Brown v. King County

Filing 101

MINUTE ORDER GRANTING in part and DEFERRING in part Plaintiff's 91 MOTIONS IN LIMINE. Authorized by Judge Thomas S. Zilly. (MW)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CLAUDE BROWN,

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Plaintiff,
C16-1340 TSZ

v.

MINUTE ORDER

KING COUNTY,

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Defendant.

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The following Minute Order is made by direction of the Court, the Honorable
13 Thomas S. Zilly, United States District Judge:
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(1)
Plaintiff’s Motions in Limine, docket no. 91, are GRANTED in part and
DEFERRED in part, as follows:
1.
Exclude evidence and testimony relating to Plaintiff’s job
performance in his Acting Technical Trainer (“ATT”) position – DEFERRED to
the pretrial conference. Plaintiff shall file with the Court a copy of the letter dated
July 17, 2013, from Gabe Ruskeyser to Amanda Nightingale, on or before June 1,
2021;
2.
Exclude evidence of poor job performance prior to any denials of
promotions related to Rail Supervisor in Training (“RSIT”) recruitments –
DEFERRED to the pretrial conference;
3.
Exclude character evidence unrelated to Defendant’s mindset in
denying Plaintiff promotional opportunities – DEFERRED to the pretrial
conference;

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MINUTE ORDER - 1

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4.
Exclude evidence pertaining to the King County Office of Civil
Rights’ (“KCOCR”) “No Reasonable Cause” Findings – GRANTED. As
Defendant acknowledges, KCOCR’s “reasonable cause finding[s] . . . we[re] made
under a different standard for retaliation than the jury will use to determine
liability” in this case. Def. Response to Plaf. MIL (docket no. 96 at 7). Any
probative value in providing the jury with “a complete understanding of the
process” is substantially outweighed by the risk that the jury will give undue
weight to the KCOCR’s final determination. See Fed. R. Evid. 403; Beachy v.
Boise Cascade Corp., 191 F.3d 1010, 1015 (9th Cir. 1999) (explaining that
“[t]here is a much greater risk of unfair prejudice involved in introducing a final
agency ruling as opposed to a probable cause determination, because a jury might
find it difficult to evaluate independently evidence of discrimination after being
informed of the investigating agency’s final results”); see also Gillum v. Safeway
Inc., No. 2:13-CV-01047, 2015 WL 9997201, at *3 (W.D. Wash. Oct. 16, 2015)
(excluding the EEOC’s determination that insufficient facts exist to continue an
investigation under Rule 403’s balancing test).
5.

Exclude testimony of certain former employees of KCOCR:

i.
Declaration of John McDonald, a former KCOCR
investigator for the King County – GRANTED; and
ii.
Testimony of Kelli Williams, the former KCOCR Director –
GRANTED. In light of the Court’s exclusion of KCOCR’s “no reasonable
cause” findings, see ¶ 4 above, Williams’s testimony about KCOCR’s
investigative process will not be relevant or helpful to the jury.
6.
Exclude evidence that Plaintiff has filed or has been involved in
other lawsuits – GRANTED. The Court also excludes evidence of other
discrimination claims against King County or its agents without prior leave of
Court;
7.
Exclude evidence of Plaintiff’s supervisors’ commendations and
awards – GRANTED;
8.
Allow evidence of Defendant’s treatment of other people of color as
relevant to show motive and intent – DEFERRED to the pretrial conference. See
Heyne v. Caruso, 69 F.3d 1475, 1479 (9th Cir. 1995) (“[A]n employer’s conduct
tending to demonstrate hostility towards a certain group is both relevant and
admissible where the employer’s general hostility toward that group is the true
reason behind [taking an adverse action against] an employee who is a member of
that group.”); see also Machado v. Johnson, 191 F. App’x 531, 533 (9th Cir. 2006)
(affirming district court’s exclusion of testimony by other employees who were
not “similarly situated” to Plaintiff, as there were no comparable violations or

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MINUTE ORDER - 2

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timeframes, and some employees were not supervised by the same individuals as
was plaintiff). Plaintiff shall file an offer of proof on or before June 1, 2021,
identifying Plaintiff’s proposed list of witnesses and the nature of his or her
testimony that would be offered to show Defendant’s treatment of people of color
as relevant to show motive and intent, including the approximate dates on which
the alleged treatment occurred;
9.
Exclude non-party witnesses from the virtual courtroom during the
trial – GRANTED;

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10.
Exclude discussion of tax liability or financial burden, if the Court
finds in Plaintiff’s favor – GRANTED; and

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11.
Exclude the fact that Plaintiff has filed motions in limine –
GRANTED.

