Mort v. Brennan ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THEODORE W. MORT, ) Case No.: 1:19-cv-0652 JLT SKO ) 12 Plaintiff, ) PRETRIAL ORDER ) 13 v. ) Deadlines: ) 14 LOUIS DEJOY, Postmaster General United ) Motions in Limine Filing: 7/6/2022 States Postal Service, ) Oppositions to Motions in Limine: 7/21/2022 15 ) Hearing on Motions in Limine: 8/4/2022 Defendant. ) Trial Submissions: 8/1/2022 16 ) ) Jury trial: 8/15/2022 at 8:30 a.m., 7-10 days estimate 17 ) 18 Theodore Mort is a former postal inspector with the United States Postal Inspection Service, 19 and asserts he suffered violations of Title VII of the Civil Rights Act of 1964, the Americans with 20 Disabilities Act, and the Rehabilitation Act. 21 On June 3, 2022, the Court conducted a final pretrial conference. Dow Patten appeared as 22 counsel for Plaintiff. Philip Scarborough and Victoria Boesch appeared as counsel for Defendant. 23 Having considered the parties’ objections, the court issues this tentative pretrial order. 24 A. JURISDICTION/ VENUE 25 This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. In 26 addition, the events that gave rise to this action occurred in Fresno, California. Accordingly, venue is 27 proper in the United States District Court for the Eastern District of California. See 28 U.S.C. § 1391. 28 /// 1 B. JURY TRIAL 2 Plaintiff demanded a jury trial in this matter. (Doc. 1 at 22.) The jury trial will consist of eight 3 jurors. 4 C. UNDISPUTED FACTS 5 Plaintiff Mort worked as a Postal Inspector in Fresno, CA. As a Postal Inspector, Mort 6 performed law enforcement duties investigating crimes involving mail. On September 4, 2011, USPIS 7 Team Leader Mack Gadsden (Mort’s direct USPIS supervisor) and Postal Inspector Jennifer Hiland 8 stopped at Mort’s house early in the morning on a Sunday on their way to the Fresno Police 9 Department to gather information regarding a mail-related crime. Gadsden knocked on Mort’s front 10 door. No one answered the door. Gadsden went through a side gate then around to the back of the 11 house and knocked on the back door. There was no response to this knocking. Gadsden and Hiland 12 then proceeded to the Fresno Police Department. The two later returned to Mort’s house and Gadsden 13 again knocked on the door. No one answered the door. Gadsden was carrying his USPIS-issued 14 service weapon and his law enforcement credentials during these events on September 4, 2011. 15 On Tuesday September 6, 2011, Mort and Gadsden met in Stockton in a USPIS office. 16 Following this meeting, Mort took several days of sick leave from work. In mid-September 2011, 17 USPIS placed Mort on administrative leave pending medical documentation regarding his ability to 18 return to work. Mort filed police and OIG reports and a Congressional complaint complaining that 19 Gadsden trespassed on his property on September 4, 2011, and damaged one of Mort’s windows. Mort 20 also sought and obtained an ex parte restraining order against Gadsden based on this asserted trespass 21 and property damage. 22 In mid-October 2011, USPIS placed Mort on administrative leave pending an investigation by 23 the USPIS Office of the Inspector General (USPIS OIG) into allegations of Mort’s misconduct. In 24 November 2011, USPIS OIG agents interviewed Mort as part of this investigation. USPIS OIG agents 25 again interviewed Mort in April 2012. During that interview, Mort referred to a shooting that had 26 recently occurred in Los Angeles Immigration and Customs Enforcement (ICE) in which an ICE agent 27 shot his supervisor. 28 In July 2012, Anthony Galetti submitted a July 2012 request for a Fitness-for-Duty 1 examination of Mort. In early September 2012, a doctor did a medical examination of Mort. In mid- 2 October 2012, Mort underwent two psychological examinations. In mid-December 2012, Mort met 3 with Galetti. Then, in late February 2013, Mort met with Galetti and others for a mediation. 4 In mid-March 2013, USPIS Inspector in Charge Oscar Villanueva terminated Mort’s 5 employment. 6 D. DISPUTED FACTS 7 The parties disagree regarding certain aspects of what happened on September 4, 2011. They 8 disagree regarding the reasons for, propriety of, and circumstances surrounding Gadsden’s conduct and 9 what constituted appropriate responses by Mort and by USPIS to that conduct. They disagree regarding 10 various aspects of Mort’s interactions with Gadsden. They disagree regarding the reasons USPIS placed 11 Mort on administrative leave and the circumstances surrounding and significance of various events and 12 communications that occurred during that leave. They also disagree regarding the reasons for, 13 circumstances surrounding, and significance of Mort’s Fitness-for-Duty examinations. And they 14 disagree regarding various aspects of Mort’s conduct, appropriate responses to that conduct, the reasons 15 why USPIS terminated Mort’s employment, and whether that termination was justified. 16 The parties also dispute: whether Mort was involuntarily suspended from his job duties in 2011 17 as a result of protected activity under Title VII; whether Gadsden’s entry into Mort’s back yard was 18 justified; whether Mort’s backyard was secured; whether Assistant Inspector in Charge Anthony Galetti 19 properly took custody of Mort’s assigned agency equipment on September 16, 2011; the propriety of 20 Mort being placed on involuntary administrative leave in October 2011; the import of and appropriate 21 response to Mort’s references to a shooting that had recently occurred in Los Angeles in which an ICE 22 agent shot his supervisor; and the details surrounding the July 2012 Fitness-for-Duty examination. 