The opinion of the court was delivered by: Edward J. Lodge, U.S. District Judge
MEMORANDUM DECISION AND ORDER ON MOTIONS IN LIMINE
The Court has before it plaintiff's and defendants' motions in limine (Dkt. 78, 82). The facts and legal arguments are adequately presented in the briefs and record, and oral argument will not aid the decision-making process. The Court will therefore rule without a hearing.
The parties should be aware, however, that in limine rulings are provisional. The Court might change its mind in the context of the trial, and will therefore entertain objections to individual proffers of evidence during trial, even if those proffers fall within the scope of this order. However, the parties are directed to raise these issues in advance, outside the presence of the jury.
Trial judges are afforded wide discretion in determining whether evidence is relevant. United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir. 2004) (citing United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983)). Because "[a]n in limine order precluding the admission of evidence or testimony is an evidentiary ruling,...a district court has discretion in ruling on a motion in limine." United States v. Ravel, 930 F.2d 721, 726 (9th Cir. 1991) (citations omitted).
As already noted, in limine rulings "are not binding on the trial judge [who] may always change his mind during the course of a trial." Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce v. United States, 469 U.S. 38, 41 (1984). Further, just because the Court denies a motion seeking to exclude evidence "does not necessarily mean that all evidence contemplated by the motion will be admitted to trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded." Indiana Ins. Co. v. General Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004).
PLAINTIFF'S MOTIONS IN LIMINE
1. The Probable-Cause Determination
In his first motion in limine, plaintiff seeks an order allowing him to introduce the Idaho Human Rights Commission's probable-cause determination. See May 2009 Letter and Summary of Investigation ("Probable-Cause Determination"), Ex. A to Plaintiff's Motion, Dkt. 79-1.
In Plummer v. Western International Hotels Co., 656 F.2d 502, 504 (9th Cir. 1981), the Ninth Circuit held that a plaintiff has a "right to introduce an EEOC probable cause determination in a Title VII lawsuit, regardless of what other claims are asserted, or whether the case is tried before a judge or jury." Id. at 505. The Ninth Circuit later indicated "the Plummer ruling is not restricted solely to EEOC findings of probable cause but extends to similar administrative determinations, . . . ." Heyne v. Caruso, 69 F.3d 1475, 1483 (9th Cir. 1995).
Notwithstanding Plummer, defendants argue that the Commission's probable-cause determination should be excluded because it (1) bears "little to no relevance to Plaintiff's only [viable] promotion claim"; (2) is "rife with inaccuracies and is incomplete, internally inconsistent, and contradicted by sworn testimony -- in other words it is untrustworthy"; and (3) is unduly prejudicial under Federal Rule of Evidence 403. The Court is not persuaded by these arguments.
As for the first argument -- relevance -- defendants note that although Garcia was passed over for promotion three times (in June 2006, in January 2007, and again in May 2007), he has just one actionable promotion-denial claim, related to the May 2007 denial. This Court previously ruled that the claims related to the first two promotions are time-barred.
The probable-cause determination, however, discusses all three promotions. Moreover, defendants interpret the determination as implicitly finding that racial bias did not motivate the only actionable promotion denial (the May 2007 denial) because (1) the report determined that defendants were not liable "concerning the issue of wages" after May 2007, and (2) elsewhere the report notes that the person who was promoted instead of Garcia in May 2007 had "both mechanical and supervisory experience" -- unlike the persons who were previously promoted instead of Garcia. Probable-Cause Determination,at 6, 7. Defendants thus argue that the entire report is irrelevant.
The Court disagrees. First, as defendants seem to concede, the report could be read as concluding that Mr. Allen discriminated against Garcia with respect to all three promotion denials -- not just the last one. In fact, the report includes a blanket statement that "national origin was a motivating factor in Mr. Allen's decision . . . not to promote Complainant . . . ." Dkt. 79-1, at 7. Second, looking at the issue more broadly, evidence of the time-barred promotion denials is admissible as background evidence to support the timely promotion claim.*fn1 See, e.g., Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2006).
Defendants next contend that the report is not trustworthy and should therefore be excluded under Rule 803(6) and/or 803(8)(c).
In the Ninth Circuit, the trial court begins with a presumption that the disputed report is trustworthy. See Montiel v. City of L.A., 2 F.3d 335, 341 (9th Cir.1993); Johnson v. City of Pleasanton, 982 F.2d 350, 352 (9th Cir.1992). The party opposing introduction of the evidence must present enough negative factors to persuade the court that the report should not be admitted. Johnson, 982 F.2d at 352. This is because the court assumes that public officials perform their duties properly without motive or interest other than to submit accurate and fair reports. Id. at 352-53. Further, "[t]he role of the court in determining trustworthiness is not to assess the report's credibility, but to evaluate whether the report was compiled or prepared in a way that indicates its reliability." Hedgepeth v. Kaiser Found. Health Plan, 73 F.3d 386 (9th Cir. 1986) (unpublished disposition) (citing Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300, 1305-08 (5th Cir.1991)).
The Court is satisfied that the probable-cause determination meets the level of trustworthiness required. Significantly, the only case authority defendants cite in support of their trustworthiness argument -- Hedgepeth v. Kaiser Foundation Health Plan, 73 F.3d 386, 1996 WL 29252, at *2 (9th Cir. 1996) (unpublished table disposition) -- is easily distinguishable. Inthat case, the Ninth Circuit concluded that an administrative finding issued by the Oregon Bureau of Labor and Industries' Civil Rights Division (BOLI) was untrustworthy "on its face" because [t]he report admits the investigator had access to almost no relevant information from Kaiser because Kaiser "has not permitted an opportunity for [its nondiscriminatory] reasons to be tested for pretext." The report simply concludes "[i]n the absence of satisfactory evidence to the contrary, it appears that Complainant's age and opposition to unlawful practices were key factors in Respondent's decision to terminate Complainant." Since the author concedes he was unable to fully investigate the claim, the BOLI determination is inadmissible under FRE 803(8)(c).
There are no such pervasive problems with the report at issue here. In one instance, the report indicates that defendant PSI "provided limited wage data . . . ." Probable-Cause Determination,at 6 (emphasis added); see also Opp., Dkt. 91, at 4 (indicating that the report only considered four other employees' salary, when there were actually 11 other employees). But having access to "limited" wage data is a far cry from having "almost no relevant information."
Further, although defendants say the report is "rife" with inaccuracies, many of the listed inaccuracies are minor. See, e.g., Opp., Dkt. 91, at 7 (observing that the report wrongly notes, at one point that the plaintiff was hired on October 12, 2005, but elsewhere correctly notes that plaintiff was hired on November 4, 2005). And while other inaccuracies are more significant, inaccuracies do not pervade the report, nor are they so serious as to convince the Court that the report is not trustworthy.
Defendants also point out that: (1) some witnesses said one thing to the investigator, and then contradicted themselves in their depositions; and (2) other evidence will undermine the report. But the fact that deponents may have changed their story after talking to the investigator, or that other witnesses might have contradictory information, does not mean the report itself was prepared in such a way to indicate it is not trustworthy.
In sum, defendants' attacks on the determination go more to the weight the jury should give to the determination than to its trustworthiness. And as Plummer observed:
The defendant, of course, is free to present evidence refuting the findings of the EEOC and may point out deficiencies in the EEOC determination on remand [back to the trial court.] Such evidence would go to the weight to be given by the trier of ...