Gardner v. Del Toro

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRETT GARDNER, Case No.: 20-cv-2172-MMA (RBB)

12 Plaintiff, NOTICE AND ORDER PROVIDING 13 v. TENTATIVE RULINGS RE: MOTIONS IN LIMINE 14 CARLOS DEL TORO, Secretary, Department of the Navy, 15 [Doc. No. 43] Defendant. 16 17 18 On September 19, 2022 at 2:30 p.m., Plaintiff Brett Gardner (“Plaintiff”) and 19 Defendant Carlos Del Toro (“Defendant”) will appear before the Court for a pretrial 20 conference and hearing on Defendant’s motions in limine, Plaintiff’s brief in opposition 21 thereto, and Defendant’s objections to Plaintiff’s pretrial disclosures. See Doc. Nos. 43, 22 46, 47. 23 DEFENDANT’S MOTIONS IN LIMINE 24 1. The Court tentatively GRANTS Defendant’s motion to exclude all evidence and 25 argument regarding other Equal Employment Opportunity (“EEO”) claims filed against 26 Plaintiff’s former supervisor, Claudia Garcia. The Court tentatively finds that evidence 27 and argument regarding other EEO claims may be relevant but that any probative value is 28 substantially outweighed by the risk of unfair prejudice. 1 2. The Court tentatively GRANTS IN PART AND DENIES IN PART 2 Defendant’s motion to exclude all evidence and argument relating to Plaintiff’s dismissed 3 retaliation claim, as well as all evidence and argument relating to any purported wrongs 4 committed by the Navy after July 24, 2018. 5 a. To the extent Defendant seeks to exclude all evidence, argument, or 6 references relating to Plaintiff’s dismissed retaliation claim in this case, the Court 7 tentatively GRANTS the motion because any such evidence and argument are 8 irrelevant to Plaintiff’s surviving race discrimination claim. 9 b. To the extent Defendant seeks to exclude all evidence, argument, or 10 references of “purported wrongs” that occurred after Plaintiff’s non-selection on 11 July 24, 2018, the Court tentatively DENIES the motion. The Court tentatively 12 finds the motion is overbroad as presented. 13 c. Based on Plaintiff’s pretrial disclosures, he does not intend to call 14 Michelle Gomes as a witness. See Doc. No. 41 at 22–23. Accordingly, the Court 15 tentatively DENIES AS MOOT Defendant’s motion to exclude Gomes as a 16 witness. 17 d. Based on the foregoing, Plaintiff may be allowed to present evidence of 18 “purported wrongs” that occurred after Plaintiff’s non-selection July 24, 2018. 19 Accordingly, the Court tentatively DENIES the motion seeking to prevent 20 Christopher Root from testifying as a witness. 21 3. The Court tentatively GRANTS Defendant’s motion for an order prohibiting 22 Plaintiff from: (1) arguing that he was constructively discharged; and (2) attempting to 23 recover wages that he allegedly lost after his voluntary resignation. The Court tentatively 24 finds that because “constructive discharge is treated as a stand-alone claim in the Ninth 25 Circuit, . . . [it] must be specifically alleged and properly exhausted[,]” Terry v. City of 26 San Diego, No. 06-cv-1459-MMA (CAB), 2012 U.S. Dist. LEXIS 7661, at *4–5 (S.D. 27 Cal. 2012) and that Plaintiff has not alleged a constructive discharge claim, see Doc. No. 28 1. Accordingly, the Court tentatively finds that Plaintiff cannot seek front pay, and that 1 he is also not entitled to seek back pay on his Title VII claim after the date of his 2 resignation. See Terry, 2012 U.S. Dist. LEXIS 7661, at *4–5. 3 4. The Court tentatively GRANTS IN PART AND DENIES IN PART 4 Defendant’s motion for an order excluding all evidence, argument, and references in 5 support of Plaintiff’s claim that Defendant destroyed evidence. 6 a. To the extent Defendant seeks to exclude evidence, argument, and 7 references relating to the purported destruction of evidence on Plaintiff’s Navy 8 laptop, the Court tentatively GRANTS the motion. 9 b. To the extent Defendant seeks to wholly exclude evidence, argument, and 10 references to the purported destruction of the selection panel’s interview notes, the 11 Court tentatively DENIES the motion. The Court tentatively finds that Magistrate 12 Judge Brooks’ November 2, 2021 ruling did not address any interview notes and 13 therefore does not provide a basis for excluding all evidence, argument, and 14 references to any interview notes. 