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, ) AMENDED 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 The Court has considered the objections of the defendant (Doc. 98). They are GRANTED in 19 PART. The Court amends the pretrial order to reflect this.1 20 Theodore Mort is a former postal inspector with the United States Postal Inspection Service, 21 and asserts he suffered violations of Title VII of the Civil Rights Act of 1964, the Americans with 22 Disabilities Act, and the Rehabilitation Act. 23 On June 3, 2022, the Court conducted a final pretrial conference. Dow Patten appeared as 24 counsel for Plaintiff. Philip Scarborough and Victoria Boesch appeared as counsel for Defendant. 25 Having considered the parties’ objections, the court issues this tentative pretrial order. 26 A. JURISDICTION/ VENUE 27 28 1 This does not constitute any indication as to how the Court will rule on the plaintiff’s motion in limine regarding precluding or limiting the testimony of experts (Doc. 111). 1 This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. In 2 addition, the events that gave rise to this action occurred in Fresno, California. Accordingly, venue is 3 proper in the United States District Court for the Eastern District of California. See 28 U.S.C. § 1391. 4 B. JURY TRIAL 5 Plaintiff demanded a jury trial in this matter. (Doc. 1 at 22.) The jury trial will consist of eight 6 jurors. 7 C. UNDISPUTED FACTS 8 Plaintiff Mort worked as a Postal Inspector in Fresno, CA. As a Postal Inspector, Mort 9 performed law enforcement duties investigating crimes involving mail. On September 4, 2011, USPIS 10 Team Leader Mack Gadsden (Mort’s direct USPIS supervisor) and Postal Inspector Jennifer Hiland 11 stopped at Mort’s house early in the morning on a Sunday on their way to the Fresno Police 12 Department to gather information regarding a mail-related crime. Gadsden knocked on Mort’s front 13 door. No one answered the door. Gadsden went through a side gate then around to the back of the 14 house and knocked on the back door. There was no response to this knocking. Gadsden and Hiland 15 then proceeded to the Fresno Police Department. The two later returned to Mort’s house and Gadsden 16 again knocked on the door. No one answered the door. Gadsden was carrying his USPIS-issued 17 service weapon and his law enforcement credentials during these events on September 4, 2011. 18 On Tuesday September 6, 2011, Mort and Gadsden met in Stockton in a USPIS office. 19 Following this meeting, Mort took several days of sick leave from work. In mid-September 2011, 20 USPIS placed Mort on administrative leave pending medical documentation regarding his ability to 21 return to work. Mort filed police and OIG reports and a Congressional complaint complaining that 22 Gadsden trespassed on his property on September 4, 2011, and damaged one of Mort’s windows. Mort 23 also sought and obtained an ex parte restraining order against Gadsden based on this asserted trespass 24 and property damage. 25 In mid-October 2011, USPIS placed Mort on administrative leave pending an investigation by 26 the USPIS Office of the Inspector General (USPIS OIG) into allegations of Mort’s misconduct. In 27 November 2011, USPIS OIG agents interviewed Mort as part of this investigation. USPIS OIG agents 28 again interviewed Mort in April 2012. During that interview, Mort referred to a shooting that had 1 recently occurred in Los Angeles Immigration and Customs Enforcement (ICE) in which an ICE agent 2 shot his supervisor. 3 In July 2012, Anthony Galetti submitted a July 2012 request for a Fitness-for-Duty 4 examination of Mort. In early September 2012, a doctor did a medical examination of Mort. In mid- 5 October 2012, Mort underwent two psychological examinations. In mid-December 2012, Mort met 6 with Galetti. Then, in late February 2013, Mort met with Galetti and others for a mediation. 7 In mid-March 2013, USPIS Inspector in Charge Oscar Villanueva terminated Mort’s 8 employment. 9 D. DISPUTED FACTS 10 The parties disagree regarding certain aspects of what happened on September 4, 2011. They 11 disagree regarding the reasons for, propriety of, and circumstances surrounding Gadsden’s conduct and 12 what constituted appropriate responses by Mort and by USPIS to that conduct. They disagree regarding 13 various aspects of Mort’s interactions with Gadsden. They disagree regarding the reasons USPIS placed 14 Mort on administrative leave and the circumstances surrounding and significance of various events and 15 communications that occurred during that leave. They also disagree regarding the reasons for, 16 circumstances surrounding, and significance of Mort’s Fitness-for-Duty examinations. And they 17 disagree regarding various aspects of Mort’s conduct, appropriate responses to that conduct, the reasons 18 why USPIS terminated Mort’s employment, and whether that termination was justified. 19 The parties also dispute: whether Mort was involuntarily suspended from his job duties in 2011 20 as a result of protected activity under Title VII; whether Gadsden’s entry into Mort’s back yard was 21 justified; whether Mort’s backyard was secured; whether Assistant Inspector in Charge Anthony Galetti 22 properly took custody of Mort’s assigned agency equipment on September 16, 2011; the propriety of 23 Mort being placed on involuntary administrative leave in October 2011; the import of and appropriate 24 response to Mort’s references to a shooting that had recently occurred in Los Angeles in which an ICE 25 agent shot his supervisor; and the details surrounding the July 2012 Fitness-for-Duty examination. 