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Wisler v. City of Fresno

July 30, 2008

RICHARD ALLEN WISLER, PLAINTIFF,
v.
CITY OF FRESNO, ET AL, DEFENDANTS.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER VACATING HEARING AND ORDER ON THE PARTIES' DAMAGES MOTIONS IN LIMINE Doc. Nos. 60, 61.

Pursuant to the pre-trial order, Defendants the City of Fresno ("Fresno") and Police Officer Jonathan Long ("Long") (collectively "Defendants") and Plaintiff Richard Wisler ("Wisler") have filed motions in limine with respect to the damages phase of the trial. Hearing on these motions is currently to occur while the jury deliberates in the liability phase of trial. After considering the submissions of the parties, the Court will vacate the hearing and issue the following order on the parties' motions. I. PLAINTIFF'S DAMAGES MOTIONS IN LIMINE

1. MOTION IN LIMINE No. 1:

Evidence of a sexual harassment claim brought against Wisler by a co-worker Plaintiff's Argument Wisler requests preclusion under Rules of Evidence 401 and 403 of evidence regarding a sexual harassment claim made against him by a co-worker. Between July and October of 2002, Wisler was accused of making unwanted and discourteous remarks. The claim resulted in Wisler being moved to a new location and receiving a 10 month pay deduction, but he continues to deny the accusations. The incident has no relevance regarding Wisler's ability to work.

Defendants' Opposition

Defendants argue that the investigation into the 2002 sexual harassment accusation was sustained and Wisler suffered a 10 month pay deduction. They should be allowed to ask whether he has had his pay reduced and the reason for the deduction. Given his history at Cal Trans, which includes a violation of the sexual harassment policy, a jury could conclude that Wisler may not have maintained his job, irrespective of his eye injury.

Resolution

The harassment claim was made in 2002. Six years have now passed and Wisler is still employed with Cal Trans. If his job had been in jeopardy from the incident, it would appear that after six years that jeopardy has passed. Unless there is testimony from a Cal Trans supervisor/manager that the 2002 sexual harassment claim may still cause Wisler's job to be in jeopardy, or that Cal Trans would consider the 2002 sexual harassment claim in making further employment decisions about Wisler, then the 2002 claim is too remote in time and the danger of unfair prejudice to Wisler is substantially outweighed by the evidence's probative value. See Fed. Rs. Evid. 401, 403. However, Wisler is claiming that he would still be fully able to perform his job and would have continued to work at Cal Trans for the foreseeable future, but for Long's punches. Wisler's work history/Cal Trans's evaluation of Wisler as an employee is highly probative of whether Wisler would have continued his employment. If a Cal Trans supervisor/manager can testify that Wisler is still in jeopardy from the 2002 claim, or that Cal Trans will continue to review and consider the 2002 claim in making employment decisions about Wisler, then the danger of unfair prejudice will not sufficiently outweigh the probative value of the 2002 harassment claim. Accordingly, this motion in limine is conditionally GRANTED.

2. MOTION IN LIMINE No. 2:

Evidence that Wisler was suspected by co-workers of drinking on the job Plaintiff' Argument Pursuant to Rules of Evidence 401 and 403, Wisler seeks preclusion of evidence that certain co-workers suspected Wisler of being intoxicated at work. Specifically, Terry Ogle (who supervised Wisler from 2000 to 2003) believed that Wisler was intoxicated since Wisler had a flushed face, would sweat, had glazed eyes, and smelled heavily of aftershave. However, Ogle never directly confronted Wisler, prepared any letters of warning, never recommended that Wisler be terminated, and prepared no written documents indicating that Wisler had come to work intoxicated. Also, Benjamin Carmena (who supervised Wisler from late 2002 to early 2005) stated that he believed he detected the odor of alcohol on Wisler's breath and that Wisler had bouts of drowsiness and falling asleep at his desk. However, Carmena knew that Wisler was on medication (to which he attributed the drowsiness) and, in the last year, Carmena has not detected any odor of alcohol nor seen Wisler asleep. Other supervisors (El-Dahabi and Mahfoud) have not detected alcohol on Wisler, nor been informed or otherwise been made aware of Wisler drinking on the job. In short, "it was never alleged that [Wisler] was drinking while at work, and the assumption was never substantiated."

