Walker v. City of Pocatello et al

Filing 105

MEMORANDUM DECISION AND ORDER Plaintiff's Motion in Limine (Dkt. 79 ) is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JOHN WALKER,
Case No. 4:15-cv-0498-BLW
Plaintiff,

MEMORANDUM DECISION
AND ORDER

v.
CITY OF POCATELLO, a political
subdivision of the State of Idaho;
SCOTT MARCHAND, in his
individual and official capacity;
BRIAN and ROGER SCHEI, in his
individual and official capacity.
Defendants.

INTRODUCTION
Before the Court is Plaintiff John Walker’s Motion in Limine to exclude
Exhibits 2002, 2003, 2035, 2036, 2037,1 and any evidence that he was in violation

Plaintiff’s motion refers these exhibits by slightly different numbers, however
Defendants’ exhibit list, filed with the court, shows this exhibit as described above. The Court
references these exhibits as they appear on Defendants’ exhibit list filed with the Court.
1

MEMORANDUM DECISION AND ORDER - 1

of his FMLA medical restrictions. Dkt. 79. Because many of the issues raised by
the Plaintiff’s motion require more context, the Court’s decision is provisional in
nature and, unless otherwise indicated, may be revisited during the trial when the
Court will have the benefit of considering the motion within the broader
framework of the fully record.
BACKGROUND
Trial in this matter is set for July 20, 2020. After extensive litigation, Walker
has five remaining claims ready for trial, including violations of the Family
Medical Leave Act and Rehabilitation Act. Walker now seeks to exclude certain
Defendants’ exhibits and evidence related to his FMLA claims.
LEGAL STANDARD
There is no express authority for motions in limine in either the Federal
Rules of Civil Procedure or the Federal Rules of Evidence. Nevertheless, these
motions are well recognized in practice and by case law. See, e.g., Ohler v. United
States, 529 U.S. 753, 758 (2000). They key function of a motion in limine is to
“exclude prejudicial evidence before the evidence is actually offers.” Luce v.
United States, 469 U.S. 38, 40 (1984). A ruling on a motion in limine is essentially
a preliminary ruling, which may be reconsidered in the context of trial. Id. at 41.
ANALYSIS
A.

Exhibit 2002

MEMORANDUM DECISION AND ORDER - 2

Defendants’ Exhibit 2002 is a portion of the regulations implementing the
FMLA, 29 C.F.R. § 825.300, et seq. Walker argues the Court should exclude the
regulations because their admission would intrude on the Court’s role of
instructing the jury on the law. The City argues it does not intend to introduce the
regulation to instruct the jury on the law. Instead, it intends to introduce the
regulations to show their good faith and non-discriminatory intent.
In an FMLA interference claim the employer’s intent is irrelevant. Sanders
v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011). In an FMLA retaliation
claim the plaintiff must prove that he engaged in a protected activity, the employer
took an adverse employment action, and there was a casual link between the two.
The plaintiff must prove that the protected activity was the but-for cause of
defendants’ retaliation. Cheeks v. General Dynamics, 22 F.Supp.3d 1015 (D.
Arizona 2014). At trial, the McDonnell Douglas framework does not apply.
Sanghvi v. City of Claremont, 328 F.3d 532, 537 (9th Cir. 2003). However, to
persuade the fact-finder that there is no causal link between the protected activity
and the adverse employment action, the City may still present evidence of a
legitimate, nondiscriminatory reason for its action. Id. Thus, the City’s reliance on
the regulations may be relevant to show a nondiscriminatory reason for the actions
it took. Additionally, if an employer held in violation of § 2615 proves the

MEMORANDUM DECISION AND ORDER - 3

violation was made in good faith and on reasonable grounds that the action was not
a violation, courts may reduce the liquidated damages. 29 U.S.C. §
2617(a)(1)(A)(iii). Thus, the City’s reliance on the regulations is a relevant issue in
this case.
Courts allow testimony that references the law at issue, as long as it is not
used to instruct the jury on the law. United States v. Diaz, 876 F.3d 1194, 1199
(9th Cir. 2017). See also Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d
998, 1017 (9th Cir. 2004) (admitting expert testimony that referenced California’s
statutory provisions); Escobar v. Nevada Helicopter Leasing LLC, No. CV 1300598 HG-WRP, 2020 WL 1076107, * (D. Haw. Mar. 6, 2020) (allowing the
admission of federal regulations because they were relevant to the issue of standard
of care in the plaintiff’s state tort claim).
Because the City’s good faith reliance on the FMLA regulations may be
relevant to issues of this case, the Court will not exclude Exhibit 2002. However,
the City must still establish relevance, by showing that the regulations were in fact
considered by the relevant decision- and policy-makers.
B.

