Schagene v. Mabus et al

Filing 37

ORDER: Defendant's Motion in Limine to Exclude Evidence of Time-Barred Events Alleged by Plaintiff (Doc. 32 ) is denied. Signed by Judge William Q. Hayes on 1/16/2015. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LOLITA SCHAGENE, an individual,

CASE NO. 13cv0333-WQH­
RBB

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vs.
RAYMOND E. MABUS,
SECRETARY OF THE NAVY, and
DOES 1 Through 50, inclusive,

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ORDER

Defendants.

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The matter before the Court is the Motion in Limine to Exclude Evidence of

1511 Time-Barred Events Alleged by Plaintiff filed by Defendant Raymond Mabus. (ECF
16 No. 32).
17 I. Background
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On February 12,2013, PlaintiffLolita Schagene commenced this action by filing

19 a Complaint in this Court. (ECF No.1). On September 26, 2014, the Court held a
20 pretrial conference. On September 29,2014, the Court ordered that "Defendant shall
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file motions addressing all legal issues that can be resolved pretrial by November 3,

22 2014." (ECF No. 30 at 1). On November 4, 2014, Defendant filed the Motion in
23 Limine to Exclude Evidence of Time-Barred Events Alleged by Plaintiff. (ECF No.
24 32). On November 7, 2014, Plaintiff filed an opposition. (ECF No. 34).
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The Complaint alleges that Plaintiff was subjected to continued discrimination
26 II and harassment by her supervisors at Fiddler's Cove Marina from 2004 until 2011.
2711 The Complaint alleges that on January 2, 2011, a co-worker, Brad Richardson, and a
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13CV0333-WQH (REB)

1 supervisor, J arod Koontz, discussed sending a letter to another co-worker, ordering him
2 to rape Plaintiff(the "alleged January 2011 Incident"). The Complaint alleges various
3 other allegedly discriminatory, harassing, or retaliatory actions taken by Plaintiff's
4 supervisors at Fiddler's Cove Marina. The Complaint asserts claims for Title VII sex
5 discrimination, sexual harassment, and retaliation.

6 II. Discussion
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Defendant moves to exclude evidence ofeleven events identified by Plaintiffin
8 her deposition that she believes constitute harassment, discrimination, or retaliation.
9 Defendant asserts that the last allegedly unlawful event occurred on October 31, 2010.
10 Defendant asserts that Plaintiff did not seek Equal Employment Opportunity ("EEO")
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counseling regarding the allegedly unlawful events until February 15,2011. Defendant

12 contends that all allegedly unlawful events are time-barred because Plaintiff failed to
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seek EEO counseling within forty-five days of their occurrences.
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Plaintiff contends that one alleged unlawful event took place on January 14,

contends that the continuing violation doctrine applies to hostile work environment
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claims. Plaintiff contends that tolling, waiver, or estoppel may be applicable in this
case.

A. Legal Standard

"A motion in limine is a procedural mechanism to limit in advance testimony or
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2311 evidence in a particular area." United States v. Heller, 551 F.3d 1108, 1111 (9th
24 II Cir.2009) (citation omitted). "[A] motion in limine should not be used to resolve
2511 factual disputes or weigh evidence." C & E Servs., Inc. v. Ashland Inc., 539 F. Supp.
2611 2d 316, 323 (D.D.C. 2008). "To exclude evidence on a motion in limine the evidence
2711 must be inadmissible on all potential grounds." Goodman v. Las Vegas Metro. Police
28 Dept., 963 F. Supp. 2d 1036, 1047 (D. Nev. 2013) (citation and quotation marks

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13CV0333·WQH (RBB)

1 omitted). "[IJn limine rulings are not binding on the trial judge, and the judge may
2 always change his mind during the course ofa trial." Ohler v. United States, 529 U.S.
3 753, 758 n.3 (2000).

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B. Ruling of the Court

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With respect to the alleged January 2011 Incident, the Court finds that the date

6 on which it occurred is triable issue offact. Plaintiff testified that in January of 20 11,
7 Brad Richardson, a co-worker, and Jarod Koontz, a supervisor, discussed forging a
8 military order to order Danny Myers, another co-worker, to rape Plaintiff. (ECF No.
9 32-1 at 13). Defendant submits the Declaration ofBrandon Workman to demonstrate
10 that this event did not occur, but was Plaintiffs misunderstanding, and that the
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conversation took place on October 31,2010. (ECF No. 32-2). The Court finds that

12 the date on which this alleged event occurred is a factual question not properly resolved
13 lion a motion in limine. C & E Servs., Inc., 539 F. Supp. 2d at 323. Defendant's motion
14 II to exclude evidence of the alleged January 2011 Incident as time-barred is denied.
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With respect to all other allegedly unlawful employment actions, the Court finds

16 II t hat no ground ' lor th· excI ' at th'IS stage mhe proceed'mgs. PI" s:&" s
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s eXIst &:
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1711 second claim for sexual harassment alleges a hostile work environment. For hostile
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work environment claims, "[p]rovided that an act contributing to the claim occurs
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within the filing period, the entire time period of the hostile environment may be
2011
considered by a court for the purposes ofdetermining liability." Nat 'I R.R. Passenger
2111
Corp. v. Morgan, 536 U.S. 101, 117 (2002), If Plaintiff is able to establish that the
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-- alleged January 2011 Incident occurred within the forty-five day period, Plaintiff may
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2411 also be able to establish that the alleged January 2011 Incident and prior incidents
25 II create a hostile work environment, which would constitute "one 'unlawful employment
26 practice.'" Id. at 117 (citation omitted), Even ifPlaintiff is unable to establish a hostile
27 work environment, the Court concludes that evidence of the prior incidents may be
28 admissible for purposes other than Defendant's liability. See id. at 113 (noting that

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13CV0333-WQH (REB)

1 Title VII does not "bar an employee from using the prior [time-barred] acts as
2 background evidence in support ofa timely claim"); Goodman, 963 F. Supp. 2d 1036
3 at 1047 (noting that evidence should not be excluded in limine unless inadmissible for
4 any purpose). Defendant's motion to exclude evidence ofother allegedly time-barred
5 events is denied.
6 III. Conclusion

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Defendant's Motion in Limine to Exclude Evidence of Time-Barred Events

8 Alleged by Plaintiff (ECF No. 32) is DENIED.
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10 II
1111 DATED:

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