23 E. DISPUTED EVIDENTIARY ISSUES/MOTIONS IN LIMINE 24 Both parties intend to file motions in limine regarding the evidence to be used at trial. The 25 purpose of a motion in limine is to establish in advance of the trial that certain evidence should not be 26 offered at trial. “Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, 27 the practice has developed pursuant to the district court’s inherent authority to manage the course of 28 trials.” Luce v. United States, 469 U.S. 38, 40 n. 2 (1984); Jonasson v. Lutheran Child and Family 1 Services, 115 F. 3d 436, 440 (7th Cir. 1997). The Court will grant a motion in limine, and thereby bar 2 use of the evidence in question, only if the moving party establishes that the evidence clearly is not 3 admissible for any valid purpose. Id. The court does not encourage the filing of motions in limine 4 unless they are addressed to issues that can realistically be resolved by the court prior to trial and 5 without reference to the other evidence which will be introduced by the parties at trial. 6 In advance of filing any motion in limine, counsel SHALL meet and confer to determine 7 whether they can resolve any disputes and avoid filing motions in limine. Along with their 8 motions in limine, the parties SHALL file a certification demonstrating counsel have in good 9 faith met and conferred and attempted to resolve the dispute. Failure to provide the 10 certification may result in the Court refusing to entertain the motion. 11 Any motions in limine must be filed with the Court no later than July 6, 2022. The motion 12 must clearly identify the nature of the evidence that the moving party seeks to prohibit the other side 13 from offering at trial. Any opposition to the motion must be served on the other party, and filed with 14 the Court no later than July 21, 2022, with any replies due no later than July 28, 2022. Upon receipt 15 of any opposition briefs, the court will notify the parties if it will hear argument on any motions in 16 limine prior to the first day of trial. A hearing on the motions in limine is set for August 4, 2022. 17 The parties are reminded they may still object to the introduction of evidence during trial. 18 Plaintiff: 19 Plaintiff does not anticipate evidentiary issues other than ordinary motions in limine regarding 20 information not produced in discovery. 21 Defendant: 22 1. To the extent that Plaintiff offers testimony based on inadmissible hearsay, such 23 testimony should be excluded. 24 2. The Postmaster General will object to the appearance of witnesses who have no 25 testimony to offer pertinent to the issues in the case and to the questioning of witnesses regarding 26 irrelevant matters. 27 3. Plaintiff cannot offer at trial evidence that he did not disclose in discovery. 28 4. Plaintiff should not be permitted to introduce evidence of damages for which he has not 1 provided computations as required by Fed. R. Civ. P. 26(a)(1)(A)(iii). 2 5. Plaintiff cannot offer any expert testimony at trial because Plaintiff disclosed no 3 experts. 4 6. Plaintiff should be prohibited from offering testimony for which the witness lacks the 5 requisite personal knowledge to render that testimony admissible. Fed. R. Evid. 602. 6 7. Plaintiff should be prohibited from offering evidence concerning alleged acts by USPIS 7 that are not adverse employment actions. 8 F. SPECIAL FACTUAL INFORMATION 9 None. 10 G. RELIEF SOUGHT 11 Plaintiff 12 Plaintiff seeks monetary damages for lost wages, benefits, and other damages. He asserts the 13 amounts were disclosed in a “detailed demand for settlement.” (Doc 90 at 5.) Plaintiff has also 14 prayed for injunctive relief as well, in the form of return to work. 15 Defendant 16 Defendant contends: “Plaintiff has failed to meet his obligation to identify the specific amounts 17 he intends to seek at trial for each category of monetary damages. Though Fed. R. Civ. P. 18 26(a)(1)(A)(iii) required Plaintiff to provide “a computation of each category of damages claimed” in 19 his initial disclosures at the beginning of discovery, he has nonetheless failed to do so throughout 20 discovery in his disclosures and discovery responses.” (Doc 90 at 5.) Thus, Defendant asserts that 21 “Plaintiff is barred from offering any amounts not disclosed, or any computation not disclosed, at trial 22 or after trial.” (Id., citing Fed. R. Civ. P. 37(c).) 23 H. POINTS OF LAW 24 ANY CAUSES OF ACTION OR AFFIRMATIVE DEFENSES NOT EXPLICITLY 25 ASSERTED IN THE PRETRIAL ORDER UNDER POINTS OF LAW AT THE TIME IT BECOMES 26 FINAL ARE DISMISSED AND DEEMED WAIVED. 27 Plaintiff 28 1. Plaintiff’s Title VII and EEO claims have been fully exhausted through a full EEOC 1 process. 2 2. A nexus exists between discriminatory statements made by Plaintiff's superiors and co- 3 workers and the adverse actions. Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2004). 4 3. “Similarly-situated” comparators need not engage in the exact same conduct, but only 5 conduct of similar gravamen. Vasquez, 349 F.3d at 641. 6 4. “Not me” evidence is not a defense. “Defendant’s similar treatment of a person outside 7 of the protected class, or favorable treatment of others within the protected class, is not a defense. 8 Strickland v. United Parcel Service, 555 F.3d 1224, 1230 (10th Cir. 2009); Pitre v. Western Electric 9 Co., 843 F.2d 1262, 1272 (10th Cir. 1988). This is because discrimination against one employee 10 cannot be remedied by nondiscrimination against another employee in that same group. See Brown v. 11 Henderson , 257 F.3d 246, 252 (2nd Cir. 2001). This is particularly true when the favorable treatment 12 of members of the same class, or unfavorable treatment of members outside of the class occur 13 subsequent to the plaintiff’s termination. Chuang v. Univ. of California Davis, 225 F.3d 1115 (9th Cir. 14 2000); Gonzalez v. Police Dept. of San Jose, 901 F.2d 758 (9th Cir. 1990); Burger v. Litton Industries, 15 1996 WL 421449 (S.D.N.Y. 1996).” Connecticut v. Teal, 457 US 440. 