26 E. DISPUTED EVIDENTIARY ISSUES/MOTIONS IN LIMINE 27 Both parties intend to file motions in limine regarding the evidence to be used at trial. The 28 purpose of a motion in limine is to establish in advance of the trial that certain evidence should not be 1 offered at trial. “Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, 2 the practice has developed pursuant to the district court’s inherent authority to manage the course of 3 trials.” Luce v. United States, 469 U.S. 38, 40 n. 2 (1984); Jonasson v. Lutheran Child and Family 4 Services, 115 F. 3d 436, 440 (7th Cir. 1997). The Court will grant a motion in limine, and thereby bar 5 use of the evidence in question, only if the moving party establishes that the evidence clearly is not 6 admissible for any valid purpose. Id. The court does not encourage the filing of motions in limine 7 unless they are addressed to issues that can realistically be resolved by the court prior to trial and 8 without reference to the other evidence which will be introduced by the parties at trial. 9 In advance of filing any motion in limine, counsel SHALL meet and confer to determine 10 whether they can resolve any disputes and avoid filing motions in limine. Along with their 11 motions in limine, the parties SHALL file a certification demonstrating counsel have in good 12 faith met and conferred and attempted to resolve the dispute. Failure to provide the 13 certification may result in the Court refusing to entertain the motion. 14 Any motions in limine must be filed with the Court no later than July 6, 2022. The motion 15 must clearly identify the nature of the evidence that the moving party seeks to prohibit the other side 16 from offering at trial. Any opposition to the motion must be served on the other party, and filed with 17 the Court no later than July 21, 2022, with any replies due no later than July 28, 2022. Upon receipt 18 of any opposition briefs, the court will notify the parties if it will hear argument on any motions in 19 limine prior to the first day of trial. A hearing on the motions in limine is set for August 4, 2022. 20 The parties are reminded they may still object to the introduction of evidence during trial. 21 Plaintiff: 22 Plaintiff does not anticipate evidentiary issues other than ordinary motions in limine regarding 23 information not produced in discovery. 24 Defendant: 25 1. To the extent that Plaintiff offers testimony based on inadmissible hearsay, such 26 testimony should be excluded. 27 2. The Postmaster General will object to the appearance of witnesses who have no 28 testimony to offer pertinent to the issues in the case and to the questioning of witnesses regarding 1 irrelevant matters. 2 3. Plaintiff cannot offer at trial evidence that he did not disclose in discovery. 3 4. Plaintiff should not be permitted to introduce evidence of damages for which he has not 4 provided computations as required by Fed. R. Civ. P. 26(a)(1)(A)(iii). 5 5. Plaintiff cannot offer any expert testimony at trial because Plaintiff disclosed no 6 experts. 7 6. Plaintiff should be prohibited from offering testimony for which the witness lacks the 8 requisite personal knowledge to render that testimony admissible. Fed. R. Evid. 602. 9 7. Plaintiff should be prohibited from offering evidence concerning alleged acts by USPIS 10 that are not adverse employment actions. 11 F. SPECIAL FACTUAL INFORMATION 12 None. 13 G. RELIEF SOUGHT 14 Plaintiff 15 Plaintiff seeks monetary damages for lost wages, benefits, and other damages. He asserts the 16 amounts were disclosed in a “detailed demand for settlement.” (Doc 90 at 5.) Plaintiff has also 17 prayed for injunctive relief as well, in the form of return to work. 18 Defendant 19 Defendant contends: “Plaintiff has failed to meet his obligation to identify the specific amounts 20 he intends to seek at trial for each category of monetary damages. Though Fed. R. Civ. P. 21 26(a)(1)(A)(iii) required Plaintiff to provide “a computation of each category of damages claimed” in 22 his initial disclosures at the beginning of discovery, he has nonetheless failed to do so throughout 23 discovery in his disclosures and discovery responses.” (Doc 90 at 5.) Thus, Defendant asserts that 24 “Plaintiff is barred from offering any amounts not disclosed, or any computation not disclosed, at trial 25 or after trial.” (Id., citing Fed. R. Civ. P. 37(c).) 26 H. POINTS OF LAW 27 ANY CAUSES OF ACTION OR AFFIRMATIVE DEFENSES NOT EXPLICITLY 28 ASSERTED IN THE PRETRIAL ORDER UNDER POINTS OF LAW AT THE TIME IT BECOMES 1 FINAL ARE DISMISSED AND DEEMED WAIVED. 2 Plaintiff 3 1. Plaintiff’s Title VII and EEO claims have been fully exhausted through a full EEOC 4 process. 5 2. A nexus exists between discriminatory statements made by Plaintiff's superiors and co- 6 workers and the adverse actions. Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2004). 7 3. “Similarly-situated” comparators need not engage in the exact same conduct, but only 8 conduct of similar gravamen. Vasquez, 349 F.3d at 641. 9 4. “Not me” evidence is not a defense. “Defendant’s similar treatment of a person outside 10 of the protected class, or favorable treatment of others within the protected class, is not a defense. 11 Strickland v. United Parcel Service, 555 F.3d 1224, 1230 (10th Cir. 2009); Pitre v. Western Electric 12 Co., 843 F.2d 1262, 1272 (10th Cir. 1988). This is because discrimination against one employee 13 cannot be remedied by nondiscrimination against another employee in that same group. See Brown v. 14 Henderson , 257 F.3d 246, 252 (2nd Cir. 2001). This is particularly true when the favorable treatment 15 of members of the same class, or unfavorable treatment of members outside of the class occur 16 subsequent to the plaintiff’s termination. Chuang v. Univ. of California Davis, 225 F.3d 1115 (9th Cir. 17 2000); Gonzalez v. Police Dept. of San Jose, 901 F.2d 758 (9th Cir. 1990); Burger v. Litton Industries, 18 1996 WL 421449 (S.D.N.Y. 1996).” Connecticut v. Teal, 457 US 440. 