Mility v. County of Kern ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KERNEL MILITY, ) Case No.: 1:17-cv-0446 - JLT ) 12 Plaintiff, ) PRETRIAL ORDER ) 13 v. ) Motions in Limine Filing: 3/27/2020 ) Oppositions to Motions in Limine: 4/3/2020 14 COUNTY OF KERN, et al. ) Hearing on Motions in Limine: 4/13/2020 ) 15 Defendants. ) Trial Submissions: 4/24/2020 ) Jury trial: 4/27/2020 at 8:30 a.m., 5-7 days 16 17 Kernel Mility asserts that during his employment with the County, he suffered discrimination 18 and harassment from several coworkers and his supervisor, including Chris Rodriguez, Phil Taylor, 19 Richard Carillo, and Dave Langella. (See generally Doc. 43) 20 A. JURISDICTION/ VENUE 21 This Court has original jurisdiction pursuant to 28 U.S.C. §§ 1331. The venue is proper in the 22 United States District Court for the Eastern District of California. See 28 U.S.C. § 1391. 23 B. UNDISPUTED FACTS 24 1. Plaintiff was employed by Defendant County as an extra-help maintenance worker from 25 November 16, 2015, until August 22, 2016. 26 C. DISPUTED FACTS 27 Plaintiff 28 1. Whether Plaintiff’s race was a motivating/determining factor in relation to the 1 harassment Plaintiff was subjected to while employed by the County. 2 2. Whether Plaintiff was subjected to a hostile work environment based on his race. 3 3. Whether Plaintiff complained about the racial harassment and to whom. 4 4. Whether Plaintiff suffered retaliation at the workplace. 5 5. Whether Plaintiff’s race was a motivating/determining factor in the County’s decision 6 not to re-hire Plaintiff. 7 6. Whether the County not re-hiring Plaintiff was intended to be retaliation against him. 8 Defendant 9 1. Whether Plaintiff’s race was a motivating/determining factor in relation to the 10 harassment Plaintiff was subjected to while employed by the County. 11 2. Whether Plaintiff was subjected to a hostile work environment based on his race. 12 3. Whether Plaintiff complained about the racial harassment and to whom. 13 4. Whether Plaintiff suffered retaliation. 14 5. Whether County exercised reasonable care to prevent and correct any harassment. 15 6. Whether Plaintiff unreasonably failed to take advantage of any preventative or corrective 16 opportunities provided by County to correct the problem. 17 7. Whether County had a legitimate non-discriminatory reason to not re-hire Plaintiff. 18 8. Whether Defendant “Taylor” is a “supervisor” as that term is used under Title VII/ 42 19 U.S.C. section 1983. 20 D. DISPUTED LEGAL ISSUES 21 Except for jurisdiction and venue, all other issues are disputed. 22 E. DISPUTED EVIDENTIARY ISSUES 23 None identified. However, the parties indicate, contrarily, that they wish to file motions in 24 limine. This is insufficient. L.R. 281(5). 25 F. RELIEF SOUGHT 26 Plaintiff seeks damages, costs and fees. The defendants seek a defense verdict, costs and 27 attorney fees for defense of this action. 28 /// 1 G. ABANDONED ISSUES 2 None. 3 H. WITNESSES 4 1. The following is a list of witnesses that the parties expect to call at trial, including 5 rebuttal and impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS 6 SECTION, MAY BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR UPON A 7 SHOWING THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT “MANIFEST 8 INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 281(b)(10). 