United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. Nye, U.S. District Court Judge
matter comes before the Court on Idaho Pacific
Corporation's (“IPC”) Motion in Limine to
Exclude Purported “Other Acts” Evidence. Dkt. 57.
IPC seeks to prevent Plaintiff Ross Hathaway from introducing
evidence regarding seven other former IPC employees at trial
who share two characteristics with Hathaway: (1) they no
longer work at IPC and (2) at some time during their
employment they filed a workers compensation claim. IPC
argues this testimony is (1) not relevant and thus
inadmissible under Rule 402; (2) “other acts”
evidence that is inadmissible under 404(b)(1); and (3)
confusing, prejudicial, and cumulative and thus inadmissible
under Rule 403. It is unclear to the Court whether Hathaway
seeks to call all seven former IPC employees at trial or
simply present evidence about these employees through a Rule
30(b)(6) deposition transcript. Either way, the Court
concludes that the evidence should not be admitted at trial.
Accordingly, the Court GRANTS the Motion.
THE APPLICABLE RULES
evidence is defined as “evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” Fed R. Evid.
401. Rule 402 provides that “[all] relevant evidence is
admissible . . . . Evidence which is not relevant is not
admissible.” Although the definition of “relevant
evidence” is broad, it has limits; evidence must be
probative of a fact of consequence in the matter and must
have a tendency to make the existence of that fact more or
less probable than it would have been without the evidence.
U.S. v. Curtin, 489 F.3d 935, 943-44 (9th Cir.
2007). Trial judges have “wide discretion” in
determining whether evidence is relevant. United States
v. Alvarez, 358 F.3d 1194, 1205 (9th Cir. 2004) (quoting
United States v. Long, 706 F.2d 1044, 1054 (9th Cir.
evidence is relevant the Court can still exclude it “if
its probative value is substantially outweighed by a danger
of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.”
“[e]vidence of a crime, wrong, or other act is not
admissible to prove a person's character in order to show
that on a particular occasion the person acted in accordance
with the character.” Fed.R.Evid. 404(b)(1). However,
“[t]his evidence may be admissible for another purpose,
such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of
accident.” Fed.R.Evid. 404(b)(2). The Ninth Circuit has
“held that ‘other act' evidence is admissible
under Rule 404(b) if the following test is satisfied: (1)
there must be sufficient proof for the jury to find that the
defendant committed the other act; (2) the other act must not
be too remote in time; (3) the other act must be introduced
to prove a material issue in the case; and (4) the other act
must, in some cases, be similar to the offense
charged.” Duran v. City of Maywood, 221 F.3d
1127, 1132-33 (9th Cir. 2000) (footnote omitted).
argues the testimony of the other former IPC employees is
relevant to show he suffered an adverse employment action
because of his disability, the third element of a valid ADA
claim. See Nunes v. Wal-Mart Stores, Inc., 164 F.3d
1243, 1246 (9th Cir. 1999). Indeed, the “ADA outlaws
adverse employment decisions motivated, even in part, by
animus based on a plaintiff's disability or request for
an accommodation.” Head v. Glacier Nw. Inc.,
413 F.3d 1053, 1065 (9th Cir. 2005).
Supreme Court has taken up the question of the relevance and
the admissibility of so-called “me-too” evidence
in employment discrimination cases- evidence from former,
non-party employees alleging discrimination at the hands of
the defendant-employer. The Supreme Court has clarified that
such “me-too” evidence is “neither per se
admissible nor per se inadmissible.” Sprint/United
Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 380 (2008)
(considering, in age discrimination case, whether district
court properly “excluded testimony by nonparties
alleging discrimination at the hands of supervisors of the
defendant company who played no role in the adverse
employment decision challenged by the plaintiff”).
Rather, “[r]elevance and prejudice under Rules 401 and
403 are determined in the context of the facts and arguments
in a particular case.” Id. at 387. Moreover,
the question of whether “me-too” evidence is
relevant “depends on many factors, including how
closely related the evidence is to the plaintiff's
circumstances and theory of the case.” Id. at
Ninth Circuit has had little occasion to apply
Sprint/United Management. However, in Moore v.
Donahoe, 460 F. App'x 661, 663 (9th Cir. 2011), an
unpublished opinion, the Ninth Circuit found “[t]he
district court did not abuse its discretion by excluding
evidence of other . . . employees' observations regarding
race discrimination.” The panel explained that
“the district court conducted a thorough,
fact-intensive inquiry under Federal Rule of Evidence 401
before determining that the majority of the evidence was not
relevant to [the plaintiff's] claims, ” in part
because the other employees the plaintiff offered were not
“similarly situated” to the plaintiff.
Id. Other circuits, in published opinions, have
interpreted Sprint/United Management as requiring a
similar fact-intensive, case-by-case analysis. See,
e.g., Dindinger v. Allsteel, Inc., 853 F.3d
414, 424-25 (8th Cir. 2017). Thus, the Court turns to such an
inquiry with regard to each proposed witness now.
hired Terrance Cagle on February 22, 2015. After injuring his
knee several times, Cagle re-injured his knee on June 21,
2015, while working as a “bagger.” Cagle failed
to report the injury to IPC until 15 hours after the incident
and after he sought medical attention. This delay in
reporting was a violation of IPC policy. His doctor
authorized him to return to work on June 22, 2015, with some
restrictions. Cagle did not return to work that day. On June
24, 2015, IPC terminated Cagle for excessive absences.
failing to arrive at work on June 22, 2015, Cagle exceeded
the seven unexcused absences IPC allows each employee each
season. Cagle had also been written up several times for
failing to shave, ...