19 Defendant 20 All claims brought in this case are subject to federal law. 21 1. To bring a Title VII or Rehabilitation Act claim in federal district court, plaintiff was 22 required to exhaust administrative remedies, including the requirement that he contact an EEO 23 counselor within 45 days of a claimed adverse action. 42 U.S.C. § 2000e-16(c); 29 C.F.R. §§ 24 1614.105(a)(1), 1614.106; Sommatino v. United States, 255 F.3d 704, 707-10 (9th Cir. 2001); 25 Cherosky v. Henderson, 330 F.3d 1243, 1245-46 (9th Cir. 2003); Leong v. Potter, 347 F.3d 1117, 26 1121-22 (9th Cir. 2003). 27 2. “‘The jurisdictional scope of a Title VII claimant’s court action depends upon the scope 28 of both the EEOC charge and the EEOC investigation.’” Sommatino, 255 F.3d at 707-08 (quoting 1 Paige v. California, 102 F.3d 1035, 1041 (9th Cir. 1996)). Similarly, substantial compliance with the 2 exhaustion requirement is a jurisdictional prerequisite for claim under the Rehabilitation Act. See 3 Leong, 347 F.3d at 1121-22. Accordingly, a plaintiff cannot pursue a Title VII or Rehabilitation Act 4 claim when the administrative charge brought and investigated does not describe the legal theory with 5 sufficient clarity to notify the agency of the claim, even if the plaintiff did administratively exhaust 6 other claims. See, e.g., Ong v. Cleland, 642 F.2d 316, 317-20 (9th Cir. 1981); id. at 320 (“The failure 7 to raise an issue administratively subverts the procedures and policies of Title VII and justifies 8 precluding its presentation in federal court.”). 9 3. A Rehabilitation Act regarded-as disability discrimination claim requires Mort to prove 10 that: (1) USPIS regarded him as having a physical or mental impairment, (2) Mort was a qualified 11 individual, and (3) Mort was terminated and sent for a Fitness for Duty examination because USPIS 12 regarded him as having a physical or mental impairment. See Walton v. U.S. Marshals Serv., 492 F.3d 13 998, 1005 (9th Cir. 2007), superseded by statute on other grounds as stated in, Nunies v. HIE 14 Holdings, Inc., 908 F.3d 428, 434 (9th Cir. 2018); Nunies, 908 F.3d at 434; Ninth Circuit Manual of 15 Model Civil Jury Instructions, Instruction 12.1C (Regarded As Disability—Elements). 16 4. The Rehabilitation Act incorporates the Americans with Disabilities Act (the ADA)’s 17 standards of substantive liability. Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007), 18 superseded by statute on other grounds as stated in, Nunies, 908 F.3d at 4345. 19 5. To meet his burden of proving that he was a qualified individual at the time of the 20 alleged discrimination, Mort must prove that he had the requisite skill, experience, and education and 21 met the other job-related requirements of the position of United States Postal Inspector. Anthony v. 22 Trax Int’l Corp., 955 F.3d 1123, 1128 (9th Cir. 2020). 23 6. If remarks are offered as evidence of discriminatory intent, they must either be those 24 made by the decision-maker himself or plaintiff must show a sufficient nexus between the remarks and 25 the decision-maker’s subsequent action. Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th 26 Cir. 2004). There is not a sufficient nexus between the employee who made a discriminatory 27 statement and the decision-maker’s action unless the employee in question is substantially involved in 28 the employment action. DeHorney v. Bank of America Nat’l Trust & Sav. Ass’n, 879 F.2d 459, 468 1 (9th Cir. 1989). 2 7. The employer need not prove a non-discriminatory intent, and courts “only require that 3 an employer honestly believed its reason for its actions, even if its reason is foolish or trivial or even 4 baseless.” Villiarimo v. Aloha Island Air, Inc. 281 F.3d 1054, 1063 (9th Cir. 2002) (internal quotations 5 and citations omitted). 6 8. An employee’s feelings or subjective beliefs do not qualify as specific and substantial 7 evidence of pretext. Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir. 1986). 8 9. To demonstrate that the plaintiff was treated differently than similarly situated 9 individuals, the plaintiff must be similarly situated to those individuals in all material respects. Moran 10 v. Selig, 447 F.3d 748, 755 (9th Cir. 2006). Employees who have different job responsibilities and 11 duties or who have different supervisors are not similarly situated. Vasquez, 349 F.3d 634, 641-42 & 12 n.17. 13 10. Employees must be similarly situated in “all material respects” to be comparable, not 14 only in their job duties and responsibilities, but also in their conduct. Vasquez, 349 F.3d at 641; 15 Leong, 347 F.3d at 1124. 16 11. If similarly situated employees outside his protected class were treated in the same 17 manner as Plaintiff, his claim fails. Gerdom v. Cont’l Airlines, Inc., 692 F.2d 602, 609 (9th Cir. 1982) 18 (en banc); Snead v. Metro. Prop. & Cas. Inc. Co., 237 F.3d 1080, 1094 (9th Cir. 2001). 19 12. Though the Supreme Court has yet to rule on the question, courts assume that Title VII 20 of the Civil Rights Act prohibits federal employers from retaliating against an employee for engaging 21 in protected activity, such as opposing, complaining of, or seeking remedies for unlawful workplace 22 discrimination. See 42 U.S.C. § 2000e-3(a); White v. General Services Admin., 652 F.2d 913, 916-17 23 (9th Cir. 1981); see also Green v. Brennan, 136 S. Ct. 1769, 1774 n.1 (2016); Gomez-Perez v. Potter, 24 553 U.S. 474, 488 n.4 (2008). 25 13. To prevail on his Title VII retaliation claim, Mort has the burden of proving that: (1) he 26 engaged in a protected activity under Title VII; (2) USPIS subjected him to an adverse employment 27 action; and (3) he was subjected to the adverse employment action because of his protected activity. 