Pierce v. East Bay Municipal Utility District ( 2023 )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAJI PIERCE, et al., Case No. 21-cv-04325-AGT Plaintiffs, ORDER ON MOTIONS IN LIMINE v. Re: Dkt. Nos. 143–152 EAST BAY MUNICIPAL UTILITY DISTRICT, et al., Defendants. The Court issues these rulings on the parties’ motions in limine. A. Plaintiffs’ Motions in Limine MIL No. 1: The Court denies Saji Pierce’s motion to exclude all evidence of her repro- ductive health. Defendants “intend only to make limited use” of this evidence, dkt. 146 at 9, and the evidence may be relevant to Pierce’s demand for emotional-distress damages. See Smith for J.L. v. Los Angeles Unified Sch. Dist., No. 16-CV-2358-SS, 2018 WL 6137133, at *2 (C.D. Cal. Feb. 13, 2018) (“A party may seek to challenge a claim for emotional distress damages by offering evidence of other stressors in a plaintiff’s life.”). Pierce hasn’t persuaded the Court that the probative value of this evidence will be substantially outweighed by the risk of unfair prej- udice, delay, or confusion of the issues. As for Pierce’s procedural argument, the Court isn’t convinced that defendants improp- erly obtained Pierce’s medical records. Defendants subpoenaed Kaiser for the records, and Pierce didn’t ask the Court to quash any part of that subpoena. Nor did defendants breach the parties’ stipulated agreement, under which defendants didn’t waive their right “to seek medical records from additional providers that [were] later identified through discovery as having po- tentially relevant information to the claims or defenses.” Dkt. 146 at 64 ¶ 8. MIL No. 2: The Court denies as moot plaintiffs’ motion to preclude Dr. Minkin from testifying. Defendants have agreed not to call Dr. Minkin as a witness. See Dkt. 148 at 8. MIL No. 3: The Court denies plaintiffs’ motion to exclude “any reference, evidence, questions or testimony regarding [plaintiffs’] involvement, participation, or engagement with publicity about this case.” Dkt. 149 at 2. As defendants correctly note, if plaintiffs “make state- ments at trial that are inconsistent with statements they made to the news media,” the latter statements “would be proper impeachment evidence.” Id. at 6. At this point, the Court isn’t convinced that the probative value of this potential impeachment evidence will be substantially outweighed by the risk of unfair prejudice, delay, or confusion of the issues. MIL No. 4: The Court denies without prejudice plaintiffs’ motion to exclude Doug Lin- ney and John Coleman from testifying. Defendants “do not presently intend to call either wit- ness at trial.” Dkt. 151 at 5. If defendants change course, plaintiffs may renew their motion. MIL No. 5: The Court grants plaintiffs’ motion to exclude all references to Ayriel Bland’s income and compensation after September 20, 2021, and to exclude all references to Pierce’s husband’s income or compensation. Bland has admitted that after September 20, 2021, she “fully mitigated her economic damages.” Dkt. 152 at 2. The Court thus agrees that “any reference to [Bland’s] income or compensation after that time has no probative value.” Id. As for Pierce’s husband, defendants haven’t persuaded the Court that his income or compensation is relevant; and to the extent it is, the Court concludes that the relevance is substantially out- weighed by the risk of unfair prejudice. B. Defendants’ Motions in Limine MIL No. 1: The Court grants in part and denies in part defendants’ first motion in limine. If Pierce intends to testify that, as early as 2015, Craig Spencer treated her and other attorneys of color differently from “all of the white employees,” dkt. 143 at 6 (simplified), the Court will permit that testimony under a “continuing violation” theory. Dominguez v. Washington Mutual Bank, 168 Cal. App. 4th 714, 721 (2008). As for EBMUD’s decision not to hire Bland in 2018, the Court will permit testimony on that topic in support of Pierce’s retaliation claim but will not allow Bland to seek damages based on that discrete event. