Morshed v. County of Lake, California

Filing 187

PRETRIAL ORDER NO.2 by Judge YVONNE GONZALEZ ROGERS denying 118 Motion in Limine; granting in part and denying in part 119 Motion in Limine; denying 120 Motion in Limine; granting 121 Motion in Limine; granting 122 Motion in Limine; denying 123 Motion in Limine; granting 124 Motion in Limine; denying 126 Motion in Limine; granting in part and denying in part 127 Motion in Limine; granting 128 Motion in Limine; granting in part and denying in part 129 Motion in Limine; denying 130 Motion in Limine; granting in part and denying in part 131 Motion in Limine; denying 132 Motion in Limine; granting in part and denying in part 133 Motion in Limine; granting 134 Motion in Limine; granting 136 Motion in Limine; denying 137 Motion in Limine; granting in part and denying in part 138 Motion in Limine (ygrlc1, COURT STAFF) (Filed on 5/31/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL D. MORSHED,
Plaintiff,

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Northern District of California

United States District Court

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CASE NO.: 13-cv-521 YGR
PRETRIAL ORDER NO. 2 RE MOTIONS IN
LIMINE

vs.
COUNTY OF LAKE,
Defendant.
TO ALL PARTIES AND COUNSEL OF RECORD:
Pending before this Court, in anticipation of the trial in this matter, are a series of in limine

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motions filed on behalf of plaintiff and defendant, respectively. As set forth in the Pretrial Order No.

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1, a motion in limine refers “to any motion, whether made before or during trial, to exclude

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anticipated prejudicial evidence before the evidence is actually offered.” Luce v. United States, 469

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U.S. 38, 40, n. 2 (1984). A motion in limine is an “important device for securing a fair trial; it allows

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the trial court to prevent prejudicing the jury with inflammatory, irrelevant, or potentially inadmissible

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evidence.” 21 Fed. Prac. & Proc. Evid. § 5037.10 (2d ed.) Thus, requests made for such a pre-trial

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order are reviewed under that rubric.

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A. Plaintiff's Motions in Limine
1. Plaintiff's Motion in Limine No. 1 to exclude evidence not produced during

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discovery is DENIED without prejudice to renew, if necessary, with a more specific

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articulation of the evidence and/or documents to be excluded from trial. Under the

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Court’s pretrial order, all anticipated exhibits were to be identified and exchanged.

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Documents not disclosed will not be admitted without further order of this Court. See

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Pretrial Order No. 1. Accordingly, the pre-trial value of motions in limine are not

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advanced with the vague, wholesale request of Plaintiff’s motion.

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2. Plaintiff's Motion in Limine No. 2 to exclude evidence of the demotion for sex on

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duty is GRANTED IN PART, AND DENIED IN PART. Evidence regarding the plaintiff’s

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emotional state during the period in question is relevant to plaintiff’s claim for

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damages. However, the exhaustive and detailed specifics of any particular event

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becomes less probative as these historical events are merely background to the core

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allegations to be tried and therefore properly excluded under Federal Rule of Evidence

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403. The Court will allow the defendant to offer evidence regarding the existence of

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the Internal Affairs Investigation No. 2006-0006, the basic allegations, and the results

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of the investigation. The resulting report itself is not admissible. However, it may be

The Court will entertain oral objections to the extent that plaintiff contends specific

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Northern District of California

marked and used, if necessary, to assist in the presentation of testimonial evidence.

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United States District Court

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questions asked may exceed the scope of this Order.

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3. Plaintiff's Motion in Limine No. 3 is GRANTED. No claims for wage loss are

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asserted, and therefore defendant agrees that no evidence of collateral source would be

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relevant.

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4. Plaintiff's Motion in Limine No. 4 to exclude any and all evidence related to

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Plaintiff’s failure to complain to Sheriff Rodney K. Mitchell is GRANTED IN PART,

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AND DENIED IN PART. Sheriff Mitchell may testify, based upon his personal

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knowledge, to his observations and interactions with plaintiff, and to the lack thereof.

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Said differently, Sheriff Mitchell in explaining his interactions may testify to the

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alleged lack of statements or complaints. Such alleged silence is not hearsay. In

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response to the motion in limine, defendant proffered that Sheriff Mitchell would

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testify that plaintiff never complained “to [his] knowledge, anyone at a general County

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level, or to anyone else.” Such testimony as would not be admissible generally and is

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excluded unless otherwise ordered.

