Johnson v. San Diego, City of et al

Filing 56

ORDER: Granting in Part and Denying in Part Motion in Limine to Exclude Irrelevant or Time-Barred Evidence [ECF No. 50 ]; Granting Motion in Limine to Exclude Waived and/or Abandoned Affirmative Defenses [ECF No. 51 ]. Signed by Judge M. James Lorenz on 4/9/2019. (lrf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RASEAN JOHNSON,

Case No.: 3:17-cv-00410-L-NLS
Plaintiff,

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v.

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ORDER:

CITY OF SAN DIEGO,

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GRANTING IN PART AND
DENYING IN PART MOTION IN
LIMINE TO EXCLUDE
IRRELEVANT OR TIME-BARRED
EVIDENCE [ECF No. 50]

Defendant.

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GRANTING MOTION IN LIMINE
TO EXCLUDE WAIVED AND/OR
ABANDONED AFFIRMATIVE
DEFENSES [ECF No. 51]

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Pending before the Court are two motions in limine filed by Plaintiff Rasean Johnson

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(“Johnson”). ECF Nos. 50, 51. The instant motions seek to exclude evidence or reference

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to such found irrelevant and/or time-barred by applicable statutes of limitation in the

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Court’s order on Defendant City of San Diego’s (“City”) motion for summary judgment

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[ECF No. 24] and previous motion in limine order [ECF No. 48]. See id. Johnson also

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seeks to preclude evidence, testimony, or argument at trial regarding affirmative defenses

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pled in the City’s Answer but omitted from the Joint Pretrial Order. See id. Pursuant to

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Civil Local Rule 7.1(d)(1), the Court decides these matters on the papers submitted and
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without oral argument. For the reasons stated below, the Court GRANTS IN PART and

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DENIES IN PART Johnson’s first motion in limine and GRANTS the second motion.

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I.

MANUAL LABOR EVIDENCE (EXHIBITS 87 AND 151)

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Johnson seeks to exclude evidence (Exhibits 87 and 151) and argument that he

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volunteered to perform manual labor tasks rather than being directed to do them by his

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former supervisor Sheila Beale. ECF No. 50 at 4. Johnson contends that such evidence is

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not relevant to his retaliation claim or the two adverse employment actions at issue pursuant

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to the Court’s MSJ ruling.1 Id. Johnson also contends that introduction of this evidence

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would confuse the jury and result in a waste of time and judicial resources. Id. The City

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asserts the exhibits are relevant to rebut Johnson’s complaint that Beale asked him to

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perform tasks outside of his job description and violated workplace safety provisions. ECF

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No. 52 at 3. In the joint pretrial order (“PTO”), the City proffers that this evidence shows

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that Johnson volunteered to perform manual tasks before Ms. Beale was his supervisor.

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However, in light of the single claim set forth in the PTO, Johnson is only raising the

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retaliation claim at trial. See ECF No. 55 at 1-2; L.R. 16.1(f)(6)(c)(2). As such, the Court

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agrees with Johnson as the exhibits are not relevant to the retaliation issue. Therefore, the

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Court excludes such evidence pursuant to Federal Rules of Evidence 403 and 402.

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Accordingly, the Plaintiff’s motion in limine is GRANTED as to this issue.

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II.

EMAILS REGARDING DIGITAL ARCHIVES ASSIGNMENT (EXHIBITS 141 AND 143)

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Johnson contends these exhibits are irrelevant to any claim or defense at issue at trial

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because the exhibits predate the December 13, 2015 cutoff for evidence of adverse

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employment action. ECF No. 50 at 4. Johnson likewise contends the exhibits are unrelated

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to the two adverse employment actions at issue. Id. In opposition, the City contends these

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exhibits relate to workplace interactions and a source of possible tension between Beale

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The Court permitted Johnson’s retaliation claim to survive to the extent it is based on the following
retaliatory actions: 1) the February 11, 2016 removal of Johnson’s role as imaging department supervisor;
and 2) Johnson’s April 2016 transfer to the Public Utilities Department (“PUD”). See ECF No. 24.
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and Johnson that may bear on causation issues. ECF No. 52 at 4-5. The City argues that