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(2)
Defendant’s Motions in Limine, docket no. 92, are GRANTED in part,
9 DENIED in part, and DEFERRED in part, as follows:
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1.
Exclude non-party witnesses from the virtual courtroom during trial
– GRANTED;
2.
Allow witness Ivette Martinez-Morales to testify out of order on
June 15, 2021 – GRANTED;
3.
Require Plaintiff to lay a foundation prior to offer evidence
regarding events pre-dating the statute of limitations – GRANTED. The Court
will provide the jury with a limiting instruction relating to any evidence of events
outside of the statute of limitations; and Plaintiff will be required to lay a
foundation prior to offering any evidence regarding events outside the statute of
limitations;
4.
Exclude evidence, testimony, mention, or argument concerning
alleged protected activities other than those pleaded and remanded as part of
Plaintiff’s retaliation claims – the motion is GRANTED in part, as the Court will
exclude any evidence, testimony, mention, or argument concerning alleged
protected activities other than (i) those pleaded in the First Amended Complaint
(“FAC”), docket no. 16, and (ii) which were not resolved as a matter of law by
prior Court order, to the extent that such rulings were upheld by the Ninth Circuit.
The motion, however, is DENIED in part, as the Court will allow evidence,
testimony, mention, or argument concerning alleged protected activities that were
pleaded in the FAC, docket no. 16, and left unresolved by prior Court order, even
if such protected activities were not expressly remanded or addressed by the Ninth
Circuit. See Memorandum Disposition, docket no. 73;

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MINUTE ORDER - 3

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5.
Exclude Plaintiff from arguing liability based on a protected
characteristic other than race – GRANTED;
6.
Exclude Plaintiff from testifying about his own medical conditions
beyond his own sensory perceptions – GRANTED. Plaintiff will be allowed to
testify about his own medical conditions that are within his own sensory
perceptions; and Plaintiff, or any lay witness, will be allowed to testify about any
“opinions result[ing] from a process of reasoning familiar in everyday life” with
respect to Plaintiff’s perceived medical or emotional state. See Fed. R. Evid. 701,
2000 Advisory Committee Notes; see also Cole v. United States, 327 F.2d 360,
361 (9th Cir. 1964); cf. Fed. R. Evid. 702 (opinions that rest on “scientific,
technical, or other specialized knowledge” shall be deemed expert testimony and
inadmissible as lay testimony);
7.

Motion to exclude witnesses not disclosed:
i. John Kwesele – DEFERRED to the pretrial conference;

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ii. Shereese Braun – DEFERRED to the pretrial conference;

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iii. Vendetta Brown – DEFERRED to the pretrial conference;
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iv. Alicia Brown – DEFERRED to the pretrial conference;

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v. Salah Abdi – DEFERRED to the pretrial conference;

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vi. Darryl Easter – GRANTED;

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vii. Shannon Shay – DEFERRED to the pretrial conference;

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viii. Sandra Dodge – DEFERRED to the pretrial conference;

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ix. Erin Clarke – DEFERRED to the pretrial conference;

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x. John Dibble – DEFERRED to the pretrial conference;
xi. Rachel Price – DEFERRED to the pretrial conference;

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xii. Jeff Wachtel – DEFERRED to the pretrial conference;

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xiii. Al Azen – DEFERRED to the pretrial conference;
xiv. Keith Sherry – DEFERRED to the pretrial conference;

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xv. Brian Matthews – DEFERRED to the pretrial conference; and

