THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 GERALD WILLIAMS, CASE NO. C19-0444-JCC 10 Plaintiff, ORDER 11 v. 12 THOMAS VILSACK, 13 Defendant. 14
15 In lieu of a pretrial conference, the Court directed the parties to meet, confer, and raise 16 any remaining issues in a joint brief. (Dkt. No. 59.) They did so.1 (Dkt. No. 63.) In the joint brief, 17 Defendant makes five motions in limine, which the Court now addresses. 18 I. BACKGROUND 19 Plaintiff, who is Black, worked as a firefighter with the U.S. Forest Service. He was 20 originally stationed at Mount Baker-Snoqualmie National Forest (“Mt. Baker”). He brought a 21 lawsuit alleging that he experienced racial discrimination while stationed at Mt. Baker, but the 22 Ninth Circuit ruled that those claims were time-barred. Williams v. Perdue, 731 F. App’x 726
23 1 The Court directed the parties to file a 16-page brief, with each side allotted half of the page- 24 count. (Dkt. No. 59 at 2.) The parties’ brief is 19 pages, and they even apparently used smaller- than-usual line spacing to circumvent the page restriction. (See Dkt. No. 63 at 14–16.) The Court 25 appreciates that splitting a page count in half is an inexact science, but the parties apparently made little effort to do so. The Court will strike future filings that do not adhere to its orders or to 26 formatting requirements in the local rules. 1 (9th Cir. 2018). In 2017, Plaintiff transferred to Mount Hood National Forest (“Mt. Hood”). His 2 superior at Mt. Hood concluded that he lacked certain qualifications needed for him to 3 participate in fire assignments, even though she allegedly let white firefighters who lacked the 4 same qualifications fulfill them in other ways so they could keep working. 5 Plaintiff filed this action asserting claims based on his time at both Mt. Baker and Mt. 6 Hood. The Court granted summary judgment on all the Mt. Baker-related claims, and one of the 7 Mt. Hood-related claims; thus, “[t]he only claims that remain” are Plaintiff’s Mt. Hood-related 8 retaliation and disparate treatment claims. (Dkt. No. 49 at 6.) 9 II. DISCUSSION 10 A. Motion in Limine No. 1: Exclude evidence of discrimination/retaliation that happened at Mt. Baker and disallow damages based on the same. (Dkt. No. 63 at 3.) 11 1. Parties’ Positions 12 Defendant argues there is no connection between the decisionmakers who allegedly 13 discriminated against Plaintiff at Mt. Hood and those who did so at Mt. Baker, and that the Mt. 14 Baker-related claims are time-barred under the Court’s summary judgment order. (Dkt. No. 49.) 15 Plaintiff argues he should be able to show that he left Mt. Baker for the same reasons he left Mt. 16 Hood. He argues that, even if Mt. Hood involved different supervisors than at Mt. Baker, both 17 National Forest areas are in the same administrative region, which has a unitary culture as to how 18 it treats minorities. He also argues that contact between him and Mt. Hood officials before he 19 transferred there helps show they were hostile toward the diversity initiatives Plaintiff 20 championed. (Dkt. No. 63 at 5–10.) 21 2. Court’s Ruling 22 Defendant’s motion is GRANTED. “Even if everything Plaintiff alleges about Mt. Baker 23 is true, none of that evidence is probative of whether Ms. Roy and Ms. Waters (or anybody 24 associated with Mt. Hood) discriminated or retaliated against Plaintiff in connection with the 25 audit of his training records or its aftermath.” (Dkt. No. 63 at 4.) Plaintiff’s reliance on Lyons v. 26 1 England, 307 F.3d 1092 (9th Cir. 2002) is unpersuasive. That court let plaintiffs introduce time- 2 barred acts of discrimination in the form of statistical evidence that their employer unequally 3 distributed professional opportunities among employees of different races. Id. at 1110–12. But 4 