Opinion
20-cv-03989-KAW
01-31-2023
KELEE WILLIAMS, Plaintiff, v. ROBERT HALF INTERNATIONAL INC., Defendant. Broadspire Records Custodian OVERRULE IN PART, SUSTAIN IN PART Carlos Fraga Exhibits 3, 5 (incomplete email strings) SUSTAIN Exhibit 10 (Convention Agenda relating to Resilience in Action dated September 23, 2021) Exhibit 13 (envelope addressed to Ms. Williams from Gregory Mathurin postmarked June 10, 2020) Exhibit 17 (email correspondence between counsel for Ms. Williams, Seth Rafkin, and Vicki Gunn of Broadspire's in-house legal team from April 7, 2021, to May 4, 2021) Exhibit 19 (email correspondence between Mr. Rafkin and counsel for RHI, Ellen Bronchetti, from to December 2 to 3, 2020 Exhibit 20 (Determination Letter from Illinois Department of Employment Security to Ms. Williams dated February 10,2021) Exhibit 62 (email correspondence between counsel for Plaintiff, Seth Rafkin, and Vicki Gunn of Broadspire) Exhibit 89 (W-2 Wage and Tax Statements for Ms. Williams from 2017 through 2020) Exhibits 23-25, 65-68, 76, 85 (RHI compensation plans and revenue report) Exhibit 21 (Salesforce Codes) Exhibit 22 (Chris Brinkman File) Exhibits 58, 59 (text messages with J. Burgstiner and J. Accardi) SUSTAIN Exhibit 63 (Plaintiff's Mitigation Summary) SUSTAIN
PRETRIAL CONFERENCE TENTATIVE RULINGS
KANDIS A. WESTMORE UNITED STATES MAGISTRATE JUDGE
I. MOTIONS IN LIMINE
Relevant evidence is any evidence that has any tendency to make a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Fed.R.Evid. 401. The Court has discretion to “exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issue, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
MIL
Motion
Ruling
Reason/Explanation
D1
Exclude fax from Ms. Williams' counselor, Kathleen Alberts, to Broadspire dated October 1, 2020
DENY
Plaintiff may introduce the fax into evidence to demonstrate that Plaintiff's therapist had submitted the form to show pretext.
D2
Exclude evidence of actions by the Illinois Department of Employment Security (“IDES”)
GRANT
The IDES Determination Letter may not be used as evidence in this proceeding. 820 Ill. Comp. Stat. 405/1900.
D3
Exclude evidence of communications between Ms. Williams and RHI's third party administrator, Broadspire
DENY
Defendant's request is overbroad. Although Defendant characterizes these communications between Plaintiff and a third-party as irrelevant, Plaintiff's allegations of Defendant's improper interference with her benefits request make the communications relevant to the remaining retaliation claims.
D4
Exclude evidence of whether RHI paid Ms. Williams less than men for similar work or RHI's compensation to its employees prior to August 18, 2019
GRANT
Discriminatory conduct occurring prior to the limitations period may be considered as part of the continuing violations doctrine in support of a hostile work environment claim. Plaintiff nowhere argues that differential pay amounted to harassing conduct, nor does she show that differential pay is a relevant consideration to the hostile work environment assessment. Evidence of differential pay prior to the limitations period is thus irrelevant.
D5
Exclude evidence of the reasons why Chris Brinkman left RHI
DENY
The harassment of other women by Plaintiff's former direct supervisor is “relevant and probative” of the supervisor's hostility toward women. Heyne v. Caruso, 69 F.3d 1475, 1480-81 (9th Cir. 1995). Plaintiff's admission that Brinkman did not harass her does not preclude consideration of his maltreatment of other women in the Court's hostile environment assessment.
D6
Exclude evidence of settlement communications between counsel Ellen Bronchetti and Seth Rafkin
DENY
The email correspondence does not constitute confidential settlement communications under Rule 408(a). Defendant's counsel does not exhibit an offer of valuable consideration in compromising or attempting to compromise the claim. Fed.R.Evid. 408 (a)(1). Defense counsel emailed Plaintiff's counsel “out of courtesy” (Bronchetti Decl., Ex. 5), not “during compromise negotiations about the claim.” Fed.R.Evid. 408(a)(2). The Court does not rule, at this stage, on the authentication of the email correspondence.
D7
Exclude evidence of alleged non-gender-based bullying
DENY
This category of evidence is overbroad. But more importantly, Plaintiff still has claims for retaliation which need not necessarily rely on gender-based bullying.
D8
Regarding the Scope of the Parties' Non-Compete Provision
DENY
This is an improper motion in limine that requires the Court to interpret a contractual provision in a vacuum.
D9
Exclude evidence of Ms. Williams' Verbal Complaints as Not Protected Activities
DENY
This evidence, in contrast to the evidence excluded under Motion in Limine No. 4, is relevant to a remaining claim. The evidence of Plaintiff's complaints, even verbal complaints, is relevant to her cause of action for retaliation.