15 5. The Court tentatively DENIES Defendant’s motion for an order excluding the 16 purported statistical evidence compiled by Plaintiff regarding other Navy employees’ 17 races. The Court tentatively finds the evidence or argument regarding the purported 18 statistical evidence (1) relevant and (2) more probative than unfairly prejudicial. The 19 Court also tentatively finds that Federal Rule of Evidence 701 and 702 do not, at present, 20 provide a basis for excluding the purported statistical evidence. 21 DEFENDANT’S OBJECTIONS TO PLAINTIFF’S PRETRIAL DISCLOSURES 22 1. Consistent with the Court’s tentative ruling regarding Motion in Limine # 2, the 23 Court tentatively OVERRULES Defendant’s objections to Plaintiff’s intention to call 24 Joseph Becker, Christopher Root, Alcide Richards, Marilyn Leon, and Fernando Loera. 25 2. The Court tentatively SUSTAINS Defendant’s objection to Plaintiff’s intention 26 to call Capt. Supko. The Court tentatively finds Plaintiff did not identify Capt. Supko as 27 a potential witness in his initial disclosures or during any supplemental discovery 28 disclosures, as required under Federal Rule of Civil Procedure 26(a). 1 3. The Court tentatively OVERRULES Defendant’s objections to Plaintiff’s use 2 of deposition transcript and/or deposition video at trial.1 3 4. The Court tentatively rules as follows regarding Defendant’s objections to 4 sixteen of Plaintiff’s exhibits: 5 a. The Court tentatively SUSTAINS Defendant’s objections to the 6 Declaration of Brett Gardner – March 4, 2019. The Court tentatively finds the 7 evidence irrelevant and therefore sustains the objection on that basis. 8 b. The Court tentatively SUSTAINS Defendant’s objections to the Rebuttal 9 Declaration of Brett Gardner – March 15, 2019. 10 c. The Court tentatively SUSTAINS Defendant’s objection to the use of 29 11 C.F.R. § 1602.14 as an exhibit. The Court tentatively finds that any probative 12 value is substantially outweighed by the risk of confusing and misleading the jury. 13 The Court therefore tentatively sustains the objection on that basis. 14 d. The Court tentatively SUSTAINS Defendant’s objections to Plaintiff’s 15 Formal Complaint of Discrimination, dated November 13, 2018. The Court 16 tentatively finds the evidence should be excluded because the probative value is 17 substantially outweighed by the risk of confusing and misleading the jury. The 18 Court therefore tentatively sustains the objection on that basis. 19 e. The Court tentatively SUSTAINS Defendant’s objections to Plaintiff’s 20 Initial Disclosures, dated March 29, 2021, and enclosed document. The Court 21 tentatively finds the evidence irrelevant and therefore tentatively sustains the 22 objection on that basis. 23 f. The Court tentatively RESERVES RULING as to Defendant’s objections 24 to Department of the Navy Human Resources Service Center Southwest Standard 25 26 27 1 If Plaintiff intends to introduce a deposition rather than live testimony, he must satisfy Federal Rule of Civil Procedure 32. But at this time, the general objection to the use of all depositions is tentatively 28 l Operating Procedure 12335.4C and EEOC Management Directive 110 because the 2 Court has not been provided copies of these documents. 3 g. The Court tentatively OVERRULES Defendant’s objections to the 4 remaining exhibits. The Court tentatively finds it lacks sufficient information to 5 rule on the remaining grounds for objection. The Court tentatively finds that these 6 rulings should be without prejudice to Defendant raising these arguments and 7 objections at trial. 8 As these rulings are tentative, the Court looks forward to the oral arguments of 9 || counsel. 10 IT IS SO ORDERED. 11 ||Dated: September 12, 2022 13 HON. MICHAEL M. ANELLO 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28