9 Plaintiff 10 1. Kernel Mility 11 2. Phil Taylor 12 3. Richard Carillo 13 4. Dave Langella 14 5. Chris Rodriguez 15 6. David Harding 16 7. David Sierra 17 8. Joe Ayala 18 9. Tim Castillo 19 10. Barrett Gettig 20 11. Jonathon Davis 21 12. Guillermo Garcia 22 13. A.J. Arizmendez 23 14. James Neabauer 24 15. Debbie Davis 25 16. Krisianne Sergeant 26 17. Jeff Harp 27 Defendants 28 1. Kernel Mility 1 2. Richard Carillo 2 3. Phil Taylor 3 4. Chris Rodriguez 4 5. Dave Langella 5 6. Dave Sierra 6 7. James Neabaver 7 8. AJ Armendariz 8 9. Tim Castillo 9 10. Debbie Davis 10 11. Sheila Scales 11 12. Joe Ayala 12 13. Guillermo Garcia 13 14. Cindy Uetz 14 15. Dave Hardin 15 16. Barrett Gettig 16 17. David Harding 17 18. Devin Brown 18 19. Joe Rowland 19 1. The court does not allow undisclosed witnesses to be called for any purpose, including 20 impeachment or rebuttal, unless they meet the following criteria: 21 a. The party offering the witness demonstrates that the witness is for the purpose 22 of rebutting evidence that could not be reasonably anticipated at the pretrial conference, or 23 b. The witness was discovered after the pretrial conference and the proffering 24 party makes the showing required in paragraph B, below. 25 2. Upon the post pretrial discovery of any witness a party wishes to present at trial, the 26 party SHALL promptly inform the court and opposing parties of the existence of the unlisted witnesses 27 so the court may consider whether the witnesses SHALL be permitted to testify at trial. The witnesses 28 will not be permitted unless: 1 a. The witness could not reasonably have been discovered prior to the discovery 2 deadline; 3 b. The court and opposing parties were promptly notified upon discovery of the 4 witness; 5 c. If time permitted, the party proffered the witness for deposition; and 6 d. If time did not permit, a reasonable summary of the witness’s testimony was 7 provided to opposing parties. 8 I. EXHIBITS, SCHEDULES AND SUMMARIES 9 The following is a list of documents or other exhibits that the parties expect to offer at trial. 10 NO EXHIBIT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE ADMITTED 11 UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE 12 MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 281(b)(11). 13 1. For a party to use an undisclosed exhibit for any purpose, they must meet the following 14 criteria: 15 a. The party proffering the exhibit demonstrates that the exhibit is for the purpose 16 of rebutting evidence that could not have been reasonably anticipated, or 17 b. The exhibit was discovered after the issuance of this order and the proffering 18 party makes the showing required in paragraph 2, below. 19 2. Upon the discovery of exhibits after the discovery cutoff, a party SHALL promptly 20 inform the court and opposing parties of the existence of such exhibits so that the court may consider 21 their admissibility at trial. The exhibits will not be received unless the proffering party demonstrates 22 each of the following: 23 a. The exhibits could not reasonably have been discovered earlier; 24 b. The court and the opposing parties were promptly informed of their existence; 25 c. The proffering party forwarded a copy of the exhibits (if physically possible) to 26 the opposing party. If the exhibits may not be copied the proffering party must show that it has made 27 the exhibits reasonably available for inspection by the opposing parties. 28 /// 1 Plaintiff 2 1. Statement to Phil Taylor from David Sierra 3 2. EEOC Charge of Discrimination of Kernel Mility 4 3. Typewritten statement dated 4/10/16 5 4. Witness Statement about incident the week of May 9, 2015 6 5. Email from Castillo to Taylor dated 12/2315 7 6. Witness statement dated 12/22/15 from Barrett Gettig 8 7. Email from Gettig to David Harding dated 6/14/16 9 8. Typewritten note to Debbie Davis from Kernel Mility dated 6/21/16 10 9. Typewritten note to Debbie Davis from Kernel Mility regarding 6/8/16 incident 11 10. Typewritten note dated 5/5/16 from Kernel Mility regarding “Re-occuring Incidence of 12 Harassment” 13 11. Incident Report to Debbie Davis from Kernel Mility dated 6/14/16 14 12. Witness Statement regarding incident on 4/29/16 15 13. Typewritten statement of Kernel Mility regarding safety concerns. 