28 Westendorf v. W. Coast Contractors of Nevada, Inc., 712 F.3d 417, 422 (9th Cir. 2013); Villiarimo, 281 1 F.3d at 1064; Ninth Circuit Manual of Model Civil Jury Instructions, Instruction 10.8 (Civil Rights— 2 Title VII—Retaliation—Elements and Burden of Proof). 3 14. An employee is not protected by Title VII when he violates legitimate employer rules, 4 knowingly disobeys orders, disrupts the work environment, willfully interferes with the attainment of 5 his employer’s goals, or renders himself unable to fulfill the functions of his employment. Unt v. 6 Aerospace Corp., 765 F.2d 1440, 1446 (9th Cir. 1985); Smith v. Singer Co., 650 F.2d 214, 217 (9th 7 Cir. 1981). 8 15. To establish a causal nexus between the alleged adverse action and the plaintiff’s 9 protected activity, the plaintiff must show that the decision maker who took the allegedly retaliatory 10 action was aware of the plaintiff’s protected activity. Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 11 (9th Cir. 1982). 12 16. To rely on temporal proximity to establish causation for a retaliation claim, the adverse 13 employment action “must be ‘very close’” to and “follow[] on the heels of” the protected activity. 14 Clark County School District v. Breeden, 532 U.S. 268 (2001) (quoting O’Neal v. Ferguson Constr. 15 Co., 237 F.3d 1248, 1253 (10th Cir. 2001) (citing cases holding that three- and four-month delays 16 were too long)); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064-65 (9th Cir. 2002); 17 Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1035 (9th Cir. 2006) (eight-month gap too 18 long); Manatt v. Bank of America, 339 F.3d 792, 802 (9th Cir. 2003) (nine months too long). 19 17. An adverse employment action in a disparate treatment context is one that “constitutes 20 a significant change in employment status, such as hiring, firing, failing to promote, reassignment with 21 significantly different responsibilities, or a decision causing significant change in benefits.” 22 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). “A tangible employment action in most 23 cases inflicts direct economic harm. As a general proposition, only a supervisor, or other person 24 acting with the authority of the company, can cause this sort of injury.” Id. 25 18. An adverse action in the retaliation context is one that a reasonable employee would 26 have found materially adverse, meaning that it “well might have dissuaded a reasonable worker from 27 making or supporting a charge of discrimination.” Burlington Northern v. White, 548 U.S. 53 (2006) 28 (internal quotations and citations omitted). 1 19. Personal animosity is not the equivalent of discrimination and is not proscribed by Title 2 VII. McCollum v. Bolger, 794 F.2d 602, 610 (11th Cir. 1986). 3 20. The after-acquired evidence doctrine precludes “an employee from receiving remedies 4 for wrongful discharge if the employer later discovers evidence of wrongdoing that would have led to 5 the employee’s termination had the employer known of the misconduct.” Belling v. DDP Holdings, 6 Inc., 2013 WL 12140986, at *4 (C.D. Cal. May 30, 2013). 7 21. If an employer shows by a preponderance of the evidence that it would have fired the 8 plaintiff for misconduct that it later discovered, the plaintiff is not entitled to back pay and other 9 remedies after the day that the employer discovered the misconduct. O’Day v. McDonnell Douglas 10 Helicopter Co., 79 F.3d 756, 761, 764 (9th Cir. 1996). In addition, any back pay remedy in such cases 11 must account for any further circumstances that affect the legitimate interests of the parties. See 12 McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 360 (1995). 13 22. Under the doctrine of unclean hands, a party may be denied recovery where the party 14 engaged in “reprehensible conduct in the course of the transaction at issue.” McKennon, 513 U.S. at 15 360. 16 23. The doctrine of unclean hands limits the types of remedies that are available to a 17 plaintiff in an employment discrimination case. See McKennon, 513 U.S. at 361-62. Remedies such 18 as front pay and reinstatement are inappropriate when the doctrine applies. See id. 19 24. Neither Title VII nor the Rehabilitation Act provide for a right to have a jury determine 20 the appropriate amount of back pay, which is an equitable remedy that must be awarded by the district 21 court in its discretion. Lutz v. Glendale Union High School, 403 F.3d 1061, 1069 (9th Cir. 2005). 22 25. The total potential compensatory damages that Mort could recover in this case under 23 Title VII and/or the Rehabilitation Act are limited to $300,000. 42 U.S.C. § 1981a(b)(3). No punitive 24 damages can be recovered from USPIS. 42 U.S.C. § 1981a(b)(1). See also Tuers v. Runyon, 950 F. 25 Supp. 284, 285-86 (E.D. Cal. 1996) (Postal Service immune from punitive damages under Title VII 26 and the Rehabilitation Act). 27 26. A party who fails to disclose damages calculations during discovery is prohibited from 28 offering evidence on those components of damages during trial and from arguing for a specific dollar 1 amount at trial. See Fed. R. Civ. P. 37(c); Maharaj v. Cal. Bank & Trust, 288 F.R.D. 458, 463-64 2 (E.D. Cal. 2013). 3 27. To the extent front pay is awarded, it “is intended to be temporary in nature,” Cassino 4 v. Reichhold Chemicals, Inc., 817 F.2d 1338, 1347 (9th Cir. 1987), and cannot be used as a windfall to 5 the plaintiff. See Glenn-Davis v. City of Oakland, 2008 WL 410239, at *4 (N.D. Cal. Feb. 12, 2008). 6 Front pay periods must be relatively short to avoid making any calculations unduly speculative. See 7 id. at *3 (citing Peyton v. DiMario, 287 F.3d 1121, 1128 (D.C. Cir. 2002)). 