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5. Plaintiff's Motion in Limine No. 5 to exclude evidence that Plaintiff taught his

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daughter an Iraqi war cry is DENIED. Mr. Brian Martin himself may testify as to his

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own observations while visiting plaintiff’s home and to the basis of his understanding

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that the sounds plaintiff’s daughter made were an “Iraqi war cry.” Among plaintiff’s

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specific allegations, he testified that the alleged harassment included officers and

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deputies yelling, weekly or sometimes more often, “lalalalala,” (imitating an Arabic

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ululative cry). Evidence that plaintiff was actively teaching his own daughter the “cry”

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bears on the level to which such alleged harassment impacted him. Fed. R. Evid. 403.

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6. Plaintiff's Motion in Limine No. 6 to exclude any and all evidence related to

Evidence regarding the plaintiff’s emotional state during the period in question is

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relevant to plaintiff’s claim for damages. However, the exhaustive and detailed

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specifics of any particular performance review becomes less probative as these

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historical events are merely background to the core allegations to be tried and therefore

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Northern District of California

plainitff’s 2008 performance review is GRANTED IN PART, AND DENIED IN PART.

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United States District Court

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properly excluded under Federal Rule of Evidence 403. The Court will allow the

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defendant to offer evidence regarding the conclusion that in 2008 plaintiff’s

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performance review resulted in below average marks in the area of field enforcement

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and delivery and the general basis of said conclusion. However, proffered exhibits

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documenting the same are not admissible. They may be marked and used, if necessary,

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to assist in the presentation of testimonial evidence. The Court will entertain oral

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objections to the extent that plaintiff contends specific questions asked may exceed the

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scope of this Order. Fed. R. Evid. 403.

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7. Plaintiff's Motion in Limine No. 7 is DENIED AS MOOT as the Court has a standing

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order to exclude all non-party witnesses from the courtroom until their testimony is

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completed. However, in light of the defendant’s opposition, the Court hereby modifies

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that order to all defendant to designate Sheriff Rodney Mitchell and/or Kathy Ferguson

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to remain in the courtroom as the defendant’s designee.

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8. Plaintiff's Motion in Limine No. 8 will be addressed in a separate order.

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9. Plaintiff's Motion in Limine Nos. 9 and 10 to exclude evidence of all internal affairs

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investigations is GRANTED IN PART, AND DENIED IN PART. Evidence regarding the

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plaintiff’s emotional state during the period in question is relevant to plaintiff’s claim

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for damages. However, the exhaustive and detailed specifics of any particular event

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becomes less probative as these historical events are merely background to the core

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allegations to be tried and therefore properly excluded under Federal Rule of Evidence

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403. The Court will allow the defendants to offer evidence generally regarding

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internal affairs investigations including the basic allegations and the results of the

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investigation. Any resulting reports or related documents themselves are not

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admissible. However, they may be marked and used, if necessary, to assist in the

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presentation of testimonial evidence. The Court will entertain oral objections to the

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extent that plaintiff contends specific questions asked may exceed the scope of this

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Order.
10. Plaintiff's Motion in Limine No. 10 as it relates to the criminal investigation and

Northern District of California

United States District Court

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allegations of the theft and copying of R. Wright’s arrest report is GRANTED. See

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Defendant’s Motion in Limine No. 6.

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11. Plaintiff's Motion in Limine No. 11 to exclude any and all evidence related to

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Plaintiff’s termination for insubordination is GRANTED. Evidence regarding the fact

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that plaintiff is no longer employed and the timing of the separation will be allowed.

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However, given the history between the parties, and the Court’s ruling on some of the

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other motions, the plaintiff’s decision not to participate in the last internal investigation

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(and the resulting automatic termination) adds little probative value to the central

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dispute. To allow such evidence would necessary require additional competing

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evidence for plaintiff’s reasons to decline to participate, the totality of which would be

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to waste time and cause undue delay. Fed. R. Evid. 403.

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12. Plaintiff's Motion in Limine No. 12 to exclude any and all evidence related to any

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claims, arguments, or issues foreclosed by summary judgment is DENIED as being too

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vague and ambiguous to warrant a pretrial ruling.

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13. Plaintiff's Motion in Limine No. 13 to exclude any and all evidence related to e-mails

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sent by Plaintiff containing sexually derogatory and profane language is DENIED IN

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PART AND GRANTED IN PART. Evidence regarding the extent to which plaintiff might

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be emotionally effected, and thereby damaged, by inappropriate language is certainly

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probative given the context of this action. However, whether such emails are

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independently admissible is questionable and they are excluded until otherwise

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ordered. Per the motions, these documents bear designations LAKE 00975, 00978,

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00979, 00980, 00982. As with other documents, they may be marked and used, if

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necessary, to assist in the presentation of testimonial evidence. Fed. R. Evid. 403.