Exhibit 2003

Exhibit 2003 contains an excerpt of the Family and Medical Leave
Handbook. Walker argues the exhibit should be excluded because the materials
serve only to instruct the jury on the law. Dkt. 79-1 at 2–3. The City argues it

MEMORANDUM DECISION AND ORDER - 4

relied on these materials in conducting the actions at issue in this case, and thus
they are evidence of the City’s good faith reliance on the law.
As discussed above, the City may present evidence of a nondiscriminatory
reason for its actions, including a lack of retaliatory intent. The City claims they
referred to the handbook for guidance on how to lawfully require recertification of
Walker’s FMLA leave. This evidence may be relevant to the City’s argument that
its conduct towards Walker was non-discriminatory. The handbook was apparently
published in 2004. However, if it was still being relied upon by the City in making
decisions relevant to Mr. Walker’s FMLA leave, it would be relevant.2
C.

Exhibits 2035, 2036, and 2037

Exhibits 2035, 2036, and 2037 contain investigative materials and letters
regarding prior investigations by the City into other employees’ use of FMLA
leave. Walker argues (1) the exhibits are prejudicial because they contain the name
of his counsel, and (2) the information is not relevant because the previous
incidents are not similarly situated to the present case. Dkt. 79-1 at 3–5. The City
responds by arguing the similarities between those incidents and Walker’s situation

2

Walker also argues that the exhibit was not timely disclosed. It is not apparent from the
briefing when the exhibit was disclosed to Walker. The Court may entertain an objection to this
exhibit if it was disclosed after the close of discovery.

MEMORANDUM DECISION AND ORDER - 5

is an issue of fact for the jury. Dkt. 88 at 6–7.
1. Name of Counsel
In Exhibits 2035 and 2036, the City redacted the dates and target employee
names from the materials. However, the name of Walker’s counsel, Ms.
Casperson, remains in the documents unredacted. The City argues Casperson’s
name is not privileged information warranting redaction. Dkt. 88 at 6. Walker
argues the presence of the name creates undue prejudice against him. Dkt. 79-1 at
3.
Though Casperson’s name is not privileged information, the Court finds the
its inclusion may be prejudicial is not relevant to any issue in this case. Therefore,
the Court will require the redaction of Casperson’s name in the documents.
2. Factual Similarity
Walker further disputes the evidence of the previous incidents because those
situations are not similar to the facts of his case. He notes that the documents are
over 10 years old and involve different decision-makers. The documents detail the
City’s previous investigations and determinations relating to employees’ use of
FMLA leave. Exhibits 2035 and 2036 detail an employee’s termination after using
expired FMLA time and being seen conducting personal business after calling in
sick. Dkt. 79-5; Dkt. 79-6. Exhibit 2037 involves the termination of an employee
who used sick leave to go to a salon. Dkt. 79-7. The City argues their experience in

MEMORANDUM DECISION AND ORDER - 6

these previous incidents helps demonstrate their non-discriminatory intent in
having Walker surveilled. Walker argues the situations are factually dissimilar and
therefore irrelevant.
“Courts must be careful not to resolve factual disputes or to weigh evidence
when ruling on a motion in limine.” Vasquez v. City of Idaho Falls, 2020 WL
1860394, *3 (D. Idaho Apr. 13, 2020) (citing C & E Servs., Inc. v. Ashland Inc.,
539 F. Supp. 2d 316, 323 (D.D.C. 2008). Unless a motion in limine meets the
standard of showing the evidence is inadmissible on all potential grounds, a ruling
“should be deferred until trial so that questions of foundation, relevancy and
potential prejudice may be resolved in proper context.” Hawthorne Partners v.
AT&T Tech, Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993). The previous FMLA
incidents and Walker’s situation may be sufficiently analogous that the former
bears on the questions of good faith and retaliatory or discriminatory animus.
However, that is an issue best left for resolution when the Court can consider the
evidence in the broader context of the trial.
Although an exhibit may be relevant, it must also pass muster under Rule
403. If the Plaintiff’s situation is markedly different from that of the employees
referenced in Exhibit Nos. 2035, 3036 and 2037, the exhibits will have limited
relevance in this case. And, extensive discussion about the situation of the other

MEMORANDUM DECISION AND ORDER - 7

employees, the nature of their requests for leave, who the decision-makers were,
and how their requests were handled and investigated may delay the trial and
confuse the jury. For that reason, the Court will require a close “fit” between the
situations involved in Exhibit Nos. 2035, 2036 and 2037 or the exhibits will be
excluded under Rule 403. However, that can only be determined in the context of
the evidence presented during the trial.
D.