16 Defendant 17 All claims brought in this case are subject to federal law. 18 1. To bring a Title VII or Rehabilitation Act claim in federal district court, plaintiff was 19 required to exhaust administrative remedies, including the requirement that he contact an EEO 20 counselor within 45 days of a claimed adverse action. 42 U.S.C. § 2000e-16(c); 29 C.F.R. §§ 21 1614.105(a)(1), 1614.106; Sommatino v. United States, 255 F.3d 704, 707-10 (9th Cir. 2001); 22 Cherosky v. Henderson, 330 F.3d 1243, 1245-46 (9th Cir. 2003); Leong v. Potter, 347 F.3d 1117, 23 1121-22 (9th Cir. 2003). 24 2. “‘The jurisdictional scope of a Title VII claimant’s court action depends upon the scope 25 of both the EEOC charge and the EEOC investigation.’” Sommatino, 255 F.3d at 707-08 (quoting 26 Paige v. California, 102 F.3d 1035, 1041 (9th Cir. 1996)). Similarly, substantial compliance with the 27 exhaustion requirement is a jurisdictional prerequisite for claim under the Rehabilitation Act. See 28 Leong, 347 F.3d at 1121-22. Accordingly, a plaintiff cannot pursue a Title VII or Rehabilitation Act 1 claim when the administrative charge brought and investigated does not describe the legal theory with 2 sufficient clarity to notify the agency of the claim, even if the plaintiff did administratively exhaust 3 other claims. See, e.g., Ong v. Cleland, 642 F.2d 316, 317-20 (9th Cir. 1981); id. at 320 (“The failure 4 to raise an issue administratively subverts the procedures and policies of Title VII and justifies 5 precluding its presentation in federal court.”). 6 3. A Rehabilitation Act regarded-as disability discrimination claim requires Mort to prove 7 that: (1) USPIS regarded him as having a physical or mental impairment, (2) Mort was a qualified 8 individual, and (3) Mort was terminated and sent for a Fitness for Duty examination because USPIS 9 regarded him as having a physical or mental impairment. See Walton v. U.S. Marshals Serv., 492 F.3d 10 998, 1005 (9th Cir. 2007), superseded by statute on other grounds as stated in, Nunies v. HIE 11 Holdings, Inc., 908 F.3d 428, 434 (9th Cir. 2018); Nunies, 908 F.3d at 434; Ninth Circuit Manual of 12 Model Civil Jury Instructions, Instruction 12.1C (Regarded As Disability—Elements). 13 4. The Rehabilitation Act incorporates the Americans with Disabilities Act (the ADA)’s 14 standards of substantive liability. Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007), 15 superseded by statute on other grounds as stated in, Nunies, 908 F.3d at 4345. 16 5. To meet his burden of proving that he was a qualified individual at the time of the 17 alleged discrimination, Mort must prove that he had the requisite skill, experience, and education and 18 met the other job-related requirements of the position of United States Postal Inspector. Anthony v. 19 Trax Int’l Corp., 955 F.3d 1123, 1128 (9th Cir. 2020). 20 6. If remarks are offered as evidence of discriminatory intent, they must either be those 21 made by the decision-maker himself or plaintiff must show a sufficient nexus between the remarks and 22 the decision-maker’s subsequent action. Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th 23 Cir. 2004). There is not a sufficient nexus between the employee who made a discriminatory 24 statement and the decision-maker’s action unless the employee in question is substantially involved in 25 the employment action. DeHorney v. Bank of America Nat’l Trust & Sav. Ass’n, 879 F.2d 459, 468 26 (9th Cir. 1989). 27 7. The employer need not prove a non-discriminatory intent, and courts “only require that 28 an employer honestly believed its reason for its actions, even if its reason is foolish or trivial or even 1 baseless.” Villiarimo v. Aloha Island Air, Inc. 281 F.3d 1054, 1063 (9th Cir. 2002) (internal quotations 2 and citations omitted). 3 8. An employee’s feelings or subjective beliefs do not qualify as specific and substantial 4 evidence of pretext. Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir. 1986). 5 9. To demonstrate that the plaintiff was treated differently than similarly situated 6 individuals, the plaintiff must be similarly situated to those individuals in all material respects. Moran 7 v. Selig, 447 F.3d 748, 755 (9th Cir. 2006). Employees who have different job responsibilities and 8 duties or who have different supervisors are not similarly situated. Vasquez, 349 F.3d 634, 641-42 & 9 n.17. 10 10. Employees must be similarly situated in “all material respects” to be comparable, not 11 only in their job duties and responsibilities, but also in their conduct. Vasquez, 349 F.3d at 641; 12 Leong, 347 F.3d at 1124. 13 11. If similarly situated employees outside his protected class were treated in the same 14 manner as Plaintiff, his claim fails. Gerdom v. Cont’l Airlines, Inc., 692 F.2d 602, 609 (9th Cir. 1982) 15 (en banc); Snead v. Metro. Prop. & Cas. Inc. Co., 237 F.3d 1080, 1094 (9th Cir. 2001). 16 12. Though the Supreme Court has yet to rule on the question, courts assume that Title VII 17 of the Civil Rights Act prohibits federal employers from retaliating against an employee for engaging 18 in protected activity, such as opposing, complaining of, or seeking remedies for unlawful workplace 19 discrimination. See 42 U.S.C. § 2000e-3(a); White v. General Services Admin., 652 F.2d 913, 916-17 20 (9th Cir. 1981); see also Green v. Brennan, 136 S. Ct. 1769, 1774 n.1 (2016); Gomez-Perez v. Potter, 21 553 U.S. 474, 488 n.4 (2008). 