Walker v. City of Pocatello et al

Filing 108

ORDER Defendants' Motion in Limine 80 is granted in part and denied in part as described in the order. Signed by Judge B. Lynn Winmill. (wcf)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JOHN WALKER,
Case No. 4:15-cv-00498-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 Defendants’ Motion in Limine to Limit Evidence at
Trial. Dkt. 80. The motion is fully briefed.
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. Defendants seek to exclude certain

MEMORANDUM DECISION AND ORDER - 1

evidence related to Walker’s 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.
Thus, unless otherwise indicated in this decision, any such preliminary ruling may
need to be revisited in the context of the evidence actually presented at trial.
ANALYSIS
A.

Evidence of denial of promotion

Defendants seek to exclude any evidence that Walker was denied a
promotion to captain. Dkt. 80-1 at 6-7. Defendants argue that Walker had no
reasonable expectation or entitlement to the promotion and that the FMLA only
ensures a plaintiff is able to return to the job they had before taking leave. Id. at 78. Defendants further argue that the Ninth Circuits decision established that Walker
was not entitled to a promotion. Id. at 8.
The Court already addressed this last contention in its order on Defendants’

MEMORANDUM DECISION AND ORDER - 2

motion for reconsideration. Dkt. 71 at 4. Walker’s retaliation claims under the
Rehabilitation Act and FMLA require Walker to show that he suffered an adverse
employment action. The Court rejected Defendants’ argument that, because
Walker did not have a protectible property interest in a promotion, he could not
establish an adverse employment action. Id.
Refusal to consider an employee for a promotion can constitute an adverse
employment action. See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir.
2000). Likewise, the FMLA regulations prohibit employers from using FMLA
leave as a negative factor in employment actions, including promotions. 29 C.F.R.
§ 825.220(c). Further, the regulations allow the Court to provide equitable relief
for violations of the FMLA, including promotion. Id. § 825.220(b). Accordingly,
the Court will deny Defendants’ motion and allow Walker to present evidence
related to the alleged refusal to promote him after he took FMLA leave.
B.

Events occurring prior to September 2015

Defendants seek to exclude evidence pertaining to events prior to September
2015, when Walker took his FMLA leave. Dkt. 80-1 at 3. Defendants argue that
this evidence is not relevant to any of Walker’s claims. Walker generally agrees to
limit evidence of events prior to September 2015, but argues that he should be able
to provide evidence related to his job performance and medical condition prior to

MEMORANDUM DECISION AND ORDER - 3

taking leave. Dkt. 96 at 2. Walker argues that this evidence is relevant to provide
context for his employment with the City and demonstrate subsequent adverse
employment actions. Id.
Under his FMLA interference claim Walker must establish “by a
preponderance of the evidence that his taking FMLA leave constituted a negative
factor” in Defendants’ decision not to promote him. Bachelder v. Am. W. Airlines,
Inc., 259 F.3d 1112, 1125 (9th Cir. 2001). Walker can establish this using either
direct or circumstantial evidence, or both. Id. Here Walker’s performance reviews
shortly before he took FMLA leave are circumstantial evidence that Defendants
considered it a negative factor in their decision not to promote him. Further,
Walker’s performance reviews may be circumstantial evidence supporting his
retaliation claims. Therefore, the Court will deny the motion as to the evidence,
which Walker identified in his response to Defendants’ motion.
C.

Evidence of this lawsuit

Defendants seek to exclude evidence of this lawsuit as evidence of a
protected activity. Dkt. 80-1 at 10. Defendants argue that Walker cannot use
evidence of the second amended complaint, filed in 2017, as protected activity for
which defendants took actions against him in 2015 and 2016. Id. at 11-12. Walker
responds that he instituted FMLA investigations before the second amended

MEMORANDUM DECISION AND ORDER - 4

complaint was filed and that Defendants retaliated against him for those
investigations. Dkt. 96 at 6. Walker further argues that he should be allowed to
present evidence of retaliation occurring after the filing of the second amended
complaint as adverse employment actions taken against him for instituting FMLA
investigations. Walker suggests that, even though these later retaliatory actions
were not included in his second amended complaint, he put Defendants on notice
through discovery. Dkt. 96 at 7.
The Ninth Circuit has indicated that a plaintiff may pursue claims not
included in the complaint by putting a defendant on notice of them during
discovery. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000).
Obviously, this principle comes into play when events occur after the filing of an
amended complaint which plaintiff believes provide further evidence of FMLA
interference or retaliation. The Court is therefore inclined to allow Walker to
present evidence of his investigations of Defendants FMLA violations and the
filing of this action. Walker is not seeking to add a claim to his complaint, instead
he is seeking to present evidence of the Defendants’ ongoing retaliation. Further,
Walker put Defendants on notice of this theory during discovery. Therefore, the
Court will deny the Defendants’ motion in limine on this issue.
D.

