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Maes v. Leprino Foods Co, Inc.

United States District Court, D. Colorado

March 22, 2017

DOROTHY MAES, Plaintiff,
LEPRINO FOODS COMPANY, INC., a Colorado corporation Defendant.



         Plaintiff Dorothy Maes (“Plaintiff”) brings this action against her former employer, Defendant Leprino Foods Company, Inc. (“Defendant”), for employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and the Colorado Anti-Discrimination Act, C.R.S. §§ 24-34-401 et seq. (“CADA”). (ECF No. 6.) The trial of this action is scheduled to commence on April 3, 2017, with the Final Trial Preparation Conference set for March 23, 2017. (ECF Nos. 60, 65.) This matter is before the Court on Defendant's Motion in Limine (“Motion”). (ECF No. 63.) For the reasons set forth below, the Motion is denied in its entirety.

         I. ANALYSIS

         Defendant's Motion seeks evidentiary rulings on the admissibility of the following evidence prior to trial: (1) “testimony by Plaintiff regarding what she was allegedly told her [sic] by her co-worker(s);” and (2) “‘me-too' testimony by Ms. Jaramillo.” (Id. at 3, 7.) At the outset, the Court finds Defendant's argument as to the second category of evidence moot, given that Plaintiff has not endorsed Ms. Sylvia Jaramillo as a witness on her final witness list. (ECF No. 79.) Thus, the Court will only address the first category of evidence.

         Defendant seeks to preclude “the admission of any testimony by Plaintiff as to what her co-workers, including without limitation Sylvia Jaramillo, allegedly told her about discriminatory conduct they claim to have experienced while working at [Defendant].” (ECF No. 63 at 3.) Defendant provides three arguments to support the exclusion of such evidence under Federal Rules of Evidence 401, 403, and 802. As explained below, the Court concludes that it cannot grant a pretrial exclusion based on the record now presented, and thus denies Defendant's Motion without prejudice to any objections which may be properly made at trial.

         A. Rule 401

         Under Federal Rule of Evidence 401, “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401.

         Defendant argues that any such evidence would be “irrelevant to Plaintiff's claims and must be excluded pursuant to Fed.R.Evid. 401.” (ECF No. 63 at 2-3.) Presuming that Plaintiff will testify as to conversations she had with Ms. Jaramillo, Defendant contends that any alleged statements by Ms. Jaramillo are irrelevant because “Plaintiff and Ms. Jaramillo worked in different positions, on different teams, with different co-workers and different supervisors, and claim to have suffered discrimination at different times and in different ways.” (Id. at 4.) Plaintiff maintains that she “is trying to prove that her workplace was objectively and subjectively offensive” and that “what [Plaintiff] knew of other acts of harassment is relevant to that consideration[.]” (ECF No. 66 (citing Tademy v. Union Pacific Corp., 614 F.3d 1132, 1146 (10th Cir. 2008)) (emphasis in the original).)

         Instructive on the relevance issue is Unal v. Los Alamos Public Schools, 683 Fed. App'x 729 (10th Cir. 2016). In Unal, the Tenth Circuit stated that “evidence of harassing comments directed at other nationalities will support an inference of a national-origin-based hostile work environment if [Plaintiff] was present when they were made or otherwise became aware of them during the time that she was allegedly subject to a hostile work environment.” Id. at 737. There the court concluded that any comments or conduct directed at other nationalities were relevant and could be considered in assessing the work environment. Id. Further, the Tenth Circuit has consistently found this category of evidence relevant in Title VII hostile work environment actions. See Ridgell-Boltz v. Colvin, 565 Fed. App'x 680, 685 (10th Cir. 2014); accord Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1094-95 (10th Cir. 2007).

         Although the Court does not have before it identification of the co-workers that spoke to Plaintiff (other than Ms. Jaramillo), or the exact content of their alleged statements, the Court finds that it would be inclined to find Plaintiff's testimony regarding these conversations relevant under Fed.R.Evid. 401. However, this is conditioned on Plaintiff demonstrating that she was aware of the alleged harassment or discriminatory conduct during the time period in which she was allegedly subject to a hostile work environment. See Unal, 683 Fed. App'x at 737. For example, Defendant asserts that Ms. Jaramillo allegedly experienced discrimination between June 2014 and January 2015. (ECF No. 63 at 6.)[1] The record makes clear that Plaintiff worked for Defendant from September 2013 through November 2013. (ECF No. 6 at 2, 9.) Thus, the Court would not find relevant any statements regarding alleged discrimination experienced by Ms. Jaramillo that were communicated to Plaintiff after she was no longer employed by Defendant. By contrast, if Ms. Jaramillo (or other coworkers) experienced discriminatory conduct during the time period that Plaintiff was employed by Defendant and they made Plaintiff aware of such alleged conduct, then the Court would be inclined to find Plaintiff's testimony as to these conversations relevant under Fed.R.Evid. 401. However, as noted above, the Court cannot definitively resolve the Rule 401 issue at this time given the record before it.

         B. Rule 403

         While relevant evidence is generally admissible at trial, it “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403.

         Defendant contends that the evidence must be “excluded under Fed.R.Evid. 403 because the only source of information Plaintiff proposes to offer as to the alleged statements is herself.” (ECF No. 63 at 4.) Defendant asserts that such testimony would be “unduly prejudicial” because Defendant “would be denied the opportunity to expose the allegations['] deficiencies through cross-examination of Ms. Jaramillo and/or other of Plaintiff's former co-workers.” (Id.) Plaintiff responds arguing that “[c]ourts do not have the authority to exclude evidence because a party might not be truthful. Thorough cross-examination is how parties address testimony of their opponent, not by excluding the evidence a priori.” (ECF No. 66 at 4.) Defendant also contends, under Rule 403, that Plaintiff's testimony should be excluded or else “undue delay and waste of time” would result if Defendant “is required to conduct one or more mini trials-within-this trial to rebut the statements Plaintiff intends to attribute to the [sic] Ms. Jaramillo and/or other former co-workers.” (ECF No. 63 at 5 (citing Fed.R.Evid. 403).)

         The Court finds neither of Defendant's arguments under Rule 403 persuasive. First, the Court disagrees with Defendant's assertion that allowing Plaintiff to testify “would open the door to abuse” because Plaintiff “could say practically anything she wanted.” (Id. at 4.) As Plaintiff correctly notes, Defendant's counsel will have the opportunity to thoroughly cross-examine Plaintiff to probe the veracity of her testimony. Second, Defendant would not be “forced to call an untold number of witnesses” or “be unfairly tasked with defending itself” against these allegations of discriminatory treatment. (Id. at 5.) To the extent Defendant's argument is that it is unsure of the number or identity of any other victims of discrimination, the ordinary remedy would have been to take discovery on these issues. Thus, the claim of an “untold number of witnesses” lacks merit and should have been pursued in discovery by Defendant ...

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