8 28. Any back pay or front pay awards must be offset by the amount of other benefits Mort 9 received, such as unemployment or disability benefits. See, e.g., McLean v. Runyon, 222 F.3d 1150, 10 1155 (9th Cir. 2000); see Viveros v. Donahoe, 2012 WL 6021667, at *9 (C.D. Cal. Nov. 30, 2012). 11 29. Settlement communications are not admissible to prove the validity or amount of a 12 disputed claim. Fed. R. Evid. 408. 13 30. Settlement communications provided after the close of discovery do not satisfy a party’s 14 obligation to provide damages calculations in their initial disclosures. See Torres v. Transguard Ins. 15 Co. of Am., Inc., 2015 WL 12592724, at *5 (D. Ariz. July 1, 2015). 16 I. ABANDONED ISSUES 17 In mid-December 2020, the Postmaster General filed a motion to compel an independent 18 medical examination of Mort by a psychiatrist. (Docs. 33, 34.) The parties resolved this motion by a 19 stipulation through which the Postmaster General agreed not to seek a psychological independent 20 medical examination at that time based on Mort’s agreement (1) not to seek damages for any 21 diagnosed mental health condition, (2) not to designate his treating psychologist, Jana Price-Sharps, as 22 an expert witness under Federal Rule of Civil Procedure 26(a)(2), and (3) not to offer testimony from 23 Ms. Price-Sharps at trial under Federal Rule of Evidence 702, 703, or 705. (Docs. 37, 38.) 24 J. WITNESSES 25 1. The following is a list of witnesses that the parties expect to call at trial, including 26 rebuttal and impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS 27 SECTION, MAY BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR UPON A 28 SHOWING THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT “MANIFEST 1 INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 281(b)(10). 2 Plaintiff’s Witnesses 3 1. Plaintiff, Theodore Mort 4 2. Jennifer Hiland 5 3. Anthony Galletti 6 4. Mack Gadsden 7 5. Arceli “Sally” Diaz 8 6. Rafael Nuñez 9 7. Keith D. Silva 10 8. Adam Behnen 11 9. Gordon Thompson 12 10. Robert Musti 13 Defendant’s Witnesses 14 1. Oscar S. Villanueva, contact through counsel 15 2. Anthony Galetti, contact through counsel 16 3. Rafael Nunez, contact through counsel 17 4. Jennifer Hiland, contact through counsel 18 5. Mack Gadsden, contact through counsel 19 6. Adam Behnen, contact through counsel 20 7. Gordon Thompson, contact through counsel 21 8. Martin G. Allen, M.D., contact through counsel 22 9. Neil S. Hibler, Ph.D., contact through counsel 23 10. TIGTA Special Agent Kelly Sopko 24 11. TIGTA Special Agent Shane Gilmore 25 12. United States Postal Inspection Service Records Custodian, contact through 26 counsel 27 2. The court does not allow undisclosed witnesses to be called for any purpose, 28 including impeachment or rebuttal, unless they meet the following criteria: 1 a. The party offering the witness demonstrates that the witness is for the purpose of 2 rebutting evidence that could not be reasonably anticipated at the pretrial 3 conference, or 4 b. The witness was discovered after the pretrial conference and the proffering party 5 makes the showing required in paragraph B, below. 6 3. Upon the post pretrial discovery of any witness a party wishes to present at trial, the party 7 shall promptly inform the court and opposing parties of the existence of the unlisted witnesses so the 8 court may consider whether the witnesses shall be permitted to testify at trial. The witnesses will not be 9 permitted unless: 10 a. The witness could not reasonably have been discovered prior to the discovery cutoff; 11 b. The court and opposing parties were promptly notified upon discovery of the witness; 12 c. If time permitted, the party proffered the witness for deposition; and 13 d. If time did not permit, a reasonable summary of the witness’s testimony was provided 14 to opposing parties. 15 K. EXHIBITS, SCHEDULES AND SUMMARIES 16 NO EXHIBIT, OTHER THAN THOSE LISTED IN THIS ORDER, MAY BE ADMITTED 17 UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE 18 MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 281(b)(11). 19 1. For a party to use an undisclosed exhibit for any purpose, they must meet the 20 following criteria: 21 a. The party proffering the exhibit demonstrates that the exhibit is for the purpose of 22 rebutting evidence that could not have been reasonably anticipated, or 23 b. The exhibit was discovered after the issuance of this order and the proffering party 24 makes the showing required in paragraph 2, below. 25 2. Upon the discovery of exhibits after the discovery cutoff, a party shall promptly inform 26 the court and opposing parties of the existence of such exhibits so that the court may consider their 27 admissibility at trial. The exhibits will not be received unless the proffering party demonstrates: 28 a. The exhibits could not reasonably have been discovered earlier; 1 b. The court and the opposing parties were promptly informed of their existence; and 2 c. The proffering party forwarded a copy of the exhibits (if physically possible) to the 3 opposing party. If the exhibits may not be copied the proffering party must show that 4 it has made the exhibits reasonably available for inspection by the opposing parties. 5 Plaintiff’s Exhibits 6 1. 09/1/11 Email Gadsden to Mort Subject FCD entry of complaints 7 2. 10/05/11 Memorandum of Interview – Jennifer Vincent 8 3. 10/03/11 Memorandum of Interview – Ted Mort 9 4. 09/08/11 Email Darlene Romero to San Francisco Division Subject: Weekly 10 Bulletin 09-09-11 11 5. 09/15/11 Email Darlene Romero to San Francisco Division Subject: Weekly 12 Bulletin 09-16-11 13 6. 10/17/11 Declaration of Anthony Galletti Case No. 11CECG03459, including 14 attachments 15 7. 3/09/12 Memorandum to the Director In the case of Theodore Mort, File # 16 132257821, Author: Louis Toman 17 8. 