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Valerio v. Compass Bank

United States District Court, E.D. California

March 27, 2017

GLORIA VALERIO, Plaintiff,
v.
COMPASS BANK, and DOES 1-50, inclusive, Defendants.

          AMENDED PRETRIAL CONFERENCE ORDER

          JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE

         Pursuant to court order, a Pretrial Conference was held on March 17, 2017, before Judge John Mendez. Ognian Gavrilov and J. Edward Brooks appeared as counsel for plaintiff; James T. Jones, Carolyn G. Burnette and Douglas M. Egbert appeared as counsel for defendant. After hearing and submission of additional papers by the parties, the Court makes the following amended findings and orders:

         I. JURISDICTION/VENUE

         Jurisdiction is predicated upon 28 U.S.C. § 1332, and has previously been found to be proper by order of this court, as has venue. Those orders are confirmed.

         II. JURY/NON-JURY

         Plaintiff has demanded a jury trial.

         III. STATEMENT TO BE READ TO JURY

         Seven (7) days prior to trial the parties shall E-file a joint statement of the case that may be read to the jury at the beginning of jury selection.

         IV. UNDISPUTED FACTS

         1. Gloria Valerio was hired by Compass Bank on or about September 12, 2011 to work as a Financial Sales Advisor II at the bank's Elk Grove branch.

         2. Brenda Duclos was the Branch Manager at the Elk Grove branch and supervised Gloria Valerio until March 6, 2013.

         3. On or about March 16, 2013, Diana Smith, a Compass Bank employee, transferred to the Elk Grove branch to work as the Branch Manager.

         4. During the relevant time period, Diane Demidzic was the District Manager over the Elk Grove branch.

         5. On or about April 2, 2013, Gloria Valerio received a performance evaluation that rated her “below expectations.”

         6. On or about April 3, 2013, Gloria Valerio was placed on a 90-day performance improvement plan. The plan provided that follow-up with Plaintiff would occur every 30 days, and that it was imperative that Gloria Valerio's performance improve during the first 30 days.

         7. On April 19, 2013, Gloria Valerio contacted Melanie Sparks to complain that she “noticed that [she] was docked time off on 4/17/13 for having been ‘sent home to change' a total of .75 hours.”

         8. Compass Bank received notice from the California Department of Fair Employment and Housing (“DFEH”) dated June 6, 2013, that Gloria Valerio filed a complaint with the DFEH alleging discrimination, harassment and retaliation by Compass Bank.

         9. Compass Bank received a letter from Gloria Valerio dated June 28, 2013, alleging that Gloria Valerio had been sexually harassed by Diana Smith during the first three weeks of April 2013.

         10. Gloria Valerio began a medical leave of absence on May 2, 2013 and never returned to work at Compass Bank.

         V. DISPUTED FACTUAL ISSUES

         1. Whether Compass Bank sexually harassed Gloria Valerio.

         2. Whether Compass Bank retaliated against Gloria Valerio.

         3. Whether Compass Bank discriminated against Gloria Valerio because of Gloria Valerio's race.

         4. Whether Compass Bank failed to prevent sexual harassment and race discrimination.

         5. Whether Gloria Valerio made any complaints about workplace safety, and if so, whether Compass Bank retaliated against Gloria Valerio because she made those complaints.

         6. Whether Gloria Valerio was damaged in any way because of Compass Bank.

         7. Whether Gloria Valerio obtained fully mitigating employment or made best efforts to obtain fully mitigating employment.

         VI. DISPUTED EVIDENTIARY ISSUES

         The parties anticipate the following disputed evidentiary issues, each of which the parties suggest should be resolved by way of motion in limine. The parties request that a briefing schedule for motions in limine be discussed and set at the pretrial conference.

         1. Defendant seeks to preclude Plaintiff's treating physicians and nurses from testifying that Plaintiff's mental health issues were caused by Defendant. Plaintiff's treating physicians and nurses simply took what Plaintiff said at face value - they did not make any independent medical conclusion about the cause of Plaintiff's mental health issues, and any such testimony is speculative at best and would be improper opinion.

         2. Defendant seeks to preclude Plaintiff from testifying that Defendant caused the purported psychiatric breakdown that led to her involuntary confinement by hospital staff (commonly referred to as a “5150” or involuntary psychiatric hold). Such evidence is medical opinion, and Plaintiff is not competent to testify about the cause of her involuntary confinement given her mental state at that time.

