Rodriguez-Malfavon v. Clark County School District et al

Filing 98

ORDER Granting 76 Motion in Limine filed by Elena Rodriguez-Malfavon. Signed by Judge Andrew P. Gordon on 9/28/16. (Copies have been distributed pursuant to the NEF - ADR)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

***

4

ELENA RODRIGUEZ-MALFAVON,

5
6
7
8

Case No. 2:12-cv-1673-APG-PAL

Plaintiff,
ORDER GRANTING MOTION IN
LIMINE

v.
CLARK COUNTY SCHOOL DISTRICT,
EDWARD GOLDMAN, and ANITA
WILBUR,

9

(ECF No. 76)

Defendants.

10
11

Plaintiff Elena Rodriguez-Malfavon’s remaining claim in this case asserts Title VII

12

retaliation against defendant Clark County School District (“CCSD”) based on a 2010 negative

13

performance evaluation while she worked in the purchasing department. ECF No. 50 at 16-17.

14

She moves to preclude at trial use of a 2011 unsatisfactory performance evaluation. She argues

15

the 2011 performance evaluation is not relevant because it was given by a different supervisor at

16

a different location for a different job. She also argues the evaluation is inadmissible under

17

Federal Rules of Evidence 404(a) and (b). Finally, she contends the 2011 evaluation should be

18

excluded under Rule 403 because it would result in a mini-trial over her performance in a

19

different department.

20

CCSD responds that the 2011 performance evaluation and written warnings Rodriguez-

21

Malfavon received are relevant because they tend to make it less probable that the 2010

22

evaluation was retaliatory. Specifically, CCSD argues the two evaluations raise similar concerns

23

about Rodriguez-Malfavon’s work ethic, ability to perform assigned tasks, and failure to provide

24

value to her employer as an administrator. CCSD also argues that even if this evidence

25

constitutes “other act” evidence under Rule 404, CCSD should be able to present it to rebut

26

Rodriguez-Malfavon’s anticipated testimony that she had positive performance reviews in

27

different divisions prior to joining the purchasing department.

28

1

Under Rule 404(a)(1), “[e]vidence of a person’s character or character trait is not

2

admissible to prove that on a particular occasion the person acted in accordance with the character

3

or trait.” Under Rule 404(b)(1), “[e]vidence of a crime, wrong, or other act is not admissible to

4

prove a person’s character in order to show that on a particular occasion the person acted in

5

accordance with the character.” Such evidence “may be admissible for another purpose, such as

6

proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or

7

lack of accident.” Fed. R. Evid. 404(b)(2).

8

The 2011 evaluation is inadmissible under Rule 404(a) because CCSD wants to admit it to

9

show Rodriguez-Malfavon has certain character traits, such as having a poor work ethic. It is also

10

inadmissible under Rule 404(b) because CCSD wants to admit it to demonstrate that Rodriguez-

11

Malfavon engaged in other acts showing she is a poor employee to suggest she was also a poor

12

employee the prior year in the purchasing department. CCSD has not argued any exception in

13

Rule 404(b) applies. I therefore exclude the 2011 evaluation under Rule 404. See Neuren v.

14

Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1511 (D.C. Cir. 1995) (holding that written

15

evaluations from prior employer were inadmissible under Rule 404 in sex discrimination case

16

where the evidence was admitted to show the employee had the same performance problems at

17

the prior employer); E.E.O.C. v. Serramonte, 237 F.R.D. 220, 223 (N.D. Cal. 2006) (“Work

18

performance with other employers, either before or after the defendant employer, is inadmissible

19

under Rule 404(a). . . .”).

20

Additionally, evidence that is otherwise admissible under Rule 404 is still subject to Rule

21

403’s balancing of probative value against prejudicial effect. See, e.g., United States v. Cherer,

22

513 F.3d 1150, 1157-59 (9th Cir. 2008). Even if the 2011 evaluation is admissible, I would

23

exclude it under Rule 403 because it would result in a time-consuming and confusing mini-trial

24

over Rodriguez-Malfavon’s performance at a different job working for a different supervisor.

25

Rauh v. Coyne, 744 F. Supp. 1181, 1184 (D.D.C. 1990).

26
27

CCSD argues that even if the 2011 evaluation is inadmissible under Rule 404, CCSD
should nevertheless be able to use it to rebut Rodriguez-Malfavon’s anticipated testimony that she

28
Page 2 of 3

1

received positive reviews while working in other divisions prior to joining the purchasing

2

department. Rule 404 is not a one way street. It precludes Rodriguez-Malfavon from offering

3

evidence to show she performed well in other divisions to prove she performed well in the

4

purchasing department. Thus, any evidence that she received positive evaluations or awards in

5

the other divisions is inadmissible under Rule 404. See id. (excluding the plaintiff’s witnesses

6

from testifying about her work performance at other employers that was being offered to rebut the

7

defendants’ reason for her discharge).

8
9

However, this general bar does not include the positive evaluation she received in June
2009 while working in the purchasing department. Because that evaluation was for work

10

performed in the same department, it is admissible and is relevant to the issue of pretext. See ECF

11

No. 50 at 12.

12

Finally, Rodriguez-Malfavon is not precluded from describing her work history and

13

background of her employment with CCSD. She thus may identify what positions she held, when

14

she held them, and what type of work she performed. But she may not present evidence or

15

testimony that she received positive performance evaluations, awards, bonuses, promotions, or

16

the like prior to her time in the purchasing department.

17

DATED this 28th day of September, 2016.

18
19
20

ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

21
22
23
24
25
26
27
28
Page 3 of 3