both the time-barred and timely discriminatory conduct was the same and happened at the same 5 Naval base. See id.; accord Pintro v. Rosenworcel, — F. Supp. 3d —, 2021 WL 3616838, slip 6 op. at 5–6 (D.D.C. 2021) (evidence of discriminatory incidents for which plaintiff failed to 7 exhaust administrative remedies was admissible under Federal Rules of Evidence 401 and 404(b) 8 to prove discriminatory intent where (1) incidents involved same decisionmaker; (2) alleged 9 discriminatory conduct was substantially similar; (3) incidents were temporally close; and (4) in 10 each instance where plaintiff was not selected, he identified white employees who were). 11 Here, alleged discrimination at Mt. Baker is time-barred, involved different 12 decisionmakers and different allegedly discriminatory conduct, and is therefore inadmissible 13 under Rules of Evidence 401 and 404(b). Plaintiff may not introduce evidence that any treatment 14 he experienced at Mt. Baker constitute a compensable Title VII violation. To the extent he lays 15 proper foundation, though, some things that happened while he was at Mt. Baker may be 16 appropriate to the extent it is probative of the knowledge or intent of decisionmakers Plaintiff 17 dealt with at Mt. Hood. (See Dkt. No. 63 at 6:7–7:6 (discussing contact between Plaintiff and Mt. 18 Hood decisionmakers in 2007 or 2008).) But Plaintiff cannot bring in evidence regarding time- 19 barred events of alleged discrimination at Mt. Baker. 20 B. Motion in Limine No. 2: Exclude evidence of other alleged acts of discrimination at the Forest Service. 21 1. Parties’ Positions 22 Defendant asks the Court to bar Plaintiff from eliciting testimony about “the ‘history of 23 racism in the Forest Service’ as well as diversity and inclusion issues within the Forest Service.” 24 (Dkt. No. 63 at 10 (apparently quoting Plaintiff’s pretrial statement).) Defendant argues that 25 Plaintiff will seek to offer as propensity evidence instances of discrimination among the entire 26 1 administrative region encompassing Mt. Hood and Mt. Baker, as well as the whole Forest 2 Service. He argues this evidence risks the jury deciding the case based on facts not involving 3 Plaintiff and his superiors at Mt. Hood, and will lead to mini-trials about unrelated incidents of 4 discrimination. Plaintiff counters that he and his witnesses will testify only on personal 5 knowledge “of fire officials’ receptiveness and/or resistance to diversity initiatives in which 6 hiring and retention data was the measure of the program’s effectiveness.” (Dkt. No. 63 at 12.) 7 2. Court’s Ruling 8 The Court’s ruling on Motion in Limine No. 1 already prevents Plaintiff from offering 9 Mt. Baker-related instances of alleged discrimination. The problem with both parties’ arguments 10 on Motion in Limine No. 2, however, is that it’s not entirely clear what exactly Defendant wants 11 excluded. For example, the relevance of Kurt Davis’s testimony is unclear. On one hand, 12 Plaintiff indicates that Mr. Davis’s testimony is probative of Ms. Roy’s discriminatory animus in 13 her dealings with Plaintiff (Dkt. No. 63 at 7); on the other, Defendant indicates that Mr. Davis 14 might testify about alleged discriminatory incidents involving different decisionmakers than 15 those at issue in Plaintiff’s claims (id. at 11 & n.25). 16 Plaintiff must be able to present evidence that his supervisors had discriminatory intent or 17 subjected him to disparate treatment. But he cannot introduce evidence that risks the jury 18 inferring—from discrimination against other employees, involving different decisionmakers, 19 from ill-fated diversity initiatives, or from a racist history untethered to the facts of this case— 20 that it is thus more likely that Plaintiff suffered retaliation or disparate treatment.