         3. Defendant seeks to preclude Plaintiff from testifying or otherwise introducing any evidence or argument that Defendant caused Child Protective Services to take her child into its custody. Plaintiff is not competent to testify about the cause of the purported psychiatric breakdown or to extrapolate therefrom as to why Child Protective Services took custody of her child.

         4. Defendant seeks to preclude Plaintiff from testifying or otherwise introducing any evidence that she suffers distress and has suicidal ideation as a result of the litigation.

         5. Defendant seeks to preclude Plaintiff from testifying or otherwise introducing any evidence relating to purported emotional distress that is part of her pending workers' compensation claims.

         6. Defendant seeks to exclude any evidence of settlement offers during the liability phase of trial.

         7. Defendant seeks to preclude evidence that it may carry liability insurance.

         VII. RELIEF SOUGHT

         Plaintiff seeks economic damages for lost wages and benefits caused by Defendant's unlawful conduct to be proven through Plaintiff's economic expert, Craig Enos. Plaintiff seeks non-economic damages for past and future emotional distress caused by Defendant's unlawful conduct which has caused mental suffering, loss of enjoyment of life, grief, anxiety, shock, humiliation, and embarrassment. Plaintiff seeks costs and attorneys' fees. Plaintiff also seeks punitive damages according to proof at trial.

         Defendant disputes that it engaged in any unlawful conduct or that it is liable in any way to Plaintiff for any damages or relief. Defendant prays: (1) that Plaintiff takes nothing by her Complaint; (2) for judgment in Defendant's favor and dismissal of all of Plaintiff's claims; (3) for Defendant's costs and attorneys' fees incurred in this action; and (4) for such other and further relief as the Court may deem proper. Defendant also seeks the costs benefits provided by Rule 68 of the Federal Rules of Civil Procedure in the event Plaintiff does not prevail at trial or her recovery at trial is less than Defendant's Rule 68 offer. If Plaintiff were to prevail at trial, Defendant would seek limitation of Plaintiff's award pursuant to its affirmative defenses, particularly the doctrines of unclean hands, after-acquired evidence, and failure to mitigate.

         VIII. POINTS OF LAW

         Trial briefs shall be E-filed with the court no later than seven (7) days prior to the date of trial, i.e., April 17, 2017. Any points of law not previously argued to the Court should be briefed in the trial briefs.

         IX. ABANDONED ISSUES

         Plaintiff is abandoning the Private Attorney General's Act Claim (Labor Code Section 2698 et seq.) that is contained within her Sixth Cause of Action, but not abandoning the Sixth Cause of Action for violation of Labor Code Sections 6310, 6403 and 6404.

         Defendant is abandoning its First, Third, Fifth, Seventh, Twelfth, Fourteenth, and Sixteenth Affirmative Defenses.

         Defendant hereby notifies the Court that Plaintiff has represented to Defendant that she will dismiss the PAGA claims found in her sixth cause of action.

         X. WITNESSES

         Plaintiff anticipates calling the following witnesses:

1. Gloria Valerio
2. Diana Smith
3. Diane Dmezdic
4. Sue Veach
5. Martin Torres
6. Angela Querezma
7. Matt Farmer
8. Elio Guteirrez
9. Alondra Vazquez
10. Craig Enos
11. Dr. Syed Munir
12. Dr. Maria Torres
13. Dr. Jose Sanchez
14. Consuelo Armas
15. Heather Noriega
16. Aaron Rice

         Defendant anticipates calling the following witnesses:

1. Gloria Valerio
2. Diana Smith
3. Matt Farmer
4. Melanie Sparks
5. Diane Demidzic
6. Sue Veach
7. Brenda Duclos
8. Michael Ibe
9. Officer Kelli Ledbetter
10. Amanda Serratos
11. Aurelio Hurtado
12. Shelly Darms
13. Bindu Jaduram
14. Maggie Montero
15. Rigobuerto Lopez
16. Iluminada Lewis
17. Charles Scott, M.D.
18. Suzanne Stuckwisch
19. Florentino Martinez, R.N.
20. Carole Chan-You, M.D.
21. Syed Munir, M.D.
22. Jose Sanchez, M.D.
23. Andres F. Sciolla, M.D.
24. Catherine Wergin, Physician's Assistant.
25. Janik Mehtani, M.D., QME.
26. James D. Wallace, D.C./PA-C, ...

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