16 14. Kern County Dept of Human Services Allegation of Hostile Work Environment by 17 Kernel Mility dated 5/18/16 18 15. Typewritten note to Debbie Davis dated June 8, 2016 regarding Incident of Continuous 19 Racist Remarks 20 16. Typewritten document dated 5/20/16 regarding Phil Taylor monitoring Plaintiff’s 21 coming to work. 22 17. Typewritten document dated 5/20/16 regarding speaking to Joe Ayala 23 18. Typewritten document dated 5/18/16 concerning greeting by Sheila Scales. 24 19. Typewritten document regarding unit meeting on 4/19/16 25 20. EEOC Response from County of Kern dated 8/16/16 26 21. Typewritten note about incident on 12/21/15 from Kernel Mility 27 22. Typewritten statement regarding unit meeting conducted on 4/10/16 28 23. Typewritten statement regarding unit meeting on 4/19/16 1 24. Typewritten statement regarding incident on 5/10/16 2 25. Handwritten note dated 8/9/16 regarding Joe Ayala 3 26. Report from Kronick Moskovitz, Tiedemann & Girard dated 9/19/16 to Debbie Davis 4 including exhibits 5 27. Email from David Harding to Debbie Davis dated 8/11/16 6 Defendant 7 1. DHS Interoffice Memo from Debbie Davis to Kristi T. Seargeant 16-17-16 8 2. DHS Interoffice Memo from Ralph Wenzinger to Debbie Davis 6-30-16 9 3. DHS Interoffice Memo from Ralph Wenzinger to Debbie Davis 6-16-16 10 4. DHS Interoffice Memo from Ralph Wenzinger to Debbie Davis 6-14-16 11 5. DHS Interoffice Memo from Debbie Davis to Kristi T. Seargeant 6-10-16 12 6. 10/17/16 HR letter from Debbie Davis to Plaintiff; 13 7. DFEH letter to Karen Krause, Notice to Complainant of “Right to Sue with attachments; 14 8. EEOC letter to Karen Krause, Notice of Charge of Discrimination; 15 9. EEOC Right to Sue letter to MILITY; 16 10. DHS letter to Taylor, Notice of Proposed Discipline 17 11. 1/8/16 Performance Evaluation for Christopher Rodriquez; 18 12. 8/16/16 Performance Evaluation for Timothy Castillo, with attachments; 19 13. 6/28/16 Performance Evaluation for Christopher Rodriquez; 20 14. 9/16/16 Investigation Report of Mility’s Allegations; 21 15. 11/23/16 DHS Memo from Davis to Goulart; 22 16. 12/23/16 e-mail from Taylor to Uetz; 23 17. MILITY’s summer 2016 work orders; 24 18. 12/28/15 e-mail from Taylor to Harding with attachments; 25 19. 5/10/16 e-mail from David to MILITY; 26 20. 5/10/16 e-mail from Uetz to Davis; 27 21. 5/10/16 e-mail from Davis to Harding; 28 22. 5/10/16 e-mail from Harding to Davis with attachment; 1 23. 5/10/16 2nd e-mail from Harding to Davis with attachment; 2 24. 5/9/16 e-mail from Harding to Davis with attachment from MILITY 3 25. 6/17/16 memo from Davis to Seargeant with audio files; 4 26. 6/17/16 memo from Davis to Seargeant with interview schedule; 5 27. 6/30/16 memo from Wenzinger to Davis re interview of Arismendez; 6 28. 6/16/16 memo from Wenzinger to Davis re interview of Tim Castillo; 7 29. 6/14/16 memo from Wenzinger to Davis re interview of Jonathon Davis; 8 30. 6/10/16 memo from Wenzinger to Davis re investigative report of Jeff Harp; 9 31. 11/23/16 memo from Davis to Goulart re MILITY’s charge of discrimination; 10 32. 6/17/16 letter from Davis to Seargeant with audio files; 11 33. Various e-mails regarding or concern MILITY and/or his allegation of discrimination; 12 34. E-mails in the e-mail field of MILITY at milityk@kerndhs.com; 13 35. Copy of MILITY’s HR Personnel file; 14 36. Investigative Report of Violence against Ayala by Jeff Harp; 15 37. Investigative Report of Hostile work Environment against MILITY by Jeff Harp; 16 38. Kern County Hostile Work Environment Policy; 17 39 Kern County Workplace Violence Policy with attached forms; 18 40. Statement of Receipt of Kern County Policies by JA; 19 41. Handwritten memo regarding incidents with MILITY, on a pad from “David Janes 20 Company.” 