Defendants' Opposition

Defendants argue that Ogle suspected Wisler of regularly being intoxicated at work due to Wisler's appearance. Ogle testified that he discussed his concerns over Wisler with a supervisor and it was determined that Wisler was never to drive a state vehicle. Carmena testified that Wisler smelled of alcohol at work on a number of occasions and believed that Wisler was coming to work drunk. Carmena also spoke with his supervisor about Wisler. The testimony of Ogle and Carmena are based on daily contact, assessments, and observations. They evaluated his performance and talked to him about problems. Their testimony is relevant.

Resolution

Assessments from Wisler's supervisors are relevant to damages. Nevertheless, although Ogle and Carmena may have discussed Wisler's being drunk with their supervisor, it does not appear that anything resulted from these conversations. From the submissions of the parties, it does not appear that any charges or warnings were ever noted in Wisler's file or brought against Wisler. In other words, there is apparently no documentation with Cal Trans that Wisler was believed to be coming to work drunk. Further, Wisler apparently was not disciplined for coming to work drunk. The undocumented and unsubstantiated suppositions of Ogle and Carmena do not show that Wisler's job was in danger. In the absence of documentation or testimony from a sufficiently high level Cal Trans manager that Wisler's job was or is in jeopardy because he comes or came to work drunk, Carmena's and Ogle's testimony is unduly prejudicial. See Fed. R. Evid. 403.

Accordingly, this motion in limine is conditionally GRANTED.

3. MOTION IN LIMINE No. 3:

Evidence of prior incidents where Wisler allegedly was drunk and may have sought medical treatment Plaintiff's Argument Over five years prior to his encounter with Long, Wisler was taken to a hospital by ambulance after police were called to his residence due to complications with medications. Wisler was hospitalized for two to three days. Also, Wisler's father testified about an incident where Wisler collapsed at an event in San Diego and went to a hospital. Wisler's father was not told that the collapse was alcohol related. Also, Wisler's wife recalled an incident about 5 to 7 years prior to her deposition in which Wisler called the police due to hallucinations from medication. Also, Wisler's wife testified that she did not recall instances in 1998 and 1999 wherein Wisler fell and injured his nose and eyes, possibly while drinking.*fn1 These incidents, which Defendants may attempt to classify as alcohol related, all occurred years before the incident with Long. There is no dispute that Wisler has a history of alcoholism, but there is also no dispute that Wisler has been employed gainfully for many years. These incidents shed no light on the issues in this case and are confusing, unduly prejudicial, and a waste of time.

Defendants' Opposition

Defense experts, Drs. Seymour and Koobatian, have reviewed documents, conducted research, interviewed Wisler, and formed opinions about Wisler. If these opinions are attacked or the basis for the opinions questioned, then testimony should be allowed regarding the basis for the opinions, including specific incidents. See Fed. R. Evid. 703. Also, certain incidents may be relevant as to Wisler's credibility. For example, in applying for employment with Cal Trans, Wisler denied having a history of drug and alcohol abuse. Defendants are entitled to question Wisler about false information he gave to his employer.

Resolution The incidents identified by Wisler are not specifically addressed by Defendants, rather only a generalized Rule 703 argument is made. Based on Wisler's representations, it appears that each incident he identifies occurred at least five years prior to his encounter with Long. Further, none of these incidents appear to have occurred at or in connection with work. Wisler has never denied that he has had an alcoholism problem, and he admits that he was drunk during the incident with Long. These appear to be older incidents that may or may not be alcohol related, but that apparently did not affect Wisler's work. Thus, they have little if any relevance to the issue of Wisler's damages. At this point, any probative value that these incidents may have is substantially outweighed by the danger of undue prejudice, confusion, and unnecessary consumption of court time. See Fed. R. Evid. 403.

With respect to the Cal Trans questionnaire in which Wisler denied alcohol abuse, that evidence appears to be nearly ten years old. The drug or alcohol problems Wisler may have had at the time of his application are remote in time. For nearly ten years, Wisler has been employed by Cal Trans and he admits that he has had a problem with alcoholism. Any relevance that this remote evidence may have is substantially outweighed by the danger of unfair prejudice. See Fed. R. Evid. 403.

With respect to the opinions of Drs. Seymour and Koobatian, their opinions are not the subject of this motion in limine. Nevertheless, the opposition indicates that these incidents may have helped form the basis of the experts' opinions and that Defendants may wish to offer those facts as rebuttal ...


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