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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 GERALD WILLIAMS, CASE NO. C19-0444-JCC 10 Plaintiff, ORDER 11 v. 12 THOMAS VILSACK, 13 Defendant. 14
15 In lieu of a pretrial conference, the Court directed the parties to meet, confer, and raise 16 any remaining issues in a joint brief. (Dkt. No. 59.) They did so.1 (Dkt. No. 63.) In the joint brief, 17 Defendant makes five motions in limine, which the Court now addresses. 18 I. BACKGROUND 19 Plaintiff, who is Black, worked as a firefighter with the U.S. Forest Service. He was 20 originally stationed at Mount Baker-Snoqualmie National Forest (“Mt. Baker”). He brought a 21 lawsuit alleging that he experienced racial discrimination while stationed at Mt. Baker, but the 22 Ninth Circuit ruled that those claims were time-barred. Williams v. Perdue, 731 F. App’x 726
23 1 The Court directed the parties to file a 16-page brief, with each side allotted half of the page- 24 count. (Dkt. No. 59 at 2.) The parties’ brief is 19 pages, and they even apparently used smaller- than-usual line spacing to circumvent the page restriction. (See Dkt. No. 63 at 14–16.) The Court 25 appreciates that splitting a page count in half is an inexact science, but the parties apparently made little effort to do so. The Court will strike future filings that do not adhere to its orders or to 26 formatting requirements in the local rules. 1 (9th Cir. 2018). In 2017, Plaintiff transferred to Mount Hood National Forest (“Mt. Hood”). His 2 superior at Mt. Hood concluded that he lacked certain qualifications needed for him to 3 participate in fire assignments, even though she allegedly let white firefighters who lacked the 4 same qualifications fulfill them in other ways so they could keep working. 5 Plaintiff filed this action asserting claims based on his time at both Mt. Baker and Mt. 6 Hood. The Court granted summary judgment on all the Mt. Baker-related claims, and one of the 7 Mt. Hood-related claims; thus, “[t]he only claims that remain” are Plaintiff’s Mt. Hood-related 8 retaliation and disparate treatment claims. (Dkt. No. 49 at 6.) 9 II. DISCUSSION 10 A. Motion in Limine No. 1: Exclude evidence of discrimination/retaliation that happened at Mt. Baker and disallow damages based on the same. (Dkt. No. 63 at 3.) 11 1. Parties’ Positions 12 Defendant argues there is no connection between the decisionmakers who allegedly 13 discriminated against Plaintiff at Mt. Hood and those who did so at Mt. Baker, and that the Mt. 14 Baker-related claims are time-barred under the Court’s summary judgment order. (Dkt. No. 49.) 15 Plaintiff argues he should be able to show that he left Mt. Baker for the same reasons he left Mt. 16 Hood. He argues that, even if Mt. Hood involved different supervisors than at Mt. Baker, both 17 National Forest areas are in the same administrative region, which has a unitary culture as to how 18 it treats minorities. He also argues that contact between him and Mt. Hood officials before he 19 transferred there helps show they were hostile toward the diversity initiatives Plaintiff 20 championed. (Dkt. No. 63 at 5–10.) 21 2. Court’s Ruling 22 Defendant’s motion is GRANTED. “Even if everything Plaintiff alleges about Mt. Baker 23 is true, none of that evidence is probative of whether Ms. Roy and Ms. Waters (or anybody 24 associated with Mt. Hood) discriminated or retaliated against Plaintiff in connection with the 25 audit of his training records or its aftermath.” (Dkt. No. 63 at 4.) Plaintiff’s reliance on Lyons v. 26 1 England, 307 F.3d 1092 (9th Cir. 2002) is unpersuasive. That court let plaintiffs introduce time- 2 barred acts of discrimination in the form of statistical evidence that their employer unequally 3 distributed professional opportunities among employees of different races. Id. at 1110–12. But 4 both the time-barred and timely discriminatory conduct was the same and happened at the same 5 Naval base. See id.; accord Pintro v. Rosenworcel, — F. Supp. 3d —, 2021 WL 3616838, slip 6 op. at 5–6 (D.D.C. 2021) (evidence of discriminatory incidents for which plaintiff failed to 7 exhaust administrative remedies was admissible under Federal Rules of Evidence 401 and 404(b) 8 to prove discriminatory intent where (1) incidents involved same decisionmaker; (2) alleged 9 discriminatory conduct was substantially similar; (3) incidents were temporally close; and (4) in 10 each instance where plaintiff was not selected, he identified white employees who were). 