Alozie v. Arizona Board of Regents et al

Filing 189

ORDER granting Alozie's 166 Motion in Limine; granting in part and denying in part Alozie's 167 Motion in Limine; granting in part and denying in part Alozie's 168 Motion in Limine; granting in part and denying in part ASU's 173 Motion in Limine; granting in part and denying in part ASU's 178 Motion in Limine. See attachment for details. Signed by Senior Judge Roslyn O Silver on 3/10/2020. (CLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Nicholas Alozie,
Plaintiff,

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ORDER

v.

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No. CV-16-03944-PHX-ROS

Arizona Board of Regents, et al.,

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Defendants.

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Plaintiff Nicholas Alozie (“Alozie”) is a professor at Defendant Arizona State

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University, a public university which is governed by Defendant Arizona Board of Regents

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(collectively, “ASU”). Alozie alleges that ASU refused to grant him a second interview for

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the position of Dean of the College of Letters and Sciences in retaliation for comments he

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made in a written statement to the search committee about the difficult environment for

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promoting minority scholars at ASU. Trial is set to begin on March 24, 2020. Alozie has

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filed three motions in limine (Docs. 166, 167, 168) and ASU has filed two (Docs. 173,

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178).

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BACKGROUND

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In 2014, ASU conducted an internal search to select a Dean for its College of Letters

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and Sciences. Four professors at ASU, including Alozie, applied for the position. A search

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committee interviewed each of the candidates. At his interview, Alozie handed the search

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committee, a written statement. This statement included comments about the difficult

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environment for promoting minority scholars at ASU and an assertion that the position of

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Dean had already been promised. After the initial interviews, two candidates were invited

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to a second round of interviews, and two candidates, including Alozie, were eliminated

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from consideration. Dr. Duane Roen was ultimately selected as the Dean of the College of

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Letters and Sciences.

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In March 2015, Alozie met with Erin Ellison (“Ellison”), a senior Equal Opportunity

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consultant with ASU’s Office of Equity and Inclusion (“OEI”). Ellison investigated,

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interviewing several members of the search committee, and issued a report on October 8,

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2015 concluding that the evidence was insufficient to support a violation of ASU’s non-

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retaliation policy. Alozie also filed a charge of discrimination with the Equal Employment

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Opportunity Commission (“EEOC”) in August 2015. The EEOC conducted an

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investigation and issued a determination on June 10, 2016 stating “Based upon its

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investigation, the EEOC is unable to conclude that the information obtained establishes

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violations of the statutes. This does not certify that [ASU] is in compliance with the

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statutes.”

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Alozie initially brought five claims, three against ASU (Title VII discrimination,

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Title VII retaliation, and disparate impact) and two against certain members of the search

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committee in their individual capacities (First Amendment and Equal Protection). The

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disparate impact claim was dismissed on a Rule 12(c) motion. The Title VII retaliation

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claim was limited by stipulation to ASU’s decision not to grant Alozie a second interview,

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the Equal Protection claim was voluntarily dismissed, and the First Amendment claim was

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voluntarily dismissed against all parties except Dr. Marlene Tromp. The Title VII race

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discrimination claim and the First Amendment claim against Dr. Tromp were later

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dismissed on summary judgment. Thus, the only claim remaining for trial is Title VII

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retaliation with regard to ASU’s decision not to grant Alozie a second interview.

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Trial is set to begin on March 24, 2020. The parties have a number of disputes, some
of which are resolved in this Order.
LEGAL STANDARD
A motion in limine is a procedural mechanism to limit particular testimony or

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evidence in advance. United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). Judges

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have broad discretion when ruling on motions in limine. United States v. Bensimon, 172

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F.3d 1121, 1127 (9th Cir. 1999).

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ANALYSIS
1. Alozie’s Motion in Limine No. 1 (Doc. 166)

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Alozie moves to preclude ASU from “referring to, questioning about, commenting

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on, arguing or relying upon or in any other manner attempting to introduce into evidence

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in any way, any allegations, documents, or written or oral testimony or any reference or

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inference to the decision by the EEOC not to issue a letter of determination or to bring a

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suit directly.”