22 13. To prevail on his Title VII retaliation claim, Mort has the burden of proving that: (1) he 23 engaged in a protected activity under Title VII; (2) USPIS subjected him to an adverse employment 24 action; and (3) he was subjected to the adverse employment action because of his protected activity. 25 Westendorf v. W. Coast Contractors of Nevada, Inc., 712 F.3d 417, 422 (9th Cir. 2013); Villiarimo, 281 26 F.3d at 1064; Ninth Circuit Manual of Model Civil Jury Instructions, Instruction 10.8 (Civil Rights— 27 Title VII—Retaliation—Elements and Burden of Proof). 28 14. An employee is not protected by Title VII when he violates legitimate employer rules, 1 knowingly disobeys orders, disrupts the work environment, willfully interferes with the attainment of 2 his employer’s goals, or renders himself unable to fulfill the functions of his employment. Unt v. 3 Aerospace Corp., 765 F.2d 1440, 1446 (9th Cir. 1985); Smith v. Singer Co., 650 F.2d 214, 217 (9th 4 Cir. 1981). 5 15. To establish a causal nexus between the alleged adverse action and the plaintiff’s 6 protected activity, the plaintiff must show that the decision maker who took the allegedly retaliatory 7 action was aware of the plaintiff’s protected activity. Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 8 (9th Cir. 1982). 9 16. To rely on temporal proximity to establish causation for a retaliation claim, the adverse 10 employment action “must be ‘very close’” to and “follow[] on the heels of” the protected activity. 11 Clark County School District v. Breeden, 532 U.S. 268 (2001) (quoting O’Neal v. Ferguson Constr. 12 Co., 237 F.3d 1248, 1253 (10th Cir. 2001) (citing cases holding that three- and four-month delays 13 were too long)); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064-65 (9th Cir. 2002); 14 Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1035 (9th Cir. 2006) (eight-month gap too 15 long); Manatt v. Bank of America, 339 F.3d 792, 802 (9th Cir. 2003) (nine months too long). 16 17. An adverse employment action in a disparate treatment context is one that “constitutes 17 a significant change in employment status, such as hiring, firing, failing to promote, reassignment with 18 significantly different responsibilities, or a decision causing significant change in benefits.” 19 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). “A tangible employment action in most 20 cases inflicts direct economic harm. As a general proposition, only a supervisor, or other person 21 acting with the authority of the company, can cause this sort of injury.” Id. 22 18. An adverse action in the retaliation context is one that a reasonable employee would 23 have found materially adverse, meaning that it “well might have dissuaded a reasonable worker from 24 making or supporting a charge of discrimination.” Burlington Northern v. White, 548 U.S. 53 (2006) 25 (internal quotations and citations omitted). 26 19. Personal animosity is not the equivalent of discrimination and is not proscribed by Title 27 VII. McCollum v. Bolger, 794 F.2d 602, 610 (11th Cir. 1986). 28 20. The after-acquired evidence doctrine precludes “an employee from receiving remedies 1 for wrongful discharge if the employer later discovers evidence of wrongdoing that would have led to 2 the employee’s termination had the employer known of the misconduct.” Belling v. DDP Holdings, 3 Inc., 2013 WL 12140986, at *4 (C.D. Cal. May 30, 2013). 4 21. If an employer shows by a preponderance of the evidence that it would have fired the 5 plaintiff for misconduct that it later discovered, the plaintiff is not entitled to back pay and other 6 remedies after the day that the employer discovered the misconduct. O’Day v. McDonnell Douglas 7 Helicopter Co., 79 F.3d 756, 761, 764 (9th Cir. 1996). In addition, any back pay remedy in such cases 8 must account for any further circumstances that affect the legitimate interests of the parties. See 9 McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 360 (1995). 10 22. Under the doctrine of unclean hands, a party may be denied recovery where the party 11 engaged in “reprehensible conduct in the course of the transaction at issue.” McKennon, 513 U.S. at 12 360. 13 23. The doctrine of unclean hands limits the types of remedies that are available to a 14 plaintiff in an employment discrimination case. See McKennon, 513 U.S. at 361-62. Remedies such 15 as front pay and reinstatement are inappropriate when the doctrine applies. See id. 16 24. Neither Title VII nor the Rehabilitation Act provide for a right to have a jury determine 17 the appropriate amount of back pay, which is an equitable remedy that must be awarded by the district 18 court in its discretion. Lutz v. Glendale Union High School, 403 F.3d 1061, 1069 (9th Cir. 2005). 19 25. The total potential compensatory damages that Mort could recover in this case under 20 Title VII and/or the Rehabilitation Act are limited to $300,000. 42 U.S.C. § 1981a(b)(3). No punitive 21 damages can be recovered from USPIS. 42 U.S.C. § 1981a(b)(1). See also Tuers v. Runyon, 950 F. 22 Supp. 284, 285-86 (E.D. Cal. 1996) (Postal Service immune from punitive damages under Title VII 23 and the Rehabilitation Act). 24 26. A party who fails to disclose damages calculations during discovery is prohibited from 25 offering evidence on those components of damages during trial and from arguing for a specific dollar 26 amount at trial. See Fed. R. Civ. P. 37(c); Maharaj v. Cal. Bank & Trust, 288 F.R.D. 458, 463-64 27 (E.D. Cal. 2013). 