11 Here, alleged discrimination at Mt. Baker is time-barred, involved different 12 decisionmakers and different allegedly discriminatory conduct, and is therefore inadmissible 13 under Rules of Evidence 401 and 404(b). Plaintiff may not introduce evidence that any treatment 14 he experienced at Mt. Baker constitute a compensable Title VII violation. To the extent he lays 15 proper foundation, though, some things that happened while he was at Mt. Baker may be 16 appropriate to the extent it is probative of the knowledge or intent of decisionmakers Plaintiff 17 dealt with at Mt. Hood. (See Dkt. No. 63 at 6:7–7:6 (discussing contact between Plaintiff and Mt. 18 Hood decisionmakers in 2007 or 2008).) But Plaintiff cannot bring in evidence regarding time- 19 barred events of alleged discrimination at Mt. Baker. 20 B. Motion in Limine No. 2: Exclude evidence of other alleged acts of discrimination at the Forest Service. 21 1. Parties’ Positions 22 Defendant asks the Court to bar Plaintiff from eliciting testimony about “the ‘history of 23 racism in the Forest Service’ as well as diversity and inclusion issues within the Forest Service.” 24 (Dkt. No. 63 at 10 (apparently quoting Plaintiff’s pretrial statement).) Defendant argues that 25 Plaintiff will seek to offer as propensity evidence instances of discrimination among the entire 26 1 administrative region encompassing Mt. Hood and Mt. Baker, as well as the whole Forest 2 Service. He argues this evidence risks the jury deciding the case based on facts not involving 3 Plaintiff and his superiors at Mt. Hood, and will lead to mini-trials about unrelated incidents of 4 discrimination. Plaintiff counters that he and his witnesses will testify only on personal 5 knowledge “of fire officials’ receptiveness and/or resistance to diversity initiatives in which 6 hiring and retention data was the measure of the program’s effectiveness.” (Dkt. No. 63 at 12.) 7 2. Court’s Ruling 8 The Court’s ruling on Motion in Limine No. 1 already prevents Plaintiff from offering 9 Mt. Baker-related instances of alleged discrimination. The problem with both parties’ arguments 10 on Motion in Limine No. 2, however, is that it’s not entirely clear what exactly Defendant wants 11 excluded. For example, the relevance of Kurt Davis’s testimony is unclear. On one hand, 12 Plaintiff indicates that Mr. Davis’s testimony is probative of Ms. Roy’s discriminatory animus in 13 her dealings with Plaintiff (Dkt. No. 63 at 7); on the other, Defendant indicates that Mr. Davis 14 might testify about alleged discriminatory incidents involving different decisionmakers than 15 those at issue in Plaintiff’s claims (id. at 11 & n.25). 16 Plaintiff must be able to present evidence that his supervisors had discriminatory intent or 17 subjected him to disparate treatment. But he cannot introduce evidence that risks the jury 18 inferring—from discrimination against other employees, involving different decisionmakers, 19 from ill-fated diversity initiatives, or from a racist history untethered to the facts of this case— 20 that it is thus more likely that Plaintiff suffered retaliation or disparate treatment. That sort of 21 evidence would violate Federal Rule of Evidence 404(b) and, potentially, Rule 403. 22 Plaintiff is right that statistical evidence can be used to prove disparate treatment (Dkt. 23 No. 63 at 12–13), but it is not clear that is what Plaintiff plans to offer. The Court is concerned 24 about putting anecdotal evidence, or improper character, opinion, or reputation testimony, before 25 the jury. That said, if there is needed context for Mt. Hood officials’ decisions concerning 26 Plaintiff that can be proven with admissible evidence, the Jury should hear it. 1 The Court RESERVES ruling on Motion in Limine No. 2 and will address it as and when 2 it arises. To the extent possible, counsel should call the Court’s attention during trial to testimony 3 they believe will implicate Motion in Limine No. 2 before those witnesses take the stand. 4 C. Motion in Limine No. 3: Limit testimony on comparators to those evaluated at Mt. Hood by the decisionmakers who evaluated Plaintiff. 5 1. Parties’ Positions 6 Defendant urges the Court to prevent Plaintiff from offering expert testimony comparing 7 Plaintiff’s firefighting qualifications to those of seven white employees that were not evaluated 8 by the decisionmakers that allegedly rejected Plaintiff’s qualifications. Plaintiff argues that 9 comparators can be similarly situated without having the same supervisor and that the asserted 10 comparators are similarly situated in “tenure, rank, age, experience as a firefighter[,] and 11 position.” (Dkt. No. 63 at 15.) Plaintiff also points out that, even if seven (of nine total) 12 comparators were not assessed by the same decisionmakers as Plaintiff, they were all subject to 13 the same regulatory standards for firefighter qualifications. 