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ASU does not oppose this motion, but wishes to reserve the right to present evidence

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or refer to the EEOC if Alozie opens the door by referring to it first. The parties have

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stipulated that Alozie satisfied the administrative preconditions for filing suit.

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Accordingly, Alozie’s Motion (Doc. 166) is granted, as well as ASU’s reservation
of the right to present evidence.
2. Alozie’s Motion in Limine No. 2 (Doc. 167)

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Alozie moves to preclude ASU from “referring to, questioning about, commenting

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on, arguing or relying upon or in any other manner attempting to introduce into evidence

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in any way, any allegations, documents, or written or oral testimony or any reference or

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inference to the conclusion by Erin Ellison (ASU’s Director of the Office of Equity and

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Inclusion [OEI]) that upon her investigation Dr. Alozie was not the victim of discrimination

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or retaliation.” Alozie argues the fact of the investigation is prejudicial under Fed. R. Evid.

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402 and 403; the conclusion regarding policy violations is irrelevant under Fed. R. Evid.

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401; and the conclusion is inadmissible as an opinion on an ultimate issue under Fed. R.

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Evid. 704.

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ASU argues that Alozie is estopped from arguing irrelevance under Fed. R. Evid.

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401 because Alozie has announced an intention to offer evidence concerning Ellison’s

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investigation and the evidence she obtained. ASU argues that the conclusions would not

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create unfair prejudice or jury confusion under Fed. R. Evid. 403, and that Ellison expresses

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no opinion or conclusion on the ultimate legal issue of Title VII retaliation.

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Plummer v. Western Int’l Hotels Co., Inc., 656 F.2d 502, 505 (9th Cir. 1981) permits

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EEOC probable cause determinations to be admitted at trial, and Arizona ex rel. Goddard

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v. Frito-Lay, Inc., 273 F.R.D. 545, 551–552 (D. Ariz. 2011) extends the holding to

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“reasonable cause determinations made by state administrative agencies,” to which ASU’s

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Office of Equity and Inclusion is analogous. But Beachy v. Boise Cascade Corp., 191 F.3d

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1010, 1015 (9th Cir. 1999), making a perhaps-inappropriate distinction between a probable

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cause determination (which the Beachy court considered non-final) and a determination of

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insufficient facts (which the Beachy court considered to be “a final agency ruling”), held

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that “an agency’s determination that insufficient facts exist to continue an investigation is

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not per se admissible in the same manner as an agency’s determination of probable cause.”

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Therefore, “a district court . . . asked to admit an agency's determination that insufficient

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facts exist to continue an investigation” must “weigh the [determination’s] prejudicial

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effect against its probative value pursuant to Rule 403.” Id.; see also Harrell v. City & Cty.

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of Honolulu, No. 01-00223-MEA-KSC, 2006 WL 8436343, at *1 (D. Haw. Jan. 4, 2006)

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(a detailed letter which “speaks directly on several key points the jurors alone must decide”

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is highly prejudicial because “the ‘jury might find it difficult to evaluate independently

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evidence of discrimination’ after being informed of the [agency’s] final results”) (quoting

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Beachy, 191 F.3d at 1015); accord Gillum v. Safeway, Inc., No. 2:13-CV-02047, 2015 WL

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9997201, at *3 (W.D. Wash. Oct. 16, 2015) (finding the agency’s no cause determination

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inadmissible under Fed. R. Evid. 403 because of “a substantial risk that the jury will give

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undue weight to the [agency’s] final determination”).

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Though relevant under Fed. R. Evid. 401, the prejudicial effect of Ellison’s

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investigative memorandum outweighs the probative value under Fed. R. Evid. 403, and it

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is otherwise inadmissible pursuant to the Federal Rules of Evidence. Accordingly, Alozie’s

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Motion (Doc. 167) is granted in part and denied in part. Ellison’s investigative

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memorandum, listed as Trial Exhibit 72, is excluded. But the fact of the investigation is

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admissible.
3. Alozie’s Motion in Limine No. 3 (Doc. 168) and ASU’s Motion in Limine No. 2 (Doc.

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173)

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Both parties have filed motions relating to the previously dismissed claims.