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the admissibility of this evidence should be determined at trial. Id. at 5. In the PTO, the

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City proffers that this evidence will be used to rebut any claim that this assignment was

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retaliatory since it was assigned to Johnson before he engaged in protected activity. ECF

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No. 55 at 48-49. Despite no evidence indicating the assignment was given prior to

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September 9, 2015, the Court still agrees with the City as this evidence may bear on the

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claim and defenses at issue during trial. Therefore, the admissibility of this evidence will

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be determined, if objected to, based on its intended use at trial. Accordingly, the Plaintiff’s

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motion in limine is DENIED without prejudice as to this issue.

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III.

PERSONNEL ACTION REQUESTS (EXHIBITS 33 AND 36)

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Johnson seeks to exclude two personnel action request forms, dated March 25, 2010

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and August 9, 2013, claiming the forms do not rebut his contention that he was being

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“groomed” for positions in the City Clerk’s Office. ECF No. 50 at 5. The City asserts that

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the evidence is relevant to Johnson’s stated intention to spend his career in the City Clerk’s

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office and any harm attributed to his transfer to PUD. ECF No. 52 at 5. Upon review of

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the exhibits, the Court finds that Johnson made multiple inaccurate assertions regarding

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what these exhibits illustrate. Likewise, Johnson’s citation to Federal Rule of Evidence 106

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is overstated unless he, as the adverse party, would seek to introduce other parts of the

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exhibits, other writings, or a recorded statement that should be considered in the interest of

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fairness. The City’s offer of proof shows it intends to use these exhibits to rebut Johnson’s

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claim that he was being groomed for positions within the Clerk’s office. ECF No. 55 at

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16-17. However, the City now asserts these exhibits now are relevant to liability and

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damages. ECF No. 52 at 5. While the Court recognizes the waning relevance of these

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exhibits with the City’s shifting intentions for its use, the admissibility of this evidence will

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be best evaluated at trial. Accordingly, Johnson’s motion in limine regarding these exhibits

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is DENIED without prejudice.

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IV.

HAROLD BARCLAY’S TESTIMONY REGARDING HIS EEO INVESTIGATION

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Plaintiff seeks to exclude testimony, evidence, or argument by Harold Barclay

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regarding the details of his investigation. ECF No. 50 at 5-6. The City contends Harold

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Barclay’s testimony will be used to introduce exhibits, testify concerning the City’s EEO

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policies and the process of investigating a discrimination complaint, and admonishments

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made during investigation. ECF No. 53 at 7-8. The joint exhibits the City seeks to

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introduce could be introduced through other witnesses; for example, joint exhibit 5 (a letter

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from Harold Barclay to Johnson dated March 28, 2016) could expectedly be introduced

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during Johnson’s testimony. Likewise, the admonishments regarding the City’s policy

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prohibiting retaliation given to the complaining party and subject of the investigation could

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be testified to through those parties, Johnson and Beale. The Court agrees with Johnson in

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that any testimony Barclay may give should not touch on the contents of his investigation.

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Nonetheless, in this pretrial vacuum, the Court refrains from deciding the admissibility

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question here. During trial, the Court can make a much clearer assessment of the relevance

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and admissibility of Barclay’s testimony. As such, Johnson’s motion in limine to exclude

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Harold Barclay’s testimony is DENIED without prejudice.

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V.

TESTIMONY OF BONNIE STONE

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Johnson seeks to exclude the testimony of Bonnie Stone, claiming the only subject

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upon which she is qualified to testify has been excluded—Johnson’s grievance allegations.

