Duarte v. Catalina Foothills School District No. 16

Filing 75

ORDER ruling on motions in limine (Docs 61 to 64). Signed by Judge James A Soto on 10/10/14.(JAS, kr)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gary S. Duarte, No. CV-12-00844-TUC-JAS Plaintiff, 10 11 v. 12 ORDER Catalina Foothills School District No. 16, 13 14 Defendant. Pending before the Court are the parties’ motions in limine. For the reasons stated 15 below, the motions are denied in part and granted in part. 16 BACKGROUND 17 Plaintiff, Gary S. Duarte, was employed as a maintenance worker for Defendant, 18 Catalina Foothills School District No. 16 (“District”), for 34 years. His work included 19 going on roofs of the District’s buildings and making necessary repairs. According to 20 Plaintiff, the District’s Director of Facilities (Basil Callimanis-“Basil”) told him in 21 January of 2011 that his contract would not be renewed because Plaintiff was too old for 22 the job. In contrast, Basil denies making such a statement; rather, his position is that 23 Plaintiff’s contract was not renewed due to poor work performance. 24 STANDARD OF REVIEW 25 As pertinent to the motions in limine, Fed. R. Evid. 402 provides: "Relevant 26 evidence is admissible unless any of the following provides otherwise: • the United States 27 Constitution; • a federal statute; • these rules; or • other rules prescribed by the Supreme 28 Court. Irrelevant evidence is not admissible." Fed. R. Evid. 401 defines relevant 1 evidence as follows: "Evidence is relevant if: (a) it has any tendency to make a fact more 2 or less probable than it would be without the evidence; and (b) the fact is of consequence 3 in determining the action." Fed. R. Evid. 403 provides that: “The court may exclude 4 relevant evidence if its probative value is substantially outweighed by a danger of one or 5 more of the following: unfair prejudice, confusing the issues, misleading the jury, undue 6 delay, wasting time, or needlessly presenting cumulative evidence.” 7 DISCUSSION 8 Doc. 64: The District’s Motion in Limine No. 2 (Performance Reviews) 9 The District moves to exclude written performance reviews that Plaintiff seeks to 10 introduce at trial. The reviews Plaintiff intends to introduce include ratings that list 11 Plaintiff’s job performance as “exceeding” or “meets” job expectations or requirements. 12 Defendant argues that these performance reviews are irrelevant and subject to exclusion 13 under Rule 403 as they were not written by Basil who was the ultimate person that 14 decided not to renew Plaintiff’s contract. In contrast, as Plaintiff correctly argues, these 15 performance reviews are highly relevant to whether Plaintiff was truly fired for 16 performance, or based on his age. These written reviews were written by Plaintiff’s direct 17 supervisor since at least 2004 (Charles “Chuck” Kennedy-“Kennedy”); if Plaintiff’s 18 direct supervisor consistently rated Plaintiff’s work as “exceeding” or “meeting” job 19 expectations or requirements, such evidence tends to undermine the District’s claim that 20 Plaintiff was fired for poor performance. The relevance of this evidence outweighs any 21 Rule 403 considerations. Defendant’s motion in limine regarding performance reviews 22 (Doc. 64) is denied. 23 Doc. 62: Plaintiff’s Motion In Limine Regarding Plaintiff’s Replacement 24 25 Plaintiff moves to exclude evidence that Defendant seeks to introduce regarding 26 the person hired to replace Plaintiff. Plaintiff argues that information regarding who 27 replaced Plaintiff after Plaintiff’s was fired is irrelevant to whether Plaintiff was fired 28 based on his age, and any relevance is outweighed by Rule 403 considerations. The -2- 1 2 Court disagrees. As Defendant argues, in relation to the Age Discrimination claim, Plaintiff’s Complaint alleges that the District replaced Plaintiff with a substantially 3 4 5 6 younger employee. In addition, part of Plaintiff’s Age Discrimination claim includes a requirement to show that Plaintiff was part of the protected class covered by the statute (i.e., he was age 40 or older when the adverse employment action occurred). However, 7 8 the record reflects that the District hired a replacement who was 52 (i.e., only 6 years 9 younger than Plaintiff when he was fired-58), and that Plaintiff’s replacement was also 10 part of the protected class under the applicable statute (i.e., age 40 or older). This 11 evidence tends to prove that the District did not fire Plaintiff due to a discriminatory 12 13 motive, and the relevance of the evidence outweighs any Rule 403 considerations. 14 Plaintiff’s motion regarding his replacement (Doc. 62) is denied. 15 Doc. 61: Plaintiff’s Motion In Limine Regarding Reference to a Dismissed Claim 16 17 Plaintiff moves to preclude any reference to the dismissed claim in this case. The 18 record reflects that the Complaint originally included a claim for both Age 19 Discrimination and National Origin Discrimination. However, after Plaintiff had an 20 opportunity to conduct discovery in this case, Plaintiff voluntarily agreed to dismiss the 21 Nation Origin Discrimination claim; as such, the parties submitted a stipulation to 22 dismiss this claim, and U.S. District Judge Zipps issued an Order granting the stipulation 23 to dismiss this claim. In light of these circumstances, Plaintiff argues that allowing any 24 reference to this dismissed claim is irrelevant, and any relevance is outweighed by Rule 25 403 considerations. In contrast, the District argues that reference to the dismissed claim 26 is relevant to Plaintiff’s credibility. 