United States District Court, S.D. California
WILLIAM Q. HAYES, District Judge.
The matters before the Court are: (1) Defendant's Motion in Limine No. 8 to Preclude Evidence Offered in Support of Purported Claims for Harassment, Retaliation, and Failure to Prevent Harassment, Discrimination, or Retaliation (ECF No. 119); (2) Defendant's Motion in Limine No. 1 Re: Plaintiff's Improper Witness Disclosures (ECF No. 106); and (3) Plaintiff's Motion in Limine #11 to Preclude Cross Examination of Scott Wilson by Defense Counsel (ECF No. 124).
On December 1, 2011, Plaintiff John Simmons ("Simmons") initiated this action in San Diego Superior Court with a Complaint against Defendant Morgan Stanley Smith Barney, LLC ("MSSB") - his former employer. (ECF No. 1-1). Plaintiff alleges that Defendant unequally compensated him and ultimately fired him on account of his Mormon religion. The Complaint contains statutory claims for discrimination pursuant to California Government Code § 12940(a) ("FEHA") and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), and non-statutory claims for fraud, wrongful termination in violation of public policy, and breach of contract. On December 12, 2011, Defendant removed the action to this Court.
Trial is set to commence before a jury on March 11, 2014 on Plaintiff's claims that Defendant unlawfully discriminated against him in violation of Title VII and California Government Code § 12940(a). On February 25, 2014, the Court issued an order ruling on the majority of the motions in limine filed by the parties. (ECF No. 187). On February 27, 2014 and March 6, 2014, the parties filed supplemental briefing related to the three motions in limine which remain pending.
RULINGS OF THE COURT
I. Defendant's Motion in Limine No. 8 to Preclude Evidence Offered in Support of Purported Claims for Harassment, Retaliation, and Failure to Prevent Harassment, Discrimination, or Retaliation (ECF No. 119)
A. Contentions of the Parties
Defendant moves the Court for an order precluding Plaintiff "from asserting or offering any evidence of purported claims for harassment, retaliation, or failure to prevent harassment, discrimination or retaliation." (ECF No. 119 at 2). Defendant contends:
Defendant... anticipates that Plaintiff... will seek to offer evidence in support of purported Title VII and FEHA claims for harassment and retaliation and a FEHA claim for failure to prevent harassment, discrimination, or retaliation - despite the fact that Plaintiff failed to exhaust administrative remedies as to these claims, did not plead any such claims in his Complaint, and neglected to assert these claims in the Proposed Pretrial Conference Order. The Court lacks jurisdiction to entertain the claims, and Plaintiff is precluded from belatedly raising these claims now. Accordingly, any evidence offered to establish claims for harassment, retaliation, and failure to prevent harassment, discrimination, or retaliation is irrelevant and must be excluded pursuant to Federal Rules of Evidence 401 and 402. Furthermore, the admission of such irrelevant evidence would likely confuse the issues, mislead the jury, cause undue delay, waste time, and unfairly prejudice MSSB by inviting the jury to render a decision on an improper basis. Thus, such evidence should also be excluded pursuant to Federal Rule of Evidence 403.
(ECF No. 119-1 at 7). Defendant contends that it "would clearly be prejudiced if it were forced to defend itself against claims belatedly asserted in an amended pleading, long after the close of discovery, long after the dispositive motion cut off, on the eve of trial." (ECF No. 200 at 24). Defendant contends that it "would have sought and obtained summary judgment as to Plaintiff's unpleaded claims, " and Defendant "would also be prejudiced by its inability to prepare and defend Plaintiff's new claims at trial." Id. at 24, 31.