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ECF No. 50 at 6. The City points out that Ms. Stone is a witness which the City reserves

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the right to call and it would be premature to preclude the City from reserving their right

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to elicit testimony from Ms. Stone. ECF No. 52 at 8-9. Contrary to Johnson’s contention,

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the City asserts that Ms. Stone may provide relevant evidence beyond testimony regarding

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Johnson’s grievance allegations, namely, percipient witness testimony of the working

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relationship between Johnson and Beale prior to and after Johnson engaged in protected

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activity on September 9, 2015. Id. at 9. The City also represents that Ms. Stone testimony,

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if called, would not touch on the previously-excluded subject area. The Court agrees with

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the City that, at this point, it would be hasty to preclude Ms. Stone’s testimony before the
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trial. However, Johnson is welcome to renew his objection to Ms. Stone testifying at trial,

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and the Court shall decide then. Therefore, Johnson’s motion in limine to preclude Bonnie

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Stone from testifying is DENIED without prejudice.

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VI.

DEPARTMENT-WIDE TRAINING (INCLUDING EXHIBIT 39)

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Johnson seeks to exclude exhibit 39, a December 2015 email exchange between City

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employees Elizabeth Maland and Yajaira Gharst, which discusses ensuring that all

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managers were up-to-date on all supervisory-related training and intentions to hold a one

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hour training from supervisors highlighting the guidelines regarding working out of

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classification. See ECF Nos. 50 at 6-7, 50-1. In the PTO, the City contends this exchange

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“shows steps taken by the City Clerk’s Office in response to Plaintiff’s retaliation

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complaint.” ECF No. 55 at 18. Johnson asserts that the City’s contention is groundless as

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the email pre-dates either adverse employment action at issue or his EEOC complaint. ECF

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No. 50 at 7. Similarly, Johnson contends that, to the extent the email was in response to

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his September 9, 2015 grievance about being assigned to manual labor tasks, exhibit 39

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should be excluded due to the Court’s exclusion of the contents of that grievance. Id. The

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City claims exhibit 39 will show that retaliation is prohibited by City policy and is relevant

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to whether intentional discrimination can be shown. ECF No. 52 at 9. The City also asserts

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that exhibit 39 “suggests the training would possibly occur in January 2016.” Id. (Emphasis

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added). The City further asserts that training on “working out of classification” may have

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relevance pertaining to the nexus between Johnson’s protected activity and the adverse

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employment action(s). Id. at 10.

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The Court finds the City’s assertion misguided. The City previously highlighted

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joint exhibits one and twelve as evidence showing that retaliation is prohibited under City

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policy, diminishing exhibit 39’s relevance and making its introduction needlessly

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cumulative under Rule 403. Given the speculative timetable in the email and the lack of

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evidence showing this training was eventually held, the City’s contention that Ms. Beale

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was trained on the City’s anti-retaliation policy before Johnson complained her alleged

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retaliation falls flat. In fact, the City never confirms if or when this training was ever held.
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Moreover, the City’s bare assertion regarding exhibit 39’s relevance to the nexus between

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Johnson’s protected activity and the adverse employment actions is unpersuasive. In light

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of the foregoing reasons and the Court’s prior orders, including its exclusion of exhibits 87

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and 151 above, Johnson’s motion in limine regarding exhibit 39 is GRANTED.

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VII. AFFIRMATIVE DEFENSES

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In a separate motion in limine, Johnson moves for “an order excluding evidence of

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or reference to” the affirmative defenses the City failed to identify in the PTO and those

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solely related to non-triable claims pursuant to the Local Rules and Federal Rules of

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Evidence. See ECF No. 51. Johnson clarifies that he “is not seeking to preclude affirmative

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defenses related to causation, damages, or available remedies that . . . may be fairly pursued

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and argued at trial.” Id. at 1. However, in reliance on Local Rule 16.1(f)(6)(c)(2), Johnson

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asserts that each defense not listed in the PTO in accordance with Local Rule 16.1(f) must

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be dismissed with prejudice. Id. at 3. In opposition, the City contends Johnson’s motion

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is “overbroad, improper, unnecessary, and may lead to unintended consequences that are

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prejudicial to the City.” ECF No. 53 at 1.