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B. Defendant's Motion in Limine
1. Defendant's Motion in Limine No. 1 to exclude plaintiff from offering any expert
witness testimony is DENIED AS MOOT as none is proffered.
2. Defendant's Motion in Limine No. 2 to exclude any and all evidence, testimony,

Northern District of California

references to testimony or evidence or argument relating to the “Determination Letter”

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United States District Court

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issued by the Equal Employment Opportunity Commission (“EEOC”) as a result of the

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investigation of the Charge of Discrimination is DENIED IN PART. The letter is

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admissible in the form attached here as Exhibit A, redacted to eliminate references to

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other complaints not at issue in the trial, and to eliminate the sentence suggesting that

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this is a determination by EEOC that a violation occurred, rather than a determination

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that there is probable cause to believe that a violation occurred.

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Under Ninth Circuit authority in Plummer, “a plaintiff has a right to introduce

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an EEOC probable cause determination in a Title VII lawsuit, regardless of what other

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claims are asserted, or whether the case is tried before a judge or jury.” Failure to

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admit a probable cause determination is grounds for reversal. Plummer v. W. Int'l

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Hotels Co., Inc., 656 F.2d 502, 505 (9th Cir. 1981). By contrast, a letter of violation is

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not per se admissible, since it presents a higher possibility of unfair prejudice.

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Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1500 (9th Cir. 1986). “[A]

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letter of violation the EEOC concludes that a violation of the Act has occurred,

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whereas in a probable cause determination the EEOC determines only that there is

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probable cause to conclude that a violation of Title VII has occurred…[and] does not

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suggest to the jury that the EEOC has already determined that there has been a

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violation…[only] that preliminarily there is reason to believe that a violation has taken

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place.” Id.; see also Heyne v. Caruso, 69 F.3d 1475, 1483 (9th Cir. 1995) (EEOC

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reasonable cause determination are preliminary investigative determinations and are

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not letters of violation). Here, the EEOC letter says:

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Northern District of California

United States District Court

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I have determined that the evidence obtained in the investigation
establishes reasonable cause to believe that the [County of Lake]
discriminated against [Michael Morshed] and a class of individuals
by subjecting them to harassment because of their national origin
in violation of Title VII. However, based on the investigation, I
am unable to conclude that the Charging Party was denied a
promotion because of his national origin, in violation of Title VII.
This does not certify that the Respondent is in compliance with the
statute. Based on the record as a whole, I find the Respondent has
engaged in discriminatory acts in violation of Title VII.
(MDM01063-MDM01064; Def.’s Mot., Exh. A, emphasis supplied.) The first bolded
portion indicates this is a probable cause determination. The second suggests the letter
is a finding of violation. The remainder of the letter is either neutral with respect to the
issue or indicates that the letter is a probable cause determination. The probable cause
determination is per se admissible under Plummer. The sentence suggesting a finding
of violation stands alone, without any findings of fact or law stated in support of it.
Including the unsupported statement as part of the letter has a potential for confusing
the jury and usurping their role as fact finders. Thus, the Court finds that the sentence
containing this phrase should be redacted from the exhibit. It is otherwise admitted.
3. Defendant's Motion in Limine No. 3 to exclude nine (9) potential witnesses and the
video clip disclosed one business day after the close of discovery is DENIED on that
ground as there was no showing of prejudice or any effort made by the defendant after
the December 2013 close of discovery to challenge or otherwise rectify any perceived
prejudice. However, with respect to the video clip, the motion is granted as no
independent evidentiary basis exists to support its admission into evidence.
4. Defendant's Motion in Limine No. 4 to exclude any and all evidence relating to an
editorial opinion letter written by Sheriff Rodney Mitchell and published in the Lake

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County News on June 6, 2010 is GRANTED. The campaign dispute between Sheriff

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Mitchell and Francisco Rivero is, at best, only tenuously connected to the instant

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dispute. However, the Court will entertain a request to revisit the issue if appropriate

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for impeachment. Fed. R. Evid. 403.

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5. Defendant's Motion in Limine No. 5 to exclude evidence of unproven allegations of

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racial profiling against the Lake County Sheriff Department, including the related

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video clip is GRANTED. The Court will not have a trial within a trial regarding

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allegations of conduct related, at best, distantly to the instant case. Fed. R. Evid. 403.

