Gonzalez v. City of McFarland, et al.

Filing 102

ORDER on 99 Motion in Limine re: Alleged Affair, signed by Magistrate Judge Jennifer L. Thurston on 11/13/2014. (Hall, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

ANITA GONZALEZ,

12

Plaintiff,

13
14

v.
CITY OF MCFARLAND, et al.,

15

Defendants.

)
)
)
)
)
)
)
)
)

Case No.: 1:13-cv-00086 - JLT
ORDER ON MOTION IN LIMINE RE: ALLEGED
AFFAIR
(Doc. 99)

16
17

Before the Court is the motion in limine filed by Defendants City of McFarland, John Wooner,

18

Manuel Cantu, to exclude reference to the discussion about the alleged affair of two coworkers. The

19

Court finds the information may be helpful to the jury in determining whether the City and Wooner

20

acted reasonably in determining what was said by Plaintiff on April 26, 2012 before disciplining her,

21

whether Plaintiff was engaged in protected speech on that date and whether Plaintiff was engaged in

22

lawful activity at the time. Also, the Court will not find that, as a matter of law, the discussion was not

23

protected speech and because the Court finds the evidence is relevant on topics even if it was not

24

protected, the motion is DENIED.

25

I.

26

Legal Standards Governing Motions in Limine
“Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the

27

practice has developed pursuant to the district court’s inherent authority to manage the course of

28

trials.” Luce v. United States, 469 U.S. 38, 40 n. 2 (1984). The Ninth Circuit explained motions in
1

1

limine “allow parties to resolve evidentiary disputes ahead of trial, without first having to present

2

potentially prejudicial evidence in front of a jury.” Brodit v. Cabra, 350 F.3d 985, 1004-05 (9th Cir.

3

2003) (citations omitted).
Importantly, motions in limine seeking the exclusion of broad categories of evidence are

4
5

disfavored. See Sperberg v. Goodyear Tire and Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). The

6

Court “is almost always better situated during the actual trial to assess the value and utility of

7

evidence.” Wilkins v. Kmart Corp., 487 F. Supp. 2d 1216, 1218 (D. Kan. 2007). The Sixth Circuit

8

explained, “[A] better practice is to deal with questions of admissibility of evidence as they arise [in

9

trial]” as opposed to ruling on a motion in limine. Sperberg, 519 F.2d at 712. Nevertheless, motions

10

in limine are “an important tool available to the trial judge to ensure the expeditious and evenhanded

11

management of the trial proceedings.” Jonasson v. Lutheran Child & Family Services, 115 F.3d 436,

12

440 (7th Cir. 1997).

13

II.

14

Motion to exclude reference to the alleged affair
Defendants seek the exclusion of “testimony and/or evidence concerning any alleged affair or

15

mention of an affair between Mario Gonzalez and Iselda Nunez.” (Doc. 99 at 1) Defendants argue that

16

Plaintiff should be precluded from mentioning the alleged affair because there is no evidence

17

Defendants knew Nunez was Herrington’s source and because the speech is not protected. Id. at 2.

18

First, the Court declines Defendants’ request to rule on whether the speech related to the affair

19

is protected at this time. First, it is improper to use this motion in limine as a dispositive motion.

20

United States v. Heller, 551 F.3d 1108, 1111 (9th Cir.2009) [“A motion in limine is a procedural

21

mechanism to limit in advance testimony or evidence in a particular area.”] Second, Defendants have

22

not offered evidence to support this request and, as a result, it is unclear upon what evidence they

23

contend the Court should issue this ruling. On its face, without evidence, the Court cannot find that the

24

mere fact that the speech related to a sexual affair means, necessarily, that Plaintiff’s comments were

25

not protected.