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Specifically, Alozie wishes to preclude references to previously dismissed disparate impact

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and disparate treatment claims, but does not object to the admissibility of the topic of

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discrimination at ASU (or in general). ASU moves to preclude evidence and argument

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relating to Alozie’s previously dismissed claims of disparate impact, discrimination, post-

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search retaliation, and nonselection for the Dean position.

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In particular, Alozie intends to offer evidence pertaining to the number of African

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American deans and the number of interim deans that have subsequently been hired as

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deans, while excluding any reference to the fact that he based his discrimination and

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disparate impact claims on that evidence and lost. Alozie argues that this evidence is

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essential context for Alozie’s written statement, and that such evidence (which Alozie

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characterizes as “evidence of Dr. Alozie’s belief and the underlying reasons for that belief

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-- that race discrimination has occurred at ASU”) is necessary for Alozie to prove “that he

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believed Title VII violations have happened, and that his belief is reasonable.” (Doc. 186

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at 2.) In other words, Alozie insists that evidence of disparate hiring practices is necessary

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to prove the protected activity portion of his case, but ASU would benefit unfairly if they

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could bring up that he was unsuccessful on his disparate impact and discrimination claims.

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ASU argues that allowing evidence regarding the dismissed claims would create a

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risk of confusing the issues and misleading the jury, and that the presentation of such

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evidence would waste time, and therefore the evidence is inadmissible under Fed. R. Evid.

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403. ASU also argues that if the evidence was presented, without the fact that the claims

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based on that evidence had been dismissed, the jury would be “free to speculate about the

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dismissed claims,” and there would be “a risk that the jury will decide the one remaining

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claim on an improper basis.” (Doc. 184 at 2.) Alozie responds that the danger of confusion

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would be forestalled by retaliation-only jury instructions, and that he intends to stick to the

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time limits.

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Both parties cite to Kimes v. Univ. of Scranton, No. 3:14-CV-00091, 2016 WL

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1274134 (M.D. Pa. Apr. 1, 2016), a case with similar facts where the district court decided

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to grant both parties’ motions to preclude evidence regarding previously dismissed claims

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(including all evidence relating to the dismissed claims) in part because discussion of the

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dismissed claims was “apt to confuse the jury” under Fed. R. Evid. 403. Id. at *2.

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The Kimes court’s reasoning is persuasive. Accordingly, Alozie’s motion (Doc.

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168) and ASU’s motion (Doc. 173) are each granted in part and denied in part. Alozie is

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permitted to give context for his written statement, but may introduce only information that

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was within his own personal knowledge and that he relied on to prepare his statement as

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of December 1, 2014. ASU is free to cross-examine Alozie on his personal knowledge

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sources, and the Court will consider giving a limiting instruction if necessary. All other

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evidence relating to previously dismissed claims is excluded.

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4. ASU’s Motion in Limine No. 1 (Doc. 178)

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ASU moves (1) to exclude evidence and arguments regarding backpay, and (2) to

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limit evidence of emotional distress to past emotional distress (excluding physical injury

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and future emotional distress). First, ASU argues that there is a distinction between failure-

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to-interview claims and failure-to-hire or failure-to-promote claims, and that by stipulating

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to a limitation to the failure-to-interview claim only, Alozie “does not claim that he was

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unlawfully denied the Dean position.” (Doc. 178 at 4.) ASU cites Gardner-Lozada v.

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SEPTA, No. CIV.A. 13-2755, 2015 WL 4505949, at *7 n.11 (E.D. Pa. July 24, 2015),

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where the Eastern District of Pennsylvania noted that the plaintiff had chosen to go to trial

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on a failure-to-promote claim rather than a failure-to-interview claim because a failure-to-

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interview claim limits recovery to damages attributable to the decision not to interview,

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“e.g., the embarrassment or damage to [the plaintiff’s] reputation arising from not being

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selected to interview.” The Third Circuit affirmed this analysis, “agree[ing] with the

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District Court’s rationale” and noting that the plaintiff “went to trial solely on a ‘failure-

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to-promote theory of liability, not a failure-to-interview theory of liability, presumably

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because [the plaintiff] would not have been entitled to back-pay under a failure-to-

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interview theory.” Gardner-Lozada v. SEPTA, 643 F. App’x 196, 200 n.8 (3d Cir. 2016).

