised or 15 prejudiced by their consideration. 16 These exhibits are not irrelevant. Plaintiff’s claims for gender discrimination and retaliation 17 under Title VII, as well as her claim for Exhibits 23–25, 65–68, 18 76, 85 (RHI constructive termination, remain standing. OVERRULE However, evidence of differential pay prior to compensation plans and 19 August 18, 2019, is not actionable, and those revenue report) portions of the exhibits older than that date will 20 not be considered by the Court. See Defendant’s MIL 4. 21 22 Plaintiff acknowledges that this Exhibit was Exhibit 21 (Salesforce mislabeled and states that she intends to provide SUSTAIN 23 Codes) the correct exhibit, the “2018 Reach for the Stars Award,” to Defendant and the Court. 24 Defendant argues that Brinkman’s discharge is 25 irrelevant to Plaintiff’s claims, but Brinkman’s Exhibit 22 (Chris 26 Brinkman File) OVERRULE alleged harassment of other women may be considered in the Court’s hostile environment 27 assessment. See Defendant’s MIL 5. Exhibits 58, 59 (text || mesages ith susan | Th eximosnzes amount 4 Accardi)
armless. 7 8 I. MOTION TO STRIKE Plaintiff filed her responses to Defendant’s objections two days late. (Dkt. 151, Dkt. 152.) Plaintiff's counsel acknowledged that the responses were tardy in a letter to the Court on Sunday, January 22, 2023. (Dkt. 154.) Defendant then moved to strike Plaintiffs late-filed responses to her objections. (Dkt. 155.) Plaintiff asks the Court not to strike the late-filed responses based on excusable neglect. “To determine whether a party's failure to meet a deadline constitutes ‘excusable neglect,’ courts 5 's must apply a four-factor equitable test, examining: (1) the danger of prejudice to the opposing = ‘6 party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the 7 delay; and (4) whether the movant acted in good faith.” Ahanchian v. Xenon Pictures, Inc., 624 a 18 F.3d 1253, 1261 (9th Cir. 2010) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). *0 Given the mere two-day delay and the fact that no subsequent deadlines were impacted, the good faith calendaring mistake by Plaintiff's counsel constitutes excusable neglect that does not result in prejudice to Defendant. Therefore, the Court will DENY Defendant’s Motion to Strike °3 Plaintiff's Responses to Defendant’s Objections. * IT IS SO ORDERED. * Dated: January 31, 2023 .
27 ANDIS A. WESTMORE 38 United States Magistrate Judge