26

Though Plaintiff has admitted that “[t]he issue of an affair standing alone is . . . not an issue of

27

public concern,” she maintains that her “statement about the affair contributing to a potential sexual

28

harassment claim against the city is” a public concern. (Doc. 70 at 1.) Evaluating Plaintiff’s First
2

1

Amendment claim on summary judgment, the Court observed that “[g]enerally, comments between

2

coworkers about the sexual relationships of other coworkers would not be considered protected

3

speech.” (Doc. 50 at 19, citing Sullivan v. Chappius, 711 F.Supp.2d 279, 285 n. 4 (W.D.N.Y. 2010)

4

(complaints about a state employee’s “alleged affair with a subordinate did not involve a matter of

5

public concern”); Smith v. Citrus County, 2005 U.S. Dist. LEXIS 38861, at *14 (M.D. Fl. Apr. 26,

6

2005) (explaining that whether a county employee “had ‘sexual affairs’ with county employees is not a

7

matter of public concern”)). However, a conversation involving a rumored affair among city

8

employees may be protected where “the allegation the allegation of misuse of public funds was the key

9

issue and the fact that the rumor affair was mere ‘context’ for this issue.” (Doc. 50 at 19, citing Belk v.

10

City of Eldon, 228 F.3d 872, 879 (8th Cir. 2000)). Comparing the facts presented to those presented in

11

Belk, the Court explained:

16

Here, the conversation related to the affair was focused on the affair and the details of
the affair, e.g., that the male member of the relationship was married, that he was a
person of high stature in the City’s management organization and that the female was
pregnant with the married man’s child. It appears that Plaintiff’s comment stating her
concern for the City’s sexual harassment liability may not have been more than a
passing comment. In Belk, the rumor of the affair was mere explanation for Link’s
motivation to condone Carpenter’s improper level of benefits. It did not add to or detract
from the documented concern that Carpenter was receiving greater benefits than an
employee of her stature should receive; the same does not appear to be true here.

17

(Doc. 50 at 19-20.) Likewise, though Defendants rely upon Smith v. Citrus County, 2005 WL 1065545

18

(M.D. Fla. May 2, 2005) for the proposition that a statement that a married coworker was having sexual

19

affairs with other employees, that is not the holding of Smith. Instead, Smith concerned whether the

20

plaintiff had adequately pleaded a First Amendment claim. The only statement in the complaint related

21

to the affairs was: “in 1995, the Plaintiff told Ken Saunders that Defendant Brock had “sexual affairs”

22

with County employees while married.” Id. at 1. The court had little hesitation is finding that this

23

allegation, “[w]hether Defendant Brock had “sexual affairs” with county employees is not a matter of

24

public concern.” Id. at 4.

12
13
14
15

25

Here, however, the evidence presented to the Court previously indicated that the thrust of the

26

conversation was not about the affair but was about the liability that this could pose to the City because

27

Mario Gonzalez, the married actor in the alleged affair, was a Director of the City and Nunez was a

28

subordinate employee, though there is no evidence she reported to Gonzalez. (Doc. 50 at 18-20) Based
3

1

upon the information before the Court, it cannot say that the jury will not be persuaded, as in Belk, that

2

the concern over the City’s financial security in the face of a potential lawsuit was the purpose of the

3

speech, and the statements about the affair were context for those statements.
Also, as Defendants' note, Plaintiff testified that Sylvia Escalante called the female involved in

4
5

the affair a "bitch" because she disapproved of the affair with the married man. However, when this

6

was communicated to Wooner, he was told that Plaintiff called Mosquedo this name. Plaintiff is

7

entitled to explain this detail. It is noteworthy that Nunez was the person who told the police chief

8

about the conversation in the first place (Doc. 46-6 at 142-143), who then reported the conversation to

9

Wooner. The Court recognizes that there is ambiguity in the testimony of Herrington so that it is not

10

clear whether Herrington told Wooner that Nunez was his source. This ambiguity must be resolved by

11

the jury.1 Therefore, the motion in limine is DENIED.

12
13

IT IS SO ORDERED.

14

Dated:

November 13, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28

1

The Court is not convinced that this ambiguity makes much difference because an unreasonable failure to know what was
said, will not shield Defendants from liability if Plaintiff engaged in protected speech. This evidence could persuade the
jury that a minimal investigation could have yielded information which may have given Wooner pause before acting.

4