21 On or before March 13, 2020 counsel SHALL meet and confer to discuss any disputes related 22 to the above listed exhibits and to pre-mark and examining each other’s exhibits. Any exhibits not 23 previously disclosed in discovery SHALL be provided via e-mail or overnight delivery so that it is 24 received by March 6, 2020. 25 1. At the exhibit conference, counsel will determine whether there are objections to the 26 admission of each of the exhibits and will prepare separate indexes; one listing joint exhibits, one 27 listing Plaintiffs’ exhibits and one listing Defendant’s exhibits. In advance of the conference, counsel 28 must have a complete set of their proposed exhibits in order to be able to fully discuss whether 1 evidentiary objections exist. Thus, any exhibit not previously provided in discovery SHALL be 2 provided at least five court days in advance of the exhibit conference. 3 2. At the conference, counsel SHALL identify any duplicate exhibits, i.e., any document 4 which both sides desire to introduce into evidence. These exhibits SHALL be marked as a joint exhibit 5 and numbered as directed above. Joint exhibits SHALL be admitted into without further foundation. 6 All Joint exhibits will be pre-marked with numbers preceded by the designation “JT” (e.g. JT/1, 7 JT/2, etc.). Plaintiffs’ exhibits will be pre-marked with numbers beginning with 1 by the designation 8 PX (e.g. PX1, PX2, etc.). Defendant’s exhibits will be pre-marked with numbers beginning with 501 9 preceded by the designation DX (e.g. DX501, DX502, etc.). The parties SHALL number each page of 10 any exhibit exceeding one page in length (e.g. PX1-1, PX1-2, PX1-3, etc.). 11 If originals of exhibits are unavailable, the parties may substitute legible copies. If any 12 document is offered that is not fully legible, the Court may exclude it from evidence. 13 Each joint exhibit binder SHALL contain an index which is placed in the binder before the 14 exhibits. The index SHALL consist of a column for the exhibit number, one for a description of the 15 exhibit and one column entitled “Admitted in Evidence” (as shown in the example below). 16 INDEX OF EXHIBITS 17 ADMITTED EXHIBIT# DESCRIPTION IN EVIDENCE 18 19 3. As to any exhibit which is not a joint exhibit but to which there is no objection to its 20 introduction, the exhibit will likewise be appropriately marked, i.e., as PX1, or as DX501 and will be 21 indexed as such on the index of the offering party. Such exhibits will be admitted upon introduction 22 and motion of the party, without further foundation. 23 4. Each exhibit binder SHALL contain an index which is placed in the binder before the 24 exhibits. Each index SHALL consist of the exhibit number, the description of the exhibit and the three 25 columns as shown in the example below. 26 /// 27 /// 28 /// 1 INDEX OF EXHIBITS 2 ADMITTED OBJECTION OTHER EXHIBIT# DESCRIPTION IN EVIDENCE FOUNDATION OBJECTION 3 4 5. On the index, as to exhibits to which the only objection is a lack of foundation, counsel 5 will place a mark under the column heading entitled “Admissible but for Foundation.” 6 6. On the index, as to exhibits to which there are objections to admissibility that are not 7 based solely on a lack of foundation, counsel will place a mark under the column heading entitled 8 “Other Objections.” 9 After the exhibit conference, Plaintiff and counsel for the defendants SHALL develop four 10 complete, legible sets of exhibits. The parties SHALL deliver three sets of their exhibit binders to the 11 Courtroom Clerk and provide one set to their opponent, no later than 4:00 p.m., on April 24, 2020. 12 Counsel SHALL determine which of them will also provide three sets of the joint exhibits to the 13 Courtroom Clerk. 14 7. The Parties SHALL number each page of any exhibit exceeding one page in length. 15 J. POST-TRIAL EXHIBIT RETENTION 16 Unless they object at the conclusion of the trial, counsel who introduced exhibits at trial 17 SHALL retrieve the original exhibits from the courtroom deputy following the verdict in the case. The 18 parties’ counsel SHALL retain possession of and keep safe all exhibits until final judgment and all 19 appeals are exhausted. 