08/31/12 Email Oscar Villanueva to San Francisco Division, Subject: Stockton 18 Central Valley Team Acting TL Detail. 19 9. 11/14/11 OIG Memorandum of Interview Adam Behnen 20 10. 11/15/11 OIG Memorandum of Interview Jennifer Vincent 21 11. 11/15/11 OIG Memorandum of Interview Mack Gadsden 22 12. 11/15/11 OIG Memorandum of Interview Joshua Knapp 23 13. 11/16/11 OIG Memorandum of Interview Alyson Berg 24 14. 06/06/12 Memorandum to File, Author Anthony Galletti 25 15. 09/02/12 Email Sally Diaz to Ted Mort Subject: Re: fitness for duty exams 26 16. 04/18/12 OIGAdministrative Warning: Kalkines 27 17. 10/31/12 Fresno Police Department Summary Incident Report No. 12310502 28 18. 10/05/11 Memorandum of Interview Mack Gadsden 1 19. 10/05/11 Memorandum of Interview Jacob Gohlson 2 20. 01/26/12 OIG Memorandum of Interview Arceli S. Diaz 3 21. 09/23/11 FMLA Packet Case# 103000204258 4 22. 09/05/12 letter Devin Nunez to Plaintiff with attachment 5 23. 04/05/13 Slater Moffat letter to Plaintiff, Subject: Damages for Wrongful 6 Termination with attachments 7 24. 08/15/03 Notice of Disapproved Claim # 067-62-0928 HA 8 25. 09/12/11 Receipt San Joaquin Glass 9 26. 02/26/16 Email Keith Silva to Rho, Nunez, Rickher, McKeown subject FW: 10 Baumgart Report, with attachments 11 27. 01/24/14 Letter Galletti to Office of Workers Compensation Programs 12 Defendant’s Exhibits 13 1. Mort Complaint to OIG Hotline, September 6, 2011 14 2. Mort Email dated September 16, 2011, Subject “RE: Admin Leave” 15 3. September 16, 2011 Behnen Letter to Mort re Placement on Administrative 16 Leave 17 4. September 22, 2011 Behnen Letter to Mort re medical documentation 18 5. October 13, 2011 Behnen Letter to Mort re Placement on Administrative Leave 19 6. September 16, 2011 Mort Memo of Interview of Behnen 20 7. Request for Orders to Stop Harassment dated October 4, 2011 21 8. Court Order Granting Temporary Restraining Order dated October 5, 2011 22 9. Mort Police Report September 20, 2011 23 10. Mort Communication to Congressman Devin Nunes 24 11. Mort Police Report September 27, 2011 25 12. April 14, 2012 Kalkines Warning signed by Mort 26 13. October 8, 2012 Mort email re The Stupid in the USPS/USPIS 27 14. October 10, 2012 Mort email re FW: The Stupid in the USPS/USPIS 28 15. October 13, 2012 Price-Sharps Email re Fwd: The Stupid in the USPS/USPIS 1 16. Postal Inspector Position Description 2 17. Notification of Alleged Employee Misconduct dated October 7, 2011 3 18. Behnen Notes re Ted Mort 4 19. October 21, 2011 Nunez Investigative Memorandum and Exhibits re 5 Investigation into alleged Gadsden misconduct 6 20. September 27, 2012 Villanueva Letters to Mort re Fitness for Duty Examination 7 21. Request for Fitness for Duty Examination July 6, 2012 8 22. Galetti Email to Mort August 31, 2012 Fitness for Duty 9 23. Galetti Email to Mort October 5, 2012 re FFD in Washington DC 10 24. Galetti Notes re October 5, 2012 Conversation with Mort 11 25. Mort October 5, 2012 email re FFD in Washington DC 12 26. September 16, 2011 email re Admin Leave 13 27. Gadsden Memo to File September 6, 2011 14 28. Gadsden Memo to File re September 4, 2011 15 29. September 4, 2011 Gadsden Email 16 30. September 7, 2011 Vincent Memo re Fresno Duty Call 9/4/11 17 31. September 27, 2011 OIG Referral of Gadsden Allegation 18 32. September 29, 2011 Behnen Email to Nunez 19 33. September 29, 2011 Nunez Email to Behnen 20 34. October 5, 2012 Mort Email re Fitness for Duty Order 21 35. Galetti Memo to File re June 5, 2012 meeting with Mort 22 36. July 5, 2012 Inquiry re Mort Firearms 23 37. November 28, 2012 Notice of Proposed Adverse Action – Removal 24 38. March 14, 2013 Letter of Decision – Adverse Action Removal 25 39. March 16, 2013 Price-Sharps Email to Galetti 26 40. November 16, 2011 Memorandum re Interview of Theodore W. Mort 27 41. November 16, 2011 Mort Acknowledgement of Rights 28 42. April 18, 2012 Memorandum re Interview of Theodore W. Mort 1 43. Report of Martin G. Allen, M.D. re Theodore W. Mort 2 44. Dr. Martin G. Allen, M.D. CV 3 45. Report of Neil S. Hibler, Ph.D., ABPP re Psychological Fitness for Duty 4 Examination of U.S. Postal Inspector Theodore W. Mort 5 46. Dr. Neil S. Hibler, Ph.D., ABPP CV 6 47. Fitness for Duty Examination Documents 7 48. Office of Inspector General United States Postal Service Report of Investigation 8 – Theodore W. Mort, Case # 12UIHQ0005GC18IAD 9 49. Report of Investigation Theodore W. Mort, Agency Case No. 66-000-0001-12 10 50. Report of Investigation Theodore W. Mort, Agency Case No. 66-000-0011-13 11 51. Treasury Inspector General for Tax Administration Last Chance Settlement 12 Agreement for Theodore Mort 13 52. Treasury Inspector General for Tax Administration Memorandum for Theodore 14 W. Mort re Administrative Leave 15 53. Treasury Inspector General for Tax Administration Memorandum for Theodore 16 W. Mort re Proposed Removal from Federal Service 17 54. Treasury Inspector General for Tax Administration Report of Investigation re 18 Theodore W. Mort Case No. 54-0407-0001-1 19 55. Treasury Inspector General for Tax Administration Report of Investigation re 20 Theodore W. Mort Case No. 54-0610-0015-1 21 56. Transcript of Proceedings before Administrative Judge Katherine J. Kruse, 22 EEOC No. 480-2013-00261X, August 16, 2016 23 57. Transcript of Proceedings before Administrative Judge Katherine J. Kruse, 24 EEOC No. 480-2013-00261X, August 17, 2016 25 58. Transcript of Proceedings before Administrative Judge Katherine J. Kruse, 26 EEOC No. 480-2013-00261X, August 18, 2016 27 59. EEO Complaint file, Mort v. Brennan, Agency Case No. 66-000-0001-12 28 60. Deposition of Theodore Mort Volume 1, Transcript and Video 1 61. Deposition of Theodore Mort Volume 2, Transcript and Video 2 62. Deposition of Theodore Mort Volume 3, Transcript and Video 3 63. Deposition of Mack Gadsden Transcript 4 64. Deposition of Anthony Galetti Transcript 5 65. Deposition of Francisco Garcia Transcript 6 66. Deposition of Rafael Nunez Transcript 7 67. Deposition of Gordon Thompson Transcript 8 68. Deposition of Oscar Villanueva Transcript 9 On or before July 11, 2022 counsel SHALL meet and confer to discuss any disputes related to 10 the above listed exhibits and to pre-mark and examine each other’s exhibits. Any exhibits not 11 previously disclosed in discovery SHALL be provided via e-mail or overnight delivery so that it is 12 received by July 5, 2022. 