28 27. To the extent front pay is awarded, it “is intended to be temporary in nature,” Cassino 1 v. Reichhold Chemicals, Inc., 817 F.2d 1338, 1347 (9th Cir. 1987), and cannot be used as a windfall to 2 the plaintiff. See Glenn-Davis v. City of Oakland, 2008 WL 410239, at *4 (N.D. Cal. Feb. 12, 2008). 3 Front pay periods must be relatively short to avoid making any calculations unduly speculative. See 4 id. at *3 (citing Peyton v. DiMario, 287 F.3d 1121, 1128 (D.C. Cir. 2002)). 5 28. Any back pay or front pay awards must be offset by the amount of other benefits Mort 6 received, such as unemployment or disability benefits. See, e.g., McLean v. Runyon, 222 F.3d 1150, 7 1155 (9th Cir. 2000); see Viveros v. Donahoe, 2012 WL 6021667, at *9 (C.D. Cal. Nov. 30, 2012). 8 29. Settlement communications are not admissible to prove the validity or amount of a 9 disputed claim. Fed. R. Evid. 408. 10 30. Settlement communications provided after the close of discovery do not satisfy a party’s 11 obligation to provide damages calculations in their initial disclosures. See Torres v. Transguard Ins. 12 Co. of Am., Inc., 2015 WL 12592724, at *5 (D. Ariz. July 1, 2015). 13 I. ABANDONED ISSUES 14 In mid-December 2020, the Postmaster General filed a motion to compel an independent 15 medical examination of Mort by a psychiatrist. (Docs. 33, 34.) The parties resolved this motion by a 16 stipulation through which the Postmaster General agreed not to seek a psychological independent 17 medical examination at that time based on Mort’s agreement (1) not to seek damages for any 18 diagnosed mental health condition, (2) not to designate his treating psychologist, Jana Price-Sharps, as 19 an expert witness under Federal Rule of Civil Procedure 26(a)(2), and (3) not to offer testimony from 20 Ms. Price-Sharps at trial under Federal Rule of Evidence 702, 703, or 705. (Docs. 37, 38.) 21 J. WITNESSES 22 1. The following is a list of witnesses that the parties expect to call at trial, including 23 rebuttal and impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS 24 SECTION, MAY BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR UPON A 25 SHOWING THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT “MANIFEST 26 INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 281(b)(10). 27 Plaintiff’s Witnesses 28 1. Plaintiff, Theodore Mort 1 2. Jennifer Hiland 2 3. Anthony Galletti 3 4. Mack Gadsden 4 5. Arceli “Sally” Diaz 5 6. Rafael Nuñez 6 7. Keith D. Silva 7 8. Adam Behnen 8 9. Gordon Thompson 9 10. Robert Musti 10 Defendant’s Witnesses 11 1. Oscar S. Villanueva, contact through counsel 12 2. Anthony Galetti, contact through counsel 13 3. Rafael Nunez, contact through counsel 14 4. Jennifer Hiland, contact through counsel 15 5. Mack Gadsden, contact through counsel 16 6. Adam Behnen, contact through counsel 17 7. Gordon Thompson, contact through counsel 18 8. Martin G. Allen, M.D., contact through counsel 19 9. Neil S. Hibler, Ph.D., contact through counsel 20 10. TIGTA Special Agent Kelly Sopko 21 11. TIGTA Special Agent Shane Gilmore 22 12. United States Postal Inspection Service Records Custodian, contact through 23 counsel 24 2. The court does not allow undisclosed witnesses to be called for any purpose, 25 including impeachment or rebuttal, unless they meet the following criteria: 26 a. The party offering the witness demonstrates that the witness is for the purpose of 27 rebutting evidence that could not be reasonably anticipated at the pretrial 28 conference, or 1 b. The witness was discovered after the pretrial conference and the proffering party 2 makes the showing required in paragraph B, below. 3 3. Upon the post pretrial discovery of any witness a party wishes to present at trial, the party 4 shall promptly inform the court and opposing parties of the existence of the unlisted witnesses so the 5 court may consider whether the witnesses shall be permitted to testify at trial. The witnesses will not be 6 permitted unless: 7 a. The witness could not reasonably have been discovered prior to the discovery cutoff; 8 b. The court and opposing parties were promptly notified upon discovery of the witness; 9 c. If time permitted, the party proffered the witness for deposition; and 10 d. If time did not permit, a reasonable summary of the witness’s testimony was provided 11 to opposing parties. 12 K. EXHIBITS, SCHEDULES AND SUMMARIES 13 NO EXHIBIT, OTHER THAN THOSE LISTED IN THIS ORDER, MAY BE ADMITTED 14 UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE 15 MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 281(b)(11). 16 1. For a party to use an undisclosed exhibit for any purpose, they must meet the 17 following criteria: 18 a. The party proffering the exhibit demonstrates that the exhibit is for the purpose of 19 rebutting evidence that could not have been reasonably anticipated, or 20 b. The exhibit was discovered after the issuance of this order and the proffering party 21 makes the showing required in paragraph 2, below. 22 2. Upon the discovery of exhibits after the discovery cutoff, a party shall promptly inform 23 the court and opposing parties of the existence of such exhibits so that the court may consider their 24 admissibility at trial. The exhibits will not be received unless the proffering party demonstrates: 25 a. The exhibits could not reasonably have been discovered earlier; 26 b. The court and the opposing parties were promptly informed of their existence; and 27 c. The proffering party forwarded a copy of the exhibits (if physically possible) to the 28 opposing party. If the exhibits may not be copied the proffering party must show that 1 it has made the exhibits reasonably available for inspection by the opposing parties. 