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (explaining that “[d]iscrete acts such as . . . refusal to hire” cannot be treated as a con- tinuing violation). Pierce’s retaliation claim is timely and based on her internal complaints about EBMUD’s decision not to hire Bland. Bland’s failure-to-hire claims are time barred. See Dkt. 143 at 3–5 (addressing relevant statutes of limitations). Bland argues that under Johnson v. Lucent Technologies, Inc., 653 F.3d 1000, 1005–08 (9th Cir. 2011), her failure-to-hire claim under 42 U.S.C. § 1983 is timely. Johnson addressed claims under 42 U.S.C. § 1981, not under § 1983. Bland’s § 1983 claim is governed by a two- year limitations period, not the four-year period discussed in Johnson. See Klein v. City of Bev- erly Hills, 865 F.3d 1276, 1278 (9th Cir. 2017) (“For actions under 42 U.S.C. § 1983, courts apply the forum state’s statute of limitations for personal injury actions. California has a two- year statute of limitations for personal injury actions.”) (simplified). Also, even if Bland had raised a failure-to-hire claim under § 1981, that claim wouldn’t be subject to a four-year limitations period. The four-year period applies to § 1981 retaliation claims, not to § 1981 failure-to-hire claims. See Lukovsky v. City & Cnty. of San Francisco, 535 F.3d 1044, 1048 n.2 (9th Cir. 2008) (“Section 1981 was amended in 1990 to include a four- year limitations period for certain actions; however, this period does not apply to those actions which were cognizable under the pre–1990 version, such as plaintiffs’ failure to hire claim.”). Bland’s failure-to-hire claims are time barred, and Bland hasn’t met her burden to prove that equitable tolling applies. She didn’t raise equitable tolling in her opposition to defendants’ motion in limine. See Dkt. 143 at 9–14. And she hasn’t put forward “facts showing [her] due diligence in trying to uncover the facts” that give rise to her failure-to-hire claims. Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th Cir. 1993). MIL No. 2: The Court denies defendants’ motion to exclude as evidence Spencer’s state- ments to the EBMUD internal investigator. Defendants haven’t persuaded the Court that those statements are privileged under California Civil Code section 47(b)(3). Section 47(b)(3) would apply if the statements were made in an “official proceeding.” Id. The Court isn’t convinced that EBMUD’s internal investigation of Pierce’s discrimination complaints was such an “offi- cial proceeding.” A standard workplace-discrimination investigation isn’t an official proceed- ing, even if the employer is a publicly owned utility company, like EBMUD. MIL No. 3: The Court denies defendants’ motion to exclude all evidence of Zaneta Seidel’s “unconscious bias” finding. EBMUD retained Seidel to investigate Bland’s allegations that Spencer had treated her less favorably than he treated Anna Gunderson. Seidel issued a report in which she concluded that “Spencer was less attentive to Bland in terms of his super- vision and welcoming of her on his team than he was with Gunderson, and that Spencer’s un- conscious racial bias was a motivating factor.” Dkt. 156 at 43. Defendants haven’t suggested that Seidel’s report, on the whole, is irrelevant. But de- fendants maintain that Seidel’s “unconscious bias” finding is irrelevant to whether Spencer en- gaged in intentional discrimination. Defendants are free to make that argument to the jury (i.e., that “unconscious bias” isn’t the same as intentional discrimination), but the Court won’t allow defendants to “selectively parse out” certain findings from Seidel’s report. Dkt. 145 at 9. The report, and testimony about the report, can be offered as evidence. MIL No. 4: The Court partially grants defendants’ motion to exclude the testimony of D. Jan Duffy, plaintiffs’ expert on “Management or HR practice.” Dkt. 156 at 55. Duffy may opine on whether EBMUD adequately investigated and responded to Pierce’s and Bland’s internal complaints. But Duffy cannot opine on whether EBMUD’s policies and practices were adequate to prevent and correct discrimination and retaliation in general. How EBMUD responded to Pierce’s and Bland’s complaints is relevant, and Duffy’s testimony on that topic is likely to “help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Civ. P. 702(a). Duffy’s proffered testimony also “rests on a reliable foundation and 1s relevant to the task at hand.” City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir. 2014) (simplified). Conversely, EBMUD’s HR policies and practices at large have limited relevance, and that limited relevance would be substantially outweighed by the dangers of confusing the issues, misleading the jury, and undue delay. The jury needs to focus on how the defendants treated Pierce and Bland, not on EBMUD’s HR policies and practices in the abstract. Expert testimony on those policies and practices would bog down proceedings and wouldn’t “help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Civ. P. 702(a). MIL No. 5: The Court grants defendants’ motion to bifurcate the punitive damages phase of trial. The Court agrees with defendants that bifurcation will “allow the jury to concentrate on the issue of liability, without being swayed by evidence of [d]efendants’ wealth, which is not relevant to [p]laintiffs’ underlying causes of action.” Dkt. 150 at 4. IT IS SO ORDERED. Dated: May 23, 2023 | ) Alex G. Tse United States Magistrate Judge