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MINUTE ORDER - 4

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xvi. David Mathews – DEFERRED to the pretrial conference.
8.
Exclude “me too” evidence regarding discrimination claims of
employees who are not similarly situated, including:
i.
Testimony of Frank King – DENIED in part, to the extent
that King’s testimony is limited to “me too” evidence regarding race
discrimination claims against Defendant, as such testimony is relevant to
Defendant’s motive or intent in taking adverse employment actions against
Plaintiff. See Heyne, 69 F.3d at 1479; see also Machado, 191 F. App’x at
533;
ii.
Testimony of Chris McClure – GRANTED, as Plaintiff does
not intend to call McClure to testify about “me too” evidence of racial
discrimination. See Plaf. Response to Def. MIL (docket no. 99 at 10);
iii.
Testimony of John Kwesele – DENIED in part, to the extent
that Kwesele’s testimony is limited to “me too” evidence regarding race
discrimination claims against Defendant’s employees, as such testimony is
relevant to Defendant’s motive or intent in taking adverse employment
actions against Plaintiff;
iv.
Testimony of Bigyan Pratap – GRANTED, as Plaintiff does
not intend to call Pratap to testify about “me too” evidence of racial
discrimination. See Plaf. Response to Def. MIL (docket no. 99 at 10);
v.
Testimony of Karen Rispoli – DENIED in part, to the extent
that Rispoli’s testimony is limited to “me too” evidence regarding race
discrimination claims against Defendant’s employees, as such testimony is
relevant to Defendant’s motive or intent in taking adverse employment
actions against Plaintiff; and
vi.
Testimony of other witnesses – GRANTED, as Plaintiff does
not intend to call other witnesses to testify about “me too” evidence of
racial discrimination. See Plaf. Response to Def. MIL (docket no. 99 at
10).
9.
Exclude evidence, testimony, mention, or argument concerning nonrelevant pseudo comparators – DENIED in part as to any evidence, testimony,
mention, or argument involving alleged comparators who were interviewed for, or
promoted to, the RSIT or ATT positions, including Jeff Wachtel, Rachel Price,
Justin Swanson, Brian Matthews, John Kwesele, or Macio Santiago. The motion,
however, is GRANTED in part as to any evidence, testimony, mention or
argument of any other alleged comparators;

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MINUTE ORDER - 5

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10.
Exclude witnesses who cannot offer relevant testimony based on
personal knowledge, including:

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i.

Darryl Easter – GRANTED;

ii.
Bruce Laing – DENIED in part, to the extent that Laing’s
testimony is limited to evidence regarding race discrimination claims
against Defendant, as such testimony is relevant to Defendant’s motive or
intent in taking adverse employment actions against Plaintiff; and
iii.
Karen Rispoli – DENIED in part, to the extent that Rispoli’s
testimony is limited to evidence regarding race discrimination claims
against Defendant, as such testimony is relevant to Defendant’s motive or
intent in taking adverse employment actions against Plaintiff.
11.
Exclude evidence or argument criticizing Defendant for exercising
its constitutional right to defend itself against Plaintiff’s claims – GRANTED;
12.
Exclude mention or argument to the jury regarding attorney’s fees
and costs of either party – GRANTED;
13.
Exclude arguments that jurors put themselves into the shoes of
Plaintiff or Defendant – GRANTED;
14.

Exclude arguments for political or punitive effect – GRANTED;

15.
Exclude evidence, testimony, mention, or argument concerning
insurance coverage available to Defendant – GRANTED;
16.
Exclude evidence, testimony, mention, or argument concerning the
expenses of litigation – GRANTED;
17.
Exclude any evidence or mention concerning the parties’ motions for
limine, the Court’s rulings on such motions, and/or previous motions made by the
parties in this case or any other litigation involving Plaintiff – GRANTED;
18.
Allow evidence of the 2013 KCOCR mediation/reconciliation
meeting – GRANTED in the part, to the extent that Defendant lays a foundation
prior to offering such evidence as relevant to cut off any alleged damages to
Plaintiff, see Fed. R. Evid. 408(b);
19.
Require the parties to disclose the orders in which they plan to call
witnesses, with at least one business day notice given for each witness –
GRANTED; and

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MINUTE ORDER - 6

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20.
Limit duplicative testimony regarding Plaintiff’s emotional distress –
DEFERRED to the pretrial conference.

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(3)
The Court anticipates ruling on some of the deferred rulings prior to the
3 pretrial conference. Counsel shall be prepared to address at the Pretrial Conference,
scheduled for June 4, 2021, at 1:30 p.m., all motions in limine that remain deferred.
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(4)
The Clerk is directed to send a copy of this Minute Order to all counsel of
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Dated this 26th day of May, 2021.

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William M. McCool
Clerk

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s/Gail Glass
Deputy Clerk

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MINUTE ORDER - 7