2 Plaintiff’s Exhibits 3 1. 09/1/11 Email Gadsden to Mort Subject FCD entry of complaints 4 2. 10/05/11 Memorandum of Interview – Jennifer Vincent 5 3. 10/03/11 Memorandum of Interview – Ted Mort 6 4. 09/08/11 Email Darlene Romero to San Francisco Division Subject: Weekly 7 Bulletin 09-09-11 8 5. 09/15/11 Email Darlene Romero to San Francisco Division Subject: Weekly 9 Bulletin 09-16-11 10 6. 10/17/11 Declaration of Anthony Galletti Case No. 11CECG03459, including 11 attachments 12 7. 3/09/12 Memorandum to the Director In the case of Theodore Mort, File # 13 132257821, Author: Louis Toman 14 8. 08/31/12 Email Oscar Villanueva to San Francisco Division, Subject: Stockton 15 Central Valley Team Acting TL Detail. 16 9. 11/14/11 OIG Memorandum of Interview Adam Behnen 17 10. 11/15/11 OIG Memorandum of Interview Jennifer Vincent 18 11. 11/15/11 OIG Memorandum of Interview Mack Gadsden 19 12. 11/15/11 OIG Memorandum of Interview Joshua Knapp 20 13. 11/16/11 OIG Memorandum of Interview Alyson Berg 21 14. 06/06/12 Memorandum to File, Author Anthony Galletti 22 15. 09/02/12 Email Sally Diaz to Ted Mort Subject: Re: fitness for duty exams 23 16. 04/18/12 OIGAdministrative Warning: Kalkines 24 17. 10/31/12 Fresno Police Department Summary Incident Report No. 12310502 25 18. 10/05/11 Memorandum of Interview Mack Gadsden 26 19. 10/05/11 Memorandum of Interview Jacob Gohlson 27 20. 01/26/12 OIG Memorandum of Interview Arceli S. Diaz 28 21. 09/23/11 FMLA Packet Case# 103000204258 1 22. 09/05/12 letter Devin Nunez to Plaintiff with attachment 2 23. 04/05/13 Slater Moffat letter to Plaintiff, Subject: Damages for Wrongful 3 Termination with attachments 4 24. 08/15/03 Notice of Disapproved Claim # 067-62-0928 HA 5 25. 09/12/11 Receipt San Joaquin Glass 6 26. 02/26/16 Email Keith Silva to Rho, Nunez, Rickher, McKeown subject FW: 7 Baumgart Report, with attachments 8 27. 01/24/14 Letter Galletti to Office of Workers Compensation Programs 9 Defendant’s Exhibits 10 1. Mort Complaint to OIG Hotline, September 6, 2011 11 2. Mort Email dated September 16, 2011, Subject “RE: Admin Leave” 12 3. September 16, 2011 Behnen Letter to Mort re Placement on Administrative 13 Leave 14 4. September 22, 2011 Behnen Letter to Mort re medical documentation 15 5. October 13, 2011 Behnen Letter to Mort re Placement on Administrative Leave 16 6. September 16, 2011 Mort Memo of Interview of Behnen 17 7. Request for Orders to Stop Harassment dated October 4, 2011 18 8. Court Order Granting Temporary Restraining Order dated October 5, 2011 19 9. Mort Police Report September 20, 2011 20 10. Mort Communication to Congressman Devin Nunes 21 11. Mort Police Report September 27, 2011 22 12. April 14, 2012 Kalkines Warning signed by Mort 23 13. October 8, 2012 Mort email re The Stupid in the USPS/USPIS 24 14. October 10, 2012 Mort email re FW: The Stupid in the USPS/USPIS 25 15. October 13, 2012 Price-Sharps Email re Fwd: The Stupid in the USPS/USPIS 26 16. Postal Inspector Position Description 27 17. Notification of Alleged Employee Misconduct dated October 7, 2011 28 18. Behnen Notes re Ted Mort 1 19. October 21, 2011 Nunez Investigative Memorandum and Exhibits re 2 Investigation into alleged Gadsden misconduct 3 20. September 27, 2012 Villanueva Letters to Mort re Fitness for Duty Examination 4 21. Request for Fitness for Duty Examination July 6, 2012 5 22. Galetti Email to Mort August 31, 2012 Fitness for Duty 6 23. Galetti Email to Mort October 5, 2012 re FFD in Washington DC 7 24. Galetti Notes re October 5, 2012 Conversation with Mort 8 25. Mort October 5, 2012 email re FFD in Washington DC 9 26. September 16, 2011 email re Admin Leave 10 27. Gadsden Memo to File September 6, 2011 11 28. Gadsden Memo to File re September 4, 2011 12 29. September 4, 2011 Gadsden Email 13 30. September 7, 2011 Vincent Memo re Fresno Duty Call 9/4/11 14 31. September 27, 2011 OIG Referral of Gadsden Allegation 15 32. September 29, 2011 Behnen Email to Nunez 16 33. September 29, 2011 Nunez Email to Behnen 17 34. October 5, 2012 Mort Email re Fitness for Duty Order 18 35. Galetti Memo to File re June 5, 2012 meeting with Mort 19 36. July 5, 2012 Inquiry re Mort Firearms 20 37. November 28, 2012 Notice of Proposed Adverse Action – Removal 21 38. March 14, 2013 Letter of Decision – Adverse Action Removal 22 39. March 16, 2013 Price-Sharps Email to Galetti 23 40. November 16, 2011 Memorandum re Interview of Theodore W. Mort 24 41. November 16, 2011 Mort Acknowledgement of Rights 25 42. April 18, 2012 Memorandum re Interview of Theodore W. Mort 26 43. Report of Martin G. Allen, M.D. re Theodore W. Mort 27 44. Dr. Martin G. Allen, M.D. CV 28 45. Report of Neil S. Hibler, Ph.D., ABPP re Psychological Fitness for Duty 1 Examination of U.S. Postal Inspector Theodore W. Mort 2 46. Dr. Neil S. Hibler, Ph.D., ABPP CV 3 47. Fitness for Duty Examination Documents 4 48. Office of Inspector General United States Postal Service Report of Investigation 5 – Theodore W. Mort, Case # 12UIHQ0005GC18IAD 6 49. Report of Investigation Theodore W. Mort, Agency Case No. 66-000-0001-12 7 50. Report of Investigation Theodore W. Mort, Agency Case No. 66-000-0011-13 8 51. Treasury Inspector General for Tax Administration Last Chance Settlement 9 Agreement for Theodore Mort 10 52. Treasury Inspector General for Tax Administration Memorandum for Theodore 11 W. Mort re Administrative Leave 12 53. Treasury Inspector General for Tax Administration Memorandum for Theodore 13 W. Mort re Proposed Removal from Federal Service 14 54. Treasury Inspector General