20 K. DISCOVERY DOCUMENTS 21 The following is a list of discovery documents – portions of depositions, answers to 22 interrogatories, and responses to requests for admissions – that the parties expect to offer at trial. 23 NO DISCOVERY DOCUMENT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE 24 ADMITTED UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER 25 SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local 26 Rule 281(b)(12). 27 The parties have not identified any specific discovery document they may use but refer, 28 generally, to such documents. This is insufficient. L.R. 281(12). 1 L. MOTIONS IN LIMINE 2 The parties indicate they wish to file motions in limine without describing what these motions 3 are. This is insufficient. L.R. 281(5). 4 Any party may file motions in limine. The purpose of a motion in limine is to establish in 5 advance of the trial that certain evidence should not be offered at trial. “Although the Federal Rules of 6 Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district 7 court’s inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 40 n. 2 8 (1984); Jonasson v. Lutheran Child and Family Services, 115 F.3d 436, 440 (7th Cir. 1997). The Court 9 will grant a motion in limine, and thereby bar use of the evidence in question, only if the moving party 10 establishes that the evidence clearly is not admissible for any valid purpose. Id. 11 Before filing any motion in limine, counsel SHALL meet and confer to determine whether they 12 can resolve any disputes and avoid filing motions in limine. The conference should be in person but, if 13 this is not possible, it SHALL be telephonic. Written meet-and-confer conferences are unacceptable. 14 Along with their motions in limine, the parties SHALL file a certification detailing the conference 15 such to demonstrate counsel have in good faith met and conferred and attempted to resolve the 16 dispute. Failure to provide the certification may result in the Court refusing to entertain the 17 motion. 18 Any motions in limine must be filed with the Court by March 27, 2020. The motion must 19 clearly identify the nature of the evidence that the moving party seeks to prohibit the other side from 20 offering at trial. Any opposition to the motion must be served on the other party and filed with the 21 Court by April 3, 2020. The Court sets a hearing on the motions in limine on April 13, 2020, at 10:00 22 a.m. Counsel may appear via teleconference by dialing (888) 557-8511 and entering Access Code 23 1652736, provided the Magistrate Judge's Courtroom Deputy Clerk receives a written notice of the 24 intent to appear telephonically no later than five court days before the noticed hearing date. 25 The parties are reminded they may still object to the introduction of evidence during trial. 26 M. FURTHER DISCOVERY OR MOTIONS 27 None. 28 /// 1 N. STIPULATIONS 2 None. 3 O. AMENDMENTS/ DISMISSALS 4 None. 5 P. SETTLEMENT NEGOTIATIONS 6 The parties have had no substantive discussion about settlement. No later than March 9, 2020, 7 the plaintiff SHALL submit to Defendant via fax or e-mail, a written itemization of damages and a 8 meaningful1 settlement demand which includes a brief explanation of why such a settlement is 9 appropriate. Thereafter, no later March 20, 2020, the defendants SHALL respond via fax or e-mail, 10 with an acceptance of the offer or with a meaningful counteroffer, which includes a brief explanation of 11 why such a settlement is appropriate. The parties SHALL continue to exchange counteroffers until 12 it is no longer productive. 13 If all parties wish to engage in a settlement conference, they SHALL immediately file a joint 14 request and propose dates for the conference. 