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ASU then argues that even if Alozie was pursuing a failure-to-promote theory, Alozie

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failed to adequately disclose economic damages.

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Alozie argues that the purpose of Title VII, to make people whole, requires backpay

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damages in the failure-to-interview context, asserting that without such a remedy a

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discriminatory or retaliatory employer could use a two-tier interview process as a “‘get out

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of back pay free’ card.” (Doc. 185 at 3.) Alozie cites Ruggles v. California Polytechnic

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State Univ., 797 F.2d 782, 786 (9th Cir. 1986) to argue that, in the retaliation context, the

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adverse employment action is “the closing of the job opening to [the plaintiff] and the loss

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of opportunity even to compete for the position.” Alozie also argues that his economic

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damages were properly disclosed.

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As the Court previously discussed, the caselaw regarding failure-to-interview

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claims that are not accompanied by failure-to-promote claims is unsettled. (Doc. 152 at

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16.) This is also true for backpay in failure-to-interview claims. Compare Gardner-Lozada,

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643 F. App’x at 200 n.8 (noting plaintiff “would not have been entitled to back-pay under

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a failure-to-interview theory”) with Aboubaker v. Cty. of Washtenaw, No. 11-13001, 2015

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WL 1245755, at *10 (E.D. Mich. Mar. 18, 2015) (awarding backpay on a failure-to-

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interview claim because “Washtenaw County’s argument that because the case was a

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failure to interview claim, not a termination claim, [plaintiff] was not entitled to back pay

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or front pay beyond the date of his termination is not supported by the law”) and Drews v.

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Soc. Dev. Comm’n, 95 F. Supp. 2d 985, 989 (E.D. Wis. 1998) (awarding plaintiff, who

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won a single failure-to-interview claim, 12.5% of the requested backpay under the lost

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chance doctrine because eight candidates, excluding plaintiff, interviewed for the job). This

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case is distinguishable from Gardner-Lozada, Aboubaker, and Drews because Alozie was

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granted a first interview, but not a second interview, and Alozie explicitly stipulated that

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the retaliation claim was “limited to [ASU’s] decision not to grant [Alozie] a second

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interview,” excluding ASU’s “non-selection of [Alozie] for the position of Dean of the

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College of Letters and Sciences.” (Doc. 116 at 2.) The Court declines to follow Drews and

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holds that a plaintiff seeking backpay must prove that, in the absence of a Title VII

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violation, the plaintiff would have received the position. Because Alozie’s claim does not

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include the failure to receive the position of Dean, he has explicitly foreclosed that

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possibility and cannot establish the requisite causal connection, and he is not entitled to

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backpay.

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Second, ASU argues that Alozie’s testimony of emotional distress should be limited

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to personal knowledge about his past condition. ASU moves to exclude any testimony

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about physical injury, because Alozie has never disclosed such an injury. ASU also argues

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that Alozie is not qualified to testify about future emotional distress, and that only a

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qualified medical expert may establish grounds for future emotional distress. ASU cites no

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caselaw to support this assertion, and the Court will not credit it. Alozie did not respond to

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ASU’s arguments directly.

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ASU’s motion (Doc. 178) is granted in part and denied in part. Alozie may not

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introduce evidence and argument regarding backpay. Alozie may not introduce evidence

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of physical injury not disclosed to ASU during discovery. Alozie may introduce evidence

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of past, present, and future emotional distress that is within his personal knowledge, or is

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admissible pursuant to Fed. R. Evid. 701 as a lay witness opinion, but not evidence that

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requires expert testimony pursuant to Fed. R. Evid. 702.

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Accordingly,

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IT IS ORDERED Alozie’s Motion (Doc. 166) is GRANTED.

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IT IS FURTHER ORDERED Alozie’s Motion (Doc. 167) is GRANTED IN

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PART and DENIED IN PART.
IT IS FURTHER ORDERED Alozie’s Motion (Doc. 168) and ASU’s Motion

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(Doc. 173) are GRANTED IN PART and DENIED IN PART.

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…

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…

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…

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IT IS FURTHER ORDERED ASU’s Motion (Doc. 178) is GRANTED IN PART
and DENIED IN PART.
Dated this 10th day of March, 2020.

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Honorable Roslyn O. Silver
Senior United States District Judge

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