13 1. At the exhibit conference, counsel will determine whether there are objections to the 14 admission of each of the exhibits and will prepare separate indexes; one listing joint exhibits, one 15 listing Plaintiff’s exhibits and one listing Defendant’s exhibits. In advance of the conference, counsel 16 must have a complete set of their proposed exhibits in order to be able to fully discuss whether 17 evidentiary objections exist. 18 2. At the conference, counsel shall identify any duplicate exhibits, i.e., any document 19 which both sides desire to introduce into evidence. These exhibits SHALL be marked as a joint exhibit 20 and numbered as directed above. Joint exhibits SHALL be admitted into without further foundation. 21 All joint exhibits will be pre-marked with numbers preceded by the designation “JT” (e.g. JT/1, 22 JT/2, etc.). Plaintiff’s exhibits will be pre-marked with numbers beginning with 1 by the designation 23 PX (e.g. PX1, PX2, etc.). Defendant’s exhibits will be pre-marked with numbers beginning with 501 24 preceded by the designation DX (e.g. DX501, DX502, etc.). The parties SHALL number each page of 25 any exhibit exceeding one page in length (e.g. PX1-1, PX1-2, PX1-3, etc.). 26 If originals of exhibits are unavailable, the parties may substitute legible copies. If any 27 document is offered that is not fully legible, the Court may exclude it from evidence. 28 Each joint exhibit binder shall contain an index which is placed in the binder before the 1 exhibits. The index shall consist of a column for the exhibit number, one for a description of the 2 exhibit and one column entitled “Admitted in Evidence” (as shown in the example below). 3 INDEX OF JOINT EXHIBITS 4 EXHIBIT# DESCRIPTION ADMITTED IN EVIDENCE 5 6 7 3. As to any exhibit which is not a joint exhibit but to which there is no objection to its 8 introduction, the exhibit will likewise be appropriately marked, i.e., as PX1, or as DX501 and will be 9 indexed as such on the index of the offering party. Such exhibits will be admitted upon introduction 10 and motion of the party, without further foundation. 11 4. Each exhibit binder shall contain an index which is placed in the binder before the 12 exhibits. Each index shall consist of the exhibit number, the description of the exhibit and the three 13 columns as shown in the example below. 14 INDEX OF EXHIBITS 15 EXHIBIT# DESCRIPTION ADMITTED OBJECTION OBJECTION IN FOUNDATION OTHER 16 EVIDENCE 17 18 19 5. On the index, as to exhibits to which the only objection is a lack of foundation, counsel 20 will place a mark under the column heading entitled “Objection Foundation.” 21 6. On the index, as to exhibits to which there are objections to admissibility that are not 22 based solely on a lack of foundation, counsel will place a mark under the column heading entitled 23 “Other Objections.” 24 7. As to each exhibit which is not objected to in the index, it shall be marked and received 25 into evidence and will require no further foundation. 26 After the exhibit conference, Plaintiff and counsel for the defendants SHALL develop four 27 complete, legible sets of exhibits. The parties SHALL deliver three sets of their exhibit binders to the 28 Courtroom Clerk and provide one set to their opponent, no later than 4:00 p.m., on August 11, 2022. 1 Counsel SHALL determine which of them will also provide three sets of the joint exhibits to the 2 Courtroom Clerk. 3 8. The Parties SHALL number each page of any exhibit exceeding one page in length. 4 L. POST-TRIAL EXHIBIT RETENTION 5 Counsel who introduced exhibits at trial SHALL retrieve the original exhibits from the 6 courtroom deputy following the verdict in the case. The parties’ counsel SHALL retain possession of 7 and keep safe all exhibits until final judgment and all appeals are exhausted. 8 M. DISCOVERY DOCUMENTS 9 The following is a list of discovery documents – portions of depositions, answers to 10 interrogatories, and responses to requests for admissions – that the parties expect to offer at trial. 11 NO DISCOVERY DOCUMENT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE 12 ADMITTED UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER 13 SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local 14 Rule 281(b)(12). 15 Plaintiff’s Documents 16 Counsel for Plaintiff did not identify any discovery documents. (See generally Doc. 91.) 17 Defendant’s Documents 18 Defendant intends to present designated deposition testimony by video. 19 1. Deposition of Theodore Mort, Volume I 20 2. Deposition of Theodore Mort, Volume II 21 3. Deposition of Theodore Mort, Volume III 22 N. FURTHER DISCOVERY OR MOTIONS 23 No further discovery is sought by either party. 24 O. STIPULATIONS 25 None. 26 /// 27 P. AMENDMENTS/ DISMISSALS 28 None. 1 Q. SETTLEMENT NEGOTIATIONS 2 The parties have a settlement conference with Magistrate Judge Sheila K. Oberto scheduled for 3 June 23, 2022. 4 R. AGREED STATEMENT 5 None. 6 S. SEPARATE TRIAL OF ISSUES 7 None. 8 T. APPOINTMENT OF IMPARTIAL EXPERTS 9 None requested. 10 U. ATTORNEYS’ FEES 11 An award of attorneys’ fees may be sought, as appropriate, as a post-trial motion. 