15 Q. AGREED STATEMENT 16 None. 17 R. SEPARATE TRIAL OF ISSUES 18 None. 19 S. APPOINTMENT OF IMPARTIAL EXPERTS 20 None. 21 T. ATTORNEYS’ FEES 22 Each side will seek fees if successful. 23 U. TRIAL DATE/ ESTIMATED LENGTH OF TRIAL 24 A jury trial is set for April 27, 2020 at 8:30 a.m. before the Honorable Jennifer L. Thurston at 25 the United States Courthouse, 510 19th Street, Bakersfield, California. Trial is expected to last five to 26 seven days. 27 28 1 “Meaningful” means the offer is reasonably calculated to settle the case on terms acceptable to the offering party. “Meaningful” does not include an offer which the offering party knows will not be acceptable to the other party. 1 V. TRIAL PREPARATION AND SUBMISSIONS 2 1. Trial Briefs 3 The parties are relieved of their obligation under Local Rule 285 to file trial briefs. If any party 4 wishes to file a trial brief, they must do so in accordance with Local Rule 285 and be filed on or before 5 April 13, 2020. 6 2. Jury Voir Dire 7 The parties SHALL file their proposed voir dire questions, in accordance with Local Rule 8 162.1, on or before April 3, 2020. 9 3. Jury Instructions & Verdict Form 10 The parties SHALL serve, via e-mail or fax, their proposed jury instructions in accordance with 11 Local Rule 163 and their proposed verdict form on one another no later than March 13, 2020. The 12 parties SHALL conduct a conference to address their proposed jury instructions and verdict form no 13 later than March 27, 2019. At the conference, the parties SHALL attempt to reach agreement on jury 14 instructions and verdict form for use at trial. The parties SHALL file all agreed-upon jury instructions 15 and verdict form no later than April 3, 2020 and identify such as the agreed-upon jury instructions and 16 verdict forms. At the same time, the parties SHALL lodge via e-mail a copy of the joint jury 17 instructions and joint verdict form (in Word format) to JLTOrders@caed.uscourts.gov. 18 If and only if, the parties after a genuine, reasonable and good faith effort, cannot agree upon 19 certain specific jury instructions and verdict form, the parties SHALL file their respective proposed 20 (disputed) jury instructions and proposed (disputed) verdict form no later than April 3, 2020 and 21 identify such as the disputed jury instructions and verdict forms. At the same time, the parties SHALL 22 lodge via e-mail, a copy of his/their own (disputed) jury instructions and proposed (disputed) verdict 23 form (in Word format) to JLTOrders@caed.uscourts.gov. 24 In selecting proposed instructions, the parties SHALL use Ninth Circuit Model Civil Jury 25 Instructions or California’s CACI instructions to the extent possible. All jury instructions and verdict 26 forms SHALL indicate the party submitting the instruction or verdict form (i.e., joint, plaintiff’s, 27 defendant’s, etc.), the number of the proposed instruction in sequence, a brief title for the instruction 28 describing the subject matter, the complete text of the instruction, and the legal authority supporting the 1 instruction. Each instruction SHALL be numbered. 2 W. OBJECTIONS TO PRETRIAL ORDER 3 Any party may, within 10 days after the date of service of this order, file and serve written 4 objections to any of the provisions set forth in this order. Such objections SHALL clearly specify the 5 requested modifications, corrections, additions or deletions. 6 X. MISCELLANEOUS MATTERS 7 None. 8 Y. COMPLIANCE 9 Strict compliance with this order and its requirements is mandatory. All parties and their 10 counsel are subject to sanctions, including dismissal or entry of default, for failure to fully comply with 11 this order and its requirements. 12 13 IT IS SO ORDERED. 14 Dated: March 2, 2020 /s/ Jennifer L. Thurston 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28