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Hathaway v. Idaho Pacific Corp.

United States District Court, D. Idaho

December 8, 2017



          David C. Nye, U.S. District Court Judge


         This 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.


         Relevant 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. 1983)).

         Even if 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.” Fed.R.Evid. 403.

         Finally, “[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).


         Hathaway 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).

         The 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 388.

         The 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.

         A. Terrance Cagle

         IPC 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.

         By 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, ...

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