United States District Court, D. Arizona
ORDER
HONORABLE ROSEMARY MARQUEZ, UNITED STATES DISTRICT JUDGE
Pending
before the Court are the parties' Motions in Limine
(Docs. 80, 81, 82, 83, 84, 85).[1] The motions are suitable for
determination without oral argument.
I.
Background
This
lawsuit arises from Defendant Union Pacific Railroad
Company's decision to rescind a job offer to Plaintiff
after learning that Plaintiff had suffered a brain aneurysm
less than three years prior. Plaintiff brings three claims.
In Count One, he alleges that Defendant rescinded his job
offer based on disability in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §
12112(a). In Count Two, Plaintiff alleges that
Defendant's policy to not hire individuals who have a
sudden risk of incapacitation greater than 1% per year
constitutes unlawful screening in violation of the ADA, 42
U.S.C. § 12112(a) and (b)(6). In Count Three, Plaintiff
alleges that Defendant unlawfully requested his family
medical history in violation of the Genetic Information
Nondiscrimation Act (“GINA”), 42 U.S.C. §
2000ff-1(b).
II.
Plaintiff's Motions in Limine
A.
Whether Plaintiff is Disabled
ADA
claims require, among other things, proof that the plaintiff
“is disabled within the meaning of the ADA.”
Nunies v. HIE Holdings, Inc., 908 F.3d 428, 433 (9th
Cir. 2018), as amended. “The term
‘disability' means . . . (A) a physical or mental
impairment that substantially limits one or more major life
activities . . .; (B) a record of such an impairment; or (C)
being regarded as having such an impairment.”
Id. (quoting 42 U.S.C. § 12102(1)(A)-(C)). A
person is “regarded as having such an impairment”
if “the individual establishes that he or she has been
subjected to an action . . . because of an actual or
perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life
activity.” 42 U.S.C. § 12102(3)(A).
Plaintiff
argues that Defendant should be precluded from arguing that
he is not disabled because, regardless of whether he is
actually disabled, 42 U.S.C. § 12102(1)(A), he was
regarded as being disabled when Defendant rescinded the job
offer based on perceived risk of sudden incapacitation,
id. § 12102(1)(C). Defendant complains that
Plaintiff's motion is a disguised (and untimely) motion
for summary judgment and argues that Plaintiff must prove all
elements of his claim.
The
motion will be denied. Defendant has not conceded that
Plaintiff is disabled or that it regarded Plaintiff as
disabled. It is Plaintiff's burden to prove each element
of his claims. This includes whether he meets the ADA's
definition of “disabled.”
B.
2017 Meta-Analysis
During
discovery, Dr. John Holland opined, based in part on a 2017
meta-analysis, that Plaintiff's risk of sudden
incapacitation was approximately 5%. Plaintiff argues that
the meta-analysis should be excluded because it was published
approximately three years after the decision to rescind his
job offer, and all other testifying doctors and experts
dispute the meta-analysis' relevance. Defendant concedes
that its direct-threat defense must be analyzed based on
information available at the time of the employment decision
but argues that after-the-fact medical studies are
nevertheless relevant to whether the decision was objectively
reasonable. Defendant also raises a fairness argument,
pointing out that Plaintiff's counsel refuses to agree to
not present evidence favorable to Plaintiff but also not
available at the time of the employment decision, i.e., that
Plaintiff suffered no neurological incidents following the
employment decision.
The
motion will be denied. Expert evidence offered after the
employment decision may be relevant to “whether the
opinion that a direct threat existed was objectively
reasonable.” Echazabal v. Chevron USA, Inc.,
336 F.3d 1023, 1033 (9th Cir. 2003) (emphasis in original)
(admitting after-the-fact expert opinions). Furthermore,
although the meta-analysis itself was not available at the
time of the employment decision, Plaintiff has not
established that “the body of medical knowledge”
contained in the meta-analysis “was not available at
the time, i.e., was beyond the then ‘most current
medical knowledge.'” Id. Finally, the
Court disagrees that the meta-analysis' relevance is
substantially outweighed by any of the factors set forth in
Rule 403.
C.
Train Accidents
Defendant
presented evidence of two train accidents in connection with
its motion for summary judgment. The first accident was
caused in part due to untreated sleep apnea. The second
accident was caused by sudden incapacitation due to seizure.
Plaintiff argues that evidence of these accidents (in the
form of official reports) is irrelevant for two reasons: (1)
the causes of the accidents were not determined until after
Defendant's employment decision and thus could not have
factored into the decision, and (2) the conditions that
caused the accidents (sleep apnea and seizures) are different
from the subarachnoid hemorrhage suffered by Plaintiff.