D10
Exclude evidence of being excluded from meetings and not being provided a mentor as adverse actions
GRANT IN PART, DENY IN PART
Plaintiff does not meaningfully argue that the failure to provide a mentor demonstrates an adverse action, and that category of evidence is accordingly excluded. Evidence of Plaintiff's exclusion from meetings may be introduced as an adverse action. Strother v. S. Cal. Permanente Med. Group, 79 F.3d 859, 869 (9th Cir.1996) (exclusion from meetings and seminars that would have made plaintiff eligible for salary increases qualifies as adverse employment action).
II. EVIDENTIARY ISSUES
A. Plaintiff's Objections
Witness/Evidence
Ruling
Reason/Explanation
Dawn Abbey
SUSTAIN
Abbey was not timely disclosed, and Defendant does not directly respond to Plaintiff's objection to her testimony.
Tom Andreesen
SUSTAIN
Andreesen was not timely disclosed, and Defendant does not establish that his testimony will not result in prejudice.
Witness/Evidence
Ruling
Reason/Explanation
Gianne Cohoon
SUSTAIN
Cohoon was not timely disclosed, and Defendant does not directly respond to Plaintiff's objection to her testimony.
Kerry Daley
SUSTAIN
Daley was not timely disclosed, and Defendant does not establish that her testimony will not result in prejudice.
Kim Lampo
SUSTAIN
Lampo was not timely disclosed, and Defendant does not directly respond to Plaintiff's objection to her testimony.
Fran Liontakis
SUSTAIN
Linotakis was not timely disclosed, and Defendant does not directly respond to Plaintiff's objection to her testimony.
Colleen Tanaka George
SUSTAIN
Tanaka George was not timely disclosed as a witness, Defendant does not establish that her testimony will not result in prejudice. Additionally, her intended testimony appears redundant.
Martha Tinajero
OVERRULE
Though disclosed late, the identification of Tinajero can hardly be surprising to Plaintiff. It appears Plaintiff was aware of Broadspire's relevance, particularly where Plaintiff subpoenaed materials from Broadspire in April 2021 and Plaintiff's counsel interacted with Tinajero. See Dkt. 150-2 at 86.
Todd Price
SUSTAIN
Price was not timely disclosed. Although Defendant intends to ask only that he authenticate certain documents, which might not result in prejudice to Plaintiff, those documents were also disclosed well after the close of discovery.
Leslie Rife
SUSTAIN
Rife was not timely disclosed, and Defendant does not establish that her testimony will not result in prejudice.
Stephanie Sweet
SUSTAIN
Sweet was not timely disclosed, and Defendant does not establish that her testimony will not result in prejudice.
Radhika Tatavarthy
SUSTAIN
Tatavarthy was not timely disclosed, and Defendant does not establish that her testimony
Witness/Evidence
Ruling
Reason/Explanation
will not result in prejudice.
Jill Thompson
SUSTAIN
Thompson was not timely disclosed, and Defendant does not establish that her testimony will not result in prejudice.
Exhibit A-28-32, 36-42 (Applications for MBS - VP position)
OVERRULE
Plaintiff objects for lack of relevance, but the qualifications of other candidates for the position she was denied are relevant to Defendant's legitimate business reasons defense. The Court does not yet rule on the exhibits' foundations and authenticity. Disclosure of documents late within discovery period (as opposed to after close of discovery) does not render disclosure untimely.
Exhibit A-98-100 (Personnel files of other applicants to MBS - VP position)
SUSTAIN
Documents were not produced until December 13, 2022, well after the close of discovery.
Exhibits A-106-109 (LinkedIn profiles and Todd Price affidavit)
SUSTAIN
Documents were not produced until December 19, 2022, well after the close of discovery.
Exhibits A-110 (Total award base salary schedule)
OVERRULE
Though disclosed late, Plaintiff cannot be surprised by this Exhibit, something within her knowledge and underlying certain of her claims in this lawsuit.
Exhibit A-111-122 (Broadspire Files)
SUSTAIN
Documents were not produced until December 19, 2022, well after the close of discovery.
B. Defendant's Objections
Witness/Evidence
Ruling
Reason/Explanation
Jennifer Burgstiner, Ellen Bronchetti, Vicki Gunn
SUSTAIN
None of these witnesses were timely disclosed, and Plaintiff does not establish that their testimony will not result in prejudice.
RHI Records Custodian
OVERRULE
Plaintiff may call Defendant's custodian of records to authenticate materials produced for
Witness/Evidence
Ruling
Reason/Explanation
trial. Defendant suffers no prejudice by authenticating its documents.
Broadspire Records Custodian
OVERRULE IN PART, SUSTAIN IN PART
Plaintiff may call Broadspire's custodian of records to authenticate materials produced for trial. However, Plaintiff may not pursue questioning regarding Broadspire's allegedly insufficient response to Plaintiff's earlier subpoena. The time has passed for Plaintiff to compel such responses.