Evidence that Walker violated his FMLA medical restrictions

Finally, Walker argues the City cannot offer medical expert testimony
regarding his FMLA medical restrictions because they did not properly disclose the
witnesses under the Federal Rules of Civil Procedure Rule 26(a)(2). Further,
Walker argues the Court should exclude evidence that he violated his restrictions
because the City did not follow the proper recertification protocol under 29 U.S.C.
§ 2613(c) and (d).
1. Disclosure of Witnesses
Walker argues the City failed to properly disclose any medical experts, and
that any of the City’s medical experts would not be sufficiently knowledgeable
about his certification to qualify. The City argues, however, that the testimony they
seek to admit is not expert testimony, but rather the testimony of witnesses who
have personal knowledge of Walker’s behavior in the context of his medical
restrictions.

MEMORANDUM DECISION AND ORDER - 8

A witness who is not testifying as an expert may only testify to an opinion
that is (a) “rationally based on a witness’s perception,” (b) “helpful to clearly
understanding the witness’s testimony or to determining a fact in issue,” and (c)
“not based on scientific, technical, or other specialized knowledge within the scope
Rule 702.” F.R.E. 701. So long as a witness proffered by the City does not offer
any opinion testimony that requires medical expertise, he or she will not be
excluded for failure to comply with the disclosure requirements of Rule 26. On the
other hand, the witness will not be allowed to offer any expert opinions since they
were not disclosed as expert witnesses.
2. FMLA Recertification Process
Walker further argues that the City is barred from introducing evidence of
his violations of his FMLA restrictions because an employer’s only avenue of
challenging the legitimacy of an employee’s FMLA leave is requiring the
employee to seek a second medical opinion to challenge the initial certification.
The City argues the recertification protocol is not at issue because the evidence
serves only to address the preliminary issue of whether there was reason to doubt
Walker’s certification. Dkt. 89.
Walker relies on Sims v. Alameda-Contra Costa Transit District, 2 F. Supp.
2d 1253, 1262 (N.D. Cal. 1998), which held that an employer who doesn’t seek a
second opinion waives its right to later contest the initial medical certification.

MEMORANDUM DECISION AND ORDER - 9

However, the Sims case was not appealed, and the Ninth Circuit has not had an
occasion to directly address this issue. Moreover, every circuit court to consider
the issue has held that an employer is not foreclosed from challenging the initial
certification even though it failed to obtain a second medical opinion. Pollard v.
New York Methodist Hospital, 861 F.3d 374 (2nd Cir. 2017); Murphy v. FedEx
Nat. LTL, Inc., 618 F.3d 893, 902 (8th Cir.2010); Novak v. MetroHealth Med. Ctr.,
503 F.3d 572, 580 (6th Cir.2007); Rhoads v. F.D.I.C., 257 F.3d 373, 385–86 (4th
Cir.2001). While the district judge in Sims did an excellent job of analyzing the
issue, the Court is unwilling to adopt that analysis given the unanimous, contrary
view taken by the circuit courts which have directly considered the issue.
Thus, in the Court’s view, an employer “may” make an employee seek a
second or third medical opinion to challenge the initial certification of FMLA
leave, but is not required to do so. The failure to seek a second opinion does not
prevent the City from challenging the legitimacy of the certification. 29 U.S.C. §
2613(c) & (d).
The issues of whether a second medical opinion should have been requested
by the City and whether the surveillance of Walker was justified are issues of fact
which will need to be addressed by the jury. Therefore, the Court will not exclude
evidence of Walker’s alleged violation of his FMLA restrictions.

MEMORANDUM DECISION AND ORDER - 10

ORDER
IT IS ORDERED that Plaintiff’s Motion in Limine (Dkt. 79) is DENIED
as described above.

DATED: July 9, 2020

_________________________
B. Lynn Winmill
U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 11