Free Motion in Limine - District Court of Colorado - Colorado

Case 1:04-cv-00421-MSK-PAC

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Filed 01/24/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-00421-MSK-OES CLAIRE FITZGERALD, Plaintiff(s), vs. ALBERTO R. GONZALES, Attorney General, U.S. Department of Justice (Federal Bureau of Prisons), Defendant(s).

DEFENDANT'S MOTION IN LIMINE RE:

PLAINTIFF'S TESTIMONY

COMES NOW Defendant Alberto R. Gonzales, Attorney General, United States Department of Justice, and for his Motion in Limine re: Plaintiff's Testimony states as follows. In submitting this

Motion, Defendant certifies that he has complied with D.C.COLO.LCivR 7.1(A) in that counsel for Defendant has conferred with counsel for Plaintiff and they do not concur in this Motion. As has been stated in Defendant's Motion for Summary Adjudication (Doc. No. 45) and the Final Pretrial Order (Doc. No. 55), this is an action brought pursuant to Title VII, 42 U.S.C. § 2000 et seq. Plaintiff Claire D. Fitzgerald has raised claims of

harassment/hostile work environment, disparate treatment, reprisal, and constructive discharge in her First Amended Title VII Complaint and Jury Demand (Doc. No. 35) for events which allegedly took place while she was employed by the Federal Bureau of Prisons (BOP), Management & Specialty Training Center (MSTC)

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in Englewood, Colorado. Defendant files this Motion pursuant to Fed. R. Evid. 402 and 403. Rule 402 provides:

All relevant evidence is admissible, except as otherwise provided . . . by these rules . . .. Evidence which is not relevant is not admissible. Rule 403 provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . .. During the period of time in which Plaintiff was employed at the MSTC, she filed numerous Equal Employment Opportunity (EEO) complaints in which she alleged various acts of discrimination, harassment, and retaliation. At the EEOC Hearing which occurred

on September 12-15, 2000, Plaintiff testified that a miscarriage she suffered while employed at the MSTC was caused by the alleged events which gave rise to this lawsuit. her deposition, Plaintiff testified: Q. Now, in your testimony in the EEO proceeding, you made a claim that your miscarriage was caused as a result of these events having to do with this lawsuit. A. Q. A. Q. A. Q. Yes. Are you still claiming that? Yes. What physician did you see for that? My Ob/Gyn. Who was that? -2When asked about that in

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A. I don't remember his name right now. I don't know, but he's a gentleman here in Denver. As far as I know, he's still here. * * * * *

Q. On what basis are you claiming the miscarriage was a result of ­ A. I've never had one before. I always got pregnant very easily. I just had never had a problem in that regard. It was very unusual for something like that to happen to me. And I was under a tremendous amount of stress at work. Q. Did your doctor say that that was what caused the miscarriage? A. Q. A. We didn't specifically discuss that. Did you ask him about it? No.

(Exhibit A, Deposition of Claire Fitzgerald - Volume II, p. 164, l. 21-25, p. 165, l. 1-22). In the Final Pretrial Order (Doc.

No. 55), Plaintiff did not name as an expert witness a physician who is competent to testify as to the probable cause of her miscarriage. It is well established that the admission of evidence is discretionary with the trial court. United States v. Pickard,

278 F. Supp. 2d 1217, 1232 (D. Kan. 2003) (citing United States v. Willie, 941 F.2d 1384, 1398 (10th Cir. 1991), cert. denied, 502 U.S. 1106 (1992)). As noted by the court in Pickard:

The starting point for the introduction of any evidence is relevance. However, a finding that evidence is relevant "does not validate the form in which that evidence is admitted." . . . The court must then -3-

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consider whether the evidence is admissible under the other rules of evidence. Lastly, the court must determine, even if the evidence is relevant and admissible, whether it should be excluded because its probative value is outweighed by its prejudicial effect. Id. at 1232-33 (citations omitted). See also Thompson v. State

Farm Fire and Casualty Co., 34 F.3d 932, 939-40 (10th Cir. 1994). Defendant submits that, given the above circumstances, Plaintiff's miscarriage is not relevant. Not only is there no

proof that Plaintiff's miscarriage was related to her employment, any such conclusion is entirely speculative. Fournier v.

Erickson, 242 F. Supp. 2d 318, 329 (S.D.N.Y. 2003) ("While the degree of speculation is not so great as to render this content irrelevant, it does severely limit its probative value."). Furthermore, "the potential of an inappropriate appeal to the jury's sympathy" of a woman's miscarriage in this instance outweighs any possible probative value. 940. Thompson, 34 F.3d at

Therefore, any evidence concerning Plaintiff's miscarriage

should be excluded by the Court. CONCLUSION For the foregoing reasons, Defendant Alberto R. Gonzales, Attorney General, United States Department of Justice, respectfully requests the Court for an Order granting his Motion in Limine re: Plaintiff's Testimony and for such other and

further relief as the Court may deem just and proper.

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Respectfully submitted, Respectfully submitted, DAVID C. IGLESIAS United States Attorney s/Phyllis A. Dow PHYLLIS A. DOW Special Attorney District of Colorado Assistant U.S. Attorney P.O. Box 607 Albuquerque, New Mexico 87103 Telephone: (505) 346-7274 FAX: (505) 346-7205 E-mail: [email protected] Attorney for Defendant I HEREBY CERTIFY that on January 24, 2006, I electronically filed with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Scott Frederick Reese [email protected] Elwyn F. Schaefer [email protected] Michael E. Hegarty [email protected] , and I hereby certify that I have mailed or served the document to the following participants via First Class Mail to: Scot L. Gulick Federal Bureau of Prisons Tower II, 8th Floor 400 State Avenue Kansas City, Kansas 66101-2421 s/Phyllis A. Dow PHYLLIS A. DOW Special Attorney District of Colorado Assistant U.S. Attorney P.O. Box 607 Albuquerque, New Mexico 87103 Telephone: (505) 346-7274 FAX: (505) 346-7205 E-mail: [email protected] Attorney for Defendant
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