Expert Terry Gazdik

MEMORANDUM DECISION AND ORDER - 5

Defendants seek to exclude the testimony of, and economic report prepared
by, Terry Gazdik. Dkt. 80-1 at 13. A chronology of events is necessary to resolve
Defendants’ motion.
Gazdik was initially disclosed by Walker on November 15, 2016. Gazdik’s
initial report related to Walker’s economic loss from not being promoted in 2013
or not obtaining a position with ISU. Id. On May 8, 2017, Walker filed his Second
Amended Complaint. Dkt. 34. On January 31, 2018, the Court issued its decision
granting in part, and denying in part, the Defendants’ Motion for Summary
Judgment. Dkt. 57. The Defendants appealed the Court’s decision, and the Ninth
Circuit Court of Appeals on April 23, 2019 reversed the Court’s denial of qualified
immunity to the individual defendants and remanded the case for further
proceedings. Dkt. 64. The Defendants then sought reconsideration of the Court’s
earlier decision denying summary judgment, which was ultimately denied on
November 4, 2019. Dkt. 71. Until that point, it was unsettled as to which claims
would actually be tried in this case.
On January 10, 2020, the case was set for trial on July 20, 2020. Dkt. 72.
Roughly two months later, the world changed dramatically with the rise of the
COVID-19 pandemic. This caused the Court to adopt a series of General Orders
vacating all trial settings until the State of Idaho reopened the state to such an

MEMORANDUM DECISION AND ORDER - 6

extent that trials could be held in compliance with the State’s reopening plan.
Although the trial date in this case was never vacated, it was clear to all practicing
attorneys that there was great uncertainty as to whether any civil trials would be
held in the upcoming months. On June 25, 2020, the Court conducted a pretrial
conference with counsel, which was primarily to determine whether the July 20
trial date should be vacated. After conferring with counsel, the trial date was
reaffirmed.
Despite the uncertainty of whether the trial would be held on July 20, the
parties began doing their final trial preparation in late May and early June. On June
4, 2020, Walker’s counsel requested additional documents from the City which
were necessary to supplement Gazdik’s report. The City provided the requested
documents on June 8 and 10. The Defendants filed this motion in limine on June
11, 2020 requesting that Gazdik not be allowed to testify because her report was
premised on claims no longer in the case and because no supplementation had been
filed. Dkt. 80. Walker then served Gazdik’s supplemental report on Defendants on
July 6, 2020. Dkt. 99. The supplemental report now calculates Walker’s economic
loss if he had been promoted in February 2016 or July 2016, including updated
salary information. Dkt. 99-1 at 6.
One part of the Defendants’ argument is easily disposed of. Defendants

MEMORANDUM DECISION AND ORDER - 7

argue that Gazdik’s original disclosure does not relate to any of Walker’s current
claims because it was generated prior to the filing of the second amended
complaint and is not based on his FMLA or Rehabilitation Act claims. Dkt. 80-1 at
13. Defendants also argue that the report is irrelevant because it pertains to
promotions which Walker was not entitled to. However, as explained above,
Plaintiff has a viable claim that the failure to promote may constitute a form of
FMLA interference or retaliation which is compensable in this action. So, this
ground for exclusion has no merit.
More challenging is the Defendants’ argument that the supplementation filed
two weeks before trial is prejudicial and violates the command of Rule 26 that an
expert report must be supplemented, “in a timely manner if the party learns that in
some material respect the disclosure . . . is incomplete or incorrect.” Fed.R.Civ.P.
26(e)(1)(A). Here, there is no question but that the nature of the claims to be
resolved were clearly established after the Court denied the Defendants’ motion for
reconsideration in November 2019. At that point, and certainly by January 10,
2020 when the Court set the current trial date, there was no reason why the
Plaintiffs could not have supplemented Gazdik’s report to more accurately reflect
the time frame and claims which would be submitted to the jury.
On the other hand, although the decisions by this Court and the Ninth Circuit