27 submitted official documents to the Arizona Civil Rights Division (“ACRD”) and this 28 Court (i.e., the Complaint) attesting that the District fired him because he is Hispanic, but The District argues that Plaintiff previously -3- 1 the facts proved otherwise which led to Plaintiff’s voluntary dismissal of the claim. The 2 Court agrees with Plaintiff’s position. As the National Origin Discrimination claim has 3 been dismissed, the Court finds that any continued reference to that dismissed claim is 4 irrelevant to the one remaining claim in this case (i.e., Age Discrimination). In addition, 5 to the extent it could be marginally relevant to Plaintiff’s credibility, the Court finds that 6 any reference to this dismissed claim at trial is outweighed by Rule 403 considerations. 7 Therefore, Plaintiff’s motion pertaining to any reference to the dismissed claim (Doc. 61) 8 is granted.1 9 Doc. 63: Defendant’s Motion In Limine No. 1 (Hearsay Statements) 10 As referenced above, Charles “Chuck” Kennedy was Plaintiff’s direct supervisor, 11 and wrote his employee reviews since approximately 2004; the reviews rated Plaintiff’s 12 work as “exceeding” or “meeting” job expectations or requirements. Plaintiff seeks to 13 testify at trial that Kennedy told him that Basil was not going to renew Plaintiff’s contract 14 because the Plaintiff was too old. Defendant argues that any such testimony is hearsay, 15 and the hearsay exception for party admissions does not apply to each level of hearsay. 16 Defendant argues that Basil, and not Kennedy, was solely responsible for firing Plaintiff, 17 and therefore any statement regarding any decision to fire Plaintiff was not within the 18 scope of Kennedy’s employment such that the party admission exception does not apply.2 19 The Court disagrees. 20 As Plaintiff correctly argues, the Basil to Kennedy and Kennedy to Plaintiff 21 statements are not considered hearsay under Fed. R. Evid. 801(d)(2)(D) because they are 22 statements “offered against an opposing party and …[were] made by the party’s agent or 23 1 24 25 26 27 Defendant correctly points out that there are certain documents that it seeks to introduce that do not reference the dismissed claim. For example, the ACRD’s dismissal of Plaintiff’s charge of discrimination does not reference the National Origin claim, but simply dismisses the entire charge without reference to any specific claim. The Court agrees that this is outside the scope of Plaintiff’s motion and may be admitted. However, to the extent there are any underlying documents that reference the dismissed claim at issue, any references whatsoever to National Origin Discrimination shall be redacted. 2 28 Plaintiff does not oppose the portion of Defendant’s motion seeking to exclude hearsay statements pertaining to Eileen Ruddell; as such, this part of Defendant’s motion is granted. -4- 1 employee on a matter within the scope of that relationship and while it existed . . . ”3 2 Kennedy and Basil were both employees of the District at the time the statements were 3 made. Basil was Kennedy’s supervisor, and Kennedy was Plaintiff’s direct supervisor. 4 Basil’s statement to Kennedy was within the scope of that relationship; Basil (the 5 Facilities Director) was informing Plaintiff’s direct supervisor that Plaintiff’s contract 6 would not be renewed. This was a decision in which Kennedy would be associated with 7 as it involved an employee under his direct supervision. Likewise, Kennedy’s statement to Plaintiff regarding Basil’s statement was within 8 9 the scope of Kennedy’s employment relationship with the District. Kennedy was 10 Plaintiff’s direct supervisor who managed Plaintiff’s daily work and work assignments. 11 Consequently, Basil would logically keep Kennedy abreast of any matters pertaining to 12 employees under Kennedy’s direct supervision, and Kennedy would inform Plaintiff 13 about issues directly impacting Plaintiff’s future employment with the District. See 14 McDonough v. City of Quincy, 452 F.3d 8, 21 (1st Cir. 2006)(statements related to 15 personnel action against the plaintiff, made by department officials involved in personnel 16 management, were within the scope of their employment and properly admitted under the 17 party admission exception; emphasizing that for “a statement to be an admission under 18 Fed.R.Evid. 801(d)(2)(D), it must be made by a party, a party's agent, or a servant within 19 the scope of an agency or employment . . . The employee's station within the organization 20 is not relevant to the Rule 801(d)(2) analysis . . . The relevant inquiry is whether the 21 employee's statement was made within the scope of employment.”); see also Woodman v. 22 Haemonetics Corp., 51 F.3d 1087, 1093–94 (1st Cir.1995)(rejecting the argument that 23 statements made by a “first-line supervisor” with no firing authority could not be 24 admissions under Rule 801(d)(2)(D)). The Court finds that the statement at issue is a 25 party admission, and that it is relevant inasmuch as it tends to bolster Plaintiff’s position 26 27 28 3 See also Fed. R. Evid. 805 (“Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.”). -5- 1 that he was fired based on age, and not based on performance as alleged by Basil. In 2 addition, the relevance of this evidence outweighs any Rule 403 considerations. As such, 3 Defendant’s motion in limine regarding statements by Kennedy (Doc. 63) is denied. 4 CONCLUSION 5 Accordingly, IT IS HEREBY ORDERED as follows: 6 (1) The parties’ motions in limine (Docs. 61, 62, 63, 64) are denied in part and granted in 7 part as discussed in the text of this Order. 8 9 Dated this 10th day of October, 2014. 10 11 12 13 14 Honorable James A. Soto United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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