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6. Defendant's Motion in Limine No. 6 to exclude evidence that plaintiff did not copy

Court will not have a trial within a trial regarding the unproven allegations which do

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Northern District of California

the crime report and for an adverse instruction based on spoliation is DENIED. The

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United States District Court

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not bear significantly on the case at hand. To do so would require additional testimony,

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potentially expert, and result in undue delay and a waste of time. Fed. R. Evid. 403.

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7. Defendant's Motion in Limine No. 7 to exclude evidence of anonymous blog posting

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is GRANTED. No evidentiary basis exists to support such anonymous postings.

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Further, the proffer that they would be admissible “for the purpose of showing their

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effect on Plaintiff,” is unavailing. Given that the posts are anonymous, any effect is

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irrelevant because it cannot be connected to any conduct on the part of defendant. The

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documents at issue bear designations MDM 130-169, 175-178, 254-270, 284-365, 366-

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447, 448-469, 470-503, 1331-1335, 1410-1413, 1416-141432, 6604-7748, 7497-7500

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and 7510-7513. Fed. R. Evid. 802, 901.

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This terminates Dockets 118-124, 126-134, and 136-138.
IT IS SO ORDERED.
May 31, 2014
______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT JUDGE

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Case4:13-cv-00521-YGR Docurnent69-7 Filed02/05l14 Pagei of 2
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Lakeport CA 95453

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Respondent

Utulec the authority vCcted in me by the C.onunission. I isstK the followi
the malts ofthe wbJeet chafe tiled undo Tide VII ofthe(;lull Rights ng dcteraoination as to
Act of 1964,ai amended
("'T~de VA"). A!tjurisdictional requiremaus hsv~e ban met.
T'!~a Respondent is an employer arithln the meaning of Tide V11 and all other cequlre
maus fer
coverage have been met.
Ttu Chsrgiag Party alleges that lu waa aubJected w }~er~ent and denEed promoti
on to the
Sergeant positt~t because ofMs national ocfgi~.Iranian, in violation ofTitle Vit.
The Rdpondent drnies the disctfininstiat. The Raspondccntt contends that the Chargin
g Party
a~ complelned ofdiscrimination And that the Charging Party wAs demoted for Inappropziata
conduct in 20Q7 and that he contirnud ro coc~dcoct himulf 1n. an ueiprofessiona! manna.
Additlonelly, what he applied for a pmmotioa in 2009 ire wa' not selected because he ranked
loaner than tde suocessR~l cendfdate.
t have detann~ned that the evldaice obauncd iu the investigation establishes ~+easonabte cause to
believe that the Respar~dait discriminated against the Charging Parry and a class ofindividuals
by aubjecdng them to harassment bocause oftheir national origin,in viotat~on ofTitle Vit.
Howaver, based oa the investigation. mn wmble to conclude that the Charging Party wai denied
!
e pnunotion because of his nations! origia~ in violation ofTitle V1I. This does not ccrtit~r that the
Reapondeat is 1a compliance with the stawte.
Based- on the raord as a whole. J find that the Respondent has engaged to di~crim~natory its in
violation of7itk V[t.

EE00000067

MDM00570

Case4:13-cv-00521-YGR Document69-7 Filed02/05/14 Paget of 2
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g~tcrmination
EEOC Charge No.: 550.2009-01824
Page 2
Section 706(b) of Title VII of the Civil Rights Act of 1964. as amrnded, requires that if the
Commission deternunes that there is reasonable cause to believe that the charge is true it shah
endeavor to ellminace the alleged untawtW employma~t practice by infornial methods of
confer~ence~ conciliation and persuasion. Having determined chat there is reasonable cause to
believe that the charge is true, the Commission now invites the parties to join with it in n
collective et~'ort toward ajust nseludon ofthis matter.
Disctasure ofinformation obtained by the Conunission during the conciliation process will be
made In accordance with Section 706(b)ofTitle VII and Section 1 b01.26 ofthe Commission's
Procedural Reputations. Where the Respondent declines to enter into setttanent discussions,or
when eke Comm[sslon's rcpresentetive for any other reason. is unable to secure a settlement
acceptable to the District Director, the Director shall so inform the parties in writing end advise
them ofthe court enforcement alternative available to the Charging Party and the Commission.
You ac+e reminded that Federal Iaw prohibits retaliation against persons who have exercised their
tight to iaqu~ire or complajn about matters they believo may violate the law. Discrimination
against persons who havt cooperated in Commission investigations is also prohibits. These
protacrions nppty regardless ofthe Commission's determination on the merits of the charge.

On Behalfofthe Commission.
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Date

Michael Baldanado
District Director

EE00000068

MDM005T1