for Tax Administration Report of Investigation re 15 Theodore W. Mort Case No. 54-0407-0001-1 16 55. Treasury Inspector General for Tax Administration Report of Investigation re 17 Theodore W. Mort Case No. 54-0610-0015-1 18 56. Transcript of Proceedings before Administrative Judge Katherine J. Kruse, 19 EEOC No. 480-2013-00261X, August 16, 2016 20 57. Transcript of Proceedings before Administrative Judge Katherine J. Kruse, 21 EEOC No. 480-2013-00261X, August 17, 2016 22 58. Transcript of Proceedings before Administrative Judge Katherine J. Kruse, 23 EEOC No. 480-2013-00261X, August 18, 2016 24 59. EEO Complaint file, Mort v. Brennan, Agency Case No. 66-000-0001-12 25 60. Deposition of Theodore Mort Volume 1, Transcript and Video 26 61. Deposition of Theodore Mort Volume 2, Transcript and Video 27 62. Deposition of Theodore Mort Volume 3, Transcript and Video 28 63. Deposition of Mack Gadsden Transcript 1 64. Deposition of Anthony Galetti Transcript 2 65. Deposition of Francisco Garcia Transcript 3 66. Deposition of Rafael Nunez Transcript 4 67. Deposition of Gordon Thompson Transcript 5 68. Deposition of Oscar Villanueva Transcript 6 On or before July 11, 2022 counsel SHALL meet and confer to discuss any disputes related to 7 the above listed exhibits and to pre-mark and examine each other’s exhibits. Any exhibits not 8 previously disclosed in discovery SHALL be provided via e-mail or overnight delivery so that it is 9 received by July 5, 2022. 10 1. At the exhibit conference, counsel will determine whether there are objections to the 11 admission of each of the exhibits and will prepare separate indexes; one listing joint exhibits, one 12 listing Plaintiff’s exhibits and one listing Defendant’s exhibits. In advance of the conference, counsel 13 must have a complete set of their proposed exhibits in order to be able to fully discuss whether 14 evidentiary objections exist. 15 2. At the conference, counsel shall identify any duplicate exhibits, i.e., any document 16 which both sides desire to introduce into evidence. These exhibits SHALL be marked as a joint exhibit 17 and numbered as directed above. Joint exhibits SHALL be admitted into without further foundation. 18 All joint exhibits will be pre-marked with numbers preceded by the designation “JT” (e.g. JT/1, 19 JT/2, etc.). Plaintiff’s exhibits will be pre-marked with numbers beginning with 1 by the designation 20 PX (e.g. PX1, PX2, etc.). Defendant’s exhibits will be pre-marked with numbers beginning with 501 21 preceded by the designation DX (e.g. DX501, DX502, etc.). The parties SHALL number each page of 22 any exhibit exceeding one page in length (e.g. PX1-1, PX1-2, PX1-3, etc.). 23 If originals of exhibits are unavailable, the parties may substitute legible copies. If any 24 document is offered that is not fully legible, the Court may exclude it from evidence. 25 Each joint exhibit binder shall contain an index which is placed in the binder before the 26 exhibits. The index shall consist of a column for the exhibit number, one for a description of the 27 exhibit and one column entitled “Admitted in Evidence” (as shown in the example below). 28 /// 1 INDEX OF JOINT EXHIBITS 2 EXHIBIT# DESCRIPTION ADMITTED IN EVIDENCE 3 4 5 3. As to any exhibit which is not a joint exhibit but to which there is no objection to its 6 introduction, the exhibit will likewise be appropriately marked, i.e., as PX1, or as DX501 and will be 7 indexed as such on the index of the offering party. Such exhibits will be admitted upon introduction 8 and motion of the party, without further foundation. 9 4. Each exhibit binder shall contain an index which is placed in the binder before the 10 exhibits. Each index shall consist of the exhibit number, the description of the exhibit and the three 11 columns as shown in the example below. 12 INDEX OF EXHIBITS 13 EXHIBIT# DESCRIPTION ADMITTED OBJECTION OBJECTION IN FOUNDATION OTHER 14 EVIDENCE 15 16 17 5. On the index, as to exhibits to which the only objection is a lack of foundation, counsel 18 will place a mark under the column heading entitled “Objection Foundation.” 19 6. On the index, as to exhibits to which there are objections to admissibility that are not 20 based solely on a lack of foundation, counsel will place a mark under the column heading entitled 21 “Other Objections.” 22 7. As to each exhibit which is not objected to in the index, it shall be marked and received 23 into evidence and will require no further foundation. 24 After the exhibit conference, Plaintiff and counsel for the defendants SHALL develop four 25 complete, legible sets of exhibits. The parties SHALL deliver three sets of their exhibit binders to the 26 Courtroom Clerk and provide one set to their opponent, no later than 4:00 p.m., on August 11, 2022. 27 Counsel SHALL determine which of them will also provide three sets of the joint exhibits to the 28 Courtroom Clerk. 1 8. The Parties SHALL number each page of any exhibit exceeding one page in length. 2 L. POST-TRIAL EXHIBIT RETENTION 3 Counsel who introduced exhibits at trial SHALL retrieve the original exhibits from the 4 courtroom deputy following the verdict in the case. The parties’ counsel SHALL retain possession of 5 and keep safe all exhibits until final judgment and all appeals are exhausted. 6 M. DISCOVERY DOCUMENTS 7 The following is a list of discovery documents – portions of depositions, answers to 8 interrogatories, and responses to requests for admissions – that the parties expect to offer at trial. 9 NO DISCOVERY DOCUMENT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE 10 ADMITTED UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER 11 SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local 12 Rule 281(b)(12). 