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One matter a court may consider, inter alia, before issuing a final pretrial order is

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the formulation and simplification of defenses. Fed. R. Civ. P. 16(c)(2)(A). In the Ninth

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Circuit, “[a] defendant must enumerate its defenses in a pretrial order even if the plaintiff

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has the burden of proof. El-Hakem v. BJY Inc., 415 F.3d 1068, 1077 (9th Cir. 2005) (citing

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Southern Cal. Retail Clerks Union v. Bjorklund, 728 F.2d 1262, 1264 (9th Cir. 1984)). The

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Ninth Circuit has “consistently held that issues not preserved in the pretrial order” are

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“eliminated from the action.” So. Cal. Retail Clerks, 728 F.2d at 1264 (citing U.S. v. Joyce,

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511 F.2d 1127, 1130 n. 1 (9th Cir. 1975)). “The very purpose of the pretrial order is to

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narrow the scope of the suit to those issues that are actually disputed and, thus, to eliminate

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other would-be issues that appear in other portions of the record of the case.” So. Cal.

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Retail Clerks, 728 F.2d at 1264. Once signed, “[a] pretrial order has the effect of amending

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the pleadings and controls the subsequent course of action of the litigation.” Northwest

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Acceptance Corp. v. Lynwood Equip., Inc., 841 F.2d 918, 924 (9th Cir. 1988) (internal
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quotations and citations omitted). A pretrial order may only be modified “to prevent

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manifest injustice.” Fed. R. Civ. P. 16(e).

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The City has waived the defenses asserted in its answer, which are not succinctly

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listed in the amended PTO. The PTO makes no reference to any of the thirty-two (32)

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defenses Johnson seeks to preclude. The City had multiple opportunities to include these

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defenses in their pretrial order but chose to generally describe its defenses to the retaliation

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claim. The purpose of the pretrial order is to narrow the scope of issues at trial, and a party

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waives the issues not raised in the pretrial order. While the City asserts that precluding

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evidence of these affirmative defenses would have intended consequences, these bare

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assertions do not show the need to prevent injustice to merit an amendment to the pretrial

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order. Surprisingly, the City does not request a modification of the pretrial order but

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suggests that Johnson object at trial “if the City offers actual evidence” relating to these

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defenses that is a surprise. ECF No. 53 at 2. Surprise is exactly what a pretrial order is

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intended to prevent and the City’s gamesmanship only bolsters the need to eliminate these

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defenses. As such, the City has waived all defenses Johnson points out as not raised in the

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PTO. Therefore, Johnson’s motion in limine regarding waived affirmative defenses is

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GRANTED. Accordingly, the City is precluded from presenting evidence, testimony, or

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argument at trial regarding the 32 affirmative defenses not listed in the PTO.

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VIII. MITIGATION EVIDENCE

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Lastly, Johnson requests the Court order the City be precluded from introducing

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evidence, argument, and testimony to the jury that he failed to mitigate his economic losses

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at the compensation damages stage. ECF No. 51 at 4. The City asserts that evidence that

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Johnson has only applied for one promotional opportunity over the last three years is

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relevant to the jury’s ability to determine compensatory damages. ECF No. 53 at 5-6.

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However, the requirement to mitigate damages does not apply to Title VII claims seeking

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compensatory damages. See generally E.E.O.C. v. Fred Meyer Stores, Inc., 954 F.Supp.2d

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1104, 1128 (D. Or. June 17, 2013) (“If Congress intended there to be a duty to mitigate all

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compensatory damages, it is illogical that it chose to single out back pay alone.”).
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Moreover, the Court finds that the parties have stipulated that the City waive and refrain

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from presenting evidence to the jury regarding its worker’s compensation claim exclusivity

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affirmative defense. ECF No. 51-2 at 2. Therefore, the Court GRANTS Johnson’s motion

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in limine regarding mitigation evidence.

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presenting any evidence, argument, and testimony regarding Johnson failing to mitigate

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his economic loss damages to the jury.

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IX.

Accordingly, the City is precluded from

CONCLUSION & ORDER

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For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART

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Johnson’s motion in limine to exclude irrelevant or time-barred evidence [ECF No. 50].

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Also, the Court GRANTS Johnson’s motion in limine to exclude waived and/or abandoned

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affirmative defenses in its entirety.

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IT IS SO ORDERED.

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Dated: April 9, 2019

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