MEMORANDUM DECISION AND ORDER - 8

have changed the legal theory upon which Walker claims damages for the
Defendants’ refusal to promote him, the theory underlying the economic loss
calculations has not changed. In addition, within 2 months after the Court set the
trial date, the COVID-19 pandemic created havoc in the legal system as both
courts and attorneys tried to sort out the impact of the pandemic on cases that had
been scheduled for trial. Because of that uncertainty, it was not unreasonable for
Plaintiff’s counsel to delay updating Gazdik’s supplementation of her report until
the trial date was certain. Indeed, to do otherwise may have required that the
supplementation be repeated prior to a later trial date if the July 20 trial were
vacated.
On the other hand, Rule 37 does provide that if a party fails to supplement
their expert witness disclosures, they are not allowed to use that witness to supply
evidence on at trial, “unless the failure was substantially justified or is harmless.”
Fed.R.Civ.P. 37(c)(1). And, under normal circumstances, the Court would not be
willing to find that the conduct of Plaintiff’s counsel was “substantially justified”
or that the failure to supplement Gazdik’s report is “harmless” to the Defendants.
But, the circumstances here are unique. First, while Plaintiff’s counsel’s
conduct may not have been substantially justified, it was understandable –
particularly given the charge of Rule 1, that the Federal Rules be “construed,

MEMORANDUM DECISION AND ORDER - 9

administered, and employed by the court and the parties to secure the just, speedy,
and inexpensive determination of every action and proceeding.” Fed.R.Civ.P. 1
(Emphasis supplied). Second, the Court has reviewed Gazdik’s supplemental
report and it does appear to use the same methodology as her earlier report.
Moreover, the changes appear to be based solely on objective data and information
supplied by the Defendants and by PERSI, the state retirement system.
Although Rule 37 provides for a default remedy of excluding supplemental
reports not timely disclosed, it does provide the Court with discretion to consider
other sanctions. Appropriate to this case, the Court may require, as a condition of
admitting the expert testimony, that the offending party pay “reasonable expenses,
including attorney's fees,” caused by the failure to supplement the expert’s report
in a timely fashion. Fed.R.Civ.P. 37(c)(1)(A). That sanction seems measured and
proper here.
Therefore, the Court will deny the Defendants’ motion to exclude Gazdik’s
testimony, but conditioned on the Plaintiff’s payment of reasonable expenses
incurred by the Defendant in having their expert respond to Gazdik’s supplemental
report, and the legal fees incurred for time spent by counsel in reviewing that
response.
E.

Non-expert testimony relating to Plaintiff’s physical/mental health
prior to September 2015

MEMORANDUM DECISION AND ORDER - 10

Defendants seek to exclude testimony from Dr. Matthew Fackrell and Bob
Stahn. Walker does not intend to call these individuals as witnesses at trial.
Therefore, the Court will grant the motion as to these individuals.
F.

Third-Party Witness Testimony

Defendants seek to exclude testimony from Walker’s family members. Dkt.
80-1 at 16. Defendants argue that Walker’s family members do not have any
personal knowledge relevant to Walker’s claims. Walker responds that his family
members were captured on the surveillance tape, which the Defendants failed to
preserve, and have knowledge of his activities during his FMLA leave. Walker
further argues that his family members can testify as to their knowledge the
Defendants actions had on Walker.
The Court does not see how the family members’ testimony is relevant to
Walker’s FMLA or Rehabilitation Act claims. However, the testimony may be
relevant to Walker’s NIED and IIED claims, specifically the degree of his
emotional distress. Therefore, the Court will deny the motion and consider the
issue when it is presented in context.

ORDER
IT IS ORDERED that Defendants’ Motion in Limine (Dkt. 80) is

MEMORANDUM DECISION AND ORDER - 11

GRANTED IN PART and DENIED IN PART, as described above.

DATED: July 11, 2020

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

MEMORANDUM DECISION AND ORDER - 12