13 Plaintiff’s Documents 14 Counsel for Plaintiff did not identify any discovery documents. (See generally Doc. 91.) 15 Defendant’s Documents 16 Defendant intends to present designated deposition testimony by video. 17 1. Deposition of Theodore Mort, Volume I 18 2. Deposition of Theodore Mort, Volume II 19 3. Deposition of Theodore Mort, Volume III 20 N. FURTHER DISCOVERY OR MOTIONS 21 No further discovery is sought by either party. 22 O. STIPULATIONS 23 None. 24 P. AMENDMENTS/ DISMISSALS 25 None. 26 Q. SETTLEMENT NEGOTIATIONS 27 The parties have a settlement conference with Magistrate Judge Sheila K. Oberto scheduled for 28 June 23, 2022. 1 R. AGREED STATEMENT 2 None. 3 S. SEPARATE TRIAL OF ISSUES 4 None. 5 T. APPOINTMENT OF IMPARTIAL EXPERTS 6 None requested. 7 U. ATTORNEYS’ FEES 8 An award of attorneys’ fees may be sought, as appropriate, as a post-trial motion. 9 V. TRIAL DATE/ ESTIMATED LENGTH OF TRIAL 10 Jury trial is set for August 15, 2022, at 8:30 a.m. before the Honorable Jennifer L. Thurston at 11 the Robert E. Coyle United States Courthouse, 2500 Tulare Street, Fresno, California. Trial is expected 12 to last 7-10 days. 13 W. TRIAL PREPARATION AND SUBMISSIONS 14 1. Trial Briefs 15 The parties are relieved of their obligation under Local Rule 285 to file trial briefs. If any party 16 wishes to file a trial brief, they must do so in accordance with Local Rule 285 and be filed on or before 17 August 1, 2022. 18 2. Jury Voir Dire 19 The parties are required to file their proposed voir dire questions, in accordance with Local 20 Rule 162.1, on or before August 1, 2022. 21 3. Jury Instructions & Verdict Form 22 The parties shall serve, via e-mail or fax, their proposed jury instructions in accordance with 23 Local Rule 163 and their proposed verdict form on one another no later than July 1, 2022. The parties 24 shall conduct a conference to address their proposed jury instructions and verdict form no later than 25 July 11, 2022. At the conference, the parties SHALL attempt to reach agreement on jury instructions 26 and verdict form for use at trial. The parties shall file all agreed-upon jury instructions and verdict 27 form no later than August 1, 2022 and identify such as the agreed-upon jury instructions and verdict 28 forms. At the same time, the parties SHALL lodge via e-mail a copy of the joint jury instructions and 1 joint verdict form (in Word format) to JLTOrders@caed.uscourts.gov. 2 If and only if, the parties after genuine, reasonable and good faith effort cannot agree upon 3 certain specific jury instructions and verdict form, the parties shall file their respective proposed 4 (disputed) jury instructions and proposed (disputed) verdict form no later than August 1, 2022 and 5 identify such as the disputed jury instructions and verdict forms. At the same time, the parties 6 SHALL lodge via e-mail, a copy of his/their own (disputed) jury instructions and proposed (disputed) 7 verdict form (in Word format) to JLTOrders@caed.uscourts.gov. 8 In selecting proposed instructions, the parties shall use Ninth Circuit Model Civil Jury 9 Instructions or California’s CACI instructions to the extent possible. All jury instructions and verdict 10 forms shall indicate the party submitting the instruction or verdict form (i.e., joint, plaintiff’s, 11 defendant’s, etc.), the number of the proposed instruction in sequence, a brief title for the instruction 12 describing the subject matter, the complete text of the instruction, and the legal authority supporting 13 the instruction. Each instruction SHALL be numbered. 14 X. OBJECTIONS TO PRETRIAL ORDER 15 Any party may, within 14 days after the date of service of this order, file and serve written 16 objections to any of the provisions set forth in this order. Each party is also granted 7 days thereafter to 17 respond to the other party’s objections. Such objections shall clearly specify the requested 18 modifications, corrections, additions or deletions. If no objections are filed, the order will become 19 final without further order of this court. 20 The parties are reminded that pursuant to Rule 16(e) of the Federal Rules of Civil Procedure 21 and Local Rule 283 of this court, this order shall control the subsequent course of this action and shall 22 be modified only to prevent manifest injustice. 23 Y. MISCELLANEOUS MATTERS 24 As the parties are aware, the courthouses of the Eastern District of California were closed to 25 the public for over a year due to the COVID-19 pandemic. Both Fresno and Kern Counties—the two 26 largest counties within the Fresno Division of the Eastern District—are considered to be a “very high 27 risk” for the unvaccinated, and infection numbers have increased steadily in recent weeks. 28 Consequently, although public health precautions are constantly evolving, unless otherwise ordered by 1 || the Court, everyone in the courtroom SHALL be fully vaccinated and wear a N95 or equivalent mask 2 || which covers the nose and mouth. The Court will provide witnesses a face shield to use while 3 || testifying. 4 The Court intends to seat a fully vaccinated jury unless the parties file a formal objectio 5 || within 14 days. 6 || Z. COMPLIANCE 7 Strict compliance with this order and its requirements is mandatory. All parties and their 8 || counsel are subject to sanctions, including dismissal or entry of default, for failure to fully comply 9 || with this order and its requirements. 10 11 ||IT IS SO ORDERED. 12 Dated: _ June 21, 2022 Charis [Tourn 13 TED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23