Plaintiff also argues that evidence of catastrophic train
accidents is unduly prejudicial under Rule 403. Defendant
responds that the train accidents have relevance external to
the employment decision and that its primary concern is the
risk of sudden incapacitation, not the specific medical
condition that may cause sudden incapacitation.
The
motion will be denied. Evidence of train accidents caused by
sudden incapacitation is relevant to Defendant's
direct-threat defense, which requires examination of
“[t]he nature and severity of the potential harm”
if the job is not safely performed. 29 C.F.R. §
1630.2(r)(2); see Chevron U.S.A. Inc. v. Echazabal,
536 U.S. 73, 86 (2002). In view of this inquiry, what
Plaintiff describes as prejudice is more akin to probative
value: the evidence is undeniably informative regarding the
potentially disastrous consequences of sudden incapacitation
in a train-crew position. Next, Plaintiff's reliance on
the differing medical conditions is a red herring. Defendant
has consistently maintained that it places considerable
emphasis on the risk of sudden incapacitation-not
the specific medical condition that may cause sudden
incapacitation.
D.
Plaintiff's Employment with Gale Insulation
Plaintiff
was employed with Gale Insulation from 1993 to approximately
2013. He was terminated for taking his company vehicle home
in violation of the company's standard operating
procedures. Plaintiff applied to work at BNSF Railway Company
in late 2013, indicating on his application that he was
“laid off” from Gale Insulation. Subsequently,
Plaintiff applied for a position with Defendant, indicating
on his application that he left Gale Insulation due to
“downsizing.” Following the revocation of his job
offer with Defendant, Plaintiff applied at United
Subcontractors, Inc., indicating on his application that he
left Gale Insulation due to an “SOP violation.”
Plaintiff appears to concede that his
“downsizing” statement to Defendant is
admissible. He also appears to concede that the fact that he
was terminated for violating company policy is admissible. He
contends, however, that his statements to other employers
about his departure from Gale Insulation are inadmissible. He
argues that the statements are irrelevant or have only
limited relevance that is substantially outweighed by a risk
of unfair prejudice, and that the statements constitute
improper character or habit evidence under Federal Rule of
Evidence 404(b). Defendant argues that Plaintiff's
statements to other employers are admissible impeachment
evidence within the scope of Federal Rule of Evidence 608(b).
The
motion will be granted. The parties concede the admissibility
of evidence that Plaintiff was terminated for violating Gale
Insulation's policies and concealed that fact from
Defendant. This after-acquired evidence will be admissible
only in the damages phase of the trial. Statements that
Plaintiff made to other employers about his termination,
however, are largely irrelevant. Whatever slight probative
value the statements have towards impeachment is
substantially outweighed by the risk of prejudice.
See Fed. R. Evid. 403.
E.
Plaintiff's Termination from United Subcontractors,
Inc.
Shortly
after having his offer of employment with Defendant revoked,
Plaintiff began employment at United Subcontractors, Inc.
Plaintiff was terminated several months later. Plaintiff
acknowledges that his termination could be relevant to
whether he mitigated damages after being denied employment
with Defendant. He contends that any such relevance is low,
however, since he actively tried to reenter the workforce,
and his termination was due to a lack of revenue, not
violation of company rules. He also contends that the limited
probative value of his termination is substantially
outweighed by the risk of prejudice and misleading and
confusing the jury.
Defendant
argues that Plaintiff's termination is relevant to
whether he exercised “reasonable diligence” in
seeking and maintaining new employment. Defendant disputes
Plaintiff's assertion that he was terminated due to a
lack of revenue because documents obtained from United
Subcontractors, Inc. indicate that Plaintiff was terminated
for poor performance and that Plaintiff is ineligible for
rehire. Defendant contends that termination due to poor
performance, like termination for violating company rules, is
relevant to whether a plaintiff mitigated damages.
The
motion will be denied. The evidence is relevant to whether
Plaintiff mitigated damages. See Ford Motor Co. v.
E.E.O.C., 458 U.S. 219, 230-32 (1982) (describing duty
of discrimination plaintiffs “to use reasonable
diligence in finding other suitable employment”).
Plaintiff's salary at United Subcontractors, Inc. was
purportedly higher than his first-year salary with Defendant
would have been. A factfinder could reasonably find that
Plaintiff failed to mitigate damages by losing a
higher-paying job due to poor performance. Cf. Brady v.
Thurston Motor Lines, Inc., 753 F.2d 1269, 1279 (4th
Cir. 1985) (finding lack of reasonable diligence where
plaintiffs were terminated from new employment for violating
company rules). Any risk of prejudice posed by the evidence
does not substantially outweigh the evidence's probative
value.
Because
the evidence is relevant only to damages, Defendant may
present it only during the damages phase. This effectively
eliminates the risk that the jury would be confused or
misled.
III.
Defendant's Motions in Limine
A.
Plaintiff's ...