Carosella v. One World Translation & Associates, Inc.

          ORDER ON MOTIONS IN LIMINE

          William J. Martinez, United States District Judge

         Plaintiff Cynthia Carosella (“Carosella”) was a human resources director at Defendant One World Translation & Associates, Inc. (“One World”) for approximately six months in 2013. She claims that, during her tenure, she discovered and also personally experienced sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”); and also pay discrimination in violation of the Equal Pay Act, 29 U.S.C. § 206(d). She further alleges that she reported at least the discrimination others experienced to her superiors and suffered retaliation as a consequence. She now brings claims against One World for sex discrimination in violation of Title VII, retaliation in violation of Title VII, sex discrimination in violation of the Equal Pay Act, retaliation in violation of the Equal Pay Act, libel, and intentional infliction of emotional distress. The matter is set for trial beginning October 9, 2018.

         Currently before the Court is Carosella's Motion in Limine on Various Issues (ECF No. 107) and One World's Motion in Limine (ECF No. 108). As to each of these motions, the Court grants in part, denies in part, and denies in part without prejudice to re-raising the matter at trial.

         I. PLAINTIFF'S MOTION (ECF No. 107)

         A. Item 1: “Certain Emails.”

         Before her alleged constructive discharge, Carosella forwarded e-mails from her One World e-mail box to her personal e-mail address. She marked up some of these forwarded e-mails. After her discharge, she returned all of these forwarded e-mails, with markups (if any), to One World via a thumb drive. She now wishes to use these e-mails at trial as evidence of the content of the original e-mails (i.e., the e-mails as they existed in her One World inbox) because One World can no longer locate the originals. (ECF No. 107 at 2-3.)

         One World agrees not to challenge the authenticity of the thumb drive e-mails but “reserves the right to ask limited questions about the underlying [originals] for the purpose of informing the jury regarding the unique formatting and content of [the thumb drive versions].” (ECF No. 116 at 2.) One World also reserves “all other objections . . . including but not limited to relevance, hearsay, and unfair prejudice.” (Id.)

         The Court grants Carosella's motion to the extent of One World's authenticity concession. The motion is denied without prejudice to the extent Carosella argues that the e-mails, or any one of them, are fully admissible. Such a ruling must await trial and will turn on their content and the context in which they are presented.

         B. Item 2: After-Acquired Evidence

         The thumb drive e-mails are part of a larger collection of One World documents that Carosella collected before her alleged constructive discharge and then kept for herself after that event. She argues that these documents' only possible relevance is to One World's after-acquired evidence defense, i.e., that it would have terminated Carosella for collecting One World documents on her personal computer. She further argues that the after-acquired evidence defense is only relevant to her damages, if any. Before that, she says, the evidence would not only be irrelevant but also excludable as unduly prejudicial and as impermissible character evidence. She therefore requests “separate hearings to bifurcate the issues of liability and damages to avoid potential prejudice.” (ECF No. 107 at 5-6.)

         One World responds that this evidence is relevant to rebut Carosella's claim of constructive discharge and it “substantiates the truth of certain allegedly defamatory statements.” (ECF No. 116 at 2.) In other words, it is not relevant solely to the after-acquired evidence defense.

         The Court does not have enough context to make a blanket ruling about the alleged after-acquired evidence. Moreover, it is far too late to suggest a bifurcated trial. Accordingly, the request for bifurcation is denied and the request to exclude the after-acquired evidence is denied without prejudice to renewal at trial in the context of a specific exhibit or line of questioning.

         C. Item 3(a): Child Support Payments & Unemployment Benefits

         Carosella receives monthly child support payments. In 2013 (the year of her alleged constructive discharge) and 2014, she received unemployment benefits. She requests that all of these amounts be excluded from evidence so that One World cannot use them to argue for an offset against any back pay award. (ECF No. 107 at 6-7.)

         Defendant agrees not to introduce evidence of child support payments. As to unemployment benefits, however, One World points to EEOC v. Sandia Corp., 639 F.2d 600, 624-26 (10th Cir. 1980), and Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1555 (10th Cir. 1988), both of which arguably stand for the proposition that a district court has discretion whether to deduct unemployment benefits from a back pay award, although seemingly with a preference for not deducting such benefits. (See ECF No. 116 at 3.)

         The Court need not resolve this question in this posture. If unemployment benefits are deductible from a back pay award, that is a question the Court should address through a postjudgment motion. It is not something for the jury to decide. Carosella's request is therefore granted-One World may not introduce evidence at trial of either child support benefits or unemployment benefits.

         D. Item 3(b): Loans from Friends

         Carosella has also relied on loans from friends since her alleged constructive discharge. She argues that evidence of these loans is irrelevant and that “any reference to those monies should be redacted from [her] 2015 tax return, if such exhibit is submitted into evidence.” (ECF No. 107 at 7.)

         One World responds that “[t]hese loans-and the reasons for obtaining [them]- are unquestionably relevant to [Carosella's] motivation in filing suit; and [Carosella] put these facts at issue when she listed attempted foreclosures on her home and the personal loans she took to ...