The opinion of the court was delivered by: Honorable Mikel H. Williams United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
The Court has before it a motion in limine filed by defendant Turner Industries Group, LLC ("Turner"). (Dkt. 74). The motion is fully briefed and at issue. For the reasons expressed below, the Court will grant the motion in part and deny the motion in part.
The factual background of this case was set forth in detail in the Court's June 22, 2011 Order (Dkt. 40) and will not be repeated here. Turner seeks to exclude: 1) any mention of any alleged harassing behavior by Jack Daniell other than the single "belly bumping" incident; 2) any mention of an alleged consensual sexual relationship between Doug Taylor and Kathie Ledger; 3) any evidence of opinion testimony from Mr. Harrell that he thought Collier did her job well; and 4) any mention of an alleged statement by Eastridge to John Tippetts regarding removing Collier from the work site before December 1, 2008. Turner contends all of this evidence is inadmissible pursuant to Federal Rules of Evidence 401 and 403. Rule 401 defines relevant evidence and Rule 403 allows for the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, among other reasons.
Turner specifically seeks to exclude mention of: (1) Daniell's request that Collier engage in additional training; (2) Daniell's demand that employees wear face shields; (3) Daniell's displeasure over housekeeping, generally; and (4) a "tool crib" incident in which Doug Taylor yelled profanities at Collier.
In evaluating whether these incidents were admissible to support Collier's hostile workplace claims, the Court's June 22 Order held that these incidents "do not, as a matter of law, constitute a hostile workplace." (Dkt. 40: June 22 Order at 22). The Court reasoned that none of these incidents could be attributed to Collier's gender and that, therefore, Collier may not use them to support her hostile workplace claims based on her gender against Turner. However, the Court did not evaluate whether they are admissible to support her retaliation claim.
In support of her retaliation claim, Collier must show that she suffered an adverse employment action because she opposed a practice of her employer made unlawful by Title VII, such as discrimination against an employee based on her gender. See 42 U.S.C. § 2000(e)-3(a). In order to be a protected activity, Collier's opposition must have been directed toward a discriminatory act, such as gender discrimination, by an employer or an agent of an employer. See EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1013-1014 (9th Cir. 1983). Here, the record establishes that Collier complained of Daniell's gender discrimination at the August 4, 2008 meeting with Eastridge. That complaint is her protected activity and it was directed at her employer, as required. She made the complaint upon allegedly learning that Daniell had an issue with her gender and that he was "old school." In an October 28, 2011 Order, the Court held that both of these sentiments were admissible at trial. (Dkt. 112).
When deciding whether to admit evidence regarding the four "harassing" incidents, the Court must first determine whether they are relevant to Collier's retaliation claim, and then weigh their probative value against their danger of unfair prejudice to Turner. Leaning against a finding of relevance, all four of these incidents occurred before the August 4 meeting during which Collier was prompted to make her complaint. Also leaning against a finding of relevance is Judge Winmill's earlier determination that, as a matter of law, these incidents were not related to Collier's gender. Moreover, even if they are relevant to Collier's claim, the Court finds that they could confuse the jury so as to cause unfair prejudice in a way that a limiting instruction would not be able to cure. For each of these reasons, the Court grants Turner's motion to the extent it seeks to exclude any mention of 1) Daniell's request that Collier engage in additional training; (2) Daniell's demand that employees wear face shields; (3) Daniell's displeasure over housekeeping, generally; and (4) the "tool crib" incident in which Doug Taylor yelled profanities at Collier.
Relationship between Taylor and Ledger
Ledger is the Turner employee with responsibility for the tool crib; Taylor is another Turner employee. Their relationship is only relevant should the Court allow testimony regarding the "tool crib" incident, which the Court has disallowed.
Collier has opined that Taylor was mean to her because he and Ledger were involved in a consensual sexual relationship, and Taylor was angered when Collier reprimanded Ledger for not timely opening the tool crib at the plant. The Court's June 22 Order held that the tool crib incident was not related to Collier's gender and therefore could not be used to support Collier's hostile workplace claim. Turner also argues that Collier lacks the sufficient personal knowledge required by Rule 602 to opine as to the existence of this relationship.
Collier argues that the conduct of Turner's employees toward Collier is relevant to Turner's state of mind in terminating her. Specifically, "[t]he fact that Eastridge knew about this incident is relevant to the question of whether he acted on this knowledge when he ...