Carlos Fraga
OVERRULE
Fraga's testimony regarding compensation at RHI is not irrelevant given the remaining scope of Plaintiff's Title VII claim and its inclusion of differential pay.
Exhibits 3, 5 (incomplete email strings)
SUSTAIN
Plaintiff acknowledges that the email chains are incomplete and states her willingness to supplement the Exhibits with the missing pages. Plaintiff is ORDERED to provide the full email chain if she intends to present the Exhibits into evidence.
Exhibit 10 (Convention Agenda relating to Resilience in Action dated September 23, 2021)
OVERRULE
Exhibit was not disclosed late. Rather, it was previously disclosed in evidence as an exhibit in Tim Hurd's deposition.
Exhibit 13 (envelope addressed to Ms. Williams from Gregory Mathurin postmarked June 10, 2020)
OVERRULE
Exhibit was not disclosed late. It was an exhibit to Plaintiff's opposition to Defendant's Motion for Summary Judgment. (ECF 97, Ex. B.)
Exhibit 17 (email correspondence between counsel for Ms. Williams, Seth Rafkin, and Vicki Gunn of Broadspire's in-house legal team from April 7, 2021, to May 4, 2021)
OVERRULE
Exhibit was not disclosed late. It was an exhibit to Plaintiff's opposition to Defendant's Motion for Summary Judgment.
Exhibit 19 (email correspondence between Mr. Rafkin and counsel
OVERRULE
Exhibit was not disclosed late, nor was it a surprise-it is correspondence with Defendant's counsel. Additionally, the correspondence does
Witness/Evidence
Ruling
Reason/Explanation
for RHI, Ellen Bronchetti, from to December 2 to 3, 2020
not constitute a confidential settlement communication. See Defendant's MIL 6.
Exhibit 20 (Determination Letter from Illinois Department of Employment Security to Ms. Williams dated February 10,2021)
SUSTAIN
Determination letter was not disclosed late given that Defendant received a copy of the same correspondence directly from IDES. However, the Determination Letter may not be used as evidence in this proceeding, and it amounts to hearsay. See also Defendant's MIL 2.
Exhibit 62 (email correspondence between counsel for Plaintiff, Seth Rafkin, and Vicki Gunn of Broadspire)
SUSTAIN
The exhibit was disclosed late, and Plaintiff does not establish that late disclosure was harmless.
Exhibit 89 (W-2 Wage and Tax Statements for Ms. Williams from 2017 through 2020)
OVERRULE
These documents were issued by Defendant, were in Defendant's possession, and notably should have been produced by Defendant pursuant to General Order 71. Though disclosed late, Defendant is not surprised or prejudiced by their consideration.
Exhibits 23-25, 65-68, 76, 85 (RHI compensation plans and revenue report)
OVERRULE
These exhibits are not irrelevant. Plaintiff's claims for gender discrimination and retaliation under Title VII, as well as her claim for constructive termination, remain standing. However, evidence of differential pay prior to August 18, 2019, is not actionable, and those portions of the exhibits older than that date will not be considered by the Court. See Defendant's MIL 4.
Exhibit 21 (Salesforce Codes)
SUSTAIN
Plaintiff acknowledges that this Exhibit was mislabeled and states that she intends to provide the correct exhibit, the “2018 Reach for the Stars Award,” to Defendant and the Court.
Exhibit 22 (Chris Brinkman File)
OVERRULE
Defendant argues that Brinkman's discharge is irrelevant to Plaintiff's claims, but Brinkman's alleged harassment of other women may be considered in the Court's hostile environment assessment. See Defendant's MIL 5.
Witness/Evidence
Ruling
Reason/Explanation
Exhibits 58, 59 (text messages with J. Burgstiner and J.
Accardi)
SUSTAIN
These text messages amount to hearsay. Further, they are irrelevant.
Exhibit 63 (Plaintiff's Mitigation Summary)
SUSTAIN
The exhibit was disclosed late, and Plaintiff does not establish that late disclosure was harmless.
III. MOTION TO STRIKE
Plaintiff filed her responses to Defendant's objections two days late. (Dkt. 151, Dkt. 152.) Plaintiff's counsel acknowledged that the responses were tardy in a letter to the Court on Sunday, January 22, 2023. (Dkt. 154.) Defendant then moved to strike Plaintiff's late-filed responses to her objections. (Dkt. 155.)
Plaintiff asks the Court not to strike the late-filed responses based on excusable neglect. “To determine whether a party's failure to meet a deadline constitutes ‘excusable neglect,' courts must apply a four-factor equitable test, examining: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)).
Given the mere two-day delay and the fact that no subsequent deadlines were impacted, the good faith calendaring mistake by Plaintiff's counsel constitutes excusable neglect that does not result in prejudice to Defendant. Therefore, the Court will DENY Defendant's Motion to Strike Plaintiff's Responses to Defendant's Objections.
IT IS SO ORDERED.