14 2. Court’s Ruling 15 The Court agrees with Plaintiff. If the same qualification standards governed all 16 comparators—regardless of who their supervisors were—it is relevant if a particular supervisor 17 is applying those standards differently than other supervisors are. Accordingly, the Court 18 DENIES without prejudice Defendant’s Motion in Limine No. 3.2 Plaintiff may present this 19 comparator evidence if he lays the proper foundation to establish that the comparators were in 20 fact similarly situated, e.g., their qualifications were judged against the same standards as 21 Plaintiff’s, Plaintiff’s supervisor was indeed applying those standards when evaluating him, the 22 expert’s opinion is admissible, etc. That is not unduly prejudicial; Defendant can still elicit 23
24 2 There is an important caveat: Admissible comparator evidence must comply with the Court’s ruling on Motion in Limine No.1. (Dkt. No. 63 at 15 (Plaintiff arguing “Williams was a 25 Superintendent on the Mt. Baker [duty post]. There were only 9 superintendents in the Region at the time Williams’[s] suit was filed, who were similar to him in all material respects.” (emphasis 26 added)).) 1 testimony suggesting that different outcomes among comparators could result from factors other 2 than race. 3 D. Motion in Limine No. 4: Preclude Plaintiff from presenting evidence of economic loss before the jury. 4 1. Parties’ Positions. 5 Because the jury’s role is to determine liability and compensatory damages, but not back- 6 pay or front-pay, which are equitable remedies, Lutz v. Glendale Union High Sch., 403 F.3d 7 1061, 1067, 1069 (9th Cir. 2005), defendant argues, the jury should not hear evidence regarding 8 the latter, (Dkt. No. 63 at 16–17.) Plaintiff doesn’t squarely meet this argument but says that he 9 would like to testify on his earnings in years where he was dispatched on fire assignments 10 compared to years where supervisors allegedly prevented him from doing so. 11 2. Court’s Ruling. 12 Defendant is right on the law but wrong on how best to implement it. Under Beacon 13 Theatres, Inc. v. Westover, 359 U.S. 500 (1959), a jury trial must be completed before the Court 14 can consider ethical claims. That would be cumbersome here, where there may be overlapping 15 proof for both legal and equitable remedies and bifurcation could create logistical issues. Federal 16 Rule of Civil Procedure 39(c) gives the Court broad discretion to empanel an advisory jury in a 17 situation like this. The Court DENIES Motion in Limine No. 4; if Plaintiff is seeking back-pay or 18 front-pay, the jury’s verdict will be advisory as to that remedy. Cf. Sweeney v. Chang, 2019 WL 19 1431583, slip op. at 6 (C.D. Cal. 2019). 20 E. Motion in Limine No. 5: Do not show jurors the venire video on implicit bias. 21 1. Parties’ Positions 22 Defendant asks the Court not to show prospective jurors the Court’s video on 23 unconscious bias, which features the undersigned judge.3 He argues the video would unfairly 24 25 3 Unconscious Bias Juror Video, U.S. Dist. CT., W.D. WASH. (Mar. 10, 2017), 26 https://www.wawd.uscourts.gov/jury/unconscious-bias 1 prejudice him by making jurors think he should have to prove that bias did not motivate his 2 decisionmakers. (Dkt. No. 63 at 18 (citing Rosales v. Spencer, C17-5781-BHS, Dkt. No. 82 3 (W.D. Wash. 2020) (granting motion to excuse showing this video to potential jurors)).) 4 2. Court’s Ruling. 5 The Court sees little risk in playing the unconscious video to a properly instructed jury. 6 The video tells jurors about how our own subconscious biases subtly influence our decisions and 7 perceptions—it says nothing about attributing motives to others. Plaintiff must still persuade 8 jurors that Defendant’s decisionmakers treated him differently because of his race. If anything, 9 understanding their own implicit biases (which are by no means limited to issues of race) will aid 10 jurors in deciding whether Plaintiff has done that. The Court DENIES Motion in Limine No. 5. 11 III. CONCLUSION 12 For the foregoing reasons, the Court ORDERS as follows with respect to the parties’ joint 13 brief (Dkt. No. 63): 14 1. The Court GRANTS Motion in Limine No. 1. 15 2. The Court RESERVES ruling on Motion in Limine No. 2 and will address 16 testimony implicating this motion outside the jury’s presence before witnesses giving it take the 17 stand. 18 3. The Court DENIES without prejudice Motion in Limine No. 3. 19 4. The Court DENIES Motion in Limine No. 4 and Motion in Limine No. 5. 20 DATED this 14th day of October 2021. A 21 22 23 John C. Coughenour 24 UNITED STATES DISTRICT JUDGE
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