12 V. TRIAL DATE/ ESTIMATED LENGTH OF TRIAL 13 Jury trial is set for August 15, 2022, at 8:30 a.m. before the Honorable Jennifer L. Thurston at 14 the Robert E. Coyle United States Courthouse, 2500 Tulare Street, Fresno, California. Trial is expected 15 to last 7-10 days. 16 W. TRIAL PREPARATION AND SUBMISSIONS 17 1. Trial Briefs 18 The parties are relieved of their obligation under Local Rule 285 to file trial briefs. If any party 19 wishes to file a trial brief, they must do so in accordance with Local Rule 285 and be filed on or before 20 August 1, 2022. 21 2. Jury Voir Dire 22 The parties are required to file their proposed voir dire questions, in accordance with Local 23 Rule 162.1, on or before August 1, 2022. 24 3. Jury Instructions & Verdict Form 25 The parties shall serve, via e-mail or fax, their proposed jury instructions in accordance with 26 Local Rule 163 and their proposed verdict form on one another no later than July 1, 2022. The parties 27 shall conduct a conference to address their proposed jury instructions and verdict form no later than 28 July 11, 2022. At the conference, the parties SHALL attempt to reach agreement on jury instructions 1 and verdict form for use at trial. The parties shall file all agreed-upon jury instructions and verdict 2 form no later than August 1, 2022 and identify such as the agreed-upon jury instructions and verdict 3 forms. At the same time, the parties SHALL lodge via e-mail a copy of the joint jury instructions and 4 joint verdict form (in Word format) to JLTOrders@caed.uscourts.gov. 5 If and only if, the parties after genuine, reasonable and good faith effort cannot agree upon 6 certain specific jury instructions and verdict form, the parties shall file their respective proposed 7 (disputed) jury instructions and proposed (disputed) verdict form no later than August 1, 2022 and 8 identify such as the disputed jury instructions and verdict forms. At the same time, the parties 9 SHALL lodge via e-mail, a copy of his/their own (disputed) jury instructions and proposed (disputed) 10 verdict form (in Word format) to JLTOrders@caed.uscourts.gov. 11 In selecting proposed instructions, the parties shall use Ninth Circuit Model Civil Jury 12 Instructions or California’s CACI instructions to the extent possible. All jury instructions and verdict 13 forms shall indicate the party submitting the instruction or verdict form (i.e., joint, plaintiff’s, 14 defendant’s, etc.), the number of the proposed instruction in sequence, a brief title for the instruction 15 describing the subject matter, the complete text of the instruction, and the legal authority supporting 16 the instruction. Each instruction SHALL be numbered. 17 X. OBJECTIONS TO PRETRIAL ORDER 18 Any party may, within 14 days after the date of service of this order, file and serve written 19 objections to any of the provisions set forth in this order. Each party is also granted 7 days thereafter to 20 respond to the other party’s objections. Such objections shall clearly specify the requested 21 modifications, corrections, additions or deletions. If no objections are filed, the order will become 22 final without further order of this court. 23 The parties are reminded that pursuant to Rule 16(e) of the Federal Rules of Civil Procedure 24 and Local Rule 283 of this court, this order shall control the subsequent course of this action and shall 25 be modified only to prevent manifest injustice. 26 /// 27 Y. MISCELLANEOUS MATTERS 28 A. As the parties are aware, the courthouses of the Eastern District of California were 1 closed to the public for over a year due to the COVID-19 pandemic. Both Fresno and Kern Counties— 2 the two largest counties within the Fresno Division of the Eastern District—are considered to be a 3 “very high risk” for the unvaccinated, and infection numbers have increased steadily in recent weeks. 4 Consequently, although public health precautions are constantly evolving, unless otherwise ordered by 5 the Court, everyone in the courtroom SHALL be fully vaccinated and wear a N95 or equivalent mask, 6 which covers the nose and mouth. The Court will provide witnesses a face shield to use while 7 testifying. 8 Because there have been no objections, the Court intends to seat a fully vaccinated jury. 9 B. To the extent that Dr. Allen is permitted to testify, it will occur via video transmission. 10 C. Not less than 30 days before trial commences, plaintiff’s counsel will provide to 11 defense counsel a list of federal employees who plaintiff wishes to call and the date on which plaintiff 12 intends to call each to testify, with Defendant then to arrange for federal employee witnesses to be 13 present subject to meeting and conferring about any witness scheduling conflicts. 14 D. Not less than 10 days before trial, plaintiff’s counsel will provide to Defendant’s 15 counsel the anticipated order of witnesses. 16 E. Not less than five days before trial, Defendant will provide its anticipated order of 17 witnesses to plaintiff. 18 F. The issues of back pay and front pay will be determined by the Court, as necessary. If 19 relevant, the Court will consider after-acquired evidence in making this determination. However, 20 factual disputes related to the after-acquired evidence, whether the defendant would have fired the 21 defendant and had it known of the after-acquired evidence and when it would have fired the plaintiff 22 based upon the after-acquired evidence are questions for the jury. 23 /// 24 /// 25 /// 26 /// 27 Z. COMPLIANCE 28 Strict compliance with this order and its requirements is mandatory. All parties and their 1 || counsel are subject to sanctions, including dismissal or entry of default, for failure to fully comply 2 || with this order and its requirements. 3 4 IT IS SO ORDERED. Dated: _ July 7, 2022 Cerin | Tower 6 TED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24