Matsumoto-Herera v. Continental Casualty Company

Filing 89

ORDER re Defendant's Motion in Limine no. 2. Signed by Judge Chhabria on 10/2/15. (vclc1S, COURT STAFF) (Filed on 10/2/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GINGER MATSUMOTO-HERRERA,

Case No. 14-cv-03626-VC

Plaintiff,
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v.
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CONTINENTAL CASUALTY COMPANY,
Defendant.

SUPPLEMENTAL ORDER RE THE
DEFENDANT'S MOTION IN LIMINE
NO. 2
Re: Dkt. No. 59

United States District Court
Northern District of California

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In this state-law discrimination case brought under the California Fair Employment and

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Housing Act, Ginger Matsumoto-Herrera contends that Continental Casualty Company passed her

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over for an "Operations Director" job in favor of a younger, non-disabled candidate by the name

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of Olga Brody. A year after Brody got the Operations Director job, Continental Casualty fired her

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for poor performance. Matsumoto-Herrera wishes to use this evidence at trial in support of her

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age and disability discrimination claims; Continental Casualty seeks to exclude it on relevance

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grounds.

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As Continental Casualty notes, the Seventh Circuit in Cullen v. Olin Corp., 195 F.3d 317,

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323-24 (7th Cir. 1999) held, in a federal age discrimination case, that it was an abuse of discretion

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for the district court to admit evidence that a younger employee performed poorly in a position to

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which the younger employee was hired over the older plaintiff. Cullen held that the younger

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employee's "unsatisfactory performance months after the [adverse employment action] had no

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bearing on management's state of mind at the time the decision to terminate [the plaintiff] was

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made," and therefore such evidence was irrelevant and inadmissible. Id. at 324.

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The Court disagrees with Cullen and district court decisions that have reached the same

result.1 Evidence that a person hired over an employment discrimination plaintiff ended up doing

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the job badly is relevant, at least when the bad performance was foreseeable, because it tends to

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make it more likely that the employer's explanation for choosing that person is pretextual. As the

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Ninth Circuit has stated, "[f]acts tending to show that the chosen applicant may not have been the

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best person for the job are probative as they 'suggest that [the explanation] may not have been the

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real reason for choosing [the chosen applicant] over the [plaintiff].'" Godwin v. Hunt Wesson,

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Inc., 150 F.3d 1217, 1222 (9th Cir. 1998) (quoting Lindhal v. Air France, 930 F.2d 1413, 1439

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(9th Cir. 1991)). Although the Ninth Circuit did not make that statement in the context of an

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attempt to introduce evidence of a chosen employee's post-decision performance, the statement

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applies to that type of situation as a matter of logic. If the chosen employee works out well, it is

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United States District Court
Northern District of California

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more likely that the reasons given for hiring her were truthful (and potentially more likely,

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depending on the circumstances, that the reasons given for passing over another candidate were

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also truthful). But if the chosen employee ends up not working out and the problems were

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foreseeable, that suggests "she may not have been the best person for the job" when the decision

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was made, which is relevant for the reasons stated by the Ninth Circuit in Godwin. Id. Thus,

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contrary to Cullen, the chosen employee's post-decision performance can be a window into the

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employer's true "state of mind at the time" of the decision. 195 F.3d at 324. While the employer

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need not have a crystal ball, see, e.g., Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 358 (2000), the

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fact that the employee selected over the plaintiff later does badly, in a foreseeable way, can

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indicate that the employer's proffered reasons for preferring the other employee are pretextual.
In this case, there is evidence from which the jury could conclude that Continental

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Casualty knew at the time of its decision that Brody was in fact less qualified than Matsumoto-

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Herrera. Matsumoto-Herrera has adduced evidence that Brody did not have five years of

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managerial experience, which Continental Casualty listed as a preferred qualification for the

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Moser v. Tyson Foods, Inc., No. 3:07 CV 359, 2010 WL 1382118, at *6 (N.D. Ind. Mar. 29,
2010); Fulmore v. Home Depot, USA, Inc., 423 F. Supp. 2d 861, 871 n.3, 878 n.8 (S.D. Ind.
2006); Rathbun v. Autozone, Inc., 253 F. Supp. 2d 226, 235 (D.R.I. 2003); Leatzow v. A.M. Castle
& Co., No. 99-14218-CIV, 2001 WL 1825851, at *5 (S.D. Fla. Nov. 14, 2001); Bruno v. W.B.
Saunders Co., No. CIV.A. 86-2282, 1988 WL 117874, at *11 (E.D. Pa. Oct. 31, 1988); Golletti v.
Arco/Polymers, Inc., No. 82-2749, 1983 WL 615, at *2 (W.D. Pa. Sept. 30, 1983).
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Operations Director position, while Matsumoto-Herrera did. Matsumoto-Herrera has also adduced

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evidence that she had other relevant job experience that Brody lacked, including oversight of the

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Underwriting Technicians whom the Operations Director would be responsible for supervising,

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and familiarity with the Western Region. And as it turns out, Brody performed so poorly as

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Operations Director that she was fired within a year. Although that is not definitive proof of

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anything, it is certainly relevant to whether Brody truly was less qualified than Matsumoto-

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Herrera at the time Continental Casualty made its hiring decision. And that, in turn, is relevant to

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whether Continental Casualty's asserted belief in Brody's superior qualifications at that time is

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pretextual, and whether Continental Casualty was actually motivated by Matsumoto-Herrera's age

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and disability. Therefore, Brody's poor performance and early termination is relevant as "indirect

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United States District Court
Northern District of California

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evidence of [Continental Casualty's] discriminatory motive" at the time it selected Brody over

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Matsumoto-Herrera. Godwin, 150 F.3d at 1222.

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The remaining question is whether the evidence of Brody's poor performance and

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termination should be excluded under Fed. R. Evid. 403, i.e. whether the probative value of this

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evidence is substantially outweighed by danger of unfair prejudice or confusion. There are no

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doubt many cases in which evidence about the chosen employee's performance should be excluded

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under Rule 403, including the risk that admission of such evidence would create a mini-trial on a

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collateral issue (especially when the quality of the chosen employee's performance is not so clear-

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cut). But on these facts, the probative value of Brody's performance and termination is significant,

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and although this evidence will likely harm Continental Casualty's cause at trial, it will not do so

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"unfairly" within the meaning of Rule 403. Moreover, to avoid undue jury focus on Brody's

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termination (as opposed to what was on Continental Casualty's mind when it made the decision to

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pass over Matsumoto-Herrera), the Court will limit the amount of time that can be spent on this

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issue at trial, and will give the jury an appropriate pinpoint instruction to ensure the jury considers

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this evidence only as it relates to the question whether Continental Casualty truly believed Brody

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was more qualified than Matsumoto-Herrera at the time of the decision.

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IT IS SO ORDERED.
Dated: October 2, 2015
______________________________________
VINCE CHHABRIA
United States District Judge

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United States District Court
Northern District of California

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