Plaintiff contends that he has exhausted these claims under state and federal law and properly raised them in this action. Plaintiff contends that "evidence relating to harassment, failure to prevent discrimination, and retaliation... is relevant to and probative of the disparate treatment of the Plaintiff." (ECF No. 152 at 7). Plaintiff contends that "to the extent the issues relating to harassment, failure to prevent discrimination, and retaliation are in fact litigated along with the disparate treatment claim, the Plaintiff may move the Court to allow the Plaintiff to conform the pleadings to proof pursuant to FRCP 15(b), if required." Id. at 7-8. Plaintiff contends that "[i]nasmuch as evidence relating to harassment, failure to prevent discrimination, and retaliation is either relevant corroborating evidence for the Plaintiff's disparate treatment claims under Federal and State law, or is the basis for recovery under those theories or both, it is relevant and material to the Plaintiff's case." Id. at 8. In supplemental briefing filed after oral argument, Plaintiff contends that "Plaintiff alleged the claims for harassment, retaliation and the failure to prevent discrimination in his Complaint and the proposed Pretrial Order." (ECF No. 206 at 18). Plaintiff contends that "Defendant has already litigated all alleged factual issues in the [Motion for Summary Judgment]." Id. at 26.
B. Evidence of Harassment, Retaliation, or Failure to Prevent Harassment, Discrimination or Retaliation
The relief requested in Defendant's Motion in Limine No. 8 is that the Court issue an order precluding Plaintiff "from asserting or offering any evidence of purported claims for harassment, retaliation, or failure to prevent harassment, discrimination or retaliation." (ECF No. 119 at 2). Defendant has failed to identify any specific evidence that Defendant contends Plaintiff is seeking to admit in support of the "purported claims for harassment, retaliation, [and/or] failure to prevent harassment, discrimination or retaliation" that would not also be relevant to Plaintiff's claim for disparate treatment under state and federal law. Accordingly, to the extent Defendant's Motion in Limine No. 8 seeks to preclude evidence, the motion is denied without prejudice to object to specific evidence at trial.
C. Title VII and FEHA Claims for Harassment and Retaliation and FEHA Claim for Failure to Prevent Harassment or Discrimination
Neither the Complaint nor the Pretrial Order references a federal or state law claim for harassment (or hostile work environment) or retaliation, or a state law claim for failure to prevent harassment, retaliation or discrimination. The first time Plaintiff filed any document in this case referencing "harassment, " "hostile work environment, " "retaliation, " and/or "failure to prevent" harassment, retaliation or discrimination was when Plaintiff filed his proposed jury instructions on January 21, 2014-over two years after the action was filed, after the close of discovery, after the dispositive motion deadline, and less than two months before trial. (ECF No. 135). In Defendant's Motion in Limine No. 8 and the supplemental briefing filed after the motions in limine hearing, Defendant requests that the Court prohibit Plaintiff from "proceed[ing] with Title VII and FEHA claims for harassment and retaliation and a FEHA claim for failure to prevent harassment or discrimination." (ECF No. 200 at 10).
1. Subject Matter Jurisdiction
Defendant contends that the Court "lacks subject matter jurisdiction over Plaintiff's unexhausted purported harassment, retaliation, and failure to prevent claims" because "Plaintiff has not exhausted administrative remedies on these purported claims." Id. at 15.
"In order to establish subject matter jurisdiction over [a] Title VII claim, [a] Plaintiff [is] required to exhaust her administrative remedies. Under Title VII, a plaintiff must exhaust her administrative remedies by filing a timely charge with the EEOC, or the appropriate state agency, thereby affording the agency an opportunity to investigate the charge." B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002) (citing, inter alia, 42 U.S.C. § 2000e-5(b)). "Subject matter jurisdiction extends over all allegations of discrimination that either fell within the scope of the EEOC's actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id. at 1100 (quotation omitted). The Court must "construe the language of EEOC charges with utmost liberality since they are made by those unschooled in the technicalities of formal pleading." Id. (quotation omitted). "Allegations of discrimination not included in the plaintiff's administrative charge may not be considered by a federal court unless the new claims are like or reasonably related to the allegations contained in the EEOC charge. In determining whether a plaintiff has exhausted allegations that she did not specify in her administrative charge, it is appropriate to consider such factors as the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, perpetrators of discrimination named in the charge, and any locations at which discrimination is alleged to have occurred." Id. ...